R v Kennedy

R v Kennedy - [2019] NSWDC 359 - NSWDC 2019 case summary — Zoe

[7]

The third indictment

The third and final indictment (201616997_2.2) is of a somewhat different character in that the offender was the accountant engaged by the directors of a furniture company, Brescia Furniture Pty Ltd. He was retained to provide taxation services. He was also the personal tax accountant for various members of the Brescia family. In the course of his retainer, the offender prepared quarterly investment activity statements ("IAS") and business activity statements ("BAS") for the company and the members of the Brescia family, for provision to the Australian Taxation Office ("ATO").
The first count is a rolled up charge. The nature of the rolled up charge, is that on a number of occasions, the offender produced IAS and BAS forms for the companies and members of the Brescia family, that indicated that taxation was payable to the ATO. The defendant falsified the payment slips attached to the IAS and BAS forms, by altering the EFT code. The effect of this fraudulent conduct was that the payments made pursuant to them would be directed by the ATO to accounts for entities associated with or controlled by the offender, and not the Brescia taxpayer.
Count one includes 55 occasions where it is agreed that the offender dishonestly and by deception, obtained a financial advantage in the manner which I have set out. This offending occurred between 5 June 2012 and 22 January 2015. The total of the amounts defrauded the subject of the first count is $625,141.
Count two is of a different character.
In August 2014, the offender called Vittorio Brescia, a member of the Brescia family, and told him that the company had a large capital gains tax bill as a result of the sale of a property. This was not true. The offender said that a cheque was required in the sum of $808,555.50 for payment to the ATO on account of this tax liability. Mr Vittorio Brescia arranged for a cheque to be drawn and for the offender to collect the cheque from the Parramatta branch of the ANZ bank. The offender represented that these funds represented by the cheque so drawn, would be paid into the ATO on account of the capital gains tax represented by the offender to be owing by the company.
On 29 August 2014, the offender paid the sum of $808,555.50 into the ATO account of an entity with which he was associated (Superior Rubber Pty Ltd), which caused the ATO account for that entity to have a positive balance. As a consequence, a refund was due to Superior Rubber Pty Ltd.
On 3 September 2014, the offender sent an email to Vittorio Brescia, attaching a receipt from the ATO indicating that the company had no further tax liability. Mr Brescia trusted the offender so he accepted the veracity of the correspondence.
On 18 September 2014, the ATO issued a refund cheque to Superior Rubber Pty Ltd in the sum of $549,150.18.
It was agreed in respect of this charge, that the offender by deception, dishonestly obtained a financial advantage in the sum of $808,555.55.

[18]

It can be seen from the above that the offender has a considerable history of offences of dishonesty which includes a custodial sentence for similar offending from the year 2000, for which he was imprisoned for 3 years with a 2 years 3 months non-parole period.
The offender accepted that this must be taken into account, but counselled against the Court considering it as an aggravating factor, applying section 21A(4), which provides that an aggravating or mitigating factor should not be considered if it would be contrary to any Act or rule of law to do so.
In that context, the offender points to the fact that at common law, the prior conviction does not operate to aggravate an offence, but rather, it deprives the offender of leniency or otherwise indicates that it is appropriate to give more weight to such factors as retribution, deterrence or community protection (Veen v The Queen (No. 2) (1988) 164 CLR 465, at 476.
The Crown submitted that the previous convictions of the offender was a relevant factor to be taken into account, and drew my attention to the decision of Weininger v The Queen (2003) 212 CLR 629 at [32], where Gleeson CJ, McHugh, Gummow and Hayne JJ stated: A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.
I am of the opinion that the previous convictions and incarceration for very similar offences of fraud are matters of high relevance in the sentencing process, and I propose to take them into account accordingly.
I should add that I am cognisant of the risk of double counting if I were to take them into account both pursuant to the provisions of section 21A and pursuant to common law principles. I propose to confine my consideration of them to the common law principles to which the parties have referred.

