R v Glyn Leonard Raines

[2017] NSWDC 217

District Court

New South Wales

Medium Neutral Citation:	R v Glyn Leonard Raines [2017] NSWDC 217
Hearing dates:	4 August 2017
Date of orders:	18 August 2017
Decision date:	18 August 2017
Jurisdiction:	Criminal
Before:	Whitford SC DCJ
Decision:	See paragraphs [63]-[65] and [68]-[70]
Legislation Cited:	Corporations Act 2001 (Cth), s1307(1); s1309(1) Commonwealth Criminal Code 1995, s11.5(1).
Cases Cited:	Tyler v R; R v Chalmers (2007) 173 A Crim R 458 at [78]-[86] DPP (Cth) v Estrada; DPP (Cth) v Yuan; DPP (Cth) v Byun [2015] VSCA 22. R v Couper [2013] VSCA 72 at [108]
Category:	Sentence
Parties:	Regina (Crown) Glyn Leonard Raines (Offender)
Representation:	Counsel: Mr L Crowley – Crown Mr D Randle - Offender Solicitors: Commonwealth Director of Public Prosecutions Armstrong Legal
File Number(s):	2016/353154; 2016/353169

REMARKS ON SENTENCE

1. Mr Glyn Leonard Raines is before the Court for sentence, having pleaded guilty at the earliest possible opportunity to two counts of conspiracy to falsify books relating to the affairs of a corporation and one count of conspiracy to knowingly make false information available to an auditor of a corporation. The first two counts are offences contrary to s 1307(1) of the Corporations Act 2001 (Cth) and s 11.5(1) of the Commonwealth Criminal Code 1995. The third is contrary to s 1309(1) of the Corporations Act and s 11.5(1) of the Criminal Code.

2. Remarkably for offending which, as the Crown submits, is capable of going to the integrity of the market among other significant consequences, Parliament has indicated how seriously it regards this type of offending by prescribing maximum penalties of only two years imprisonment or a fine of $11,000 for the offence the subject of the first two counts and five years imprisonment or a fine of $22,000 for the offence the subject of the third count.

3. The offending arises out of three separate, though closely related, conspiracies in which the Offender participated in the period 7 November 2008 to 30 June 2011. All three conspiracies concern falsification of financial records of Hastie Services Pty Ltd (“Hastie Services”).

4. The facts of and surrounding the offences are set out in a detailed agreed Statement of Facts that runs to some 60 pages in length. A more concise summary of the offending is set out in a document titled Summary of Offending, which reveals the following matters.

5. From 7 November 2008 to 30 June 2011 (relevant period) the Offender engaged in three separate conspiracies relating to the falsification of financial records of Hastie Services Pty Ltd (“Hastie Services”) with a more senior employee, Joseph Farrugia, an employee who was more or less a peer of the Offender, Ian Thompson, and a more junior employee, Samantha Kate Cousins.

6. Hastie Services was a wholly owned subsidiary of Hastie Group Ltd, a public company listed on the Australian Securities Exchange (ASX). Hastie Services provided technical installation and maintenance of smaller scale fit outs for commercial air conditioning systems.

7. As Hastie Services was a wholly owned subsidiary of Hastie Group, the financial results were consolidated, which meant that the financial results of Hastie Services were included in the financial results of Hastie Group.

8. Throughout the relevant period:

1. Farrugia was the Chief Executive Officer, and a director, of Hastie Services.

2. Thompson was the General Manager of various branches of Hastie Services and he reported to Farrugia.

3. The Offender was the Chief Financial Officer of Hastie Services and he reported to Farrugia.

4. Cousins was Finance Manager of various branches of Hastie Services, and she reported to Thompson but also took instructions from the Offender.

9. Each year Hastie Group and Hastie Services prepared a budget for the forthcoming financial year containing, among other things, forecast Earnings Before Interest and Taxes (EBIT) and each month Hastie Services reported to Hastie Group on the extent to which it had achieved its forecast results.

10. During the relevant period Hastie Group and Hastie Services were under pressure to meet their forecast EBIT and Farrugia pressured the Offender, Thompson and Cousins to report that forecast EBIT had been met even if it had not.

First Offence: Conspiracy to falsely overstate EBIT of Hastie Services

11. Between about 7 November 2008 and 30 June 2011 the Offender conspired with Thompson, Cousins and Farrugia to falsify financial records of various branches of Hastie Services in order to improve the appearance of that company’s performance. In particular, they agreed to overstate reported EBIT in order to make it appear that the company had met, or was closer to meeting, its forecast EBIT (or, in their own words, to “close the gap” between actual EBIT and forecast EBIT).

