R v Walsh
[2000] VSC 114
•31 March 2000
| SUPREME COURT OF VICTORIA |
| Not Restricted |
No.1460 of 1998
| Queen |
| v |
| John Richard Walsh |
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JUDGE: | Smith J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 1999 – 27 March 2000 | |
DATE OF JUDGMENT: | 31 March 2000 | |
CASE MAY BE CITED AS: | R. v. Walsh | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 114 | |
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Crime – Sentence – Conspiracy to defraud - Attempting to pervert the course of justice.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J. Rapke QC with Mr. P. Kidd | Solicitor for DPP |
| For Walsh | Mr. M. Lincoln with Ms. M. Hodgson | Barretts Solicitors |
HIS HONOUR:
REASONS FOR SENTENCE IN MATTER OF
R. v. JOHN RICHARD WALSH
John Richard Walsh has been found guilty on four charges:
1.Between 1 October 1991 and 31 December 1992 he conspired with Gopal Nair, Adrian Powles, Patrick John Madden and Lin-Par Ltd (Lin Par) to defraud the Nauru Phosphate Royalties Trust (the Trust) by dishonestly inducing the Trust to invest money in a purported investment scheme proposed by them.
2.Between 1 December 1992 and 31 December 1993, with the intent to pervert the course of public justice, he made and used false documents with the intent of impeding and frustrating a police investigation or deflecting the police from adducing evidence of the true facts. The Crown listed 23 false documents as created and used by Walsh but its case was that the list was not exhaustive.
3.Between 8 July 1993 and 15 December 1993, with the intent to pervert the course of public justice, he attempted to persuade Gregor Dougall to provide false information to members of the Victoria Police Force and to give false evidence in any judicial proceedings with the intent of impeding a police investigation or deflecting the police from adducing evidence of the true facts.
4.Between 1 October 1993 and 31 January 1994, with intent to pervert the course of public justice, attempted to persuade Peter Boyle to provide false information to members of the Victoria Police Force and to give false evidence in any judicial proceedings with the intent of impeding a police investigation or deflecting the police from adducing evidence of the true facts.
I note that Boyle was the Secretary to the Trust and Dougall was the Administrative Manager and second in command to Boyle. Powles was the London partner of Allen, Allen and Hemsley. Madden was a Canadian Q.C. Nair claimed to hold a Doctorate of Economics.
The offences at all relevant times were common law offences and carried no prescribed maximum penalties.
It is necessary at the outset that I express my conclusions on the relevant facts concerning the offences. On the authorities, I must form my own view of the facts and decide how serious the crimes were. Not having the benefit of access to the detailed deliberations of the jury, it may well be that my assessment of the facts differs in some detail from that of the jury. I bear in mind, however, that any view I form must not conflict with the verdict of the jury. (R. v Hill [1979] VR 311 and R. v. Harris [1961] VR 236). In making the findings that follow, I have applied the criminal standard.
Looking at the cases presented by the Crown on each count, count 1 presented the jury with a significant number of alternative approaches. Counts 2, 3 and 4, however, were relatively straight forward and provide a convenient starting point in determining the facts.
In relation to count 2, the Crown's case was that in the period referred to above, Walsh set about creating and using a number of false documents to establish what he called a procurement fee agreement with the Trust and a loan agreement with Dougall – the first to justify payments of Trust moneys he, Walsh, had received and the second to justify payments of Trust moneys to Dougall. In relation to counts 3 and 4, the Crown case was that, between the dates referred to above, Walsh set about trying to persuade Dougall and Boyle to support his story about the two agreements. The Crown argued that in so acting Walsh was attempting to impede and frustrate a police investigation and to persuade both Dougall and Boyle to give false evidence if necessary.
It is theoretically possible that the jury might have differentiated between an attempt to create a false case in support of the procurement fee agreement on the one hand and an attempt to create a false case in respect of the loan agreement. It would be artificial, however, in light of the evidence, to make such a distinction. They were intertwined in Walsh's story. In particular, I am satisfied that Walsh used the fact that Dougall had been receiving secret commissions as the lever to try to secure his agreement to support his story of the procurement fee agreement. The idea was that they would say that the loan monies paid to Dougall had come out of the procurement fee monies. In any event, the case presented by the Crown on these issues was extremely strong and I have no doubt that the jury was satisfied beyond reasonable doubt that Walsh created all the listed documents, that he created them after the events recorded in them, that they were false and that he used them and presented them to the police in an attempt to frustrate the police investigation and to provide false evidence should the matter ever go to trial. I have no doubt also that the jury was satisfied beyond reasonable doubt that Walsh attempted to persuade Dougall and Boyle to support his fictitious case both by giving false information to the police and by giving false evidence if called upon to do so. That I am satisfied is clear from the listening device tapes as well as their own evidence.
