Bransby v The Queen
[2010] WASCA 165
•6 AUGUST 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BRANSBY -v- THE QUEEN [2010] WASCA 165
CORAM: McLURE P
MAZZA J
HEARD: 24 JUNE 2010
DELIVERED : 6 AUGUST 2010
FILE NO/S: CACR 28 of 2010
BETWEEN: BRETT WILLIAM BRANSBY
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KENNEDY CJDC
File No :IND 1260 of 2009
Catchwords:
Criminal law - Application for leave to appeal against sentence - 11 counts of fraud contrary to s 1351(3) of the Criminal Code (Cth) - False Business Activity Statements - One transaction rule - Totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 27(1), (2)
Criminal Code (Cth), s 135.1(3)
Result:
Application for leave to appeal against sentence refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Bowman v The Queen (1993) 69 A Crim R 530
Director of Public Prosecutions v Grabovac [1998] 1 VR 664; (1997) 92 A Crim R 258
Director of Public Prosecutions v Hamman (Unreported, NSWCCA, 1 December 1998)
Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Bilal Skaf [2005] NSWCCA 297
R v Cappadona [2001] NSWCCA 194; (2001) 122 A Crim R 52
R v Faithfull [2004] WASCA 39
R v Ronen [2006] NSWCCA 123; (2006) 161 A Crim R 300
Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129
Royer v The State of Western Australia [2009] WASCA 139
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Seroka v The State of Western Australia [2006] WASCA 284
Wilson v The State of Western Australia [2010] WASCA 82
McLURE P: I agree with Mazza J generally for the reasons he gives that leave to extend the time within which to appeal should be refused and the appeal dismissed. I propose to shortly state my reasons on the challenge to the partial cumulation of the sentences.
The appellant was convicted of 11 counts of doing something with the intention of dishonestly causing a loss to another person contrary to s 135.1(3) of the Criminal Code (Cth). The appellant was sentenced to 2 years 3 months' imprisonment on each count. The sentencing judge ordered that the sentences on counts 1 and 2 be served cumulatively and that all the other sentences be served concurrently, resulting in a total sentence of 4 years 6 months.
The 11 counts correspond with 11 separate entities registered by the appellant (each allocated a different ABN) in order to dishonestly claim refunds of GST. The appellant registered the entities progressively over the period 5 February 2007 to 25 November 2008. A number of new entities were registered after the Australian Taxation Office (ATO) placed stops on refunds to the entities the subject of some of the counts in May 2008. The appellant used the names of strangers for a number of the entities which had the effect of avoiding the stops and distancing the appellant from the offending.
Between 23 November 2007 and 1 December 2008, the appellant lodged 63 separate business activity statements (activity statements) in each of which he falsely claimed a refund of GST. Refunds are issued on the basis of information contained in the activity statements. It is a self‑assessment system which relies upon the honesty of tax payers. Thus, general deterrence is a weighty sentencing consideration.
Each individual count relates to all false activity statements submitted by the same entity. So for example, count 1 relates to three activity statements and 18 amended activity statements lodged by the entity 'BW and S Bransby' with the ATO, all of which were false. With the exception of counts 10 and 11, each count relates to multiple acts of dishonest conduct.
What the facts disclose is that there is no arguable basis for a claim that the individual counts contain common elements in the sense in which that expression is used in Pearce v The Queen (1998) 194 CLR 610. There being no common elements, there is no basis for a claim of double punishment.
Moreover, I would not characterise the 11 counts as being part of one transaction as that expression is explained and applied in R v Faithfull [2004] WASCA 39 [25] ‑ [28]. Although the modus operandi is the same for each count, the facts and circumstances of each count are sufficiently differentiated. Each count involves the creation and use of a separate false entity as the vehicle for lodging separate false activity statement forms from time to time over a lengthy period.
In any event, whether or not all of the offending could be characterised as one transaction would not, in the circumstances of this case, affect the outcome because of the application of the totality principle. This court has on a number of occasions rejected the proposition that the highest maximum penalty for an individual offence (in this case 5 years) provides any ceiling or yardstick for determining a just and appropriate total sentence for multiple offences: Seroka v The State of Western Australia [2006] WASCA 284 [25] ‑ [53]; Bowman v The Queen (1993) 69 A Crim R 530, 538. Roberts‑Smith JA said in Seroka:
The appellant's submission that the sentencing Judge here erred in not having regard to the 'rule' that a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual sentences involved, cannot succeed. There is no such 'rule'. Nor is there any principle or guideline to such effect which applies to the exercise of the sentencing discretion in this State [52].
