R v Patrick Willmott

[2023] NSWSC 474

Supreme Court

New South Wales

Medium Neutral Citation:

R v Patrick Willmott [2023] NSWSC 474

Hearing dates:

4 May 2023

Date of orders:

5 May 2023

Decision date:

05 May 2023

Jurisdiction:

Common Law - Criminal

Before:

Payne JA

Decision:

(1) Mr Willmott is sentenced to a term of imprisonment of 5 years to commence on 21 March 2023 and expire on 20 March 2028 for the tax fraud conspiracy;

(2) Mr Willmott is sentenced to a term of imprisonment of 7 years to commence on 21 March 2025 and expire on 20 March 2032 for the money laundering conspiracy;

(3) Under s 19AB of the Crimes Act 1914 (Cth) a single non-parole period of 6 years commencing on 21 March 2023 is fixed;

(4) The offender is first eligible for parole on 20 March 2029.

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

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

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

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

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

Ha v R [2008] NSWCCA 141

Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45

Issakidis v The Queen [2019] NSWCCA 302

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

R v Anquetil [2020] NSWSC 995

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

R v Doff [2005] NSWCCA 119

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

R v Hammond [2020] NSWSC 888

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

R v Huston; R v Fox; R v Henke; ex parte Cth DPP [2011] QCA 350; 219 A Crim R 209

R v Isaacs (1997) 41 NSWLR 374 at 378

R v Issakidis [2018] NSWSC 378

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

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

R v Kitson [2019] NSWSC 1109

R v Lauren Cranston [2023] NSWSC 454

R v Lee [2007] NSWCCA 234

R v Lin [2014] NSWCCA 254

R v Nguyen [2010] NSWCCA 331

R v O’Leary (District Court (NSW), 4 June 2020, unrep)

R v Paul (District Court (NSW), 21 February 2020, unrep)

R v Todd [1982] 2 NSWLR 517

Sabra v R [2015] NSWCCA 38

Savvas v The Queen (1995) 183 CLR 1

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

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

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

Totaan v R [2022] NSWCCA 75

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

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

Category:

Sentence

Parties:

Rex (Crown)
Patrick John Willmott (Offender)

Representation:

Counsel:
P McGuire SC with J Paingakulam and C Tran (Crown)
L Brasch (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
The Defenders (Offender)

File Number(s):

2020/115291

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 Patrick Wilmott, together with Messrs Adam Cranston, Jason Onley, Dev Menon and Ms Lauren Cranston, was arraigned before a jury on the following counts:

1. 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).

2. 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 21 March 2023, the jury returned verdicts of guilty on both counts. On 21 March 2023, Mr Willmott’s bail was revoked and he was remanded in custody.

3. The maximum penalty for the offence under s 135.4(3) of the Criminal Code is imprisonment for 10 years and/or a fine of $108,000. The maximum penalty for the offence under ss 11.5(1) and 400.3(1) of the Criminal Code is imprisonment for 25 years, and/or a fine of $270,000.

4. 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 (1997) 41 NSWLR 374 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.

5. The following evidence was led in the sentence proceedings:

1. The Crown relied on:

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.

2. The Crown also relied on all of the evidence given in the trial.

2. The offender relied on:

1. A report dated 18 April 2023 by clinical psychologist Mr Borenstein;

2. A letter to the Court dated 17 April 2023 written by the offender;

3. An affidavit affirmed on 17 April 2023 by Sue Willmott, the offender’s mother;

4. character references in the form of:

1. a letter to the Court dated 18 April 2023 from Greg Willmott, the offender's older brother;

2. a letter to the Court dated 19 April 2023 from Betty Roche, the offender’s grandmother;

3. a letter to the Court dated 20 April 2023 from Jessica Kinslow, the offender’s sister;

4. a letter to the Court dated 7 April 2023 from Rebecca Jefferis, the offender’s partner;

5. a letter to the Court dated 18 April 2023 from Luke Edmonds, a friend of the offender;

6. a letter to the Court dated 19 April 2023 from Luciana Murphy, a friend of the offender;

7. a letter to the Court dated 9 April 2023 from Stephanie Lee, a friend of the offender;

8. a letter to the Court dated 20 April 2023 from Tiana Canham, the offender’s step-sister.

5. a letter to the Court dated 23 April 2023 from John Au-Yeung, Principal at JAY Legal, who acts for the offender in unrelated civil proceedings;

6. a letter to the Court dated 14 April 2023 from Christine Theodorou, solicitor at Hopkin Murray Beskine, who acts for the offender in unrelated proceedings.

6. I have taken into account all the material relied upon by the parties on sentence and will refer to it where appropriate.

Relevant facts

7. For the purposes of sentencing, the facts identified are found in accordance with the principles I have outlined above.

8. 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 a number 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).

9. 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.

10. 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.

11. The offender was not involved in the initial planning and set up of Plutus or the conspiracies. The architects of the scheme were Jason Onley, Adam Cranston, Peter Larcombe and Simon Anquetil. Later, Dev Menon was a significant participant in the conspiracies. Joshua Kitson was a significant participant in the tax fraud conspiracy.

12. By April 2014, the offender was working for Aventis Partners Pty Ltd, a company controlled by three of the principal conspirators, Messrs Adam Cranston, Onley and Larcombe and managing the apparently unrelated Plutus subcontracting company, Keystone, and was involved in processing Plutus’ first “trial pay run”. As I will explain, I find that the offender was knowingly involved in both conspiracies from the time of the first Plutus trial pay run in April 2014.

The tax fraud conspiracy

13. Between February and March 2014, at least five of the conspirators, Messrs Onley, Adam Cranston, Anquetil, Kitson and Peter 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. Mr Willmott did not participate in these meetings and there is no evidence that he knew of these meetings.

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 client companies 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 2nd tier companies). The conspirators then processed the relevant payments through these companies. The conspirators arranged for vulnerable and unsophisticated people who did not understand the operations of the 2nd tier companies to be appointed as sole shareholders and directors of the 2nd tier companies. The conspirators then arranged for apparently unrelated third parties to "manage" the 2nd tier directors. In the period from mid-2015 to mid-2016, that role was filled by Mr Simon McIntyre. Mr McIntyre, under the direction of Messrs Adam Cranston, Larcombe, Onley and Willmott, was responsible for recruiting and managing the directors of the 2nd tier companies and ensuring they had no unsupervised involvement in the operations of those companies. I reject Mr Brasch’s submission that the offender did not supervise Mr McIntyre. I accept from Ms Hammond’s evidence and from her depiction at Exhibit D55 in the trial that he did.