Those conclusions have consequences in respect of count 1. In particular Walsh's conduct relevant to counts 2, 3 and 4 gave rise to the strong inference that, absent his false story about the procurement fee agreement, he realised he could not justify his receipt of any of the money from the Trust. It also gave rise to the strong inference that he was a party to the bribing of Dougall and could not justify the payments to Dougall. I also note that the loan agreement, as put forward by Walsh operated from the first payments made to Dougall. I am satisfied that these inferences should in fact be drawn in light of all the evidence including that given by Walsh.
Turning to Count 1, it was common ground at the trial that a conspiracy existed at all relevant times to the full extent pleaded by the Crown between Nair, Powles, Madden and Lin Par. It was also common ground that Walsh was the representative in Australia of Nair, Madden and Lin Par from 1 June 1991. The issue was whether he was also a party to the conspiracy to defraud the Trust.
The Crown's primary position was that Walsh entered the conspiracy with the others shortly prior to 22 October 1991. Alternatively, the Crown argued that he had joined the conspiracy by 23 April 1992. Two joint and several objects were alleged. The first was the object of taking funds belonging to the Trust. The second was to persuade the Trust to invest monies in the scheme and thereby accept the risk of economic loss which risk it would or might not have accepted if informed of the true facts.
The Crown alleged that there were one to ten different dishonest methods agreed to be employed. The Crown argued that Walsh joined with the others in lying to the officers of the Trust on about 22 October 1991 about a number of matters, notably;
1.The capacity and expertise of Nair, Madden and Linpar in trading in the Prime Bank Instruments.
2.The manner in which the Trust's money would be handled; it was to be held by Powles in a Trust account at Allens in London and would be removed from such account only for the purchase of Prime Bank Instruments and, through Powles, the money or Prime Bank Instrument would at all times be under the control of the Trust.
The Crown also argued that, during the currency of the conspiracy, Walsh agreed with the others dishonestly to induce the Trust to leave funds with Powles in London and to add to those funds by lying about the progress and success of the scheme, by dishonestly concealing from the Trust the fact that the funds were not being handled as had been promised and by dishonestly concealing that Nair, Powles, Madden and Lin Par had lost control of some of the Trust funds – in particular an amount of approximately $8.55M, part of the first money transmitted by the Trust to Powles in late 1991. Finally, the Crown alleged that Walsh joined with the others to bribe Dougall.
I do not propose to canvas all the arguments that have been put about Walsh's knowledge of and participation in the conspiracy. It may be that as at 22 October 1991 Walsh honestly believed, as he represented to the Trust, that there was a genuine market of a highly secret nature in Prime Bank Instruments in which extraordinary profits could be made without any risk. It may be that he genuinely held that belief notwithstanding his own lack of success in several earlier attempts involving Nair and the lack of success in several earlier attempts of which he was aware involving MacSporran and Madden. I am satisfied, however, that he should, and would, have had reservations about the integrity of Nair in view of his experiences with Nair and the failed attempted transactions in the so called Prime Bank Instrument Market involving a former solicitor named Aldred and Mr Cuda. On the other hand, there was no evidence to suggest that Walsh had any basis for thinking that the money would not be safely held by Powles, at least as at the 22nd October 1991, or that he had any reason to doubt the integrity of Madden, the Canadian QC. The proposal put to Walsh and by him to the Trust involved both those gentlemen. They gave the proposal an aura of respectability and probity which might well have justified Walsh in believing at that time that this was a genuine business proposition in which he could properly become involved. That having been said, he had no basis other than what he had been told by Madden and Nair to suggest that Nair and Madden were able to trade in these Prime Bank Instruments and had the expertise to do so. Nonetheless, at that early stage of approximately 22 October 1991, I proceed on the basis that whatever marketing "poetic licence" Walsh employed in his representations to the Trust, Walsh was entitled to believe, on the knowledge he had, that the money would be safe with Powles what ever happened in the attempted dealings.
I am satisfied, however, that very soon after the initial dealings with the Trust, he joined in the bribing of Dougall and the taking of Trust money to which they were not entitled.
I refer again to the conclusions I have drawn from the findings of guilt on counts 2, 3 and 4. In addition, as to the bribery, I accept that between meetings at the Trust on the 22nd October 1991 and in November 1991, Dougall spoke to Walsh about the possibility of getting something for himself in view of the large sums of money that were going to be generated. What he raised with Walsh was the provision of an airline ticket or travellers' cheques. I am also satisfied that Walsh indicated to Dougall, a little later, that he would be prepared to pay Dougall $20,000. I accept also that Walsh received a memorandum from Nair in the latter months of 1991 (document 237) which expressly put forward a proposal that they pay Dougall US$50,000 "as commission on the transmission of $4.4M" in the context of details of the initial proposal which was for a Standby Letter of Credit with a $5M face value for which $4.4M would be paid. I reject Walsh's evidence that when he received this document he immediately tried to put a stop to the proposal of bribing Dougall. On the contrary, in late March or very early April Walsh received a letter from Nair. In it Nair said:
"Please impress on GD [Gregor Dougall] that I am not happy for him to leave us holding the 'baby". WHILST HE HAS RECEIVED DIVIDENDS. [Nair's emphasis] We require some more support from him and backing as to what we are doing."
Walsh said in evidence that Lin Par was pressing constantly for more money. As to the reference to "dividends", he said the loans were certainly dividends and that was what Nair would have meant. He said in cross-examination that he had no doubt that Nair was referring to the loans but could not give a reason why Nair would have used the word "dividends". The explanation was absurd. The letter was plainly written by Nair to Walsh as a person whom he knew was well aware that Dougall had been receiving secret commissions and that he had not performed as Nair and Walsh had been expecting in return for those commissions.
There was no dispute that $4,000 was paid to the benefit of Dougall on 21 January 1992 when that amount was paid to his daughter who was travelling in Europe and there was no dispute that a further sum of $20,000 was paid to a company with which Dougall was involved on 5 February 1992. Walsh's loan agreement story involved the express admission that he was aware of those payments when they were made.
On all the evidence, it was clearly established that before the end of January 1992, Walsh had agreed to bribe Dougall. Dougall's importance was demonstrated by what occurred. He physically organised the transmission of funds to England to the account operated by Powles and he applied pressure at strategic moments to encourage the transmission of money to England.
So far as the taking of Trust money was concerned, Walsh received a total of US$838,400.00. I have referred elsewhere to the money taken by the others. The first amount of Trust money, US$8.7M, was transmitted by the Trust to London to Powles on the 23 December 1991. On 3rd January 1992 Walsh received a payment of $2,000 from that money and on the 24th January 1992 he received two cheques from the same funds totalling $41,000. On the 4th February 1992 he received a further payment of $33,200 from the same funds. In that time money was also passed to Madden's wife and Nair's wife. I am satisfied that prior to the end of January, Walsh was in agreement with the others that he, Walsh, and the others should receive payments out of monies forwarded by the Trust.
It seems to me that the conclusion must also follow that, what ever Walsh may have believed about the probity of the proposal he had joined in promoting so energetically in October 1991, by the end of January 1992, he knew it was a fraud. Thereafter, he continued to work with the others to encourage the Trust to invest further monies. In the end the Trust was persuaded to transfer to London approximately US$61M for investment in the so-called Prime Bank Instruments, over US$50M of which was transferred after 31 January 1992.
The conspirators obviously had different roles to perform and in that sense it is difficult to compare the relative significance of each. Powles and Madden QC were obviously very important in giving respectability to the scheme so far as the Trust was concerned and Powles was extremely important in providing the appearance of safety for any money sent to London. Madden and Nair plainly had a significant role to play in dreaming up the complex proposals and explanations that passed from them to the Trust about the various proposals. In a sense they were the generals and Walsh and Powles were not. Nonetheless, Walsh played a critical and in some ways, a more significant role in the scheme. It was his task to market the conspirators' proposals to the Trust in Melbourne for as long as the conspiracy lasted. He was to be their eyes and ears in Melbourne and it was his task to work his way into a position where the Trust relied upon him. In these tasks he was remarkably successful. He was constantly in attendance at the offices of the Trust. He secured himself a position on a committee set up by the Trust to manage the investments for the Trust. Walsh in fact has maintained that he was effectively consultant to the Trust and manager of the proposed investment scheme for the Trust. That, in truth, appears to have been the case. Thus he secured a position of trust with those operating the Nauru Trust and, in doing so, secured a position where he could keep his co-conspirators well informed about what was happening in Melbourne and could himself take action to deal with any anxieties or problems raised by the Trust.
During the first half of 1992 Walsh, in performing his role, actively concealed information from the Trust and misled the Trust. The following are examples
1.He promoted the "Master Collateral Commitment" proposal about which he maintains he knew very little. A "Master Collateral Commitment" was supposed to be a document issued by a "Prime Bank" which would enable the holder to issue "Prime Bank Instruments" for the purpose of trading in them. It required a fee and the conspirators successfully persuaded the Trust to transfer to London an amount in excess of US$4M for the purpose of buying one.