12. Pursuant to this agreement false entries were made into books of Hastie Services, namely month-end accounts, on at least 13 occasions:

Example	Date of false entry	Month end accounts impacted	Amount of reported EBIT falsely overstated
1	7 Nov 2008	31 Oct 2008	$28,000
2	9 July 2009	30 June 2009	$20,000
3	16 April 2010 10 June 2010	31Mar 2010 30 April 2010 31 May 2010	$897,000 $897,000 $330,000
4	12 July 2010	30 June 2010	$150,000
5	8 Sept 2010	31 Aug 2010	$220,000
6	13 Feb 2011	31 Jan 2011	$148,000
7	8 April 2011	31 Mar 2011	$405,280
8	11 April 2011	31 Mar 2011	$410,000
9	10 June 2011	31 May 2011	$70,000
10	10 June 2011	31 May 2011	$60,000
11	10 June 2011	31 May 2011	$30,000
12	10 June 2011	31 May 2011	$239,000
13	April to June 2011	April to June 2011	$1,100,000

13. The effect of this conspiracy was that EBIT in the monthly accounts of Hastie Services was regularly overstated. As the financial statements of Hastie Services were consolidated each six months into the results of Hastie Group, these falsifications were carried through to the financial statements of Hastie Group.

Second Offence: Conspiracy to falsify financial records of Hastie Services (WA)

14. Between about 5 May 2010 and 13 February 2011 the Offender conspired with Thompson, Cousins and Farrugia to falsify financial records of the West Australian branch of Hastie Services (Hastie Services (WA)) in order to conceal that its true financial position was significantly worse than that reported.

15. In particular, after discovering that assets of Hastie Services (WA) were substantially overstated they agreed to retain rather than promptly write off all of the known overstatements. They also agreed to deliberately conceal the existence of material overstatements of assets in the accounts of Hastie Services (WA) in amounts of $4,198,000 as at 30 June 2010 and $1,450,000 as at 31 December 2010.

16. They agreed during this period that only relatively small amounts would be written off over an extended period, notwithstanding that they knew that this would result in the continued production of accounts that were false because they overstated the assets of Hastie Services (WA).

17. As the financial statements of Hastie Services were consolidated into the results of Hastie Group, these falsifications were carried through to the financial statements of Hastie Group.

Third Offence 3: Conspiracy to mislead the auditor of Hastie Service

18. Between about 17 June 2010 and 9 April 2011 the Offender conspired with Thompson, Cousins and Farrugia to give the auditor of Hastie Services and Hastie Group, Deloitte Touche Tohmatsu (Deloitte), materially false information in order to conceal the overstatements of assets in the accounts of Hastie Services (WA) that are the subject of the second offence.

19. In particular:

1. In respect of an audit of the accounts of Hastie Services and Hastie Group as at 30 June 2010 they agreed to provide Deloitte with: (i) accounts of Hastie Services (WA) containing known overstatements of assets by $4,198,000; and (ii) a doctored spreadsheet of Work in Progress accounts of Hastie Services (WA) that was false because it excluded $498,675.25 relating to aged projects that would have stood out to the auditors as potential overstatements; and

2. In respect of a review of the accounts of Hastie Services and Hastie Group as at 31 December 2010 they agreed to provide Deloitte with: (i) accounts of Hastie Services (WA) containing known overstatements of assets by $1,450,000; and (ii) a spreadsheet entitled “HS Balance Sheet Clean Up” purporting to identify known overstatements in the assets of Hastie Services (WA) that was false because it excluded the aforementioned known $1,450,000 overstatement of assets.

20. The provision of this false information to Deloitte resulted in the audit and review being completed without discovering any of the overstatements.

21. An assessment of the Offender’s criminality commences with the recognition that he was a participant in three separate agreements pursuant to which he, and the identified others, agreed to falsify company books and to make false information available to the company auditor. His criminal responsibility commenced with his entry into each agreement and continued, with his active participation from time to time, throughout the period of each conspiracy. It extends to all overt acts carried out pursuant to each conspiracy. An individual offender’s criminality must be assessed by reference both to the nature and scope of the conspiracy as well as the physical acts performed by the individual participant in its pursuit: Tyler v R; R v Chalmers (2007) 173 A Crim R 458 at [78]-[86]; DPP (Cth) v Estrada; DPP (Cth) v Yuan; DPP (Cth) v Byun [2015] VSCA 22.

