IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
 Not Restricted
 Suitable for Publication	
Case No. CR-20-01092
Indictment No. L10577110

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
MATTHEW JOHANNES WAIJ		

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JUDGE:	HIS HONOUR JUDGE TRAPNELL 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	20 April 2021	
DATE OF SENTENCE:	15 September 2021	
CASE MAY BE CITED AS:	DPP v Waij	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1350		

REASONS FOR SENTENCE
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Subject:		Criminal Law
Catchwords: 	Sentence – Obtain financial advantage by deception – Theft – Attempted obtain financial advantage by deception – Continuing criminal enterprise offences – Early pleas of guilty – Defrauded total of $2,729,534 – 77 separate and discrete fraudulent transactions over 10 years and 9 months – Serious breach of trust – Sophisticated crimes – Very high moral culpability – Relevant prior criminal history – Highly problematic prospects of rehabilitation – Sentence significantly moderated by application of totality principle
Legislation Cited:	Sentencing Act 1991, ss. 6I, 6H
Cases Cited:	DPP v Waij [2017] VCC 812 – Rodriguez v DPP (Cth) (2013) 40 VR 436 – Apted v The Queen [2021] VSCA 151 – Pasinis v The Queen [2014] VSCA 97 – R v Rich (No 2) (2002) 4 VR 155
Sentence:	Total effective sentence of 8 years’ and 4 months’ imprisonment – 4 years be served cumulatively on sentence presently being served – 3 years added on the non-parole period previously fixed

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr S P Devlin
20 April 2021

Mr N Zvekic
15 September 2021	Ms A Hogan, Solicitor for Public Prosecutions	
			
For the Accused	Mr S Moglia
	Galbally & O’Bryan Lawyers	

HIS HONOUR:

1	Matthew Johannes Waij, you have pleaded guilty to an indictment containing sixteen charges of obtain financial advantage by deception (Charges 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16 & 18), one charge of theft (Charge 8) and one charge of attempted obtain financial advantage by deception (Charge 17). 
2	The maximum penalty for obtain financial advantage by deception is 10 years’ imprisonment. The maximum penalty for theft is 10 years’ imprisonment. The maximum penalty for attempt to obtain financial advantage by deception is 5 years’ imprisonment. However, because Charges 1, 2, 6, 7, 9, 10, 12, 14, 16, 17 and 18 are continuing criminal enterprise offences, the maximum penalty for each of them is 20 years’ imprisonment; except for Charge 17, where the maximum penalty for the attempt becomes 10 years’ imprisonment. You will be sentenced as a continuing criminal enterprise offender on those charges.
The Facts
3	The prosecution filed a summary of prosecution opening for plea dated 4 November 2020, which your counsel told me I can treat as a statement of agreed facts. 
4	You were born on 12 April 1982 in South Australia as Matthew Way. You formally changed your name to Matthew Waij on 10 August 2007. Your mother, Jacinta Way, is listed as a director of a number of companies associated with you. 
5	You successfully completed a Diploma of Commerce at Deakin College in 2002 and then enrolled in a Bachelor of Commerce, Financial/Accounting in 2003 at Deakin University, however upon failing a number of subjects you withdrew from the course in 2006 and never received the degree. 
6	While all financial advisers are required to hold an Australian Financial Services Licence, you never held any such licence. You purported to be a licenced financial advisor and stockbroker, providing advice to many victims and on occasion arranged for the transfer of their superannuation funds into a self-managed superannuation funds you had set up in the victims’ names. You also set up corresponding bank accounts relating to those funds. The victims signed the relevant transfer documents with their superannuation funds, believing those funds were being transferred into the set-up bank account. Instead, funds were directed to a business bank account associated with you or your personal bank accounts.
7	You provided various letterheads, some of which contained Australian Financial Services licence numbers that did not exist, or the names of companies which you were not associated with. You provided business cards that listed you as Director of Stier Capital Limited and that represented you held a Master of Applied Finance, Bachelor of Finance and Bachelor of Accounting. This was all false.
8	You registered a number of businesses with the Australian Securities and Investments Commission (‘ASIC’) and were the Director and Secretary of a number of registered companies. Each of these companies had multiple bank accounts. You also set up a number of companies in which your aunts, mother and grandmother were listed as directors and secretary. You used these companies to provide financial advice to your victims.
9	You had been convicted of fraud for unrelated matters, thereby making you ineligible to be a company director for a period of time.
10	The general nature of your offending in this matter is that you made misrepresentations to a large number of people to encourage them to invest money with you, or entities controlled by you. The common misrepresentation was that investors would be investing in shares and they would receive the security of shares identifiable with their investment.
11	What in fact happened is you used the funds you received to pay amounts owing to other investors or persons, and also used part of the funds to pay personal expenses. In effect, you conducted what has come to be known as a ‘Ponzi scheme’.
12	You did buy some shares in your and your entities’ names. However, the number of shares you and/or your companies held at any given time was grossly deficient to meet the individual representations you made to the numerous investors you defrauded. 
Charge 1 – Obtain financial advantage by deception – Peter Way – $294,608.43
13	You told your uncle, Peter Way, that you were a financial advisor and the director of Stier Kapitaal, which later changed its name to Stier Group. You convinced your uncle to invest in shares through you as you told him they offered a better return than the superannuation funds in which he was then investing. You encouraged Mr Way to roll his superannuation into a fund you set up in his and his wife’s name. You also arranged for Mr Way’s employer to direct his salary sacrifice superannuation contributions into this fund.
14	In a number of transactions over a 10-year period between 1 September 2006 to 30 September 2016, you defrauded Mr Way of $294,608.43. These transactions include rolled-up amounts totalling $81,760.70 and a single transaction in the amount of $184,574.39, the latter constituting this charge a continuing criminal enterprise offence.
15	The details of the transactions involved in this fraud are set out in the Summary of Prosecution Opening dated 4 November 2020 (‘SPO’) and do not need to be repeated here. I incorporate those details by reference.
16	At all times you purported to Mr Way you were buying shares for his benefit, but this was a lie. Most of the funds defrauded were used for your personal expenses or paid to your wife or mother. Account statements were sent to a post office box controlled by you. Your victim received no bank statements.
17	You sent Mr Way several fraudulent statements of account purporting to show the money being used for the purchase of shares. Mr Way later made enquiries in relation to those share holdings and was advised no shares were held in his name or his superannuation fund.
Charge 2 – Obtain financial advantage by deception – Damian Way – $226,660.62
18	On 25 October 2007, you convinced your uncle, Damian Way, and his wife, Anita Way, to set up a self-managed superannuation fund. You advised them to roll all their existing superannuation into this fund. The funds were to be invested in shares in the victims’ names in order to ‘grow the fund’.
