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[2015] WASCA 23
Court of Appeal (WA)
2015-02-05
Lure P, Buss JA, Mazza JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : R -v- HOST [2015] WASCA 23
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Crown appeal against sentence - Taxation fraud - Forty nine counts committed over four years - Respondent obtained a total of $332,646 - Use of forged documents - Late pleas of guilty - Late restitution - Total effective sentence of 2 years' imprisonment - Pre-release period of 8 months - Manifest inadequacy - Totality principle
Criminal law - Pecuniary penalty order - Section 16A(2)(f) of the Crimes Act 1914 (Cth) - Section 320 of the Proceeds of Crime Act 2002 (Cth) - Interaction between s 16A(2)(f) and s 320
Criminal Appeals Act 2004 (WA), s 31(4), s 40(1)(e), 41(3)(c), s 41(3)(d)
Proceeds of Crime Act 1987 (Cth), (repealed)
Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372
Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383
Bransby v The Queen [2010] WASCA 165; (2010) 78 ATR 163
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638
Commissioner of Stamp Duties (NSW) v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
De Faria v The State of Western Australia [2013] WASCA 116
De Hollander v The Queen [2012] WASCA 127
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Director of Public Prosecutions (Cth) v Rowson [2007] VSCA 176
Director of Public Prosecutions v Ka-Hung-Ip [2005] ACTCA 24
Dragojlovic v The Queen [2013] VSCA 151; (2013) 230 A Crim R 226
Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274
Edwards v The Queen [2013] NSWCCA 54
El Rakhawy v The Queen [2011] WASCA 209
Giglia v The State of Western Australia [2010] WASCA 9
Gok v The Queen [2010] WASCA 185
Graziosi v Director of Public Prosecutions (Cth) [2011] VSCA 418
Hennessy v The Queen [2012] NSWCCA 241
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Horne v The Queen [2011] NSWCCA 225
Hughes v The Queen [2011] NSWCCA 226
Jod v The Queen [2009] NSWCCA 205
Keefe v The Queen [2014] VSCA 201
L Vogel & Son Pty Ltd v Anderson (1967) 120 CLR 157
Lam v The Queen [2014] WASCA 114
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Ly v The Queen [2007] NSWCCA 28
Magar v The State of Western Australia [2011] WASCA 122
Magdi v The State of Western Australia [2010] WASCA 234
McDermott v The Queen (1990) 49 A Crim R 105
McMahon v The Queen [2011] NSWCCA 147
O'Meara v The Queen [2009] NSWCCA 90
Pavlovic v Spooner [2014] WASCA 31
Payda v The Queen [2013] NSWCCA 109
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Anderson [2012] QCA 215
R v Baldock [2010] WASCA 170; (2010) 243 FLR 120
R v Barton [2006] QCA 18
R v CAK [2009] QCA 23
R v Desborough [2010] QCA 297
R v Falconi [2014] QCA 230
R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125
R v Jian Hou [2010] VSCA 36
R v Kertebani [2010] NSWCCA 221
R v Lovel [2007] QCA 281
R v Ly [2014] NSWCCA 78
R v Minassian [2007] QCA 39
R v Newton [2010] QCA 101; (2010) 199 A Crim R 288
R v Pham [2014] QCA 287
R v Pipes [2004] NSWCCA 351
R v Rajacic [1973] VicRp 63; [1973] VR 636
R v Ruha; Ex parte Commonwealth Director of Public Prosecutions [2010] QCA 10; [2011] 2 Qd R 456
Roffey v The State of Western Australia [2007] WASCA 246
Schembri v The Queen [2010] NSWCCA 149; (2010) 78 ATR 159
Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164
Tapper v The Queen [1992] FCA 600; (1992) 39 FCR 243
Van Haltren v The Queen [2008] NSWCCA 274; (2008) 191 A Crim R 53
Wheeler v The Queen [No 2] [2010] WASCA 105
1 McLURE P: I have had the advantage of reading the reasons for judgment of Buss JA. I agree that the total effective sentence of 2 years' imprisonment infringes the first limb of the totality principle with the result that the appeal against sentence should be allowed and the respondent resentenced. However, I differ from Buss JA on the construction issue relating to the relationship between s 16A(2)(f) of the Crimes Act 1914 (Cth) and s 320 of the Proceeds of Crime Act 2002 (Cth). I will start with the construction issue.
The scope of s 16A(2)(f) of the Crimes Act and s 320 of Proceeds of Crime Act
2 This appeal raises for determination the question whether there is any inconsistency between s 16A(2)(f) of the Crimes Act and s 320 of the Proceeds of Crime Act (PCA), and if so, the consequence of the inconsistency. It appears there is no case in which the construction issue has been squarely and directly considered and determined. Having now attempted to grasp the nettle, I understand, but resist, the attraction of going around not through.
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:
...
(e) any injury, loss or damage resulting from the offence;
...
(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner[.]
4 Section 320 of the PCA relevantly provides:
A court passing sentence on a person in respect of the person's conviction of an indictable offence:
(a) may have regard to any cooperation by the person in resolving any action taken against the person under this Act; and
...
(d) must not have regard to any pecuniary penalty order ... that relates to the offence.
6 Under s 116(1) of the PCA a court must make a pecuniary penalty order in specified circumstances, one alternative condition of which is that the court is satisfied the person has been convicted of an indictable offence and has derived benefits from the commission of the offence. A person will have derived such benefits even if the benefit exceeds any loss resulting from the offence. That is, the object of the PCA is restitutionary, not compensatory.
7 A pecuniary penalty order is enforceable by the Commonwealth as if it were an order made by a court to recover a debt (s 140, PCA).
8 Section 122 identifies the matters to which the court must have regard in valuing the benefits derived from the commission of an offence.
9 Under s 131(1) of the PCA, the court must reduce the penalty amount under a pecuniary penalty order against a person by an amount that, in the court's opinion, represents the extent to which tax that the person has paid before the application for the order is made is attributable to the benefits to which the order relates. The appellant repaid $18,969.15 to the Australian Taxation Office before the application for the pecuniary penalty order was made. That amount was excluded from the pecuniary penalty order made by consent in the District Court proceedings.
10 Apart from a reference to tension between the statutory provisions, neither party provided written submissions on the question of construction. The oral submissions went little further than the parties stating their position. The Crown submitted that, in sentencing, the court could have regard to any cooperation by the person in resolving any action taken against a person under the PCA but must not otherwise have regard to the fact of, or a payment made pursuant to, a pecuniary penalty order (ts 15). The respondent submitted that s 320(d) should be construed as an instruction to a court not to take into account a pecuniary penalty order as an additional penalty rather than removing it as a form of reparation from the court's consideration (ts 19).
11 It is of assistance to know the legislative history. Section 320 of the PCA is based on recommendations by the Australian Law Reform Commission (ALRC) in its report Confiscation that Counts, A Review of the Proceeds of Crime Act 1987 (Report No 87).
12 The Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth) provided for the phasing out of the Proceeds of Crime Act 1987 (Cth) (the 1987 Act). There was no equivalent of s 320 in the 1987 Act. The Full Federal Court in McDermott v The Queen (1990) 49 A Crim R 105 had held that a pecuniary penalty order under the 1987 Act must be taken into account at the time of sentencing as an additional punishment which warranted a reduction in sentence in that case. The sentencing judge had, at the time of sentencing, ordered the offender to pay to the Commonwealth a pecuniary penalty under the 1987 Act but it was uncertain whether the Commonwealth would take steps to enforce the order.
13 McDermott was followed in Tapper v The Queen [1992] FCA 600; (1992) 111 ALR 347, 353. After referring to McDermott and Tapper and the effect of Victorian legislation, the ALRC said:
Given the pivotal importance ... of the principal objective enunciated in section 3(1)(a) [of the 1987 Act] ... and the underlying principle of denial of unjust enrichment, the Commission is in no doubt that permitting the courts to take confiscation of profits into account in sentencing ... is entirely incompatible with the maintenance of the integrity of that principle and the achievement of that objective and should be prohibited [3.53].
14 The principal objective in s 3(1)(a) of the 1987 Act was to deprive persons of the proceeds of, and benefits derived from, the commission of offences against the laws of the Commonwealth or the Territories.
15 The ALRC recommended that the 1987 Act should expressly prohibit the court from taking into account in sentencing for an offence any confiscation order in respect of the profits of that offence [3.59]. A prohibition preventing a court from 'taking into account in sentencing' a specified matter is to make that matter an irrelevant consideration in the sentencing process.
16 It is apparent from the ALRC's observation in [3.53] that its intention went beyond merely reversing McDermott but otherwise leaving the existence of a pecuniary penalty order as a relevant sentencing consideration.