22. Each of the three conspiracies were closely related. That will have some inevitable consequences from the point of view of totality. In each case, the Offender and the others agreed to manipulate the records of Hastie Services and thereafter performed various tasks in order to give effect to their agreements. The offences each involved the conspirators agreeing to engage, and engaging, in coordinated deception, whereby numerous overt acts were committed by them or under their supervision in pursuit of each conspiracy; over a relatively lengthy period of time in respect of the first conspiracy, and somewhat shorter periods in respect of the other two.

23. In pursuit of the conspiracy to falsify the books of Hastie Services relating to EBIT entries, over the 13 separate monthly periods the Offender and the others met in person and communicated via email to discuss and review the company’s financial position and they discussed and identified the means by which the books could be altered so as to make it appear EBIT targets had been met, when in fact they had not. Instructions and directions were then given to other employees to make the necessary accounting entries/adjustments in the company books.

24. In pursuit of the conspiracy to falsify the company books in respect of the overstatement of assets contained in the accounts of the West Australian branch of Hastie Services (“Hastie Services (WA)”), in the amounts of $4,198,000 as at 30 June 2010 and $1,450,000 as at 31 December 2010, the Offender and others met in person and communicated via email to discuss and review the relevant accounts and the identified overstatement amounts. They discussed and agreed the means by which the identified overstatement amounts could be accounted for in a manner that would conceal their existence and the means by which the overstatement amounts could be incrementally expunged over time. Instructions and directions were then given to other employees to make the necessary accounting entries/adjustments in the company books.

25. In respect of the conspiracy to give the auditor of Hastie Services and Hastie Group materially false information, the Offender and the others met in person and communicated via email to review the accounts of Hastie Services (WA) and the identified overstatement amounts, they proposed and discussed the means by which the identified overstatement amounts could be accounted for in a manner that would conceal their existence and they prepared and provided to the auditor spreadsheets of Work in Progress accounts of Hastie Services (WA) that were false.

26. On any view, the offending is objectively serious. There was no issue concerning that conclusion on sentence. It involved relatively senior managers within the corporate structure of a listed entity conspiring both to falsify company books and to mislead and deceive company auditors. It is also common ground that the offending is sufficiently serious as to warrant a custodial penalty. The assessment of the objective gravity of the offending assumes a degree of significance where the only significant issues between the parties appear to be whether a period of full-time custody is warranted in all the circumstances and, relatedly, the extent to which considerations of general deterrence compel an affirmative response to that question.

27. The Offender was a senior employee of Hastie Services and to that extent in a position of trust and responsibility. He was the Chief Financial Officer (“CFO”) of that company. As the CFO, the Offender’s duties included the review of the company’s management accounts to ensure that financial results reported to the holding company and its Board were a true reflection of the performance of the company’s business, as well as management of the auditing process and compliance reporting.

28. He was well qualified in the relevant area (he holds a Business Accounting Degree and a Masters of Business Administration) and must have been acutely conscious of the impropriety of his conduct and, even if they were not intended, the serious consequences to which conduct of that character could reasonably give rise, both for the company directly and more broadly for its parent, the parent company’s shareholders and the market generally.

29. The offending involved an abrogation of the responsibilities of his executive role and in that respect a breach of the trust reposed in a senior manager.

30. The offending involved persistent deliberate conduct, over a period of approximately two and a half years in total. The period over which the first conspiracy operated was just over two and a half years. The duration of the second conspiracy was approximately 9 months and the third approximately 10 months.

31. The conduct was certainly planned but it does not appear to have involved any particular sophistication, contrary to the submission made to that effect by the Crown.

32. There are a number of factors that save the present offending from being characterised as falling anywhere near the upper end of the spectrum of conduct that might be caught by these offences.

33. First, the Offender’s motive for the offending was not greed or direct personal financial gain, nor did it involve any desire to manipulate or undermine the integrity of the market. Rather, it was essentially a desire to comply with the considerable demands of Farrugia, the CEO, to whom the Offender reported, and a belief that it was necessary to do so in order to avoid jeopardising his employment.

