R v Roussakis

[2021] ACTSC 19

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Roussakis
Citation:	[2021] ACTSC 19
Hearing Date:	15 December 2020
Decision Date:	9 February 2021
Before:	Mossop J
Decision:	See [54]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aiding
and abetting an officer of corporation to give false or misleading
information – recklessness as to the commission of the offence – offending occurred over a substantial period of time – low risk of reoffending – loss and damage caused to corporation – extent of the loss cannot be quantified – automatic disqualification from managing a corporation – good behaviour order – pecuniary
penalty
Legislation Cited:	Corporations Act 2001 (Cth), ss 9, 206B, 1309 Crimes Act 1914 (Cth), ss 16A, 17A, 20 Criminal Code Act 1995 (Cth), s 11.2 Criminal Code 2002 (ACT), ss 332, 347
Cases Cited:	Director of Public Prosecutions (Cth) v Couper [2013] VSCA 72; 41 VR 128 Director of Public Prosecutions v Smith and De Alwis [2016] VCC 705 R v Falconer [2018] NSWSC 1765 R v Raines [2017] NSWDC 217; 25 DCLR(NSW) 239 R v Watt [2021] ACTSC 20
Parties:	The Queen (Crown) Leon Roussakis (Offender)
Representation:	Counsel
T Hickey (Crown)
D Berents (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
William O’Brien & Ross Hudson Solicitors (Offender)
File Number:	SCC 46 of 2019
MOSSOP J:
Introduction

1.       The offender, Leon Roussakis, pleaded guilty to one count of aiding, abetting, counselling or procuring an officer of a corporation to give information or authorise or permit the giving of information to a director of the corporation, which related to the affairs

of the corporation and that was, to the officer’s knowledge, false or misleading in a

material particular or omitted from it, a matter or thing which rendered the information misleading in a material respect. The offence occurred between 10 November 2014 and 19 October 2015. The conduct was a contravention of s 1309(1) of the Corporations Act 2001 (Cth) by virtue of s 11.2(1) of the Criminal Code Act 1995 (Cth). The maximum

penalty for this offence is five years’ imprisonment, a fine of $34,000 or both.

2.       The person whose offending the offender aided or abetted is Edward Watt, who is being dealt with at the same time: see R v Watt [2021] ACTSC 20.

