R v Hughes

The sentence hearing

1. The sentence hearing took place on 20 March 2020. Exhibit A was the Commonwealth Crown Sentence Summary which contained a Statement of Facts which may be summarised as follows.
2. Four months after being released on parole, the offender lodged a false Business Activity Statement (BAS) on behalf his half-brother Phillip Thompson which fraudulently claimed a GST refund of $23,580.00. This payment was stopped by the ATO pending an audit. That was the conduct comprised in Count 1 on the indictment. Between 24 February 2014 and 4 September 2014 the offender lodged seven false BASs on behalf of a corporation he had registered and controlled namely Clarence Business & Property Investments Pty Ltd ("CBPI"). Count 2 concerned GST and Fuel Tax Credits which were fraudulently claimed in six false BASs in the sum of $26,611.00.
3. Items 1 and 2 on the Schedule concern refunds that the offender attempted to obtain for both GST and Fuel Tax Credits in the sum of $49,360.00 on behalf of CBPI, but payment was stopped by the ATO pending an audit.
4. Throughout the offending period the offender received carer payments and a carer allowance from Centrelink on the basis that he was providing constant care to his mother. The refunds of GST and Fuel Tax Credits resulting from the fraudulent lodgements in Count 2 were paid to an ANZ bank account he had opened in the name of CBPI.

Count 1

1. Upon his release from custody the offender returned to live with his mother and half-brother Mr Phillip Thompson. Mr Thompson was 55 years of age and on a disability support pension having last been employed in 2008. He had no knowledge of taxation matters and could not work a computer.
2. Unbeknown to Mr Thompson, the offender made a handwritten record of his identity information including details of his NSW driver's licence, Medicare Card, Centrelink Customer Reference Number, Tax File Number and St George Bank Account. He also created an email account in Mr Thompson's name.
3. On 26 July 2013 the offender registered Mr Thompson as a sole trader and in the course of the registration process telephoned the ATO and passed himself off as Mr Thompson. The day after Mr Thompson was registered and assigned an Australian Business Number, the offender attempted to access the business portal by falsely authenticating himself as Mr Thompson, using his Tax File Number. In the course of trying to obtain access the offender telephoned the ATO and passed himself off again as Mr Thompson. In mid-September 2013 the offender fraudulently completed, signed and lodged a false BAS in the name of Mr Thompson claiming an entitlement to a GST refund of $23,800.00 on the basis that cash purchases totalling $276,627.00 had been made during the month of August 2013. The offender directed the refund to one of two ANZ bank accounts he had opened in the name of Mr Thompson and over which he retained control.
4. The BAS was selected for audit before the refund was paid automatically by the ATO. During that audit, a representative from the ATO telephoned the mobile phone number on the BAS. The offender answered the call and falsely identified himself as Thompson. The offender falsely stated in that telephone call that Mr Thompson had prepared the BAS having taken over a business that provided electrical and mechanical services from a home workshop. The offender undertook to provide invoices and bank statements to substantiate the claim, which never occurred.

Count 2; Items 1 and 2

1. In September 2013 the offender incorporated the corporation CBPI. He was the sole director, shareholder and secretary until 1 August 2014. Following incorporation, the company was assigned an ABN. The offender reported that the company would operate "a mechanical repairs business trading as 'Big River Tyre and Auto'". It never did during the offending period.
2. On 24 February 2014 and 15 April 2014 the offender fraudulently lodged two false BASs on behalf of the company in respect of the quarterly tax periods ending on 31 December 2013 and 31 March 2014. GST and Fuel Tax Credits were claimed in a total of $2,078.00 for the first period and $675.00 for the second period.
3. On 23 April 2014 the offender telephoned the ATO to request lodgement of the BASs on a monthly basis rather than quarterly.
4. On 26 May 2014 and 5 August 2014 the offender fraudulently lodged four false BASs on behalf of the company in respect of four monthly tax periods between 1 April 2014 and 31 July 2014. The total amount claimed for GST refunds and Fuel Tax Credits were $382.00 for April 2014, $16,117.00 for May 2014, $696.00 for June 2014 and $6,663.00 for July 2014.
5. Together the six BASs falsely represented that over the ten month period between 1 October 2013 and 31 July 2014 the company's business had: 1. received cash payments of $4,861.00 2. made cash payments totalling $195,740.00 and 3. acquired more than 24,000 litres of taxable fuel.
6. Between 29 May 2014 and 8 August 2014 the ATO made six refund payments totalling $26,611.00 to the ANZ account opened by the offender in the name of CPBI. That sum comprised GST totalling $17,355.00 and Fuel Tax Credits totalling $9,256.00. These were the proceeds of the offender's criminal conduct in Count 2.
7. The refund payments were used by the offender to finance a range of personal expenditures including supermarkets, grocers, butchers, chemists, liquor stores, petrol stations, Bunnings, Telstra, NRMA Insurance, Origin Energy, Big W, Supercheap Auto, Apple iTunes, online dating, Jetstar and various fast food restaurants and licenced venues. He also made one-off purchases at Ticketek, JB Hi-Fi, Summerland Tools and for accommodation at various regional centres in New South Wales and Brisbane.
8. On 4 September 2014 the offender fraudulently lodged a false BAS on behalf of CPBI in respect of August 2014 claiming a refund of $25,780.00 comprised of GST totalling $25,589.00 and Fuel Tax Credits totalling $191.00.
9. The BAS was selected for audit before the refund was paid automatically by the ATO. During the audit, the offender falsely represented: 1. the purchases of $281,479.00 were in furtherance of a farm machinery repair business that he was setting up in the shed on a farm that he had just leased; 2. the lease contract was "between lawyers"; and 3. a private investor had funded $250,00.00 of purchases.
10. The offender subsequently emailed the ATO auditor falsely stating that: "Due to a change of plans from a better opportunity becoming available I wish to review the BAS and take out the $275,000.00 transaction. My accountant is currently working on figures for the purchase of this better property." The total amount the offender attempted to obtain pursuant to Items 1 and 2 on the Schedule for GST and Fuel Tax Credits was $49,360.00.
11. Exhibit A also included the criminal history of the offender. It included offences for violence, firearms and dishonesty in 1995 and 2001. In 2002 he was convicted of an offence of aggravated enter dwelling house with intent to commit serious indictable offence and imprisoned for 2 years and 8 months with a non-parole period of 12 months commencing on 9 September 2002.
12. In 2007 he was convicted of a number of offences of obtain money by deception and sentenced by way of three terms of imprisonment for 12 months, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA").
13. On 20 August 2010 he was sentenced by Judge Lakatos SC as outlined in paragraph [5] above, on seven counts similar to the index offences in Count 1 and 2 here. The sentencing Judge's remarks, and the offender's subsequent breach of his parole, are relevant to the application of principles of totality and proportionality in the final sentence to be imposed and are referred to in more detail below.
14. Exhibit A included a Sentencing Assessment Report under the hand of Ms J Waters dated 26 August 2019. The author noted the offender had a significant history of fraudulent offending and under the heading "Attitudes" further noted that he denied culpability for his offending behaviour, shifting responsibility onto others such as the ATO. Under the heading "Insight into Impact of Offending" the author stated: "He tended to deny his offending, minimise and justify the reasons for which he continues to repeat this pattern of fraudulent offending." 1. She went on to state, "He is disinclined to engage in intensive psychological treatment, today, to address these issues, considering himself a "lost cause." The offender was assessed as a medium risk of re-offending.
15. Also included in Exhibit A were the facts sheet, pre-sentence report, together with reports of Dr Bruce Westmore dated 30 November 2009 and Ms K Wakely, forensic psychologist dated 27 July 2010 which was the evidence before Judge Lakatos SC when he sentenced the offender on 20 August 2010 in respect of seven counts of similar offending. Also included were his Honour's remarks on sentence in which he imposed a term of imprisonment of four years with a non-parole period of two years and six months which expired on 19 May 2013.
16. Also included in Exhibit A was the offender's appeal to the Court of Criminal Appeal which was dismissed on 5 October 2011 (see [2011] NSWCCA 226).
17. Also included in Exhibit A was a copy of the parole order issued pursuant to the Crimes Act 1914 (Cth) dated 19 April 2013 which set out conditions of the offender's parole and notification to him that if he committed an offence or breach of any of the conditions of the parole order, it may be revoked and he may be returned to prison. The offender certified that he understood and accepted those conditions on 7 May 2013.
18. Also included in Exhibit A were a number of case notes, note reports from his supervising officer whilst he was on parole noting that his attitude towards supervision appeared to be "completely superficial" and that he had ceased antidepressant medication prescribed for him upon his release from custody.
19. Finally, Exhibit A included a statement from the owner of the property at Brushgrove New South Wales where the offender's mother had lived as a tenant. On that property were a number of machinery sheds and the owner operated a sugar cane farm. The owner stated that the offender did not have his permission or a lease agreement in place to run a business from that property.
20. A summary of the circumstances of the offending was tendered setting out the chronology outlined above, including a calculation of the "clean street time", (that is the time between the offender's release on parole and his first offence being the period 20 May 2013 to 18 September 2013), a period of three months and thirty days. The balance of his parole to be served was therefore calculated as one year, two months and one day. The document was marked as Exhibit B.

