R v Vilayur (No 3)

[2024] ACTSC 132

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Vilayur (No 3)

Citation: 

[2024] ACTSC 132

Hearing Date: 

1 May 2024

Decision Date: 

2 May 2024

Before:

Mossop J

Decision: 

1.    On the charge of conspiracy to dishonestly obtain a gain from a Commonwealth entity (CAN 6995/2020), the offender is convicted and sentenced to imprisonment for three years and four months commencing on 30 April 2024 and ending on 29 August 2027.

2.    The sentence is to be served by intensive correction in the community with the additional condition that the offender is to perform 300 hours of community service within that time.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – conspiracy to dishonestly obtain a gain from a Commonwealth entity – offender participated in scheme to influence government procurement process for contractors – lack of remorse – need for parity with sentences of co-offenders – sentence of three years and four months’ imprisonment to be served by intensive correction

Legislation Cited: 

Crimes Act 1914 (Cth), s 20AB

Crimes (Sentencing) Act 2005 (ACT), s 11(3)

Criminal Code (Cth), s 135.4

Public Interest Disclosure Act 2013 (Cth)

Cases Cited: 

Calatzis v Jones [2024] ACTSC 42

Cranfield v The Queen [2018] ACTCA 3

Lowe v The Queen (1984) 154 CLR 606

R v El-Debel; R v Kahlon (No 5) [2022] ACTSC 152

R v El-Debel; R v Kahlon (No 7) [2022] ACTSC 313

R v Nicholas; R v Palmer [2019] ACTCA 36

R v Vilayur [2023] ACTSC 59

R v Vilayur (No 2) [2024] ACTSC 2

R v Vilayur; R v Kahlon; R v El-Debel [2022] ACTSC 110

Parties: 

The King

Gopalakrishnan Vilayur ( Offender)

Representation: 

Counsel

D Staehli SC and J Nottle ( Crown)

M Keaney ( Offender)

Solicitors

Commonwealth Director of Public Prosecutions

Legal Aid ( Offender)

File Number:

SCC 95 of 2021

MOSSOP J:  

Introduction

1․On 5 March 2024, Gopalakrishnan Vilayur pleaded guilty to the offence of conspiracy to dishonestly obtain a gain from a Commonwealth entity, contrary to s 135.4(1) of the Criminal Code (Cth) (CAN 6995/2020). The maximum penalty is 10 years’ imprisonment.

2․Section 135.4(1) provides that a person commits an offence if the person conspires with another person with the intention of dishonestly obtaining a gain from a Commonwealth entity. In order for the offence to have been committed:

(a)the person must have entered into an agreement with one or more other persons;

(b)the person and at least one other party to the agreement must have intended to do the thing pursuant to the agreement; and

(c)the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement: s 135.4(9).

Facts

3․The facts are set out in an Agreed Statement of Facts tendered by the prosecution. The offender and his two co-offenders, Raminder Kahlon and Abdul El-Debel, collectively referred to as “the conspirators”, all worked in the Service Delivery Office (SDO), which was part of the Shared Services Transformation Group (SSTG) within the Department of Finance.

4․Mr El-Debel was an Executive Level 2 member of the Australian Public Service, with the title of “ICT Executive”. Mr Vilayur was a senior contractor reporting to Mr El-Debel, with the title of “Technical Delivery Director”. Mr Kahlon was a less senior contractor.

5․The SDO provided “shared services” to other federal government departments, including the provision of enterprise resource planning (ERP) software called SAP. The conspirators all had expertise in SAP. In total, more than 100 contractors worked at the SDO, with only approximately 18 public servants (that number including members of the executive).

6․Mr Kahlon was the owner and director of New Horizons Business Solutions Pty Ltd (New Horizons), a labour hire company which provided contractors, including Mr Kahlon himself, to the Department of Finance.

7․On 22 March 2019, Mr Vilayur became the owner and director of Algoram Business Solutions Pty Ltd (Algoram), a new labour hire company which Mr Vilayur intended would offer contractors, including Mr Vilayur himself, for future recruitment by the Department of Finance.

8․Mr Vilayur declared his ownership of Algoram to the Department of Finance and it was commonplace within the SDO for contractors to be contracted via their own labour hire companies.

9․From about 22 March 2019, the conspirators agreed that:

(a)New Horizons (through Mr Kahlon) would continue, and Algoram (through Mr Vilayur) would begin, to participate in offers of contractors to the SDO by responding to requests for quotation (RFQs) or through other means of recruitment.

