2 WHEELER JA: The appellant appeals his sentence of a total of 9 years' imprisonment with a 41/2-year non-parole period imposed in respect of 184 offences of defrauding the Commissioner of Taxation. The offences were committed over a period in excess of eight years and the benefit to the appellant exceeded $1,500,000. The sentence was structured by the imposition of terms of imprisonment ranging between 1 and 31/2 years for each of those 184 offences, the length of the term depending upon the amount obtained by the appellant in each case. The amounts in each count ranged from a little over $2000 to something over $30,000. The maximum penalty in respect of each of these offences is 10 years' imprisonment.

3 The background facts to these offences were as follows. The appellant was a registered tax agent. He amended clients' tax returns without their knowledge, in order to fraudulently claim additional rebates to which they were not entitled, which he kept for himself. The scheme involved targeting particular clients with incomes such that a high refund could be generated and who were not likely to question the appellant. The appellant acknowledged that he had targeted, in particular, people in the mining sector because of their high incomes and because they were people who were unlikely to check the returns provided that the "bottom line" was satisfactory.

4 In order to keep track of his deceit the appellant used a computer-generated spreadsheet containing details of the fraudulent refunds and of the various schemes used by him. He acknowledged in his record of interview that he "used to put in long hours just to cover myself, to do the paperwork, keeping track of what I had been doing." It is plain that, as the Commonwealth submitted to the learned sentencing Judge, the appellant must have turned his mind and energies to the fraudulent scheme on an almost daily basis. It was not a one-off piece of bad judgment.

5 At first the scheme targeted only one client but when it had been successful over a number of years the appellant extended it to many others. He arranged the scheme so that notices of assessment would not go to the individual clients but would come to him.

6 The scheme came to light when a client who had - unusually - received such a notice noticed that the refund amounts indicated on the

notice of assessment for financial years 1996 to 2004 showed a substantially higher refund amount than the refund cheques which he had received from the appellant. An investigation commenced and search warrants were executed on the appellant's office and at his office records storage facility.

7 As the appellant would have understood, he having been previously employed by the Australian Taxation Office, those taxpayer clients who were the subject of the fraudulent returns were later put to the considerable cost and inconvenience of having to be audited and to resubmit tax returns. In some cases, as the result of the fraudulent scheme they had paid wrong amounts (for example, by way of child support) and had received incorrect family tax benefits, which they were then required to adjust. This was not, then a case only of defrauding the revenue, serious though that is, but was also a case in which distress and inconvenience was occasioned to individual clients. There were before his Honour numerous victim impact statements demonstrating that fact.

8 The motivation for the offending seems to have been for the appellant and his family to maintain a very good standard of living, including the acquisition of an investment property, the leasing of luxury cars, business class overseas travel for himself and his family, the purchase of expensive clothes and electrical goods and the provision of loans or financial assistance to extended family members.

9 In mitigation, it was said that the appellant's life as a child had been one of considerable poverty and hardship and that he was concerned to ensure that his own children would not suffer in that way. At the time of sentencing he was 48 years of age with a wife and three dependent children. The children were still at school. Following execution of the search warrants he had acknowledged his offending when interviewed by the authorities, co-operated in the investigation, and entered an early plea of guilty to the charges against him. The psychological reports indicated some depression, not surprisingly, but there were no other mental or medical issues. He was said to be remorseful and the learned sentencing judge accepted that there was remorse and a willingness to facilitate the course of justice. There was also a very substantial number of character references but, as the Commonwealth pointed out to his Honour, they had to be read in the light of the knowledge that there had been a systematic and repeated offending over a period exceeding eight years. His wife and children had, of course, reacted with shock, astonishment and distress to the news of his offending and will, of course, face difficulties during the course of his imprisonment.

10 Against that background, I turn to the grounds of appeal. Grounds 1, 2 and 4 are all variations on a complaint of manifest excess, with different particulars in each case. Ground 3 alleges that the term of imprisonment is crushing while ground 5 is concerned with the non-parole period.

