R v Yusuf

[2008] VSC 575

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.  1661 of 2008

THE QUEEN

v

OMAR JIHAD YUSUF

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2008
DATE OF SENTENCE:	17 December 2008
CASE MAY BE CITED AS:	R v Yusuf
MEDIUM NEUTRAL CITATION:	[2008] VSC 575

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CRIME – Sentencing – Rolled up charges – Continuing criminal enterprise counts – 107 counts of obtaining property by deception – 19 counts of obtaining financial advantage by deception – Total sum obtained $7,297,400 – 149 victims – Maximum penalties of 10 years imprisonment and for continuing criminal enterprise counts 20 years imprisonment – Fraudulent obtaining of loans for the purported purpose of purchase of trucks – Elaborate pretence of financial substance – Sentencing factors – Punishment – Public denunciation – General deterrence – Specific deterrence – Protection of the public – Plea of guilty – Vulnerability to depression – Cumulation – Substantial concurrence – Totality.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Rose QC	Office of Public Prosecutions
For the Accused	Mr R. Richter QC with Ms M. Tittensor	Galbally & O'Bryan Lawyers

HIS HONOUR:

1. Omar Jihad Yusuf you have pleaded guilty to serial offences of fraudulent conduct comprising 107 counts of obtaining property by deception and 19 counts of obtaining financial advantage by deception.  The total sum obtained by you from others as a result of your conduct was some $7,297,400.

1. This sum was obtained from some 109 members of the public with whom you dealt in the course of the conduct of your business between 2003 and 2005.

1. The maximum penalty prescribed by the Crimes Act 1958 for the offence of obtaining property by deception (s 81) is 10 years imprisonment, as is the maximum penalty prescribed for the offence of obtaining financial advantage by deception (s 82).

1. The effect of the continuing criminal enterprise provisions of the Sentencing Act 1991 is however that double these maxima may be imposed upon the counts involving a quantum of greater than $50,000 (other than rolled up charges) subsequent to the first two such counts.  Such counts comprise continuing criminal enterprise offences within the categories referred to in Schedule 1A.  You have been found guilty of three or more continuing criminal enterprise offences and hence fall to be sentenced as a continuing criminal enterprise offender in accordance with s 6H in respect of each continuing criminal enterprise offence subsequent to the first two, pursuant to s 6I.[1]

   [1]R v Grossi [2008] VSCA 51. If the view preferred by Redlich JA at [61] were adopted this would not in the particular circumstances of this case affect the total effective sentence or non-parole period I would impose.

1. These provisions reflect the fact that Parliament regards repeat offenders of your kind as constituting a special risk to the community.[2]  They also reflect the fact that Parliament’s view is that the penalties for continuing criminal enterprise offences imposed prior to 1997 were inadequate. 

   [2]R v Arundell (2003) VSCA 69, Vincent JA.

1. The following counts fall to be dealt with as continuing criminal enterprise offences:

Counts 9, 13, 14, 15, 22, 27, 29, 31, 34, 41, 47, 51, 52, 60, 62, 63, 64, 65, 69, 70, 73, 77, 78, 79, 86, 90, 91, 92, 94, 95, 108, 111, 115, 116, 117, 118, 119, 122 and 126.

1. The following counts comprise rolled up charges:

Count 1 (two charges)

Count 3 (two charges)

Count 4 (three charges)

Count 7 (three charges)

Count 11 (two charges)

Count 12 (two charges)

Count 17 (four charges)

Count 18 (five charges)

Count 21 (two charges)

Count 23 (three charges)

Count 24 (two charges)

Count 35 (three charges)

Count 36 (three charges)

Count 39 (two charges)

Count 45 (five charges)

Count 46 (four charges)

Count 48 (two charges)

Count 49 (three charges)

Count 50 (two charges)

Count 53 (two charges)

Count 54 (two charges)

Count 55 (three charges)

Count 59 (three charges)

Count 74 (two charges)

Count 75 (two charges)

Count 84 (two charges)

Count 103 (three charges)

1. It is not appropriate to impose an aggregate sentence in respect of rolled up counts.[3]  Likewise it would not be appropriate to impose individual sentences with respect to the rolled up counts and aggregate sentences with respect to other counts.  Accordingly, it will be necessary to impose sentences with respect to the individual counts and provide appropriately for cumulation and concurrency taking into account the principles of totality and proportionality.

   [3]See s 9(1) Sentencing Act 1991, DPP v Felton [2007] VSCA 65.

Personal background

1. It is convenient at the outset to say something about your personal background.  You were born Hasan Bulli in Cyprus on 2 July 1968.  You came to this country with your family when you were seven and attended both primary and secondary schools in the Broadmeadows area. 

1. It appears that you experienced difficulties at school and were frustrated by your failure to succeed in that environment.  You experienced problems in acquiring functional literacy skills and had ongoing social difficulties.  I accept that like many migrant children you faced real problems not of your own making in this regard.  In turn this experience appears to have provided the foundation for low self‑esteem and a desire to create fictions in order to succeed. 

1. You left school after Year 10 and were unemployed for a period.  You then obtained jobs first in a friend’s takeaway shop and then in your father’s cabinet‑making business.  You married in 1992 and thereafter worked first as a cleaner and a printer’s assistant, and then in your own cabinet‑making business.  This business failed and ceased operation in 2000.  In March 2001 you changed your name to Omar Jihad Yusuf after the bitter dissolution of your parents’ marriage.  You worked as a shop fitter for a time and then became involved through a friend in the transport business.

1. You obtained a job as a sub‑contractor driving a delivery truck for a transport company known as Transnet.  That company assisted you to purchase a truck and you registered your own business under the name of On The Go Transport utilizing a company similarly named (to which I shall refer as “OTG”).  In turn you registered a series of companies bearing names indicative of involvement in the transport industry, property investment, shop fitting, and sports clothing businesses.  You were the sole director of each of these companies. 

1. During 2002 to 2003 you developed a core business strategy which involved the raising of capital from members of the public for the purported purpose of the purchase of trucks.  The scheme typically sought investment by way of loan of $36,000 to be secured by a 49% interest in a 12 tonne tautliner truck.[4]  It was agreed OTG would retain a 51% interest in the truck and would secure delivery contracts for the truck, hire drivers and take responsibility for maintenance of the truck.  The truck was said to have a value of $100,000.  Investors were promised a return of $2,000 per month over a five year period.  In addition they were promised a return of 49% of the truck’s depreciated value after five years, estimated to be $33,000. 

   [4]A truck with a roof above the tray, but with curtained sides enabling easy loading and unloading by forklift.

1. This scheme with some variations proved very attractive to numbers of the public.  In turn you grew the apparent scale of the business by moving from modest premises to 101 Collins Street and employing a number of staff. 

1. Both employees and investor clients were paid $200 a month “spotter” fees for the duration of each new contract with a client introduced to the business by them.  As a result you created a cascading sequence of investments.

1. You also encouraged investment by elaborate formal documentation including prospectus documentation, letters soliciting investment, and loan agreements.  Agreements were signed by some 131 investors in respect of 262 transactions. 

1. By the loan agreements OTG warranted amongst other things that moneys advanced by the investor would be wholly and exclusively used to purchase commercial vehicles for use in OTG’s transport business.  OTG further warranted that the vehicles would be purchased outright and would not be subject to a lease agreement, hire purchase or like arrangement. 

1. You operated two bank accounts for the purposes of OTG’s business.  The first of these was Business Cheque Plus account number 278590 with the Bank of Melbourne.  You were the sole signatory to that account.  It was used to receive investors’ moneys.  During the period between July 2003 and March 2005, $9,257,600 was deposited in the account. 

1. Of these funds however only $1,045,245 was used by you to purchase trucks.  Some $2,612,174 was repaid to investors by way of monthly repayments. 

1. Otherwise amongst other expenditure $1,331,400 was paid to your personal accounts; $907,291 was paid out to unidentified persons; $521,133 was spent on wages; $459,235 was spent on loans; $393,300 was paid to cash; $366,000 was placed on term deposit; $271,619 was paid in travel expenses; $225,000 was paid for a Ferrari; $196,500 was paid for a BMW; $175,000 was paid to a holding company controlled by you named Yusuf Holdings – China Pty Ltd; $175,000 was paid to Islamic organisations; $139,000 was paid for a Mercedes Benz; $123,452 was spent on office rent; $100,000 was spent on donations; $77,138 was paid to a pharmaceutical company; and $55,000 was spent on racehorses.

1. The second account (referred to in the documentation as OTG Trucks Account 9686) was credited between October 2004 and April 2005 with $890,050, of which $311,780 represented operating revenue and $530,000 representing the proceeds of sales of trucks during March 2005.  

1. During the same period:

·    $297,020 was paid to your personal accounts;

·    $200,000 was paid into your wife’s bank account;

·    $93,000 was withdrawn as cash; and

·    $20,000 was paid for travel expenses. 

1. It is apparent that the bulk of both companies’ expenditure was made for your own personal purposes. 

1. During 2003 and 2004 OTG acquired 26 trucks.  Of these, six were acquired pursuant to finance agreements with Esanda in breach of warranties given to investors that the title would be preserved for their benefit.  Excluding these trucks only $1,045,243 was spent on the purchase of trucks.  This is to be compared with the $9,257,605 received for this sole purpose from investors.  You amassed some $3.5 million of investors’ money before any trucks whatsoever were purchased. 

1. During the operations of the OTG business you undertook a series of deceptions to create and reinforce the impression the business was one of substance.  Among other things you entitled yourself “Prince” and endorsed correspondence with that title.  You registered some 13 companies to create the impression you were operating a substantial group of businesses.  You employed employees with relevant skills to set up oil deals and pharmaceutical deals, but did not proceed to conclude agreements when the proposed deals were presented to you.

1. You assured employees and investors that moneys received under the core truck purchase scheme would be held in trust. 

1. You commenced a web page which made extravagant claims as to the extent of your business and your assets. 

1. You ordered customised number plates from Vic Roads in a sequence which suggested a fleet of 98 vehicles. 

1. You provided Dunn & Bradstreet with false data as to motor vehicle assets and as to a fictitious multi billion dollar oil business.

1. You instructed your accountant to draw up fictitious income tax returns, which were never lodged, but were shown to employees and investors to create the impression of substantial business income.

1. You produced false bank statements and showed them to others for the same purpose.

1. You acquired invoices for the purchase of a passenger ferry for $8 million and a jet plane for $30 million.  Neither of these items were in fact purchased but the invoices were shown to others as proof of assets owned. 

1. You claimed to own islands off the Australian coast.

1. You flaunted the use of expensive motor vehicles. 

1. You paid $20,000 to be the major sponsor of a business directory marketed to the Muslim community of Victoria.

1. You boasted in a Muslim community newspaper of the state of your wealth, and your contributions to charitable works.

1. You sponsored the Australian Muslim Festival held at Broadmeadows. 

1. You made extensive donations to Islamic charities. 

1. Whilst doing all this you spent hundreds of thousands of dollars on an extravagant lifestyle, involving first and business class travel, luxury clothes, luxury accommodation, expensive entertainment and jewellery. 

1. You paid no income tax. 

1. In November 2004 the Age newspaper published an article questioning your bona fides.  In turn investors began questioning the state of the business.  Your response was to send all investors a letter and a deed of settlement offering to release their funds and terminate the loan agreement.  You offered repayment of the funds within 60 days of signature.  Many investors signed the deed proffered to them and waited for payment.  You used the two months grace thereby obtained, to close down the offices of OTG’s business, ship all business furniture and equipment overseas, sell the OTG trucks, and withdraw all remaining funds from the OTG accounts.  In March 2005 you also shipped the entire contents of your home to Malaysia. 

1. You told your employees that you were moving the business overseas because Australians were racist and jealous of your wealth. 

1. When the 20 trucks not subject to finance arrangements were sold for $530,000, you caused the proceeds to be paid to you and your wife and transferred in large part overseas.  Selling the trucks was a final breach of the loan agreements which had been entered into with investors. 

1. As a result of your actions no assets or funds were available for recourse in this jurisdiction after the collapse of OTG.

1. As a result of your actions you obtained a total of $7,297,400 from some 109 investors resulting if credit is given for dividends and refunds paid back, in a net loss suffered by them of $5,568,752 (this is the net loss of moneys actually paid out by investors, it is not the shortfall between what you promised the investors and what they received which was substantially greater).

