R v Georgiou
[2020] VCC 502
•1 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00591
| THE QUEEN |
| v |
| CHRIS GEORGIOU |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2018 and 21 September 2018 | |
DATE OF SENTENCE: | 1 May 2020 | |
CASE MAY BE CITED AS: | R v Georgiou | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 502 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Dishonestly causing a loss to the Commonwealth – Dishonestly causing a loss or risk of loss to the Commonwealth – Paying ‘off the books’ wages without remitting tax to the ATO – Total loss and risk of loss to the ATO of $388,330 – Offences continued over a 32-month period – Early plea of guilty – Very lengthy delay – Moderately high moral culpability – Demonstrated remorse – Migrated from Cyprus – Endured abuse during childhood – Suffered from bullying at school – Carer for aged parents – Verdin’s principles 5 engaged – No relevant prior criminal history – Very good prospects of rehabilitation – Fined $5,000 with conviction – Total effective sentence of three years’ imprisonment with a recognisance release order allowing immediate release
Legislation Cited: s 135.1(3) Criminal Code (Cth) – s 135.1(5) Criminal Code (Cth) – s 4B(2) Crimes Act 1914 (Cth) – s 16A(1) Crimes Act1914 (Cth) – s 16A(2) Crimes Act1914 (Cth)
Cases Cited:Atholwood v The Queen (1999) 109 A Crim R 465 – Cameron v The Queen (2002) 209 CLR 339 – Rodriguez v DPP (2013) 40 VR 436 – Markovic v The Queen (2010) 30 VR 589 - R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence of three years’ imprisonment with a recognisance release order allowing immediate release
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr B Young QC with Mr M Regan (17 & 21 September 2018) Mr B Young QC | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused | Mr A Chernok | Valos Black & Associates |
HIS HONOUR:
1 Chris Georgiou, you have pleaded guilty to a Commonwealth indictment containing one charge of dishonestly causing a loss to the Commonwealth between 19 February 2012 and 31 October 2014 (Charge 1)[1] and one charge of dishonestly causing a loss or risk of loss to the Commonwealth between 1 July 2013 and 31 October 2014 knowing or believing there was a substantial risk of the loss occurring (Charge 2).[2] The maximum penalty for both offences is five years’ imprisonment[3] and/or a fine of $33,000.[4]
[1] Contrary to s 135.1(3) Criminal Code (Cth).
[2] Contrary to s 135.1(5) Criminal Code (Cth).
[3] Pursuant to s 135.1 Criminal Code (Cth).
[4] See Crimes Act 1914 (Cth) s 4B(2). At the relevant time a ‘penalty unit’ was equal to $110.
2 Charge 1 relates to you causing an admitted quantified loss to the Australian Tax Office (‘ATO’) of $20,577, being the non-payment of Pay as You Go (‘PAYG’) tax instalments payable on cash payments totalling $55,003 you received as wages from MLA Security Services Pty Ltd (‘MLA’) as trustee for the Ammouchi Family Trust, with the intention of dishonestly causing a loss to the Commonwealth.
3 Charge 2 relates to a loss or risk of loss you caused to the ATO of PAYG tax instalments neither withheld, declared nor remitted to the ATO in respect of cash payments made to a number of employees (other than yourself) of MLA, FMAM Corp Pty Ltd (‘FMAM’), Mask Services Pty Ltd (‘Mask’) and a business conducted by Jamal Kaakour known as ‘Shoretec’ (‘Shoretec’). This charge stems from your willing participation in the ACG National Pty Ltd (‘ACG’) corporate strategy to keep labour costs down by using sub-contracting entities in circumstances where it was sanctioned that PAYG tax payable on wages paid by those entities would not be remitted to the ATO.
The Facts
4 The factual substratum to these offences is set out in four documents filed by the prosecution as follows:
(1) An undated document headed ‘Plea Opening – General Summary’.[5]
[5] Exhibit P1.
(2) An undated document headed ‘The Queen -v- Chris Georgiou, Plea Opening – Executive Summary’.[6]
(3) A document described as a ‘The Queen -v- Chris Georgiou, Prosecution Opening for Plea’ dated 29 August 2018.[7]
(4) An undated document headed ‘In re Chris GEORGIOUS – Agreed Facts’.[8]
[6] Exhibit P2.
[7] Exhibit P3.
[8] Exhibit P5.
5 I was told by your counsel I can treat the contents of these documents, so far as they relate to you, as a statement of agreed facts for the purposes of sentencing you for these offences.
6 At the relevant time, ACG was one of Australia’s largest national private security companies. A major part of its operations involved supplying security personnel at clients’ sites and various public events. Victoria provided the largest income stream from the deployment of the largest guard workforce in the company’s operations.
