R v Onley

[2023] NSWSC 1008

Supreme Court

New South Wales

Medium Neutral Citation:

R v Onley [2023] NSWSC 1008

Hearing dates:

16 August 2023; 22 August 2023

Date of orders:

22 August 2023

Decision date:

22 August 2023

Jurisdiction:

Common Law

Before:

Payne JA

Decision:

(1)    Mr Onley is sentenced to a term of imprisonment of 9 years to commence on 6 March 2023 and expire on 5 March 2032 for the tax fraud conspiracy;

(2)    Mr Onley is sentenced to a term of imprisonment of 12 years to commence on 6 March 2026 and expire on 5 March 2038 for the money laundering conspiracy;

(3) Under s 19AB of the Crimes Act 1914 (Cth) a single non-parole period of 10 years commencing on 6 March 2023 is fixed;

(4)    The offender is first eligible for parole on 5 March 2033.

Catchwords:

CRIMINAL LAW – sentence – federal offenders – conspiracy to cause loss to the Commonwealth – money laundering conspiracy – significant loss to the Commonwealth – persistent course of conduct

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth) sch 1, Criminal Code

Cases Cited:

AE v R [2023] NSWCCA 74

Almada v R [2015] NSWCCA 19

Alpha v The Queen [2013] NSWCCA 292

Arenilla-Cepeda v The Queen [2012] NSWCCA 267

Cheung v R (2001) 209 CLR 1; [2001] HCA 67

Dickson v R [2016] NSWCCA 105

Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42

Director of Public Prosecutions v Hamman (NSWCCA, unreported, 1 December 1998)

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DPP (Cth) v Estrada (2015) 45 VR 286; [2015] VSCA 22

DPP (Cth) v Goldberg [2001] VSCA 107; (2001) 48 ATR 549

Elomar v The Queen (2014) 316 ALR 206; [2014] NSWCCA 303

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Giang v R [2017] NSWCCA 25

Giourtalis v R [2013] NSWCCA 216

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

Issakidis v The Queen [2019] NSWCCA 302

Kao v R [2020] NSWCCA 38

Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Pearce v R (1988) 194 CLR 610

R v Adam Cranston [2023] NSWSC 1004

R v Agius [2012] NSWSC 978; (2012) 87 ATR 528

R v Anquetil [2020] NSWSC 995

R v Anthony James Dickson (No 18) [2015] NSWSC 268

R v Brown (1986) 43 SASR 33

R v Caradonna [2000] NSWCCA 398; 118 A Crim R 312

R v Dev Menon [2023] NSWSC 768

R v Doff [2005] NSWCCA 119

R v El Rashid (NSWCCA, unreported, 7 April 1995)

R v Gregory (2011) 34 VR 1; [2011] VSCA 145

R v Guo; R v Qian [2010] NSWCCA 170; (2010) 201 A Crim R 403

R v Hammond [2020] NSWSC 888

R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24

R v Huang [2007] NSWCCA 259; (2007) 174 A Crim R 370

R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370

R v Huston; R v Fox; R v Henke; ex parteCth DPP (2011) 219 A Crim R 209; [2011] QCA 350

R v Isaacs (1997) 41 NSWLR 374

R v Issakidis [2018] NSWSC 378

R v Jiao [2015] NSWCCA 95; (2015) 251 A Crim R 236

R v Kaldor [2004] NSWSCCA 425; 150 A Crim R 271

R v Lauren Cranston [2023] NSWSC 454

R v Lee [2007] NSWCCA 234

R v Lin [2014] NSWCCA 254

R v Ly [2014] NSWCCA 78; (2014) 241 A Crim R 192

R v Nguyen [2010] NSWCCA 331

R v Patrick Willmott [2023] NSWSC 474

R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524

R v Rivkin [2004] NSWCCA 7; (2004) 184 FLR 365

R v Roach [2005] VSCA 162

R v Smith (2000) 114 A Crim R 8

R v Todd [1982] 2 NSWLR 517

R v Viana [2008] NSWCCA 188

R v Wright (1994) 74 A Crim R 152

Sabra v R [2015] NSWCCA 38

Savvas v The Queen (1995) 183 CLR 1

Shi v R [2014] NSWCCA 276; (2014) 246 A Crim R 273

Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10

Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365

Totaan v The Queen [2022] NSWCCA 75

Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Sentence

Parties:

Rex (Crown)
Jason Cornell Onley (Offender)

Representation:

Counsel:

RJ Sharp KC with J Paingakulam and C Tran (Crown)
R Johnson (Offender)

Solicitors:

Commonwealth Director of Public Prosecutions (Crown)
Aquila Lawyers (Offender)

File Number(s):

2017/149208

Publication restriction:

(1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the parts of these reasons for judgment which are marked as redacted on the file copy of the judgment initialled by Payne JA are not to be published (other than to the parties and their legal representatives) until further order of the Court.
(2) Order (1) is made on the ground specified in s 8(1)(c) of the Act.
(3) Pursuant to s 11(2) of the Act, order (1) applies throughout the Commonwealth of Australia.

Judgment – EX TEMPORE

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. PAYNE JA: On 26 April 2022, Mr Jason Onley, together with Messrs Adam Cranston, Dev Menon, Patrick Wilmott and Ms Lauren Cranston, was arraigned before a jury on the following counts:

Between about 1 March 2014 and about 18 May 2017, at Sydney in the State of New South Wales and elsewhere, conspiring with each other, Simon Paul Anquetil, Devyn Michelle Hammond, Joshua Meredith Kitson, Peter Larcombe, Daniel Rostankovski and divers others with the intention of dishonestly causing a loss to a third person, namely the Commonwealth.

Contrary to section 135.4(3) of the Criminal Code (Cth).

Between about 1 March 2014 and about 18 May 2017, at Sydney in the State of New South Wales and elsewhere, conspiring with each other, Simon Paul Anquetil, Devyn Michelle Hammond, Joshua Meredith Kitson, Peter Larcombe and divers others to deal with money of a value of $1,000,000 or more believing it to be the proceeds of crime.

Contrary to sections 11.5(1) and 400.3(1) of the Criminal Code (Cth).

2. On 7 March 2023, the jury returned verdicts of guilty on both counts in relation to Mr Onley. Mr Onley was taken into custody that day and has remained in custody since.

3. In what follows I make findings of fact for the purposes of sentence. The principles I have applied in making those findings of fact are as follows:

1. A sentencing judge has a duty to make, as far as possible, findings of fact relevant to the issues that will inform the sentence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [16]-[17]; R v Isaacs (1997) 41 NSWLR 374 at 378;

2. Sometimes, however, it may be impossible for the sentencer to resolve a given factual question in a way that tends to either increase or decrease the sentence. In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70];

3. If a party at sentencing seeks to rely on a particular fact, that party has the onus of proving the fact in question: Olbrich at [25]. There is, however, no general joinder of issue in sentencing and, unlike at the trial, no generalised onus of proof: Olbrich at [25];

4. If the prosecution seeks to rely on a fact, they must prove it beyond reasonable doubt. If the offender seeks to rely on a fact, the standard of proof is on the balance of probabilities: Olbrich at [27]-[28]; Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41]; Filippou at [64], [66]; Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32];

5. After a jury returns a verdict of guilty, the sentencer is constrained to making findings of fact that are consistent with the jury’s verdict: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [14], approving R v Isaacs at 376-377;

6. A sentencer cannot know, in many cases, exactly what facts the jury found or what evidence they accepted. The sentencer is constrained by a verdict only when that verdict, by necessary implication, reveals that the jury accepted particular evidence or resolved facts in a particular way: Cheung at [17];

7. Within this constraint, the sentencer can make findings as they see fit: Savvas v The Queen (1995) 183 CLR 1 at 8. There is no requirement to accept all of the Crown’s case as put to the jury: Cheung at [7]. Nor is the judge required to take a view of the facts most favourable to the offender: Isaacs at 377D.

4. The Crown relied on the following evidence in the sentence proceedings:

1. an affidavit affirmed on 14 April 2023 by Edward Brendan McGinness, the Acting Principal Federal Prosecutor at the Commonwealth Director of Public Prosecutions. This affidavit addressed the procedural history of the prosecution and the trial; and

2. all of the evidence given in the trial.

5. Mr Onley relied on the following evidence in the sentence proceedings:

1. A psychiatric report by Dr Olav Nielssen, dated 24 July 2023.

2. An affidavit sworn by Daniel Kradolfer, Mr Onley’s solicitor, on 1 August 2023, annexing:

1. Various medical records for the period of Mr Onley’s incarceration thus far;

2. Mr Onley’s diary notes for the period of his incarceration;

3. A certificate showing his attendance at an addiction course.

3. A letter dated 11 July 2023 from Josh McKay, a lawyer acting for Mr Onley in unrelated civil proceedings.

4. Two letters from Mr Onley’s chiropractor, John de Voy, one dated 2 August 2023 and the other 14 August 2023.

5. Character references consisting of:

1. A letter dated 22 July 2023 from Peter Onley, Mr Onley’s father;

2. A letter dated 23 July 2023 from Michelle Onley, Mr Onley’s sister;

3. A letter dated 14 July 2023 from Christopher Finn, a solicitor and friend of Mr Onley’s parents;

4. A letter dated 20 July 2023 from Danny Doff, a friend of Mr Onley;

5. A letter dated 11 July 2023 from Lynne Jeffery, a friend of Mr Onley’s parents;

6. A letter dated 21 July 2023 from Gerry Nass, a friend of Mr Onley.

6. Mr Onley also relied on two confidential affidavits sworn by Mr Kradolfer on 15 June 2023 and 2 August 2023.

7. I have taken all of this material into account. To the extent it is relevant, I will address the evidence in what follows.

Relevant Facts

General background

8. The facts found in this judgment are not drawn from sentences imposed upon Mr Onley’s co-conspirators and relate only to Mr Onley. One matter bears particular emphasis in making these findings. The Crown case against Mr Onley was almost entirely a circumstantial case. Given the content of the recordings, in particular, the Crown had a compelling circumstantial case against Mr Onley. I do not propose to examine all of the pieces of circumstantial evidence in minute detail but, rather, will focus on the important submissions made by the parties having an effect on my ultimate conclusions.

9. In September 2016, the Australian Federal Police (AFP) commenced an investigation into an alleged conspiracy between several persons to dishonestly cause a loss to the Commonwealth (the tax fraud conspiracy). The tax fraud conspiracy involved the establishment and operation of a payroll services company, named Plutus Payroll Australia Pty Ltd (Plutus) and a number of apparently unrelated subcontracting companies, which were in truth controlled by some of the conspirators. The purpose of establishing this structure was to deprive the Commissioner of Taxation of Pay As You Go Withholding (PAYGW) amounts and Goods and Services Tax (GST).

10. Between 2014 and 2017, Plutus collected from its legitimate clients $141,291,923.08 in PAYGW and GST that it was obliged to remit to the Australian Taxation Office (ATO). At least $105,625,304.36 was misappropriated as a result of the conspiracies (74.7% of all PAYGW and GST amounts collected by Plutus). Only $30,883,342.47 was ever remitted to the ATO and a further $4,783,276.25 was later garnisheed by the ATO.

11. The conspirators agreed to launder the money which should have been paid to the ATO (the money laundering conspiracy). In furthering the money laundering conspiracy, in ways I will explain in greater detail, various entities were used to receive, conceal and divert the misappropriated taxes derived from the tax fraud conspiracy, essentially for the benefit of a number of the conspirators.