2.Notwithstanding his position as consultant and manager to the Trust, he chose not to encourage the Trust to find out why it was that in the first few months of 1992 only two alleged transactions had taken place when they should have been taking place every ten days.
3.On 30 March 1992, he ensured that a proposed due diligence trip by the Trust, armed with a stringent program of enquiry, did not take place because of what it would reveal.
4.On 23 April 1992 he met with Nair and Powles at the Southern Cross Hotel prior to a meeting with the Trust. I am satisfied that they met for over an hour and rehearsed what they were going to say. I am satisfied that by that time, if not earlier, Walsh was aware of what had occurred in relation to the alleged roll-overs including the loss of the $8.5M, the sum first transmitted. I accept that he agreed with Powles and Nair to withhold that information from the Trust and to work to persuade the Trust to transmit a further sum of $20M for further investment. They were successful in that objective and a further amount was remitted to Powles in London of US$20.55M in early May 1992 for investment.
When, in about the middle of 1992, the Trust and its officers started to become dissatisfied with the performance of the investment scheme Walsh commenced to play a double game. In dealing with the Trust he purported to share their concerns about the lack of performance by Lin Par. At the same time he continued to work with Nair, Madden and Powles.
Towards the middle of 1992, the conspirators became concerned about the prospect of an audit of Allen's accounts and the need to be able to justify the disappearance of substantial sums of Trust money. They attempted to create an entitlement on the part of Linpar to penalties in the event that the Trust withdrew funds. As it happened, Boyle decided at about the same time that it would be desirable to have US$6M set aside from the program in case the Trust needed money urgently. Walsh, while agreeing with Boyle that there would not be any penalties, cleverly persuaded him to write an acknowledgment on 16 June 1992 to Lin Par that it could deduct "any penalty incurred". Walsh and Nair then set about creating documents to support the existence of a substantial liability for penalties, sufficient to cover the money taken. The false paper trail included back dated letters.
In the latter half of 1992 Walsh secured an invitation to the due diligence trip to the Bahamas and London in July. On the due diligence trip, far from exposing the realities of what had occurred as the Trust's consultant and manager, he tried to promote the investment scheme with the Trust's solicitor, Mr Weston, in London. Following the due diligence trip the Trust decided to bring the Lin Par program to an end. Walsh purported to encourage the Trustees to do that while continuing to maintain contact with his co-conspirators and attempting to place himself in the position to promote similar schemes with the Trust.
Towards the end of the year, he worked with his co-conspirators to try to stop the return of money to the Trust and in particular tried to frustrate Mr Weston's efforts to retrieve the money. He worked with the others to use the penalty argument to thwart those attempts. In those latter months he was also working in conjunction with Powles, Nair and Madden to persuade the Trustees to carry out a purchase and sale of a Prime Bank Instrument through officers of Paine Webber, Bear Stern and Josephthal Lyon and Ross in America, officers who proved to be corrupt.
Throughout most of 1992, I am satisfied that Walsh was aware that Powles was not someone upon whom the Trust could rely to protect the funds that were transmitted to London. I am satisfied that he himself took advantage of that fact to have paid to himself without any justification the abovementioned sum of US$838,400. He did nothing, however, to disabuse the Trust's belief that Powles was a person who could be trusted to safeguard their interests in the handling of the money. I am satisfied that he knew for most of 1992 that monies transmitted to London were also at risk because of the lack of integrity of those involved. Nonetheless, he persisted in promoting the scheme and persuading the Trust to entrust more money for investment in it.
Walsh persisted after the failure of the purported investment scheme to continue to attempt to promote investment schemes involving "Prime Bank Instruments" in 1993. By this stage the only charitable explanation that can be advanced is that he had created his own "virtual reality" that there were untold riches to be made if only an entrance could be obtained to this highly secret market. A moments rational thought, however, would cause any reasonably astute person to have reservations about the proposed scheme. The purported guarantee of extraordinary profits and no risk flew in the face of experience. Mr Weston, for example, when the scheme was explained to him in July 1992 had immediate reservations about it. He could not understand how the alleged roll-over profits could be made unless the person issuing the Prime Bank Instrument at the issuing bank sold it at a substantial loss to the issuing bank.
The conspiracy, however, put approximately US$61M at risk and resulted in the loss of US$11M. It was fortunate that not more money was lost. It resulted in Walsh and the other conspirators receiving substantial personal financial benefits. The conspiracy was conducted for a little over a year with a high level of deception and concealment and the bribery of a Trust officer. It was a highly sophisticated fraud. From at least late January 1992 Walsh knowingly participated in it in all its aspects including the corruption of Dougall. On any view Walsh's criminality was serious indeed.