19	You completed and lodged all required paperwork for Mr and Mrs Way using an address associated with you. You helped them set up a bank account for the superannuation fund, but all bank statements were forwarded to a post office box controlled by you. Mr and Mrs Way never received any bank statements. You closed the superannuation fund’s bank account on 1 October 2014 without notifying Damian or Anita Way.
20	In a number of transactions over an almost seven-and-a-half-year period between 3 January 2008 to 3 June 2015, you defrauded Mr Way of $226,660.62. These transactions include a single transaction in the amount of $98,000.00, constituting this charge a continuing criminal enterprise offence.
21	The details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference. 
22	You used these funds for your own personal expenses, including payments to your wife and mother. None of the transactions you made were authorised by Mr Way.
23	In early January 2010, Mr Way became concerned he had not received any bank statements for the fund’s bank account and he confronted you. The address for the bank account was updated to correctly reflect the victim’s home address, however he still received no bank statements. 
24	On 11 June 2010 Damian and Anita Way attended the Commonwealth Bank of Australia (CBA) in Numurkah and removed you as a signatory to the fund’s bank account. However,  you retained access to the account to conduct internet and telephone banking transactions.
25	Despite your uncle raising his concerns with you, you nonetheless continued to defraud him of further amounts totalling in excess of $74,000. Some of this amount was transferred without authority into the superannuation funds of Peter Way and Jennifer Edwards.
26	It wasn’t until late 2017, when you were incarcerated for unrelated matters, that Damian and Anita Way realised they had been deceived by you. 
Charge 3 – Obtain financial advantage by deception – Anita Way – $29,234.00
27	This charge is related to Charge 2 and many of the facts overlap. In three transactions over an almost two-year period between 8 April 2008 to 17 March 2020, you defrauded Ms Way of $29,234.00. You arranged the transfer of Ms Way’s superannuation from Aviva and Health Super and subsequently transferred or withdrew those funds for your personal use without her authority.
28	The details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.
29	Throughout the period of your purported financial relationship, you sent Damian and Anita Way various false holding statements from Stier Kapitaal, indicating the holdings of various shares purchased in their names and cash holdings. These statements were knowingly false.
Charge 4 – Obtain financial advantage by deception – Sidney Aspland – $44,961.24
30	Sidney Aspland has been your mother’s de facto partner for the past 20 years. It is through her that you met.
31	In five transactions over three time periods: firstly, in June and July 2008; secondly, in March 2015; and finally, in March and June 2016, you defrauded Mr Aspland of $44,961.24. In the first two of those transactions you, without authority, arranged the transfer of Mr Aspland’s superannuation from Uni Super and AustralianSuper into Damian and Anita Way’s superannuation account. 
32	On the second of those occasions, you forged Mr Aspland’s signature on relevant documents. There is no specific charge relating to this conduct and you will not be punished for this act. It is relied on by the prosecution to provide context and is relevant to my assessment of the objective gravity of your offending conduct in relation to this offence.
33	The next occasion relates to you advising Mr Aspland to establish his own self-managed superannuation fund, which he did. Money was then rolled over from his AustralianSuper account into that account and removed by you for personal expenditure, without authority.
34	The final two occasions relate to money being transferred into one of your company’s accounts for the purchase of Crusader Resources shares in Mr Aspland’s name. The shares were never purchased, and the funds were used by you for personal expenses and to pay debts to other victims of the fraudulent scheme.
35	The details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.
Charge 5 – Obtain financial advantage by deception – Kristine Harding – $14,792.67
36	In 2008, you provided financial advice to your aunt, Kristine Harding, and her husband, William Harding. You advised them to roll their money into the Stier Kapitaal superannuation fund which you ran. You advised them the money would be invested in shares to grow their superannuation fund. 
37	You arranged the roll-over of Ms Harding’s superannuation form Non-Government Schools Superannuation Fund and Our Lady of Peace School Superannuation Fund into the fund you controlled.
38	In four transactions over a three-and-a-half-year period between 4 May 2009 and 31 December 2011, you defrauded Ms Harding of $14,792.67. She never received any share certificates or dividend statements. You did not use the money to purchase shares. You dispersed the money without her authorisation to pay your personal expenses and other victims of your fraudulent scheme. Moreover, you provided Ms Harding with a false portfolio holding statement which purported to show she owned CBA and BHP shares.
39	The details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.
Charge 6 – Obtain financial advantage by deception – William Harding – $152,919.79
40	This charge is related to Charge 5 and many of the facts overlap. Like his wife, Kristine Harding, you advised Mr Harding to roll-over his superannuation into the Stier Kapitaal Superannuation Fund. You told him you would invest the money in shares to ‘grow’ his superannuation. Mr Harding rolled-over his superannuation balances in AustralianSuper and set up a salary sacrifice arrangement with his employer, the Hickinbotham group, which diverted further moneys into the Stier Kapitaal fund.
41	In numerous transactions over a six-year period between 19 May 2009 and 8 September 2015, you defrauded Mr Harding of $152,919.79. The initial single transaction is $60,732.30, constituting this charge a continuing criminal enterprise offence.
42	Mr Harding never received any share certificates or dividend statements, but you provided him with a number of false portfolio holding statements. You did not use the money to purchase shares. You dispersed the money without his authorisation to pay your personal expenses and other victims of your fraudulent scheme.
43	The details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference. 
44	Of particular note is on 9 September 2014 you forged Mr Harding’s mother’s signature on a document you sent to the Hickinbotham Group requesting Mr Harding’s superannuation payments be processed by EFT payments into an account falsely purporting to be the Stier Kapitaal Superannuation Fund bank account. There is no specific charge relating to this conduct and you will not be punished for this act. It is relied on by the prosecution to provide context and is relevant to my assessment of the objective gravity of your offending conduct in relation to this offence.  
Charge 7 – Obtain financial advantage by deception – Jennifer Edwards – $170,951.13
45	Ms Jennifer Edwards is married to your uncle, Peter Way. In early 2010, you approached Ms Edwards and Peter Way regarding establishing a family trust. On 8 February 2010, you arranged transfer documents which Ms Edwards signed. Ms Edwards transferred $115,404.36 from her superannuation account to an account under your control. The amount of this payment means this charge is a continuing criminal enterprise offence.
46	While some of those funds were used to purchase shares, they were later sold by you and none of the proceeds of sale were paid to Ms Edwards. 
47	Next you advised Ms Edwards and her husband to establish a self-managed superannuation fund. You completed all the required paperwork. Shares were to be purchased by the fund and all dividends reinvested. Ms Edwards transferred her superannuation balance of $30,911.14 from Qantas Superannuation Plan into the fund. Further superannuation contributions totalling $24,635.63 were paid by Qantas, on behalf of Ms Edwards, into the fund.
48	None of this money was used to purchases shares. On numerous occasions you provided false portfolio holding statements to Ms Edwards. There is no specific charge relating to this conduct and you will not be punished for these acts. It is relied on by the prosecution to provide context and is relevant to my assessment of the objective gravity of your offending conduct in relation to this offence.
