The Crimes Act 1914 (Cth), s17A, provides as follows:

"17A -- (1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

(2) Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:

(a) shall state the reasons for its decision that no other sentence is appropriate; and

(b) shall cause those reasons to be entered in the records of the court.

(3) The failure of a court to comply with the provisions of this section does not invalidate any sentence.

(4) This section applies subject to any contrary intention in the law creating the offence."

The relevant sentences were all in respect of federal offences so, prima facie, s17A(2)(a) requires that reasons must be given by the sentencing court explaining why the view has been taken that no sentence other than imprisonment is appropriate. It may be observed at the outset that s17A(2)(a) does not specifically require the sentencing court to isolate such reasons from other considerations which it has taken into account or to compendiously list those factors as distinct from other factors which have moved the court to take the course of imprisoning the offender. In short, s17A does not require the court to give separate and distinct reasons for concluding that a sentence of imprisonment is the only appropriate response to the offence being considered, if, in the course of discussing factors relevant to the question of sentence generally, the judicial officer indicates those features which he regards as significantly enhancing the criminality of the offence or the culpability of the offender. Nor, in my opinion, is the court required to give, in effect, a separate decision, making unequivocal reference to s17A or its specific requirements (see Petreski v Cargill (1987) 31 A Crim R 277 at 285). Usually, the comments made by an experienced judge or magistrate will make it abundantly clear why the sentence of imprisonment has been regarded as the only appropriate response in any individual case (see Diner v Edwards A27/1995, Crawford J at 5).

The court is, of course, required by s17A(1) to consider "all other available sentences" in the course of coming to its conclusion that imprisonment is required, but it would be ludicrous to think that this may require the court to expressly mention and discard every conceivable mode of disposition other than imprisonment. What a farce would be created if the sentencing magistrate or judge were required to go through a check list of possible outcomes, such as discharge without conviction, conditional discharge with or without conviction, probation with or without special conditions or supervision, a fine, whether immediate or suspended and community service, and to discuss each and every one as an "available sentence" before turning his attention to the appropriateness of imprisonment in every federal case. I am satisfied that such is not what Parliament had in mind when s17A was enacted.

The purpose of s17A is to reinforce that which has been received wisdom at common law for decades, viz, that imprisonment is the ultimate penal sanction which should be reserved for those cases in which some lesser punishment is inappropriate.

In my opinion, it would be a rare case in which s17A will afford a basis for impugning a sentence where it is plain that the sentencing judge or magistrate has taken account of all relevant matters and has justifiably concluded that either a suspended or immediate custodial sentence is required.

An example of such a case is to be found in Freeman v Pulford (1988) 92 FLR 199 where the sentence under appeal was imposed by a magistrate who considered himself bound by a superior court decision to impose a sentence of imprisonment in the circumstances. Consequently, he restricted his sentencing discretion and his decision was overturned. Kearney J held that by acting in this way, the magistrate had acted contrary to the express provisions of s17A(1).

It will be noted that s17A(3) provides that failure by the sentencing court to comply with the other provisions of s17A "does not invalidate" the sentence. Kearney J also considered this provision and said at 127:

"I observe in passing that I do not consider that Mr Trigg, counsel for the respondent, was correct in his submission that the effect of s 17A(3) is that a failure to comply with s 17A(1) does not ipso facto constitute a ground for upholding an appeal against sentence, and that some further error in the sentencing process must be shown. In Morgan v Schrapel (1983) 2 NTJ 523 it was accepted that noncompliance with s 17A(1) meant that the sentence imposed could be reviewed. The purpose of s 17A(3) is simply to make it clear beyond doubt that the provisions of ss 17A(1) and 17A(2) are directory and not mandatory, with the result that noncompliance with them does not make the sentence a nullity; see to the same effect Morris v Crown Office [1970] 2 QB 114 at 122 - 123, per Denning MR, a decision on corresponding legislation in the United Kingdom which lacks an equivalent to s 17A(3)."

If, by these comments his Honour was expressing the view that a breach of s17A(1) or (2) is, of itself, a sufficient ground for upholding an appeal against sentence, I am unable to agree with him.

