The Queen v Raita Konito Pakoti
[2022] VCC 271
•17 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01247
| The Queen |
| v |
| Raita Konito Pakoti (Also known as Rachel Edwards) |
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JUDGE: | Bayles | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2022 | |
DATE OF SENTENCE: | 17 February 2022 | |
CASE MAY BE CITED AS: | The Queen v Raita Konito Pakoti | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 271 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Dishonestly using position as a director with an intention of gaining an advantage; Early plea of guilty; No prior criminal record; Mental health; Circumstances of Covid-19 taken into account; Excellent prospects of rehabilitation; Gambling; Recognisance release order.
Legislation Cited: Corporations Act2001 (Cth) s 184(2); Sentencing Act 1991 (Vic) s 6AAA; Crime Act 1914 (Cth) s 20A, s 16A, s 16A(2), s 20(1)(b).
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP (Cth) v Gregory [2011] VSCA 145; R v Williams [2005] NSWSC 315; Kwok v R [2007] NSWCCA 281; R v Rivkin (2004) 59 NSWLR 284; R v Verdins & Ors [2007] VSCA 102; Rossi v The Queen [2021] VSCA 296.
Sentence: 11 months’ imprisonment, with release forthwith on entering into recognizance of $1,000.00, undertaking to be of good behaviour for three years.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms Simone Tatas | Commonwealth Director of Public Prosecution |
| For the Accused | Mr Bill Grimshaw | Victoria Legal Aid |
HIS HONOUR:
1Raita Konito Pakoti, you have pleaded guilty to one charge of dishonestly using your position as a director with an intention of gaining an advantage contrary to s184(2) of the Corporations Act2001 (Cth). This offence carries a maximum penalty of five years' imprisonment or 2,000 penalty units or both.
2A summary of prosecution opening dated 17 December 2021 was filed and read to the Court at the plea hearing by Ms Tatas, who appeared on behalf of the Commonwealth Director of Public Prosecutions (‘CDPP’). I adopt that summary as part of my reasons for sentence. I will not repeat it here in detail, except to highlight some of the main features.
3Westpower Victoria Pty Ltd (‘Westpower’), was incorporated on 9 February 2009 and you were registered as the sole director and secretary of the company. You remained in these roles throughout the charge period. The company operated as a recruitment and labour hire company hiring staff out to third parties, predominantly for manual labour.
4On 3 January 2012, you, as director, authorised the voluntary wind‑up of the company, and on 5 January 2012 an external administrator was appointed. The offences were initially detected by the administrator and the matter was referred to the Australian Securities and Investment Commission for investigation in August 2013.[1] That investigation concluded that between 15 January 2010 and 23 September 2011 a large number of suspicious transactions were made via online banking from the company’s Westpac bank account to your personal Westpac bank account. You described these transactions variously as transactions to the Australian Taxation Office (‘ATO’), State Revenue Office of Victoria (‘SROV’), and CGU Insurance. These were false descriptions and did not represent where the money was actually going.
[1] Marked for Identification P2, Amended Chronology.
5On 5 March 2012, the ATO wrote off an outstanding debt against Westpower in the amount of $68,786.07. Westpower was also registered with the State Revenue Office of Victoria to pay payroll tax. The company fell into arrears in its payments to the SROV, and at the time it went into liquidation the company owed the SROV $101,439.92. After receipt of moneys from the liquidator, Westpower owed an outstanding debt to SROV of $49.040.80. An insurance policy was issued by CGU Insurance, incurring monthly payments for the premiums. By 16 November 2011, there were outstanding premiums of $142,666.72, an amount that was later adjusted to $103,303.83 being the amount outstanding.
6Of course, these figures are not the only measure of the offending, but these were the figures I was provided with by the prosecution in the summary of prosecution opening as being outstanding debts owed by the company. In total, over the course of the charge period, there were 175 transfers from the Westpower account to your account, totalling $619,897.71. I was also told at the hearing that there was a secured debt that was liquidated to pay some of the debts that were owed by the company.
