DPP v Nukunuku [2025] VCC 844

1. Mr Nukunuku, you have pleaded guilty to the following charges:

Charge 1: Obtaining a financial advantage by deception from a Commonwealth entity, contrary to section 134.2(1) Criminal Code (Cth); and

Charge 2: Attempting to obtain a financial advantage by deception from a Commonwealth entity, contrary to sections 11.1(1) and 134.2(1) Criminal Code (Cth).

1. The maximum penalty for each charge is 10 years' imprisonment and/or 600 penalty units ($133,200).

1. The agreed facts of your offending are set out in the Summary of Prosecution Opening for Plea (Exhibit A). I will not repeat the entirety of the facts but in brief, between 24 November 2021 and 17 March 2022, you lodged five Business Activity Statements (BAS) with the Australian Taxation Office (ATO) which falsely represented that between 1 November 2021 and 30 March 2022 you paid $168,000 in Goods and Services Tax (GST) on purchases for your purported business. As a result of that deception, you dishonestly obtained a financial advantage from the Commonwealth of $168,000 (Charge 1).
2. In addition, between 21 April and 20 May 2022, you lodged two BAS (and amended one of those), which falsely represented that between 1 April and 31 May 2022 you paid $100,000 in GST on purchases for your purported business. You were not paid those claims, so the charge is that you attempted to obtain a financial advantage of $100,000 from the Commonwealth (Charge 2).

1. On 2 November 2021, you applied to re-activate an Australian Business Number 24 661 201 108 (ABN) which you had first obtained on 25 May 2005, and which had last been cancelled on 26 March 2019. In the application you indicated that you were an 'individual/sole trader' providing 'Concreting services' (Concreting Business). On 19 November 2021, you registered with the ATO for GST and elected to report GST monthly. The registration of the GST was backdated to 1 November 2021.
2. Charge 1: Between 24 November 2021 and 11 March 2022, you lodged five BAS online via the ATO Portal for your purported Concreting Business that covered the reporting period 1 November 2021 to 31 March 2022. The details of the BAS lodged, and amounts paid by the Commonwealth into two NAB bank accounts held by you, are as follows:

1. In each of the five BAS lodged with the ATO, you falsely stated that the Concreting Business had paid a specified amount of GST on its purchases when you were not carrying on the business and the purchases did not occur. You obtained a total financial advantage of $168,000 by being paid refunds based on the false representations in each of the five BAS.
2. Between 1 November 2021 and 31 May 2022, you made withdrawals, transfers and payments totalling $210,122.00, of which $197,186.24 was for[1]:

a. $77,372.27 were to other persons with personal descriptions.[2]

b. $39,182.24 were accommodation expenses at various hotels and serviced apartments.

f. $11,270.89 were car expenses including for the purchase of a BMW X5.

h. $7,220 were miscellaneous entertainment and leisure expenses.

1. Charge 2: Between 21 April and 20 May 2022, you lodged, and later amended, one BAS for the reporting period 1 to 30 April 2022 and an additional BAS for the reporting period 1 to 31 May 2022. Each of those BAS were lodged online as follows:

1. In each of the BAS lodged, you claimed GST that the purported Concreting Business had paid on its purchases during the relevant periods. In early May 2022 you were subject to an audit during which the ATO found no evidence that you were carrying on a business, and accordingly rejected the above claims and did not pay any amount sought in the BAS on the basis that no purchases were ever made.

1. The principles relevant to sentencing for taxation fraud involving dishonestly obtaining GST refunds or other 'white collar' fraud, are well established as follows:

(i) Ordinarily imprisonment, with time to be served, will be the only sentencing option for serious tax fraud in the absence of powerful mitigating factors. A more severe sentence may be expected where the offending is planned and sophisticated and the offender lacks remorse[3] and where significant sums are defrauded systematically over a substantial period.[4]

(ii) General deterrence is a particularly significant sentencing consideration given the need to protect the revenue.[5] This assumes further importance given the complexity of the taxation system, the rise of self-assessment and self-reporting in fulfilling taxation obligations, and the consequent reliance on the honesty of taxpayers. Because the system is based on trust, it is open to abuse. Accordingly, when abuse is discovered, sentences must be salutary.[6]

(iii) Where general deterrence is the primary sentencing consideration, personal mitigatory factors such as prior good character, age, and prospects of rehabilitation must therefore be given less weight than might otherwise be given.[7]

(iv) Denunciation and punishment are also important sentencing considerations.[8]