Walsh's criminality, however, did not end with the cessation of the conspiracy. He embarked in late 1992 upon an elaborate, protracted and sophisticated attempt to pervert the course of justice. He first went to the corrupted Trust officer, Dougall to enlist his aid in creating a false document in which the Trust purported to acknowledge an entitlement on the part of Walsh to a procurement fee of 3% as soon as Trust funds were received in London by Powles. Walsh persuaded Dougall to have this letter typed in about the middle of December 1992 and back dated to 2 January 1992. He was able to do so because Dougall was then in a desperate situation having received secret commissions and being liable to exposure any day. Walsh's proposal carried with it a promise to create a case that the payments that Dougall received were paid to him by Walsh pursuant to a loan agreement funded by Walsh from the procurement fees received by him pursuant to the other agreement.
Walsh proceeded also to prepare other letters over the ensuing months which were back dated and which he attempted to fit into the sequence of events as recorded in the genuine correspondence. This was no spur of the moment haphazard enterprise. It was carefully conceived and carefully carried out and involved considerable work. Walsh, however, had not allowed for the fact that his draft of the document would be found on his computer as a document created on 17 December 1992 or that the accounts clerk who typed the critical procurement fee agreement document of 2 January 1992 would have a clear and vivid recollection of the typing of the documents. He also he had not banked on Dougall deciding not to go along with the false story.
Not content with the creation of these documents, Walsh also embarked upon the program of trying to persuade Dougall and Boyle to support the story and its documents. He met Dougall and Boyle on a large number of occasions, often at great length, usually in his car, to talk with them about the progress of the police investigation and to attempt to persuade them to support the procurement and loan fee stories. When he found that Boyle would not support them, he attempted to persuade Boyle to be vague. He offered Boyle financial inducements. He had his solicitor prepare a statement for Boyle to sign recording Walsh's story and gave it to Boyle. He knew that it did not record Boyle's recollection but attempted to persuade him to agree or be vague. In the case of Dougall, he again used his precarious position to apply pressure.
To complete the picture, Walsh, to support his story, instructed a solicitor to make a claim against Allens for what he claimed was still owed to him for the procurement fee – an amount of over $800,000. Letters were exchanged. Ultimately, this move rebounded against Walsh because he had plainly told the solicitor that the procurement fee agreement was with the Trust and not Lin Par whereas at the trial his position was that the agreement was with Lin Par and not the Trust, there being no witness who would support the Trust agreement story.
In further support of his story, he arranged with his accountant to open a file in which to store the false documents that he had created – presumably to give the impression of authenticity.
Finally, during 1993, he also made a considerable effort to hold people together like Powles and Nair and get them to support his story. At times he lied to those to whom he spoke to try to gain their support; for example, he lied to Boyle that Dougall said he, Boyle, had approved an up-front fee and that Walsh's solicitor had advised that Boyle should be vague.
His actions in attempting to persuade Boyle and Dougall was again no spur of the moment, temporary lapse of judgment on the part of Walsh. He embarked upon a sophisticated, concerted and arduous campaign to try to defeat the police investigation, at least as far as he was concerned. His attempt was directed not only to persuading Dougall and Boyle to give false information to police but also to give false evidence if called upon to do so. As he said at the time, he was trying to "kill" the investigation. His criminality here was also very serious.
The four offences warrant substantial punishment. In addition general deterrence obviously is a very important consideration in the fixing of any sentence. Unlike Powles, Walsh cannot point to any psychiatric illness that might be said to have reduced his culpability or rendered him an unfit vehicle for general deterrence. The offences require the imposition of significant terms of imprisonment.
Turning to facts relating to Walsh, he is a man aged 55 and will be 56 at the end of September of this year. There is no evidence of poor health. He has been married for 33 years to his wife Carol. They have three children all now young adults with good employment and histories. His own parents are still alive. I accept that he has been very committed to his family. He and his wife obviously have much to be proud of as parents.
Walsh was not educated beyond Form 4 and went to work with his father who was a butcher. He worked with his father for some 10years until 1972. He met and married his wife and together they set up a business, Consumer Research Australia in about 1974. They conducted research notably for pharmaceutical manufacturers in relation to products and, it seems, did very well. Walsh found that he had a particular skill in marketing and in the course of his work for pharmaceutical manufacturers came into contact with hospitals and the Red Cross. During the 1980's he developed promotional packages to raise funds for organisations like the Red Cross. The packages at the same time obtained publicity and business opportunities for companies such as insurance companies and opportunities for himself. It was said that these programs he developed were very successful for all and raised substantial sums for such charitable organisations. He was thus able to combine lucrative business opportunities for himself with worthwhile causes. By 1988 he had established an affluent life style for himself. He held substantial assets and had substantial income. Mr Lincoln said that, for reasons he could not explain, Walsh effectively threw it all away.