7 ACG aggressively projected an image eschewing any reliance upon sub-contractors, however, numerous guards were in fact employees of several sub-contractors to ACG. ACG substantially asserted overarching control in the recruitment, deployment and supervision of guard personnel, whether they were employed directly by ACG or through its several sub-contractors.
8 ACG’s clients at the relevant time included: The Port of Melbourne Authority, Patricks Stevedores, Etihad Stadium, Coca Cola Amatil, the Melbourne and Olympic Park Trust, and all three major Melbourne racecourses. ACG also provided security guards to major seasonal sporting events, such as the Spring Racing Carnival, and the Australian Open tennis.
9 ACG relied upon several sub-contractors to provide guards for Victorian events. These sub-contractors included: MLA, which was owned and operated by Mohamed Ammouchi; Mask, which was owned and operated by Sam Karam; Shoretec, the business name used by Kaakour; and FMAM, which was operated by Frank Moussa.
10 As an employer, ACG was obliged to withhold an amount of PAYG tax from wages and salaries paid to its employees and to regularly remit that amount to the ATO. During the charged period, that responsibility shifted from ACG to retained sub-contractors in respect of their employees’ wages. There were many guards who thought they were employees of ACG, but their actual employer was either FMAM, MLA, Mask or Shoretec.
11 At all relevant times, FMAM, MLA, Mask and Shoretec were paying employees untaxed cash, ‘off the books’. Consequentially, ACG designated these entities ‘preferred partners’ and utilised them as means of reducing its labour costs.
12 Your involvement with ACG Security Pty Ltd commenced on 29 January 2007. Thereafter, you were employed by that company and then by ACG Corporate Services Pty Ltd from 2007 to 2009.
13 In 2011, you were recorded as having resumed employment with ACG Corporate Services Pty Ltd and later ACG. During the two offence periods, you were always recorded as a salaried manager with ACG and your salary of $66,999 remained unchanged throughout those periods. PAYG tax was deducted by ACG from your salary.
14 In 2014, your ACG salary was still $66,999 and you were mostly assigned to events management at venues, as well as sometimes having responsibility at ACG fixed guard sites. Your employment regularly involved attendance at ACG sites and events outside normal weekday office hours, on public holidays and on weekends.
15 Evidence reveals the joint owners of ACG, Harry Korras and Peter Kyriopoulos, approved, and sometimes even encouraged, ACG events managers and some other staff members to supplement their ACG taxed salaries with untaxed cash payments received from either FMAM or MLA. You were aware these sub-contractors made untaxed cash payments ‘off the books’. You also availed yourself of this dishonest opportunity.
Charge 1
16 From about 19 February 2012, you were almost invariably included in ACG issued MLA fortnightly payroll advices in respect of shift hours you worked outside normal ACG office hours. Over a more than 32-month period, MLA invoiced ACG for 2363 hours resulting in cash payments to you totalling $55,003. Because your ACG taxed salary is known, it is possible to precisely calculate the amount you dishonestly evaded paying in PAYG tax is $20,577.
17 As the Commonwealth Director fairly concedes, it is a matter of some significance when evaluating the circumstances of [your] offending and punishment’ that your personal PAYG tax evasion the subject of Charge 1 ‘was sanctioned by both Harry Korras and Peter Kyriopoulos as part of the “top up” cash régime otherwise provable in place for ACG middle management’.
18 It is for this reason, Korras has paid restitution to the ATO in respect of the PAYG tax evaded by several ACG managers, including you, comprised in the amount referable to his Charge 1. This includes the $20,577 evaded by you. Accordingly, the Commonwealth cannot ‘double dip’ and seek restitution for this amount from you. However, I note you offered to repay this amount to the ATO, and I take this into account in your favour in assessing your level of remorse.
Charge 2
19 During the 16-month period between 1 July 2013 and 31 October 2014, you dutifully assisted in the implementation of the ACG tax avoidance strategy using both FMAM and MLA as ‘preferred partners’ with ‘off the books’ payments to guards and other ACG managers, knowing PAYG tax was being evaded and there would be a consequent substantial risk of loss to the Commonwealth.
20 Emails and telephone intercepts reveal your conscientious immersion in this culture of wholesale tax evasion, which focused on the preservation of ‘cashies’, otherwise often referred to as ‘huddahs’ and other like names. Your awareness extended to your ACG managerial colleagues, your brother Alex, Korras’ daughter Tayla and a number of other ACG employees, who supplemented their ACG incomes with ‘off the books’ untaxed cash payments. You were personally involved in the receipt, collection and distribution of cash paid to these people under both the FMAM and MLA payrolls.