7By way of procedural history, the period of the offending was between January 2010 and September 2011. On 16 May 2015, a brief of evidence was referred to the Commonwealth Director of Public Prosecutions. A charge sheet and warrant to arrest was issued on 10 May 2016. You were charged and released on bail on 20 July 2020, to appear at a filing hearing on 17 November 2020. The hand‑up brief was served on 23 December 2020, and after several short adjournments, it seems that the matter resolved with you indicating your intention to plead guilty at a committal mention on 11 June 2021. The plea hearing was listed in this Court for 24 January 2022.
8I was also informed that you left the country on 31 July 2013 and returned on 5 December 2016. I was told that you left and returned using a valid passport in the name of Raita Konito Pakoti, and although these facts might have made it difficult for investigators and prosecutors to locate and charge you, it was not alleged by the prosecution that you were aware of the investigation at the time you departed from Australia, nor while you were overseas, nor upon your return, and the prosecution did not submit that any of these matters were aggravating features.
9It seems that the passage of time between the end of the offending period and you being brought before the court is the result of these matters that I have mentioned in the preceding paragraphs. However, there is no criticism of either you or the authorities for this delay. This period of time is now approximately 10 years, and I also note that you were arrested and charged on 20 July 2020, which was in the middle of the first year of the COVID-19 pandemic and lockdowns in the State of Victoria. A filing hearing was listed in November of that year and then adjourned to a committal mention in February 2021, with, as I have said, the hand‑up brief being served on 23 December 2020. The committal mention was adjourned twice and you indicated your intention to plead guilty on 11 June 2021, with the plea hearing being listed on 24 January 2022. Although this is not an extraordinary length of time to proceed through the criminal justice system to plea hearing, this does seem to be a reasonably long time from charge to plea. I was not provided with any reason for this length of time, although it may have been in part due to the operation of the courts during the COVID-19 lockdowns.
10For completeness, the prosecution also filed with the Court an amended chronology dated 20 January 2022, prosecution submissions on sentence dated 21 January 2022, and a table of sentences for comparable cases. I will return to these documents later in these reasons for sentence.
11Mr Grimshaw, who appeared on your behalf at the plea hearing, filed with the Court an outline of submissions in mitigation of sentence dated 20 January 2022, a psychological report from Dr Aaron Cunningham dated 11 January 2022, a reference letter from your daughter Jasmine Teao, a reference letter from a Mr Henry Glassie, who has known you for 15 years, and a letter from you addressed to the Court. These documents were all received without objection from the prosecution and I take into account the personal histories provided in them, as well as other matters attested to.
Defence submissions
12In the outline of submissions in mitigation of sentence, Mr Grimshaw submitted that it would be appropriate to convict and release you on a community corrections order pursuant to section 20A of the Crime Act 1914 (Cth). In support of this submission, Mr Grimshaw relied upon the following matters in mitigation –
(a) Your plea of guilty, its utilitarian benefit, and the weight to be attached to this plea in the context of the COVID-19 pandemic in light of the decision of the Court of Appeal in the case of Worboyes v The Queen.[2]
(b) Your lack of prior convictions and previous good character. You have no criminal history and have committed no offences since the charge period for this offence. You have a strong employment history, including volunteer work at a St Vincent de Paul opportunity shop and at a local community kitchen.
(c) The delay of over 10 years between the end of the offending period and the time of sentence, and the lack of any offending during that time. I was told that in that time you returned to the Cook Islands for a period of about three and a half years, where you worked in a retail store, and that there was no gambling in the Cook Islands.
(d) The anxiety that you have experienced due to the delay in this proceeding coming to court. I understand this to be a reference to the period of time between you being charged in July 2020 and the plea date in January 2022.