Certainly it appears that in the late 1980's his ambitions were directed to other business opportunities, business opportunities in which he had had little or no experience. He attempted to acquire an insurance company but was outbid. He purchased a company called "Caraparts" which he thought he could make "leaner and meaner" and sell at a profit. This proved to be his financial downfall and serious financial problems ensued from that exercise. A receiver was appointed in about January 1990. By mid 1991, when he became Lin Par's representative, he was in considerable financial difficulty and was negotiating with, and fighting off, creditors. He needed substantial sums of money quickly.
Mr Lincoln spoke of his considerable marketing skills and how he had for a brief period in 1997 attempted to work again in that area. Counsel called evidence from the person who was general manager of Norwich Union at the time. Walsh did some work for him which he praised. Unfortunately, what occurred in the present case was that Walsh directed his considerable marketing talents towards the Nauru Phosphate Royalties Trust and persuaded it to participate in the scheme.
It is necessary to consider next some prior and subsequent convictions for offences of dishonesty. On 4 September 1990 Walsh was convicted on a charge of obtaining financial advantage by deception. The events in question occurred in 1988 when he was attempting to raise funds to purchase an insurance company, the attempt I have already mentioned. He was introduced to a financier from Lebanon through the GRE Insurance Group. The facts of the case were summarised in the case of R v Walsh (1990) 52 A.Crim.R. 80 at 81. There the Court of Criminal Appeal summarised the facts as follows:
"The applicant attempted to become a creditor of Westpac Bank in the sum of US$430,000 by means of a counterfeit bank draft drawn on the Arab Bank Ltd, Lebanon, and payable in the United States of America to Barons Pty Ltd, when he lodged a counterfeit draft with the Westpac Bank at Ringwood on 13 September with the intention that the draft should be negotiated through the banking system, and when cleared, the proceeds should be paid into an account which the applicant controlled.
In September 1988 the applicant contacted the manager of the Westpac Bank, whom he knew, to enquire about negotiating the bank draft. The manager advised the applicant that the draft would have to be endorsed by the payee to the applicant's company, UFC. The applicant then obtained a seal which purported to be the seal of Barons Pty Ltd, and endorsed the draft to make it payable to UFC. The draft so endorsed was presented to the manager of Westpac by the applicant on 13 September. He agreed to arrange for collection of the money in New York and for telegraphic transfer to the bank account of UFC at the Elizabeth Street Melbourne branch of the Westpac Bank. The scheme failed and no funds were transferred because the Arab Bank in New York recognised the bank draft as a forgery."
At his trial in that matter, Walsh had given evidence and attempted to blame another person and asserted that his intention had been to obtain the funds and to use them only if the draft was a genuine draft. The Court of Criminal Appeal commented
"one must assume that the jury rejected the evidence of the applicant and found that he acted dishonestly when he represented to the manager that the draft was a good and valid order for the payment of money."
Walsh received a sentence of 12 months imprisonment suspended for 12 months in respect of that conviction. There are two subsequent conviction.
In 1994 he was charged in respect of the transaction known in these proceedings as the Cuda transaction. It commenced in April 1991 and was not concluded in January 1992. It thus overlapped the present matters. Nair had represented to Cuda that he had the expertise, qualifications and ability to complete a transaction which would return a profit of up to US$1M in 45 days. He and Walsh persuaded Cuda to make the sum of $150,000 available to provide $125,000 for a "blocking fee" and for the balance of $25,000 for expenses. The transaction being promoted bore similarities to the scheme presented to the Trust. Walsh converted $64,000 to his own use and Nair had converted $73,000 to his own use although some $16,000 of that was spent on travel expenses. The balance was also expended by Nair and Walsh. Nair received a term of imprisonment of eight months, six months of which was suspended – in other words, he served approximately eight weeks in jail. Walsh subsequently repaid the amount he had used but I am satisfied that he did that in part from the sale of assets and in part from the monies he received pursuant to the conspiracy in this matter. For his role in the Cuda transaction, he received a sentence of eighteen months imprisonment with a minimum term of nine months imprisonment. He commenced to serve that sentence in May of 1996 and concluded it in about February 1997.