It is one thing to acknowledge that non-compliance may constitute an appealable error of law, but that does not necessarily mean that an appeal based on such a ground must be upheld.

If Kearney J was intending to say only that a breach of s17A exposes the sentence appealed against to scrutiny and thus operates to open the door to review, I would not disagree with his opinion, but I would observe that in Tasmania such a process is only the first step. The reviewing judge may then exercise his own discretion within the parameters permitted by s17A but only after concluding that such non-compliance has caused a substantial miscarriage of justice.

The Justices Act 1959, s110(2)(ab) provides:

"(2) On the hearing of a motion to review, the court shall, upon consideration of the evidence and materials adduced and brought before the justices and such further evidence (if any) as it thinks fit, review the order so far as relates to the ground set forth in the notice to review, and thereupon may do all or any of the following things, namely:-

(ab) in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;"

The test for whether or not an appeal on a ground such as that now under consideration, will result in the sentence being overturned must depend upon the appellate court's determination of the question whether or not a "substantial miscarriage of justice" has occurred.

It seems to me that such a conclusion can only be reached after the court has made a further determination that the sentence actually imposed was inappropriate, either because it was manifestly excessive (as claimed by ground 1 of the present motion) or because some other sentence was more appropriate. Obviously both of these questions are part of the same problem. I am therefore of the opinion that if there has been a breach of s17A, that, of itself, is not a sufficient basis for upholding the appeal.

I therefore turn to consider whether or not there has been a breach of s17A in the present case.

The applicant is 48 years of age and resides in Launceston. Since 28 May 1988, he has conducted a furniture manufacturing business known as "Landale Furniture and Upholstering". Between 22 May 1988 and 22 June 1991, the applicant was issued with a sales tax registration certificate, a condition of issue being that he would pay the Commissioner of Taxation sales tax upon the sale value of any goods sold by him during any calendar month within twenty-one days after the end of that month. Furthermore, during the period 1 January 1989 to 1 June 1993, the applicant was a registered group employer and, as such, was required to make deductions of income tax from the salary and wages which he paid to his employees. Such deductions were required to be paid to the Commissioner of Taxation within seven days after the end of every month.

In the course of an audit conducted by officers of the Australian Tax Office on 21 March 1994, it was found that the applicant had not paid sales tax for the months of May 1988 to, and including, August 1991 with the exception only of May 1990 and November 1990. It was also found that he had not paid any deductions made in respect of income tax from the wages and salaries of his employees between January 1989 and June 1993, except on February 1989, September 1989, January 1990, February 1990, September 1990 and May 1991.

The total amount of sales tax not paid during the relevant period amounted to $53,235.41 and the group tax payable in respect of employees' wages and salaries, which was unpaid, amounted to $55,495.78. Pursuant to penalty provisions in the Sales Tax Assessment Act (No 1) 1930 and the Income Tax Assessment Act, the applicant was also liable to pay penalties of $49,911.71 and $48,634.76, respectively in respect of these defaults.

The Australian Tax Office took civil action to recover the unpaid taxes and penalties and obtained judgment for $207,277.66 which the applicant was unable to pay. On 4 October 1994, the applicant was declared bankrupt on a petition lodged by the Australian Tax Office. No steps had been taken at this stage to refer these matters for prosecution in respect of breaches of the Income Tax Assessment Act, s221F(14) and the Sales Tax Assessment Act (No 1), s14. Despite his bankruptcy, the applicant continued trading, which, of course, he was entitled to do, so long as he complied with the relevant provisions of the Bankruptcy Act relating to the obtaining of credit. The Australian Tax Office was aware that the applicant was still trading and, as time passed, became concerned that tax deductions in respect of employees' wages were still not being received.

On 13 October 1994, Mr Cargill, a member of an audit team, contacted the applicant and advised him that it would be necessary to obtain fresh registration as a group employer in respect of his employees' salaries and wages. The applicant was issued with new group employer's stationery and advised that if he failed to submit his group tax by the due date, he would be prosecuted. He was also told that it would be necessary for him to keep records of all income and all expenditure as he was no longer operating a cheque account. Despite this visit, there were no further remittances of income tax deducted from the applicant's employees' wages and, on 28 January 1995, a further audit was carried out for the purpose of ascertaining how much tax, if any, had been deducted from employees' earnings and had not been remitted to the Tax Office. On 14 March 1995, Mr Cargill again spoke with the applicant who produced wages' records revealing that the following amounts of income tax had been deducted from employees' wages, but had not been remitted to the Tax Office:

On 20 June 1995, a complaint was issued in the Court of Petty Sessions at Launceston, alleging that the applicant had failed to remit the tax deductions for the period between November 1994 and January 1995. After the complaint was served upon him, the applicant still failed to remit further income deductions from his employees' wages.

