Criminal law - Offender and Crown appeals against sentence - Appellant conducted own trial of two counts of fraud contrary to s 134.2(1) of the Criminal Code (Cth) - Allegations of express error - Manifest excess - Manifest inadequacy

Crimes Act 1914 (Cth), s 21P

Criminal Appeals Act 2004 (WA), s 31(4)(a)

Butler v The State of Western Australia [2010] WASCA 104

Champion v The Queen (1992) 64 A Crim R 244

Davis v The Queen [2002] WASCA 298

Director of Public Prosecutions (Cth) v Rowson [2007] VSCA 176

F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125

House v The King [1936] HCA 40; (1936) 55 CLR 499

Krijestorac v The State of Western Australia [2010] WASCA 35

Lindsay v The State of Western Australia [2010] WASCA 142

McDougall v The State of Western Australia [2009] WASCA 232

Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

R v Baldock [2010] WASCA 170

R v Cappadona [2001] NSWCCA 194; (2001) 122 A Crim R 52

R v Engert (1995) 84 A Crim R 67

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

R v Ottobrino [1999] WASCA 207

R v Pipes [2004] NSWCCA 351

R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

R v Wright (1997) 93 A Crim R 48

Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164

The State of Western Australia v Atherton [2009] WASCA 148

The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137

The State of Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430

The State of Western Australia v Johnson [2009] WASCA 224

The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229

Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385

Wheeler v The Queen [No 2] [2010] WASCA 105

2 BUSS JA: I agree with the orders proposed by Mazza J. Subject to the following observations, I agree with his reasons.

3 The introduction of s 41(4)(b) of the Criminal Appeals Act 2004 (WA) abrogated the common law principles that were once applicable in Western Australia to State or Crown appeals against sentence. See The State of Western Australia v Atherton [2009] WASCA 148 [142] - [160] (Buss JA, Miller JA agreeing). See also The State of Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430 [21] - [22] (Miller JA, Steytler P & Buss JA agreeing); The State of Western Australia v Bennett [2009] WASCA 93; (2009) 194 A Crim R 137 [67] - [68] (Miller JA, Owen & Buss JJA agreeing); The State of Western Australia v Johnson [2009] WASCA 224 [29] (Buss JA, Owen & Wheeler JJA agreeing).

4 In R v Baldock [2010] WASCA 170, I decided that a State law (such as s 41(4)(b)) which purports to abolish the 'double jeopardy' principle is not inconsistent with s 16A(1) of the Crimes Act 1914 (Cth) and that such a law is not, by virtue of s 109 of the Australian Constitution, pro tanto inoperative [87] - [119]. Section 41(4)(b) applies to Crown appeals in this court against sentences imposed on offenders for federal offences. In Baldock, Pullin JA and Kenneth Martin J also arrived at this conclusion, but for reasons different from mine [57] - [64].

5 MAZZA J: On 13 March 2009, the appellant was convicted by a District Court jury of two counts of obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code (Cth). Each offence carried a maximum penalty of 10 years' imprisonment.

6 On 11 August 2009, the appellant was sentenced to 3 years' imprisonment on each charge to be served concurrently commencing from 13 March 2009. Pursuant to s 21P of the Crimes Act 1914 (Cth), his Honour ordered that the appellant be released after serving 2 years' imprisonment upon entering into a recognisance to be of good behaviour in the sum of $5,000 for the balance of the sentence.

7 The appellant has sought leave to appeal against these sentences on a number of grounds, including that they were manifestly excessive. The respondent has sought leave to cross-appeal, alleging that the sentences were manifestly inadequate.

8 The appellant's grounds of appeal are as follows:

1. The sentencing judge imposed a sentence that was manifestly excessive because he failed to properly take into account, and understated the extent and effect of the appellant's medical condition as it related to his behaviour, and culpability.
2. The sentencing judge erred in fact and in law when he failed to take into consideration the effect mental illness has on the principles of general and personal deterrence.
3. The sentencing judge failed to properly take into account the submissions and assessments contained within the presentence, psychological and psychiatric reports.
4. The sentencing judge erred in fact when detailing the actions of the appellant as it related to the transfer of 'work items' into the Northbridge tray, thereby increasing the criminality of the appellant.
5. The sentencing judge erred in fact and in law when he failed to take into account for mitigation the unexplained delay of some 4 and half years between the investigation and the charges being laid against the appellant.
6. The sentencing judge failed to accurately describe, or take into account the appellant's antecedents.
7. The sentencing judge failed to take into account for mitigation the rehabilitation prospects of the offender, and the positive steps he had undertaken since being diagnosed with Bipolar Affective Disorder.

9 The respondent's grounds of appeal on the cross-appeal are as follows:

1: The learned sentencing judge erred in law by imposing sentences which were manifestly inadequate in all the circumstances of the case:

Particulars

(a) The sentences imposed do not appropriately reflect the prisoner's level of criminality and the serious breach of trust that it entailed.

