231 A Crim R 413
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
[2002] NSWCCA 518
Brown v R (2018) 99 NSWLR 151
[2018] NSWCCA 257
CSR Ltd v Eddy (2005) 226 CLR 1
[2005] HCA 64
Ex parte Gleeson [1907] VLR 368
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Source
Original judgment source is linked above.
Catchwords
231 A Crim R 413
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146[2002] NSWCCA 518
Brown v R (2018) 99 NSWLR 151[2018] NSWCCA 257
CSR Ltd v Eddy (2005) 226 CLR 1[2005] HCA 64
Ex parte Gleeson [1907] VLR 368
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106[1971] HCA 12
House v The King (1936) 55 CLR 499[1936] HCA 40
HT v The Queen [2019] HCA 40219 A Crim R 237
Newman v R [2018] NSWCCA 208
Newmarch v Atkinson (1918) 25 CLR 381221 A Crim R 505
R v Capper [2000] NSWCCA 63
R v Felton [2002] NSWCCA 443135 A Crim R 328
R v Hinton [2002] NSWCCA 405134 A Crim R 286
R v Irusta [2000] NSWCCA 391117 A Crim R 6
R v Kennedy [2000] NSWCCA 527
R v Khan (No 11) [2019] NSWSC 594
R v Nahlous [2013] NSWCCA 90228 A Crim R 503
R v Qutami [2001] NSWCCA 353127 A Crim R 369
R v Togias [2001] NSWCCA 522127 A Crim R 23
Re Minister for Immigration and Multicultural and Indigenous Affairs
Ex parte Lam (2003) 214 CLR 1
[2003] HCA 6
Singh v R [2018] NSWCCA 60
Spence v Queensland [2019] HCA 15
93 ALJR 643
Tsiakas v R [2015] NSWCCA 187
Vaiusu v R [2017] NSWCCA 71
Ward v Williams (1955) 92 CLR 496
Judgment (13 paragraphs)
[1]
Background facts
Mr Kabir was a registered tax agent and a franchisee of the 'Tax Smart Group', a national network of approximately 50 franchises offering accounting and taxation services to about 31,000 individuals and business owners. Between about July 2012 and June 2014, Mr Kabir operated his franchise from an address in Kingsford.
As a franchisee, Mr Kabir had access to the Tax Smart Group's centralised database of client information, which included clients' names, contact details and tax file numbers. Mr Kabir also had access to the Australian Taxation Office's tax agent portal on behalf of the Tax Smart Group and its clients. The portal permits tax agents to view their clients' financial information in relation to their taxation affairs.
On 25 June 2014, the AFP and the ATO executed a search warrant at Mr Kabir's home. Before gaining entry, police saw Mr Kabir throw a white package from an upstairs window towards a neighbouring property. That package was later retrieved and was found to be a satchel containing a large black folder containing:
1. fifty-three bank cards from 17 financial institutions in the name of 15 individuals associated with more than 100 bank accounts. A PIN was written on the back of each card;
2. sixteen Australia Post "Load and Go" pre-paid VISA debit cards purchased from various Australia Post outlets across Sydney registered in the names of 16 individuals, with the PIN, username and last six digits of the associated mobile telephone number required to use the "Load and Go" card written on the back;
3. twenty one Vodafone prepaid SIM cards inside folded "Post It" notes which contained handwritten details of the mobile phone number, username and PIN of the enclosed SIM card. The majority of the SIM cards were found in the same plastic pocket as a "Load and Go" card. The SIM cards were used to receive the PIN required to make withdrawals using the "Load and Go" card.
[2]
Dealing with the proceeds of crime
Count 1 concerned Mr Kabir's conduct in withdrawing and transferring money totalling $51,692.97 from bank accounts into which tax refunds had been paid as a result of the lodgement of false income tax returns.
Between 29 November 2012 and 31 May 2014, 23 tax refunds totalling $51,736.46 were paid into bank accounts controlled by Mr Kabir and linked to bank cards seized during execution of the search warrant. The tax refunds resulted from Mr Kabir's lodgement of a false income tax return in the name of each of the taxpayers. Mr Kabir used nine false bank accounts and the details of 21 taxpayers who had used Tax Smart to lodge an income tax return prior to the fraudulent lodgement of tax returns.
Before each false income tax return was lodged, Mr Kabir changed the postal address recorded for the taxpayer. He also included details of bank accounts controlled by him in the fraudulent tax returns.
Mr Kabir dealt in the proceeds of crime comprising:
1. fifty-three ATM withdrawals in various amounts between $132 and $1,770, totalling $41,311.57, made from three ATMs in Randwick and Kingsford; and
2. eight internet transfers to other bank accounts within Mr Kabir's control, totalling $10,381.40. Funds were withdrawn at an ATM shortly after each transfer.
[3]
False lodgement of tax returns
Between 4 September 2013 and 12 January 2014, Mr Kabir lodged 16 false income tax returns for the financial year ending 30 June 2013 in the name of 16 clients of Tax Smart without their knowledge. Mr Kabir used information he had obtained from the tax agent portal falsely to authenticate himself as each individual taxpayer and lodge the returns, using the ATO's 2013 eTax software program.
