• Attempt to dishonestly obtain a financial advantage by deception from a Commonwealth entity

5 years' imprisonment and a non-parole period of 3 years and 6 months

1. Reparation in the sum of $34,988.95 to be paid to the Registrar of the County Court.

1. The applicant has two proposed grounds of appeal. Those proposed grounds are in the following terms:

Ground 1: The learned sentencing judge erred in imposing a sentence on charge 1 which involved no concurrency with the sentence on charge 2, thus offending the principle of totality.

Ground 2: The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive.

1. The respondent concedes that proposed ground 1 has been made out and material error established. According to the respondent this Court must exercise the sentencing discretion afresh. For reasons that appear below, we accept this concession. It will be unnecessary for us to consider proposed ground 2.

1. The offending covered by charges 1 and 2 related to the applicant's lodgement, or amendment after lodgement, of 17 individual income tax returns with the Australian Taxation Office ('ATO'). These returns covered various financial periods between 2005 and 2018 (inclusive). These returns were lodged through the auspices of a firm named Etax Accountants Pty Ltd, or by post, or through the ATO online 'My Tax Portal' lodgement system. The lodgements, or amendments, took place between 11 March and 24 April 2020.
2. Three of the 17 returns reported that the applicant had received higher than expected income. One of those three returns nominated a business that had not employed the applicant for several years. The remaining 14 of the 17 returns, covered by charges 1 and 2, all claimed that the applicant's individual tax liability was reduced due to considerably higher 'Pay as You Go' withholding credits payable to the applicant. These 14 returns also contained purported earnings from businesses that had either not employed the applicant, or had not done so at the time claimed, or had not paid the applicant to the extent claimed. The applicant claimed refunds based on the false information supplied to the ATO.
3. As part of the conduct described above, charge 2 related to three specific returns, lodged on 9, 10 and 13 April 2020, via the online 'My Tax Portal'. The lodgement of these returns resulted in refunds paid to the applicant totalling $34,988.95.
4. Charge 1 related to the remaining 14 returns. In respect of these returns, 11 refunds were sought in the sum of $337,968.03. These refunds were initially issued to the applicant. Nevertheless, those refunds were ultimately either stopped by the ATO, or they were withdrawn before being paid to the applicant. The applicant did not receive the funds claimed in respect of charge 1.
5. Charge 3 related to attempts by the applicant to obtain 'JobKeeper' payments from the ATO to which he was not entitled. The 'JobKeeper' payment scheme had been introduced on 30 March 2020 to provide a wage subsidy program to support eligible employers, including sole-traders, during the COVID-19 pandemic. Eligible businesses were entitled to a payment of $1,500 per fortnight for each eligible employee, payable for up to a maximum of 26 weeks.
6. Between May and June 2020, the applicant provided false documents to the ATO in an attempt to obtain the 'JobKeeper' payment. He did so on behalf of a business named 'Party Frenzees'. In fact, the applicant was not carrying on a legitimate business for the purposes of the 'JobKeeper' scheme. False documentation supplied to the ATO by the applicant included a false 'JobKeeper' application, as well as false supporting documentation. This latter documentation included Business Activity Statements ('BAS'), Payroll Employee Summary Reports, GST Detail Reports and a bank account transaction statement. The applicant ultimately came under the scrutiny of an ATO compliance review. Notwithstanding this, the applicant continued to make false representations to the ATO by means of telephone communication and email correspondence.
7. The applicant was unsuccessful in obtaining the 'JobKeeper' payment. Nevertheless, had the ATO accepted the applicant's application for this payment, he would have received $120,000.
8. In February 2023, Australian Federal Police ('AFP') officers conducted a Record of Conversation with the applicant. During this conversation the applicant made the following admissions:

(i) all the returns lodged contained fabricated employers and payment figures;

(ii) the applicant had been assisted in the JobKeeper application process by another person known as Bharat Panwar; and

(iii) the applicant had provided fraudulent information and documents including BAS to the ATO in order to substantiate the JobKeeper application.

1. The applicant was later formally interviewed by AFP officers. The applicant made full admissions to the offending. The applicant emphasised, in this interview, that his purpose in falsifying the BAS was to support the 'JobKeeper' application and not to obtain a BAS refund.