1. It is put on your behalf that your actions involved the creation of a fantasy world.  There is a sense in which this is true and I accept that such a creation was inherently psychologically attractive to you and in a sense a function of your personality.  An underlying sense of poor self‑esteem appears to have encouraged you to adopt a false and grandiose appearance of continuing success in order to avoid confronting the reality of your situation.

1. Nevertheless your deception was deliberate and was pursued relentlessly for personal gain.  The manner in which you ultimately cleaned out the assets of the business from this jurisdiction before fleeing to Malaysia, demonstrates a continuing overwhelming motive of personal greed and self‑agrandisement.

1. The victim impact statements that have been filed on behalf of individual investors demonstrate that the effect of your actions was for many of them the total destruction of their accumulated savings.  You have inflicted serious financial loss on a large number of individuals each of whom trusted you. 

1. You took the life savings and accumulated earnings of many years from individuals looking for a secure investment in old age and other vulnerable circumstances.  The offer of an interest in a specific truck gave an illusion of security to the venture. 

1. By way of example, Kaye and Isaac Raymond say:

Due to Omar’s embezzlement of our funds, we have been put under enormous financial pressure.  Through Omar’s deceit and concealment and violation of trust, we have found ourselves having to pay a large monthly interest on the borrowed funds which we used to invest with Omar.  Anxiety and frustration has been caused, due to the worry of finding the extra money to pay the higher monthly interest bill.

Milica Andreevska says:

I am a 73 yr old pensioner.  I borrowed $36,000.00 from the equity on my home.  I now have more outgoing expenses than what I receive. 

Natasha Sawtell says:

I was working part time and employed on a casual basis to earn an income when I looked at this investment opportunity.  I thought it would be a good investment and a safe way of trying to get ahead.  I pulled money out of my home and invested it with On The Go Transport.  I have lost $72,000 to date and I have worked extremely hard to try to recoup the lost funds to no avail at this time. 

Arthur Tzambazis states:

I am 64 years old.  For the last 18 years I have operated a takeaway food business in an industrial area in Melbourne.  I have worked hard for little profit.  Just survived the recession in 1993, just making a living couldn’t afford superannuation, couldn’t sell.  I inherited some money when my father died.  I would have liked to buy a property as an investment but prices were too high.  In July 2004 my niece’s husband told me about On The Go Transport.  I thought this was a godsend something to be able to retire with.  Now I am in debt worse off than I was before and I don’t know what the future is.

Hugh Thyer says:

We had just bought a house and were going to use the dividends to help pay for it; since our first child was due, so we were going to lose an income for a while.  We had to rent that house out instead and move elsewhere cheaper.  The extra interest payments on the loan made it more expensive to live, especially once we had our second child and were on one income.  My wife had to go back to work earlier than planned.  It has added a significant burden to us, and will continue to do so until we have paid it all back.

Anthony Bishop says:

I have now got a part pension from Centrelink $130.00 per month and my wife is working fulltime.  We are finding it hard to live and will possibly soon have to sell our house and move into a granny flat with one of our children.

David Looker says:

The loss of my life savings resulted in not being able to meet my financial commitments, as a result having to sell my family home. 

Comic Pedulla states:

Due to this event in our lives my husband and I have had to put off starting a family and moving to the next stage of our lives, I have found it distressing and emotionally draining …

Saka Djoeandy says:

Omar Yusuf is a thief and a liar.  Through his actions and lies through his lawyers, he has cost my family our savings that even now we have not been able to make up.  This investment was to help us start and provide security for my family. 

Kerrie Carroll says:

It’s hard to replace money that you are saving for your future retirement.  These people don’t realise that losses like this really have an affect on a person’s well being.  It may seem like an insignificant amount of money to these people but it is our hard earned money and is a lot to us.

Malcolm McConachy states:

Emotionally upset that a person could deceive innocent investors.  This money could have been better invested ie super fund or payout some mortgage, thus putting us back financially many years.

Enid Bailey says:

I had expected to receive an income from this investment and to create a retirement lifestyle from a small rural property as I am unable to work.

