Findings of corrupt conduct
The ICAC found that Phillip Cresnar engaged in corrupt conduct by:
- accepting benefits to the value of at least $97,756 from Mr Bastow
- accepting $2,500 from Mr Madden and Mr McGann
as an inducement or reward for Mr Cresnar exercising his public official functions as an Ausgrid employee to show favour, or not to show disfavour, to their businesses in relation to their work for Ausgrid
- accepting benefits from Mr Twomey to the value of $50,506, the use of a Bunnings trade card and the use of a Murray Civil company car
- accepting four cheques from Mr Burke which Mr Cresnar used to purchase goods for his personal use to the value of $99,327
- accepting two international airline tickets worth a total of $2,652.41 from Mr Miskelly
- knowing that these benefits were intended to influence Mr Cresnar to exercise his public official functions to show favour, or not to show disfavour, to their businesses in relation to their work for Ausgrid.
Jason Bastow, John Madden and Fergal McGann engaged in corrupt conduct by providing the above benefits to Mr Cresnar in the case of Mr Bastow and Mr McGann, and in the case of Mr Madden by being a party to an agreement whereby Mr McGann gave the $2,500 to Mr Cresnar, as an inducement or reward for Mr Cresnar exercising his public official functions as an Ausgrid employee to show favour, or not to show disfavour, to their businesses in relation to their work for Ausgrid.
Dennis Twomey, Eamon Burke and Patrick Miskelly engaged in corrupt conduct by providing the above benefits to Mr Cresnar knowing that these benefits were intended to influence Mr Cresnar to exercise his public official functions to show favour, or not to show disfavour, to their businesses in relation to their work for Ausgrid.
Recommendations for prosecutions
The Commission must seek the advice of the Director of Public Prosecutions (DPP) on whether any prosecution should be commenced. The DPP determines whether any criminal charges can be laid, and conducts all prosecutions. The Commission provides information on this website in relation to the status of prosecution recommendations and outcomes as advised by the DPP. The progress of matters is generally within the hands of the DPP. Accordingly, the Commission does not directly notify persons affected of advice received from the DPP or the progress of their matters generally.
The ICAC is of the opinion that the advice of the Director of Public Prosecutions should be obtained with respect to the prosecution of:
- Phillip Cresnar for offences of receiving corrupt commissions or rewards pursuant to section 249B(1)(a) of the Crimes Act 1900 in relation to the benefits he received from Messrs Bastow, Madden and McGann; offences of receiving corrupt commissions or rewards pursuant to section 249B(1)(b) of the Crimes Act in relation to the benefits he received from Messrs Twomey, Burke and Miskelly; attempting to procure the giving of false testimony at a compulsory examination or public inquiry contrary to section 89(a) of the Independent Commission Against Corruption Act 1988 in relation to a letter sent to Mr Bastow; giving false or misleading evidence at a compulsory examination on 17 April 2014, contrary to section 87(1) of the ICAC Act, in relation to his evidence that he had done nothing in exchange for the benefits that were provided to him by Mr Bastow.
- Dennis Twomey for offences under section 249B(2)(b) of the Crimes Act in relation to the benefits he supplied Mr Cresnar; and an offence under section 114(1) of the ICAC Act of disclosing information about a Commission summons that was likely to prejudice a Commission investigation.
- Eamon Burke for offences under section 249B(2)(b) of the Crimes Act in relation to the four cheques he supplied to Mr Cresnar; and an offence under section 112 of the ICAC Act for disclosing information about his attendance at a compulsory examination.
- Patrick Miskelly for a offences under section 249B(2)(b) of the Crimes Act in relation to the airline tickets he supplied to Mr Cresnar.
- John Madden and Fergal McGann each for an offence under section 249B(2)(a) of the Crimes Act in relation to the $2,500 payment to Mr Cresnar.
A brief of evidence was provided to the DPP on 17 July 2015.
Updates
On 18 July 2017, the DPP advised that there is sufficient evidence to charge the following people with the following offences:
- Phillip Cresnar for offences of receiving corrupt commissions or rewards pursuant to section 249B(1)(a) of the Crimes Act in relation to the benefits he received from Messrs Bastow, Madden and McGann; offences of receiving corrupt commissions or rewards pursuant to section 249B(1)(b) of the Crimes Act in relation to the benefits he received from Messrs Twomey, Burke and Miskelly; attempting to procure the giving of false testimony at a compulsory examination or public inquiry contrary to section 89(a) of the ICAC Act in relation to a letter sent to Mr Bastow; giving false or misleading evidence at a compulsory examination on 17 April 2014, contrary to section 87(1) of the ICAC Act, in relation to his evidence that he had done nothing in exchange for the benefits that were provided to him by Mr Bastow.