3. In the period from mid-2016 to February 2017, Mr Daniel Rostankovski, under the direction of Messrs Adam Cranston, Menon and Onley, became responsible for recruiting and managing the directors of the 2nd 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 2nd tier companies or as “bookkeepers” assisting the directors in email communications.

4. In the period April 2014 to February 2015, Ms Cranston and Mr Willmott were principally involved in the operation of the 2nd tier companies’ accounts from a “back office”, at the instruction of Messrs Onley, Larcombe and Adam Cranston. I reject the submission that Mr Larcombe, rather than Mr Willmott, was the day-to-day manager of the Omni payroll business at any time. I accept [redacted] evidence that at about the time of a meeting with Mr Larcombe and the other principal conspirators on 22 April 2014 Mr Anquetil was introduced to Mr Willmott and told, in Mr Willmott’s presence, that Mr Willmott was a friend of Adam Cranston’s who would be running the 2nd tier companies and that he was someone with relevant experience in running labour hire companies. (Trial transcript 643). I find that Mr Wilmott was Ms Cranston’s supervisor during this period. The offender’s Christmas 2014 email (sent as “Group CFO”) makes clear that Mr Willmott was the senior person in the Omni payroll office.

5. In the period from February 2015 to May 2016, Ms Hammond and Mr Willmott were principally involved in the operation of the 2nd tier companies’ accounts from this “back office”, at the instruction of Messrs Onley, Larcombe, Adam Cranston and later, Mr Menon. I accept Ms Hammond’s evidence, depicted in Trial Exhibit D55, that Mr Willmott was her superior, reporting to Mr Cranston, Mr Onley and Mr Larcombe and that Mr Willmott was also supervising Ms Cranston and Mr McIntyre during this time.

6. 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.

7. In May 2016, Mr Willmott was dismissed from involvement with Aventis and the 2nd tier companies by Mr Adam Cranston, in circumstances I will describe later in these reasons.

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 2nd tier companies.

9. Mr Willmott was recorded in three conversations by the AFP. Two were recorded on 20 February 2017 and 3 March 2017, in which he and Messrs Menon and Adam Cranston agreed on methods to conceal the conspiracies. Another was recorded on 7 October 2016 between Mr Wilmott and Mr Menon.

10. 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 2nd tier companies. This is because the subcontracting arrangement was a mechanism designed by the conspirators to misappropriate amounts Plutus was obliged to pay the ATO. While the 2nd tier companies would pay the contractors and employees of the legitimate companies amounts representing their net wages and superannuation, the 2nd tier companies would, from the very beginning, not remit all 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 2nd tier companies and not paid to the ATO but distributed according to the instructions of the conspirators.

11. The 2nd tier companies paid the amounts which should have been paid to the ATO to other entities controlled by Messrs Onley, Larcombe, Adam Cranston and Anquetil, often as payments of fabricated “invoices”, as well as to individuals including the conspirators. The 2nd tier companies in some cases made payments back to Plutus. Over time the liabilities of the 2nd 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 2nd tier companies to the ATO and the extent to which the 2nd tier companies fell further and further behind in their tax payment obligations.

12. 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 2nd tier companies (the Plutus cut). I accept [redacted] evidence that the manual process implementing the Plutus cut commenced in March 2016. It is correct, however, as Mr Brasch submits, that the automated Plutus cut did not commence until the latter part of 2016, after Mr Willmott had been dismissed by Mr Adam Cranston. The Plutus cut was also used to make payments of PAYGW and GST, not to the ATO, but for lavish personal items at the direction of the conspirators.

13. 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 controlled by Messrs Cranston and Onley, Synep Ltd (Synep). Payments were made from Synep for lavish personal expenditure on behalf of the principal conspirators.

14. Mr Menon was an accountant and a lawyer. He was a partner at Clamenz Lawyers (Clamenz) which was initially located in the same building as Plutus. From mid-2016, Mr Menon was actively involved in ensuring that the subcontracting arrangement and front office facade was maintained and the back office dealings of the 2nd tier companies were not exposed.

1. While Plutus lodged Business Activity Statements (BASs), throughout the period of the tax fraud conspiracy, the 2nd tier companies either lodged their BASs late (up to 13 months late) or did not lodge a BAS at all.

16. There were eight 2nd 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

6. PP Services (WA) Pty Ltd

7. PPA (SA) Pty Ltd

8. PPA NT Pty Ltd

17. Companies (4) to (8) are referred to as the PP Companies. Mr Willmott was involved in managing Keystone, Uneek and Sonar from April 2014 until May 2016. He was not involved with the PP companies.

18. 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 which the conspiracies spanned.

19. 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 2nd tier companies’ accounts. After 24 January 2017, Plutus managed its obligations to its legitimate clients by paying salary, wages and superannuation directly from Plutus.

20. Between January and May 2017, a number of discussions between the conspirators were recorded by surveillance devices installed at Clamenz, at the MLC Centre in Martin Place, Sydney. During these discussions, the conspirators spoke in explicit terms about the fraud, including its history, key features, how it was implemented and the conspirators’ respective involvement and financial gains. In circumstances I will later explain, Mr Wilmott attended meetings on 20 February 2017 and 3 March 2017.

21. On 1 February 2017, at Clamenz, Mr Rostankovski issued the principal conspirators with a blackmail demand for $5 million. Mr Rostankovski threatened media exposure of the fraud 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. Although Mr Willmott was apparently told about the blackmail demand, he played no role in relation to paying the blackmail demand.

22. 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 on 17 and 18 May 2017.

The money laundering conspiracy

23. The conspirators agreed 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.

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

1. The PAYGW and GST amounts withheld by the 2nd tier companies by the “back office” were transferred to a number of entities’ accounts, controlled by and associated with, in particular, Messrs Adam Cranston, Onley and 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, in particular Messrs Adam Cranston, Onley, Larcombe and Menon.

2. Some of the PAYGW and GST which should have been paid to the ATO was also transferred by the 2nd 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.

3. From at least October to December 2014 large sums of PAYG and GST amounts which should have been paid to the ATO were transferred by the 2nd 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. As I will explain, it is clear that Mr Willmott was knowingly involved in this period making payments of PAYG and GST to MMG rather than the ATO.

4. From 1 July 2016, after Mr Wilmott had been dismissed by Mr Adam Cranston the Plutus cut was transferred through Synep which became the parent company of Plutus, and other entities, for the benefit of (at least) Messrs Onley, Adam Cranston and Anquetil.