Before lodging each tax return, Mr Kabir amended the taxpayer's details including their bank account details and postal address, so that the resulting tax refund was paid into a bank account controlled by him and correspondence from the ATO did not reach the taxpayer.
As a result, between 7 March 2013 and 20 May 2014, 16 income tax refunds totalling $22,475.18 were paid into bank accounts controlled by Mr Kabir and linked to the bankcards seized during execution of the search warrant. Thirty-three withdrawals were made from ATMs in Randwick and Kingsford using bankcards seized at that time.
[4]
Section 16BA schedule matter
The admitted offence involved Mr Kabir causing nine bank accounts to be opened in the name of Benigno Lee into which tax refunds from the lodgement of false income tax returns were paid for the tax periods 2009-2010, 2011-2012 and 2012-2013.
Mr Kabir and Mr Lee met while working in a delicatessen at Maroubra Junction. They became friends. In about July 2013, Mr Kabir asked Mr Lee to open bank accounts with various financial institutions. At the behest of Mr Kabir, Mr Lee went to numerous banks and later provided Mr Kabir with correspondence he had received from the various banks. In August 2013, a post office box was opened in Mr Lee's name. The bank records were then updated to redirect future correspondence from the banks away from Mr Lee's residential address to the post office box.
The ATO paid tax refunds totalling $16,814.73 into the bank accounts in Mr Lee's name, funds which were derived from the lodgement of false income tax returns by Mr Kabir in nine taxpayer's names. Twelve withdrawals were made from ATMs in Randwick.
[5]
Ground 1
Section 16BA is in the following relevant terms:
16BA Taking other offences into account
(1) Where a person is convicted of a federal offence or federal offences, and the court before which the person is convicted is satisfied that:
(a) there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section;
(b) the document contains a list of other federal offences, or offences against the law of an external Territory that is prescribed for the purposes of this section, which the person convicted is believed to have committed;
(c) the document has been signed:
(i) by the Director of Public Prosecutions;
(ii) for and on behalf of the Director of Public Prosecutions, by a person authorized by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; or
(iii) by a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable federal offences;
and by the person convicted;
(d) a copy of the document has been given to the person; and
(e) in all the circumstances it is proper to do so;
the court may, with the consent of the prosecutor and before passing sentence on the person, ask him or her whether he or she admits his or her guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted.
(2) Subject to subsection (3), if the person admits his or her guilt in respect of all or any of the offences specified in the list and wishes to have them taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted, the court may, if it thinks fit, in passing sentence on him or her for the offence or offences of which he or she has been convicted, take into account all or any of the offences in respect of which the person has admitted his or her guilt.
On 13 June 2017, Mr Kabir was arraigned before Conlon SC DCJ. He was represented by Mr McGuire of Senior Counsel. Handed up on that occasion was a s 16BA Schedule and Agreed Facts, in each case signed by Mr Kabir.
In accordance with those documents, Mr Kabir sought to have one charge, alleging conduct contrary to s 135.1(5) of the Code, by causing nine bank accounts to be opened in the name of Benigno Lee into which tax refunds were paid as a result of the lodgement of false income tax returns, taken into account on sentence.
[6]
Crown submissions
In Purves, the applicant was self-represented. It was not a ground of appeal that the sentencing judge failed to ask him verbally to confirm his wish to have the admitted offences taken into account. At the hearing of the appeal, the Crown brought the matter to the attention of the Court and conceded error. The Court proceeded to deliver an ex tempore judgment.
Simpson AJA, with whom Bell P and Fullerton J agreed, found at [5] that "the judge did not make the statutory inquiries and the applicant did not, therefore, make the necessary admissions and did not state that he wished the additional offences to be taken into account".
The Court rejected an argument that this Court could proceed to resentence, stating that the terms of s 16BA required the process to be undertaken by "the court before which the person is convicted" and could not be exercised by the appeal court.
The Crown submitted in this Court that Purves has no precedential value: "[Precedents], sub silentio without argument, are of no moment": Spence v Queensland [2019] HCA 15; 93 ALJR 643 at [294]; CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13]. Further, the underlying facts of Purves are unclear and the conduct that formed the basis of the concession is not recorded in the judgment.
The Crown submitted for the following reasons that Purves should not be followed.
Section 16BA confers a discretion on the sentencing court to take other admitted offences into consideration on sentence. The manner in which that discretion should be exercised was discussed in depth by this Court (in the context of the equivalent state provision) in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (Attorney General's reference) and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413.
The object of s 16BA, like s 33 of the Crimes (Sentencing Procedure) Act 1999 is "to ensure that the offender is aware of what is taking place and consents to procedures that may have a significant impact upon his [or her] freedom or the period during which he [or she] will remain in custody": R v Felton [2002] NSWCCA 443; 135 A Crim R 328 at [3], approved in R v Brandt [2004] NSWCCA 3 at [8] and as recently stated in LS v R [2020] NSWCCA 27. One of the objects of the procedure set out in these provisions "include[s] ensuring transparency in the sentencing process": LS v R at [35].
