Employee Convicted for Receiving Benefits in NSW

The defendant was convicted for receiving benefits in exchange for showing favouritism towards certain subcontractors. The court noted the lack of remorse and the detrimental impact on other subcontractors. Sentences were imposed according to the Crimes Act 1900 and the Crimes (Sentencing Procedure) Act 1999.

OUTCOME: Other

District Court New South Wales

Medium Neutral Citation: R v El [NAME_1] [2019] NSWDC 158 Hearing dates: 8 March 2019 Date of orders: 19 March 2019 Decision date: 19 March 2019 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) [NAME_1] is convicted upon six counts of corruptly receiving a benefit under s 249B of the Crimes Act 1900. (2) In respect of Count 11 of the indictment, I sentence [NAME_1] to a fixed term of imprisonment of 18 months, commencing on 17 March 2019 and to conclude on 16 September 2020. (3) In respect of Counts 1, 3, 5, 7 and 9 of the indictment, I impose an aggregate sentence of three years and six months, and a non-parole period of two years to commence on 17 June 2019. The total aggregate term of imprisonment is to conclude on 16 December 2022, and the aggregate non-parole period is to commence on 17 June 2019 and conclude on 16 June 2021, with the aggregate parole period from 17 June 2021 to 16 December 2022. (4) In respect of the aggregate sentence, I note the following indicative sentences: (a) Count 1 – three years' imprisonment. (b) Count 3 – 18 months' imprisonment. (c) Count 5 – 18 months' imprisonment. (d) Count 7 – three months' imprisonment. (e) Count 9 – three months' imprisonment. (5) The total effective sentence, being the accumulation of the fixed term of imprisonment imposed in respect of Count 11, and the total aggregate sentence to be served largely concurrently, is for a period of three years and nine months, with a non-parole period of two years and three months. (6) I recommend that the offender be released to parole on 16 June 2021. Catchwords: SENTENCE – corruptly receiving benefits for favours – employee – middle-management – approximately $350,000 received over 2 years –– detriment to other sub-contractors – lack of remorse and contrition – parity – financial gain – series of criminal acts Legislation Cited: Crimes Act 1900, s 249B Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 21A, s 24B, s 44, s 68 Cases Cited: Cheung v R (2001) 209 CLR 1 Filippou v R (2015) 256 CLR 47; [2015] HCA 29 R v Isaacs (1997) 41 NSWLR 374 R v Olbrich (1999) 199 CLR 270 Savvas v R (1995) 183 CLR 1 [NAME_2] v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: [NAME_1]: Counsel: [redacted] [NAME_4] (Offender)

Solicitors: [redacted] [NAME_6] (Offender) File Number(s): 2015/112668 Publication restriction: None

sentencing remarks 1. [NAME_3] was found guilty by a jury on all six principal counts of corruptly receiving benefits as inducements for showing favours in relation to the business of his employer, [COMPANY_8], under s 249B(1) of the Crimes Act 1900. The maximum penalty for each offence is seven years' imprisonment. There is no standard non-parole period imposed by statute.

2. In 2012 [NAME_7] decided to decrease its use of employed labour and company owned trucks by increasing the use of subcontractors, at least in respect of its contract to deliver groceries to Coles stores. At that time, [NAME_1] was appointed Site Manager of [NAME_7]'s operation at the Coles warehouse facility at Smeaton Grange. He became a Regional Manager during 2013, having supervisory responsibilities over three sites.

3. The subcontractors who were contracted to [NAME_7] included [COMPANY_10], and [COMPANY_12], among others. By their cartage contract, subcontractors were engaged on a non-exclusive basis by [NAME_7] but were given no guarantee of a minimum level of work.

4. Early in 2013 [NAME_1] met offsite with [NAME_13], the owner and director of [NAME_9]. They agreed that [NAME_13] would make regular cash payments to [NAME_1] in return for [NAME_1] favouring [NAME_13] in relation to the business of [NAME_7]. Those payments from [NAME_9] continued until mid-April 2015, when [NAME_1] was arrested.