12. Mr Onley was one of the architects of the scheme, along with Adam Cranston, Peter Larcombe and Simon Anquetil. For reasons I will explain, Mr Onley was, from the conspiracies’ outset in March 2014, a knowing participant in each conspiracy.

The tax fraud conspiracy

13. Between February and March 2014, at least five of the conspirators, Messrs Onley, Adam Cranston, Anquetil, Kitson and Larcombe (now deceased) had meetings at so called “gentlemen’s clubs” in the Sydney CBD during which they discussed a scheme which involved operating a payroll business as a means to misappropriate PAYGW amounts and GST that was payable to the ATO.

14. A payroll company, Plutus, was incorporated on 23 April 2014 with Mr Anquetil as the sole director. Legitimate clients of Plutus included initially, contractors, and later, larger companies and even government agencies. The principal incentive for contractors and companies to sign as clients of Plutus was the fact that Plutus did not charge any fee for its services.

15. The tax fraud conspiracy operated and was implemented as follows:

1. Legitimate clients made regular transfers of gross payroll amounts to Plutus pursuant to contractual arrangements. Gross payroll comprised wages and salaries, PAYGW amounts and superannuation. GST was paid by the legitimate clients on the total gross payroll amounts. Plutus was obliged under contracts with legitimate clients to pay the wages and salaries of the relevant employees and contractors, withhold and remit to the ATO the required PAYGW and GST amounts, as well as remit the employees’ superannuation contributions to their superannuation funds.

2. Between July 2014 and March 2016, Plutus transferred the gross payroll monies, in full, to companies incorporated and controlled by the conspirators and referred to by the conspirators as the “bots” or “bottom companies” or subcontracting companies (the second tier companies). It is an important feature of this case, to which I will also return, that Mr Onley, Mr Cranston and Mr Larcombe (until he fled Australia in August 2015) were the controllers of the second tier companies, the engine room of the tax fraud and money laundering conspiracies.

3. The controllers of the second tier companies processed the relevant payments through the second tier companies. The controllers of the second tier companies arranged for vulnerable and unsophisticated people who did not understand the operations of the second tier companies to be appointed as sole shareholders and directors of the second tier companies. The controllers of the second tier companies then arranged for apparently unrelated third parties to "manage" the second tier directors. In the period from mid-2015 to mid-2016, that role was filled by Mr Simon McIntyre. A key feature of the conspiracies, to which I will return, is that Mr Anquetil, in contrast to Mr Onley, never had control of any second tier company or access to funds in a second tier company without the permission of a controller of the second tier companies.

4. In the period from mid-2016 to February 2017, Mr Daniel Rostankovski, under the direction of Mr Adam Cranston, Mr Onley and Mr Menon became responsible for recruiting and managing the directors of the second tier companies and ensuring they had no unsupervised involvement in the operations of those companies. In their liaison with Plutus staff, accountants and other third parties, Ms Cranston and Ms Hammond signed off as the named directors of the second tier companies or as “bookkeepers” assisting the directors in email communications.

5. In the period from April 2014 to February 2015, Ms Cranston and Mr Willmott were principally involved in the operation of the second tier companies’ accounts from a “back office”, at the instruction of Mr Onley, Mr Larcombe and Mr Adam Cranston. It is correct, as Mr Johnson submitted for Mr Onley, that Mr Onley was less involved in the management of the second tier company, Keystone, during this period than either Mr Larcombe or Mr Cranston. He was nonetheless a controller of that company.

6. In the period from February 2015 to May 2016, Ms Hammond and Mr Willmott were principally involved in the operation of the second tier companies’ accounts from this “back office”, at the instruction of Mr Onley, Mr Larcombe and Mr Adam Cranston.

7. On 26 August 2015, Mr Larcombe left Australia, never to return. Mr Larcombe had little involvement in the conspiracies after August 2015. Mr Larcombe died in Los Angeles on 19 August 2016.

8. From May 2016 to May 2017 Ms Cranston and Ms Hammond were engaged in conducting the day-to-day management and operation of the second tier companies. Throughout this period, they acted on the instructions of Mr Onley, Mr Adam Cranston and Mr Menon.

16. Although the legitimate client companies’ agreements with Plutus contained a clause enabling Plutus to assign or subcontract its obligations, Plutus did not inform its legitimate clients about the subcontracting arrangement it had put in place with the second tier companies. This is because the subcontracting arrangement was a mechanism designed by the conspirators to misappropriate amounts which should have been paid to the ATO. While the second tier companies would pay the contractors and employees of the legitimate companies amounts representing their net wages and superannuation, the second tier companies would, from the very beginning, remit only part of the taxes required to be paid to the ATO. Instead, for the entire period of the conspiracies, a large proportion of these taxes would be retained by the second tier companies and not paid to the ATO but distributed according to the instructions of the conspirators.

17. The second tier companies paid the amounts which should have been paid to the ATO principally to other entities controlled by Mr Onley, Mr Larcombe, Mr Adam Cranston and Mr Anquetil, often as payments of fabricated “invoices”, as well as to individuals including the conspirators. The second tier companies in some cases made payments back to Plutus. Over time the liabilities of the second tier companies to the ATO grew at an alarming rate. Annexed to these reasons and marked Annexure 1 is Exhibit II from the trial which shows the dramatically increasing obligations of the second tier companies to the ATO and the extent to which the second tier companies fell further and further behind in their tax payment obligations.

18. In March 2016, Plutus began to retain a portion of the funds it received from legitimate clients before the gross payroll amount plus GST was remitted to the second tier companies. This will be called the Plutus cut. The manual process implementing the Plutus cut commenced in March 2016. The Plutus cut also used money which should have been remitted to the ATO as payments of PAYGW and GST to purchase lavish personal items for the use of the conspirators.

19. After 1 July 2016, regular payments by Plutus of amounts which should have been paid to the ATO were made to a newly incorporated company Synep Ltd (Synep). Synep was controlled by Messrs Cranston and Onley. Payments were made from Synep for lavish personal expenditure on behalf of the principal conspirators.

20. While Plutus lodged Business Activity Statements (BASs), throughout the period of the tax fraud conspiracy, the second tier companies either lodged their BASs late (up to 13 months late) or did not lodge a BAS at all. As I have said, it was Mr Onley, Mr Cranston and (for part of the period) Mr Larcombe who controlled the second tier companies.

21. There were eight second tier companies involved in these conspiracies:

1. ACN 169 184 909 Pty Ltd (t/as Keystone Pay) (Keystone)

2. Uneek Consulting Services Pty Ltd (later renamed Keystone Payroll Australia Pty Ltd, then later PPA Contractors Australia Pty Ltd) (Uneek)

3. Sonar Consultants Pty Ltd (later renamed PPA Services Australia Pty Ltd) (Sonar)

4. PP Aus Holdings Pty Ltd

5. PP Australia NSW Pty Ltd

1. PP Services (WA) Pty Ltd

2. PPA (SA) Pty Ltd

3. PPA NT Pty Ltd

22. Companies (4) to (8) are referred to as the “PP Companies”. Annexed to these reasons as Annexure 2 are exhibits PP, QQ and RR from the trial which illustrate diagrammatically how money was moved as part of the conspiracies in the three taxation years during which the conspiracies operated.

23. On 8 June 2016, Keystone was placed into liquidation. The ATO investigation into the conspiracies only commenced in earnest in the second half of 2016. On 8 and 22 December 2016, two bank accounts held in the name of Uneek were garnisheed by the ATO. Sonar never had a separate bank account and used Uneek’s accounts. On 24 January 2017, the ATO garnisheed the five PP second tier companies’ accounts. After 24 January 2017, Plutus managed its obligations to its legitimate clients by paying salary, wages and superannuation directly from Plutus.

24. In May 2016, the conspirators faced threats from former business associates, supported by outlaw motorcycle gang members. Some of these blackmailers confronted the conspirators at the Aventis office in Double Bay. Mr Onley was slapped in the face at a meeting by a prominent member of an outlaw motorcycle gang. I accept that, for a time, Mr Onley feared for his safety, however, Mr Onley resolved the threats in August 2016 by entering a settlement deed, along with Plutus Payroll, Four MacDonald Pty Ltd and the former business associates. One of the terms was a $300,000 payment to be made by Mr Onley and Plutus to the former business associates which payment was made on 9 August 2016. These threats were resolved from this point forward.

25. Between January and May 2017, a number of discussions between the conspirators were recorded by surveillance devices installed at Mr Menon’s firm, Clamenz Lawyers (Clamenz), at the MLC Centre in Martin Place, Sydney. During these discussions, the conspirators, including Mr Onley, spoke in explicit terms about the fraud, including its history, key features, how it was implemented and the conspirators’ respective involvement and financial gains.

26. On 1 February 2017, at Clamenz, Mr Rostankovski issued the principal conspirators, including Mr Onley, with a blackmail demand for $5 million. Mr Rostankovski threatened media exposure of the conspiracies and violence if the blackmail sum was not paid. After the blackmail demand of $5 million had been almost completely paid via instalments, a further blackmail demand was made for an additional $20 million. Over 12 weeks, a total of $24.24 million in PAYGW and GST which should have been paid to the ATO was retained by the conspirators and was transferred from Plutus to the trust account of a law firm, Lands Legal, to satisfy the blackmail demands. Mr Rostankovski and a Mr Daniel Hausman pleaded guilty and have been imprisoned for conduct arising from these events. Mr Sevag Chalabian, a solicitor at Lands Legal, was found guilty by a jury of money laundering in relation to these events and is serving a sentence of imprisonment.

27. On 26 April 2017, the ATO served a garnishee order on bank accounts operated by Plutus. The conspiracies concluded after the AFP arrested a number of people, including Mr Onley, on 17 and 18 May 2017.

The money laundering conspiracy

28. The principal conspirators, including Mr Onley, agreed from the outset that taxes dishonestly withheld from the Commonwealth would not be paid to the ATO but would instead be dealt with for the ultimate benefit of the conspirators. The quantum of misappropriated taxes increased each financial year. The means by which monies were misappropriated adapted and evolved. In furtherance of the money laundering conspiracy, monies were received, concealed and disposed of through bank accounts owned by companies associated with the conspirators.

29. Acts in furtherance of the money laundering conspiracy included:

1. The PAYGW and GST amounts withheld by the second tier companies by the “back office” were transferred to a number of entities’ accounts, controlled by and associated with, in particular, Mr Onley, Mr Adam Cranston and Mr Anquetil and used to purchase real property, luxury cars, a boat, an aeroplane and other luxury items in which conspirators were joint or principal beneficiaries. At times, funds transfers were also accompanied by false invoices and false descriptions such as loans. Ms Cranston, Ms Hammond and Mr Wilmott made these transfers at the instruction of others, being Mr Adam Cranston, Mr Onley, Mr Larcombe and Mr Menon.

2. Some of the PAYGW and GST which should have been paid to the ATO was also transferred by the second tier companies to other entities owned by Mr Anquetil, and some of those amounts were transferred back to Plutus to make Plutus appear to be a legitimate and profitable company. From at least October to December 2014 large sums of PAYGW and GST amounts which should have been paid to the ATO were transferred by the second tier companies to a company controlled by Mr Anquetil named Media and Marketing Group (MMG) and transferred by MMG back to Plutus to make Plutus appear to be legitimate and profitable.

3. From 1 July 2016, the Plutus cut was transferred through Synep which became the parent company of Plutus, and other entities, for the benefit of Mr Onley, Mr Adam Cranston and Mr Anquetil. This was a way in which to make Synep appear to be legitimate and profitable.