- Dennis Twomey for offences under section 249B(2)(b) of the Crimes Act in relation to the benefits he supplied Mr Cresnar; and an offence under section 114(1) of the ICAC Act of disclosing information about a Commission summons that was likely to prejudice a Commission investigation.
- Eamon Burke for offences under section 249B(2)(b) of the Crimes Act in relation to the four cheques he supplied to Mr Cresnar; and an offence under section 112 of the ICAC Act for disclosing information about his attendance at a compulsory examination.
- Patrick Miskelly for offences under section 249B(2)(b) of the Crimes Act in relation to the airline tickets he supplied to Mr Cresnar.
- John Madden for an offence under section 249B(2)(a) of the Crimes Act in relation to the $2,500 payment to Mr Cresnar.
- Fergal McGann for an offence under section 249B(2)(a) of the Crimes Act in relation to the $2,500 payment to Mr Cresnar.
On 1 February 2018, Mr Burke entered a plea of guilty. On 29 May 2018, he was sentenced to an intensive corrections order for a period of 12 months.
Mr Madden and Mr McGann appeared at the Downing Centre Local Court on 17 April 2018. Following a plea of guilty, and after a number of adjournments, on 7 August 2018 they were each sentenced to an intensive correction order for a period of 7 months.
Mr Twomey pleaded guilty to his charge and on 27 September 2018 he was sentenced to an intensive correction order for a period of 8 months.
On 23 November 2018, both Mr Cresnar's and Mr Miskelly's matters were set down for trial at the Sydney District Court on 14 October 2019.
On 3 October 2019, the charges against Mr Miskelly were withdrawn on the basis that there were no reasonable prospects of success.
On 14 October 2019, Mr Cresnar pleaded guilty to three of the Crimes Act charges in relation to receiving corrupt commissions or rewards from Messrs Bastow, Burke and Twomey. The three other Crimes Act charges were withdrawn. The charges under the ICAC Act against Mr Cresnar proceeded to hearing on 28 October 2019. On 1 November 2019, Mr Cresnar was found guilty of the charge against section 89(a) of the ICAC Act and not guilty of the charge against section 87(1) of the ICAC Act. The matters against Mr Cresnar were adjourned for sentence at the Albury District Court on 27 July 2020. Mr Cresnar’s sentencing hearing was heard on 27 July 2020, and was adjourned to 10 August 2020 for judgment.
On 10 August 2020, Mr Cresnar was sentenced to an aggregate term of 30 months imprisonment to be served by way of an Intensive Corrections Order (ICO). The ICO includes orders that 150 hours of community service be completed and that Mr Cresnar be supervised by Community Corrections during the term.
Recommendations for disciplinary action
Phillip Cresnar resigned from his position at Ausgrid prior to disciplinary action being instigated. The ICAC, therefore, makes no recommendation in relation to the consideration of disciplinary or dismissal action.
Recommendations for corruption prevention
The Commission has made three corruption prevention recommendations to Ausgrid as follows:
Recommendation 1
That, in the short term, Ausgrid tightens processes within the existing system for contract cable laying work orders to reduce existing corruption opportunities. In this regard, Ausgrid should focus on processes for approving variations, tightening the scope and budget for work order contracts, and reducing opportunities for individual officers to control key tasks, including the selection of contractors.
Recommendation 2
That Ausgrid improves its data management and retention systems. Data capture should, as a minimum, be able to provide Ausgrid with the capability to establish unusual expenditure patterns, improve the accuracy of estimates for work orders, capture information on environmental and site conditions to inform project design and budgeting, and help to establish cost benchmarks.
Recommendation 3
That Ausgrid considers and adopts the optimum contracting model to deliver contract cable laying work. Central to this consideration should be the alignment of Ausgrid and contractor motivations, Ausgrid's current operating environment, and the efficiency and effectiveness of any such contracting model.
Implementation Plan
The implementation plan posted below has been provided by Ausgrid in response to the ICAC's corruption prevention recommendations. It's appearance here is for information only and does not constitute the approval or endorsement of the plan by the Commission.
Implementation plan - Ausgrid
12 Month Implementation Plan
The Commission recognises that Ausgrid has made considerable headway towards the implementation of the three corruption prevention recommendations. In regards to the final recommendation, the Commission acknowledges that Ausgrid has considered an optimum contracting model, but that it remains to be adopted. The Commission accepts the Ausgrid has declared the adoption of the contracting model as imminent. Nonetheless, the Commission is of the opinion that the achievement of Recommendation 3 remains outstanding and, thus, Ausgrid has been asked to provide a further and final implementation plan in 12 months time.
12 months Implementation Plan - Ausgrid