21 Three provable amounts make up the overall estimate of the quantum of PAYG tax evaded as part of the offending conduct giving rise to Charge 2. First, Annexure 1 to Exhibit P3 details a total of $190,471 in cash noted as being deliverable to ACG head office in the period 2 February 2014 to 14 September 2014. This excludes $14,881 which is part of the Charge 1 total.
22 Secondly, as Annexure 2 to Exhibit P3 details, in the period from 7 July 2013 to 17 August 2014, cash totalling $1,615,706 was withdrawn from the MLA and the MLA-Mask bank accounts. This cash was progressively delivered to the ACG head office for collection by Kaakour for the Shoretec listed guards.
23 Thirdly, there were amounts of cash totalling $32,599 personally collected by you for the last two fortnightly payrolls during the scheme’s operation between 28 September 2014 and 12 October 2014. This figure excludes cash collected by you for your own shifts which is included as part of the Charge 1 total.
24 Accordingly, in respect of Charge 2, the total amount of cash payments made to guards, not including you, on which PAYG tax was evaded is $1,838,766. Applying a conservative individual average marginal tax rate of 20 per cent for the guards involved in the scheme, results in an agreed estimate of PAYG tax evaded of $367,753.
25 This calculation does not include an unquantifiable amount of PAYG tax evaded on cash payments made to ACG personnel and associates for the period 1 July 2013 to 19 January 2014. In summary, while this is an agreed estimate of PAYG tax evaded in relation to Charge 2, the total quantum of loss, or risk of loss, to the Commonwealth cannot be quantified in relation to each of MLA, Mask and Shoretec and FMAM, save for ACG managers working ‘off the books’ for those entities.
26 So far as your role and personal involvement in the scheme is concerned, telephone intercepts reveal you as being the major ACG liaison person for Ammouchi and Karam in July and August 2014 in relation to the MLA and Shoretec sub-contracts. From late September and October 2014, you were also the major ACG liaison person for FMAM.
27 You were aware ACG remittances to Kaakour for his Shoretec guards were in fact being made to MLA, with cash being delivered thereafter to ACG head office for collection by Kaakour for downstream payment to his guards. You were personally involved in the receipt of this cash, as revealed in intercepted telephone communications involving Ammouchi and Karam in July and August 2014.
28 You were personally involved in the transition of ACG guards to both MLA and FMAM. Guards were moved to and from both sub-contractors according to the changing strategic directions and motives of ACG senior managers and owners for the benefit of their company.
29 Telephone intercepts reveal you remained committed to perpetuating the ‘cashies’ system despite attempts by ACG to constrict the scheme, during the September ‘compliance’ strategy, in the lead up to the sale of ACG to the Spotless Group. This involved shifting MLA, FMAM and Shoretec payroll administration to one Eddie Chakik of Next-Gen Security Solutions Pty Ltd. Telephone intercepts record you and Chakik speaking in ‘non-compliant’ terms in order to enable the continuation of untaxed cash payments to some ACG personnel.
30 On 23 October 2014, the day a search warrant was executed at the head office of ACG, you removed several cash envelopes from the office and took them to a nearby coffee shop, in order to avoid their discovery by investigators. At the direction of George Evagora, who was another ACG ‘off the books’ cash recipient from MLA, you removed incriminating evidence of a number of other person’s cash payments from Evagora’s desk and concealed these from investigators.
31 However, unlike in the cases of Moussa, Ammouchi, Karam and another person involved in the scheme, Julian Milla, it is not alleged you received any personal enrichment from your involvement in the offending conduct giving rise to Charge 2. Rather, Korras and others (uncharged) were the major beneficiaries of the provable dishonesty in respect of your administrative role in dealing with the avoidance of payment of PAYG taxation by MLA, Mask, FMAM and Shoretec.
32 Apparently, your involvement in Charge 2 was motivated by a combination of loyal obedience to ACG corporate strategies and your enhanced personal pursuit of career opportunities within ACG. To some extent this lessens your moral culpability.
33 While the prosecution accepts you were not aware of the extent of the total amount of PAYG tax evaded under the scheme, you were certainly aware you were actively participating in a substantial exercise which involved the receipt of untaxed cash wages by a large number of guards under the four payrolls. Accordingly, I assess your moral culpability as being moderately high.
Personal Circumstances
34 I now turn to your personal circumstances. In this I was assisted by your counsel’s oral and written submissions and a psychological report, together with a bundle of character references and other documents.
35 You are now aged 46 years and you were aged between 38 and 40 during the offending period. You are the middle child in a sibship of three, with an older brother and a younger sister. You were born in Cyprus. Your father left the country prior to the Turkish invasion in July 1974 because of multiple attempts on his life. He immigrated to Australia nine months before the rest of your family joined him later in 1974, when you were approximately 10 months old.
