R v Weiss

[2022] NSWDC 619

District Court

New South Wales

Medium Neutral Citation:

R v Weiss [2022] NSWDC 619

Hearing dates:

17 November 2022

Date of orders:

9 December 2022

Decision date:

09 December 2022

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1) In respect of the offences to which the offender has pleaded guilty, the offender is convicted.

(2) The offender is sentenced to a term of imprisonment of ten months commencing 9 December 2022 and expiring on 8 October 2023.

(3) Pursuant to s 20 (1)(b) of the Crimes Act, the offender is to be released forthwith on the condition that the offender enters into a recognizance, self, in the sum of $1000, subject to the following conditions:

(a) The offender is to be of good behaviour for 18 months.

(b) The offender is to pay a pecuniary penalty of $20,000.

(4) If the offender fails to comply with the recognizance, she will be returned to court and face the prospect of forfeiting the sum of $1000 and being taken into custody to serve the specified sentence.

Catchwords:

CRIME – sentencing – falsification of books – recognizance – released forthwith

Legislation Cited:

Corporations Act 2001 (Cth), s 1307(1)

Crimes Act 1914 (Cth), Pt 1B, ss 4K, 16BA, 16A, 17A, 19AC (1), 19AC (4), 20(1)(b)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638

Decision Restricted [2022] NSWCCA 24

Hili v The Queen (2010) 242 CLR 52

Johnson v The Queen (2004) 78 ALJR 616

Larkin v The Queen [2012] WASCA 238

Soyke v R [2016] NSWCCA 112

Totan v R [2022] NSWCCA 75; (2022) 400 ALR 578

Rich v ASIC (2014) 220 CLR 129

R v Rivkin (2004) 59 NSWLR 284

Category:

Sentence

Parties:

Rex
Adriana Benhamou Weiss

Representation:

Counsel:
A McGrath (Crown)
P Strickland SC and B Dean (Offender)

Solicitors:
Director of Public Prosecutions (Cth) (Crown)
Company Giles (Offender)

File Number(s):

2021/316988

Publication restriction:

Unrestricted

JUDGMENT

1. The offender has pleaded guilty to three falsification of books offences contrary to s 1307 (1) of the Corporations Act 2001 (Cth) (‘Corporations Act’).

2. The maximum penalty for the offence at the time of offending was imprisonment for two years and/or 100 penalty units ($18,000).

3. In addition, the offender requests that the court take into account three additional falsification of books offences, also contrary to s 1307 (1), on passing sentence in respect to the first count pursuant to s 16BA of the Crimes Act 1914 (“Crimes Act”).

4. Both the representative of the Commonwealth Director of Public Prosecutions and the offender have signed the S 16BA form, as have I, and that document remains in the registry file.

5. I certify that I have taken into account the additional offences, the subject of counts four, five and six attached to the form, pursuant to s 16BA.

6. In dealing with matters on the s 16BA Schedule, I will need to ensure that I apply the principles enunciated by the Court of Criminal Appeal in the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 as have been applied to sentencing for Commonwealth offences in Soyke v R [2016] NSWCCA 112 at [67].

7. Pursuant to s 16A (1) of the Crimes Act, in determining the appropriate sentence to be passed in respect of any person for a federal offence, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

8. The offender is to be sentenced pursuant to Part 1B of Crimes Act and, in particular, pursuant to the considerations listed at s 16A(2) of the Act, to the extent that they are relevant and known to the Court. That said, common law sentencing principles are also applicable to the sentencing for federal offences (Johnson v The Queen (2004) 78 ALJR 616 at [15]; Hili v The Queen (2010) 242 CLR 52 at [25]; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [18]).

9. Pursuant to s 16A(2)(g) of the Crimes Act, in determining a sentence for a federal offender, I am required to consider a guilty plea, including the fact, the timing of the plea, and the degree to which these factors resulted in any benefit to the community.

The evidence

10. Admitted on the sentence hearing was the Crown sentencing bundle comprising of the following:

1. Notice of Committal dated 21 June 2022 (Ex C1)

2. Amended Court Attendance Notice dated 21 June 2022 (Ex C2)

3. Section 16BA schedule signed by representative for the CDDP and offender (Ex C3)

4. Statement of Agreed Facts and Annexures dated 20 June 2022 (Ex C4)

5. Criminal History dated 30 July 2022 (Ex C5)

6. Sentencing Assessment Report dated 24 August 2022 (Ex C6)

7. Victim impact statement of Agata Kenna dated 2 November 2022 (Ex C7)

11. Admitted on behalf of the offender was the following:

1. Report of Rachel Brace, registered psychologist dated 11 September 2019 (Ex O1)

2. Expert report of Sam Borenstein, clinical psychologist dated 5 August 2022 (Ex O2)

3. Character reference of Anne Einfield dated 2 November 2022 (Ex O3)

4. Character reference of Paul Eid dated 13 November 2022 (Ex O4)

5. Character reference of Andrew Schor dated 14 November 2022 (Ex O5)

6. Character reference of Tim Christmas dated 14 November 2022 (Ex O6)

7. Character reference of Elham Davland dated 14 November 2022 (Ex O7)

8. Character reference of Gregory Zeitoun dated 14 November 2022 (Ex O8)

9. Statement of Lilian Ajuria dated 17 November 2022 (Ex O9)

10. Statement of Stephen Austin dated 16 November 2022 (Ex O10)

11. NAB record (Ex O11)

12. Benhamou Tax Invoice dated 21 July 2016 (Ex O12)

Agreed facts

Background to the offending

12. The offender was the director of Benhamou Designs Proprietary Limited (‘Benhamou’), formerly located in Vaucluse, and purported to be a global interior design group with representatives in Sydney, London, Italy, Dubai and Moscow. The company employed project managers and designers to design, develop and construct interior fit outs for home and office. Benhamou had a turnover of $4.4 million in 2015 financial year, $4.9 million in 2016 financial year and $2.2 million in 2017 financial year. A liquidator was appointed to the company in July 2018.

