Singh v R

J Agius SC with J Park (Applicant) G Newton (Respondent)

Remington & Co (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2018/278431 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 24 January 2020 Before: Conlon ADCJ SC File Number(s): 2018/278431

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Tajinder Singh (the applicant) pleaded guilty to three offences of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). The offences related to the applicant defrauding the Australian subsidiary of a worldwide advertising agency, TBWA Sydney Pty Ltd, of some $3,286,125 between January 2013 and December 2016, when he was employed by that agency as an assistant accountant. The applicant had turned 23 years of age a few weeks before committing the first offence, and was a month shy of his 27th birthday at the time of the last offence. The applicant was sentenced to an aggregate sentence of 6 years imprisonment, with a non-parole period of 4 years, after receiving a discount of 25% for his pleas of guilty. The applicant sought leave to appeal against his sentence, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The principal issues on appeal were: 1. whether the sentencing judge erred in not taking into account the comparatively young age of the applicant when assessing moral culpability; 2. whether the non-parole period was manifestly excessive. The Court held (Bell P, Johnson and R A Hulme JJ agreeing), dismissing the application for leave to appeal: 1. Although an assessment of youth and immaturity must occur on a case-by-case basis, the nature and circumstances of the applicant's offending was not such as to attract the kind of considerations in respect of sentencing that are applicable to young offenders. Not only was the applicant significantly older than the age of majority, but the nature of his conduct and offending (including that the offences involved premeditation, a degree of sophistication and a major breach of trust) did not manifest the immaturity associated with young offenders, which has been recognised as warranting some reduction in sentence in appropriate cases: [52]-[57] (Bell P); [72] (Johnson J); [73] (R A Hulme J). Abdul v R [2019] NSWCCA 18; BP v The Queen (2010) 201 A Crim R 379; [2010] NSWCCA 159; Hartman v R [2011] NSWCCA 261; HJ v R [2014] NSWCCA 21; Johnston v R [2017] NSWCCA 53; KT v The Queen (2008) 182 A Crim R 571; [2008] NSWCCA 51; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397; R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349; R v Curtis (No 3) (2016) 114 ACSR 184; [2016] NSWSC 86; R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37; R v Hoang [2003] NSWCCA 380; R v Pham & Ly (1991) 55 A Crim R 128; Thammavongsa v The Queen (2015) 251 A Crim R 342; [2015] NSWCCA 107; TL v R [2020] NSWCCA 265, considered. 1. In any event, contrary to the applicant's submission, the sentencing judge did take into account his age in exercising his sentencing discretion: [58]-[61] (Bell P); [72] (Johnson J); [73] (R A Hulme J). 2. The audacity of youth is not to be conflated with immaturity: [55] (Bell P); [72] (Johnson J); [73] (R A Hulme J). 3. The applicant failed to establish any misapplication of principle or any error in the sentencing judge's exercise of his discretion, in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40. Both the sentence and the non-parole periods were well within the range of sentences imposed for similar acts of fraud, and the sentence and non-parole period imposed was not manifestly excessive: [70] (Bell P); [72] (Johnson J); [73] (R A Hulme J). Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Edwards v R [2020] NSWCCA 141; Frahm v R [2014] NSWCCA 10; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; Ho v R [2013] NSWCCA 174; House v The King (1936) 55 CLR 499; [1936] HCA 40; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; MD v R [2015] NSWCCA 37; Pereira v R [2014] NSWCCA 181; R v Cramp [2004] NSWCCA 264; Trad v The Queen (2009) 194 A Crim R 20; [2009] NSWCCA 56; Whyte v R [2019] NSWCCA 218; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, considered. 1. Discussion by Bell P of the legal principles relating to the youth of an offender in respect of sentencing, including in relation to offences involving fraud and financial deception: [30]-[46]. 2. Discussion by R A Hulme J as to the discretionary nature of a finding of special circumstances, the rationale for such a finding, and that such a rationale does not apply where an aggregate sentence is imposed: [74]-[79].