25. The main financial beneficiaries of the money laundering conspiracy were Messrs Adam Cranston, Onley and Anquetil. The tracing of the proceeds of the money laundering conspiracy from Keystone and Uneek to the LWPW Services Account for the benefit of Mr Willmott is at Annexure 3 to these reasons (Diagram 48 of Trial Exhibit LL). Annexure 4 to these reasons shows the tracing of funds which should have been paid to the ATO from Plutus to the Laura and Patrick Willmott account (Diagram 49 of Trial Exhibit LL). Annexure 5 to these reasons shows the tracing of funds which should have been paid to the ATO from Plutus to a deposit on a unit in the ACT for the benefit of Mr Willmott (Diagram 50 of Trial Exhibit LL).

Mr Willmott’s participation in the conspiracies

26. Mr Willmott was not involved in the initial planning and set up of Plutus. The principal conspirators, Messrs Adam Cranston, Anquetil, Onley and Larcombe were architects of the scheme. Mr Kitson and later Mr Menon were also heavily involved in these stages and the evolution of the scheme.

27. Mr Willmott was however closely involved in both conspiracies from April 2014. I find that Mr Willmott knowingly participated in the conspiracies from the time of the first Plutus “trial pay run” in April 2014. Mr Willmott was responsible for, and senior to Ms Cranston in, the daily operation of the 2nd tier companies in furtherance of the tax fraud and money laundering conspiracies from April 2014. In February 2015, Ms Hammond was recruited by Mr Willmott, who then trained her with respect to the operations of the 2nd tier companies Keystone and later Uneek and Sonar. Ms Hammond was then a vulnerable 21 year old without a professional background who Mr Willmott knowingly put in a role carrying out the day-to-day tasks necessary for the continued operation of the conspiracies.

28. When Plutus first began to operate, Mr Willmott was the day-to-day manager of the 2nd tier companies. In particular, he managed the payments processed by Keystone. By early May 2014, the offender was communicating with Mr Larcombe (who passed on his suggestion to Mr Anquetil) about the details of the payroll processing and suggesting improvements. I accept [redacted] evidence that he never concealed any part of the fraud from Mr Willmott. Keystone was central to the tax fraud conspiracy in its initial phase because it was then the sole 2nd tier company used by Plutus. Keystone was used to process the trial pay run for ESG and Mr Willmott created the payslips. Mr Willmott was involved in the granular detail of payroll processing from the time of the ESG trial pay run and knew the precise amount that should have been paid to the tax office. Mr Willmott did not pay that sum to the ATO. Mr Willmott continued to create payslips for Plutus, using WageEasy until such time as Plutus moved to using KeyPay. Mr Willmott was responsible for the processing of the pays for Plutus contractors, either directly or by supervising Ms Cranston as she processed them.

29. Keystone had a tax liability in excess of $4 million ($6 million once interest was added) when it was placed in voluntary liquidation. Keystone only ever paid $110,000 in tax. Although Mr Willmott had been dismissed by Mr Adam Cranston by the time Keystone was eventually placed into liquidation, I find that he was party to the agreement that Keystone would be liquidated owing large tax debts. Mr Willmott oversaw a year of Keystone’s operations and knew that virtually no tax had been paid, whilst millions of dollars should have been paid to the ATO. Mr Willmott was privy to the Recipient Created Tax Invoices (RCTIs), payment summaries and invoices received from Plutus which identified with precision how much PAYG and GST was required to be paid to the ATO. In circumstances where huge tax debts were being incurred and virtually no payments were being made, the liquidation of Keystone was a known and intended consequence of the conspiracies. Mr Willmott knew about the replacement for the purpose of the conspiracies of Keystone by Uneek and Sonar, as he explained the new structure to Ms Hammond. Mr Willmott received money from the Keystone bank account and knew that it was not used after the second half of 2015. Mr Willmott then began receiving money from the Uneek bank account.

30. Mr Willmott demonstrated a willingness to be a part of the tax fraud conspiracy in the period April 2014 to May 2016. Mr Willmott assumed a central role in the conspiracies from April 2014, when Mr Anquetil gave Mr Willmott’s name to Mr Kitson in the course of an exchange between them concerning the establishment of the scheme. Whilst it may be correct, as Mr Brasch submitted, that this evidence, by itself, proves only that the principal conspirators planned for Mr Willmott to have this central role from the beginning, taken together with all of the evidence I am satisfied that Mr Willmott was the effective Chief Financial Officer of the 2nd tier companies from April 2014. As I have said, I accept [redacted] evidence that in April 2014 he was introduced to Mr Willmott by the principal conspirators as the person who would be “running” the 2nd tier companies. By Christmas 2014 the offender was using the title “Group CFO” in his email signature block and was communicating with all Aventis and Omni payroll staff in that role.

31. After February 2015, when Ms Hammond was engaged, Mr Willmott instructed Ms Hammond how much money was to be paid to the ATO. I find that the amount of tax paid by the 2nd tier companies during the period of Mr Willmott’s stewardship was only a tiny amount compared to what should have been paid to the ATO. Mr Willmott instructed Ms Hammond to maintain a spreadsheet which showed how much tax should be paid and recorded payments which had been made by the 2nd tier companies to the ATO and third parties. I accept Ms Hammond’s evidence that she gave this spreadsheet to Mr Wilmott and saw him take the spreadsheet into meetings with the Aventis principals Messrs Adam Cranston, Onley and Larcombe.

32. Mr Willmott obtained Michelle Dubois’ personal details as a result of their dealings over a company called Gazmak Transport, after Ms Dubois’ husband had died. Ms Dubois had been referred to Mr Willmott by an accountant, apparently by reason of Mr Willmott’s experience in corporate reconstruction. I find that Ms Dubois went to a lawyer’s office in Circular Quay where she met with Mr Menon and signed some documents that she did not read. Following that, Ms Dubois met Mr Willmott at a Commonwealth Bank branch in the city, where she signed more documents. Mr Willmott gave her $50 for petrol.

33. Ms Dubois was appointed as a director of Uneek for a one month in April and May 2016. Whilst Mr Willmott’s precise role in the appointment of Ms Dubois as a director is unclear, what is clear is that Mr Willmott provided the personal and confidential details of a vulnerable person who had been referred to him for assistance following the death of her husband to the principal conspirators allowing them to appoint Ms Dubois as a director in name only of a company he and his co-conspirators were using to defraud the tax office. Mr Willmott, given his role in managing the day-to-day operations of the 2nd tier companies plainly knew that Ms Dubois had been appointed as a director. I find that Mr Willmott knew Ms Dubois had no idea whatever about the business of Uneek, much less any control over its operations. I find that Mr Willmott provided Ms Dubois’ details to his co-conspirators knowing that the appointment of Ms Dubois as a director would hide the true involvement of the principal conspirators in controlling the 2nd tier companies and knowing that Ms Dubois would be vulnerable to being pursued by the ATO for enormous tax debts being accrued by the 2nd tier companies.

