R v Milla
[2020] VCC 546
•7 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00592
| THE QUEEN |
| v |
| JULIAN MILLA |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 19 September 2018 | |
DATE OF SENTENCE: | 7 May 2020 | |
CASE MAY BE CITED AS: | R v Milla | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 546 | |
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 to the ATO of $990,820 – Offences committed over a 34-month period – Relatively high moral culpability – Early plea of guilty – Remorse – No prior criminal history – Very lengthy delay – Reparation made of $247,705 to ATO –– Very low risk of re-offending – Excellent prospects of rehabilitation –Sentence of three years’ imprisonment with a recognisance release order allowing immediate release on Charge 1 – Fined $2,500 with conviction on Charge 2
Legislation Cited: S 135.1(3) Criminal Code (Cth) – s 135.1(5) Criminal Code (Cth) – Crimes Act 1914 (Cth) s 4B(2) – 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
Sentence: Fined $2,500 with conviction – 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 & 19 September 2018) | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused | Mr A Patton (17 & 19 September 2018) | Paul Tomlinson Haines & Polites |
HIS HONOUR:
1 Julian Milla, you have pleaded guilty to a Commonwealth indictment containing one charge of dishonestly causing a loss or risk to the Commonwealth between about 14 November 2011 and 15 July 2013, knowing or believing the loss would occur or there was a substantial risk of the loss occurring (Charge 1),[1] and one charge of dishonestly causing a loss to the Commonwealth[2] between 17 April 2013 and 10 September 2014 (Charge 2).[3] The maximum penalty for both offences is five years’ imprisonment[4] and/or a fine of $33,000.[5]
[1]Contrary to s 135.1(5) Criminal Code (Cth).
[2] Contrary to s 135.1(3) Criminal Code (Cth).
[3] Contrary to s 135.1(3) Criminal Code (Cth).
[4] Pursuant to s 135.1 Criminal Code (Cth).
[5] See Crimes Act 1914 (Cth) s 4B(2). At the relevant time a ‘penalty unit’ was equal to $110.
2 Charge 1 relates to a loss or risk of loss you caused to the Australian Taxation Office (‘ATO’) of Pay As You Go (‘PAYG’) tax instalments in respect of cash payments made to a number of employees of Sydney Hire Group Pty Ltd (‘SHG’) neither withheld, declared nor remitted to the ATO and Goods and Services Tax (‘GST’) collected by SHG and not remitted to the ATO. 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 PAYG tax payable on wages paid by those entities would not be remitted to the ATO.
3 Charge 2 relates to you causing an admitted quantified loss to the ATO of $9,618.90 being the non-payment of PAYG tax instalments payable on cash payments totalling $28,028 you personally received as wages from MLA Security Services Pty Ltd as trustee for the Ammouchi Family Trust (‘MLA’), with the intention of dishonestly causing a loss to the Commonwealth.
The Facts
4 The factual substratum to your offences is set out in three documents filed by the prosecution as follows:
(1) An undated document headed ‘Plea Opening – General Summary’.[6]
(2) An undated document headed ‘The Queen -v- Julian Milla, Plea Opening – Executive Summary’.[7]
(3) A document described as a ‘The Queen -v- Julian Milla, Prosecution Opening for Plea’ dated 27 August 2018.[8]
[6] Exhibit P1.
[7] Exhibit P2.
[8] Exhibit P3.
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 and Vic Labour Hire and Resources Pty Ltd (‘VLH’), which were both owned and operated by Mohamed Ammouchi; Mask Services Pty Ltd (‘Mask’), which was owned and operated by Sam Karam; FMAM Corp Pty Ltd (‘FMAM’), which was operated by Frank Moussa; and a business conducted by Jamal Kaakour, known as ‘Shoretec’ (‘Shoretec’). For Sydney events, ACG relied upon your company, SHG, to provide sub-contracted guards.
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, Shoretec or SHG.
11 At all relevant times, FMAM, MLA, Mask, Shoretec and SHG 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 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.
13 Your involvement with ACG Security Pty Ltd commenced on 31 March 2005. Thereafter, you were employed by that company and then by ACG Corporate Services Pty Ltd from 2005 to 2010. In late 2010, your employment was transferred to ACG. On 30 October 2011, your ACG employment was noted as ‘terminated’.
