Beacham v Christiansen
[2016] WASC 346
•31 OCTOBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BEACHAM -v- CHRISTIANSEN [2016] WASC 346
CORAM: BEECH J
HEARD: 21 OCTOBER 2016
DELIVERED : 31 OCTOBER 2016
FILE NO/S: SJA 1034 of 2016
BETWEEN: DAVID ARTHUR TERENCE BEACHAM
Appellant
AND
PAUL CHRISTIANSEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE A J MAUGHAN
File No :PE 7688 - 7696 of 2016, PE 7726 - 7758 of 2016
Catchwords:
Criminal law - Sentencing - Failing to give a document to Commissioner of Taxation - 42 offences - Fines totalling $30,000 - Whether manifestly excessive - Whether magistrate erred in taking into account general deterrence - Turns on own facts
Legislation:
Taxation Administration Act 1953 (Cth), s 8C
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr L Glenn
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Budget Nursery Pty Ltd v Commissioner of Taxation (Cth) (1989) 42 A Crim R 81
McMillan v Bierwirth (1987) 49 SASR 403
Vlahov v Commissioner of Taxation (Cth) (1993) 26 ATR 49
Weng Keong Chan v The Queen (1989) 38 A Crim R 337
Wilson v The State of Western Australia [2010] WASCA 82
BEECH J:
Introduction
On 1 April 2016 Mr Beacham pleaded guilty to 42 charges of failing to give a document to the Commissioner of Taxation when and as required pursuant to a taxation law. Nine of those charges related to Mr Beacham's failure to provide personal income tax returns for the nine financial years ending 30 June 2006 to 30 June 2014 (inclusive). For those offences, the magistrate imposed a global fine of $7,500. The other 33 charges related to Mr Beacham's failure to lodge quarterly business activity statements for 33 quarterly periods. The magistrate imposed a global fine of $22,500 in relation to those offences.
Mr Beacham appeals against the fines on the grounds that they were excessive and that the magistrate erred in saying the fine needed to be a deterrent to others. For the reasons that follow, I would not grant leave to appeal, and would dismiss the appeal.
The charges and the facts
The charges alleged offences under s 8C(1) of the Taxation Administration Act 1953 (Cth) (the Administration Act). That section provides that a person who refuses or fails, when and as required under or pursuant to a taxation law to do so, to give any information or document to the Commissioner commits an offence.
As at June 2015, Mr Beacham had not lodged personal income tax returns for the 15 financial years ending 30 June 2000 to 30 June 2014. By notice dated 5 June 2015 issued under s 162 of the Income Tax Assessment Act 1936 (Cth) (the Assessment Act), the Commissioner required Mr Beacham to lodge the income tax returns on or before 17 July 2015.
Charges PE 7688 ‑ 7696 of 2016 related to Mr Beacham's non‑compliance with that notice by failing to lodge the tax returns relating to the financial years ending 30 June 2006 to 30 June 2014 (inclusive).
Mr Beacham was registered in accordance with the provisions of div 25 of A New Tax System (Goods and Services Tax) Act 1999 (Cth). As a result, he was required by div 31 of that Act to give a document, namely a business activity statement (BAS) in the approved form, each quarter, to the Commissioner.
Charges PE 7726 ‑ 7758 of 2016 related to his failure to give the Commissioner a BAS for the 33 quarterly periods from 1 October 2005 to 30 June 2015.
By the time of the hearing before the magistrate, Mr Beacham had lodged the BAS statements, but the income tax returns remained outstanding.
The proceedings before the magistrate
Mr Beacham appeared on his own behalf before the magistrate on 1 April 2016. He indicated that he intended to plead guilty to the 42 charges. He said that he had previously read the prosecution notice and the statement of facts in relation to the offences. He said that although he had not taken legal advice he did not wish to do so.[1] The first charge and its averments was read to him. He said he understood.[2] He also said that he understood that the following eight charges were in a similar form.[3] The first of the charges relating to failure to lodge the BAS was read to him. He said he understood it and did not need the other charges to be read out to him.[4] He said he admitted the charges.[5]
[1] ts 2.
[2] ts 3.
[3] ts 4.
[4] ts 4 - 5.
[5] ts 5.
The magistrate entered pleas of guilty.[6]
[6] ts 5.
The prosecutor stated the facts consistently with what I have already said.