The Defendant's evidence

1. The defendant relied on a report from Dr S Dayalan dated 2 March 2020 (Ex 1). Under the heading "Psychiatric History", Dr Dayalan noted that the offender had a happy childhood until the death of his father when he was twelve years of age. Thereafter his brother, who is twelve years older, threatened the offender and his mother with violence and the offender was physically assaulted by his brother on multiple occasions over a period of four years. He developed a depressive disorder and was commenced on antidepressant medications in 2007 which he took until 2013. Other than a brief period of counselling following his father's death he had not engaged in any formal psychological treatment. The offender had also suffered a head injury whilst using an angle grinder in 2015. He had lost consciousness, and subsequently experienced headaches, memory impairment and blurring of vision.
2. Upon his release to parole in 2013 the author noted that the offender ceased the use of his anti-depressant medication. He struggled to adapt to life in the community and had ruminated about the unfairness of his prior convictions. The author noted that he now regretted his offending behaviour and was upset about being back in custody. The offender also suffered from diabetes and hypertension for which he was now on medication.
3. Dr Dayalan provided a summary of the collateral information he was qualified with, including reports from Dr Westmore, psychiatrist, dated 2009 and a psychological report from Ms Wakely. Under the heading "Psychiatric opinion", Dr Dayalan referred to the protracted period of four years following the death of his father when the offender was threatened and subject to violent behaviour from his older brother. It was Dr Dayalan's opinion that this was likely to have adversely impacted on the development of the offender's personality and attitudes. At the time of the offending, the offender had stopped taking his antidepressant medication and was having difficulty in adapting to the community. There is no evidence of severe disturbance in his mood at the time of the offences, however, it was Dr Dayalan's opinion based on the information available to him, that the offender: "Suffered from mood and anxiety symptoms but they had not been extensive or severe enough to warrant a diagnosis of a psychiatric condition at the time of the offences. Nevertheless, it was quite likely that the depressive and anxiety symptoms contributed to his impaired judgment at the time of the offences."
4. It was Dr Dayalan's opinion that given his pre-existing vulnerable personality, incarceration was likely to be more stressful for the offender than an individual without such vulnerability. He concluded however that the offender: "Remains frustrated with the criminal justice system and demonstrates limited insight into his offending behaviour. These factors would have adverse impact on his prognosis and risk of reoffending."
5. Dr Dayalan then set out treatment recommendations, including a recommencement of his antidepressant medication, regular consultation with a medical professional and ongoing psychological intervention to assist in his release into the community.

The Crown submissions on sentence

1. The Crown relied on a thorough and detailed outline of written submissions including relevant principles for sentencing for federal offences pursuant to Part 1B of the Crimes Act 1914 (Cth). In assessing the objective seriousness of the offending, the Crown referred to the following factors relevant to the nature and circumstances of the offending: 1. "The offender falsely claimed $99,551.00 and was paid $26,611.00 in respect of Count 2. 2. The offences relate to a course of dishonest conduct that spanned a period of more than a year. 3. The offending was sophisticated and involved pre‑planning. In respect of Count 1 this involved the offender using the identity of his half-brother. Having made a handwritten record of relevant information relating to his identity, he created and maintained an email address in his step-brother's name. He used identity information to falsely obtain an Australian Business Number and to access the ATO's business portal. He also assumed control over bank accounts opened in the name of his step-brother and passed himself off as his step-brother when he spoke to representatives of the ATO. He falsified his step-brother's signature of the BAS form and nominated a mobile telephone number for his step-brother, that he controlled, on the form. During a subsequent audit the offender falsely identified his step‑brother as the person who lodged the BAS and lied to auditors about the nature and significance of the figures in the BAS."
2. In respect of Count 2 the offender made false lodgements on behalf of a proprietary company that he incorporated. It had no legitimate purpose other than as a vehicle for the fraud. He also opened a bank account in the name of the company and obtained an Australian Business Number and registered it for GST and Fuel Tax Credit purposes.
3. The offender made false claims for refunds of GST and Fuel Tax Credits. Part way through the offending period he nominated to lodge the BASs on a monthly basis so as to make false refund claims on a more frequent basis. The offender then lied to auditors when questioned about the nature of the claims for refunds made on behalf of the company. The refunds fraudulently obtained by the offender related to six different tax periods between 1 October 2013 and 31 July 2014.
4. The Crown submitted that given the level of deception, the period of offending, the persistent deception, and the amount of the fraud, the offending fell within the mid-range of objective seriousness for such offences. The Crown also submitted that the items on the schedule also fell within the mid‑range of objective seriousness for such offences as they represented a continuation of the series of false lodgements captured by Count 2, however, no refunds were paid in respect of each item.
5. The Crown submitted the loss and damage resulting from the offences pursuant to s 16A(2)(b) was the impact that taxation fraud has on all other tax payers, together with the unrecoverable costs to the Commonwealth in auditing and investigating such fraudulent conduct. Intangible losses include a loss of confidence in the efficacy and integrity of the taxation system.
6. The Crown submitted that pursuant to s 16A(2)(g) and (f), the Court must take into account the offender's plea of guilty, however, significant factors were the timing of the plea and the strength of the prosecution case. Whilst the discount for the plea of guilty need not be quantified, its quantification was desirable, relying on Xiao v R [2018] NSWCCA 4 at [278]. Here the offender's pleas were late. Although they avoided a trial, the Crown submitted that they did not demonstrate genuine contrition, remorse or acceptance of responsibility for the offender's criminal conduct. The offender had made no reparation, and the guilty pleas were entered in the face of a very strong Crown case.
7. The Crown submitted that general deterrence was important in the sentencing process for Commonwealth revenue offences. It was submitted that tax fraud on the Commonwealth attracts a fulltime custodial sentence in the absence of the most exceptional circumstances relying, inter alia, on R v Caradonna (2000) 118 A Crim R 312.
8. Further, the offences were committed whilst the offender was on parole. Combined with the offender's history of dishonesty offending, this led to a strong need for specific deterrence to be given weight in the sentencing process. His modus operandi was strikingly similar to the offender's earlier taxation fraud and involved the use of the identity of a vulnerable family member, the registration and incorporation of a company and the establishment of false bank accounts to perpetrate the fraud. As the offender wilfully breached his parole, the offending revealed a continuing attitude of disobedience to the law, warranting greater emphasis on consideration of retribution, deterrence and the protection of society in accordance with Veen v The Queen (No 2) (1988) 164 CLR 466 at 477.
9. The Crown set out submissions as to the offender's character and antecedents pursuant to s 16A(2)(m) of the Crimes Act 1914. He was a 46 year old male with a history of offences involving dishonesty which disentitled him to any leniency. Also, self-serving statements made by the offender to Dr Dayalan should be given little weight. Further, the Crown submitted that any medical condition suffered by the offender prior to his offending would be given little weight in the sentencing process. The offender had not participated in any psychological intervention during his previous custody, and had denied the need for anti-depressant medication following his release to parole.
10. The Crown submitted that the offender's prospects of rehabilitation were poor and that the Court could not be satisfied that the offender is unlikely to reoffend given his prior history.
11. The Crown made detailed submissions in respect of the automatic revocation of parole, the calculation of "clean street time" referred to above and the calculation of the balance of parole to be served, namely, one year two months and one day.
12. The Crown also made submissions as to the structure of any sentence to be imposed, and the degree of accumulation required in accordance with well‑established authority, for example Pearce v the Queen (1998) 194 CLR 610, and the application of the principle of totality in accordance with Cahyadi v The Queen (2007) 168 A Crim R 41.
13. The Crown also set out the mechanisms for conditional release pursuant to s 19AR of the Crimes Act.