(e) The potential for you to be deported to New Zealand if sentenced to a term of imprisonment of 12 months or more.
(f) Your deprived upbringing and associated depressive disorder.
(g) Your prospects of rehabilitation; the fact that you have no prior convictions; you have not re-offended in the 10 years since the commission of this offending. Mr Grimshaw submitted that you consume little alcohol and no illicit substances; you no longer gamble, after moving to an environment without poker machines and away from the difficult personal and professional circumstances that led you to seek escape through their use; you have an impressive work history; you currently live with your adult daughter and her partner, looking after their three daughters on weekdays and spending most weekends caring for your other grandchildren.
[2] Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
13In oral submissions at the plea hearing, Mr Grimshaw conceded that general deterrence must play a prominent role in the sentencing exercise. However, he submitted that this case had some distinguishing features as compared with typical cases of a company director using their position to gain advantage. He submitted that you did not have the usual background of people who are often in positions of trust and in a position to commit this kind of offence. You have no formal training or qualifications of any kind; you do not a have a background or network of connections of people in similar positions. He submitted that you are not a worldly person, and you were possibly out of your depth in this role; you had limited resources to draw upon in difficult times; you did not arrive in a position of trust as a result of a privileged background.
14I was told that the labour hire company, at its height, employed approximately 300 labourers, but the complexity of the company increased. Some customers were late paying, and there was a dispute with one of its biggest customers.
15Mr Grimshaw submitted that these difficulties caused you a great deal of stress. At the same time, your marriage was experiencing difficulty and, ultimately, breakdown. Your second husband was physically and emotionally abusive toward you and your son. In this context, you turned to gambling in a very significant way. You played poker machines as a form of escape from difficult circumstances. You were registered at Crown Casino, and in one year you lost $187,236 at Crown Casino. Mr Grimshaw submitted that whilst this loss was recorded at Crown Casino, it does not represent your total gambling losses during the offending period; you gambled at other poker venues as well. Mr Grimshaw conceded that gambling is not a mitigating feature on sentence, but simply part of the factual background against which this offending occurred.
16Mr Grimshaw submitted that you led a modest life, without enrichment. You did have a holiday to Bali around the time, but you drove a modest car and otherwise led a modest life. He conceded that whilst this was a course of conduct involving repeated acts over a period of time, it involved a low level of sophistication and was not a case where detection was difficult.
17You travelled to the Cook Islands after the offending period and before you were charged. The offending ceased after you left Australia and after the company went into liquidation. You stopped gambling on the Cook Islands where gambling is illegal, and I was told that you have not gambled since returning to Australia. You have not re-offended in any way in the approximately 10 years since the charge period for this offending.
Personal Circumstances
18I turn to your personal circumstances. You are currently 65 years old. You were aged between about 52 to 53 years old at the time of the offending. You were born in the Cook Islands. You went to school in New Zealand. You never met your biological father. Your stepfather was violent towards your mother and, it seems, in turn, your mother was violent towards you.
19You left school at 15 and married through an arranged marriage at 18 years. You have five children of that marriage, which lasted 25 years. Your second marriage lasted 19 years and you have one son from that marriage. Your second husband was physically violent towards your son and, to a lesser extent, towards you. I was told that he was more regularly mentally and emotionally abusive toward you.
20You now have six children and 10 grandchildren; they all live in Melbourne. You are a New Zealand citizen. You currently live with one of your adult daughters and care for her children while she works during the week. You are currently diagnosed with a major depressive disorder.
21You have an extensive work history. At age 21, you had your first child and worked two jobs. You worked in a butcher shop by day, and cleaned offices in the evenings. You have worked as a machinist, you have worked packing and delivering meat, as a cleaner, as a shop assistant, in office administration. You have been a carer to your grandchildren and you have volunteered at St Vincent de Paul.
