R v Craig [2016] ACTSC 26

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - particular offences - dishonesty offences - false income tax return - intention to cause a loss to the Commonwealth - dealing with property that was proceeds of crime - property less than $100,000 - significant criminal history - crimes committed while incarcerated - early guilty plea - prospects of rehabilitation - specific and general deterrence - delay in authorities laying charges - sentence imposed.

Commonwealth Director of Public Prosecutions (Crown)

1. James Craig, on 24 September 2015 in the ACT Magistrates Court you pleaded guilty to seven offences of causing a false income tax return to be lodged with the intention of dishonestly causing a loss to another person, namely the Commonwealth, contrary to s 135.1(3) of the Criminal Code 1995 (Cth) (the Commonwealth Criminal Code).

2. At that time you also pleaded guilty to one offence of dealing with property, it being reasonable to suspect that such property was proceeds of crime and at the time of dealing the value of the property was less than $100,000, contrary to s 400.9(1A) of the Commonwealth Criminal Code.

3. You were subsequently committed to this Court for sentence and you have maintained your pleas of guilty to these charges. The maximum penalty for an offence against s 135.1(3) of the Commonwealth Criminal Code is five years' imprisonment, a fine of $33,000.00 or both. The maximum penalty for the offence against s 400.9(1A) of the Commonwealth Criminal Code is two years' imprisonment, a fine of $13,200.00 or both.

4. For convenience, I will refer to the charges by reference to the Magistrates Court charge numbers.

5. On 28 November 2008, a paper income tax return for the 2008 financial year was received by the Australian Taxation Office, which, for convenience, I will refer to as the ATO, in your name.

6. A second 2008 income tax return was lodged electronically before the paper return was processed and was treated as an amendment. The address provided on the income tax return belonged to the Junee Correctional Centre. At that time you were an inmate at that facility.

7. The income tax return stated an Australian Business Number (ABN) for your employer and that you had earned $24,200.00 from that employment of which $7,560.00 had been withheld as tax and paid to the ATO. The listed occupation was baggage handler. The ABN on the income tax return belonged to Jetstar Airways Pty Ltd. You were not an employee of that company during the 2008 financial year and the ATO did not receive any withheld tax on your behalf.

8. Following the assessment of this false return the ATO determined that a tax refund in the sum of $6,162.25 plus $56.45 in interest was payable to you and a cheque was issued in the amount of $6,218.70. This cheque was subsequently deposited into your bank account.

9. On 15 June 2009, a paper income tax return for the 2008 financial year was received by the ATO in the name of Scott Pilcher. You prepared and lodged that income tax return without the knowledge of Scott Pilcher. The postal address on the income tax return was an address in Wollongong. Bank account details were also provided in the name of Scott Pilcher. The return stated Mr Pilcher's employer's ABN number and that he had earned $38,920.00 and that $8,225.00 of that sum had been withheld as tax and paid to the ATO. The listed occupation on the return was marketing manager. The ABN stated on the return was invalid and did not belong to any entity. Scott Pilcher was detained in the Alexander Maconochie Centre (AMC) for the entirety of the 2008 financial year and did not earn the income as claimed in the return. The sum of $8,225.00, claimed as withholding tax on the return, had not been paid to the ATO on his behalf. The specified address at Wollongong was not his address.

10. The false income tax return was processed by the ATO and it was determined that Mr Pilcher was owed a tax refund of $1,920.80. Of that sum, the amount of $347.58 was offset to other Commonwealth agencies and a refund of $1,581.22 was transferred to the nominated bank account on 24 June 2009. That bank account was, in fact, your bank account.

11. On 18 June 2009, a paper income tax return for the 2008 financial year was received by the ATO in the name of Robert James Nicholls. You completed and lodged that false return which resulted in the ATO paying a refund of $2,723.40 into a nominated bank account which was, in fact, your bank account.

12. On 30 October 2009, a paper income tax return for the 2009 financial year was received by the ATO in the name of Tim Allen. You completed and lodged that false return which resulted in the ATO paying a sum of $7,426.02 into your bank account.

