Stamp Act 1921 (WA)

Aloia (1982) 6 A Crim R 345

Anderson (1997) 92 A Crim R 348

Anzac [1987] NTCCA 7; (1987) 31 A Crim R 310

Australian Coal & Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Eliasen (1991) 53 A Crim R 391

Everett & Phillips v The Queen [1994] HCA 49; (1994) 181 CLR 295

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

Gavin v The Queen (1992) 6 WAR 195

House v The King [1936] HCA 40; (1936) 55 CLR 499

Humphries (1997) 98 A Crim R 233

Knights (1993) 70 A Crim R 105

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Neale v Sloan, unreported, SCt of WA (Parker J); Library No 970729; 6 August 1997

R v Beech, unreported; CCA SCt of WA; Library No 7367; 15 November 1988

R v Brett [1983] 1 Qd R 38

R v Grein [1989] WAR 178

R v Jones [1984] WAR 175

R v Lanham (1970) 2 NSWLR 217

R v Peterson [1984] WAR 329

R v Tait (1979) 46 FLR 386

R v Tutchell [1979] VicRp 24; [1979] VR 248

R v Whitnall [1993] FCA 271; (1993) 42 FCR 512

R v Wong (1995) 16 WAR 219

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510

Reppucci (1994) 74 A Crim R 353

Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997

Weng Keong Chan (1989) 38 A Crim R 337

1 This appeal raises for consideration the proper penalty to be imposed for making a false statement under the Stamp Act 1921.

2 The respondent who is a serving police officer also operates a company Bold Gold Nominees Pty Ltd, which apparently is in the business of leasing limousines for weddings and other functions.

3 The charge to which the respondent in due course pleaded guilty relates to the purchase by the respondent of a Fairlane stretch sedan from Mr Ellard of the Image Limousines in New South Wales.

4 On 14 October 1997 the respondent lodged an Advice of Disposal of Vehicle with the Department of Transport, indicating that a Ford Fairlane sedan had been sold by Raymond Ellard of Image Limousines and purchased by Christopher Sean Porteous of Bold Gold Nominees Pty Ltd for the sum of $36,000.

5 The seller did not sign the disposal form. Instead, where the seller's signature should have appeared was a note: "Refer attached receipt". The receipt attached was dated 30 September 1997 and said:

Received the sum of thirty six thousand dollars being full payment for 1995 Ford Fairlane engine number JGSWSJ57284 and vin number 6FPAAA JGSWSJ57284 from Bold Gold Nominees Pty Ltd P.O. Box 154 Hamilton Hills. Guaranteed free of all encumbrances and sold with all faults if any.

6 The receipt falsely stated that the sum of $36,000 was received by Mr Ellard in full payment for the 1995 Ford Fairlane. The receipt was prepared by Mr Ellard at the request of the respondent.

7 In fact the true price of the vehicle was $78,000. Mr Ellard had prepared an invoice for the sale of the vehicle to Bold Gold Nominees Pty Ltd dated 23 September 1997 reflecting the true purchase price. It was after the receipt of this invoice that the respondent requested the false receipt be prepared by Mr Ellard stating the purchase price was $36,000.

8 However, Mr Ellard had also prepared a receipt dated 30 September 1997 confirming receipt of $78,000 from the respondent.

9 In due course the transaction was investigated by officers of the Compliance Section, State Revenue Department, resulting in an interview by them with the respondent on 11 December 1998.

10 Subsequent to that interview, and as a consequence of it, the respondent faxed the office of the State Revenue Department on 14 December 1998 with further details which included:

In response to your request for documents subsequent to your interview at my office Friday December 11th 1998, please find attached;

Form 4 Motor Dealers Act NSW for proof of ownership for registering and purchase price of sedan in the amount of $36,000.00

Receipt from Image Limousines for $36,000.00 for sedan free of encumbrances.

Invoice for completed stretch limousine in the amount of $78 000.00 identifying account details for full payment.

Receipt for full payment of $78 000.00 of completed stretch for the release of the vehicle to Boldgold Nominees P/L for transport and licensing.

Disbursement letter from the National Australia Bank. An investment loan of $85 000.00 was sought being $78 000.00 for the stretch and $7 000.00 being for additional working capital.

