CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - particular offences - dishonesty offences - lodging a false income tax return - offences committed in custody - plea of guilty - significant criminal history - terms of imprisonment imposed.

Commonwealth Director of Public Prosecutions (Crown)

1. Tom Perry (a pseudonym), you have pleaded guilty to two offences contrary to s 135.1(3) of the Criminal Code Act 1995 (Cth). Each alleges an offence, effectively, of lodging a false income tax return.

2. The first offence occurred on or about 12 May 2011 and the second offence occurred on or about 2 June 2011. The second offence is objectively somewhat more serious than the first offence because, as the Crown has submitted, you used the name of a different person and as a consequence a debt was raised in the accounts of the Australian Taxation Office against that second person. I note that with respect to the first offence you lodged the income tax return in your own name.

3. The maximum penalty for each of these offences is five years imprisonment, a fine of $33,000 or both. An Agreed Statement of Facts has been tendered and I do not propose to recite those facts at the present time. The brief summary that I have given is sufficient for present purposes. I do, however, note that as a consequence of these offences a sum of $6,191.04 was obtained by you. That sum has not been repaid.

4. I take into account the fact that you are 25 years of age. You entered pleas of guilty to these charges but not at the earliest opportunity. You are entitled, in my opinion, to a degree of leniency based upon your pleas of guilty because they demonstrate some remorse with respect to these offences and also demonstrate a willingness to facilitate the course of justice. I also accept that your pleas demonstrate a willingness to accept responsibility for your actions.

5. You have a long criminal history which disentitles you to any significant leniency in the current proceedings. However, I may say that you are still relatively young, at 25 years of age, and as such rehabilitation cannot be utterly abandoned.

6. It is an aggravating circumstance that these offences occurred whilst you were in custody at the Alexander Maconochie Centre serving sentences with respect to other offences of dishonesty. There was also a level of premeditation and planning involved in these offences. These offences involved effectively the misappropriation of public funds from a scheme which allows for self‑assessment of taxpayers. It was conceded, and I think rightly so, by your counsel that these offences are difficult to detect.

7. Offences such as these are not, in any way, victimless crimes. They involve a loss to the general community. I do, however, take into account the fact that the offences before me are somewhat stale, having been committed in 2011. No real explanation for the delay in commencing these proceedings has been placed before me. I also take into account the fact that these offences did not involve large sums of money.

8. As I have said, you have a long criminal history, however, rehabilitation is not to be ignored. You now have a partner and a child which may provide you with some incentive for reformation in the future. Your counsel has put to me, and it has not been objected to by the Crown, that you have plans to obtain work and possibly an apprenticeship after you are released from custody. It has been submitted to me that you want to effectively settle down and concentrate on your family. If so, that will not only be of benefit to you but also to the general community.

9. I note that you were released on parole on 20 January 2015, however, that parole was subsequently cancelled on 2 February this year and you are currently serving a sentence of imprisonment, commencing on 2 February this year, which is not due to expire until 14 September 2018. You have not served any period of imprisonment with respect to the charges which are currently before me.

10. Given the objective seriousness of these offences and the importance of general and specific deterrence, I am satisfied that terms of imprisonment are the only appropriate and just outcomes with respect to these offences. I intend to impose a sentence which will be partially suspended and which effectively will expire within the period that you are currently liable to serve because of the Australian Capital Territory (ACT) offences.

11. As I indicated in argument with counsel, I will take the view at the present time, which seems to me to be the better view, that the sentences which I impose do not affect your position regarding parole in the ACT with respect to the ACT sentences you are currently serving.

12. With respect to the first count on the indictment, I record a conviction and you will be sentenced to 10 months imprisonment, which I have reduced from 12 months in order to reflect your plea of guilty, commencing today, 6 July 2016 and expiring on 5 May 2017.

13. With respect to the second count, you will be convicted and sentenced to 12 months imprisonment, which I have reduced from 14 months to reflect your plea of guilty, commencing on 6 November 2016 and expiring on 5 November 2017.

14. The sentence is, therefore, one of 16 months imprisonment commencing on 6 July 2016 and expiring on 5 November 2017.

15. There will be a recognizance release order allowing for your release on a recognizance in the sum of $1,000, to be of good behaviour for a period of two years from 5 July 2017. It will be a condition of that order that you are to accept the supervision of ACT Corrective Services and obey all reasonable directions of officers of that service or their delegates.

16. There will be a reparation order requiring the offender to pay the sum of $6,191.04 to the Commonwealth.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate to the Acting Judges with the permission of the Chief Justice.

3 August 2016 Replace "s 131.1(3)" with "s 135.1(3)"" Paragraph: [1]