34. Second, and related to the first matter, this offender’s conduct was not at his own instigation, but resulted from a persistent, grossly irresponsible pressure exerted by the CEO which, as was submitted on the Offender’s behalf, I accept amounted in the circumstances of a line management situation to coercion (at least in a common sense, rather than strictly legal, understanding of that term). In one sense, notwithstanding his own relatively senior position within the corporate hierarchy, the Offender was placed in an invidious position by Farrugia. Farrugia was the person primarily responsible for the conduct of the company’s affairs and, all other things being equal, the person upon whose instructions the Offender was obliged to act in the performance of his own duties. The responsibilities of his position doubtless dictated that the Offender should have rebelled against the instructions that gave rise to this offending. However, at a human level it is easy to conceive how someone not otherwise criminally inclined, and not intent on securing any advantage to themselves, might find themselves in an untenable position and swept up in a situation they would prefer to avoid, simply by doing what they were routinely obliged and expected to do; following the instructions of their immediate superior. That is precisely the position the Offender found himself in, in my assessment. I think it likely that the longer the offending conduct went on, the more difficult it was to withdraw from it. These considerations seem to me to inform the moral culpability of the Offender and the objective gravity of the offending.

35. Third, also related to the first matter, the Offender did not gain a direct financial advantage for himself, apart from the continuation of his employment.

36. Fourth, with what appears to be breathtaking naiveté, the offending appears to have been accompanied by a genuine belief that it could eventually be ‘caught up’ and, at least to some degree, rectified. The evidence suggests that there was a persistent attempt, including specifically by the Offender, to ‘keep track’ of manipulated financial entries with the intention that they could be rectified or reversed in a subsequent accounting period.

37. Fifth, the offences did not directly cause any financial loss or damage to Hastie Services or the Hastie Group. It is not in dispute that the offending conduct by the conspirators did not cause the demise of the Hastie Group, nor even the subsidiary, Hastie Services. Rather, the failure of those entities is attributable to other unrelated financial factors.

38. The Crown submitted that each of Hastie Services, the Hastie Group and the market are properly characterised as victims of the offending. To the extent that submission was given any content, reference was made to the expenditure of resources in identifying the offending and auditing Hastie Service’s files. To that extent at least, the submission might fairly be accepted.

39. The Crown submissions went further and, relying on an observation made by the Court of Appeal in Victoria (R v Couper [2013] VSCA 72 at [108]), submitted that falsification of company records, presumably in the context of the conduct of the business of a listed entity, has the potential to impair the efficacy and integrity of the market in public securities.

40. In assessing the objective gravity of the conduct of an individual offender, it seems to me important to keep firmly in mind and give prominence to the actual circumstances as revealed in the evidence in the particular case, rather than be moved by the capacity for particular types of offending to have consequences unconnected with the circumstances of the individual case. There is no evidence in this case that anything done by this offender or his co-conspirators did in fact impair or undermine the integrity of the market, nor was anything done, at least by this offender, with that object in mind.

41. While the present conduct is reasonably adjudged serious, and accepted as such by and on behalf of the Offender, it is far from the worst type of offending that might be caught by the relevant provisions. Cases in the upper end of offending against these sections would involve motivation to achieve personal financial gain and/or to undermine market integrity and would of course be more serious again if it achieved one or both of those objects.

42. This offending was serious on account of having been committed with deliberation, in each case over reasonably extended periods, and because it involved abrogation by the Offender of some of the responsibilities annexed to his executive position. However, the matters I have already outlined, which detract from the gravity it would otherwise properly be attributed, suggest to me it should be assessed as falling around the mid-range of the spectrum of conduct the offences embrace.

20. The Crown submissions sought to highlight the importance of general deterrence in sentencing for ‘white-collar’ crimes and did so by reference to a number of cases. It was submitted that where an offence involves a breach of trust by an employee, particularly involving large or substantial sums, systematic dishonesty with planning and some sophistication, unless there are special features present, general deterrence requires that there be substantial sentences of imprisonment imposed. The tenor of the submissions seemed to make clear that by the use of the word imprisonment, what was signified was a full-time custodial sentence. That submission seems to me to be flawed at a general level, as a matter of principle, and also to the extent it urged a particular result in the circumstances of this case.

21. There does not appear to me to be any warrant in the language or policy of the relevant statute (in this case the Commonwealth Crimes Act), nor in the articulations of sentencing principle by the High Court, for necessarily giving predominance to general deterrence over other objects of sentencing. Naturally general deterrence is an important consideration in offending of this character and it will be accorded significance in this exercise.

22. However, any approach that necessarily gives predominance to general deterrence (or indeed any other object or objects) over another or other objects ahead of other relevant considerations, would in my understanding of them be contrary to those statements of principle by the High Court which expressly recognise the individualised nature of the exercise of the sentencing discretion and the capacity accordingly for vastly differing outcomes between cases that might in limited respects otherwise appear similar.