Defence Submissions

1. In a detailed written outline, counsel for the offender set out the following submissions in relation to the factors set out in s 16A of the Crimes Act 1914 (Cth) in tabular form:

(a) The nature and circumstances of the offence

1. The maximum penalty for these offences is 10 years and is not in the highest order of maximum penalties that come before the Court. The matter could have been dealt with summarily. It is submitted that the Court need not find where the offence sits in relation to the range of offending as no Standard Non-Parole Period ("SNPP") applies.
2. However, it was conceded that the offending is somewhat elevated from some more basic forms of this offence. There was a level of deception and concerted effort. It was contested that there is a significant degree of sophistication or planning in relation to the offending. The operation appears to have been undertaken from home and at high risk of detection.

(d) The personal circumstances of any victim of the offence

1. The victim in these matters was the ATO.

(e) Any injury, loss or damage resulting from the offence

1. It was submitted that the amount of $26,611.00 is not an amount of the highest order when it comes to offences of this type.

(fa) The extent to which the person has failed to comply with: …(ii) any obligation under a law of the Commonwealth; or.

1. The offender clearly failed to comply with taxation laws of the Commonwealth.

(g) If the person has pleaded guilty to the charge in respect of the offence - that fact

1. The offender pleaded guilty to these offences. The plea of guilty represents genuine remorse, acceptance of responsibility and willingness to facilitate the course of justice. Here, the plea was relatively late, however, represented a significant utilitarian benefit to the State. It was noted that reparations to the Commonwealth could be considered impossible considering the offender's current financial and custodial situation.
2. It was conceded that the Crown case was strong.

(j) The deterrent effect that any sentence or order under consideration may have on the person

1. The need for specific deterrence is acknowledged in the context of the offender's previous conviction. Any need for specific deterrence should be tempered by the need to insure the offender's rehabilitation and the principle of totality. The offender's previous sentence and offending is a matter for concern. The breach of parole is a significant factor that should not be counted twice against any other s 16A consideration or in the concept of totality.

(ja) The deterrent effect that any sentence or order under consideration may have on other persons

1. It was conceded that general deterrence has a role to play in these sentencing proceedings.

(k) The need to ensure that the person is adequately punished for the offence

1. It was conceded that adequate punishment in these matters may very well require a custodial sentence.

(m) The character, antecedents, age, means and physical or mental condition of the person

1. This was covered by the subjective matters which are set out below. The offender submitted that prior offending is not a relevant factor on fixing a sentence, but would be taken into account under any accumulation of sentences and the principle of totality. The offender conceded the Crown submission that his prior offences must lead to a finding that the offender is not entitled to any leniency in the sentencing process.

(n) The prospect of rehabilitation of the person

1. The offender relied on the Sentence Assessment Report and recommendations for his rehabilitation. His previous behaviour in custody was noted to be relatively good in that he had displayed an overall positive response to custody.
2. On the question of parole, the offender accepted the Crown calculation for the balance of parole to one year two months and one day. It was submitted that there should be a significant degree of concurrence between the balance of parole and the sentence under consideration. The significant factor being that the breach of parole was constituted by the offence now before the court.
3. It was submitted that the court should fix a commencement date for sentence somewhere between the expiry of the non-parole period and the expiration of the entire term.
4. The sentences for the two offences should be largely concurrent having regard to the principle of totality, referring to Cahyadi v R [2007] 168 A Crim R 41 at [27] and Pearce v The Queen (1998) 194 CLR 610 at [40].
5. It was submitted here the two offences were linked to one course of criminal conduct with some overlap in the offenders modus operandi, namely: "(a) the offender operated by himself (b) the offender created or assumed a false identity/entity in order to perpetrate the fraudulent transactions (c) the offender's conduct involved lodging false BAS statements for both counts (d) the offender's conduct involved seeking fraudulent GST refunds for both counts."
6. Under the heading "Subjective factors", counsel submitted that the offender was 47 years old and had a criminal record including convictions for like matters in 2010 for which he had served a full-time custodial sentence. It was submitted that the death of his father when the offender was 12 years old was a traumatic event which had long term consequences for the offender's personality and life choices. He held both motor mechanic and steel fabrication qualifications and had previously held gainful employment.
7. The offender had a history of suffering from the following medical conditions: "(a) Clinical history of depression including prescription of anti-depressant medications (b) suffering a head injury in 2015 whilst using an angle grinder and subsequent presentation at Maclean Hospital (c) Admittance to Lismore Base Hospital (d) Suffering from long term diabetes and hypertension"
8. The submissions then set out various passages from the medical evidence referred to, namely, the report of Dr Dayalan dated 2 March 2020, report of Ms K Wakely, psychologist, dated 27 July 2010, the report of Dr B Westmore dated 30 November 2009 and the Sentence Assessment Report dated 26 August 2019.
9. Under the heading "Ultimate Submission", it was conceded that the offender will receive a sentence of full-time custody. However, a finding of special circumstances should be made to alter the statutory ratio in setting the offender's non-parole period. The consensus between the various psychologists and psychiatrists was submitted to be that he would benefit from psychological intervention in addressing his criminogenic needs.
10. It was submitted that notwithstanding in 2007 the offender had received four s12 suspended sentences, the bonds he was placed under were not subject to supervision. He had therefore not participated in any psychological interventions and did not do so during his period of custody.
11. It was submitted that should the offender receive the correct supervision and support, after having served a period in custody, his prospects of rehabilitation should be considered good.
12. In his oral submissions, counsel for the offender highlighted that in 2010 the offender had been sentenced by Judge Lakatos SC on seven counts. Four of those counts concerned obtaining a financial advantage by deception to a total of $298,022.00. Three of the counts involved attempting to commit such offences for amounts totalling $103,146.00.
13. Other than the aggravating factor here, namely that the index offences were committed whilst he was on parole, the previous offending was much more objectively serious. As a matter of proportionality, this would demand that a shorter sentence be imposed on this occasion.
14. It was submitted that it is a matter for the court's discretion as to how much accumulation should occur in respect of Counts 1 and 2, however, there were common factors and the offending was spaced over time. It was submitted that it was within the court's discretion to commence the sentence for the two index offences here within the period of the balance of parole. To commence at the expiry of the head sentence for the previous offences it was submitted would be excessive.
15. Counsel rehearsed his submissions in respect of the s 16A factors as outlined above. For example, it was submitted that the matters could have been dealt with summarily within the jurisdiction of the Local Court with the imposition of a maximum five year penalty of imprisonment, which, albeit at the higher end of the range, was not excessive punishment in the circumstances here.
16. It was further submitted that the planning involved was not sophisticated. Although the offending had occurred over a long range of dates, the planning involved had to be distinguished from the steps taken to execute his criminal conduct. Whilst the offender's efforts were concerted, they were not sophisticated and were relatively easily detected.
17. In respect of the offender's prospects of rehabilitation, it was conceded that this was difficult to project, notwithstanding that he had positive reports of his previous conduct in custody. The fact that he was now approaching 50 years of age would give the Court some hope. Further, he now accepted the wrongfulness of his conduct which also demonstrated contrition and remorse.
18. It was submitted that to ensure adequate punishment the principle of totality should be applied to ensure a crushing sentence was not imposed. Further it was not submitted that the offender's mental health issues should mitigate the offence. However, the finding of special circumstances was warranted so as to ensure a supervised return to the community during which his rehabilitation would be addressed.