(b)From time to time, Mr El-Debel would advise the panel responsible for procurement decisions, as the team leader responsible for supervising the recruited contractors.

(c)From time to time, Mr El-Debel would dishonestly provide Mr Vilayur and Mr Kahlon with information about such procurement exercises in which Mr Vilayur and Mr Kahlon represented Algoram and New Horizons. Mr El‑Debel would also provide advice to the relevant procurement panel with the object of influencing the recruitment process in favour of candidates put forward by New Horizons and Algoram.

(d)From time to time, Mr Vilayur and Mr Kahlon would collude when responding to RFQs on behalf of Algoram and/or New Horizons.

(e)From time to time, Mr El-Debel would encourage or influence procurement panel members to make recommendations for the selection of candidates offered by New Horizons and Algoram.

(f)From time to time, Mr Vilayur would organise for candidates to have advance knowledge of the procurement panel process to which they would be subjected, so as to give such candidates a dishonest advantage over other candidates.

(g)When such candidates were selected, New Horizons and Algoram (and therefore Mr Kahlon and Mr Vilayur) would obtain a gain from the SDO, namely, a share of the amounts payable in respect of the engagement of such candidates by the SDO.

(h)It was intended that, from time to time, an amount representing a portion of the share of such amounts payable obtained by New Horizons and Algoram would be paid to Mr El-Debel.

10․The investigation of Mr Vilayur, Mr Kahlon and Mr El-Debel by the Australian Federal Police followed a complaint made in February 2019 under the Public Interest Disclosure Act 2013 (Cth), alleging misconduct on their part. The Australian Federal Police began investigating them at the end of July 2019 and began intercepting their mobile phone communications in October 2019. The balance of the Statement of Facts records particular instances of conduct that formed part of the implementation of the conspiracy. Those instances may be summarised as follows.

11․In October 2019, an RFQ was published seeking IT workers of particular descriptions. New Horizons responded to the RFQ and Mr Vilayur participated in the evaluation of candidates. In November 2019, he recommended the selection of a candidate put forward by New Horizons and another candidate that he and Mr Kahlon had arranged to be advanced by another company. These workers were engaged by the Department.

12․In November 2019, Mr Kahlon and Mr Vilayur discussed having accrued profits of about $500,000 and Mr Kahlon’s plans to pay Mr Vilayur $50,000. Mr Vilayur acknowledged that he had received about $200,000 in cash from Mr Kahlon as “referral fees” for New Horizon candidates that Mr Vilayur had proposed. However, this amount is not proved beyond reasonable doubt to arise from the unlawful conduct. On 23 November 2019, Mr Kahlon told Mr Vilayur that he had received $30,000 for Mr Vilayur, which was given to Mr Vilayur the next day. In March 2020, Mr Kahlon and Mr Vilayur travelled to Sydney to collect a further payment of $33,000 for Mr Vilayur. Once again, it was not established beyond reasonable doubt that this payment arose by operation of the conspiracy.

13․In March 2020, a project known as GovERP was proceeding. On 5 March 2020, Mr El‑Debel told Mr Vilayur that the GovERP project was proceeding on the basis that he told no one else. However, Mr Vilayur used that information to create position descriptions which he fed back to Mr El-Debel, who then told those in charge of the project that these were roles which needed to be the subject of RFQs.

14․On 24 March 2020, Mr Vilayur called another worker, RA, who was to be a panel member for the departmental procurement process. Mr Vilayur told him that he (RA) would select people from Mr Vilayur’s list. The next day, Mr Vilayur discussed with Mr El-Debel how, through the influence of RA and Mr Vilayur’s selection of the procurement panel members, the conspiracy’s candidates would be selected.

15․In late March 2020, Mr Vilayur called Mr Kahlon to discuss the rates that they would offer their contractors in response to particular RFQs. The spreadsheet that they used included “bai’s cut” of five dollars per candidate per hour. This was a reference to the amount that would be paid to Mr El-Debel. In a telephone call on 28 March 2020, Mr Vilayur and Mr Kahlon discussed telling Mr El-Debel or RA that they needed to select particular candidates. They had a further conversation in which they were discussing the margins that each of the conspirators would receive as a result of the selection of candidates. They discussed doing this in front of Mr El-Debel so that he would be more motivated to obtain his share. There was a meeting between the three of them on 29 March 2020. Prior to that meeting, Mr Vilayur told Mr Kahlon to provide Mr El-Debel with a handwritten list of candidates, identifying the company they would be recruited through and whether they would be put on the merit list or a short list.