22One of your daughters, Jasmine Teao, wrote a letter of reference that was tendered at your plea hearing. In it, she wrote that you raised six children and nurtured them all to be good people. Your children have never been in trouble with the law; they do not gamble, drink or take drugs. You have always supported and nurtured your children. You are a loving and caring grandmother.
23A letter of reference was also tendered from a Mr Henry Glassie. In it, he attested that you are a decent, caring and hard‑working person. You have worked as a volunteer at a community kitchen. He said that you are sorry and remorseful for what you have done; you are a person who would go out of your way to help anyone in need. You have helped out Mr Glassie and numerous other people in need.
Prosecution Submissions on Plea
24I turn to prosecution submissions at the plea hearing. In written submissions filed on behalf of the prosecution dated 21 January 2022, Ms Tatas submitted that, in light of the seriousness of the offending and the need to effect both specific and general deterrence, a term of imprisonment, with a portion to be served immediately, is the only appropriate option.
25The prosecution submissions directed me to section 16A of the Crimes Act1914 (Cth). The Court must impose a sentence that is of a severity appropriate in all the circumstances. Section 16A(2) sets out a non-exhaustive list of factors that a court must take into account, where relevant and known to the court.
26Ms Tatas emphasised the importance of general deterrence of offenders convicted of white-collar crimes and referred to the cases of DPP (Cth) v Gregory[3] and other cases, where courts have consistently emphasised the importance of general deterrence as a sentencing consideration in white collar crimes. Those who seek the benefits and protection of corporate liability must strictly abide by the duties and responsibilities of that office.[4] In Kwok v R, the New South Wales Court of Criminal Appeal emphasised 'that directorship is a position of trust and carries with it a high degree of responsibility and accountability … it is important to promote a "culture of frankness and complete integrity" in directors in relation to corporate activity.'[5]
[3] DPP (Cth) v Gregory [2011] VSCA 145.
[4] R v Williams [2005] NSWSC 315, 48.
[5] Kwok v R [2007] NSWCCA 281, 120.
27The prosecution submissions reminded me that the charge before the Court is effectively a 'rolled up' charge encompassing 175 transactions over a period of about 20 months. The offending could not be said to be spur of the moment or a one‑off incident.
28In considering the nature and circumstances of the offending, the prosecution submitted that I should take into account –
(a) The offending occurred over about 20 months and involved 175 transactions.
(b) It involved the misappropriation of $619,897.71 of the company’s money.
(c) The criminality was not isolated or opportunistic; it involved planning and premeditation; it was deliberate and repeated conduct, with the objective of obtaining substantial sums of money for your own use.
(d) The offending was able to be committed as a result of your position of trust as the sole director of the company.
(e) The prosecution accepted that the offending was relatively unsophisticated, but that it is still a serious example of the offence. There were significant losses to the government through lost tax revenue.
(f) Although you have no prior convictions, specific deterrence is still a relevant sentencing consideration.
(g) This is not a victimless crime; it creates a heavy burden for creditors and taxpayers. There has been no reparation.
(h) The prosecution conceded that your plea of guilty reflects some contrition and has utilitarian value, particularly in the current COVID-19 pandemic context.
(i) You were not offered a record of interview with investigators.
(j) The prosecution acknowledged that you have no criminal history. However, submitted, citing R v Rivkin,[6] that good character is of less significance in white collar crime, as it is usually a factor that places the offender in a position whereby, he or she has the ability to commit the offence.
(k) The prosecution acknowledges your age and the fact that conviction will result in a mandatory disqualification from holding office for a period of five years, which is held to be a penalty, and that it is appropriate for a sentencing court to take this into account on sentence.
(l) A psychological report was tendered on your behalf, authored by Dr Aaron Cunningham,[7] which stated that you present with a major depressive disorder, and Dr Cunningham offered the opinion that imprisonment would increase your depression. The prosecution conceded that limbs 5 and 6 of Verdins[8] may have some application, but submitted that it should have a very limited impact on the ultimate sentence imposed. I accept that submission in those terms, and I will take the fifth and sixth limbs of Verdins into account, but only to a limited degree.