No contract of sale as such was drawn up as negotiations by phone led to the manufacturer covering the whole debt until it was ready for transport. This is not an uncommon practice as it encourages expedited completions.

I do not recall the exact transaction dates from start to finish.

All receipts of purchase and ownership were offered and tendered at the time of examination and registration with TRANSPORT. Staff accepted the transfer stamp duty on the purchase price of the vehicle of $36 000.00 when I discussed it with them. They retained whatever copies they required as shown on the transfer papers.

If there are any further queries please don't hesitate to contact me"

11 On 5 July 1999 the appellant laid a complaint against the respondent that:

"On or about 14 October 1997 at Perth Christopher Sean Porteous made a statement for the purpose of Section 76C of the Stamp Act 1921 which was false in a material particular namely that the purchase price of a Motor Vehicle (Engine No JGLWSJ57284) was $36,000; contrary to section 76C(14) and 116 of the Act."

12 Prior to that date the respondent wrote by letter dated 12 August 1999 to "The Presiding Magistrate" entering a plea of guilty and making an explanation. He said:

Having accepted that these matters are strict liability charges, I have entered this plea of guilty.

I put the following facts before you to consider in your determination of penalty:

I have not had the opportunity of considering the Statement of Material Facts put before the court, my intention is to now reiterate the substance of what I told the investigator.

I purchased a motor vehicle for use in a limousine hire business during 1997. I purchased the vehicle for $36,000 and it had substantial modifications made to the vehicle at a cost of $42,000.00

I attended at the Department of Transport Licensing Centre, and spoke with the clerk there. I queried the amount of duty to be paid and was told that it was on the lower amount, namely pre-modifications. I paid that amount in good faith, based upon the advice given to me, no doubt also in good faith.

Subsequent to the sale of the vehicle during, 1998, I was investigated by the State Revenue Department. I openly advised the investigators of the above matters. My understanding was that the matters would be reported that a penalty and the additional stamp duty would have to be paid and that would be the end of the matter.

I was quite surprised to receive this summons some seven months later and was initially of the belief that I was the 'victim' of a double-jeopardy situation. My understanding now is that the offences are separate issues to the duty and penalty.

I am very embarrassed to find myself in the current position. Not only embarrassed, but quite foolish for having relied upon the clerk's advice. More importantly, I feel quite threatened by the prospect of a conviction for an offence relating to the impropriety in relation to documentation and dishonesty.

I am concerned about the impact of the matters proceeding to conviction. I am a Detective Sergeant with the Western Australia Police Service, Corporate Crime Division, Major Fraud Investigation Unit. A conviction has the prospect of affecting my employment and credibility. A conviction could see the matter referred to the Anti-Corruption Commission should the matter be referred to our Internal Investigation Unit.

I submit that the matter was not a deliberate fraud on the public purse, but a decision made on advice given. I have already been penalised by the State, a further penalty in the circumstances seems somewhat harsh and unfair. I am of good character, not having any convictions on my record. I have entered a guilty plea at the earliest possible opportunity and I am certainly mindful of the predicament in which the attempted business venture has now placed me.

My hope is that you can see your way to a penalty in the terms of section 46 Sentencing Act 1995, viz, 'release without sentence'. As the offences are on the 'public purse', I am not suggesting that they are trivial. I am suggesting that in the circumstances, they are technical. I made a mistake and have already paid a financial penalty, the technical nature of the legislation is that I have received an administrative penalty for the same facts relied upon for a possible judicial penalty. In other circumstances section 11 Sentencing Act 1995 might apply.

I am a single man in a relationship with a single mother and her seven year old daughter.

I have been a police officer for 18 years and was awarded the National Service medal in 1997.

13 On the return day, the prosecutor made extremely brief submissions which were of no help to the learned Stipendiary Magistrate in identifying the scale of seriousness of the offence.

"In September of 1997, the defendant purchased a vehicle for the sum of $78,000 on behalf of [Bold Gold Nominees Pty Ltd]. On the 14th of October 1997, the defendant completed an advice of disposal form, in which he listed the purchase price of the car as '$36,000'. Your Worship, there are no prior convictions. The penalty applicable to this offence is a $10,000 fine, pursuant to section 116 of the Stamp Act; costs are in the sum of $165."