Wendy Chang says:

Due to the financial pressure we where [sic] left with not enough money to cover the business loan and the house expenses.  We had some hard months with a lot of emotional stress causing us insomnia, stomach disorders, anger and depression.  It also meant pressure on our marriage relationship and the whole family as we were unable or limited to take our kids not even to McDonalds.

Brian Jacka states:

When we loaned the $36,000 in 2004 I was 66 years of age and my wife 65, and the return from the truck was to be one element of our retirement income.  The fraud was a significant financial shock to us and our standard of living has been impacted.

Delfina Giovannoni and her husband state that their financial situation has been put back by at least 8 to 10 years.  Their loss has meant Mrs Giovannoni has had to work fulltime leaving the children of the family unattended at home.  Other plans to purchase the family farm and to travel with their children have been frustrated.

Parwin Faiz says:

I am a single woman, with no family and depend on myself to fund financial stability for my old age.  This has set me back a lot.  I have no‑one to support me in my old age.

Brian Moncrieff says:

As a result of this crime my wife and I were unable to qualify for the aged pension until 18^th October 2006.  As the amounts invested were still considered assets.  As from December 2004 until October 2006 we had no income and we had to use our private savings to survive.

Dawn Powell says:

I am a single mother with a disability and this investment offered me an opportunity for a better future and secure old age.  Omar Yusuf’s theft of my money has not only made life difficult for me financially but has also affected my trust of others.  I was looking forward to being able to maintain my home without it being a financial burden.  I was also hoping to travel and have a holiday occasionally without having to save for a long time to try and make this possible.  The debt I now have and lack of money has created a very stressful situation for me.

David Brandi says:

My wife and I suffered huge emotional trauma over this fraud.  Friends, family and some colleagues were also involved and now those relationships are strained and not the same.  I also don’t sound credible anymore to family members whom constantly bring up this loss, pain and suffering etc.

Julie Dalton says:

I know that I will have to work indefinitely cannot look forward to retirement as my home loan is accruing more interest and I feel as if I will never be in a financial position to be self sufficient and reliant on others to support me.

Susan L Wood says:

Instead of receiving a regular income each month I have had to continue working instead of retiring. 

Alison Birkett says:

The money we initially invested was from the sale of our home.  We decided to invest the money to gain a bit extra to put toward a new home.  We are still renting as we don’t have enough equity to purchase again.  This means we can’t fully relax and settle as a family as it is not our property to do as we please with.  We also feel guilty for getting my father involved and losing money.

Paul Birkett says:

The initial $108,000 investment was funds received from the sale of our family home.  It was all of our equity.  Rather than purchasing another property immediately, we decided to invest in On The Go Transport instead.  Having lost our equity in its entirety, we are still renting three years later as we have no equity to contribute to purchasing a new home.

Michael Stradia says:

I am a single dad supporting three children.  This investment was an inheritance from my parents which was supposed to provide my family with a financially stress free life.  Now my sense of well being and enjoyment of life has been affected as I constantly worry about supporting my family financially.

James White says:

The initial intention of this investment was to fund my rental property repayments until the properties were self-sufficient and could fund my retirement.  Due to this crime, I have had to sell one investment property and am placing the second property on the market in February 2008.  I have also had to draw down over 1/3 of my superannuation funds to cover living costs and loan repayments.

Suphi Mercimek says:

I have suffered extensive trauma as the loss of funds had made me depressed to the point where my wife has left me and we will be divorced …

The victim impact statements such as the above personalise what might otherwise be inferred, namely that the extraction of such extensive funds from small investors has had very serious personal consequences upon many of them financially and upon their peace of mind and their enjoyment of life. 

1. You have one prior conviction in respect of a false report made to police concerning a traffic incident.  I do not regard it as of significance in the present context, although it is entirely consistent with the pervasive dishonesty which characterises the conduct which has brought you before this Court. 

1. The principal matter now advanced in mitigation of penalty on your behalf is the fact that you have pleaded guilty.  I accept that that plea must be given due weight and that it has saved the community substantial cost and saved individual witnesses substantial inconvenience and personal aggravation.  Nevertheless I am not persuaded that your plea reflects genuine remorse in the sense of a full understanding and acceptance of responsibility for the loss and suffering you have inflicted.  You returned to this country only after you had been arrested for fraud in Malaysia.  You were granted bail from that jurisdiction in respect of charges on which you ultimately face the threat of corporal punishment in addition to imprisonment.  You breached an undertaking to return to that country and gave yourself up to the authorities here.  The overwhelming inference is that you elected to face criminal proceedings in this country rather than to remain in Malaysia to face the charges then pending over there. 