Crown submissions in reply

1. The Crown submitted that being Commonwealth offences, there is no scope for a finding of special circumstances pursuant to s 44 of the Crimes Sentencing Procedure Act 1999 ("CSPA"). The Crown relied on its written submissions as to the impact of the offending on his revocation of parole.
2. Pursuant to leave granted to file further submissions on the dispositive order required following revocation of the offender's parole, the Crown provided further submissions in reply. The Crown noted that the following propositions were not disputed by the offender: 1. The offender's federal parole would be taken to have been revoked from the time immediately before the end of the parole period, upon the imposition of the sentence for the offences before the Court - s 19AQ(1) and (2) of the Crimes Act 1914 (Cth). 2. The offender must now serve the outstanding balance of the sentence which the parole has been revoked, less "clean street time", namely a period of one year two months and one day pursuant to subsection 19AQ(5) of the Crimes Act 1914 (Cth). 3. The outstanding period of one year two months and one day must commence on 9 April 2020 when the sentences in respect of the index offences are imposed pursuant to s 19AS(1)(d) of the Crimes Act 1914 (Cth). 4. The Crown noted that the offender sought an order that the sentences for Counts 1 and 2 commence on 11 November 2019, being the day he was taken into custody. The Crown conceded the Court had power to order the sentences for Counts 1 and 2 commence on 11 November 2019 based on the combined effect of s 16E(1) and (2) of the Crimes Act 1914 (Cth) and s 47 of the CSPA.
3. The Crown submitted that the Court would not exercise its power to commence the sentences on 11 November 2019 as the balance of parole to be served would then become wholly concurrent with the new sentences for Counts 1 and 2. This would amount to a misapplication of the principle of totality because Counts 1 and 2 constituted wholly distinct and separate criminal offending, their criminality could not be adequately comprehended by combining the sentences with the outstanding parole and because the offender commenced the offending about two months and one week into his parole period of 18 months.
4. The Crown considered that the offender was entitled to the benefit of his pre‑sentence custody being a period of 151 days but submitted that this should be taken into account by ordering that the sentences be reduced by that period. That is, that the total effective sentence be reduced by a period of 151 days.
5. The Crown submitted that the offender's reliance on Callaghan v R [2006] NSWCCA 58 was misconceived. Here, the proper application of the principle of totality required a significant degree of accumulation between the sentences to be imposed on Counts 1 and 2, and the balance of parole to be served. As the balance of parole must commence on 9 April 2020, the Crown submitted the appropriate course is as follows: 1. "Indicate the appropriate sentences in respect of both Counts 1 and 2, and the degree of concurrency between those two sentences, if any. 2. Revoke the offender's federal parole and order the offender serve one year two months and one day commencing 9 April 2020. 3. Order that the earliest of the sentences imposed in respect of either Count 1 or 2 commence on the expiration of that period, being 10 June 2021, or from some earlier date between 9 April 2020 and 10 June 2021. 4. Indicate the total effective federal sentence of imprisonment that results. 5. Indicate the appropriate single non-parole period relating to the total effective federal sentence of imprisonment, pursuant to s 19AR of the Crimes Act 1914 (Cth). 6. Reduce the total effective federal sentence of imprisonment to take into account pre-sentence custody, by: 1. Ordering that the earlier sentences to be imposed in respect of the Count 1 or 2 commence on a day which is 151 days prior to 10 June 2021, or some earlier date; or 2. Expressly reducing the term of the sentence imposed in respect of either Count 1 or Count 2. 1. Reduce the indicative non-parole period by a period of 151 days."

