R v Brown [2001] QCA 553

Court of Appeal (Qld)|2001-11-30|Before: Davies JA, Atkinson J, Mullins J

The applicant also takes issue with the following sentencing remarks by his Honour:

"It is also the case that during that interview [with the Federal police] you admitted that the company, in fact, had sufficient funds during the period involved to meet its group tax liabilities. In other words, it had sufficient funds to pay the money as time went on; as the money was deducted."

The applicant submits that this was incorrect; on the contrary that it was constantly the applicant's position that the failure to remit tax was, at least in part, caused by the company's financial position. For this the applicant relies on a psychiatric report by Dr Michael Likely dated 24 July 2001 in which that doctor related that the applicant had attributed her failure to remit tax to a need to constantly juggle limited resources in the business.

However, when asked in an interview with Federal police whether she had moneys in the bank to cover the monthly payments of group tax over the years the applicant answered, "I would have over the years". Earlier in the interview when asked whether she had any intention of remitting money when she was deducting it from wages the applicant replied, "I did, yes, but I never seemed to have the money there".

The inference I would draw from these statements is that, whilst the company did not, or did not always have the funds ready to pay the amount deducted at the time it was deducted, it did have sufficient money to do so at various times over the years during which the frauds were committed.

In stating in her statement of facts tendered before the learned sentencing judge the aggravating factors of this case, the respondent included the following:

"7. The accused made no attempt to remit the moneys or to come into any arrangement with the ATO to pay off the moneys until after the business was audited. This does not appear to be a case of the business needing the non-remitted group tax in order to survive or a case of extensive business difficulties.

8. The defendant admitted that the business had enough money to pay the group tax and enjoyed the benefit of those moneys."

When asked whether he challenged those statements, counsel for the applicant before his Honour declined to do so and made no submissions that the fraud was caused by financial problems.

I do not think it is open to the applicant now to contradict this on the basis of a statement made by her psychiatrist which was not relied on before the learned sentencing judge, notwithstanding that the report which contains that statement was before the Court.

There are, it must be said, a number of mitigating factors. All except about $15,000 of the amount outstanding has been repaid, and repayments commenced during the initial investigation.

The applicant took part in a lengthy interview with the Australian Federal Police, made full admissions to them, and thereafter cooperated in the investigation. She pleaded guilty at the earliest opportunity. She has reached 54 years of age with no prior convictions, and she has had some psychiatric problems, no doubt at least exacerbated by her own dishonesty.

The principles relevant to sentencing in cases of this kind are settled and it is not necessary to repeat them here. A number of comparable cases were cited to this Court. Those cited by the applicant were Wright CA No 432 of 1993, 2 March 1994, Mackay CA No 12 of 1996, 13 March 1996, Tacey

CA No 434 of 1993, 2 March 1994 and To and Do [1999]

The respondent referred also to Mai CA No 257 of 1995,

25 August 1995, and another case of Wright CA No 149 of 1993, 16 June 1995. All of these cases involved appeals by the Commonwealth Director of Public Prosecutions with the necessary consequence of cutting across the time-honoured concept of criminal administration by putting in jeopardy for the second time the freedom beyond which the sentence is imposed and the effect which that has on an appellate Court in imposing a more onerous sentence.

It is unnecessary to discuss any of those cases at length. However it must be borne in mind that because they were appeals by the Commonwealth Director of Public Prosecutions, the sentences imposed by this Court in those cases were conservative. There is, in my opinion, nothing in the comparable cases, that is, the cases to which I have referred, and in addition the sentences imposed in the District Court contained in a schedule which was put before the learned sentencing Judge, which would lead me to think that the sentence imposed here was manifestly excessive.

ATKINSON J: While in my view the mitigating factors in this case, including those mentioned by Justice Davies, and in particular the difficult family situation referred to by her husband and put before the sentencing Judge, would have warranted a shorter actual period to be spent in custody, I agree that the sentence imposed is not outside the available range and therefore would refuse the appeal.

MULLINS J: I agree with the reasons of Justice Davies and the order proposed.

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