Acosta v The Queen [2015] VSCA 94

(b) on 18 July 2011, he lodged an ITR in the name of his father, Rafael Acosta ('Rafael Acosta Return'), and an ITR in the name of his mother, Ester Acosta ('Ester Acosta Return');

(c) on 23 July 2011, he lodged an ITR in the name of his friend, Jacob Flinn ('Flinn Return');

(d) on 1 August 2011, he lodged an ITR in the name of his friend, Iwata Takashi ('Takashi Return');

(e) on 15 August 2011, he lodged an ITR in the name of his friend, Bahadir Bigay ('Bigay Return'); and

(f) on 2 July 2012, he lodged an ITR in his own name ('2012 Acosta Return').

5 On each of the ITRs, the declared taxable income, the amount of tax stated to have been withheld by the relevant employer, and/or work related expenses and deductions were knowingly misstated. As a result, each ITR deliberately inflated the tax refund due from the ATO.

6 In all but one of the cases, the taxpayer had authorised the anticipated refund to be paid into one of the applicant's bank accounts. In the case of the Bigay Return, the refund was authorised to be paid into the bank account of a person to whom the applicant owed money.

7 The ATO sent tax refunds to the applicant's bank accounts for the 2011 Acosta Return, the Rafael Acosta Return and the Ester Acosta Return. The total financial advantage fraudulently obtained from these refunds was $33,181.40.

8 The ATO halted the processing of the Flinn Return, the Takashi Return, the Bigay Return and the 2012 Acosta Return. The total financial advantage that would have been obtained fraudulently had these ITRs been processed was $56,601.15.

9 The applicant was suspected of being responsible for the offences the subject of charges 1 to 7 ('ATO charges') from at least August 2012. On 22 November 2012, the informant invited him to participate in a formal interview. However, he declined to do so. The ATO charges were filed on 27 November 2014.

10 A fast-tracked committal mention was held on 17 December 2014 after the applicant's solicitor notified the Crown that the applicant would plead guilty to all of the ATO charges at the earliest possible plea hearing. The applicant entered pleas of guilty to all of the charges on that day.

11 At the time that the applicant committed the offences the subject of the ATO charges ('ATO offences'), he had no prior convictions. However, by the time he was sentenced on those charges, he had accumulated a number of convictions, as detailed below.

12 On 3 October 2012, the applicant was sentenced in the Melbourne Magistrates' Court on six charges of forgery. The charges involved the lodgement, between October 2011 and April 2012, of documents in the name of six women purporting to be voluntary declarations of bankruptcy. The applicant was motivated by revenge - he was spurned by the women - rather than financial gain. He was convicted and sentenced to a community correction order for 12 months with conditions relating to assessment and treatment of his mental health and alcohol abuse, and supervision.

13 On 13 August 2013, Judge Gaynor of the County Court sentenced the applicant on one charge of obtaining financial advantage by deception and one charge of possessing a drug of dependence. The charges related to conduct between November 2011 and April 2012, while the applicant was employed as a business manager at Southern Health ('Southern Health charges'). During this time, he had produced 139 false invoices and, as a consequence, his employer had paid $534,480 into his and his accomplices' bank accounts. Judge Gaynor did not know about the ATO offences as no charges had been filed in relation to them. She sentenced the applicant to 4 years' imprisonment with a non-parole period of 1 year and 6 months.

14 On 18 July 2014, the applicant was sentenced in the Melbourne Magistrates' Court on four charges of making false documents, four charges of using false documents, and one charge of possessing an item to make a false document. These charges involved the making, between 17 October 2011 and 24 October 2011, of a number of false declarations concerning damage to a motor vehicle and a knowingly false insurance claim. He was sentenced to 6 months' imprisonment, wholly concurrent with the term imposed by Judge Gaynor.

15 The Adult Parole Board subsequently granted the applicant parole and his release from prison was scheduled for 4 February 2015. However, on being notified of the ATO charges, the Board revoked its parole order pending finalisation of those charges.

16 The applicant came to Australia with his family from El Salvador in 1988 at about three years of age. His parents operated a cleaning business from about 1992. Throughout his childhood and into his teenage years, he was required to work in the family cleaning business, often for long hours after school.