23. Distilled in combination, the scheme of the relevant legislation and the various articulations of principle by the High Court appear to require that the proper exercise of the sentencing discretion involves a careful balancing of all considerations relevant to determining the appropriate penalty in the circumstances of the particular case.

24. Properly understood, that approach might result, in the circumstances of a particular case, in greater significance attaching to the objective gravity of the offending than to other considerations. In a different case, perhaps more exceptional, the just imposition of an appropriate penalty might necessitate priority being given to subjective considerations, notwithstanding the gravity of the offending, and might attract prominence to some objects of sentencing ahead of others. Two things are certain. One is that the task is rarely, if ever, easy. The other is that in the case of any individual sentencing exercise, minds might reasonably differ as to the appropriate balance and the weight properly to be accorded the multitude of considerations relevant to that exercise. The corollary of the latter proposition is that the ultimate synthesis of those considerations will likely be amenable to a range of outcomes in terms of the penalty appropriate in a given case.

25. Propositions that purport to suggest or require a particular outcome, in terms of the penalty appropriate to offending described by reference to particular features, are generally unhelpful on many levels. Like the so-called principle concerning the imposition of full-time custodial sentences in cases involving trafficking in drugs in a substantial degree, general statements like that contended for on behalf of the Crown in this matter tend to operate as a substantial fetter on the exercise of the sentencing discretion. Properly understood, they are statements of policy not principle. By and large, something that necessarily fetters an important broad discretion will not be justified, nor justifiable, as a matter of principle. Restrictive propositions like the one by the Crown in this case are at odds with, or at least substantially undermine, the instinctive synthetic approach to sentencing endorsed in the various articulations of the High Court concerning the individualised nature of the exercise of the sentencing discretion.

26. As I have indicated, the Crown submitted that where an offence involves a breach of trust by an employee, particularly involving large or substantial sums, systematic dishonesty with planning and some sophistication, unless there are special features present, general deterrence requires that there be substantial sentences of imprisonment imposed. I understood it to be at least implicit in that submission that that was a characterisation appropriate to this case and so determinative of the appropriate penalty. The present case did involve a breach of trust, some of the adjusted EBIT figures involved substantial sums and the offending was accompanied by some planning. Beyond that I do not think the features assumed in that submission properly reflect the circumstances of this offending; certainly not so as to necessarily compel, without more, the conclusion that no penalty is appropriate other than one involving a period of full-time custody.

27. The ultimate result in this case must be achieved on a balance of all relevant considerations, not by resort to broad generalisations.

28. The Offender gave evidence on sentence, primarily to adopt and attest to the truthfulness of assertions made by him both in a letter to the Court tendered on his behalf and in an interview with a psychiatrist, Dr Olav Nielssen, whose report was also tendered on sentence.

29. The Offender has shown a significant degree of contrition in relation to the offending, beyond the fact of the guilty plea itself. This is evidenced by his acceptance of responsibility for the offending, and his considerable and extensive co-operation with, and assistance to, authorities, including by provision of an undertaking to assist further in the future.

30. In this case, it is accepted that the Offender entered a plea of guilty at the earliest opportunity. Indeed, he evinced an intention to do so even prior to being charged. I am satisfied that the plea, as well as his remarkable level of co-operation with the regulator’s investigations, demonstrates remorse, acceptance of responsibility and willingness to facilitate the course of justice.

31. These factors in the circumstances of this case warrant the maximum consideration in the Offender’s favour that the law will sensibly admit. On sentence for each offence I will allow a discount of 50% for the combination of the pleas and the co-operation. Within that figure, I have allowed 12.5% on account of the future assistance that the Offender has undertaken to provide.

32. Furthermore, it is accepted that the Offender, who is 57 years of age, is a person of prior good character. Whilst that might be an unremarkable characteristic for offending of this nature, it still warrants a degree of leniency being extended that might not otherwise have been appropriate and stands as an important foundation, along with other matters, to a conclusion that Mr Raines is unlikely ever to re-offend. Indeed, the Crown fairly accepted that the Offender has good prospects of rehabilitation and is unlikely to re-offend.

