HIS HONOUR: Phillip St James appears today for sentence in relation to an offence to which he pleaded guilty on arraignment in this Court alleging that he, between 11 November 2005 and 28 February 2009 at Sydney in the State of New South Wales, did by deception dishonestly obtain a financial advantage from a Commonwealth entity namely the Australian Taxation Office by causing to be lodged 23 income tax returns in the names of ten of his clients which contained false information as particularised in the schedule of particulars annexed.
Annexed to that indictment are the "Particulars" in respect of what might be described as the 23 separate offences committed by the prisoner which are rolled up into the one count in the indictment. As I would understand the matter the prisoner was committed for trial on a number of offences.
I am required to take into account on a "Form", pursuant to s 16BA Crimes Act 1914 (Cth) (hereinafter to be referred to as "the Act"), a further 13 matters being offences of the same character as that set out in the count in the indictment. They relate to, for want of a better word, almost identical or highly similar conduct committed by the prisoner in a period of time between 20 March 2006 and 31 December 2008.
R v ST JAMES [2016] NSWDC 431 | Case summary | Zoe
I will come back to the manner in which the matter came to this Court and the manner in which the pleas have been entered. The Crown Prosecutor who claimed authorship of the submissions that were provided to the Court and in oral submission kept referring to a "plea bargain". I do not know about any "plea bargain". It seems to me with respect that the facts of the matter are that the Crown and the defence negotiated an appropriate way in which the offences could be dealt with to which the prisoner admitted his guilt to facilitate the formulation of appropriate sentencing orders. So I strongly resent the use of the words "plea bargain", particularly by the Crown, who by its very status in the proceedings must have been a participant in the so-called "bargain" that unfolded. The word has an unsavoury connotation in sentencing.
In relation to the 23 separate matters involving conduct between 11 November 2005 and 31 December 2008, those matters relate to ten tax payers. Although in respect of particular tax payers there were on occasions multiple income tax returns completed in accordance with the statement of facts.
My calculation from reading through the particulars show that in respect of one taxpayer, for example, there were four separate tax returns completed. On the other hand there was one of the ten people for whom only one return was completed. Likewise in respect of the matters on the "Form", whilst there are 13 separate tax returns the subject of particular charges, there were, in fact, five taxpayers. One taxpayer as I would calculate it had four or five tax returns. The other tax payers had two returns completed to constitute the conduct reflected in the "Form".
There is an agreed statement of facts, some of which I will read onto the record, some of which I will summarise. The prisoner is referred to in the agreed statement of facts as "an accountant". I pause for a moment to point out that he was not a registered accountant nor was he a tax agent. He is described in the agreed statement of facts as practising as a "partner, principal or employee of Tan St James and Co and also Orion Tax and Accounting Services". I pause for a moment to note in relation to the business known as "Tan St James and Co", as quoted, would appear to incorporate his surname or at least the surname he had at the time of this offending with which I am concerned.
The prisoner was a former employee of the Australian Tax Office although, as I understand the matter, he had ceased to be an employee of the Australian Tax Office something over a decade before the commencement of the offending behaviour with which I am concerned.
In respect of the matter on the indictment as I have pointed out the prisoner completed 23 income tax returns for ten taxpayer clients. Each of the taxpayers were "Pay As You Go", (PAYG) taxpayers. That is that they were employees who derived income from employment rather than business owners. The learned Crown Prosecutor who first appeared in this matter referred to them all as "working class" people. My reading of the victim impact statements suggest that some of the taxpayers were people who claimed, before they had their problems with the tax office as a result of the conduct of the prisoner, to be earning substantial salaries.
Be that as it may, each taxpayer instructed the prisoner to prepare their income tax returns either directly or indirectly through a friend or a relative. The prisoner had stated to a number of the taxpayers, but I take from that not all the taxpayers, that he was a "former ATO employee" and could obtain better refunds for them because he knew how to legitimately claim a greater amount for deductions.
In each tax return the subject of the count in the indictment and also as I understand it the various matters on the Form, the offender inserted a claim that the relevant taxpayer client was conducting a business when, in fact, the taxpayer client was not carrying on a business. Further, the offender provided an ABN, as I would understand it, an Australian Business Number for that business which had been applied for and obtained on behalf of the taxpayer client without their consent and further the offender claimed that a significant loss was incurred in the purported business.
The facts state that the prisoner either lodged these returns himself by mailing them to the ATO or instead by procuring one of the accountants he was in business with to innocently lodge them using the ATO's electronic lodgement service under their authority as registered tax agents. It is commonly known by taxpayers through dealing with their own tax agents or accountants that tax returns can be lodged electronically by an appropriately accredited person.
There is no evidence that the prisoner had any right of electronic lodgement and thus it came to pass that either, as the facts state, the tax returns filled in by him setting out the misleading information to which I have referred were sent on to the tax office, as I would understand it, lodged by the taxpayers themselves or lodged through the cover of one of his colleagues who was a "registered tax agent". I am not provided with any details as to the proportion of one to the other as the means by which relevant tax returns were forwarded to the Australian Tax Office.
On the basis of the business loss claim each taxpayer became entitled to a falsely inflated tax refund. The refund was either paid into an account associated with the offender or sent by cheque to a post office box owned by the prisoner. The prisoner would pay the relevant taxpayer an amount from the refund and retain an amount as his "fees".
The taxpayers did not know what the total refund was or how much the offender kept as "fees". The amount that was kept by the offender is set out in an annexure to the statement of facts under a column entitled "Total kept by the Offender".
Of course it follows from what I have indicated earlier that none of the taxpayers carried on a business nor had they instructed the offender to apply for an ABN nor instructed him to claim losses for the purported business which they allegedly controlled.
Of the 23 income tax returns the offender forged the signatures of some of the taxpayers on the income tax returns to be lodged on their behalf. I am not supplied with any details as to how many of those tax returns had forged signatures. I am assuming the signatures were forged in relation to those income tax returns that he lodged himself by mailing to the ATO.
The statement of facts at para 12 sets out the particulars of each of the income tax returns. I do not propose to regurgitate those. The offending, as I said, occurring between November 2005 up until December 2008, occurred it would seem on a regular basis over that period of time. To give an illustration, for example, in relation to the matter first particularised, the taxpayer's business name or business entity which the prisoner falsely created was called "Ward Logistics". He claimed false losses or $18,112 against the business. This resulted in a tax return of $6,590 and odd cents when, in fact, the tax payer, Mr Ward was entitled only to $885.05.
The second matter particularised relating to a Mr Monden involved the creation of a false business name of "Monden Transport", the obtaining of a relevant ABN, a claim of false losses of $13,466 resulting in a tax return of $11,550.03 when in fact Mr Monden was entitled to a tax refund of $6,512.52.