Additional submissions of the offender

1. The offender by leave also filed additional submissions relating to the dispositive orders required upon revocation of the offender's parole. The offender conceded that the balance of parole must commence on the date of formal revocation namely 9 April 2020, and that the Court will impose a sentence of one year two months and one day from that date.
2. In respect of the sentence for Counts 1 and 2, the offender accepts that the sentence may be partially accumulated. The offender submitted that the sentence should be backdated to commence on the date of his arrest, namely, 11 November 2019, and conceded the possibility that the sentence could also be reduced to take into account the pre-sentence custody of 151 days.
3. The offender submitted that there should be a high degree of concurrence, if not total concurrence of the new sentences with the balance of parole because the new offences were the reason for the revocation of parole and the sentence in respect of Counts 1 and 2 will be aggravated because the offender was on conditional liberty at the time of the new offences.
4. The offender then set out the provisions in the Crimes Act 1914 (Cth) relating to the fixing of a new non-parole period (where the new sentence is more than three years for the federal offences) or a recognisance release order (where the new sentence is three years or less for the federal offences). Further where the new sentence is more than three months and the outstanding federal sentence is more than three years, a single new non-parole period must be fixed (s 19AR(3)(d)), and alternatively, where the new sentence is more than three months and the outstanding federal sentence is three years or less, the Court must not fix a non-parole period, but may make a recognisance release order (s 19AR(3)(e)).
5. The offender submitted that because of the imposition of a new sentence for the breaching offence, the parole order here is taken to have been revoked and the Court is required to issue a warrant of detention pursuant to s 19AS of the Crimes Act 1914 (Cth). That warrant authorises the person to be detained in prison for the unserved part of the outstanding sentence.
6. The offender submitted that s 16E(1) of the Crimes Act 1914 (Cth) provides that the law of a State or Territory relating to the commencement of sentences and a non-parole period applies to a person who is sentenced for a federal offence and usually that means that a sentence of imprisonment commences on the day on which the offender is taken into custody. However, the offender submitted an important qualification arises pursuant to s 19 of the Crimes Act 1914 (Cth). That section requires a court sentencing a federal offender to direct when the sentence for a federal offence commences, if the offender is sentenced to imprisonment for more than one offence or is already serving a sentence of imprisonment. In that way, cumulation or concurrency of sentences is achieved.
7. Section 16E(2) and (3) of the Crimes Act 1914 (Cth) provide for ways in which credit can be given for pre-sentence custody. By application of s 47 of the CSPA, that is achieved by a sentencing court either backdating a sentence to the commencement of custody, or reducing the sentence to be imposed by the period of the offender's pre-sentence custody.
8. The offender relied on Callaghan v R, supra, at [18] to [25] for the uncontroversial proposition that the court has a discretion to make the new sentences totally or partially concurrent with the balance of parole. It was submitted that this takes into account the fact that the only breach of parole was the new offences and further avoids double counting where the new sentences will be aggravated by virtue of the fact that they were committed on parole.
9. On 7 April 2020 the legal representatives of the offender sought leave to submit additional submissions relating to the current Covid-19 pandemic. The Crown had opposed leave being granted and sought a further oral hearing prior to sentence. The Crown submitted that further evidence may be required which would delay sentencing. I granted leave to the offender to submit additional written submissions, and invited the Crown to either submit a further written submission in response, or to make oral submissions prior to sentence. The additional submissions relied on by the offender, under the heading "Facts about Covid-19/Corona Virus", set out features of Covid-19 and the fact that the virus is not currently capable of vaccination. It further set out a description of people most at risk from the virus, including "people with compromised immune systems (such as people who have cancer)". The offender submitted that the virus had been reported as being detected in at least one correctional facility in New South Wales.
10. The offender submitted that the website of an organisation known as Diabetes New South Wales and ACT notes that people with diabetes are more susceptible to developing severe disease if infected. It was submitted that "the diabetes community is being advised by the Federal Department of Health to take extra care with hand hygiene, social distancing and cough/sneeze etiquette". Another website known as "the Diabetes Australia website", noted that people with diabetes should be aware that they are at a higher risk of severe symptoms and complications from the Corona virus.
11. The submissions went on to note that social visits to correctional centres have been suspended in New South Wales. It is unclear when they will resume. The submission went on to state that the increasing prevalence of the virus gives rise to three general facts relevant to these proceedings: "(i) FIRST there is a demonstrable risk that incarceration exposes an inmate to a heightened likelihood of contracting Covid-19, in circumstances where there is a high mortality rate. (ii) SECOND for people facing full-time custodial sentences, there is an apprehended risk of infection and mortality. (iii) THIRD there are current restrictions on the availability of personal visits to all inmates in New South Wales, which impact at the permissible social contacts for prisoners. It is a restriction on a right held otherwise."
12. The offender submitted that persons with medical issues causing immune suppression or with chronic illnesses are at greater risk of serious infection and that persons suffering from mental illness may struggle more than others with increased isolation in custody due to social distancing measures. Further, custody may create exceptional or general hardship to third parties, particularly family members.
13. It was submitted that the increasing prevalence of Covid-19 could be considered in the following principled ways. First, protection of the community was relevant in that the proximity of prisoners and the possibility of high rates of infection pose a health risk to prisoners as part of the community. The community at large is also at risk through the potential for community spread through prisoners being released and through prison staff. Second, the offender relied on ill-health being a factor, tending to mitigate punishment where imprisonment would be a greater burden on the offender by reason of his state of health. Third, the hardship of the offender's custody was relevant to sentence and that extended to the safety of prisoners in custody. Finally, it was submitted that the court should consider the hardship of custody where an offender bears a concern about the impact of Covid-19 on their health. The apprehension of risk and consequences of Covid-19 should therefore be considered. This amounted to a "state of uncertain suspense" which existed here about the transmissions and consequences in custody which should entitle an offender to an added element of leniency.

Further Crown submissions

1. The Crown was invited to make submissions in response to these additional submissions on behalf of the offender relating to the Covid-19 pandemic. The Crown properly conceded that there was no controversy that: 1. "Australia is in the grip of a pandemic due to the Covid-19 virus. 2. Persons may be at increased risk if they suffer from chronic illness or are incarcerated in a gaol where Covid-19 is present. 3. The offender suffers from diabetes and hypertension controlled by medication. 4. Social visits to gaols are temporarily suspended to prevent the spread of the virus; and 5. A health care worker at Long Bay Hospital has been infected with the virus."
2. The Crown submitted that the offender's submissions constituted, at least in part, opinion evidence in relation to the Covid-19 pandemic. It was submitted that the court would give little or no weight to the opinions expressed therein and further, that the Crown had not had sufficient time to adduce evidence of the measures being taken by New South Wales Corrective Services to minimise the risk to prisoners so as to inform an assessment of the risk, if any, to the offender. As a matter of procedural fairness, the Crown will not be given that opportunity to adduce such evidence if the court was inclined to reduce the sentence as a result of any fact asserted by the offender. The Crown, however, conceded that it was proper for the court to take into account the fact that the offender may be at greater risk of contracting the virus than a member of the general public if incarcerated, with the chronic conditions that he suffers, in a facility where the virus exists in the prison population. However, the evidence upon which the offender relied had not established that the virus exists in any correctional facility in New South Wales other than the Long Bay Hospital, and the suspension of visits to gaol is designed to obviate the increased risk of transmission to the prison population. The Crown submitted that the court would not be satisfied on the balance of probabilities that incarceration would put the offender at any greater risk of contracting the virus than any member of the public, notwithstanding that he is a diabetic.
3. In relation to the offender's diabetes, the Crown submitted there was no evidence before the court regarding the nature or extent of that illness. The extracts from the websites referred to by the offender in relation to diabetes should be given no weight in the circumstances.
4. The Crown submitted that the suspension of social visits may potentially increase the isolation of prisoners, however, this is a temporary measure to contain the spread of the virus and there is no evidence that it will continue throughout the offender's term of imprisonment, if that term is to extend beyond six months. Further, the offender has acknowledged that, with the exception of one cousin in Northern New South Wales, he does not have any dependents or immediate family with whom he is in contact.
5. The Crown submitted that the principle of "uncertain suspense" relied on by the offender does not extend to include anxiety caused by the possibility of transmission of a virus in custody. The principle was applicable to the context of delay in sentencing, and in any event, there was no evidence that the offender suffered from any such anxiety.
6. The Crown referred to the Victorian Supreme Court decision in Brown (aka Davis) v The Queen [2020] VSCA 60 at [48], where the court recognised that the impact of the virus was a situation that was rapidly evolving and the court was reluctant to express a general statement of principle regarding how courts should deal with the crisis as regards its effect upon relevant sentencing principles. A similarly cautious approach should be adopted here.
7. The Crown submitted that the offender's submission that the community at large was at risk through the potential for spread of the virus through released prisoners and prison staff, and therefore the community can be protected by decarceration and reduction in prison population density, inverted the general principle that a purpose of sentencing is the protection of the community from the offender. Further, there was no evidence that the offender is likely to contract the virus in prison. Rather, the temporary suspension of social visits to prevent that occurrence is evidence to the contrary. The Crown submitted the court would therefore not be satisfied that the offender is likely to pose a risk to the community when released by reason of the infection.