5. The amounts of the regular payments were not shown to be identical in amount, and they varied in form. For most of 2013 and 2014, on a regular or weekly basis, [NAME_13] and [NAME_1] would meet offsite often at a local carwash coffee shop or elsewhere where [NAME_13] would provide cash, or cash was deposited by [NAME_13] or his wife, [NAME_14], into [NAME_1]'s bank account. But from 1 October 2013 to 8 January 2014, amounts of $4,000 each week, totalling $60,000, were transferred from the Westpac home loan account of [NAME_14] directly into [NAME_1]'s Westpac account, and from 5 January 2015 until 7 April 2015 inclusive, weekly amounts of $4,500, totalling $63,000, were transferred from a [NAME_9] account into that same Westpac account of [NAME_1] initially, and later into a different account of [NAME_1]. These two series of transfers, the first totalling $60,000 and the second totalling $63,000, were the basis of Counts 3 and 5 found by the jury.

6. Apart from these electronic bank transfers, the payments from [NAME_13] were made either in cash or cash was deposited into [NAME_1]'s account as I indicated. These cash payments and cash deposits constituted Count 1 found by the jury. The regularity with which the 29 bank transfers were made, the lack of any indication in the evidence of a variation in the arrangement (apart from transfers in 2015 being $4,500, an increase from when they were $4,000 in late 2013), the substantial cash deposits made into [NAME_1]'s account and the $77,750 in cash found at [NAME_1]'s house on the day of his arrest, all might indicate that over the eight or nine months in 2013 before the bank transfers commenced, and in the 12 months in 2014 before the transfers recommenced in 2015, some 80 or more weeks in total, [NAME_1] received an amount of cash and cash deposits, the subject of Count 1 of the indictment, in excess of $300,000. But the jury were not asked to find a specific amount and the sum on the indictment was "approximately $171,850". This sum was evidenced, independently of the regular arrangement of payments, by bank records, text messages or both. This sum was pressed by the Crown and accepted by [NAME_1] at the sentence hearing, and it correlated closely with [NAME_1]'s recorded admission of receiving almost $300,000 in payments, once the $123,000 of transfers is added.

7. The standard of proof for the finding of facts adverse to the offender is beyond reasonable doubt. [1] Such findings of fact must be consistent with the verdicts of the jury. [2] The amount of the benefits in Count 1 is relevant to sentence, but was not determined by the jury. I find on that criminal standard that [NAME_1] received $171,850 of cash and cash deposits as alleged by the Crown. I disregard any facts that might indicate a greater sum.

8. The other guilty verdicts of the jury concerning benefits provided by [NAME_13] to [NAME_1], related to two holidays in February 2013 and January 2014 for [NAME_1] and his family, paid by [NAME_13], in the amount evidenced to be at least $4,508.63, and [NAME_13] also provided [NAME_1] with, as [NAME_1] accepted in submissions on sentence, the exclusive use of a car. The car was purchased for $57,000 in late July 2013, and used by [NAME_1] from then until [NAME_1]'s arrest on 15 April 2015, some twenty and a half months.

9. The other charge the subject of a guilty verdict is Count 11 which related to benefits provided to [NAME_1] by [NAME_15], the owner and director of another subcontractor, [NAME_12]. [NAME_15] paid [NAME_1] approximately $48,000 by weekly payments of $1,500 for more than seven months from about September 2014 until shortly before [NAME_1]'s arrest on 15 April 2015.

10. Thus, the jury accepted it was established beyond reasonable doubt, and it was not disputed before me on sentence, that [NAME_1] received in total benefits in excess of $345,000, plus the use of a new car for over 20 months.

11. One element of each of the six counts, the primary element in dispute before the jury, was that [NAME_1] was, by the payments, induced to show favour to [NAME_9], or, in the case of [NAME_12], induced not to show disfavour. While the jury's verdict determined that there was an inducement to show favour to [NAME_9], the extent and nature of any favour actually shown remained a matter of dispute. Indeed, at the sentencing hearing, two factual matters remained in contest.

12. First, the genesis of the original arrangement between [NAME_1] and [NAME_13], and in particular, whether [NAME_1] made the approach to [NAME_13], said "You look after me and I'll look after you", specified a sum of $4,500 per week to be payable by [NAME_13], and whether this was the predominant cause of the arrangement, as [NAME_13] testified.

13. In favour of this conclusion is that [NAME_1]'s evidence on crucial aspects, such as his denial of receiving any weekly payments from [NAME_15], was rejected by the jury. His dishonesty was also manifested in his oral evidence where he was unwilling to concede the existence of payments from [NAME_13], or favours to [NAME_9], unless other evidence undeniably implicated him.