15 The Magistrate referred to the letter which he read and then had it handed to the prosecutor who made no submissions on it.

16 In his sentencing remarks the Magistrate took into account what the respondent had said in the letter and said:

"...I do accept that the offence resulted from his taking advice concerning the matter, and that it was not a deliberate attempt to avoid the payment of stamp duty. Nevertheless the situation was such that he committed the offence in question, and ought to have been more careful in obtaining the advice that he did. Obviously, the amount of money involved was significant and it's important in those circumstances to obtain the proper advice concerning the matter."

17 The Magistrate then imposed a fine of $200 with a spent conviction order. The latter order being made:

"...in view of the defendant's prior good record, the nature of the offence, the extenuating circumstances surrounding those matters. ..."

18 On 30 September 1999 the appellant obtained leave to appeal on the following grounds:

"(a) The learned Magistrate erred in law and fact in imposing a penalty that was so inadequate in all the circumstances as to manifest error in that he:

(i) failed to have proper regard to s45 of the Sentencing Act 1995 and the seriousness of the offence in imposing a spent conviction order;

(ii) failed to give sufficient weight to the maximum penalty expressed by Parliament at section 116 of the Stamp Act 1921;

(iii) failed to have sufficient regard to the need to impose a deterrent penalty;

(iv) had undue regard and attached undue weight to the considerations contained in the letter of mitigation tendered by the Respondent.

(b) Further and in the alternative, there is sufficient reason to justify a review of the decision by virtue of the availability of further evidence which demonstrates the misleading character of the letter in mitigation."

19 The matter was listed before a Judge on 2 December 1999. At that stage, for various reasons, the matter was adjourned and came on for hearing before me on 4 February 2000.

20 On that day the respondent conceded that the appeal should be allowed on grounds 1(a) and 1(b). The parties sought consent orders remitting the matter to Petty Sessions for hearing and determination before a different Magistrate.

21 I declined to make such an order. It is my view that having allowed an appeal on the basis the sentence was inadequate, it is of little assistance to a Magistrate if this Court then fails to determine what is an appropriate penalty, both in the present case and perhaps as a guideline for future similar cases.

22 The appellant submits that the facts show a deliberate attempt to evade the tax on the part of the respondent. The respondent stands by the explanation given in the letter to the Magistrate and submits that while the declaration was admittedly false in a material particular, there is an alternative explanation, namely that the respondent carelessly considered the position to be that stamp duty was payable on the original purchase price of the vehicle of $36,000 and not on the modifications and improvements. This was advice he had received from the licensing clerk and he proceeded on reliance on that advice, although he now acknowledges this was a mistake of law.

23 Before the appellant's submission that this was a deliberate attempt to evade duty can be accepted, the facts and the conclusion must be established beyond reasonable doubt: Langridge v The Queen (1996) 17 WAR 346. This is a material matter which, if proved, would be a circumstance of aggravation of the offence.

24 Each party was content to rest upon the material advanced in the appeal book and in the appellant's statement of material facts, most of which are admitted. The conclusion that this was a deliberate attempt to evade duty was not admitted.

25 In the circumstances, I can rely on the statutory declaration of Mr Ellard, and in particular where he states:

* About September 1997, Mr Chris Porteous of Boldgold Nominees Pty Ltd PO Box 154 Hamilton Hills W.A contacted me by phone to purchase this vehicle.

* Mr Porteous required the stretched limousine to be further modified to include a television set.

* The arrangement was to pay the total price of $78,000.00 for the vehicle.

* An invoice was sent to Bold gold Nominees Pty Ltd on 23 September 1997, describing the stretch limousine, for $78,000.00.

* This amount was transferred, in one payment, into the National Bank Riverstone, Account No 082-816-62748-4459, in the name of Image Limousines Pty Ltd.

* Mr Porteous did not inspect the vehicle prior to purchase and he arranged the transportation of the vehicle to Western Australia.

* Mr Porteous requested that a separate receipt in the Name of Bold Gold Nominees Pty Ltd for $36,000.00, being the initial cost of the unstretched sedan, when purchased by Image Limousins [sic] Pty Ltd from City Ford Chullora.

* At the time Mr Porteous first made contact to purchase the vehicle, it had already been fully modified and stretched and application for compliance plates as a stretched limousine had been made."