Facts
3.	The offender admitted the contents of the Agreed Statement of Facts included in the Crown Tender Bundle.
4.	Between November 2014 and October 2015 Mr Roussakis’ co-offender, Mr Watt, was
the General Manager of Canberra Concrete Recyclers Pty Ltd (CCR). His role was such that he was an officer of the corporation within the extended meaning of that term in s 9 of the Corporations Act.
5.	CCR is a waste construction materials recycler. It operates a site in Pialligo where material recycling activities are undertaken, near one end of the Canberra airport. It recycles mixed building demolition materials such as concrete, bricks, tiles, timber, iron, steel, sand, soil, natural excavated materials and mixed demolition waste. The items are sorted to produce a range of products including crushed concrete sub-base, manufactured sand and drainage materials, which are then on sold. The waste material that cannot be recycled is dumped at the old Woodlawn mine, a waste facility now run by Veolia Environmental Services. Revenue of the business is generated from those providing waste materials to the site and from the sale of the products of the recycling activities.
6.	In the period between November 2014 and October 2015 all vehicles that accessed the
CCR site were required to enter through the main access gate and proceed to the ‘in’
weighbridge, where the vehicle and the load were weighed to determine the gross weight. The vehicle was then directed to an area at the rear of the site to deposit the load, before returning to the main access gate where the vehicle was weighed on the
‘out’ weighbridge to determine its tare weight. The cost of dumping was determined by
the net weight of the load deposited at the site. An invoice displaying the net weight deposited was then printed off and provided to the driver as the vehicle exited.
7.	Mr Watt was initially employed in 2008 by CCR in the position of Production Manager. After about 12 months he was promoted to the role of General Manager. His services were provided to CCR through a company known as City Access Holdings Pty Ltd. He was responsible for the general running of the site including the maintenance of plant and equipment, sales of products, hiring staff and new business. He reported to the directors of CCR.
8.	In May 2014 a Sydney based trucking company, Tip It Interstate Pty Ltd (Tip It), began a business arrangement with CCR to dump building waste or mixed demolition material at the CCR site. This arrangement was made through Mr Watt. Tip It was operated by Mr Roussakis and his brother. Mr Roussakis was a director of the company.
9.	Between May and August 2014, two Tip It B-double trucks travelled from Sydney to Canberra each weekday, taking an average of 36 tonnes per truckload of building waste to CCR. Tip It was paid $150 to $160 per tonne to remove waste from several recycling facilities in Sydney. It then took the waste to CCR, who charged $110 per tonne to dump it. By bringing its waste material to CCR, Tip It avoided paying an Environmental Protection Authority (EPA) levy of $120 per tonne, which was charged to all waste dumped in metropolitan areas in NSW.
10.	In June 2014 Tip It made a request, through Mr Watt, for a reduced dumping rate. CCR directors had a meeting with Mr Watt where they agreed to reduce the fee for Tip It to $100 per tonne. Over time Tip It moved up to bringing up to five truckloads per day, five days per week. A CCR director, Tony Irwin, set up a separate account for Tip It, which was to be paid on a weekly basis.
11.	In November 2014 Mr Watt and Mr Roussakis entered into a “commercial agreement”,
without the knowledge of CCR directors, to allow Tip It trucks to dump building waste material at CCR and to only record and invoice some of the truckloads. As a general rule, the night-time deliveries were not recorded or invoiced. The weights of any loads delivered during the evening were generally not recorded or invoiced in the CCR system. Tip It would generally either send a text message with the registrations and weights for some vehicles or the Tip It driver would provide to CCR staff a copy of weighbridge certifications from the loading sites in Sydney. The CCR staff would then manually input
this information into the system to generate invoices. On some occasions, at Mr Watt’s
direction, the weighbridge operator would cancel invoices for Tip It trucks and delete the truck weights for those invoices in the CCR system. As a result of this, the total amounts of material delivered by Tip It trucks to CCR were not accurately recorded internally within the CCR systems.
12.	The basis upon which each of the offenders agreed that he was liable was as follows:

(a)

Mr Watt is liable by authorising the information in CCR records, which was relied on by CCR directors, about the number of Tip It truckloads and the amount of material received that was false or misleading in material particulars. The information omitted from it the true total of Tip It trucks going into the CCR site and the total amount of material received from them, rendering the information CCR had misleading.

(b)

Mr Roussakis is liable by aiding and abetting Mr Watt to commit the offence, by allowing the CCR records and invoices to Tip It to inaccurately reflect the amount of material. His plea of guilty accepts that his conduct would aid or abet the commission of an offence and that he was reckless about the commission of the offence that Mr Watt in fact committed: Criminal Code, s 11.2.

13.     In April and May 2015 some reports of issues with the Tip It account were made by a staff member to CCR director, Mr Irwin. In mid-2015, Mr Irwin became aware of a possible issue with more waste being dumped at CCR than what he understood CCR was invoicing. He had noticed stockpiles of recyclable waste at the site continuing to grow.

14.     In about August 2015 CCTV footage from the CCR site was obtained by the directors and, following a review of the footage, they became aware that Tip It trucks were accessing the CCR site after business hours, which was not normal procedure. There was no lighting at the back of the facility where the material was dumped unless generators were running, and it was not possible to have lighting in that area at night because of the proximity to the Canberra airport. The review of the footage showed up to four Tip It trucks entering the facility each night. They would bypass the weighbridge.

Mr Watt’s car was present when the Tip It trucks were allowed to enter.

15.     As a result of this information, a director arranged for the CCTV recording device to be secured. As the contractor was removing the unit, Mr Watt asked questions of him

including “does this thing record?”. Although the footage only went back as far as March

2014, it showed at least 531 occasions when unauthorised B-double Tip It trucks entered the site between 2am and 6:30am without being weighed on the weighbridge when entering or exiting.

16.     When the CCTV recording device was returned to the site in September 2015, the method by which Tip It trucks dumped at the site changed. Tip It trucks only attended the CCR site during business hours (7am to 4:30pm on Monday to Friday and 7am to 3:30pm on Saturday). However, instead of not invoicing truckloads, the truck weights were underreported. This was done either by Tip It sending text messages to CCR staff with incorrect weights or by Mr Watt requiring the weighbridge manager to under record the truck weights on invoices by, on average, 15% to 20%.