17 The expression 'must not have regard to' in s 320(d) of the PCA is also intended to make the specified matter an irrelevant sentencing consideration. The central issue concerns the scope of the matter that is an irrelevant sentencing consideration. It is oddly worded in s 320(d) as 'any pecuniary penalty order ... that relates to the offence'. That limited description provides some support for the respondent's construction submission, there being no express reference to payments made pursuant to such an order.
18 However, s 320(a) would be unnecessary if the respondent's construction of s 320(d) is correct. Moreover, the text of s 320(a) strongly suggests that it exhaustively identifies the relevant mitigatory considerations connected with a pecuniary penalty order. In that context, the prohibition in s 320(d) must be intended to apply to a pecuniary penalty order that relates to the offence and to any payments made pursuant to that order. That is, payment pursuant to a pecuniary penalty order is an irrelevant sentencing consideration.
19 It is the mere fact of payment that is an irrelevant consideration. In that way, courts do not advantage offenders simply because they are in the fortunate position of having the means to satisfy a pecuniary penalty order. Under this scheme, mere payment of an involuntary, court ordered and enforceable obligation is not evidence of contrition or otherwise mitigatory.
20 However, s 320(a) should be widely construed to include, inter alia, any unusual or voluntary steps taken to cooperate in the enforcement of the pecuniary payment order, such as by obtaining loans or otherwise. Further, the matters in s 320(a) are relevant mitigatory factors even if they do not evidence contrition. Like the mitigatory effect of a plea of guilty and cooperation generally, the matters in s 320(a) may, but not must, evidence remorse.
21 The scope for inconsistency between s 320(a) and (d) of the PCA on the one hand and s 16A(2)(f) on the other is limited to situations in which the Commonwealth is also a 'victim' who has suffered injury, loss or damage as a result of the offence. As to reparation to the Commonwealth, see s 21B(1)(c) of the Crimes Act.
22 To the extent the proper construction of s 320 of the PCA is inconsistent with s 16A(2)(f) of the Crimes Act, s 320 must prevail. Section 16A(2)(f) was inserted in the Crimes Act by the Crimes Legislation Amendment Act (No 2) 1989 (Cth). Section 320 is a later provision dealing specifically with the relevance of pecuniary penalty orders in sentencing proceedings. The later specific provision must be intended to prevail to the extent of any inconsistency.
23 On the construction of s 320(a) and (d) that I favour, s 16A(2)(f) would be read down to exclude payments made to the Commonwealth pursuant to a pecuniary penalty order when the Commonwealth is also the victim of the offence.
24 The only loose end is whether mere payment pursuant to a pecuniary penalty order can be taken into account under s 16A(2)(e). Once again the scope for inconsistency is confined to those cases in which the Commonwealth is also the victim of the offence, it always being the beneficiary of a pecuniary penalty order. It is not necessary to answer this question. However, it may be significant that the Commonwealth incurs very considerable, unrecoverable costs in compliance, audit and investigation systems designed to protect its revenue from, and to detect, fraudulent and other dishonest conduct. Of course, the real victims of such conduct are the members of the Australian community as a whole because it reduces the funds available for essential and other services and increases the taxation burden on honest taxpayers.
25 Applying the law to the facts of this case, s 16A(2)(e) and (f) of the Crimes Act apply to the payment that preceded the application for the pecuniary penalty order and s 320(a) applies to the respondent's cooperation, whether or not it can sustain a finding of (real) contrition.
Breach of totality principle and other grounds
26 The facts are detailed in the judgment of Buss JA and it is unnecessary to repeat them here.
27 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24]. As with manifest excess, regard is had to comparable cases to ensure broad consistency in sentencing for similar offending.
28 There is no challenge to the sentencing judge's findings that the respondent was genuinely remorseful, was unlikely to reoffend and had excellent prospects of rehabilitation. Positive antecedents are not unusual in cases of white collar crime.
29 However, on any view those findings are very generous to the respondent when regard is had to the high level of seriousness of the objective circumstances of the offending as a whole. The respondent committed multiple fraud offences on a regular basis over a four-year period causing a very significant loss to the revenue. His deliberate dishonesty involved considerable planning and premeditation. His use of forged documents to hide his previous dishonesty further elevates the criminality of the offending as a whole.
30 As Rothman J said in R v Jones; R v Hili [2010] NSWCCA 108; (2010) 76 ATR 249, the taxation system depends upon self-assessment which reposes a heavy duty of honesty on taxpayers [13]. General deterrence looms large, a point emphasised by Kitto J in an analogous context in L Vogel & Son Pty Ltd v Anderson (1967) 120 CLR 157, 164.
31 Notwithstanding the significant mitigating factors on which the sentencing judge relied, the total effective sentence is so inappropriately lenient as to compel the inference of implied error in the sentencing process. I agree with Buss JA's reasons on the subject.
32 That error affects both the total effective sentence and the associated 8 month recognisance release order. Accordingly, it is unnecessary to determine whether the recognisance release order made by the sentencing judge was itself manifestly inadequate, even if the total effective sentence did not infringe the totality principle. As to the relevant principles for fixing a non-parole period or a recognisance release order for a federal offence, see Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 and Lam v The Queen [2014] WASCA 114.
33 I agree with Buss JA that the individual sentences are not manifestly inadequate, particularly when regard is had to the interconnectedness between, and resultant flexibility in approach to, the individual and total sentences discussed in Giglia v The State of Western Australia [2010] WASCA 9.
34 Error having been established, and there being no basis for invoking the discretion in s 31(4) of the Criminal Appeals Act 2004 (WA), I would set aside the sentencing judge's orders for cumulation and concurrence and the recognisance release order and resentence the respondent, having the necessary materials to do so.
35 Unlike the majority, I would impose a total effective sentence of 4 years' imprisonment with a non-parole period of 2 years. Notwithstanding the significant mitigatory factors, that penalty in my view appropriately reflects the objective seriousness of the offending as a whole and the need to send a strong deterrent message to other like-minded taxpayers.
36 BUSS JA: This is a Crown appeal against sentence.
37 On 31 January 2014, the respondent was convicted, on his late pleas of guilty in the District Court before Bowden DCJ, on 49 counts relating to taxation fraud.
38 On 24 April 2014, the primary judge imposed a term of 6 months' imprisonment on each of the counts. The total effective sentence, after taking account of his Honour's orders in relation to accumulation and concurrency, was 2 years' imprisonment. His Honour ordered, pursuant to s 19AC and s 20(1)(b) of the Crimes Act 1914 (Cth), that the respondent be released after having served 8 months upon entering into a recognisance in the sum of $5,000 to be of good behaviour for two years.
40 Ground 1 alleges in substance that each of the individual sentences was manifestly inadequate.
41 Ground 2 alleges in substance that the total effective sentence infringed the first limb of the totality principle.
42 Ground 3 alleges in substance that the pre-release period and the recognisance release order were manifestly inadequate.
43 On 14 July 2014, McLure P granted leave to appeal on grounds 2 and 3 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.
44 The grounds allege implied or inferred error. They do not allege any express error.
45 Counts 1 - 30 inclusive in the indictment alleged in essence that between October 2004 and August 2007 the respondent, by a deception,
dishonestly obtained a financial advantage from the Commonwealth for another by lodging with the Australian Taxation Office (ATO) monthly business activity statements (BAS) on behalf of the Host Family Trust that contained false statements and, as a result, the Host Family Trust received tax refunds that it was not entitled to receive, contrary to s 134.2(1) of the Criminal Code (Cth) (the Code).
46 Counts 40, 41 and 42 in the indictment alleged in essence that for the 2005, 2006 and 2007 financial years the respondent, by a deception, dishonestly obtained a financial advantage from the Commonwealth in that he caused to be lodged with the ATO individual taxation returns (ITR) in his name that contained false information and, as a result, he received tax refunds that he was not entitled to receive, contrary to s 134.2(1) of the Code.
47 Counts 43 - 58 inclusive in the indictment alleged in essence that between on or about 30 November 2005 and on or about 3 September 2008 the respondent, knowing that documents were false documents, used the documents with the intention of dishonestly inducing a person, in his capacity as a public official, namely a compliance officer with the ATO, to accept the documents as genuine and, if so accepted, dishonestly influencing the exercise of a public duty or function, contrary to s 145.1(1) of the Code.
48 The false documents were documents the respondent had forged, as substantiation of the amounts claimed in the BASs and the ITRs, when supporting documentation was requested by ATO compliance verification officers in relation to the BASs and, later, by ATO auditors in relation to the BASs and the ITRs.
(a) the person, by a deception, dishonestly obtains a financial advantage from another person; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) Absolute liability applies to the paragraph (1)(b) element of the offence.
A person is guilty of an offence if:
(a) the person knows that a document is a false document and uses it with the intention of:
(i) dishonestly inducing another person in the other person's capacity as a public official to accept it as genuine; and
(ii) if it is so accepted, dishonestly obtaining a gain, dishonestly causing a loss, or dishonestly influencing the exercise of a public duty or function; and
(b) the capacity is a capacity as a Commonwealth public official.