34. Mr Willmott supervised Mr McIntyre, who at that stage was managing and paying the straw directors and directed that payments be made to him. I find that cash payments made by Mr Willmott to Mr McIntyre were to pay Mr McIntyre so that Mr McIntyre could supervise and pay the straw directors. I find that Mr McIntyre would personally deliver to Mr Willmott bank tokens, ATM cards, bank statements and other documents addressed to the 2nd tier directors necessary for the operation of 2nd tier companies in the conspiracies.

35. Mr Willmott was well aware that the named directors were not managing Keystone, Uneek and Sonar or involved at all in those companies. Mr Willmott personally took Damien Spencer, another straw director for Uneek, to the bank to close an account on one occasion.

36. Mr Willmott’s knowledge of the fact that taxes which should have been paid to the ATO were being paid instead to the conspirators for their personal uses is demonstrated in a conversation that Mr Willmott had with Mr Menon on 7 October 2016, some months after he had left Aventis, when he told Mr Menon:

“I knew some was for Peter and I knew some was for investments which was you know; I thought everyone was involved, but whatever, right?”

37. I find that in this conversation Mr Willmott is there talking about funds which should have been paid to the ATO in April 2014-May 2016 being diverted to pay for personal assets of Peter Larcombe and the other conspirators, which Mr Willmott describes as “investments”.

38. Mr Willmott met with Messrs Adam Cranston and Menon on 20 February 2017 to discuss how to manage the ATO investigation and “start getting stories straight”. Mr Willmott volunteered to “tell you my story”. When Mr Menon asked him to proceed, Mr Willmott agreed that he would recite his story and Messrs Adam Cranston and Menon coached him on what to say and made suggestions about how to improve it.

39. Similarly, on 3 March 2017, Mr Willmott was present in a conversation with Messrs Menon and Adam Cranston, in which Mr Menon talked about everyone getting together in a meeting in a room to go through affidavits that Mr Menon suggested preparing to lie to the ATO about the history of the conspiracies. Mr Willmott said:

“Hundred percent. When do you think that will take place. A week, two weeks, eight weeks from now?”

40. I find that Mr Willmott indicated that he was a willing participant in Messrs Menon and Adam Cranston’s plan to lie to authorities about the conspiracies.

Mr Willmott’s role and participation in the money laundering conspiracy

41. The principal function of the back office processing of payroll, which the conspirators sometimes referred to as Omni payroll, was processing the funds received by the various recruitment companies, including Plutus. The key functions of Omni payroll also included the transfer of the funds that were not employee wages.

42. During 2014 and 2015, multiple large payments were made by the 2nd tier companies of “consulting fees”. During the early stages of the money laundering conspiracy, Mr Willmott and Ms Cranston operated the 2nd tier accounts and transferred proceeds to a number of entities, at the direction of the other conspirators, including Messrs Adam Cranston, Onley, and Menon, for the ultimate benefit of those conspirators. Later, Ms Hammond operated the accounts of the 2nd tier companies under the supervision of Mr Willmott.

43. Mr Willmott was the manager of the Omni operation during the period of his involvement from April 2014 to May 2016. I accept [redacted] evidence that the offender was involved in the granular detail of creating payslips for Plutus, using Wage Easy before Plutus moved to KeyPay. Mr Willmott recruited Ms Hammond and trained her in the payroll operations.

44. Ms Hammond did not initially have access to the 2nd tier company bank accounts and did not process payments. When she graduated to making superannuation payments and then payments more generally, Mr Willmott gave her the bank tokens and explained how to do the bank files to process the payments. As Plutus grew and the number of payrolls to be processed increased, Mr Willmott recruited additional staff to assist. Consistent with his role as the manager of the Omni payroll operation, Mr Willmott gave directions to Ms Hammond and Ms Cranston to transfer payments (including those payments which were for Mr Willmott’s own benefit). At times those directions related to payment of MMG invoices from Mr Anquetil, which were an important part of the initial set up of the conspiracies. I find that Mr Wilmott was well aware that the MMG invoices did not relate to any work done for the 2nd tier companies and that the payments were steps taken in the conspiracies.

45. Mr Willmott’s awareness that the MMG payments facilitated the conspiracies was confirmed when on 20 February 2017, Messrs Adam Cranston and Menon told Mr Willmott about the fact that Mr Anquetil was being investigated by the ATO and that he would have to go bankrupt, in part because of the payment of the MMG invoices to him. Mr Willmott told Messrs Adam Cranston and Menon that “I remember Jay, he went just to say mate he – you got to change this up, It can’t be the same thing every week…. He’s got lazy.” I find that this is a cogent explanation by Mr Willmott himself of his detailed knowledge in 2014 that the payment of large amounts of PAYG and GST to MMG was an important part of the money laundering conspiracy.

46. The co-conspirators created false invoices from entities which they controlled or were otherwise associated with to make the payments appear legitimate. Some examples of those invoices, issued prior to May 2016, appear in Trial Exhibits J and Q. For example, Mr Menon received regular payments to Clamenz from 2nd tier companies and sought to legitimise such payments through invoices for purported professional fees and disbursements. A series of Clamenz invoices issued, between July 2015 and April 2016 purported to show legal advice being provided to Uneek and Sonar. I find that Mr Willmott was aware Uneek and Sonar did not seek or receive any legal advice from Mr Menon and that payment of these invoices from funds which should have been paid to the ATO was an important part of the conspiracies.

47. Between March 2014 and May 2016, Mr Willmott was involved in the transfer of $31,033,632.59 of tax fraud proceeds that were deposited into the three 2nd tier company accounts over which he had control. For his role in the conspiracies, Mr Willmott received a direct financial gain of $498,272.81.

48. On 16 April 2020, Mr Willmott was served with a Court Attendance Notice charging him with one offence contrary to s 135.4(3) of the Criminal Code, in relation to his involvement in the tax fraud conspiracy. On 30 July 2020, Mr Willmott was served with a Court Attendance Notice charging him with an additional offence contrary to ss 11.5 and 400.3(1) of the Criminal Code, in relation to the money laundering conspiracy.

Consideration

49. 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.

50. Given the length and detail of the submissions made by the Crown and the offender 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.

51. As I have said, the offences of which Mr Willmott 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.

52. 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: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54. I take the maximum penalty in each case into account as an important guidepost.

53. 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; 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…

54. 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].

55. 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.