17 After obtaining a university degree, he worked as a business manager for Southern Health between April 2011 and May 2012, during which time he committed the offences the subject of the Southern Health charges ('Southern Health offences'). Upon his arrest for those offences, his employment with Southern Health was terminated.

18 From his early 20s, the applicant was involved in a peer group whose members used steroids and spent excessively on hotels, drugs, cars and nightclubs. He too fell into a pattern of drug and steroid use. By the time he obtained employment at Southern Health, he was in debt as a result of a significant mortgage, car finance, credit card debt and debts to steroid suppliers. His annual salary of $110,000 could not support his decadent lifestyle.

19 In a clinical report tendered during the hearing before Judge Gaynor and subsequently referred to during the plea hearing for the ATO charges, Wendy Northey, forensic psychologist, relevantly stated:

(a) between July 2012 and July 2013, the applicant attended 26 counselling sessions with Ms Northey;

(b) the applicant's working conditions as a child could arguably be classified as a form of child slavery;

(c) the applicant's father had admitted to alcoholism, coupled with abuse and violence directed towards the applicant;

(d) the applicant's steroid use was symptomatic of deep-seated insecurities, low self-esteem and distorted body-image issues;

(e) the applicant was diagnosed with a personality disorder, together with a mixed episode mood disorder with anxiety, depression and disturbed conduct sufficient to cause marked impairment in his social and cognitive functioning; and

(f) the applicant had made good progress in counselling and his prognosis for overall rehabilitation was positive.

20 The sentencing judge noted that the ATO offences involved premeditation and planning and that the amounts involved were significant.[2] He further stated that these offences were committed in the context of greed, not need, owing to the applicant's extravagant lifestyle.[3] The judge also noted that the applicant's other dishonesty offences occurred over roughly the same period as the ATO offences.[4]

21 The judge referred to Ms Northey's report and accepted that the applicant had reasonable prospects of rehabilitation.[5] In reaching this conclusion, the judge made the following observations:

It should be noted however that [Ms Northey's] report, as I say dated in August 2013, and notwithstanding 26 prior counselling sessions, contains no mention of the offences for which you are currently before the Court and which had been committed well before the date of that report. Nor, for that matter, does it appear that Judge Gaynor was ever made aware of these offences, notwithstanding that police had attempted to interview you in relation to at least some of them in the latter part of 2012.

It certainly could not be said that you put all of your cards on the table in the course of your counselling sessions with Ms Northey or in Court before Judge Gaynor.[6]

22 In respect of the timing and significance of the applicant's guilty plea, the judge made the following observations:

I accept that you made a relatively early plea of guilty, once charges were brought against you. I accept that your plea has a utilitarian value. The costs of a trial have been avoided. A large number of potential witnesses will now not have to give evidence at a trial.[7]

23 The judge stated that he had taken into account the fact that the financial advantage obtained by the applicant had been repaid in full to the ATO, although the repayment had been made by his parents rather than himself.[8]

24 In respect of the delay between the detection of the offending by the ATO and the laying of the ATO charges for that offending, the judge noted that, while the applicant had not actively assisted the investigation by agreeing to participate in an interview with the informant, he had not actively hindered the investigation either.[9] The judge also noted that no explanation had been provided by the prosecutor for the delay.[10] He accepted that, as a consequence of the delay, the applicant lost the opportunity of submitting that the sentence for the ATO offences should be wholly or partially concurrent with the sentence for the Southern Health offences.

25 However, the judge did not accept that, if the ATO charges had been brought at an earlier stage, this would necessarily have resulted in a sentence for the ATO offences that was wholly concurrent with the Southern Health offences. In reaching this conclusion, the judge noted that the ATO charges disclosed offences of a quite different nature than the Southern Health offences.[11] However, the judge said that he took into account the principle of totality.[12]