11 There are effectively two particulars raised by this ground. The first is that the learned sentencing judge erred in considering that the employment of the appellant by the Australian Taxation Office at an earlier time was a relevant circumstance. All his Honour said about this was:

"You were at the relevant time a registered tax agent, having previously worked in the audit section of the Taxation Department. It would appear that the knowledge gained by you in that earlier employment was an advantage in your dishonest pursuit."

12 There is nothing to suggest that his Honour treated the appellant's earlier employment as aggravating. There was some discussion between his Honour and counsel as to whether the appellant's earlier employment with the ATO would have made the deception easier for him to perpetrate. It might well be that some greater degree of confidence on the appellant's part could have existed as a result of his familiarity with procedures and personnel of that office but, in any event, it seems to have been accepted on all sides that his professional knowledge and status as a registered tax agent would have been a very important factor in the deception. In my view, even if the appellant had derived no advantage whatever from his earlier employment, nothing turns on that fact.

13 The other particular under this ground is that it is submitted that his Honour erred in describing the method used by the appellant as "conceived in deceit, meticulously planned, cunningly executed and carefully concealed". It was submitted on his behalf that the deception was a crude and simple one which was doomed to ultimate failure. In my view the facts I have already recounted amply justify his Honour's conclusions.

14 There are three issues raised under this ground. The first is the proposition that his Honour stated that the "only fact" operating in mitigation was the ready acknowledgment of criminality and the early plea of guilty, thereby dismissing all other matters personal to the appellant. It is true that his Honour did at one point refer to the appellant's cooperation and early plea as "the only facts" operating in mitigation. It is plain when his remarks are read as a whole, however, that he did accept that there were other personal circumstances which were relevant. He referred to the psychological assessments, to the appellant's family circumstances, to his lack of other offending and to the fact that he was well regarded in the community. His Honour went on to observe that that "is of truncated mitigatory consequence" having regard to the lengthy and repetitive criminal behaviour involved.

15 In context, it seems to me that his Honour acknowledged that the personal circumstances of the appellant were all of relevance but, in my view correctly, reached the conclusion that because of the seriousness of the offending those factors could be given relatively little weight and that the only significant or substantial reason for reducing an otherwise appropriate sentence was the early co-operation and plea. His Honour expressly said (at AB 242):

"I have regard to your antecedents and personal circumstances although, as I have already stated, having regard to your criminal behaviour and the period over which it continued they are of limited mitigatory consequence."

16 Next, it is submitted that because his Honour had not quantified his view of the circumstances of the offence or mitigating factors the appellant was in effect unable to discern whether or not he had been given a discount for his early plea or for any other mitigating factors. His Honour's sentence is one which was arrived at by the method sometimes described as "instinctive synthesis" rather than as a result of a series of additions to or deductions from some notional starting point. There is of course no statutory requirement in the Crimes Act 1914 (Cth) to quantify, by way of percentage or otherwise, the extent to which any particular factors are taken into account, nor is there any requirement to do so as a matter of sentencing principle: see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 and Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048 . There is therefore no substance to this complaint.

17 The appellant also argued that the notional addition of a hypothetical discount to the sentence actually imposed to produce a starting point of 12 years (at 25 per cent discount) or 131/2 years (at a one-third discount), before mitigatory factors, shows that the sentence was manifestly excessive. Assuming, without deciding, that this is a valid process of reasoning, given the substantial and sustained criminality involved it could not be said that a starting point before allowance for mitigatory factors in that range was manifestly excessive. I turn shortly to deal with the cases which are, perhaps, of a comparable kind of offending. Finally, it is submitted in relation to this ground that, having regard to the various mitigating factors, the sentence is simply too high. That takes me to ground 4.

