R v Kingston[2025] QCA 73

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Boddice JA.
2. [2]
   BOND JA:  I agree with the reasons for judgment of Boddice JA and with the orders proposed by his Honour.
3. [3]
   BODDICE JA:  On 12 November 2024, a jury found the appellant guilty of two offences of dishonestly using his position as a director with the intention of gaining an advantage, contrary to s 184(2) of the Corporations Act 2001 (Cth) (the Act) (counts 1 and 2) and two offences of providing false or misleading information to an auditor, contrary to s 1309(1) of the Act (counts 5 and 6).  The jury was unable to reach a verdict in respect of one offence of making a false document (count 3) and one offence of using a forged document (count 4).
4. [4]
   On 10 December 2024, the appellant was sentenced to imprisonment for 18 months for count 2 and lesser, concurrent periods of imprisonment, for counts 1, 5 and 6.  It was ordered that the appellant be released after serving six months imprisonment, upon giving security by recognizance in the sum of $1,000, on condition that he be of good behaviour for a period of 18 months.
5. [5]
   The appellant appeals his convictions on the ground that the trial judge erred in refusing an application for the discharge of the jury, which error resulted in a miscarriage of justice.
6. [6]
   The appellant also seeks leave to appeal against sentence.  Should leave be granted, the appellant relies on two grounds.  First, that the sentence is manifestly excessive in all the circumstances.  Second, that the trial judge erred in finding that the use of his position was not for the purpose of accessing unpaid remuneration entitlements in a tax effective way.

Background

7. [7]
   The offences were committed between late 2015 and mid-2017.  At the time, the appellant was aged between 48 and 49 years.  He was aged 57 years at sentence.  He had no prior criminal history.
8. [8]
   Each of the offences was committed at a time when the appellant held the position of Chief Executive Officer and Director of a community-based credit union.  When the offending behaviour was uncovered in late 2017, the appellant lost that employment.  Approximately two years later he was charged with the offences.
9. [9]
   An indictment was presented in November 2021.  Thereafter there were three trials.  The first resulted in a mistrial shortly after its commencement.  The second resulted in the discharge of the jury during their deliberations.  The third was conducted in October and November 2024.  The jury returned its verdict on day 21 of that trial.