26 The applicant submitted that the delay was also relevant because it had imposed a psychological burden on him as he knew of the ATO charges from mid-2012 and had been unable to achieve any finality until the plea. This submission was rejected on the basis that the applicant would not have known that the ATO charges were likely to be brought as early as mid-2012.[13] The applicant also submitted that the delay was relevant because his circumstances had changed dramatically since the commission of the ATO offences. The judge rejected this submission on the basis that a substantial part of the period between his commission of that offending and the date of the plea has been spent in custody and, therefore, the absence of any further offending could not, in itself, be demonstrative of any positive change of character or behaviour.[14]

27 The judge accepted that the principle of general deterrence was paramount in offending of this type.[15] Further, he noted that principles of specific deterrence had application in the light of the fact that, over the period of 2011 and 2012, the applicant had demonstrated 'persistent and wanton dishonesty and disregard for the law'.[16]

28 The applicant submitted that the total effective sentence imposed on him was manifestly excessive in the light of the following mitigating factors:

(b) his plea of guilty at the earliest possible stage;

(c) the inordinate and unexplained delay between the detection of the ATO offences and the filing of charges;

(d) his good prospects of rehabilitation; and

(e) the repayment to the ATO of the entire amount of money improperly obtained.

29 In respect of delay, the applicant argued that the judge failed to have regard to the significance of the delay between the ATO's detection of the ATO offences in August 2012 and the filing of the ATO charges on 27 November 2014. The delay was said to be undue because the prosecution had not provided any explanation for it during the plea hearing and, as the judge noted, the applicant had not actively hindered the investigation.

30 The applicant submitted that as a consequence of this undue delay, he lost the opportunity to be sentenced on the ATO charges at the same time that he was sentenced for the Southern Health charges. He contended that, had he been sentenced for all the charges simultaneously, significant concurrency may have been ordered. In support of this contention, he referred to the following considerations:

(a) The ATO offences were less serious than the Southern Health offences because: they related to significantly lesser amounts of money; they were less sophisticated; and they involved the payment of monies into the applicant's account, as opposed to the accounts of his co-offenders.

(b) Although the judge stated that the ATO offences were of a 'quite different nature' to the Southern Health offences, both sets of offences were frauds, both involved the deception of large organisations and both occurred over roughly the same period of time.

(c) The amounts fraudulently received from the ATO were repaid in full.

31 In the light of these circumstances, the applicant submitted that if the judge had had proper regard to the principles of delay and totality, he would have sentenced the applicant to a period significantly less than 2 years' imprisonment and would have made a recognisance release order for release forthwith (or for release after significantly less than the 6 months that was imposed). The applicant contended that it would have been possible to impose a sentence that was, in effect, a fully suspended sentence of imprisonment under s 20(1)(b) of the Crimes Act 1914 (Cth).

32 In respect of the absence of prior convictions, the applicant submitted that the judge made no reference to his lack of prior convictions and failed to draw any distinction between his prior and subsequent convictions. According to the applicant, this was a significant omission in the light of the emphasis that was placed on his lack of prior convictions in both written and oral plea submissions. In those submissions, he contended that, if the offending had been dealt with as a discrete first offence, it would have been open to the Court to impose a non-custodial sentence. This was said to be so because, at the time of the offending, he was 25 years old, the net amount received by him as a consequence of his offending was $33,181 and this amount had been repaid in full to the ATO.

33 In respect of his guilty plea, the applicant contended that the judge had erred in stating that he had pleaded guilty at a 'relatively early' stage when, in fact, he had done so at the earliest opportunity. It was further submitted that the utilitarian value of his guilty plea was significant given the number of witnesses who would have been required to give evidence and the likely protracted nature of committal proceedings and trial.

34 The Crown submitted that the sentence imposed on the applicant was not manifestly excessive, in the light of the following factors:

(a) the paramountcy of general deterrence as a sentencing objective in offences involving defrauding the revenue;

(b) the fact that there were seven distinct and discrete instances of offending;

(c) the offending the subject of charge 7 occurred almost 11 months after the offending represented by charges 1 to 6 and occurred at the very first opportunity presented to the applicant to reoffend in respect of his own taxation return - that is, a day after the beginning of the 2012/2013 financial year;

(d) the fact that the offending involved the use of the names of other individuals;

(e) the fact that the offending involved premeditation and planning;

(f) the fact that the monetary amounts involved were significant;

(g) the fact that the offending the subject of charge 7 occurred while the applicant was facing indictable offences and after he had lost his job for fraud-based offending;

(h) the maximum penalty for each of the seven offences was 10 years imprisonment and accordingly warranted serious punishment;

(i) the fact that the offending was motivated by greed as opposed to need;

(j) the need for specific deterrence given that the applicant demonstrated persistent and wanton dishonesty and disregard for the law during the offending period; and

(k) relatedly, the fact that the other dishonesty offences were committed at around the same time as the ATO offences.