Penalty: Imprisonment for 10 years.
The facts and circumstances of the offending
51 Between October 2004 and September 2008, the respondent engaged in three categories of offending.
52 As to the BASs, the respondent, in the course of preparing each of the BASs on behalf of the Host Family Trust, intentionally overstated the amount of creditable acquisitions made by the trust. The respondent then caused the BASs, with the overstated amounts, to be lodged electronically with the ATO. After receiving the BASs, the ATO relied on the information they contained and, consequently, was deceived as to the amount of creditable acquisitions that had been made by the trust and, therefore, the amount of goods and services tax credits to which the trust was entitled. The ATO, in reliance on the information in the BASs, paid tax refunds for the trust into a bank account opened and operated by the respondent.
53 As to the ITRs, the respondent arranged for his ITRs to be prepared and lodged by a tax agent. The respondent intentionally gave the tax agent false information about his alleged employment and the amount of tax that had been withheld by his employer. The tax agent used the information to prepare the respondent's ITRs and calculate his taxable income. The respondent signed electronic lodgment declarations in which he declared that the information he had given the tax agent was true and correct. The tax agent relied on the declarations and lodged the respondent's ITRs electronically with the ATO. The ATO relied on the information contained in the ITRs and, consequently, was deceived as to the amount of tax refunds to which the respondent was entitled. As a result, the ATO paid tax refunds to the respondent, to which he was not entitled, for each of the 2005, 2006 and 2007 financial years.
54 As to the false documents, the respondent's use of forged documents arose from two compliance verification checks undertaken by the ATO in relation to BASs for the Host Family Trust and a later audit conducted by the ATO in relation to the trust's BASs and the respondent's ITRs. By providing the documents in question to ATO verification officers and auditors, the respondent intended to induce the officers and auditors to accept the documents as genuine, and to influence the conduct of the compliance verification checks and audit.
55 The primary judge recounted the facts and circumstances of the offending in his sentencing remarks.
(a) The maximum penalty for each of the offences was 10 years' imprisonment (ts 58).
(b) The total amount obtained by the respondent from the ATO was $332,646 (ts 59).
(c) The respondent entered pleas of guilty to each of the offences. However, the pleas were not 'finalised' until 31 January 2014, about six weeks before the scheduled commencement of the respondent's trial (ts 59).
(d) The respondent should be given credit for his pleas of guilty (ts 59 - 60).
(e) The respondent's criminality involved 'one course of conduct' to gain financial advantage for himself, but the course of conduct was 'protracted' (ts 60).
57 The primary judge referred to the respondent's personal circumstances and antecedents.
58 The respondent was born on 10 June 1974. He was aged between 30 and 34 at the time of the offending and was 39 when sentenced. He had a very good upbringing, was married with two children and a supportive family, and had an excellent work record. The respondent had been involved with volunteer work in the community. The authors of written references spoke highly of him.
59 His Honour accepted that the respondent was suffering from shame, stress, anxiety and depressive symptoms arising from his offending and the revelation of his criminal conduct to his family.
60 The respondent had made restitution and that was, in the primary judge's view, a 'significant factor' (ts 61). His Honour thought the respondent was 'genuinely remorseful' (ts 63). The respondent did not have a prior criminal record. He had a new business (established in 2011) and he had family obligations. The respondent had, to some extent, re-established himself in the community and he was undergoing counselling.
61 His Honour said the respondent was unlikely to reoffend. He had 'excellent prospects of rehabilitation' (ts 61). His Honour added, 'I don't consider that there's a need for personal deterrence' (ts 61). Later, however, his Honour said, inconsistently with his earlier remarks, that '[t]he sentence that I impose has got to deter you' (ts 62). He also said, in the course of imposing the sentences, that he bore in mind 'the need for ... appropriate punishment, general deterrence, personal deterrence and the circumstances' (ts 63).
62 The primary judge accepted that the sentences he had decided to impose would have 'an effect' on the respondent's wife, children and other family members (ts 61).
The expert reports before the primary judge
63 There were expert reports before the primary judge, namely a report dated 27 February 2014 from a psychologist, Ms Zuin, a pre-sentence report dated 6 March 2014 and a note from a psychologist, Dr Yozzi.
64 Ms Zuin said the respondent had informed her that his offending arose from financial difficulties he experienced after he sold his computer sales/repair business. According to the respondent, the purchaser of the business failed to pay money as agreed and, consequently, the respondent had an ongoing liability for rent and other business expenses. He commenced his offending behaviour in order to 'cover his debts' and avoid 'losing his home, various other assets and possibly having to declare bankruptcy'. The respondent told Ms Zuin that 'he was fearful of coming forward about his deception when audited, thus perpetuating further offending'.
The timing of the pleas of guilty and the restitution
65 Ms Zuin recorded in her report some statements made by the respondent about the repayment or proposed repayment by him of the money he had fraudulently obtained from the ATO:
[The respondent] stated that in 2009 he repaid the personal tax ... he [had] deceptively obtained and ... he requested a payment arrangement with the Australian Tax Office (ATO) to repay the $300,000 deceptively obtained through BAS forms. However, [the respondent] stated that the ATO did not agree to this and charges were laid against him in late 2012.
66 This issue was taken up by defence counsel at the sentencing hearing before the primary judge:
[T]here was a resolution attempted by [the respondent] in 2009. Some of it was resolved, that is the income tax was resolved and repaid. His hope I think at that time was that he would be able to make some sort of restitution at that time and not be charged and that was certainly his hope that that would be the way it would turn out.
It didn't turn out that way and restitution wasn't able to be arranged at that time and the ATO as, of course, they have the right to do so then proceeded with charges for not only the matters about which he'd already made restitution, but about the other matters and the false documents and so on.
Why it gets from 2009 where that discussion takes place to 2014 I can't adequately explain other than to say that there was a period of time where [the respondent] was attempting to resolve matters without the intervention of the criminal justice process and obviously from his point of view it would have been better if that had never come to pass, but that wasn't able to be resolved.
The ATO took a particular view of the matter that court was required and charges were required (ts 40). (emphasis added)
67 The prosecutor did not challenge defence counsel's submissions about the 'resolution attempted by' the respondent in 2009. It is apparent from defence counsel's submissions that in 2009 the respondent attempted to negotiate a settlement with the ATO which would involve some restitution on his part in exchange for the ATO agreeing not to invoke the criminal justice system.
68 The respondent made an application dated 5 September 2014 and an application dated 11 September 2014 in the appeal, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), for leave to adduce additional evidence in the appeal. The applications were supported by affidavits sworn 5 September 2014 and 11 September 2014 by his lawyer, Timothy James Poli.
69 By orders dated 9 and 15 September 2014, Mazza JA referred the applications for leave to adduce additional evidence to the hearing of the appeal. At the hearing, counsel for the Crown did not oppose a grant of leave (appeal ts 2). The court granted the respondent leave to adduce the additional evidence (appeal ts 2).
71 On or about 8 November 2012, the respondent was charged with the offences in question. The matter first came before the Magistrates Court on 14 December 2012.
72 On 22 November 2012, the Commissioner of the Australian Federal Police (AFP) obtained a restraining order under s 17 of the Proceeds of Crime Act 2002 (Cth). The order restrained any dealings with the respondent's residential property at 14 Exmouth Vista, Gwelup. On 23 November 2012, the AFP lodged a memorial against the property with Landgate.
73 On 27 August 2013, the indictment was filed in the District Court. On 11 September 2013, an amended indictment was filed.
74 By letter dated 25 September 2013, counsel for the respondent wrote to the Crown's solicitors and made this plea offer:
Charges for which a conditional plea of guilty is offered
My instructions are that [the respondent] is prepared to plead guilty to the following charges and make restitution in relation to those matters on two conditions:
Conditions of the Plea Offer
The first condition of the plea offer is that the [Crown] discontinues the remaining charges (1 - 11, 13 - 17 and 31 - 39).
The second condition is that the [Crown] indicates in its sentencing submissions to the Court that it would not seek an immediate term of imprisonment.
In relation to the restitution, if the [Crown] is prepared to accept the offer please advise what figure would be sought from [the respondent] in relation to these charges. At present he is not able to advise of the maximum restitution that he could make given his financial circumstances but would be keen to make whatever restitution he can as part of this plea offer process. (emphasis added)
75 By letter dated 3 October 2013, the Crown's solicitors rejected counsel for the respondent's proposal. The letter explained:
Plea Offer
In determining that the plea proposal should not be accepted, the [Crown] reach[ed] the following views and took account of the following factors:
Restitution
By reason that the plea offer is not accepted, the prosecution goes no further with respect to negotiated restitution, except to say that the [Crown] remains of the view that [the respondent] fraudulently obtained the amounts set out in the statement of material facts and upon conviction would be liable to make full restitution.