16․On 30 March 2020, the Department finalised plans for evaluating the responses to two RFQs. On that day, Mr Vilayur called RA and told him that he would have an advisory role for the evaluation committee and that they (that is, the conspirators) were trying to hire certain named people in certain roles. Mr Vilayur then reported back to Mr El-Debel about his conversation with RA. Mr El-Debel said he had done the same thing with “our friend here”.

17․In response to an RFQ identified as SST-044, Algoram was successful on eight out of the 18 candidates that it put forward. New Horizons was successful on five out of the 22 candidates that it put forward.

18․On 3 April 2020, Mr Vilayur spoke to RA. RA confirmed that he had completed his evaluation of the candidates for certain roles the subject of an RFQ identified as SST‑045 and that his preferred selections were all from Algoram. Mr El-Debel made a recommendation as to who should be on the interview panel. The evaluation committee selected the Algoram candidates subject to negotiation of the daily rate of one of them.

19․An indication of the magnitude of the transactions the subject of the conspiracy is given by the anticipated earnings from the three Algoram candidates that had been chosen by RA on 3 April 2020. Their daily rates to be charged by Algoram were $3190, $1980 and $1870, respectively. Over the estimated number of work days for which they were to be engaged, the fees charged for their services were expected to be $1,209,560.

20․A spreadsheet maintained by Mr Vilayur indicated a profit margin of approximately 15 percent after payment to the contractors, a payment to the recruiter who introduced each contractor to him and a payment to Mr El-Debel. It indicated that revenue was $157,020, the payment to the recruiter who introduced each contractor was $5360, the payment to Mr El-Debel was $3480 and the profit margin earned by Algoram was $23,599.73. The significant figures are the profit by Algoram and the quantum of the payment to Mr El-Debel as these provide an indication of the magnitude of the benefits that could be obtained through the dishonest scheme. The payment made to the senior insider, Mr El-Debel, represented 2.2 percent of the overall revenue.

21․In May 2020, Mr Vilayur spoke to a potential contractor, Mr Ravi Jagannathan, who was about to be interviewed by the Department. The interviewee was told who would be interviewing him. One of those persons would be Mr El-Debel and Mr Vilayur would send all the questions to be asked in the interview to Mr El-Debel. Mr El-Debel did in fact ask all the questions and the interviewee subsequently reported back to Mr Vilayur that he had been asked exactly the same questions that Mr Vilayur had mentioned in the exact same sequence.

22․By June 2020, six contractors had been engaged by the Department through Algoram. The spreadsheet maintained by Mr Vilayur indicated that, in June 2020, Algoram expected to earn revenue of $216,320, paying $155,800 to the contractors, $6400 to the recruiter who introduced each contractor to him and $4800 to Mr El-Debel, leaving a profit of $33,158.08. This was a gross margin of approximately 15 percent. Once again, the amount paid to Mr El‑Debel represented 2.2 percent of the total revenue.

23․The conspirators were arrested on 10 June 2020. As a result, the profits intended to be realised from the conspiracy were largely not realised. As at January 2020, New Horizons was earning a monthly gross margin in the order of $100,000 after deducting Mr El-Debel’s share. As at June 2020, Algoram’s gross margin was in the order of $33,000 after deducting Mr El-Debel’s share. In the 12 months from January to December 2020, the total gain which Mr Vilayur and Mr Kahlon expected to obtain was in the order of $1.6 million, which would be shared equally.

24․Following the arrest of Mr Vilayur, the Department of Finance terminated the contractors engaged through Algoram and New Horizons. However, the majority of those contractors were subsequently re-engaged through different labour hire companies.

Objective seriousness

25․The conspiracy involved an agreement that was designed to subtly infect the processes of the Department. Those processes were designed to ensure probity in contracting but were intended to be dishonestly distorted by the conspirators so that they would financially benefit. The operation of the conspiracy was interrupted by the intervention of the police. It was a conspiracy which had the potential to reap financial benefits for each of the offenders. Each of the following matters tends to increase the objective seriousness of the offending:

(a)it involved a significant breach of trust, as, although Mr Vilayur was a contractor, he was in a similar relationship to the Department as an employee;

(b)it took place over a substantial period, more than 14 months;

(c)it involved a degree of sophistication in order to manipulate the outcomes of the procurement process;

(d)the conspiracy had the potential to give rise to substantial financial gains to the offenders; and

(e)the motivation for the offending was greed rather than need.

