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District Court 18 January 2013

R v David Michael WILLS

[2013] NSWDC 3

Fraud & dishonesty

Citation: R v David Michael WILLS [2013] NSWDC 3
Court: District Court of New South Wales
Date: 18 January 2013
Judge(s): Judge Haesler SC

Background

The offender was a senior executive at Woolworths Ltd, heading its Management Services Division in the late 1990s. In that role he held significant influence over technology procurement decisions, including the selection and implementation of a point-of-sale system developed in partnership with an Israeli company, Az-Ben Electronics Ltd.

After a trial lasting more than three months, a jury convicted the offender on 14 counts of corruptly receiving benefits as an agent of Woolworths, one count of money laundering, and one count of conspiracy to engage in money laundering transactions. The corrupt payments totalled approximately $1.395 million, received between June 1997 and December 1998. The jury found that these payments were corrupt rewards from Az-Ben's principal, Mr Benzion Weissman, for favourable decisions the offender made in connection with ongoing contracts benefiting Weissman and associated companies.

The money laundering count related to the use of overseas accounts to conceal the source of funds used to purchase a $250,000 Mercedes-Benz. The conspiracy count involved companies incorporated in the British Virgin Islands and bank accounts in Jersey used to hide the origin and receipt of the corrupt payments. Notably, the offender was acquitted of the principal conspiracy count, which had alleged a broader scheme to cheat and defraud Woolworths.

  • What factual findings were available to the sentencing court consistently with the jury's verdicts, including the acquittals?
  • How should the individual sentences for 14 corrupt benefits counts, one money laundering count, and one conspiracy count be structured under the aggregate sentencing regime?
  • What weight should be given to the offender's significant ill health and the substantial delay between the offending (1997 to 1998) and sentencing (2013)?
  • What was the appropriate penalty for the common law conspiracy, given that its penalty is otherwise "at large"?
  • How did the offender's senior position and the scale of the breach of trust bear on the assessment of objective seriousness?

Decision

Judge Haesler SC found that, consistently with the jury's verdicts, the corrupt payments were received by the offender as rewards for favourable decisions made after the initial Az-Ben and Woolworths contract was entered into. The court rejected the offender's assertion that the funds represented investment in a proposed joint venture to market the software internationally, noting that the rights to do so had been sold to a third party before many payments were made, and that Weissman never sought repayment or accounting of the money.

The court placed considerable weight on the objective seriousness of the offending. The offender occupied a position of significant trust within a major corporation, was well-remunerated, and used that position to accept corrupt commissions routed through an elaborate network of offshore companies and accounts. The scale of the payments and the sophistication of the concealment arrangements were significant aggravating features.

In mitigation, the court accepted that the offender suffered from serious ill health, including conditions documented in medical reports that were directed to accompany his warrant. The court also acknowledged the substantial delay of approximately 15 years between the offending and the sentencing hearing, treating this as a mitigating factor. The offender did not give evidence at sentencing, and the court noted that unsworn assertions traversing the jury's verdicts were given no weight.

On the common law conspiracy charge, the court confirmed the established principle that, outside exceptional cases, the penalty for conspiracy should not exceed that for the equivalent substantive offence. This was not treated as an exceptional case.

Orders Made

  • Aggregate sentence of 7 years imposed, comprising:
  • Aggregate non-parole period of 4 years, commencing 18 January 2013 and expiring 17 January 2017
  • Aggregate parole period of 3 years, commencing 18 January 2017 and expiring 17 January 2020
  • Count 22 (receipt of a $31,000 corrupt benefit) disposed of pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999: conviction recorded, no other penalty imposed
  • Medical reports (Exhibits 1 and 2) directed to accompany the warrant
  • Individual indicative sentences ranged from 6 months (smaller individual payments) to 5 years (the largest single corrupt benefit count), with 3 years indicated for each of the money laundering and conspiracy counts

Key Takeaways

  • The District Court confirmed that, when sentencing after a jury trial, adverse factual findings must be established to the criminal standard (beyond reasonable doubt), and unsworn statements by the offender that contradict jury verdicts are given no weight, consistent with Olbrich and Weininger.

  • A conviction for receiving a corrupt benefit as a corporate agent is treated as a serious breach of trust where the offender held senior executive responsibility; the sophistication of offshore concealment arrangements and the scale of payments are relevant aggravating factors.

  • Significant delay between offending and sentencing (here, approximately 15 years) operated as a mitigating consideration in the overall sentencing exercise, alongside evidence of serious ill health.

  • Where a common law conspiracy charge carries a penalty "at large," the sentencing court applies the principle, confirmed in cases such as R v Blanco, that the penalty should not ordinarily exceed that for the closest equivalent substantive offence unless the case is exceptional.

  • Under the aggregate sentencing regime, individual indicative sentences need not be added together; the court fixes a single aggregate term that reflects the overall criminality while avoiding a disproportionate result.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 249B(1) (corrupt benefits)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 73(2) (money laundering)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases
- The Queen v Olbrich (1999) 199 CLR 270
- Weininger v The Queen (2003) 212 CLR 629
- Pearce v The Queen (1998) 194 CLR 610
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R
- R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303
- Portolesi v R [2012] NSWCCA 157
- Pantano v R (1990) 49 A Crim R 328
- R v Sellen (1991) 57 A Crim R 313
- R v MJR (2002) 54 NSWLR 368
- R v MA (2004) 145 A Crim R 434
- R v JCW (2000) 112 A Crim R 466
- R H (1980) 3 A Crim R 53