On 27 June 1995, Mr Cargill again visited the applicant and asked to inspect his wages' records. Initially he was told that these records were with the applicant's accountant, but the applicant later said that they were with his wife and he would make them available on the following day. On the following day, the applicant produced the wages' records and Mr Cargill found that the following deductions from employees' wages in respect of tax had not been remitted to the Tax Office:

As a result of this visit, a further complaint was issued on 12 July 1995, alleging that the applicant had failed to remit group tax for the period, February to May 1995.

Following this, the applicant continued to trade, but he also continued to fail to remit any income tax deductions from employees' wages and salaries. On 1 February 1996, a notice was issued pursuant to the Income Tax Assessment Act, s162 requiring the applicant to furnish his personal income returns for the years ended 1991, 1992, 1993, 1994 and 1995 on or before 21 March 1996. On 3 January 1996, the applicant appeared at the Court of Petty Sessions and pleaded guilty to all counts on the two complaints that had been issued against him in respect of non-payment of employees' tax deductions. He was fined $700 on the first complaint and $2,000 on the second complaint.

On 7 February 1996, he was again visited by an officer of the Australian Tax Office. He told that officer that he wanted to comply with the tax laws as the magistrate, in January 1996, had warned him that a future appearance on taxation offences would warrant a custodial sentence and he did not want to go to gaol. However, despite these expressions of concern, no income tax deductions made in respect of employees' wages and salaries were remitted to the Tax Office by the applicant, nor did the applicant comply with the notice requiring him to lodge income tax returns for the years 1991 to 1995 inclusive.

Between May 1996 and August 1996, the applicant had several further visits from officers of the Taxation Office. On 28 August 1996, Ms Gilbert visited the applicant and asked to inspect his wages' records. He made a number of excuses and, as a consequence, avoided meeting Ms Gilbert, who wrote to him on 18 September 1996 advising him that if he failed to have the wages' records available for inspection at the next meeting, he would be given a s264(1)(b) notice to attend the Tax Office to provide these records.

In the meantime, on 13 September 1996, in quite separate proceedings in the Court of Petty Sessions, the applicant signed an application for the purpose of obtaining a restricted licence on the grounds (inter alia) that his business, Landale Furniture and Upholstering, employed five people and he, himself, was employed in that business carrying out certain work which required the use of a motor vehicle.

On 19 September 1996, the applicant kept his appointment with Ms Gilbert, but did not produce the records required. He was given until the following Thursday to produce them, but he failed to either produce the records or to attend the scheduled meeting.

On 20 September 1996, the Australian Tax Office received information that the applicant was still employing people in his business and, on 30 September 1996, a notice was issued pursuant to the Income Tax Assessment Act, s264(1)(b) requiring him to attend before Ms Gilbert on 14 October 1996 to give evidence and produce specified records. Without explanation, the applicant failed to attend at the nominated time and date.

On 15 November 1996, a complaint was issued in relation to the applicant's failure to comply with the notice. Before the return date for the hearing of this complaint, the applicant contacted Ms Hale of the Tax Office on 6 December 1996 and told her that he could not attend and produce the documents because he no longer had a driving licence and was unable to get to Hobart. On 10 December 1996, the applicant spoke to the Australian Tax Office prosecutor, Mr Eric O'Brien, and asked him if the prosecution would be withdrawn if he supplied the information and the returns. He said he could not attend an interview because he only had a restricted licence. He was informed by Mr O'Brien the prosecution would continue.