[24]

Accumulation, concurrence and totality

In Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said at [45] that: [a] judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
Questions of accumulation are discretionary and the Court is to consider whether the total sentence reflects the total criminality of the offences (R v Wilson [2005] NSWCCA 219 at [38]). As stated in R v XX (2009) 195 A Crim R 38 at [52]: [Whether the sentence for one offence] can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence.
The index offences arose from separate incidents and represent a course of conduct. In those circumstances, some accumulation is necessary in the Court's discretion to comprehend the discrete acts of criminality. As stated in R v Wilson [2005] NSWCCA 219 at [37]: What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and secondly, that the total sentence imposed properly reflects the totality of the criminality.
The rationale behind the totality principle is that a 'just and appropriate' overall sentence is a sentence that satisfies all sentencing objectives applicable to the entirety of the criminal conduct (Azzopardi v The Queen [2011] VSCA 372).
In respect to the imposition of an aggregate sentence pursuant to section 53A of the Sentencing Act, Beazley P in Jeffree v Regina [2017] NSWCCA 72 stated at [43] that "when a court determines an aggregate sentence, the sentence so imposed must reflect the totality of the criminality involved." Her Honour cited R v Harris (2007) 171 A Crim R 267, wherein the Court endorsed D A Thomas' leading statement of the effect of the totality principle, which in turn was endorsed by the High Court in Mill v The Queen (1988) 166 CLR 59, where Wilson, Deane, Dawson, Toohey and Gaudron JJ said at 63: [t]he effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is 'just and appropriate'.
I intend to take matters of concurrence, accumulation and totality into account in the imposition of a sentence.
I should also note, in that regard, that it was common ground between the parties that I should be satisfied pursuant to the provisions of section 5 of the Sentencing Act that, having considered all possible alternatives, there is no penalty other than imprisonment that is appropriate to the offences. Absent this concession, I would have unhesitatingly come to the same conclusion.
As a consequence of this, on the first day of the sentencing hearing on 31 May 2019, it was agreed that I should revoke the offender's bail and remand him in custody, which order I made. As a consequence, the offender has been in custody since this date.

[25]

Conclusion

Having regard to the foregoing, I have come to the conclusion that the offences involve the upper range of objective seriousness and call for a sentence which reflects that seriousness. Of particular concern, is the fact that notwithstanding the fact that the offender has already been imprisoned for similar offences, the offender chose to embark on this course of further serious dishonesty at an advanced stage of life. I am left with no alternative but to conclude that he has learnt nothing from his previous term of imprisonment for offences of dishonesty.
The offender has expressed no remorse for his offences, and can only be taken to be indifferent to the financial suffering to which he has subjected his victims. I assess his prospects of rehabilitation as low, and subject to one matter, that his risk of reoffending is high.
The exception to the proposition which I have just expressed regarding reoffending, is that his risk of reoffending may be lessened by his age at the time of his release.
Section 3A of the Sentencing Act sets forth the purposes for which the Court may impose a sentence on an offender as follows: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, 7. to recognise the harm done to the victim of the crime and the community.
I will not deal with each statutory purpose seriatim, but wish to record that given what I consider to be the offender's high risk of reoffending, a lengthy sentence is required in order to protect the community from the offender's fraudulently predatory behaviour. His offending also deserves significant punishment, both by way of personal deterrence, and general deterrence.
As to the latter, it is crucial in my view that persons who hold the monies of others, or advise them as to their disposition, should be aware that if they deal fraudulently with their clients, they can expect significant punishment.
The professions and occupations concerned, perform an important social and economic function, which function is predicated on their clients residing trust in the practitioner concerned. These practitioners need to be aware that breaching that trust will not be countenanced by the law.
The sentence of the Court will also have the effect of recognising the financial harm done to the victims, and serve to denounce the offender's conduct.

At a glance

Court

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Before

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Judgment (27 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (18)

Cited By (1)