Director of Public Prosecutions (Cth) v Morris
[2024] VCC 1999
•6 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01124
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRANT MORRIS |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2024 | |
DATE OF SENTENCE: | 6 December 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Morris | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1999 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentencing - Dishonestly obtain a financial advantage by deception from a Commonwealth entity-mid-range – Attempting - Goods and Services Tax-GST - Business Activity Statements-BAS – record of interview admissions - principle of parsimony - effect of any sentence on family or dependents - prospects of rehabilitation-fair – subsequent offending - custodial sentence ordinarily required – exceptional circumstances – deferral of sentence.
Legislation Cited: Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic).
Cases Cited:R v Sinclair (1990) 51 A Crim R 418; Totaan v R (2022) 108 NSWLR 17; Mohamed v R [2022] VSCA 136; Ryan v The King [2022] SASC 110; DPP (Cth) v Gregory (2011) 34 VR 1; Keefe v The Queen [2014] VSCA 201; Stamatopoulos v The Queen [2018] WASCA 148; DPP (Cth) v Alateras [2004] VSCA 214; Wong v The Queen (2001) 207 CLR 584; Henne v The Queen (unreported, Court of Appeal, Priest JA, 20/12/2016); The Queen v Anderson [2012] QCA 215; Acosta v The Queen [2015] VSCA 94; Thorn v The Queen [2009] NSWCCA 294; R v Massey [2015] QCA 254; R v Ibbetson [2020] QCA 214; Cao v R [2010] NSWCCA 109; R v Ruha [2010] QCA 10; DPP v Parfrey [2010] VSCA 212; Bruce v R [2022] VSCA 100; Stevens v The Queen [2020] VSCA 170; Parfrey [2010] VSCA 212.
Sentence: 2 years’ imprisonment – 7 months’ to serve - release on recognisance release order $1000 - Reparation Order $96,310 - s 6AAA declaration - 2 years’ and 7 months’ with 10 months’ to serve.
Secondary Sources: Sentencing of federal offenders in Australia: a guide for practitioners (7th ed, July 2024).
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr Regan | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr Brancato | Gallant Law |
HIS HONOUR:
1Grant Morris, you have pleaded guilty to the following offences:
(a) Dishonestly obtain a financial advantage by deception from a Commonwealth entity contrary to section 134.2(1) of the Criminal Code Act 1995 (Cth) (‘Criminal Code’), which attracts a maximum penalty of 10 years’ imprisonment.
(b) Attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity contrary to sections 11.1(1) and 134.2(1) of the Criminal Code, which attracts a maximum penalty of 10 years’ imprisonment.
2Both charges are rolled up.
3You will be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 18 November 2024, which I note is an agreed document.[1]
[1] Exhibit P1.
Summary of Offending
4Australian businesses are required to report their Goods and Services Tax (‘GST’) obligations and entitlements using Business Activity Statements (‘BASs’). These are usually lodged on a periodic basis, such as monthly, quarterly or yearly. Where the total of the GST claimed on a BAS exceeds what is collected by the tax payer in the applicable period, the Australian Taxation Office (‘ATO’) pays the taxpayer a GST refund for that reporting period
5When lodging a BAS, the person lodging declares that the information within the BAS is true and correct, and that that person is authorised to make the declaration.
6On 15 December 2021, you registered Australian Business Number (ABN) 97 193 054 159. The same day, you applied for a BAS registration using that ABN. On 16 December 2021, you updated the BAS account to a nominated Commonwealth Bank of Australia account in your name.
7Between 12 January 2022 and 12 March 2022, you lodged four BASs with the ATO that claimed GST refunds totalling $96,310. Each BAS contained false information as you were not operating a business, had not incurred GST on any purchases and were not entitled to GST refunds.
8Between 19 January 2022 and 20 March 2022, the ATO processed the BASs you had submitted and paid four GST refunds totalling $94,242.10 into your account. Deductions of two credit offsets totalling $2,067.90 were made from the first and fourth refunds and marked ‘credit transferred to child support’ (Charge 1).
9Between 20 April 2022 and 24 June 2022, you attempted to dishonestly obtain a financial advantage by deception by lodging three further BASs. You tried to claim refunds of $57,051. However, these were not paid by the ATO (Charge 2).
10The total business purchases claimed by you equated to $1,686,971 between December 2021 and June 2022. However, there is no evidence of business-related purchases at this scale, or any indicia of business purchases at all on your bank account. In fact, the ATO records for this period reveal that your main source of income was Government support payments.
Record of Interview
11On 14 February 2023, you participated in a recorded interview with authorities and made the following admissions:
(a) You were not working and had not worked for the previous 18 months, and your main income was Centrelink payments;
(b) You had never owned a business or been self-employed;
(c) You created a fake business in order to create an ABN and used that ABN to submit false BASs to the ATO to obtain a fraudulent GST refund;
(d) You recalled lump sums of between approximately $22,000 and $24,000 in GST refunds being deposited into your Bank Account; and
(e) You believed you had received about $90,000 in total from GST refunds from the ATO.
12On 21 February 2024, you were charged on summons with four charges of obtaining a financial advantage by deception and three of attempting to obtain a financial advantage by deception. These charges have been rolled up into charges 1 and 2 respectively for the purposes of sentencing.
Commonwealth Sentencing
13As you are being sentenced for federal offending, the court is guided by the regime set out in the Crimes Act 1914 (Cth) (‘Crimes Act’). In sentencing you, the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.[2] I am also mindful of the principle of parsimony – imprisonment is a sentence of last resort.[3]
[2] Crimes Act 1914 (Cth) s 16A(1).
[3] Ibid s 17A(1).
14I take into account the matters set out in Part 1B of Crimes Act. In particular, I have had regard to s 16A(2) which sets out a non-exhaustive list of factors that must be taken into account as far as they are relevant and known to the court.
Nature and Circumstances of the Offence & Offence committed as a course of conduct – s 16A(2)(a) & (c)
15Dishonestly obtaining a financial advantage by deception from the Commonwealth and attempting to do so are serious offences; so much is clear from the maximum penalty of 10 years’ imprisonment for each offence.
16The prosecution submits that your offending is objectively serious having regard to the following factors:[4]
(a) The preparation required to make false BAS statements involved a degree of sophistication, planning and premeditation;
(b) You lodged seven BASs over a period of five months, four of which resulted in refunds;
(c) Your offending was brazen in that you did not have any legitimate entitlement to the amounts claimed; this was not a case of overstating otherwise legitimate claims;
(d) The total quantum obtained to which you had no entitlement, $96,301, is considerable and indicates that the offending was motivated by greed, increasing your moral culpability; and
(e) You did not cease your conduct voluntarily - the conduct only ceased after the ATO audited your BASs and refused to process the claimed refunds.[5]
[4] The Commonwealth Director of Public Prosecutions, ‘Crown Submissions on Sentence’, Submissions in DPP v Morris, CR-24-01124, 13 November 2024, 3 [9] (‘Prosecution Submissions’).
[5] Crimes Act 1914 (Cth) s 16A(2)(c).
17Your counsel appropriately conceded that the offending is serious and that there was a level of sophistication and planning.[6]
[6] Gallant Law, ‘Defence Outline of Sentencing Submissions’, Submissions in DPP v Morris, CR-24-01124, 19
November 2024, [2]-[3] (‘Defence Submissions’).
18In these circumstances, I conclude that yours are mid-range examples of the offences.
Character, Antecedents, Age, Means and Physical or Mental Condition – s 16A(2)(m)
19You were 24 years old at the time of the offending and have just turned 27.
20You were born and raised in Melbourne, and grew up in the Mulgrave area. You are close with your mother, Beverly Van Den Bogaart, however have never known your father. Your mother worked very hard to ensure that you and your siblings had a stable upbringing.
21You have two sisters, Tiffany and Maddy. You have a great relationship with Maddy however have no relationship with Tiffany, whom you have not spoken to in approximately 10 years.
22You currently live with Mrs Van Den Bogaart and your two children (Kailah and Chayse). You no longer see the mother of your children and nor do your children. Mrs Van Den Bogaart is the full time carer for your two children, and she is very committed to helping you regain custody of them. Mrs Van Den Bogaart has indicated that in recent times you have taken on a much more hands on role with your children and have been more of a father figure.
23You have another child, Jaylah, who is 10 years old, however, you have no contact with them.