Judgment

1. BELL P: Mr Tajinder Singh (the applicant) seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed upon him by Acting Judge Conlon SC (the sentencing judge) on 24 January 2020 in the District Court of New South Wales.
2. The applicant was sentenced after pleading guilty in the Local Court of New South Wales to three offences of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 10 years. A further three offences of dishonestly obtaining a financial advantage by deception were taken into account on a Form 1 when sentencing the applicant for Sequence 4.
3. The offences related to the applicant defrauding the Australian subsidiary of a worldwide advertising agency, TBWA Sydney Pty Ltd (TBWA), of some $3,286,125 between 30 January 2013 and 2 December 2016, whilst he was employed by that agency as an assistant accountant. The applicant turned 23 years of age a few weeks before committing the first offence, and was a month shy of his 27th birthday at the time of the last offence.
4. The applicant was sentenced to an aggregate sentence of 6 years imprisonment with a non-parole period of 4 years. The applicant received a discount of 25% for his pleas of guilty.
5. Before considering the applicant's grounds of appeal, a brief factual background to the proceedings is necessary.

Agreed facts

1. The facts on sentence were agreed between the parties, and a statement of agreed facts was tendered by the Crown, as part of Exhibit A. The agreed facts were as follows: "1. TBWA Sydney Pty Ltd (TBWA Sydney) is the local arm of a world-wide advertising agency. 2. From 2010 until March 2016, Tajinder Singh (the offender) was employed by TBWA Sydney as an Assistant Accountant. The offender subsequently worked part-time for TBWA Sydney on freelancer terms, assisting with payroll matters until ultimately leaving in December 2016. 3. The offender's remuneration at the time of his resignation was $85,000 per annum. 4. The offender had access to TBWA Sydney's accounting system to facilitate the preparation of Business Activity Statements (BAS) and to reconciliate several balance sheet accounts amongst other duties. His work was reviewed by a Finance Director. 5. The offender had access to the banking platforms (Westpac and ANZ) utilised by TBWA Sydney. His access was limited to proposing, but not approving transactions. All transactions proposed by the offender required the approval of a more senior member of the finance team. 6. From 2011 until 2016, the offender was responsible for preparing the TBWA Sydney's BAS reports. These are reports submitted each month to the ATO along with payment for any self-reported liabilities due. Alongside details of other federal taxes due, the reports include records of all GST collected on billings and paid on purchases in the month, and show a calculation of a net figure that typically is a GST liability to be paid to the ATO. 7. In late 2017, an employee contacted TBWA Sydney management about discrepancies in contributions that should have been made by the TBWA Sydney to the employee's self-managed superannuation fund. The identification of some irregular transactions by management led to TBWA Sydney conducting a comprehensive audit of its accounts. Seq 2, 4 & 6: Dishonestly obtain financial advantage by deception, s192E(1)(b) Crimes Act 1900 ($80,916.85, $3,122,114.21 & $13,707.82 worth of transactions) Form 1 - Seq 1, 3 & 5: Dishonestly obtain financial advantage by deception, s192E(1)(b) Crimes Act 1900 ($30,359.27, $25,874.19 & $13,184.13 worth of transactions) 8. From 2013 onwards, the offender routinely manipulated the BAS reports he prepared such that the amount shown as payable to the ATO was lower than the true amount shown as payable in the TBWA Sydney's general ledger. The offender initiated a payment to the ATO for the smaller amount, set-up a manual electronic bank payment to himself for the difference, and posted journal entries against cash to clear the remaining payable in the TBWA Sydney's GST general ledger account. 9. TBWA Sydney is obliged to pay a withholding tax to the ATO of 10% of Management / Royalty Fees paid to TBWA\Worldwide. Between February 2013 and October 2016, instead of making these payments to the ATO, the offender set up electronic banking payments so that the funds were transferred to his nominated accounts. ATO statements show that these amounts were not declared and paid by the TBWA Sydney. 10. Between January 2013 and December 2016, electronic payments that should have been paid into the self-managed superannuation funds of three TBWA Sydney employees, were instead diverted by the offender into three of his bank accounts. 11. There are payments to the offender that were recorded against the TBWA Sydney's New South Wales State ('NSW') Payroll Tax liability, which were not part of the offender's payroll, freelancer invoices, superannuation contributions, or expense reimbursements. 12. Ninety-nine transactions were submitted by the offender where he has without authorisation replaced the destination banking details with his own details, that the Finance Directors accepted as genuine, causing their approval. The following amounts were transferred into the offender's accounts across the following time period: • Form 1: Seq 1 - Westpac account 812048: $30,359.27 across 4 transfers from 30/01/13 - 28/03/13 • Seq 2 - Citibank acct 430770792: $80,916.85 across 10 transfers from 20/02/13-02/12/16 • Form 1: Seq 3 - Westpac acct 325814: $25,874.19 in 1 transfer on 14/03/13 • Seq 4 - Westpac acct 550790 and attached investment loan account 658148: $3,122,114.21 across 77 transfers from 30/01/13 - 02/12/16 • Form 1: Seq 5 - Westpac acct 630044: $13,184.13 across 3 transfers from 24/12/14 - 20/07/15 • Seq 6: CBA acct 15040378: $13,707.82 across 4 transfers from 08/04/16-02/12/16 13. The offender's fraudulent actions amounted to the total value of $3,286,120.47 and TBWA Sydney Pty Ltd seek this amount in compensation. 14. The offender was spoken to and cooperated with an Internal Audit team where he made full admissions to receiving a financial benefit from TBWA Sydney Pty Ltd. He apologised for his conduct and cooperated with the audit team's investigations into tracing the diverted funds. 15. It has cost TBWA a substantial amount of money to investigate the offender's offending, audit its accounts and reconcile its books. The audit team comprised 3-4 accountants relocating to Australia for approximately 4 weeks from the US & UK. At least $11,000 have been spent on obtaining banking records. 16. At no time did TBWA Sydney Pty Ltd or anybody else give the offender permission, consent or authorisation to create and process fraudulent transactions that caused funds belonging to TBWA Sydney Pty Ltd to be directed to him to gain a financial advantage. 17. On Thursday 11th September 2018, the offender attended Day Street Police Station accompanied by his legal representative. The offender was arrested and Cautioned. The offender was conveyed and entered in to custody. All safe guards adhered to as per Law Enforcement Powers & Responsibility Act 2002. 18. The Offender participated in an electronically recorded interview where he made full admissions to defrauding TBWA Sydney Pty Ltd by deceiving staff and changing bank account details to divert funds to accounts for his own personal use. He apologised for his conduct stating 'I am sorry to everyone involved' and 'I know I betrayed the trust [of the victim]'. A spreadsheet relating to these offences is attached to these facts."