49	You used the money for various living and lifestyle expenses, cash withdrawals, payments to your wife and mother, and transfers to other accounts as part of your fraudulent scheme. 
50	The details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.  
Charge 8 – Theft –  ANZ – $140,955.40
51	Damian and Anita Way owned a rental investment previously financed through ING Finance. In early 2011, you told them they could obtain a better interest rate and convinced them to refinance through the ANZ Bank.
52	Somehow you gained access to this ANZ account and over a 27-month period you made unauthorised transactions totalling $105,505.40. You also gained access to Damian and Anita Way’s equity manager account and over a two-year period you made unauthorised transactions totalling $35,450.
53	In total, you stole $140,955.40 from these two accounts and made payments to yourself, Stier Group, Stier Kapitaal, Jacinta Way, and a number of others including the Australian Taxation Office.
54	The details of the transactions involved in this theft are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.  
55	When Damian Way confronted you on 14 February 2011 over your access to the two accounts, you claimed you were going to convert the money into shares. You told Mr and Mrs Way that you were buying shares in Digital Investment Group Ltd (‘DIG’), Crusader and other companies. You agreed to pay interest on the account. While you made some small payments to cover the interest on the account, you continued to make unauthorised withdrawals from them.
Charge 9 – Obtain financial advantage by deception – Janette Riley – $503,267.40
56	Janette Riley is your aunt. You told her you were a financial advisor and convinced her to invest with you by rolling her superannuation into your business bank account. 
57	On 24 January 2012, Ms Riley transferred $100,000 to the Stier Group Pty Ltd National Australia Bank (‘NAB’) account controlled by you. This money was to purchase shares only, however she never received any share certificates or dividend statements. You transferred these funds to your personal NAB account and made unauthorised payments. The amount of this payment means this charge is a continuing criminal enterprise offence.
58	On 23 April 2012 and 10 January 2014, Ms Riley transferred $5,000 and $4,000 to the Stier Group Pty Ltd NAB account you controlled. You made unauthorised payments after receiving these transfers. 
59	On or about 15 November 2015, you provided Ms Riley with a false share portfolio holding statement on a Stier Group Pty Ltd letterhead showing her portfolio was valued at $179,967.30. 
60	On 25 February 2016, you convinced Ms Riley to roll her superannuation into a self-managed superannuation fund managed by you. Again, you used a false document on Stier Group Pty Ltd letterhead containing projections of her investment growth as part of your ruse. There are no specific charges relating to this conduct or that referred to above and you will not be punished for these acts. They are relied on by the prosecution to provide context and is relevant to my assessment of the objective gravity of your offending conduct in relation to this offence. 
61	As a result of your advice and relying on the contents of the document, Ms Riley transferred $394,267.40 from her CPSU Credit Union account to a Westpac Bank account of Stier Capital Pty Ltd you controlled. The amount of this payment also means this charge is a continuing criminal enterprise offence.
62	You made unauthorised payments totalling $387,765.70. These payments include payments for your personal living expenses, payments to other victims of your fraudulent scheme and paying off some of your outstanding debts.  
63	The details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.
Charge 10 – Obtain financial advantage by deception – Ben Harvey –  $145,257.77 
Charge 11 – Obtain financial advantage by deception – Kirstie Harvey –  $68,271.08
64	You met Ben and Kirstie Harvey in early 2012. You were Mr Harvey’s client, and you became friends. You told Mr Harvey you were a stockbroker/financial advisor, and you operated a company called the Stier Group Pty Ltd. You advised Mr and Mrs Harvey to set up a self-managed superannuation fund and to roll their existing superannuation into that fund. You told them you could manage the fund and ‘grow’ their superannuation. Mr and Mrs Harvey agreed to invest with you for the purpose of you buying shares on their behalf.
65	In a number of transactions over a more than three-year period between 20 December 2012 and 4 March 2016, you defrauded Mr Harvey of $145,257.77. The initial  transaction, involving the total balance of Mr Harvey’s superannuation with AustralianSuper, was for over $70,000. The amount of this payment means this charge is a continuing criminal enterprise offence.
66	As well as the initial roll-over of existing superannuation, Mr Harvey contributed a further roll-over of $42,434.15 from his Vic Super account into the fund you set up. You also organised for Mr Harvey’s salary sacrificed and employer superannuation guarantee contributions to be paid by his employer into the supernation fund. You involved your partner, Ms Natalia Ivanisova, in the scheme.
67	You did not use the funds in the account to purchase shares. As soon as funds were deposited you dispersed the money without authorisation to pay your personal expenses and other victims of your fraudulent scheme.
68	Likewise, on 25 February 2013, Ms Kirstie Harvey completed a request for the whole balance of her superannuation with MLC of $15,289.39 to be rolled over into the fund on 12 March 2013. Her total balance in Spectrum Super of $9,582.84 was also rolled over into the fund on that day. Ms Harvey later transferred amounts of $4,000.00, $5,000.00, $10,000.00 and $20,000.00 from her personal bank account into the fund for investment in shares. 
69	In a number of transactions over a more than 3-year period between 12 March 2013 and 5 July 2016, you defrauded Ms Harvey of $68,271.08.
70	No shares were ever purchased in Mr Harvey, Ms Harvey or the fund’s names. The money was used by you for personal living expenses and to pay into the accounts of other victims of your fraudulent scheme.
71	In June and July 2016, you sent two false documents relating to purported bank transfers by you of $20,000 each into Ms Harvey’s bank account. No transfers took place. You also created a number of false documents on Stier Group Pty Ltd letterhead purporting to be portfolio holding statements, and bank account transaction statements for Mr Harvey, Ms Harvey and their superannuation fund. These false documents had the desired effect of reassuring the Harveys that all was well with their superannuation investments.
72	In October 2016, you sent Ms Harvey a cheque in the sum of $16,460.50 purporting to be a share dividend payment. This cheque was dishonoured. 
73	There are no specific charges relating to the false documents or the dishonoured cheque, and you will not be punished for these acts. They are relied on by the prosecution to provide context and are relevant to my assessment of the objective gravity of your offending conduct in relation to these offences. 
74	It was only after the Harveys engaged a private investigator and accountant that they discovered no shares had been purchased by you in their or the fund’s names. They did receive some compensation by way of some share certificates, which was not full compensation. You co-operated in this process by having shares in your name transferred to the Harveys. You also made payments totalling $28,460.50 over the period 4 July 2014 to 21 October 2015 by way of purported dividends. 
75	The details of the transactions involved in the frauds on the Harveys are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.
Charge 12 – Obtain financial advantage by deception – Robert Seabrook – $260,000.00
76	Robert Seabrook was a dairy farmer who met you in 2013 through his local accountant. You offered Mr Seabrook 10% interest for 3 months if he invested with you. You told Mr Seabrook that you were involved in the money market and could make good money. 
