Crimes Act 1914 (Cth) s 16A(1), (2).

Director of Public Prosecutions (Cth) v Rowson [2007] VSCA 176; Director of Public Prosecutions (Cth) v Goldberg (2001) 184 ALR 387; [2001] VSCA 107; Peterson v The Queen [2008] QCA 70; Aitchison v The Queen [2015] VSCA 348; McCall v The Queen (2011) 85 ATR 148; [2011] NSWCCA 34, considered.

Mr S Bruckard, Solicitor for Public Prosecutions (Cth)

1. Between October and December 2021, the appellant lodged a series of business activity statements with the Australian Taxation Office ('ATO'). The statements were false. As a result of lodging the statements, the appellant received payments from the ATO in the total amount of $834,437. A further amount of $17,520 was not paid by the ATO, after it had determined that the appellant did not in fact carry on any business activity. The appellant dealt with the money that he had received by transferring it between his bank accounts and to other individuals, and by using the funds to make or facilitate purchases, including of a motor vehicle and a house.
2. On 7 August 2023, the appellant pleaded guilty in the County Court to two counts of dishonestly obtaining a financial advantage from a Commonwealth entity by deception,[1] one count of attempting to dishonestly obtain such a financial advantage[2] and one count of dealing in proceeds of crime worth $100,000 or more.[3]
3. On 23 August 2023, he was sentenced as follows:

• Dishonestly obtain financial advantage from Commonwealth entity by deception - $13,158

• 2 years, commencing 3 months from 23 August 2023

• Dishonestly obtain financial advantage from Commonwealth entity by deception - $821,279

• 6 years, commencing 1 year after sentence on charge 4

• Attempt to dishonestly obtain financial advantage from Commonwealth entity by deception - $17,520

• Deal in proceeds of indictable crime worth $100,000 or more[5]

• 5 years, commencing 3 months after sentence on charge 1

• Total effective sentence 9 years 6 months
• Non-parole period 6 years 6 months

1. Reparation order pursuant to s 21B of the Crimes Act 1914 (Cth) for $834,473 payable to the Commissioner of Taxation.

1. The appellant appeals against the sentence on the basis that the total effective sentence and non‑parole period imposed are manifestly excessive. For the reasons that follow, we would allow the appeal.

1. Business enterprises that are registered for goods and services tax ('GST') are required to report their trading activity on a form called a business activity statement ('BAS') which is lodged with the ATO. Businesses are generally required to pay to the ATO the GST imposed on the goods and services they supply. They are able to offset those payments against credits in respect of the amount of GST they have paid on purchases or acquisitions for business purposes. When the total amount of GST credits which a business has acquired exceeds the total GST payable or collected, the ATO pays a refund for the relevant period.
2. On 17 January 2017, the appellant[6] applied for an Australian Business Number on the basis that he was conducting a construction business of 'brick paving or paving laying'. On 31 August 2021, he was released from custody after serving a sentence of about two years in prison for unrelated offences. A week after his release, he opened several bank accounts in his own name. On 12 October 2021, he created an integrated client account with the ATO and registered for GST, backdating the registration to 26 January 2018.
3. On 22 October 2021, the appellant lodged a BAS for the period for the month of October 2021. He reported figures for total sales and expenses and claimed an entitlement to a refund of $13,158 (charge 1).
4. The information in the BAS lodged in October 2021 was false. The appellant did not engage in a business and had no income or outgoings for such a business. As a result of the false information he provided, the ATO paid $13,158 into his nominated bank account on 27 October 2021.
5. In November 2021, the appellant lodged a further 46 BASs, backdated to 1 January 2018. As it happens, the appellant had gone into custody on 13 June 2018, and between then and his release on 31 August 2021, he had been out of custody for only approximately five months.
6. Taken together, the additional statements that were lodged in November 2021 covered the period from 1 January 2018 to 30 November 2021. These claims were also false. As a result of the appellant lodging these claims, the ATO paid in total a further $821,279 into his bank accounts (charge 2).
7. On 9 December 2021, an ATO officer spoke to the appellant by telephone. The appellant told him that the statements had been prepared and lodged by his accountant, and provided a name and number for that person. The number was in fact registered to a different person and the person that the appellant identified as his accountant was not an accountant but a painter. The ATO officer questioned whether the BASs were correct, given that they asserted that the appellant had spent around $9.7 million on his business since 1 January 2018. On 10 December 2021, the ATO sent the appellant a letter seeking confirmation of the information set out in the various BASs. The appellant did not respond to this letter, or to attempts to communicate with him by email or telephone between that time and 10 February 2022.
8. Instead, the appellant lodged a further false BAS on 30 December 2021, purporting to cover that month. In that document, he claimed a refund of $17,520 (charge 3). The ATO did not pay this amount.
9. Between 30 November and 9 December 2021, the appellant transferred $742,619.44 between his accounts and to other people, including his mother and girlfriend. Among other things, the appellant purchased a second‑hand Porsche which was initially registered in his girlfriend's name and then transferred into his own name on or about 17 December 2021. He also transferred a total of $602,000 to his mother which was used primarily to purchase a house in Ballarat in his girlfriend's name. He also transferred $35,000 to his girlfriend for the purchase of furniture and for other expenses regarding that property. The balance of the money, around $91,000, was spent on various living expenses. These dealings constitute charge 4.