The prosecutor stated that as a result of the prosecution, the ATO had foregone administrative penalties of $5,670 for income tax charges and $21,270 for the BAS charges. The prosecutor stated that the maximum penalty for the income tax charges was a global fine of $57,800 and for the BAS charges a maximum penalty of $224,400.[7] The prosecutor submitted that although the prosecution could not and did not make a submission as to the appropriate sentencing range, it submitted that the accused should not derive benefit from being prosecuted, so that the fines should not be less than the administrative penalties that were foregone.[8] The prosecutor stated that the offences relate to conduct, some of which was up to ten years old, and that the offender had had ample opportunity to lodge the necessary return.[9] The prosecutor referred to the need for general and personal deterrence,[10] and to the long period of time over which there had been a failure to lodge returns.[11]
[7] ts 6.
[8] ts 6.
[9] ts 6 - 7.
[10] ts 7.
[11] ts 7.
Mr Beacham agreed with the prosecutor's summary of the facts.[12]
[12] ts 7.
The magistrate asked Mr Beacham what he would like to say about why it took him so long to file his BAS statements and why he was yet to file his personal income tax returns.[13] Mr Beacham said that he was just coming up with the money necessary to pay the accountant.[14] When asked why he was not lodging his returns on an annual basis, Mr Beacham said 'I really don't know, sir'.[15] He said that he had been on incapacity payments for the last seven years and so he had not had any money.[16] From 2006 to 2014 Mr Beacham said he was maintaining beer systems in hotels, on and off because of his surgeries, and that he would be surprised if he had earned $30,000 a year.[17] He referred to the figures that the prosecutor had mentioned as 'insanely scary'.[18]
[13] ts 7.
[14] ts 8.
[15] ts 8.
[16] ts 8.
[17] ts 8 - 9.
[18] ts 9.
The magistrate's sentencing remarks
The magistrate observed that, to Mr Beacham's credit, he had entered pleas of guilty at a reasonably early opportunity and that he would get a discount for that as it showed remorse and resulted in savings to the community.[19] He also gave credit to Mr Beacham for having taken steps to file the BAS statements. However, he observed that those statements showed that there was a current liability to the ATO of about $97,000, and that the public had been deprived of the use of those funds by his failure to lodge the returns.
[19] ts 9.
The magistrate also gave Mr Beacham credit for having taken positive steps to ensure that his accountant was preparing his personal income tax returns, and that would occur once sufficient funds had been given to pay the accountant.[20] The magistrate observed that he accepted Mr Beacham's statement that the returns will disclose little or no income tax liability, and that that was a mitigating circumstance.[21]
[20] ts 9.
[21] ts 9.
The magistrate stated that administrative fines of $5,670 in relation to the tax returns and a little over $21,000 in relation to the BAS statements were foregone by the Commonwealth, and accepted the prosecutor's submission that Mr Beacham should not be better off upon prosecution, as compared to the administrative penalties.[22] The magistrate said that there would be a small increase in respect of the BAS statements to reflect that they had been lodged and that there would be a greater increase in relation to the tax returns which had not yet been lodged.[23] The magistrate observed that some of Mr Beacham's financial difficulties may be a result of his tardiness in complying with his obligations to lodge returns on an annual basis.[24] He found that because of the ongoing nature of the offending it was necessary to impose a penalty that would act as a deterrent to Mr Beacham and also to others.[25]
[22] ts 10.
[23] ts 10.
[24] ts 10.
[25] ts 10 - 11.
The magistrate imposed a fine of $7,500 and an order for costs in relation to the failure to lodge the personal income tax returns. He also made an order pursuant to s 8G of the Administration Act that those returns be filed within two months. In relation to the failure to comply to lodge BAS statements, he imposed a global fine of $22,500.[26]
[26] ts 11.
The grounds of appeal
Mr Beacham's grounds of appeal read as follows:
1.The penalty was excessive and unjust. After searching similar cases this penalty appears to exceed the rule of justice.
2.The magistrate made comments that an example needs to be made of me. I am not that person that needs to be made an example of.
3.I explained I am receiving incapacity payments from the Department of Defence as my income.
4.I am not in a high profile position or someone of great influence.
Appeals against sentence: general principles
The principles relevant to an appeal against sentence are well known. They were summarised in Wilson v The State of Western Australia.[27] Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either express or implied error. Express error involves acting on a wrong principle, for example by mistaking the law or facts, or taking into account an irrelevant matter or failing to take into account a relevant consideration. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
[27] Wilson v The State of Western Australia [2010] WASCA 82 [2].
Grounds 2, 3 and 4 appear to complain of express errors, and ground 1 complains that the penalty was manifestly excessive; that is an allegation of implied error. It is convenient to commence with grounds 2 and 4.