On the understanding that proceeds of crime proceedings have been commenced against [the respondent], if you wish to pursue restitution negotiations further, you should contact Mr Edward Greaves at the AFP ... , who will be able to assist you in that regard (presuming you are instructed appropriately and are on the record in those proceedings).
76 On 3 October 2013, counsel for the respondent wrote again to the Crown's solicitors. Counsel made an amended plea offer. The only material amendment was to delete the second condition in the initial plea offer, namely that the Crown indicate in its sentencing submissions to the court that it would not seek an immediate term of imprisonment. As to restitution, counsel said:
[I]f the [Crown] is prepared to accept the amended offer, [the respondent] would be keen to resolve the proceeds of crime issues at the same time rather than conduct separate litigation in relation to those matters.
Are you able to liaise with the AFP so that there can be a co-ordinated 'Government' position in respect of this amended offer?
77 By letter dated 5 October 2013, the Crown's solicitors in essence rejected the respondent's amended plea offer and made the following counter-offer:
Based on my understanding that [the respondent] is open to further negotiations, I set out the following terms upon which these proceedings may be finalised:
78 The letter dated 5 October 2013 set out details of the tax refunds the respondent had received as a result of the offending the subject of charges 1 - 30 and 40 - 42. The total tax refund attributable to charges 1 - 30 was $313,676.85 and the total attributable to charges 40 - 42 was $18,969.15. The grand total in respect of those charges was therefore $332,646.
79 On 20 December 2013, the respondent's lawyers wrote to the Crown's solicitors with another plea offer as follows:
We are therefore instructed by [the respondent] to put to the [Crown] the following revised plea offer in full satisfaction of Indictment 868 of 2013:
(a) [The respondent] enters pleas of guilty to charges numbered 8 - 30 and 40 - 58 (inclusive);
(b) The [Crown] discontinue charges 1 - 7 and 31 - 39;
(c) The Statement of Material Facts dated 27 August 2012 be amended to refer only to charges 8 - 30 and 40 - 58 (including the appropriate amendments to the relevant quantum figures);
(d) The [Crown] would not be restricted with respect to submissions on sentence; and
(e) [The respondent] will make restitution in the sum of $250,000 to the Australian Taxation Office within 1 month of acceptance of the above terms by the [Crown].
80 By email of 16 January 2014, the Crown's solicitors rejected the revised plea offer made by the respondent's lawyers.
81 On 30 January 2014, the respondent's lawyers wrote to the Crown's solicitors and made yet another plea offer as follows:
We are therefore instructed by [the respondent] to put to the [Crown] a plea offer, in the terms set out in your letter dated 5 October 2013, in full satisfaction of Indictment 868 of 2013:
(a) [The respondent] enters pleas of guilty to charges numbered 1 - 30 and 40 - 58 (inclusive);
(b) The [Crown] discontinue charges 31 - 39;
(c) The Statement of Material Facts dated 27 August 2012 be amended to refer only to charges 1 - 30 and 40 - 58 (including the appropriate amendments to the relevant quantum figures); and
(d) The [Crown] would not be restricted with respect to submissions on sentence.
82 The letter dated 30 January 2014 also stated that the respondent had instructed his lawyers 'to liaise with the [AFP] in relation to matters pertaining to the proceeds of crime aspect of [the respondent's] offending'.
83 By email of 30 January 2014, the Crown's solicitors accepted the plea offer in the letter dated 30 January 2014.
84 On 31 January 2014, the respondent entered pleas of guilty in the District Court in relation to the charges the subject of the agreed plea offer.
85 The charges had been set down for a four-week trial commencing on 17 March 2014. The Crown's case had been largely prepared and virtually all of its witnesses had been proofed (ts 52).
86 By email of 2 February 2014, an AFP lawyer informed the respondent's lawyers that the Commissioner of the AFP was of the view that:
(a) the respondent should pay a pecuniary penalty order under s 116 of the Proceeds of Crime Act 'calculated to reflect the quantum of the fraud that he is convicted of'; and
(b) the amount of the pecuniary penalty order should be increased under s 125 'to take account of inflation (that is a CPI adjustment)'.
87 On 9 April 2014, the respondent's lawyers wrote to the AFP and offered to settle the Proceeds of Crime Act proceedings on the following basis:
We are instructed that our client offers to pay the sum of $300,000 within 14 days of acceptance of this offer, to the AFP as full and final settlement of the proceeds of crime matters.
We are instructed that our client has repaid the sum of $18,969.15 to the Australian Taxation Office ('ATO') in relation to charges 40, 41 and 42.
88 By letter dated 16 April 2014, an AFP lawyer rejected the respondent's offer to settle the Proceeds of Crime Act proceedings by payment of $300,000. The letter made a counter-offer in the sum of $313,676.85; that is, the total outstanding tax refund without 'an additional CPI component'. It was a condition of the counter-offer that if the counter-offer was accepted then the terms of settlement would be embodied in a minute of consent orders to be filed in the pending proceedings. In particular, the AFP Commissioner and the respondent would consent to the District Court making a pecuniary penalty order against the respondent, pursuant to s 116 of the Proceeds of Crime Act, in the sum of $313,676.85.
89 On 17 April 2014, the respondent's lawyers wrote to the AFP and accepted the counter-offer.
90 On 23 April 2014, the District Court made, by consent, a pecuniary penalty order against the respondent, pursuant to s 116 of the Proceeds of Crime Act, in the sum of $313,676.85.
91 On 24 April 2014, before the commencement of the sentencing hearing, the respondent paid the sum of $313,676.85 to the Commonwealth of Australia pursuant to the pecuniary penalty order (ts 38). The $313,676.85 was funded in part by loans from members of the respondent's family and in part from his own financial resources (ts 38).
The interaction between s 16A(2)(f) of the Crimes Act and s 320 of the Proceeds of Crime Act
92 The Crown referred, in its written submissions in the appeal, to an 'apparent tension', in the present case, between s 16A(2)(f) of the Crimes Act and s 320 of the Proceeds of Crime Act.
93 Section 16A(2)(f) provides that, if relevant and known to the court, the court must take into account when passing sentence:
[T]he degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner.
94 The text of par (i) of s 16A(2)(f) mirrors the text of s 16A(2)(e), which provides that, if relevant and known to the court, the court must take into account when passing sentence 'any injury, loss or damage resulting from the offence'.
95 Section 320 reads:
A court passing sentence on a person in respect of the person's conviction of an indictable offence:
(a) may have regard to any cooperation by the person in resolving any action taken against the person under this Act; and
(b) must not have regard to any forfeiture order that relates to the offence, to the extent that the order forfeits proceeds of the offence; and
(c) must have regard to the forfeiture order to the extent that the order forfeits any other property; and
(d) must not have regard to any pecuniary penalty order, or any literary proceeds order, that relates to the offence.
96 The term 'forfeiture order' is defined in s 338 of the Proceeds of Crime Act to mean an order made under div 1 of pt 2-2 that is in force. The term 'pecuniary penalty order' is defined in s 338 to mean an order made under s 116 that is in force. The term 'literary proceeds order' is defined in s 338 to mean an order made under s 152 that is in force.
97 Section 116 of the Proceeds of Crime Act provides:
(1) A court with proceeds jurisdiction must make an order requiring a person to pay an amount to the Commonwealth if:
(a) a proceeds of crime authority applies for the order; and
(b) the court is satisfied of either or both of the following:
(i) the person has been convicted of an indictable offence, and has derived benefits from the commission of the offence;
(ii) the person has committed a serious offence.
(3) In determining whether a person has derived a benefit, the court may treat as property of the person any property that, in the court's opinion, is subject to the person's effective control.
(4) The court's power to make a pecuniary penalty order in relation to an offence is not affected by the existence of another confiscation order in relation to that offence.
Note: There are restrictions on applications [for] pecuniary penalty orders if previous applications for pecuniary penalty orders have already been made: see section 135.
99 Division 2 of pt 2-4 of ch 2 of the Proceeds of Crime Act comprises s 121 - s 133 and prescribes the manner in which a court is to determine the amount (the penalty amount) that a person is to be ordered to pay to the Commonwealth under a pecuniary penalty order. Section 122 - s 129 set out the basis on which the value of benefits derived from the commission of an offence is to be calculated. Section 130 - s 132 contain provisions for the reduction of penalty amounts. For example, by s 131(1), the court must reduce the penalty amount under a pecuniary penalty order against a person by an amount that, in the court's opinion, represents the extent to which tax that the person has paid is attributable to the benefits to which the order relates. Section 133 makes provision, in certain circumstances, for varying pecuniary penalty orders to increase penalty amounts.
100 Section 140(1) of the Proceeds of Crime Act provides that an amount payable by a person to the Commonwealth under a pecuniary penalty order is a civil debt due by the person to the Commonwealth. By s 140(2), a pecuniary penalty order against a person may be enforced as if it were an order made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.