(m) The prosecution conceded that there has been a delay in this matter which can be taken into account by the Court, but notes that there has been no reparation in the 10 years since the offending.
(n) On the matter of the prospect of deportation, the prosecution referred me to the Victorian case of Guden v R, and the fact that prospect of deportation has been held to be a mitigating factor in certain circumstances. However, the mere speculative possibility of deportation will not suffice to trigger either of the bases for mitigation held to be applicable in Guden. The prospect of deportation can only be mitigating, the prosecution submitted, if there is both sufficient evidence (or a concession by the prosecution) to permit a sensible quantification of that risk to be undertaken, and an evidentiary foundation for concluding that deportation will, in fact, be a hardship for the particular offender.[9] The prosecution does not make any concession in this case, and submits that there is insufficient evidence at present for the Court to determine that the prospect of deportation is more than speculative. I accept this submission, and, accordingly, I do not take this matter into account in mitigation.
[6] R v Rivkin (2004) 59 NSWLR 284.
[7] Exhibit D2, Report from Dr Aaron Cunningham dated 11th January 2022.
[8] R v Verdins & Ors [2007] VSCA 102.
[9] Guden v R (2010) 28 VR 288, 29.
Comparative sentences
29The prosecution handed up a table of cases where sentences have been imposed for offences under s184(2) of the Corporations Act2001 (Cth). I have read that document and taken those sentences into account. I was also reminded of the principles in Pham,[10] requiring consistency in sentencing across the country for federal offences. Of course, no two cases are factually identical in all of their circumstances. However, a review of these sentences reveals that a sentence of immediate imprisonment is ordinarily likely to be required in cases such as the present one.
[10] R v Pham [2015] HCA 39.
Consideration
30General considerations. This is serious offending. Regardless of the circumstances in which you came to hold a directorship and the personal circumstances you were in, you were in a position of trust and responsibility. It was through the position of trust that you had the ability to engage in the conduct of this offending. The authorities are clear that people who take on the responsibility of a directorship and who use that position as the vehicle for offending in this or a similar way must expect to be held to a high degree of accountability by the law. Punishment and general deterrence must be prominent as sentencing aims.
31This offending occurred over a period of about 20 months. It involved 175 transactions. I take the view that the level of sophistication was low. However, it was not a one‑off or spur of the moment act. It was a prolonged and repeated course of conduct. Your offending involved a significant amount of money, being $619,897.71 transferred into your personal account.
32At the time Westpower went into liquidation, I was told that it had debts to –
(a) State Revenue Office of Victoria in the sum of $101,439.92. I was told that after receipt of moneys from the liquidator, Westpower owed an outstanding debt to the State Revenue Office of Victoria of $49,040.80.[11]
(b) CGU Insurance of $103,303.83.
(c) The Australian Taxation Office of $68,786.07.
[11] Marked for Identification P1, Prosecution Opening for Plea, para 12.
33You have no prior criminal history. Whilst good character is less relevant in sentencing for offences of this type, I do take this into account in a limited way, and I also take into account your previous good work history, and your extensive contribution to the community more broadly through your raising of your six children and your more recent contribution to the raising of your grandchildren.
34As previously stated, I take into account the fifth and sixth limbs of Verdins, but only to a limited extent.
35You are currently 65 years old. You now live with your adult daughter and her family and are engaged in an offence‑free life, largely looking after your grandchildren.
36As I see it, two significant matters in mitigation of sentence emerge in this case. The first of those is your plea of guilty entered during the COVID-19 pandemic. The second is the period of 10 years that has elapsed since your offending and your apparent rehabilitation and lack of re-offending in that time.
Plea of guilty
37In regard to your plea of guilty, I accept that your plea of guilty provides some evidence of contrition. Moreover, your plea of guilty has utilitarian benefit. I treat your plea as an early plea, and significant weight ought to be given to it in mitigation of sentence.