Grounds 2 and 4
Ground 2 complains that the magistrate made a comment that an example needed to be made of Mr Beacham and that he was not an appropriate person to be made an example of. Ground 4 develops that notion in stating that he is not in a high profile position or someone of great influence.
In determining the appropriate sentence a sentencing court routinely takes into account the need to deter others from engaging in similar conduct. This is known as general deterrence. General deterrence is a relevant consideration in determining the appropriate sentence for an offence against s 8C of the Administration Act.[28] The magistrate did not say that Mr Beacham needed to be made an example; he said that the fine needed to deter others. That is an uncontroversial and orthodox reference to general deterrence. There is nothing in the circumstances of this case to mean that it was not an appropriate vehicle for general deterrence. To the contrary, Mr Beacham's offending was extensive and ongoing over a significant period of time. Moreover, the relevance of general deterrence is not restricted to the sentencing of those who are in high profile positions, or of great influence.
[28] McMillan v Bierwirth (1987) 49 SASR 403; Vlahov v Commissioner of Taxation (Cth) (1993) 26 ATR 49, 52.
For these reasons, grounds 2 and 4 have no reasonable prospects of success.
Ground 3
Ground 3 points to the fact that Mr Beacham was in receipt of incapacity payments.
Section 16C of the Crimes Act 1914 (Cth) requires that, before imposing a fine, the court take into account the financial circumstances of the person.
The magistrate heard submissions from Mr Beacham in which Mr Beacham's poor financial position was emphasised, including that he was in receipt of incapacity payments. There is no reason to suppose that the magistrate did not take that into account. The magistrate expressly referred to Mr Beacham's poor financial position. The weight to be given to that circumstance was a matter for the discretion of the sentencing magistrate.
There is no merit in ground 3.
Ground 1
Ground 1 alleges, in effect, that the fine imposed was manifestly excessive. To determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law, the standards of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending, and the personal circumstances of the offender.[29]
[29] Weng Keong Chan v The Queen (1989) 38 A Crim R 337, 342.
For the reasons that follow, there is no merit in the contention that the fines imposed by the magistrate are manifestly excessive.
The prosecutor informed the magistrate that the administrative penalties were $21,270 for the BAS offences and $5,670 for the personal tax return offences. In fact, correctly calculated, the administrative penalties under s 286‑75 and s 286‑80 of the Administration Act were a little higher, respectively $21,450 and $7,650. Nothing turns on that error since it worked in Mr Beacham's favour.
There is no error in the magistrate's starting point that a fine of an amount something more than the administrative penalty is generally appropriate. There is consistent intermediate appellate authority, including a decision of the Full Court of this State, that in sentences for offences of this kind the starting point is the statutory administrative penalty for the offences in their circumstances.[30] Further, it has been said that the taxpayer's financial circumstances and the absence of actual dishonesty do not normally justify a reduction below the administrative penalty.[31]
[30] Vlahov v Commissioner of Taxation (52); McMillan v Bierwirth (404 ‑ 405); Budget Nursery Pty Ltd v Commissioner of Taxation (Cth) (1989) 42 A Crim R 81, 85.
[31] Vlahov v Commissioner of Taxation (52); McMillan v Bierwirth (405).
The length of time over which the offending conduct occurred is relevant to the objective seriousness of the offending and so to the appropriate penalty.[32]
[32] Vlahov v Commissioner of Taxation (52).
The magistrate imposed fines that were a little higher than the relevant administrative penalties. Given the number of offences and the length of time over which they were committed, those fines cannot be said to be manifestly excessive.
The contention that the fines imposed are manifestly excessive has no reasonable prospects of success. I would refuse leave to appeal on ground 1.
Conclusion
In circumstances where Mr Beacham is self‑represented, I reviewed the magistrate's reasons to see whether any express error was apparent. In my view the reasons do not reveal any error. I have set out, earlier in these reasons, the various matters expressly taken into account by the magistrate. As already explained, there was no error in the magistrate's starting point. The magistrate properly took into account, in Mr Beacham's favour, the entry of pleas at a reasonably early opportunity, demonstrating acceptance of responsibility, and attracting a discount; the fact that Mr Beacham had filed the BAS statements and had taken steps toward filing the tax returns and those returns would disclose little or no income tax liability. His Honour also properly took into account the number and natures of the charges before the court, the ongoing nature of the conduct over a period of about nine years, and the fact that the BAS statements once lodged showed a current liability to the ATO of about $97,000, funds which the public had been deprived of over the period of the delay.
For the reasons I have given, there is no merit in any of Mr Beacham's grounds of appeal. I would refuse leave to appeal in respect of all grounds, and dismiss the appeal.