17.     CCR directors held a meeting with Mr Watt on 19 October 2015. He stated that he allowed Tip It trucks to attend the site after hours, but that those loads were included in

the afternoon invoice. Mr Watt’s employment was terminated immediately and CCR

referred the matter to police.

18.     Between 15 April and 12 July 2016 police lawfully intercepted communications between Mr Watt and Mr Roussakis. These communications revealed a close relationship that went beyond a business association. In total during that period, police intercepted 388 recorded phone calls and text messages between them.

19.     Documents obtained by search warrants during the police investigation, including CCR

and Sydney waste recyclers’ business records and NSW Roads and Maritime Services

data showing Tip It truck movements between Sydney and Canberra, were reviewed by a financial intelligence analyst at the AFP to identify how many Tip It truckloads were delivered to CCR but not recorded or invoiced. It was found that over the 11 month period between 1 November 2014 and 19 October 2015, 656 Tip-It B-double truckloads with a combined weight of 23,637 tonnes were correctly recorded and invoiced for $2,499,653 (excluding GST). However, 855 B-double truckloads with a combined weight of 30,695 tonnes were delivered to CCR and not recorded or invoiced. Applying the advertised full price CCR prices to the weights, the amount not invoiced was $3,264,399 (excluding GST). A further 45 B-double truckloads were invoiced with an incorrect weight to the total of 299 tonnes. Applying CCR prices to the weights understated, the amount not invoiced was $32,893 (excluding GST).

20.     During the relevant two financial years (ending 30 June 2014 and 30 June 2015) the turnover of CCR was almost doubled when compared with that of the previous financial year (ending 30 June 2013). Although the turnover increased, the profit during the period remained unchanged. In contrast to other customers, Tip It paid its bills within seven days rather than the standard 30 day period.

Sentencing considerations

21. Section 16A of the Crimes Act 1914 (Cth) sets out the matters to which the court must have regard when passing sentence for a federal offence.

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

22.     The nature and circumstances of the offending have just been described. So far as the

offender is concerned, it involved the intentional aiding and abetting of Mr Watt’s

offending and recklessness as to the particular offence committed. As a director of Tip It, he was aware of the arrangement that involved the non-recording or false recording of the volumes of waste delivered to CCR. The offender intended that his actions, in allowing Tip It to continue to supply inaccurate information and not pay for the unrecorded truck deliveries, would involve Mr Watt committing an offence and was reckless as to the actual offence committed by Mr Watt in providing false or misleading information to the directors of the company.

Course of conduct (s 16A(2)(c)) and loss or damage resulting from the offence
(s 16A(2)(e))

23.     The offence itself encompasses the whole of the offender’s aiding and abetting of Mr

Watt. It is a course of conduct charge, rather than forming part of a wider course of conduct. It is significant that it occurred over a substantial period.

24.     The evidence of Thomas Jackson, a director of CCR, was that there remains on-site an

area referred to as the “legacy stockpile”. The company is unable to fund, from its normal

operations, the processing and removal of this stockpile without income from associated tipping fees. The company has a reduced capacity of disposal at the Veolia facility because limits imposed only allow CCR to dispose of quantities consistent with its normal daily operation. The dumped material creates a loss of air space for the placement of other material. Mr Jackson said that if CCR was required by the EPA or the Department of Defence to remove the material, that would send the company into liquidation.

25.     I am satisfied beyond reasonable doubt that CCR has suffered a loss as a result of the offending. It is not however possible, on the evidence before me, to quantify the size of that loss.

The offender’s character, age, antecedents and background (s 16A(2)(m))

26.     The offender is currently 42 years old. He reported that he was born in NSW and had a positive upbringing. He has positive relationships with his parents, who reside near him, and his two siblings.

27.     He lives in Earlwood, NSW with his wife and two daughters. They have lived in their current property for six years and he identified no concerns.

28.    He completed school education up until Year 10. He did two years of a chef’s

apprenticeship before working with his father as a house painter.

29.     At the end of 2012 or in early 2013 he moved into the waste industry, driving trucks for a small waste collection and transfer company. He then purchased his own truck and trailer. His business expanded so that he had a total of five trucks and trailers going to Canberra and two trucks going to Queensland. In October 2015 the cartage to Canberra stopped without notice. The company went into liquidation. The trucks were sold. He has been employed by a transport company for the last three years. He intends to remain with his current employer.