1. On the plea, the applicant tendered two psychiatric reports authored by Dr Nicholas Hughes. These reports referred to a history of mental illness apparent in the applicant's family. Dr Hughes diagnosed the applicant as suffering from attention deficit hyperactivity disorder ('ADHD'). There were earlier diagnoses of bipolar disorder, obsessive compulsive disorder, anxiety and depression. The applicant submitted that the applicant's diagnosis with ADHD required that lesser weight be given to specific and general deterrence.
2. It was submitted that the applicant's moral culpability should be lowered on account of his difficult upbringing and his addiction to drugs.
3. It was submitted that the applicant was effectively homeless when the present offending commenced. This was during the COVID-19 pandemic. The applicant was living on the streets; he was desperate for money for drugs and for gambling. The applicant had struggled with drug addiction since he was a teenager. The money obtained as a result of the commission of charge 2 permitted the applicant to rent an apartment; it was then that the charge 3 offending occurred.
4. The applicant emphasised the three-year delay that had elapsed between 2020 (when the applicant's offending was detected and he was initially investigated) and 2023 (when the applicant was arrested).
5. It was acknowledged that the applicant had a relevant prior criminal history. Between 2013 and 2014, the applicant had served three terms of imprisonment in New South Wales ('NSW') for dishonesty offending. In 2017, he served a term of imprisonment in NSW for stalking; he served a further term of imprisonment in NSW in 2018 for offences connected with an attempt to escape from prison. The longest term of imprisonment hitherto imposed upon the applicant was 18 months. The applicant had not been to prison since he had completed parole in 2019 in NSW.
6. The applicant had some further outstanding offending; this included offending for dishonesty committed in Victoria. It was submitted that the applicant had not offended since around October 2022.
7. The applicant did not dispute that he should receive a term of imprisonment; but it was submitted that it was open to the sentencing judge to impose a 'de-facto combination sentence' through the imposition of a term of imprisonment on one charge with the applicant to be released on a recognisance release order after service of three months. Upon release, the applicant could then be made immediately subject to a community correction order imposed on a separate charge. It was submitted that the applicant had never before had the benefit of a community correction order. The applicant submitted that he was prepared to comply with a reparation order.
8. The prosecution submitted that the objective gravity of the applicant's offending was high. The applicant had, in total, either obtained - or attempted to obtain - almost half a million dollars. It was submitted that the applicant's offending was continuous, brazen and motivated by greed. Specific deterrence was important in view of the applicant's criminal history. General deterrence was very important given the ATO's general reliance on the honesty of taxpayers, and the ease with which that trust could be abused.

1. The judge, in her reasons for sentence, noted that the applicant was aged 35 at the date of sentence, and 31 when he offended.[3]
2. The judge doubted the veracity of much of the history that the applicant had recounted to Dr Hughes.[4] Nevertheless, the judge did note Dr Hughes' ADHD diagnosis.[5] The judge accepted that during the offending the applicant had engaged in heavy abuse of the drug 'Lyrica'. But the judge did not accept that the applicant's drug-taking reduced his culpability. The judge considered that the applicant's offending was 'systematic and planned'.[6] The judge observed that

The reasoning behind Dr Hughes' opinion that your culpability and judgment were not reduced by your ADHD, apply also to the drug abuse.

I do not accept the submission made by your counsel that the circumstances in which you first became addicted to drugs leads to some reduction of your culpability. First, I do not accept on balance of probabilities that your father drugged you as a child or pushed drugs on you as a teenager. I note, in particular, the varied accounts you have given about the commencement of your drug use. Secondly, I do not consider the drugs you were taking at the time impacted your judgment or capacity to reason about the wrongfulness of your actions. Thirdly, obtaining money for drugs was simply part of your financial concerns, which also included gambling and life expenses.[7]

1. The judge did not accept the applicant's case for reduction in moral culpability premised upon the applicant's upbringing. As the judge expressed it, 'I do not think that this matter has been established on cogent evidence'.[8] The judge observed that

Whilst I am prepared to accept that your background was not happy and that you turned to crime and drugs in your teens, I am unable to accept, on balance of probabilities, your statements about your father drugging you and supplying drugs and abusing you in the ways you have described.[9]

1. The judge then turned to the applicant's criminal history. Her Honour described the applicant's criminal history in the following terms:

You first appeared in the adult courts in 2008 when you were 19. The offences were stalking, assault and failing to leave the premises. ... You received two years' probation ...

In February 2013 you were in court on multiple charges of obtaining property by deception, for which you ultimately received a sentence of 18 months with a non-parole period of seven months. You were 24 at the time. The next year you were again in the local court for dishonesty charges, this time receiving a sentence of 12 months with a non-parole period of four months.

In 2017 you were again sentenced for stalking, this time receiving a significant sentence of 15 months with a non-parole period of eight months. In 2018 you were sentenced to nine months for having fled the court when you were being sentenced for the stalking charge.

After you finished parole on the 2017 sentence, you moved to Victoria. Since committing the offending for which I will be sentencing you today, you were sentenced on 23 November 2020 for theft and obtaining property by deception, and in June 2021 for possession of methylamphetamine and another drug, and possessing property suspected of being the proceeds of crime.