(b) The sentences imposed do not give sufficient weight to the need for general deterrence.

10 His Honour's treatment of the facts in his sentencing remarks was general rather than detailed. As he put it:

The facts relating to your criminality were comprehensively covered in the evidence given at the trial and as they are recorded in the transcript it's not necessary for sentencing purposes to deal with them in exquisite detail.

11 At the hearing of the appeal, the appellant and the respondent agreed that the court could have resort to the appellant's unchallenged evidence as to the commission of the offences in order to have a better and more detailed appreciation of the facts of the case. The facts can be summarised in this way.

12 The goods and services tax (GST) commenced on 1 July 2000. It is administered by the Australian Taxation Office (ATO).

13 In very basic terms, under the GST system, a taxpayer who engaged in business was required to file, usually on a quarterly basis, a business activity statement (BAS). The BAS is a self-assessment form where the taxpayer sets out the amount of GST a business has collected and the amount it has paid out. Where the GST collected exceeds the amount paid out, the taxpayer is required to pay the difference to the ATO. Where the amount paid out is more than the amount collected, the taxpayer is entitled to be paid a refund.

14 At about the time the GST commenced, the appellant commenced employment at the ATO in its Northbridge office. Eventually, in or about late 2001 or early 2002, he commenced working in the compliance verification centre (CVC) as a compliance verification officer. The CVC's function was to verify GST refund claims.

15 Not all claims for a refund are verified. The system put into place by the ATO was that where a BAS claimed a refund, it was subjected to a computerised algorithm called the 'risk rating engine' (RRE) to determine whether it would be verified. Where a claim was selected for verification, payment of the refund would be stopped and the claim would be allocated to a compliance verification officer such as the appellant. This work was electronically allocated from an ATO office in Hurstville, New South Wales.

16 The CVC in Northbridge was divided into teams. The appellant was a member of a team led by Ms Elaine Hogan. Another team was led by Ms Mary Bolden. Ms Bolden, although not Ms Hogan, gave evidence at the appellant's trial.

17 Work allocated to a Northbridge CVC team would be electronically transmitted into that team's 'primary tray'. From there, it would be given to a compliance verification officer who would undertake an examination of the claim. If the claim was verified, the officer would make an electronic note accepting the claim.

18 It was not disputed at trial that part of the training given to compliance verification officers involved the identification and avoidance of perceived or actual conflicts of interest.

19 While working for the ATO, in May 2002, the appellant registered a business name, Tequila Mockingbird. This business later became Green Spider Audio. Broadly, the purpose of this business was to retail and wholesale audio equipment to professional sound studios and performers.

20 The appellant has two half-siblings, Yvonne MacLean and Andrew MacLean. Ms MacLean had a business name, Azura Holdings. His half-brother also had a business name, Green Green Grass of Home.

21 On 24 November 2003, the appellant issued two handwritten invoices (exhibit 28), one to Azura Holdings, the other to Green Green Grass of Home. The appellant said that these invoices evidenced an oral agreement entered into by the appellant with each of his half-siblings, in which he sold to each of them a one-third interest in Green Spider Audio for $1,016,950. Each invoice was expressed to be inclusive of GST, although the amount of GST was unspecified.

22 The appellant testified that he valued Green Spider Audio as worth $3 million. The appellant agreed in cross-examination that the business had not been formally valued and was, at the time the invoices were issued, trading at a loss. He agreed that no financial statements for the business had been prepared. He further agreed that neither of his half-siblings paid him $1,016,950 or were in a position to pay that sum, or anything like it.

23 On 25 November 2003, the appellant created directly into the ATO's computer system a BAS for his half-siblings' businesses for the July-September 2003 quarter. In each form, a claim was made for a GST refund of $92,458. All, or just about all, of this claim was based on the GST which was supposedly paid for the purchase of the interest in Green Spider Audio. The appellant conceded in his evidence that the creation of each BAS constituted a conflict of interest.

24 The claim lodged on behalf of Azura Holdings was not picked up by the RRE. On 28 November 2003, the sum of $92,458 was paid into Ms MacLean's bank account.

25 However, the claim lodged on behalf of Green Green Grass of Home was picked up by the RRE and was stopped. Why this and not the other claim was picked up by the RRE is not known. Green Green Grass of Home's BAS was verified by the appellant. Exactly how it came to be verified by him is the subject of ground 4 of the appellant's appeal. ATO records which were tendered at trial showed that the refund was verified and the stop on the payment lifted 90 minutes after the appellant began dealing with it. On 5 December 2003, the sum of $92,458 was paid into Mr MacLean's bank account.

26 The appellant agreed in his evidence that he received $13,000 from the refund paid to Ms MacLean (ts 228). Further, in cross-examination, he conceded that Mr MacLean made a number of cash withdrawals using the money that had been paid to him by the ATO and that some of that cash was given to the appellant (ts 311).

27 All the money paid to Ms MacLean and Mr MacLean was spent and none of it has been repaid, or is likely to be repaid, to the ATO.

28 In December 2003, the appellant's employment at the ATO ceased. On 22 January 2004, the appellant was interviewed at some length by investigators.

29 In that interview, the appellant told the investigators that he had put his half-siblings' BAS forms into the ATO system. He said that he was aware that the refund claims would go through the RRE and may have to be verified. He admitted dealing with Mr MacLean's claim. He conceded that dealing with that claim was a conflict of interest. He denied in the interview, as he did in his evidence, that he had acted dishonestly.

30 The appellant was charged with the present offences by a prosecution notice dated 19 October 2007, almost four years after the commission of the offences.

Material relevant to sentencing and his Honour's sentencing remarks

31 His Honour did not sentence the appellant immediately upon his conviction.

32 Before sentencing the appellant, his Honour received a pre-sentence report prepared by Ms Belinda Moore, dated 19 May 2009, a psychological report by Ms Julie Hassan, dated 13 May 2009 and a psychiatric report by Dr Jayawardana, dated 22 July 2009. In addition to these documents, his Honour was provided with written submissions on sentence prepared on behalf of the appellant and the respondent. The submissions on sentence prepared on behalf of the appellant included a letter addressed to the sentencing judge, dated 21 May 2009. Finally, the appellant made submissions of his own on sentence which were received on 10 August 2009. When his Honour sentenced the appellant, he said that he had regard to all of this material.

33 Ms Hassan, in her report, expressed concerns about the appellant's veracity relating to information the appellant provided with respect to his social history, substance use, offending behaviour and mental health history. However, the following personal history was unchallenged.

34 The appellant was born in Western Australia in 1973. At the time of his offending, he was 30 years of age.

35 His childhood, it appears, was somewhat unstable because he and his parents moved between Australia and the United Kingdom on several occasions. Eventually, his parents settled in Western Australia. He was educated to university level and graduated with a Bachelor of Arts degree from Edith Cowan University in 1994. After that, he was employed in a number of positions with BankWest and Centrelink until he obtained work with the ATO.

36 He had been in several significant relationships and has a young son, who was, at the time of trial, 6 years of age.

37 Since the age of 16, the appellant has regularly used a variety of illicit substances, including cannabis, LSD, ecstasy, cocaine and amphetamines.

38 At the time of his offending, the appellant had, as an adult, a minor record of offending. He had a conviction in 1992 for possession of LSD with intent to sell or supply to another and, in 1997 and 2003, he was convicted of traffic offences. After he committed the present offences, but before his trial, he was convicted of other offences, most significantly, in 2008, he was convicted in the District Court of possession of prohibited drugs with intent to sell or supply, as a result of which the court imposed a conditional suspended imprisonment order.

39 Ms Hassan administered to the appellant the Millon Clinical Multiaxial Inventory-III (MCMI - III). This is the diagnostic tool which assesses the structure and functionality of an individual's personality as well as the type and severity of possible clinical syndromes.

40 Ms Hassan said that the profile obtained from the Inventory:

[R]eflects significant elevations on scales measuring Depressive, Dependent and Passive-Aggressive (self-defeating) traits.

41 There was also a significant elevation on the Antisocial subscale. Persons who come within this subscale, she said, may be untrustworthy, unreliable and fail to meet, or intentionally negate, personal obligations. Of the appellant, she said:

In Mr Gok's case this is most closely identified in relation to financial and occupational obligations. Such individuals violate the rights of others and transgress established social codes through deceitful and illegal behaviour; they are unfettered by the restrictions of social customs and the constraints of personal loyalties. They typically act without guilt or remorse.

His profile also indicates or suggests some evidence of severe personality psychopathology or Axis one clinical syndromes. The latter syndromes tend to be distinct or transient states, waxing and waning over time depending on the impact of stressful situations. In times of stress they caricature or accentuate the basic personality style. Hence most of the syndromes assessed by this instrument are of the reactive kind, those most often precipitated by external events and when present they typically appear in somewhat striking or dramatic form. High levels of Anxiety, Depression and Bipolar (manic) symptoms were reported by Mr Gok. Evidence of the latter was observed in Mr Gok's inflated self-esteem, superficial elation, and excessive planning for unrealistic goals (particularly when describing his business aspirations). He reported episodes of a decreased need for sleep, flights of ideas and rapid labile shifts of mood. During periods of dejection he has experienced suicidal ideation, poor concentration and decreased effectiveness in performing routine life tasks. Mr Gok acknowledged these kinds of experiences over much of his life but particularly over the past 8 or 9 years.

42 Ms Hassan addressed the appellant's risk of reoffending. In the end, she was unable to come to any conclusion on the point.