18 The appellant submits that the sentence overall is higher than for those for offences of a reasonably comparable type. There are very few offences of this type with which to compare the appellant's case. The two particularly relied on by the appellant are Beard v The Queen [2003] WASCA 262 and Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385.

19 Beard's sentence was identical with that imposed upon the appellant. It arose from one count of organised fraud contrary to s 83 of the Crimes Act, as it then was. Section 83 allowed a number of fraud offences to be bundled together and carried a maximum penalty of 25 years' imprisonment and/or a fine of $250,000. It was in some respects the fraud equivalent of a general deficiency. Beard's case involved more false returns and more taxpayers (310 and 192 respectively), but a much shorter period and a substantially lower amount (3 years and $600,000). Beard's plea was entered after a committal and just prior to listing for trial, and so was later than the appellant's. However, in that case account was taken in mitigation of the fact that reparation and forfeiture orders had been made against Beard and that a substantial amount had been recovered. In the present case, there is unlikely to be any substantial recovery and s 320(d) of the Proceeds of Crime Act (1987) (Cth) precludes the Court from having regard to the pecuniary penalty order made against the appellant. The court in Beard considered the sentence imposed to be "near the upper end" of an appropriate range for the circumstances of that case (see [48]). In this case, too, the sentence may be severe but cannot be said to be inappropriately so.

20 So far as Thompson is concerned, he received a 61/2-year term of imprisonment with a non-parole period of 3 years and 3 months relating to 158 counts committed over approximately three years and involving a little over three million dollars. However, in that case there was prospect of significant recovery, and contribution to the offending from bipolar disorder, as well as particular hardship which was likely to be suffered in prison by Thompson as a result of that bipolar disorder. There was also the factor of co-operation in the investigation and early pleas of guilty, as in this case. A discussion of offending broadly comparable with that of the appellant, which is found in [63] to [69] inclusive of Thompson's case, in my view, reveals a pattern of sentencing broadly comparable with the sentence imposed here, when the different circumstances are taken into account. Having regard to the maximum penalty available for each of the offences, to the very important role of general deterrence in relation to offences of this kind which are difficult to detect, and to the cases of Thompson and Beard, it is my view that the appellant's complaint that his sentence is manifestly excessive simply cannot be made out.

21 This ground raises the proposition that the term imposed on the appellant is "crushing", and therefore in breach of the totality principle. It arises simply from the fact that the appellant, by completion of the sentence, would be 57 years of age, unless earlier released to parole at approximately aged 52. He will, of course, be unlikely to be able to work as an accountant. Against those factors must be set the fact that for more than eight years the appellant abused his position as an accountant and enjoyed a lavish lifestyle, which he would not otherwise have been able to fund, as a result of his deception. Unfortunately, as in so many cases, his wife and children will be substantially burdened by the sentence imposed on the appellant and it is impossible not to feel sympathy for them. However, a 9-year term with a 41/2-year non-parole period imposed upon a man in his mid-40s cannot be regarded as so crushing as to leave him without hope for the future.

22 So far as the non-parole period is concerned, it is submitted that the minimum term fixed of 41/2 years' imprisonment is more than is necessary "to provide for the mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence", see Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 536.

23 It is asserted that his Honour appears to have fixed the minimum term upon the basis that 50 per cent of the head sentence is traditionally imposed. His Honour certainly noted that something around 50 per cent was the usual minimum term fixed. However, that was no more than a remark made during the course of a number of exchanges with counsel

about an appropriate non-parole term. The assertion that his Honour did not turn his mind to the relevant criteria and the assertion that the circumstances of the case would permit or require a lesser minimum than 41/2 years are just that; no more than mere assertion. There is nothing either in his Honour's reasons or in the term fixed which demonstrates error.

25 ROBERTS-SMITH JA: I also agree and have nothing further to add.

Ramanah v The Queen [2006] WASCA 112

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (64 paragraphs)

Ramanah v The Queen [2006] WASCA 112 (13 June 2006)

Parties

Cases Cited (14)