I am told that you have pending charges for offending from 2019, 2020, and October 2022, with a consolidated plea booked in in the Magistrates Court.

I was told also that since you were charged in February 2023 you had not accumulated any further charges.[10]

1. Dealing with the gravity of the present offending, the judge noted that the maximum penalty for each offence faced by the applicant was 10 years' imprisonment.[11] The judge accepted that the applicant's offending was 'not particularly sophisticated'; that charges 1 and 2 were part of the 'same course of conduct'; while charge 3 was a 'new endeavour, but of a similar nature'.[12] The judge noted that the applicant had agreed to the imposition of a restitution order in respect of charge 2.[13]
2. Dealing with totality, the judge observed - importantly, for the purposes of the applicant's proposed ground 1 - that

Whilst Charge 2 occurred as part of the course of conduct captured by Charge 1 it involves additional criminality and actual gain by you. Thus, I consider that there must be a degree of cumulation between the sentences on those two charges.

Charge 3 is separate offending, but it was close in time and of a similar character to Charges 1 and 2. It was clearly a new enterprise, reacting to the government initiative of Job Keeper. It involved creation of new documents and a sustained course of conduct. In the interests of ensuring that the total sentence reflects the totality of the offending, there will be some concurrency between the sentence on Charge 3 and the other charges.[14]

1. As with the history recounted to Dr Hughes, the judge doubted the reasons given by the applicant for his offending. Her Honour found that

Based on your history of offending, the bank records, and the interview with the AFP, it appears to me that you committed these offences to get money, dishonesty being a long-term method used by you to make money. Whilst I accept you had a problem with gambling and drugs, this does not mitigate your offending as I have said.[15]

1. The judge took into account the 'nearly three years' that had elapsed between the present offending and the applicant's arrest. The judge observed in respect of that period that

It cannot be said that you wholly rehabilitated yourself in that time, but you have certainly made positive steps. Furthermore, I take into account in mitigation that you have been waiting in suspense for the charges to arrive for all of that time. You made reference to this in the interview.[16]

1. The judge noted that the applicant's pleas of guilty 'were made before it had become apparent that the impact of the [COVID-19] pandemic on the court list [had] passed'. The judge concluded that the pleas had 'obviated the need for what would otherwise have been a technical and reasonably lengthy trial'.[17] The judge accepted that the applicant's pleas 'do reflect some remorse', and that the applicant did 'understand the impact of [his] offending and the impact of defrauding the revenue'.[18]
2. The judge assessed the applicant's prospects of rehabilitation as 'reasonable', but found that specific deterrence remained a 'relevant factor' in sentencing the applicant.[19]
3. The judge considered general deterrence, also, to be an 'important factor' given the ATO's reliance upon the 'truthfulness of those filing documents'. The judge considered that '[o]ffending of this type has the capacity to reap significant rewards for relatively little effort' and that potential offenders 'must understand that whilst it may be relatively easy to provide false information and get paid, doing so will lead to significant consequences'. The judge considered that defrauding the revenue 'harms all of us'.[20]
4. The judge had regard to a number of the comparable cases cited by the parties. The judge noted various distinguishing features apparent in those cases when compared to the present case. The judge observed that 'past sentences, whilst relevant, do not set upper or lower limits on the sentences which I should impose'.[21]

1. Under proposed ground 1, the applicant highlighted the sentencing judge's statement - referred to above[22] - that

Whilst Charge 2 occurred as part of the course of conduct captured by Charge 1 it involves additional criminality and actual gain by you. Thus, I consider that there must be a degree of cumulation between the sentences on those two charges.

1. The applicant submitted that, contrary to what the judge had indicated, the charge 1 sentence was ordered to be served wholly cumulatively upon the sentence imposed on charge 2. It was submitted that this was erroneous and in breach of the orthodox approach to sentencing described by the High Court in Mill v The Queen.[23] It was submitted that, according to the orthodox approach, a sentencing court must impose individually appropriate sentences for each offence and then determine the total effective sentence by making such orders for cumulation which are fair and calculated to reach an overall sentence which does not breach the principle of totality.

1. The respondent conceded that the judge had erred by wholly cumulating the charge 1 sentence upon the sentence imposed in respect of charge 2. This concession was couched in the following terms:

Despite her Honour's intention that there be a degree of cumulation between charges 1 and 2, in the sentence ultimately imposed the sentence on charge 1 was made wholly cumulative upon the sentence imposed on charge 2. In circumstances where the sentence structure failed to give effect to her Honour's intention, and where there was a degree of overlap and similarity between charges 1 and 2 such that wholly cumulative sentences were not appropriate, it is conceded that specific error has been established.