43 The psychiatric evidence before his Honour in the form of Dr Jayawardana's report was brief. Dr Jayawardana said that he had examined the appellant on four occasions between April and July 2009. He went on to say:

He [the appellant] described periods of over activity, over spending, over confidence and increased libido with periods of withdrawal, under activity, indecisiveness and pessimism for many years. At least four of his family members including his mother apparently have similar phases. The history pointed towards a diagnosis of Bipolar Disorder or manic depression. This probably appeared a few years ago.

However I could not get independent confirmation of his story as I could not meet a significant relative or a close friend.

I diagnosed Bipolar disorder on the available evidence and started treating him with a mood stabiliser and continued the anti-depressants he was already on.

44 After briefly summarising the facts, his Honour said (ts 12 - 13):

Your conduct was fraudulent and a clear breach of the trust placed in you as an employee of the Australian Taxation Office. It was a deliberate deception that involved an intimate knowledge and use of your employer's computer system, and the interception and frustration of a facility designed to verify and authenticate GST refunds.

It has resulted in a significant loss to the Australian community. The loss to the Australian Taxation Office and by that, of course, I'm referring to the Australian community, amounts to $184,916. And although I propose to make an order for reparation in that amount pursuant to section 21(b) of the Crimes Act, the likelihood of recovery would have to be said to be remote.

You have at all times denied your wrongdoing and attempted to explain and justify your conduct although it was inexcusable. There is an absence of remorse.

I do not regard any of the material in the pre-sentence report or the psychological and psychiatric reports as mitigatory or as lessening or providing excuse for the criminality.

It's quite clear from a consideration of the authorities that offences of this type are often difficult to detect and penalties should reflect the public concern for the protection of the Revenue. Frauds of this nature must be viewed seriously because they threaten the foundation and integrity of the taxation system which is based upon honesty and self-assessment and in part reliant upon the vocational integrity of those working for the Tax Office.

46 In relation to a submission that his Honour should mitigate the sentence by reason of delay between the offending behaviour and the matter coming before the court, his Honour said (ts 14):

In part that delay can be explained by the necessity to investigate the documentary material relevant to the offending behaviour and this is not a case where, in my view, the delay is such that it is to be reflected in the sentencing exercise.

Having taken all matters into account in the balancing exercise that sentencing requires I am of the view, particularly having regard to the seriousness of the criminality and the breach of trust, that the only appropriate disposition is one of immediate imprisonment. Both general and specific deterrence demand it, as does the requirement that the community would expect for appropriate punishment for this type of behaviour.

47 His Honour did not during his sentencing remarks refer to the appellant's risk of reoffending. However just before he sentenced the appellant in an exchange with counsel he said that he was unpersuaded that the appellant would reoffend (ts 7). This conclusion was not challenged on appeal.

48 I will deal first with the appellant's complaints of express error. I will then deal with the allegations of manifest excess and manifest inadequacy together.

49 These grounds together allege that his Honour failed to give mitigating weight to the appellant's psychological and psychiatric state.

50 The appellant's submissions came down to this. At the time of his offending, the appellant was afflicted with undiagnosed bipolar disorder compounded by the effects of illicit drug use and various stressors in his life including his heavy workload, a performance review at work, and the responsibilities associated with a new born child. The combined effect of these things caused him to offend in the way that he did. Further, they made him an inappropriate vehicle for general and personal deterrence. The appellant submitted that the learned sentencing judge erred in failing to give any of these matters mitigating weight.

51 The appellant in his written submissions referred this court to a number of journal articles about bipolar disorder which identify and discuss its symptoms, its effects upon those who have the illness and its treatment. The appellant drew attention to some of the symptoms of bipolar disorder and asserted that those symptoms were manifested in his offending behaviour. He submitted that, as he was being treated for the illness, he was effectively rehabilitated.

52 The respondent submitted that his Honour's treatment of the appellant's medical impairment was correct. The evidence did not establish the existence of any mental impairment which ought to have been given mitigating weight.

53 The relevance of mental impairment in the exercise of the sentencing discretion has been explained in a number of cases in this court over recent times, including Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105.

54 All of these cases cite with approval R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, 400, where the court (Charles & Callaway JJA and Vincent AJA) said that there were at least five ways in which mental impairment may be relevant. Their Honours said:

First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.

55 These principles do not just apply to offenders with a serious psychological illness, they apply to any offender who, either at the time of offending or at sentence, has a mental disorder, abnormality or impairment of mental function: Krijestorac [18]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

56 Where it is sought to argue that an offender's moral culpability is lessened by mental impairment, the offender must on the balance of probabilities demonstrate a causal connection between the impairment and the commission of the offence. The greater the contribution of the mental impairment, the more the moral culpability will be lessened. A reduction in moral culpability will generally be reflected in the penalty imposed: Thompson v The Queen [53].

57 In cases where the mental impairment is not causative of the offence, it may still be relevant to issues such as the offender's rehabilitation, treatment, deterrence and the question of whether any sentence of immediate imprisonment would weigh more heavily on the offender than a person in normal health.

