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: