[1993] FCA 271; (1993) 120 ALR 449

Criminal Appeal - Sentencing - Adequacy of sentence - Fraud on the Commonwealth revenue - Whether custodial sentence required - Mitigating factors including payment of a pecuniary penalty and public humiliation - Sentence not manifestly inadequate.

Taxation Administration Act 1953 (Cth) ss.8C, 8K, 8N, 8P, 8ZE

Crimes Act 1914 (Cth), ss.16A, 29B, 29D

Income Tax Assessment Act 1936 (Cth) s.177

Proceeds of Crime Act 1987 (Cth)

Crimes (Taxation Offences) Act 1980 (Cth)

R v Tait and Bartley (1979) 46 FLR 386

R v O'Keefe (1959) Qd R 395

R v Medina (SCNSW, CCA; No. 60610/89; Clarke JA, Campbell and Allen JJ; 28/5/90; unreported)

R v Carroll (SC Vic CCA; No. 155/90; Young CJ, Crockett and O'Bryan JJ; 15/10/90; unreported)

R v McMullen (SCNSW, CCA; No. 60002/89; Gleeson CJ, Priestley JA, Mathews J; 14/3/91; unreported)

Corbett v R (1991) 52 A Crim R 112

R v Mears (SCNSW, CCA; No. 60525/90; Gleeson CJ, Lee CJ at CL, Loveday J; 14/3/91; unreported)

R v Gillan [1991] FCA 184; (1991) 54 A Crim R 475

R v Morris [1993] VicRp 68; (1992) 61 A Crim R 233

Tapper v R [1992] FCA 600; (1992) 111 ALR 347

Wignall v R (1992) 61 A Crim R 54

R v Allen (1989) 41 A Crim R 51,

McDermott v R (1990) 49 A Crim R 105

R v Chaplin (SCACT; SCC 67/91; Higgins J; 24/6/92; unreported)

Griffiths v R [1977] HCA 44; (1977) 137 CLR 293

Scott v Cameron (1980) 26 SASR 321

Weetra v Beshara (1987) 46 SASR 484

Beadman v R (Full Federal Court; unreported; 1 April 1993)

R v Pickett (1986) 2 Qd R 441

R v Osmond; Ex parte Attorney-General (1987) 1 Qd R 441

R v Harman (1989) 1 Qd R 414

R v Giakas [1988] VicRp 88; (1988) VR 973

Counsel for the Appellant: Mr Rozenes QC with Mr J White

Instructing solicitors: Director of Public Prosecutions

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DAVIES J I have had an opportunity to read the reasons for judgment prepared by Higgins J. I agree with them and with the order proposed by his Honour but I would add a few words of my own.

2. This Crown appeal against sentence was argued by the Director of Public Prosecutions, Mr Michael Rozenes QC, on the ground that the sentence erred in principle. No error of principle was expressed in the careful reasons for sentence delivered by the learned trial Judge. However, Mr Rozenes submitted that the sentence was so inadequate as to offend the morality and conscience of the community. Mr Rozenes submitted that only a term of actual imprisonment was appropriate in the case of fraud against the Commonwealth committed over a period of 4 years and involving an amount of over $70,000.

3. In my opinion, no broad statement of principle which fails to have regard to the particular facts of a case should be adopted.

4. The understatement of income and the overclaiming of deductions is, unfortunately, all too common in the community and Mr Rozenes correctly pointed to the need for deterrence of such conduct and to the need to punish persons who defraud the Commonwealth by understating their taxable income. Yet, most cases in which there is an understatement of income or an overclaiming of deductions are still dealt with without prosecution by the imposition of administrative penalties imposed by an assessment. Offences, when they are prosecuted, are usually prosecuted by the Commissioner of Taxation under sections of the Taxation Administration Act 1953 (Cth); such as s.8K which makes it an offence to make a false and misleading statement, s.8N which makes it an offence recklessly to make a false or misleading statement, s.8P which makes it an offence knowingly to make a false or misleading statement and s.8Q which makes it an offence recklessly or knowingly to keep records which are incorrect. The most serious cases are prosecuted by the Director of Public Prosecutions under s.29B or s.29D of the Crimes Act 1914 (Cth). Though growing in number, these latter prosecutions are still rare, as was shown by the few cases to which Mr Rozenes was able to point to illustrate the principle which he adumbrated.