14. As an example, [NAME_1] at various times referred in text messages to cash payments by reference to food items, like "tomatoes", [3] "bananas", [4] "eggs" [5] and "apples". [6] [NAME_1] on one occasion texted [NAME_13] stating, "Make sure we meet today, 9.5 eggs". [7] [NAME_1] would not concede that his text was a reference to $9,500, or even that it was not a reference to eggs, and would not concede that his references to eggs, bananas or tomatoes were references to money. [8]

15. The evidence of his text messages and recorded conversations show that [NAME_1], far more often than [NAME_13], was demanding his payments in full, complaining about underpayments, and seeking a bonus or uplift in the payment amount, when compared to [NAME_13]'s occasional requests for a benefit, assistance or information. Further, [NAME_1] gave no coherent and consistent account of when and how the arrangement with [NAME_13] came to be, although he maintained that the arrangement was instigated by [NAME_13]. The circumstance that [NAME_1] entered a similar arrangement independently with [NAME_15] supports a conclusion that he was the genesis of being paid regular and substantial weekly amounts from [NAME_13]. The defence submitted that [NAME_13] sent to [NAME_1] a text message "5k to start with" on 22 January 2013, but this text was evidently after communications between [NAME_13] and [NAME_1] about [NAME_13] paying for [NAME_1]'s holiday, and in my view, does not assist to determine who was the originator of the arrangement. [9]

16. On the other hand, [NAME_13]'s testimony was less than compelling in several respects, including his testimony that he was guaranteed in late 2012 or early 2013 additional work by [NAME_16], a [NAME_7] State Manager who resigned in early 2013. Ms [NAME_16] gave evidence to the contrary and the recorded conversation between [NAME_1] and [NAME_13] did not support [NAME_13]'s account. There was no record of any such guarantee, and, as I mentioned, the [NAME_9] contract with [NAME_7] specifically provided to the contrary.

17. In addition, [NAME_13] accepted that separately and independently he had offered lower value bribes to two other employees of [NAME_7]. [NAME_13] may have been under financial pressure with a larger truck fleet, and a belief that Ms [NAME_16]'s departure would not be favourable to him, but I was not persuaded beyond reasonable doubt that the genesis of the arrangement between [NAME_13] and [NAME_1] was so one-sided as [NAME_13] maintained. Further, the circumstance that [NAME_1] was proved only to have received cash and cash deposits in Count 1 in the amount of $171,850 militates against any finding beyond reasonable doubt of a firm agreement of $4,000 or $4,500 per week from the outset.

18. I was convinced beyond reasonable doubt that [NAME_1] was the major player in determining the amount he was paid. But [NAME_13] was a willing participant in the arrangement at the outset, and remained so for most of the two-year period thereafter. The Crown did not prove beyond reasonable doubt that [NAME_1] was the genesis of the arrangement, but neither did the defence establish on the balance of probabilities that it was [NAME_13]. I propose to sentence on the basis that neither of the competing possibilities is known. [10]

19. The second area of dispute was, as I noted earlier, the nature of the favouritism shown by [NAME_1] to [NAME_13]. [NAME_1] accepted that he favoured [NAME_13] in [NAME_9] obtaining the contract to deliver liquor to Coles stores, but disputed that he had directed any [NAME_7] allocator to give [NAME_9] extra work. He asserted that [NAME_17], [NAME_7] State Manager in mid-2013, was the "principal protagonist" in [NAME_9] replacing [COMPANY_19] as the liquor contractor. He denied that he had any role in diminishing the workloads of other subcontractors like [COMPANY_20] and [COMPANY_21] who had specific commitments from [NAME_7] in respect of work.

20. The defence submitted that the jury could have found that the favours of [NAME_1] were merely his exclusive services to [NAME_13], and referred to a closing submission of the Crown to that effect. [11] But this submission was only, and plainly, in respect of the alternative counts that were not the subject of a verdict. The Crown's case was clear, and I was convinced beyond a reasonable doubt that the nature of the favours was not merely "advice and direction" as the defence submitted. The text messages and recorded conversations show otherwise. [12] This finding of fact is consistent with the verdicts of the jury.