(v) Tax evasion is not a victimless crime. It affects the whole of the community as it has a flow on effect to the incidence of tax to the honest taxpayer and in the ability of the government to provide for the community.[9]

(vi) Taxation offending is often easy to commit,[10] difficult, time consuming and expensive to detect and prosecute[11] and if undetected can produce significant rewards.[12]

(vii) The amount of money involved in the offending is a significant consideration in assessing the seriousness of offending and the level of criminality involved as this is "...an indication of the extent to which an offender is prepared to be dishonest and to flout the law and to advance whatever are his or her own purposes"[13]

(viii) Taxation fraud is an especially serious offence when it involves the obtaining of so called 'refunds' of substantial sums of money, which were never due to the offender in the first place.[14]

1. I have also had regard to the matters applicable in sentencing for Commonwealth offences. Section 16A(1) of Crimes Act 1914 (Cth) provides that a court must impose a sentence or an order that is of an appropriate severity in all the circumstances of the offending and s16A(2) sets out a non-exhaustive list of factors that must be taken into account as far as these are relevant and known to the Court. I have had regard to the following factors set out in s 16(A)(2):

16A(2)(a) Nature and circumstances of the offence

1. It cannot be said that your offending is not serious, and your counsel accepted that a term of immediate imprisonment was warranted.

a) The offending in charge 1 involved you being paid $168,000 to which you had no entitlement at all and charge 2 involved you attempting to obtain a further $100,000 to which you also had no entitlement. These are not trivial amounts of money.

b) Your overall offending involved the lodgement of 8 false BAS (one was an amended BAS) representing a course of conduct involving the commission of several separate acts of criminality within the two charges.

1. Your offending could not be viewed as impulsive, sporadic or unplanned given you lodged multiple false BAS, each lodged on different days over a period of over 6 months. You reinstated a former ABN that you had for a purported concreting business three weeks before your offending commenced, you then registered that business for GST with the ATO and only five days later you lodged the first false BAS.

d) You knew the information you provided was false and that the credit to your accounts, and subsequent attempt to obtain further funds, was based entirely on this false information. You brazenly stated that your fictitious business had made $2,948,000 in purchases resulting in you seeking refunds of $268,000 when you were not running a business at all.

e) You spent some of the funds on items that suggest greed, not need, such as $11,270.89 on the purchase of a BMW and associated car expenses, entertainment and leisure expenses, travel expenses, and retail shopping.

1. Your counsel pointed to several matters that demonstrate that objectively your offending falls at the lower end of offending of this nature, including:

a) The relatively low amount of money obtained and attempted to be obtained

b) The duration of 6 months being a short period of offending

c) Your offending was generally unsophisticated as you used your own name and bank accounts linked to you and you did not use any false documents in the offending

d) Your offending did not involve a breach of trust

e) Your offending was not entirely for greed, and you spent some of the money you obtained on accommodation rather than all on lavish items or acquiring assets. You needed drugs, your life circumstances at the time of the offending were poor and you indicated that you wanted to obtain money to spend on your children to maintain a connection with them.

1. Your counsel submitted that your offending commenced in 2019 at a time when your children were removed from your care, you ceased working full-time with your father and had no further contact with him, your mother and your siblings. You were struggling financially, became homeless and relied on others for accommodation and your drug use escalated. Your partner went to live with her parents, but you were apparently not welcome. As your substance abuse escalated, you reported having symptoms of mental illness.
2. Whilst I do not understand it to have been pressed by your counsel, I do not accept your claim to Dr Glowinski that you met some people in the city who told you how to commit the fraud and you opened a bank account in your name, gave the people your passwords so that they controlled the bank account and they "took it from there and took most of the money". That the bank account into which some of the funds were deposited had been open for 7 years is but one factor illustrating the falsity of this claim.

1. You pleaded guilty to the charge at the first available opportunity, being at the first committal mention of the matter. Your plea warrants a clear reduction in the sentence to be imposed to reflect its utilitarian value in saving the community the time and expense of a trial and witnesses from having to give evidence, and to reflect its demonstration of acceptance of responsibility, willingness to facilitate the course of justice and remorse. I do not however find that you have demonstrated any remorse over and above that implicit from your plea alone.

1. I have had regard to the need to deter you personally from further offending of this type and the need to ensure you are adequately punished for your offending.