13. On 17 July 2011, a paper income tax return for the 2011 financial year was received by the ATO in the name of Bradley Potts. You completed and lodged that false return. Bradley Potts was, for approximately nine months of the 2011 financial year, an inmate at the AMC.

14. On 2 August 2011, a paper income tax return for the 2010 financial year was received by the ATO in the name of Ian Stubbings. You completed and lodged this false return. As a result, on 24 August 2011 the ATO deposited $1,081.82 into your bank account. You knew Ian Stubbings because you had both been in custody together at one time.

15. On 4 August 2011, a paper income tax return for the 2011 financial year was received by the ATO in the name of Alan Priest. You completed and lodged this false return. As a result, on 12 September 2011 the ATO deposited $3,356.97 into your bank account. Your fingerprints were later identified on the return.

16. On 23 June 2011, a paper income tax return for the 2010 financial year was received by the ATO in your name. The bank account details listed on the return were in the name of A J Hagan. The account belongs to Anthony Hagan who was at that time also a detainee at the AMC. The return purported to state your employer's ABN and that you had earned $55,120.00, of which $18,189.00 had been withheld tax and paid to the ATO. The ABN listed on the return was invalid and did not belong to any entity. You were in custody for the entirety of the 2010 financial year and did not earn the sum claimed on the return and no tax had been paid to the ATO on your behalf.

17. Following an assessment of the return the ATO determined that a tax refund in the sum of $7,321.40 was payable to you. Of that refund, the amount of $4,207.52 was offset to Centrelink and the remaining $3,113.88 was paid to you. On 10 August 2011, an ATO cheque in the sum of $3,113.88 was deposited into your bank account.

18. The offences committed by you resulted in the ATO incurring a loss of $26,179.34. Of that sum $25,518.01 was deposited into your bank account with the remaining $661.33 being paid as offsets to other Commonwealth agencies. None of the funds deposited into your bank account have been recovered.

19. The victims of your crimes were members of the Australian community as a whole because your offending has reduced the funds available for essential and other services and increased the tax burden on honest taxpayers.

20. You have a very significant criminal history, particularly for offences of dishonesty. You are not entitled to any leniency in sentencing for these offences based upon your prior history. It is, of course, an aggravating circumstance that four of the seven general dishonesty offences were committed while you were in the custody of ACT Corrective Services on unrelated charges. As I understand your criminal history, you are currently serving sentences of imprisonment which are not due to expire until 26 February 2019. Your present non-parole period expires on 25 February 2016.

21. I note that you are 44 years old and you have served a number of terms of imprisonment for offences of dishonesty. In May 2009, you commenced a custodial term at the AMC and after serving two years and two months you were released on 28 July 2011 on parole. On 26 November 2011, you were returned to custody, having breached your parole obligations due to numerous offences committed during the parole period.

22. During your time in custody you have been a minimum security classification detainee. You have held employment positions of trust and you have been subject to limited disciplinary action. Your application for transitional release, approved on 16 January 2015, indicated a six-month drug-free period. You testified at the sentence hearing that you have not had a positive drug test, which was not challenged by the Crown. I note, however, that for the last four and a half years that you have been in custody. You have completed numerous courses whilst you were in custody.

23. You are the youngest of three children. Your father apparently abandoned the family before you were born and you reported that your mother consumed problematic quantities of alcohol leading to neglect of the family. You gave evidence that you continue to have some contact with your sister but otherwise you have no family contact or support.

24. You told the author of the Pre Sentence Report that you left home at age 12 and claimed that you committed offences to secure shelter and basic needs. You left school in year 7 which impacted on your literacy and numeracy skills. You have a limited employment history in the community including positions as a shop assistant, milk deliverer and shed hand. You held a position as a kitchen hand for approximately two years before returning to custody in 1998. You have been dependent on Centrelink benefits for lengthy periods of your adult life.

25. You have a long history of drug abuse. You told the author of the Pre-Sentence Report that you commenced cannabis use at age 13 and used heroin daily commencing at age 15. You ceased using heroin when you commenced methadone treatment which continued until recently. Drug testing while in the AMC indicates that you have not used illicit substances for a period of at least six months, although, as I have already noted, you gave evidence that you have not used illicit substances for a much longer period and that evidence was not challenged by the Crown.