36 Some of your mother’s family was already residing in Australia when you arrived. However, your father left behind ten siblings and other extended family which made the transition quite difficult for your father. He subsequently struggled with mental health issues which he began self-medicating with alcohol.
37 You reported to Carla Ferrari, a consultant psychologist who assessed you on 12 September 2018 at the request of your legal representatives, the transition and adjustment to Australian life was also quite difficult for you and your siblings because of cultural differences and language barriers. There was also financial pressure at home which contributed to general tension in the household.
38 As a result, you endured mental, physical and emotional abuse growing up. You described your father as a good man overall. He worked three jobs to provide for your family, whilst your mother stayed at home to raise you and your siblings. You described your mother as loving, caring and supportive.
39 You described a close relationship with your family and instructed they are supportive of you. You shielded your family from the details surrounding your offences because you did not want to burden them, particularly your elderly parents. Your family is aware of these proceedings, but you have not explained how serious your charges are because you think your parents will not cope.
40 You currently reside with your parents, having moved back home several years ago to support your 78-year-old mother as her primary carer. In August 2014, she underwent aggressive treatment for bone cancer which resulted in the amputation of her right leg at the hip. She is now predominantly confined to a wheelchair. She also suffers from glaucoma and diabetes.
41 More recently, she has been diagnosed with breast cancer and undergone surgery to her right breast. This involved the removal lumps from her breast tissue and sentinel lymph node biopsy.
42 Much of the responsibility to support your aged parents falls on you because your two siblings are married with young children. You have made significant sacrifices in your life to ensure your parents are cared for and so your mother can remain in the comfort of her home, rather than going into a residential nursing facility.
43 You told Ms Ferrari you struggled to fit in at school and you were bullied because of your ethnic heritage. You also had attention problems and behavioural issues which resulted in you experienced learning difficulties. You were suspended multiple times in primary and secondary school for behavioural issues as the teachers were unable to control you. You were unable to attend school camps, you had certain privileges taken away and at times were made to have a separate recess at lunchtime to the other children.
44 However, you excelled in extracurricular activities and represented your school in discus and shot-put at State Final level. You were able to make friends after the initial bullying subsided sometime during primary school.
45 You left school during your second attempt at Year 11. You were forced to repeat that year because of poor attendance and lack of participation. You commenced using illicit drugs at this time in order to escape the hardships you faced at school and at home.
46 You secured casual employment in several different fields; working as a cleaner, waiter and labourer before becoming as a supervisor in the bistro at Skyways International. You started working at Crown Casino as a gaming attendant in its opening year, and you quickly advanced to managerial positions within the food, beverage and bar areas. During your three years at Crown, you reported you endured racism and threats from senior management which led to depression and anxiety. You suffered a deterioration in your mental state which increased your substance abuse.
47 An approximately three-year period of unemployment followed, whereby you excessively smoked cannabis. You were involved with an antisocial peer group and started committing petty crime. Your parents intervened and sent you overseas to break this cycle.
48 When you returned, you opened a fish and chip shop with your family, which they owned and operated for the next 3½ years. You applied yourself wholeheartedly to this new venture. Your treating medical practitioner, Dr Di Marco, whose surgery was across the road from the shop, describes you as being committed to your work, working long hours and helping to build a successful business through good quality product, efficient service and a pleasant rapport with your customers.
49 In January 2007, following the sale of this shop, you began working in the security industry. You were employed by ACG, initially on a casual basis, before progressing to a full-time administrator of major events and ultimately becoming an event manager. This involved you organising security for large scale events at the Melbourne and Olympic Park precinct. In this role, you were responsible for: securing new contracts; rostering; ensuring the venue had enough manpower and skillset to manage each event; safety planning for events with Victoria Police, Australian Federal Police and government officials; managing expectations of the venue, the event organizers, talent and tour management of players and celebrities; as well as ensuring ACG expectations were upheld.
50 You told Ms Ferrari, you found this role to be ‘extremely demanding and high pressure’ and you had to work long hours, including weeknights and weekends. As a result, your family life suffered, and you essentially dedicated your life to your career.
51 Your employment with ACG was terminated when the Spotless Group took control in 2015, and you returned to working in the hospitality industry. You were unable to cope with the change in industries because you were extremely fearful, and even paranoid, of being implicated in further underhanded or illegal practices, which you told Ms Ferrari, frequently occur in the hospitality industry.
52 You then worked for a short period for another security company in Keilor. You worked in their head office to improve processes. You were involved in recruitment and rostering, but you became concerned there were illegal practices also occurring within that company. Eventually, you were made redundant.