Finally Walsh was charged with obtaining financial advantage for a third party by deception in and between 27 January 1994 and 13 February 1994. It seems that at that time he was endeavouring to do business with a person named Hinchcliffe. Hinchcliffe had been staying at a hotel in Melbourne and had an unpaid bill of some $12,000. Walsh it seems spoke to the management and undertook to pay the account when he returned to Melbourne. He said he was in Brisbane at the time. In fact he was not in Brisbane but was in Melbourne. His conversation with the hotel was picked up on the listening device equipment employed during the investigation of the present case. He was convicted on this charge in 1995 and sentenced to 100 hours community service.
Prior convictions are relevant in a number of ways. They can shed light on an offender's moral culpability, his prospects of rehabilitation and any propensity to behave in antisocial ways. They are plainly relevant to the question of specific deterrence as a factor in sentencing. In particular, prior convictions raise the issue of whether more moderate penalties had failed as a means of deterrence. Subsequent convictions are plainly relevant to issues of rehabilitation and the issues of contrition and remorse. It is relevant to note that the three convictions all relate to offences of dishonesty. As to the prior conviction, it plainly failed as a deterrent to further dishonest, illegal conduct by Walsh. Together the convictions cast doubts on the prospect of rehabilitation on the part of Walsh.
I note that Mr Lincoln did not attempt to argue that I should find that there was contrition or remorse in Walsh. That was impossible in view of the defences taken and the dishonesty revealed in Walsh's evidence and instructions.
Mr Lincoln raised other matters in mitigation.
He argued that consistently with the views I expressed in sentencing both Nair and Powles, the principles laid down by the High Court in Mill v The Queen (1988) 166CLR 59 are applicable. I was referred to my sentencing remarks where I expressed the view that the principle applied to Nair's case notwithstanding that the prosecution of the Cuda offence and the Nauru Trust offences occurred within the jurisdiction of Victoria and thus did not invoke the point directly in issue in Mill v The Queen. where the crimes were committed in different states.
Because the offence relating to the Cuda transaction was so closely related in time and character to the Nauru Trust matters, I am satisfied that if Walsh had been charged in relation to both matters at the same time they could have been dealt with together. Counsel for Walsh argued that, therefore, applying the principle set out in Mill v The Queen, I should sentence Walsh in respect of the present offences as if I was also sentencing him for the Cuda transaction with the result that some adjustment would have to be made to reduce the sentence that would otherwise be imposed in this transaction.
In dealing with Nair I took the view that the term of imprisonment effectively imposed in the Cuda transaction was not sufficient to have warranted a reduction in the totality of the sentence to be imposed upon Nair. Walsh's case is different in that a term of imprisonment was imposed upon Walsh of eighteen months with a minimum of nine months. Applying the totality principle, the sentence I impose should reflect a limited concurrency to be arrived at by considering what the effective head sentence would have been had Walsh been sentenced at the same time for the Cuda transaction and the Nauru Trust transactions.
The next issue Mr Lincoln raised was that of delay. In sentencing Nair and Powles I referred to the issue of delay and the severe impact that can have and does have upon accused persons. In this instance I am satisfied that to a limited extent Walsh had contributed to the delay in the trial of the conspiracy charge by his campaign in 1993 and 1994 to try and thwart the investigation. I do not suggest, however, that there was a complete correlation between the time in which he engaged in that activity and the period of delay. Further his actions contributed only a very small part to the total delay that occurred. Problems also arose in the course of the matter in relation to obtaining legal aid but again those are matters that should not be regarded as the responsibility of Walsh. As a result Walsh has had to live through a period of considerable delay and cope with the stress of living under the threat of criminal proceedings for a number of years and then with that of the reality of criminal proceedings once he was charged. His counsel submitted that over the last seven years Walsh has found it extremely difficult to re establish himself. In 1997 he set about trying to do so in marketing work but with limited success. Counsel also submitted that Walsh found his nine months in prison an horrific experience. He said that Walsh, as a result, was desperate to avoid a conviction and that this had played a significant part in his approach to any thought of a possible plea of guilty. Counsel argued that since his release in February 1997, Walsh has had to live with the possibility, once this trial was over, of having to serve more time in prison which made his wait even more difficult and stressful.
I accept that notwithstanding Walsh's personality the delay would have been difficult and stressful and this should be taken into account as a mitigating factor.
Counsel also drew my attention to tragedies that had occurred during the delay within the extended Walsh family notably in the last 12 months or so the death of his wife's twin sister, the death of that sister's son a short time later due to a drug overdose and the death of a very close friend in Tathra. The events have no doubt been very sad and traumatic but regrettably are features of life with which we must all cope. They do not appear to me to be relevant to the decision that I must make.