58 While the existence of a mental impairment will almost always be relevant to the sentencing of an offender and will often result in a lower sentence, this is not always the case. As Gleeson CJ pointed out in R v Engert (1995) 84 A Crim R 67, 71, the existence of a mental impairment is one of the factors which must be balanced with other factors to produce a just sentence. It is wrong to assume that the existence of a mental impairment will automatically result in a lesser sentence: see also Lindsay v The State of Western Australia [2010] WASCA 142 [23].

59 The impact of general deterrence is something which is often misunderstood. It is not the law that once it is demonstrated that an offender has a mental impairment that general deterrence is irrelevant. General deterrence still operates when a court is sentencing an offender with a mental impairment but its effect is, to use a phrase sometimes used in the cases, 'sensibly moderated'. In many cases, general deterrence will be given less weight because the offender is simply an inappropriate medium for making an example to others. However, it is an extreme case where considerations of general deterrence are eliminated entirely. These propositions are evident from F v The State of Western Australia [39], Champion v The Queen (1992) 64 A Crim R 244, 254 - 255 (Kirby P), and Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190, 200 (Murray J).

60 The degree to which general deterrence is moderated very much depends on the facts of the case. At one end of the spectrum stands the case where the offender is so afflicted by his or her mental impairment or impairments that general deterrence plays virtually no part. At the other end are cases where the moderation of general deterrence is small because the offender knows what he or she is doing and appreciates the gravity of his or her actions: R v Wright (1997) 93 A Crim R 48, 51 (Hunt CJ).

61 With respect to personal deterrence, again much depends upon the circumstances. The law assumes that an offender has the intellectual capacity to be deterred from committing an offence by the prospect of being punished if the offence is committed and detected. Where an offender's mental impairment affects that person's ability to understand this, the effect of personal deterrence will be moderated. The extent to which it is moderated will depend upon the extent to which the offender has the ability to reason in the way I have described. In some cases, as the Court recognised in R v Tsiaris, personal deterrence has little point whereas in other cases it would be more significant.

62 The appellant's submissions on grounds 1, 2 and 3 assume that he has established that he had a mental impairment at the time of his offending and sentencing which was mitigatory.

63 The difficulty for the appellant is that his assumption is not borne out by the evidence.

64 The appellant relied on the report of Dr Jayawardana to base his submission that he had bipolar disorder both at the time of his offending and when he was sentenced.

65 However, Dr Jayawardana's report is not a compelling basis for this conclusion. The report is not a comprehensive psychiatric assessment of the appellant. Dr Jayawardana's diagnosis was based upon the appellant's unconfirmed history. Dr Jayawardana specifically made the point that he could not get independent confirmation of his history. In many cases, this may not matter much but it does here for two reasons.

66 First, Ms Hassan expressed concern about the veracity of what the appellant had told her about his history. Second, it is not known whether Dr Jayawardana was aware of the appellant's illicit drug use. If the appellant's mental condition was induced by illicit drugs, it is not generally regarded as mitigating: Butler v The State of Western Australia [2010] WASCA 104 [8]. Further, if the appellant had bipolar disorder, there is no evidence that he had the condition at the time of his offending nor is there any evidence of its severity at any time.

67 There is no evidence from Dr Jayawardana which is capable of establishing any causal link between the condition and the offending. Finally, there is nothing which shows that general or specific deterrence should be in any way moderated, or that the condition should mitigate his punishment in any way.

68 The psychological evidence does not in my view advance the appellant's case on grounds 1, 2 and 3.

69 Ms Hassan spoke of the appellant's personality traits. She said there was some evidence of 'severe personality psychopathology or Axis 1 clinical syndromes'. However, she did not say that they were causative of his offending. All she was prepared to conclude was that:

It is possible that certain elements of his personality contributed to his offending behaviour, although not necessarily directly. (emphasis added)

There is nothing in Ms Hassan's report which gives rise to any reason to moderate the effects of general and personal deterrence.

70 In my opinion, none of grounds 1, 2 and 3 have been made out.

71 During the course of his sentencing remarks, his Honour said:

When the risk rating engine identified the BAS of Andrew MacLean as requiring verification, you improperly intercepted the investigation instruction, allocating the matter to the Northbridge office and then to yourself and verified the refund (ts 12).

72 The appellant submitted that this statement misstates the facts in that while the appellant allocated Mr MacLean's claim from his team's primary tray, there was no evidence that the appellant had somehow managed to have the Hurstville office allocate the claim to his team.

73 The respondent's written submissions contended that his Honour's finding that the appellant allocated Mr MacLean's claim to the Northbridge office was consistent with the evidence of Ms Bolden at ts 147. At the hearing of the appeal, it was apparent that Ms Bolden's evidence was not clear on the point. The respondent was given leave to provide further references to the evidence which may have permitted his Honour to make the finding that he did. The respondent subsequently filed a document entitled 'Respondent's supplementary submissions on the appeal'. In that document the respondent referred to other parts of the evidence of Ms Bolden as well as exhibit 18 which is a copy of two images taken from the appellant's computer screen relating to the retrieval of Mr MacLean's claim from the primary tray.