[7]
Consideration of Ground 1
In my opinion, the Crown's submissions should be accepted.
This Court should be slow to encourage the triumph of form over substance. One of the purposes for provisions such as s 16BA is to permit an offender to have offences with which he or she has not in fact been charged, dealt with and disposed of, in order that he or she will not at some later stage, following the passing of a sentence for charges that have been laid, be confronted with further criminal proceedings for those uncharged matters or be otherwise punished for the admitted offence. However, despite this obvious benefit, being the prospect that a sentencing court may "take into account all or any of the offences in respect of which the person has admitted…guilt", the procedure also carries with it at least the possibility of an adverse or disadvantageous outcome. So much is clear from the terms of paragraph 4 of the s 16BA Schedule, which in this case was in the following terms:
4. If the court takes an offence that you have admitted into account, the court may make such orders about reparation, restitution, compensation, costs and forfeiture as it could have made if you had been convicted before the court of the offence, but will not impose any other punishment for the offence.
In that context, it is therefore obviously important that an offender's admission of guilt and the associated giving of consent to the admitted offences being taken into account should take place with appropriate certainty. However, it would be an artificial and unnecessarily restrictive interpretation of the words "ask him or her" to read or understand them as requiring that the offender concerned must personally and physically participate in the process. The important issue is that the Court can be satisfied that the offender consents to the proposed course, not whether he or she does so in a particular way. If an offender is unrepresented, there is presumably no alternative to that offender indicating in words or otherwise that the necessary consent has been given. So much appears to have inspired the decision of this Court in Purves. However, in the case of a represented offender, there is not in my view anything arising either as a matter of principle or from the words of the provision that requires a Court to elicit a personal response from the offender if the circumstances otherwise make it abundantly clear that an admission of guilt has been offered and consent to the use of that admission has been given.
[8]
Ground 2
Mr Kabir objected to the statement of Benigno Lee being taken into account by his Honour as a victim impact statement upon the basis that Mr Lee was not in fact a victim of Mr Kabir's offending.
Section 16AAA of the Crimes Act provides relevantly as follows:
16AAA Victim impact statements
(1) A victim impact statement, for an individual who is a victim of an offence, is an oral or written statement for which the following requirements are satisfied:
(a) the statement must be made by one of the following:
(i) the individual;
(ii) if the court gives leave, a member of the individual's family;
(iii) a person appointed by the court;
(b) the statement must describe the impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence;
(c) if the statement is written, the statement must be:
(i) signed or otherwise acknowledged by the maker of the statement; and
(ii) given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender;
(d) if the statement is to be oral, a written or oral summary of the statement must be given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender.
(2) …
His Honour noted in his remarks on sentence, when dealing with "the offending and the offender", that Mr Kabir had taken advantage of Mr Lee and had abused their friendship and that the impact upon Mr Lee, described in his statement, was a consequence of Mr Kabir's conduct. However, Mr Kabir submitted that Mr Lee was not a victim of the offences at all and that his statement was not, and should not have been received as, a victim impact statement as defined in s 16AAA. Notably, according to Mr Kabir's submission, the agreed facts did not include an explanation for Mr Lee's involvement in the establishment of the various bank accounts in his name and there was no suggestion that his involvement was not voluntary.
The agreed facts make it clear that Mr Kabir recruited Mr Lee to facilitate his offending. Twenty-three of the 53 bank cards contained in the black folder seized from Mr Kabir's home were in the name of Mr Lee. Mr Lee opened these accounts at Mr Kabir's request. However, once the accounts had been opened in Mr Lee's name, the postal addresses for the accounts were changed from Mr Lee's residential address to a PO Box address in a different suburb where Mr Kabir lived. The bank's records were altered accordingly. Income tax refunds were thereafter paid into nine different bank accounts opened in Mr Lee's name. Mr Lee's name was therefore used to open the very accounts into which the fraudulent tax refund payments were made.
[9]
Ground 3
Section 16A(2)(p) of the Crimes Act requires the Court to take into account "the probable effect that any sentence or order under consideration would have on any of the person's family or dependants". In his Honour's remarks on sentence, he dealt with this issue in the following terms:
"[89] One matter which looms large in this case is the hardship to the Offender and to his family which may be occasioned by the sentence. I note that in his statement to the court the Offender…refers to the effect which even the charges have had upon his life and his family. I have had regard to those matters.
[90] I have also had regard to the fact that the Offender and his wife had a young child who, at the time of the hearing, was 18 months old. It was said that a period in custody would be particularly harsh in the case of the Offender, as he is the carer of that child and his wife is completing her surgical registrar placement. It was submitted that a period in custody would result in the Offender's wife having to endure great hardship in balancing her parental duties and her medical studies. This is a relevant factor per s 16A(2)(p) of the Commonwealth Crimes Act."
His Honour was not satisfied that the matters he considered amounted to exceptional circumstances, consistently with the authorities to which he referred: see R v Togias [2001] NSWCCA 522; 127 A Crim R 23 at [13]-[17]; R v Hinton [2002] NSWCCA 405; 134 A Crim R 286; R v Capper [2000] NSWCCA 63. The debate (see, for example, R v Betka [2020] NSWSC 77 at [76]-[78]) concerning the question of whether or not exceptional circumstances need to be established to engage the provision does not require consideration in this appeal as Mr Kabir appears clearly to have conceded that the facts of his case do not support a finding of exceptional circumstances in any event.