56. 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): The nature and circumstances of the offence

57. The two conspiracies fall towards the highest range of objective seriousness of offences of this kind. I find that Mr Willmott’s role in the conspiracies places his conduct at the mid-range of objective seriousness for offences of this kind. This is because:

1. At the time of the conspiracies Mr Willmott was a university educated adult with a Bachelor of Business degree.

2. Mr Wilmott was a knowing and active participant for over 2 years, from the first trial run conducted by Plutus in April 2014, playing an important and necessary role in the conspiracies.

3. Mr Willmott was not an instigator or architect of these conspiracies and acted under instructions. Further, his reward was significantly less than that of the principal architects of the scheme but over twice as large as that received by Ms Cranston and Ms Hammond.

4. The offender was involved in the conspiracies from April 2014 until May 2016. The amount of money dishonestly obtained, over $30 million dollars, was about 30% of that dishonestly obtained by the conspiracies as a whole. The offender was not involved in destroying records and computers as other conspirators were.

5. I am not satisfied Mr Willmott’s early 2017 conduct formed part of the offending but I have concluded that the offender’s early 2017 conduct informs my assessment of specific deterrence, moral culpability, prospects of rehabilitation, and whether the offending conduct was isolated or aberrant: R v Tran & Tran [2011] SASCFC 153 at [29] (Gray J, Sulan and David JJ agreeing); Wilkinson at [62].

6. Given the significant amount of tax loss caused and monies laundered, the significant and sustained period of knowing involvement by this offender, and what the offender actually did in furtherance of these conspiracies, I conclude that this offending falls at the mid-range of objective seriousness for offences of this kind.

58. I find that Mr Willmott’s role in the conspiracies was well below that of Messrs Anquetil, Adam Cranston, Onley and Menon and, in relation to the tax fraud conspiracy, Mr Kitson.

59. 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 2nd tier companies to create an appearance of legitimacy;

4. The creation and payment of false invoices;

5. Legitimate clients who engaged Plutus were unaware that Plutus subcontracted its services to the 2nd tier companies;

6. Unsophisticated and vulnerable people were appointed as directors to create the appearance that the subcontracting arrangement was at “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.

60. While Mr Willmott was not involved in the establishment of the scheme or its “front office” operation, he supervised first Ms Cranston and then Ms Hammond, operated the 2nd tier companies, withholding and misappropriating tax funds in furtherance of the tax fraud conspiracy and disbursing those funds in furtherance of the money laundering conspiracy. The success of the conspiracies depended on this work. Here, the loss occasioned to the Commonwealth was $105,625,304.36. During the period of Mr Willmott’s involvement, the amount of loss was $31,033,632.59.

61. None of the conspirators were shareholders or directors of the 2nd tier companies. Mr Willmott knew that he, Mr Onley, Mr Larcombe and Mr Adam Cranston were not entitled to take any money from the 2nd tier companies. Mr Willmott knew that the money he assisted the principal conspirators to take from the 2nd tier companies should have been paid instead to the ATO. The behaviour of Mr Willmott and his co-conspirators was blatant.

62. Mr Willmott was actively involved in both conspiracies for a period in excess of 2 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:

63. The objective seriousness of an offence may be aggravated where it was committed for financial reward: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee [2007] NSWCCA 234 at [32]. I find that Mr Willmott was principally motivated by financial reward in participating in the conspiracies and received a direct financial gain of not less than $498,272.81.

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

65. I accept, as Mr Brasch submitted, that Mr Willmott was not in a position to make decisions about the operation and continuation of the conspiracies. I accept that the disbursement of funds was done at the direction of others.

66. Nevertheless, I have concluded that Mr Willmott’s role in the conspiracies, although perhaps shorter in time, was above that of Ms Hammond and Ms Cranston. The use by Mr Willmott and others of the title “Chief Financial Officer” accurately describes the offender’s involvement in the 2nd tier companies at the heart of the conspiracies. I reject Mr Brasch’s submission that after Mr Willmott was dismissed by Mr Adam Cranston that Ms Hammond “fulfilled a role equivalent and potentially more significant to that of Willmott during his involvement”. Shortly put, throughout the conspiracies and her 2-year knowing involvement in those conspiracies, Ms Hammond performed a role at the very bottom of the hierarchy of known offenders. For the period of just over 2 years that Mr Willmott knowingly participated in the conspiracies he occupied a role above that of Ms Hammond. The same is true of Ms Cranston. Mr Willmott’s role in the conspiracies was higher than Ms Cranston’s.

67. There are numerous examples of the offender engaging in correspondence with third parties, in relation to the business of Omni payroll, at a level of involvement in the conspiracies above Ms Hammond or Ms Cranston. For example:

1. the offender was involved, together with Adam Cranston and Mr Larcombe, in correspondence with Amber Bonassi when she was engaged to assist with emergency payroll processing in July 2014.

2. The offender was a first point of contact with clients regarding the payroll arrangements for clients of the 2nd tier companies. In March 2015, one such client directed a query to the offender, who referred the matter to Mr Menon to respond. Mr Larcombe was not party to that correspondence. After Menon responded to the client, he reported this in correspondence directed to the offender, although Larcombe was copied into the e-mail.

68. The offender was a friend of Adam Cranston and of a similar age, having met him at school. The offender had completed accounting qualifications at TAFE and a had Bachelor of Business. Ms Hammond and Ms Cranston, who had no professional qualifications, were in their early twenties when their involvement in the subject conspiracies commenced. Ms Hammond and Ms Cranston were significantly less educated, less experienced and younger than the offender.

69. Although his knowing participation in the conspiracies was for a slightly shorter period of time than Ms Cranston, it was essentially the same period as Ms Hammond. Although in the 2017 tax year the amount of tax dishonestly obtained and laundered by the conspirators was much greater than the 2015 and 2016 tax years, I find that on all of the evidence the offender operated at a higher level of responsibility within the conspiracies than was ever achieved by Ms Cranston or Ms Hammond. In himself describing his degree of involvement in the conspiracies, and the extent that he could assist the conspirators, Mr Willmott reported to Menon about a conversation the offender had with Mr Adam Cranston as follows:

“The; the; the; the; the thing is like, I told Adam where I stood even before Peter died, like I told I’d had enough of this shit. I said mate…..it wasn’t like I’ve kinda come back after it, after the fact and gone ‘Oh Adam, I can help you if you need me’. It’s like, I made myself clear before even Peter passed away.

70. I also accept that Mr Willmott was not involved in the destruction of documents and computers. Ms Cranston and Ms Hammond were each involved in the destruction of documents and computers and this fact makes Mr Willmott’s role in the conspiracies closer to them. However, the offender remains at a higher level of responsibility within the conspiracies than Ms Cranston or Ms Hammond.