30. The main financial beneficiaries of the money laundering conspiracy were Mr Onley, Mr Cranston and Mr Anquetil.

Mr Onley’s financial gain

31. For his role in the conspiracies, I find that Mr Onley received a financial gain of not less than $4,692,585.56 (see Trial Exhibit LL, Diagrams 8-10; annexed to these reasons as Annexure 3). Some of the monies received by Mr Onley traced from Plutus funds were used toward the purchase of high end properties, luxury cars, a share in a luxury boat, and a luxury pen (see Trial Exhibit LL, Diagrams 35-47; annexed to these reasons as Annexure 4).

32. I reject the submissions that Trial Exhibit LL incorrectly depicts financial gains made by Mr Onley. In particular:

1. I reject the submission that Diagram 8 in Exhibit LL shows a $548,609.39 repayment of a loan or loans. There is no evidence that any loan agreement was made between JAYO Pty Ltd (a company controlled by Mr Onley) and Synep. The alleged “loan repayments” were paid not into JAYO’s account but into Mr Onley’s personal account.

2. I reject the submission that in relation to Diagrams 36 and 37, which depict payments of $1.5 million from Uneek and PPA NT to Mr Onley to fund the purchase of 20 Fitzwilliam Road, Vaucluse, that this was a loan or that Mr Onley ever intended to repay this “loan” when he and his wife sold his former residence on Military Road. There is no evidence that the $1.5 million transferred to Mr Onley from Uneek and PPA NT was a loan. Further, Mr Onley held the funds for months and there was no attempt to repay any “loan”.

Mr Onley’s role in the tax fraud conspiracy

Commencement of Mr Onley’s role

33. I find that Mr Onley was part of the initial group of conspirators who established the tax fraud conspiracy. I reject Mr Onley’s submission that I should not conclude beyond reasonable doubt that his knowing involvement began any earlier than July or August 2015. The main basis for that submission was that Mr Onley received no monetary benefit from the conspiracies until about that time. Nonetheless, I am satisfied beyond a reasonable doubt that Mr Onley’s participation began at the conspiracies’ beginning, in early 2014. In particular:

1. I find that in early 2014 Mr Onley was involved in the commencement of the conspiracies and the establishment of the first second tier company, Keystone, with a straw director and no apparent connection to Plutus or the real controllers of the second tier companies. What Mr Onley earned from the scheme at this early stage does not determine his role in it. Mr Onley, in helping to create the Plutus and second tier company structure, put himself in a position to obtain millions of dollars for himself which should instead have been paid to the tax office. Mr Onley ultimately obtained millions of dollars which should have been paid to the tax office. He was only able to obtain those millions of dollars because of his knowing involvement in the conspiracies, from the beginning.

2. I reject Mr Onley’s submission that his involvement in 2014 and early 2015 was as a participant in “conversations where matters were discussed that touch upon the conspiracies, whilst not having joined the conspiracies”. Mr Onley was deeply involved in communications with other conspirators, in particular Mr Anquetil, shown in Exhibit P during this early period.

3. It may be true that Mr Onley also engaged until July 2014 in paid employment at his former workplace, 180 Group and later at another company, “Fessa”, an affiliate of accounting firm Wentworth Williams, until February 2015. This says nothing about his participation, from the beginning, in the tax fraud and money laundering conspiracies.

4. I reject Mr Onley’s submission that in the period before July or August 2015, his only involvement was in referring customers to Plutus solely for the purpose of growing his network and “helping” Mr Anquetil, and not in knowing furtherance of the conspiracies.

5. I reject Mr Onley’s challenge to [redacted]’s evidence which showed Mr Onley was, in June 2015, involved in conversations about [redacted] and the incorporation of Uneek and Sonar. As I will explain, I found [redacted]’s evidence to be compelling.

6. I reject Mr Onley’s submission that prior to the departure of Mr Larcombe he was a “bit player” in the conspiracies. Mr Onley was a key participant from the beginning, being involved in the creation of the structure and, critically, being involved from the beginning with Mr Cranston and Mr Larcombe as a controller of the second tier companies.

Overview

34. In summary, Mr Onley’s role in the tax fraud conspiracy involved:

1. Planning how the tax fraud conspiracy would operate with Mr Anquetil, Mr Cranston, Mr Larcombe and Mr Kitson;

2. Holding himself out at the outset as a “partner” of Plutus in order to attract legitimate clients;

3. Planning and discussing key developments in the scheme including the incorporation and liquidation of entities and the automation of the Plutus cut;

4. Directing and overseeing the operation of the second tier company back office, including the operations of Mr Willmott, Ms Cranston and Ms Hammond;

5. Arranging for the incorporation of Synep and its “purchase” of Plutus in order to lend legitimacy to the enterprise and extract funds from the scheme;

6. Recruiting Mr Buckner to be a director of Plutus without revealing to him the key role played by Plutus in the tax fraud and money laundering conspiracies; and

7. Planning and discussing how the scheme could be concealed including the destruction of records and the removal of certain Plutus staff members.

[redacted]

35. [redacted]

36. [redacted]

37. [redacted]

38. [redacted]

39. [redacted]

40. [redacted]

41. [redacted]

42. [redacted]

43. [redacted]

Initial planning

44. Mr Onley was part of the initial group of conspirators who established the tax fraud conspiracy. Between February and April 2014, Mr Onley met with Mr Anquetil, Mr Kitson, Mr Cranston and Mr Larcombe to discuss and agree to a tax scheme utilising a payroll business.

45. In March or April 2014, Mr Anquetil and Mr Kitson met with Mr Cranston, Mr Onley and Mr Larcombe at “The Men’s Gallery” on Pitt Street, Sydney. During this meeting, they discussed how quickly the planned payroll business could be set up, how quickly Mr Kitson could bring contractors to the business, and how the conspirators should communicate with each other privately going forward.

46. On 15 April 2014, Mr Anquetil sent a Skype message to Mr Kitson about the agency model saying “i had quite the brainwaves on this idea over the weekend and i had to get in front of Jay today to check them thru with him and the other guys running the payroll” (emphasis added).

47. I find that, from the beginning, the “Jay” referred to, Mr Onley, was a principal participant in the tax fraud conspiracy and a controller of the planned second tier companies. During this initial phase, other meetings involving Mr Onley were held where aspects of, and possible improvements to, the scheme were discussed. It is true, as Mr Johnson submits, that funds were not traced from Mr Onley’s accounts to Keystone. This does not cause me to doubt Mr Onley’s involvement in the conspiracies from the very beginning. It was only because he controlled the second tier companies that Mr Onley was in a position from 2015 to help himself to millions of dollars which should instead have been paid to the tax office.

Involvement in Plutus

48. While Mr Onley was not involved in the day-to-day management of Plutus, he had some involvement in its operation. He referred some customers to Plutus and attended some meetings with prospective clients. He had a business card printed describing himself as a “partner” of Plutus, which he asked Mr Anquetil to arrange. Mr Anquetil observed Mr Onley handing out such business cards from time to time. Mr Onley attended Plutus marketing functions, including its launch in August 2014. Mr Anquetil would also discuss with Mr Onley any issues that Plutus was having with the second tier companies.

49. On 15 November 2016, Mr Kitson and Mr Anquetil contacted Mr Onley when their first payroll funded client’s second pay run did not get processed in time. Mr Onley attended the Plutus office to meet with Mr Anquetil and Mr Kitson to deal with this issue.

Transition from Keystone to Uneek and Sonar

50. Keystone was central to the tax fraud conspiracy in its initial phase because it was then the sole second tier company used by Plutus. Keystone had a tax liability in excess of $6 million when it was wound up.

51. In around June 2015, Mr Onley spoke with Mr Anquetil about introducing two new labour hire companies to replace Keystone because Keystone was growing too fast. Mr Onley suggested that he and Mr Anquetil discuss with Mr Menon setting up two new labour hire companies for Plutus, and they did so. During the discussion between Mr Onley, Mr Anquetil and Mr Menon, they discussed how the new companies were not yet ready. Mr Anquetil asked Mr Menon whether they should notify clients beforehand that the name on their payslips was going to change, to which Mr Menon responded that they should not. Mr Onley asked “What if only one of the companies is ready?”, to which Mr Menon replied “Well, that’s not ideal but we can sort something out, as long as you can pay the money to one of the company’s bank accounts, we can create a commercial arrangement between the two companies and figure that out later”. They discussed how the new second tier companies needed to charge Plutus an apparently commercial fee as Keystone’s service fee to Plutus was too low. Mr Menon said that the introducer fees then being paid from Keystone to Plutus would no longer make sense if paid by the new second tier companies. Mr Menon asked Mr Onley if there was another company that could be used for Mr Anquetil to invoice to derive income from the second tier companies, to which Mr Onley suggested MMG.

Synep

52. In early 2016, Mr Menon, Mr Onley and Mr Anquetil met at Mr Menon’s office and had a discussion, during which Mr Menon suggested that Mr Cranston and Mr Onley should invest in a range of companies, including Plutus, through a new public company. Mr Onley said that it would allow them to move money around between the second tier companies and Plutus easily.

53. Mr Cranston or Mr Onley said they were going to incorporate a public company and purchase Mr Anquetil’s shares in Plutus for $5 million. Mr Menon suggested that the purchase would be effected by a payment from Plutus to Mr Anquetil, which would be accounted as a loan between the public company and Plutus.

54. On 14 March 2016, Mr Cranston and Mr Onley incorporated Synep, which ultimately purchased Plutus from Mr Anquetil. Mr Cranston, Mr Onley and Mr Ian Stephens were appointed as directors of Synep, although Mr Stephens played no role in the operations or decision-making of Synep. Mr Menon handled the incorporation of Synep and arranged meetings with Mr Onley and Mr Cranston about the company. Synep began operations in July 2016.

55. [redacted]’s evidence was that it was March 2016 when Mr Onley told [redacted] that Mr Larcombe and Mr Willmott had taken millions of dollars from the scheme for themselves. It is correct, as Mr Johnson on behalf of Mr Onley submits, that [redacted] has confused the date of this conversation. Mr Onley learnt of Mr Larcombe’s embezzlement only in May 2016, rather than March 2016 as [redacted] stated. I do not think this error is significant.

56. This is because the evidence is clear that Synep, from the beginning, was intended by its sole controllers, Mr Onley and Mr Cranston, to facilitate the movement of funds between Plutus, the second tier companies and the conspirators. From its inception, Synep did exactly that. [redacted]’s evidence, in substance, was of a plan to do exactly what Mr Cranston and Mr Onley actually did.

Meetings while Mr McIntyre was managing straw directors (mid-2015 to mid-2016)

57. Between mid-2015 and mid-2016, Mr Onley attended group discussions with other conspirators at the Aventis office. During these meetings, they discussed company names and structures, changing the directors of companies, establishing new second tier companies to replace others and making sure that the straw directors did not talk to the ATO.

58. Mr McIntyre said, and I accept, that there was a whiteboard at some of these meetings on which company and director names were written and on which directors were identified who had to be removed and replaced due to ATO interest.

59. Mr Onley was present during a meeting at the end of this period where the conspirators discussed raising the amount of money to be paid to the straw directors to try to increase their efficiency.

60. I find that at all times it was part of Mr Onley’s role to “oversee” the back office of the second tier companies. It may be accepted that, as Mr McIntyre said, Mr Onley’s management role was “a step back”. This does not derogate from my finding that he was a controller of the second tier companies and in a position to give binding directions about the movement of funds which should have been paid by the second tier companies to the tax office. The significant abuse of the corporate form in appointing and paying straw directors to pretend to be in control of the second tier companies is a feature of the conspiracies that Mr Onley and Mr Cranston are principally responsible for.