Determination

1. Four months after his release on parole, when serving a sentence of four years and six months imprisonment in respect of Commonwealth taxation fraud offences of the very same kind, the offender lodged a false BAS in the name of his half-brother which fraudulently claimed a GST refund of $23,580.00. His half-brother was at that time 55 years of age and on a disability support pension. He had not been in employment for some five years and could not work a computer. To perpetrate his fraud, the offender had made a handwritten record of Mr Thompson's identity information including his NSW drivers licence number, Medicare card, Centrelink Customer Reference Number, Tax File Number and St George Bank Account. He also created a "Hotmail" email account in Thompson's name and registered him as a sole trader passing himself off as Thompson when he telephoned the ATO, on two occasions.
2. The offender lodged the BAS claiming an entitlement to a GST refund of $23,500.00, on the basis that cash purchases totalling $276,627.00 had been made during the month of August 2013 and directing the refund to one of two ANZ bank accounts he had caused to be opened in the name of Thompson.
3. The BAS was selected for audit before the refund was paid automatically by the ATO and during that audit, when a representative from the ATO telephoned the mobile phone number given, the offender passed himself off and falsely identified himself as Thompson.
4. The offending conduct involved substantial planning and dishonest conduct including the identity theft of his half-brother's details, setting up of the false accounts and the execution of the false BAS return. Notwithstanding the relatively small amount of the refund that was stopped, by comparison to his previous offending, as an attempt it did fall within the upper part of the low range of objective seriousness for an offence pursuant to sections 11.1(1) and 134.2(1) of the Criminal Code (Cth). It was aggravated by the fact that the offender was on parole at the time of the offending for a period of one year and six months, and the offending occurred within four months of his release to parole.
5. Count 2 involved the offender submitting six false BASs over a ten month period between 1 October 2013 and 31 July 2014. In September 2013, less than four months after his release on parole the offender caused the incorporation of the company CBPI and proceeded to lodge the first two false BASs for the quarterly tax periods ending 31 December 2013 and 31 March 2014. Thereafter, he lodged the four monthly false BASs for the tax periods between 1 April 2014 and 31 July 2014. In doing so he falsely claimed for GST refunds and Fuel Tax Credits and the ATO made six refund payments totalling $26,611.00 by way of six refund payments which represented $17,355.00 being refunds of GST, and $9,256.00 of Fuel Tax Credits. The monies were used to support a lifestyle which the offender could not otherwise afford, he being in receipt of a carer's pension.
6. The planning involved in the offence in Count 2 was sophisticated involving the incorporation of a corporate entity by which the fraudulent BAS statements were facilitated. It fell within the mid-range for an offence pursuant to section 134.2(1) of the Criminal Code and towards the bottom of that mid-range. The offending was of course aggravated by the fact that the offender was on parole at the time of the offending conduct.
7. Items 1 and 2 on the Schedule pursuant to s 16BA of the Crimes Act involved the offender fraudulently lodging a false BAS on behalf of the corporation in respect of the month of August 2014 claiming a refund of GST totalling $25,589.00 and Fuel Tax Credits totalling $191.00, a total of $25,780.00. The BAS was selected for audit before the refund was paid automatically and during the audit the offender falsely represented that the purchases set out in the BAS totalling $281,579.00 were in furtherance of a farm machinery repair business that he was setting up, the lease for the property upon which the business was based was "between lawyers", and a private investor had funded $250,000.00 of the purchases.
8. As an attempt to dishonestly obtain a financial advantage from the Commonwealth pursuant to s 11.1(1) and s 134.2(1) of the Criminal Code (Cth), the offending in Items 1 and 2 on the Schedule constituted offending within the lower range of objective seriousness for offences pursuant to those two sections, but towards the top of the lower range. It still constituted serious offending in each case, and must lead to some accumulation of sentence on Count 2.
9. A maximum penalty of ten years imprisonment in respect of both Count 1 and Count 2 have to be taken into account as guide posts in the sentencing process. Similarly the maximum penalty of imprisonment of items 1 and 2 on the s 16BA Schedule are relevant as they must lead to some accumulation on penalty in respect of Count 2.
10. The offender's criminal history does not entitle him to leniency in the sentencing process. He has a record from 1995 of offences involving violence, firearms, dishonesty and was first imprisoned in 2002 for an offence of aggravated enter dwelling with intent to commit serious indictable offence for which he was sentenced to a term of two years and eight months with a non-parole period of 12 months. Thereafter in 2006 he was convicted of three offences of obtaining money by deception for which he was sentenced to 12 months imprisonment on each, suspended on entering a bond to be of good behaviour pursuant to s 12. Subsequently, he was sentenced in respect of the seven similar offences by Judge Lakatos SC on 20 August 2010 and sentenced to a total of four years and six months imprisonment with a three year non-parole period. Those seven offences related to false and/or inflated BASs in the names of four business or trading identities which the offender submitted to obtain GST refunds to which he was not entitled. Some of the refunds were paid and some were stopped, however, there were similarities in the modus operandi.
11. In Veen v The Queen (No 2) (1998) 164 CLR 465; the plurality said at 477: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In that case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."
12. The offender fell within the latter category of cases whereby deterrence and denunciation for his criminal conduct must play a part in the sentencing process. The offender was well aware of the serious nature of his offending and its consequences, having been sentenced by Judge Lakatos SC in August 2010 for similar offending, and having represented himself in the Court of Criminal Appeal when his appeal was dismissed.
13. The Sentence Assessment Report dated 29 August 2019 noted the significant history of the offender of fraudulent offending. Under the heading "Attitudes" the author stated: "The offender denies culpability for his offending behaviour, shifting responsibility on to others, such as the Australian Tax Office."
14. Under the heading "Insight into impact of offending" the author noted: "He tended to deny his offending, minimise and justify the reasons for which he continues to repeat this pattern of fraudulent offending."
15. Further, the author noted that the offender was disinclined to engage in intensive psychological treatment. He was assessed as a medium risk of re‑offending.
16. The remarks were a consonant with the Probation and Parole Service Pre‑Sentence Report dated 7 December 2009 in which the offender was described as: "A 37 year old man who has a recurrent criminal history in the matter of fraud of which he takes no responsibility, rather identifying as the victim. The offender appears to have no insight into the impact of his actions and his concern is self-centred."
17. I have not taken into account the possibility that this matter could have been disposed of summarily as a mitigating factor. Rather, this was serious offending committed whilst the offender was on parole, giving rise to complex issues to be resolved by the application of sentencing principles and construction of numerous provisions of the Crimes Act 1914 (Cth). As Johnson J said in Zreika v R [2012] NSWCCA 44 at [83]: "The possibility of summary disposal as a mitigating factor is to be confined to a rare and exceptional set of circumstances where the offender is being sentenced in the District Court for an offence which may be seen as a clear summary offence which ought otherwise have been prosecuted in the Local Court." This is not such a case.
18. I have taken into account the psychiatric history recorded by Dr Dayalan in Ex 1. The offender lost his father at age twelve and thereafter was subject to physical assault by an older brother on multiple occasions over a four year period. He had experienced periods of low mood and heightened anxiety following the death of his father and I accept Dr Dayalan's unchallenged opinion that this phase in his childhood was likely to have adversely impacted upon the development of the offender's personality and attitudes. A personality assessment undertaken in 2009 had noted features of instability and unpredictability in mood and behaviour. He had been treated with anti‑depressant medication for depressive symptoms and his personality traits predisposed him to a defiant attitude towards authority. Dr Dayalan also noted that around the time of his offending conduct in 2013 and 2014, the offender had stopped taking his anti-depressant medication. I accept Dr Dayalan's opinion that whilst the offender suffered from mood and anxiety symptoms, they were not extensive or severe enough to warrant a diagnosis of a psychiatric condition at the time of the offences. I also accept Dr Dayalan's opinion that it was quite likely that the depressive and anxiety symptoms contributed to his impaired judgment at the time of the offences.
19. I do not, however, accept the statements of Dr Dayalan that the offender regretted his offending behaviour, and that he is "keen to engage in treatment for his depressive disorder".
20. His prospects for rehabilitation must be guarded given his disavowal of psychological interventions in the past and the fact that he has demonstrated on numerous occasions limited insight into his offending behaviour. Dr Dayalan is correct in stating that these factors have an adverse impact on his prognosis his prospects for rehabilitation and risk of reoffending.
21. Pursuant to s 16A(1) of the Crimes Act 1914 (Cth) the court must impose a sentence "that is of a severity appropriate in all of the circumstances of the offences". I take into account the following matters set out in s 16A(2): 1. Section 16A(2)(a) - the nature and circumstances of the offences. In Counts 1 and 2, and the offending in items 1 and 2 on the Schedule pursuant to s 16BA of the Act as set out above, it is clear that the offending was objectively serious. I take into account the offender falsely claimed a total of $99,551.00 in revenue from the Commonwealth of which $26,611.00 was paid to him. The offending took place over a period of more than one year and involved sophisticated planning involving identity theft of his half‑brother's identity information and the incorporation of CBPI to facilitate the six fraudulent BAS statements. The offender further passed himself off as his step‑brother when speaking to representatives from the ATO on at least two occasions and took steps to avoid detection by nominating a mobile phone number that he controlled. He also set up bank accounts in which the funds were to be paid. Given the level of deception, the period of the offending, the amount of the fraud and the falsification to ATO representatives, the offending was objectively serious as set out above. 2. S 16A(2)(e) - injury, loss or damage resulting from the offences. I accept the Crown submission that taxation fraud impacts all other tax payers who lawfully pay what is for the maintenance of our governments, their institutions and services for the common good. Whilst the sum of $26,611.00 was not large by comparison to the offender's previous offending, it still constituted a substantial amount of money to have been diverted from the revenue together with the unrecoverable costs associated with auditing and investigating the offender. Further, the total amount attempted to be obtained by deception was just under $100,000.00. 3. S 16A(2)(g) - plea of guilty; 4. S 16A(2)(f) - contrition and remorse