1. As noted earlier, general deterrence is a primary sentencing consideration for offending of this nature.

16A(2)(m) Character, antecedents, age, means and physical or mental condition

1. You were 33 years of age at the time of the offending, and you are now 36. You have a prior criminal history with your most recent convictions and findings of guilt being intermittently between 2021 and 2024. This covers offending including using a carriage to service to harass, dishonesty offences, unlawful assault, driving offences, drug possession, and offending on bail. You received fines or Community Correction Orders for most of this offending, but you did serve one sentence of 90 days imprisonment before you were remanded for offending unrelated to this matter in March 2024.
2. You have had a problem with alcohol use since you were 15. In terms of drug abuse, you have used cannabis since you were 13 and in more recent times you used cocaine fortnightly. You started using methamphetamine in 2019 which started on a weekly basis but increased to daily use.
3. In terms of your mental health, I ordered a Forensicare report after Ms Cokorilo, psychologist, revealed concerns in her psychological report that you were deliberately underperforming in intellectual testing, she administered to assess your cognitive ability after you claimed to have an Acquired Brain Injury. Further, Ms Cokorilo noted that you had been diagnosed with PTSD during your period on remand but again, indicated that you appeared to have exaggerated or even fabricated some of your symptoms, although she did opine that this does not preclude the presence of PTSD.
4. A report was subsequently provided by Forensicare psychiatrist Dr Glowinski who was uncertain about your diagnosis, suggesting 3 possible conclusions in order of relevance:

a) A series of events in 2019 which included your children being removed from your care, caused you to respond with escalating drug use and criminality with or without substance induced psychotic symptoms.

b) You are fabricating or significantly exaggerating your PTSD or psychosis symptoms.

c) You were abused and neglected as a child and have suffered complex PTSD.

1. Importantly, Dr Glowinski opined that irrespective of any diagnosis, none could in any way have causally contributed to your offending as you provided a clear account of deliberately obtaining the money fraudulently and spending it on your children. Dr Glowinski further concluded that your condition has stabilised in prison, and you are experiencing fewer symptoms than prior to your incarceration. For these reasons, your counsel eschewed reliance on any of the limbs espoused in Verdins.
2. Your counsel relied on the principles set out in Bugmy[15] as applying to your offending in a general sense. You reported that as a child in New Zealand you witnessed your father and mother being verbally and physically violent towards each other, misusing alcohol and drugs, and you told Ms Cokorilo that you were physically, verbally and emotionally abused daily by your parents. Your counsel submitted at the first plea hearing that this background of hardship, coupled with your increased drug use at the time of the offending, did not equip you with the life skills needed to address the difficulties that you were experiencing when you offended. Your response to those difficulties was to use drugs and commit fraud, which it was submitted, reflected you falling into behaviours you had seen in your childhood.
3. After the first plea hearing, you told Dr Glowinski however that you were sexually abused by your father and others in the family from age 6. You said you had had dreams of being sexually abused but could not make sense of it until your sister confirmed to you directly (or via your partner) in 2019 that you had been sexually abused by your father. You said you used substances because you did not want to remember the dreams. You said you confronted your family, and they denied the abuse and were suggesting you were 'crazy'.
4. Dr Glowinski expressed some concerns about the veracity of your report of childhood abuse. Dr Glowinski opined that it would be atypical for you not to have remembered the childhood events until age 30 and it was possible your report may be false or delusional or even frank malingering. It is also possible, he said, that the recollections of abuse arose in the context of substance abuse psychosis where you have delusional memories of childhood abuse.
5. In terms of your estrangement from your family, you told Ms Cokorilo you became estranged after you discovered in 2019 that your father had raped your sister. Interestingly, you told Dr Glowinski that your estrangement from your family occurred in 2019 after your sister confirmed that you had been sexually abused by your father as a child.
6. It is difficult to disentangle what is the truth in your case. On balance, I am prepared to accept on the balance of probabilities the possibility that you did suffer some form of childhood abuse. Dr Glowinski does, after all, opine that it is possible, amongst other possibilities, that you experienced, or at least believed you experienced, some degree of childhood trauma and I reduce your moral culpability to a modest degree to reflect this.
7. I have also had regard to your personal circumstances and background. You were born in New Zealand to a father who is an indigenous Australian and a mother who is from the Cook Islands. You have an older sister and two younger brothers. You moved schools frequently in New Zealand and experienced bullying. You moved to Australia when you were in year 7 to join your father who had relocated to Sydney. You did not speak English and were bullied in school, as you were previously in New Zealand. You attended 4 different secondary schools in Sydney mainly because you were a gifted rugby league player and wished to pursue your skills. Whilst you started year 11 you left school because your first child was born when you were in year 10.
8. You have completed a Diploma in Audio Engineering and have had a generally solid employment history. You have never been in receipt of Centrelink benefits.
9. You are the father of 10 children aged from 19 to 1 year. You have had regular contact with your partner since you were remanded in custody in March 2024. You hope to be able to be reunited with your partner and children.