26. In May 2012, while you were in custody, you completed the Solaris Therapeutic Community Program in the AMC and in July 2013 and June 2014 you completed relapse prevention programs in the AMC.

27. The author of the Pre-Sentence Report stated that you acknowledged your offending behaviours but showed little insight into the implications of your actions. It was the opinion of the author that you have been institutionalised for a considerable period of your adult life and appeared quite dependent on the structure that custody affords to you.

28. The author of the Report considered that despite completing the Solaris Program you have not yet demonstrated an ability to live a pro-social, drug-free life in the community. You were assessed by the author of the Report as at medium to high risk of offending and you would require significant support to achieve a drug offence-free life.

29. You gave evidence at the sentence hearing that you are scared by the prospect of returning to the community and you want to go into the transitional release centre to improve your prospects of avoiding reoffending when you return to the community. You also referred to your desire to rely upon services available to you in the community when you are released.

30. I accept that your guilty pleas were entered at the earliest opportunity and that they demonstrate a degree of remorse, acceptance of responsibility and a willingness to facilitate the course of justice.

31. The Crown case against you was strong but I would not describe it as overwhelming. I will reduce by approximately 25 per cent the sentences that I would otherwise have imposed in order to reflect your pleas of guilty.

32. The offences which you committed are objectively serious as they involve calculated and planned conduct intended to defraud the Australian taxation system. It cannot be said that the offences were particularly sophisticated but there was an element of planning and premeditation. As I have already noted, the financial loss to the community was not insignificant. These offences also involved a breach of the trust that the ATO affords taxpayers in self-reporting their taxation affairs. It is also significant that these offences formed part of a course of conduct extending over nearly three years.

33. Your criminal history makes it clear that the need for specific deterrence in sentencing is high. There is also ample authority, if any is needed, for the proposition that general deterrence is also important in sentencing for this type of offence.

34. Despite your criminal history there is still some hope for your rehabilitation. The efforts which you have made in custody demonstrate an ability and willingness to progress your rehabilitation. You have not yet, however, demonstrated an ability to live a

law-abiding and drug-free life in the community. It may be that participation in the transitional release program and the provision of appropriate supports when you are released from custody will assist you to avoid reoffending when you are released on this occasion.

35. There has been a significant delay in the relevant authorities laying the present charges against you. It is not clear why this occurred but the Crown has properly conceded that it was not your fault that these charges were not dealt with at a much earlier time.

36. I will endeavour to construct a sentence so that you will be no worse off than if these charges had been dealt with in November 2012 when I sentenced you with respect to multiple charges of obtaining property by deception. At that time I imposed an aggregate sentence of four years' imprisonment commencing on 14 November 2012 and I reset the non-parole period for the sentence that you were then serving such that it expires on 25 February 2016.

37. I record convictions on each of the charges and I impose the following sentences:

(a) on charge 41269 of 2015, a sentence of 15 months' imprisonment commencing on 26 September 2017 and expiring on 25 December 2018;

(b) on charge 41270 of 2015, a sentence of 12 months' imprisonment commencing on 26 February 2018 and expiring on 25 February 2019;

(c) on charge 41271 of 2015, a sentence of 12 months' imprisonment commencing on 26 April 2018 and expiring on 25 April 2019;

(d) on charge 41272 of 2015, a sentence of 15 months' imprisonment commencing on 26 March 2018 and expiring on 25 June 2019;

(e) on charge 41273 of 2015, a sentence of 12 months' imprisonment commencing on 26 August 2018 and expiring on 25 August 2019;

(f) on charge 41274 of 2015, a sentence of 12 months' imprisonment commencing on 26 October 2018 and expiring on 25 October 2019;

(g) on charge 41275 of 2015, a sentence of 12 months' imprisonment commencing on 26 December 2018 and expiring on 25 December 2019; and

(h) on charge 41276 of 2015, a sentence of seven months' imprisonment commencing on 26 July 2019 and expiring on 25 February 2020.

38. As such, I have effectively increased the head sentence which you are currently serving by 12 months. I set a new non-parole period which will expire on

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.