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Ellery ruling

Ellery ruling

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Published by corruptioncurrents

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Published by: corruptioncurrents on Aug 20, 2012
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08/20/2012

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 _________________________________________________________________________________ IN THE SUPREME COURT OF VICTORIA Not RestrictedAT MELBOURNECRIMINAL DIVISIONSCR 2012 0058THE QUEENvDAVID JOHN ELLERY---
 JUDGE:
HOLLINGWORTH J
WHERE HELD:
Melbourne
DATE OF HEARING:
18 July 2012
DATE OF SENTENCE:
20 August 2012
CASE MAY BE CITED AS:
R v Ellery
MEDIUM NEUTRAL CITATION:
[2012] VSC 349---CRIMINAL LAW – Sentencing – False accounting – Dishonest falsification of invoice forapproximately $80,000 Not for personal financial gain Chief financial officer andcompany secretary, in position of trust Early plea Remorse Co-operation withauthorities – Undertaking to provide further assistance to Crown – Little need for specificdeterrence – Need for general deterrence, denunciation and punishment – Sentenced to 6months’ imprisonment, wholly suspended for 2 years
Crimes Act 1958
s 83(1)(a)---
APPEARANCES:
Counsel SolicitorsFor the Crown Mr N Robinson SCMr K ArmstrongMs S KeatingCommonwealth Director ofPublic ProsecutionsFor the Accused Mr P Boulten SC Robert Stary & Associates
 
SC: EH 1 SENTENCER v ElleryHER HONOUR:
1
David John Ellery, you have pleaded guilty to one charge of false accounting,contrary to s 83(1)(a) of the
Crimes Act 1958
(Vic).
2
The offence occurred between 28 June and 19 July 2006. At the time, you were thechief financial officer, and a company secretary, of Securency International Pty Ltd(“Securency”).
3
Securency is an Australian company, which is jointly owned by the Reserve Bank ofAustralia and a British company, Innovia Films BVBA. Securency manufactures andsupplies a range of unique substances used in banknotes and security documents.Its polymer substrate product is used by various people, including another ReserveBank subsidiary, Note Printing Australia Limited (“Note Printing”), in the printingof banknotes.
4
In 1999 and 2000, Note Printing and Securency each negotiated and entered intoseparate agreements with a Malaysian man, Abdul Kayum Syed Ahmad (“Kayum”),and/or his company, Aksavest Sdn Bhd, appointing them as their agent in Malaysia.The agency agreements provided that the agent was to be remunerated in the formof success-based commissions, based on the contracts which the agent obtained forthe relevant company. The agent was to bear the cost of any expenses incurred inorder to obtain contracts.
5
In December 2003, Note Printing entered into a contract to supply Bank NegaraMalaysia with 160 million 5 ringgit polymer banknotes. Securency was not a partyto the banknote contract. Note Printing used Securency’s polymer substrate inmanufacturing the banknotes, and the contract price of $15.2 million included a pricefor that substrate. Note Printing paid Kayum substantial commission payments, inrespect of the 2003 contract.
6
The Commonwealth Director of Public Prosecutions has brought charges againstSecurency, Note Printing, and various former officers of the two companies, allegingthat they conspired with each other and with Kayum, between October 2001 and
 
SC: EH 2 SENTENCER v ElleryDecember 2003, to offer bribes to officials in the Malaysian bank, in order to obtainthe business of supplying 5 ringgit polymer banknotes. The DPP alleges that thebribes were to be paid from the commission payable to Kayum.
7
The DPP does not allege that you were a participant in the alleged Malaysianconspiracy, or that you were involved in it when, in mid-2006, you committed thefalse accounting offence to which you have pleaded guilty.
8
After the period of the alleged Malaysian conspiracy, Note Printing and Securencywere keen to secure further business from the Malaysian bank. As with the 2003contract, it was proposed that Note Printing – not Securency – would be the party toany future bank contract.
9
Since late 2005, Kayum had been asking Securency to pay him some sort ofcommission for the substrate used in the production of Malaysian banknotes, eventhough the party responsible for paying his commission should have been NotePrinting, not Securency.
10
You were not a party to the negotiations between Kayum and senior officers ofSecurency, in relation to the payment of a special commission, most of which seem tohave taken place in Malaysia. At all relevant times, you were based at the headoffice of Securency in Craigieburn, Victoria. However, you were copied in on someinternal Securency documents regarding the proposed payment of such a specialcommission.
11
In December 2005, the Malaysian bank advised that it would be offering NotePrinting a contract to produce a further 100 million 5 ringgit polymer banknotes. InMarch 2006, Note Printing entered into that further contract.
12
Almost as soon as the 2006 contract had been signed, Kayum raised again thequestion of Securency paying him the special commission, so that he could “disbursecertain expenses accrued”. In an April email to another Securency employee, Kayumasked that it be remitted in Australian dollars into a nominated bank account in

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