Court of Appeal (WA)|2003-11-06|Before: Malcolm CJ

Beard v The Queen [2003] WASCA 262 (6 November 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BEARD -v- THE QUEEN [2003] WASCA 262

Criminal law - Appeal - Sentence - Fraud upon Commonwealth - Unauthorised and false income tax returns - Sentence of 9 years imprisonment 4 1/2 years non-parole period - Elaborate scheme involving over 300 separate acts of fraud over 3 years - Whether sentence manifestly excessive - Late plea - Overwhelming prosecution case - Sentence not excessive

Crimes Act 1914 (Cth), s 29D, s 16A, s 29B, s 19AF

Respondent : Commonwealth Director of Public Prosecutions

Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527

DPP v Hamman, unreported; CCA SCt of NSW; 1 December 1998

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295

Nguyen & Phan [1997] 1 VR 386

R v Cappadona (2110) [2001] NSWCCA 194; 47 ATR 317

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

1 MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be dismissed for the reasons to be published by Parker J with which I agree. There is nothing I would wish to add.

2 STEYTLER J: I have had the advantage of reading the reasons for decision of Parker J. I agree with them and with his Honour's conclusion that the application for leave to appeal should be dismissed. There is nothing I wish to add.

3 PARKER J: Allan Charles Beard seeks leave to appeal against a sentence of 9 years imprisonment, to commence from 16 August 2002 with a non-parole period of 41/2 years, imposed on him by Viol DCJ on 29 August 2002.

4 The applicant had been convicted on his own plea of guilty of one count of engaging in organised fraud, contrary to s 83(1) of the Proceeds of Crime Act 1987 (Cth). The offence had been committed between 29 May 1997 and 16 March 2000. The applicant had defrauded the Commonwealth by lodging with the Commissioner of Taxation unauthorised and false Income Tax Returns and Amended Income Tax Returns.

5 In March 2000 the Australian Tax Office ("ATO") commenced an investigation which led to the applicant being charged on 5 April 2000. His assets were frozen at that time. A preliminary hearing was conducted in July 2001 and an indictment was lodged with the District Court on 2 October 2001. The applicant was arraigned on that indictment on 5 October 2001. It was not until 9 August 2002 that the applicant, by his solicitors, indicated that a plea of guilty to the indictment would be entered. The applicant pleaded guilty a week later on 16 August 2002, when a plea in mitigation was heard by Viol DCJ.

6 By s 83 of the Proceeds of Crime Act 1987 the offence of engaging in organised fraud is punishable by a fine not exceeding $250,000, or imprisonment for a period not exceeding 25 years, or both. Engaging in organised fraud occurs where a person engages in acts that constitute three or more public fraud offences from which the person derives substantial benefit. A public fraud offence is defined to include an offence contrary to s 29D of the Crimes Act 1914 (Cth). By s 29D a person who defrauds the Commonwealth is guilty of an indictable offence.

7 At the times relevant to this offence the applicant was employed in a clerical capacity by a chartered accountant and registered tax agent, Mr N J Watson, who practised in Geraldton. The applicant also conducted on his own account a business called Midwest Bookkeeping Services ("Midwest"). Although not a registered tax agent, as Midwest the applicant prepared and lodged tax returns for clients.

8 Over the period of approximately three years identified in the indictment the applicant defrauded the Commonwealth of amounts totalling some $600,000. He did this by submitting false income tax returns, some being amended returns, to the Commissioner of Taxation. These returns were submitted electronically using Mr Watson's electronic equipment. Some 310 false returns were submitted altogether. All told the returns were in the names of 192 taxpayers; in many cases more than one false return was submitted for a taxpayer, the returns being for different taxation years. The returns were false because they were made without the knowledge or authority of the taxpayer and because they contained false claims for either a sole parent rebate, or a zone allowance, or both. The majority of the taxpayers were clients of Mr Watson, but approximately 50 were the applicant's own clients in his business Midwest.

9 In respect of the clients of Mr Watson, by virtue of his employment the applicant gained access to Mr Watson's computer records of taxpayers. Using that information, the applicant carefully selected appropriate taxpayers and prepared and lodged electronically the false returns. The false returns prepared by the applicant claimed a sole parent rebate for clients who did not have children and a zone rebate for clients who did not reside in a remote region. In some cases where Mr Watson had prepared an annual return for lodgement, the applicant would amend that return to include the false claim or claims, and then lodge it in the amended form. In other cases the applicant would lodge an amended return after a return prepared by Mr Watson had been lodged and a notice of assessment had issued. By virtue of the false claims the ATO issued an assessment notice or an amended assessment notice which allowed the amount or amounts claimed for sole parent or zone rebates, and issued either a refund cheque or a further refund cheque with the notice.