5. Moreover, the coordination of the tasks of the Taxation Office, on the one hand, and of the Office of the Director of Public Prosecutions, on the other, still requires refinement. For example, Mr Whitnall was convicted, inter alia, on four counts of defrauding the Commonwealth, which related to the income tax returns of a company, notwithstanding that the Commissioner of Taxation ultimately accepted, for the purposes of taxation, that the returns of the company disclosed its correct taxable income and presumably he issued amended assessments which, under s.177(1) of the Income Tax Assessment Act 1936 (Cth), would have been conclusive of that fact. Another illustration is that the assessments raised against Mr Whitnall imposed substantial administrative penalties, which have been paid, notwithstanding that s.8ZE of the Taxation Administration Act provides that the imposition of penalties is an alternative to the institution of a prosecution under ss.8C, 8K(1), 8N or 8P of that Act.

6. It would be wrong to hold as a matter of principle, that persons convicted of an offence under s.29D of the Crimes Act of defrauding the Commonwealth by virtue of the non-disclosure of income or the overclaiming of deductions should necessarily serve a term of actual imprisonment. So to hold would be to discriminate in an arbitrary and unfair manner against persons so convicted. Rather, a sentencing Judge should take account of all relevant circumstances including, as is in this case, any payment of the assessed tax and administrative penalties.

7. In the present case, the trial Judge took into account all relevant matters and gave effect to Mr Whitnall's criminality as it appeared to him on the facts proved before him. In my opinion, there was no error of principle in his Honour's approach. I would not interfere with his Honour's exercise of discretion. See R. v. Tait and Bartley (1979) 46 FLR 386.

HIGGINS J This is a Crown appeal against sentences imposed on the respondent on eight counts alleging that he had defrauded the Commonwealth, contrary to s.29D of the Crimes Act 1914 (Cth) ("CA").

2. The offences occurred between 1 February 1988 and 29 November 1991. They involved the furnishing of false taxation returns for the years ending 30 June of 1987, 1988, 1989 and 1990. In respect of each of the years mentioned there were two returns in question. One was that of the respondent personally. The other was that of a company controlled by the respondent.

3. The respondent and his wife, over the period in question, were directors of a company called Dorken Painters Pty Ltd. That company, as its name implies, carried on a painting business. It had done so since 1983. In essence, it was the corporate vehicle for the respondent to carry on his trade as a master painter.

4. The fraud perpetrated involved both a failure to declare income received and false claims for deductions. The latter involved items of personal expenditure being falsely presented as business expenses.

5. As the learned sentencing Judge observed, there are really four rather than eight fraudulent claims. This is because the income derived by the respondent was primarily the income obtained by the company.

6. The net result, over the four year period, was that the respondent understated assessable income by the sum of $155,612.00. He declared only $88,997.00. Had all of that income been declared as income in his hands, additional tax of $74,667.14 would have been payable.

7. Since the offences came to light, the Commissioner for Taxation has levied interest, at penal rates, and penalties totalling, as at the date of the audit report admitted into evidence before the learned sentencing Judge, $69,324.24. Of that sum, $42,794.15 was penalty rather than interest.

8. The offences were described, justifiably, by the learned sentencing Judge as displaying "a calculated and systematic fraud". A bank account in a false name was set up for the dishonest purpose of receiving the undisclosed income. The respondent, over the relevant period, completed extensions to his home at Macarthur. The $52,000.00 expended for the purpose was, his Honour observed, probably money that should have gone to the Commissioner.

9. In favour of the applicant, his Honour found that he had agreed with the Commissioner to pay the whole amount, including penalties, claimed by the Commissioner. He had already paid $60,250.00. The balance was to be the subject of a borrowing, repayable at $3,000.00 per month secured over the family home.

10. His Honour further noted that, between 1987 and 1990, there had been a decline in the level of understatement of income. Of course, that might have been a recognition of impending discovery. The last two returns followed a tax audit. The respondent's motive was, however, a question of fact. His Honour had the opportunity to assess him as a witness.

11. The respondent was, at the date of sentence, 61 years of age. He had no prior convictions. There was impressive evidence of his favourable reputation and character but for, of course, the adverse inference arising from the offences themselves. He had, but for these offences, led an industrious and respectable life.

12. His Honour gave the respondent credit, also, for his pleas of guilty. He said,

"... I am convinced that there is considerable remorse on the

part of the offender although, I must say, it was partly obscured

by his continuing desire to put on a brave front. A lengthy and

costly trial has, of course, been avoided by the pleas of guilty."