14 Your employment was then transferred by ACG to SHG, which had been incorporated on 14 November 2011 with you as the sole director, the company secretary and the only shareholder.
15 On 10 April 2013, the ATO commenced proceedings to wind up SHG for non-remittance of taxes. A Federal Court order winding up SHG was made on 6 May 2013 and a liquidator was appointed. In a document prepared by ACG’s external accountants, the Peterson Group, you admitted to an unrecoverable SHG tax debt to the ATO of $1,110,000 (inclusive of penalties). That admitted debt pertained only to the 2012 financial year. In 2013, you resumed your position as an ACG salaried manager until you were retrenched in the wake of the sale of ACG to the Spotless Group, which concluded on 28 November 2014.
16 The prosecution case is, from 2005 to November 2014, as a matter of practical reality, you were always firmly within the ACG stable in one role or another. On 1 July 2011, you were installed as sole director and secretary of three companies to replace Korras, who had occupied those roles. These companies were ACG Security Training Pty Ltd, ACG Security Pty Ltd and ACG Hospitality Pty Ltd. Later, on 18 October 2012, you replaced Korras as director of a fourth company, Parrot Flight Pty Ltd.
17 The prosecution case is, your move into several positions formerly occupied by Korras indicates a close working relationship existed between the two of you. You were always his obedient, loyal and trusted subordinate.
Charge 1
18 The prosecution asserts SHG was essentially a sham company created for the primary purpose of avoiding PAYG tax withholding and remission obligations, which would have otherwise been imposed on ACG. A GST component was necessarily incorporated by SHG when invoicing security guard services to ACG. The amount of GST invoiced was likewise never remitted to the ATO. The prosecution alleges the beneficial owners of ACG placed you in statutory figurehead and ownership roles in SHG.
19 The labour force of SHG was less than half that of VLH, which were both incorporated on the same day. The prosecution alleges ACG retained de facto control of both SHG and VLH throughout their short lives. Approximately 100 guards were moved from their previous direct employment by ACG to listed employment with SHG. Their transition was short-lived – straddling two financial years.
20 It is not contended you had day-to-day involvement in the running of SHG. You assumed the statutory positions in the company which you notionally owned but never controlled. You opened SHG bank accounts with Westpac and you provided password access for the SHG account to ACG, enabling their administration of the payroll. You signed SHG cheques for the ‘employees’ superannuation funds as directed by ACG. You withdrew substantial amounts of cash by cheque, also at ACG’s direction.
21 The administration of SHG was the responsibility the ACG Credit Control and Payroll Division, with later involvement from the Peterson Group, in creating numerous invoices from July 2012 and throughout the first half of the 2013 financial year.
22 The prosecution alleges you were chosen as the SHG figurehead because of your long history with ACG and your personal loyalty and obedience to Korras. It is alleged you did all that was requested of you in order to enable the attainment of the dishonest objective comprehended in the charge.
23 You are recorded as having a declared SHG salary for the 2012 FY of $45,711 from which $10,268 tax was noted as withheld, although as stated earlier no PAYG tax was ever remitted to the ATO by SHG.
24 Above and beyond the declared salary, the evidence shows you personally transacted several ‘cash’ cheque withdrawals from the SHG bank account in two batches totalling $133,700. The first batch occurred between 4 September and 12 October 2012 and comprised twelve cheques totalling $67,600. The second batch occurred between 15 January 2013 and 20 February 2013 and comprised eight cheques totalling $66,100. This latter batch almost entirely removed any cash assets remaining in the SHG bank account prior to the ATO taking action to liquidate the company.
25 Seized business records revealed a draft letter dated 24 August 2012, sent by Penny Kyriopoulos of the Peterson group to Peter Kyriopoulos of ACG, which said an unnamed company had paid you a bonus of $35,000, with a further bonus of $65,000 due on 5 September 2012. However, the prosecution is unable to positively assert that you ever received this alleged $35,000 bonus.