On 8 May 1997, further complaints were taken out alleging breaches of:

1 the Taxation Administration Act, s8C in relation to:

(c) the failure to comply with the notice to furnish personal income tax returns for the years 1991 to 1995 inclusive;

2 the _Income Ta_x Assessment Act, s221F relating to group stationery;

3 the _Income Ta_x Assessment Act, s221F(14) relating to unremitted group tax deductions.

On 7 July 1997, the Australian Tax Office also instituted complaints relating to the applicant's failure to pay the deductions of income tax made from salaries and wages of his employees and the sales tax that he was required to pay on goods sold and which were the amounts in respect of which he had initially been made bankrupt in 1994.

In September 1997, the applicant attended before the Court of Petty Sessions at Launceston and entered pleas of guilty in respect of each of the complaints which had been made against him. Counsel for the prosecution, Mr Arendt, presented the learned magistrate with a twenty-four page document containing a statement of the relevant facts, the prosecution's submissions as to appropriate penalties, and details of the applicant's prior convictions in respect of taxation matters. None of this written material was challenged by the applicant or his counsel on any occasion thereafter and has been accepted by the applicant throughout these proceedings as accurate. After the applicant's first appearance, the learned magistrate adjourned further consideration of the matters before him until a later date, to enable the applicant to consider Mr Arendt's written material, and make appropriate responses thereto.

When the applicant next appeared on 6 October 1997, he was represented by Mr McMillan of counsel, who presented a comprehensive plea in mitigation. Mr McMillan told the learned magistrate that the applicant had engaged a firm of accountants, Garrotts Pty Ltd, so that the applicant could provide appropriate details of his business dealings between 30 June 1992 and 1996 with a view to preparing income tax returns and establishing a picture of the applicant's financial dealings during that period of time.

Of his own motion, his Worship took the view that it would be desirable to postpone sentence until the outcome of Garrots' investigation became known. He said to Mr McMillan:

"Your submissions I think would have more potency if accompanied by actions on behalf of your client and to that end I am just wondering whether or not it would not be a matter of some utility both in so far as your client is concerned and in so far as the Department is concerned with getting required information if I don't allow some further time to see what compliance can be made because that may well be a very cogent matter then accompanying your submissions, Mr McMillan."

Mr McMillan readily agreed with this proposal and after further brief exchanges between his Worship and Mr McMillan, the learned magistrate said:

"I am also very much alert to that which has been put namely that when somebody is depressed they tend to bury their heads in the sand and deal with that which they simply can on a day to day sort of basis. But now we've got to a stage where it seems to me that it's possible that something more may be achieved if I am to grant a little further time yet. I don't want to grant time, I don't want to grant so little time that it's not, that it's going to prevent anything being achieved in that time, yet I don't want to grant so much time that it's going to, well that it's going to amount to too much of a kindness for want of a better word to the defendant. I am thinking of something in the order of six to eight weeks as an optimum sort of time."

Thereafter, just before adjourning, his Worship made two further comments directed towards the applicant. He said:

"I want the defendant to understand that he is going to have to devote a lot of time and effort in a short period of time to getting things in order. I will grant six weeks."

"The defendant is clearly to understand that this course is being taken to enable him to show that he is going to take responsibility and work away at discharging his responsibilities in regard to filing all tax returns and producing all documents which are the subject of the complaints currently before this court and that if he has not made any effort or any effort which in the given circumstances is reasonable then he can expect an adverse reaction from this court. Is that clearly understood by you?"

On 8 December 1997, the court reconvened and on this occasion the applicant was represented by Mr Bain of counsel. A report from Garrotts Pty Ltd was placed before the learned magistrate. Further submissions were made in respect of that report. Prosecuting counsel, Mr Taylor, agreed with the learned magistrate's comment that the report seemed not to really advance the matter very far. He said:

"Your Worship's observations are correct it doesn't really advance things much further with the Tax Office. It's really of little or no assistance and it appears to be a situation of too little too late."