22. The offender is entitled to a utilitarian discount on sentence in respect of his plea of guilty which occurred on the first day of a three week trial which had been set down as a special fixture in the Grafton District Court following negotiations between the parties that concluded on 13 June 2019. It was therefore a late plea, made in the face of a strong Crown case. I therefore intend to allow a 10% discount on sentence in respect of the late plea as it facilitated the course of justice by not requiring a lengthy trial. However, I find that the offender has not demonstrated genuine contrition, remorse or acceptance of responsibility for his actions, given the commentary as to his lack of insight into his offending conduct, his tendency to minimise that conduct and to blame others for it. Further, the offender is unable to make any reparations to the Commonwealth for the monies he gained by perpetrating his fraud. 1. S 16A(2)(j) and (ja) - the deterrent effect that any sentence may have. 2. I accept the Crown submission that deterrence is important in the sentencing process for offences that are designed to protect the integrity of the revenue of the Commonwealth and that the courts will impose condign punishment for deliberate and sustained fraud. The authorities establish that tax fraud on the Commonwealth revenue of this kind attracts a full-time custodial sentence in the absence of the most exceptional circumstances, none of which are present here. 3. Further the offending was committed whilst the offender was on parole for similar offences of dishonesty which calls for emphasis on specific deterrence as well as general deterrence. The offender must understand that his continuing criminal conduct will attract more severe penalties. By offending in the way he did in breach of his parole does reveal a continuing attitude of disobedience to the law which warrants a greater emphasis on considerations of retribution, deterrence and the protection of society. This therefore relates to s 16A(2)(m) as to his prior convictions for dishonesty offences and the application of the principle in Veen v The Queen (No.2) as outlined above.
23. I accept that the offender suffers from diabetes mellitus and hypertension. As there is no medical evidence from any treating doctor before me, it is unknown whether he is insulin dependent or not, and the extent of those illnesses. Nor is there any evidence that those medical conditions impacted on him at all during his previous custodial sentence. As set out above, Dr Dayalan was of the opinion that his mood and anxiety symptoms had not been extensive or severe enough to warrant a diagnosis of a psychiatric condition at the time of his offending. This is not a case where the offender's illnesses are relevant to the determination of his sentence in the sense of attaining an appropriate balance between the criminality of the offender and any damage to his health or shortening of life - see R v Achurch (2011) 216 A Crim R 152 per Johnson J (with whom Macfarlan JA and Garling J agreed) at [117] as follows: "117 Where illness is seen as relevant to the determination of sentence, its weight must be assessed in light of all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life: R v Sopher at 573; R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at 6-8 [23] - [31]. 118 In R v Badanjak [2004] NSWCCA 395, Wood CJ at CL (McClellan AJA and Smart AJ agreeing), at [9] - [11], summarised the principles applicable where an offender's medical condition was sought to be taken into account on sentence: '[9] It was held in R v Smith (1987) 44 SASR 587 at 589, an authority to which the Applicant made express reference, that while the health of the offender is relevant to the type and length of any sanction imposed, generally speaking it will only be a factor tending to mitigate punishment when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on an offender, by reason of ill health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health. [10] That decision was applied by the High Court in Bailey v DPP (1988) 62 ALJR 319, and by this court in R v Vachalec [1981] 1 NSWLR 351 and R v L NSWCCA 17 June 1996; see also R v Burrell (2004) 114 A Crim R 207 and R v Azar [2000] NSWCCA 26. [11] It remains the responsibility of the Corrective Services Authorities to provide appropriate care and treatment for prisoners: see R v Vachalec, and R v Krasser NSWCCA 2 September 1993. Most conditions can be adequately managed by those authorities without the need for mitigating the sentence that would otherwise be appropriate, and it is only in relatively rare cases that the Smith principle is applicable.' 119 It is the case that persons with serious health problems are managed within the prison system. This Court has considered this factor on sentence in different contexts, including, for example, offenders with the HIV virus (R v Higgins [2002] NSWCCA 407; 133 A Crim R 385), asthma and angina (R v Wickham [2004] NSWCCA 193) and ischaemic heart disease and non-insulin dependent diabetes (R v Way). 120 In R v Higgins, Howie J (Wood CJ at CL and Smart AJ agreeing) said at 391 [32]: 'Unfortunately for the applicant, this Court cannot give priority to his health and well-being as the medical profession is required to do. The criminal justice system has at its heart the welfare of the community generally and its protection. The courts must tailor their sentences with an eye to that overriding concern so far as common humanity will allow.' 121 In R v Wickham, Howie J (Bell and Hislop JJ agreeing) said at [18]: 'It may be accepted that the applicant's physical condition was poor and that prison would be difficult for him in that regard. It is trite that poor physical health and its impact upon the severity of an offender's imprisonment are relevant factors in sentencing. R v Kier [2004] NSWCCA 106 is a recent authority for that proposition if any is needed. But it is clear that ill health does not necessarily require that a sentence be mitigated from that which would otherwise be appropriate: R v L (NSWCCA, unreported, 17 June 1996); Kier at 65. One of the relevant considerations in determining what, if any, weight to give to that factor will be the seriousness of the offence. Another will be whether the medical condition existed at the time of the offence and whether it has deteriorated in that period between the offence and sentence. Common humanity will sometimes require a court to consider a life-threatening physical illness as a matter of mitigation even though the offender was suffering from such an illness at the time of the commission of the offence. However, whereas here, the issue is one of the protection of the community, it may be that common humanity for the offender gives way to concern for potential victims.'"
24. His Honour went on to note that the State Parole Authority has power to direct the release of an offender on parole before the offender's eligibility date because of exceptional extenuating circumstances, including the prerogative of mercy. His Honour then outlined that Justice Health is a Statutory Health Corporation with functions including the provision of health services to offenders under a statutory regime which empowers it to take all necessary steps to provide health services to inmates.
25. The Crown has made proper concessions as to the existence of the pandemic due to the Covid-19 virus and the fact that persons may be at increased risk if they suffer from chronic illness or are incarcerated in a gaol where Covid-19 is present. This court is not in a position to make an evidence-based assessment of the risk to this offender of contracting the virus in a correctional facility and whether that risk is greater than that of a member of the general public. I accept the Crown's submission that the suspension of visits to gaols is designed to obviate an increased risk of transmission to the prison population, although that undoubtedly results in some increased hardship to those in prison. I am not satisfied on the balance of probabilities that incarceration would put the offender at any greater risk of contracting the virus than any member of the public, notwithstanding that he is a diabetic as submitted by the Crown.
26. I accept, as did the Victorian Supreme Court in Brown (aka Davis) v The Queen, supra, that the Covid-19 pandemic is causing additional stress and concern for prisoners and their families. Further, the hardship created by the suspension of gaol visits and the consequent difficulty of prisoners properly instructing their legal representatives have been taken into account on applications under the Bail Act 2013 in this jurisdiction (see for example Rakielbakhour v DPP [2020] NSWSC 323 per Hamill J). Having considered the jurisprudence that has emerged here and in other jurisdictions within the last month, no general sentencing principle has been developed as to the impact of the Covid-19 pandemic on sentencing. I do not accept the submission of the offender that the community at large is at risk through the potential for community spread through released prisoners and through prison staff, and that the community can be protected through decarceration, and a reduction in prison population density.
27. Thus, the weight given to the illnesses suffered by the offender and the weight given to considerations concerning the Covid-19 virus must be assessed in light of all of the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and his health considerations. There is no medical evidence of the extent of any illnesses suffered by the offender before me. Further, the Covid-19 pandemic is one that affects the whole of the population, including those in custody. I take into account the fact that social visits to correctional centres have been suspended and no doubt the implications of social isolation in custody will heighten anxiety for those in custody by comparison to the implications of social isolation in the community. I am not satisfied that this offender is at any greater risk than any other person in custody from contracting the Covid-19 virus.
28. Whilst I accept that the existence of Covid-19 virus may be a relevant factor in sentencing, there is no evidence to establish that this offender is at greater risk than others in custody so as to amount to hardship. There is certainly no evidence that any third party is placed in a position of greater hardship as a result of the offender's incarceration. Nor am I satisfied that the offender could be described as being in a "state of uncertain suspense", as referred to by Street CJ in R v Todd (1982) 2 NSWLR 517, a case involving the effect of serious delay as a mitigating factor in sentence. The Covid-19 pandemic is therefore not a matter which can be given much weight in the sentencing process here.
29. The fact that the offences occurred whilst the offender was subject to a federal parole order enlivens s 19APB and s 19AQ of the Crimes Act 1914 (Cth) which deem the person's parole to have been revoked immediately prior to its expiry. Pursuant to s 19AQ(5) of the Act, when a federal parole order is revoked, the person to whom it relates becomes liable to serve that part of the original federal sentence that the person had not served at the time of their release. Notwithstanding that, ss 19AQ(5) and 19AA(2) of the Act afford the person a reduction for what is known as "clean street time", being the days between their release and the date of the earliest offending giving rise to the revocation.
30. I accept the Crown submission, which was not challenged, that the clean street time reduction is calculated by applying the laws of NSW, namely, s 132 and s 171(3) of the Crimes (Administration of Sentences) Act 1999, which deem a person to be serving their sentence during the period between release and the expiry and revocation of the parole order. The offender is therefore liable to serve one year, two months and one day of his original federal sentence made up of the balance of one year and six months parole, less three months and thirty days of "clean street time" from 20 May 2013 to 18 September 2013 inclusive.
31. I further accept the Crown submission that the Court must issue a warrant for detention when federal parole is revoked and an offender becomes liable to serve part of their original federal sentence, pursuant to s 19AS(1)(d) of the Crimes Act 1914 (Cth), from the date the sentence is imposed, in this case 9 April 2020.
32. In fixing an appropriate sentence each offence must be considered separately together with questions of proportionality, accumulation or concurrence by application of the principle of totality. In Cahyadi v R [2007] 168 A Crim R 41 at [27] Howie J stated: "[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
33. Applying those principles here upon revocation of his parole, the offender must serve the balance of his parole of one year two months and one day from 9 April 2020 and expiring on 10 June 2021.
34. I intend to structure the sentence for the index offences as follows. In respect of Count 1 the offender is to be sentenced to a term of imprisonment of 18 months. In respect of Count 2 the offender is to be sentenced to a term of imprisonment of 2 years and 6 months. The sentence in respect of Count 2 of 2 years and 6 months imprisonment will commence on 9 December 2020 and expire on 8 June 2023, so as to be partly concurrent with the offender's balance of parole. The sentence in respect of Count 1 of 18 months imprisonment will commence on 9 June 2022 and expire on 8 December 2023, so as to be partly concurrent with the sentence for Count 2.
35. This will result in an effective total sentence, when added to the balance of the offender's parole, of 3 years and 8 months imprisonment. I intend to impose a non-parole period of 2 years and 6 months which would otherwise expire on 8 October 2022, pursuant to s19AR(2)(d) of the Crimes Act 1914 (Cth).
36. As the offender has been in custody since 11 November 2019, an agreed period of 151 days has to be deducted from both the head sentence and the non-parole period. The non-parole period will therefore expire on 10 May 2022, and the head sentence will expire on 10 July 2023. This may appear to be more than somewhat artificial, but is a necessary adjustment required to take into account the offender's time spent in custody to date and results from strict compliance with s 19AS(1)(d) of the Crimes Act 1914 (Cth) as set out above, and the application of the principles of totality and proportionality to the sentence.