1. The judge described the offending and then turned to the personal circumstances of the appellant. At the time of sentence he was 30 years old. He was born in Alice Springs and lived on a cattle station until his parents separated when he was about nine years old. The judge noted that his childhood had been marred by a series of traumatic events including sexual and physical assaults. In particular, his stepfather was an abusive man who had physically and verbally abused him and knocked him unconscious on multiple occasions.[7]
2. The judge recorded that the appellant had been incarcerated for the first time in the middle of 2018, and that upon his release from prison later that year he was homeless and had quickly relapsed into drug use and further offending. Since that time, he had been in and out of prison. He had only been out of custody for about two months between July and September 2018, for 24 days in October 2018, for two months between May and June 2019 and then from 31 August 2021 until his arrest on 25 April 2022.[8]
3. The judge noted that the appellant had few supports other than his mother and that his relationship with his girlfriend had broken down after he purchased the house in Ballarat. The appellant had returned to using drugs at that time. The judge noted that the appellant identified as an indigenous man and that, when working in the Northern Territory, he had spent time with elders and taken part in cultural activities.[9]
4. While on remand, the appellant had been accepted as an alcohol and other drug peer educator and had been described as a valuable part of that team. He also completed a range of vocational courses and commenced drug treatment. A neurological assessment conducted by Jane Lofthouse, a neuropsychologist, concluded that the appellant had an intellectual impairment consistent with an acquired brain injury, due either to various impacts to his head during his earlier life or to his use of methylamphetamine. There were indications of a moderate level of executive dysfunction, meaning that his ability to think about information, solve problems and have insight into and control his behaviour were affected. Ms Lofthouse considered that the appellant's impaired problem‑solving ability would have been a contributing factor to the criminal offending.[10]
5. The judge accepted that the offending was unsophisticated and that the appellant had probably not given much consideration to the consequences of being caught. She also referred to the evidence of Gina Cidoni, a psychologist. Ms Cidoni identified symptoms of poor decision‑making, and a tendency to engage in impulsive behaviour. She considered that the appellant's childhood and criminal offending to which he was exposed as a child had a significant effect on his adult behaviour. She said that the appellant met the diagnostic criteria for attention deficit hyperactivity disorder ('ADHD') and post‑traumatic stress disorder, as well as a cluster of personality disturbances involving borderline and anti‑social personality traits.[11]
6. The judge said that she was not satisfied on the balance of probabilities that the appellant's moral culpability was 'directly' reduced due to the influence of his stepfather and the criminal behaviour to which he had been exposed.[12] She did not accept that the appellant had a reduced capacity to understand that obtaining money in the way that he did was wrong and against the law. Although the judge accepted that the appellant's intellectual deficits and ADHD might lead to increased impulsivity and poor judgment, in this case the offending was methodical and systematic and required multiple steps, planning and days of offending. The judge said that the appellant had ample and repeated opportunity to desist and consider the consequences of his actions. The judge considered that the motivating force for the offending was the appellant's desire for money and that his antisocial personality traits helped him justify his actions to himself, but did not mean that he had a reduced capacity to understand that they were wrong.[13]
7. The judge accepted, however, that the appellant's childhood, upbringing, intellectual deficits and mental state were relevant to sentencing.[14] She described general deterrence as a significant factor in the case, but moderated it 'to a small degree' in view of the appellant's personal circumstances.[15] The judge also accepted that the appellant's mental health and cognitive issues would make his time in custody more onerous than for a person without those conditions, and moderated the sentences, again to a 'limited degree', on that basis.[16]
8. In light of the appellant's history of offending and the short passage of time between his last release and the present offending, the judge considered that specific deterrence had a significant role to play in sentencing.[17]
9. The appellant indicated his willingness to plead guilty at an early stage, which the judge accepted was evidence of some remorse. She referred also to the utilitarian benefits of the plea, and to the additional lingering impact of the COVID pandemic on the court's lists.[18]
10. The judge considered that, in view of his history, the appellant's prospects of rehabilitation were 'somewhat guarded'.[19] The judge indicated that there would be a significant period of eligibility for parole.[20]
11. The judge made reference to comparable cases which the parties had provided. She observed that none of them were identical to the present case but that they demonstrated 'a fairly broad range of sentences for similar levels of offending'.[21]