The learned magistrate further adjourned proceedings until 19 December at 11.30am for sentence and in the meantime the applicant was remanded in custody. On 19 December, the learned magistrate proceeded to pass sentence and, in doing so, made the following comments:

" ... you appear for sentence upon a number of complaints concerning your failure to pay sales tax, your failure to pay income tax deductions, your failure to furnish income tax returns, your failure to furnish documents, your failure to produce a required document and your failure to attend before a taxation officer. The charges contained in the various complaints illustrate a history over many years of a course of conduct adopted by you of thumbing your nose at your legal obligations regarding taxation matters. You have shown an utter contempt for such laws and those charged with administering them and you have persisted despite more than generous opportunities being extended to you in frustrating attempts to have you comply with the law. Where you were given the opportunity to comply your response has been either to ignore such opportunity and continue on regardless or else you have responded in no substantial way but with mere token gestures. Essentially you have acted as a law unto yourself. In your case I agree with the prosecution's submission that there is not only a need to generally deter other would be offenders, but there is also a very strong need to specifically deter you personally and to adequately punish you for those offences where your attitude regarding taxation laws has clearly been shown to be that which I have just described. I take into account all the sentencing material before the court including those matters which amount to previous convictions and of course your counsel's plea in mitigation. A clear deterrent penalty is required, anything less would be wholly unresponsive given your high level of culpability. Where you have not been able to continue in thwarting attempts to have you comply, you have been generally manipulative, artful, devious, or deceitful and the authorities have expended significant time and energy upon your case to be met only with that sort of resistance. You are convicted upon each complaint."

His Worship then proceeded to pass sentence in respect of the individual complaints. Those complaints, and the sentences passed, were as follows:

(a) Complaints 45526/97, 45527/97, 45528/97 and 45529/97. These complaints related to the applicant's failure to furnish documents as and when required by the Australian Tax Office. On each complaint, he was fined $2,000, making a total of $8,000 in all.

(b) Complaints 45613/97 and 45614/97. These complaints were in respect of the applicant's failure to produce a required document and to attend before a taxation officer as and when required for examination. The maximum penalty available in respect of each offence was a fine of $5,000 or twelve months' imprisonment, or both. The sentence by the learned magistrate was one month imprisonment, cumulative upon each complaint.

(c) Complaint 45615/97. This complaint contained five separate counts of failing to provide income tax returns in respect of the period 1991 to 1995. The maximum penalty available was a fine of $5,000 or twelve months' imprisonment, or both. The penalty imposed by the learned magistrate was a fine of $750 upon each count, making a total of $3,750.

(d) Complaint 45954/97. This complaint contained forty-eight separate counts of failing to pay employees' income tax deductions totalling $55,495.78 to the Commissioner of Taxation for the period between January 1989 and June 1993, with the exception of six individual months. The maximum penalty available in respect of each count was a fine of $5,000 or twelve months' imprisonment, or both. The penalty actually imposed by the learned magistrate was one of four months' imprisonment upon the complaint as a whole, cumulative upon each of the other sentences of imprisonment imposed that day.

(e) Complaint 45955/97. This complaint contained thirty-eight separate counts of failing to pay sales tax totalling $53,235.21 due in respect of transactions conducted in the period May 1988 up to and including August 1991, with the exception of May and November 1990. The maximum penalty available in respect of each count was a fine of $2,000. The sentence imposed by the learned magistrate in respect of each count was a fine of $500, making a total sum of $19,000.

At the time of sentencing the applicant, the learned magistrate also made the following comments:

"In whole scheme of things, however, it is your failure to pay income tax deductions and your failure to produce documents and to attend before a Taxation Officer which are the most serious of the charges you face, where the Tax Office was then endeavouring over your obstructive tactics to establish the extent of your work-force and your liability to make deductions and generally to obtain sufficient information to have an understanding of the tax liability of your business."

After the learned magistrate had passed sentence, Mr McMillan of counsel for the applicant, referred his Worship to the Crimes Act, s20 and asked that the sentences of imprisonment be suspended upon the applicant executing an appropriate recognisance. In rejecting that submission, the learned magistrate said:

"No it would not achieve that which I intend to achieve if he were to be conditionally released. He will serve the sentence."

In the prosecution's very detailed submissions to the learned magistrate in respect of penalty, attention was drawn to the Crimes Act, s16A and each of the matters referred to in s16A(2)(a) - (p) inclusive were made the subject of comment. Similarly, Mr McMillan's submissions in mitigation, although not apparently structured with specific reference to the Crimes Act, s16A, effectively dealt with the applicant's personal circumstances and the effect which imprisonment might have upon him and his family.