10 Because of his role as an employee of Mr Watson's, the applicant was able to divert notices and cheques which were affected by the false claims. He had devised a complex procedure to facilitate this and to avoid detection. In particular he made use of different postal box numbers. The ATO cheques were deposited into a bank account operated by the applicant in the name of Midwest. Where the client was expecting a refund cheque, a cheque would then be drawn by the applicant for the amount which Mr Watson had advised the client to anticipate. That cheque was sent to the client by the applicant, who retained the balance. Where the false claim was lodged as an amended return the applicant kept the total amount of the additional refund received. Similar methods were followed in respect of clients of Midwest. The applicant lodged the returns of his Midwest clients electronically using Mr Watson's equipment.

11 The effect of the procedures adopted by the applicant was that the clients of Mr Watson and of Midwest, in whose name false returns had been lodged with the ATO, had no knowledge of the false returns and did not receive the amounts paid by way of refund cheque by the ATO in respect of these false returns. Mr Watson was unaware of what was occurring. At the time of investigation the applicant had been able to divert to his own use the proceeds which, as indicated, then totalled some $600,000 over three years.

12 This money was used by the applicant for personal purposes. He was aged between 25 years and 28 years when the offences were committed. He had married in April 1998. Uses to which these moneys were put included:

• establishment of a business by the applicant known as Odyssey Signs,

• purchase for some $200,000 of premises in Geraldton for Odyssey Signs,

• funding of a go-cart hobby which was involved a team of drivers with support vehicles, uniforms, etc. To cover up the large amounts of money the applicant committed to the go-cart hobby he falsely claimed to associates that he had secured corporate sponsorship and he had sponsorship logos painted on the go-carts and a support vehicle and provided appropriately logoed uniforms for the drivers.

13 By virtue of the use to which the applicant had applied much of the proceeds of his fraud on the ATO, it proved possible for the Commonwealth to recover, by way of forfeiture of assets, property valued in the order of $360,000, leaving a balance of some $240,000 outstanding. A reparation order was also made in favour of the Commissioner of Taxation but at the time of this hearing there had been no reduction of the amount outstanding.

14 In summary it is contended by the grounds that the sentence imposed of 9 years imprisonment was manifestly excessive in all the circumstances. In particular it is contended that his Honour failed to give any, or sufficient, weight to matters personal to the applicant, his plea of guilty, and to the orders for forfeiture and reparation made by his Honour.

15 In submissions in support of these grounds it is contended that the learned sentencing Judge commenced his consideration of sentence with an expressed starting point of 10 years imprisonment, which in the circumstances it is submitted is too high, and allowed only one year in respect of mitigatory factors. It is submitted that, in combination, the mitigatory factors warranted a more significant allowance. Hence, it is submitted, that the sentence imposed should be set aside and a lesser term of imprisonment substituted. It is further submitted that the minimum term of 41/2 years is too high and that a new minium term should be substituted, fixed at about half of the new head term.

16 The nature of the applicant's criminal conduct have been sufficiently outlined in what has been set out in these reasons. His conduct was serious indeed. It occurred over a prolonged period of some three years and involved over 300 separate acts of fraud. These were perpetrated on the revenue of the Commonwealth and involved skilfully planned and meticulously executed deception against the ATO, his employer Mr Watson, the clients of Mr Watson and Midwest, and the bank at which he conducted the account of Midwest. The picture is one of blatant and repeated fraud involving breaches of trust over a prolonged period. The deliberate nature of his fraudulent conduct is evident from the care taken to select taxpayers in respect of whom the false returns would appear legitimate to the ATO, and the devious procedures followed to enable the applicant to keep the money and to avoid detection. His deliberation was further evidenced by such things as the increased frequency of the submission of false returns at times when he had a particular need for funds, eg when he wished to purchase a property, and his false claims of corporate sponsorship for his go-cart hobby so that the extent to which he had access to funds was not apparent to others.

17 While the offences involved a fraud on the ATO, the applicant's conduct is more serious indeed than the mere submission of false personal returns by an individual. His conduct had the effect of placing the 192 clients in whose name he had lodged false returns at risk as, on the face of it, they had lodged false returns. As a consequence, their affairs were subjected to investigation. Further, the applicant's conduct had the effect of bringing Mr Watson and other members of his staff under close scrutiny as the ATO pursued its investigations. In this respect, it must be noted that the applicant did not cooperate with the investigators and made no admissions until there was an indication of his intended plea of guilty in August 2002. This was some 2 years and 4 months after he was first charged. In that time he was on bail and employed in a business of his parents. The effect was personally and professionally devastating for Mr Watson who, effectively, has been forced to abandon his practice.

18 It is to be noted, however, that initially in April 2000 the charge was in respect of sums totalling some $780,000, which had been reduced to some $600,000 after detailed and exhaustive investigations by the time of the committal hearing in July 2001. Had there been earlier and frank cooperation, the amount finally charged could have been determined more readily and much earlier.

19 Because of the failure of the applicant to admit his conduct and to cooperate with the investigators, the task of investigation was very substantial indeed. We are told that the brief extended over some 400 lever arch volumes and some 5,000 documents had been readied to be exhibited.

20 It is relevant, when assessing the seriousness of the applicant's conduct, that the only apparent motivation for his conduct was personal greed and a preference for an extravagant standard of living well beyond his true means. The fraudulent conduct continued over a prolonged period and was regulated to satisfy the applicant's varying financial needs from time to time. The applicant was continuing to practice fraud on the ATO at the time that the investigation commenced. Thus, he had displayed no sign of an appreciation of the seriousness of his wrong doing and he had made no attempt to desist.

21 The essence of this appeal is that the sentence imposed, including the non-parole period, is manifestly excessive. While the second ground contends there was a failure to give any, or any sufficient, weight to certain matters, in this particular case that is in truth by way of particulars to the contention that the sentence is manifestly excessive.

22 In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325 Gleeson CJ and Hayne J said:

"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive."

It is important that this Court bear in mind what was said by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672:

" ... a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic; House v The King [1936] HCA 40; (1936) 55 CLR 499. The discretion which the law commits to sentencing judges is of vital importance to the administration of our system of criminal justice."

23 His Honour canvassed the facts of the case and the matters personal to the applicant, in particular those which might count in mitigation of sentence, in a manner to which no objection is taken. It is made clear by his sentencing comments that full attention was given to the requirements of s 16A of the Crimes Act. His Honour went on to say:

"Finally, there is a need, of course, for general deterrence in any sentence for offences of this nature. People must be aware that defrauding the public purse on the scale you did must, if detected, meet with severe punishment. I have been referred to a number of authorities involving a variety of sentences; these are only a guide, every matter must be looked at on its individual merits.

The circumstances and various particular factors, which I have already referred to, make this one of the worst of its kind, that is to say, the seriousness of it and the relative lack of mitigating factors. The starting head sentence, in my view, should be 10 years imprisonment. I will take off one year for the various mitigating factors, making a term of 9 years imprisonment."

24 With respect to matters personal to the respondent and mitigating factors, the applicant was some 31 years of age when he was sentenced. He was a married man with a dependent wife and infant son. He had not previously been convicted of any offence and there were a number of members of the community who had provided references to the sentencing Judge speaking of the respondent's standing and community activities. While those matters must weigh in his favour, their force was of course weakened in a significant degree by his conduct, the subject of the present conviction, as this involved repeated ongoing fraudulent activity over some three years. The applicant had married during the period of the offence. Following his arrest he had been employed in a business conducted by his parents and that remained the position until he was sentenced. I would add that the information available to this Court would indicate that since his imprisonment he has been an industrious and well behaved prisoner. As the learned sentencing Judge observed, there were good prospects for the applicant's rehabilitation upon eventual release from prison, especially as he was in the fortunate position to be able to expect to resume work in the family business.