1. In advancing the ground of manifest excess, the appellant draws particular attention to the unsophisticated nature of the offending, its short duration, the mitigating factors and his personal circumstances, together with comparable cases. He submits that the offending lacked aggravating features often seen in more serious cases. It is said that the offending was unsophisticated and easily detected, and involved no breach of trust or false identities. It took place over a short period: a single day on each of charges 1 and 3, 11 days in the case of charge 2 and about 10 days in the case of charge 4. The proceeds of crime charge did not involve 'laundering' the money to hide its source, but only spending it. The appellant submits that the mitigating features, which the judge accepted, were not reflected in the sentence imposed. Counsel for the appellant pointed in particular to the appellant's cognitive impairment and tendency to impulsive behaviour.
2. The appellant contends that cases where similar (or significantly lower) sentences have been imposed have involved more serious offending, over longer periods, and have displayed greater sophistication, including the use of false identities.
3. The appellant distinguishes the offending under charge 4 from cases of true money laundering and submits that this position was reflected in the judge's sentencing remarks.[22] The appellant was not intending to conceal the proceeds of his offending or prevent their recovery. He was simply spending the money he obtained. The appellant contends that the effect of the judge's sentence was to impose a year of cumulation on charge 4, contrary to the principle of totality.[23]
4. The respondent emphasises the importance of general deterrence in sentencing for tax fraud, as well as specific deterrence in this particular case.[24] It is submitted that the amount involved in the appellant's offending was very significant, and that the offending was carefully planned, methodical and repeated. It involved the making of deliberately false declarations on each occasion. Charges 2 and 4 were 'rolled‑up' charges reflecting multiple acts that could have constituted separate charges. While the time period involved was short, to dishonestly obtain such a large amount so quickly served to highlight the brazen nature of the offending. The appellant made false statements when questioned by the ATO, and the offence in charge 3 was committed when he knew he was under suspicion. The proceeds of crime offence involved at least 25 transactions and transfers over about 10 days, and the appellant sought to disguise his offending by transferring money back and forward between his accounts.[25]
5. The respondent draws attention to the appellant's 'considerable' prior convictions for dishonesty offences, including seven charges of obtaining property by deception on three different occasions, theft and aggravated burglary.
6. Having regard also to the broad range of sentences imposed for similar offending, the respondent submits that the sentences were within the range of appropriate dispositions, and that the sentences revealed that the judge had been generous in the weight she had given to the relevant mitigating factors.
7. In relation to the cumulation applicable to charge 4, the respondent submits that the offending in charge 4 involved extensive and separate criminal conduct, not embraced by the other charges, and it was properly called 'money laundering'. In any event, the sentence on that charge was wholly subsumed by the other sentences. It commenced while the appellant was serving the sentence on charges 1 and 3, and will be served concurrently with the sentences on those charges and charge 2. Accordingly, the appellant's argument as to the cumulation imposed on charge 4 proceeds from an erroneous characterisation of the sentence.