The terms of his Honour's remarks make it clear that he did take account of hardship to Mr Kabir's family. Mr Kabir did not contend that his Honour somehow failed to give it sufficient weight or emphasis. That is unsurprising having regard to the fact that, absent a demonstrable House v The King error, his Honour's discretionary consideration of matters arguably amounting to hardship is unassailable.
Ground 3 should be dismissed.
[10]
Ground 4
Mr Kabir relied upon a series of character references and testimonials at his sentencing hearing. The authors of these references were present in Court at that time. None was required for cross-examination. The terms of these documents were on their face universally favourable to Mr Kabir and supportive of his contention that he was a person of prior good character. The Crown did not submit otherwise in the Court below and does not do so in this Court.
The issue in this Court is whether his Honour failed to take Mr Kabir's good character into account when he should have and whether in doing so he denied Mr Kabir procedural fairness.
His Honour considered the several testimonials and dealt with them in the following terms:
"[57] I have had regard to a character reference from Humaira Mahin, the Offender's wife, who gave an extensive history of their relationship, particularly concerning her surprise as to the offending. Ms Mahin reported shock when she learned of the Offender's arrest and, at the time, considered divorce. She stated that she is deeply worried about their future, particularly if the Offender is imprisoned. Regrettably their future will be adversely impacted by the sentence, but again it is the direct consequences of choices made by an intelligent man.
[58] I have also had regard to a character reference from Ms Sultana, the Offender's younger sister. She stated that the Offender's family were taken aback at the news of his offending, as he was a role model within their neighbourhood in Bangladesh. Frankly, I place little or no weight on this unsworn, untested evidence.
[59] I have also had regard to a character reference also unsworn and untested by Chow Meng P'ng, an ordained minister of the Jehovah's Witness. Mr P'ng has described the offender as a reliable man within his Bible learning group and that he was surprised to learn of the Offender's actions. His surprise is of no concern to the Court upon sentencing. The Offender acted regularly to deceive and manipulate, including the manipulation of those close to him, including Mr Lee.
[60] I have also had regard to the character reference, again unsworn and untested, by a Mr Hossain, a former business partner of the Offender. Mr Hossain described the Offender as a very caring father, husband, brother and son to his family and that he was well respected within the business. Frankly, this reference does nothing but demonstrate the ignorance of its author to the true character of the Offender."
[11]
Ground 5
The significant starting point in any consideration of whether or not a particular offender is remorseful is whether the offender gave evidence about the issue. His Honour dealt with the topic of remorse as follows:
"85. Evidence of contrition or remorse in respect of the subject offending is also a relevant consideration. Evidence of remorse must be assessed in context, remorse is but one feature of post-offence conduct upon which an Offender may seek to rely as a matter which has the potential to mitigate penalty. Ordinary human experience would suggest that it is only natural that a person who has committed some misdeed, would wish to make the most favourable impression possible and seeking to making amends for it.
86. Here the evidence of remorse is the guilty plea and some remorse conveyed to the psychologist, Mr Awit. Mr Awit reported the offender expressed shame and remorse in relation to the offences. For the reasons given, I approach hearsay based expressions of that nature with some circumspection.
97. What was recorded by the psychologist to some extent conflicts with the comments made by the author of the Pre-Sentence Report, Joe White, dated 18 June 2018. The author of that report noted that the Offender's remorse appears to be primarily based in self-impact and the impact on his immediate family. Ms White observed that there appeared to be a significant degree of minimisation with regard to the Offender's attitude to his offending.
98. In the circumstances and absent any evidence from the Offender in the course of the sentence hearing, I decline to find genuine remorse."
These conclusions and his Honour's finding are entirely unexceptionable. It is not suggested that his Honour failed to give consideration to whether or not Mr Kabir was remorseful, or that he failed in that regard to take some relevant matter into account, took an irrelevant matter into account, or somehow otherwise misconstrued the facts. His Honour unambiguously indicated that he was not prepared to act upon second-hand expressions of remorse, particularly in circumstances where Mr Kabir did not himself choose to give his own evidence about it. His Honour referred to other reasons that supported his decision.
Mr Kabir cannot in my opinion demonstrate that his Honour's finding that Mr Kabir was not remorseful was erroneous.
Ground 5 should be dismissed.
[12]
Orders
It follows in my opinion that the following orders should be made:
1. Grant leave to appeal.
2. Dismiss the appeal.
WILSON J: I agree with the orders proposed by Harrison J, for the reasons that his Honour has given.
[13]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 July 2020
Solicitors:
Hanna Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2014/361898 and 2014/363027
Publication restriction: Nil
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Citation: R v Kabir [2018] NSWDC 495
Date of Decision: 12 November 2018
Before: Wilson SC DCJ
File Number(s): 2014/361898 and 2014/363027
At that time, the following exchange occurred before Conlon DCJ:
"HIS HONOUR: Thank you. Now Mr McGuire, could you just ask your client to come to that microphone please.