The two illustrations I have given show, as do other examples, that some people received grossly inflated tax returns, sometimes six or seven times more than they would have been lawfully entitled to but for the prisoner's conduct; others received considerably more but sometimes not even twice as much as that to which they were entitled.
The total loss to the ATO from the prisoner's "dishonesty" was $130,833.14. Of this amount the prisoner kept $55,860.62; on those particulars, less than half of what had been defrauded from the Australian Taxation Office. The prisoner declined before the proceedings commenced, and before he was either summonsed or arrested, to participate in an interview with the ATO.
In relation to the matters on the Form to which I have referred, as I said these were offences were committed between early 2006 and early 2009 according to the March 2009, and the modus operandi was the same. An example, the first matter particularised, involved the creation of a false business name, "Huey's Electrical Services", the prisoner claiming false losses of $15,692 against the business resulting in a tax return of $6,385.65 when the tax payer was entitled to $580.83, more than ten times what the tax payer would have lawfully been entitled to. "Item 2" on the Form involving the same tax payer but at a later time in 2006 and involved the creation of false losses of $18,673, resulting in a tax return of $7,003 and odd cents when the tax payer was only entitled to a tax refund of $232.35. Thus, it can be seen that the return to the tax payer in terms of the tax return, orchestrated by the prisoner, was almost 30 times what the tax payer was lawfully entitled to. The particulars I need not further regurgitate. They are set out at para 16 of the statement of facts in relation to the matters on the Form. In relation to these matters the loss to the ATO in terms of tax return paid which was not lawfully required to be paid by the Australian Taxation Office was $85,136.35, of which the prisoner kept $43,471.76.
It follows from what I have outlined that the total amount that the Australian Taxation Office paid, as I understand it, involving defrauding of the Australian Taxation Office, was just over $216,000 of which the prisoner kept just over $99,000. The facts state that the tax payers have been required by the ATO to repay the falsely inflated proportion of the tax refund and also to pay what was called a shortfall interest charge that has been levied on these amounts. This is notwithstanding the fact the prisoner kept a "significant" proportion of the refund as set out in annexure A.
In the course of submissions made orally on the first occasion the matter came before me in late October I raised with the learned Crown Prosecutor whether in fact some of the travails claimed by the taxpayers had their origins more to the way in which they were treated by the Australian Taxation Office than necessarily the conduct of the prisoner, at least directly. In the course of that discussion the barrister appearing for the Commonwealth Director of Public Prosecutions said that they were liable because of their "negligence" in failing to properly check the returns that had been lodged on their behalf. It must be fairly said if they were never given the opportunity of seeing the returns, bearing in mind some of the returns had forged signatures, one could hardly see how negligent they truly were.
In relation to the material presented by the Crown there is other material available. A criminal history is available in relation to the prisoner to which I will come to in a moment. The Crown has tendered "victim impact statements" and also tendered material to demonstrate the fact that at least nominally the prisoner over a period of time between 2006 and 2008, during the period of time that he was committing the current offences, was registered as an owner, as it turned out in partnership and thus a part-owner, of a number of race horses. Some of the race horses in the Crown's list are mentioned on more than one occasion. I also have some evidence produced by the defence in relation to that subject matter, it would appear in the context of the prisoner's personal circumstances, that the owning of race horses was an entirely unnecessary luxury which he could scarcely afford. It underlines the fact that the prisoner's offending was one of "greed" rather than "need", even if it cannot be establish that any of the tax monies were directly attributable to the purchase of interest in race horses.
In relation to the history of the matter the prisoner was required first to appear in April 2014, as I pointed out the offending concluding in 2009. The delay between the cessation of the offending and the commencement of proceedings has not been explained, either in detail or adequately. One of the matters I have taken into account, given a parallel history of prosecution of the prisoner in relation to other offences I will deal with in a moment and the prisoner's cooperation with the Police Integrity Commission in respect of matters in some respects allied to his work as a "accountant", suggests that the prisoner had a realisation that prosecution of him by the Australian Taxation Office would occur and the delay in commencing the proceedings has meant some uncertainty on the part of the prisoner, emphasised particularly by the circumstances of his family.
The prisoner waived a committal proceeding in November 2014 and as I said was committed for trial in this court in respect of a number of discrete charges. There was an agreement between the Crown and the defence he should plead to what is called a "rolled up charge" in February 2016 on the day that the trial was to commence which was 29 February 2016. The offer to plead in effect was made, as I was informed in court, approximately a fortnight before the plea was entered and the offer to plead was followed with some discussion between the parties leading to the way on which the matter came before me.
In respect of that aspect of the matter I have concluded that I should accord the prisoner of 10% upon the otherwise appropriate sentence to recognise the facilitation of the course of justice by the plea, including of course allowing matters to be placed on a Form. I will come back to discuss some of the authorities that have been cited by the Crown in that respect and make reference to a recent Victorian Court of Appeal judgment dealing with this issue.
The Crown tendered a pre-sentence report relating to the prisoner, this report is dated 29 June 2016. The report states, "Mr St James is not previously known to Community Corrections". I am very mindful of the fact that Community Corrections used to be known as the Probation and Parole Service but I am completely astonished that he is not previously known when in fact he must have previously been on parole supervision. Why this is reported the way it is in this report is not explained. It sets out his history, the fact that he is the full time carer of his younger son, whose details I will come to shortly, with "complex health needs". I have a great deal of more detailed evidence in relation to the state of that child in the defence case than provided in the pre sentence report. He gave to the pre-sentence report author details of his bankruptcy, his background and education, his employment by the Australian Taxation Office before 1996. He apparently lived in Fiji from 1996 until 2003 and his wife, who gave evidence before me today, would be as I would understand it a Fijian citizen initially who had come to Australia with the prisoner in 2003. He told the Community Corrections officer that the offending occurred in the context of a complex emotional state he suffered from as a consequence of the health problems of his younger child. He spoke about the practices within the accountancy business in which he worked, the issues that are raised in relation to his needs include special attention to family and marital matters and emotional personal support. The prisoner is assessed as living in stable accommodation and being the single full time carer for his disabled son and father and carer of an older teenage son, appeared "stable" and was "not experiencing any issues that would influence any criminal behaviour". He is assessed as suitable for community service but that is an unrealistic order to be made in this particular matter.
The Crown provided some supposedly "comparable" cases. I was misled by the Crown in relation to the sentence imposed upon Mr Cassaniti, not deliberately I hasten to say, but I just do not understand how it could be asserted a sentence was imposed on an offender which was completely wrong and not even reflected in the material that was tendered by the Crown. If it was not for the fact that I had sentenced Mr Cassaniti myself, something like ten or eleven years ago, I would not have been any the wiser. The correction had to be made after I raised the matter with an email apparently to my associate about which I was informed verbally. I will come back to the comparative cases and my analysis of them shortly.