77	In mid-2013, you gave Mr Seabrook documents comprising rate notices for two properties as security. You told Mr Seabrook you owned both properties, which was untrue. As a result of your representations, on 4 July 2013, Mr Seabrook transferred $250,000 from his account to an account nominated by you. You sent Mr Seabrook a receipt for this sum. The agreement was you would repay the principal plus 8% interest in three months. The amount of this payment means this charge is a continuing criminal enterprise offence.
78	On 11 July 2013, Mr Seabrook transferred a further $10,000 to your nominated bank account. On the next day, you sent Mr Seabrook a bank account transaction listing on a Stier Group letterhead stating you held $260,000 and a further $10,000 in bank accounts. 
79	On 29 October 2013, Mr Seabrook received a $25,250.46 interest payment from you. 
80	Mr Seabrook became concerned regarding the return of his $250,000. He contacted you on numerous occasions during the period 26 February to 19 June 2014 and requested the return of his money. While you made many promises to repay the money, including creating false documents to deceive him, these promises never eventuated. There are no specific charges relating to these false documents, and you will not be punished for these acts. They are relied on by the prosecution to provide context and are relevant to my assessment of the objective gravity of your offending conduct in relation to this offence.
81	You did eventually repay $10,000 on 6 August 2014 and Mr Seabrook received some shares in DIG on 1 November 2016.
82	The full details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.
Charge 13 – Obtain financial advantage by deception – Kylie Aspland – $8,176.15
83	You knew Kylie Aspland for several years through family connections. You purported to be a financial advisor and advised Ms Aspland to roll-over her existing superannuation from REST into a self-managed fund, managed by you. However, Ms Aspland believed it was in her best interest to, leave her superannuation funds with REST. 
84	On 14 October 2015, you forged Ms Aspland’s signature on a Stier Group Pty Ltd letterhead giving you authority over her account and sent it to REST. Consequently, Ms Aspland’s REST account was closed and the balance of $8,176.15 was transferred to your account. The funds were dissipated by you without Ms Aspland’s knowledge or authority. There is no specific charge relating to this forgery and you will not be punished for that act. It is relied on by the prosecution to provide context and is relevant to my assessment of the objective gravity of your offending conduct in relation to this offence.
85	The details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.
Charge 14 – Obtain financial advantage by deception – Phillip Foyster – $264,500.00
86	In 2015, Phillip Foyster met you through his wife who worked with your mother at a local business in Shepparton. You told Mr Foyster you were a financial and investment adviser and stockbroker. 
87	In May 2016, you convinced Mr Foyster to invest $25,000 in Crusader Resources Limited. On 25 May 2016, Mr Foyster transferred $25,000 to a bank account the details of which you provided.
88	Mr Foyster asked you for a share certificate as promised, but none was ever provided. You never purchased any shares from Crusader Resources Limited on behalf of Mr Foyster. You used the money for credit card payments, lifestyle and living expenses. 
89	Further amounts of $5,000 and $10,500 belonging to Mr Foyster met similar fates on 1 June 2016 and 5 July 2016 respectively.
90	Throughout June and July 2016, you encouraged Mr Foyster to invest his superannuation savings in an entity called ‘Millennium International Fund – SMSF’. Eventually, on 5 August 2016, Mr Foyster attended his bank and transferred $208,000 from his superannuation fund account into a Stier Capital bank account controlled by you. You then transferred these funds out of that account to pay other persons, including some of your ‘clients’, and you made personal expenditure payments and cash withdrawals, the latter totalling nearly $20,000. In a short space of time, $200,000 has been dissipated by you. Needless to say, no shares were purchased on Mr Foyster’s behalf. The amount of this payment means this charge is a continuing criminal enterprise offence.
91	In the following months, you contacted Mr Foyster importuning him to invest in various shares and options. Eventually, he agreed for you to buy shares on his behalf in Crusader Resources Ltd. To this end on 21 November 2016, he attended his bank and transferred $16,000 into the Stier Capital account. Needless to say, no shares were ever purchased, and the funds were dissipated by you within two days of the deposit.
92	The full details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.
Charge 15 – Obtain financial advantage by deception – Frank Arangio – $120,000.00 
93	Frank Arangio first met you at the Belvedere Hotel in Sydney in August 2016. You told him you were a financial advisor, and you owned a company called Stier Capital Pty Ltd, with offices in Melbourne and Hong Kong.
94	In mid-August 2016, you told Mr Arangio about a company called ‘Digital Investment Group’ and said you were a major shareholder in the company. You told Mr Arangio it was about to list on the Australian Securities Exchange (ASX), and he could double his investment by you buying DIG shares on his behalf.  
95	In five transactions over an approximate 3-month period, between 1 September 2016 and 9 December 2016, you defrauded Mr Arangio of $120,000. Mr Arangio’s funds were not used by you to purchase DIG shares on his behalf. Rather, you used the funds for your personal purposes, including paying your living expenses and legal fees, and payments to other victims of your fraudulent scheme. There is evidence of you leading an extravagant lifestyle in some of these payments. DIG never listed on the ASX. 
96	During December 2016, you perpetrated a number of subterfuges on Mr Arangio when he started to become suspicious. Until 2 May 2017, Mr Arangio continued his efforts to get you to account to him for the proceeds of the sale of the DIG shares he believed you had sold on his behalf. It was on this day Mr Arangio became aware Stier Capital Pty Ltd was in liquidation. During this period, you delayed and avoided him using a number of ruses.
97	The details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.
Charge 16 – Obtain financial advantage by deception – Michael Jeffrey – $120,000.00
98	Michael Jeffrey first met you at the Peppermill Hotel in Kialla in about March 2017. You told Mr Jeffrey that you were involved in the share and superannuation industry and you owned a business called Stier Capital based in Melbourne and Hong Kong. 
99	You advised Mr Jeffrey and his wife that you had an investment opportunity with DIG, that was going to list on the ASX in May 2017. You falsely said you would underwrite Mr Jeffrey’s investment by guaranteeing Mr Jeffrey’s initial outlay.
100	In early March 2017, you made a number of false representations in relation to DIG in emails you sent to Mr Jeffrey. These included a fake email from a third-party which confirmed the DIG listing was ASX compliant and would list in May 2017.
101	Based on your advice and representations, Mr Jeffrey thought DIG would be a good investment and transferred a total of $120,000 to you in four transactions between 15 March 2017 and 12 May 2017. One transaction, on 30 March 2017, was for $50,000. The amount of this payment means this charge is a continuing criminal enterprise offence.
102	You did not use the money to purchase DIG shares on Mr Jeffrey’s behalf. Instead, you transferred the funds to various family members and other persons caught up in your fraudulent scheme. You also spent money on your personal living expenses.