24You have a long term girlfriend, Ms Jacinda Sullivan, who has attended all court hearings, including the Plea Hearing for this current matter. Ms Sullivan wrote a letter to the court on your behalf.[7] She considers that you are genuinely remorseful and that you have overcome your drug habit. Ms Sullivan describes you as trustworthy and respectful. She is proud of the changes you have made in your life. Ms Sullivan continues to be an important support for your ongoing rehabilitation.
[7] Character Reference by Jacinda Sullivan dated 21 November 2024 (‘Exhibit D2’).
25You struggled academically and socially at school, however, you were able to complete Year 12 at Caulfield Community School.
26Since graduating, you have worked various labouring jobs, factory worker jobs and in traffic control. Prior to being remanded in March 2024, you were working as a delivery driver for Fruit2Work, and you have indicated that if you get your licence back in December 2024, you will return to this work.
27You had difficulty maintaining regular employment throughout 2020 to 2023, as you began using GHB and methylamphetamine. Your counsel submitted that everything spiralled out of control very quickly as the GHB took a hold on you.
Criminal History
28While you have no relevant criminal priors, you have offended subsequent to the conduct that gives rise to the present charges.
29You were sentenced for subsequent offending this year, which resulted in a sentence of 96 days’ imprisonment, a fine and a Community Correction Order.
30Since your release from custody in relation to these subsequent matters and continuing engagement with Corrections, you have not been using any illicit substances.
Matters in Mitigation
Guilty Plea – s 16A(2)(g)
31You pleaded guilty to these offences at an early stage, being four months after the committal mention. To your credit, you have spared the time and resources of the Court and prosecuting authorities, as well as sparing witnesses the ordeal of giving evidence at trial.
32Your guilty plea is a clear indication of both your remorse and your acceptance of responsibility for your offending. You are to be afforded a discount in sentence as a result.
33You made full admissions during the record of interview. This has facilitated the administration of justice.
Mental Health, Intellectual Functioning & Moral Culpability
34The court has not been provided with any psychological reports during your plea that would assist in determining any mental health conditions that may have moderated your moral culpability.
Probable Effect of Any Sentence on Family or Dependents – s 16A(2)(p)
35Your counsel indicated that the Court should have regard to the probable effect that an immediate term of imprisonment will have on your mother and your two children.
36Historically, s 16A(2)(p) was construed as requiring ‘exceptional circumstances’ to be enlivened.[8] In recent times, the New South Wales Court of Criminal Appeal disavowed historical authority to this effect and held that a court imposing a sentence for a federal offence need not find exceptional circumstances before the provision can be enlivened to mitigate sentence.[9] This position has since been adopted in Victoria.[10]
[8] See, e.g., R v Sinclair (1990) 51 A Crim R 418.
[9] Totaan v R (2022) 108 NSWLR 17.
[10] Mohamed v R [2022] VSCA 136, [83]-[93].
37As noted, your mother, Mrs Van den Bogaart is the primary carer of your two children. Mrs Van den Bogaart has provided a Character Reference to this court indicating you have formed a new relationship with your children, which includes more responsibilities as a parent and becoming a better role model for them.[11]
[11] Character Reference Letter by Beverley Van Den Bogaart dated 14 November 2024 (‘Exhibit D1’).
38You have indicated that you wish to become the full time carer of your children and that your previous incarceration caused you concern about your children’s wellbeing. I note that Child Protection is closely monitoring your involvement in the children’s lives.
39I accept, that a sentence of imprisonment will have a negative effect on your children, a topic to which I will return to later in these reasons.
Prospects of Rehabilitation – s 16A(2)(n)
40You are not considered a youthful offender, but are still relatively young. You have the bulk of your life ahead of you. In such cases, a court must give due weight to the goal of your rehabilitation.
41The references from your current partner, Ms Sullivan and your mother, Mrs Van Den Bogaart, evidence both the changes you have made to your lifestyle in recent times as well as your willingness to be a father for your two young children.
42You are currently serving a CCO for your subsequent matters having been sentenced by the Dandenong Magistrates’ Court. As noted, the sentence consistent of 96 days of imprisonment reckoned as time served, a $1,000 fine and a 12 month Community Correction Order with a condition to perform 120 hours of unpaid community work.[12]
[12] Defence Submissions (n 6) [4].
43Your Counsel submitted that your compliance with the CCO was a ‘slow burn’ and did not provide the court with an interim report to show your progress. Your Counsel stated that Corrections advised him that you had been complying with the drug screens, which are three urine screens per week with no positive tests. Presently, you are on the waitlist for a Drugs and Alcohol Treatment Program.