74 I have examined the transcript references and exhibit 18. I have also had regard to the evidence of Mr Tietz, the ATO investigator who gave some evidence about the allocation of work to and from the primary tray as well as the appellant's own evidence on the issue.

75 There is no clear statement in the evidence of either Ms Bolden or Mr Tietz that the appellant was able to arrange for Mr MacLean's BAS to be allocated from Hurstville to Northbridge. The appellant denied arranging for the claim to be allocated to the Northbridge office.

76 I do not think that the evidence was sufficient for his Honour to be satisfied that the appellant had allocated Mr MacLean's claim to the Northbridge office. In my opinion, his Honour erred in this regard. However, the fact remains that, even if all the appellant did was allocate work from his team's primary tray to himself, that was an improper use of his position.

77 In the light of this and the other aggravating features of this case, his Honour's error was not of such significance as to justify the imposition of a different sentence upon the appellant: s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

78 As I noted earlier, there was a delay of almost four years between the offending behaviour and charges being laid against the appellant. His trial took place some five years and four months after the offences were committed.

79 Undoubtedly there was a long delay between the offending behaviour, the appellant being charged, and trial. The question raised by this ground of appeal is whether his Honour erred by finding that the delay did not afford any mitigatory weight.

80 The appellant, in his oral sentencing submissions (ts 3 - 4), made two points concerning delay. First, he submitted that delay should be mitigatory because of alleged neglect on behalf of the respondent in bringing the matter to trial within a short period of time. Second, as he put it, 'a lot of evidence and materials were lost' in that time.

81 The respondent submitted that the delay was adequately explained and his Honour rightly decided it had no mitigatory weight.

82 In Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164, McLure JA at [31] - [33] and Buss JA (Miller JA agreeing) at [57] - [65] explained the sentencing principles that apply to delay. His Honour referred to this case in his sentencing remarks.

83 Delay itself is not mitigatory, but in combination with other relevant sentencing factors, it may be mitigatory. As McLure JA pointed out, it is not possible to identify all factors which in combination with delay will be mitigatory. However, where there is evidence which shows that during the period of delay an offender has made progress towards his rehabilitation, delay will in that context be mitigatory. Delay may also be mitigatory if it is caused by the dilatory conduct of those charged with investigating or prosecuting the offences.

84 His Honour made no finding that those investigating or prosecuting the offences against the appellant behaved in a dilatory way. Having carefully examined all the materials that were before his Honour, I cannot see for myself any evidence of dilatory conduct. Further, there is no evidence that during the period of delay the appellant made progress towards his rehabilitation. To the contrary, the appellant, during the period before charges were laid, committed a serious drug offence as well as other less serious offences. Finally, any difficulty encountered by the appellant in the preparation of his case because of delay is not a relevant mitigating factor. If it has any relevance, it is connection with the way in which the appellant was able to meet the prosecution case at trial. As to this, I note that the matter was not raised by the appellant's trial counsel.

85 In my opinion, his Honour did not err by failing to give delay any mitigatory weight.

87 The appellant submitted that his Honour failed during the course of his sentencing remarks to adequately describe his antecedents or give them sufficient mitigatory weight.

88 There is no obligation upon a sentencing judge to describe in detail an offender's antecedents. In this case, just prior to his Honour making his sentencing remarks, he told the appellant that he had read all of the material which had been placed before him (ts 3). That material was extensive and dealt in detail with the appellant's antecedents.

89 In the course of his sentencing remarks, his Honour referred to the pre-sentence report and the psychological and psychiatric reports. He also referred to character references which had been tendered on the appellant's behalf. He referred to the appellant's use of illicit substances.

90 I am not persuaded that his Honour failed to give due weight to the appellant's antecedents.

92 This ground alleges that his Honour failed to take into account the positive steps undertaken by the appellant since being diagnosed with bipolar disorder. I will not repeat what I have already said about Dr Jayawardana's diagnosis of bipolar disorder. I do not think that the evidence before his Honour was sufficient to justify a finding that the appellant had bipolar disorder at the time of the offence. However, it appears from the materials before the learned sentencing judge that whether or not the diagnosis was accurate, the appellant had, since his remand in custody, undertaken some positive steps towards his rehabilitation. He had completed a number of courses designed to prevent any relapse into offending behaviour as well as personal development and vocational training.

93 While his Honour did not expressly refer to these things, all the relevant materials were before him. In light of his Honour's conclusion that he was not persuaded that the appellant would reoffend, it is hard to see how that conclusion could have been reached without a consideration of the appellant's prospects of rehabilitation.

94 I am not persuaded that his Honour failed to take into account the appellant's rehabilitation prospects. I would dismiss this ground.

Were the sentences manifestly excessive or alternatively manifestly inadequate?