(a) By s 16A(2)(f) of the Crimes Act, a sentencing judge must take into account, if relevant and known to the court, the degree to which the offender has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other manner.
(b) By s 320 of the Proceeds of Crime Act:
(i) a sentencing judge must not have regard to any pecuniary penalty order that relates to the offence: par (d);
(ii) however, the sentencing judge may have regard to any cooperation by the offender in resolving, relevantly, an application by a proceeds of crime authority for a pecuniary penalty order: par (a).
102 The contrition that is a mandatory relevant sentencing factor within s 16A(2)(f) includes contrition which the offender has shown in any manner for the offence. Relevant contrition is not confined to contrition which the offender has shown by taking action to make reparation for any injury, loss or damage resulting from the offence. The offender may show contrition, for the purposes of s 16A(2)(f), in a manner which does not involve the payment of money.
103 By s 320(d), any pecuniary penalty order that relates to the offence is a mandatory irrelevant sentencing factor. In my opinion, the prohibition in s 320(d) is not confined to disregarding the making or subsistence of the order. The prohibition extends, on a proper construction of the provision, to the substance of the order; in particular, to its terms and conditions. It follows that, by s 320(d), a court passing sentence must not have regard to any amounts paid or payable under a pecuniary penalty order, including any amounts paid or payable by the offender pursuant to the order and any amounts recovered or recoverable by the Commonwealth upon the enforcement of the order.
104 The focus of par (i) of s 16A(2)(f) of the Crimes Act is upon contrition which the offender has shown by taking action to make reparation for any injury, loss or damage resulting from the offence, as distinct from taking action by disgorging or paying any benefits which the offender has derived from the commission of the offence. The provision requires the offender to have shown remorse by taking action to make reparation. Also, the provision is concerned with the making of compensation for injury, loss or damage as distinct from the restitution of benefits.
105 By contrast, the focus of s 116 and other provisions of the Proceeds of Crime Act relating to pecuniary penalty orders is upon recovering from the offender any benefit (including any service or advantage) derived by the offender from the commission of the offence. Those provisions are concerned with the restitution of benefits as distinct from the making of compensation for injury, loss or damage.
106 No doubt, in particular case, benefits derived by the offender from the commission of an offence may wholly or partly overlap with injury, loss or damage resulting from the offence.
107 The Proceeds of Crime Act superseded the Proceeds of Crime Act 1987 (Cth) (the 1987 Act). The new Act was introduced and passed in response to the recommendations made by the Australian Law Reform Commission (ALRC) in its report, Confiscation That Counts: A Review of the Proceeds of Crime Act 1987, Report No 87, 1999 and by the Senate Legal and Constitutional Affairs Legislation Committee in its report on the Proceeds of Crime Bill 2002 and the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Bill 2002.
108 The ALRC referred in its report to the then prevailing position under the 1987 Act in relation to pecuniary penalty orders and their relevance in the sentencing process. The Committee said the effect of the decisions of the Full Court of the Federal Court in McDermott v The Queen (1990) 49 A Crim R 105 and Tapper v The Queen [1992] FCA 600; (1992) 39 FCR 243 was that:
(a) a pecuniary penalty order has punitive characteristics, notwithstanding that it may relate exclusively to profits;
(b) as such, a pecuniary penalty order must be taken into account in sentencing; and
(c) the weight to be given to a pecuniary penalty order in the sentencing process will depend on the circumstances of the case, including the likely impact of the order on the offender's assets [3.43].
109 The ALRC recommended that the then prevailing position under the 1987 Act be reversed [3.53] - [3.59]. The ALRC said it was 'in no doubt that permitting the courts to take confiscation of profits into account in sentencing and, conversely, to take penalty into account in determining whether to confiscate profits, is entirely incompatible with the maintenance of the integrity' of the underlying principle of denial of unjust enrichment [3.53].
110 In my opinion, Parliament intended, in enacting s 320 of the Proceeds of Crime Act, to override the then prevailing position under the 1987 Act. In particular, Parliament intended, relevantly, that an offender's sentence should not be mitigated by the fact that he or she has disgorged or paid, or is obliged to disgorge or pay, pursuant to a pecuniary penalty order, benefits derived by the offender from the commission of the offence for which he or she is being sentenced.
111 Section 16A(2)(f) of the Crimes Act and s 320 of the Proceeds of Crime Act are not to be construed in isolation. Section 16A(2)(f) and s 320 comprise elements of an overlapping Commonwealth legislative scheme in relation to the sentencing of federal offenders, and they must be construed accordingly. See the cases I cited in Pavlovic v Spooner [2014] WASCA 31 [122] - [123]. In particular, see Commissioner of Stamp Duties (NSW) v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, where Kirby P said:
Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand (722).
112 Section 16A(2)(f) is concerned, generally, with contrition which an offender has shown for an offence and also, specifically, with contrition which an offender has shown for an offence by taking action to make reparation.
113 Section 320 is embodied in a more recent statute. Unlike s 16A(2)(f), s 320 specifically addresses the relevance of a pecuniary penalty order relating to an offence, and cooperation by an offender in resolving an application by a proceeds of crime authority for a pecuniary penalty order, in the sentencing process.
114 The scope and operation of s 16A(2)(f) and s 320 can be reconciled. The provisions, properly construed, are able to work harmoniously together.
115 In my opinion, on a proper construction of s 16A(2)(f) and s 320, read together:
(a) A sentencing judge must not have regard to the fact that a court with proceeds jurisdiction has made a pecuniary penalty order against an offender that relates to the offence for which he or she has been convicted and is to be sentenced.
(b) A sentencing judge must not have regard to the fact that:
(i) an offender has made, or will or may make, payment or restitution pursuant to a pecuniary penalty order of some or all of the benefits (including any services or advantages) derived by the offender from the commission of the offence; or
(ii) the Commonwealth has enforced, or will or may enforce, the order and thereby has recovered, or will or may recover, the penalty amount or part of it.
(c) If relevant and known to the court, a sentencing judge must take into account, as a mitigating factor, the degree to which the offender has shown contrition for the offence, including contrition which the offender has shown by taking action to make reparation for any injury, loss or damage resulting from the offence, provided that the reparation in question did not or will not involve payment or restitution pursuant to a pecuniary penalty order of some or all of the benefits (including any services or advantages) derived by the offender from the commission of the offence. Reparation for loss resulting from an offence may, in a particular case, involve restitution of benefits derived by the offender from the commission of the offence. That is, compensation and restitution may, in a particular case, wholly or partly overlap. However, a sentencing judge must not take into account, as a mitigating factor, any amounts paid or payable by the offender or recovered or recoverable by the Commonwealth pursuant to a pecuniary penalty order, even where overlap of that kind exists. Also, an offender will not show contrition, for the purposes of s 16A(2)(f), by paying an amount pursuant to a pecuniary penalty order. An amount paid by an offender pursuant to a pecuniary penalty order is not a voluntary payment but a payment made under compulsion in accordance with a court order. It does not evince any relevant contrition.
(d) A sentencing judge may have regard, as a mitigating factor, to any cooperation by the offender in resolving, relevantly, an application by a proceeds of crime authority for a pecuniary penalty order. It is necessary, in deciding whether an offender has cooperated for the purposes of s 320(a), to evaluate the offender's response to the application by a proceeds of crime authority for a pecuniary penalty order. For example, an offender would relevantly cooperate if he or she consented to a court with proceeds jurisdiction making a pecuniary penalty order.
The delay in the charging of the respondent and the respondent's rehabilitation
116 In about early 2009 the ATO detected the respondent's offending conduct. He was not charged until on or about 8 November 2012.
117 The reasons for the delay were not the subject of evidence or otherwise explored at the sentencing hearing. See, generally, Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164. When the issue of delay is raised it will be necessary for the sentencing judge to make a fact-based assessment and to determine whether and, if so, to what extent the delay is mitigatory.
118 In the present case, defence counsel merely noted in his submissions at the sentencing hearing that he could not 'adequately explain [the delay] other than to say that there was a period of time where [the respondent] was attempting to resolve matters without the intervention of the criminal justice process' (ts 40). Delay on that account is not mitigatory.
119 At the sentencing hearing, defence counsel sought to rely on the delay for limited purposes, as follows:
One, this has been around for a long time and [the respondent] has had this in effect hanging over his head for a number of years and that has been a very stressful process for him, but, secondly, it gives your Honour the opportunity to see rehabilitation in action if I can put it that way.
...
He runs now a small business again in IT that is successful, that is lawful, that is a productive business for not only him and his family, but also for all of us. He pays his taxes now. He's doing the right thing. He's employing I think four members of staff (ts 40 - 41).
120 As I have mentioned, the primary judge found that the respondent was unlikely to reoffend, had excellent prospects of rehabilitation, had his own business and had, to some extent, re-established himself in the community.