44Since your incarceration for your other matters, there has been no subsequent offending. Your counsel submitted that you had positive prospects of rehabilitation.[13]
[13] Ibid [22].
45The Crown submitted that your experience on remand may have been a ‘salutary lesson’ and there are indications of positive prospects for rehabilitation. Given your CCO only began in July 2024, I consider that it is too early to assess your engagement with the order with any confidence.
46Your counsel submitted that your offending in this instance and your subsequent offending was ‘short but sharp’. This does align with your lack of criminal history. It appears that your criminal offending first began during this incident and you have appeared three times in other courts during the last year. While this other offending is of a different nature to that before the court, it does raise questions in my mind about your prospects of rehabilitation which I have concluded are fair. In structuring this sentence, I have sought to promote your rehabilitation.
Sentencing Principles
Specific & General Deterrence – ss 16A(2)(j) & (ja)
47The court must have regard to the principles of just punishment, denunciation and general deterrence as guiding factors.
48General deterrence is the primary sentencing consideration for offences involving fraud against the public revenue.[14] Generally speaking, sentences imposed for fraud on the Commonwealth must give real effect to denunciation and general deterrence because:
(a) The offending has many harmful, but often hidden, social consequences;
(b) Revenue systems rely on honesty of claimants;
(c) The cost of fraud is borne by the whole community;
(d) Fraud is difficult to detect;
(e) The investigation and prosecution of fraud consumes considerable public resources; and
(f) General deterrence is likely to have a more profound effect in the case of white-collar criminals.[15]
[14] See eg, Ryan v The King [2022] SASC 110, [30], and the cases cited therein, including DPP (Cth) v Gregory (2011) 34 VR 1, [57].
[15] Keefe v The Queen [2014] VSCA 201, [77] (citations omitted). See also Stamatopoulos v The Queen [2018] WASCA 148, [41].
49The practical effect of these principles is that a custodial sentence is ordinarily required in cases involving tax and welfare fraud ‘unless the particular circumstances are sufficiently exceptional’.[16]
[16] DPP (Cth) v Alateras [2004] VSCA 214, [27].
50However, these general principles must yield to the circumstances of the particular case at hand. That is a function of the individualised approach to sentencing. In a case such as the present, that principle is reflected in s 16A(2) of the Crimes Act which requires a sentencing court to ‘address all the individual circumstances of the offence and the offender’.[17]
[17] Wong v The Queen (2001) 207 CLR 584, [135] (emphasis added).
51You have shown some level of remorse and have indicated you are willing to pay back the money to ATO on a payment plan and over time, pay off the debt. This is a positive although I note that you have not paid back any of the money you obtained.
52It is significant that there was a lengthy delay between the offending in January - June 2022 and the charges being filed in February of 2024. The delay is hard to understand given the extensive admissions you made at the time of your interview in February 2023.
53The delay operates in mitigation of sentence in that you have had the matter hanging over your head in the interim. However, yours is not a case where the delay works in your favour by enabling you to demonstrate a subsequent period of good behaviour.
Current Sentencing Practices
54The prosecution referred the Court to a number of appellate decisions which were said to provide ‘guidance as to the application of relevant sentencing principles’.[18] I have considered each of the decisions.
[18] Henne v The Queen (unreported, Court of Appeal, Priest JA, 20/12/2016); The Queen v Anderson [2012] QCA 215; Acosta v The Queen [2015] VSCA 94; Thorn v The Queen [2009] NSWCCA 294; R v Massey [2015] QCA 254; R v Ibbetson [2020] QCA 214; Cao v R [2010] NSWCCA 109; R v Ruha [2010] QCA 10; DPP v Parfrey [2010] VSCA 212.
55The cases have been of assistance within the recognised limitations of the help that a sentencing court may derive from earlier cases.
56I agree with the prosecutor that the closest of those cases to the facts of your case is that of Acosta. In that case, the 29 year old offender fraudulently obtained $33,181 and fraudulently attempted to obtain a further $56,601, over a period of 12 months by lodging tax returns containing false information. He had no prior convictions but had offended subsequently. There was also some delay. His overall prospects of rehabilitation were assessed as positive.