95 The appellant alleges that the sentences were manifestly excessive. The Crown position is that the sentences were not manifestly excessive, rather, they were manifestly inadequate and ought to be increased.

96 The contentions of manifest excess and manifest inadequacy are complaints of implied error on the part of the sentencing judge. The principles which apply to such appeals are not controversial. It is sufficient for me to refer to House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

97 To determine whether a sentence is manifestly excessive or inadequate, regard is had to the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: McDougall v The State of Western Australia [2009] WASCA 232 [13].

98 I will deal first with the seriousness of the offences. Without doubt these were serious offences. They were planned, plainly dishonest and deprived the Revenue of a significant amount of money which is never likely to be repaid. At the heart of the seriousness of the case is that the appellant committed these offences in clear breach of the trust placed in him as an employee of the ATO. His fundamental duty was to protect the Revenue and not plunder it. Contrary to the appellant's submission, these were not offences which were committed at the spur of the moment nor, as I have already explained, are they mitigated by mental impairment. Because of the appellant's clear breach of trust, general deterrence must be the predominant consideration: R v Cappadona [2001] NSWCCA 194; (2001) 122 A Crim R 52, 59. In light of all these factors, it is obvious that immediate imprisonment was the only proper sentence in this case.

99 Having said all this, the offences were not the most serious offences of their type. The offences were not committed over a prolonged period of time and while the amount defrauded was substantial, it was not as substantial as one sees in other cases. Although the appellant used his knowledge of the system, he did not when he manipulated it, make any attempt to disguise his identity or position. The transactions were detected within a matter of days in December 2003.

100 In the appellant's interview in January 2004, although he did not admit that what he had done was wrong, as Mr Hastings QC on behalf of the respondent acknowledged in his oral submissions, it was the appellant who provided most of the background associated with the offending. Mr Hastings QC further, quite properly, acknowledged that, without the appellant having participated in the record of interview, these background matters would simply not have been known. It is the case that the appellant has taken some steps towards his rehabilitation and his Honour, it appears, found in the appellant's favour as to his prospects of reoffending in the future.

101 I now turn to the standards of sentencing customarily observed with respect to these offences. Each party cited a number of authorities in support of the contention that the sentences were either manifestly excessive or manifestly inadequate. Of course, each case must be dealt with in the light of its own circumstances. No two cases are the same. There is no single correct sentence: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [46]; The State of Western Australia v Johnson [2009] WASCA 224 [14].

102 In support of his submission that the sentences were manifestly excessive, the appellant cited cases decided in this jurisdiction involving theft or fraud committed by employees. He cited R v Ottobrino [1999] WASCA 207, Davis v The Queen [2002] WASCA 298 and R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554.

103 In R v Ottobrino, the two appellants, Mrs Stellitano and Mrs Ottobrino, were members of the same family. Mrs Stellitano was convicted of 84 counts of stealing as a servant involving approximately $284,500 while Mrs Ottobrino was convicted of 51 counts of stealing as a servant funds totalling approximately $194,500. The maximum penalty for stealing as a servant is 10 years' imprisonment. The offending was calculated and systematic. It involved the falsification of documents in a sophisticated and careful way, and every attempt was made to hide the commission of the offences which were committed over a period of four years. Both offenders were found guilty after trial and each received a term of imprisonment. Mrs Stellitano was sentenced to a total of 2 years' imprisonment and Mrs Ottobrino to a total of 18 months' imprisonment. The prosecution appealed alleging manifest inadequacy. Wallwork J, with whom Anderson J agreed, said that there were some very unusual mitigating circumstances in the case. Among those was the fact that the appellants were mothers of very young children. In light of these very unusual circumstances, the appeal was, by a majority, dismissed.

104 In Davis v The Queen, the appellant pleaded guilty, unlike the appellant in this case, to 12 counts of defrauding the Commonwealth Bank of Australia for whom she had worked for just over 21 years. Using her knowledge of the bank systems, she defrauded her employer of $191,000. As in R v Ottobrino, the offender had dependent children. Additionally, the appellant made full restitution. The sentence of 2 years' imprisonment was not interfered with.

105 In R v Faithfull, the respondent was a bank manager who over a period of in excess of five years stole almost $19 million from his employer in order to fund his gambling addiction. He was sentenced to 5 years' imprisonment. The Crown never put into issue in this appeal the length of the sentences imposed upon the respondent. The sole ground was whether the one transaction rule applied.

106 In my opinion, none of the cases cited by the appellant are particularly helpful in determining the standards of sentencing customarily observed with respect to the relevant Commonwealth offences. The circumstances of the cases are different from the circumstances of the present case. Moreover, none of the cases cited by the appellant involve fraud on the ATO by an employee of that office.

107 The essence of the respondent's submissions alleging that the sentences were inadequate was that they were not of a severity appropriate in all of the circumstances, and accordingly were in breach of s 16A(1) of the Crimes Act. In support of this submission, the respondent cited four cases, two of which are appellate decisions, the others being sentences imposed at first instance.