13. His Honour noted that the respondent's property had been subjected to a restraining order under the Proceeds of Crime Act 1987 (Cth). However, it was rendered unnecessary by the arrangement come to between the respondent and the Commissioner.

"... these are not victimless crimes, the victims are the

who have to make up the deficiencies in revenue, brought about by

offenders who fraudulently conceal the true income derived by them

and who fail to pay the correct amount of tax. Whilst an offender

who has defrauded the revenue is not to be allowed to purchase his

or her immunity from proper punishment for the offence committed, it

is nonetheless true that if the deficiency can be made good, more

particularly if it has been made good before the date of sentence,

then the severity of punishment may be ameliorated."

15. There is, in my view, no error in that statement of principle (see R v O'Keefe (1959) Qd R 395).

16. Counsel for the Director of Public Prosecutions, ("DPP") Mr Rozenes QC, submitted that, in the circumstances, given the nature and extent of the respondent's fraudulent conduct, a custodial sentence, not fully suspended, was mandatory.

17. It was proper, Mr Rozenes conceded, for the sentencing judge to take account of the effect of an immediate custodial sentence upon the respondent's business. The loss of the ability to make the arranged reparations which would follow from an actual custodial sentence was also relevant. Only partial recovery of the debt would have been possible from the forced sale of the jointly owned family home. Mr Rozenes submitted, however, that those factors were insufficient to justify the complete suspension of the custodial sentence imposed.

18. It is true that frauds on the revenue, whether Social Security frauds or taxation frauds, are being treated more and more severely.

19. Several examples were referred to in argument.

20. In R v Medina (SCNSW, CCA; No. 60610/89; Clarke JA, Campbell and Allen JJ; 28/5/90; unreported) the offender had claimed unemployment benefits, although in fact ineligible, receiving $45,666.26 as a result of fraudulent claims over a number of years. A Griffiths bond was set aside. Imprisonment for two years was substituted with a minimum term of 18 months being fixed. The sentencing Judge had regarded as critical the likely failure of the offender's business and the likelihood of restitution being made if the offender remained at liberty.

21. Notwithstanding the offender's previous good character, remorse and the "fair degree of financial pressure" which had prompted his offences, the sentence originally imposed was held not to sufficiently reflect "general deterrence". No financial penalty, however, had been imposed in or associated with the sentencing process over and above reparation.

22. Clarke JA expressed the view of the Court when he described the sentence as erroneous and inadequate. A custodial sentence was required.

(7) "That sentence, because this is a criminal appeal by the

Crown,should not be of the same length as that which, in my

view, the judge at first instance should have imposed. It is,

however, necessary to send the respondent to gaol to indicate

quite firmly that where frauds of this nature are concerned this

Court will, and other Courts should,demonstrate a determination

to deter those who engage in frauds on the Social Security

system."

23. In R v Carroll (SC Vic CCA; No. 155/90; Young CJ, Crockett and O'Bryan JJ; 15/10/90; unreported), the respondent had, over 3 1/2 years, defrauded the welfare system of over $221,000.00. The DPP appealed against the imposition of a sentence of 3 1/2 years with 2 1/2 years to serve before parole. The respondent was not repentant. He was 40 years of age and had prior dishonesty convictions upon which he had been previously sentenced to imprisonment. A sentence of 5 1/2 years with a minimum of 4 years before parole was substituted.

24. A sentence of 4 years with an additional term of 16 months was decreased to 2 years 3 months non-parole period with a head sentence of 3 years 8 months in R v McMullen (SCNSW, CCA; No. 60002/89; Gleeson CJ, Priestley JA, Mathews J; 14/3/91; unreported). She had defrauded the Commonwealth of $309,000.00 over a period of nearly 3 years. She cooperated with police. She had no prior criminal history but had become addicted to heroin. She was an employee of the Commonwealth, however, and had abused her office to perpetrate the frauds. She was contrite and had good prospects of rehabilitation although she had made only restitution of only a small portion of the sum taken. The sentence, it was noted, (8) "is not likely to have any material effect on any of the applicant's family or dependents".

25. Corbett v R (1991) 52 A Crim R 112 involved a "medi-fraud" by a medical practitioner. $560,000.00 was obtained fraudulently over a period of about a year. An aggravating feature not present in the instant case was that the appellant was in a particular position of trust. The plea of guilty was entered close to trial but there was "some contrition" shown. A sentence of 8 years with a non-parole period of 6 years was regarded as excessive. A sentence of 7 1/2 years with a 4 year non-parole period was substituted.