Meetings from mid-2016 onwards

61. From mid-2016, Mr Onley attended meetings with other conspirators during which they discussed the tax liabilities of the second tier companies, liquidating second tier companies without paying those liabilities, starting new second tier companies in their place, avoiding detection and the straw directors. At these meetings, Ms Cranston and Ms Hammond would respond to questions about tax liabilities, amounts paid to and withheld from the ATO, and would explain to the conspirators that generally no more than 60% (and often much less) of the tax liability was being paid to the ATO. [redacted]. Peripheral matters, such as the small number of times [redacted] remembered that Mr Onley attended the Cronulla, Miranda or Bankstown offices do not cause me any doubt in this regard. Mr Onley was, with Adam Cranston, one of two controllers of the second tier companies. He was by mid-2016 taking millions of dollars which should have been paid to the tax office from the second tier companies and the Plutus cut. The spreadsheets were prepared by Ms Hammond and Ms Cranston to show those controlling the structure what payments were being made. The recordings in evidence are replete with statements made by Mr Onley indicating that he was aware of the level of detail in those spreadsheets about the non-compliance by the second tier companies with their taxation obligations.

Plutus cut

62. When Mr Anquetil automated the Plutus cut, he informed Mr Onley and Mr Menon of the programming change. Mr Onley and Mr Menon spoke to Mr Anquetil about randomising the percentage figure to be deducted. On 16 November 2016, Mr Anquetil called Mr Onley and asked him to call Ms Hammond after she emailed Tim Fox because the numbers in the recipient-created tax invoices (RCTIs) did not reconcile. Mr Onley agreed to call her and get her to contact Mr Fox to say that she had made a mistake. Mr Onley did call Ms Hammond about this.

63. On 23 November 2016, Mr Anquetil and Mr Onley discussed the cut, which the conspirators also referred to as the “glitch”:

ONLEY:   But the percentage you set up is what we discussed right?

ANQUETIL:   Definitely.

ONLEY:   Yeah.

ANQUETIL:   Yep, yeah, it’s right, it’s just that it fluctuates because, you know, we said we wanted it to fluctuate.

ONLEY:   Yeah, yeah. Well, that’s, that’s fine but it’s not going to twenty seven, thirty per cent, it’s going to.

ANQUETIL:   That never happened, that’s just a miscalculation on your end, man, that’s not how it works.

64. [redacted] gave evidence that Mr Onley instructed her to ignore the issue and not to discuss it with Tim Fox.

65. The recordings are replete with evidence of Mr Onley’s detailed knowledge of the automated Plutus cut or “glitch”:

1. On 2 February 2017, Mr Onley said “Adam’s position of uncovering the … we’ve uncovered a glitch on our system. I don’t want to bring that up at this point”. Mr Menon said to Mr Onley and Mr Anquetil “we’ll keep the glitch going, til June because we need to get the money”. Mr Menon said “If you look on the books, like we’re paying a hundred percent PAYG” and “We’re just fucking with the books”.

2. On 7 February 2017, Mr Onley spoke with the other conspirators about the RCTI generator.

3. On 23 February 2017, Mr Kitson, Mr Menon, Mr Cranston and Mr Onley discussed figures not matching in the Xero accounting software, and Mr Kitson mentioned the “fucken piece of software that automatically” does it, being the RCTI generator.

Appointing directors

66. Mr Onley recruited a director of Plutus, Mr Buckner. He became the director of Plutus after Synep acquired it. He was previously known to Mr Onley. On 28 April 2017, Mr Onley said the following about Mr Buckner:

He’s not selfish. He never got sold this bro. You can’t blame him. It was never discussed with him. I never said to him, “hey you’re going to have to fuckin take the hit”…I gave him a little bit of a brief, but it was in one ear and out the other, right?

67. I accept that Mr Buckner was not a straw director in the sense of the drug dependent vulnerable people who were directors of the second tier companies controlled by Mr Onley and Mr Cranston. Nevertheless, I reject Mr Onley’s submission that he intended for Mr Buckner to play an active role in the Plutus business. If Mr Onley had such an intention, he would have told Mr Buckner about the tens of millions of dollars in tax which by that time Plutus’ subcontractors, the second tier companies, should have paid to the tax office but which instead had been diverted at the direction of the conspirators. He did not. A critical risk to the Plutus business, that the subcontractors responsible for paying PAYGW and GST to the ATO, the second tier companies, were engaged in fraud on a massive scale was not a matter Mr Onley overlooked telling Mr Buckner. It was a design feature of having a director of Plutus who would, in Mr Onley’s words, “have to fuckin take the hit” of an inevitable tax office investigation and likely prosecution.

68. On 24 February 2017, Mr Onley spoke with Mr Karl Vogel about needing to find a new director for Plutus, during which Mr Onley said:

“I’ve got to find someone by Monday, fuck I don’t know…”;

“I might have to pull Ricardo and Ken in, so, that’s my only choice, man…Any director has to be hands on now because it’s fucking all hands on deck”;

“I didn’t need a chief, that’s why Gus was good, but now I do … Now whoever comes in needs to know what the problems are…”; and

“ ….because the risk is huge, nobody wants to take the risk with this thing, you know, it could be fucking ugly”

69. I find that Mr Onley was aware that Mr Rostankovski was managing the straw directors of the second tier companies. This is clear from his attendance at meetings and from various recordings. For example, on 13 October 2016, Mr Menon talked to Mr Onley about Mr Rostankovski’s role and his pay. On 17 October 2016, Mr Onley told Mr Cranston and Mr Menon that Mr Rostankovski needed to focus on getting mail from the straw directors for the new companies. On 18 October 2016, Mr Onley and Mr Menon discussed Mr Rostankovski’s pay and how he needed to be told to get things done. On 19 October 2016, Mr Onley, Mr Menon and Mr Cranston again discussed Mr Rostankovski and his pay.

70. It may be correct, as Mr Johnson submitted, that Mr Onley was misled by Mr Cranston and Mr Menon about additional payments being made to Mr Rostankovski. This does not cause me to doubt that Mr Onley was nonetheless closely involved in the abuse of the corporate form in appointing and paying vulnerable drug dependent people as directors to allow him to pretend that they were truly in control of the second tier companies.

Concealing the conspiracy and destroying records

71. Mr Onley spoke with others about limiting certain kinds of communication to avoid detection. On 27 January 2017, Mr Onley told Mr Menon and Mr Cranston that none of them should have their phones on them. Mr Onley later said he would put his phone on aeroplane mode and Mr Cranston said “Don’t talk over the phone”. Mr Onley continued that “the one thing that will get us fucked”, to which Mr Cranston responded “Is phones”. During this discussion, they talked about wire taps and not texting each other. Mr Onley said that they were mitigating their risk by having no links, no texts and no emails.

72. On 27 January 2017, Mr Onley told Mr Menon, Mr Anquetil and Mr Cranston to put their phones away because they would only have difficulties if there was a text or phone call or “someone turns”. He later stated that they needed to be careful in “not making, not texting, calling or giving anything that they if they were monitoring us, they don’t get it, right, at the moment there’s no emails”.

73. On 20 February 2017, Mr Cranston said to Mr Onley “As I said I couldn’t really speak to ya over the phone” to which Mr Onley said “No that’s not the way to do it … Have you got phones on you bro? … Can you take them off me?”.

74. In a meeting on 24 January 2017, Mr Menon, Mr Cranston, Mr Onley, Ms Cranston and Ms Hammond discussed ways in which they could keep the ATO from investigating or uncovering the conspiracies. They all agreed that Mr Palumberi, a straw director, would not sound convincing if he were interviewed the ATO and that it would be best if he were paid by the conspirators to leave Australia. They discussed which second tier companies should be wound up and which should be retained. Mr Menon suggested that PPA NT would lodge and then be liquidated. Mr Menon confirmed that corporate keys had been requested and would be sent to the relevant accountants for the five new directors that Mr Paul had obtained.

75. On 27 January 2017, Mr Menon and Mr Cranston put together a spreadsheet of “income” (which was in fact money collected as PAYGW and GST which should have been paid to the tax office) and expenses to budget what needed to be done to continue the scheme. Mr Cranston and Mr Menon then updated Mr Onley about the figures they had discussed.

76. Mr Onley participated in a number of conversations during which the destruction of records and documents was discussed. On 2 February 2017, Mr Menon said to Mr Onley and Mr Anquetil that “the key is this, on June thirty, we’re going to get hackers … (indistinct) … hackers that send a virus or something and crash the whole”. Mr Onley said “I know some good ones” and “We just got to throw layer upon layer”, which I find meant layers of distance or confusion to prevent the discovery of the conspiracies and Mr Onley’s role in them.

77. On 7 February 2017, Mr Menon said to Mr Onley and other conspirators that they needed “to burn the systems” and Mr Kitson said that he would “go and ensure that that [RCTI generator] gets fuckin’ torched, that nothing in the fuckin’ world is ever going to recover that”. Later that day, Mr Onley said about emails on a server “You need to delete those” and “burning the fuckin’ scorched earth, brother. Start burning …”.

78. On 23 February 2017, Mr Menon, Mr Onley and Mr Cranston talked about having to burn records and to retrieve computers from Mr Rostankovski.

79. On 27 February 2017, Mr Menon, Mr Onley, Mr Kitson, Mr Anquetil and Mr Cranston talked about removing the accounting data from the Xero software system.

80. On 28 March 2017, Mr Menon, Mr Anquetil and Mr Onley discussed Xero, authorities getting access to the system, and emails. Mr Onley asked “but what about moving this thing out of google?” and “Dev, what about your emails?”.

81. On 6 April 2017, Mr Onley talked to Ms Hammond, Ms Cranston and Mr Menon about removing stickers from their laptops.

82. On 28 April 2017, Mr Menon asked Mr Kitson, Mr Onley, Mr Cranston and Mr Anquetil “When do we get hacked? Do we say on the weekend or no?”. Mr Onley said “But burn that RCTI thing … like this weekend”. Mr Onley suggested the conspirators bring in a “proper hacker”, but Mr Menon said that they should not involve anyone else.

83. Mr Onley was also involved in discussions about blaming the non-payment of tens of millions of dollars in tax on Mr Larcombe (who by then was dead). For example, on 27 January 2017, Mr Onley, Mr Cranston and Mr Menon discussed Mr Anquetil shifting responsibility to Mr Larcombe. Mr Onley said that they could give Mr Anquetil the Larcombe story but Mr Menon said “It’s not gonna stack up for this year”. Mr Onley later repeated that Mr Anquetil would not give them up initially because they would give him the Larcombe story, but they had to be careful. On 20 February 2017, Mr Menon told Mr Onley and Mr Cranston that he would blame Mr Larcombe in his interview with the NSW Office of State Revenue. On 23 February 2017, Mr Menon, Mr Cranston and Mr Onley discussed Mr Larcombe and the deed with the blackmailers. Mr Cranston asked “Has he written that Peter Larcombe ran this and all that type of stuff?”, to which Mr Onley said “Yeah it’s in the first page of the deed mate, and it’s in Simon’s aff, Simon, put it forward and Josh put it forward. The name’s coming up every fucking time with the ATO mate”.

84. On 28 March 2017, Mr Menon said to Mr Anquetil and Mr Onley “there is the defence for us is so, it’s like Peter and his team were running it, but we … When they interview, we all band together and say the same fucking thing”.

