The Queen v Sackl [2022] VCC 796 (3 June 2022)

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

JUDGE:	His Honour Judge Hannebery
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2022
DATE OF SENTENCE:	3 June 2022
CASE MAY BE CITED AS:	The Queen v Sackl
MEDIUM NEUTRAL CITATION:	[2022] VCC 796

Catchwords: Delivering false or misleading information relating to a non-citizen - presenting a forged a false document relating to a non-citizen

Sentence: Community Corrections Order of 3 years duration with a special condition that you are to perform 250 hours of community work.

APPEARANCES:	Counsel	Solicitors
For the CDPP	Mr N. Robinson QC Mr J. Manning (For plea) Ms Z. Hough (For sentence)	Solicitor for the Commonwealth Director of Public Prosecutions

For the Accused	Dr T. Alexander Ms J. Kretzenbacher	Christopher Dale Solicitor

1. Andrew Sackl, you have pleaded guilty to an indictment containing 13 charges being:

2. A prosecution opening was tendered^[1] and read aloud in abbreviated form on your plea. Your offending can be summarised as follows:

3. Between 13 November 2012 and 22 May 2013, you were the Managing Director of two entities being Punk Jobs Pty Ltd and Dynasty Global Pty Ltd. The businesses assisted both small business owners who require staff and job-seekers who require employment. If the prospective employee was a non-citizen, then your businesses would assist both the employer in obtaining business sponsorship approval, and the prospective employee with obtaining work visa approval. Your businesses would receive payments for both job placement and for applying for a visa.

5. When submitting a Business Nomination Visa and a 457 Visa application to the Department of Home Affairs, the applicant must:

6. On eight occasions, your business submitted both Business Nomination Visas and 457 Visa applications that contained a statement that was false or misleading in a material particular. That is the subject of Charges 1, 3, 4, 5, 7, 8, 10, and 11, the offence of deliver false or misleading information relating to a non-citizen).

7. On two occasions, your business submitted Business Nomination Visas that contained a statement that was false or misleading in a material particular, the subject of Charges 9 and 13, Deliver false or misleading information relating to a non-citizen.

9. On two occasions, your business submitted documents to the Department of Home Affairs which purported to be an employment offer or contract between an individual and a business which was false. On one occasion, your business provided a letter regarding training provided by a business which was also false. That is the subject of Charges 2, 6, and 12, namely presenting a forged or false document relating to a non-citizen.

10. On 14 April 2014, you participated in a record of interview. You said that you operated Punk Jobs Pty Ltd and Dynasty Global Pty Ltd. You comprehensively explained how the businesses operated, including that:

11. The policy behind s 234 Migration Act 1958 (Cth) is aimed at the protection of the integrity of the system for processing applications by non-citizens to enter and remain in this country. The honesty and candour of applicants and those representing them are of fundamental importance to the effectiveness of that system. The provision is also aimed at the protection of the applicants themselves who can be vulnerable to exploitation.

12. Parliament has determined that these offences should carry a maximum penalty of 10 years imprisonment. This is a reflection of the inherent gravity of the offences.

13. Your offending was of a type that could undermine the integrity of this system. Whilst it is not alleged that your offending resulted in an adverse outcome for any individual, it had the capacity to do so. A visa granted because of false information might cause an otherwise legitimate applicant to miss out.

14. The false information was provided in the course of you conducting a business where you stood to gain financially from the filing of visa applications.

15. Your offending was beyond mere inadvertence or incompetence. You had knowledge that it was false to represent that the applicants had no assistance in completing their forms. This had the effect of concealing the involvement of your companies in the application process, which in turn shielded them from regulatory scrutiny.

16. You were the Managing Director and CEO of both companies. You were familiar with the process of the lodgement and assessment of applications. You had personal interactions with both applicants and the Department Case Officers. You are personally culpable for the false information about the assistance provided to the applicants in the documents.

17. It is significant that the dishonesty on this point was repeated on multiple occasions over the course of about five months.

18. It is alleged that you were reckless as to the truth of the information provided in relation to the material provided to the Department about the employment opportunities available to visa applicants. You are to be sentenced on the basis that it was not reasonable in the circumstances for you to represent that information as truthful when you were aware of the real possibility that it was false. You were similarly reckless with regard to the forged and incorrect nature of the documents the subject of Charges 2, 6 and 12. It is not alleged that you were party to the production of these false documents. They were, however, filed with the department in support of visa applications in circumstances where you knew of the significant risk that they were not accurate.