121 The primary judge imposed a term of 6 months' imprisonment on each of the counts.
122 In ground 1 the Crown attacks the individual sentences and asserts that they are manifestly inadequate.
123 It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the applicable statutory sentencing framework, the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.
124 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
125 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
126 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
127 All of the propositions I have stated are well-established by the case law.
128 The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
129 In Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372, French CJ, Hayne, Kiefel and Bell JJ said in relation to the notion of an 'available range' of sentences and the notions of 'manifest excess' and 'manifest inadequacy':
Reference to an 'available range' of sentences derives from the well-known principles in House v The King ((1936) 55 CLR 499; [1936] HCA 40 (House)). The residuary category of error in discretionary judgment identified (House at 505) in House is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. In the field of sentencing appeals, this kind of error is usually referred to as 'manifest excess' or 'manifest inadequacy'. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.
The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some 'substantial wrong has in fact occurred' (House at 505) in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall [26] - [28]. (original emphasis)
130 There is no 'tariff' for offences of the kind committed by the respondent because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and any comparable cases.
131 The maximum penalty for each of the respondent's contraventions of s 134.2(1) of the Code is imprisonment for 10 years.
132 The diverse range of sentences which have been imposed for offences against s 134.2(1) is apparent from Wheeler v The Queen [No 2] [2010] WASCA 105; Bransby v The Queen [2010] WASCA 165; (2010) 78 ATR 163; Gok v The Queen [2010] WASCA 185; El Rakhawy v The Queen [2011] WASCA 209; De Hollander v The Queen [2012] WASCA 127; De Faria v The State of Western Australia [2013] WASCA 116; R v Pipes [2004] NSWCCA 351; Ly v The Queen [2007] NSWCCA 28; O'Meara v The Queen [2009] NSWCCA 90; Schembri v The Queen [2010] NSWCCA 149; (2010) 78 ATR 159; R v Kertebani [2010] NSWCCA 221; Dwayhi v The Queen [2011] NSWCCA 67; (2011) 205 A Crim R 274; McMahon v The Queen [2011] NSWCCA 147; Hughes v The Queen [2011] NSWCCA 226; Hennessy v The Queen [2012] NSWCCA 241; Edwards v The Queen [2013] NSWCCA 54; R v Ly [2014] NSWCCA 78; R v Barton [2006] QCA 18; R v Minassian [2007] QCA 39; R v Lovel [2007] QCA 281; R v CAK [2009] QCA 23; R v Newton [2010] QCA 101; (2010) 199 A Crim R 288; R v Desborough [2010] QCA 297; R v Anderson [2012] QCA 215; R v Falconi [2014] QCA 230; R v Pham [2014] QCA 287; Director of Public Prosecutions (Cth) v Rowson [2007] VSCA 176; Graziosi v Director of Public Prosecutions (Cth) [2011] VSCA 418; Dragojlovic v The Queen [2013] VSCA 151; (2013) 230 A Crim R 226; Keefe v The Queen [2014] VSCA 201; and Director of Public Prosecutions v Ka-Hung-Ip [2005] ACTCA 24. See also, in the context of the analogous offence under s 134.1(1) of the Code, Magdi v The State of Western Australia [2010] WASCA 234 and Magar v The State of Western Australia [2011] WASCA 122.
133 I have considered those cases and, also, other decisions cited by counsel for the respondent.
134 In R v Ruha; Ex parte Commonwealth Director of Public Prosecutions [2010] QCA 10; [2011] 2 Qd R 456, the Court of Appeal of Queensland reviewed the head sentences and minimum custodial terms imposed on offenders for offences under or comparable to s 134.2(1) of the Code, including offences against s 29D (now repealed) of the Crimes Act. Section 29D provided that a person who defrauded the Commonwealth or a public authority under the Commonwealth was guilty of an indictable offence and liable to a penalty of 1,000 penalty units or imprisonment for 10 years, or both. The provision was repealed by Act No 137 of 2000. See also the review I carried out in R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 [132] - [142].
135 The maximum penalty for each of the respondent's contraventions of s 145.1(1) of the Code is imprisonment for 10 years.
136 The Crown and the respondent were unable to refer this court to any previous cases of offending against s 145.1(1) apart from Dwayhi and Anderson. My research has not located any other decisions.
137 There are, however, a number of decisions of intermediate courts of appeal which have considered sentences imposed for offences that are analogous to the offence created by s 145.1(1). See, for example, Van Haltren v The Queen [2008] NSWCCA 274; (2008) 191 A Crim R 53, which involved offending against s 145.2(5); Jod v The Queen [2009] NSWCCA 205, which involved offending against s 145.1(5); R v Jian Hou [2010] VSCA 36, which involved offending against s 145.2; Horne v The Queen [2011] NSWCCA 225, which involved offending against s 145.1(5); and Payda v The Queen [2013] NSWCCA 109, which involved offending against s 145.1(5).
138 The sentencing of offenders for federal offences is, in general, governed by pt 1B of the Crimes Act. See Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [23] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
139 By s 68 of the Judiciary Act 1903 (Cth), some State or Territory laws in relation to the sentencing of federal offenders are picked up and applied when a State or Territory court, exercising federal jurisdiction conferred by s 68, sentences a federal offender. However, to the extent that pt 1B of the Crimes Act makes other provision, State and Territory laws in relation to the sentencing of offenders are not picked up. See Hili [21].
140 Section 16A(1) of the Crimes Act provides that, in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a sentencing court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
142 Section 16A(3) states that, without limiting the generality of s 16A(1) and s 16A(2), in determining whether a sentence or order under, relevantly, s 20(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.
143 Section 16A applies of its own force to the sentencing of federal offenders. The provision accommodates the application of some common law sentencing principles; for example, general deterrence, proportionality and totality. It does not, however, accommodate the principle of double jeopardy. See Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 [18] - [19] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).
144 By s 17A(1), relevantly, a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
(a) As to s 16A(2)(a) of the Crimes Act, I have already described the nature and circumstances of the offences.
(b) As to s 16A(2)(b), there are no other offences that are required or permitted to be taken into account.
(c) As to s 16A(2)(c), the offences occurred between October 2004 and September 2008. Although separate counts were included in the indictment, the offending involved a continuous and repetitive course of conduct. The respondent's criminality was not isolated or opportunistic. It involved planning and premeditation; in particular, a system of planned, deliberate, repeated and dishonest claims with the object of obtaining substantial sums of money from the ATO for his own benefit. The respondent's criminality in relation to the monetary benefits he fraudulently obtained was compounded by his use of forged documents with a view to misleading and deceiving the ATO in relation to those benefits. The offending abused the system of self-assessment which facilitates the expeditious processing by the ATO of tax claims and the refunding of money owed by the ATO to claimants. This system promotes the effective operation of legitimate businesses. Offending of the kind committed by the respondent is simple to carry out but difficult to detect.
(d) As to s 16A(2)(d), the 'victim' of the offences was a Commonwealth entity (namely, the ATO) or a Commonwealth public official (namely, officers of the ATO).
(e) As to s 16A(2)(e), the offending resulted in a substantial benefit to the respondent and a corresponding loss to the Commonwealth revenue. As I have mentioned, the grand total of the tax refunds paid by the ATO as a result of the respondent's offending was $332,646.
(f) Section 16A(2)(ea) is not relevant.
(g) As to s 16A(2)(f) and (g), the respondent entered pleas of guilty and, in that manner, showed contrition for his offending and facilitated the course of justice. However, the pleas were late and made in the face of inevitable conviction. The pleas were entered after lengthy negotiations between the respondent's lawyers and the Crown's solicitors. During the negotiations the respondent made a number of plea offers, subject to conditions, with a view to achieving the most advantageous outcome in relation to the sentencing process. However, as I have mentioned, his Honour thought the respondent was 'genuinely remorseful' (ts 63).
(h) Further, as to s 16A(2)(f), in 2009 the respondent repaid $18,969.15 to the ATO, being the refunds the subject of counts 40 - 42. That amount did not include any interest or penalty. The respondent made the payment voluntarily and before the AFP Commissioner commenced the proceedings for a restraining order and a pecuniary penalty order under the Proceeds of Crime Act.
(j) As to s 16A(2)(h), it is apparent from the nature and circumstances of the offences (including the continuous and repetitive course of conduct engaged in by the respondent and his use of forged documents) that nothing less than a full audit by the ATO would have detected the respondent's criminal activities.
(k) As to s 16A(2)(j), personal deterrence was a relevant sentencing factor, despite his Honour's findings that the respondent was 'genuinely remorseful' (ts 63), he was unlikely to reoffend and he had 'excellent prospects of rehabilitation' (ts 61). Personal deterrence remained a relevant consideration because of the duration of the respondent's offending; the repetition, planning and premeditation involved in it; and his determination to persist in defrauding the ATO by deflecting the compliance and audit checks built into the self-assessment system. His Honour appears to have accepted the need for personal deterrence. See [61] above.