MCGUIRE: If you can step up here please.
HIS HONOUR: Now Mr Kabir, I am going to read out both these charges and ask you how you plead.
CHARGE 1 For that he between 29 November 2012 and 2 June 2014 at Sydney in the State of New South Wales did deal with money or property that was and that you believed to be proceeds of crime and at the time of the dealing the value of the money or property was $50,000 or more, namely $51,692.97.
PLEA Guilty.
CHARGE 2 For that he between about 7 March 2013 and about 20 May 2014 at Sydney in the State of New South Wales did by deception dishonestly obtain a financial advantage from the Commonwealth by causing to be lodged with the Australian Taxation Office 16 income tax returns for the tax period 1 July 2012 to 30 June 2013 which falsely claimed tax refunds in the total sum of $22,475.18.
PLEA Guilty.
HIS HONOUR: Thank you. Just take a seat behind Mr McGuire, thank you. And there is just the one further matter to be taken into account.
MCGUIRE: Yes, your Honour, that's on the schedule that's been signed.
HIS HONOUR: Schedule. And that's in respect to of the second count on the indictment.
MCGUIRE: It is, yes, your Honour.
HIS HONOUR: Thank you, Mr McGuire. I note that the statement of facts has also been handed up. Now we're looking for a sentence proceedings date?"
The sentence proceedings were then stood over to 28 June 2018 before Wilson SC DCJ. On that occasion Mr Kabir was represented by Mr Driels of counsel. He was not re-arraigned. In relation to the admitted offences, the Crown made written and oral submissions. Counsel for Mr Kabir made oral submissions, including on the facts of the admitted offences. Mr Kabir was present in court.
Mr Kabir was not asked personally at any stage of the sentencing proceedings whether he wished the additional offence to be taken into account. He acknowledges that he signed the s 16BA schedule. Mr Kabir does not complain about the way his Honour dealt with the admitted offence and does not seek to change his position in that regard in the event of resentence.
Mr Kabir now contends in these circumstances that his Honour erred in failing to ask him directly whether he admitted his guilt in respect of the additional offence and wished to have it taken into account by the court in passing sentence. Mr Kabir maintains that this procedural error leads to the result that the matter must be remitted to the District Court. Mr Kabir relies upon this Court's decision in Purves v R [2019] NSWCCA 227.
In that case, Simpson AJA held in similar circumstances that the failure of the sentencing judge to comply with s 16BA(1) and ask the offender if he admitted guilt for the additional offence and wished to have the matter taken into account by the Court in passing sentence, together with the absence of an affirmative response by him pursuant to s 16BA(2), amounted to a procedural error requiring the matter to be remitted to the District Court.
Mr Kabir maintains that his Honour made the same error.
The preconditions to the exercise of the power to "ask" in s 16BA(1) include that the court is satisfied that a document signed by the convicted person has been filed in court, a copy has been given to the person, and "in all the circumstances it is proper to do so". Subsection 16BA(1) also requires the prosecutor's "consent" which, prima facie, is a separate requirement to the signing of the document by or on behalf of the DPP. These procedural safeguards must be satisfied before the court can proceed to enquire whether the offence is admitted and the offender wishes to have it taken into account.
The power in s 16BA(2) to take into account an offence so specified is engaged "if the person admits his or her guilt … and wishes to have them taken into account by the court in passing sentence …" and only "if [the court] thinks fit". However, the exercise of the power in s 16BA(2) is not predicated on the fulfilment of an inquiry by the sentencing judge that necessarily involves a verbal response from the offender. The subsection does not preclude the communication of those matters to the court by the offender's counsel.
The Crown submitted that it does not strain the statutory language to interpret either s 16BA(1) or s 16BA(2) as allowing a legally represented person to indicate his or her wish through counsel, as regularly occurs with other procedural events in criminal proceedings. That such an interpretation is properly available is supported by the inclusion of the procedural safeguards enumerated in s 16BA(1)(a)-(e) and the clearly discretionary nature of the power in s 16BA(2).
Section 16BA(1) is not expressed in mandatory terms: it provides that the court "may", in the circumstances specified in subsections (a)-(e), "ask [the offender] whether he or she admits his or her guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence …". This language is to be contrasted with the mandatory language used earlier in Part 1B, Division 2, for example in s 16A, which provides that the sentencing court "must" take into account the matters enumerated in that subsection. Prima facie, in s 16BA(1), the word "may" operates according to its ordinary natural meaning and does not mean "must": Ex parte Gleeson [1907] VLR 368 at 373; Ward v Williams (1955) 92 CLR 496; [1955] HCA 4 at 505; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12 at 138.
In this regard, s 16BA(1) can be contrasted with the equivalent NSW provision which provides that "the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence" (Emphasis added). Notwithstanding the seemingly mandatory language of that section, numerous decisions of this Court indicate that failure to adhere to the mandatory requirement under State law does not vitiate the sentence: see for example R v Brandt [2004] NSWCCA 3 at [8]; Woodward v R [2017] NSWCCA 44 at [25]-[26]; R v Felton (2002) [2003] NSWCCA 332; 135 A Crim R 328 at [3]; R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505 at [20]-[21].