53 For the past 3½ years you have worked three days per week as a delivery driver for a fruit supply company. In a written testimonial, the company’s warehouse manager describes you as a ‘valued employee’.[9] Your work hours are flexible so you can go home every couple of hours to attend to your mother’s needs and administer her medication. Despite applying for a Carer Allowance, you have been rejected on account of the asset’s test.
[9] See letter dated 7 September 2018 from Steven Plumridge (part Exhibit CG3).
54 You have had two significant relationships in your lifetime. You have never married, and you have no children.
55 You are currently in a long-term stable relationship with a woman named Carmen Morales, who provided a supportive written testimonial.[10] Your relationship commenced approximately seven years ago, and you describe her as being extremely supportive of you. Your offending and your mother’s health condition have caused difficulties in the relationship. You told Ms Ferrari your offending has stalled progress in the relationship because you feel unable to commit or move forward by marrying her and starting a family. You feel you have let your partner down and held her back owing to your current predicament.
[10] Part Exhibit CG3.
56 Your mother’s health has taken priority in the past five years. You are unable to move out of the family home and being responsible for her care has caused you to put your own life plans on hold.
Sentencing Considerations
57 The fundamental principle in sentencing you is I must impose a sentence ‘that is of a severity appropriate in all the circumstances of the offence’.[11] I must have regard to a number of sentencing considerations as set out in s 16A(2) of the Crimes Act 1914 (Cth) (‘the Act’). This list is not exhaustive.
[11] Crimes Act1914 (Cth) s 16A(1).
58 Included in the matters to which I must have regard in sentencing you, are the following:
(a) the nature and circumstances of the offence;[12]
(b) any loss resulting from the offence;[13]
(c) the deterrent effect any sentence or order under consideration may have on other persons;[14] and
(d) the need to ensure the person is adequately punished for the offence.[15]
[12] Ibid s 16A(2)(a).
[13] Ibid s 16A(2)(e).
[14] Ibid s 16A(2)(ja).
[15] Ibid s 16A(2)(k).
59 General deterrence and denunciation are prime considerations in sentencing you in respect of these offences. The courts have a significant responsibility to protect the integrity of the revenue system by imposing punishment for deliberate and sustained fraud in order to deter others who may be tempted to indulge in similar conduct.
60 The taxation system is open to abuse because it is based on trust. Accordingly, when abuse is discovered sentences must be salutary. Tax fraud also has many harmful, but often hidden, social consequences. It is difficult to detect and if undetected the rewards can be great.
61 The Commonwealth Director submitted, and I accept, in your case detection was made more difficult by the payment of cash wages and the employment of sub-contractors, which had the effect of shifting the tax burden to entities which did not take responsibility for the payment of their taxation obligations.
62 In this case, the investigation and prosecution of the fraudulent scheme of which you were a part was complex, difficult, time consuming and resource intensive. I was informed the investigation involved the execution of numerous search warrants, the seizure of thousands of documents, the interception of many communications over a lengthy period and the detailed forensic analysis of accounting records.
63 Your crime is not victimless because the burden of fraud perpetrated on the Commonwealth government falls on the whole Australian community. Serious tax fraud will inevitably have flow-on effects to the incidence of taxation imposed on, and paid by, honest taxpayers.
64 It is for these reasons, and others, the sentences I impose on you for this offending must give real effect to the principles of general deterrence, denunciation and just punishment. Those, like you, who systematically defraud the revenue of large sums of money over an extended period must in general expect to receive a sentence of imprisonment.
65 You played an important role in the scheme of things. You held a managerial position in ACG and you were actively involved in extensive fraudulent conduct. Without people like you, performing the role you willingly and knowingly performed, those who instigated and executed this tax avoidance scheme would not have been able to implement it. You counsel described your role as being that of a ‘facilitator’ between those above you in the hierarchy and the security guards.
66 Your offences were continuing ones committed over approximately a 32-month period during which you were complicit in the failure of MLA, FMAM, Mask and Shoretec to remit PAYG tax to the ATO. The agreed combined total loss and risk of loss to the Commonwealth under Charges 1 and 2 is in the order of $388,330.
67 Senior Counsel for the Commonwealth Director described your offending comprised by Charge 2 as being ‘at the lower end of mid-range’. Your counsel agreed with this categorisation.
68 Nonetheless, I accept at the time you were not aware of the extent or monetary value of the PAYG tax evaded as a result of your participation in the scheme, and you did not personally profit from your crimes. I also accept you are truly sorry, ashamed and remorseful for your participation in these offences and your involvement in them has adversely affected your mental health and your personal relationships, particularly with Carmen.
69 Were it not for matters personal to you, I would have found this to be a serious example of this offence and your moral culpability would have been assessed as being very high.