1. a further summary document before the sentencing judge disclosed that the applicant had transferred about $900,000 to his parents during the period of offending.

Remarks on Sentence

1. In assessing objective seriousness, the sentencing judge made reference to the total amount defrauded, being in excess of $3 million and, quoting R v Hawkins (1989) 45 A Crim R 430 at 435, noted that the "amount of money involved in cases of premeditated planned deception and fraud are of necessity an important factor in the question of determining the degree of criminality for they are [an] indication of the extent to which a prisoner is prepared to be dishonest and flout the law, and to advance whatever are his own purposes".
2. The sentencing judge noted that the offending in question spanned approximately 3 years and 10 months, and therefore that the offending was clearly not "impulsive", but was a "consistent and persistent demonstration of fraud over a significant period". The sentencing judge referred to the applicant's evidence that "[b]ecause I got away with it for so long I thought I could keep going", and that he had wanted to get rich quickly and assist his parents. His Honour found that the applicant's "motivation was purely greed and that the fraudulently gained proceeds were consumed in a lavish lifestyle".
3. The sentencing judge agreed with the Crown that the applicant's offending was "both audacious and brazen", in that the applicant had taken active steps to set up each of the fraudulent transactions that went into his account, and then placed them before a more senior employee for approval. Further, despite enlivening the risk of detection on each occasion, he nevertheless continued with his offending over the course of almost 4 years.
4. The sentencing judge rejected the submissions that the offending was "unsophisticated" and "opportunistic", noting that the applicant breached the trust of his employer, and that his offending involved systematic dishonesty, attended by planning and a level of sophistication. His Honour referred to the different methods that were used to commit the offences, and the fact that the misappropriated funds were directed into a multitude of accounts controlled by the applicant, which his Honour found was a device intended to reduce the likelihood of detection.
5. The applicant claimed that he had committed the offences because he became addicted to trading contracts for differences (CFD), and that he used the money obtained from his employer to trade on CFDs which had very high "investment [risk] levels", with the aim of making large sums of money in a short period of time.