There is, however, another aspect to the delay which has inflicted some punishment on Walsh. The delay has prevented him securing any worthwhile employment in the intervening period and has delayed his chances to return to the work force for several years beyond that which would otherwise have occurred if the trial had occurred with reasonable expedition. At his age, future prospects of employment after any lengthy sentence are likely to be difficult and can only be made worse by the delays.
I am satisfied, however, that Walsh is a man of great drive and determination and if, after the conclusion of any sentence he were to seek employment, I am confident that he would manage to find it and find it sooner than most.
My major concern in the future is as to whether, on his release from imprisonment, he will turn his undoubted intelligence, energy, skill and persuasiveness to some unlawful and dishonest pursuits and behave as he appears to have done for a significant part of the last twelve years in a manner which could only be described as extremely dishonest and fraudulent.
My concern is based in part on the events in question in this case which revealed a man who in his commercial dealings had no scruples and was prepared to use whatever dishonest means were feasible to further his commercial interests and to avoid detection of those means. He created and maintained a relationship of trust and continually breached it. His prior and subsequent convictions are also a concern. So too is his apparent ability to create a virtual reality within which to justify whatever he does even though the facts known to him should render that reality unbelievable.
I accept Mr Rapke's description of Walsh as an opportunistic, calculating and manipulative liar. One might add the description bold-faced. These are harsh judgments and are not made lightly but seem to me to be clearly justified. The foregoing matters point to the conclusion that personal deterrence is a significant sentencing issue in this case.
Making due allowance for the mitigatory matters raised on Mr Walsh's behalf which I have accepted, I am none the less persuaded that a sentence of seven years imprisonment is appropriate in relation to count 1 and sentences of 3 years imprisonment would be appropriate in respect of each of counts 2, 3 and 4. The question of concurrency becomes the next critical issue to be determined.
Counsel for Walsh submitted that there should be complete concurrency between each of the sentences on each count and no cumulation. He argued that all were bound up as one and the same matter. He also submitted that to add accumulation would be to add time and that would be very traumatic for Walsh.
The Crown conceded that some degree of concurrency would be justified between the sentences imposed on counts 1 and count 3 because count 3 was in a sense the continuation of the corruption of Dougall. The Crown also conceded that it would be appropriate to have a measure of concurrency between the sentences on counts 2, 3 and 4 because they arose out of Walsh's decision to create the false stories about the agreements and in implementing that decision he created false documents and sought to persuade Dougall and Boyle to give false information and evidence. Both concessions in my view are properly made although, on one view, the concession in relation to counts 1 and count 3 might be thought to be generous.
I also, however, accept the Crown's submission, that there should not normally be any concurrency between the sentence on count 1 on the one hand and the sentences on counts 2 and 4 on the other. Apart from undermining the importance of imposing sentences on count 2 and 4 because of the need for punishment and general deterrence, it seems to me that the accused must face the consequences of attempting to conceal unlawful conduct which was the subject at least to a significant extent of the matters dealt with in count 1. They are separate, distinct and serious offences and warrant separate and distinct sentences. They flowed from the events giving rise to count 1 but could not for the purposes of sentencing be regarded in any way as interdependent with the criminal conduct involved in count 1 nor could the conduct the subject of count 1 be in any way regarded as interdependent with the conduct in issue in counts 2 and 4.
There are other matters to consider, however, before reaching a final decision on concurrency. In particular, I refer to the obligation imposed on the sentencing judge to consider the totality of the sentence and to avoid the imposition of a crushing sentence. In that regard, it is also relevant to bear in mind the age of Walsh.
Without significant concurrency however between the sentences on count 2, 3 and 4 and count 1 the total sentence would plainly be a crushing one.
I have come to the conclusion that a combined head sentence of 10 year imprisonment would be appropriate. Reaching that outcome requires significant concurrency and the making of orders for concurrency that would not otherwise be justifiable. The conclusion I have come to is that I should order that in the case of count 2, 3 and 4 two years of the terms of imprisonment imposed should be served concurrently with the sentence imposed on count 1. The intended result is that Walsh's sentence will include a period of effectively three year's imprisonment for counts 2, 3 and 4 on top of the sentence imposed upon count 1.
In my view that result is proportionate to his criminality and adequately addresses the other relevant considerations – in particular, general and personal deterrence and rehabilitation. It remains to fix a minimum term of imprisonment.
I consider that, consistently with the circumstances of the offence, a non-parole period of seven years will provide the appropriate degree of mitigation of the punishment in favour of rehabilitation.
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