103	On 15 May 2017, you advised Mr Jeffrey DIG had listed at 28 cents per share. Mr Jeffrey asked you to sell all his shares. You sent him a false document showing his internal trading account. There is no specific charge relating to this false document, and you will not be punished for this act. It is relied on by the prosecution to provide context and is relevant to my assessment of the objective gravity of your offending conduct in relation to this offence.
104	On 2 June 2017, you paid $25,594.77 to Mr Jeffrey which you had taken from Robert Miller’s superannuation deposit you had received the day before. 
105	Later inquiries revealed you were in fact an investor in DIG through your company, Stier Capital. Following your arrest, many of your victims came forward in relation to their purported investments in DIG, and Stier Capital’s share holdings were transferred to them, including Mr Jeffrey, who received his share certificate from DIG on 28 June 2017.
106	The full details of the transactions involved in this fraud are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.
Charge 17 – Attempt to obtain financial advantage by deception – Rebecca Miller – $51,292.42 
Charge 18 – Obtain financial advantage by deception – Robert Miller – $113,686.28
107	Rebecca Miller met you whilst working at the GV Hotel in Shepparton, where you regularly attended. You told Mrs Miller you were a financial advisor based in Hong Kong and you also had portfolios in Australia. 
108	In about April 2017, Mrs Miller approached you and asked for advice in relation to her husband’s superannuation account in order to access some funds. You asked for the account’s paperwork in order to offer advice. 
109	You advised Mrs Miller to roll both her and her husband’s superannuation funds together to reduce the fees and increase the rate of return. You and she exchanged a number of text messages relating to your advice. Mr and Mrs Miller attended your Shepparton office three times in April and May 2017. Each time they signed a number of documents at your request.
110	On 26 April 2017, you contacted Mr Miller’s superannuation fund pretending you were him. You provided Mr Miller’s name, date of birth and other personal details and obtained details of his account balance.
111	In late April and early May 2017, Mr and Mrs Miller signed a number of documents at your request with a view to roll-over the whole of their combined superannuation into a fictitious entity, the ‘R and R Miller Superannuation Trust’. You then opened a bank account, which you controlled, to receive the Millers’ funds, telling them this was to be their superannuation fund’s trust account.
112	Following the provision by you of false documents (led as context evidence) and based on your false representations, on 1 June 2017 Mr Miller’s superannuation fund transferred $85,513.18 into the bank account controlled by you. The amount of this payment means this charge is a continuing criminal enterprise offence. You spent these funds on your personal living expenses and payments to other victims of your fraudulent scheme, including Mr Jeffrey.
113	On 31 May 2017, a further sum of $28,173.10 was ‘rolled-over’ into the bank account controlled by you, being the whole of Mr Miller’ superannuation fund balance in an MLC Master Key account. Once again, the whole of this amount was dissipated by you.  
114	On 2 June 2017, Mrs Miller’s superannuation fund wrote a cheque of $51,291.42 to the superannuation fund set up by you for Mr and Mrs Miller. 
115	On 3 June 2017, Mrs Miller contacted you regarding receipt of her husband’s superannuation funds. You advised her you would send the receipt. When it did not arrive, Mrs Miller followed you up several times. You claimed your server was down. The next day, you sent Mrs Miller a photo message of a receipt depicting the money transfer. 
116	When Mrs Miller failed to receive sufficient proof of her husband’s superannuation being paid into the account you had set up for them, and upon you failing to return messages, she became suspicious. She contacted her superannuation fund which cancelled the cheque, which had not yet been banked by you, and the funds were recredited to her account. The amount of this payment means this charge is a continuing criminal enterprise offence.
117	The full details of the transactions involved in the fraud you perpetrated on Mr Miller (Charge 18) and the attempted fraud on Mrs Miller (Charge 17) are set out in the SPO and do not need to be repeated here. I incorporate those details by reference.
118	You were interviewed at the Fulham Correctional Facility on 23 October 2019, where you were serving a sentence for similar offending imposed by his Honour Judge Stuart of this Court. You answered a number of questions put to you by police. In general, while you co-operated to a limited extent, in my opinion many of your answers were untrue or, at least, evasive.
119	Your counsel made the following submissions regarding the ‘circumstances of the offending’. From early to mid-2000s, you became known within you family circle and amongst others as a person who knew his way around the stock market. You fielded many requests for information concerning how investments worked and what was possible for those with money to invest. You were genuinely in the business of trading and speculation for profit. Some of your advice did result in financial gain to family members and others. 
Victim Impact
120	Thirteen victim impact statements (‘VIS’) were tendered. They were made by Mr Sidney Aspland, who has been your mother’s partner for over 20 years; your uncle, Mr Peter Way; your aunt, Ms Jennifer Edwards; Mrs Rebecca Miller; her husband, Mr Robert Miller; Ms Kylie Aspland; your uncle and godfather, Mr Damian Way; your aunt, Mrs Kristine Harding; and her partner, Mr William Harding; your aunt and godmother, Ms Jenette Riley; Mr Benjamin Harvey; his wife, Mrs Kirstie Harvey; and Mr Robert Seabrook. A number of your victims attended the hearing to read their VIS to me. The others were, mostly, read by the prosecutor.
121	Your counsel did not object to these VIS being tendered and he did not object to any of their contents. The VIS speak eloquently of the harm your conduct has inflicted on the victims, and your callous disregard for their wellbeing.
Mental, Emotional and Physical Harm Suffered
122	Your offending had a direct impact on the mental wellbeing of many of the victims.
123	Mr Peter Way says because of your offending, he has no enjoyment of life, no sense of wellbeing, no sense of security and no future anymore. He suffers depression, shame and lack of confidence caused by your offending. Ms Jennifer Edwards suffers anxiety and panic attacks as a result of your offending. She felt closed off emotionally and cannot see a future beyond how to keep working to pay off the debt caused by your offending.
124	Ms Kylie Aspland says she does not feel safe and she is constantly in fear she will lose her home or have huge debt.
125	Mr Damian Way says he was totally horrified, angry and disappointed regarding your offending. As a result of your offending, he lost a lot of sleep and developed severe tinnitus.
126	According to Mr Robert Miller, he had a suspected mild heart attack because of the stress caused by your offending. As a consequence of your offending, he lost the money in his investment account and his entire superannuation, which he worked hard to amass for over 30 years. He is now experiencing heart problems and is seeing a cardiologist.
127	Kristine Harding has been diagnosed with chronic fatigue syndrome which she believes is caused by your offending. She suffers anxiety and sleep problems. She had counselling and is now unable to work. Her partner, William Harding, suffers severe depression, anxiety and stress symptoms linked to financial hardship and difficulties associated with your offending. Mr Harding has been diagnosed with an adjustment disorder with trauma-related symptoms, major depression and comorbid anxiety. He is being treated with antidepressants. He has been seeing a psychologist for two years to try to move on from the impact of your offending.