25 The applicant had pleaded guilty in August 2002. This was some two years and four months after being first charged. The plea was clearly not an early plea. In fact, the matter was ready for trial in August 2002 although a trial date had not been finally fixed as the Chief Judge of the District Court was making efforts to encourage both parties to resolve some evidentiary matters in the hope that this would lessen the length of the anticipated three month trial. The plea of guilty undoubtedly avoided a lengthy trial and avoided the need for a very large number of witnesses to give evidence. In these respects the plea of guilty was properly to be weighed in mitigation of sentence. The learned sentencing Judge expressly recognised this and weighed the relevance of the plea and its lateness to the sentencing discretion. He observed that it was not an early plea of guilty that would evidence obvious remorse and contrition, and that because of the applicant's attitude until August 2002, what his Honour described as "massive amount of work" was necessary to ready the case for trial. This work included the need for a number of direction hearings. His Honour was persuaded, nevertheless, that he could accept that the plea of guilty "finally involves your acceptance of your responsibility for this offence and your conduct and at last you were willing to facilitate the course of justice". As his Honour went on to observe, however, there was "overwhelming evidence" against the applicant, evidence which had been marshalled with a very great deal of effort. The strength of the prosecution case, which I would think is correctly described as compelling such that conviction was virtually inevitable, together with the lateness of the plea of guilty, lessened the weight properly to be given to the plea of guilty in mitigation of punishment.

26 I would take the view that it is clear from his sentencing comments that his Honour gave careful consideration to the applicant's plea of guilty and did not err in principle in his consideration of the relevance and the weight that should be attached to it in the circumstances of this case.

27 It is also to be noted that both to his Honour and to this Court the explanation offered for the lateness of the plea of guilty was that the applicant desired to remain with his wife and baby particularly, during the very early stages of the baby's development. From the viewpoint of the applicant this may well be an understandable consideration. It does not, however, provide any indication of true remorse or contrition and indicates that the applicant was minded to place considerations personal to himself ahead of other considerations.

28 It is further submitted in support of both grounds that there was a failure to taken into account, or adequately into account, the forfeiture and reparation orders made. Contrary to the submission his Honour did refer directly in the course of his sentencing remarks to the forfeiture order. Further, it was his Honour who, on 16 August 2002 had made both the reparation and the forfeiture orders on the application of the prosecution. They were clearly to his Honour's mind. The forfeiture order was made pursuant to statutory powers in respect of assets of the applicant which had been frozen by court order from the time of the applicant's arrest. As has been indicated, these assets included bank accounts, real and personal property. We were informed the forfeiture order did not extend to the residence of the applicant, but included commercial properties which he had purchased with some of the proceeds of his criminal conduct. As his Honour expressly did observe the consequence was the recovery of a sum then estimated at about $361,000, which would leave a shortfall of about $240,000 from the total amount obtained by the applicant by means of his fraudulent conduct. The submission of the applicant seeks to lay much stress on this. There is no doubt that the effect of the forfeiture has been to lessen the amount presently outstanding to some $240,000. It is not the position, however, that this involved voluntary repayment by the applicant in mitigation of the harm his criminal conduct caused. These assets were frozen and then forfeited pursuant to statutory process over which the applicant had no control. The circumstances indicate clearly enough, however, that the property seized and forfeited, both personal and realty, was acquired by the applicant by virtue of the proceeds of his criminal conduct.

29 A reparation order was also made pursuant to statutory powers. No payment has yet been made. It may be anticipated that some repayment will come to be made after the applicant is released from prison and resumes employment. It is not the case, however, that by virtue of the forfeiture and reparation orders the applicant should be taken to have effected repayment of the amounts obtained by his fraud, which seemed to be the implication of submissions made in this respect. As his Honour correctly observed of the outstanding amount of some $240,000, "Whether this is recovered remains to be seen."

30 It is clear from the sentencing remarks that his Honour was well aware of, and weighed, both the forfeiture order and the reparation order, and specifically and correctly proceeded on the basis that of the $600,000 which the applicant obtained by his fraud, some $240,000 remained outstanding after forfeiture of some assets. It has not been demonstrated that his Honour failed to have adequate regard to these matters.

31 It is submitted, by the respondent, that his Honour may have erred in principle insofar as his comments indicate that his Honour fixed on a starting point of 10 years imprisonment which he reduced to 9 years having taken into account the plea of guilty and other mitigating factors. The point of error, it is submitted, is that this is an indication that his Honour was following what has been described as the "two-stage" approach to sentencing, rather than the intuitive or instinctive synthesis of all relevant factors; see the observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611 - 612.