26 Circumstantially, the $66,100 in the second batch of cash withdrawals correlates closely with the $65,000 ‘bonus’ referred to in the draft letter. Accordingly, the prosecution contends in the dying days of SHG, you were dishonestly authorised by ACG to effectively give yourself priority over other SHG creditors — principally the ATO — for your $65,000 ‘bonus’. On the plea hearing your counsel accepted you received this sum. Additionally, you were paid $47,000 by SHG as a salary for your role in the company. Accordingly, the total financial benefit received by you was $112,000.
27 The agreed value of the total loss to the Commonwealth referable to Charge 1 is $990,820, being $771,774 unremitted PAYG tax plus $279,046 unremitted GST.
Charge 2
28 You received untaxed cash amounts delivered regularly to the ACG head office. Close examination of ACG and MLA accounts and associated emails revealed between 17 April 2013 and 16 September 2014 at least 28 invoice requests in the recurring sum of $1001 were raised by ACG accounts and sent to Penny Kyriopoulos at the Peterson Group. This $1001 figure equals 36.4 ad hoc hours worked by you ‘off the books’ at a rate of $27.50 per hour. The recurrent invoice requests did not specify shift, date, time, name or location. However, email references make it clear the $1001 amounts were destined for ‘Julian’.
29 The prosecution alleges these untaxed cash payments, totalling $28,028, were made to you between 17 April 2013 and 10 September 2014, and the PAYG tax you evaded paying in the 2013, 2014 and 2015 financial years was $9,618.90.
Personal Circumstances
30 I now turn to your personal circumstances. In this I was assisted by your counsel’s oral and written submissions and three character references.
31 You are now aged 49 years and you were aged between 41 and 43 during the almost 34-month offending period. You were born in Spain. After your parents migrated to Australia in the early 1970s, you were raised by your grandparents.
32 In 1985, you followed your parents to Australia and settled down in Brunswick. Your father operated a concrete company and your mother looked after the home. You did not speak English when you first arrived in Australia and you undertook lessons through the Migrant Education Centre.
33 You attempted Year 11 at Brunswick Technical College, but your language skills were inadequate to complete the year. On leaving school, you obtained work with a building supplies company before obtaining your security licence and commencing employment in the security industry.
34 You held a security licence from the age of 18 years until you were charged with your present offences in 2014. You commenced working as a guard and worked your way up the ladder before you were recruited by ACG in 2005.
35 At the time of plea in September 2018, you lived with your de facto partner and your four children, then aged 21, 17, 15 and 11, and your 2-year-old grandson. Your three younger children were students and your eldest child was an electrical apprentice.
36 Your partner, Amanda, worked as a Vietnamese translator and interpreter. Prior to you being charged, she worked predominantly for Commonwealth law enforcement agencies until she lost a significant portion of this work as a result of you being charged with the present offences.
37 Your relationship with Amanda ended in August or September 2019. The eventual break down of the relationship was due to continued uncertainty as to the outcome of these proceedings, as well as related financial stress caused by your inability to maintain ongoing employment at an appropriate remuneration level.
38 Your relationship with your mother has deteriorated to the point where there is no contact between to two of you. This is due to a situation that arose after you were unable to travel overseas with your daughter on the completion of her secondary schooling.
39 Following the breakdown of your relationship with your mother, you secured rental accommodation where you presently reside with your 18-year-old daughter, who is a university student. You are currently supporting her financially. Your youngest son spends every weekend with you.
40 At the time of plea, you were employed in a managerial capacity at Bellrock Group which is a cleaning and security firm. As you no longer hold a security licence, you were engaged in back-office operations because you were unable to work in certain roles.
41 Having known you previously through the security industry, your employer was aware of your charges and he was, nonetheless, happy to offer you employment following your arrest. However, the ongoing uncertainty as to your future circumstances meant you were unable to commit to ongoing or long-term employment.
42 Since September 2018, you have been only in occasional employment, predominantly on short-term and/or casual terms. You have not been able to secure ongoing or permanent employment. Unfortunately, ongoing employment you had with Atlantic Group was terminated in December 2019 upon the closure of Central Pier in Docklands owing to structural and safety issues.
43 You have not been diagnosed with any psychiatric or psychological conditions and you are in good physical health. You instruct your counsel you were devastated by the breakdown of your relationship with Amanda. Nonetheless, you have not engaged in any mental health treatment because of the cost involved. You have the ongoing support of several close friends. The breakdown of your relationship has been an added source of distress over and above your anxiety about your future.