30.     He suffered an injury to his head, chest, left shoulder and lower back in February 2015 when a bundle of steel fell on him. His wife, whose evidence on oath was not challenged, indicated ongoing effects from this including an inability to work at full capacity and being in physical pain as a result of the accident.

31.     He reported having debts totalling $1 million relating to his mortgage. He and his wife are managing to meet these repayments, however, he did note that there is some financial strain as a result.

32.     He reported that he has been seeing a psychologist in the last six months to deal with personal stressors and generalised counselling concerns. He was diagnosed with chronic adjustment Disorder with mixed depressed and anxious mood following his work injury in 2015. Professor Stephen Woods, a forensic psychologist, diagnosed him in December 2020 as currently suffering from major depressive disorder (single episode, chronic), generalised anxiety disorder, somatic symptom disorder (with predominant pain, chronic and frequently severe) and some features of dyslexia.

33.     He suffers from moderately severe asthma. Notwithstanding that, he is a smoker.

34.     He stated to the author of the pre-sentence report that he agreed with the Statement of Facts and acknowledged the offence was unlawful. He recognised the loss experienced by the victim as a result of his actions and accepted responsibility for his wrongdoing. He claimed that he was unaware his actions were unlawful at the time. He identified ways he would prevent a similar incident occurring in the future, for example by hiring someone to handle the financial side if he were to own a business again. He identified the loss to his business and the financial strain his actions have placed on his family.

35.     He was assessed as being suitable for a good behaviour order and an intensive correction order, but not suitable for a community service work condition due to residing interstate.

36.     The author of pre-sentence report’s opinion was that the offender has a low risk of

general reoffending. His primary risk factors are his financial strain and mental health. However, the author noted that, to his credit, the offender has engaged in psychology sessions to address his mental health concerns and would be monitored throughout supervision.

37.     His wife recorded that the offender is ashamed of his past offending and has vowed never to break the law.

38.     Evidence on oath from his father-in-law, who is a Reverend of the Greek Orthodox

Church, expressed the opinion that the offender is “a traditional family man, a loving husband and [a] proud father of two lovely daughters” who along with his wife “are raising a clean family with Christian values”. He also attested to him being a generous and loyal

man.

39.     The offender does have a criminal history. It includes a number of property offences committed in 2001 in relation to which he received a series of concurrent sentences of imprisonment of six months, to be served by way of periodic detention. He was also

convicted and fined in 2016 for an offence described as “company officer fail to help

liquidator”. He was given a fine of $6000. Although the record does not indicate that

this relates to the affairs of Tip It, given that the offending was between April 2016 and October 2016, that would be consistent with the company having been liquidated after its trade in waste to Canberra ceased. Such a conviction is reflective of a lack of commercial honesty in dealing with the liquidation of the company. No explanation of the offending was given in the balance of the material tendered on sentence.

40.     The offender has spent no time in custody in relation to these offences.

Contrition/reparation (s 16A(2)(f))

41.     While I am satisfied that the offender regrets his conduct, it is not a case where that regret can be disentangled from his regret for the consequences for him and his family of the present proceedings. He has not shown any contrition in the form of making reparation or cooperating with the investigation.

Plea of guilty (s 16A(2)(g))

42. The offender was initially charged in the Magistrates Court with 13 counts of obtaining a financial advantage by deception contrary to s 332 of the Criminal Code 2002 (ACT) and one count of using a false document contrary to s 347 of the Criminal Code. On 25 May 2018 he entered pleas of not guilty and the matter was committed for trial. On 7 June 2019 the prosecution filed an indictment which charged the offender with 899 counts of obtaining a financial advantage by deception. On 13 December 2019 the prosecution filed an indictment dated 11 December 2019 which charged the offender with one rolled up count of obtaining a financial advantage by deception.