21. Whilst all decisions of [NAME_1] related to [NAME_9] and [NAME_12] became suspect because they were infected by the bias or favouritism that was the corollary of the corrupt payments and benefits, nevertheless, it is difficult to ascertain precisely whether, which and to what extent any particular decisions were different from what they would have been in an environment of integrity. As I mentioned, [NAME_1] conceded, at the sentence hearing, that he did show favour to [NAME_9] in relation to it obtaining the contract from [NAME_7] to transport liquor to Coles Stores, a matter that the correspondence and text messages establish beyond any reasonable doubt. I was persuaded beyond reasonable doubt that [NAME_1] actively took steps to enable [NAME_9] to replace [NAME_18] as the holder of the liquor contract. The circumstances that the Acting State Manager, [NAME_17], came to the same view as [NAME_1] about the change of subcontractor, and could not positively identify [NAME_1] as having influenced his view, and that [NAME_1] did not expressly direct other [NAME_7] employees that [NAME_9] was to be favoured, and that [NAME_1]'s favouritism was not noticed, resulted from [NAME_1]'s care in how he favoured [NAME_9] rather than because it did not occur. Nor do I accept that [NAME_1]'s support for [NAME_9] only came after Mr [NAME_17] "made it known that he wanted [NAME_18] exited from the liquor contract" as the defence submitted. By that stage [NAME_1] had been receiving benefits for some months, and the text messages to [NAME_13] indicate that [NAME_1] referred to the liquor contract a month before Mr [NAME_17]. [13]

22. In respect of the liquor contract, [NAME_1] took no steps to investigate concerns about the probity of [NAME_9]. [NAME_1] was directed to investigate a list of matters about [NAME_9] by [NAME_22], a Senior Executive in [NAME_7], on 31 July 2013 in connection with the liquor contract, but he disregarded that direction. [14] This shows that [NAME_1]'s submission that "There was no evidence that [NAME_1]…overlooked issues relating to [NAME_9]" is misplaced. He wrote in July 2013 that he was "done talking" about [NAME_9] replacing [NAME_18] as the liquor subcontractor, and he said the State Managers needed to "take over" and "We know what the outcome is, you guys need to make it happen". [15] [NAME_1]'s involvement and attitude were clear, but he was careful to distance himself from the final execution of that decision. That [NAME_1] worked "behind the scenes" did not make his favouritism for [NAME_9] any less effective or pronounced.

23. It was also undisputed that [NAME_9]'s trucks, business and turnover grew several-fold in the course of the two-year arrangement, and that other subcontractors, such as [COMPANY_20] and [COMPANY_21], suffered a substantial decrease in work, and ultimately ceased doing Coles business with [NAME_7], even though repeated compliance audits indicated that these subcontractors provided a better service than [NAME_9]. [16]

24. I am convinced to the criminal standard that [NAME_1]'s favouritism of [NAME_9] was a significant contributing factor in the demise of the other subcontractors, [NAME_18], [NAME_20]-Logistics, even if it is difficult to identify each specific act of favouritism. 25. [NAME_13]'s evidence at trial indicated that by then he doubted the extent of the favours he had received for his payments. On occasions he attempted in conversations with [NAME_1] to reduce the amount of the agreed payment. But the recorded conversations and text messages [17] left me in no doubt that [NAME_1] was favouring [NAME_13]'s business in any way he could reasonably do without drawing attention to himself, and that those favours were seen by [NAME_13] as sufficiently beneficial that he continued to make payments in accordance with the arrangement. 26. [NAME_1] had an obvious interest in ensuring [NAME_9] continued to be profitable so that he would receive his regular payments. Up until his arrest, and indeed throughout these proceedings, he maintained he was the cause of that growth. Even if [NAME_1] to any degree deceived his co-offender in respect to the extent of the favours he was providing, that seems not to be a point in his favour on sentence.

27. Section 3A of the Crimes (Sentencing Procedure) Act 1999 specifies the purposes for which the Court may impose a sentence on the offender, namely: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."

1. Although these purposes overlap, [18] they embrace the purposes of the sentence I intend to impose.

2. Section 5(1) of the Act provides that a Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no other penalty is appropriate. [NAME_1] and the Crown both submitted that a sentence of imprisonment was the only appropriate penalty, a matter which I accept, and the issue was whether that period should be not more than three years, and whether, as [NAME_1] submitted, it should be served in the community by way of an Intensive Correction Order.

3. Ensuring that an offender is adequately punished for the offence raises the question about the objective seriousness or level of criminality involved in the offences before me. Each of the offences has a seven-year maximum penalty.