26 This conforms with the admitted statement of material facts that at the time the respondent made contact with Mr Ellard to purchase the vehicle, it had already been stretched and modified.

27 It is significant that the receipt for $36,000 appears to have been obtained before the respondent had any discussion with the licensing clerk. An affidavit sworn by the respondent on 19 November 1999 detailed a further conversation which took place between the investigator and the respondent. Paragraph 4(c) of the affidavit states:

"Other conversations took place namely but not limited to:- my discussions with the Licensing Clerk at the time I effected transfer of the motor vehicle!" (My italics)

28 This suggests an element of deliberation in actions of the respondent. There is no evidence that the respondent had in his mind the mistaken possibility that the vehicle could be taxed at the pre-modification rate.

29 The obverse "Advice of Disposal of Vehicle" form, entirely completed by the respondent, states unequivocally that the seller, Raymond Ellard of Image Limousines sold the vehicle for the sum of $36,000. The attached receipt, which the respondent had sought and referred to in his Advice of Disposal, is not conditioned by any reference to pre-modification price.

30 On the reverse, the printed form states that stamp duty is payable at the rate of $3 per hundred dollars of the market value and provision is made for the calculation by the respondent of the market value of $36,000 which he has entered.

31 Directly beneath this portion, which the respondent has completed, are definitions. They read:

(a) An amount allowed by the seller of a motor vehicle on a trade-in or an exchange of any article; and

(b) Any amount paid to the seller of a motor vehicle for accessories, etc. included with or incorporated into the vehicle and for the preparation of the vehicle for delivery to the purchaser.

2. The 'MARKET VALUE' means the amount for which the motor vehicle might reasonably be sold, free of encumbrances, in the open market.

3. As a general rule the 'MARKET VALUE' of a vehicle will be the same as the purchase price plus any amount referred to in (a) or (b) above and after adding back any special discount which is not available to the public generally, (e.g. Finance discount, Sales Tax exemption)."

32 The terms of these definitions are clear to anyone who reads them from their prominent position on the form, directly beneath the point where the respondent has completed his calculations. Bearing in mind the nature of the discussion he said he had with the licensing clerk, I infer that he did read them.

33 Counsel for the respondent drew attention to some different textual versions of the record of interview between the written version, the typed version and the statement of the investigator.

34 Because of that difference, I place no regard on the first question and answer.

35 However, a later question and answer was as follows:

36 Following that interview the respondent sent the fax previously referred to. He enclosed the transfer in New South Wales from City Ford Chullora to Image Limousines Pty Ltd for $36,000 and the invoice for the completed stretch limousine in the amount of $78,000.

37 The inevitable conclusion from all of the material is that the respondent entered into a contract for the purchase of an already stretched limousine for $78,000. There never was an arrangement for the purchase of a vehicle for $36,000 and modifications to be added to it. The letter written by the respondent to the Presiding Magistrate on 12 August, wherein he states:

"I purchased a motor vehicle for use in a limousine hire business during 1997. I purchased the vehicle for $36,000 and it had substantial modifications made to the vehicle at a cost of $42,000.00"

is simply wrong. As the respondent well knew, he only ever purchased a stretch limousine for $78,000. The invoice from Image Limousines to Bold Gold Nominees dated 23 September 1997 confirms that the respondent was purchasing a stretch limousine with inclusions as listed in the invoice. When payment was made, the respondent was sent a receipt for $78,000 being full payment for a stretch limousine with the inclusions as listed. There can be no other purpose for the solicitation of a receipt for $36,000 than to use it to evade duty. The receipt is false in several respects, as the respondent must have known, and differs significantly in its terms from the true receipt for $78,000.

38 I am satisfied beyond reasonable doubt that the respondent set out to evade stamp duty on the market value of the vehicle by obtaining a receipt from Mr Ellard for $36,000 which the respondent knew to be false, and then represented on the transfer form the purchase of a vehicle for $36,000, not the true $78,000.