1. I now turn to an assessment of your prospects of rehabilitation. You have a relatively limited criminal history, a good employment history and you have spent your time in custody very productively completing a range of courses, including a drug and alcohol course and a pre-apprenticeship program to assist you to return to employment upon release. You have an apprenticeship opportunity available to you on your release doing cabinet making. You have asked for an assessment to be placed in a residential rehabilitation program. In custody, you have been painting and have a job doing yard maintenance. You have not failed any random drug screens. You have the support of your partner, and you wish to resume contact with and the care of, your children. This is said to be a great motivator for you to cease using drugs and a protective factor in assessing your risk of reoffending. Your counsel submitted I should find that you have reasonable to good prospects of rehabilitation.
2. The prosecution submitted that your prospects were guarded, pointing to the conclusion of Ms Cokorilo that your risk of reoffending is moderate especially as your priors, whilst limited, reflect an escalation in the frequency and severity of your offending since 2021. Your offending was premeditated, and you obtained, and attempted to obtain, relatively large sums of money. The prosecution contended that you show little insight into your offending and little remorse. On balance, I find your prospects of rehabilitation to be fair, but this will be very much contingent on your success in stopping your drug and alcohol misuse.

1. Mindful of the principles of totality and proportionality, I do not consider that there should be any cumulation between the sentences imposed. The offending was put as a course of conduct and the two charges appear only to be separated because you were not paid in relation to the latter fraudulent BAS claims you submitted.

1. I was provided with a schedule containing several intermediate appellate sentences. I have had regard to the sentences bearing in mind that they provide a yardstick or illustration of the available sentences rather than being a definitive statement of the appropriate sentence. Each case must be assessed on its own facts and circumstances.

1. Mr Nukunuku, on charges one and two, you are convicted and sentenced to an aggregate of 2 years' and 3 months imprisonment.
2. I order that you serve 9 months of the term of imprisonment before being released by recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $1,000 to be of good behaviour for 2 years. The sentence commences today 16 June 2025.

39 I declare 250 days served as pre-sentence detention, excluding today.

1. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a sentence of 2 years 10 months imprisonment and ordered that you serve 12 months of the sentence before being released by recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $1,000 to be of good behaviour for 2 years.
2. I order pursuant to section 21B of the Crimes Act 1914 (Cth), that you pay reparation in the sum of $168,000 to the Commissioner of Taxation.

[1] The auditor CHEN did not account for the use to which the additional $12,935.76 was put.

[2] Between 1 November 2021 and 31 May 2022, you also received deposits of $33,730.76 from other persons with personal descriptions.

[3] DPP (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [53]; Shmuel v The King [2023] VSCA 135.

[4] DPP v Carter (1997) 91 A Crim R 222 at 232.

[5] Phillips v DPP (Cth) [2024] VSCA 132; DPP (Cth) v Goldberg [2001] VSCA 107; (2001) 48 ATR 549.

[6] DPP (Cth) v Rowson [2007] VSCA 176 at [24]; Shmuel v The King [2023] VSCA 135, [42].

[7] Tran v The Queen [2021] VSCA 292, Dickinson v The Queen [2021] VSCA 50; R v Jafari [2017] NSWCCA 152; DPP (Cth) v Page & Ors [2006] VSCA 224; R v Ellery [2012] VSC 349 at [33]; DPP (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1; DPP (Cth) v Rowson [2007] VSCA 176.

[8] Keefe v The Queen [2014] VSCA 201, [77]; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, [63].

[9] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, [63].

[10] R v Jones [2010] NSWCCA 108; (2010) 76 ATR 249 at [13]; R v Schwabegger [1998] 4 VR 649

[11] DPP (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [53]

[12] DPP (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [53]; Samarakoon v The Queen [2018] VSCA 119, [99].

[13] R v Hawkins (1989) 35 A Crim R 430 [at 435]; DPP (Cth) v Page & Ors [2006] VSCA 224 at [45]; Warden v The Queen [2019] VSCA 2

[14] R v Stitt (1998) 102 A Crim R 428 at 430.