4. The defence submitted that the benefits provided by [NAME_9] should be considered as one course of conduct, and I accept that proposition. In my view, an aggregate sentence embracing those five counts is appropriate: the more substantial counts, namely 1, 3 and 5 cover the cash benefits received by [NAME_1] for different periods of the two-year arrangement.

5. The Crown proposed and the defence accepted that the offences of [NAME_1] were in the middle of the range of seriousness for these types of offences. 6. [NAME_1] received benefits from [NAME_9] exceeding $300,000 in value. He continued the corrupt arrangement for more than two years and kept it hidden from his employer. In addition, there were present aggravating factors under s 21A of the Act. The offences consisted of a series of criminal acts and they were part of a planned and organised criminal activity. The planning involved arranging for the benefits to be paid secretly, and also in providing favouritism to [NAME_9] without engendering suspicion.

7. The offences were committed for financial gain. [NAME_1]'s motivation was one of greed rather than any particular need.

8. Other subcontractors were adversely affected by the favouritism granted by [NAME_1] to [NAME_9], and [NAME_7] suffered from its subcontractors not being allocated work and rewarded on a fair and objective basis. There are consequent disadvantages to the community as a whole because the efficiency and safety of the operation is compromised by corruption and bias.

9. This was a significant breach of trust by [NAME_1], although I recognise that a breach of trust is an inherent part of the offence, and thus cannot be considered as an additional aggravating factor.

10. I also take into account that [NAME_1] was not a senior executive of [NAME_7] and although he was a senior employee, he might fairly be termed middle management.

11. These matters confirm that the offences are unquestionably serious and I would find the offences involving [NAME_9] in the middle of the range of the level of criminality for offences of this type.

12. A second purpose of sentencing is to deter both the offender and others from committing similar crimes. Deterrence is an important factor in white collar crime, that is, financially motivated, non-violent crime committed in business or government. As here, crimes of this nature are able to be committed because of the trust of employers. [NAME_1]'s performance as an employee played a role in creating that trust with his employer that enabled him to commit the offences.

13. Generally, where a criminal breach of trust is engaged in by an employee which involves substantial sums or benefits, systematic conduct, planning and sophistication, the principles of general deterrence require a sentence to be served in custody. Alternative punishments such as community service or periodic detention have been held, as a general rule, not adequately to reflect the element of general deterrence. Organisations cannot operate effectively without reposing trust in their employees, but, as a result, opportunities for breach of trust are widespread, often difficult to detect, and expensive to prove. This suggests that many cases remain undiscovered, which argues in favour of the need for sentences which operate to deter such offences.

14.

Accordingly, while imprisonment is not inevitable for all white collar crime, it is usual for serious, persistent criminal conduct engaged in for significant financial gain.

15. I have considered both the aggravating and mitigating factors listed in s 21A of the Act.

16. I turn to subjective considerations. I take into account that [NAME_1] has no criminal record, although this matter might be accorded less weight because the matter before me involved a series of offences over a two-year period of criminal conduct. [NAME_1] is married with two young daughters. His presence in the home was especially significant in recent times when his wife lost her adult son and her father in a short period. [NAME_1], though no doubt experiencing the tragedy of losing his stepson, was a great support to his wife. He is a crucial figure in the family. He continues to be the breadwinner and he has found work in the industry for another company at a similar level to that which he held before his arrest. Letters of commendation attest to him being held in high regard there. 17. [NAME_1] has devoted significant time to assisting in sporting clubs, and in other charitable organisations that assist the socially, economically and physically disadvantaged and youth challenged by mental illness. It is a matter of some regret to this Court to note that [NAME_1]'s reputation, built up by the good work that he has put into his family, his employment and the community, has been so tarnished by his corrupt conduct engaged in over a significant period of time.

18. It was submitted that [NAME_1] was rehabilitated and unlikely to reoffend. I was unable to be satisfied of this, despite the tender of a report expressing this opinion. At no stage has [NAME_1] expressed any remorse or contrition about his conduct. During the course of the two years when he was committing the offences, [NAME_1] was well aware of the criminality of his conduct. He took steps to hide from his employer the circumstance that he was receiving payments from subcontractors by meeting offsite to receive the payments and directing that the bank transfers omit details revealing identities. In early 2014, Roads and Maritime Services conducted a raid on the [NAME_7] site and a related investigation. This resulted in [NAME_1] being questioned about his relationship with [NAME_9]. [NAME_1] denied any relationship. Thereafter, the direct transfers into his account ceased, and payments throughout 2014 reverted to the initial method of cash and cash deposits. The suspicions raised by RMS about [NAME_1] and [NAME_13] did not cause [NAME_1] to cease the arrangement.