(l) As to s 16A(2)(k), the matters I have referred to, in the context of s 16A(2)(a), (c), (e) and (i), demonstrate the seriousness of the offences and the need to ensure that the respondent was adequately punished for his offending.
(m) As to s 16A(2)(m) and (n), I have already referred to the respondent's personal circumstances and antecedents including the absence of a prior criminal record; his Honour's acceptance that the respondent was suffering from shame, stress, anxiety and depressive symptoms arising from his offending and the revelation of his criminal conduct to his family; his Honour's findings that the respondent was 'genuinely remorseful' (ts 63) and had, to some extent, re-established himself in the community; and his Honour's findings that the respondent was undergoing counselling, was unlikely to reoffend and had 'excellent prospects of rehabilitation' (ts 61).
(n) As to s 16A(2)(p), the respondent was married with two children and a supportive family. As I have mentioned, his Honour accepted that the sentences he had decided to impose would have 'an effect' on the respondent's wife, children and other family members (ts 61).
146 As to s 16A(2)(f) of the Crimes Act read with s 320 of the Proceeds of Crime Act, on 24 April 2014, before the commencement of the sentencing hearing, the respondent paid $313,676.85 to the Commonwealth of Australia pursuant to the pecuniary penalty order made by the District Court on 23 April 2014 (ts 38). The primary judge was prohibited from having regard to the fact that the pecuniary penalty order was made and that the respondent had made that payment pursuant to the order. However, his Honour was entitled to have regard, as a mitigating factor, to the respondent's cooperation in resolving the AFP Commissioner's application for a pecuniary penalty order. Also, his Honour was bound to have regard, as a mitigating factor, to the degree to which the respondent had shown contrition for the offence, if and to the extent that the contrition was unrelated to the pecuniary penalty order and the respondent's payment of the $313,676.85 to the Commonwealth.
147 It is apparent that the extent of the respondent's cooperation in resolving the AFP Commissioner's application for a pecuniary penalty order was limited by his strategy, as revealed by the correspondence and other communications between his counsel and lawyers, on the one hand, and the Crown's solicitors and the AFP, on the other. The strategy was to negotiate at length, and make a number of plea and settlement offers, with a view to achieving the most advantageous outcome for the respondent in relation to the sentencing process and the AFP Commissioner's application.
148 In the present case, the primary sentencing considerations were appropriate punishment and general deterrence. Personal deterrence was less important in view of the respondent's excellent prospects of rehabilitation, but it remained a relevant consideration. The respondent's favourable personal circumstances and antecedents, and the other mitigating factors, had to be brought to account in evaluating the appropriate sentencing disposition. However, previous good character will ordinarily, as a matter of fact, carry reduced weight where, as in the present case, an offender has engaged in extended, protracted and serious offending.
149 I have concluded that each individual sentence of 6 months' imprisonment for each charge was lenient, but not manifestly inadequate.
150 After evaluating all relevant facts and circumstances (including the primary judge's unchallenged findings of fact) and all relevant sentencing factors, including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court, in the context of:
(b) the maximum penalty for each offence (10 years' imprisonment);
(d) the importance of appropriate punishment and general deterrence as sentencing factors;
(e) the general standards of sentencing applicable to each offence; and
(f) the respondent's favourable personal circumstances and antecedents and the other mitigating factors,
I am not satisfied that any individual sentence was plainly unreasonable or unjust.
151 I am not willing to infer the existence of error from the sentencing outcome on any of the individual counts.
152 I would grant leave to appeal on ground 1 but the ground fails.
153 The primary judge imposed a total effective sentence of 2 years' imprisonment.
154 In ground 2 the Crown attacks the total effective sentence and asserts that it infringed the first limb of the totality principle.
155 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
156 The severity or leniency of individual sentences is relevant in evaluating whether a total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).
157 In my opinion, the total effective sentence of 2 years' imprisonment for the charges was not of a severity appropriate in all the circumstances of the offences.
158 When all relevant facts and circumstances (including the primary judge's unchallenged findings of fact) and all relevant sentencing factors are examined it is apparent that the total effective sentence did not appropriately reflect the seriousness of the overall offending. I refer, in particular, to:
(a) the duration of the respondent's offending between October 2004 and September 2008;
(b) the repetitive character of his criminal behaviour;
(c) the planning and premeditation involved in the offending; and
(d) the ease with which fraudulent abuse of the self-assessment system may be committed and the difficulty of detecting offending of this character.
159 The substantial amount of the benefits dishonestly obtained by the respondent (namely $332,646) is of significance. The respondent was taking money out of the public purse and was not 'merely' failing to pay tax. He was receiving money, tax-free, on a regular basis from the Commonwealth.
160 The respondent's use of forged documents, on three discrete occasions (namely on or about 30 November 2005, on or about 1 November 2007 and on or about 3 September 2008), with a view to misleading and deceiving the ATO in relation to his earlier fraudulent claims was an especially egregious aspect of his overall offending. The respondent made a careful and deliberate attempt to ensure that his prior offending over a lengthy period in respect of the BASs and the ITRs would not be discovered. The 'cover up' offending, the subject of counts 43 - 58, places the respondent's overall offending in a more serious category than the overall offending in most of the comparable cases involving 'mere' revenue fraud.
161 The total effective sentence did not appropriately punish the respondent for his overall offending. Also, the total effective sentence did not properly recognise the importance of generally deterring those within the community who might be tempted to engage in similar fraudulent conduct in relation to the revenue authorities.
162 The pleas of guilty were a mitigating feature but they were late and entered in the face of inevitable conviction. The repayment of the $18,969.15 to the ATO was a mitigating feature. Also, the respondent's limited cooperation, in the context of s 16A(2)(f) of the Crimes Act read with s 320 of the Proceeds of Crime Act, was mitigatory. Further, there was other mitigation as I have recounted in the course of considering ground 1.
163 I am satisfied, after taking into account and evaluating all relevant facts and circumstances (including the primary judge's unchallenged findings of fact) and all relevant sentencing factors, including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court, that the length of the total effective sentence infringed the first limb of the totality principle. That is the only conclusion reasonably open when the total effective sentence is viewed from the perspective of the applicable statutory sentencing framework, the maximum penalty for each offence (10 years' imprisonment), the seriousness of the offending as a whole, the importance of appropriate punishment and general deterrence as sentencing factors, and after bringing to account the general standards of sentencing applicable to the offences, the respondent's favourable personal circumstances and antecedents and the other mitigating factors. The total effective sentence was not merely lenient. It was substantially outside the sentencing range open to the primary judge on a proper exercise of his discretion. Error by his Honour in the exercise of the discretion should be inferred from the sentencing outcome.
165 The primary judge ordered that the respondent be released after having served 8 months upon entering into a recognisance in the sum of $5,000 to be of good behaviour for 2 years.
166 In ground 3 the Crown contends that the pre-release period and the recognisance release order were manifestly inadequate.
167 Section 19AB(1) of the Crimes Act provides, relevantly, that subject to s 19AB(3), where a person is convicted of two or more federal offences at the same sitting, and a court imposes on the person federal sentences of imprisonment that, in the aggregate, exceed 3 years, and at the time the sentences are imposed the person is not already serving or subject to a federal sentence, the court must either fix a non-parole period in respect of those sentences or make a recognisance release order. Section 19AB(3) confers on the court a discretion, in particular circumstances, to decline to fix a non-parole period or make a recognisance release order.
168 Section 19AC(1) provides, relevantly, that subject to s 19AC(3) and s 19AC(4), where a person is convicted of two or more federal offences at the same sitting, and a court imposes on the person federal sentences of imprisonment that, in the aggregate, do not exceed 3 years, and at the time the sentences are imposed the person is not already serving or subject to a federal sentence, the court must make a recognisance release order in respect of those sentences and must not fix a non-parole period. Section 19AC(4) confers on the court a discretion, in particular circumstances, to decline to make a recognisance release order.
169 Section 20 is concerned with the conditional release of federal offenders after conviction.
170 By s 20(1)(a), where a person is convicted of a federal offence or federal offences, the sentencing court may, if it thinks fit, by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court, that he or she will comply with the conditions listed in s 20(1)(a).
171 Section 20(1)(b) provides that where a person is convicted of a federal offence or federal offences, the sentencing court may, if it thinks fit, sentence the person to imprisonment in respect of the offence or each offence, but direct, by order, that the person be released, upon giving security of the kind referred to in s 20(1)(a), either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences, that is calculated in accordance with s 19AF(1).
172 Where a sentencing judge fixes a non-parole period, the non-parole period is part of the sentence. See R v Rajacic [1973] VicRp 63; [1973] VR 636, 641 (Smith ACJ, Newton J agreeing); R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 [12] (Southwood J).
173 The non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629 (Barwick CJ, Menzies, Stephen & Mason JJ); Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ); Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).