108 In R v Pipes [2004] NSWCCA 351, the respondent, an employee of the Department of Veteran Affairs and a senior member of the public service, diverted for his own benefit, utilising the accounts of persons who might have been able to receive such benefits, 20 payments totalling $155,644. The respondent pleaded guilty at the earliest opportunity and repaid the money he had defrauded. He was contrite and remorseful. The respondent was sentenced to 3 years' imprisonment to be released after serving 2 years upon entering into a recognisance of good behaviour. Greg James J, with whom Studdert and Bell JJ agreed, was not persuaded that the sentencing judge erred in the exercise of her sentencing discretion, and so dismissed the appeal.

109 While the outcome of Mr Pipes' case and the appellant's was the same, there were clear differences. On the one hand, Mr Pipes' offending was more serious. He was a comparatively more senior public servant than the appellant and he offended on numerous occasions over a period of just over a year. On the other hand, Mr Pipes pleaded guilty and repaid the money.

110 In R v O'Neill (Unreported, WADC, 17 July 2003), the offender was sentenced to 3 years and 3 months' imprisonment with a non-parole period of 15 months on an early plea of guilty to six offences, two of which involved the dishonest appropriation of $231,491 over an 18 month period. The offender was employed at the ATO and used knowledge that he gained from his employment to commit the offences. He pleaded guilty, was contrite and the ATO were able to recover $35,750 by executing a garnishee order over his bank account.

111 As the respondent correctly pointed out, Mr O'Neill defrauded more money than the appellant and did so over a longer period of time. Mr O'Neil personally benefited from his offending whereas the appellant received only a small proportion of the money he defrauded. Mr O'Neill pleaded guilty and showed contrition whereas the appellant did not. Further, the appellant in the present case was sentenced to a greater period of actual time to serve.

112 In R v Dwayhi (Unreported, NSWDC, 1 August 2008), the offender was sentenced to an effective head sentence of 5 years with a non-parole period of 3 years. The offender was employed in the CVC area of the ATO in New South Wales. The offender verified four false BAS forms which resulted in others receiving refunds totalling $857,357 of which he received $135,000. Although the offender pleaded guilty and was not the instigator of the fraudulent scheme, his offending was clearly more serious than the present case in that it involved a great deal more money.

113 Finally, in Director of Public Prosecutions (Cth) v Rowson [2007] VSCA 176, the offender was sentenced to an effective head sentence of 3 years and 1 day with a non-parole period of 18 months. On appeal by the Crown, the offender was sentenced to 5 years' imprisonment with a non-parole period of 3 years. The appellant pleaded guilty to one charge against s 134.2(1) of the Criminal Code and to one charge of attempting to commit an offence against that section. The amount of the substantive charge was approximately $2.4 million and the amount of the attempt was approximately $1.3 million. Mr Rowson was not an employee of the ATO, but he engaged in a carefully planned fraudulent scheme which resulted in the lodgement of 27 false BAS forms over a substantial period of time. The respondent involved other innocent parties in his wrongdoing and sought to exploit the reputation of prominent accounting firms and financial institutions in order to lend some credibility to his scheme. Although Mr Rowson participated in a record of interview and made frank admissions, he was not particularly remorseful indicating that it was 'stupid' of the government to rely on self-assessment of liability for GST. Although Mr Rowson was not a public servant, and even though he pleaded guilty, his conduct was more serious than the appellant's.

114 Mr Hastings QC, on behalf of the respondent, submitted that a more appropriate sentence for the appellant in this case was a sentence of 5 years' imprisonment.

115 The cases relied upon by the respondent were small in number. All that can be said about them is that where the Revenue is deprived of substantial sums, especially by ATO officers, the imposition of a significant term of immediate imprisonment will ordinarily result. The cases do not, in my view, demonstrate that the sentences imposed upon the appellant were manifestly inadequate.

116 In my opinion, the sentences imposed by his Honour were within a sound discretionary range. I am not satisfied that any implied error was made.

The effect of s 41(4)(b) of the Criminal Appeal Act 2004 (WA)

117 Section 41(4)(b) of the Criminal Appeals Act 2004 (WA) has abrogated the common law principle of double jeopardy when resentencing a State offender: The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229. The question was raised in the respondent's cross-appeal whether that section also abrogated the principle of double jeopardy when resentencing Commonwealth offenders.

118 The matter does not arise for decision in this case because, in my view, the respondent has not demonstrated that the sentence is manifestly inadequate.

119 In relation to the appellant's appeal against sentence, he has failed to demonstrate that the sentencing judge made any implied or explicit error. Accordingly, the appeal is dismissed.

120 With respect to the respondent's cross-appeal, I have not been persuaded that the sentences were manifestly inadequate.

121 I would not grant leave to appeal in either appeal. Both appeals must be dismissed.