19. Similar questions were raised by a [NAME_7] employee at the time [NAME_1] was favouring [NAME_9] to enable it to obtain the liquor contract. The evidence is unclear as to whether [NAME_1] knew of these questions but, as I indicated earlier, he was careful to appear to distance himself from the final decision.

20. When [NAME_1] was twice interviewed by police about the offences, he first denied any relationship and then subsequently admitted only so much as could not be disputed. [NAME_1] maintained the same approach in his evidence, making concessions only to the extent that they seemed to him to be compelled by the independent evidence.

21. There was no evidence of any change in his attitude to the offences since his conviction. I do not see any evidence that [NAME_1] has accepted accountability for his criminal behaviour, a purpose of sentencing. And although it appears that a significant part of his financial gain from his offences will be forfeited yet this amount did not represent all of what he had gained from the corrupt payments. 22. [NAME_1]'s recorded conversations indicate an arrogance in [NAME_1] in relation to his conduct with [NAME_9]. He thought he was much smarter than his colleagues at [NAME_7] and revealed a belief that he was capable of offending without detection. Save for the circumstance that [NAME_1] must now know that he risks getting caught and being punished, there was nothing to indicate to me that [NAME_1]'s attitude to the offence has changed or that if he thought he could achieve financial advantage by criminal conduct without being caught, he nevertheless would necessarily refrain from so doing.

23.

For these reasons, I am unable to be satisfied that [NAME_1] has been "rehabilitated", as was submitted, or that he presently is unlikely to reoffend, and so cannot take these matters into account in favour of [NAME_1].

24. There is also the consideration of parity with the sentence given to [NAME_13]. [NAME_13] was given a two-year sentence which he was able to serve by an Intensive Correction Order. The sentencing judge gave [NAME_13] a 40% reduction on his period of imprisonment because of his plea of guilty, his assistance to the police, and his undertaking to continue to assist by giving evidence at trial. [NAME_1] was not entitled to any such discount. The defence correctly submitted that without the discount, [NAME_13]'s sentence would be three years and four months. The principle of parity involves a comparison with this term of imprisonment. [NAME_1] is not punished for pleading not guilty, but he does not receive the discount to which he would otherwise have been entitled had he pleaded guilty.

25. The sentencing remarks in [NAME_13]'s case indicate that [NAME_13]'s family circumstances and community service might not be substantially different to [NAME_1]'s. It was submitted that [NAME_13] benefitted more than [NAME_1] from the criminal conduct because he was able to develop a large business. But the evidence indicated that [NAME_13] has now no ownership in that business but is an employee only. [19] The precise value and profitability of the business, to the extent that [NAME_13] derives benefit from it now that it is owned by his wife, was not clear on the evidence. I note that I am bound by s 24B of the Act not to take into account the forfeiture of property by [NAME_1] as a mitigating factor, and [NAME_1] did not submit otherwise. 26. [NAME_13]'s sentence in respect of the benefits paid took into account three listed items on the Form 1, two attempted bribes of a lower amount and the provision of the car, in addition to his two years of corruptly providing benefits to [NAME_1]. But [NAME_1]'s offences involving [NAME_9], because of the breach of duty owed to his employer, are, in my view, somewhat more serious than [NAME_13]'s, and the application of the consideration of parity would indicate a sentence greater than three years and four months.

27. In addition, I am required to sentence [NAME_1] for the additional corrupt arrangement involving [NAME_12]. The offence under Count 11 involving payments by [NAME_15] to [NAME_1] raises similar sentencing considerations to [NAME_1]'s arrangement with [NAME_13] save that the payments did not continue for so long and were of a lesser amount. Although the criminality of the conduct in Count 11 may be increased by it being conduct which began 18 months after the commencement of the criminal arrangement with [NAME_13], I regard the appropriate penalty as similar to what I would impose in respect of counts 3 and 5 which involve a similar magnitude of benefits.