As for subsection 16BA(2), the expression "if it thinks fit" puts beyond doubt the discretionary nature of the power in that section: Newmarch v Atkinson (1918) 25 CLR 381; [1918] HCA 53 at 387; Lamb v Moss (1983) 49 ALR 533 at 550.
Once the matters set out in s 16BA(1)(a)-(e) are fulfilled, and where consent is provided by the offender or through his representative, the Court has a true discretion under s 16BA(2) to take the additional offence into account. This may assume significance in the circumstances described in Attorney General's reference at [51] and [56], where the Form 1 offences are disproportionate, not comparable, or not of the same kind and order of gravity as the principal offence under consideration: see too R v Irusta [2000] NSWCCA 391; 117 A Crim R 6 at [29].
Principles of agency which govern the lawyer-client relationship, and pragmatic reasons in the adversarial system, are also relevant to consideration of this ground of appeal. It is consistent with the form in which consent is provided on a client's behalf in other important procedural steps in criminal proceedings for the admission that is required under s 16BA to be communicated through counsel or solicitor. The objects of s 16BA are fulfilled where there is evidence that the court has "asked" the defendant through counsel whether the person "wishes" to have the matter/s taken into account in passing sentence and he or she has clearly indicated that desire.
The s 16BA schedule matter was expressly referred to when Mr Kabir was arraigned on 13 June 2017 and during the sentencing hearing on 28 June 2018. Through his counsel on each occasion, Mr Kabir indicated his wish that the Court take the additional offence into account in passing sentence. By signing the s 16BA schedule, Mr Kabir formally admitted the offences and acknowledged that he wished the Court to take the additional offence into account. He also signed Agreed Facts that referred to the "related offence" and the facts underlying it. Mr Kabir was present in court throughout the sentencing proceedings, including when submissions were made about the admitted offence. There is no suggestion that his counsel acted without instructions in making those submissions. There can be no doubt that Mr Kabir admitted the scheduled offence and wished to have it taken into account when being sentenced on Count 2.
The Crown submitted in these circumstances that the procedure set out in s 16BA was satisfied. The sentencing judge properly had regard to the additional offence in assessing the overall objective gravity of Mr Kabir's conduct in relation to the principal offence, as requested by him (cf R v Brandt at [8]). Consistently with the authorities, the sentencing judge held at [4] that the Court should give greater weight to the need for personal deterrence which the admitted offence signified and to the community's entitlement to extract retribution in the form of punishment for the admitted offence. There was no error in that approach.
The concern of the law is to avoid practical injustice, including in sentencing proceedings (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]; Tsiakas v R [2015] NSWCCA 187 at [44]; Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257 at [39]). Here, the substantive requirements of s 16BA have been satisfied and there has been no miscarriage of justice. As Mr Kabir concedes, no complaint is made in Ground 1 in relation to the manner in which the admitted offences were taken into account.
The failure directly to ask Mr Kabir the question specified in s 16BA(1) and receive his verbal response did not contravene that provision, but to the extent that there was any technical failure of process, it is not of such a kind as to vitiate the exercise of the sentencing discretion.
Properly construed, s 16BA of the Crimes Act does not preclude the wish of offender to have an additional offence taken into account in passing sentence being communicated to the court through properly instructed counsel, as occurred in the present case on multiple occasions. In the alternative, in the absence of a miscarriage of justice, a procedural irregularity of this kind does not amount to an error that vitiates the sentencing discretion and does not warrant intervention.
The important aspect of s 16BA is that the offender has both admitted guilt for the relevantly specified offences and wishes them to be taken into account. The discretion given to the Court in s 16BA(2) about whether or not to take all or any of the offences into account is specifically predicated upon that admission being made and that wish being communicated. There is in my view neither any indication to be gleaned from the words of s 16BA(1) in particular nor any reason of general sentencing principle why the Court cannot legitimately arrive at the appropriate level of satisfaction ("if it thinks fit") based upon the words or conduct of an offender's legal representative. That is quite obviously what happened in this case. Mr Kabir's counsel at the sentencing hearing made it clear, and his Honour understood and appreciated, that Mr Kabir both admitted guilt for the relevantly specified offence and wished it to be taken into account. His Honour proceeded accordingly.
This ground of appeal should be rejected.
In deciding the issue his Honour said this on 13 November 2018:
"HIS HONOUR: The third matter which I did not rule upon finally was the admissibility of the so-called victim impact statement in relation to Mr Lee, which was admitted provisionally on the last occasion. And having now considered all of the submissions and all of the evidence it seems to me that the statement by Mr Lee which formed part of the Crown bundle…is relevant. In circumstances where it could be said that the author of the document, namely Mr Lee, was a victim in that he was led by the offender to open accounts in the name of Mr Lee which were then used by the offender to deposit funds obtained illegally from the ATO. So over the objection of Mr Driels on the last occasion I propose to allow the evidence of Mr Lee on the basis upon which it was put."