13. In February 2016 the offender contacted Jennifer Hannah (“Hannah”) who had been retained by Benhamou in September the previous year as an interior designer, requesting she create payment confirmations using Photoshop Software. The offender emailed Hannah an authentic National Australia Bank payment confirmation to duplicate, having sent instructions over the messaging application WhatsApp for creating the payment confirmations. The offender requested that three payment confirmations be created; two for a company named Mandalay Flower and another OC Tauglam. The offender requested that the transfer date for the payment confirmations be left out of the documents. In accordance with the directions of her employer Hannah completed the electronic versions of the payment confirmations and emailed them to the offender.

14. The offender continued to request that Hannah create payment confirmations on an approximately monthly basis. In a s 19 examination Hannah stated that this was the first job since completing studies and felt compelled to create the falsified documents. The offender at all times provided the relevant details to be inserted in the payment confirmations.

15. In June 2016 Benhamou entered into an agreement with DEC Services Group Pty Ltd (“DEC”) for the design and construction of its office located in Bond Street Sydney as well as the refurbishment of the home office of Agata Kenna, a director and owner of DEC.

16. In the same month Benhamou provided Kenna with a design scheme that was agreed on for the refurbishment of the home office. The offender also provided an invoice of what was to be provided for the projects. The work started immediately on the home office.

17. On 23 June 2016 DEC made a payment of $83,717.20 to Benhamou’s NAB account for the refurbishment of the home office. In late July 2016 the final contract price of $480,760.00 was agreed for both the fit out of the Bond Street office and the home office. Benhamou provided DEC with design drawings for the Bond Street office fit out. The offender placed some pressure on Cameron Kenna, another director of DEC, to pay a significant amount of the money upfront, including a significant portion of the contract price. It was stated that this was required urgently so that orders for furniture could be placed before production was paused in Dubai due to religious holidays. In response, on 4 August 2016, two main payments were made to Benhamou in the amounts of $49,665 and $275,655 respectively.

18. Whilst the fit out works at the Bond Street office were due to commence immediately, problems became apparent, delaying the planned demolition by approximately 13 weeks. In the meantime, an alternative builder, Gazmick Building Services Pty Ltd (‘Gazmick’) was engaged. However, on 28 November 2016 Gazmick advised DEC that they were no longer working on the fit-out project of the Bond Street office as the offender had not paid them for the work completed so far, or for work to be completed. One of the Gazmick builders advised DEC that the offender had provided false payment confirmations to indicate the payments had been made to the builder even though the monies were never received.

The offending – Counts 1, 3 and 7

19. On 3 November 2016, over WhatsApp, the offender requested Hannah create two false payment confirmations for the Bond Street project. The payment confirmations were emailed to the offender.

20. On 23 November 2016, again over WhatsApp, the offender requested that Hannah create two payment confirmations for “Gazmick” in the amounts of $45,000 and $60,000. The false payment confirmations were emailed to the offender.

21. On 29 November 2016 representatives of DEC contacted the offender requesting immediate cessation of all works and orders, as no work was being carried out at the time on the Bond Street home office projects. At the same time, they requested an urgent formal review meeting at which the offender was requested to provide all invoices and proof of payments relating to goods and services purchased for the fit-out projects.

22. On 4 December 2016 the offender contacted Hannah via WhatsApp requesting she attend the office earlier than usual the following day, stating that she needed Hannah's help “putting some things together". The following day (5 December) Hannah created false transfer confirmations, in accordance with details provided by the offender, and emailed them to the offender.

23. On the same day the offender met with representatives of DEC at which time the offender was informed of their conversation with the builders. The offender was asked to provide proof of all work conducted to date, proof of payment for completed work, future orders, and an explanation of why construction had not taken place and furniture had not arrived. The offender produced several documents as proof of payments made to suppliers and subcontractors involved in the fit out, those documents being the subject of the relevant counts as follows:

24. Count 1:

1. Receipt for funds transferred to Gazmick Building Services Pty Ltd from Benhamou Designs Pty Ltd in the amount of $45,000 dated 3 November 2016.

2. Receipt for funds transferred to Gazmick Building Services Pty Ltd from Benhamou Designs Pty Ltd in the amount of $60,000 dated 23 November 2016.

3. Receipt for funds transferred to Gazmick Building Services Pty Ltd from Benhamou Designs Pty Ltd in the amount of $25,146 dated 3 November 2016.

4. Receipt for funds transferred to Gazmick Building Services from Benhamou Designs Pty Ltd in the amount of $20,020 dated 3 November 2016.

25. S16 BA Schedule Offences:

1. Receipt for international transfer to Cathy Cuo from Benhamou Designs Pty Ltd in the amount of $15,000 dated 25 November 2016.

2. Receipt for funds transferred to Milan direct from Benhamou Designs Pty Ltd in the amount of $5,221 dated 10 October 2016.

3. Receipt for international transfer to Petite Friture from Benhamou Designs Pty Ltd in the amount of $2811.68 Euro dated 1 October 2016.

26. Count 3:

1. Receipt for international transfer to Design Diva from Benhamou Designs Pty Ltd in the amount of AED $75,000 dated 29 September 2016.