In relation to the defence case it was extensive although the prisoner did not give evidence in his case. There was a large body of material tendered and ultimately it wound up to be not controversial or even seriously challenged. The prisoner has a child called Jarrod who, as I understand the matter, was born on 31 May 2005. That is, as I would understand it, really just before the commencement of the course of offending with which I am now concerned.
This child has a number of severe disabilities. The prisoner has another son called Jett who is 14 years of age and apparently is in good health. The prisoner has been a full-time carer for Jarrod, and to the lesser extent that he requires care, of Jett since approximately July, August 2015. His full-time care for the children, but particularly the seriously disabled child, is recognised by payments to him by the Commonwealth Child Support Authority and, of course, the child's eligibility for the National Disability Insurance Scheme. There is both historical and contemporary medical evidence as to Jarrod's medical condition which is very complex.
The child, although now as I would understand is aged 11, is essentially non-verbal and was assessed when at four as having a severe developmental disability or intellectual disability. He apparently has little or no bladder or bowel control. He has complex cardiac issues which he has suffered since birth, described variously in particular reports as "congenital heart disease" in a global sense. The character of his heart disease, and the treatment of it, is particularised in a report of 18 May 2015 from Dr Shaller, a paediatric cardiologist. He has functional asplenia which is an absence or failure of function of the spleen and has had a, or several gastrostomy, a surgical creation of a gastric fistula and a fundoplication which has left the child required to be fed firstly when very young with a feeding tube and more recently in the last 12 to 14 months with a tube in his stomach, or connected to his stomach, driven by a pump. He has delayed motor development, unable to walk at all until five years of age. Although he is now generally mobile with the aid of what are called ankle foot orthoses, which are a form of orthotic footwear or bindings, he requires wheelchair assistance for travelling over longer distances. His mother gave evidence today that he has great difficulty negotiating stairs without assistance. At ten years of age he weighed 21 kilograms. He takes a complex array of medications required to be given to him daily and has special dietary needs given that he is fed with a pump driven tube in his stomach which operates 16 hours a day. There is evidence from his mother in a letter she wrote to the court and in other sources as to the frequent attention that a particular feeding device requires.
The prisoner in a handwritten statement states that he is the only person in his family that can care for the child, his wife and he having separated in July August 2015. At the present time the oral evidence of his wife and her written statement confirms that that is so. In his handwritten statement to the court, which I appreciate is not the subject of the test of the cross-examination by the Crown, he stated that his wife had mental health issues since shortly after the younger boy's birth and particularly since they separated in 2015. He asserts, and she confirms this in her oral evidence and in her written statement, that effectively she has been worn down by the frequent hospitalisations of the younger child, most recently an extensive hospitalisation from late 2014 through to 2015 which involved, as I understand it, complex heart surgery. In fact today in her oral evidence she shed more light upon that indicating that she had to take considerable leave away from work which has left her bereft of much flexibility in that respect.
His son attends a school that is described as "The Hills School". I do not have a great deal of information about it as to whether it is a special school for children with disabilities or whether it accommodates both children with disabilities and children without disabilities. He has attended that school since February 2010 and the prisoner is described by the Principal as the main contact. It seems without doubt that the child is at the school between 10am to 2.30pm in the afternoon. The prisoner is responsible for transporting him to and from school because the subsidised transportation will not pick him up from Rosehill, which is outside a certain distance as his mother attested today. Obviously the child's education would be, one would have thought, rudimentary given his intellectual disabilities. I will come back to the evidence of the mother given today and contained within a letter that she wrote that was tendered last week shortly.
The prisoner himself has produced some evidence of some physical injuries, some injury to his Achilles tendon and his shoulder as well as a bicep tendon, but nothing in that evidence is of significance or requiring particularly urgent or substantial treatment.
A psychologist's report was tendered that reveals that so far as it can be accepted, without the prisoner's history provided to the psychologist being tested, the prisoner was in an "anxious and depressed" condition. My understanding of the report is that at the moment the assessment of the psychologist is based upon the fact that this is reactive to the prisoner's current forensic and domestic situation. There is no evidence produced either in the history given by the prisoner or in contemporaneous records, or in any way objectively discernible from other sources, that any mental health issues, if they may be described as that, are causally connected to the offending. That is that there was an existing mental illness or disability of any substance causally connected to the offending. I heard no submission that matters that are discussed for example by the then learned judge of the Common Law Division Justice McClellan in the decision of De La Rosa [2010] NSWCCA 194 particularly at [177]-[178] arose for consideration in this matter.
I accept of course that over the period of the offending the prisoner's younger child's health would have been a matter of significant concern to the prisoner. But it has not been submitted nor is there evidence to suggest that the circumstances of the child were a motivating factor for the prisoner to commit the offending with which I am concerned. In any event the prisoner's interests in racehorses over the period of time shows the capacity of the prisoner to be distracted at that period of time from the circumstances of his child. In fact the execution of the offences in their calculated and clever way reflect quite clearly not only a person who was familiar with the operation of the tax system but reflected a person with a clear mind, not a person either permanently or temporarily affected by mental illness or disability.
His mother has written a reference supporting her son confirming his care for the children and stating that she is dependent upon him for physical support as she herself has a number of health issues. This matter is supported in the letter written by the prisoner's wife or ex-wife. I have got no direct information as to the medical conditions suffered by the mother. No evidence has been directly produced in relation to that matter and I have no evidence as to her age having regard to the age of the prisoner that he, as I understand it, being born in 1962, I would expect she is a lady in her late 70s or perhaps her early to mid 80s. She does not provide any information as to any other siblings of the prisoner that may have been able to assist her. In any event, although I note what she has said about the support for her by her son which I recognise, nothing she writes about suggests any "exceptional circumstances" as that aspect of consideration of third parties has been understood in sentencing pursuant to Commonwealth law.
There is a reference from a solicitor who describes the prisoner as "loyal" with dependent children and a "frail mother". The prisoner is described by the solicitor as "courteous". He is also described as "friendly and co-operative". But he asserts in relation to the history of the prisoner's offending, or his failure in business ventures, to be due to his "inability to engage with the right business associates or to build the right connections". That is not the character of the offending with which I am concerned here.
His landlord, who apparently is friends with the prisoner and his family, observes a very close family bond, strong support by the prisoner for his children and daily care of his younger child to whom he is responsible about which there is no dispute.