38I have regard to the guidance provided by the Court of Appeal in the case of Worboyes v The Queen[12] to sentencing courts during the current period of the COVID-19 pandemic and its impact on the criminal justice system in the State of Victoria. There, the Court of Appeal gave an extensive survey of the established line of authority regarding the discount to be given to a sentence following a plea of guilty. In addition to the established practice, the Court of Appeal gave strong guidance to sentencing courts about how to treat a plea of guilty during the current COVID-19 pandemic and its impact on the criminal justice system in Victoria, the weight to be afforded to the utilitarian benefit of a plea of guilty and the extent of the reduction in the sentence to be attributed to the plea.
[12] Worboyes (n 2).
39I note the following passages – [35]-[39]:
As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.
There are, it must be recognised, real disincentives in the current climate for accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards. As the judge observed in the present case, a newly-sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation. Thereafter, he or she will have very restricted opportunities for contact with family and friends. Further, rehabilitative and other programs within prisons are severely curtailed. That this is so is notorious. These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case, and operate as a further deterrent to the entry of a guilty plea. These disincentives to pleading guilty must be balanced by a proper inducement, through mitigation of sentence, to accept guilt.
Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic. The longer the delay, the more the memory (and enthusiasm) of witnesses dims, and the preparedness of victims to actively and willingly participate is tested, with associated forensic disadvantages to the prosecution. In ordinary times with ordinary delays, the lot of victims and witnesses already is not a happy one. The longer the delays, the more pronounced their plight.
Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.
For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.’[13][13] Worboyes (n 2), 35 - 39.
40It seems to me, in simple terms, that these words mean that the reduction in sentence following a plea of guilty entered during the current COVID-19 pandemic will likely be greater than it would be in ordinary times, and, therefore, it will likely lead to a sentence that will be lower than it would be, all other things being equal, in ordinary times.
41I also note the reinforcement of these principles in the more recent case of Rossi v The Queen;[14]
(a) In that case, the Court of Appeal took the view that had the sentencing judge had the benefit of the decision in Worboyes, much greater weight in the sentencing mix would have been given to the utilitarian benefit arising from the pleas of guilty.
(b) In that case, the sentencing discretion was re-opened, and although sentencing is of course not a mathematical exercise, I do have regard to the additional, very significant reduction in the sentence given by the Court of Appeal and the declaration made pursuant to s 6AAA of the Sentencing Act 1991 (Vic).
[14] Rossi v The Queen [2021] VSCA 296.
42For these reasons, I intend to give you a very significant reduction in the sentence that I am about to impose on you today as compared with the sentence that I would have imposed but for your plea of guilty.
Delay
43On the matter of delay, or the passage of time since the period of the offending, regardless of whether this is properly characterised as delay or simply the passing of time, the very significant period of over 10 years has now passed since the end of the offending period. I am of the view that the following sequence of events is of some significance –
(a) The offending period ended in September 2011, with the company going into voluntary liquidation in January 2012.
(b) It seems that you remained in Australia for a little short of two years after the offending period before you left Australia for the Cook Islands.
(c) You stayed in the Cook Islands for about three and a half years. I was told that you worked in a tourist retail store in the Cook Islands. You did not have any opportunity to gamble, and you did not. You returned to Australia in December 2016.
(d) You remained in Australia for a further three and a half years before being charged in July 2020.
(e) The matter then took about 18 months to its plea date in January 2022.
(f) You remained offence‑free during that whole time.
44Insofar as I am required to take into account the prospect of your rehabilitation, it seems to me that this sequence of events allows an assessment that your prospect of rehabilitation must be seen as excellent. It might also allow the observation that, to some extent, you have gone beyond the mere prospect of rehabilitation and demonstrated actual rehabilitation. I take the view that this is a significant matter and I give it considerable weight in the sentencing synthesis.