128	Ms Janette Riley and Mr and Mrs Harvey all feel you betrayed them. Mr and Mrs Harvey live every single day with constant feelings of stress, anger and frustration. They have many sleepless nights and suffer difficulties in their marriage and relationship caused by your offending. You took away the money they saved from years and years of hard work.
Financial Impact 
129	Peter Way says, because of your offending, he could not keep the promise to your grandfather to look after your grandmother. He has not been able to assist your grandmother financially because he lost all his superannuation and is now in debt.
130	Damian Way says you have left him and his partner in a worse position than ever before. Not only has he lost his superannuation, but he had to pay barristers and solicitors in an effort to recover the funds.
131	Mr Robert Seabrook says he spent a lot of time and expense trying to recover the funds.
132	At 64 years of age, because of your offending, Mr Sidney Aspland has lost all his investment money and superannuation which he does not have the time or ability to rebuild. He said it is devastating to lose his house and his future retirement has no financial security.
133	Kristine Harding says she is now living below the poverty line. Her family buy their clothes from an op shop and they do not have holidays. They will never be able to afford a house.
Family Impact 
134	Mr Sidney Aspland says your offending put a huge strain on his relationship with your mother. Because of your offending, your mother and he were evicted from their house. After the second eviction, the house was sold.
135	According to Ms Kylie Aspland’s victim impact statement, your offending caused a huge strain on her marriage and the relationship with her father-in-law.
136	Mr Peter Way said his relationships with his wife and friends have changed forever because of your offending. His shared dreams with his wife were destroyed by your offending. Mr Way said you took away the foundation he built for his family’s future. The amount of suffering you inflicted on him and his family will never end.
137	Because of your offending, your uncle Mr Peter Way and his wife can no longer provide their child with the education required to foster her intelligent mind.
138	You aunt, Janette Riley suffers from depression because she feels that your offending has deprived her of a future. She became withdrawn and she cut off ties with her friends who have retired because she cannot afford to take part in activities with them. She is unable to help her children financially. She lives with your grandmother in fear of eviction. She said in her VIS, she has no provision for her retirement and is reliant on welfare.
139	As a result of your offending, Mr and Mrs Miller lost their savings and could never enjoy the retirement they had worked for.
Social Impact
140	It is a common theme among your victims they have developed trust issues caused by your offending. Ms Kylie Aspland said the offending has caused her to not trust people in her family. Mr Sidney Aspland said because of you, he now does not have trust in anyone or anything he is told or reads. Mr Robert Seabrook also says your offending has left him with a lot of distrust which makes life much harder.
141	I take into account only the relevant matters contained in the VIS regarding the impact of your crimes on your victims in sentencing you. Clearly, your offending has had a profoundly traumatic effect upon them all.
Offence Seriousness
142	Taken overall, your offending conduct is grave. Mr Moglia of counsel, who appeared on your behalf, accepted your offending was serious. Over a period of some ten years and nine months you sought to defraud your family members, business clients and others of a total of $2,729,534. The 15 Schedules to the Indictment contain a total of 74 separate and discrete fraudulent transactions you committed. Additionally, there are three stand-alone charges.
143	While it is true some of your victims were not unsophisticated in matters of business and investment, they were nevertheless easy prey to your appallingly dishonest conduct. Some of your other victims were quite vulnerable. There have all suffered greatly as a result of your depravations, some losing their life savings. The serious breach of trust you owed to your family members and clients is a significant aggravating feature of these crimes.
144	Your crimes were sophisticated, well planned and executed and involved sustained fraudulent conduct on your part. While there was an element of ‘robbing Peter to pay Paul’, your motive for committing these crimes was also to support your lifestyle.
145	Clearly, denunciation, general deterrence and just punishment must loom large in sentencing you. In light of your serious and relevant prior convictions, detailed later, specific deterrence and protection of the community must be given significant weight.
146	It was put on your behalf that you did not set out in the mid-2000s with the sole intention of defrauding others of their savings. The nature of your conduct was said to be ‘speculative and often “off-market”’ and this speculation resulted in losses, as well as gains, with the result the funds you managed fell into debt and you resorted to ‘taking from Peter to pay Paul’. The submission proceeds: ‘In doing so, [you] failed to adequately (or at all) disclose details about the state of [your] investment performance and the risks involved’. 
147	In my opinion, this characterisation of your offending conduct grossly understates its seriousness. The level of dishonesty you showed towards your close family members and others is nothing short of breathtaking. The funds you defrauded were very quickly dissipated and there is no evidence, on the agreed facts, that, in most cases, you ever intended to ever reimburse or otherwise compensate your victims. The one exception might be the DIG share fraud, where at least you did own and/or control a fairly substantial number of shares in DIG, which ultimately were transferred to the victims of that scheme. 
148	Moreover, it is clear that a large component of the funds you defrauded was spent by you on living expenses. While, perhaps, you did not pursue a very grandiose lifestyle, you did live comfortably enough using other people’s life savings. 
149	Overall, I consider your moral culpability to be very high. Your counsel accepts ‘you failed in your duty to act honestly and transparently’.
150	An aggravating feature is Charges 16, 17 and 18 were committed while you were released on bail for matters his Honour Judge Stuart dealt with. Moreover, your offending continued after you had been sentenced in August 2008 to nine months’ imprisonment, which was wholly suspended for an operational period of two years, for similar offending and you continued the same fraudulent scheme after being charged and released on summons by police on 11 February 2016 in relation to the matters dealt with by his Honour Judge Stuart.
Personal Circumstances
151	You were born on 24 April 1982 when your mother was only 16. You never knew your father. You grew up in the care of your mother and your maternal grandparents. You completed Year 12 in 2000 in Shepparton and achieved good results. 
152	In 2001, having gained entry to a financial accounting degree at Swinburne University of Technology, you embarked on a career in investing. In 2002, you moved to a Diploma of Business at Melbourne Institute of Business. In 2003, you moved into second year of a Business Degree at Deakin University. 
153	In 2003, whilst still a student, you started working at Westpac Banking Corporation (‘Westpac’) as an assistant to a relationship manager. You remained there for two years during which time you focused more on the investment work than study. You did not successfully complete your degree and you remained working at Westpac until 2005.
154	In pursuit of your interest in share trading and investments, you moved from Westpac to Goldman Sachs as a broker's assistant in 2005. You then moved to ABN Amro Morgan’s office in Berwick where you were employed as a junior broker from 22 March 2006. Following your dismissal from that company, in 2007 you became employed by Fortrend Securities, where you traded in international stock for local markets.   
155	In August 2007, your grandfather was diagnosed with cancer and died in October 2007. You were close to your grandfather. You changed your name from the anglicised ‘Way’ back to your grandfather’s original Dutch name of ‘Waij’. 
156	From 2008 to 2014, you pursued a broking career in Australia and then in Hong Kong, where you ultimately moved to live, whilst regularly traveling back to Australia. You were retained as a consultant and you were involved in raising multi-million-dollar funds for a number of brokers, with a particular focus on the food and beverage industry. 