1. Further it is apparent that you did not feel any remorse at the time your fraudulent conduct was first brought to the public notice.  Rather you elected to further deceive the investors in your schemes and to use the time obtained by reason of this deceit to clean out the assets which you had previously obtained by way of continuing fraud.

1. Statements have been tendered from members of your family and acquaintances as to expressions of remorse by you.  The psychologist, Mr Newton, has expressed the view that you suffer from a Narcissistic Personality Disorder.  He further states:

33Mr Yusuf presents with a history of significant personality disfunction which has its roots in childhood and has interacted with a variety of personal stressors to cause severe behavioural problems.  These problems have been evident across many areas of his life, but the offences that bring him before the Court at this time are perhaps both the most dramatic and the most significant in their impacts upon others.

34During his interview with me, Mr Yusuf could demonstrate an embryonic insight into his offending and the role which his personality disorder has played in its genesis.  Building on this insight he was able to express both his remorse for his offending and his empathy for the impacts it has had upon others.  While further intensive work is clearly needed, his progress nevertheless provides the basis for some optimism regarding Mr Yusuf’s ultimate rehabilitative prospects. 

1. It is plain that the collapse of your financial schemes and your subsequent arrest, incarceration and separation from your family have induced in you a state of anxiety and depression.  This has not been assisted by the fact that you have now spent an extended period on remand.  You have also been placed in protective custody and it seems probable you will remain under that regime indefinitely.  You have been married for some 20 years and have five children.  I have no doubt that extended separation from them will cause you grief and distress particularly in these circumstances I have identified. 

1. In respect of your state of mind, Mr Newton states:

35More immediately, Mr Yusuf’s level of emotional distress and his underlying psychological vulnerability are such that I consider him likely to be vulnerable to experience a greater level of psychological difficulty than do many in the custodial environment.  In particular, he is considered to be at some risk of developing more significant depressive symptoms and it would be appropriate for him to be under the supervision of an appropriately qualified mental health practitioner during the early period after sentencing.

1. Putting these matters together I am of the view that I should proceed on the basis that you have expressed some remorse for your conduct, but that that expression has been embryonic in the sense that it does not reflect a full understanding and acceptance of the wrongfulness of your conduct.  Furthermore, acceptance of the truthfulness of your statements must be guarded given the extent, duration, selfish and pervasive nature of your dishonest conduct.  This said however I do accept your mental state is one in which you will encounter continuing psychological stress in a custodial environment and are to some extent more vulnerable than usual to major depression. 

1. The sentence I must impose must reflect the gravity of your conduct.  A large number of the counts you face comprise rolled up counts arising out of repeat instances of fraudulent conduct in respect of invitations to invest. 

1. In addition a large number of the counts also constitute continuing criminal enterprise offences for which the maximum penalty is 20 years imprisonment. 

1. The penalties I impose must reflect the large total amount involved in your offences, the total number of your victims, the individual seriousness of the offences, the total number of those offences, the significant period of offending, the massive number of conscious criminal decisions made by you in the course of your fraudulent conduct, the charade of deception in which you engaged and the utilisation of so much of what you gained for personal purposes.

1. The reality is that viewed as a whole your offending was a connected continuing criminal enterprise engaged in over a period of several years and directed to the gaining and betrayal of the trust of many people for the purposes of your personal gain.  Moreover many of these people were financially vulnerable.  You were totally unscrupulous in the methods you used to gain their trust and descended to abusing association with your professed religious faith and with the ethnic community from which you came.

1. Not only is the scale of your offending a matter bearing on the culpability of your conduct, but its extent, rapacity and monetary significance raises substantial issues of general deterrence and of individual deterrence.  It also in my view raises a serious question of protection of the public. 