Mitigating Circumstances
70 You pleaded guilty at a late stage in the proceedings on 13 July 2018, about two weeks before a very lengthy multi-headed trial was due to commence on 30 July 2018. Nonetheless, given the prosecution’s change in position regarding a proposed conspiracy charge, I accept your pleas were entered at the earliest forensically reasonably opportunity, and you are entitled to have this taken into account in your favour.[16] The prosecution accepts yours are to be treated as early pleas.
[16] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
71 Your pleas have significant utilitarian benefit considering the likely length and complexity of any trial and the large number of witnesses who would have needed to be called. Indeed, Senior Counsel for the Commonwealth Director fairly described as being ‘massive’ the utilitarian benefit of pleas of guilty entered in similar circumstances by one of your co-offenders.
72 Moreover, you were the first of those involved in this tax avoidance scheme to settle your differences with the prosecution and Senior Counsel for the Commonwealth Director fairly conceded this ‘brought sharper focus for others’ and assisted in the resolution of their matters. You are entitled to have this additional utilitarian benefit taken into account in your favour.
73 Your pleas also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice. Moreover, in your case I accept you demonstrate true contrition and remorse for your offending conduct. This is evident from your expressions of remorse to Ms Ferrari and from the many testimonials tendered on your behalf.[17]
[17] Exhibit CG 3 and Dr Di Marco’s letter dated 3 September 2018 (part Exhibit CG4).
74 Another very significant mitigating circumstance is the effect of delay in your case. There will always be some delay in prosecuting highly complex white-collar crime cases, but here there has been considerable systemic delay occasioned by the progress of the proceedings through the courts, my personal circumstances and the effects of the COVID-19 pandemic. The law recognises ‘delay is more likely to be a major mitigatory factor where the prosecution or the justice system is responsible for the delay’.[18]
[18] Judicial College of Victoria, Victorian Sentencing Manual, online, page 142 [7.5.3.2].
75 As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[19]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[20]
[19] (2013) 40 VR 436.
[20] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
76 So far as your rehabilitation during the period of delay is concerned, you have lived an exemplary life. As I said earlier, I assess your prosects of rehabilitation as being very good.
77 So far as delay akin to punishment is concerned, you have had these matters hanging over you since you were arrested in February 2015, a period of well over five years. Since the plea hearing, some nineteen months ago, you have had the very real prospect of a sentence of imprisonment with a component of immediate incarceration hanging over your head like the ‘Sword of Damocles’. Undoubtedly, this would have caused you stress and anxiety, particularly regarding your mother’s situation.
78 In my opinion, the delay in this case calls for significant leniency to be extended towards you.
79 You lost your security licence as a result of being charged with these offences and can no longer work in that industry. Your counsel described this as ‘something approaching extra-curial punishment’. While not strictly an extra-curial punishment, I take the loss of this avenue for future employment, and the concomitant financial pressure this causes you, into account as part of your personal circumstances.
80 As is confirmed in Dr Di Marco’s letter,[21] you told Ms Ferrari, and I accept, you are your mother’s primary carer and interpreter. You attend all medical appointments with her, as her English is extremely limited. You tend to all cooking, cleaning and other domestic duties and you assist her with activities of daily living, such as toileting, bathing and dressing. You supervise dispensing your mother’s medication and regularly check her blood glucose levels.
[21] Part Exhibit CG4.
81 On two days per week you have some assistance from a nursing agency for your mother’s showering and dressing needs. Nonetheless, you are responsible for most of her care and all after-hours requisites. You also arranged for modifications to the house to enable her to safely return home, given her drastically changed mobility.
82 I have had regard to several medical reports and other documentation relating to your mother’s medical conditions and her care needs.[22] Your aged father is unable to provide the care your mother needs because of his own frailties. However, as your counsel ultimately accepted, the likelihood is, while it would no doubt be very inconvenient, stressful and financially disadvantageous to them, if you were not able to continue your role as your mother’s primary carer your siblings would reconfigure their lives and put some arrangement in place for your mother’s care in the home.
[22] Exhibit CG4.
83 I accept your mother’s medical conditions, and your need to care for her, have had significant adverse effects on you emotionally, mentally and, to some extent, physically. Moreover, the Covid-19 crisis has naturally heightened your concerns for her wellbeing, as well as your father’s. Nonetheless, in my opinion this is not one of those exceptional cases where these circumstances warrant separate consideration outside the conventional sentencing framework.[23]
[23] See Markovic v The Queen (2010) 30 VR 589.
84 Nonetheless, I take into account as a mitigating circumstance separation from your mother and father, and your concerns regarding their welfare, would increase the burden of imprisonment on you. This burden is more significant because the current Covid-19 crisis means your concerns regarding your parents’ situation would be elevated by reason of their increased risk factors. Moreover, owing to their vulnerabilities, they would not be permitted to visit you during any period of incarceration.