157	You met your current partner, Ms Natalia Ivanisova, in Hong Kong in 2013 and you were married two years later in Australia. In 2014, you returned to live full time in Australia. Your wife contacts you whilst you are in custody and she remains supportive of you, as is your mother. 
Prior Criminal History
158	You have a number of relevant prior convictions and findings of guilt. In October 2005 you were before the Melbourne Magistrate’s Court on a charge of handle stolen goods and without conviction you received an aggregate fine of $650. Additionally, a charge of theft (shopsteal) was, without conviction, adjourned for twelve months with a payment of $500 to the court fund.
159	More significantly, in August 2008 you were before the Shepparton Magistrates’ Court on five charges of obtain property by deception, six charges of make false document to the prejudice of another and six charges of use false document. You were sentenced to nine months’ imprisonment, which sentence was wholly suspended for an operational period of two years.
160	According to the summary of those offences which appears in the judgment of His Honour Judge Stuart of this Court in relation to the matters for which you were before him on 16 June 2017, which I will presently come to, the offences occurred when you were employed as ‘an administrative assistant/trainee advisor’ at ABN Amro Morgan’s office in Berwick. You ‘inappropriately dealt with clients’ funds to benefit [your] own personal finances without relevant permission from the business or clients’. In the course of committing the offences you ‘forged client’s signatures’ on transfer documents and ‘doctored internal business documents fraudulently’. 
161	Your offending conduct spanned five months and commenced within 49 days of you commencing employment with the company. You misappropriated funds totalling $40,375 from four of the company’s clients. You were dismissed from that employment on 14 November 2006.
162	Judge Stuart summarised that offending as follows:
[I]n May and October 2006, whilst an employee and in a position of trust, you engaged in an elaborate fraud against clients of your employer. Your dishonest activities extended over a period of time of some [five] months. Your criminal conduct then involved manipulating the financial arrangements of the company that you were employed by and fraudulent use and creation of documents in order to obtain a not insignificant sum of money. You were indeed fortunate to receive the sentence of nine months' imprisonment and fortunate again that that nine months' imprisonment was wholly suspended.
163	You were next before a court in February 2017, when you appeared in the Bendigo Magistrates’ Court charged with unlawful assault and wilfully damage property. Without conviction, you were given an aggregate fine of $600. Whilst these matters are not particularly relevant to the present charges, they do tend to demonstrate a general attitude of disregard for the law on your part.
164	However, the most significant matters are a number of subsequent offences involving four charges of theft, committed by you between 5 December 2012 and 12 August 2014, and four charges of obtaining property by deception, committed by you between 8 December 2015 and 6 January 2016. These were dealt with by his Honour Judge Stuart of this Court sitting at Bendigo on 16 June 2017. It is noteworthy that the last of the offences committed by you in the present proceedings was Charge 17 committed between 1 June  and 7 June 2017, only eight days before you appeared before his Honour Judge Stuart. The offending dealt with by his Honour totalled $772,191.21 and was committed over a 37-month period from 5 December 2012 to 6 January 2016.
165	The nub of the four theft charges dealt with by his Honour Judge Stuart is you overdrew a number of NAB accounts, you either held in your own name or controlled which were in other person’s or company names, in an unauthorised manner by exploiting a vulnerability in the bank’s computer system. It is unnecessary for me to explain in detail the process by which you manipulated the computer system. Suffice to say, it was a highly sophisticated fraud on the bank by which you overdrew a number of accounts and then abandoned them, making no attempt to repay the outstanding balances. The debit balances were ultimately written-off as bad debts by NAB. In this manner you stole $347,191.21 over a period of 20 months.
166	You were interviewed by police in relation to that offending on 27 July 2015 and made a number of admissions. A little over four months later, you commenced committing the charges the subject of Charges 5–8 on the Indictment which was before his Honour Judge Stuart. These offences were committed over a 30-day period and resulted in frauds on superannuation funds totalling $425,000. They were all continuing criminal enterprise offences, involving amounts ranging from $75,000 to $150,000.
167	Your modus operandi was virtually identical to that involved in most of the charges before me and there is an overlap in the time frames of the two groups of offences, at least so far as Charges 1, 4, 9, 10 and 11 on the Indictment before me are concerned. This has considerable significance in relation to the application of the totality principle in sentencing you for the present offences.
168	His Honour Judge Stuart summarised that offending conduct as follows:
[27] … You, at the time, were a director of a company, Stier Group Pty Ltd, which had offices in Melbourne's Docklands and in Hong Kong. In November 2015 you requested four clients, namely Dean Bowles, Shane O'Brien, Bradley Walker and Geoffrey Goldman provide identification documents. These documents were later certified without the persons being present. Each of these persons were clients of yours and were later visited by you in relation to other share transactions unrelated to your offending.
[28] You provided them with a sheath of documents and you hid within such documents, for their signature, superannuation rollover requests which they unwittingly signed. These rollovers were made with a third party authority. The rollovers were then made to self-managed, super funds that you had access to either as trustee or fund manager.
[29]  In relation to the rollover of Dean Bowles, Charge 5, you contacted the fund and represented yourself as Mr Bowles. Once you received the respective cheques from the superannuation fund you contacted the Australian Tax Office and removed his name from the list of self-managed super funds, all in order to hide your criminality and to achieve the result you did.
[30] In that fashion, as with Mr Bowles, you received the following amounts from the superannuation fund: $75,000 from Mr Dean Bowles' account with Australian Super Pty Ltd, Charge 5.  $150,000 from Shane O'Brien's account with that same company, Charge 6.  $100,000 from Bradley Walker's account with CBUS Trustee United Super Pty Ltd, Charge 7 and $100,000 from Geoff Goldman's account with the Australian Super Pty Ltd, Charge 8. The total sums that you obtained through these frauds was $425,000. After the clients became aware that their superannuation funds had been accessed by you, you used various nefarious devices to excuse what you had done, indicating to them falsely that there had been an administrative error or utilising some other brazen excuse.
169	In the result, his Honour Judge Stuart sentenced you on Charges 1 to 4 to an aggregate sentence of imprisonment for three years and six months and on Charges 5 to 8 to an aggregate sentence of imprisonment for five years. His Honour cumulated two years of the sentence on Charges 1 to 4 on the sentence on Charges 5 to 8, making a total effective sentence of seven years’ imprisonment and his Honour fixed a non-parole period of five years and six months. Ten days’ pre-sentence detention was declared, and on Charges 5 to 8 you were sentenced as a continuing criminal enterprise offender. By my calculations, the non-parole period fixed by his Honour Judge Stuart expires on 6 December 2022, in a little under 15 months’ time.