Grounds of appeal

1. The applicant relies upon the following two grounds of appeal: "1. The sentencing judge erred in not taking into account the comparatively young age of the applicant when he commenced trading in, and when he became addicted to trading in contracts for a difference when assessing the applicant's moral culpability for the offence. 2. The non-parole period was manifestly excessive".

Applicant's submissions

1. With respect to the first ground of appeal, the applicant submitted that the sentencing judge made no reference to his young age at the time of the offending, which was said to be a factor that was "particularly important in this case as it provides an explanation, not an excuse for his addiction to in effect gambling on contracts for a difference". It was submitted on behalf of the applicant that "[a]t the time when he commenced CFD trading and he became addicted to CFD trading his relatively young age is relevant when assessing the applicant's moral culpability for the offence".
2. The applicant submitted that s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows age to be taken into account as a mitigating factor where "the offender was not fully aware of the consequences of his or her actions" because of his or her age. The applicant submitted that "his behaviour is connected to his immaturity of his young age - addicted to CFD trading and spent a lot of money on binge spending". The applicant pointed to a number of cases before this Court where the relevant offenders who had defrauded their employers were between 40 and 63 years of age, as supposedly "comparative cases". The purpose of this submission was presumably to seek to contrast the applicant's age at the time of his offending with the greater ages of those offenders in the nominated cases, in an attempt to justify a lesser period of imprisonment for the applicant.
3. In the course of oral submissions, Mr Agius SC, who appeared for the applicant, relied on Johnston v R [2017] NSWCCA 53 (Johnston) in particular as a comparable case. In that case, the applicant was 40 years old, had completed a Bachelor of Business degree, was completing a Master of Business Administration degree, and was employed as a Senior Accountant at a mining company. Over a period of 3 years, the applicant defrauded the company out of over $1.257 million, which was dissipated in gambling expenses. Prior to sentencing, the applicant reached a settlement with his former employer which involved him paying the company $250,000 in consideration of a release from further liability. The sentencing judge imposed a sentence of 6 years and 6 months' imprisonment, with a non-parole period of 4 years. His appeal against that sentence was dismissed by this Court.
4. With respect to the second ground of appeal, the applicant again submitted that the sentencing judge "did not take the applicant's relatively young age at the time he commenced offending into account". The applicant alternatively submitted that his Honour "did not give sufficient weight to the applicant's powerful subjective case when fixing the non-parole period", and that he "did not make specific findings in relation to each subjective factor".

