R v To & Do; ex parte Cth DPP [1998] QCA 106

The sentence imposed on To was imprisonment for three years, with an order for his release after serving nine months upon his giving a recognizance in the sum of $1,000 to be of good behaviour for three years. In Do's case the sentence was also three years, with an order for release after serving four months on providing a similar recognizance.

The total amount of which the Commonwealth was defrauded in all these offences was $158,458.52, comprising tax and Medicare levy of $59,436.95, social security payments of $47,805.40 and Austudy payments of $51,216.17. The offences were committed in Brisbane over a period of approximately six years between 17 June 1988 and 27 February 1995. The offences arose out of the failure by To to disclose income of $212,900 and by Do of income of $109,466. Not much is added to an understanding of the offences or their seriousness by detailing the way in which the offences were committed or how they came to light. It is enough to say that, in perpetrating the frauds, the two respondents used names of other people in which to earn or conceal income they themselves had earned. They provided false information to substantiate large deductions; falsely attributed income to other taxpayers, and failed to declare income. They obtained sickness and other benefits from the Department of Social Security by falsely stating their true income and by failing to declare income received, and they also wrongly claimed and received payments of family allowance. For the purpose of obtaining Austudy payments, they gave false information about their annual incomes. The offences, which were committed over a period of six years, cost the Commonwealth a great deal of money in the form of various benefits paid by three different departments of government.

The respondents pleaded guilty, if somewhat belatedly, and so saved a substantial amount of public money. Of the total of $158,458.52 obtained by the two respondents, reparation to the extent of $67,000 has been made, but only after a cost to the Commonwealth of recovering it that amounted to $39,000, leaving a balance of $91,000 still unaccounted and unprovided for. An aggravating circumstance of some seriousness is that, when faced with investigation, they immediately set about placing their assets beyond reach. Both of them became bankrupt on their own applications. The Australian Taxation Office stands to recover the lion's share of their assets in bankruptcy, but that is because the cost of recovering those funds was met by the Office in expending the amount of $39,000 already mentioned.

The personal circumstances of the respondents are that they arrived in Australia from Vietnam in December 1983. They are aged respectively 43 and 44 years of age, and have four children, one of whom is a dependent son 12 years of age. They suffered considerable hardship in Vietnam and have proved to be industrious and hardworking in Australia. In her country of origin, Do worked for some time as an air traffic controller; but she was dismissed when it came to light that her father had been a senior army officer under the former regime. She has one previous conviction for failing to lodge tax returns, for which she was fined $300 in 1993.

The offences were serious and difficult to detect. They involved obtaining a large amount of money for which the motivation was not need but greed. The frauds were carried out and continued, in a calculating fashion, over a lengthy period, and they relied on an elaborate scheme or schemes of deception involving the use of false names and accounts. When discovered, they continued to try to avoid making reparation by attempting to conceal or dispose of their assets. In R. v. Nguyen & Phan [1997] 1 V.R. 386, 389, Brooking J.A. said:

"The seriousness of the offence of defrauding the Commonwealth of a large sum of money by not declaring assessable income has in the past, perhaps, not always been sufficiently reflected in the sentence passed. Those who systematically defraud the Revenue of a large sum over a substantial period must in general expect a substantial custodial sentence. The deterrent and punitive effects of that sentence should not be unduly diminished by allowing release from custody at an unduly early stage."

The scale, extent and duration of the offences committed in this instance went beyond that considered by the Court of Appeal of Victoria in that case, and they call for the imposition of a higher head sentence. The criminal character of acts of predation on schemes designed to help those in need is greatly exacerbated if it is perpetrated, as it was here, by persons who themselves are materially well off. In the proceedings below, it was suggested that the appropriate range was between three and five years imprisonment. The learned sentencing judge imposed a sentence, at the lowest end of that range, of only three years. In contrast, we consider that as a provisional starting point in considering this appeal by the Director a head sentence of not less than four years is appropriate in the circumstances of this case. In doing so, we give some weight to the "disappointment" factor mentioned in El Karhani (1990) 51 A.Crim.R. 123, 137-138, as operating in favour of the respondents.