32 This Court had occasion to consider this matter in Suarez-Mejia (2002) 131 A Crim R 564 where at [50] - [55] observations of mine, in which Murray and Miller JJ generally concurred, included the following:

"52. The nature of the [sentencing] process may well commend, generally or in a particular case, a process involving the synthesis of all relevant circumstances to produce a single result. Nevertheless, there are considerations which have been well rehearsed in many decisions, and which are summarised by Kirby J in Cameron, which may well commend to a sentencing judge the value, at least in the particular case, of indicating with some precision the effects of the weight he or she has attached to particular considerations in reaching the sentence or in fixing the non-parole period. Where this is done, if the weight so indicated does not reveal some unwarranted imbalance and does not lead to a distorted result, it is difficult to see that there is justification for setting aside the result simply because the judge has revealed a particular aspect of the reasoning. There are, of course, pitfalls which may be apprehended when this is attempted. It may readily lead to the mistaken apprehension, for example, that ipso facto a plea of guilty should lead to a specific discount, regardless of the circumstances which led to that plea of guilty and regardless of the other circumstances of the case which may interrelate with the early plea of guilty.

53. In my respectful view, what remains of importance is that the ultimate sentence, and in particular in this appeal the non-parole period, is one which reflects a proper appreciation and balancing of all relevant considerations in the particular circumstances of the case, and which serves the purposes of the sentencing exercise in the sense indicated in Veen [No 2], or respectively of a non-parole period, and has not been affected by the inappropriate application of some fixed rule of thumb as to a particular aspect of the sentencing process."

33 For the reasons there expressed I am not persuaded that the exercise of the sentencing discretion by his Honour in this case should be set aside simply because his comments are indicative of a two-stage approach. Rather, I prefer to consider the sentence actually imposed to determine whether it reflects an appropriate exercise of the sentencing discretion.

34 Very many sentences in other cases drawn from this and other jurisdictions, which were said to be in respect of generally comparable offences, were referred to by both the applicant and the Crown. For the applicant, some were advanced as disclosing that the sentence imposed in this case was too high, whereas others were relied on by the Crown as indicating that the sentence was within an appropriate discretionary range.

35 On examination, very few of the sentences indeed were for offences and offenders which were in any realistic sense comparable to the present case. Further, in some cases the sentence imposed was affected by the existence of other sentences, whether pre-existing or imposed at the same time as the relevant sentence.

36 It is also the case that many of the sentences referred to were from New South Wales and were imposed under a sentencing regime in respect of which s 16G of the Crimes Act 1914 operated. The practical effect is that for purposes of comparison with the sentencing regime which was in effect in this State at the time this sentence was imposed by Viol DCJ, these New South Wales sentences need to be notionally adjusted by a factor of 1.5.

37 The case most supportive of the applicant's submission was that of R v Holland [2002] WASCA 265. Holland had been convicted of some 210 offences of imposition, s 29B of the Crimes Act, (for which the maximum penalty is 2 years imprisonment) in each case the imposition being by the lodgement of false tax returns. Unlike the present case, each of the 125 taxpayers affected by the fraud were co-offenders with Holland. They and he were all prisoners in custody. Holland devised and implemented a scheme for false returns of which other prisoners took advantage. Some $501,327 was paid out by the ATO. Nothing had been recovered. An effective sentence of two years imprisonment, with 12 months to be served before release on recognisance, was imposed. An appeal by the Crown against the inadequacy of the sentence was dismissed.

38 When this case is examined more closely, however, there were some quite unusual, indeed remarkable, features. A convenient summary of the most significant of these is to be found in the reasons of Anderson J at [43]. Having described the sentence as "from every point of view ... extremely lenient", his Honour noted the following "weighty mitigating factors":

"(i) the extraordinary level of cooperation and assistance which the respondent gave to the investigating agencies as soon as he was discovered and the high level of cooperation promised for the future to assist the prosecuting authorities in the prosecution of the taxpayers concern;

(ii) the risk to the respondent which he is willing to run that he will suffer retribution at the hands of the taxpayers who have been or are to be prosecuted, they all being convicted criminals, many of whom are serving sentences for serious crimes of violence;

(iii) the considerable hardship which the respondent will suffer during his period in custody - until 25 December 2002 - by reason of the security arrangements that will have to be made to keep him safe due to his cooperation;

(iv) the fact that, to the limit of his ability to do so, he has made monetary reparation to the Commonwealth, and

(v) the fact that this sentence is to be added to the sentence which he was already serving."

In this last respect at the time of sentencing, Holland had and was serving sentences of 3 years 6 months with a two year non-parole term and a further term of 6 years imprisonment.

39 These matters in combination persuade me that Holland is a decision quite out of the ordinary and is not of any real assistance, therefore, as a comparable sentence in the present case.