26․As far as the gains from the conspiracy are concerned, it is not possible to precisely determine the amount of money that was the product of the unlawful activity. However, the amounts shown in Mr Vilayur’s spreadsheets, the magnitude of the contracts that were entered into in relation to individual contractors and the agreed fact that the total gain that was expected in the 12 months up to December 2020 was to be in the order of $1.6 million is indicative of the very significant potential gain anticipated by the conspirators as a result of the dishonest scheme had it not been interrupted.

27․However, there was no evidence that the contractors ultimately engaged were not suitable ones. It is not possible to say that the Commonwealth made a loss as a direct result of the dishonest scheme because, on any view, it needed to obtain the contract workers. It did, however, incur substantial costs in investigating the wrongdoing and addressing its consequences.

28․This offending is in the upper part of the mid-range of objective seriousness for an offence against s 135.4(1).

Subjective circumstances

29․The subjective circumstances of the offender are described in an intensive correction order assessment report dated 19 April 2024, a report of Professor Stephen Woods, a forensic psychologist, as well as various references and letters of support tendered on behalf of the offender. Insofar as the report of Professor Woods repeats statements made to him by the offender, I have treated it with considerable caution because the statements made by the offender have not been made on oath and have been unable to be tested.

30․Mr Vilayur is 54 years old. He was born and raised in India. He is the eldest of his parents’ three children. His siblings both live in the United States of America. His childhood was positive. His father, who died in 2014, encouraged Mr Vilayur to prioritise education and worked hard in order to allow his children to be educated. His mother is still alive and lives in the United States with his sister.

31․Mr Vilayur married his wife in 2002. Both he and his wife are of the Hindu faith and the Brahmin caste and the marriage was arranged by their families. He came to Australia in 2005 and obtained citizenship in 2007. He and his wife have two children, aged 16 and 19 years.

32․He has been in consistent employment since he joined the workforce. Since being charged with the current offences, he has continued to undertake further study.

33․Since being charged, he has suffered from some depression. He is diagnosed by Professor Woods as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, related to his legal circumstances. This is said to be exacerbated by the delay between becoming aware of the investigation and his sentencing, as well as adverse media reports about the case. Professor Woods identifies that being from the Brahmin caste, the public shame arising from the criminal offending has significant adverse cultural ramifications for his and his wife’s acceptance in their community.

34․During interviews for the intensive correction order assessment report, Mr Vilayur is recorded as having not accepted his offending behaviours and not acknowledging responsibility for his actions. He “justified and minimised his role in the offence”. That is consistent with the letter that he wrote to the court, which characterised his conduct as “actions that may have fallen short of fulfilling the obligations stipulated in the signed work order between the parties” and accepting that there “may have been lapses in my execution”. There was no frank recognition that what he had done was wrong, even in circumstances where he had agreed to a Statement of Facts that makes this very clear. His letter and the statements made to others reflect regret at the consequences for him and his family of the charges having been brought against him, but did not recognise the dishonesty and wrongfulness of his conduct.

35․He has been found suitable for an intensive correction order and suitable for community service work.

36․Professor Woods assessed him as having a low risk of reoffending and a low need for supervision in the community. That is consistent with the assessment in the intensive corrective order assessment report, which assesses him as being suitable for a low level of supervision and having strong protective factors.

37․During the period of the offending, he was responsible for the implementation of a number of high priority projects. He was forced to work extremely hard, working long days and often on weekends. Professor Woods’ report says that there is no evidence to suggest that Mr Vilayur was suffering from a mental illness at the time of the offending, but the report does include the following:

Based on Mr. Vilayur’s disclosures regarding his work-related accumulating level of mental fatigue at all material times, it is clinically probable that his ability to fully consider and appreciate the criminality of his behaviours would have, at least to some extent, been impaired.

38․Given the nature of the scheme and its length, I am only able to accept that statement because of its imprecision arising from the expression “at least to some extent”. I accept it only to a minimal extent. The dishonesty of the scheme would have been apparent to anyone.