The oral evidence from the wife of the prisoner was absent when the matter I thought was closed. In October this matter came with another Commonwealth sentencing matter in the context of having to try and deal with a subpoena argument in a trial that was supposed to take two days and a requirement for me to trawl through thousands and thousands of pages of medical material. So I heard the evidence and the submissions in relation to this matter and the other Commonwealth matter on the penultimate date before I was to go on two weeks leave and I adjourned the matter to when I came back from leave with a view to sentencing the prisoner. When the matter came back before me I was unable to sentence the prisoner on the Friday morning I had set aside due to trial commitments. No mention had been made about the need for further evidence to be called. I had actually raised with the parties whether the wife of the prisoner was able to assist the prisoner if he were to be imprisoned but nothing was said. I tried to re-list the matter for sentence on 28 November which was the date that suited me best. I was told the prisoner's son required some medical procedure on that date. I adjourned the matter thus to 5 December and then without any more notice than 24 hours, that is on the Friday before the sentence was to proceed at 9.30 on the Monday, my Associate received a letter indicating that the letter that had been obtained from the prisoner's wife the Crown would not permit to be admitted into evidence, or certainly would oppose that course, unless it had the right to cross-examine the deponent. The letter to my mind was admissible, but what weight one would give it without the author of the letter being available to authenticate it and also to be cross-examined upon it questionable. So I again adjourned the matter to this morning to permit Ms Farzana St James, the wife or ex-wife of the prisoner, to be examined by the Crown.
So far as her evidence is concerned, including what is contained within the letter, she sets out history in relation to her children and her relation to the prisoner, again uncontroversial, and confirms the fact that the prisoner is the primary carer of the children. The prisoner has been the primary carer of Jarrod effectively since 2009. The significance of 2009 is that the prisoner was prosecuted by the ATO in that year in relation to matters concerning his conduct of his business affairs. As I understand it steps were taken to make him and his wife bankrupt by the Australian Tax Office and effectively the prisoner has not worked since that date. The wife, that is Ms St James, went out to work and from 2009 the prisoner became the principal carer of the child. She states that she suffered a great deal from dealing with the condition of her younger child and then the stress of dealing with the Australian Tax Office which made her bankrupt because, as I understand it, her mutual or common tax interests are with the prisoner. Ultimately, for her mental health, she left the relationship with the prisoner in August 2015, amongst other reasons to obtain medical treatment and to recover.
She confirmed the prisoner as the primary carer of both children since she started to work full-time in a sexual assault counselling unit at Royal Prince Alfred Hospital. As the prisoner is a full-time carer and receives some carer's benefit she is now discharged from bankruptcy but still supports the prisoner and the children financially. She earns, as I understood her evidence today of which I do not have a transcript, net $1900 per fortnight. She is paying $700 per fortnight for rent, for accommodation which is separate from where the prisoner lives with the children in Rosehill. She confirms in her written statement and in her oral evidence that Jarrod's needs are very complex, demanding and incessant. This is making allowance for the fact of his presence at a special school five days a week for that period of time between 10am and 2.30pm. She said that since her separation from the family unit her health has improved. She observes the prisoner is a devoted father and that the child Jarrod is obviously very highly dependent upon him, not just physically for the aid that he can provide to the child but emotionally. She describes the impact of a sentence of imprisonment upon the prisoner and her family as potentially "tremendous and devastating".
One option if the prisoner is incarcerated full-time is that she would be required to care for Jarrod but I accept that this would require her to leave her paid employment. Her wages at the present time are vital, not only for her own survival given the fact she lives separately from the prisoner and of course the bankruptcy has taken away whatever assets she had. But she also requires money to supplement the support that is provided to Jarrod, the disabled child, from an organisation called 'Enable' which provides, amongst other things, formula, nappies and feeding peripherals. She states, and I accept, that nobody else can look after Jarrod within the family other than herself and the prisoner and she is not able to do that. She says that the imprisonment of the prisoner would weigh upon Jarrod as well as her older son Jett.
Her evidence in cross-examination to my mind revealed her to be a truthful person. I thought she was an impressive witness. She confirmed in her oral evidence with even greater strength than in her statement it would seem some of the matters she asserted in that document, that she cannot work and care for Jarrod, that the cost to the community should she leave work would be great and that not only has she got financial difficulties in assuming care for Jarrod but matters relating to her mental health may be affected.
When pressed quite properly in relation to this aspect of the matter by the learned Crown Prosecutor that now appears she was unable to say whether she could or would care for the child should the prisoner be imprisoned. I accept, as I have said, all this to be true. I propose to deal with the substantial submissions of the parties in due course but I must confess I was somewhat intrigued that the learned Crown Prosecutor today seemed to step back from a concession that was made very early in the piece last week that in the context of the authorities discussing the consideration of the interests of third parties that the situation in this matter was "exceptional". The mother's evidence has confirmed that to be so and in fairness to the Crown Prosecutor now appearing before me either he was unaware of that concession previously made when the evidence may have been seen as a little weaker than what it is at the present time. Perhaps he did not have an appreciation of the effect of the evidence. At the moment, the only realistic option for the care of the child lays with the father, the mother may not be able to take up the care of the child and certainly not straight away and certainly not at her current address because the child would have difficult negotiating steps and the like in her current premises. The prisoner's premises at Rosehill where the children now live apparently is a one level dwelling. If the prisoner is gaoled, she has told me she does not know what she will do. I can see clearly that she is caught in a terrible situation and it seems though when one is talking about victims of the prisoner's criminal conduct not only do we have the taxpayers, or the Australian Tax Office, but we also have the impact upon the prisoner's children and, of course, the prisoner's wife.
There were some suggestions made that she could take some leave be it paid or unpaid to address the issues of care but I am satisfied that if she was to take leave ultimately it would be unpaid leave or there would be such little leave for which she could be paid but most of the time that she would be responsible for the care of the child she would have no means of income unless, of course, she, herself, was given a carer's pension in which case she would have to abandon her employment.
Other evidence tendered in the defence case related to the prisoner's cooperation with investigations conducted by the Police Integrity Commission between 2009 and 2011. The prisoner gave evidence before the Commission and participated in interviews.
With regard to the submissions of counsel for the prisoner they were confined really to the first day the matter came before me, I have received no supplementary submissions. There were no written submissions on behalf of the prisoner. It was submitted there should be a discount for the plea of guilty to recognise its facilitation of the course of justice and I agree with that. It was pointed out there was substantial delay between the offending and the charging of the prisoner which is correct. It was pointed out that during that period of time there was no further offending, a break of something in the order from the time of the last offending now seven years.
He submitted that the circumstances of the child Jarrod create exceptional circumstances, which I accept is true. I was also drawn to the cooperation with investigative authorities that I have already pointed out. It was conceded there was an element of a breach of trust, there was some resistance for relevant reparation orders that the Court should consider a sentence other than full time imprisonment.