27. Count 7:

1. Receipt for funds transferred to Style Timber Floor from Benhamou Designs Pty Ltd in the amount of $12,276 dated 31 October 2015.

2. Receipt for funds transferred to Style Timber Floor from Benhamou Designs Pty Ltd in the amount of $11,000 dated 29 November 2016.

28. At this meeting the offender advised that payments to Gazmick had not gone through and after the meeting arranged Benhamou to pay $105,000 to the builders.

29. On 19 December 2016 Cameron Kenna telephoned the offender demanding repayment of money paid by DEC to Benhamou. The offender arranged for Benhamou to pay DEC $121,402 on 20 December 2016 and $50,000 on 23 December 2016.

30. Subsequent investigations confirmed that the relevant documents were falsified.

The financial trail

31. On 24 June 2016, $83,717.20 was deposited into Benhamou Designs NAB account. On the same day the offender transferred $7000 from that account to a personal NAB credit card and directed payments of $2631.38 to employees as wages. Three days later, the offender transferred a further $12,000 from that account to the same credit card.

32. On 28 June 2016 a credit deposit of $46,360.50 was received into Benhamou Designs account. A further $7195.28 was deposited into the account on 14 July 2016. Neither payment related to the DEC project. By 4 August 2016 this account was run down to a debit balance of $3.53, the offender having made nine transfers to her credit card totalling $54,390 as well as authority transfers and direct payments to employees. The agreed facts note that in respect to the transfers various purchases were made none of which appear to be related to the DEC project.

33. On 4 August 2016 amounts of $49,665 and $275,655.60 respectively were deposited into the Benhamou Designs account. Thereafter the offender transferred various amounts to her credit card, as well as making payments to employees as wages.

34. On 10 August 2016 a further credit deposit of $26,565 was received into the Benhamou Designs account, along with further credit deposits of $915 (11 August 2016) and $7645 (22 August 2016). Between 10 August 2016 and 8 September 2016, Benhamou Designs account was rundown from a credit balance of $279,398.14 to a credit balance of $101,660.21. During this period the offender made eight transfers to her credit card totalling $104,875 as well as further authority transfers ($15,510.99) and direct payments made to employees in the form of wages ($28,900). The agreed facts again note that various purchases were made, none of which appeared to be related to the DEC project.

35. Various financial records were annexed to the agreed facts which will be referred to later in this judgment.

Subjective Circumstances

36. The offender is 40 years old and has a 13-year-old daughter and 11-year-old son, sharing custody with her former partner. The offender divides her time between France, where she is presently operating her business, and Australia, to exercise access to her two children.

O1 - Rachel Brace, registered psychologist dated 11 September 2019

37. The report appears to have been prepared in the context of family law proceedings. The psychologist was treating the offender with psychological counselling between November 2016 and May 2019. During the psychological sessions the offender had reported changes in her previous levels of functioning to significant levels of physical stress, sleep impairment, low mood, anxiety and panic symptoms, tearfulness, intrusive negative thoughts, persistent feelings of distress and disbelief, intense and disruptive sadness, resentment and a sense of hopelessness and vulnerability. The psychologist considered the offender was suffering from chronic stress, likely to be in response to pressure over a prolonged period, in circumstances where the individual perceived they had little, or no control, and the stressors became overwhelming and not easily resolved. During the sessions, the psychologist observed the offender to engage in a thoughtful and organised way, demonstrating willingness to take on board any feedback or advice.

O2 - Expert report of Sam Borenstein, clinical psychologist dated 5 August 2022

38. The offender provided a history that she was married to her ex-husband in 2007, separating in December 2015, with two children from the marriage. The offender had developed a successful business involving overseas/international projects, although an acrimonious separation and divorce proceedings placed considerable pressure on her. In the circumstances, the offender was forced to support herself and the children, as well as manage and maintain her business. She was struggling financially and stated that her estranged husband was trying to take the children away. He had applied for sole custody and the separation became “very, very ugly, very, very fast". Mr Borenstein observed that when describing what had occurred the offender unsuccessfully attempted to suppress emotion and tears.

39. The offender stated that during the offending period, she was in a “constant state of panic”, achieving no more than two hours sleep per night. She felt responsible for her staff and her children. She alleged that clients had delayed payments and the company experienced cash flow problems. She could not deal with these issues in circumstances where she was chasing new projects and dealing with the family law matters. She described that during this period she felt overwhelmed, dreaded nights and “lost her world", she felt socially marginalised and isolated. Everything became a fight with her ex-husband over custody of the children.

40. Mr Borenstein noted that the period of offending coincided with the most acrimonious period with her former husband in circumstances where orders were being sought from the Family Court to relocate her children to France. Mr Borenstein observed that the offender was subjected to intense media scrutiny.

41. The offender told Mr Borenstein that she was now living in France with her fiancé who has five children of his own. She described now feeling “completely different". She was working and excited with life and prospects. Whilst feeling more confident, she continued to be anxious about the Court and impending sentencing. The offender told Mr Borenstein that she accepted full responsibility for her offending. The offender regularly returned to Australia where she had a residence caring for her children with whom she remained close.

42. By way of background, the offender was born in the USA and was eight when her parents separated and divorced. Her father remarried and she has three half sisters. She described an ongoing close bond with both her parents having experienced a happy and uneventful childhood. The offender completed high school in France before returning to the USA for tertiary studies. She then travelled to the United Kingdom, working in London with a financial analysts firm. She met her ex-husband in the UK, and they moved to Australia where they married.