1. As Charles JA said in DPP v Bulfin:[5]

[I]n the case of white collar crime, the lives of the offenders and their families will frequently have been devastated by the consequences of discovery and punishment.  The present case is a very good example.  It would be difficult not to feel great sympathy for the respondent’s wife and family and indeed for the respondent himself.  But I think there is a serious risk that the consequences of discovery and punishment, and the havoc that a custodial sentence usually wreaks on the lives of the white collar criminal and his or her family, may have a tendency to distract attention from the importance of general deterrence ought to carry in the imposition of sentences for crimes such as the present …  Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money and frequently losses (often tragic in their impact) to large numbers of small investors.  The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question.  …  [T]he element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court.

[5][1998] 4 VR 114 at 131 - 132.

1. Both the question of specific deterrence and of protection of the public raise consideration of prospects of rehabilitation.  I am not persuaded by the material advanced on behalf of you that these are particularly good.  It is plain that your offending was the product of fundamental defects in your personality.  I accept Mr Newton’s opinion that there is a basis upon which you may gain greater insight into the nature and consequences of your behaviour.  Nevertheless it seems to me that it cannot be said that your prospects of rehabilitation are such that this issue favours a materially reduced sentence. 

1. Ultimately it seems to me that I must balance your plea of guilty, your extended period on remand, your continuing incarceration in protective custody and your vulnerability to depression, on the one hand against on the other hand the need for denunciation of your conduct, the need to provide for appropriate punishment, general deterrence, specific deterrence and protection of the public. 

1. I propose to sentence you as follows.

1. I sentence you with respect to counts 4 and 7 to three years’ imprisonment on each count.

1. Continuing criminal enterprise counts numbered 13, 14, 18, 20, 23, 60, 64, 69, 73, 78, 91, 92, 116, 117 and 125 involve sums in excess of $100,000.  The largest individual count is number 91 involving the sum of $210,000.  I sentence you with respect to each of these counts to imprisonment for four years.  (‘The $100,000 CCE counts’)

1. Counts 1, 3, 12, 17, 21, 45, 46, 48, 74 and 75 are rolled up charges that involve obtaining between two and five separate payments with a total value in each case in excess of $50,000.  In respect of these counts I sentence you to three years and six months’ imprisonment.  (‘The $50,000 rolled up charges’)

1. Counts 8, 9, 15, 22, 27, 29, 31, 34, 41, 47, 51, 52, 62, 63, 65, 71, 77, 79, 86, 90, 94, 95, 108, 111, 115, 118, 119 and 122 involve losses in excess of $50,000.  I sentence you to three years’ imprisonment with respect to each such count. (‘The $50,000 CCE counts’)

1. Counts 11, 24, 35, 36, 39, 49, 50, 53, 54, 55, 59, 84 and 103 comprise rolled up charges involving two or three separate instances resulting in total losses of less than $50,000.  I sentence you in respect of each such count to 18 months’ imprisonment. (‘The residual rolled up charges’)

1. Counts 2, 5, 6, 10, 16, 19, 25, 26, 28, 30, 32, 33, 37, 38, 40, 42, 43, 44, 56, 57, 58, 61, 66, 67, 68, 70, 72, 76, 80, 81, 82, 83, 85, 87, 88, 89, 93, 96, 97, 98, 99, 100, 101, 102, 104, 105, 106, 107, 109, 110, 112, 113, 114, 120, 121, 123, 124 and 126 involve sums less than $50,000.  I sentence you in respect of each such count to one year’s imprisonment. (‘The residual counts’)

1. I am faced with a situation in which there are so many terms of imprisonment, that it would be in breach of the principle of totality to accumulate appropriately many of these terms.  As Ormiston JA said in R v Coukoulis,[6] the solution preferred by authority is to impose the correct sentence for each count and then to work out, having regard to the principle of totality the proper total effective sentence, making such limited orders for cumulation as are fair in order to reach an overall sentence which is not in breach of the principle of totality or other relevant sentencing principles. 

   [6][2003] VSCA 22 at [18].

1. I direct that the sentences I have imposed with respect to the $100,000 CCE counts other than count 91 be served concurrently with each other and that two years of such sentences be served cumulatively upon the sentence which I have imposed with respect to count 91. 

1. I direct that the sentences I have imposed with respect to the $50,000 rolled up charges be served concurrently with each other and that two years of such sentences be served cumulatively upon the sentences I have imposed above.

