CDPP v Cosar [2025] VCC 558

1. The GST is a federal tax administered through the Australian Tax Office (ATO) on behalf of the Australian states and territories.
2. A person carrying on business under a registered entity pays GST on goods and services obtained in the course of carrying on a business.
3. A business entity must lodge a BAS for each tax period. That activity statement must report the GST the business has collected on taxable supplies for the business. The difference in the amount between the GST collected by the entity and the amount of GST paid back by an entity is the amount that the entity is either owing to, or can claim back from, the ATO for that reporting period.
4. Each BAS contains a section which requires the person lodging it to declare that the information contained in the statement is both true and correct.
5. A BAS can be lodged online through the entity's ATO account. Any amount that is refundable after the calculation is made is returned to the entity by electronic funds transfer.
6. In 2010 you obtained an Australian Business Number (ABN). This entity appears then to have lain dormant for a time, but on 26 September 2016 you made an application to reactivate that number. The following day it was reinstated, and the business was also registered for GST. Soon after, you obtained a link to connect your ATO account to your 'MyGov' account.
7. I note here that prior to the offending, you had never lodged a BAS or received a GST refund in relation to that entity.
8. On 4 January 2022 you telephoned the ATO and requested assistance with submitting a business activity statement. During that call you said that you had started a business in January 2021 called 'New Generation Concrete'. You told the call taker that your annual GST turnover was between $75,000 and $160,000. You said that you would make a business activity statement claim straight away and asked how long it would take to get the refund. You nominated a bank account to obtain the refund; you were the sole signatory to that bank account.
9. I note here that during the offence period you did operate a small-scale concreting business and you were also employed as a construction worker.
10. As I have already set out, between 4 January and 10 April 2022 you lodged six business activity statements. The details of those statements are set out in the table on page 4 of the Prosecution Opening.[7] Each one was false.
11. During this period your bank account and tax returns show that you are earning wages as an employee.
12. When your home was searched, no invoices relating to any business expenditure were found.
13. As a result of your fraudulent statements you obtained $141,281 paid into your bank account.
14. Records show that portions of the fraudulently obtained funds were transferred by you to others, in particular to your partner. Other funds were withdrawn in cash and used for personal expenditure.
15. You engaged in a similar process between 22 April and 20 May 2022. Again, six separate business activity statements were lodged by you on six separate dates during that period. The details of the fraudulent representations are set out in the tabular form at page 5 of the Prosecution Opening.[8] The attempt was in relation to a further $139,149. These funds were not obtained by you, because the ATO had commenced an audit.
16. I pause here to note that there were amounts of money being spent by you on possible building supplies during the offence period that may have been consistent with your having a small-scale concreting business at the time. You may have had a legitimate claim to approximately $4,000 in GST refunds based on that expenditure, if substantiated. Similar circumstances attend to Charge 2; you may have had a legitimate claim to approximately $1,900 if those purchases were able to be substantiated. It is not possible to say with any certainty whether you would have been definitively entitled to those refunds.
17. On 10 February 2023 an investigation commenced and on 3 March 2023 a warrant was executed at your home address. Correspondence between you and the ATO was found and seized.
18. The investigators held a s3LA warrant which was explained to you. Initially your response was: 'I don't need to give you no password, no nothin', right'. After an explanation was given and the potential consequences of non-compliance set out for you, you then responded: 'I don't give a shit' and 'Shut the fuck up and hurry up'.
19. You otherwise exercised your right to silence.