170	His Honour Judge Stuart, correctly in my view, observed that in committing those offences you were ‘undeterred by the previous sentence of imprisonment [in August 2008] and undeterred by having been spoken to by police in relation to the NAB theft in July 2015.’
171	The same can be said in the present case. Clearly, specific deterrence and protection of the community must be given very significant weight in sentencing you for the present offences. Moreover, I can only assess your prospects of rehabilitation as being highly problematic. I am reasonably confident that if you perceived the need to defraud others in the future, you would reoffend in a similar manner to your past criminal behaviour.
Mitigating Circumstances
172	You pleaded guilty to these offences at a relatively early stage during the committal mention process in the Magistrates’ Court following lengthy negotiations between you and the prosecution. I accept yours are early pleas and have significant utilitarian benefit, particularly in the COVID-19 environment. Any trial or trials would have been lengthy and complex, and you have spared the victims of your crimes the further trauma of having to give evidence and be cross-examined. The prosecutor fairly accepted this was so.
173	The plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice. 
174	While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct, beyond what is evident from the pleas themselves.
175	I do not accept your counsel’s submission you are genuinely remorseful for your actions and I find you lack insight into your offending behaviour, its gravity and its effect on your victims.
176	It was put on your behalf that you do not oppose the restitution orders sought in favour of two victims from money currently restrained in your accounts and that you intend to pay any compensation orders I make ‘when [you] are able’. Only time will tell whether this occurs or not.
177	While you have been serving the non-parole period fixed by his Honour Judge Stuart, you have spent nearly six months in custody in relation to these offences. I accept this time has been quite onerous because of the COVID-19 restrictions. I take this burden of custody into account in your favour.
178	The effect of delay is a mitigating circumstance in your case. It is now nearly two years since you were interviewed in relation to the present offences on 23 October 2019. As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.
179	So far as your rehabilitation during the period of delay is concerned, I was told nothing of what you have been doing whilst serving his Honour Judge Stuart’s sentence.
180	So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a further sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you stress and anxiety. I take the punitive effects of delay into account in your favour.
181	The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) 	An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).
(b)	The inherent utilitarian value of a guilty plea is greater during the pandemic.
(c)	The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.
(d)	The pandemic can impact on visits, work and educational opportunities, depending on the number of cases of COVID-19 in the community at any given time.
Application of Sentencing Principles
182	I have had regard to recent current sentencing practice for the offences before me as informed by the decisions of the High Court in R v Pham, R v Kilic and DPP (Vic) v Dalgliesh (a pseudonym). While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case. I have been particularly assisted by the recent decision of the Victorian Court of Appeal in Apted v The Queen.
183	It is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offences before me and the myriad of personal circumstances pertaining to individual offenders.
184	The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the impact on any victim and your personal circumstances.
185	I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
186	General deterrence and denunciation of your conduct must be of primary importance in sentencing you for these offences. Specific deterrence and protection of the community also must be given significant weight. I assess your prospects of rehabilitation as being highly problematic.
187	You have been in custody since his Honour Judge Stuart remanded you in custody on 6 June 2017. Your counsel submitted there should be moderation of the sentences I impose having regard to the totality principle. Moreover, I accept that the offences dealt with by his Honour Judge Stuart and the present matters involve similar offending over a related time period. Because all these matters have been dealt with separately, you have been somewhat disadvantaged with regards to orders for concurrency.
188	In Pasinis v The Queen Neave JA and Kyrou AJA, as his Honour then was, opined:
The totality principle requires that where an offender is being sentenced to multiple terms of imprisonment, or is otherwise to serve multiple sentences, the sentencing judge should ensure that the total sentence remains ‘just and appropriate’ for the whole of the offending. The principle applies to the fixing of both the head sentence and the non-parole period.
189	I consider sentences of imprisonment to be immediately served with a non-parole period are the only sentences on all charges appropriate to achieve the purposes for which the sentences are imposed. Your counsel accepted this is so.
190	There is a need for me to fix a new single non-parole period in respect of all the sentences you are to serve or complete. It is critical that I make it clear when that period commences and what my intention is.
191	There are two ways this can be done. I can either backdate the new single non-parole period I declare today to the date of the sentences imposed on you by his Honour Judge Stuart on 16 June 2017, or I can direct that it commences from today. I am cognisant of the views expressed by Brooking JA in R v Rich (No 2) that ‘there should be uniformity of practice’ and that ‘all new single non-parole periods should be made to commence on the date on which they are fixed’.
192	I am aware that a number of judges of this Court have adopted the latter approach in the past and this has caused problems in the manner in which the sentence calculation authorities in Corrections Victoria interpret the order. What is critical is that there is certainty as to when the new single non-parole period I am fixing today commences and I will provide that certainty in these reasons.
Mr Waij
On Charge 1 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 30 months.
On Charge 2 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 30 months.
On Charge 3 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 9 months.
On Charge 4 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 1 year.
On Charge 5 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 6 months.
On Charge 6 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 2 years.
On Charge 7 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 2 years.
On Charge 8 (theft) you are convicted and sentenced to imprisonment for 21 months.
On Charge 9 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 4 years.
On Charge 10 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 2 years.
On Charge 11 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 15 months.
On Charge 12 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 30 months.
On Charge 13 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 3 months.
On Charge 14 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 30 months.
On Charge 15 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 21 months.
On Charge 16 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 2 years.
On Charge 17 (attempted obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 1 year.
On Charge 18 (obtain financial advantage by deception) you are convicted and sentenced to imprisonment for 2 years.
The sentence of 4 years’ imprisonment on Charge 9 will be the base sentence.
I direct that 6 months of the sentences imposed on Charges 1, 2, 12 and 14 and 3 months of the sentences imposed on Charges 6, 7, 8, 10, 15, 16 and 18 and 2 months of the sentence imposed on Charge 11 and 1 month of the sentences imposed on Charges 3, 4, 5, 13 and 17 are to be served cumulatively on the sentence imposed on Charge 9 and on each other. This makes a total effective sentence of 8 years’ and 4 months’ imprisonment.
I order that 4 years of that sentence is to be served cumulatively on the sentence you are presently serving.
I fix a new single non-parole period of 4 years, 2 months and 21 days commencing from today. My intention in fixing that new single non-parole period is to add 3 years to the non-parole period fixed by his Honour Judge Stuart. Your earliest release date under his Honour Judge Stuart’s sentence is 6 December 2022. Your earliest release date under my sentence should be 6 December 2025. If that is not the effect of my orders, I reserve liberty to apply to the parties to mention this matter for correction of my sentencing orders.
There is no period of pre-sentence detention to declare.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your pleas of guilty would have been a total effective sentence of 10 years’ and 6 months’ imprisonment. I would have made orders adding 5 years to the non-parole period fixed by his Honour Judge Stuart.
I declare that on Charges 1, 2, 6, 7, 9, 10, 12, 14, 16, 17 and 18 I have sentenced you as a continuing criminal enterprise offender.
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