Indictment

10. [10]
    Count 1 alleged that between 7 December 2015 and 13 June 2016, the appellant used his position as Director and CEO of the credit union dishonestly, with the intention of directly or indirectly gaining an advantage for himself or someone else.
11. [11]
    Count 1 was particularised as the appellant, on or about 2 June 2015, using his position to cause the credit union to enter into an agreement with Tuku (Qld) Pty Ltd (Tuku) for it to provide consulting or recruiting services to the credit union for a fee of up to $268,000.  Further, that between 8 December 2015 and 27 May 2016, the appellant used his position to participate in the payment of four invoices, sent by Tuku to the credit union, for consulting services in the sum of $80,636.27 and that before the appellant participated in the payment of those invoices, he had an arrangement with the sole director of Tuku that a portion of the funds received be paid by Tuku to Lick Lick Pty Ltd (Lick Lick) and that he gained an advantage directly or indirectly from the use of his position as Director and CEO of the credit union, as Tuku paid a total of $29,940.27 in three amounts to Lick Lick.  It was alleged that that participation was dishonest and with the intention that the appellant directly or indirectly gained an advantage for himself or Lick Lick, the trustee of Lick Lick Trust of which the appellant was a beneficiary and the controller of its bank accounts.
12. [12]
    Count 2 alleged that between 1 May 2016 and 1 June 2017, the appellant, being a Director and CEO of the credit union, used his position dishonestly with the intention of directly or indirectly gaining an advantage for himself or someone else.
13. [13]
    Count 2 was particularised as the appellant, in or about May 2016, using his position to cause the credit union to enter into a property portfolio service agreement with M2M Management Pty Ltd (M2M) under which the credit union was obliged to pay a base management fee of $385,000.
14. [14]
    It was particularised that between May 2016 and April 2017, pursuant to that contract, M2M sent 12 invoices to the credit union as a consequence of which the credit union paid to M2M the amount of $404,319.30.  Further, prior to causing the credit union to enter into the contract, the appellant had an arrangement with the sole director of M2M whereby $10,000 per month of the amounts paid by the credit union to M2M pursuant to the contract, would be paid to Lick Lick.
15. [15]
    It was alleged that in entering into the contract, the appellant was dishonest and caused the credit union to enter into the contract with the intention that he directly or indirectly gain an advantage for himself or Lick Lick, the intended advantage being part of the money paid by the credit union to M2M, being paid to Lick Lick when the appellant was a beneficiary of the Lick Lick Trust and controlled its bank accounts.
16. [16]
    It was alleged that the appellant gained an advantage directly or indirectly from the use of his position, by M2M making 12 payments of a total of $117,400 to Lick Lick at a time when he controlled its bank accounts.
17. [17]
    Count 3 alleged that between 15 May 2017 and 1 June 2017, the appellant made a false document with the intention of dishonestly inducing a third person, in that person’s capacity as a public official, to accept it as genuine and if so, accept it to dishonestly influence the exercise of a public duty or function.
18. [18]
    Count 3 was particularised as the appellant having made a document that purported to be a contract between the credit union and M2M which was a false document, in that it was not a genuine agreement and that it was made with the intention of dishonestly inducing an employee of the Australian Prudential Regulatory Authority (APRA) to accept it as genuine and if so, accept it to dishonestly influence the exercise of his public duty or function as an employee of APRA.
19. [19]
    Count 4 alleged that on or about 31 May 2017, the appellant knowing that a document was a false document, used that document with the intention of dishonestly inducing another person in that person’s capacity as a Commonwealth public official, to accept it as genuine and if so, accept it to dishonestly influence the exercise of a public duty or function.
20. [20]
    Count 4 was particularised as the appellant, knowing that the contract entered into between the credit union and M2M was not a genuine document and was false, used that document by providing it to the Chief Operating Officer of the credit union, so that that officer could provide it to the employee of APRA, with the intention of dishonestly inducing the APRA employee, to accept it as genuine and if so, accept it to dishonestly influence the exercise of his public duty or function.
21. [21]
    Count 5 alleged that between 1 July 2016 and 10 September 2016, the appellant, as Director and CEO of the credit union, made available or gave information, or authorised the making available, or giving of such information to the auditor of the credit union, that related to its affairs and that to the appellant’s knowledge omitted a matter or thing which rendered the information misleading in a material respect.
22. [22]
    Count 5 was particularised as the appellant having, on or about 9 September 2016, given to the auditor of the credit union a key management personnel disclosure form for the financial year ending 30 June 2016, in which he omitted any disclosure of the payments from Tuku and M2M to Lick Lick, knowing that the document had that omission and that that omission was misleading as it related to significant commercial arrangements which the appellant controlled and from which he benefitted and the auditor was not made aware of that personal connection and the omission suggested there were no transactions that may have been related-party transactions.
23. [23]
    Count 6 alleged that between 1 July 2017 and 22 August 2017, the appellant as a Director and CEO of the credit union, made available or gave information, or authorised the making available or giving of information to the auditor of the credit union that related to its affairs and that to his knowledge omitted a matter or thing, the omission of which rendered the information misleading in a material respect.
24. [24]
    Count 6 was particularised as on or about 28 August 2017, the appellant gave to the appointed auditor for the credit union, his key management performance disclosure document for the financial year ending 30 June 2017, which omitted to disclose the payments from M2M to Lick Lick and that that omission was misleading, as it related to significant commercial arrangements which the appellant controlled and from which he benefitted and the auditor was not made aware of that personal connection and the omission suggested there were no transactions that may have been related-party transactions.
25. [25]
    In respect of counts 1 and 2, the Crown particularised the appellant’s knowledge, belief or intent as using his position dishonestly because at the time of his participation in the payment of the sums, he knew the payments were made pursuant to contracts, the terms of which had not been disclosed to the credit union’s Board and which the appellant knew obliged the credit union to pay an amount greater than his approved delegation authority and that he knew that those contracts required, but did not have, Board approval.
26. [26]
    It was further particularised that when he participated in the arrangements for the payments, he knew that part of the amounts paid by the credit union to Tuku and M2M would be paid to Lick Lick from which he could benefit and that as such, he had a possible conflict of interest which he knew should be disclosed to the Board, but which he did not do and, further, that the appellant knew that the contracts should have been disclosed to the Board, but that he had not done so.
27. [27]
    In respect of counts 3 and 4, the Crown particularised the document as false to the knowledge of the appellant, who was alleged to have made it and arranged for it to be sent to APRA with the intention of dishonestly inducing the APRA employee to accept it as genuine and knowing that it would dishonestly influence the exercise of that person’s public duty or function.