Having regarding to the overall criminality involved in the appellant's offending and all other relevant sentencing factors, including those referable to the appellant personally, a claim that the total sentence of 4 years and 6 months is not a just and appropriate disposition has no reasonable prospects of success.
MAZZA J: Before the court are applications for an extension of time within which to appeal and for leave to appeal against a total sentence of 4 years 6 months' imprisonment, with a minimum of 2 years 3 months imposed by Kennedy CJDC on 20 October 2009 for 11 offences of fraud contrary to s 135.1(3) of the Criminal Code (Cth). Each of these offences carries a maximum penalty of 5 years' imprisonment.
The appeal was filed almost four months out of time. The appellant has at all times acted for himself. He sought to explain the delay in an affidavit sworn 4 March 2010. There is no need for me to refer to the
affidavit in detail. It is sufficient for me to say that if the appeal had merit, I would, in the interests of justice, grant the extension of time.
Leave to appeal is required for each ground of appeal. This court must not grant leave unless it is satisfied that the ground has a reasonable prospect of success: s 27(1) and (2) Criminal Appeals Act 2004 (WA). To have a reasonable prospect of success, a ground must have a rational and logical prospect of succeeding. In other words, a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] ‑ [61].
Background
Over a period of just over one year, the appellant lodged a total of 63 business activity statements (BAS) with the Australian Taxation Office (ATO) in which he falsely claimed refunds of goods and services tax (GST) totalling $446,867.
The appellant submitted the BAS using 11 different entities, nine of which used the names and personal details of third parties without their knowledge and permission. Some of these people were members of the appellant's family, others friends and some were AFL footballers. Out of the $446,867 he claimed, the appellant received $334,707. None of this money has been recovered by the ATO, nor is it likely to be recovered.
For each entity, the appellant obtained an Australian Business Number (ABN). An ABN is required for any entity which carries on an enterprise that is liable to collect and pay, or seek a refund of, GST.
The appellant registered each entity using a post office box number as the address and, for the payment of any refunds, he provided the details of three of his bank accounts.
An entity registered with the ATO for GST must complete a BAS and submit it to the ATO periodically. In that document, the entity must state any GST it has collected and may claim credit for the GST included in the price of its own business purchases. This is called an input tax credit. An entity may claim a refund of the GST where its input tax credits exceed the GST it has collected. Working out the GST liability and refund is the responsibility of the taxpayer. It is a self‑assessment system which is reliant upon the honesty of the taxpayer.
I have set out below the relevant details pertaining to each offence.
| Count | Date of Offence (Between) | Entity | No of BAS | Amount Claimed |
| 1 | 23 November 2007 & 15 October 2008 | B W & S Bransby | 21 | $50,338 |
| 2 | 25 March & 28 October 2008 | B W Bransby | 7 | $26,717 |
| 3 | 20 May & 2 July 2008 | B W & C R E Bransby | 5 | $20,104 |
| 4 | 11 July & 20 October 2008 | B D Jones & M N Rosa | 12 | $121,947 |
| 5 | 4 July & 21 July 2008 | B W & C R Bransby | 3 | $28,283 |
| 6 | 27 August & 20 November 2008 | S F Lamont & R M Lamont | 2 | $22,659 |
| 7 | 2 September & 22 November 2008 | J S Chaplin & R M Lamont | 7 | $78,335 |
| 8 | 3 October & 15 October 2008 | R M Lamont & L B Speller | 2 | $27,414 |
| 9 | 5 November & 22 November 2008 | G W Bransby & M J Bransby | 2 | $47,314 |
| 10 | On or about 20 November 2008 | A R Browne & C R Mayne | 1 | $16,838 |
| 11 | On or about 1 December 2008 | B W Bransby & M J Bransby | 1 | $6,918 |
| 63 | $446,867 |
On 5 December 2008, the appellant was interviewed by ATO officers. In that interview, the appellant admitted creating the entities and lodging false BAS in order to receive money, the vast majority of which he gambled. The appellant said that he lodged the BAS forms online and that he had no right to the money he claimed.
The appellant was, depending on the date he offended, 34 or 35 years of age. He was educated to year 12. After leaving school, he was employed in the hospitality industry and later as a salesman.
Dr Adam Brett, a consultant forensic psychiatrist, said in his court‑ordered report dated 22 August 2009 that the appellant has a pathological gambling disorder and a depressive disorder. Dr Brett said that the appellant had been a pathological gambler since the age of 24 and his depressive disorder was longstanding. At the time he was sentenced, the appellant was taking prescribed antidepressants and was undertaking psychological counselling and attending Gamblers Anonymous on a regular basis. In Dr Brett's opinion, the appellant's gambling problem 'appear[ed] to be closely related to his offending and previous offending'.