Section 16A(2) of the Crimes Act provides relevantly as follows:
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence-any victim impact statement for the victim; …
The Crown made the following submissions.
Whether a person should be considered a "victim" requires consideration of the particular offence for which sentence is being passed: R v Nahlous [2013] NSWCCA 90; 228 A Crim R 503 at [102]-[104]. As Adamson J noted at [103], there are Commonwealth offences where the categories of victims may be large, diffuse groups of people. For example, the victim of an insider trading offence may include the investing community, the employer and those who traded with the offender.
Mr Kabir contends that "Mr Lee was not a victim of any of the offences … [and] the document included in the Crown tender bundle was not a Victim Impact Statement". The only submission made in support of this contention is that the Agreed Facts did not include an explanation for Mr Lee's involvement and that there is no suggestion that his conduct was not voluntary.
However, where the modus operandi of a dishonesty offence against s 135.1(5) of the Code includes the recruitment and manipulation of an unwitting acquaintance or friend, the term "victim" is apt. The fact that Mr Lee was manipulated or used by Mr Kabir emerges from the Agreed Facts. A detailed "explanation for his involvement" was not required.
The term "victim" as it is used in the Crimes Act should be construed broadly: see the decision of Bellew J in R v Khan (No 11) [2019] NSWSC 594 where statements by witnesses to a stabbing were held to be "victim impact statements" for the purposes of s 16AAA of the Crimes Act. Bellew J noted the Oxford English Dictionary definition of the term victim as meaning "a person harmed, injured or killed as a result of a crime, accident etc." His Honour held at [22] that the witnesses were victims, in that they had endured psychological and emotional suffering as a result of the offence.
On a similar basis, although he was a witness to the offending, Mr Lee was also a victim. He described in his statement the impact of the offence on him, including details of the resulting psychological and emotional harm he suffered. He expressed feeling angry, afraid, upset and having difficulty sleeping as a consequence of the offending and to have suffered a "mental and emotional" impact. He said that he has been referred by a doctor to a psychologist and must take anti-depressant medication. Although he was not a witness to violence as in Khan, the harm he has suffered falls within the definition in s 16 of the Crimes Act. Moreover, Mr Lee falls within the ordinary meaning of the term "victim".
The terms of Mr Lee's statement are instructive:
"I wish to advise the Court of the impact that this crime has had on me.
I was in complete shock when the federal police came looking for me, following my interview with federal police I went into deep depression, I locked myself in my room for 4 days without food, my family took me to see a doctor, then I was referred to see a psychologist for treatment, up until today I cannot cope with the normal stresses of life and must take anti-depressant medicine.
As of today, I am being pursued by ATO and debt collection agency for outstanding tax debts related to this matter, it's hard to cope with the traumatic experience I have been through, specially knowing that Mohamed Kabir deliberately did all this.
This crime has a huge impact on me, mentally and emotionally, there are days and nights that I feel angry, afraid, upset, shaking and have difficulty sleeping. I am unsettled and confused."
It seems to me that it was clearly open to his Honour to have been satisfied that Mr Lee was properly to be regarded as a victim for the purposes of s 16AAA of the Crimes Act. As such, s 16A(2) required his Honour to take his victim impact statement into account. By his own account, Mr Lee has suffered harm. He relates that harm to the offence committed by Mr Kabir for the commission of which it is apparent Mr Lee was recruited and manipulated. His Honour's implicit conclusion that Mr Lee was relevantly a victim or that his statement was a victim impact statement are entirely uncontroversial.
Ground 2 should be dismissed.
Mr Kabir drew attention to what was discussed in HT v The Queen [2019] HCA 40, where the requirement to observe the principles of procedural fairness was summarised:
"[18] Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is the avoidance of practical injustice. Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex parte Lam [2003[ HCA 6, 214 CLR 1 at 14 [13]; Condon v Pompano Pty Ltd [2013] HCA 7, 252 CLR 38 at 99 [151]. It is that consideration which guides a court in deciding whether its procedures should be adapted to meet difficulties which may arise."
Mr Kabir submitted that where an offender tenders documentary evidence which is not objected to and not subject to cross-examination, a judge should not reject that evidence without giving notice to the party tendering it: O'Neil-Shaw v Regina [2010] NSWCCA 42 at [26]-[27].
Moreover, Mr Kabir submitted that his Honour's treatment of this aspect of his case on sentence was unfair and breached the requirement that procedural fairness should be afforded to him. Each of the written testimonials was tendered without objection and both Ms Sultana and Mr Hossain were present at court. The Crown made no submission that his Honour should disregard or reject the contents of the testimonials on the ground that they were unsworn and untested and did not submit that Mr Kabir was not a person of prior good character. Further, on 28 June 2018 his Honour said:
"I can assure you and your client that I will give careful consideration to the subjective material, including the references and the like."
His Honour dealt with the significance of evidence of good character at [83]-[84] of his remarks on sentence as follows:
"[83] The Offender's character is relevant of course to sentence. The good character of an Offender is a matter that may be taken into account in mitigation of the penalty. It is one of a number of matters the court must consider the nature and circumstances of the offences, of course are of the upmost [sic] importance.