35 The Crown also submitted that the sentence took into account and gave adequate weight to the following mitigating factors relevant to the applicant:

(a) his unusual and hard upbringing as a child and as a youth, his family background and personal circumstances;

(b) the fact that he had pleaded guilty at the earliest possible opportunity. This was said to be so, notwithstanding the judge's use of the term 'relatively early', because the judge had been advised that the period between the filing hearing and plea was expedited and, therefore, the judge was best seen to have accepted the submission;

(c) the fact that the money obtained had been fully repaid;

(e) the difficulty he would have in obtaining future employment which involved a position of trust; and

36 In respect of delay, the Crown contended that the judge was right to conclude that, while there was a delay and the applicant's opportunity to make a submission as to concurrency was lost, this did not mean that the result would have been a sentence for the ATO offences that was wholly concurrent with the sentence for the Southern Health offences. The Crown argued that the offences the subject of the ATO charges were of a quite different nature to the other dishonesty offences and, further, by not having the matters dealt with at the same time, the applicant gained the benefit of being able to submit to Judge Gaynor that his rehabilitation was genuine. According to the Crown, the mitigatory effect of the twin considerations of rehabilitation and fairness that usually resulted from undue delay were not relevant to the applicant for the reasons outlined by the judge and set out at [26] above.

37 In respect of the applicant's contention that the judge failed to have regard to his lack of prior convictions at the time of the ATO offences, the Crown noted that, on the plea hearing, it was made clear that he had no prior convictions and discussion took place on the limited manner in which subsequent convictions could be used.

39 The judge was correct in concluding that the applicant's offending was serious and warranted a substantial head sentence in view of its premeditated nature, the significant amounts involved, the lengthy period over which the offending occurred and the motivation of greed. In the light of all the circumstances of the offending, including the mitigating and aggravating factors upon which the applicant and the Crown respectively relied, an aggregate sentence of 2 years' imprisonment was well within the range of sentences reasonably open to the judge.

40 The applicant placed particular reliance on delay. It is well established that the effect of undue delay between the time that the offending is detected and the time of sentencing, insofar as it is not attributable to the offender, is a relevant sentencing consideration. Depending on the circumstances, lengthy delay may cause unfairness and hardship because the offender will have the prospect of incarceration hanging over his or her head. Such delay may also enable the offender to demonstrate that he or she has complied with the law since the offending for which he or she is to be sentenced, such that less weight needs to be given to specific deterrence, and has taken effective steps towards rehabilitation. In such cases, delay would ordinarily warrant a discount to the sentence that would otherwise have been imposed.[17]

41 In the present case, the judge referred to the lengthy delay and noted that the prosecution failed to provide any explanation for it. It follows that the judge took the delay into account in determining the applicant's sentence. The judge did not err in concluding that the fact that the applicant was in custody for a large part of the period of the delay serving the sentence imposed by Judge Gaynor, limited his opportunity to demonstrate rehabilitative conduct. The judge was also correct in his assessment of the time at which the applicant was likely to have become aware of the prospect of being charged and incarcerated for the ATO offences.

42 The applicant's main complaint in relation to delay was about the way the judge took it into account in the context of the totality principle. That principle requires that, where a court sentences an offender for multiple offences, the overall sentence must be a 'just and appropriate measure of the total criminality involved'.[18] The principle is also applicable where an offender is sentenced while he or she is serving a sentence of imprisonment for other offences, as in the present case, or upon release, as in the case of Mill v The Queen.[19] In such situations, in fixing the head sentence and a non-parole period, the sentencing judge must take into account the earlier sentence in determining what is a just and appropriate sentence.[20]

43 In the present case, the judge took into account the sentence that had been imposed on the applicant by Judge Gaynor in determining the sentence to be imposed on him for the ATO offences. In our opinion, the judge properly applied the principle of totality.