174 The fixing of a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender. See Bugmy (531).
175 The factors which a sentencing judge must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function. See Bugmy (531).
176 The principles applicable to the fixing of the length of a non-parole period are set out in my reasons in Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383 [29] - [33] (McLure & Miller JJA agreeing).
177 The statements of principle by the High Court in Power (628 - 629), Deakin (367) and Bugmy (531, 536) in relation to determining a non-parole period for a federal offence or federal offences apply by analogy in determining whether a person who has been sentenced to a term of imprisonment for a federal offence or federal offences should be released under s 20(1)(b), either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences. See Hili [39] - [44]; De Hollander [80] - [83].
178 I am satisfied, after taking into account and evaluating all relevant facts and circumstances (including the primary judge's unchallenged findings of fact) and all relevant principles relating to the making of a recognisance release order and the fixing of a pre-release period, that the length of the pre-release period fixed by the primary judge (namely 8 months) was manifestly inadequate. The interests of justice (including appropriate punishment), in all the circumstances (including the respondent's overall offending, his favourable personal circumstances and antecedents and the other mitigating factors), required that he serve a substantially longer pre-release period than 8 months. That is the only conclusion reasonably open. The pre-release period fixed by his Honour was not merely lenient. It was substantially outside the sentencing range open on a proper exercise of his Honour's discretion. Error in the exercise of the discretion should be inferred from the sentencing outcome.
The result of the appeal and the resentencing of the respondent
181 Counsel for the respondent did not contend that the discretion under s 31(4) of the Criminal Appeals Act should be exercised. In my opinion, there is no basis for invoking the discretion. The primary judge imposed a total effective sentence and fixed a pre-release period that were substantially less than the total effective sentence and the pre-release period open on a proper exercise of the sentencing discretion. The Crown has very clearly established the existence of appealable error. This court's intervention is necessary to ensure the preservation of proper sentencing standards for serious offences of this kind against the revenue authorities.
182 The individual sentences of imprisonment imposed by his Honour should stand. Otherwise, his Honour's sentencing decision and orders should be set aside. This court has the material necessary to resentence the respondent.
183 A total effective sentence must be imposed on the respondent that is of a severity appropriate in all the circumstances of his overall offending. The total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the respondent personally (and including the desirability of accommodating his wish to rehabilitate), and the total effective sentences imposed in comparable cases.
184 After taking into account all relevant facts and circumstances (including the primary judge's unchallenged findings of fact) and all relevant sentencing factors, including such of the matters set out in s 16A(2) of the Crimes Act as are relevant and known to the court, I would order that the individual sentences imposed by the primary judge for counts 1, 15, 40, 43, 45, 52 and 58 be served cumulatively upon each other and that the individual sentences for the other counts be served concurrently with each other and concurrently with the individual sentence for count 1. The new total effective sentence is therefore 3 years 6 months' imprisonment.
185 Pursuant to s 19AB and s 20(1)(b) of the Crimes Act, and after taking into account all facts and circumstances (including the primary judge's unchallenged findings of fact) and all sentencing factors relevant to the making of a recognisance release order and the fixing of a pre-release period, I would order that the respondent be released after having served 21 months upon entering into a recognisance in the sum of $5,000 to be of good behaviour for 21 months.
186 The total effective sentence imposed by the primary judge commenced on 24 April 2014. The respondent served the 8-month pre-release period and was released on 23 December 2014.
187 Pursuant to s 19(2) of the Crimes Act and s 41(3)(c) and (d) of the Criminal Appeals Act:
(a) the individual sentence for count 1, and the individual sentences for all other counts except counts 15, 40, 43, 45, 52 and 58, are to be taken to have taken effect on 5 June 2014;
(b) the individual sentence for count 15 is to be taken to have taken effect on 5 December 2014;
(c) the individual sentence for count 40 is to commence on 5 June 2015;
(d) the individual sentence for count 43 is to commence on 5 December 2015;
(e) the individual sentence for count 45 is to commence on 5 June 2016;
(f) the individual sentence for count 52 is to commence on 5 December 2016;
(g) the individual sentence for count 58 is to commence on 5 June 2017; and
(h) the new pre-release period of 21 months is to be taken to have commenced on 5 June 2014.
188 MAZZA JA: I respectfully agree with McLure P and Buss JA that this Crown appeal against sentence must be allowed and the respondent resentenced. Subject to my comments below, for the reasons given by Buss JA, I agree that while the individual sentences are not manifestly inadequate, the total effective sentence infringed the first limb of the totality principle. I agree, again for the reasons given by Buss JA, that the term of the recognisance release order was manifestly inadequate. Finally, I agree, also for the reasons given by Buss JA, that the respondent should now be sentenced to a total effective sentence of 3 years and 6 months' imprisonment and a recognisance release order with a pre-release period of 21 months.
189 I wish to say something of my own about the effect of, and the interrelationship between, s 16A(2)(f) of the Crimes Act 1914 (Cth) and s 320 of the Proceeds of Crimes Act 2002 (Cth) (PCA). The text of these provisions and the statutory history and context of s 320 PCA have already been set out in the reasons of both McLure P and Buss JA. It is unnecessary for me to repeat what they have written.
190 At common law, compensation paid voluntarily by an offender or intended to be paid may be taken into account as a mitigatory factor, the underlying rationale being that the payment shows remorse. Compensation paid under a court order is rarely regarded as evidence of remorse: DA Thomas, Principles of Sentencing (2nd ed) p 218 - 219.
191 Section 16A(2)(f) largely reflects these common law principles. A way (but not the only way as s 16A(2)(f)(ii) makes clear) an offender who has committed a federal offence may show contrition is by taking action to make reparation for any injury, loss or damage resulting from the offence. The use of the words 'by taking action' in s 16A(f)(i) connotes, to my mind, the notion of voluntariness.
192 Section 320 PCA, which was brought into law after s 16A(2)(f) of the Crimes Act, specifically concerns the relevance of a forfeiture order, pecuniary penalty order or literary proceeds order that relates to an offence, to the sentencing for that offence. Having regard to its text, the section only applies where action has been taken under the PCA against
the offender and where the action has been resolved or an order has been made. Of course, proceedings may be resolved (but not always) by the making of an order. As I read s 320 PCA as it applies to a pecuniary penalty order, s 320(a) is an exhaustive statement of those matters which are relevant mitigatory factors and s 320(d) sets out irrelevant matters.
193 I agree with McLure P that s 320(a) PCA should be construed widely. I also agree that an offender's cooperation does not have to evince contrition. This is because an offender may cooperate for purely utilitarian reasons. Beyond saying that s 320(a) PCA should be construed widely, it is unnecessary and undesirable to attempt to exhaustively define what actions may constitute cooperation for the purposes of the subsection. However, it may be accepted that, generally speaking, consenting to an order may constitute cooperation, particularly when done earlier rather than later. Steps taken to aid the enforcement of an order may also constitute cooperation.
194 Section 320(d) PCA expressly prohibits a court sentencing an offender for an indictable offence 'to have regard to any pecuniary penalty order'. Clearly, the fact of the order is an irrelevant sentencing consideration. But what about payments pursuant to it; are such payments also irrelevant?
195 The appellant submitted that a payment made pursuant to a pecuniary penalty order is an irrelevant sentencing consideration. The respondent submitted to the contrary.
196 In my opinion, s 320(d) should be construed to include as an irrelevant consideration payments made pursuant to a pecuniary penalty order. This construction is consistent with the legislative history of s 320. Further, in having regard to a pecuniary penalty order, it is its content and the obligations it creates which really matter, not its mere making. Then there are the matters referred to by McLure P in [18] of her reasons.
197 Turning to the relationship between s 16A(2)(f) of the Crimes Act and s 320 PCA, to facilitate their harmonious and sensible operation and bearing in mind that s 320 is a later provision, s 16A(2)(f) must be read down to give effect to s 320, specifically in this case to s 320(a) and (d).
198 Thus in this case, the payment of $18,969.15 made prior to the commencement of the pecuniary penalty order proceedings is to be considered pursuant to s 16A(2)(f) of the Crimes Act. Once PCA action commenced, the extent of the appellant's cooperation in resolving those proceedings was a relevant mitigating factor: s 320(a) PCA. But the fact of the making of the pecuniary penalty order on 23 April 2014 and the payment pursuant to that order of $313,676.85 was an irrelevant sentencing consideration: s 320(d) PCA.
199 I would join with Buss JA in the making of the orders that he proposes.
(2009) 231 FLR 383
(1990) 169 CLR 525
(1984) 58 ALJR 367
(2010) 242 CLR 520
(1999) 195 CLR 665
(2008) 22 NTLR 125
(1992) 39 FCR 243
(2014) 88 ALJR 372
(2012) 244 CLR 638
(1987) 9 NSWLR 719
(1967) 120 CLR 157
(1974) 131 CLR 623
(2010) 243 FLR 120
(1992) 111 ALR 347