Trial

28. [28]
    The trial was conducted on the basis of the admission of a list of agreed facts.  Relevantly, by reason of those admissions, there was no issue at trial as to the appellant’s position as CEO and Director of the credit union; the entry into the agreements with Tuku and M2M; the issuing of the invoices relevant to counts 1 and 2; the approval of the payment of them by the appellant; and the payments by Tuku and M2M to Lick Lick in the sums of $29,940.27 and $117,400 respectively.
29. [29]
    Evidence was called from various witnesses to prove the level of the appellant’s delegating authority at the relevant time, the non-disclosures to the Board of the payments to Lick Lick and the failure to advise the credit union’s auditor of those payments.  The evidence included details of discussions at Board level about increasing the appellant’s delegation authority and claims by the appellant to be owed significant sums by way of unpaid remuneration.  On the latter aspect, evidence was adduced in cross-examination to the effect that the Board had no role in how any unpaid remuneration was to be paid to the appellant.
30. [30]
    The issue for the jury was whether the appellant had acted dishonestly in respect of the agreements and payments and had misled the credit union’s auditors in relation to those agreements.  The Crown particularised the dishonesty as arising in two ways.  First, because each agreement was, to the appellant’s knowledge, beyond his approved delegation authority.  Second, because of the non-disclosure to the Board of the conflict of interest in the appellant’s approval of agreements by which he received a financial benefit.
31. [31]
    The defence case was that the jury could not be satisfied beyond reasonable doubt that the appellant had acted dishonestly.  Relevantly, the defence contended that the jury would have a reasonable doubt as to whether the agreements were in excess of the appellant’s delegation authority, having regard to the discussions as to a variation in that authority and by reason of amounts which the appellant contended he was entitled to by way of unpaid remuneration.
32. [32]
    At the conclusion of the Crown case and part way through the Crown address, the trial judge queried whether any aspect of the Crown’s particulars in respect of count 1, namely, the exceeding of the delegation authority was relevant, as the transaction said to be dishonest was the payment of the monies to Lick Lick by Tuku, not the payment by the credit union to Tuku.
33. [33]
    Following submissions, the Crown disavowed reliance upon that aspect of the dishonesty particularised in respect of count 1, namely, that the agreement, the subject of count 1, had been entered into by the appellant in excess of his delegation authority.  As a consequence, the dishonesty in respect of count 1 now was said to arise only by reason of the appellant’s knowledge of the potential conflict of interest in making the subject arrangements, and his non-disclosure of it to the credit union’s Board.
34. [34]
    Following that disavowal, the Crown address continued and in the course of it the Crown raised, for the first time, in respect of count 2, a contention that the contract itself was dishonest because of its inclusion of the amounts destined for Lick Lick.  The Crown did not otherwise develop that submission and, in the absence of the jury, withdrew reliance on it.
35. [35]
    These two matters were relied upon by defence counsel in support of an application for the discharge of the jury.  It was submitted that the late disavowal of reliance upon the first basis for dishonesty in respect of count 1 and the reliance upon an unparticularised further basis for dishonesty in respect of count 2, were prejudicial and that no direction could meaningfully remove their prejudicial effect.  The latter submission was said to be supported by the fact that an excess of delegation authority was still relied upon as a basis for dishonesty in respect of count 2 and a contention that the inclusion of the additional amounts to be paid to Lick Lick, rendered the contract dishonest in itself, was factually linked to the allegations in counts 3 about the provision of a false document.  It was submitted that the jury could not practically be directed to disregard that lately introduced, specific allegation of dishonesty, when they were still being invited to consider that the document, the subject of count 3, was false because of the omission of the amounts to be paid to Lick Lick.
36. [36]
    The trial judge refused the application to discharge the jury.  The trial judge was not satisfied that any issue had arisen by reason of the address of the Crown prosecutor which gave rise to the need for a discharge of the jury and the disavowal of one basis for dishonesty, could properly be addressed by directing the jury in terms of the counts as now particularised.