[84] In cases involving white collar crime such as this matter, less weight is attached to prior good character, because it is normally that factor, that is good character, that places the Offender in a position of trust which enables him to commit the offence. That topic was recently discussed I recall by the Court of Criminal Appeal, but it is fully explained in the decision of R v Rivkin (20040 59 NSWLR 284. Given the circumstances, I decline to afford leniency based on good character."
Mr Kabir contended that his Honour erred in this respect. The offences were committed between 29 November 2012 and 26 July 2014, when he was between 37 and 39 years of age. Prior to these offences, Mr Kabir had never offended and had, on all the evidence before the Court, tried hard to live a productive and law-abiding life both in Bangladesh and in Australia. The testimonials tendered on his behalf gave content to this. Mr Kabir accepted that his prior good character was a matter that should have been given less significance given the nature of the offending, but submitted that it was not a matter that should have been discounted entirely: Milne v R [2012] NSWCCA 24; 219 A Crim R 237 at [272].
In response to these submissions, the Crown submitted as follows.
His Honour's findings were sound and in accordance with established sentencing principle. Prior good character is a matter to be given little or no weight in sentencing for offences involving sustained and deliberate taxation fraud, which call for a sentence that emphasises denunciation, punishment and general deterrence. This is particularly so in the present case, where the offences were perpetrated by a registered tax agent who deployed his good character to gain a position of trust and where the offending commenced almost immediately after being so employed.
Mr Kabir's offending and position is directly comparable to that described in R v Kennedy [2000] NSWCCA 527 at [21]-[22] and Jung v R [2017] NSWCCA 24, where it was held that little or no weight may be attributed to an offender's prior good character where general deterrence is important, the particular offence before the court is serious and one frequently committed by persons of good character, the prior good character of the offender has facilitated commission of the offence and there is a pattern of repeat offending over a significant period of time.
While s 16A(2)(m) requires account to be taken of the offender's character and antecedents, the nature of the offences for which Mr Kabir was being sentenced meant that his previous good character could only be of very little weight in the sentencing process.
In stating that he declined to afford leniency based on good character, his Honour did not fail to take it into account. His Honour considered Mr Kabir's character evidence, but properly gave it little or no weight in the exercise of the sentencing discretion.
The Crown also emphasised that his Honour was entitled, in accordance with authority, to treat unsworn and untested statements with a degree of circumspection: see generally R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58]-[59]; Singh v R [2018] NSWCCA 60 at [31]. The Crown specifically raised the issue of the weight properly to be given to unsworn out of court statements in written and oral submissions below to which Mr Kabir's counsel responded.
The Crown finally submitted that his Honour's failure to comment during the sentencing hearing "as to the fact that the testimonials were unsworn or untested" does not give rise to a denial of procedural fairness. It was not incumbent upon his Honour to forewarn Mr Kabir that he may not accept his submission as to the weight to be given to matters such as good character: Newman v R [2018] NSWCCA 208. It is clear from his remarks on sentence at [83] and [84] quoted earlier that his Honour refused to afford leniency on account of good character not because of the form of the evidence, but in accordance with the principles already discussed. The gravamen of the complaint raised in this ground of appeal is really that the sentencing judge failed to give weight to Mr Kabir's good character, a complaint that should not be upheld, given that the circumstances in which matters of weight will justify intervention by this Court are narrowly confined: Vaiusu v R [2017] NSWCCA 71 at [29]; Zhao v R [2016] NSWCCA 179 at [59].
It is apparent from any fair reading of his Honour's remarks that he was singularly unimpressed with the character evidence upon which Mr Kabir relied. Without saying so in terms, his Honour was clearly of the view that statements of praise from relatives and colleagues and accompanying expressions of disbelief that the offending had even occurred at all were effectively in tension with the fact and extent of Mr Kabir's offending. That is so particularly having regard to the considerable degree of detailed planning involved, carried out at several layers of detail over a relatively extended period.
It is in my view somewhat unrealistic for Mr Kabir to maintain that his references and testimonials should in some ineluctable fashion have persuaded his Honour to factor his good behaviour into the sentencing exercise in a favourable way. The evidence before his Honour was to the effect that Mr Kabir was ashamed and distraught at his lack of business success in Australia and that in particular he had not been as successful as his family in Bangladesh had been led to believe. His Honour's comments indicate that he considered that the statements of support for Mr Kabir were in all probability based upon an incomplete and therefore incorrect appreciation and understanding of Mr Kabir's true character.
It would have been apparent during the sentencing proceedings that Mr Kabir wanted his Honour to take his good character into account. It is equally apparent that Mr Kabir's counsel made submissions about this that were comprehensive and complete. The fact that his Honour chose not to accept these submissions cannot amount to procedural unfairness unless Mr Kabir's barrister was somehow led to alter his forensic position to his detriment in reliance upon an indication, express or implied, that his Honour did not require further assistance on this particular issue. The only further submission that Mr Kabir could have made, if given another chance, would inevitably have been to the same effect. The loss of an opportunity to make a better submission is not to be confused with the loss of an opportunity to make any submission.
Mr Kabir was not denied procedural fairness. His Honour was entitled to proceed as he did.