Tanina Oliveri, a clinical forensic psychologist, in her report dated 28 August 2009 described the appellant as a man:
[E]xperiencing many psychological problems including depression and anxiety. He devalues and deprecates himself, is avoidant, passive and dependent in relationships. He acts in self‑defeating ways and he experiences endless disappointments, feelings of guilt and shame, and erratic behaviour.
She further noted that the appellant:
[W]as fully aware that his actions were wrong and illegal and his offences were planned and organised in order to obtain money to gamble and to pay debts [and] showed high levels of regret and remorse and good victim empathy.
At the time that the appellant was sentenced, he had the following relevant criminal history:
| Date of Conviction | Court | No of Offences | Offence | Outcome |
| 27 February 2006 | Perth Magistrates Court | 85 | Fraud | 18‑month intensive supervision order |
| 27 February 2006 | Perth Magistrates Court | 1 | Stealing as a Servant | 18‑month intensive supervision order |
| 13 July 2004 | Perth Court of Petty Sessions | 6 | Fraud | $1,000 global fine |
| 20 July 2000 | Fremantle Court of Petty Sessions | 3 | Fraud | 6 months' imprisonment on each charge suspended for 15 months |
Her Honour's sentencing remarks
Her Honour's sentencing remarks are brief, but include all relevant matters. She accurately described the appellant's antecedents. She expressly referred to the fast‑track pleas of guilty and reduced the sentences that she would otherwise have imposed by 25% to take into account this factor. She also referred to the appellant's depressive illness and compulsive gambling. Her Honour gave what she described as 'a relatively modest reduction' for these factors. No criticism is made of this.
At ts 5, her Honour said:
These are significant offences; and at the time of making submissions, the prosecutor spelt out the very significant aspects of this offending. And if we even put all of those aside, the fact is there's an enormous amount of money missing that will never be repaid.
The 'very significant aspects of this offending' referred to by the prosecutor were that the appellant's offending was premeditated, calculated and systematic and required both general and personal deterrence. None of this is challenged and it is plainly right.
Her Honour sentenced the appellant to 27 months' imprisonment on each count. She ordered that the terms on counts 1 and 2 be served cumulatively and that all other sentences be served concurrently. She fixed a non‑parole period of 2 years 3 months' imprisonment.
Grounds of appeal
The appellant originally submitted seven grounds of appeal. However, in the end, he pursued two grounds only, being grounds 1 and 7 in his notice of appeal. These grounds are in the following terms:
1.The sentencing judge imposed a sentence that was manifestly excessive. Given the fact that all of the offences contained essentially common elements and were committed against the one entity, the sentencing judge erred in ordering cumulation of the sentences for the first two counts
...
7.The learned sentencing judge failed to take into consideration the administrative penalty of 75% which was imposed by the Commissioner of the ATO upon the appellant. This equates to over $251,000.
Appellate sentencing principles
The relevant principles which apply to this appeal are stated in Wilson v The State of Western Australia [2010] WASCA 82 [2] at points 1 ‑ 3. There is no need to repeat them here.
Ground 1
Although the ground is not clearly expressed, the appellant in his written case submitted that the total sentence imposed upon him offended the so‑called one transaction rule and the totality principle. He asserts that all of the sentences should have been ordered to be served concurrently. In other words, that the proper head sentence was 27 months' imprisonment. If this ground succeeds, some adjustment would have to be made to the minimum term.
The appellant submitted that his offending constituted a continuing episode of offending against the same victim, using the same modus operandi and that he has been punished twice for essentially the same criminality. The appellant cited many cases in support of his submissions, including Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, Director of Public Prosecutions v Grabovac [1998] 1 VR 664; (1997) 92 A Crim R 258 and Royer v The State of Western Australia [2009] WASCA 139.
The appellant submitted that the overall sentence of 4 years 6 months offended the first limb of the totality principle, namely, that the overall sentence does not bear a proper relationship to the level of the criminality involved. He sought to demonstrate this by pointing out that the maximum penalty for any individual offence was 5 years' imprisonment and that the total term of imprisonment he received for all of the offences was 90% of that maximum. The appellant provided the court with a lengthy table entitled 'Case Law Sentencing Matrix' in which the appellant referred to 28 cases involving various offences of dishonesty where the offender received a sentence which represented a lower proportion of the maximum penalty than he received.