43. The offender continued to consult with the psychologist in France. The offender’s mood on clinical examination was euthymic although whilst recounting her mental state during the offending period, she was both emotional and tearful. She impressed as an open and honest historian and there was no indication of misrepresentation or impression management. There was no indication of any serious psychiatric disorder. Testing revealed moderate potential for emotional and/or behavioural problems of significance as well as a potential to act impulsively when subjected to stress. Testing for depression and stress were in the normal range and anxiety was in the moderate range.

38. In summary, Mr Borenstein noted that the offender had expressed guilt, remorse, and contrition in respect to the offences, which he observed were against her normal personality, values, morals and ethics. Mr Borenstein concluded that the offender did not suffer any diagnosable psychiatric or psychological disorder, although symptoms described during the offending period were consistent with the offender suffering an adjustment disorder with mixed anxiety and depressed mood. He concluded that the offender was suffering a mental health impairment during the offending period “leading to a temporary and ongoing disturbance of thought, mood, volition and perception, regarded as significant for clinical diagnosed purposes, which impaired her emotional wellbeing, judgement and behavioural choices, in contrast to her normal self." He considered there was a direct connection between offender’s adjustment disorder and the offending behaviours which coincided with the offender being involved in an acrimonious divorce and disputes over custody of her children. She was also subjected to privacy violations and scrutiny which further impacted on her precarious and vulnerable psychological state. Ongoing media attention had compounded her psychological health. Whilst this had abated since moving overseas, she remained concerned about the impact of media attention on her children.

39. Mr Borenstein considered the offender's risk of reoffending was minimal and she did not pose a risk to the community. A full-time custodial sentence would impact negatively on the offender's mental health and derail the positive steps she had taken.

O3 - Character reference of Anne Einfield dated 2 November 2022

46. Ms Einfield is a solicitor who primarily practices in family law. She had known the offender for approximately 10 years, and she was immediately struck by her warm, intelligent, and genuine disposition. Ms Einfield observed that the offending occurred during a difficult period for the offender, arising from the acrimonious separation and resulting litigation. It also coincided with a period when the offender felt overwhelmed, being unable to perform “to a usual level of proficiency”.

47. Despite these challenges Ms Einfield noted that over the last five years or so, the offender had matured into a “resilient and even-tempered person". This was in large part due to the responsibility she felt towards her children. Ms Einfield was aware that the offender had continued to work as an interior designer on many projects and was in a stable and loving relationship. The offender had spoken to her about the proceedings, expressing remorse and embarrassment. Ms Einfield expressed confidence that the offender would not reoffend and that the stress of the period of offending was a “once-in-a-lifetime event". The offender had recognised the impact that the stress had had on her at the time and had observed her to satisfactorily deal with ongoing issues including the litigation.

O4 - Character reference of Paul Eid dated 13 November 2022

48. Mr Eid lives and works in Paris and is the head of a sunglasses and eyewear brand. He first met the offender in 2020, and in 2021 retained the offender to design and project manage one of the brand's boutiques in Paris. The offender's business was subsequently retained to design and project manage its flagship store in Paris. The offender was the point of contact and personally responsible for the projects. Mr Eid spoke highly of the offender in respect to the management of the projects. Having been aware of the offender’s conduct giving rise to the charges, he considered that this did not accord with his own dealings with the offender. His own experience was of the offender being honest, trustworthy, and reliable.

O5 - Character reference of Andrew Schor dated 14 November 2022

49. Mr Schor is the offender's father who presently resides in Florida USA, operating a real estate investment company. Mr Schor refers to the offender’s upbringing and the fact that he had maintained continuous contact with her throughout her adult life. In the period following the offender’s separation in 2016, he observed the offender to be travelling and working at an increased rate, his impression being that the offender was throwing herself into her work to compensate for the issues in her personal life. He observed that 2016/2017 was the beginning of a difficult and acrimonious legal dispute over the offender's children and that those proceedings had physically, emotionally, and financially impacted the offender. Mr Schor observed that the offender had ultimately adjusted to the shock of the separation and acrimony of the legal proceedings, focusing on parenting her two children whilst balancing her working life overseas. The offender had settled and achieved “an equilibrium" in her life, including the relationship with her fiancé and two children. In various telephone conversations the offender had expressed shame and regret for the impact of her offending. She was also distressed at the sensationalised and inaccurate reporting of the matter in the media. Mr Schor observed:

"There is no possibility in my mind that the offending is indicative of who Adriana is and how she will conduct her life in the future."

O6 - Character reference of Tim Christmas dated 14 November 2022

50. Mr Christmas is an architectural and design consultant who first met the offender in 2014. They had since worked on numerous projects both in Australia and overseas. In 2016 he noticed communication would take a while whilst payments were slower. At times the offender would take weeks to reply to emails; this was uncharacteristic behaviour. In 2017 or 2018 the offender had explained that she had been separated from husband and was caught up in stressful and upsetting legal proceedings relating to her children. The offender was constantly flying between Australia and Europe to meet her parenting obligations. Whilst aware of the charges, Mr Christmas observed that they did not accord with his personal experience of the offender who was “genuine, generous and kind". In recent projects with the offender there had been no delay in payments and her communications were immediate and responsive. He trusted her completely in respect to her business dealings; her work was of the highest quality. The offender had spoken to Mr Christmas about the circumstances giving rise to the charges and had expressed her shame in relation to them. She also spoke of the publicity that her young children had been exposed to as a result of the proceedings.

