R v Kelu; R v Millner (No 7) [2023] NSWSC 1543

Supreme Court New South Wales

Medium Neutral Citation: R v Kelu; R v Millner (No 7) [2023] NSWSC 1543 Hearing dates: 13 July 2023 Date of orders: 13 July 2023 Decision date: 13 July 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: The detention application in respect of the offender, Cedric Adrian Millner, is granted. Catchwords: CRIME — Bail — Detention application – where offender works as a complex care worker and seeks time to hand over care – where offender asserts the need to obtain a psychiatric opinion – whether special or exceptional circumstances exist –application granted Legislation Cited: Bail Act 2013 (NSW), ss 22(1), 22B Criminal Code Act 1995 (Cth), s 135.4 Cases Cited: Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173 Director of Public Prosecutions (DPP) (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171 Category: Procedural rulings Parties: Rex Jonatan Kelu Cedric Adrian Millner Representation: Counsel: G Craddock SC with B Stevens (Crown) M Avenell SC (Mr Kelu) S Hall SC (Mr Millner)

Solicitors: Commonwealth Director of Public Prosecutions Bannisters Lawyers (Mr Kelu) KPW Lawyers (Mr Millner) File Number(s): 2018/32462 and 2018/67357 Publication restriction: None

REVISED EX TEMPORE Judgment 1. On 11 July 2023, the offender, Cedric Adrian Millner, was convicted of two counts of conspiracy to defraud the Commonwealth contrary to s 135.4 of the Criminal Code Act 1995 (Cth). The offending conduct occurred in 2012 and 2013. 2. The jury must be taken to have accepted that the offender conspired with Mr Jonatan Kelu with the intention of dishonestly causing a loss to the Commissioner of Taxation. Specifically, the loss was the amount of Goods and Services Tax ("GST") received by a company, Investrix, on the sale of gold to Focus Metals during the period 2012 to 2013. This amount was approximately $40 million. 3. Obviously, it will be necessary to make findings on sentence but, by way of brief overview, the offender, in company with Mr Kelu, must be taken to have established a scheme in 2012 which involved the purchase of pure gold from a gold company, ABC Gold Bullion ("ABC"), melting it and then selling it to another company, Focus Metals (which operated out of Melbourne) in a different form. When the gold was purchased, it was pure gold and GST was not payable on the purchase. When the gold was sold, it was in a different form: it was not pure gold and it was asserted to be second-hand. When it was sold to Focus Metals, Focus Metals was required to pay (and did pay) 10% GST on each of the twice weekly sales. 4. In 2012, the offender and Mr Kelu arranged for five persons, who have been described as "friends and relatives", to be put in place between Investrix and ABC. The co-offenders established a scheme to make it look like Investrix was purchasing the gold – not from the original seller, ABC, but from the persons described as friends and relatives. 5. When completing and submitting the periodical Business Activity Statements and GST forms, Investrix claimed Input Tax Credits on the basis that it had purchased gold, not from ABC, but from these other persons, essentially off-setting the amount of GST which had been received from Focus Metals. The net effect was that the amount of Input Tax Credits claimed over the period 2012 to 2013 was approximate to the amount of GST which Investrix had received from Focus Metals, again, the net effect being that the $40 million in GST received from Focus Metals was not paid to the Commonwealth. 6. The scheme was slightly different in 2013, in that Mr Kelu and the offender recruited persons who have been described as "the Koreans" – who, in reality, were persons visiting Australia on tourist visas – on the basis that they were said to be involved in the purchase and sale of gold to Investrix. They were thus said to have made Investrix a second-hand dealer which was purchasing gold from persons involved in some form of recreational pursuit or hobby. According to Investrix, it was then entitled to claim Input Tax Credits. 7. The jury must have accepted that, in engaging in this conduct and establishing or participating in these schemes in 2012 and 2013, the offender conspired with Mr Kelu with the intention of dishonestly causing a loss to the Commonwealth, being the amount of the GST received from Focus Metals. 8. The Crown has made a detention application, relying on s 22B of the Bail Act 2013 (NSW) ("Bail Act"). Section 22B is in the following terms: 22B Limitation regarding bail during period following conviction and before sentencing for certain offences (1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court— (a) on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or (b) on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision. (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified. (3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section. (4) This section applies despite anything to the contrary in this Act. (5) In this section— conviction also includes a plea of guilty. Note— Conviction is defined in section 4(1) to include a finding of guilt. 