Conviction appeal

37. [37]
    The appellant submits that the trial judge’s refusal to discharge the jury, gave rise to a miscarriage of justice, as the central issue for the jury’s determination was dishonesty and the disavowal, at the end of a three week trial, of what had been one of only two bases for proof of dishonesty beyond reasonable doubt of count 1, was so prejudicial that nothing that was said way of directions could effectively remove from the jury’s consideration, what was now an irrelevant consideration in the determination of the appellant’s guilt of count 1, beyond reasonable doubt.  This prejudice, it was submitted, was compounded by the Crown’s reliance upon an unparticularised basis for a finding of dishonesty in respect of count 2 in its address to the jury and directions given by the trial judge were ineffective to overcome the prejudicial effect.
38. [38]
    As was observed by this Court in R v Bosscher,^[1] decisions on the application to discharge a jury for a potentially prejudicial event that occurs during a trial, are not governed by rigid rules.  Much depends upon the seriousness of the occurrence in the context of the issues in dispute at trial, the stage at which the mishap occurs, the deliberateness of the conduct and the likely effectiveness of a judicial direction designed to overcome its apprehended effect.  For this reason, an appellate court will not lightly find appellable error in the exercise of a discretion to refuse an application to discharge a jury.
39. [39]
    The task for the appellate court, when considering a ground of appeal relating to the refusal to discharge a jury in such circumstances, is not merely to examine the reasons for such refusal, or indeed their correctness.  The task is to decide, for itself, whether in the circumstances of the case, the refusal to discharge the jury occasioned a miscarriage of justice.
40. [40]
    In the present case, a consideration of all of the circumstances supports a conclusion that there was no miscarriage of justice.
41. [41]
    Whilst evidence of the appellant’s delegation authority was not relevant to the jury’s determination of proof of dishonesty, beyond reasonable doubt, in respect of count 1, such evidence remained relevant in its verdict on count 2.  As such, the circumstances are different to those considered in Patel v The Queen.^[2]  Unlike Patel, this case did not involve an accumulation of evidence that was not properly to be left to the jury.
42. [42]
    Further, the trial judge’s directions in respect of the issues to be addressed by the jury in considering whether the Crown had proven, beyond reasonable doubt, the appellant’s guilt of counts 1 and 2, were clear and precise.  There was no real chance the jury deliberations were affected by a consideration of the disavowed basis for dishonesty or the new unparticularised basis briefly referred to in what was a lengthy Crown address.
43. [43]
    Relevantly, the trial judge directed the jury, in respect of count 1:

“The prosecution’s case is that each of those approvals was dishonest because of the circumstances set out in paragraph (1)(b) of the Particulars of Defendant’s Knowledge, Belief or Intent document, which is exhibit 3 that you have in your pack.  As I directed you earlier, now that we are looking specifically at count 1, I want to remind you that, despite the prosecution particularising the element of dishonesty to include reference to the delegation, I direct you that, in the way in which this charge has been framed, the delegation is irrelevant to your consideration of the issue of dishonesty.  That is, as is perhaps plain, this charge is not about the contract between BCU and Tuku entered into in June 2015.  This is about the arrangement that Mr Kingston had with Mr Morgan whereby he was to receive a fifty-fifty share of the proceeds of the work done by Mr Morgan for recruitment services during the period when he was also an employee of BCU, but in addition to the work that he was doing as an employee.