26. R v Mears (SCNSW, CCA; no. 60525/90; Gleeson CJ, Lee CJ at CL, Loveday J; 14/3/91; unreported) involved Social Security fraud. The sum defrauded was over $115,000.00 but there had been lawful entitlement to $17,861.70. A sentence of 3 years, with a non-parole period of 12 months, was imposed. A Proceeds of Crime order was likely to ensure full restitution. There had been pleas of guilty and cooperation with the authorities. Some efforts had been made towards restitution. There had been prior offences many years before. The offender was 62 years of age. He induced other members of his family to commit offences in the course of the fraudulent conduct. The conduct had extended over a period of 13 years. A sentence of 4 years with a non-parole period of 2 years was substituted.

27. Nevertheless, in R v Gillan [1991] FCA 184; (1991) 54 A Crim R 475, a Full Court of this Court (Black CJ, Beaumont and Spender JJ), whilst agreeing that the original sentence was too lenient, imposed a fully suspended sentence for offences involving embezzlement of over $64,000.00 from the Norfolk Island administration and RSL Club. The head sentence was 3 years. Their Honours decided suspension of it was warranted, virtually full reparation having been made, pleas of guilty being tendered with genuine contrition and cooperation by reference to factors such as,

(480) "He was a person of previous good character. The

consequences of his actions to him and to his wife have been very

severe; they include financial ruin, the sale of the matrimonial

home and his leaving the Island in shame."

28. That case illustrates that the severity of the consequences of detection, reparation and public exposure are relevant factors. Indeed, they are important to highlight in order to enhance the general deterrent aspect of the criminal justice process. The sentence pronounced ultimately is but part of the general deterrent process. It is important for that to be generally recognised.

29. R v Morris [1993] VicRp 68; (1992) 61 A Crim R 233 was taken by the learned sentencing Judge as authority for the view that offences such as those admitted by the respondent should attract a custodial sentence. It was relevant that the offender in Morris was a barrister. He was in a particular position of trust and responsibility so far as the law is concerned. He had understated his income by $473,712.00. He had evaded $270,286.47 in tax. An agreement was made which fixed the total due, including penalties, at $286,792.22. It was paid promptly. There had been a considerable waiver of culpability and interest penalties. The offender pleaded guilty. He was 52 years of age and had no criminal history. The effective sentence imposed was 2 years imprisonment. It was suspended on the offender entering into a recognisance in the sum of $5,000.00, to be of good behaviour for 2 years. He was also fined $19,200.00. He had originally been assured by the Australian Taxation Office ("ATO") that he would not be prosecuted. The fine imposed was a sentencing error. It was not then lawful for fines to be imposed in addition to the sentence of imprisonment. The offender, therefore, had to be resentenced without the option of a substantial fine being available.

30. In resentencing the offender, the Appellate Court determined that a custodial sentence, of which part was actually to be served, was appropriate.

(238-9) "In our opinion the critical consideration is that

taxpayers cannot be permitted to defraud the revenue in the belief

that detection can lead to no more than a requirement merely to make

financial reparation and to pay a monetary penalty so as to enable

the offender to "purchase" immunity from prosecution under the

criminal law."

And,

(240) "We have been referred to a number of authorities in which

the question arose as to whether a custodial or non-custodial

sentence was appropriate in the case of fraud upon the Commonwealth

revenue. Many involved Social Security fraud. It is clear that

in recent years the trend has been towards the imposition of custodial

sentences even upon first offenders (which most of such offenders

seem to be) in the absence of substantial mitigating circumstances."

32. A sentence of 18 months was substituted with the respondent to be released after serving 6 months imprisonment upon recognisance in the sum of $100.00.

33. The present matter was one to which the provisions of s.16A CA applied. General deterrence is not expressly mentioned as a matter to be taken into account, but it is clearly intended that it should be included (see Tapper v R [1992] FCA 600; (1992) 111 ALR 347).

34. It was also, in my view, correct for the learned sentencing Judge to take account of the pecuniary penalty imposed administratively. The degree of hardship imposed by that penalty is also relevant (see Wignall v R (1992) 61 A Crim R 54, 56). The orders made for confiscation of a sum representing tax evaded and penalty interest is also relevant (see R v Allen (1989) 41 A Crim R 51, McDermott v R (1990) 49 A Crim R 105). In this case, it is obviously substantial and ongoing. The borrowings will cost the respondent $3,000.00 per month. There is no likelihood that his level of income will substantially increase in the future so as to alleviate that burden.