1. Your offending unfolded over a period of over four months. The first three acts by you which were lodging business activity statements occurred approximately a month apart. When these were successful though, you quickly sent in three more activity statements in just over one month. Your offending was sustained and required 12 separate acts now covered by Charges 1 and 2.
2. More subjectively, it was put that your offending arose primarily out of the circumstances of the collapse of your concreting business during COVID lockdowns. I accept that submission but note three other features which I find contributed to your offending. First, you had a responsibility to your young family; at that stage you were the father to one young child and you were under financial pressure. You also had an ongoing substance use problem. You also, as I noted at the plea hearing, held a rather brazen sense of entitlement to Commonwealth funds owned collectively by people who pay their taxes.
3. Your offending commenced at a high level; the amount of money you dealt in was substantial from the very start. You apparently used it to pay debts and gave some money to family members. It was put on your plea that the fact that you did not invent a false business but rather used a dormant one allowed me to find your offending was not of the most serious in its category. While I do accept you used an extant entity, I do not regard, looking at the circumstances in their entirety, that this is a lower order version of this offence. You engaged in a series of acts that were organised, persistent and dishonest. The quantums sought and obtained were high.
4. Your offending amounts to a course of conduct. Six separate individual frauds were perpetrated by you, rolled up under each of the Charges 1 and 2. There was nothing particularly impulsive about what you did. It required persistent, directed administrative actions across online and in-person (telephone) transactions. This was detailed and sustained conduct by you.
5. When you were served with a copy of the s 3LA order, and after you had the consequences of not complying with that order explained to you, you breached the order by failing to provide access to your phone. This represents an additional and separate criminality. It is a breach of an order of a court, and must be taken seriously, and have consequences.
6. Notwithstanding the absence of evidence of enrichment per se I still regard your offending as objectively serious, particularly the criminality giving rise to Charges 1 and 2.
7. There is little guidance by way of authority as to the assessment of the gravity of the s 3LA offence, though I am certainly obliged to make some analysis of the gravity of your commission of that offence. [9] This offence has been described as akin to a contempt of Court.[10] The seriousness with which it is regarded by the legislature is indicated by the application of a 10-year maximum penalty. The consequences of non-compliance were explained to you, and the request made in clear terms. Your reply was, as I have already said, 'I don't give a shit' and 'Shut the fuck up and hurry up'. By its nature, this offence cannot contain a very broad range of conduct; I find this to be an example of a common and unexceptional form.

1. Your criminal history commences in 2008. There is nothing in that history that is particularly relevant to this sentencing process. You have accrued a history of minor drug-related offending and more serious offences of violence: recklessly causing injury, affray, being the most serious examples. You have so far been dealt with by fines, a suspended sentence, and community corrections orders, some of which you have breached. While this past offending is not particularly relevant to my sentencing task, you cannot call on, and did not call on, claims to otherwise be of good character so there is no source of mitigation there.
2. I note for completeness that you have two subsequent convictions dated April 24 and January 2025. Again, these relate to minor drug possession and an offence of public disorder. As a result of these offences, albeit minor and unrelated, I do have a somewhat diminished confidence in your prospects of rehabilitation.[11]

1. You were between 32 and 33 years old at the time of your offending. You are now 35.
2. You were born in Sydney and are of Turkish heritage. Your parents immigrated from Ancora, Istanbul to Australia approximately 40 years ago.
3. You have an elder brother. You describe that relationship as positive, however it is distant.
4. You have described your upbringing as 'strict' and at times 'hectic', reporting that your family life was not particularly positive during your adolescence.
5. When you were 11 years old, your family relocated to Melbourne. That allowed you to spend time with your extended family and other members of the Turkish community.
6. At 13 years old you came under the influence of people outside your family; you distanced yourself from home and from them. You have described your behaviour at this time as 'antisocial'.
7. Your experience of school was generally a positive one. You completed up to Year 8, however at this point lost interest in study and your academic performance declined.
8. At 15 years old, you left school and moved out of the family home. You lived with friends and started working with your uncle in the concreting industry. It was at this time that you developed a relationship with alcohol and with illicit drugs.
9. By the age of 16, you were using cannabis approximately every second day, and cocaine approximately three to four times a week. You have also experimented with methamphetamine.
10. You established your own concreting business at 23 years old. This business was initially successful, however COVID-19 had a significant impact on it. By 2021, you owed approximately $50,000 to employees and subcontractors. Your business ultimately collapsed in late 2021 and that was profoundly stressful for you. Your relationship with your partner came under pressure and you engaged in what has been described as 'bendering' behaviour.[12]
11. You began your relationship with your partner when you were 18 years old. At 24, your first child was born. It was after the birth of your son that your relationship with your parents improved, and your drug use decreased. Your son is now 11.
12. In April 2024 your twin daughters were born prematurely. On 4 May 2024, one of your daughters died of cardiac failure. This loss has had a terrible impact on you and on your family. You describe 'hurting everyday'. You visit your daughter's grave often.
13. Your surviving daughter has chronic lung disease and still needs oxygen support. She is now 11 months old. Her ongoing medical conditions are the cause of very significant stress for both you and for your partner.
14. Your counsel submitted that since the passing of your daughter, you have abstained from illicit substances. You returned to your GP and obtained a new Mental Health Care Plan.
15. You have recently returned to work in the concreting industry. Your relationship with your partner and your parents has improved, and you maintain their affection and support.