So you see, it does not matter what you make of the delegation at this time that he entered into the contract, and whether it exceeded his delegation or not, because count 1 is not about that contract.  It alleges a different act which is said to be dishonest.  Consequently, I remind you about the direction I gave you earlier, that the issue about the delegation cannot assist you in your consideration as to what Mr Kingston’s approval of these invoices, as part of his separate engagement with Mr Morgan, was dishonest according to the standards of ordinary, decent people, and that therefore you must put that – must disregard those factors when you are considering the element of dishonesty in this count.  They are irrelevant.  If you have not done so already, you should simply draw a line through them and consider the factors which the prosecution does say supports the conclusion of dishonesty, and that is the conflict of interest point that I will turn to now.”^[3]

44. [44]
    The reference to the earlier direction related to specific directions given by the trial judge in relation to a director’s delegated authority.
45. [45]
    As part of the summing up, the jury had been provided with a handout about the duties of directors and officers of corporations.  The trial judge directed the jury in relation to that document:

“What I hope, by providing you with the information that is set out in those handout – in that handout about the duties of directors and officers of corporations, is to assist you to understand that legislative framework – legislative landscape in which the relevant events occurred to assist you in your determination as to whether or not the prosecution has satisfied you that Mr Kingston’s actions, as alleged, were dishonest according to the standards of ordinary, decent people.”^[4]

46. [46]
    Having explained that purpose, the trial judge then specifically directed the jury in relation to Mr Kingston’s delegations:

“As this trial has been litigated, and as the charges against Mr Kingston have been framed by the prosecution, this issue is only relevant to the allegations underpinning count 2.  You know that the defendant’s delegation as CEO was subject to monetary restrictions, and you have heard quite a body of evidence in relation to the delegations that applied to Mr Kingston relevant to the contracts between BCU and both Tuku and M2M.  For reasons that will become clear, I direct you that the issue of delegations is only relevant to your assessment of the allegations in relation to count 2, the M2M contract, as there is no allegation in count 1 that is relevant to Mr Kingston’s delegations.

Therefore, despite the particulars in relation to count 1 that you have been provided by the prosecution, including reference to the contract between BCU and Tuku exceeding what is said to be Mr Kingston’s delegation at the time, those matters set out in that particulars document, which is the exhibit 3, the dishonesty – Particulars of the Defendant’s Knowledge, Belief and Intent I think is the heading – Particulars of Defendant’s Knowledge, Belief or Intent, it is exhibit 3.  So despite, in that document, the prosecution having included reference to the contract between BCU and Tuku exceeding what is said to be Mr Kingston’s delegation, those matters which appear in little paragraphs (i) through to (v) in (1)(b), cannot assist you in your determination of the issue that arises in count 1, and I direct you that you are to ignore those matters.  For ease, you should simply draw a line through them.”^[5]

47. [47]
    The precision with which the jury was directed in respect of the basis for proof beyond reasonable doubt of the appellant’s guilt of count 1, eliminated the risk that the jury might bring into account the consideration which they had been told to ignore.  A fundamental tenet of any criminal trial is that a jury conforms with the trial judge’s directions.^[6]
48. [48]
    Similarly, the trial judge gave clear and precise directions to the jury in respect of count 2.  Whilst the trial judge, properly, did not specifically remind the jury of the Crown’s reliance on an unparticularised basis for dishonesty in its lengthy address, the trial judge directed the jury, in respect of count 2, in the following terms:

“While it seems clear that there was a proposal for outsourcing to be done to assist BCU to carry on its business, and the concept of outsourcing some tasks and services is a valid one, the issue is whether Mr Kingston’s use of his position to cause BCU to enter into a contract with M2M was dishonest according to the standards of ordinary, decent people.

I direct you that it is not the fact of his entering into an outsourced agreement with M2M, nor even the addition of $120,000 that was to find its way back to him that is said to evidence his dishonesty.  The prosecution says that the amount of the contract required board approval, which Mr Kingston knew but did not get, and the fact that the true nature of the arrangement with Mr Craig gave rise to a conflict of interest that he did not disclose, despite knowing that he was required to do so.  It is said that you can consider those two factors and infer, or conclude, that his state of mind, when he caused BCU to enter into the contract between M2M and BCU, was a dishonest one.