1. The question on the appeal is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.[26] The appellant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[27] An allegation of manifest excess is an example of a challenge to the exercise of a discretion which does not depend on specific error, as articulated in House v The King.[28]
2. There is no dispute as to the principles relevant to sentencing for the offences in this case. In sentencing for offences against the laws of the Commonwealth, s 16A(1) of the Crimes Act 1914 (Cth) provides that the court must impose a sentence of a severity appropriate in all the circumstances. Section 16A(2) contains a non‑exhaustive list of matters that, if relevant and known to the court, it must take into account. Section 16A(2) accommodates the application of common law principles of sentencing, which give relevant content to the statutory requirement in s 16A(1) to impose a sentence that is 'of a severity appropriate in all the circumstances of the offence' and to some expressions used in the list of matters in s 16A(2).[29]
3. In particular, it is well‑established that general deterrence is a significant sentencing consideration in cases of fraudulent misuse of the self‑assessment processes under Australian taxation law. In Director of Public Prosecutions (Cth) v Rowson, Kaye AJA said:

It is well recognised that those who systematically defraud the public revenue of large sums of money over a substantial period should be sentenced to substantial terms of imprisonment. The regime established for the collection of goods and services tax is basically dependent on the honesty of those participating in it. In cases such as this, considerations of general deterrence are given particular emphasis, and indeed prominence, in the sentencing process. The courts have a significant responsibility to protect the integrity of the revenue system, by imposing punishments, for deliberate and sustained fraud, which are likely to deter others who may be otherwise tempted to indulge in the type of conduct committed by the respondent.[30]

1. It was put more bluntly in Director of Public Prosecutions (Cth) v Goldberg,[31] where Vincent JA (with whom Winneke P and Batt JA agreed) referred with apparent approval to the following observation by the sentencing judge in that case:

Tax evasion is not a game, or a victimless crime. It is a form of corruption and is, therefore, insidious. In the face of brazen tax evasion, honest citizens begin to doubt their own values and are tempted to do what they see others do with apparent impunity. At the very least, they are left with a legitimate sense of grievance, which is itself divisive. Tax evasion is not simply a matter of failing to pay one's debt to the government. It is theft and tax evaders are thieves ...[32]