28. I also take into account the circumstance of the delay in this matter coming to trial, the length of the hearing, the delay since the trial, although this last matter was at the request of [NAME_1], and the somewhat onerous reporting conditions since December 2018 until now of reporting each weekday. [NAME_1] spent two days in custody after his arrest, and so the term of imprisonment will date from 17 March 2019 to reflect this.

29. I note that s 44 of the Act requires that the non-parole period must not fall below 75% of a single sentence or aggregate sentence unless there is a finding of special circumstances. On the basis that [NAME_1] has not previously served a custodial sentence, that he has good prospects of rehabilitation and because of the accumulation of sentences, I find special circumstances.

30. I have taken into account the written and oral submissions of counsel for the [NAME_1] and I have taken into account the references given on his behalf and the other exhibits on sentence. I have imposed a discrete sentence in respect of Count 11, and indicated the criminality of that offence, and have imposed a discrete aggregate sentence in respect of Counts 1, 3, 5, 7 and 9 and indicated the criminality of those offences, and have given indicative sentences for each of the separate offences in the aggregate sentence. I have considered the criminality of all the counts in determining the total effective sentence to be served.

31. Rather than sentence in accordance with the order of offences in the Crown Sentence Summary, I propose to sentence [NAME_1] first for Count 11, that is the shorter sentence. I intend to impose a fixed term of imprisonment in respect of Count 11 and not set a non-parole period because the period of imprisonment is largely subsumed in the aggregate sentence I intend to impose in respect of Counts 1, 3, 5, 7 and 9, that will be served partly concurrently with the fixed term imposed in respect of Count 11. As the duration of the term of imprisonment imposed for all offences exceeds three years, an Intensive Correction Order is unavailable, pursuant to s 68(3) of the Act.

32. Would you please stand, [NAME_1].

Sentence 1. You are convicted upon six counts of corruptly receiving a benefit under s 249B of the Crimes Act 1900.

2. In respect of Count 11 of the indictment, I sentence you to a fixed term of imprisonment of 18 months, commencing on 17 March 2019 and to conclude on 16 September 2020.

3. In respect of Counts 1, 3, 5, 7 and 9 of the indictment, I impose an aggregate sentence of three years and six months, and a non-parole period of two years to commence on 17 June 2019. The total aggregate term of imprisonment is to conclude on 16 December 2022, and the aggregate non-parole period is to commence on 17 June 2019 and conclude on 16 June 2021, with the aggregate parole period from 17 June 2021 to 16 December 2022.

4. In respect of the aggregate sentence, I note the following indicative sentences:

1. Count 1 – three years' imprisonment.

2. Count 3 – 18 months' imprisonment.

3. Count 5 – 18 months' imprisonment.

4. Count 7 – three months' imprisonment.

5. Count 9 – three months' imprisonment.

1. The total effective sentence, being the accumulation of the fixed term of imprisonment imposed in respect of Count 11, and the total aggregate sentence to be served largely concurrently, is for a period of three years and nine months, with a non-parole period of two years and three months.

2. I recommend that the offender be released to parole on 16 June 2021.

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Endnotes 1. See R v Isaacs (1997) 41 NSWLR 374 at 378D, R v Olbrich (1999) 199 CLR 270 at [27].

2. See Savvas v R (1995) 183 CLR 1 at 8, Cheung v R (2001) 209 CLR 1 at [169] per [NAME_23].

3. Exhibit P, p 144 at 2249.

4. Exhibit P, p 94 at 1464.

5. Exhibit P, p 81 at 1239.

6. Exhibit P, p 78 at 1198.

7. Exhibit P, p 140 at 2183. 8. 12/10/18, T2845-6.

9. See Exhibit P, p 3 at 29-36 and 39.

10. See Filippou v R (2015) 256 CLR 47; [2015] HCA 29 at [69]. 11. 17/10/18, T3012/8-18.

12. Exhibits P, A59 and A60.

13. Cf Exhibit P, p 10 at 158-160, p 13 at 207-208, p 16 at 243, with Exhibit A44, p 6 at 82.

14. Exhibit A47.

15. Exhibit A49 16. Exhibits A18, A19, A23, A26, A27 and A28.

17. Exhibits P, A59 and A60. 18. [NAME_2] v R (No 2) (1988) 164 CLR 465; [1988] HCA 14.

19. Exhibit A96, 17/9/18, T1556/21-30. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2019