If you are satisfied about that beyond reasonable doubt, then you would find this element established.  And as long as you were also satisfied of the other elements of the offence beyond reasonable doubt, you would find the defendant guilty.  If you have a doubt about that, then you would find the defendant not guilty, because the prosecution will have failed to prove to your satisfaction an essential element of this offence.”

49. [49]
    That direction left the jury in no doubt as to the basis upon which it was open for the jury to find dishonesty established beyond reasonable doubt in respect to count 2.  When that direction is considered in the context of a further direction that the jury had to be unanimously satisfied beyond reasonable doubt as to the basis for a finding of dishonesty in respect of count 2, there is no real chance that the Crown’s brief reference to another basis for dishonesty deflected the jury from a proper consideration of their task in determining their verdict in respect of count 2.
50. [50]
    The directions given by the trial judge effectively overcame any apprehended impact of the late disavowal of a particularised allegation of dishonesty in respect of count 1 and the introduction, in address, of a further basis for a finding of dishonesty in respect of count 2.
51. [51]
    No miscarriage of justice arose by reason of the trial judge’s refusal of the application to discharge the jury.  There was not a “real chance” those matters affected the jury’s verdict … or “realistically [could] have affected the verdict of guilt” … or “had the capacity for practical injustice” or was “capable of affecting the result of the trial”.^[7]

Sentence application

Sentencing remarks

52. [52]
    In sentencing the appellant, the trial judge observed that the appellant’s dishonest conduct in respect of the two contracts was undertaken in circumstances where the appellant knew that he was in a position of trust and exploited that position.  There was an element of brazenness in that conduct, which included a continuation of the dishonesty, by intentionally giving the credit union’s auditors misleading documentation, thereby continuing to disguise the true nature of his dishonest offending in relation to those arrangements.
53. [53]
    The trial judge also observed that whilst personal deterrence did not loom large, in the circumstances of the appellant’s case, general deterrence remained an important sentencing feature so as to deter like-minded individuals, in positions of trust, from committing similar dishonest offending.
54. [54]
    The trial judge accepted that there were a number of mitigating factors in the appellant’s favour, including a lack of prior criminal history and the fact that he had experienced significant personal consequences as a result of his offending, including the loss of his employment and the breakdown of his marriage and suffering financially.  The trial judge also accepted that a conviction for the offences would be a significant impediment in the gaining of future employment.
55. [55]
    After referring to comparable authorities, the trial judge found that the appellant’s dishonesty in respect of count 2 involved more culpability as the effect of his dishonest conduct was to conceal from the credit union, the payment of almost $120,000 by deceptive means within the terms of a contract which had nothing to do with any financial arrangements owing to him.  However, as each offence was committed in the context of the other offences as a course of dishonest conduct, over a period of roughly about 18 months, it was appropriate to impose an overall head sentence on a global basis.
56. [56]
    Having regard to both the aggravating and mitigating factors, the trial judge found that no sentence, other than imprisonment was appropriate in the circumstances.  Further, a release on a recognizance forthwith would fail to properly reflect the seriousness of that offending, its circumstances and the need for a penalty which carried with it a tangible general deterrent effect.

Was there specific error?

57. [57]
    In the sentencing remarks, the trial judge said:

“Evidence was given in the trial which I accept, which demonstrates that BCU as a company and the board of directors were acutely aware of the need to identify and manage conflicts of interest.  Further, I accept the evidence that the primary management strategy of BCU was to avoid conflicts of interest.

Despite your awareness of the conflict of interest policy, and the opportunities within the governance of BCU to disclose the conflict of interest that clearly arose from your arrangement with Mr Morgan, you failed to disclose the existence of that arrangement.  I accept the evidence of Mr Grant Wallace, the chair of the BCU board, that he was not made aware of this arrangement.

Further, despite the evidence of Mr Wallace that he was aware of an issue promoted by you that you had underpaid remuneration and outstanding bonus entitlements, I am satisfied that the issue of unpaid remuneration was not related to your participation in these arrangements with Mr Morgan.