43. On 29 July 2020 the prosecution refined its particulars to confirm that Mr Watt was liable as principal for the offence. The matter was listed for judge-alone trial on 10 August 2020 but it was adjourned due to the prosecutor being ill and to enable the parties to have further discussions. On 12 August 2020, before the commencement of the trial, Mr Watt made an offer to plead to an offence under s 1309 of the Corporations Act. The trial was adjourned and a criminal case conference was listed for the following day. For reasons which are unexplained, a criminal case conference had not occurred earlier. On 13 August 2020 at the criminal case conference the offenders agreed to plead to the charges currently for sentence in full satisfaction of the charges against them. Mr Watt and the offender were then arraigned and pleaded guilty on 21 August 2020 at the Supreme Court to a new indictment dated that day.

44.     The plea is an early one in one sense, because it relates to an entirely different charge to that which was pursued against the offender up until that point. It is to be distinguished from a situation in which the negotiations lead to a less serious charge of the same nature being pleaded to, or one of multiple charges on an indictment being accepted in full satisfaction of the indictment. However, I do not consider that the plea is truly indicative of remorse or contrition in the same way that an earlier acceptance of responsibility might be.

45.     The plea certainly had very considerable utilitarian value, avoiding a trial of between two and four weeks.

Cooperation with law enforcement (s 16A(2)(h))

46.    There has been no cooperation with law enforcement agencies in relation to the investigation of the offence or other offences.

Specific deterrence (s 16A(2)(j)) and prospects of rehabilitation (s 16A(2)(n))

47.     While the evidence does disclose that the offender intends to be law-abiding in the future, it must be noted that he committed the further offence, post-dating the present offences, of failing to cooperate with a liquidator. I accept that the prosecution process itself and the disqualification associated with the conviction will provide a substantial degree of specific deterrence, however, having regard to the nature of the present offending and the subsequent offending, specific deterrence must still play a role in the sentence.

General deterrence (s 16A(2)(ja))

48.    General deterrence is also an issue of significance. It must be recognised that dishonesty in commercial relations that involves aiding or abetting others to breach the law will be punished. That extends to situations such as the present, where the offender himself did not have statutory duties or fiduciary obligations to the company that was the victim of the offending. It is therefore of some significance to recognise the need for general deterrence of this form of dishonesty in commercial activities.

Effect on family (s 16A(2)(p))

49.    I am taking into account the evidence about the offender’s family and financial

circumstances. I take into account the effect on the offender’s family of the sentencing

options which I have considered.

Other matters

50. It is obviously also necessary to take into account the need for adequate punishment (s 16A(2)(k)) and the fact that, as a result of the conviction, the offender will be disqualified from managing corporations for a period of five years pursuant to s 206B of the Corporations Act.

51. The court was referred to a number of other sentencing decisions in relation to breaches of s 1309 of the Corporations Act. They were Director of Public Prosecutions (Cth) v Couper [2013] VSCA 72; 41 VR 128, Director of Public Prosecutions v Smith and De Alwis [2016] VCC 705; R v Raines [2017] NSWDC 217; 25 DCLR(NSW) 239 and R v Falconer [2018] NSWSC 1765. Although none of these cases involved the ancillary liability of aiding and abetting such an offence, I have had regard to these decisions in determining the appropriate sentence.

Consideration

52.     The offender’s conduct was dishonest. He was prepared to aid and abet Mr Watt,

intending him to commit an offence and reckless as to the particular offence committed. He did so in circumstances where he must have been aware that his company was

obtaining a financial benefit from the “commercial agreement” that he had entered into

with CCR via Mr Watt and that the agreement was dependent upon the non-invoicing arrangement. However, it must also be borne in mind that the offender was not responsible for protecting the interests of CCR. That is the substantial differentiating factor between the position that he was in and the position of Mr Watt. For that reason, and because his liability is that of an aider and abetter, I consider that his conduct is substantially less objectively serious than that of Mr Watt.

53. In relation to the offender, I am not satisfied that the threshold in s 17A of the Crimes Act has been passed. Instead, the matter can be dealt with by requiring him to be of good behaviour for a period of three years and pay a pecuniary penalty of $22,000.

Orders

54.     The order of the Court is:

1.  The offender is convicted and, pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), it is ordered that the offender be released upon giving security without sureties by recognizance that he will comply with the following conditions:

(a)	that he will be of good behaviour for a period of three years;
(b)	that he will pay to the Commonwealth a pecuniary penalty of $22,000 on or before 8 February 2022.

I certify that the preceding [54] fifty-four numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 17 February 2021