COLE -v- the QUEEN

[2013] WASCA 267

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   COLE -v- THE QUEEN [2013] WASCA 267

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   20 NOVEMBER 2013

DELIVERED          :   28 NOVEMBER 2013

FILE NO/S:   CACR 207 of 2013

BETWEEN:   AARON JAMES COLE

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SLEIGHT DCJ

File No  :IND 651 of 2013

Catchwords:

Criminal law - Appeal against sentence - Dishonestly obtaining a financial advantage from the Commonwealth by deception - Appellant sentenced on an incorrect factual basis - Matter remitted to District Court for resentencing - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 31(5)(b)
Criminal Code (Cth), s 11.1(1), s 134.2(1)

Result:

Leave to appeal granted
Appeal allowed
Sentence set aside
Matter remitted to District Court for resentencing

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Mr M G A Plummer

Solicitors:

Appellant:     JNC Legal

Respondent:     Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Nil

1. McLURE P:  This is an appeal against sentence.  On 20 November 2013 the court ordered that:

   (1)leave to appeal be granted and the appeal be allowed;

   (2)the sentence of 8 years' imprisonment, to serve a non‑parole period of 4 years and 9 months, imposed by his Honour Judge Sleight in the District Court at Perth on 4 October 2013 be set aside on the basis that the appellant was sentenced on an incorrect factual basis and a different sentence should have been imposed;

   (3)the matter be sent back to the District Court to be dealt with further, in accordance with subs 31(5)(b) of the Criminal Appeals Act 2004 (WA); and

   (4)the appellant be remanded in custody to appear in the District Court at Perth on 22 November 2013 at 10.00 am.

2. The respondent conceded the appeal and accepted that a different sentence ought to be imposed on the ground that the appellant was sentenced on an incorrect factual basis as to the period of offending.  The factual background is as follows.

3. The appellant was convicted in the District Court on 4 October 2013 of one count of dishonestly obtaining a financial advantage from the Commonwealth by a deception under s 134.2(1) of the Criminal Code (Cth) (the Code) and one count of attempting to commit an offence contrary to s 134.2(1) under s 11.1(1) of the Code. He was sentenced by Sleight DCJ to a total sentence of eight years' imprisonment with a non-parole period of four years and nine months, to commence on 4 October 2013.

4. The appellant was sentenced on the basis that the offending involved the lodgement by the appellant of 778 false Business Activity Statement (BAS) claims to the Australian Taxation Office (ATO), on behalf of 77 client entities, claiming a total of $1,764,202.88. It was contended that the offending conduct occurred between 1 February 2007 and 11 February 2012. The amount dishonestly obtained in count one was $1,727,239.07. Count 2 was for dishonestly claiming $36,963.81. A reparation order was made pursuant to section 21B of the Crimes Act 1914 (Cth) for the sum obtained in count one.

5. A Statement of Facts dated 11 February 2013, filed with the District Court, and submissions from the Crown, both written and oral, detailed that the appellant continued to lodge false BAS claims with the ATO until 10 February 2012, even after detection and after the appellant had participated in two taped records of interview.  The first interview took place with officers of the Western Australian Police on 22 November 2011 and the second with investigators from the ATO on 21 January 2012.  A third interview also took place with ATO investigators on 27 April 2012.  Lodgement of false BAS claims after acknowledgement of the offending conduct by the appellant at the first and second interviews was relied on by the Crown as a circumstance of aggravation which undermined the weight to be afforded to his cooperation at those interviews.

6. The sentencing judge placed significance on these facts, stating:

   … after you cooperated by allowing yourself to be interviewed, and you made full and frank admissions, [y]ou then further offended.  Now, this to some extent complicates the matter because generally cooperation and pleading guilty earlier is an indication that a person is remorseful for their behaviour.  That conclusion can't be reached in your case with any conviction because you continued to offend.

7. On 25 October 2013, subsequent to the filing of the Notice of Appeal by the appellant, the ATO informed the Office of the Commonwealth Director of Public Prosecutions that an error as to the dates of lodgement of some BAS claims had been made.  Specifically, the BAS claims previously said to have been submitted to the ATO by the appellant after the first and second interviews were in fact submitted on 18 November 2011.  Accordingly, the appellant ceased submitting false BAS claims on 18 November 2011 prior to any interview taking place.

8. The respondent conceded that this factual error was of importance to the sentencing discretion and had an impact on the sentencing process.  The respondent also conceded that the sentence imposed by the sentencing judge was excessive having regard to the true factual circumstances.

9. Further, the ATO subsequently identified that one BAS claim (item 6 on Annexure A to the Statement of Facts) was inadvertently duplicated, so the correct number of BAS claims lodged by the appellant is reduced from 778 to 777 and the amount dishonestly obtained is reduced by the sum of $1,465.00.  Accordingly, an amendment to the reparation order made by the sentencing judge will also be required.

1. The respondent's concessions were correctly made and required the orders made by the court at the hearing of the appeal.

2. BUSS JA:  I agree with McLure P.

3. MAZZA JA:  I agree with McLure P.