71. I find that Mr Larcombe had a supervisory role over the operation at Omni payroll, including in relation to the offender, however the offender’s own account of his role demonstrates that he was operating at a higher level than either Ms Hammond or Ms Cranston. That is reinforced by Mr Menon’s suggestion that the offender was in a position to write an affidavit for Uneek straw director Ben Alaban, to which suggestion the offender responded “Yeah sweet mate, no I got no problem with that”.

72. There is ample evidence the offender was aware of the very small amount of the tax owing that would be and was being paid to the ATO. Whilst I accept Mr Brasch’s submission that determination of more precise percentages was a feature of the conspiracies after Mr Willmott had been dismissed by Adam Cranston, that does not take the matter very far. Ms Hammond’s evidence was that the offender gave her the task of filling in the spreadsheet that was used to input all of the payroll figures per client and per bottom company, including by updating the master file with the previous week’s figures. I accept Ms Hammond’s evidence she gave the master files to the offender and that they included the PAYG withheld that should have been paid on the processed payrolls and that it was the offender, at least initially, who told her how much tax to pay. I accept Ms Hammond’s evidence was that it was never her decision in relation to what percentage of tax should be paid. I find that the offender was aware from April 2014 that a large amount of tax payable to the ATO (approaching 100% in the case of Keystone) would not be paid from every pay run but instead would be distributed in accordance with the directions of his co-conspirators.

73. The evidence of Ms Dubois also places the role of the offender in the conspiracies at a higher level than Ms Cranston or Ms Hammond. As I have found, the offender at the very least gave Ms Dubois’ private and confidential information to his co-conspirators and was thus ultimately responsible for Ms Dubois being appointed to the directorship of Uneek. The offender knew that Ms Dubois was placed in a vulnerable position as a director of Uneek and knew that she was unaware she had been made a director.

74. My findings about the offender’s supervisory role of Mr McIntyre and, via Mr McIntyre, the offender’s control of the straw directors places Mr Willmott’s role above Ms Hammond and Ms Cranston, who were never involved in supervising the straw directors or their “managers”, Mr McIntyre and Mr Rostankovski.

75. The offender was involved in processing payroll using Keystone from the early stage of its operation in 2014 and, as I have found, he was aware that the intention was always to liquidate Keystone with large amounts of unpaid tax.

76. In summary, I find that the offender’s role in the conspiracies was above that of Ms Cranston and Ms Hammond but well below that of Mr Adam Cranston, Mr Onley, Mr Larcombe and Mr Anquetil.

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

77. In R v Agius; R v Zerafa [2012] NSWSC 978; 87 ATR 528 at [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).

78. I find that Mr Willmott’s conduct and knowing participation in the conspiracies occurred over a period in excess of 2 years, and was not an isolated instance of offending but rather a persistent course of conduct which was not spontaneous or opportunistic.

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

79. Our system of tax collection relies on taxpayers acting honestly. If the perception became widespread that the payment of millions of dollars in tax was in effect voluntary, and non-payment of tax was effectively risk free, no doubt others would structure their affairs to avoid paying tax. The burden on other taxpayers would be correspondingly increased.

80. The loss during Mr Willmott’s participation in the conspiracies was $31,033,632.59. On any view of it this is a significant sum. It is however a much smaller sum than the approximately $105 million lost as a result of the operation of the scheme for the full period between April 2014 and May 2017.

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

81. Mr Willmott pleaded not guilty and put the Crown to proof, as was his right. There is no evidence that Mr Willmott has any remorse for his conduct or the conduct of his co-conspirators following his conviction.

82. Further, Mr Willmott has not expressed any remorse or empathy for his role in recruiting and exposing a vulnerable young woman, Ms Hammond, as the public face of the 2nd tier companies, as a result of which she has pleaded guilty to two serious criminal offences and served a sentence of imprisonment.

83. I find that Mr Willmott has shown no contrition for the offending.

Section 16A(2)(h): The degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence or of other offences

84. 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 co-operation: R v Doff [2005] NSWCCA 119.

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

86. I also take into account, at least to a limited extent, in Mr Willmott’s favour the “uncertain suspense” for Mr Willmott created by the period of years between charge in 2020 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 Willmott 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.

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

87. It was common ground that general deterrence is a fundamental consideration in the present sentencing exercise. That applies to both offences proved against Mr Willmott. Fraud on the Commonwealth revenue is easy to commit, difficult to detect and comes at a great cost to the community: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [63].

88. In R v Huston; R v Fox; R v Henke; ex parte Cth DPP [2011] QCA 350; 219 A Crim R 209; the Queensland Court of Appeal held at [58] that sentences must do more than pay lip service to the need for general deterrence, that the conspiracy to evade tax was a form of corruption that has an “insidious corroding effect on society” and that effective deterrents are required to vindicate taxpayers and prevent this type of offending.

89. It is relevant that tax fraud is often committed by white collar criminals. This group is more likely to be first time offenders, fearful of incarceration and capable of rational cost-benefit analysis. There is a real prospect that a substantial sentence will deter offenders with similar characteristics from committing similar crimes: R v Gregory (2011) 34 VR 1; [2011] VSCA 145 at [53]-[54].

87. Money laundering, similarly, involves serious criminal activity: R v Jiao [2015] NSWCCA 95; 251 A Crim R 236 at [31]. Money laundering is vital to the success of conspiracies such as the present, because it moves the proceeds of crime to third parties, making the detection of the underlying crime more difficult: Shi v R [2014] NSWCCA 276; 246 A Crim R 273 at [109]. It also prevents the recovery of funds even if the original fraud is detected: Shi at [109]; R v Lin [2014] NSWCCA 254 at [63]. As I have said, that has proved to be the case here. The need for general deterrence is therefore high.

88. In relation to the deterrent effect on the offender, Mr Brasch submitted that there are no factors suggesting that there is a need to increase the sentence that is to be imposed on the offender to achieve specific deterrence. It is true that since the offender was dismissed by Mr Adam Cranston in May 2016 he appears not to have engaged in conduct of the kind for which he is being sentenced. On the other hand, despite stating to his psychologist Mr Borenstein that Aventis was “smoke and mirrors”, Mr Willmott appears still to believe that he and his co-conspirators have done nothing wrong. I proceed on the basis that the complete absence of remorse or empathy for others in the detailed material filed by the offender on sentence warrants this conclusion. Although I accept that specific deterrence is less important than general deterrence in this case, a sentence having a sufficient deterrent effect on the offender is warranted.