Your failure to disclose this arrangement despite clearly knowing that you should leads irresistibly to the conclusion that your state of mind was a dishonest one.  That is, you dishonestly used your position as the CEO and director of BCU with the intention to directly or indirectly gain an advantage for yourself.

As a result of this arrangement, you benefited to the tune of $29,040.27.  The Crown did not argue that there was any detriment to BCU as a consequence of this arrangement with Mr Morgan.  Mr Morgan gave evidence that the cost to BCU of his services was, in fact, a generous fee at 11%, and that other recruiting firms were charging as much as 15% for the same service.  Consequently it is not shown that BCU suffered any loss as a result of your dishonest conduct.  What can be said, though, is that you denied the BCU board the opportunity to oversee the arrangement with Mr Morgan, and to ensure that proper governance was employed, and that there was no impermissible use of your position.

In doing so, you acted with a dishonest state of mind.  The governance requirement are there to ensure that those who hold positions of trust and the responsibility to adhere to good governance do not misuse their positions for personal advantage.  Consequently, the opportunity for the board or for BCU as an organisation to ensure that the contractual arrangement was transparent and in the best interests of BCU was denied to the organisation.

The important opportunity to ensure good governance, transparency, and integrity in the conduct of the BCU business, and that all decisions are made by senior staff in the best interests of BCU and its members, was denied the organisation.

In relation to count 2, your conduct there was different.  In this count, you dishonestly used your position as CEO and director of BCU to enter into a contract with the company of Mr Shane Craig, M2M Management Pty Ltd.  That contract, on the face of it, looked like a contract for the provision of services.  It was headed Property Portfolio Service Agreement.

Those services appeared to be provided by Mr Craig’s company to BCU for a fee of $385,000.  However, in fact, $120,000 was added to this contract for the actual fee for service, which was therefore more properly viewed as being valued according to this contract at $265,000.

The $120,000 was, by further agreement with Mr Craig, to make its way back to your personal control.  That is, behind that contract, you had a further agreement with Mr Craig that $10,000 would be paid each month by M2M to Lick Lick Pty Ltd.  You persuaded Mr Craig to embark upon this process because you told him that it was a strategy for you to receive money owed to you by BCU, but in a tax-effective way.

It was referred to in some of the correspondence as a salary-sacrificing strategy, and you falsely told Mr Craig that you had the approval of the board to do it.  Mr Wallace, and indeed other members of the board, gave evidence which I accept, that they had no knowledge of this arrangement, and there was no approval for you to filter money from BCU back to you by this series of transactions through a variety of legal entities.

By your dishonest use of your position, your intention was to gain an advantage for yourself, and as a result of this arrangement you received $117,400 in payments of BCU money.  Again, the nature of this arrangement gave rise to a clear conflict of interest which you cannot have failed to appreciate, and yet despite the many opportunities for that to have been disclosed, you failed to do so, leading irresistibly to the conclusion that your intention was in fact a dishonest one.

Again, Mr McCarthy submits that I should conclude that the strategies employed in this count reflected your intention to recover money legitimately owed to you from BCU as a consequence of unpaid remuneration.  I am satisfied beyond reasonable doubt that this was not a legitimate strategy by you with the approval of the chair of the board, or the board more broadly, to access unpaid salary or bonuses which you say were owing to you, but was instead an intentional exploitation of your position to dishonestly gain a benefit.

Whatever the actual state of entitlement for unpaid remuneration and bonuses was, about which I make no finding, this was not about that.  To the extent that it is necessary that I expressly say so, I accept the evidence of Mr Wallace, that he was not aware of this arrangement with M2M, by which you were to receive $10,000 per month.”^[8]