ORDERS

1. I make the following orders: 1. You are convicted of the offence in Count 1, namely, that on or about 19 September 2013 at Brushgrove and elsewhere in the State of New South Wales you did attempt, by deception, to dishonestly obtain a financial advantage from the Commonwealth, namely a Goods and Service Tax Refund, by causing to lodge with the Australian Taxation Office a false Business Activity Statement on behalf of Phillip Thompson. The offence is pursuant to s 11.1(1) and s 134.2(1) of the Criminal Code (Cth). 1. You are convicted of Count 2 that between about 24 February 2014 and about 8 August 2014, at Brushgrove and elsewhere in the state of New South Wales you did, by deception, dishonestly obtain a financial advantage from the Commonwealth, namely Goods and Services Tax refunds and Fuel Tax Credits, by causing to be lodged with the Australian Taxation Office, six false Business Activity Statements on behalf of Clarence Business & Property Investments Pty Ltd. The offence is pursuant to s 134.2(1) of the Criminal Code (Cth). 1. I have certified that I have taken into account when passing sentence in respect of Count 2, the offences numbered items 1 and 2 on the certificate pursuant to s 16BA of the Crimes Act 1914 (Cth). 2. As the offences occurred whilst you were on parole for a federal offence or offences, I order that a warrant of detention be issued pursuant to s 19AS of the Crimes Act 1914 (Cth) and that you serve the balance of your parole of 1 year, 2 months and one day from 9 April 2020. 3. In respect of Count 2, I sentence you to a term of imprisonment of tw2o years and 6 months to commence on 9 December 2020 and to terminate on 8 June 2023. 4. In respect of Count 1, I sentence you to a term of imprisonment of 18 months to commence on 9 June 2022 and to terminate on 8 December 2023. 5. Together with the balance of parole that you are to serve, I am sentencing you to an effective sentence of 3 years and 8 months. As the total effective sentence is greater than 3 years, I fix a single non‑parole period of 2 years and 6 months. 6. As you have been in custody for a period of 151 days since 11 November 2019, that period will be deducted from both the head sentence and the non-parole period imposed. Your non-parole period will therefore expire on 10 May 2022 and your head sentence will expire on 10 July 2023. This results in the same effective sentence, ie a non-parole period of 2 years and 6 months from 11 November 2019 to 10 May 2022, and a balance of term of 1 year and 2 months from 11 May 2022 to 10 July 2023. 7. Note that I have made a separate reparation order for payment in the sum of $26,611.00 to the Commonwealth of Australia, in favour of the Commissioner of Taxation.

Amendments 08 July 2020 - Paragraph 145(8) - 3rd Line - 11 November 2018 amended to read 11 November 2019 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2020