1. It follows from this understanding of the matter that the appellant's submission that the present case involved no breach of trust cannot be accepted. Deliberate defrauding of the revenue in this way is inherently a breach of the trust placed by the Commonwealth, and honest taxpayers, in those who use the self‑assessment system.
2. The present case was a very serious example of the offence of obtaining a financial advantage from a Commonwealth entity by deception. The amount of money involved was very substantial. The offending itself, while not at all sophisticated, was planned and methodical. It involved a large number of dishonest transactions, accompanied by knowingly false declarations. As the respondent submitted, it was brazen offending.
3. The judge identified a series of mitigating factors. The most important was, naturally, the early plea of guilty, the utilitarian value of which was magnified by the after‑effects of the COVID‑19 pandemic. None of the remaining matters were especially weighty of themselves. No complaint is made about the judge's conclusion that the appellant's mental health and the circumstances of his upbringing moderated general deterrence to only a small degree. Nor does the appellant challenge the judge's assessment of his prospects of rehabilitation as 'somewhat guarded'.[33]
4. As the appellant points out, there was also an absence of features aggravating the offending such as the use of false identities or falsified documents. As we have mentioned, the offending was also notably unsophisticated. On the other hand, the appellant has extensive prior convictions for dishonesty, and committed the present offences shortly after his release from prison.[34] In addition, the deployment of the supposed accountant was itself dishonest. It is unsurprising that the judge regarded the appellant's prospects of rehabilitation as 'somewhat guarded'.[35] It may be noted that she none the less provided for a relatively short non‑parole period.
5. The offence of dishonestly obtaining a financial advantage from a Commonwealth entity by deception carries a maximum penalty of 10 years' imprisonment.[36] Concentrating on charge 2, it is immediately apparent that a total sentence of 6 years' imprisonment, on a guilty plea during the subsisting impact on court lists of the COVID‑19 pandemic, is a high sentence for this offence. We would go so far as to describe it as 'stern', especially given the very unsophisticated, almost naïve, nature of the offending. But the sentence was not outside the range properly available to the sentencing judge, for offending of this seriousness committed by a person with the appellant's prior history of dishonesty.[37]
6. This is borne out by some of the comparable cases involving dishonestly obtaining a financial advantage from a Commonwealth entity by deception, to which the parties made reference in their submissions. While, as the sentencing judge observed, those cases reveal a disparate range of sentences, the main examples to which the parties referred are broadly consonant with the present sentence. All involved guilty pleas.
7. Individual sentences imposed in past cases are not precedents which must be applied to future cases.[38] Nonetheless, they may serve as a 'yardstick' that illustrates, but does not define, the possible range of sentences available.[39]
8. In Peterson v The Queen,[40] the offender lodged 15 false BASs over a period of three and a half years, and obtained $722,309 to which he was not entitled. He had a lengthy history of dishonesty offences. The Queensland Court of Appeal upheld a sentence of 7 years' imprisonment, with a minimum term of 3 years and 6 months. This case is broadly similar to the present. The sentence was somewhat higher than the present sentence on charge 2, for offending that involved fewer transactions, but that is appropriate because the offending took place over a much longer period and the offender created multiple forged documents to facilitate it.
9. In Aitchison v The Queen,[41] a total effective sentence of 8 years' imprisonment was upheld on three charges of dishonestly obtaining a financial advantage from a Commonwealth entity by deception and one of attempting to do so. The total amount obtained was $5,853,709. The offender produced false invoices to support the offending. A minimum term of 5 years was imposed. This Court described the total effective sentence as 'stern and at the higher end of the range' but rejected a claim that it was manifestly excessive.[42] It is true that the amount obtained in that case dwarfs that in the present matter, but Aitchison had no relevant criminal history, he was aged 64 and in poor physical health, and he suffered from depression. He was assessed as having very good chances of rehabilitation. It is also true that the sentence on charge 2 in the present case exceeds any of those imposed on Aitchison,[43] but regard also needs to be had to the total sentence on the financial advantage charges (8 years in Aitchison, as compared to 6 years and 6 months here).[44] Again, there is no significant disconformity between the sentences on those charges in the two cases.
10. Thirdly, in McCall v The Queen,[45] $530,257 was obtained through the use of false BASs over a 15 month period.[46] The New South Wales Court of Criminal Appeal resentenced McCall after identifying specific error, imposing a term of 6 years' imprisonment with a non‑parole period of 3 years and 9 months. The offending involved the lodging of 107 false BASs over a period of some 15 months, and a total of $530,257 was dishonestly obtained. The appellant points to the use of false identity documents and bank accounts in that case, but the cases are not markedly different in the scope and persistence of the offending, and the present case involved a larger sum. Moreover, the judgment makes no reference to any criminal history on the part of McCall. The sentence in McCall sits comfortably with that on charge 2 in the present case.
11. Finally, in Director of Public Prosecutions v Rowson,[47] a sentence of 5 years' imprisonment was imposed, with a non‑parole period of 3 years, in a case involving some $2,453,102 obtained over a 2 year period. That sentence was imposed by this Court on a Director's appeal, and the principle of double jeopardy was, in accordance with the law governing Director's appeals at that time, applied and 'give[n] full weight'.[48] The sentence is not a useful guide in the circumstances. It may also be noted that the offender in that case had no relevant prior convictions.[49] Again, while the appellant points to the sophisticated nature of the offending, and the use of false identities, it involved, like the other cases under consideration, the same fundamental ongoing dishonest conduct of lodging repeated false BASs and receiving amounts as a result to which the offender had no entitlement.
12. For these reasons, resort to comparable cases tends to confirm that the sentence imposed on the present charges of dishonestly obtaining a financial advantage from a Commonwealth entity, or attempting to do so, were within the available range.
13. In relation to charge 4, it may be accepted that, in dealing with the proceeds of indictable crime, the appellant was merely spending the ill‑gotten gains which were the fruit of his other offending, and that it is to be expected that a person who dishonestly obtains a financial advantage does so for the purpose of using that advantage, which is likely to involve dealing with the proceeds. But the latter conduct, as embodied in charge 4, involved distinct and additional criminality. It involved a very substantial amount of money and, like charge 2, was a rolled‑up charge comprising a large number of transactions. The maximum penalty for this offending was 20 years' imprisonment. No complaint could be made as to the sentence of 5 years' imprisonment.
14. As mentioned, however, the appeal does not question the individual sentences but focuses on the total effective sentence and non‑parole period. This means addressing the manner in which the total effective sentence was constituted.
15. The question of cumulation in this matter is rather complex. The way in which the sentences are structured means that, strictly speaking, a period of 1 year was cumulated on charge 4. That can be seen from the following:

(a) The total sentence runs from 23 August 2023 until 23 February 2031, a period of 7 years and 6 months.

(b) The base sentence on charge 2, which is the only sentence still being served at the end of the total sentence, runs from 23 February 2025.

(c) The penultimate sentence to expire is that on charge 4, which runs from 23 February 2024, one year before the start of the base sentence - thereby enlarging the sentence by 1 year.

(d) The next earliest sentence to expire is that on charge 1, which commences on 23 November 2023, 3 months earlier - amounting to 3 months' cumulation in respect of that charge.

(e) The first to expire is that on charge 3, which commences on 23 August 2023, 3 months earlier - amounting to 3 months' cumulation in respect of that charge.

1. It is true, as the respondent observed, that the sentence on charge 4 will be wholly served while other sentences are being served. In that practical sense it is wholly concurrent. The respondent submitted that the treatment of the sentence on charge 4 could therefore not bespeak manifest excess in the total effective sentence.
2. But that is not the end of the matter. If the respondent's approach is taken, then the cumulation on charges 1 and 3 amounts to 18 months (rather than the six that would result from the appellant's approach, which is described below). Concentrating on charge 4 therefore only reveals part of the cumulation picture.
3. Looked at as the appellant would have it, the total sentence for the deception charges was 6 years and 6 months, with 12 months cumulated on the proceeds of crime charge. On the respondent's approach, the total sentence for the deception charges was 7 years and 6 months, with no time cumulated on the proceeds of crime charge.
4. The real question, on either approach, is whether the overall cumulation of 18 months for dishonestly obtaining a further amount of $13,158, dealing in the proceeds of the successful offending and attempting to dishonestly obtain a further $17,520, resulted in a total effective sentence that is manifestly excessive.
5. In our view, on either approach, the total effective sentence was manifestly excessive. On the appellant's approach, there would be cumulation of one year on an already stern sentence, for conduct which, while reflecting distinct criminal conduct, is an almost inevitable concomitant of the anterior offending. On the respondent's approach, there would be a total sentence of 7 years and 6 months on the deception charges, in the context of a maximum penalty of 10 years' imprisonment, a guilty plea, and the cases to which we have referred. In either event, we consider that a total effective sentence of 7 years and 6 months' imprisonment on a guilty plea for dishonestly obtaining a total amount of $834,437, and spending most if not all of it, as well as attempting to dishonestly obtain a further $17,520, is manifestly excessive.
6. We will therefore allow the appeal, set the sentences aside, and resentence the appellant as follows:[50]

• Dishonestly obtain financial advantage from Commonwealth entity by deception - $13,158

• Dishonestly obtain financial advantage from Commonwealth entity by deception - $821,279

• Attempt to dishonestly obtain financial advantage from Commonwealth entity by deception - $17,520

• Deal in proceeds of indictable crime worth $100,000 or more

• Total effective sentence 8 years
• Non-parole period 5 years 6 months

1. Reparation order pursuant to s 21B of the Crimes Act 1914 (Cth) for $834,473 payable to the Commissioner of Taxation.

[1] Criminal Code (Cth), s 134.2(1) ('Code').

[4] See further [49]ff below.