85. On 28 April 2017, Mr Menon, Mr Onley and Mr Cranston talked about what they describe as the Larcombe defence.

Mr Onley’s awareness that tax was not being paid

86. I find that, since the inception of the tax fraud conspiracy, Mr Onley was plainly aware that less than 100% of the second tier companies’ tax liabilities would be paid. This is demonstrated by his attendance at meetings where underpayment of tax was discussed, his knowledge of the Plutus cut, and various recordings.

87. On 7 November 2016, Mr Menon told Mr Onley that Mr Cranston was not happy with the tax percentages being so low.

88. On 24 January 2017, in relation to Uneek and Sonar, Mr Menon and Mr Onley said the following:

MENON:    Uneek’s says that, um, Sonar…

ONLEY:    Hasn’t paid its tax.

MENON:    Correct. Hasn’t paid its taxes …

89. Mr Onley was present when Ms Hammond and Ms Cranston explained that PPA NT Pty Ltd was paying between 60% and 70% of its taxes every day, and that PP Services (WA) Pty Ltd had a “small” tax debt each quarter of about $1 million. Mr Menon said in relation to PP Australia NSW Pty Ltd, “this is going to go on the liquidation as well. N one. Like no question”. In relation to keeping some of the other companies, Mr Menon said “We’re going to keep three of them and burn two of them” and “Let’s have a fighting track record with them”. During this meeting, Mr Onley said:

What I don’t want to do is do what we did with the last round right. When we used the money from the new to bail out (indistinct) creating the Ponzi shit because you can never get out of that … You dig a hole you can’t get out of. At some point you’ve gotta take a hit. I want to take a hit now. So … Start taking the hit now so that we can start ending it … So we can get out of this shit into actual real business, business and fuckin’ focus on moving away from this and more into this.

90. On 7 February 2017, Mr Onley said:

You can owe tax and fuckin blatantly rip them off, but as long as you didn’t hide it from them because then there’s no intent. It’s all the intent … it’s your intention to pay … are you going to be able to, maybe not … do a part ten and wrap it all up, eighty cents in the dollars, who knows? It gets to a point where it’s fuckin three or four million you’re going to go, okay, well I’ll pay thirty or forty, a hundred grand … I’ll do a part ten or a DOCA … and I’ll move on.

Mr Onley’s role in the money laundering scheme

91. I find that Mr Onley’s role in the money laundering conspiracy was as one of its main financial beneficiaries. He received and directed the making of payments, including through his participation in meetings.

92. Mr Onley submitted that he became involved in the money laundering conspiracy only in July or August 2015, making the same arguments as to why he became involved in the tax fraud conspiracy only at that time. As I have explained, I reject those submissions.

93. Mr Onley established various side companies, and utilised certain existing companies within his control, to receive funds and distance himself from the receipt of those funds. These companies were:

1. Stripsafe Pty Ltd (incorporated on 18 May 2010);

2. Nicas Management Pty Ltd (incorporated on 26 June 2014);

3. Felix Thompson Pty Ltd (incorporated on 7 July 2014);

4. Northstar Consulting Services Pty Ltd (incorporated on 25 July 2014);

5. Brooklyn CrossQ Pty Ltd (incorporated on 27 October 2015);

6. Four MacDonald Pty Ltd (incorporated on 2 March 2016);

7. iKeep Online Pty Ltd (incorporated on 20 March 2017);

8. JAYO Pty Ltd (incorporated on 4 October 2011);

9. Pay-E-Way Pty Ltd (incorporated on 8 June 2016); and

10. JRIO Pty Ltd (incorporated on 20 March 2015).

94. Mr Onley recruited straw directors for these side companies, namely Bethanne Dillon to Brooklyn CrossQ, Richard Leal to Stripsafe and Daniel Marlin to Felix Thompson. Mr Onley submitted that each was a friend or acquaintance of his, “distinct in character” from the straw directors controlled by Mr Rostankovski. None of his directors, Mr Onley said, were issued with penalty notices or garnishee notices. None were pressured, coerced, bribed or paid money to act as director. Nor, Mr Onley submitted, is there evidence that the companies they were appointed to failed to meet their tax obligations (Exhibit X). I find that it is, at best, good fortune that these directors were not exposed to harsh legal consequences. There is no evidence that Mr Onley took steps to protect them. I reject his submission to the contrary.

95. Mr Onley had his side companies issue false invoices to Uneek to conceal payments made for Mr Onley’s benefit. I reject Mr Onley’s submission that these companies merely acted as conduits for payments to Northstar Consulting, and that money was being retained in them to ensure that they could meet their respective tax obligations. There is simply no evidence of that.

96. I find that Mr Onley was aware that other conspirators were receiving money from the fraud. For example, in a recording on 27 January 2017, in a discussion with Mr Cranston and Mr Menon, Mr Onley said about Mr Anquetil that “He would have made the five mill last year, ah probably not all into his personal account I don’t know exactly, he pulled around five mill last year, he’s paid tax on it.”

97. Mr Onley accepts that he knew other conspirators were receiving money from the fraud. Mr Onley denies that he was aware of the amounts involved. Nor, Mr Onley submits, should I find beyond reasonable doubt that he knew of the “exorbitant” personal benefits flowing to Mr Anquetil and Mr Cranston. Whilst a design feature of these conspiracies was that the conspirators did not truly trust one another, the fact that Mr Onley did not know the precise amount of the benefits obtained by Mr Cranston and Mr Anquetil is of little relevance. Mr Onley knew that each had taken millions of dollars which should have been paid to the ATO.

98. Following the blackmail, Mr Onley was involved in discussions with the other conspirators about whether and how much to pay the blackmailers. For example, on 7 February 2017, Mr Onley and other conspirators discussed sending more money to the blackmailers. He expressed some unhappiness about paying the blackmailers $5 million because he said they were never going to the ATO. On 20 February 2017, Mr Menon explained to Mr Onley that the money being paid was money that Plutus would pay anyway to a subcontractor. Mr Cranston and Mr Onley debated whether the blackmailers would actually pay the ATO. On 23 February 2017, Mr Menon, Mr Cranston and Mr Onley talked about how much was going to be paid in the next eight weeks, and how Mr Menon should deal with Mr Rostankovski about his further demand for money.

Non-exculpatory duress

99. Mr Onley submitted that I should take non-exculpatory duress into account, as I did in relation to Mr Menon and Mr Anquetil: see R v Dev Menon [2023] NSWSC 768 at [50]-[51]; R v Anquetil [2020] NSWSC 995 at [100]. Mr Onley submitted, however, that he is in “a different position” to Mr Menon because he was “targeted and singled out” by criminals. The following principles concerning non-exculpatory duress, relied upon by the Crown, were not disputed by Mr Johnson. Drawing upon Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365 at [45]-[46], [49]-[54]; Kao v R [2020] NSWCCA 38 at [39], [45]; and Giang v R [2017] NSWCCA 25 at [33] it was submitted that I should proceed on the basis that:

1. The Court is entitled to approach non-exculpatory duress claims with a significant degree of circumspection. It is easy to make claims as to the conduct of persons applying pressure on an offender.

2. The Court is required to make careful assessment of evidence in support of asserted non-exculpatory duress. The onus of proof is on the offender. Even where that onus is discharged, the Court still has to decide what weight non-exculpatory duress has on sentence.

3. The Court is also required to consider the form and duration of the offender’s conduct, the nature of threats made and the opportunity to report this to the authorities.

4. The Court is required to articulate the objective gravity and moral culpability of the offending in light of the duress.

100. I am bound by, and in any event respectfully agree with Johnson J in Tiknius that it is necessary to keep in mind, even at the sentencing stage, some of the policy considerations underlying the law of duress. In Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53 at 106 [31], French CJ, Heydon, Crennan, Kiefel and Bell JJ accepted as a starting point when considering the reasonableness of a person's actions (concerning the defence of duress), the proposition stated by King CJ in R v Brown (1986) 43 SASR 33 at 40:

The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation.

101. General deterrence has a very substantial role on sentence in cases where non-exculpatory duress is relied upon by the offender: R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524 at 536-539 [54]-[63]; R v Roach [2005] VSCA 162 at [15].

101. There are two sources of alleged duress: the 2016 and 2017 blackmail events.

102. In relation to the 2016 blackmail threats, I find that they were limited in duration and scope. Mr Onley resolved the threats in August 2016 by entering a settlement deed, along with Plutus and Four MacDonald Pty Ltd, with members of the Eleter family and another associate. One of the terms was a $300,000 payment to be made by Mr Onley and Plutus to the Eleters, which was made on 9 August 2016.

103. In relation to the 2017 blackmail I find:

1. Mr Menon and Mr Cranston believed that they had used the blackmail demand to their own advantage, in particular by drafting a deed which they thought would pass unpaid tax liability to the straw directors;

2. Mr Onley concurred in the other conspirators’ positive assessment of the blackmail event:

1. On 7 February 2017, Mr Onley told Mr Menon, Mr Cranston and Mr Kitson: “Well actually I’m not really fussed about that because the fact they got a lawyer now … that’s not you so you – the problem was always if you were doing them and us, that was always the link, right. Now you’re not us it’s fair that you – they’re over here. It’s like well … what about the lawyer, he’s fucked, I don’t know”.

2. On 20 February 2017, Mr Onley told Mr Cranston and Mr Menon that Mr Chalabian was “smart enough to realise that he’s now signed a fucking fatal … He’s linked to this shit … The more we pay them the bigger the fucking target”.

3. On 28 March 2017, Mr Onley told Mr Kitson that the blackmailers had “taken the bait” and were “on the hook” for the debt. He said “that money’s fucking poison … I can’t fuckin keep it so I might as well give it to them to fuckin kill themselves with it”.

4. Once the deed was in place, Mr Onley (like Mr Cranston and Mr Menon) began saying he would go straight to the police if threatened again. This, the Crown said and I accept, supported an inference that the only reason he had not approached the police earlier was to prevent exposure of the conspiracies.

105. I find that to the extent there is some evidence of discussions with the police by Mr Onley, Mr Onley did not reveal the existence of the tax fraud or money laundering conspiracies in those discussions.

106. I accept, as Mr Onley submitted, the circumstances of 2016 and 2017 together placed enhanced “stress and pressure” on him compared to his co-conspirators. As such, a part of his motivation in participating in the payments made to the blackmailers from funds which should have been paid to the tax office was fear of threats made to him by people he believed were linked to criminal organisations. This bears on Mr Onley’s moral culpability, in much the same limited way as I have earlier found it bore on Mr Menon’s and Mr Anquetil’s moral culpability. As I have said, however, general deterrence has a very substantial role on sentence in cases where non-exculpatory duress is relied upon by the offender.

Consideration

107. The total loss caused by the conspiracies over the period between March 2014 and May 2017 was $105,625,304.36.

108. The offender is to be sentenced for offences against Commonwealth law and the Court is required to apply the terms of Part IB of the Crimes Act 1914 (Cth). The guiding principle under s 16A(1) of the Crimes Act is the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence. The Court must consider the matters identified in s 16A(2) of the Crimes Act, to the extent that they are relevant.

109. Given the length and detail of the submissions made by the Crown and Mr Onley, I will deal with the respective submissions when addressing each of the matters required to be taken into account by Part IB of the Crimes Act.

110. The offences of which Mr Onley has been found guilty by the jury, carry the following maximum penalties: for the offence against s 135.4(3) of the Criminal Code, imprisonment for 10 years and/or a fine of $108,000; for the offence against ss 11.5(1) and 400.3(1) of the Criminal Code, imprisonment for 25 years, and/or a fine of $270,000.