19. Overall, your conduct was repeatedly and significantly below the standard of integrity required of those providing information pursuant to visa applications.

20. You are now 33 years old. You were 23 and 24 years old at the time of the offending. Your father was born in Austria and is an architect. Your mother was born in Germany and is a catering business owner. You have one younger sister who is a dermal technician.

21. You were born in Melbourne and raised in Park Orchards. You completed Year 12 at Wesley College in 2006. You achieved an excellent ATAR score of 96.4 despite some difficult family circumstances that meant you were living independently and working full-time during the latter stages of your schooling.

22. A detailed account of your work history was provided on your plea. I will not repeat that history in full, save to say that it reveals you to be very entrepreneurial from the time you first set up an events company at age 19. Your business career since then has had both highs and significant setbacks. I conclude from your history that you are someone with great intelligence and initiative. You have also on occasion displayed resilience to persevere despite business failure and most recently, bankruptcy.

23. Your business interests have been varied. Whilst the businesses the subject of the current charges were concerned with visa application and employment services, you have also involved yourself with such things as backpackers accommodation, online employment advertising and technology to reduce food waste amongst other things.

24. You have been married twice. You have two sons from your first marriage who are now 6 and 10 years old. You have a son and a daughter to your second wife, aged 4 and 6 years old.

25. The relationship with your first wife has been acrimonious since your marriage to your second wife in 2017. There have been contested family court proceedings. That litigation has had a significant personal and financial impact upon you. In December 2020 you were made bankrupt and could no longer remain as a director of the company you were then involved in.

26. You are now working in two businesses of which your wife is a director. One company is involved in the construction of modular home units, the other with COVID-19 testing equipment. I accept from the material provided that you are engaged full-time in developing both of these businesses, which reflects your evident strong work ethic.

27. You first made an offer to plead guilty to the charges on the indictment on 10 March 2022. The trial was listed to commence 20 April 2022.

28. At a Directions Hearing on 13 April 2022 the parties advised that the matter had resolved and that arraignment could proceed as soon as an amended indictment was prepared.

29. The plea of guilty followed an elongated process of discovery, and negotiation with the prosecution that resulted in a substantially fewer charges than comprised the previous indictment.^[2] Even having regard for that context, your plea of guilty has emerged late in the proceedings.

30. That said, it is still of very significant utilitarian worth. By your plea of guilty you have saved the time and resources that would otherwise have been expended on a trial estimated to be of at least 20 days duration. This is of particular weight in mitigation of sentence having regard for the pressures placed on court listings because of pandemic restrictions.

31. When first interviewed by the police you made partial admissions to the allegations. You conceded that you knew that the representation on the forms that applicants had not received assistance was false. You did, however, diminish the gravity of this conduct by describing it as something done ‘naughtily’. There was for a long time after your arrest little evidence of either co-operation with the authorities or contrition for your offending.

32. I accept, however, that this situation has changed. You provided the court with a letter of apology^[3] that I consider to be genuine in its sentiments. In combination with your plea of guilty, I am satisfied to the requisite standard that you now have some remorse for your actions.

33. The matter has been the subject of extraordinary delay. The offending concluded in early 2013. You were interviewed in 2014. You were charged in 2017. You are being sentenced in 2022. Although the matter was contested until recently, it is extraordinary that the litigation has lasted for the best part of a decade.

34. You are now to be sentenced as a 33-year-old for conduct you committed as a 23 and 24-year-old. You have had the spectre of these charges hanging over you since your interview more than eight years ago. This delay as inordinate and is a punishment in itself.

35. The delay also means that your good behaviour over a long period subsequent to the offending becomes a very significant matter in mitigation.

36. You have no prior convictions. You have no subsequent convictions or findings of guilt. You were relatively youthful at the time of the offending. The offending ceased well before any police involvement.

37. Your circumstances have changed substantially since 2013. You are now a parent, and have endured a number of personal and business setbacks. You are in the process of seeking to re-establish yourself after your period of bankruptcy finishes. The court was provided with 13 character references that all attest to your otherwise good character.^[4] You still have the strong support of your wife who was present during the plea hearing.

