JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 AUGUST 2017
DATE OF SENTENCE:	25 SEPTEMBER 2017
CASE MAY BE CITED AS:	R v Wells
MEDIUM NEUTRAL CITATION:	[2017] VSC 575

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CRIMINAL LAW – Sentence – Conspiracy to defraud the State of Victoria – Receiving secret commission – Awarding government contracts in excess of $17M to related companies with conflict of interest – Offences occurred over seven year period – Key player – Plea of guilty - Undertaking to give evidence against co-offenders – Other mitigating circumstances – Total effective sentence 9 years with a minimum of 6 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K T Armstrong, with Mr A J D Sharp	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr M Thomas	Furstenberg Law

HIS HONOUR:

Mr Barry Wells, on 30 June 2017 you pleaded guilty to one charge that, contrary to Common Law, between 1 January 2007 and 9 January 2014, you conspired with six others[1] to defraud the State of Victoria in the awarding of works contracts. The maximum penalty for this offence is 15 years imprisonment.[2]
[1]Albert Ooi, Michael De La Torre, Andrew Ooi, Darrel Salter, Andrew Hayes and Graham Davis; each of whom are subject to separate proceedings arising out of these events.
[2]Crimes Act 1958, s 320.

You also pleaded guilty to three charges of receiving a secret commission contrary to s 176(1) of the Crimes Act 1958. The maximum penalty for this offence is 10 years imprisonment.[3]
[3]Crimes Act 1958, s 176(2).

The second count charged that, between 20 January 2011 and 31 July 2011, you corruptly received a secret commission from Andrew Hayes and Graham Davis of Grand Earthworks Pty Ltd while an agent for the Department of Transport, being goods and services valued at $56,010.03. This is what is termed a rolled-up charge as it includes a number of discrete transactions.

The third count, also a rolled-up charge, alleged that, between 29 April 2011 and

6 August 2012, you corruptly received a secret commission from Darrel Salter of Consalter Pty Ltd while an agent for the Department of Transport, being five cheques totalling $74,632.

The fourth count charged that, between 19 November 2013 and 9 January 2014, you corruptly received a secret commission from Darrel Salter of Consalter Pty Ltd while an agent for the Department of Transport, being monies in the sum of $6,000.

Your offending arose out of your employment variously with the Victorian Government’s Department of Infrastructure (‘DOI’), the Department of Transport (‘DOT’) and Public Transport Victoria (‘PTV’), and it spanned a period of seven years. The charges arose from an investigation named ‘Operation Fitzroy’ by the Independent Broad-Based Anti-corruption Commission (‘IBAC’) into allegations of corrupt activities in procurement in the Victorian Government’s Transport departments. The facts…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wells

Details

AGLC: R v Wells [2017] VSC 575
Case: [2017] VSC 575
Decision Date: 25 SEPTEMBER 2017

CaseChat Overview and Summary

The case before the court involved a defendant, Wells, who had pleaded guilty to multiple charges of conspiracy to defraud the State of Victoria, receiving secret commissions, and improperly awarding government contracts to related companies, thereby creating a conflict of interest. The offences spanned a period of seven years and amounted to contracts worth over $17 million. The court heard that Wells was a key player in these criminal activities and had agreed to provide evidence against his co-offenders as part of his plea arrangement. The court needed to determine an appropriate sentence that balanced the seriousness of the crimes with the mitigating factors, including Wells' cooperation with authorities.

The legal issues the court had to address included the gravity of the offences, the extent of Wells' involvement and influence, and the potential deterrent effect of the sentence. The court also considered the nature and extent of the cooperation provided by Wells, as well as other personal circumstances that might warrant leniency. The central question was how to quantify the totality of Wells' criminal conduct and what sentence would adequately reflect the harm caused and serve as a deterrent to others. The court needed to weigh the severity of the crimes against the benefits of Wells' cooperation and other mitigating factors.

In reaching its decision, the court emphasised the significant harm caused by the conspiracy, noting that it involved substantial financial losses to the State of Victoria and a breach of public trust. The court acknowledged Wells' cooperation and the other mitigating factors but stressed the need for a sentence that reflected the seriousness of the offences. After considering all the evidence, the court imposed a total effective sentence of nine years, with a minimum of six years and three months to be served before Wells becomes eligible for parole. This sentence aimed to balance the need for punishment with the recognition of Wells' cooperation and other mitigating factors.

Orders