Crown submissions

1. With respect to the first ground of appeal, the Crown pointed to the fact that the applicant was 23 years old at the time the offending commenced, and almost 27 years old at its conclusion. The Crown submitted that there was no evidence before the sentencing judge that any immaturity on the applicant's part was a factor in the commission of the offences, or that any immaturity on the applicant's part contributed to him becoming involved in CFD trading.
2. With respect to the applicant's submission that the sentencing judge erred by not taking into account the applicant's addiction to trading in CFDs when assessing his moral culpability, the Crown pointed in turn to the decision in Johnston, where Bathurst CJ (with whom Johnson and Fagan JJ agreed) said that where offences are committed to feed a gambling addiction, that will not generally be a mitigating factor on sentence, even where the addiction is pathological. This is particularly so where the offending involves planning or is committed over an extended period, as the offender had a degree of choice as to how they would finance their addiction.
3. Further, the Crown submitted that ground one as framed assumed that the applicant was "addicted" to trading in CFDs, where no such factual finding was made by the sentencing judge and, indeed, as pointed out orally, the sentencing judge held that the applicant's evidence in relation to CFD trading generally lacked credibility. The sentencing judge accepted the Crown's submission that: "… to the extent that any money was spent [on] CFD trades that does not mitigate the offending or reduce the offender's culpability in any way. The trades were engaged in an attempt to 'get rich quick' … if anything, the CFD trades provided a smokescreen by which the offender could explain his newfound wealth to his family and associates".
4. The Crown therefore submitted that it was entirely appropriate for the sentencing judge to find that nothing presented in the applicant's subjective material mitigated his moral culpability, and that it was appropriate for his Honour to disregard the applicant's age as being irrelevant to mitigate his offending. As will be explained later in these reasons, I do not in fact consider that the applicant's age was disregarded by the sentencing judge; rather, it was a matter the sentencing judge was conscious of, but did not regard as relevant, in the circumstances of the case.

Youth and its impact on sentencing

1. The rationale for taking into account an offender's youth in sentencing was summarised by McClellan CJ at CL at [22]-[23] of his Honour's dissenting judgment in KT v The Queen (2008) 182 A Crim R 571; [2008] NSWCCA 51 (KT), as follows: "22 The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. 23 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61])."
2. In KT, the offender was almost 17 years old at the time of the offending, and was found guilty of manslaughter following an obviously immature incident involving the "egging" of the deceased victim and other pedestrians from a motor vehicle in the company of other adolescents. Similarly, in MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397, which was cited by McClellan CJ at CL in the passage extracted at [30] above, the three offenders were aged 15 years and 7 months, 15 years and 10 months, and 14 years and 5 months respectively at the time of the offences.
3. It should also be observed that in KT, Hall J who, with Price J, constituted the majority, said at [103]-[104] that: "103 Plainly, there is no hard and fast general rule that applies uniformly in the sentencing of young offenders. One well-known principle, of course, is that when a court is required to sentence a young offender, considerations of punishment and general deterrence should in general be regarded as subordinate to the need to foster the offender's rehabilitation: see Tran (supra) at [9]. However, the phrase 'in general' is not to be overlooked. In Tran at [9], Wood CJ at CL observed: 'That is a sensible principle to which full effect should be given in appropriate cases. It can have particular relevance where an offender is assessed as being at the cross roads between a life of criminality and a law abiding existence.' (emphasis added) 104 Again, the phrase 'in appropriate cases' is not to be overlooked. His Honour went on in Tran to state (at [10]): 'What his Honour did not mention, and appears to have overlooked, however, was the qualification to that principle concerning young persons where they conduct themselves in a way that an adult does, and commit a crime that involves violence or is one of considerable gravity. In such a case, it is the function of the Court to protect the community, and to appropriately give effect to the retributive and deterrent elements of sentencing: Pham (1991) 55 A Crim R 128; Allam (Court of Criminal Appeal, New South Wales, 13 April 1993, unreported); DRL (Court of Criminal Appeal, New South Wales, 16 May 1997, unreported); Townsend & Cooper (Court of Criminal Appeal, New South Wales, 14 February 1995, unreported) and SDM (Court of Criminal Appeal, New South Wales, 4 August 1997) …'" (emphasis in original)