O7 - Character reference of Elham Davland dated 14 November 2022

51. Ms Davland is the owner and operator of a bathroom design business who first met the offender socially in about 2013. However, they only became close in about 2016 with various common cultural interests as well as common values. Ms Davland noted that since the offender’s business had failed, she had worked hard to rebuild her reputation and indeed in recent years her business had partnered with the offender on several international projects. Ms Davland expressed personal respect for the offender who had adjusted to difficult family law issues and co-parenting her children in trying and stressful circumstances. The offender had devoted her life to her children as well as re-establishing herself as a designer to provide for them. Ms Davland observed that the media coverage had been upsetting for the offender, including the impact such coverage had on her children. She was confident that the offender would not reoffend in circumstances where she was ashamed and embarrassed by her actions which occurred during a difficult period in her life.

O8 - Character reference of Gregory Zeitoun dated 14 November 2022

52. Mr Zeitoun lives in Paris, managing a range of real estate and private equity investments. He first met the offender in around 2018 through mutual friends; he is a close friend and associate of the offender’s fiancé. The offender had since become close to his family. They had spent time together during which the offender spoke of her life, children, and problems she faced in Australia, including the subject charges. Mr Zeitoun stated that his own experience of the offender “could not be more different". The offender was kind, authentic, open, honest, and generous with her time. She acknowledged that her life was in turmoil when she separated from her husband and that this was a source of great shame. Since meeting the offender, Mr Zeitoun started to work with her on design projects, during which he had observed her professionalism. The offender had accepted responsibility for what had occurred, and he considered that she would not reoffend. He had also observed the offender to be distressed by the media coverage.

O9 - Statement of Lilian Ajuria dated 17 November 2022

53. Ms Ajuria is a solicitor specialising in immigration law. The offender had been a client since 2020 when significant restrictions were placed on international travel due to Covid-19. Ms Ajuria had assisted the offender in preparing applications for permission to travel outside of Australia to fulfil essential work commitments. As part of such applications the offender had disclosed that her overseas work was essential for her business and livelihood, she was a single parent and her ability to earn a living if she was unable to travel would be significantly reduced, and the impact on her business would be severe. Between July 2020 and October 2021, the offender received seven exemptions for business travel and completed seven mandatory hotel quarantine periods upon her return to Australia.

O10 - Statement of Stephen Austin dated 16 November 2022

54. Mr Austin is an accountant to the offender’s interior design businesses since 2014. It was noted that the offender was presently the director of two companies. From the information available, all the income of those companies was generated from overseas projects. He was not aware of the offender generating any significant income personally or through the companies from domestic enterprises.

Crown Submissions

55. The Crown notes that Count 1 could be distinguished as the most serious of the three offences (a submission with which the offender agrees) given it is a rolled-up offence involving the creation of four separate false NAB transfer receipts. However the Crown notes that each offence is objectively serious given the offender engaged in the conduct in her capacity as a director of the company for which she had ultimate managerial responsibility, the offender procured a young inexperienced employee to engage in the dishonest conduct which meant it was more serious than if the offender had created the false receipts alone, the false books the offender procured from her employee were the creation of elaborate forgeries of official NAB documents, the offender had presented the transfer receipts in an effort to deceive others in believing payments had been made and the large proportion of the funds received had been used (through her credit card) for significant “high life” expenditure.

56. In respect to the counts on the s 16 BA schedule, the offender was not to be punished for the admitted offences although the offences taken into account may increase the penalty on the principal offence for sentence. They are relevant considerations in the assessment of the gravity of the whole course of conduct, the need for specific deterrence, and the communities’ entitlement to exact retribution for a serious offence.

57. The Crown contends DEC suffered loss and damage resulting from the offences in circumstances where it had to terminate its contractual relationship with the offender’s company. Similar loss and damage was suffered by the builders. NAB and other suppliers suffered damage in having to spend time and expense confirming to investigators that the relevant receipts were false.

58. The Crown relies upon the impact statement of Agata Kenna, although accepts that it is rather vague and lacking detail. It is contended that there should be some accumulation between the sentences to reflect a separate criminality involved in each of the offences. The Crown accepts that an aggregate sentence is an appropriate sentencing option. The Crown considers that there should be a significant component for general deterrence, particularly in respect to the sentencing of white-collar offenders. Further, the legal institution of limited liability companies depends on the honesty and accountability of those who manage them and keep their books.

59. The Crown acknowledges the offender is entitled to a discount for the guilty plea and considers a 25% sentencing discount is appropriate (a submission with which the offender agrees).

60. The Crown questions the genuineness of the offender's contrition due to the alleged “lack of candour" about the complete circumstances of the offending. The Crown in particular refers to the sentencing report and the report of Sam Borenstein in which the offender seeks to attribute the circumstances of the offending to cash flow difficulties arising from circumstances to an extent beyond the offenders control. The Crown contends that this does not accord with the fact that a large proportion of the funds were applied to the offender’s personal credit card which showed regular spending on an extravagant lifestyle.

61. Whilst the Crown accepts the offender’s good character given only one offence for negligent driving causing grievous bodily harm (2013), it is contended that good character is of lesser significance given the offences of white-collar crimes. The Crown in this respect refers to the observations in R v Rivkin (2004) 59 NSWLR 284 at 443.