111. The maximum penalty serves as a yardstick: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31]. It is important to have regard to the maximum penalty to determine the degree to which the offender’s conduct offends against the legislative object of ensuring compliance with taxation laws. In addressing this question, care should be taken to ensure that what the offender actually did is considered, rather than any shorthand labels: Olbrich. I take the maximum penalty in each case into account as an important guidepost.

112. I take into account the approach to sentencing for a conspiracy charge which was summarised by Simpson J (with whom Spigelman CJ and Harrison J agreed) in Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 at [78]-[85]. It was held in Tyler at [83]-[84] that sentencing for specific acts alone would:

[83] … be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the ‘role’ of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy – the agreement to participate in an organised criminal activity.

[84] That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry…

113. Those remarks have been approved on numerous subsequent occasions: R v Nguyen [2010] NSWCCA 331 at [46]-[50]; Arenilla-Cepeda v The Queen [2012] NSWCCA 267 at [75]; Alpha v The Queen [2013] NSWCCA 292 at [69]-[70]; Elomar v The Queen (2014) 316 ALR 206; [2014] NSWCCA 303 at [684]; DPP (Cth) v Estrada (2015) 45 VR 286; [2015] VSCA 22 at [45].

114. These conspiracies demonstrate the “dangerousness” of individuals working in concert for a common unlawful end. I also proceed on the basis that it is axiomatic that general deterrence is a critical consideration in relation to white collar offences like these which are difficult to detect, investigate and successfully prosecute.

115. Before descending into the detail it is important to note that I am obliged to impose a sentence which is of a severity appropriate in all the circumstances of the offence. A “sentence” includes the head sentence and non-parole period. In Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42 at [61], Basten JA explained (Campbell and N Adams JJ agreeing) that “the fixing of a non-parole period is as much a part of a sentence as is the nomination of the full term”. The Court must consider the matters identified in s 16A(2) of the Crimes Act, to the extent that they are relevant, but always with the purpose of the sentence at the forefront: imposition of a sentence which is of a severity appropriate in all the circumstances of the offence.

116. I turn now to the list of factors I must take into account under s 16A(2) of the Crimes Act. I will not address those factors that the parties agreed did not apply here.

Section 16A(2)(a) – Nature and circumstances of the offence

117. I find that the two conspiracies fall towards the highest range of objective seriousness of offences of this kind, and that Mr Onley’s role is at the top of the conspiracies. The role of Mr Onley, along with Mr Cranston, as the controllers of the second tier companies, the engine room of the conspiracies, makes this so.

118. Both of the conspiracies involved a significant level of sophistication, premeditation, planning and deception and a high degree of dishonesty and breach of trust. This was demonstrated by the following:

1. The establishment of many corporate entities to implement the conspiracies and conceal the conspirators’ involvement;

2. The success of the conspiracies depended upon the appearance of Plutus as a legitimate company and an effective “back office” that processed the payments and disbursements of the tax fraud proceeds;

3. Agreements were drafted between Plutus and the second tier companies to create an appearance of legitimacy;

4. The creation and exchange of false invoices;

5. Legitimate clients who engaged Plutus were unaware that Plutus subcontracted its services to the second tier companies;

6. The staff of Plutus were misinformed about how the company operated;

7. Unsophisticated and vulnerable people were appointed as directors to create the appearance that the subcontracting arrangement was at an “arm’s length” when in reality such people had no role in managing the companies they were directors of and were intended to be held responsible for any outstanding tax liability. This was an abuse of the corporate form.

119. Mr Onley was a key member of the initial group of conspirators who established the tax fraud conspiracy. He was intimately aware of the criminal purpose of the scheme and the means by which it would be achieved. Mr Onley attended meetings in early 2014 with his co-conspirators where they had discussions as to how to improve the scheme. He was involved in the deception and set-up of sophisticated corporate structures, had an ongoing role in the “front-office” operation of Plutus, and managed and oversaw the “back-office” operation of the second tier companies

120. Mr Onley was involved in the conspiracies in the following ways, as I have found:

1. Mr Onley planned how the tax fraud conspiracy would operate with his co-conspirators Mr Anquetil, Mr Cranston, Mr Larcombe and Mr Kitson;

2. Mr Onley held himself out as a “partner” of Plutus in order to attract legitimate clients;

3. Mr Onley planned and discussed key developments in the scheme including the incorporation of new second tier entities and the liquidation of existing entities and the automated Plutus cut;

4. Mr Onley directed and oversaw the operation of the second tier company “back office” staffed by Ms Cranston, Ms Hammond and Mr Willmott;

5. Mr Onley was aware the straw directors of the second tier companies were vulnerable. He used them so that he himself could keep at arm’s length and conceal his true control over the companies;

6. Mr Onley recruited Mr Buckner to be a director of Plutus;

7. Mr Onley’s dealings with proceeds of crime were sophisticated, organised and diverse. They involved the incorporation of, and use of existing corporate entities to transfer the tax fraud proceeds for his own benefit and the benefit of other conspirators. In order to disguise the transfer of funds to his various entities, Mr Onley issued, or directed the issue of, false invoices. These included, for example, invoices purporting to evidence “staff and training services” provided by Brooklyn CrossQ to Uneek;

8. Whenever Mr Onley wanted to use the tax fraud proceeds for his own benefit, he engaged with the second tier company back-office conspirators and instructed them to make payments to one of his associated accounts;

9. Mr Onley arranged for the incorporation of Synep and its “purchase” of Plutus in an attempt to lend legitimacy to the enterprise and to devise an additional method of extracting tax fraud proceeds from the scheme;

10. Mr Onley was cautious in his communications with his co-conspirators showing irritation when his co-conspirators attempted to discuss aspects of the fraud with him over the telephone and only speaking freely offline when he thought he could not be detected; and

11. Mr Onley planned and discussed how the scheme could be concealed including the destruction of records and the removal of certain Plutus staff members.

121. The amount of money involved and the length of time over which the fraudulent offending occurred are significant relevant considerations when determining the objective seriousness and gravity of fraud-related offending: R v Hawkins (1989) 45 A Crim R 430. Here, the loss occasioned to the Commonwealth is $105,625,304.36.

122. Mr Onley was actively involved in both conspiracies for a period in excess of three years. This was a consistent and persistent demonstration of fraud over a significant period which is to be taken into account when considering the criminality of the offence: Hawkins at 435.

123. The objective seriousness of an offence may be aggravated where it was committed for financial reward: R v Kaldor [2004] NSWSCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee [2007] NSWCCA 234 at [32]. Mr Onley received a direct financial gain of not less than $4,697,585.56 into accounts he controlled, and that he used this money to acquire luxury houses, motor vehicles and goods. His motive was at all times financial reward. The offences were not committed out of need but out of greed. This increases the objective gravity of the offending DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [261]. Mr Onley accepts that the majority of his offending was motivated by a desire to accumulate wealth and display an image of wealth to the world. Mr Onley conceded he was motivated by “greed”. That acknowledgment is to his credit.

124. Mr Onley was an instigator or architect of these conspiracies and one of the primary financial beneficiaries. He was plainly a willing and active participant. While he attempted to keep at arm’s length from any exposure, Mr Onley, together with Mr Cranston, were the “controlling minds” of the second tier companies, which were critical to the success of both conspiracies. He was involved from the outset, for a substantial period in excess of three years.

125. Given the significant amount of tax loss caused and money laundered, which is at the upper range of offences dealt with by this Court, Mr Onley’s period of involvement, and what he actually did in furtherance of these conspiracies, his offending falls at the upper range of objective seriousness for offences of this kind.

126. The objective seriousness of Mr Onley’s offending is materially the same as Mr Cranston and Mr Anquetil. Whilst Mr Anquetil received a greater amount than Mr Onley from the fraud, Mr Onley and Mr Cranston (and not Mr Anquetil) were controllers of the second tier companies. The second tier companies were the principal instruments of the tax fraud conspiracy and the epicentre of the money laundering conspiracy. The objective seriousness of Mr Onley’s offending is slightly above Mr Menon, who in turn is slightly above Mr Kitson, and substantially above each of Mr Willmott, Ms Cranston and Ms Hammond.

127. I find the following expenditure was incurred by Mr Onley, using funds which should have been paid to the tax office:

1. Two properties at Vaucluse;

2. One property at St Kilda;

3. One property at Collingwood;

4. Three luxury motor vehicles;

5. A one-eighth share in a luxury boat; and

6. A luxury pen.

128. I reject the submission that Mr Onley relied on “legal advice” from Mr Menon. I am not satisfied that Mr Menon ever gave advice that a crime was not being committed. Nor am I satisfied that Mr Onley relied on any such advice. Nowhere in the extensive recordings does Mr Menon give anything like legal advice to the effect that paying a “percentage of tax in advance of the due date” was not criminal.

129. I accept that Mr Cranston kept secret certain information from Mr Onley, for example, that he had taken $1.4 million from Uneek to buy a property, and the amount of money being paid to Mr Rostankovski. Mr Onley sought to keep secret from Mr Cranston some of his financial dealings as well. This is not evidence of “restraint” on Mr Onley’s part but rather indicates that he was concerned about his co-conspirators not taking more than Mr Onley from the conspiracies.

Section 16A(2)(c) – if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct

130. Mr Onley’s conduct occurred over a period in excess of three years and it was not an isolated instance of offending but rather a persistent course of conduct which was not spontaneous or opportunistic. In R v Agius [2012] NSWSC 978; (2012) 87 ATR 528 at 541 [62], Simpson J found that the offenders in a conspiracy to defraud the Commonwealth, which included the filing of false income tax returns over a number of years, had engaged in a course of criminal conduct for the purposes of s 16A(2)(c). The same conclusion should be drawn here.

Section 16A(2)(e) – any injury, loss or damage resulting from the offence

131. Taxation fraud is a fraud on all other taxpayers. The Victorian Court of Appeal in DPP (Cth) v Goldberg [2001] VSCA 107; (2001) 48 ATR 549 at [32] said:

Tax evasion is not a game, or a victimless crime. It is a form of corruption and is, therefore, insidious. In the face of brazen tax evasion, honest citizens begin to doubt their own values and are tempted to do what they see others do with apparent impunity. At the very least, they are left with a legitimate sense of grievance, which is itself divisive. Tax evasion is not simply a matter of failing to pay one’s debt to government. It is theft, and tax evaders are thieves.

132. The injury suffered here is a collective financial injury and a loss of confidence in the efficacy and integrity of the taxation system. The conspiracy resulted in a significant loss to the Commonwealth in the sum of $105,625,304.36.

Section 16A(2)(f) – the degree to which the person has shown contrition for the offence

133. Although Mr Onley now, perhaps, in the report given by psychiatrist Dr Nielssen shows some limited insight into his offending, he has not demonstrated remorse following his conviction.

134. In Dr Nielssen’s report, Mr Onley is recorded as stating that “he had always complied with his tax obligations, and at the time of his arrest was in the process of lodging tax returns in which he said he declared that money as income”. In circumstances where Mr Onley controlled companies which deliberately did not pay over $100 million in taxes they should have paid, the suggestion that he had always complied with his taxation obligations must be rejected.

135. Mr Onley does not appear to understand or accept the gross violation of societal norms involved in dishonestly taking over $100 million of taxes which should have been available to spend by government on behalf of the community. That sum must now be recouped by cuts to government services or from increased taxes paid by other taxpayers, either now or in the future.

136. I am not satisfied that Mr Onley understands the magnitude of the crimes he has been convicted of committing, much less that he has shown contrition for the offending.