85 So far as your mental health is concerned, you described to Ms Ferrari you suffered a long history of anxiety and depression owing to bullying and racism. You believe your mental health issues commenced whilst you were working at Crown. You sought professional support at that time from your local general practitioner. He advised you manage your mental health issues naturally and he considered you did not need medication.
86 You reported to Ms Ferrari, since your mother’s medical issues commencing in 2013, and then following being charged with the present offences in 2015, you suffered a relapse of your symptoms and described elements of both depression and anxiety. You have low mood, low energy, little motivation and appear to have withdrawn and isolated yourself. You experience symptoms of anxiety, including physiological markers such as heart palpitations and breathing difficulties. Generally, you feel tense and on edge. You have never sought counselling or engaged with a psychiatrist or psychologist.
87 I have had regard to the mental state evaluation Ms Ferrari conducted on you. In her clinical opinion you ‘displayed average intelligence’, although this was not formally tested. You had no memory deficits and you demonstrated ‘good insight and judgement at the time of assessment’.
88 You presented as extremely depressed and anxious about your future, and you were particularly concerned regarding the impact a sentence of imprisonment would have on your parents’ welfare. You suffer from ‘neurovegetative disturbance to your sleep, appetite, concentration, energy and motivation’. You described anhedonia, which is a loss of enjoyment in normally pleasurable activities.
89 Ms Ferrari conducted psychometric testing on you. On the Depression Anxiety Stress Scale, you scored in the severe range for all three ‘symptom clusters’. On the Millon Clinical Multiaxial Inventory, you returned probably invalid elevated results because of your levels of distress and severe depression at the time of testing. Nonetheless, your results did show ‘evidence of clinical symptomatology on several Clinical Syndrome scales, including Generalized Anxiety, Post-Traumatic Stress Disorder, Persistent Depression (Dysthymia), Drug Use and Major Depression’.
90 Ms Ferrari opined:
Overall, it is my clinical opinion that Mr Georgiou is under extreme stress at present and his mood and functioning are highly affected by his current circumstances. I do not believe he presents with any evidence of a true entrenched personality disorder (in accordance with the Diagnostic and Statistical Manual of Mental Disorders, DSM-5; APA, 2013) which would impede his behavior or contribute to his functioning long-term. He does however display maladaptive personality traits (it is believed these elevations are more reflective of his current level of distress rather than an actual personality disorder per se) which makes him more likely to experience his mental health issues more severely than an individual without these vulnerabilities. He displays clinical symptoms of depression, anxiety and even post-traumatic stress disorder, and it is no doubt that these underlying mental health issues were influential in his impaired decision-making and disturbance in conduct, in comparison to an individual without these predispositions.
91 Ms Ferrari diagnosed you as suffering from a ‘Major Depressive Disorder, recurrent, severe’, ‘Post-Traumatic Stress Disorder’, and ‘Generalized Anxiety Disorder’. She assessed you as being ‘low-risk of recidivism both general and specific’.
92 I do not accept any mental condition you may have been suffering from at the time of committing these offences was in any way causative of your offending conduct. Rather, in my opinion, most, if not all, of your current mental conditions are either entirely reactive to your current circumstances or have been significantly exacerbated by them.
93 Your offending was committed over a lengthy time period, when you held responsible management positions at ACG. I do not accept your judgment was impaired by any mental health condition you may have been suffering from during this extended period. In this regard, I note your counsel’s concession he was ‘not suggesting … that’s any sort of Verdins limb impairment’.
94 However, I find Verdins principle 5[24] is to some extent engaged in your case. This is because your depression and anxiety would have a cumulative effect on your concern for your mother’s predicament and your inability to care and support her whilst serving a custodial sentence. For this reason, any sentence of imprisonment would weight even more heavily on you than if you did not have these psychological conditions. I understood your counsel to concede this was the extent of the application of Verdins principles in this matter, and the prosecution also accepted this was the case.
[24] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
95 You are a social drinker and you have never had any problems with alcohol abuse. However, you reported a history of excessive cannabis use from the age of 16 until 27. You estimate you would typically smoke 50 to 100 ‘bongs’ per day. Your parents intervened by sending you to Greece for an extended period to break this cycle.
96 When you returned you vowed to remain abstinent from drugs and to turn your life around. Despite never being involved in drug counselling or treatment, you have successfully remained abstinent from illicit drugs since this time. This augers well for your prospects of rehabilitation, which I assess as being very good.