62. Whilst the Crown acknowledges that mental health conditions might be a relevant factor in several ways, it is contended that the offender’s apparent lack of candour with Mr Borenstein undermined the weight of the conclusions contained in the report in respect to the offender’s mental health and its contribution to her offending behaviour. The Crown considers that the sentence should include some component for specific deterrence. Whilst it is acknowledged that the offender will be disqualified from managing corporations for a period of time following her convictions, she will still be able to be an employee or member of a company and accordingly have the opportunity to be involved in the company's affairs. Whilst it is accepted that the offender's risk of reoffending was at the lower end, it was contended that the offender’s apparent lack of candour traversed above should be a reason to avoid a finding that she had no or a negligible risk of reoffending. Whilst the Crown acknowledges that the disqualification from managing corporations has been held to be a relevant matter in determining sentence, it should be borne in mind that the purpose of any such disqualification is not only to penalise the offender but also to protect the public. Further, as with other forms of extra curial punishment, the fact of the disqualification must be weighed against the seriousness of the offender’s conduct and the fact that disqualification is a natural consequence of such offending.

63. The Crown cites two alleged comparable cases to assist in the sentencing process.

64. In oral submissions the Crown maintained its contention that a significant proportion of the funds received from DEC were applied towards the offender’s credit card for personal spending. By reference to the various sums contained in the agreed facts, the Crown contended that in respect to the first period of offending, 50% of the funds were applied towards the credit card. In respect to the second period, approximately 43% were applied towards the credit card. The Crown then identified various entries in the credit card statements, annexure C to the agreed facts, which demonstrate that significant purchases were made by the offender for luxury items or travel which were not business-related. Accordingly, the Crown maintained its contention that there was a lack of candour on the offender’s part when providing histories to the psychologist and the author of the sentencing report. The Crown reinforced its written submissions that the offender was involved in the creation of false payment transfers prior to November 2016.

The offender’s submissions

65. Whilst the offender accepts that the conduct to which she pleads guilty is serious, it is contended that a sentence other than full-time imprisonment is appropriate which would satisfy the requirement for ensuring the offender is adequately punished and is of a severity appropriate in all the circumstances. It is contended that given the relevant sentencing considerations in s 16A of the Crimes Act, aspects of deterrence and punishment could be met with the imposition of a sentence other than one served by full time custody.

66. The offender contends that the two-year maximum for the relevant offence is demonstrative of the seriousness which was contemplated by this type of offending, and that given the terms of the section, there is no inherent difference in the seriousness of falsification conduct compared to concealment, destruction or mutilation, conduct that also contravenes s 1307(1) of the Corporations Act. The offender notes the observations of Bell CJ in Totan v R [2022] NSWCCA 75; (2022) 400 ALR 578, that whilst general deterrence is a factor of some significance in sentencing for Corporation Act offences, given the terms of s 16A (2), there is no relevant hierarchy of sentencing considerations.

67. The submissions note the offender’s explanation for the offending arose from a difficult financial situation at the time and the inability to make payments to her suppliers. It is contended that there is neither an agreed fact, nor anything that could be implied from the agreed facts, that payment confirmations which the offender directed to her employee before 3 November 2016 were false; the events prior to that date were of limited relevance.

68. It is contended that the relevant conduct generally demonstrated an "unsophisticated" pattern of offending. The offender notes that the Crown submissions that none of the money DEC paid to the offender’s company was spent on fit outs was contrary to the statement of facts. The Crown ultimately conceded that indeed its submissions in this respect was inaccurate. In effect, over $135,000 was applied towards the DEC project. Further, the Crown's submission ignored that the company was entitled to be paid for design services. This was later demonstrated by a tax invoice dated 21 July 2016 (Ex O12), in which the offender’s company invoiced DEC for design services in the sum of $49,665.

69. The offender acknowledged the objective seriousness of each offence, including using a junior employee to perpetrate the crime, although the offences were otherwise “unsophisticated and easily discovered". The offender disputed the Crown's submission that the false receipts were produced to conceal the fact that she had applied a large portion of the DEC funds to her own personal credit card debt. The offender contended that the more likely inference was that the false receipts were provided to hide the offender's failure to progress the project in a timely manner. Further, it was contended that the Crown's submission excluded the possibility that many of the expenses on the personal credit card were for business expenses. This needed to be considered in the context that the offender at the time was undertaking travel for international business, and that the card must have included obvious business expenses.

70. The offender noted that the matters on the s 16BA schedule related generally to smaller monetary amounts and that again the falsification was unsophisticated, easily detected, and unlikely to cause any real harm or damage. In the circumstances, it was contended that offences on the schedule should only have a minimal increase on the sentence imposed in respect to count 1. The offender disputed that the Crown had established any significant loss or damage in that little weight would be given to the victim impact statement.

65. In respect to subjective considerations, the submissions refer to the considerable evidence of remorse and contrition, further demonstrated by the offender’s early plea of guilty and payments made to the builders and DEC. The offender contended that the appropriate discount for the guilty plea was 25%, consistent with the Crown's submission. The offender referred to the psychological report and references which detail the offender’s subjective circumstances at the time of the offending. It was urged upon the court to accept the opinions of Mr Borenstein. In those circumstances the mental condition diagnosed by the psychologist reduced, somewhat, the offender’s moral culpability, and also reduced the importance of general deterrence, retribution and denunciation.

66. The offender disputed the Crown's submissions in respect to the offender’s good character, referring the court to the judgment of Hamill J in Decision Restricted [2022] NSWCCA 24 at [241], dealing with the principle in sentencing for white-collar crime, that the weight to be afforded to an offender’s good character or lack of criminal antecedents might be reduced. His Honour observed that such an approach should be applied “with caution and discernment". The offender contended that this was not a case where her prior good character or position of trust facilitated the offence. It was contended that the court would find the offender had good prospects of rehabilitation with a low risk of reoffending. It was contended that full-time custody would have an adverse impact on her ability to be meaningfully involved in access to her two children in the shared custody arrangement.