1. The offender accepts that the threshold point in s 22B is established, that is, he accepts that he will be sentenced to a term of full-time imprisonment. However, the offender seeks to resist the application on the basis that there are special or exceptional circumstances. 2. Section 22B was considered by the New South Wales Court of Criminal Appeal in Director of Public Prosecutions (DPP) (NSW) v Van Gestal (2022) 109 NSWLR 136; [2022] NSWCCA 171 ("Van Gestel") and Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173. 3. As was observed in Van Gestel, whether special or exceptional circumstances exist is a question of fact and the person relying on the exception bears the onus of proof. As such, it is incumbent upon the offender to establish that special or exceptional circumstances exist. Whether special or exceptional circumstances exist involves a case-by-case determination. The term should be given the same meaning as set out in s 22(1) of the Bail Act. 4. In support of the application, the offender relies on a letter from Golden Heart Services Pty Ltd, a provider of disability services with whom the offender is employed. There are also two letters from Mr Joseph Sulfaro, both dated 1 July 2023. 5. Mr Douglas Gooley, the author of the letter from Golden Heart Services, says that the offender is employed as a Complex Care worker. He commenced work with Golden Heart Services in 2020 and has been assisting people with disabilities in the community since that time. He currently supports three complex clients with challenging behaviours, although there may also be another person with challenging behaviours whom he assists. They rely on him for his daily assistance, guidance and companionship. 6. Mr Sulfaro is a person who suffers from a disability, such that he needs wheelchair assistance. He attests to the significant amount of assistance that Mr Millner has provided to him, including ongoing support and friendship over the period. He describes Mr Millner as selfless and giving, generous and unassuming. It is, of course, a glowing reference. I have no reason to doubt that that is Mr Sulfaro's perception of the offender. 7. Mr Sulfaro's second letter attests to the offender's significant and ongoing support to Maja Makowiak, a person described as his partner in the trial. She suffers from multiple mental illnesses. Mr Sulfaro's letter points to her needs and the high level of support that she requires. 8. Ms Hall submits that there are three reasons why I should find special or exceptional circumstances, being that: 1. the offender needs to continue with his work assisting those people requiring high level care and that no arrangements have been put in place for someone to take over the care that he provides; 2. no arrangements have been put in place to obtain replacement care for Ms Makowiak. The offender needs to be free in the community to enable that to take place prior to being imprisoned; and 3. the offender needs to obtain his own psychiatric opinion, having regard to what Ms Hall described as some evidence in the trial that he may be liable to self-harm. 1. There is, of course, no greater work in the community than volunteering to help people in need. The offender has been providing a valuable service to a number of people, both as part of his employment and on a voluntary basis. No doubt, we can all commend him for that. 2. However, it is a sad reality that when people commit serious offences, they go to prison. When they commit serious offences, as these offences are, the people who suffer most are the people left behind. The offender will be going to prison and people will suffer because of his actions; people who are being left behind, such as Ms Makowiak, Mr Sulfaro, and others for whom Mr Millner has been caring. 3. The Crown Prosecutor observes that there is no letter from Mr Millner's employer to the effect that he cannot be replaced. It would be surprising if he could not be replaced. 4. It is, again, a sad reality that people who commit serious offences must cease their employment, no matter how valuable their employment is, and must leave family members at home to care for themselves. 5. It is necessary to consider the combination of factors as a whole to determine whether special or exceptional circumstances have been established. Having said that, I would not give any weight to the suggestion that the offender needs to obtain a psychiatric opinion before he goes into custody. That is not a matter which assists in the determination of special and exceptional circumstances in a case such as this. He has not been receiving psychiatric treatment. There is no evidence that he needs to see a psychiatrist before he enters custody. 6. I am not satisfied that the combination of matters relied upon by the offender establish special or exceptional circumstances. In the circumstances, the detention application is granted, and Mr Millner should be taken into custody.