1. I have had regard to the contents of the report of Ms Jane Bidjossian, a clinical psychologist. As a result of agreement between the parties, your barrister withdrew a submission that I should find the diagnosis of complex post-traumatic stress disorder establishes mitigation pursuant to limbs 1 to 3 of the case of Verdins.[13]
2. Ultimately, what was advanced on your plea was that your depression, which it seems from the materials, has been present for a number of years, would enliven limbs five and six of that case. Specifically, your sentence of imprisonment will weigh more heavily upon you than on an offender without that condition, and that there is a serious risk of your imprisonment having a significant adverse effect on your mental health. I accept those submissions.
3. I accept too that perhaps without reaching clinical levels, you are currently in a state of profound grief flowing from the loss of your baby daughter which occurred only a year ago. It seems to me that your grief is still profound and will contribute to the burden of your imprisonment and I weigh these matters too, those going to your depression (as mitigation on limbs 5 and 6 of Verdins), and your grief also in mitigation of your sentence in a more general way.

1. I am obliged to take into account the probable effect that this sentence would have on your family and dependents, specifically, on your partner and your two children. Their situation is set out your partner's letter which was tendered on the plea. Your son suffers from an ADHD condition and relies heavily upon you for your support. Your baby daughter still requires oxygen support and, by reference to the Western Health Discharge Summary, still suffers from a range of conditions consequent on her very premature birth. Your surviving daughter was treated in hospital for many months after she was born in what must have been very desperate and distressing times for you and for your family. You are the sole breadwinner. Your wife will have very little support upon your incarceration.
2. I take the effect on your family and dependents into account in mitigation of your sentence, and I bear in mind that this feature of your plea must not gather disproportionate weight in the sentencing process.

1. Importantly, you have pleaded guilty to the charges. You have spared the community the resources, human and financial, of conducting a trial. Your plea, made at a very early stage, indicates your acceptance of responsibility and it is a very significant matter that will reduce your sentence meaningfully.

1. I accept too that there is an aspect of contrition which inheres in your plea, and take that into account.

1. Delay too, is a feature in mitigation of your sentence. An audit of your tax affairs was commenced in May 2022, and a warrant executed a year later in May 2023, and a further year elapsed before you were charged in May 2024. I accept that from at least the warrant execution in 2023, and probably before, you were in a state of anxious anticipation of this day. I take the punitive nature of this time into account and I apply it in mitigation of your sentence.

Prospects of rehabilitation - s 16A(2)(n)

1. In her letter, your wife writes of your persistent dedication as a partner and as a father, and of your consistent work as breadwinner for the family. You have a solid work history. You have, in summary, the architecture of a decent and prosperous life. It was submitted that since your family's loss you have ceased the use of all illicit substances. If you can sustain that resolve, your rehabilitation I think is very likely. I am guardedly optimistic about those prospects.
2. Despite having some criminal history, you have never been incarcerated before and I expect that this time will be salutary for you.

1. In sentencing you I must, pursuant to s 16(1) of the Crimes Act,[14] impose a sentence that is of a severity appropriate in all the circumstances, taking into account the matters set out in s 16A(2).
2. In this case the Commonwealth Director argues that nothing other than a sentence which imposes a period of imprisonment to be served immediately is appropriate in this case, and that much is conceded by your counsel sensibly. Before I can impose such a sentence I must be satisfied that this is the only appropriate sentence in all the circumstances of the case.[15]

1. Tax fraud is not victimless. Normal taxpayers, which make up the vast majority of the community, expect that their taxes are used properly to fund the schools, and hospitals and services that we all need. Fraud against those collective funds erodes trust in the taxation process.
2. The GST claims process is one based on honesty and is therefore vulnerable to exploitation. Detection of fraud in that process is not easy, and the investigation of that dishonesty adds to the cost and complexity of the administration of the tax system.
3. General deterrence is a very significant if not central sentencing consideration in this case. Your sentence has to serve as a warning to others that when it is discovered, this behaviour will attract serious punishment.
4. Through your deceptions, the Commonwealth suffered a loss of over $141,000. A modest part of that amount has been repaid by you as a result of the ATO withholding tax refunds that were otherwise due.
5. The sentence must serve to punish you for what you did and must also clearly and publicly denounce your conduct.
6. On the s 3LA offence, I bear in mind that there is a powerful need for the sentence to give effect to the principle of general deterrence; if a significant penalty does not flow, there is created a strong incentive for refusing to comply with such an order.[16] There will be a degree of modest cumulation on the sentence on the other charges to reflect those considerations, while still applying the principal of totality to the sentence overall.