There can be little doubt that the learned magistrate was fully informed on all relevant matters and that he was at pains to give careful consideration to the matters which had been placed before him. It is equally clear that he was anxious to facilitate the applicant's apparent efforts to redeem his position by engaging the services of accountants to put his financial records in order. In Diner v Edwards (supra), Crawford J, after referring to his earlier decision in Clayton v Mulcahy 19/1990, and the decision of the Full Court of the Federal Court in Petreski v Cargill (supra), made the following observations at 5:

"It is plain that all sentencing options which might reasonably have been considered by the learned magistrate were drawn to his attention by the applicant's counsel and that his Worship was effectively urged by counsel not to imprison. It is equally plain that the learned magistrate formed the opinion that the only appropriate punishment was one of imprisonment and that his Worship was not persuaded by the submissions he had just heard from the applicant's counsel which essentially argued that there were reasons justifying the imposition of a sentence of less severity than imprisonment. I agree that the mere statement that offences are deserving of actual imprisonment is not alone sufficient as an expression of reasons why no other sentence is appropriate. But in all the circumstances of this case, having regard to the submissions made by counsel and to all that was said by the learned magistrate, I am satisfied that in expressing himself the way he did his Worship was effectively stating his reasons for being satisfied that no sentence other than imprisonment was appropriate in all the circumstances of the case."

In adopting the method of approach which he did, Crawford J was plainly correct, and I can do no better than to express myself in identical terms on this occasion. The learned magistrate gave reasons which clearly demonstrated why sentences of imprisonment were called for in this case. In my opinion, he effectively complied with the statutory requirements of the Crimes Act, s17A and accordingly, ground 1A of each motion to review must fail.

I turn therefore to consider ground 1 of each motion, viz, that the sentences of imprisonment were manifestly excessive.

Mr McMillan referred me to R v Whitnall [1993] FCA 271; (1993) 42 FCR 512 in support of the proposition that revenue offences should not be regarded for sentencing purposes as any different from other offences having serious antisocial consequences. Whilst I agree with this statement of principle made by Drummond J at 519 of the above case, it seems to me to have little relevance in the present circumstances. The learned magistrate did not express a contrary opinion and the course which he took did not suggest that he regarded revenue offences as automatically requiring a sentence of imprisonment. Mr McMillan also referred to Veen v R (No 2) (1987 - [1988] HCA 14; 1988) 164 CLR 465 at 477. That case is clear authority for the proposition that an offender's previous criminal history, whilst a relevant matter to be taken into account, cannot be given such weight that it leads to a penalty which is disproportionate to the gravity of the offence before the sentencing court. This principle is so well known as to be trite. Nothing said by the learned magistrate could lead to the conclusion that he gave undue weight to prior offences. In respect of some matters, of course, it was necessary for him to consider prior offences for the purpose of determining the appropriate penalty for the complaint before him because the relevant taxation legislation provides that in certain circumstances, second and third convictions can lead to substantially higher penalties. Where there is specific statutory provision in such terms, the principle of Veen's case is not offended. In Taylor v Lanning 55/1997, Zeeman J provided a useful discussion of principles relating to sentence for taxation offences and in Bessell v Deverell 3/1998, and Brown v Stone B14/1995, Underwood J and Zeeman J, respectively, made it clear that persistent offenders merit condign punishment.

It is worth noting that in the present case, although sentences of imprisonment were imposed in respect of three complaints, the sentences so imposed were at the lower end of the range indicated by the statutory maximum penalty applicable to each case. The prosecution case was that the applicant was conducting a business using the deductions made from his employees' wages and keeping for himself the sales tax component of goods sold for the purpose of financing his enterprise. This pattern continued over a very lengthy period of time and the case was thus one in which a generally deterrent sentence was entirely appropriate. As Mr Arendt pointed out, in some cases offences of this kind can arise from forgetfulness or a sudden catastrophic business loss. The present case fell into neither of these categories. I have looked in vain for indications that the sentences of imprisonment were manifestly excessive in the circumstances of the case, and have been unable to find any support for such a conclusion, whether the sentences are viewed individually or collectively. Accordingly, the motions to review must be dismissed.