39․During the pendency of the proceedings, Mr Vilayur reported to Professor Woods that he and his family had felt humiliated and shamed and that he felt that his children have been affected. He also reported to Professor Woods that restraining orders imposed upon his property during the pendency of the proceedings had resulted in financial hardship. The factual basis for the claim of financial hardship is not made clear in the report or by other evidence.

40․Professor Woods expresses the opinion that because of Mr Vilayur’s social and cultural background, his level of education and current brittle mental health with the risk of further decline, he would suffer “a far greater level of hardship as a correctional inmate than might otherwise be the case”. Professor Woods also draws attention to the adverse consequences of his incarceration for his wife and his teenage children. I accept this evidence and note that these are relevant considerations: see R v El-Debel; R v Kahlon (No 7) [2022] ACTSC 313 at [51].

41․As I have pointed out, the letter from Mr Vilayur himself does not contain any expression of remorse. It characterises the legal proceedings as being “oppressive” and involving the “collective punishment” of his family. A letter from Mr Vilayur’s son, unsurprisingly, reflects well upon the character of his father.

42․There is a letter from Ravi Kiran Puram Jagannatham, who has worked with the offender on a number of different projects. He attests to Mr Vilayur’s “unwavering integrity, honesty, and … strong sense of responsibility in both personal and professional realms”. The letter says that his “commitment to upholding ethical standards is exemplary”. I do not accept this evidence. That is because Mr Jagannatham appears to be the same person as is referred to in the Statement of Facts: Ravi Kiran Jagannathan. He was the person to whom Mr Vilayur gave advance notice of the questions that Mr El-Debel would ask at the interview and he then reported back to Mr Vilayur that the questions asked were exactly as had been earlier provided: see [21] above. It is not possible to place any weight on Mr Jagannatham’s opinion of Mr Vilayur’s high ethical standards in circumstances where Mr Jagannatham must have known that Mr Vilayur had so flagrantly departed from those standards.

43․There is also a letter from Mr Vilayur’s wife which attests to his good character. It also makes reference to the “highest standards of professional ethics” that Mr Vilayur had applied in his professional career and his “meticulous attention to detail” and focus on “delivering excellence”. It is not clear upon what basis Mr Vilayur’s wife is able to give evidence as to his conduct at work. The letter describes the family having suffered “severe financial hardship and extreme emotional strain” as a result of the proceedings against him. I have indicated earlier that the factual foundation for a claim of severe financial hardship has not been established, but I do accept that the emotional strain of a drawn out court process would have extended beyond Mr Vilayur to his family.

44․There is a reference from Nityanand Gowda, who speaks favourably of Mr Vilayur’s conduct as the SAP Technical Delivery Project Manager, his strong work ethic and dedication, working long hours and taking on additional responsibilities without hesitation. He indicates that he was impressed with Mr Vilayur’s “creativity and innovative thinking”.

45․Finally, there is a reference from a friend and work colleague who worked with Mr Vilayur for SAP India. He indicates that he firmly believes that Mr Vilayur’s conduct “is not representative of his character or the values he upholds”.

46․Mr Vilayur has no criminal convictions.

47․In light of the available evidence, it can be concluded that Mr Vilayur was a hard worker and that, apart from the current offending, he is a person of good character. The weight that can be given to his good character is tempered by the fact that his good character contributed to his ability to be in a position where he was able to participate in the criminal conspiracy.

Guilty Plea

48․The proceedings were first before the Magistrates Court on 11 June 2020. On 15 April 2021, Mr Vilayur was committed for trial in the Supreme Court.

49․On 26 October 2021, the trial of the three conspirators was listed to commence in the week of 30 May 2022, with an estimate of six weeks. On 20 May 2022, Elkaim J severed the trial of Mr Vilayur from those of Mr Kahlon and Mr El-Debel: R v Vilayur; R v Kahlon; R v El-Debel [2022] ACTSC 110.

50․In February 2023, Baker J heard an application to quash the indictment and for a permanent stay. That application was dismissed on 24 March 2023: R v Vilayur [2023] ACTSC 59.

51․On 31 July 2023, the proceedings were listed for trial by jury commencing on 4 March 2024. At that stage, it had an estimate of six weeks.

52․An application for further disclosure brought by Mr Vilayur was part heard before McWilliam J on 19 September 2023. That application was resolved by consent on 3 November 2023.

53․A further amended application was then filed and was the subject of submissions made on 13 December 2023. McWilliam J dismissed that application and published reasons on 12 January 2024: R v Vilayur (No 2) [2024] ACTSC 2.

54․In February 2024, the trial was listed before Baker J. Prior to the date for the commencement of the trial, Baker J made some pre-trial orders requiring any further pre‑trial applications to be filed by 4 March 2024. On 5 March 2024, the offender pleaded guilty.

55․The guilty plea was a very late one. It followed a number of pre-trial applications. Notwithstanding the lateness, it still had significant utilitarian value as it avoided the need for a trial which was estimated to last for a very substantial period. Having regard to the decision in Cranfield v The Queen [2018] ACTCA 3 and the structured regime of incentives reflected in the decisions of the Court of Appeal, as summarised in Calatzis v Jones [2024] ACTSC 42, notwithstanding the lateness of the plea, it is appropriate that the offender receive a reduction in the sentence that would otherwise have been imposed of 10 percent.

Time in custody

56․The offender has spent two days in custody in relation to the offending. This will be taken into account by backdating the sentence.

Co-offenders’ sentences

57․The co-offenders, Mr El-Debel and Mr Kahlon, faced the same charge as Mr Vilayur. The trial of the co-offenders commenced on 31 May 2022 and on 7 July 2022, the jury returned a verdict of guilty in respect of each offender. They were sentenced by Elkaim J on 15 November 2022: R v El-Debel; R v Kahlon (No 7). Each received a sentence of three years and six months to be served by intensive correction order with 300 hours of community service.

58․Elkaim J described the conspiracy in a manner similar to that outlined in the agreed facts in the present case. His Honour found that the seriousness of the conduct was tempered by five matters:

(a)The Department did not suffer a loss because it would have paid the same rates to a contractor in any event.

(b)The Crown could not say how much money was the product of the unlawful activity or how much money was paid to Mr El-Debel as a result of the conspiracy.

(c)There was no suggestion that the candidates were not competent to do the jobs for which they were retained.

(d)Although the charged conspiracy operated from 22 March 2019, when Algoram was incorporated, until the arrest of the conspirators on 10 June 2020, it was not operating constantly over that period. The high point of the evidence applied to two contracts, SST-044 and SST-045, limiting the relevant period to 28 March 2020 until 10 June 2020.

(e)There were occasions when candidates put forward by competing companies were favoured over those put forward by New Horizons or Algoram. This may have occurred to maintain an appearance of legitimacy, but strengthened the conclusion that the conspiracy was acting on a part-time basis.

59․Because of the absence of any monetary loss, Elkaim J found that the objective seriousness of the offending was difficult to assess. He found that the fraud, which involved the infiltration of a government department for personal gain, was objectively serious, but that little more could be said.

60․It is notable that the material relating to the spreadsheet kept by Mr Vilayur, which is referred to earlier in these reasons (see [20] and [22] above), was not available to be used against Mr El-Debel and Mr Kahlon because it was ruled to be inadmissible against them: R v El-Debel; R v Kahlon (No 5) [2022] ACTSC 152, and hence was not available to Elkaim J to determine the consequences of the conspiracy.

61․In relation to a payment of $34,000 in cash to Mr El-Debel, Elkaim J concluded that, while Mr El-Debel was being paid for participation in the conspiracy, he was not satisfied beyond reasonable doubt that the $34,000 represented a specific payment referable to contractual margins.

62․His Honour rejected a Crown submission that the only appropriate sentence was a term of imprisonment because of the “uncertainty of vital circumstances” that he had explained.

63․Although Mr Vilayur was not identified by name in the reasons, his Honour assessed Mr Vilayur’s involvement as being more significant than that of Mr El-Debel or Mr Kahlon. He said, “The third person clearly came across as the person ‘in charge’ and generally directing his co-conspirators”: R v El-Debel; R v Kahlon (No 7) at [21].

64․His Honour said there was no reason to impose any harsher sentence on Mr El-Debel than on Mr Kahlon.

Consideration

65․Two points are of particular significance for the sentence to be imposed upon Mr Vilayur.