Manifestly excessive sentence

1. The principles concerning whether a sentence is manifestly excessive are well established: see Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (Obeid). For present purposes, the most relevant are that: 1. in order to succeed on a ground of appeal alleging that a sentence is manifestly excessive, the applicant must establish that the sentence was "unreasonable" or "plainly unjust": see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; Obeid at [443]; 2. intervention is warranted only when the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons, or where the sentence imposed is so far outside the range of sentences available that there must have been error: see Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; 3. an appellate court will not interfere in a sentence merely because it may have exercised its sentencing discretion differently: see Obeid at [443]; 4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: see Obeid at [443]; 5. it is only if an appellate court concludes that no judge properly exercising his or her sentencing discretion could have arrived at the same result that it is able to give any consideration to quashing the sentence and imposing a different one: see Edwards v R [2020] NSWCCA 141 at [23]; 6. the extent of the reduction of the non-parole period because of special circumstances is a matter within the discretion of the sentencing judge: see MD v R [2015] NSWCCA 37 at [40] (MD); R v Cramp [2004] NSWCCA 264 at [31]; Trad v The Queen (2009) 194 A Crim R 20; [2009] NSWCCA 56 at [33] (Trad). For a further useful summary of principles relating to manifest excess, see Thompson-Davis v R [2013] NSWCCA 75 at [53].
2. Further, manifest excess is not made out by reference to a small selection of cases. In Frahm v R [2014] NSWCCA 10, the applicant pleaded guilty to an offence of larceny and an offence of knowingly dealing with the proceeds of crime. He appealed his sentence on the basis of manifest excess and, in doing so, he referred to six cases which he claimed involved more serious offences but for which lesser sentences were imposed. In dismissing the appeal, Hoeben CJ at CL indicated that a small selection of cases "does not and cannot demonstrate that a particular sentence was manifestly excessive" (at [19]). Sentencing is a discretionary exercise, and no sentencing trend could be discerned from the six cases presented.

Consideration

1. The applicant's case is substantially founded upon two premises: (i) that he was a "youth" or "young offender" within the meaning of the authorities referred to at [30]-[46] above; and (ii) that the sentencing judge did not have regard to his youth in the exercise of his sentencing discretion.
2. In my opinion, neither of these premises is established.
3. The applicant was 23 years of age when the offending commenced. It continued for almost 4 years until the applicant was on the cusp of 27 years of age. The offences involved planning, premeditation and a degree of sophistication. They occurred on 99 separate occasions and were far from uniform in nature, although all were fraudulent and involved a major breach of trust. The fact that the applicant had been able to secure a position of trust within TBWA was inconsistent with any lack of maturity on his part. As the sentencing judge observed, in order to undertake the fraud on his employers, the applicant "utilised multiple methods including superannuation, royalty withholding tax, GST, payroll withholding tax". Furthermore, his Honour held that the applicant's methods involved "manipulation of BAS reports" and falsification of entries in TBWA's general ledger and tax accounts.
4. Although there is not necessarily a bright line demarking the boundary between youth and immaturity on the one hand, and adult responsibility on the other, and assessment must occur on a case-by-case basis, the nature and circumstances of the applicant's offending in the present case was not such as to attract the kind of considerations in respect of sentencing that were referred to in cases such as KT. The "audacity of youth" - the sentencing judge held that the offending was "both audacious and brazen" - is not to be conflated with immaturity.
5. The applicant was plainly not unintelligent. One of his character references referred to him having vied for the top position in each of his classes at school. He secured admission to the University of New South Wales albeit that he did not take up the opportunity that his enrolment permitted. Notwithstanding that, he had received 4 years of training as a cadet accountant within an accounting firm before being taken on by TBWA, the Australian subsidiary of a multi-national advertising agency. This engagement was consistent with his presentation as being both technically capable to perform the role of an assistant accountant and sufficiently responsible to be entrusted with aspects of the agency's financial affairs. The fact that he continued in TBWA's employ for 6 years also supports these observations. The applicant's intelligence and financial acumen extended to allowing him to manipulate a range of his employer's accounts and returns without his fraud being detected for almost 5 years (it first being discovered in 2017).

Amendments 21 December 2020 - Change made to headnote at (3) - "The availability of youth ..." has been changed to the "The audacity of youth ...". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2020