33. There was a period of approximately 4 and half years between ASIC first interviewing the Offender and the commencement of his prosecution. That delay is not attributable adversely to either party, at least certainly not to the Offender. The delays primarily reside in the conduct of the investigation by ASIC. There is no basis to conclude that those delays were avoidable, but they do seem to have taken an inordinately long time. The Crown submissions suggest that the investigation involved gathering and reviewing approximately 4,470,000 individual documents or records, including 1.3 terabytes of electronic evidence. ASIC also undertook extensive forensic accounting analysis of what are said to have been complex financial records. Some of the delay can be apportioned to periods in which ASIC was engaged in negotiations with the Offender’s legal representatives as to the contents of the Statement of Facts and other aspects of the prosecution. ASIC initially provided a Statement of Facts to the Offender in July 2015, which was finalised in November 2016.

34. Since the commencement of the prosecution in December 2016, the matter has proceeded expeditiously, with the Crown and the Offender demonstrating a cooperative determination to have the matter finally resolved.

35. In my view, it is appropriate in all the circumstances of this case to afford the Offender some favourable account by reason of the delay. The accompanying uncertain suspense has occasioned considerable stress and anxiety over an extended period of time, not aided by the nature and extent of the Offender’s cooperation with the regulator over an extended period.

36. This case calls for an acute balancing of the various objects of sentencing in arriving at a penalty appropriate in all the circumstances. I am satisfied that no penalty other than imprisonment is appropriate to give proper recognition to the objects of denunciation, punishment and specific deterrence.

37. I accept, as the Crown submitted, that a degree of accumulation is warranted in order to reflect the total criminality of the Offender in this case. Each offence involved a separate, albeit related, conspiratorial agreement with a slightly different object in each case. The third conspiracy involved a different and, if the maximum penalty is an appropriate guide, more serious offence that was somewhat different in its nature to the other two conspiracies.

38. Having recognized the separate criminality embraced by each offence, it should also be noted that there are substantial areas of commonality between the offences. The participants are identical. The motivation behind the offending is identical, in particular so far as the participation of this offender is concerned. The second and third agreements were for all practical purposes the logical extension of the agreement(s) that preceded them. They all involved manipulation of accounting entries in order to reflect, in the context of group internal reporting, better performance against forecasts than was in fact achieved. The subject matter of each of the second and third conspiracies was identical, the overstatement of the assets of Hastie Services (WA). These various commonalities seem to me to limit the degree of accumulation and to point to the appropriateness of substantial concurrence among the sentences imposed.

39. For all of the foregoing reasons, I intend to impose the following sentences, each of which has been reduced by a total discount of 50 per cent for the combination of the plea and assistance.

40. For the first offence of conspiracy to falsify books, the Offender will be convicted and a sentence of imprisonment of 9 months imposed, commencing from today, 18 August 2018.

41. For the second offence of conspiracy to falsify books, the Offender will be convicted and a sentence of imprisonment of 8 months imposed, commencing from 18 December 2017.

42. For the offence of conspiracy to knowingly make false information available to an auditor, the Offender will be convicted and a sentence of imprisonment of 1 year and 6 months imposed commencing from 18 February 2018.

43. It seems to me that there are a number of inter-related factors that combine to make this case quite extraordinary, and which correspondingly give some prominence to consideration of whether any alternatives to full-time custody are appropriate. Those factors are the delay in finalisation of the matters, the remorse and contrition demonstrated by the Offender, the nature and extent of the assistance he has provided over an unusually extended period and the personal cost, both in terms of his health and financially, that has accompanied that assistance. It is not uncommon for assistance of one kind or another to be provided by offenders, by the provision of a statement or statements and an undertaking to assist. It is quite beyond the usual situation, however, for as much time to be devoted to that assistance as plainly has been given here. It is also quite unusual for the assistance also to have involved personal financial detriment to the offender beyond the cost associated with the conduct of the sentence proceedings. The nature, depth and duration of the assistance, and the remorse and contrition it represents, should be factored into the balance in a way that gives greater weight to the availability of alternatives to full-time custody than would otherwise have been warranted for offending of this character.

44. Having regard to all the circumstances of the case, it seems to me that justice requires that, if he is otherwise assessed as suitable, the Offender serve the period of imprisonment in the community pursuant to an Intensive Corrections Order. If he is assessed as unsuitable, I will need to consider how otherwise the aggregate sentence should be structured and orders made accordingly.

45. Accordingly, I refer the Offender to the Commissioner of Corrective Services for assessment as to his suitability for intensive correction in the community.

46. I direct that the Offender report to the Office of the Community Corrections Service at Hornsby by 5 pm on Monday 21 August 2017 with a view to commencing the process of that assessment.

47. I stand the matter over before me for final orders on a date to be fixed shortly.

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Decision last updated: 18 August 2017