The most difficult question is the extent to which a sentence of that duration should, in the circumstances disclosed here, be mitigated, either by fixing an early parole period or otherwise, in the case of these two respondents. As already mentioned, the judge ordered the release of To after he had served only nine months of that sentence. We consider such a recommendation to be too generous having regard to the seriousness of the offence, the timing of the plea, his efforts to obstruct recovery, and the absence until very late of any evidence of genuine remorse on his part. Arriving at the appropriate duration of the head sentence is complicated by the relevant provisions of the Crimes Act 1914 that were introduced by amendments in 1990 with a view to achieving a degree of certainty and uniformity in sentencing for federal offences. The amending provisions are superimposed on, and to some extent displace, particular statutory sentencing provisions applicable under State laws. Their impact has been considered, notably in Western Australia, in three reported cases of Oancea (1990) 51 A.Crim. R. 141; Paunovic (1990) 51 A.Crim.R. 174; and Sinclair (1990) 51 A.Crim.R. 418, which are of considerable assistance here. Subject to some adjustment to take account of local statutory provisions, much of what was said in the reasons for judgment in those decisions is applicable or capable of being applied in sentencing for federal offences in Queensland.

Deterrence, both general and in relation to the particular offender, remains a legitimate factor in sentencing for offences of this kind: see Sinclair, at 428-429; and also El Karhani (1990) 51 A.Crim.R. 123, 129-130 (C.A., N.S.W.). Section 19AA(1) of the Crimes Act begins by laying down a general principle, which is that a State law providing for remission of State sentences applies in the same way to the remission of a federal sentence in a State prison. In Queensland remission of sentences is provided for in the Corrective Services Regulations 1989 which, speaking generally, provide in ss.21 and 22 of Part III for a remission that is to be calculated at the rate of one third of the head sentence. See vol. 38 (1989) Queensland Statutory Instruments Reprint, at 660-662. Hence, if a sentence of imprisonment for four years were to be imposed here, the respondent To would be entitled pursuant to s.19AA(1) to expect remissions of at least that order of magnitude; that is, of 16 months in the case of a four year sentence. The parenthetical provision in s.19AA(1) specifically excepts from the operation of that subsection any provisions of State law relating to remission of non-parole periods of imprisonment: see Paunovic, at 177. Under the statutory sentencing regime in Queensland "non-parole period" is not an expression in widespread use; instead, there is a provision which is commonly treated as creating an early parole eligibility date: Corrective Services Act 1988, s. 166; and see R. v. Clemens (C.A. 404 of 1997), at p.4. The definition of "non-parole period" in s.16(1) of the Crimes Act is apt to include that part of a sentence of imprisonment in Queensland during which a prisoner is not to be released on parole, and in s.157(1) of the Penalties and Sentences Act 1992 there is an appropriately corresponding definition of the term "non-parole period". There is, however, no provision under the law of Queensland for remission of non-parole periods, so understood, under a sentence of imprisonment, with the consequence that the parenthetical exception in s.19AA(1) can be disregarded here. As appears from Oancea, at 151-152, the position is different in Western Australia.

Section 19AB(1) of the Crimes Act provides in para(b) of that subsection that, where a court imposes a federal sentence or sentences exceeding in aggregate three years, the court must either: (d) fix a non-parole period, or (e) make a recognizance release order. A four year sentence, such as is provisionally envisaged here is therefore within the scope of s.19AB(1). Mr Martin Q.C. submitted that a recognizance release order should be made in this instance. However, in Sinclair (1990) 51 A.Crim.R. 418, 432-433, which was a matter in some ways resembling this, the Court of Criminal Appeal of Western Australia considered that fixing a non-parole period was preferable. There Malcolm C.J. (with whom Kennedy and Pidgeon JJ. agreed) observed that the basis on which a minimum term or non-parole period of imprisonment should be arrived at is "to fix the minimum period of imprisonment which the interests of justice require to be served because the sentencing judge considers that the offence calls for such distinction ...". His Honour added that the non-parole period in respect of a sentence for a federal offence must be fixed on that basis and, inferentially, not by reference to the provisions of the State law on that subject.