1. I direct that the sentences I have imposed with respect to the $50,000 CCE counts be served concurrently with each other and that two years of such sentences be served cumulatively upon the sentences I have imposed above.

1. I direct that the sentences I have imposed with respect to the residual rolled up charges be served concurrently with each other and that one year of such sentences be served cumulatively upon the sentences I have imposed above.

1. I direct that the sentences I have imposed with respect to the residual charges be served concurrently with each other and that one year of such sentences be served cumulatively upon the sentences I have imposed above.

1. The resulting total effective sentence is 12 years.  I fix a minimum non‑parole period of 9 years.

1. I declare that if it were not for your plea of guilty I would have fixed a total effective sentence of 15 years and a non‑parole period of 12 years.

1. In my view it is appropriate that you be granted a proportionately higher non‑parole period by reason of your plea of guilty.

1. I direct that it be recorded that you were sentenced as a continuing criminal enterprise offender with respect to the continuing criminal enterprise offences (the $100,000 CCE counts and the $50,000 CCE counts). 

1. I declare that you have spent 415 days in custody to the date of this sentence.

1. I will make orders pursuant to s 86 of the Sentencing Act 1991 for compensation in accordance with the figures tabulated by Miss Tittensor of Counsel.

Schedule
Count 1	3 years 6 months
Count 2	1 year
Count 3	3 years 6 months
Count 4	3 years
Count 5	1 year
Count 6	1 year
Count 7	3 years
Count 8	3 years
Count 9	3 years
Count 10	1 year
Count 11	18 months
Count 12	3 years 6 months
Count 13	4 years
Count 14	4 years
Count 15	3 years
Count 16	1 year
Count 17	3 years 6 months
Count 18	4 years
Count 19	1 year
Count 20	4 years
Count 21	3 years 6 months
Count 22	3 years
Count 23	4 years
Count 24	18 months
Count 25	1 year
Count 26	1 year
Count 27	3 years
Count 28	1 year
Count 29	3 years
Count 30	1 year
Count 31	3 years
Count 32	1 year
Count 33	1 year
Count 34	3 years
Count 35	18 months
Count 36	18 months
Count 37	1 year
Count 38	1 year
Count 39	18 months
Count 40	1 year
Count 41	3 years
Count 42	1 year
Count 43	1 year
Count 44	1 year
Count 45	3 years 6 months
Count 46	3 years 6 months
Count 47	3 years
Count 48	3 years 6 months
Count 49	18 months
Count 50	18 months
Count 51	3 years
Count 52	3 years
Count 53	18 months
Count 54	18 months
Count 55	18 months
Count 56	1 year
Count 57	1 year
Count 58	1 year
Count 59	18 months
Count 60	4 years
Count 61	1 year
Count 62	3 years
Count 63	3 years
Count 64	4 years
Count 65	3 years
Count 66	1 year
Count 67	1 year
Count 68	1 year
Count 69	4 years
Count 70	1 year
Count 71	3 years
Count 72	1 year
Count 73	4 years
Count 74	3 years 6 months
Count 75	3 years 6 months
Count 76	1 year
Count 77	3 years
Count 78	4 years
Count 79	3 years
Count 80	1 year
Count 81	1 year
Count 82	1 year
Count 83	1 year
Count 84	18 months
Count 85	1 year
Count 86	3 years
Count 87	1 year
Count 88	1 year
Count 89	1 year
Count 90	3 years
Count 91	4 years
Count 92	4 years
Count 93	1 year
Count 94	3 years
Count 95	3 years
Count 96	1 year
Count 97	1 year
Count 98	1 year
Count 99	1 year
Count 100	1 year
Count 101	1 year
Count 102	1 year
Count 103	18 months
Count 104	1 year
Count 105	1 year
Count 106	1 year
Count 107	1 year
Count 108	3 years
Count 109	1 year
Count 110	1 year
Count 111	3 years
Count 112	1 year
Count 113	1 year
Count 114	1 year
Count 115	3 years
Count 116	4 years
Count 117	4 years
Count 118	3 years
Count 119	3 years
Count 120	1 year
Count 121	1 year
Count 122	3 years
Count 123	1 year
Count 124	1 year
Count 125	4 years
Count 126	1 year

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