HRNG ADELAIDE, 11 December 1992 #DATE 22:12:1992 Counsel for plaintiff: Mr G R Clift Solicitors for plaintiff: Australian Government Solicitor Defendant in person.

JUDGE1 PERRY J The defendant is charged by the Comptroller-General of Customs with a number of offences under the Excise Act 1901, ("the Act") involving the making of false statements and obtaining payment of rebates in respect of diesel fuel said to have been for use in primary production. The plaintiff proceeds in the civil jurisdiction of the Court pursuant to s.134(1)(a) of the Act. He seeks declarations that the defendant was guilty of the conduct constituting the various offences, that convictions be entered against the defendant in respect of each of them, and that the defendant be ordered to pay fines and penalties. 2. The defendant, who is unrepresented, has not filed a defence. The plaintiff now applies by application for the appropriate declarations and other orders to be made. 3. When the matter was called on, I drew Mr Grills' attention to the fact that he was entitled to be represented by a solicitor or counsel, but he indicated that he had been refused legal aid. He expressly admitted before me the breaches of the Act which have been asserted against him. 4. Counsel for the plaintiff informed me of the circumstances surrounding the offending, and Mr Grills then made what would, in the criminal court, have been described as submissions for leniency. 5. The defendant is aged 51 years. He has always lived on the land. At first he farmed his father's land at Karoonda. For the last twenty years he has lived and worked at Meningie. In 1973, to use his expression, he was "wiped out" in a disastrous fire, following which his wife left him. He had a struggle to re-establish himself. When he had apparently succeeded to a degree in doing so, his wife then made a claim for settlement of property, in response to which he felt obliged to obtain legal advice. I accept his assertion that he did not have the money to pay for it and was tempted to put in a false claim for a rebate of excise duty. To use the words of the defendant: "I considered my former wife would claim that much of my assets that it would break us. My mind lost all sense of responsibility. I filled the form in for the purpose of obtaining money to try and offset the claims being made against me through divorce." 6. To make the claims, he was obliged to lodge a written application, to which was attached invoices and other supporting material, including a declaration that the particulars contained in the application were true and correct. Somehow he obtained possession of invoices and statements in the name of a supplier of diesel fuel, which he falsified and submitted, together with the application and declaration in March 1989. 7. Further offences of a similar kind occurred in June and November 1989. 8. In January 1990, the defendant made a false claim using a somewhat different technique. He opened a branch account in a false name, a Mr "Goodwin", and in the same name he made an application for payment of a rebate in respect of diesel fuel. 9. By that stage, however, the defendant had misgivings as to what he was doing. To use his words again: "It had been playing on my conscience excessively since I put in the false claims, to the extent that I don't sleep at night and it was affecting my work." 10. He was prompted to alert the Department as to the falsity of the claim lodged in the name of Goodwin by a note dated 5 February 1990. The note read: "Dear Sir The claim for diesel fuel rebate lodged in the name of N.R. Goodwin is not valid, so please don't pay rebate on that account. I will surrender myself to you next week when I get the courage, probably Monday." 11. At about the same time the defendant came into the Department and not only confessed to the false claim put forward in the name of Goodwin, but he also made a confession with respect to two out of the three false claims which he had submitted in his own name. He brought with him at the same time a cheque for the total amount of the claims which he had confessed to, which he paid over in reparation. 12. Subsequent investigations by the Department indicated that there was a third false claim to which he had not at that stage confessed. That was in fact the first committed in point of time, namely that which was committed in March 1989. When questioned about that matter, he admitted without reservation his complicity in that offence. 13. During the course of his formal record of interview with respect to that offence, he said: " ... if I knew that there were other dockets involved, I would have brought them in and repaid the money when I came in before and brought them to your attention." 14. The plaintiff has not sought to join issue with any of the assertions by the defendant in the formal records of interview or in his submissions to me. In those circumstances, I sentence him on the basis that while under stress and with the offences playing on his mind, he inadvertently did not make a full confession at first, but owned up to the outstanding offence when challenged about it. Furthermore, he also made reparation of the amount involved in that offence as well. 15. The immediate situation of the defendant is that he is married, having remarried earlier this year. He has two small step children. He owns a five-acre property on the edge of the township of Meningie. He uses the land as a depot from which to operate his farming and contracting business. He share farms, and as well does agricultural contracting work and some work for the National Parks authority. He owns a tractor and a plough and some other equipment. 16. His wife works part-time as a hairdresser, and they receive a family allowance supplement each fortnight. The applicant's gross earnings were of the order of $50,000 last year. I have sighted the plaintiff's taxation assessments for the last four or five years. Between the income years ended June 1988 to June 1992, the applicant did not earn sufficient to be taxable. He has substantial overdrafts with two banks. Poor seasonal conditions mean that this year is unlikely to be any better than the last few years. 17. The defendant tendered several character references. People who have dealt with him over a long period of years speak highly of his character, his industry and his contributions to the community. He is a member of a well known service club, the secretary of which spoke highly of his contribution to their activities. The District Clerk of Meningie spoke highly of his willingness to develop public areas fronting his properties. 18. The plaintiff has not alleged that he has any previous convictions of any kind. 19. It will be seen from what I have said that the case exhibits some unusual features which tend to take the case out of the norm and operate to mitigate somewhat the seriousness of the offences for the purpose of imposing penalty. The most important of the mitigating factors are: (a) The defendant's age and previous good character. (b) The fact that at the time of the offending the defendant was under considerable stress following his marriage break up and the demands upon him for a property settlement. (c) The moneys the subject of the charges went to lawyers and towards his former wife's claim and he did not benefit personally. (d) When his conscience got the better of him he made a full and frank confession in circumstances in which it was unlikely that the offences would have been detected had he not come forward. (e) He promptly repaid the whole of the moneys the subject of the offences. On my calculation that is an amount of $8,779.70. 20. Against those matters, it must be recognised that the offences were serious and committed over a period of time, and that the successful operation of the scheme of excise rebates relies very heavily on the honesty of applicants for a rebate. Furthermore, the very substantial minimum penalties provided in the legislation are an indication of the seriousness with which offences of this type are to be regarded. 21. Having regard to the number of counts, the aggregation of the minimum penalties provided in the Act would amount to a very substantial total. For example, the four charges arising out of the fraud committed in March 1989 are:

(1) Making an untrue statement in a document. (2) Delivering a document containing an untrue statement. (3) Obtaining a rebate which was not payable, and (4) Attempting to obtain such a rebate. The penalty on (1) and (2) is a fine not exceeding $5,000, and on (3) and (4) a fine not exceeding five times the rebate obtained (in these counts five times a total of about $5,000) and not less than two times that amount. 22. As from 5 May 1989 the Act was amended, and the penalty options widened. The amending legislation applies to all of the remaining charges in question. Mr Clift, for the plaintiff, suggested that a discretionary additional penalty with respect to charges of making a false statement (s.120(1)(vi)(A) applied thereafter having regard to s.120(3). But that section applies only to cases involving false statements in connection with duty payable on particular goods. In the result, the penalty options for the offences committed in June and November 1989 and January 1990, are the same as I have indicated with respect to the offences committed in March 1989. 23. It should be noted that the penalty for an attempt is the same as would have been the case if the attempted offence had been committed (Crimes Act, s.7). Imposition of even the minimum offences on the totality of charges would result in a penalty which would be crushing and disproportionately severe, having regard to the totality of the offending, considered against the background of the unusual circumstances to which I have referred. 24. While I take heed of all that was said by the Full Court in Hayes v Weller (1988) 50 SASR 182, the unusual circumstances of this case are such that it would be proper to design a sentencing package which will be based in part upon an exercise of the Court's power under s.19B of the Crimes Act to dismiss most of the charges. 25. I have approached the matter on the basis that I should have regard to the overall offending, and impose an overall penalty commensurate with that offending which is not of crushing dimensions, but which answers to the public interest as well as to the personal circumstances of the defendant. 26. I bear in mind also that it is not a proper exercise of the sentencing discretion to impose a fine which the defendant has no hope of paying (see Young v Geddie (1978) 22 ALR 232, Winkler v Cameron (1981) 33 ALR 663, and Fry v Bassett (1986) 44 SASR 90). 27. In my opinion, a proper overall fine or penalty, having regard to all the circumstances, is $10,000. I therefore make declarations, record convictions and impose fines on what might be regarded as representative counts referrable to each group of offences, which in total will amount to that sum. 28. The defendant must be given time to pay. As to that, allowances must be made for the depressed rural economy and his lack of means. I will allow 2 years within which to pay. I declare that: (i) the defendant did make in a document produced to Customs a statement which was untrue in a particular as referred to at paragraph 15 of the Statement of Claim and did make in a document produced to Customs a declaration which was untrue in certain particulars as referred to in paragraph 16 of the Statement of Claim in this matter; (ii) the defendant did produce or deliver to Customs the

documents referred to at sub-paragraphs 9(1) and 9(2) of the Statement of Claim which documents contained statements that

were untrue in certain particulars as referred to in paragraphs 11 and 13 of the Statement of Claim contrary to paragraph

120(1)(vii) of the Excise Act 1901; (iii) the defendant did obtain a rebate which was not payable as referred to in paragraph 21 of the Statement of Claim

contrary to paragraph 120(10(vb) of the Excise Act 1901; (iv) the defendant did attempt to obtain a rebate which was not payable, as referred to in paragraph 22 of the Statement of Claim contrary to paragraph 120(10(vb) of the Excise Act 1901 and section 7 of the Crimes Act 1914; (v) the defendant did knowingly make a statement to Customs which was untrue in a particular as referred to at paragraph 29 of the Statement of Claim contrary to 120(10(vi)(A) of the Excise Act 1901; (vi) the defendant did obtain a rebate which was not payable as referred to in paragraph 33 of the Statement of Claim

contrary to paragraph 120(1)(vb) of the Excise Act 1901; (vii) the defendant did knowingly make a statement to Customs which was untrue in a particular as referred to in paragraph 38 of the Statement of Claim contrary to sub-paragraph 120(1)(vi)(A) of the Excise Act 1901; (viii) the defendant did obtain a rebate which was not payable as referred to in paragraph 42 of the Statement of Claim contrary to paragraph 120(1)(vb) of the Excise Act 1901; (ix) the defendant did knowingly make a statement to Customs which was untrue in a particular as referred to at paragraph 49 of the Statement of Claim contrary to sub-paragraph 120(10(vi)(A) of the Excise Act 1901; (x) the defendant did attempt to obtain a rebate which was not payable, as referred to in paragraph 52 of the Statement of Claim contrary to paragraph 120(1)(vb) of the Excise Act 1901 and section 7 of the Crimes Act 1914. 29. Having regard to the character and antecedents of the defendant and the extent to which the offences were committed under extenuating circumstances, I exercise my power under s.19B(1) of the Crimes Act to dismiss the charges relating to declarations number (ii), (iii), (iv), (vi), (viii) and (x). I convict the defendant on the remaining charges, as to which the fines will be: (i)$2,000 (v)$2,000 (vii)$3,000 (ix)$3,000. Total $10,000 There will be two years from today, within which the above sum is to be paid. In default, there will be six months imprisonment.