R v Agius; R v Zerafa [2012] NSWSC 978

Supreme Court New South Wales

Medium Neutral Citation: R v Agius; R v Zerafa [2012] NSWSC 978 Hearing dates: 5-9, 12, 14, 15, 19-23, 26-29 March 2012; 2-5, 10-13, 16-20, 23-24, 26-27 April 2012; 1-4, 7-11, 14-18, 21-24, 28-31 May 2012; 4-7, 12, 18-22, 25-29 June 2012; 2-6, 9-12, 16, 18-20, 23-27, 30-31 July 2012; 14, 17 August 2012 Decision date: 23 August 2012 Before: Simpson J Decision: Robert Francis Agius (1) In respect of the first count on the indictment: Mr Agius convicted. Mr Agius sentenced to imprisonment for 4 years and 5 months, commencing on 31 July 2012 and expiring on 30 December 2016. (2) In respect of the second count on the indictment: Mr Agius convicted. Mr Agius sentenced to imprisonment for 4 years and 6 months, commencing on 31 December 2016 and expiring on 30 June 2021. Fix a single non-parole period of 6 years and 8 months, expiring on 30 March 2019. Kevin Zerafa (1)In respect of the first count on the indictment: Mr Zerafa convicted. Mr Zerafa ordered to perform community service work for 500 hours. Mr Zerafa to report to the Burwood District Office of the NSW Probation and Parole Service at 3.45pm on Tuesday, 28 August 2012. (2)In respect of the second count on the indictment: Mr Zerafa convicted. Mr Zerafa sentenced to imprisonment for 3 years, commencing on 23 August 2012 and expiring on 22 August 2015. Order that Mr Zerafa be released forthwith, on entering into a recognisance to be of good behaviour for 3 years. Catchwords: CRIMINAL LAW - sentencing after trial - conspiracy to defraud the Commonwealth - Crimes Act 1914, s 29D, s 68(1) - conspiracy to cause loss to the Commonwealth - Criminal Code (Cth) - Crimes Act 1914, Pt 1B - relevant sentencing considerations - nature and circumstances of offences - contrition - cooperation with law enforcement authorities - general deterrence - scheme involving fraudulent claims for deductible business expenses - false invoices - false document trail - period of offending - financial benefit - involvement and participation of offenders - attempts at concealment of offences - course of criminal conduct - necessity for adequate punishment - personal circumstances of offenders - evidence of good character - absence of mitigation - worst category case - effect of reduction in maximum penalty - totality - mitigating circumstances - influence of older and more powerful employer - attempt to halt participation - delay in proceedings - probable effect of sentence on family and dependants - must be exceptional - availability of intensive correction order - not appropriate - cooperation with prosecution in adducing evidence Legislation Cited: Crimes (Administration of Sentences) Act 1999 Crimes (Administration of Sentences) Regulation 2008 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Regulation 2010 Crimes Act 1914 (Cth) Criminal Code (Cth) Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 Interpretation Act 1987 Cases Cited: Agius v R [2011] NSWCCA 119 Bui v Director of Public Prosecutions (Cth) [2012] HCA 1 Cameron v The Queen [2002] HCA 6; 209 CLR 339 DPP v Karazisis [2010] VSCA 350 DPP v Nikolic [2008] VSCA 226 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Bateson [2011] NSWSC 643 R v Boughen; R v Cameron [2012] NSWCCA 17 R v Hinton [2002] NSWCCA 405; 143 A Crim R 286 R v Ida Ronen [2006] NSWCCA 123 R v Lanteri [2006] VSC 225 R v Scott [1975] AC 819 R v Togias [2001] NSWCCA 522 Category: Sentence Parties: 2008/45500; 2008/245425 Regina (Crown) Robert Francis Agius (Defendant)