39 The following factors are relevant to the appropriate penalty.

40 Regard must be had to the fact that the respondent has already been fined by the Commissioner.

41 The proper tax to be paid for the vehicle was $2758. The amount originally paid on the false transfer was $1490.

42 Subsequently the respondent paid the balance, namely $1260, and also paid a fine of $1260. The fine was imposed by the Commissioner under the provisions of the Stamp Act s 31A(1)(a). When setting a fine for the conduct under present consideration, it is important not to doubly punish the respondent. It is proper to take account of the fact that a fine of $1260 has already been levied and paid, arising out of the underpayment of duty.

43 The factual matrix which gave rise to the fine for underpayment of duty is the same as that which gives rise to the penalty for the false statement. The criminality of the latter offence is, however, different.

44 What is to be punished is the deliberate attempt to evade tax by making a statement which was false in a material particular, not the fact that there was an underpayment of duty because that matter has been resolved and the respondent already punished for it.

45 The respondent was charged with an offence under the Stamp Act s 76C(14). That section is found within Part IIIC - Motor vehicle licences and transfers thereof - and provides:

"A person who for the purposes of this section makes any return, statement, certificate or valuation or furnishes any evidence, which is false in a material particular commits an offence against this Act."

46 The Stamp Act s 116 provides a general penalty to offences against the Act of a sum not exceeding $10,000.

47 The Magistrate's fine represented 2 per cent of the maximum and on any view such a percentage is manifestly inadequate. So much has been conceded by the respondent. In determining an appropriate penalty, a Magistrate should have regard to the maximum fine, and decline to set a penalty which, when set against the possible maximum, is a paltry percentage.

48 Any attempt to evade duty by means of a false statement is a serious offence. In this case the seriousness is aggravated by the fact that the surrounding circumstances indicate a deliberate and sustained attempt to evade duty by seeking and obtaining a false receipt in order to carry out the deception.

49 Counsel for the respondent submitted the fact that this was a Crown appeal ought to result in some moderation of sentence, being in part a double jeopardy.

50 I am not sure the principles involving Crown appeals against sentence in respect of indictable matters have the same application to appeals to a single Judge from decisions of Magistrates. However, in the particular case, the conduct of the prosecution initially contributed to the wrong exercise of discretion by the Magistrate. The prosecution failed to point out at the time of hearing all relevant circumstances within its knowledge, or to offer any assistance by way of submissions. This appeal has been necessary in part by the prosecution's conduct of the hearing before the Magistrate. In that sense the respondent has incurred further expense and stress. So, without resolving the question of moderation for Crown appeals and any relationship to Justices Act proceedings generally, in this case I am satisfied that a degree of moderation of penalty is called for in any event.

51 There are matters of mitigation. The respondent is a serving police officer, who was awarded the National Service medal in 1997. He has no previous convictions and is of good character. He is in a relationship.

52 But for the matters of mitigation and the degree of moderation just referred to, I would have considered that the criminal conduct exposed in the offence, having regard to the maximum penalty provided by Parliament, warranted a fine in the order of $4000.

53 However, taking all matters into consideration, I set aside the original penalty of $200 and instead impose a fine of $1000.

54 The respondent argues that this is an appropriate case in which to make a spent conviction order.

55 A guideline judgment on spent convictions has now been given by the Court of Criminal Appeal in R v Tognini & McGuire [2000] WASCA 31 per Murray J from par 24, and particularly at par 27 and par 28. Without the necessity of setting out these passages, I rely upon them for guidance.

56 I note that a conviction recorded against the respondent is likely to have particular consequences in view of his occupation as a police officer. The offence was not committed in the course of that occupation, but related to an ancillary business venture. This is a factor to be weighed. On the other hand, there may be a public interest in recording a conviction against a person whose daily duties involve them in the administration of justice, enforcing the law or holding a position of public trust.

57 By my findings, this was not a spur of the moment careless breach of the Stamp Act but a deliberate attempt to evade duty. Furthermore, no remorse is demonstrated by the continuation of the evasion up to the hearing before the Magistrate.

58 In the end the making of a spent conviction order is an exceptional exercise of discretion because the ordinary course is against making such an order. When the overall circumstances of the offence are weighed against the matters in favour of a spent conviction, I am not satisfied that all the circumstances are sufficiently exceptional to make such an order and I therefore decline to do so.

(b) the penalty and spent conviction order imposed on complaint no PE 99/33669 are set aside; and

(c) in lieu, the respondent, Christopher Sean Porteous, is fined the sum of $1000.