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[2000] QCA 297
Court of Appeal (Qld)
2000-07-26
Jersey CJ, Pherson JA, Mullins J
Original judgment source is linked above.
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Appellant
THE CHIEF JUSTICE: The respondent is a 49-year-old businessman of previously unblemished character who was convicted by a jury of defrauding the Commonwealth.
He ran a truck dealership in Gympie through a unit trust of which he was the sole beneficiary. He defrauded the revenue by understating the value of the stock at the close of the 1990 tax year. He placed a value of $233,000 on the stock. The Commissioner of Taxation assessed tax on that basis.
A subsequent tax audit showed that the number of vehicles in stock had been understated, there were 57, not 25, and the value declared of $233,000 sat uncomfortably at least with the cost price of the vehicles to the business which had exceeded $2.1 million. It appears to have been accepted that the trust's income was understated by at least $1.2 million.
The sentencing judge said that the amount defrauded was difficult to quantify but that it was substantial measured in tens, if not hundreds of thousands of dollars.
This, it must be acknowledged, was one offence, not a series of offences, albeit one offence with substantial immediate financial consequence to the respondent.
The judge accepted that the tax lost could possibly be recouped through subsequent sales of the vehicles. In a sense as was therefore urged there is an issue of timing here. The Commissioner may have lost only the benefit of the earlier payment of tax on the financial details as presented for 1990 but may recoup the appropriate amount on subsequent returns upon sales of vehicles.
The answer to that sort of contention is that it was not up to the respondent dishonestly to avoid an immediate obligation in order to enhance his own financial position.
The judge sentenced the respondent to three years' imprisonment to be released on recognisance after six months. The judge recognised that the trend of cases suggested that a substantial head term should be imposed and that the respondent should have to serve a term of actual imprisonment.
The authorities certainly do support that approach. The range for head sentence was, I believe, in this case three to five years' imprisonment. See Wright (1994)
74 Australian Criminal Reports 152, Mai unreported CA 257 of 1995, 25 August 1995; To and Do (1998) 100 Australian Criminal Reports 558; and Kazacos (1999) 106 Australian Criminal Reports 252.
The learned judge rightly pointed to the calculated nature of the crime and the respondent's remorselessness. His dishonesty was exacerbated by his deceitfully providing the tax office with a stock sheet totalling $233,000 in response to a query in November 1991. The tax office accepted that.
The crime was unearthed some years later through an audit. The judge rightly referred to that aspect. He said that the respondent had been guilty of what he called active concealment. He also acknowledged the very significant need in these cases for general deterrence. He set the short non-parole period recognising that the respondent had had to pay a substantial amount of penalty tax and had lost his business and previously good reputation.
No doubt the respondent has had to pay a high price for his crime, especially with the loss of his business, but the real issue now is whether in setting that especially short six month non-parole period the judge erred to the point where we should, on this appeal by the Director of Public Prosecutions, interfere. The particularly substantial consideration in cases of this character is the need for general deterrence.
I am not swayed by arguments that the Commissioner may not lose out financially in the end, that in real terms it is just a matter of timing. The jury has found that the respondent defrauded the Commonwealth, necessarily of course involving dishonesty, and in a way which involved a substantial understating of income, plainly for his own immediate financial benefit.
It may be accepted that three years' imprisonment was satisfactory although at the bottom of the relevant range. But then to require the respondent to serve only one-sixth of that term was, in my view, inappropriately disproportionate, bearing in mind that he had not pleaded guilty and notwithstanding Corbett, 1991, 52 Australian Criminal Reports 112 at 117, and Lowe, 1984, 154 Commonwealth Law Reports 606 at 610.
The maximum allowance for mitigating circumstances, the head sentence being at the bottom of the range, should have led to the respondent's being required to serve one-third of that term, and interfering to add that degree of proportion to the sentence, thereby doubling the period to be served is, in my view, plainly warranted. It must be noted that this would involve interfering, not with a recommendation as to parole but with the period of imprisonment actually and necessarily to be served.
I would therefore allow the appeal, varying the order made by the learned sentencing judge by substituting for the reference to release after six months on recognisance, release after 12 months.
THE CHIEF JUSTICE: The order is as I have indicated.
# THE QUEEN
LESLIE JAMES WALL & ANOR \[2000\] QCA 297