45I must, of course, also take into account the need to impose a sentence that punishes you and that deters both you and others from offending in this or a similar manner.
46I am also guided by the maximum penalty for this offence being five years' imprisonment or 2,000 penalty units or both.
47As stated previously, Mr Grimshaw, on your behalf, submitted that I should sentence you to a community corrections order. Ms Tatas, on behalf of the CDPP, submitted that, given the seriousness of the offending and the need to give effect to both specific and general deterrence, a term of imprisonment is required, with a portion to be served immediately.
48This is a case that presents a number of competing sentencing objectives that are difficult to reconcile with each other. Weighing up all the matters that are before the Court, I have come to the view that the seriousness of this offending cannot properly be reflected in a community corrections order and a term of imprisonment is required to be imposed.
Sentence
49Accordingly, I have determined that you will be sentenced to a term of 11 months' imprisonment.
50Under s20(1)(b) of the Crime Act 1914 (Cth), I have a discretion as to whether you will be released immediately or after having served a specified period of imprisonment. After careful consideration of this matter, I have come to the view that it is appropriate to release you immediately upon giving a recognisance in the sum of $1,000 and your undertaking to be of good behaviour for a period of three years.
51I emphasise that your release immediately is conditional on the security by recognisance of $1,000, along with the requirement that you must be of good behaviour for a period of three years.
52I note that there is no pre-sentence detention to declare.
53Ms Konito Pakoti, the purpose of these orders is to punish you for the crimes you have committed. The effect of my order is that you have a sentence of imprisonment of 11 months hanging over your head from today for a period of three years.
54During the three-year period commencing today, you must not commit another offence punishable by imprisonment. If you were to do so, that would constitute a breach of your recognisance.
55If this order is breached, you will be brough back in front of this Court for resentencing in respect of the 11 months' imprisonment. You may be ordered to serve the 11 months in prison and be required to forfeit the security of $1,000.
56Ms Konito Pakoti, if you are presently on mute, I will ask you to unmute yourself. I am required to get your consent to receive this order. Do you consent to going on the recognisance release order as I have explained it to you?
57OFFENDER: Yes, Your Honour. Yes, Your Honour.
58HIS HONOUR: Thank you. You will also need to sign the recognisance release order. The order will be emailed to Mr Grimshaw and you will need to arrange to have it signed and returned to the Court today.
59Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that, but for your plea of guilty, I would have sentenced you to a term of 20 months' imprisonment and required you to serve four months of that sentence immediately.
60Now, Ms Tatas, can I seek your assistance here. Is it the prosecution that prepares the recognisance release order?
61MS TATAS: Yes, Your Honour. We will have that emailed through.
62HIS HONOUR: All right. So, Ms Tatas, if your instructor emails that order to my associate, it will be prepared by the Court and forwarded to Mr Grimshaw, who will arrange for Ms Konito Pakoti to enter into that undertaking.
63MS TATAS: Yes, Your Honour.
64HIS HONOUR: Are there any other matters that I need to cover?
65MS TATAS: Not from me, Your Honour.
66HIS HONOUR: Mr Grimshaw?
67MR GRIMSHAW: Only one thing, Your Honour. Is it necessary to make the order disqualifying Ms Konito Pakoti from being a director?
68MS TATAS: I do not believe so, Your Honour. I think that is a matter for ASIC.
69HIS HONOUR: I think that is right. I do not think that is an order of this Court. I think that is something that follows sentence.
70MR GRIMSHAW: I understand.
71HIS HONOUR: Or follows conviction.
72MR GRIMSHAW: Otherwise no other matters, Your Honour.
73HIS HONOUR: Thank you both for your assistance in this matter.
74MS TATAS: As the Court pleases.
75MR GRIMSHAW: As the Court pleases.
76HIS HONOUR: All right. Thank you. Thanks.
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