44 You have no prior criminal history and you have committed no subsequent offences. There are no criminal proceedings outstanding or pending.
45 I have had regard to three character references tendered on your behalf. They speak highly of your general good character, your work ethic and contribution to the community and your charitable works.[9] It is clear the present offending is out of character for you. Accordingly, you fall to be sentenced as a person of otherwise good character.
Your Role in the Offending Conduct
[9] Exhibit JM2.
46 You commenced employment with ACG in 2005. Your roles and responsibility increased with the expansion and growth of the business.
47 Shortly before the incorporation of SHG, you were advised you would be nominated as the sole director of the company. You understood the creation of the company was part of a restructuring of ACG and associated companies for the primary purpose of taxation minimisation.
48 Your counsel submitted, and the prosecution agree, you were not involved in the day-to-day operations or management of SHG. These matters, he said, were attended to by others associated and/or employed by ACG. Although you were the sole director of the company, you were not privy to the company’s financial records and you were not able to control the company’s finances.
49 Your counsel submitted, while you were aware the reason for the business structure was the minimisation of taxation, it was not until SHG was liquidated that you came to appreciate the full extent, nature and quantum of the tax avoidance scheme you had been a party to.
50 Nonetheless, you apparently signed documentation as part of your role as the sole director of SHG. For example, you recall signing documents in order to open bank accounts for SHG. While you did not have effective control of SHG’s bank accounts, you personally signed numerous cheques, which the prosecution accept were written by Penny Kyriopoulos of the Peterson Group.
51 Your counsel submitted you had no hands-on involvement in the financial operation of any of the company’s bank accounts. You recall you were requested to sign SHG company cheques on several occasions, but you were entirely unaware of the reasons for the cheques being drawn.
52 He further submitted you did not have any role in SHG’s day to day operations, you were merely a ‘statutory figurehead’. The operation of SHG was entirely out of your hands. Your counsel submitted this was exemplified by an email exchange between Nick Kyriopoulos of the Peterson Group and you, at a time contemporaneous with the commencement of action by the ATO to wind-up the company. Your counsel submitted the email shows you as being ‘entirely naïve as to [your] role and duties as company director’ and Mr Kyriopoulos ‘had a significant role in the operations of SHG’.
53 The prosecution concedes Korras, and others never charged, were the major beneficiaries of your ‘provable dishonesty’ in the formation, operation and liquidation of SHG. Nonetheless, Senior Counsel for the Commonwealth Director submitted, and I accept, you ‘did all which was asked of [you] in relation to Sydney Hire Group’ from the company’s incorporation until its ultimate liquidation.
54 Whilst you were to some extent a ‘nominal’ director, you willingly carried out your part in the overall tax evasion scheme. Your counsel accepted yours was a ‘critical’ role, and by your plea you have admitted acting dishonestly throughout the charged period. Accordingly, I assess your moral culpability as being relatively high.
55 Your counsel also submitted, beyond the untaxed cash payment of $65,000, you did not materially benefit from the company’s operations. You did not personally profit from the loss or risk of loss incurred by the Commonwealth resulting from SHG’s operations.
56 Nonetheless, I note you have made reparation to the ATO in the amount sought by it of $247,705. This is relevant to your level of remorse and the extent of the loss suffered by the Commonwealth as a result of your offending conduct. It is also a specific mitigating factor under the Crimes Act 1914 (Cth) (‘the Act’).
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’.[10] I must have regard to a number of sentencing considerations as set out in s 16A(2) of the Act. This list is not exhaustive.
[10] 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;[11]
(b) any loss resulting from the offence;[12]
(c) the deterrent effect any sentence or order under consideration may have on other persons;[13] and
(d) the need to ensure the person is adequately punished for the offence.[14]
[11] Ibid s 16A(2)(a).
[12] Ibid s 16A(2)(e).
[13] Ibid s 16A(2)(ja).
[14] 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 an entity that did not take responsibility for the payment of its 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 were the sole director, secretary and shareholder of SHG. Whilst you were not the instigator of the scheme giving rise to the charges before me, nonetheless, you must have had some awareness of what was occurring, and you played your part in the scheme as directed by others.