[5] At the hearing of the appeal the Court acceded to an application by the respondent, which was not opposed, to amend the indictment by adding the word 'indictable' after 'offence' to reflect amendments made with effect from 17 February 2021 by the Crimes Legislation Amendment (Economic Disruption) Act 2021 (Cth), s 3 and Sch 1, item 26: see Criminal Procedure Act 2009, s 165; Supreme Court Act 1986, s 10(3).

[6] The appellant was granted leave to appeal on the papers, on 13 February 2024.

[7] DPP (Cth) v Phillips [2023] VCC 1481 [2]-[22], [26]-[27], [29] (Judge Dalziel) ('Sentencing Remarks').

[10] Ibid [39], [40]-[41], [52], [54]-[55].

[23] These submissions were made orally at the hearing.

[24] DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1, 15-17 [51]-[53], 17 [57] (Warren CJ, Redlich JA and Ross AJA) ('Gregory'); Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 540 [63] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) ('Hili').

[25] The respondent referred to the sentencing principles for money laundering offences summarised in Palmisano v The Queen [2021] VSCA 124 [24] (Maxwell P and McLeish JA) and Kim v The Queen [2016] VSCA 238 [61] (Redlich, Santamaria and McLeish JJA).

[26] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, 309-10 [13]-[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.

[27] Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[28] (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ). See Markarian v The Queen (2005) 228 CLR 357, 370-1 [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili [2010] HCA 45; (2010) 242 CLR 520, 538 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[29] Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346, 353 [15] (Gummow, Callinan and Heydon JJ; Gleeson CJ agreeing at [1]); [2004] HCA 15; Hili [2010] HCA 45; (2010) 242 CLR 520, 528 [24]-[25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[30] [2007] VSCA 176 [24] (citations omitted) ('Rowson'). See also Gregory [2011] VSCA 145; (2011) 34 VR 1, 15-16 [51]-[53] (Warren CJ, Redlich JA and Ross AJA).

[31] (2001) 184 ALR 387; [2001] VSCA 107.

[32] Ibid 394 [32]; see also Gregory [2011] VSCA 145; (2011) 34 VR 1, 15 [51] (Warren CJ, Redlich JA and Ross AJA).

[34] The appellant was serving a community correction order when he offended, but the sentencing judge did not take that matter into account, on the basis that the breach of that order was to be dealt with as a separate matter.

[37] The appellant did not suggest otherwise. The ground of appeal is that the total effective sentence and non‑parole period imposed are manifestly excessive.

[38] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 605 [57] (Gaudron, Gummow and Hayne JJ); DPP v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 454 [83] (Gageler and Gordon JJ).

[39] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ).

[40] [2008] QCA 70.

[41] [2015] VSCA 348.

[42] Ibid [99] (Santamaria JA, Whelan JA agreeing at [1]).

[43] Aitchison was sentenced to 5 years' imprisonment for dishonestly obtaining $3,055,180 by lodging six false BASs, 4 years (with 18 months cumulated) for dishonestly obtaining $2,391,935 by lodging eight false BASs and 2 years (1 year cumulated) for dishonestly obtaining $406,694 by lodging three false BASs. The remaining 6 months of his sentence was for an attempt to dishonestly obtain a further $600,515.

[44] See [49]ff below.

[45] (2011) 85 ATR 148; [2011] NSWCCA 34.

[46] The charged offences were different in this case, relying on the very similar offence of dishonestly obtaining property belonging to a Commonwealth entity by deception contrary to s 134.1 of the Code. The maximum term of imprisonment was the same as for s 134.2.

[47] [2007] VSCA 176.

[48] Ibid [33] (Kaye AJA, Buchanan JA agreeing at [1], Neave JA agreeing at [4]). See now Criminal Procedure Act 2009, s 290(3).

[49] Rowson [2007] VSCA 176 [33] (Kaye AJA, Buchanan JA agreeing at [1], Neave JA agreeing at [4]).

[50] For the purpose of resentencing, we have taken account of the fact that the appellant was sentenced, after the present sentence was imposed, to a term of 7 months' imprisonment, to be served concurrently with the sentence under appeal, for subsequent offending that did not involve dishonesty offences. In the overall circumstances, this consideration had no bearing on the sentences we will impose.