So far as the one transaction rule is concerned, as has been said more than once in the cases, it is not a rule at all. There is no absolute requirement that a sentencing judge must impose concurrent terms in cases involving multiple offences constituting a continuing episode. In each case, what justice requires is due consideration of whether, and to what extent, the appellant was truly engaged upon one multi‑faceted course of criminal conduct, and whether the sentences imposed properly reflected the outcome of that consideration: Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 [5].
In the present case, while the offences were committed against the one entity and involved the same modus operandi, the appellant offended repeatedly, using 11 separate entities to submit a total of 63 false BAS at different times over a period of approximately one year. Her Honour's judgment to accumulate just two of the 11 offences does not, in my opinion, offend any of the considerations which base the one transaction rule. In particular, it has not been demonstrated that the appellant has been punished twice for the same offending. The appellant's submissions on this point cannot be sustained.
I now turn to the submission that the total sentence offended the first limb of the totality principle.
The appellant's submission that he has demonstrated a breach of the totality principle by showing that the overall sentence was 90% of the maximum penalty for one offence is misconceived. The question of whether the first limb of the totality principle has been breached is not rationally answered by a comparison of the total sentence that was imposed as against the maximum penalty available for one offence, especially when, as in this case, the maximum penalty for any one offence is relatively low.
The overriding principle is that the total sentence should be proportionate to the degree of criminality involved: Bowman v The Queen (1993) 69 A Crim R 530, 541. In appropriate cases of multiple offending, this may lead to the imposition of a total sentence which is close to, or even exceeds, the maximum penalty available for one offence (of course, I leave aside those offences which carry a maximum penalty of life imprisonment). A stark example of this is R v Bilal Skaf [2005] NSWCCA 297. In that case, the appellant committed two series of sexual offences, including aggravated sexual assaults, on two separate days. The first series of offences involved two complainants and the second series involved one complainant. The maximum penalty for the offences of aggravated sexual assault was 20 years' imprisonment. On appeal, the appellant's original sentence was reduced from 46 years to 28 years' imprisonment.
The totality principle is not a means by which an offender can escape just punishment for a series of offences committed over a long period of time of the same nature. Without doubt, the appellant's offending was serious. In addition to the features which have already been identified, the appellant realising the GST refund system relied on self‑assessment exploited it and obtained a large amount of money which has been lost. General deterrence is the predominant consideration in cases of fraud on the revenue: R v Cappadona [2001] NSWCCA 194; (2001) 122 A Crim R 52, 59. In my opinion, the total sentence imposed on the appellant was a proper reflection of his overall criminality. I see no reason to interfere with it.
Ground 1 has no reasonable prospect of success.
Ground 7
The learned sentencing judge was told by the appellant's counsel in the course of his plea in mitigation that the appellant was liable to pay an administrative penalty of 75% of the amount he defrauded. The appellant's counsel made the frank admission that it was highly unlikely to ever be paid. The issue was not referred to in the sentencing reasons.
No material was put in front of the learned sentencing judge to confirm defence counsel's statement that the appellant was liable to pay an administrative penalty of 75% of the amount defrauded. However, no exception was taken to defence counsel's statement and I will proceed on the assumption that the statement is accurate.
In Director of Public Prosecutions v Hamman (Unreported, NSWCCA, 1 December 1998), Sheller JA said that payment of additional tax by way of penalty was 'of small account'. However, since the decision of the High Court in Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129, it has been suggested that payment of penalty tax may have more mitigating weight than suggested by Sheller JA. In R v Ronen [2006] NSWCCA 123; (2006) 161 A Crim R 300 Howie J (with whom Spigelman CJ and Kirby J agreed) said at [51] ‑ [52] that he favoured an approach where each case is considered on its own merits. One of the factors which he said might be considered is the capacity of the offender to pay the penalty.
It is not necessary on the facts of this case to make any authoritative statement about the mitigatory weight which might be given to the payment of an administrative penalty. Here, the appellant has no capacity to repay the amount he defrauded the Commonwealth, let alone any penalty. It is highly unlikely that he will suffer any hardship as a result of the administrative penalty. In these circumstances, the imposition of the administrative penalty carries no mitigatory weight.
Ground 7 has no reasonable prospects of success.
Conclusion
Neither ground of appeal has any reasonable prospect of success. In the circumstances, given that the appeal has been brought our to time and is without merit, I would not grant an extension of time within which to appeal. I would make the following orders:
1.The application of the appellant to extend the time within which to appeal is refused.
2.The appeal is dismissed.
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