66 Your offences were continuing ones, committed over an almost 34-month period, during which you were partly responsible for the failure of SHG to remit PAYG tax and GST to the ATO. The agreed value of the total loss to the Commonwealth referable to Charge 1 is $990,820, being $771,774 unremitted PAYG tax plus $279,046 unremitted GST.
67 Moreover, so far as Charge 2 is concerned, during the nearly 17-month period between 17 April 2013 and 10 September 2014 you personally received untaxed cash payments totalling $28,028, on which you evaded paying PAYG tax in the order of $9,618. This sum was paid by Korras as part of the reparation he made on his charge and, accordingly, the ATO does not seek this amount from you.
68 Clearly, as your counsel conceded, Charge 1 involves serious offending and a significant sentence of imprisonment is called for in order to give effect to the principles of denunciation, general deterrence and just punishment. Whether any part of that sentence must be immediately served by you depends upon my assessment of, and the weight I give, to circumstances personal to you, to which I now turn.
Mitigating Circumstances
69 You pleaded guilty at a late stage in the proceedings on 20 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.[15] The prosecution accepts yours are to be treated as early pleas.
[15] 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).
70 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 the pleas of guilty entered in your case.
71 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 the payment of a large sum of money by way of reparation and your expressions of remorse to your employer and others of your acquaintance as evidenced in the testimonials tendered on your behalf.[16]
[16] Exhibit JM2.
72 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’.[17]
[17] Judicial College of Victoria, Victorian Sentencing Manual, online, page 142 [7.5.3.2].
73 As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[18]
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.[19]
[18] (2013) 40 VR 436.
[19] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
74 So far as your rehabilitation during the period of delay is concerned, you have lived an exemplary life. I assess your prospects of rehabilitation as being excellent.
75 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 significant stress and anxiety and has contributed to the breakdown in your relationship with Amanda, and the loss of your employment.
76 In my opinion, your pleas of guilty and the delay in this case call for significant leniency to be extended towards you.
77 You fall to be sentenced as a person of otherwise good character who has excellent prospects of rehabilitation and who is facing his first custodial sentence. Moreover, I assess you as having a very low risk of re-offending.
Application of Sentencing Principles
78 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.[20] I have had regard to this material in formulating the sentences I impose in your case.
[20] Exhibit P4, Table 3 ‘Sentencing Schedule - $80,000 - $93,999’.
79 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 these offences 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.
80 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.
81 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.
82 General deterrence and denunciation are very important sentencing considerations for this offence. I am of the view in your case specific deterrence and protection of the community need be given very little weight. As I said earlier, I assess your prospects of rehabilitation as being excellent.
83 I have had regard to the sentences I imposed on your co-offenders Harry Korras,[21] Frank Moussa,[22] Mohamed Khalil Ammouchi,[23] Sam Karam[24] and Chris Georgiou.[25] Given the findings I have made in your case, in my view your personal circumstances call for considerable leniency to be extended.
[21] [2019] VCC 1681.
[22] [2019] VCC 1891.
[23] [2020] VCC 341.
[24] [2020] VCC 496.
[25] [2020] VCC 502.
84 Section 17A(1) of the Act restates the established common law position 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.
85 Mr Milla, I have formed the opinion on Charge 1 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. So far as Charge 2 is concerned, I consider a fine with conviction is the appropriate disposition.
86 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 and the personal stress and anxiety this has caused you.
Stand up Mr Milla.
On the charge of dishonestly causing a loss or risk of loss to the Commonwealth knowing or believing the loss would occur or there is a substantial risk of the loss occurring (Charge 1), you are convicted and sentenced to imprisonment for three years commencing from today.
On the charge of dishonestly causing a loss to the Commonwealth (Charge 2), you are convicted and fined $2,500. I direct that fine be referred to the Director of Fines Victoria for collection and management.
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 Milla, 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 the 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. Additionally, you must pay a fine of $2,500 but you will have time to pay the 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 sentences I would have imposed on you but for your pleas of guilty would have been as follows: on Charge 1, a sentence of 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment and on Charge 2, a fine in the sum of $5,000 with conviction.
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