44 We agree with the judge that, even if there had not been any delay in relation to the ATO charges and he had been sentenced for those charges at the same time as the Southern Health charges, it would not have necessarily followed that the sentence for the ATO charges would have been wholly concurrent with the sentence for the Southern Health charges. We would go further. In our opinion, there was no realistic prospect that there would not have been considerable cumulation for the ATO charges.

45 The offending that comprised the ATO charges was different in nature to offending that comprised the Southern Health charges. The target of the fraud in relation to the ATO charges was the public revenue whereas the victim of the offences for which the applicant was sentenced by Judge Gaynor was Southern Health. The frauds that were perpetrated in both cases were serious and involved careful planning, offending over a protracted period and substantial amounts of money. The frauds also involved distinct breaches of trust; in the one case, the applicant breached the trust of his employer whereas in the present case, he breached the trust placed in him by his parents and acquaintances in relation to their ITRs.

46 The applicant's culpability in relation to the offending that comprised charge 7 was particularly high because he lodged a false ITR for himself after he had been arrested for the fraud that he had committed on Southern Health. The fact that he committed the offence a mere two days after the end of the 2012 financial year strongly indicates that the offending was carefully planned and that the applicant had not been the least deterred by the prospect that he would be incarcerated for the fraud against Southern Health.

47 In these circumstances, if the applicant had been sentenced at the same time for the ATO charges and the Southern Health charges, the proper exercise of the sentencing discretion would have precluded total concurrency in relation to the ATO charges and required considerable cumulation for those charges. The sentence that the judge imposed for those charges did not offend the totality principle and was entirely appropriate.

48 We reject the applicant's submission that the judge's failure to refer to the absence of prior convictions meant that he failed to take this into account and that this contributed to the sentence being manifestly excessive. On the plea, the applicant's counsel submitted that he was to be sentenced as a person without any prior convictions and this was not disputed by the Crown. The judge's sentencing remarks accurately set out the sequence of events in relation to the ATO offences and the timing of the sentences for all the other offences, and thus indicate that the judge was well aware that the applicant did not have any prior convictions at the time that he committed the ATO offences. In these circumstances, the only reasonable inference that is open is that the judge sentenced the applicant on that basis.

49 We also reject the applicant's submission that the judge erred in relation to the timing of his guilty plea. As we have stated at [10] above, after the applicant was charged on 27 November 2014, a committal mention was fast-tracked to 17 December 2014 so that he could enter his plea. The judge was informed of these events at the plea hearing. The judge's observation that the applicant 'made a relatively early plea of guilty, once charges were brought against [him]' must be seen in the context of these events. What the judge sought to convey was that, once the applicant was charged, he acted expeditiously in pleading guilty. This is consistent with the applicant having pleaded at the earliest possible opportunity, which was common ground on the plea. Furthermore, as indicated by the declaration under s 6AAA of the Sentencing Act 1991, the judge gave the applicant an appropriate discount for his guilty plea and expressly acknowledged its utilitarian value.

Ground 3: The applicant's subsequent convictions

50 Ground 3 was only faintly pressed and, during the course of oral argument, all but abandoned. Nevertheless, as it was developed in the parties' written submissions, we will deal with it.

51 The applicant argued that the judge had failed to distinguish between his prior and subsequent convictions and failed to explain the impact of his subsequent convictions on the construction of the sentence. Given the similarity between the ATO offences and the Southern Health offences and the significant sentences of imprisonment imposed in relation to the latter offences, the judge's failure to explain the impact of those offences on the construction of the sentence was said to represent a significant failure. The applicant also contended that the judge had placed more weight on the applicant's subsequent convictions than he was entitled to and had inappropriately sentenced him to a longer period of imprisonment than would otherwise have been imposed.

52 The Crown submitted that there was nothing in the sentencing remarks to indicate that the subsequent offences were used to increase the length of the sentence imposed on the applicant. The Crown noted that, at the plea, the judge was advised of the applicant's lack of prior convictions and the way in which subsequent convictions could be taken into account, to which no objection was raised. Accordingly, it was submitted that the lack of reference in the sentencing remarks to the way in which the subsequent offences affected the construction of the sentence could not constitute a 'significant failure'.