1. I have had regard to the table of comparative cases supplied by Counsel for the prosecution,[17] and the content of those cases which are intermediate appellate authority for some of the sentencing range throughout Australia. I was also referred to two broadly similar cases out of this Court by your barrister. Some of those cases have similar features to yours; none of them have precisely the same balance of objective and subjective features, but I sentence you in that landscape.

1. Pursuant to s 21B of the Crimes Act,[18] an order for reparation payable to the 'Commissioner of Taxation' is sought in the amount of $128,092.84. That represents the amount obtained by you on Charge 1, minus some deductions made by the ATO from amounts owing to you in tax returns. I make that order.
2. In the end, I accept the uncontroversial submission that your offending must be dealt with by way of at least some period of immediate imprisonment, and I have determined that no other sentence is appropriate in the circumstances of this case.
3. Stand up for me now, if you will please, Mr Cosar.

1. On Charge 1, I will sentence you to 12 months' imprisonment.
2. On Charge 2, I sentence you to 10 months' imprisonment.
3. On Charge 3, I sentence you to seven months' imprisonment.
4. I direct that the sentence on Charge 1 commence today.
5. I direct that the sentence on Charge 2 commence five months after the sentence on Charge 1, giving effect to my intention that three months of that sentence will be served cumulatively on the sentence on Charge 1.
6. The sentence on Charge 3 will commence five months after the commencement of the sentence on Charge 2, giving effect to my intention that two months of that sentence be served cumulatively on the sentences on Charges 1 and 2.
7. This results in a total effective sentence of 17 months' imprisonment.
8. I order that pursuant to s 21(1)(b) of the Crimes Act 1914 that you be released after you have served eight months' imprisonment, upon giving security by recognizance of $1,000 on condition that you be of good behaviour for 30 months.
9. Take a seat for me please, Mr Cosar.
10. I am going to explain that to you in simple terms. You have a sentence of 17 months' imprisonment. You need to serve eight months actually in custody before you are released on the recognisance release order. The balance of that sentence, the further nine months, sits there like a suspended sentence and if you get into trouble for anything during a period of 30 months, it can be reactivated, and you can be recommitted to custody. In a moment, I am going to get your barrister to explain that to you and you will be asked to sign an order.

S 6 AAA

1. Pursuant to s 6AAA of the Victorian Sentencing Act 1991,[19] I declare that had you not pleaded guilty but been found guilty after trial I would have imposed a sentence of three years and six months with a non-parole period of two years and three months.

1. I note for the records that this is the first time that you have been committed to custody and I will also ask Mr Winter if there are any custody management issues that should be noted for the record. Thank you.
2. MR WINTER: Thank you, Your Honour. May I approach my client?
3. HER HONOUR: Yes, of course. Mr Winter, the paperwork is being prepared and your client will be asked to sign that.
4. MR WINTER: Thank you, Your Honour. Yes and there's no custody management issues.
5. HER HONOUR: All right, I will just note then that it is the first time in custody.
6. MR WINTER: Yes, thank you, Your Honour. As Your Honour pleases.
7. HER HONOUR: Thank you, all right, we'll just prepare the paperwork and have it signed.
8. Mr Doger, are my orders clear? The orders for cumulation et cetera?
9. MR DOGER: Yes, Your Honour, I've checked that and it all looks fine to me. Thank you, Your Honour.
10. HER HONOUR: All right, thank you. I thank Counsel for their assistance with this case. We will now rise.
11. COUNSEL: As Your Honour pleases.

[1] Criminal Code Act 1995 (Cth) s 134.2(1).

[7] Summary of Prosecution Opening for Plea dated 4 April 2025.

[9] Baydoun v R [2024] NSWCCA 65.

[10] R v Morrison [2020] QCA 93 [25].

[11] Alain Costa v The Queen [2015] VSCA 94 [57].

[12] Psychological Report of Jane Bidjossian dated 7 January 2025 at [118] and [121].

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

[16] R v White [2022] ACTSC 178 [46].

[17] Hooimeyer v R [2025] VSCA 37; R v Ibbetson [2020] QCA 214; Henne v R (Unreported, Supreme Court of Victoria Court of Appeal, Priest JA, 20 December 2016); Acosta v R [2015] VSCA 94; R v Massey [2015] QCA 254; R v Marshall [2012] QCA 215; Gok v the Queen [2010] WASCA 185; Cao v R [2010] NSWCCA 109; DPP v Datillo [2016] VCC 1617; CDPP v Yu [2021] VCC 1431.