67. It was contended that disqualification from holding office was a penalty, relying upon the High Court decision Rich v ASIC (2014) 220 CLR 129. Further the offender was likely to face difficulties in conducting business and potential restrictions on travel for work and personal trips from conviction and sentence. The imposition of a sentence of full-time custody or an Intensive Corrections Order (“ICO”) would have a potentially devastating impact not only on the international businesses she had developed in recent years, but also her three-year relationship with her fiancé. It was also contended that the adverse media coverage should be considered further extra curial punishment, including likely media coverage in the future. Further, the court would take into account the fact that the offender was to be sentenced for offences committed six years ago. Rehabilitation undertaken by the offender during the period of delay may affect the sentencing exercise by lessening the significance of general deterrence. It was noted that the offender was now settled into a new life and developed her business practice in a way that evidenced rehabilitation. The offender disputed that the two cases cited by the Crown were truly comparative given they both involved facts which were more serious than those being considered in the present sentencing exercise.

68. The submissions ultimately contended that imposing a sentence of severity appropriate to the circumstances would be discharged if a sentence of imprisonment was accompanied by an order that the offender be released forthwith under s 20(1)(b) of the Crimes Act or an order for an ICO. However, it was contended that for the reasons earlier discussed, there would be significant consequences from the imposition of an ICO.

69. In oral submissions Senior Counsel for the offender agreed with the Crown's submission that limited liability companies depend upon the honesty and accountability of those who managed those companies. It was contended that the court should be careful in its consideration of where the relevant funds had been applied in circumstances where the offence was complete with the production of the relevant false documents. Further, it was not uncommon for offenders to demonstrate a lack of insight into their offending, and that this was an explanation for the offender’s statements; attributing her offending to financial difficulties arising from the operation of the business. It was contended that this perhaps demonstrated an incomplete insight into the offending in circumstances where the offender’s life at the time was “chaotic” given the issues traversed in the subjective material.

Consideration

76. The offender's conduct in respect to the three falsification of books offences was deliberate and calculated. The offender enlisted the services of a young employee who would clearly have been vulnerable and susceptible to perform tasks at the direction of the offender, in her capacity as the employer. As the employee told ASIC investigators, her role was the first job since completing her studies, and she considered it was appropriate to do whatever was requested of her. Unsurprisingly, she believed that if she refused to create the falsified documents, she would not have been given projects and would have been treated differently to other designers.

77. Whilst the offending occurred over a relatively short period, it involved repeated acts of falsification, consisting of 10 documents purporting to be receipts for transfer of not insubstantial funds. The offender then sought to use the false documents to avoid accountability in respect to a major project in which the offender’s business was engaged. Relevantly, the offender was attempting to avoid accountability in respect to substantial funds which had been paid to the offender’s business in good faith, in circumstances where the majority of those funds were applied towards payment of the offender’s personal credit card, and more modest amounts used to pay employees. Whilst some of the funds might have been applied to legitimate business expenses, it is indisputable, from the offender’s credit card statements, that the funds were also used on five-star hotels as well as luxury goods and services including Jo Malone, Scanlon and Theodore and Longchamps.

78. Each offence is objectively serious.

79. As previously observed, the offender used her position as managing director to direct a junior and inexperienced employee to engage in dishonest conduct. In the circumstances, the offence is more serious than if the offender committed the offences alone. Further, the conduct in which the offender engaged was in her capacity as a director of the company, seized with the ultimate managerial responsibility, including responsibility for keeping of its books, as required by the corporations law.

80. Whilst the forgeries were elaborate, in that they involved the production of false transfer receipts in some detail, it is fair to say that in other respects it was unsophisticated and easily discovered. However, this should not detract from the underlying objective seriousness involved in the offending. The falsification of books offences, contrary to the provisions of the Corporation Act, were committed by the offender as the director of her trading company, Benhamou Design Pty Ltd. As the Crown correctly submitted, and accepted by Senior Counsel for the offender, the legal institution of limited liability companies depends upon the honesty and accountability of those people who manage them and keep their books. The falsification of company’s books imperils both those in the community who transact with them in good faith, as well as ASIC's ability to properly supervise and regulate them under the Corporations Act. It is in these circumstances that general deterrence looms large. The sentence must reflect the need to deter such conduct in the business community. Whilst of lesser significance, given the offender’s conduct since the offending, there must also be an element of specific deterrence for the offender.

81. Dealing specifically with the matters contained in s 16A(2) of the Crimes Act, reference has already been made to the nature and circumstances of the offence (s 16A(2)(a)).

82. In passing sentence in respect to count 1, the offender asks that I take into account three other offences committed during the same period. Whilst the offender is not to be punished for these admitted offences, they may be taken into account in increasing the penalty on the principal offence for sentence, including considerations applicable in general sentencing principles of deterrence. I accept that the monetary amounts arising from the additional falsifications which the offender has admitted are much less than count 1 and this is a factor to the extent to which the court would increase the sentence imposed on this count.

83. It must be acknowledged that there is some injury, loss or damage resulting from the offences (s 16A(2)(e)), including the need for DEC to terminate its contractual relationship with the offender’s company, and the consequential need to find alternative suppliers to complete the fit outs. This would have also resulted in some stress for the officeholders of DEC, arising from a not insignificant contract. There was also some loss and damage for the builders, and to a lesser degree, National Australia Bank, and other suppliers arising from the offender’s conduct.