66․First is the principle of parity, having regard to the very lenient sentences imposed upon Mr El-Debel and Mr Kahlon. The principle of parity is the principle that offenders who are party to the same offending should not be sentenced in a way which is so different so as to create a justifiable sense of grievance on the part of the offender receiving the heavier sentence or give the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606. The principle “acknowledges the need for consistency in punishment while recognising that sentencing is individualised and offenders present with different subjective circumstances that must be taken into account”: R v Nicholas; R v Palmer[2019] ACTCA 36 at [99].

67․Second, notwithstanding that the Agreed Statement of Facts differed in some respects from the facts found by Elkaim J which formed the basis of the sentencing of Mr El-Debel and Mr Kahlon, the Crown did not contend that the role of Mr Vilayur was greater than that of Mr El-Debel and Mr Kahlon. The Crown did not seek a finding equivalent to that made by Elkaim J that Mr Vilayur was in charge and generally directing his co‑conspirators.

68․Having said that, as a result of the evidence in the spreadsheet (see [20] and [22] above) and the agreed facts as to the expected gains from the scheme had it continued up until December 2020 (see [23] above), the evidentiary position in this case as to the product of the unlawful activity is clearer than it was in the proceedings before Elkaim J. That evidentiary position reduces the significance of one of the factors which Elkaim J considered tempered the objective seriousness of the offending.

69․Mr Vilayur has not demonstrated any real remorse, although he did cooperate with the investigation to a greater degree than his co-offenders. He certainly regrets the consequences of his prosecution for himself and his family. Apart from the offending, Mr Vilayur has been a hard worker and has successfully managed difficult projects at a high level. In the present case, the conduct engaged in appears to have been an aberration.

70․Notwithstanding the absence of remorse, it is clear that both the offender and his family perceive that they have been substantially punished for his conduct, as a result of its personal, financial and reputational consequences. Because of this and the protective factors identified in the intensive correction order assessment report, I consider that the offender is unlikely to reoffend and specific deterrence is of only limited significance in sentencing the offender.

71․I am satisfied that no sentence other than a sentence of imprisonment is appropriate in the circumstances of the case.

72․The appropriate starting point is a sentence of imprisonment of three years and nine months (45 months). That adequately reflects the gravity of the offending conduct, having regard to the maximum available penalty and the subjective circumstances of Mr Vilayur. It is slightly higher than the starting point in relation to his co-offenders, as a result of the clearer evidence as to the gains made and anticipated to have been made from the conspiracy. This sentence will be reduced to three years and four months (40 months) on account of the plea of guilty which, as pointed out above, was late but of significant utilitarian value and distinguished his circumstances from the circumstances of his co-offenders.

73․As to how this sentence should be served, but for the sentences imposed upon Mr El‑Debel and Mr Kahlon, I would have considered that only a sentence involving a substantial period of full-time imprisonment would have been appropriate. That is because of the need for general deterrence of dishonest conduct by persons in positions of trust involving the interference with government procurement processes for personal gain.

74․However, to impose a period of full-time detention in circumstances where the Crown accepts that the involvement of the offender was not to be distinguished from his co‑offenders, where his subjective circumstances do not warrant greater punishment and where the Crown did not appeal against the very lenient sentences imposed on the co‑offenders, would give rise to a justifiable sense of grievance on the part of Mr Vilayur, even though the evidence of financial gain and intended gain was stronger in his case. As a result, parity requires that I do not impose such a sentence. In those circumstances, and in circumstances where Mr Vilayur has been assessed as suitable for an intensive correction order, it is appropriate to adopt the same approach as adopted by Elkaim J in relation to the co-offenders, namely, to order that the sentence of imprisonment be served by intensive correction in the community.

75․Although an intensive correction order is a creature of Territory law, it is a sentencing disposition which is available pursuant to s 20AB of the Crimes Act 1914 (Cth). Because of the issue of parity, I consider, having had regard to the matters in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT), it is appropriate to make such an order. A requirement to perform community service will contribute to the punishment component of the sentence.

76․The overall sentence will be, therefore, a sentence of imprisonment of three years and four months, which is to be served by intensive correction in the community with the additional condition that the offender perform 300 hours of community service.

Orders

77․The orders of the Court are:

1.On the charge of conspiracy to dishonestly obtain a gain from a Commonwealth entity (CAN 6995/2020), the offender is convicted and sentenced to imprisonment for three years and four months commencing on 30 April 2024 and ending on 29 August 2027.

2.The sentence is to be served by intensive correction in the community with the additional condition that the offender is to perform 300 hours of community service within that time.

I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 13 May 2024