97 You have a relatively minor and presently irrelevant prior criminal history dating back to 1993. This involves prior convictions and findings of guilt for four theft offences, one very minor drug related offence and some driving and street offences. Your last offences were committed in 2000. You have no subsequent offences and you have no matters pending or outstanding.
98 I have had regard to several written testimonials, including letters from your partner, Ms Morales and your brother, Alex.[25] They speak of your involvement in your local Greek Orthodox church and other community organisations, your professionalism, honesty and reliability, your strong work ethic, you care for your mother, father and extended family, and the devastating effect your present circumstances have had on you and the strain it has placed on your relationship with Ms Morales.
[25] Exhibit CG3.
99 I accept you have learnt a salutary lesson from the investigation and prosecution of your crimes, and you are unlikely to reoffend in the future. Moreover, Ms Ferrari noted the protective factor of you living at home with your aged parents, whom you care for and support. Accordingly, I need give very little weight to specific deterrence and protection of the community in sentencing you for the present offences.
100 In the more than five years since you were charged you have complied with restrictive bail conditions and you have not reoffended. As Ms Ferrari observed, to your credit you have not returned to drug abuse as a coping mechanism during what has been a very stressful and anxious period in your life. You show good insight and you are truly remorseful for your offending. Accordingly, I find you have very good prospects of rehabilitation.
Application of Sentencing Principles
101 I have had regard to current sentencing practices in relation to the charge of dishonestly causing a loss or risk of loss to the Commonwealth and similar offences. The Commonwealth Director provided me with relevant comparative material and cases.[26] I have had regard to this material in formulating the sentence I impose in your case.
[26] Exhibit P4, Table 3 ‘Sentencing Schedule - $80,000 - $93,999’.
102 It is difficult to gauge more than a very general yardstick from so called ‘comparable cases’, given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from comparable cases and other like material, I have sought to do so in your case.
103 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors as set out in the relevant provisions of the Act. In general terms, these include the seriousness of the offence, your culpability for it and your personal circumstances.
104 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, so far as is possible, you are rehabilitated and reintegrated into society.
105 General deterrence and denunciation are very important sentencing considerations for these offences. I am of the view in your case specific deterrence and protection of the community need be given little weight. I assess your prospects of rehabilitation as being very good.
106 I have had regard to the sentences I imposed on your co-offenders Harry Korras,[27] Frank Moussa,[28] Mohamed Khalil Ammouchi[29] and Sam Karam.[30] Given the findings I have made in your case, in my view your personal circumstances call for considerable leniency to be extended.
[27] [2019] VCC 1681.
[28] [2019] VCC 1891.
[29] [2020] VCC 341.
[30] [2020] VCC 496.
107 Section 17A(1) of the Act restates the established common law position that imprisonment to be immediately served is a sentence of last resort and a court must consider all other available sentences and all the circumstances of the case.
108 Mr Georgiou, I have formed the opinion on Charge 1 a fine with conviction is the appropriate disposition. So far as Charge 2 is concerned, I consider a sentence of imprisonment coupled with a reconnaissance release order, with the effect you will serve no time in immediate custody, is the appropriate disposition. The prosecution accepts these dispositions are open to me in all the circumstances of your case.
109 I emphasise I have extended significant leniency towards you on account of your early pleas of guilty and the immense delay that has occurred in finalising your case, particularly in the context of family hardship and your mental state.
Stand up Mr Georgiou
On the charge of dishonestly causing a loss to the Commonwealth (Charge 1), you are convicted and fined $5,000. I direct that fine be referred to the Director of Fines Victoria for collection and management.
On the charge of dishonestly causing a loss or risk of a loss to the Commonwealth knowing or believing that there is a substantial risk of the loss occurring (Charge 2), you are convicted and sentenced to imprisonment for three years commencing from today.
I must make a recognisance release order in your case. I order your release under s 20(1)(b) of the Crimes Act 1914 (Cth) forthwith upon you giving security by recognisance of $5000.00 to comply with the following condition:
You are to be of good behaviour for a period of three years.
There is no PSD to declare.
Mr Georgiou, the purpose of these orders is to punish you for the crimes you have committed. The effect of my orders is you have a sentence of imprisonment of three years hanging over your head from today for three years. During this three- year-period commencing today, you must not commit another offence punishable by imprisonment because that will breach your recognisance and you may be ordered to serve the three years in prison. In addition, you must pay a fine of $5,000 but you will have time to pay that fine. Fines Victoria will be in touch with you to arrange the terms for payment of the fine.
The recognisance release order may be discharged or varied under s 20AA of the Crimes Act 1914 (Cth).
Do you understand all this?
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I state the sentence I would have imposed on you but for your plea of guilty would have been a total effective sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years’ and 8 months’ imprisonment.
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