1. The respondent submitted that this Court had a duty to exercise the sentencing discretion 'afresh'.[24]
2. But the respondent submitted that, in the exercise of its independent discretion, this Court was not required to vary the original sentence if it concluded that this sentence was appropriate for the offender and the offences. The respondent submitted that any resentencing exercise undertaken by this Court should be aimed purely at a reconfiguration of the orders for cumulation and concurrency which would result in no reduction to the length of the individual sentences, the total effective sentence and the non-parole period originally imposed.
3. The respondent proffered two reasons why this Court should approach the resentencing exercise in such a fashion. First, it was submitted that the sentences imposed in the County Court were not manifestly excessive; and secondly, it was submitted that no reduction should be ordered in circumstances where the charge 3 sentence was 'completely subsumed by the sentences imposed on charges 1 and 2' and did not attract 'separate punishment'.

1. We accept the respondent's concession of material error. It is plain that the structure of the total effective sentence imposed upon the applicant did not give effect to the sentencing judge's reasoned intention. In such circumstances, it cannot be concluded that the manner in which the judge chose to structure the overall sentence has not, as the respondent submits, caused the exercise of the sentencing discretion to miscarry.[25]
2. Having found error, this Court must allow the applicant's appeal if persuaded that a different sentence should be imposed.[26] We are so persuaded, notwithstanding the submissions made by the respondent. Whilst there is force in the respondent's submission that the total effective sentence originally imposed on the applicant is not manifestly excessive, it is not to be thought that - in and of itself - a failure to be persuaded of manifest excess must necessarily preclude persuasion that a different sentence should be passed (conditional upon the prior establishment of error).[27] Nor must it necessarily stand in the way of persuasion that a different sentence should be passed that the charge 3 sentence imposed by the sentencing judge added effectively no additional punishment to the total effective sentence imposed below.
3. In all the circumstances, and endeavouring to apply those provisions of s 16A(2) of the Crimes Act 1914 (Cth) ('Crimes Act') that are relevant, we would confirm the individual sentences imposed by the sentencing judge. We would order that the sentence on charge 1 commence on 21 December 2023; that the sentence on charge 3 commence 18 months after the commencement of the charge 1 sentence; and that the sentence on charge 2 commence 24 months after the commencement of the charge 1 sentence.
4. This produces a total effective sentence of 3 years' imprisonment. We would order, pursuant to s 19AC of the Crimes Act, that the applicant be released after having served 18 months' imprisonment upon him giving security by means of recognisance that he will be of good behaviour until the expiry of the total effective head sentence.[28]

1. Leave to appeal is granted, the appeal is allowed, the sentences imposed in the County Court are set aside and the applicant is resentenced in the manner described above.

[3] CDPP v Crough [2023] VCC 2439, [31] ('Reasons').

[4] See, eg, Reasons, [28], [46], [62].

[14] Reasons, [74]-[75] (emphasis added).

[23] [1988] HCA 70; (1988) 166 CLR 59, 62-3 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70.

[24] Citing Kentwell v The Queen (2014) 252 CLR 601, 616-19 [39]-[43] (French CJ, Hayne, Bell and Keane JJ); [2014] HCA 37 ('Kentwell'), and Kite v R [2021] NSWCCA 159, [33]-[34] (Cavanagh J, Harrison and Bellew JJ agreeing at [1]-[2]).

[25] It is pertinent, in this respect, to note that, at the invitation of the Judicial Registrar of the Court of Appeal, the sentencing judge provided a Report to this Court. In that Report the sentencing judge claimed that her intention was 'in effect' to order 'cumulation of 6 months of each of the sentences on Charges 2 and 3 upon the sentence on Charge 1' - thus producing the same total effective sentence. The judge stated that the 'method in which [her Honour] sought to achieve that outcome was clumsy'. As explained in R v Sloane (2001) 126 A Crim R 188; [2001] NSWCCA 421, the purpose of a Report of the kind now under consideration 'is not to justify or to explain why a Judge has dealt with a matter in a particular way'; and nor is it 'to explain a decision for which reasons should have been provided': at 189-90 [9]-[13] (Wood CJ at CL, Studdert and Bell JJ agreeing at [49]-[50]). In keeping with those observations, whilst we have had regard to the substance of the judge's Report, we have not found it of assistance in determining whether to accept the respondent's concession of error.

[26] See the Criminal Procedure Act 2009, s 281(1)(b).

[27] See Kentwell 252 CLR 601, 617-18 [42] (French CJ, Hayne, Bell and Keane JJ); [2014] HCA 37.

[28] Pursuant to s 6AAA of the Sentencing Act 1991, but for the pleas of guilty, the total effective sentence that would have been imposed upon conviction is 4 years and 9 months' imprisonment with a non-parole period of 3 years and 3 months.