40 The applicant also relied heavily on the sentences imposed on appeal in R v Boian (1997) 96 A Crim R 582 which totalled effectively 8 years imprisonment, with a 41/2 years non-parole period. The sentences were imposed for 27 counts of defrauding the Commonwealth by making false claims for nursing home costs, contrary to s 29D of the Crimes Act. The maximum penalty for each offence was 10 years imprisonment. The total amount defrauded was $1.7 million. The applicant submitted this was, therefore, a more serious case than the present. There had been full restitution, however, the offences were punishable by 10 years imprisonment and this was a Crown appeal against sentence so that a level of restraint was appropriate. Significantly, this was a New South Wales sentence and when factored by 1.5 for the purposes of comparison the effective sentence may be seen to be a sentence of 12 years imprisonment. Thus, Boian does not offer support for the applicant's position.

41 Reliance was also placed on Stitt (1998) 102 A Crim R 428 where a sentence of 51/2 years imprisonment was affirmed, but the non-parole period was reduced to 3 years 8 months. This sentence was for fraud on the ATO by which $624,510, was obtained (Crimes Act, s 29D punishable by 10 years imprisonment) and also for imposition on the Department of Social Security by which $55,392 was obtained (Crimes Act, s 29B punishable by 2 years imprisonment). There had been pleas of guilty entered at the committal stage and it was a case from which New South Wales so that for comparison purposes a factor of 1.5 is to be applied. Thus the sentence may be seen to be the notional equivalent of imprisonment of 8 years and 3 months. This case has many parallels with the present. There was a carefully planned and skilfully executed scheme of fraud which extended over a period in excess of 5 years. The process involved the lodgement of tax returns in the names of fictitious employees of non-trading companies, including with the returns false group certificates that had been fabricated by Stitt. The result was to create an apparent entitlement to refunds in the fictitious employees. The refunds were appropriated to Stitt's own use. It appears that false tax returns for some 40 or 50 fictitious persons were lodged. A point of some material distinction, however, is that no genuine taxpayers were involved and there was no breach of trust in the sense relevant to the case of the present applicant. The Court of Criminal Appeal was of the view that the sentence of 51/2 years imprisonment imposed was "well within the range of a proper sentencing discretion". The sentence for the imposition offence was 12 months imprisonment to be served concurrently. It is not apparent that this case provides reason to conclude the sentence imposed on the applicant was outside the appropriate discretionary range.

42 Some support for the applicant's argument may be seen in two further cases. In R v Ramdhun, unreported; ACT SCt (Gallop J); No SCC 92 of 1994; 3 August 1995, Ramdhun was sentenced to 8 years imprisonment with a 4 year non-parole period for 13 counts of defrauding the Commonwealth, one of organised fraud and two other offences. Some $1,420,000 was obtained by the 13 charges that were laid. All but some $400,000 had been recovered by a forfeiture order at the time of sentencing. Ramdhun was an employee of the Customs Department and had falsified diesel rebate claims. In the case of Sopher (1993) 70 A Crim R 570 a sentence of 5 years, with a 3 year non-parole period, was imposed in respect of five counts under s 29A of the Crimes Act and ten counts under s 29D. Over $400,000 was obtained by these offences. This was a New South Wales sentence and after notional adjustment by a factor of 1.5 for comparison purposes the sentence may be regarded as equivalent to 71/2 years imprisonment. While each of these cases is of relevance for present purposes the overall circumstances of the applicant's conduct is more serious.

43 Other cases which involved conduct such as a failure to disclose the income of the offender, or repeated imposition on the social security system by falsely representing the offender's own circumstances, were also relied on. The nature of these offences appears to be materially different from the conduct of the present applicant, such that the sentence in these cases is of little assistance.

44 We were also referred to McKenna v The Queen [1999] NSWCCA 358 where a sentence of 6 years imprisonment, with a 3 year non-parole period, was imposed for 22 counts of taxation fraud involving some $558,669. When this head sentence is adjusted by the notional factor of 1.5 for comparison purposes, it is directly comparable to the sentence imposed in the present case.

45 The applicant also sought to contrast the sentence imposed on him with sentences for different forms of dishonesty involving large amounts of money. In Grubb v The Queen [2002] WASCA 158 sentences totalling 10 years imprisonment were imposed for 33 offences of dishonesty involving some $5,200,000. In R v Easterday & Ireland, unreported; CCA SCt of WA; Library No 940233; 6 May 1994, a Crown appeal against sentences of 31/2 years imprisonment was dismissed. There were 10 counts of false pretences and 1 count of conspiracy to defraud involving altogether some $6 million of which there was restitution of some $4,500,000. Reference was also made to R v Bond (1997) 24 ACSR 518 and Greenburg v The Queen (1993) 68 A Crim R 392. Also in this context, the respondent referred to Pantano v The Queen (1990) 49 A Crim R 328. When these cases are considered it is apparent that the nature and circumstances of the actual offences charged differed materially from the present case. Further, the personal circumstances of, and other mitigatory factors relevant to, the accused varied widely. The effect of these various factors, in combination, is that the sentences in these cases are of no real relevance for present purposes.

46 When regard is had to the actual conduct of the applicant in committing this offence, and his personal circumstances including his plea of guilty and other mitigatory factors, as have been outlined earlier in these reasons, it is not apparent, in my view, that a sentence of 9 years imprisonment is manifestly excessive. His fraudulent conduct was skilfully and meticulously devised and implemented, it was repeated with variations in detail over more than 300 times over some 3 years, it involved a gross breach of trust to his employer and to his own clients and indirectly to the clients of his employer. He put each of those clients and his employer in a measure of jeopardy. It involved a gross defrauding of the revenue by which the applicant was able to obtain in all more than $600,000. It is aptly described as a massive fraud. While other cases referred to involved greater sums of money, the complexity and the extent to which the applicant repeated his fraudulent conduct, as well as the breaches of trust, served to mark this conduct as particularly grave.

47 His motivation was personal greed and a desire to live far beyond his means. The circumstances personal to him are not such as to offer any reason for significant mitigation of sentence, both because of the nature of those circumstances and because of the nature and circumstances of this offence. Even so, the most significant factors in mitigation are his plea of guilty which avoided a lengthy trial, his previous good record and standing, and the recovery of some $360,000 of the money obtained by fraud. In this case, however, those factors have limited weight indeed. The plea of guilty was very late and was made in the face of an overwhelming prosecution case. The force of his previous good record and standing is affected by the prolonged and repeated acts of dishonesty which constitute this offence. The recovery of some $360,000 was pursuant to statutory forfeiture powers and $240,000 remains outstanding.

48 The sentences imposed in the other cases considered do not demonstrate that this sentence is outside an appropriate discretionary range. At best for the applicant it may be said that the sentence of 9 years imprisonment would appear to be near the upper end of the appropriate discretionary range. Insofar as the learned sentencing Judge proceeded from a starting point which he reduced to 9 years for mitigatory factors, the starting point is not shown to be inappropriate and while the deduction for the limited mitigatory factors is perhaps barely adequate, it does not fail to sufficiently reflect those factors.

49 Given the basis upon which it is appropriate for this Court to exercise its jurisdiction on appeal it has not been demonstrated, in my view, that there is justification for this Court to interfere with the sentence imposed of 9 years imprisonment.

50 While reconsideration of the 41/2 year non-parole is also sought, the justification for that appears essentially to be the contention that the head term was excessive and that as a consequence of any reduction in the head term there should also be a reconsideration of the non-parole period. The non-parole period has been fixed at one-half of the head sentence. In this case, by virtue of s 19AF of the Crimes Act, the non-parole period could not exceed 6 years.

51 The nature of a non-parole period was described by Barwick CJ, Menzies, Steven and Mason JJ in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629 as being:

" ... to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through condition or freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."

As Brennan and McHugh JJ observed in R v Shrestha [1991] HCA 26; (1991) 173 CLR 48 at 63 the non-parole period "must not be shortened beyond the lower limit of what might be reasonably regarded as condign punishment".

52 The circumstances of this case do not demonstrate that a non-parole period less than half of the head term is appropriate. Indeed, a longer non-parole period could well have been seen to be justified. I would not interfere with the non-parole period.

53 For these reasons, while the head sentence at least may be seen as toward the upper end of an appropriate range, it has not been shown that this Court may properly interfere with either the sentence of 9 years imprisonment or the non-parole period. The application for leave to appeal should be dismissed.

Beard v The Queen [2003] WASCA 262

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Judgment (88 paragraphs)

Beard v The Queen [2003] WASCA 262 (6 November 2003)

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Legislation Cited (1)

Cases Cited (11)