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Supreme Court 29 March 2018

R v Issakidis

[2018] NSWSC 378

Fraud & dishonesty
CRIMINAL LAW SENTENCING SENTENCING RELEVANT FACTORS ON SENTENCE ­ OFFENDERS PARITY

Citation: R v Issakidis [2018] NSWSC 378
Court: Supreme Court of New South Wales
Date: 29 March 2018
Judge: Harrison J

Background

The offender, Michael Issakidis, was convicted by a jury in June 2017 of two conspiracy offences under the Criminal Code 1995 (Cth). The first count involved conspiring with his co-offender, Anthony James Dickson, to dishonestly cause a loss or risk of loss to the Commonwealth. The second count involved conspiring to deal with property valued at $1 million or more, believing it to be the proceeds of crime.

The conspiracy underlying the first count centred on the lodgement of false depreciation claims in company tax returns over several years, resulting in a loss to the Commonwealth exceeding $100 million and an intended or risked loss of approximately $135 million. The second count concerned an associated money laundering scheme using offshore accounts, through which the conspirators dealt with funds exceeding $63 million known to be the proceeds of crime.

Dickson, the co-offender, had already been re-sentenced by the Court of Criminal Appeal to a total effective term of 14 years imprisonment with a non-parole period of 9 years and 3 months. The sentencing of Issakidis therefore required Harrison J to consider the parity principle alongside the full range of statutory sentencing factors under the Crimes Act 1914 (Cth).

  • What sentences were appropriate for two Commonwealth conspiracy offences involving fraud exceeding $100 million and large-scale money laundering?
  • How should the parity principle apply, given that the co-offender had already been sentenced and the conspiracy existed only between the two men?
  • What weight should be given to the offender's age, poor physical and mental health, lack of contrition, and the significant delay between the offending and sentencing?
  • How should the court make factual findings at sentence following a jury trial, and what standard of proof applied?

Decision

Harrison J accepted the detailed factual findings already made by Beech-Jones J at Dickson's sentencing, noting near-complete overlap between the facts relevant to both offenders. The offending was characterised as falling into the worst category for each offence type: it was sophisticated, planned over many years, involved intricate knowledge of the tax system, and was motivated by greed.

On parity, the court noted that Dickson had been identified by the Court of Criminal Appeal as the predominant player and motivating force, even though Issakidis was not subordinate to him. That distinction justified a somewhat lesser aggregate sentence for Issakidis, but the objective gravity of his role remained very high. The absence of contrition and the strong need for both general and specific deterrence were significant considerations weighing against mitigation.

The court acknowledged a number of personal factors in Issakidis's favour. These included substantial delay between the offending and trial, the absence of prior criminal history, good prospects of rehabilitation, and genuine hardship to him and his wife. His age and serious physical and mental health problems were also taken into account, with the court noting a real prospect that he might not survive to the end of his non-parole period.

Balancing these factors, and applying the parity principle against Dickson's re-sentence, Harrison J imposed an aggregate term of 10 years and 3 months imprisonment. The sentence reflected the extreme seriousness of the offending while giving appropriate, if limited, weight to the mitigating personal circumstances.

Orders Made

  • Count 1 (conspiracy to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(5) of the Criminal Code): 7 years imprisonment, commencing 16 October 2017 and expiring 15 October 2024.
  • Count 2 (conspiracy to deal with proceeds of crime valued at $1 million or more, contrary to ss 11.5(1) and 400.3(1) of the Criminal Code): 8 years and 3 months imprisonment, commencing 16 October 2019 and expiring 15 January 2028.
  • Aggregate sentence: 10 years and 3 months imprisonment, commencing 16 October 2017 and expiring 15 January 2028.
  • Single non-parole period fixed at 7 years and 6 months, expiring 15 April 2025.
  • Sentence backdated to 16 October 2017 to account for time already served.

Key Takeaways

  • Both conspiracy counts were assessed as falling into the worst category of their respective offence types, given the scale of the fraud (over $100 million in actual loss), the sophistication of the scheme, the duration of the offending, and the offender's prominent role.
  • The parity principle, drawn from Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, required the court to account for the co-offender Dickson's re-sentence of 14 years. A sentencing court errs if it fails to consider parity when sentencing a co-offender in the same conspiracy.
  • A lesser aggregate sentence than Dickson's was warranted because Dickson had been found to be the predominant player, but that distinction did not diminish the objective gravity of Issakidis's own conduct.
  • Advanced age, serious ill-health, significant delay, and hardship to family can operate as mitigating factors in Commonwealth sentencing, but their weight is limited where the offending is at the highest level of seriousness and contrition is absent.
  • Under the framework established in R v Milne (No 6) [2010] NSWSC 1467, factual findings adverse to an offender at sentence after trial must be established beyond reasonable doubt, while facts raised in mitigation need only be proved on the balance of probabilities.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 11.5(1), 135.4(5), 400.3(1)
- Crimes Act 1914 (Cth), Part 1B, ss 16A, 16F, 19AB(1)

Cases
- Dickson v R [2016] NSWCCA 105
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v Anthony James Dickson (No 18) [2015] NSWSC 268
- DPP (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42
- R v Milne (No 6) [2010] NSWSC 1467
- Thangavelautham v R [2016] NSWCCA 141
- DPP (Cth) v Goldberg (2001) 184 ALR 387; [2001] VSCA 107
- DPP (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145
- R v Huston; R v Fox; R v Henke; ex parte Cth DPP (2011) 219 A Crim R 209; [2011] QCA 350
- R v Obeid (No 12) [2016] NSWSC 1815
- R v Todd [1982] 2 NSWLR 517
- Sabra v R [2015] NSWCCA 38