Section 16A(2)(h) – the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences

137. The willingness of an offender to facilitate the course of justice by making sensible admissions and conducting the defence of his or her case efficiently is able to be taken into account as cooperation: R v Doff [2005] NSWCCA 119.

138. Mr Johnson’s conduct of the trial was both co-operative and helpful and I record my gratitude to him and his client for that. I take into account in Mr Onley’s favour this important degree of co-operation in the conduct of the trial.

139. I also take into account in Mr Onley’s favour the “uncertain suspense” for Mr Onley created by the period of years between charge in 2017 and sentence in 2023: R v Todd [1982] 2 NSWLR 517; Sabra v R [2015] NSWCCA 38. The time taken was principally the product of the numerous delays brought about by the COVID-19 pandemic and the length of the trial itself. The understandable anxiety felt by Mr Onley about delays to which he did not contribute is taken into account in his favour here. In doing so, I also note the remarks of Bathurst CJ in Giourtalis v R [2013] NSWCCA 216 regarding the care that needs be taken in the extent to which delay is taken into account, particularly in a complex fraud case.

140. Mr Onley also relied on certain confidential evidence, the contents of which I will not set out here. I have, however, read and taken into account the confidential evidence and submissions. [redacted].

Sections 16A(2)(j) and 16A(2)(ja) – the deterrent effect that any sentence or order under consideration may have on the person or on other persons

141. The sentence imposed on the offender should encompass a significant component for general deterrence. General deterrence is a significant consideration when sentencing for offences involving fraud on the Commonwealth revenue. That is because taxation fraud is prevalent, easy to commit, difficult to detect and comes at a great cost to the community: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [63].

142. Sentences for tax fraud should in particular have both a significant deterrent and punitive effect, especially where the fraud is calculated, systematic and persists over a long period: R v Wright (1994) 74 A Crim R 152 at 157-160; R v Caradonna [2000] NSWCCA 398; 118 A Crim R 312 at 316.

143. In R v Gregory (2011) 34 VR 1; [2011] VSCA 145 at [53]-[54], the Victorian Court of Appeal emphasised the importance of general deterrence as a sentencing consideration in white collar crime for a number of reasons including:

1. To protect the revenue as taxation offences are not “particularly easy to detect and if undetected may produce great rewards”;

2. To have more profound effect on white collar criminals who are likely to be “rational, profit seeking individuals who can weight the benefits” of committing the crime against the costs of detection and punishment;

3. That white collar criminals are more likely to be first time offenders who fear the prospect of incarceration.

144. In R v Huston; R v Fox; R v Henke; ex parte Cth DPP (2011) 219 A Crim R 209; [2011] QCA 350 at [58], the Queensland Court of Appeal held that sentences in such cases must do more than pay lip service to the need for general deterrence. The Court held that the conspiracy to evade tax in that case was a form of corruption that has an “insidious corroding effect on society”.

145. The Court of Criminal Appeal has repeatedly emphasised that money laundering ought to be regarded as serious criminal activity: R v Jiao [2015] NSWCCA 95; (2015) 251 A Crim R 236 at [31]; Shi v R [2014] NSWCCA 276; (2014) 246 A Crim R 273 at [109]; R v Lin [2014] NSWCCA 254 at [63]; R v Ly [2014] NSWCCA 78; (2014) 241 A Crim R 192 at [86]; R v Huang [2007] NSWCCA 259; (2007) 174 A Crim R 370 at [36]. Such conduct is vital to the success of predicate criminal offences and prevents the recovery of funds even if the predicate offence is detected: Shi at [109]; Huang at [36].

146. Money laundering itself is also difficult to detect, investigate and prosecute, making general deterrence a significant factor when sentencing for such offences: Jiao at [31]; Almada v R [2015] NSWCCA 19 at [37]; R v Guo; R v Qian [2010] NSWCCA 170; (2010) 201 A Crim R 403 at 418 [91]; R v Viana [2008] NSWCCA 188 at [37].

147. Here general deterrence is a key consideration in the sentence I will impose for each offence.

148. I accept, given Mr Onley’s age and the length of the sentence I will impose, that specific deterrence is of lesser importance, but specific deterrence is nonetheless relevant.

Section 16A(2)(k) – the need to ensure that the person is adequately punished for the offence

149. The courts have recognised on many occasions that revenue fraud is prevalent and serious and that it is the community’s expectation that it must be met with condign punishment. Money laundering is a serious criminal activity that also deserves significant punishment: Huang at 36; Ly.

150. Sentences for both tax evasion and money laundering should have a deterrent and punitive effect, especially in cases where the fraud is calculated and systematic and has persisted for some time: Wright at 157-160; Cardonna at 316.

151. Those who systematically defraud the revenue over a long period should expect a substantial custodial sentence and the “deterrent and punitive effects of that sentence should not be unduly diminished by allowing release from custody at an unduly early stage”.

152. The rationale underlying such principles is that offences of this nature are difficult to detect since the taxation system is based upon self-assessment and taxpayer honesty. In Director of Public Prosecutions v Hamman (NSWCCA, unreported, 1 December 1998) at 30 it was pointed out that the Australian system of tax collection depends particularly on the honest declaration of income by taxpayers. These statements are equally applicable to this case involving the non-remittance of PAYGW and GST, since both rely on self-assessment and the honesty of those required to remit the relevant taxes.

153. The Victorian Court of Appeal in Gregory said:

A sentence imposed for fraud upon the taxation revenue, is intended to reaffirm basic community values that all citizens according to their means should fairly share the burden of incidence of taxation so as to enable government to provide for the community, that the revenue must accordingly be protected and that the offender should be censured through manifest denunciation.

154. The NSW Court of Criminal Appeal in Ly that the “serious criminal activity of money laundering warrants severe punishment not the least in order to reflect general deterrence of a very significant degree”.

155. Full time imprisonment is the only appropriate sentence for Mr Onley.

Section 16A(2)(m) and (n) – the character, antecedents, age, means and physical or mental condition of the person and the prospects of rehabilitation of the person

156. Mr Onley is 53 years of age and has no convictions.

157. Where the need for general deterrence is strong less weight will be given to good character. That, however, is of less significance as a mitigating factor in the face of systematic defrauding of revenue.

158. In R v El Rashid (NSWCCA, unreported, 7 April 1995) at 3 Gleeson CJ observed that white collar crime is rarely committed by people with a criminal history. In R v Rivkin [2004] NSWCCA 7; (2004) 184 FLR 365 at [410], the Court held that good character is of less significance since it is a factor which normally places the offender in a position whereby they can commit the offence. In R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24 at [74] the Court of Criminal Appeal held that good character may be of less significance where the offender’s character, lack of convictions, knowledge, qualifications or standing in their field facilitated or assisted in the commission of the offence.

159. I find that Mr Onley’s previous good character facilitated the commission of the offences, for example in assisting him in attracting legitimate clients to Plutus.

160. Good character also carries less weight here where Mr Onley’s offending consisted of a course of conduct over a long period: R v Smith (2000) 114 A Crim R 8 at [21]-[22]; Ly at [86].

161. I take into account the evidence of Mr Onley’s childhood trauma. I am prepared to accept that Mr Onley’s time in custody has given him insight into that trauma. It is possible that the trauma might be responsible for some of Mr Onley’s “risk taking behaviour”.

162. I do not accept that Mr Onley’s prospects of rehabilitation are good. At most “some insight” was shown in his psychiatric interview. Mr Onley does not appear to understand or accept the gravity of his offending conduct. I assess Mr Onley’s prospects of rehabilitation as only fair.

163. I accept Mr Onley’s evidence of poor health during his time in custody, resulting in several hospitalisations. His symptoms, which relate to a pre-existing blood clotting issue, were not apparent before his incarceration. I take that medical evidence into account.

164. I also take into account Mr Onley’s symptoms of depression, as described by Dr Nielssen, for which he was at one point prescribed antidepressants. According to Dr Nielssen, Mr Onley’s symptoms began in May 2016, but became severe only after he was charged with the present offences. I also take into account Mr Onley’s spinal degeneration and ongoing back and pelvic pain, caused by injuries he received while a professional snowboarder and for which he has received ongoing chiropractic treatment, as detailed in the letters from his chiropractor John de Voy. I take into account in Mr Onley’s favour that he is unlikely to receive the same frequency of chiropractic therapy while incarcerated.

165. I take into account the following character references:

1. Peter Onley, the offender’s father, described the offender as “a supportive father, husband and son” who “was a successful international sportsman and made the transition to be successful in business”. He stated that the offender appeared unwell to him in custody. He wrote that “Jason has apologised repeatedly for his actions and is extremely remorseful for the pain inflicted on all those affected by his actions”.

2. Michelle Onley, the offender’s sister, described the offender as “a knowledgeable and calming influence on [her] life” who “continues to provide support and guidance” to her. She stated that Mr Onley “has always led a positive and motivated lifestyle” as demonstrated by his sporting achievements and his career, and expressed concerns about him missing the teenage years of his daughter, nieces and nephews. She said that the offender “has expressed his deepest regrets to me about the offences, particularly the grave repercussion for his family”.

3. Christopher Finn, a practising solicitor and friend of the offender’s parents, stated that they came from “poor beginnings” and worked hard to give the offender a good education and upbringing. He stated that “What has occurred with Jason, to me, seems to be totally out of character and I know personally that Jason has absolute remorse for what he has done”. Mr Finn believes that Mr Onley “has the ability to prove himself in becoming again a valued member of society”.

4. Danny Doff, a friend of Mr Onley, described him as “an extremely loyal, trustworthy, forthright and respectful individual”. He described Mr Onley as having loving relationships with his wife and daughter. He said he believes that Mr Onley “is still a good member of this community”.

5. Lynne Jeffery, a friend of the offender’s parents, described “watching Jason grow up to be a respectful, caring and honest family man”. She said that he “has an extreme love and loyalty for all [his] family and friends”. She believes that Mr Onley “so very much regrets his actions” and that his good character and traits will ensure that he will not offend again.

6. Gerry Nass, a friend of the offender, described him as “a person of unparalleled integrity, unwavering loyalty, and genuine compassion” with a “commitment to honesty, fairness, and respect for others”. He stated that Mr Onley has “demonstrated remarkable dedication and excellence in his professional and sporting pursuits”.

166. I take all of these matters into account in Mr Onley’s favour.

Section 16A(2)(p) – the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants

167. Where sentencing for offences such as tax fraud where general deterrence is of particular importance, the personal circumstances of an offender, including the effect of the sentence on their family or dependants, may attract somewhat less weight than they otherwise would: Totaan v The Queen [2022] NSWCCA 75 at [109].

168. Taking account of the effect of a sentence on an offender’s family cannot displace the requirement that the sentence imposed is of a severity appropriate in all the circumstances. In AE v R [2023] NSWCCA 74, Wilson J (Button and N Adams JJ agreeing) held:

[54] The additional evidence of the impact of the sentence upon family members is not such as to attract an even greater mitigatory benefit than that allowed at first instance. The situations respectively of the applicant’s youngest child and his sister cannot result in a sentence that breaches the statutory requirement that the sentence imposed is of a severity appropriate in all the circumstances. Those circumstances include the very serious nature of the offence, committed by an intelligent individual who was in a financially and socially privileged position in society and who, in blaming others for his crime, appears to have limited insight into his offending, and its potential consequences, which go well beyond the impact upon him and his family…

169. I accept Mr Onley’s submission that his incarceration will be “burdensome” to his wife and 10-year-old daughter. Sadly, Mr Onley’s wife is now uninterested in assisting him and it is unclear whether she will allow Mr Onley access to his daughter. I take these matters into account in Mr Onley’s favour.