58. [58]
    It is submitted that the trial judge’s findings that the issue of unpaid remuneration was not related to the appellant’s participation in the arrangements with Tuku; and that the strategies employed in respect of the contract with M2M were not a legitimate strategy by the appellant to access unpaid salary or bonuses, were not open.  However, such findings were consistent with the jury’s verdicts and the evidence.
59. [59]
    Contrary to the appellant’s submissions, the prosecution did not concede, as a fact, that the appellant was owed unpaid remuneration.  The Crown case was conducted on the basis that even if there were unpaid sums by way of remuneration, the actions of the appellant in respect of counts 1 and 2 were dishonest.  The jury’s verdicts in respect of each of those counts was consistent with the jury being satisfied, beyond reasonable doubt, that the appellant’s actions were dishonest.
60. [60]
    That the Crown did not concede, as a fact, the existence of unpaid remuneration, is supported by submissions made in the course of the trial and a submission made on sentence that it was unnecessary for the trial judge to make any finding about whether there was a state of entitlement to unpaid remuneration.  For example, the Crown, in its address to the jury, said that it did not matter to the prosecution case whether or not the appellant had been underpaid by the credit union, as the mechanism by which he obtained money from the two entities, through payments to the Lick Lick Trust, was dishonest.^[9]  The Crown also said in submissions on sentence, that “Whatever the case was in relation to whether or not [the appellant] was owed money and as to his rights to be able to do something about it”, came back to the documentation.
61. [61]
    The appellant also submitted that the findings made by the trial judge were contrary to the evidence.  However, the evidence did not establish, as a fact, the existence of unpaid remuneration.  The evidence established that the appellant had raised the existence of unpaid remuneration at various times, including in the course of his discussions when arranging payments by M2M to Lick Lick.
62. [62]
    Finally, it was submitted that the findings made by the trial judge were unnecessary, in circumstances where it was open to the judge to find that it could not be determined whether there was unpaid remuneration.  The difficulty with that submission is that the appellant sought to be sentenced on the basis that the conduct was part of a legitimate strategy to recover unpaid remuneration.  Having regard to that submission, it was incumbent upon the trial judge to consider whether the appellant’s engaging in the dishonest conduct was motivated by the recovery of monies said to be owed to him.
63. [63]
    Further, there was evidence that the appellant controlled the payment of monies and had the means by which he could transparently pay to himself any sums said to be owed to him by way of unpaid remuneration.  That evidence, in the context of the findings of the jury that the appellant had dishonestly used his position to obtain the monies, supported the trial judge’s findings that the conduct in question was not engaged in by the appellant by reason of a motivation to recover unpaid remuneration.
64. [64]
    There was no factual error.

Manifest excess

65. [65]
    To succeed on a ground of manifest excess, it is not enough to establish that the sentence imposed was different or even markedly different from sentences imposed in other cases.  The difference must be such as to conclude that there must have been a misapplication of principle or as to constitute a sentence that was unreasonable or plainly unjust.^[10]
66. [66]
    It is submitted that having regard to the appellant’s personal circumstances, including his lack of prior criminal history and/or loss of employment, it was plainly unjust or unreasonable for the appellant to be required to serve 6 months in actual custody.  There is no merit in this contention.
67. [67]
    The appellant held senior positions in the operation of a credit union.  In those positions, he had control of the entry into contracts by the credit union and the payments of monies by entities contracting with it.  It was a gross breach of the duties owed by him, by reason of that position, for him to engage in conduct not once, but twice, to dishonestly obtain a financial advantage for his benefit.  That conduct warranted condign punishment.  Further, there was a need for a sentence that evidenced denunciation for such conduct and deterred others in a similar position, from engaging in such dishonest conduct.
68. [68]
    When regard is had to those circumstances, neither the head sentence of 18 months, nor the requirement that the appellant serve six months in actual custody, evidences any misapplication of principle.
69. [69]
    Further, a consideration of comparable authorities,^[11] supports a conclusion that a sentence requiring actual custody to be served was not manifestly excessive.  Whilst the sentence in Fellowes did not require actual custody to be served before release on recognizance, Fellowes pleaded guilty and there was a delay of almost 9 years between the offending and sentence.
70. [70]
    The sentences imposed fell within a sound exercise of the sentencing discretion.  They were neither plainly unreasonable, nor unjust.

Orders

71. [71]
    I would order:

1. The appeal against conviction be dismissed.
2. Leave to appeal against sentence be refused.