I should point out in the context of those submissions made by the prisoner as I earlier briefly mentioned, I have the prisoner's criminal history available to me, it is relevant in several ways. The prisoner first appeared in a Court in 1985 charged with a drink driving matter but significantly in 1994 was convicted in the Sydney District Court on 16 December of that year of an offence of supplying a commercial quantity of a prohibited drug. He was sentenced to a minimum term of 15 months with an additional term of eight months under the then State provisions relating to the fixing of sentences. This is why I cannot understand that there be no record of his supervision unless he, of course, he declined to be released to parole. There are, however, two particular separate offences that the prisoner has been convicted of that have some connection with the matters with which I am concerned. The prisoner was convicted at the Parramatta Magistrates Court on 3 September 2008 of acting as an unregistered tax agent. I have been provided with other information in relation to that offending. The particular section under which he was prosecuted, s 251L Income Tax Assessment Act 1936, is summarised as "registered agent not to charge fees". The particulars reveal five offences under that Act in the period of time between 2003 and 2006, that is, predating and contemporaneous with the early part of the offending with which I am concerned.
With regard to the other convictions, recorded at Fairfield Local Court, the prisoner was, as I understand it, on 2 November 2010 convicted of two counts of fraudulently omitted to account for money. These offences were committed between 3 September 2008 and 9 September 2008. They therefore coincide with four of the acts particularised covered by the indictment and four of the matters identified in the Form. For that offending he was placed on a good behaviour bond for three years with an intervention plan. Identified also of his traffic record which does not assist me very much and as I said, I have the facts in relation to the failure to account for moneys provided. The total sum of money, I point out, is in excess of $10,760.
The Crown's oral submissions, apart from the submissions made today on the discrete issue of what weight to be given to the wife's evidence which I have obviously taken into account in the findings I have previously made, were firstly to concede that the circumstances of the younger child were exceptional as I have noted. It was submitted however that the offending with which I am concerned was committed over an extended period of time and had a degree of sophistication. It involved a breach of trust and was an offence of greed, rather than need. The prisoner was not part of a "wider scheme" of corruption involving other tax agents or accountants, it was not a "corrupted workplace" as may have been suggested by the prisoner in the pre-sentence report, the fact that he kept money for himself reflected that.
The total fraud of the ATO was "significant" and in that regard it was noted, of course, that the fraud on the ATO rendered benefit both to the prisoner and the taxpayers. As I said in submission it was said that the liability of the taxpayers themselves arose out of their "negligence" although their treatment by the ATO was "somewhat unfair".
In relation to the victim impact statements which most concern me in the material in the Crown case, learned counsel for the prisoner noted that some of the stress suffered by the victims on their own accounts may have been more directly concerned by their treatment by the Australian Tax Office, but the prisoner had created the situation which led to that which is undoubtedly true. It was not submitted that the "unregistered tax agent" offences could be regarded as "prior offences" within the meaning of those words but I have noted their contemporaneity with some of the offending with which I am concerned.
If I could just pause for a moment to deal with the victim impact statements. They were, somewhat surprisingly, not objected to by counsel for the prisoner. The oral submissions of the Crown Prosecutor and the written submissions made clear that whilst there now is power for courts to receive the victim impact statements in Commonwealth matters, as I would understand it in relation to matters of this type, I should receive this material, notwithstanding the existing statutory basis, in respect of these proceedings it under some vaguely defined "common law" powers. Each of the people that have prepared victim impact statements have discussed the loss to them financially and the impact upon them of matters either directly or indirectly related to the prisoner's conduct, much of their complaints however seem to be directed at the way they perceive they have been treated by the Australian Tax Office.
As I said whilst many of the people involved in this scheme were characterised as "working class" people, some of the people providing victim impact statements refer to themselves earning "excellent money" and otherwise having a comfortable existence until they were required to pay back not only the money that had been improperly paid to them, or claimed on their behalf, but having regard to what appear to be very substantial claims for interest.
I raised however with the barrister who appeared for the Crown my concern about some of the claims in these victim impact statements of the conduct of the prisoner's conduct. One such deponent claims that his marriage broke down because of the conduct of the prisoner. Without more I could not accept that to be true. But the matter reached a completely absurd level when I was required to read a victim impact statement where the person involved, trying to relate to the Court "the impact that this crime has had on me", wrote about an accident that the person had had in the UK and that her "poor grandmother was very ill in that she had had a stroke and an aneurism." She is in this context referring to the Australian Tax Office endeavouring to recover the moneys. She went on to write about a freak accident that she had having "no idea" how or what had happened, about her being injured sleep walking, smashing her skull, arthritis in her foot and so it goes on.
I invited the learned Crown Prosecutor to look at the document and tell me, which he could not do adequately, what in the document had any relationship with the criminal offending of the prisoner. Why this was not objected to I do not know. I do not know why it was given to me in the first place in the form that it was. I am told that there is an officer of the Commonwealth Director of Public Prosecutions who advises people as to what they should put in victim impact statements. I have been practising in the criminal law I guess for just on 40 years and victim impact statements have been a part of the criminal law in New South Wales for a good part of 30 years. I can assure the representatives of the Commonwealth that I have seen many, many, many hundreds of them, and that I am well aware of the practice of the State ensuring that the documents that are presented to the Court as victim impact statements are truly relevant to the proceedings. Of course, given the fact that they are permitted to be tendered without being cross examined upon and the like, there is an obligation on the prosecuting authority to ensure that what material is sought to be tendered reflects relevantly upon the matters requiring consideration by the Court.
The Crown Prosecutor did not see fit to withdraw any of the material. I take it into account so far as some of the material reflects upon what can clearly be related to the prisoner's offending. But that material which is quite clearly unrelated to this prisoner and could never be ascribed to the prisoner's offending behaviour I have ignored.
The Crown's written submissions do provide some useful material and a statement of the number of the statutory and other principles I am required to take into account. The Crown's starting point, in the context of the consideration of the fact that the offence on indictment carries a maximum penalty of ten years imprisonment and each of the matters on the Form taken into account in the appropriate way reflect offending under the same statutory provision, is that the only appropriate sentence is one of full time custody, noting the objecting seriousness of the prisoner's conduct the need for specific deterrence, the need for specific deterrence, the need for general deterrence and what are claimed to be comparable sentences. Ultimately I concluded that is correct in this particular matter.
The prisoner is to be sentenced in accordance with Pt 1B of the Act. The Court must impose a sentence that is of the severity appropriate in all the circumstances of the matter (s 16A(1) of the Act). Of course s 17A of the Act provides that a Court shall not pass a sentence of imprisonment in respect of the Federal offender unless the Court, having considered all other available sentences is satisfied that no other sentence is appropriate in the circumstances. I am drawn to other relevant statutory provisions relating to the imposition of relevant penalties and the like.
In respect of the fixing of the minimum term where a term of imprisonment is to be imposed, I note what the High Court has said in Hili v R and Jones v R [2010] HCA 45, in the context of a number of other authorities including the earlier decision of Bugmy v R (1990) 169 CLR 525 and Power v The Queen, an even earlier judgment from 1974, ((1974) 131 CLR 623).
I note in these submissions (as identically appear in the written submissions that were handed up the same day in another appeal and which seem to appear in every set of written submissions tendered by the Commonwealth reflecting what seems to me to be more cut and pasting rather than applying one's mind to what appropriate submissions should be put to the Court) that at para 17 there is extensive citing of judgments such as Bernier, Stitt and Behar - a case in which I appeared in the Court of Criminal Appeal - which appear to have no particular relevance to the fixing of minimum terms in the context of the principles enunciated by the High Court to which I have referred.
With regard to the fixing of the minimum term of this matter, I have borne in mind the need in this particular matter for the offender to have professional assistance to assist him to adjust to community living in the future, and I have borne in mind in fixing the minimum sentence the context of the appropriate head sentence to be imposed, bearing in mind of course I am required to take into account the matters on the Form 1 and the various factors that need to be considered under s 16A(2) of the Act.
With regard to those various factors, picking up from the written submissions of the Crown, the Crown points to what it describes as "blatant dishonesty", "premeditation" and "degree of sophistication" which is self evident from the facts.
There is one matter, however, that concerns me. This is the claim by the Crown that these offences "involved an abuse of trust given his professional position as an accountant". It is correct that he has taken advantage of his clients and his professional colleagues and the Australian Tax Office, but in terms of considering the issue of breach of trust there are always to be seen when dealing with such matters degrees of such breach.
I come back to the matter I pointed out from the facts tendered. The offender may have held himself out to be an "accountant" but he was not a registered accountant. He may have held himself out to be a "tax agent" but he was not a tax agent. The Australian Tax Office was not dependent upon his honesty and integrity in the same way the Australian Tax Office was, for example, dependent upon Mr Cassaniti, a Certified Public Accountant and a registered tax agent. I pointed out earlier, although it is not made clear in the agreed facts, that many of the tax returns in this matter were sent by the accused by post, presumably on the basis that they were being lodged by the tax payers themselves, although it is reflected in the facts that he took advantage of some of his colleagues to use their status as registered tax agents to enable some tax returns to be lodged electronically. As I have said, trust of course is very much a matter of degree and the significance of the breach of trust will be seen in a range of ways and manifestations, not in any order of importance of course, but firstly by the character of the position of the person in the community, the trust reposed in a particular person by reason of their occupation, either by the Australian Tax Office or the client, and other matters.
One of the judgments often cited by the Commonwealth Crown as setting out some general principles in relation to the effect upon victims of frauds, and the character of fraud, is the decision of Hawkins (1989) 45 A Crim R 430. It is a decision that one in fact never fails to see referred to in the Commonwealth written submissions in sentencing for such matters. Of course, whilst the general principles in Hawkins have relevance in such matters as identified by the Crown, recently the Court of Criminal Appeal in fact cited Hawkins again with approval in a particular context, the facts of the matter are that Mr David Hawkins was a solicitor. He defrauded his clients of over $7 million. So when one is considering, for example, the principles in Hawkins in the context of loss to others and breaches of trust, one can see that where a solicitor steals from his clients in various ways $7 million a more significant breach of trust might be seen that in this particular matter. Although the matters admitted by the offender do involve a degree of breach of trust.
I accept in terms of assessing the circumstances of the offending, there was significant loss to the Commonwealth, as I have said just over $215,000. I accept that there was a character of "self-enrichment", although I note of the $215,000 defrauded from the Commonwealth of that less than half, that is $99,332, was on the facts available to me obtained by the offender.
I note pursuant to s 16A(2) other offences to be taken into account. That is the matters on the Commonwealth Form pursuant to s 16BA of the Act. The matters on a Form in this situation are really no different from matters considered on a Form 1 in sentencing for State offences. There is a guideline judgement, although I appreciate Commonwealth matters are not bound by guidelines judgments per se, from 2002 dealing with the treatment of matters on a Form 1 which sets out general principles that seem to me to have just as equal applicability in sentencing in Commonwealth matters. That is taking into account matters on a Form 1 enables a person to be sentenced not in an artificial way but in the true context of the offending behaviour. True it is the Court is concentrating on the appropriate sentence for the principal offence, as it is described under State Law, but which could be a description of the matter on the indictment in this matter. But that having been said one is taking into account matters on a Form, particularly offending of a similar character, it will require greater weight to be given to personal deterrence, greater weight being given to punishment, consideration of the totality and the criminality and of course it would mean sometimes a substantial increase upon what might have otherwise been the appropriate sentence for the principal offence if it had stood alone without regard to the matters on the Form and, of course, by reference to the Act s 16A(2)(c) which notes that the offending for the principal offence was part of a course of conduct reflected in the particulars set out as an attachment to the indictment.
I have taken into account the personal circumstances of the victims to the extent that it is reasonable to do so based upon a great deal of very unsatisfactory information within the victim impact statements. I still cannot believe that a barrister representing the independent bar could stand up and not concede the irrelevance of some of the material that was presented before me. It seems to me, with respect, that a great deal more attention to detail should have been given to ensure that the material to be presented against this offender was more fairly presented than it was in this particular case. I give some more examples of that in a moment. I have noted the loss to the Commonwealth and particularly the material not only from the facts but on the Form.
So far as the contrition of the offender is concerned, the offender has made no reparation in respect of the funds he fraudulently obtained. That is put by the Crown as a relevant matter. It seems to me, with respect, that is not entirely fair, if I be so bold as to say so. He has pleaded guilty. He has expressed regret for his conduct. Whether that is genuine or not is a more difficult matter to test or conclude. But the payment of reparation is one matter that may be considered. I bear in mind as I would understand the chronology that he was made bankrupt by the ATO, so his capacity to pay reparation of course is very limited indeed.
I have taken into account that he has pleaded guilty to the charge in recognition as facilitating the course of justice and the fact of the plea. In that matter there are some extensive submissions made by the Crown. Again I have seen them many times before in other cases. There is nothing particularly original about them and they cite a number of cases including Cameron distinguishing the Commonwealth situation from that set out in the 'guideline judgment' of Thomson and Houlton from 1999. In this particular aspect of the matter I draw the parties' attention to a decision of 10 October 2016 of Director of Public Prosecutions v Thomas and Wu [2016] VSCA 237. I am somewhat surprised the Commonwealth has not brought that to my attention. I learnt of it from other sources. In that particular matter the Victorian Court of Appeal considered in Commonwealth matters whether it was appropriate to recognise the "utilitarian benefit of the plea of guilty". In that particular matter there were a number of concessions made in the course of the argument of the matter that I need not dwell upon, but I particularly refer to paragraphs [5]-[7]. Paragraph 7 sets out a summary of the Victorian Court of Appeal's findings. I appreciate of course that this was the Victorian Court of Appeal and the finding it makes does not accord with a number of judgments of the New South Wales Court of Criminal Appeal.
What the judgment does point out, however, in the context of the way the case was argued before it by learned Senior Counsel representing the Commonwealth Director of Public Prosecutions, is that in recognising the fact of a plea of guilty the Court held that a sentencing court was required to take into account the "objective utilitarian benefit of the plea of guilty". The Court pointed out that two particular judgments, that is Tyler and Cameron, were cases that did not lend credence to the argument that has been regularly put that the utilitarian benefit of a plea of guilty could not be taken into account in Commonwealth sentencing. It was pointed out that Cameron was not even concerned with Commonwealth legislation and particularly s 16A(2)(g). In the decision of Tyler there was no reference to s 16A(2)(g) as well. They pointed out of course that ultimately a discount for the utilitarian benefit of the plea of guilty, although taking into account different considerations, was likely to be much the same as the discount for facilitating the course of justice. It was pointed out at [79]:
"A willingness to facilitate or cooperate in the course of justice is manifested by an offender's plea of guilty. The plea by its very nature constitutes an acknowledgement that the charge has been rightly laid and evidences a preparedness by the offender to relinquish his or her right to contest the charges and to submit to punishment. The offender's willingness to follow that course often described in the authorities as 'cooperation' vindicates the course of justice, saves the community the expense of a trial and releases witnesses from the ordeal of a trial. These considerations provide the primary basis for the discount for a plea of guilty."
Their Honours went on to say at [7h]:
"As a willingness to cooperate with the course of justice is evidenced by the fact of the plea, the discount continues to be allowed regardless of the presence of motives of self-interest or the absence of remorse. Ordinarily there will be no material difference between the discount to be allowed for a willingness to facilitate the course of justice and the objective utilitarian value of the plea."
Of course, I am bound by New South Wales authority and thus I recognise the discount in the narrow matrix of the "facilitation of the course of justice".
With regard to the degree to which the offender has cooperated with law enforcement agencies (s 16A(2)(h), I have already referred to that matter. It was the case the offender did offer some cooperation to the ATO which was not timely and was not taken up by the ATO when that offer was made on 17 February 2016. But I have already noted the considerable cooperation, admittedly somewhat unrelated, to the Police Integrity Commission.
I am required to have regard to the deterrent effect of the sentence or order under consideration may have on the offender and the deterrent effect that any sentence or order under consideration may have on other persons; in other words, general and personal deterrence, which I do. The authorities referred to by the Crown, the so called "comparative" cases, underline that fact, at least in terms of general principle (see s 16A(2)(j) (ja).
With regard to the fraud upon Commonwealth revenue, I note the observations of Hili v R (2010) 242 CLR 520, particularly at [63].
I have dealt with the issue of breach of trust. The facts of the matter are that the offender may have held himself out to provide tax advantages to clients, either directly or indirectly as would appear on the facts, but this offender was not relevantly a "professional". I am very mindful of the fact that the law has for good reason sought to be particularly stringent with those persons who do have proper professional responsibilities from qualifications and breach those responsibilities which give them a special place in the community. I am required to ensure that the offender is adequately punished for the offence to which he pleads guilty (s 16A(2)(k).
I have taken into account the comparative cases the Crown provided to me. They require some greater comment than simply what has been provided in the table and the submissions of counsel for the Commonwealth. I will deal with them in the order in which they appear in the table provided by the Commonwealth Director of Public Prosecutions.
Ly v R [2007] NSWCCA 28, the offender who was sentenced to six years with a non-parole period of four years obtained a personal benefit of $328,692.
He was an accountant and tax agent. He lodged false income tax returns in the names of clients who had since left Australia and also in respect of a company he controlled to obtain tax refunds for his own self enrichment. There are of course common features for this prisoner, save for the fact the prisoner was not a tax agent nor an accountant, the sum of money which was much greater. The prisoner in that matter received a greater discount, 25%. He had no prior convictions and he had had demonstrated remorse. His reasons for committing the crimes were to satiate a gambling addiction.
That having been said, bearing in mind he faced different charges but with the same maximum penalty being offences not only under the Criminal Code with which I am concerned but s 29D Crimes Act 1914, he faced 55 charges. There were no exceptional circumstances relating to third parties. There was no "cooperation".
Then there is the decision of Pipes [2004] NSW CCA 351. There the personal benefit obtained was $155,644. In this matter the appellant or the prisoner was an employee of the Commonwealth. There was no past cooperation, there was no exceptional circumstances - again, gambling was the reason for the offending and like this prisoner it was an offence of greed. There was an early plea of guilty, he had no prior convictions. There was payment of reparation of the whole amount.
This employee at the Department of Veterans Affairs used not only his personal knowledge of the operation of the Department but his position in the Department to commit the fraud. This prisoner had worked in the Australian Tax Office and true it must be that he had knowledge of the workings of the Australian Tax Office but he was, 10 years removed from that employment, perhaps greater. He was much more distant from the situation of trust that is reposed in employees of the Commonwealth Government who use their position to enrich themselves.
Quecher was another example of an employee of a Commonwealth instrumentality using his personal circumstances to defraud the Commonwealth. He obtained $156,000. He committed the frauds over four years, five months. Like Pipes he was an "insider". It was pointed out when I read the judgment that he had "oversight over the integrity of Medicare payments" a position not required of this particular prisoner.
I point to Pipes and Quecher the learned Crown Prosecutor appearing on the first occasion the matter came before me made the point to me that this prisoner's fraud was greater than the amounts of those two offenders. That is true in the objective sense, but the personal gain of this prisoner was in fact substantially less than those offenders.
I was taken to Giourtalis, an unreported judgment of a colleague of mine in this Court from 2011. This involved 57 counts, again contrary to s 29D, which carried at the time the same maximum penalty as the offences with which I am concerned. That prisoner was sentenced to nine years imprisonment with six years, three months non-parole period. But that was on a plea of 'not guilty'.
It involved a finding for an accountant that was "substantial breach of trust". He practiced deceptions very similar to this prisoner and obtained for himself something in the order of $554,825. No cooperation, no exceptional circumstances and was "manipulating people who were weak and vulnerable". Many of the people that he manipulated had little or no English. Quite a different situation than this case.
Then we came to the case of Cassaniti. I was informed five years with a non-parole period of four years. When I read the judgment that had been provided by the Commonwealth Director of Public Prosecutions it had nothing at all do with sentence, it was the conviction appeal. It does not even have details of the sentence in it. It is reported in the New South Wales Court of Criminal Appeal [2007] NSWCCA 66. No contrition, no cooperation, no exceptional circumstances, found guilty after a trial, obtaining for himself a benefit of $357,164, although some of that may have been in league with some of his clients.
So when we come to the comparable cases, whilst there are some common elements in each of them they provide little in the way of assistance. There is to be noted the decision of the Court of Criminal Appeal from 2012 of RCW2, where a judge of the District Court was criticised for fixating on one case or a couple of cases as providing some comparison with the case at bar. One needs a far greater range of cases than provided to me here, other than those that might provide some general principles of sentencing, to be able to with confidence find something sufficiently comparable to provide guidance for sentencing in relation to this particular case. In any event this matter has a number of unusual features.
We come now to s 16A(2)(m), his character, antecedents, age, means, physical and mental condition. I have referred to the details of his criminal history and his personal circumstances. I note what the Crown has said about the more recent convictions which primarily, although not altogether, post-date the offending with which I am concerned.
It is correct to say however, as the Crown submits, that his criminal history, particularly his conviction in 1994, does disqualify him from any special leniency. It is to be pointed out, of course, that many of the offenders in the supposedly comparable cases were people that came forward as people of good character. Of course, many of them were people holding themselves out to be - and were - accountants and registered tax agents. It would be a requisite condition of a registered tax agent that they be a person of good character.
I have taken into account the prisoner's age. He, as I understand it, is now 54 years of age. I have taken into account his health. As I said, there is nothing particularly significant about his health conditions. There is no particular evidence before me that he committed the offences with which I am concerned because of any gambling addiction. It is not submitted as such. There is some reference to the ownership or part ownership of racehorses but nothing particular in that regard.
Of course, we come back to the matter that has been at the heart of the whole proceedings and which has taken up much of the Court's time, both in this judgment and in the hearing of evidence; the probable affect that any sentence would have on the prisoner's family or dependents, pursuant to s 16A(2)(p). The circumstances as conceded by the Crown and certainly open to be found by the Court are that the circumstances of the child Jarrod particularly are truly exceptional.
But taking that into account properly as a mitigating factor relevant to both the assessment of the head sentence and the fixing of the minimum term that I propose, in my view, in the context of the prisoner's criminal history and the character of the offending and the other matters that are relevant to the assessment of the objective seriousness of the offending, the ultimately sentence that must be imposed in this matter is one that would not permit the Court to consider the alternatives that are available under Commonwealth law of fixing of a term of imprisonment may be served either by way of suspension or alternatively by intensive correction order.
Thus it has come to pass that I have concluded applying a discount in a combined sense of 20% to what I regard as the appropriate starting point of the sentence for the principal offence, taking into account the matters on the Form, the starting point being three years and three months imprisonment, that I should impose a sentence of two years and seven months and fix a minimum term in accordance with the terms of the Commonwealth legislation of 12 months' imprisonment in due course.
HIS HONOUR: Because I believe there are certain arrangements that need to be made for the child. That brings us to the issue of when that order can be made and the appropriate reparation order made. I can do it Thursday, can do it Friday, can do it next February. Mr Wasilenia, I'm not having a negotiation here. Mr Wasilenia, if I could have your undivided attention. This is not a negotiation.
WASILENIA: I'm not suggesting it is, your Honour.
HIS HONOUR: It's a matter of trying to give effect to the order that I must make in the context of the reality of a very difficult situation that doesn't seem to - the Crown's position is it is what it is and so get on with it, everyone will have to make their own arrangements, and I understand that because ultimately that's true but the question is what is the appropriate thing I should do in terms of making the order. Shall I make the order on Thursday or make the order on Friday or bearing in mind the mother of the child can't get out of her rented accommodation before February of next year make in February of next year? I'm not doing this for your client by the way--
WASILENIA: I know.
HIS HONOUR: I'm doing this only for the child, that's all. So that's where I need some assistance. What do you say, Mr Crown? I'll hear from you first.
HOWELL: Your Honour, my submission is that this is entirely a matter for the Court. I wouldn't be heard against any of the three proposals.
HIS HONOUR: But do you understand why I'm looking at it this way--
HOWELL: Yes, absolutely.
HIS HONOUR: I'm very mindful, I've had close association in a range of ways with severely handicapped children. I'm very mindful of alternative arrangements that can be made for the care of very severely handicapped children and I know two children in particular more severely handicapped than this child where alternative arrangements have had to be made for a range of reasons but at the same time, as much as this case has taken far too long to be completed, I am stuck with the situation as the evidence presents itself today. I'm not trying to put off the punishment of the prisoner because he'll go to gaol subject to the rights of appeal of the defence and the Crown of course but the longer he puts it off the longer it'll be before he gets of gaol, that's just the reality of the situation.
HIS HONOUR: I'm prepared to provide this indulgence but not that late. Mr Crown, I may consult with you, what do you say about 28 February?
HOWELL: Your Honour, I don't want to be seen to be pushing too hard. My submission is that a date in February, perhaps not the last day in February, but a date in February at your Honour's convenience.
HIS HONOUR: Friday 24 February, Mr Wasilenia.
WASILENIA: Thank you, your Honour.
HIS HONOUR: That's as late as I can do it. So the matter is adjourned to Friday 24 February 2017 at 9.30am. I'll have to ask your client directly, I don't like speaking directly to people when they're legally represented but, Mr St James, do you agree to these variations to your bail conditions requiring you to appear on Friday 24 February 2017 at 9.30am? Firstly, you're not to change address without 48 hours prior notice.
OFFENDER: I agree, your Honour.
HIS HONOUR: No, one thing at a time. Prior notice to Ms Cathy Bullock of the ATO Sydney office, do you agree to that?
OFFENDER: Yes, I agree.
HIS HONOUR: Secondly, you are not to apply for an Australian, Fijian or other passport.
OFFENDER: I agree, your Honour.
HIS HONOUR: Thirdly, you are not to go within 500 metres of a point of international departure.
OFFENDER: I agree, your Honour.
HIS HONOUR: And fourthly, you are to report to the officer-in-charge Granville Police Station each Monday and Friday between 6am and 6pm, commencing from Friday 16 December 2016.
OFFENDER: I agree, your Honour.
HIS HONOUR: And do you further agree that if you fail to comply - well, I'll just put it on notice that if you fail to comply with any of the conditions of bail your bail will be revoked, a warrant issued for your arrest.
OFFENDER: Yes, your Honour.
ADJOURNED TO FRIDAY 24 FEBRUARY 2017 AT 9.30AM
[3]
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Decision last updated: 14 June 2017