35. It should also be remembered that a sentence of imprisonment, even if suspended, is a substantial punishment.

36. It follows, in my opinion, that no error has been shown to have occurred in the sentencing process unless it can be said that the sentence was, per se, "manifestly inadequate".

37. Each party placed before the Court a schedule of recent sentences imposed in matters alleging fraud on the revenue. I note, of course, that s.29D CA has been amended from time to time to provide increased penalties. Only the maximum penalties at the time of the offence, are, of course, relevant. It is, however, also relevant that the conduct of the respondent was also covered by s.29B CA (imposition by untrue representation). That offence provides currently for a sentence not exceeding 2 years imprisonment. Section 29D provides for imprisonment not exceeding 10 years (as well as a $10,000.00 fine). Alternatively, there was also the possibility of prosecution under the Taxation Administration Act 1953. The maximum penalties under that Act are less than under the CA. The Commissioner cannot also impose administrative penalties if the prosecution is brought under the Taxation Administration Act 1953 although the Court convicting the offender may impose similar financial penalties.

38. The same conduct, therefore, may be dealt with,

. by administrative penalties only;

. by prosecution under the Taxation Administration Act 1953. The

Commissioner may elect to prosecute for a fine only or a fine and

imprisonment. A penalty up to three times tax avoided can also

be imposed;

. by prosecution under s.29B CA. The imprisonment available is a

maximum of 2 years;

. by prosecution under s.29D CA. The imprisonment available is a

maximum of 10 years.

39. It is also open to the prosecution to proceed by way of indictment or summarily, at its option. Again, the maximum penalty is affected by that choice. That choice is available where more than 12 months imprisonment is an available penalty. I have not referred to the Crimes (Taxation Offences) Act but some matters are able to be prosecuted under that Act as well.

40. There are Guidelines for the investigation and prosecution of taxation related offences, as between the DPP and the ATO. I have to say that I view the legislative and administrative regime with some disquiet. The Court was urged to have regard to general deterrence. The range of administrative decisions available which will avoid the bringing of charges under s.29D (the most serious option) must lead taxpayers to hope that the latter option will only rarely be activated. Further, the reasons, if any, for choosing a less serious option are not exposed to public scrutiny as are the reasons for the imposition of a sentence by a Court. What the ATO or the DPP regard as a "serious offence" is not really defined. It may be supposed that the present case is regarded, at least by the DPP, as "serious".

41. The schedules presented by each party reviewed cases presumably regarded as examples of "serious" frauds on the revenue. They were, particularly those presented by the DPP, tainted by serious error. However, it may be said that they do no more than illustrate the general view endorsed in Morris.

42. At least, so far as the Courts are concerned, serious frauds on the revenue will result in custodial sentences. In the absence of "substantial mitigating circumstances", that sentence will include a period actually to be served.

43. R v Chaplin (ACTSC; SCC 67/91; Higgins J; 24/6/92; unreported) is a good example of "substantial mitigating circumstances" although a substantial sum was involved. Morris is a good example of what circumstances, although mitigatory, will fail to be regarded as sufficiently substantial to avoid actual imprisonment.

44. To my mind, the learned sentencing Judge was entitled to regard the mitigating factors in this case as greater than Morris' case. For a barrister to engage in the conduct Morris did was gravely reprehensible. The amount involved in this case was much less than in Morris. In Morris, the Commissioner had not partially pre-empted the Court's response by exacting a substantial financial penalty.

45. The point was graphically illustrated during argument. If the offences committed by Morris and those committed by this respondent were compared only by reference to the tax avoided, the respondent could not be given more than 2 months to serve if parity was to be observed. The respondent has been effectively fined over $42,000.00 and ordered to perform 208 hours community service. I fail to see how it could be said that, with the suspended custodial sentence and the public exposure as a tax cheat, the penalties imposed on the respondent can be described as "manifestly inadequate".