170. While I take hardship to Mr Onley’s family and dependants into account, the sentence, including the non-parole period, imposed must be of a severity appropriate in all the circumstances. To paraphrase Wilson J in AE, those circumstances include the very serious nature of the offences, committed by a person who was in a financially and socially privileged position in society and who appears to have limited insight into his offending and its potential consequences, which go vastly beyond the impact upon him and his family.

Relevant cases and parity

171. In Hili the High Court reiterated that consistency in federal sentencing is achieved with regard to what has been done in other cases through the work of the intermediate courts of appeal. Some of the cases which at a very high level are relevant here are:

1. Dickson v R [2016] NSWCCA 105. In that case the offender was found guilty following a trial of two serious offences. Count 1 related to a complex tax fraud with net losses to the Commonwealth in excess of $100 million. The other count related to money laundering of over $63 million. The offender’s personal gain was found to be $19,616,996.37. The offending occurred over a period of about six years. Mr Dickson was originally sentenced by Beech-Jones J to 11 years imprisonment with a non-parole period of seven years (see R v Anthony James Dickson (No 18) [2015] NSWSC 268) but was later re-sentenced following a Crown sentence appeal by the Court of Criminal Appeal to a total effective term of 14 years imprisonment with a non-parole period of nine years and three months (see Dickson v R [2016] NSWCCA 105).

2. R v Issakidis [2018] NSWSC 378. This case involved Mr Dickson’s co-conspirator. Mr Issakidis’ personal gain was approximately $15,738,020. Like Mr Dickson he faced two serious charges. A single non-parole period of 7 years and 6 months was imposed. Mr Issakidis’ conviction-only appeal was dismissed by the Court of Criminal Appeal: Issakidis v The Queen [2019] NSWCCA 302.

3. R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370. In that case the offender pleaded guilty to one offence in contravention of s 400.3(1) of the Criminal Code. The loss to the Commonwealth was $3,088,311 and Mr Huang’s total financial benefit was $30,000. Mr Huang was imprisoned for 5.5 years with a non-parole period of 3 years and 4 months. The Court allowed a total reduction of 50% in the sentence due to Mr Huang’s plea of guilty, contrition and past and future assistance.

172. The most significant sentences I have taken into account are those imposed on Mr Onley’s co-conspirators.

173. In R v Hammond [2020] NSWSC 888, I sentenced Ms Hammond for her role in the tax fraud scheme and the money laundering scheme. Ms Hammond pleaded guilty to the same two counts as Mr Onley faced. Ms Hammond had and knew she had a central role in the scheme, even though she operated on instructions from the principal conspirators. The indicative sentences imposed on Ms Hammond were six years for the money laundering offence and four years for the tax fraud offence. Ms Hammond received considerable discounts. The aggregate sentence imposed, but for those discounts, was eight years and a non-parole period of 5 years.

174. In R v Lauren Cranston [2023] NSWSC 454, I concluded that Ms Cranston’s role in the conspiracies, whilst different in some respects to Ms Hammond’s was, in all material respects, virtually the same. I imposed an effective head sentence on Ms Cranston of eight years with a single non-parole period of five years.

175. In R v Patrick Willmott [2023] NSWSC 474, I sentenced Mr Onley’s co-offender, Patrick Willmott, for the same two offences of which Mr Onley has been found guilty. Mr Willmott had a prominent role in managing the conspiracies’ “back office” operations. I found the objective seriousness of his offending was above that of Ms Lauren Cranston and Ms Hammond, but well below the schemes’ principal architects, including Mr Cranston, Mr Larcombe and Mr Onley himself. For his tax fraud offending, I imposed on Mr Willmott a 5 year term of imprisonment, and for his money laundering, a term of imprisonment of 7 years. These sentences were partly cumulative to create an effective 9 year head sentence, with a single six year non-parole period.

176. In R v Dev Menon [2023] NSWSC 768, I sentenced another of Mr Onley’s co-offenders, Dev Menon, again for the same two offences. I found that Mr Menon came to the conspiracies later than Mr Onley, Mr Cranston and Mr Anquetil and that, unlike them, he was not motivated by greed. However, Mr Menon abused his position of trust as a solicitor and his role in the conspiracies was, by the end, significant. I found that his culpability was below, but only slightly below, that of Mr Onley and Mr Cranston. For the tax fraud offending, I imposed a sentence of 8 years and 6 months, and for the money laundering, 12 years. The sentences were partly cumulative, which created a notional head sentence of 14 years, with a non-parole period of 9 years.

177. I have closely considered the sentence I imposed on Mr Anquetil: R v Anquetil [2020] NSWSC 995. Mr Anquetil pleaded guilty to the tax fraud conspiracy and to dealing with $28,192,805.20 as part of the money laundering conspiracy. He also asked that his dealing in the proceeds of crime via the payment of the blackmail monies, in an amount of $24,244,760.64, be taken into account pursuant to s 16BA of the Crimes Act. For the tax fraud offence, the starting point was nine years and four months imprisonment. For the money laundering offence, the starting point was 12 years imprisonment. Mr Anquetil, like Mr Onley, was one of the principal architects of the conspiracies. However, unlike Mr Onley, Mr Anquetil was not involved in controlling the second tier companies. In laundering the money involved, Mr Anquetil incorporated various entities and falsified documents. In relation to the money laundering conspiracy, Mr Anquetil pleaded guilty to dealing with $28,192,805.20. His personal gain was at least $12,218,148.55.

178. Finally, I have also taken into account the sentence I imposed this morning on Mr Onley’s co-offender Adam Cranston: R v Adam Cranston [2023] NSWSC 1004. Mr Cranston was, again, convicted of the same two offences as Mr Onley and the financial gain he obtained from the conspiracies was not less than $6,861,782.17. For the tax fraud offence, I imposed a sentence of 9 years’ imprisonment, and for the money laundering offence, 12 years’ imprisonment. I imposed a three year period of accumulation and Mr Cranston’s effective head sentence was 15 years. I fixed a non-parole period of 10 years.

179. In relation to parity, I find:

1. Mr Onley’s culpability was substantially higher than that of Ms Hammond and Ms Cranston, both of whose offending was towards the bottom end of the conspiracy;

2. Mr Onley’s degree of culpability should be regarded as higher than Mr Kitson’s, the seriousness of whose offending was “slightly below” the architects;

3. Mr Onley’s culpability was substantially higher than that of Mr Willmott. That was because Mr Onley;

1. was involved in the conspiracies for longer;

2. was one of the instigators and architects of the conspiracies and operated at the apex of the hierarchy of the conspiracies;

3. was significantly more involved in efforts to conceal the fraud; and

1. received far more financial benefit than Mr Willmott.

4. Mr Onley’s culpability was slightly higher than that of Mr Menon, because unlike Mr Menon, he was involved in the conspiracies from their beginning and because he was chiefly motivated by greed. On the other hand, unlike Mr Menon, Mr Onley did not abuse his professional status and reputation as a solicitor in committing the offences.

180. It is wrong to characterise Mr Onley’s culpability as below that of Mr Cranston. Little turned on the differences between the pair’s financial benefit:

1. Mr Onley’s benefit was approximately 68% of Mr Cranston’s. In the context of the overall scheme, this was not a significant difference.

2. In November 2016 Mr Onley was “ahead” of Mr Cranston in terms of financial benefit by about $1.5 million.

3. The fact Mr Cranston happened to have extracted more money from the scheme at the date of arrest did not really reflect a difference between his role and Mr Onley’s.

181. Further, Mr Cranston and Mr Onley had similar authority within the conspiracies:

1. They were paid the same fee: $10,384 per week; and

2. In November 2016, when it was alleged that the second tier companies had made processing mistakes, Mr Cranston told Lauren Cranston that if there were more mistakes “Jay will bring his team in and kick you and Dev out, right, and then I will lose all fuckin’ control”.

182. I reject Mr Onley’s submission that I should not find that his culpability was at the level of Mr Anquetil in the conspiracies. That was because:

1. While Mr Onley’s proven financial benefit was less substantial than that of Mr Anquetil, it is not correct that there is a linear relationship between proven benefit and parity;

2. Mr Onley’s period of involvement was for the same period; and

3. Mr Onley was a principal controller of the second tier companies throughout and Mr Anquetil had no role in those companies. The second tier companies were, as I have said, the epicentre of the tax fraud and money laundering conspiracies. Whilst ultimately Mr Anquetil was shown to have benefited in a greater amount than Mr Onley, Mr Onley’s more significant role in the abuse of the corporate form and manipulation of straw directors was more serious than Mr Anquetil’s role.

183. As a result of weighing all relevant matters, many of which point in different directions, I find that Mr Onley’s role in the conspiracies was essentially at the same level as Mr Anquetil and his culpability is indistinguishable.

Conclusion and sentence

184. I find that Mr Onley’s role was at the apex of the conspiracies. Having regard to all of the matters I have found, I have determined that the appropriate sentences to be imposed on Mr Onley are 9 years’ imprisonment for the tax fraud conspiracy and 12 years’ imprisonment for the money laundering conspiracy.

185. I have given consideration to the principle of totality as explained by the High Court in Pearce v R (1988) 194 CLR 610; see also Dickson v R [2016] NSWCCA 105 and Dickson (No 18) [2015] NSWSC 268. In Mr Anquetil’s case I would have imposed a notional three year period of accumulation and for Mr Cranston I imposed a three year period of accumulation.

186. I have determined that in Mr Onley’s case there should be a degree of accumulation between the sentences imposed here for the two counts sufficient to reflect the separate serious criminality involved. The degree of accumulation should be three years, the same as the accumulation imposed for Mr Cranston and notional accumulation imposed for Mr Anquetil. This gives rise to an effective head sentence of 15 years.

187. Under s 19AB of the Crimes Act 1914 (Cth), I impose a single non-parole period for both offences of 10 years. This sentence is of a severity appropriate for the offences and provides a minimum period that Mr Onley must spend in custody appropriate to all the relevant elements of punishment, including rehabilitation, the objective seriousness of his offences and his subjective circumstances, including his family circumstances.

Orders

188. Having regard to all of the matters identified in these reasons, I make the following orders:

1. Mr Onley is sentenced to a term of imprisonment of 9 years to commence on 6 March 2023 and expire on 5 March 2032 for the tax fraud conspiracy;

2. Mr Onley is sentenced to a term of imprisonment of 12 years to commence on 6 March 2026 and expire on 5 March 2038 for the money laundering conspiracy;

3. Under s 19AB of the Crimes Act 1914 (Cth) a single non-parole period of 10 years commencing on 6 March 2023 is fixed;

4. The offender is first eligible for parole on 5 March 2033.

189. I am required by s 16F of the Crimes Act to explain the sentences I have imposed. I have imposed an effective head sentence of 15 years imprisonment commencing on 6 March 2023 and expiring on 5 March 2038. As required by the Crimes Act, I have fixed a single non-parole period for both offences. The single non-parole period is a term of 10 years, also commencing 6 March 2023. That means that Mr Onley will be imprisoned for not less than 10 years. If he is granted parole at the end of that time, or before the expiration of the head sentence for the money laundering conspiracy, he will serve the balance of the sentence in the community. If he is granted parole, the order will be subject to conditions determined by the relevant federal parole authority and may be amended or revoked. If he fails, without reasonable excuse, to comply with the conditions of his parole, his parole may be revoked and he may be taken back into custody to serve the remainder of his head sentence

**********

Decision last updated: 23 August 2023