39. The finding of guilt on these charges will have the effect of disqualifying you from being a director of a company for a significant period. I accept that this inevitable outcome will hinder your business prospects and represents a form of extra-curial punishment in itself.

40. It has been submitted on your behalf as a matter in mitigation that if were you to be imprisoned, that would cause hardship to your family, and, in particular, your four children under the age of 10. It was not contended that this hardship amounted to “exceptional” hardship such as to make that a permissible consideration in accordance with Victorian law as it currently stands. Rather, it was submitted that I should follow the principle outlined in the recent New South Wales case of Totaan v R,^[5] which stated that no finding that the hardship was ‘exceptional’ was required for it to be taken into account in mitigation of sentence.

41. I am, however, in my view bound by the Victorian law as expressed in Markovic v The Queen.^[6] As such I have not taken into account any hardship to your family that may be a consequence of any sentence imposed upon you.

42. The nature of the charges are such that general deterrence is a very important sentencing consideration. Your offending was of a type that is difficult to detect, and a message must be sent to those who would similarly seek to undermine the integrity of the visa application system that significant consequences will flow upon conviction.

43. Having regard for your lack of prior history and subsequent good character, I consider that specific deterrence is of much lesser significance, though not eliminated, as a sentencing consideration.

44. I must impose a sentence that is of a severity appropriate in all the circumstances of the case. In determining the sentence, I have had regard to the matters listed in s 16A(2) Crimes Act 1914 (Cth) to the extent they are relevant and known.

45. In sentencing for a Commonwealth matter, I must also have regard to current sentencing practices to the extent they can be determined in order to achieve some consistency in sentencing. In this case, it is not contended that there is any previous sentence that has been imposed in circumstances similar to the current case. The cases that have been provided I consider of utility only in setting out the relevant sentencing principles.

46. Counsel for the prosecution, Mr Robinson QC with Mr Manning suggested that no other sentence but for a period of imprisonment was appropriate in all the circumstances. The prosecution conceded that it was open to the court to impose a single Recognisance Release Order,^[7] and that it was a matter for the court whether any period of immediate imprisonment was required prior to release.

47. Counsel on your behalf, Dr Alexander and Ms Kretzenbacher submitted that pursuant to the power conferred in s 20AB Crimes Act 1914 (Cth),a community corrections order was appropriate in all the circumstances.^[8]

48. I have weighed the seriousness of the offending as I have found it to be and considered the importance of deterrence and punishment as sentencing factors. These matters must be balanced against the very significant matters in mitigation, most especially the plea of guilty in a pandemic environment, the inordinate delay, and your previous and subsequent good character. In all the circumstances I have determined that all relevant sentencing factors can be addressed with a sentence that does not involve a term of imprisonment on any of the charges, but rather by the imposition of a Community Corrections Order that includes a significant punitive component.

49. On each of Charges 1 through 13 inclusive you are convicted and placed on a Community Corrections Order of 3 years duration. That order is to have a special condition that you are to perform 250 hours of community work.

50. Before I ask if you to consent to such an order being made, I must tell you about that order.

53. I can only impose a Community Correction order if you agree to such an Order being imposed.

54. I should advise you that if you fail to comply with this order, either by re-offending or by failing to fulfil any conditions, that a pecuniary penalty not exceeding 10 penalty units can be imposed for the breach and that you can be re-sentenced for the original offending, and obviously if you were to be re-sentenced for the original offending then a period of imprisonment is something that can be imposed.

55. Do you consent to a Community Corrections Order on the terms I have just outlined?

57. HIS HONOUR: Alright, well I will get the form to be taken to Mr Sackl. It is not entirely clear whether I need to make a s 6AAA Order in relation to Commonwealth matters, but for what its worth, I will make a declaration just in case I do have to.

58. Pursuant to s 6AAA Sentencing Act 1991, but for your plea of guilty I would have imposed a sentence of 2 years imprisonment of which I would have ordered that 6 months be served before your release on a Recognisance Release Order.

59. Dr Alexander if you or Mr Dale want to help Mr Sackl with the CCO paperwork.

63. HIS HONOUR: Thank you very much for your assistance, I will adjourn the court until 10:30am on Monday.

THE QUEEN

v

ANDREW SACKL

County Court of Victoria

The Queen v Sackl [2022] VCC 796 (3 June 2022)