84. Whilst the Crown relies upon a victim impact statement (s 16A(2)(ea)), that statement is somewhat lacking in detail, although this should not be seen as critical of the author, who seeks to protect the privacy of those involved.

85. The offender has demonstrated a degree of contrition in respect to the offences (s 16A(2)(f)) reflected in the sentencing assessment report, psychologist report and various references upon which the offender relies. I also accept there is a degree of contrition reflected in the payments made to the builder and DEC in December 2016. The offender’s statements, seeking to attribute her behaviour to cash flow problems within her business, may reflect some lack of insight into the offending. However, it also reflects a lack of recognition of the offender’s deliberate criminal conduct, and the fact that funds paid by a client in good faith were, in part, applied towards sustaining what would be considered by most to be a high-end lifestyle.

86. The offender is entitled to a discount for the plea of guilty entered at the first reasonable opportunity (s 16A(2)(g)) which will be reflected in a 25% discount on the sentence that would otherwise have been imposed.

87. The offender has one prior conviction for negligent driving occasioning grievous bodily harm from May 2013. There is no further offending, and, relevantly, no other convictions arising from the offender’s management of businesses and/or corporations. Whilst I accept that good character might be of lesser significance for white collar crimes (Rivkin), I consider the offender is still entitled to the benefit of her good character otherwise, having been involved in the operation and management of businesses over a considerable period of time.

88. It is fair to say that the offending occurred during a tumultuous time in the offender’s life, including an acrimonious separation, litigation in respect to the custody of her two children and other financial difficulties of her business. It is readily apparent that the offender was attempting to deal with difficult personal issues whilst struggling to maintain her business. I accept that in the circumstances the offender was suffering from a chronic stress condition, reducing somewhat her moral culpability.

89. The offender has good prospects for rehabilitation (s 16A(2)(n)) and indeed in her own way has embarked upon such rehabilitation by establishing an apparently successful business overseas and recalibrating her personal life with the support of her fiancé and friends.

90. In passing sentence, the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. It is necessary to ensure that the offender is adequately punished for the offence. I am satisfied that these objectives can only be achieved in respect of the offences to which the offender has pleaded guilty, by imposing a term of imprisonment. In so doing, I am satisfied, in accordance with s 17A of the Crimes Act, that having considered all other available sentences, no other sentence is appropriate. I am satisfied in this respect given the objective seriousness of the offending, including the repeated acts of the offender constituting the various offences, the fact that they were committed in the offender's capacity as a director of a company, and it involved enlisting a young and inexperienced employee in such conduct.

91. Whilst there are three offences in respect of which the court is passing sentence (together with three offences on the s 16BA schedule) this is an appropriate matter for the court to invoke s 4K of the Crimes Act and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been imposed had separate sentences been imposed.

92. As previously noted, the offender is entitled to a discount for the utilitarian value of the plea of guilty of 25%.

93. In respect to count 1 (and taking into account the three matters on the s 16BA schedule), the appropriate sentence is 10 months from which is to be deducted 25% for the plea of guilty, resulting in a total sentence of seven months (rounding down). In respect to counts 3 and 7, the appropriate sentence is eight months from which is to be deducted 25% for the plea of guilty, resulting in a total sentence of six months.

94. Taking into account a need for some accumulation between the sentences, a total aggregate sentence of ten months is appropriate.

95. Section 19 AC (1) of the Crimes Act provides:

“(1) Subject to subsections (3) and (4), where:

(a)  a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and

(b)  the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and

(c)  at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;

the court must make a single recognizance release order in respect of that sentence or those sentences and must not fix a non‑parole period.”

96. The provision is subject to s 19 AC (4) of the Crimes Act, which provides that:

“(4) A court may decline to make a recognizance release order in respect of a person if:

(a)  the court is satisfied that such an order is not appropriate, having regard to:

(i)  the nature and circumstances of the offence or offences concerned; and

(ii)  the antecedents of the person; or

(b)  the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences.”

97. I am not satisfied that it is not appropriate to make a recognizance release order, given the nature and circumstances of the offences and the offenders antecedents.

98. In the circumstances, it is then necessary to consider whether an order be made that the offender be released in accordance with s 20(1)(b). In so doing, it is necessary for the court to take into account the same factors as those applicable to the imposition and fixing of the term of imprisonment, and in particular the matters referred to in s 16A of the Crimes Act (Larkin v The Queen [2012] WASCA 238 at [75]).

99. Having considered all the matters, I am satisfied that it is appropriate that the offender be immediately released with the imposition of a number of conditions. Those conditions include the offender being of good behaviour for a period of two years in addition to the payment to the Commonwealth of a pecuniary penalty.

100. These conditions will fulfil the requirement of imposing a sentence that is appropriate and reflects general and specific deterrence whilst enabling the offender to continue her rehabilitation by way of continuing to actively engage in her business and maintain ongoing personal and family relationships, including a relationship with her two young children.

101. The court makes the following orders:

1. In respect of the offences to which the offender has pleaded guilty, the offender is convicted.

2. The offender is sentenced to a term of imprisonment of ten months commencing 9 December 2022 and expiring on 8 October 2023.

3. Pursuant to s 20 (1)(b) of the Crimes Act, the offender is to be released forthwith on the condition that the offender enters into a recognizance, self, in the sum of $1000, subject to the following conditions:

1. The offender is to be of good behaviour for 18 months.

2. The offender is to pay a pecuniary penalty of $20,000.

4. The offender should understand that if she fails to comply with the recognizance, she will be returned to court and face the prospect of forfeiting the sum of $1000 and being taken into custody to serve the specified sentence.

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Decision last updated: 09 December 2022