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

92. Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied no other sentence is appropriate in all the circumstances of the case. Sentences for offences in the nature of tax evasion should have both a deterrent and punitive effect. This is particularly so in cases such as the present where the fraud is calculated, systematic and persisted in for some time.

93. As the Victorian Court of Appeal said in Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145:

“[57] 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.”

94. I have concluded that a sentence of full-time imprisonment is the only appropriate sentence to impose in this case. Given the gravity and objective seriousness of the offending, a significant sentence of full-time imprisonment must be imposed. Mr Brasch accepted that the imposition of a full-time custodial sentence was here inevitable.

Section 16A(2)(m): The character, antecedents, age, means and physical or mental condition of the person

95. I make the following findings about Mr Willmott’s subjective case:

1. The offender is a person of prior good character which should be taken into account in his favour: Ha v R [2008] NSWCCA 141 at [43].

2. At the time when the offender was first employed by the principal conspirators, Mr Cranston, Mr Larcombe and Mr Onley, he was 28 years old.

3. Whilst I give Mr Willmott’s unsworn letter little weight, I find on all the evidence (including the character witnesses’ evidence) that Mr Willmott’s children live in the UK and he is engaged in litigation in Australia and Europe about their possible return. I take into account the offender’s separation from his children and his inability to communicate with them as relevant factors in his favour. I accept that the absence of his children from Australia will make Mr Wilmott’s time in custody more difficult.

96. The following character references were given on the offender’s behalf:

1. Sue Willmott, the offender’s mother, gave evidence that the offender is close with all of his siblings and other relatives, assisting them with various tasks. The offender is a “well-mannered” and “very giving” person who has been involved in charitable initiatives. I also take into account evidence of the offender’s mother’s illness and the fact that for the period of his imprisonment he will be unable to provide the degree of support he would in the community.

2. Gregory Willmott, the offender’s older brother, gave evidence that the offender has been “an integral part” of helping him run his business, and that in his work for that business the offender has demonstrated a “philosophy of pride in our work, honesty with our clients and clear communication”. He also described the close relationships the offender has with, and assistance he gives to, his relatives.

3. Betty Roche, the offender’s grandmother, described the offender as a “loyal and devoted grandson” who regularly provides her with conversation and support. She calls him “courteous and respectful”, “very family-centred” and “a very loving and devoted father to his children when they were here”. I also take into account evidence of her illness and the probable effect on the offender of that illness whilst he is in custody.

4. Jessica Kinslow, the offender’s sister, stated that the offender “not only has helped me but helps everyone he possibly can”. She described the assistance the offender has given her, her husband and other relatives during difficult periods of their lives.

5. Rebecca Jefferis is Mr Willmott’s partner of three years. She describes him as a “kind, generous, loving person”, who, when they first met, was candid about his legal difficulties. She describes Mr Willmott’s participation in charitable events and his generosity to members of his community.

6. Luke Edmonds, the owner of Caringbah gym “The Body Factory”, has known Mr Willmott for 20 years. He writes that the offender volunteered his time to support The Body Factory’s charitable causes, including by organising fund raising and coordinating participation.

7. Luciana Murphy met the offender through his partner. She has benefited from the fitness and health-related advice he has offered her. She also praises the time Mr Willmott spends volunteering for charitable causes.

8. Stephanie Lee is a friend of the offender, whom she has known since 2020. She writes that Mr Willmott has supported her and her children, to whom he is a role model. She describes an occasion on which Mr Willmott volunteered a weekend of his time to help her with a hardware project.

9. Tiana Canham, Mr Willmott’s 28-year-old step-sister, who has known the offender for about 10 years, writes that he supported her when, as a teenager, she found herself in a difficult personal situation. She describes him as respectful and loving towards his family and friends.

97. I take all of these references into account in favour of the offender.

Section 16A(2)(n): The prospects of rehabilitation of the person

98. Mr Brasch submitted that by reason of his good character and the opinion expressed by Mr Borenstein I should conclude that Mr Willmott has good prospects of rehabilitation. Despite his prior good character, I am not able to conclude that Mr Willmott has good prospects of rehabilitation. I remain troubled that even now, Mr Willmott does not acknowledge that any of his co-conspirators have done anything wrong.

99. I have taken into account the report of Sam Borenstein, a registered psychologist, dated 18 April 2023, but give it relatively little weight. I am not confident that on the basis of a short consultation and the offender’s self-reporting of symptoms that any reliable conclusion can be drawn about the offender’s mental state and likelihood of reoffending. The report states:

1. After speaking to the offender once via AVL and administering some basic tests, Mr Borenstein diagnosed the offender with severe adjustment disorder with mixed anxiety and depressed mood, a condition recognised by the DSM-5. I accept the Crown submission that such effects as are described appear principally to be caused by the offender’s reaction to his conviction and imprisonment.

2. In Mr Borenstein’s view, the offender’s condition has been exacerbated by his ongoing legal proceedings including the lengthy trial, his recent incarceration, and his ongoing separation from his children. His symptoms of anxiety and depression are “extremely severe”, although he is not currently taking medication which has been prescribed to him.

100. Mr Borenstein states that Mr Willmott’s life was “directionless” for some years and that he is not an ambitious person, inclined to follow others rather than lead. With the “benefit of hindsight”, Mr Borenstein writes, Mr Willmott has realised that Aventis operated on “smoke and mirrors”. However, in Mr Borenstein’s observation, Mr Willmott’s work for Aventis and the salary he earned there gave him self-esteem and validation.

101. Mr Borenstein’s opinion is that Mr Willmott has no “crimogenic tendencies”, which I take to be an assessment of low prospects of reoffending.

102. I have also read Mr Willmott’s unsworn letter, but as I have said, give it little weight.

103. On all of the evidence I cannot accept that Mr Willmott’s prospects of rehabilitation are good. Nothing in his letter or psychological report indicates that Mr Willmott has accepted that any crime was committed by anyone involved in the conspiracies. Although he apparently now believes that Aventis was “smoke and mirrors”, the offender displays no remorse for anything he has done but rather writes as though he is a victim of conduct by others, including the ATO, rather than a perpetrator of a serious crime.

104. The offender does not appear to understand or accept the gross violation of societal norms involved in dishonestly taking over $30 million of taxes which should have been available to spend by government on behalf of the community which must now be recouped by cuts to government services or from increased taxes paid by other taxpayers – either now or in the future. I find that, on balance, the offender’s prospects of rehabilitation are no better than fair.