DRUMMOND J: The notice of appeal challenges the sentences imposed on the respondent as being manifestly inadequate in the circumstances of the case. But the main purpose of this appeal was, as the Director of Public Prosecutions frankly acknowledged, to establish a prima facie rule that an offender against the tax, social security and related laws of the Commonwealth must go to gaol, even after full weight has been paid to the sentencing directions in Part 1B the Crimes Act 1914. I do not think revenue offences should be regarded, for the purpose of sentencing, as any different from other offences having serious anti-social consequences. Actual imprisonment may often be appropriate in such cases and consistency in sentencing is also an important aim of the criminal justice system: Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 326-327. But "a fair margin of discretion must be left to the sentencing judge". Ibid at 326. There is no justification for departing from the fundamental principle that the proper sentence in the case of any serious offence will be dictated by the circumstances of the particular case. The nature of the offences, here in question, as revenue offences, is but one of those circumstances, albeit an important one. I agree with what Davies and Higgins JJ have written in this regard.

2. The respondent was prosecuted under s. 29D the Crimes Act 1914, the provision which fixes the severest maximum penalty for offences that involve depriving the Commonwealth of revenue to which it is entitled. As Davies and Higgins JJ point out, these offences could have been prosecuted under various other provisions and, at the election of the prosecution, could have been dealt with summarily rather than on indictment - all steps which would have limited the maximum sentence that could have been imposed on the respondent to much less than the ten years' imprisonment and a fine of $10,000.00 which he faced for each conviction under s. 29D. While it is solely for the prosecuting authority to select the provision under which it will launch a prosecution, the Court is not bound to treat the prosecution decision as placing a fetter upon the Court's sentencing discretion, in the sense of compelling the Court to impose a heavier sentence than it would regard as appropriate, but for that one consideration: see Scott v Cameron (1980) 26 SASR 321, 325.

3. For the reasons given by Higgins J, I do not think the learned primary judge fell into any error in imposing the sentences he did. I add the following observations:

(a) As the learned primary judge observed, the Commissioner

of Taxation had, to an extent, fettered the Court's

sentencing discretion by imposing on the respondent an

administrative penalty of the order of $42,000.00 (with

interest on top of that sum, which was also required to

be paid). A fine of $42,000.00 is in itself a

significant punishment for anyone other than a wealthy

person: on the basis of the figures in the tax

department's audit for the period to which the charges

relate, this penalty was roughly equal to the

respondent's true average net income for an entire year.

Both a fine and imprisonment can be ordered on conviction

under s. 29D. But when a heavy penalty has already been

exacted by administrative action and before the matter

comes to Court, it is not waived, as the Director

acknowledged it could have been, there is an element of

oppression involved in asking the Court to deal severely

with an offender who has already been heavily punished by

the Commissioner. I note that such a situation cannot

arise where a tax offender is prosecuted under ss. 8C,

8K(1), 8N or 8P the Taxation Administration Act 1953:

see s. 8ZE.

(b) Higgins J describes the suspended sentence imposed here

as a substantial punishment. Although suspended, the

head sentence of three years' imprisonment serves a real

function in demonstrating to like-minded offenders the

seriousness with which this kind of offence is treated

and the kind of punishment they are likely to receive, in

the absence of substantial mitigating factors. See

Weetra v Beshara (1987) 46 SASR 484 at 491-2; R v

Gillian [1991] FCA 184; (1991) 54 A. Crim R. 475 at 480; Beadman v R

(Full Federal Court, unreported, 1 April, 1993).

(c) The learned primary judge also imposed an order for 208

hours of community service on the respondent. This, too,

can only be seen by the community at large as a

significant punishment, when imposed on a person of

mature age, of prior good character.

(d) The respondent made arrangements that were carried into

effect, to enable payment of all tax avoided, plus the

administrative penalty to which I have referred, plus

interest on arrears of tax and penalty, a total of nearly

$144,000.00. This is a significant mitigatory factor.

The case cannot be said to be one in which a wealthy man

has bought his way out of gaol with little pain to

himself: in order to make full restitution and to pay

the administrative penalty, the respondent has had to

assume a long-term financial burden which, on the

evidence, is a substantial one for a person with his

financial resources.

(e) The learned primary judge correctly recognised that the

respondent was entitled to a substantial reduction in the

sentence otherwise appropriate not only because his

Honour expressly found evidence of contrition in the

respondent's plea of guilty, but also because the plea of

guilty, insofar as it had the effect of saving the

community the cost of an expensive criminal trial, was

itself a factor that required a significant reduction in

the sentence. See R v Pickett (1986) 2 Qd R 441; R v

Osmond; Ex parte Attorney-General (1987) 1 Qd R 441; R v

Harman (1989) 1 Qd R 414; R v Giakas [1988] VicRp 88; (1988) VR 973 at

978 and cf. s. 16A(f) and (g) of the Crimes Act 1914.