In Queensland s.166(1)(d) of the Corrective Services Act operates in effect to fix eligibility for parole in the case of State sentences of imprisonment at the half-way mark; which would be two years in the case of a full four year sentence, unless the Community Corrections Board acting under s.166(4) otherwise determines, or the court acting under s.157(2) of the Penalties and Sentences Act 1992 otherwise recommends. As Kennedy J. pointed out in Oancea, at 149-150, one of the main purposes of the amendments in 1990 to the Crimes Act was to provide a separate regime for fixing federal non-parole periods rather than relying on applied State legislation. The Queensland statutory provisions therefore have no direct or other application to the process of fixing a non-parole period in sentencing for a federal offence like this. The process must be undertaken and carried out in accordance with general principles expressed in decisions such as Power v. The Queen [1974] HCA 26; (1974) 131 C.L.R. 623, 628, and Deakin v. The Queen [1984] HCA 31; (1984) 58 A.L.J.R. 367, at 367. See Oancea (1990) 51 A.Crim.R. 141, 152; and Paunovic (1990) 51 A.Crim.R. 174, 177. By force of s.19AF(1) the non-parole is not to exceed the duration of the head sentence after allowing under s.19AA(1) for remission provided for in Queensland under Part III of the Corrective Services Regulations 1989. See Paunovic, at 177. If, therefore, a sentence of imprisonment for four years were to be adopted here, the non-parole period would need to be fixed with reference to a head sentence reduced by remission of 16 months to one of 32 months, or two years and eight months. As previously stated, however, it should be arrived at without reference to the specific statutory predisposition in Queensland favouring a point which is not later than half way through the head sentence fixed by the sentencing judge. In the case of a federal offence a single non-parole period is mandatory under s.19AB(1)(d) of the Crimes Act unless a recognizance release order is made under s.19AB(1)(d), or the court under s.19AB(3) declines to act under either of those provisions.

As regards the respondent To, there are factors in his favour that suggest that the fixing of a non-parole period is appropriate; in particular, he has no record of prior convictions of any kind; he pleaded, even if belatedly, to the offences charged; he had a hard life in Vietnam before immigrating to Australia; and in this country he has proved himself to be hardworking and industrious. He also suffers from some illness and physical disabilities which are likely to make his stay in prison more onerous. On what is known of his character, it is rather unlikely that after undergoing imprisonment he will re-offend, either in this way or at all, in the future. The prison sentence he is undergoing will have been a sharp lesson to him. We were informed that he has been released to work with other prisoners in western Queensland, which appears to signify that he holds an open security rating under s.24 of the Corrective Service Regulations having the effect of slightly but progressively reducing his head sentence by way of further remission under that provision. Having regard to all these circumstances, and despite the serious features of his criminal conduct, it would be appropriate, if his head sentence were increased to four years, to fix the non-parole period in the case of his sentence at 18 months from the date on which he commenced to serve his sentence. Fixing a non-parole period of that duration will not transgress the express limitation imposed by s.19AF(1) of the Crimes Act.

The mitigating factors operating in favour of the respondent Do are considerably stronger than in the case of her husband. At the sentence hearing below, counsel for Mr To stated that his client's explicit instructions were that the idea of defrauding the Commonwealth was his alone; that he persuaded his wife to engage in the offences; and that he took full responsibility for what they had done and for the trouble he had got his wife into. She has significant medical problems, with the consequence that prison life may be expected to bear upon her more harshly than on many other fit and able prisoners of different cultural background. Her 12 year old son is still at school and, before being sentenced, she was also caring for her elderly father. Not surprisingly, her encounter with the revenue authorities and the impending prosecution and imprisonment induced in her a profound state of major depression. Under the existing order, she is due for release at the end of this month. In all these circumstances, we do not consider that it would be appropriate to extend the period of either the head sentence of three years imposed upon her, or to extend the non-parole period beyond that fixed in the court below, or otherwise to interfere with the sentence imposed.

The result is that, in the case of the respondent Anh Minh Thi Do, the Director's appeal will be dismissed. In the case of the respondent Chan Dinh To, the Director's appeal will be allowed; the sentence below set aside and in lieu a sentence of imprisonment for four years imposed. In respect of that sentence a non-parole period is fixed of 18 months commencing on 30 January 1998, which was when he was originally sentenced for these offences.

A copy of these reasons should be provided to each of the respondents with such explanation as may be needed to enable them to understand the orders made and the reasons for making them.