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

105. It is clear that, under s 16A(2)(p) the Court may take into account any probable effect on the offender’s family or dependents, and not only those effects that rise to the level of “exceptional hardship”: Totaan v R [2022] NSWCCA 75 at [77]-[93] per Bell CJ (Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing). Obviously, taking such matters into account must not distract the Court from imposing a sentence of a severity appropriate in all the circumstances: AE v R [2023] NSWCCA 74 at [54].

106. I find that Mr Willmott will not see his children easily or at all for the period of his imprisonment. Whilst, obviously, making no finding about the merits of the Hague Convention proceedings, I proceed on the basis that the offender’s children reside in the UK and will likely do so for the period of his imprisonment.

107. I find that the probable effect of the sentence under consideration is that it is even less likely that Mr Willmott’s children will see him for some years and I take that hardship to the children into account in Mr Willmott’s favour.

Comparable cases

108. In Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 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 6 years. Mr Dickson was originally sentenced by Beech-Jones J to 11 years imprisonment with a non-parole period of 7 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 9 years and 3 months (see Dickson v R [2016] NSWCCA 105). Mr Dickson obtained an exponentially greater personal gain than Mr Wilmott.

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; 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.

109. The most significant sentences I have taken into account are those imposed on the offender’s co-conspirators. The most relevant of those is the sentence I imposed on Ms Hammond: R v Hammond [2020] NSWSC 888. For Ms Hammond’s role in the tax fraud scheme and the money laundering scheme, Ms Hammond pleaded guilty to the same two counts as the offender. 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 6 years for the money laundering offence and 4 years for the tax fraud offence. Ms Hammond received considerable discounts. The aggregate sentence imposed, but for those discounts, was 8 years and a non-parole period of 5 years.

110. Further, I take into account the sentence recently imposed on Ms Cranston: R v Lauren Cranston [2023] NSWSC 454. I concluded in that case 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 8 years with a single non-parole period of 5 years.

111. As I have said, whilst the amount of money dishonestly obtained as a result of the conspiracies during the offender’s knowing participation was much lower than in the case of the knowing involvement of Ms Hammond and Ms Cranston, the period of knowing involvement (approximately 2 years) was the same for all three. As I have explained, I find that Mr Willmott’s role in the conspiracies was greater than that of Ms Hammond or Ms Cranston.

112. The other sentences imposed on the offender’s co-conspirators are less relevant. In R v Kitson [2019] NSWSC 1109, Mr Kitson was sentenced for a period of 9 years and a non-parole period of 6 years, before discounts. Mr Kitson was charged with only one offence, a tax fraud contravention of s 135.4(3) of the Criminal Code. Mr Kitson’s personal gain was approximately $1.3 million and he was near the top of the hierarchy in the tax fraud conspiracy. The head sentence imposed, 9 years, is near the top of the range for offending of this kind. Ms Cranston, Ms Hammond and Mr Willmott, unlike Mr Kitson, were also convicted of a very serious money laundering charge. Mr Kitson’s role in the conspiracy to defraud was more serious and longstanding than Mr Willmott’s. Further, the sentence imposed on Mr Kitson does not give me any real assistance in identifying an appropriate sentence for the money laundering offence Mr Willmott faces.

113. The Crown also referred to the sentence I imposed on Mr Anquetil: R v Anquetil [2020] NSWSC 995. Mr Anquetil pleaded guilty to the same two offences proved against Mr Willmott and had another serious offence taken into account. For the tax fraud offence, the starting point was 9 years and 4 months imprisonment. For the money laundering offence, the starting point was 12 years imprisonment. Mr Anquetil operated at the apex of the tax fraud conspiracy, as one of its principal architects and as the operator of Plutus itself. In laundering the money involved, Mr Anquetil incorporated various entities and falsified documents. His personal gain was at least $12,218,148.55. His knowing involvement in both conspiracies was much greater than Mr Willmott’s.

114. Two other cases, R v O’Leary (District Court (NSW), 4 June 2020, unrep) and R v Paul (District Court (NSW), 21 February 2020, unrep), peripherally related to the present conspiracies, do not shed any real light on the relevant sentence to be imposed here.

115. Having regard to all of the matters I have set out above, I have determined that the appropriate sentences to be imposed on Mr Willmott are 5 years imprisonment for the tax fraud conspiracy and 7 years imprisonment for the money laundering conspiracy.

116. I have given consideration to the principle of totality and the principles explained by the High Court in Pearce v R (1988) 194 CLR 610; Dickson v R [2016] NSWCCA 105 and Dickson (No 18) [2015] NSWSC 286. In Ms Hammond’s case on the issue of totality, but for the discounts I gave her, I would have imposed a notional 2 year period of accumulation. In Ms Cranston’s case I imposed a 2 year period of accumulation. Mr Brasch submitted that I should impose the same period of accumulation as applied to the notional accumulation, after discounts as applied to Ms Hammond or Mr Anquetil (1 and 1.5 years respectively). I disagree. Mr Willmott is not entitled to the same discounts on sentence as applied to Ms Hammond or Mr Anquetil. The appropriate comparison is the notional accumulation of 2 and 3 years respectively.

117. I have determined that in Mr Willmott’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. I have decided that two years is the appropriate degree of accumulation to reflect the total criminality of the offender’s conduct. As I have explained, the money laundering offence here involved separate and very serious criminality.

118. Under s 19AB of the Crimes Act 1914 (Cth), I impose a single non-parole period for both offences of 6 years. This sentence is of a severity appropriate for the offences and provides a minimum period that Mr Willmott must spend in custody appropriate to all the relevant elements of punishment, including rehabilitation, the objective seriousness of his offences and his subjective circumstances.

Conclusion and sentence

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

1. Mr Willmott is sentenced to a term of imprisonment of 5 years to commence on 21 March 2023 and expire on 20 March 2028 for the tax fraud conspiracy;

2. Mr Willmott is sentenced to a term of imprisonment of 7 years to commence on 21 March 2025 and expire on 20 March 2032 for the money laundering conspiracy;

3. Under s 19AB of the Crimes Act 1914 (Cth) a single non-parole period of 6 years commencing on 21 March 2023 is fixed;

4. The offender is first eligible for parole on 20 March 2029.

120. 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 9 years imprisonment commencing on 21 March 2023 and expiring on 20 March 2032. 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 6 years, also commencing 21 March 2023. That means that Mr Willmott will be imprisoned for not less than 6 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.

**********

Annexure 1 - Exhibit II

Annexure 2 - Exhibits PP to RR

Annexure 3 - Exhibit LL Diagram 48

Annexure 4 - Exhibit LL Diagram 49

Annexure 5 - Exhibit LL Diagram 50

Decision last updated: 05 May 2023