53 In our opinion, the applicant's complaints about the judge's sentencing remarks are contradictory. On the one hand, the applicant alleges that the judge gave more weight to the applicant's subsequent offending than was proper, while on the other, he asserts that the judge did not explain how he took that offending into account. A fair reading of the sentencing remarks indicates that the judge did not take into account the applicant's subsequent offending as an aggravating factor. He did, however, consider it in assessing the mitigating circumstances upon which the applicant relied, including his prospects of rehabilitation. The judge was entitled to do so.

54 The relevance of subsequent offending to the exercise of the sentencing discretion was described as follows by King CJ in R v McInerney:[21]

Where the other offences have been committed after the immediate offence, they are relevant only in special circumstances. The offender has not committed the immediate offence with his character already affected by the offences nor after the experience of conviction. In circumstances, however, in which the offender might otherwise have been given credit for having lived a law abiding life in the period between crime and sentence, it is relevant that he has not so lived but has committed an offence or offences in that period. In some circumstances, the nature of the subsequent offences may be such as to suggest that a greater degree of personal deterrence than would otherwise have been contemplated, is required.[22]

So far as subsequent offences are concerned, they cannot justify the court in imposing a higher sentence than the instant offence intrinsically merits, but they might well lead the court to conclude that any leniency to the defendant would be misplaced. As always, of course, it will depend upon the circumstances of the particular case.[23]

56 In R v Rumpf, McGarvie J (with whom Young CJ and Murray J agreed) stated the relevant principles as follows:[24]

While the Court has regard to the whole of the offender's antecedents in making decisions in respect of a minimum term it is not entitled to use convictions occurring later than the relevant offence, for the purpose of increasing the length of the head sentence which would otherwise be imposed: R v Wilson [1956] VicLawRp 31; [1956] VLR 199; R v Poulton [1974] VicRp 85; [1974] VR 716, at p. 720. While convictions later than the offence can not be used positively to increase the head sentence which would, in the absence of considerations personal to the offender, otherwise be imposed, they may be used, in my opinion, to negate, reduce or qualify an inference as to the offender's later conduct which would otherwise arise and operate in mitigation of sentence. In this way they may prevent a reduction of the sentence which would be imposed in the absence of the mitigating inference.[25]

57 The principles set out in R v McInerney were discussed during the plea and there is nothing in the judge's sentencing remarks to suggest that he departed from them. The applicant's subsequent offending was clearly relevant to the weight to be given to the matters put to the judge in support of the applicant's prospects of rehabilitation. Clearly, the judge would have been entitled to have less confidence in the applicant's prospects of rehabilitation in the light of his subsequent offending. However, it appears that the judge did not give much weight to the applicant's subsequent offending in assessing his prospects of rehabilitation, as he concluded that those prospects were reasonable.

59 For the above reasons, the application for leave to appeal is refused.

[1] On the hearing of the application, the applicant abandoned Ground 2.

[2] DPP (Cth) v Acosta (Unreported, County Court of Victoria, Judge Smith, 18 February 2015) [28] ('Reasons').

[10] Reasons [45]. On the hearing of the application, the Crown informed this Court that the Office of the Commonwealth Director of Public Prosecutions was solely responsible for the delay.

[17] See R v Miceli [1997] VSC 22; [1998] 4 VR 588, 591-2; R v MWH [2001] VSCA 196, [18]; R v Nikodjevic [2004] VSCA 222, [21]-[22]; Arthars v The Queen (2013) 39 VR 613, 620-3 [23]-[32].

[18] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307-8.

[19] [1988] HCA 70; (1988) 166 CLR 59, 65-7.

[20] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 65-7.

[21] (1986) 42 SASR 111.

[22] R v McInerney (1986) 42 SASR 111, 113.

[23] R v McInerney (1986) 42 SASR 111, 124.

[24] [1988] VicRp 55; [1988] VR 466.

[25] R v Rumpf [1988] VicRp 55; [1988] VR 466, 475.