57A total effective sentence of 2 years’ imprisonment with 6 months to be served was upheld on appeal by the Victorian Court of Appeal. Having regard to the premeditated nature of the offending, its duration, the lengthy period over which it occurred, the significant amounts of money involved and the motivation being greed, the Court concluded that the sentence was well within the range reasonably open to the Judge.[19] That sentence imposed in that case was consistent with the other decisions cited.
[19] Defence Submissions (n 6) [39].
Submissions
58Your counsel Mr Brancato, submitted that it was open to the court to impose a non-custodial disposition having regard to the relevant circumstances.[20] Further, in oral submissions, Mr Brancato submitted that the court could defer sentence in lieu of imprisonment.
[20] Ibid [5].
59The Crown submitted that, having regard to the objective seriousness of the offending, the maximum penalties and the need to effect general deterrence, a term of immediate imprisonment is the only appropriate sentencing disposition.
60In response to a question from me about the availability of deferral in a Commonwealth case, Mr Regan for the Prosecution confirmed via email that the Court would not fall into legal error were it to defer your sentence.
61I accept that, where there is no express or implicit Commonwealth provision to the contrary, and given that deferral can be characterised as procedural in nature, deferral of sentence can be ordered.[21]
[21]Sentencing of federal offenders in Australia: a guide for practitioners (7th ed, July 2024), [1245]; s 83A
Sentencing Act 1991 (Vic)
62However, the Prosecution maintained that while this option is open to the court, the ultimate disposition should be a term of imprisonment.
Consideration
63As noted the charges are rolled up. While the maximum penalty does not change in such a case, the sentence imposed by the court must reflect the total criminality. All else being equal, a rolled up charge will attract a greater sentence than a single instance of offending.[22]
[22] Bruce v R [2022] VSCA 100, [31].
64I have given limited weight to the impact of your incarceration on your children. The deprivation of their father is the inevitable result of your offending. Further, although the children’s mother is not in their lives, they are fortunate to have a mature responsible adult looking after them, being your mother. Mrs Van den Bogaart is relatively young and in good health.
65I have rejected your counsel’s submission that I should defer sentencing in your case under s 83A of the Sentencing Act 1991. While I accept that I have the power to do this, yours is not an appropriate case for the exercise of this power for two reasons. First, the offending to which you have pleaded guilty is too serious. In accordance with the authorities to which I have referred, a custodial sentence with time to be served is appropriate. Secondly, there is insufficient evidence before the court that you are making real progress under the CCO to justify deferral to see how you are progressing in future.
66Contrary to the submissions of the prosecution I have determined that an aggregate sentence is appropriate.[23] The case of Stevens v The Queen[24] cited by the prosecution is distinguishable. This is not case where there are only two charges and one is ‘much more serious than the other’. Further, both charges are deserving of a custodial sentence. I note that the approach I have adopted was endorsed in Acosta, one of the cases relied upon by the prosecution.[25]
[23] Prosecution Submissions (n 4) 4-5 [20].
[24] [2020] VSCA 170.
[25] It was also adopted in DPP vParfrey [2010] VSCA 212.
Orders
67Taking into account the above and giving due weight to the matters of mitigation, the orders that I make in this case are:
(a) On charge 1, dishonestly obtaining a financial advantage by deception from a Commonwealth entity and charge 2 attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity, you are sentenced to an aggregate sentence of 2 years’ imprisonment.
(b) The sentence commences today.
(c) I make an order under s 20(1)(b)(ii) of the Crimes Act that you be released after serving 7 months upon entering into a recognisance in the sum of $1,000 to comply with the following conditions, that you:
(i)be of good behaviour for a period of two years;
(ii)be supervised by Corrections Victoria and obey all reasonable directions of Corrections Victoria;
(iii)not travel interstate or overseas without the written permission of Corrections Victoria;
(iv)report to Corrections Victoria at Dandenong Drug Court within two clear working days of your release from custody; and
(v)inform Corrections Victoria at Dandenong Drug Court of any change of address or employment within two clear working days of the change.
(d) Pursuant to s 21B(1) of the Crimes Act I make a Reparation Order in favour of the Crown in the sum of $96,310.
(e) I need to explain some of the features of this Order to you.
(i)Firstly, it is open to you to apply to this court to vary the terms of the order if any of the conditions that I have imposed have become particularly difficult to comply with. The court will consider the request in the relevant circumstances.
(ii)If you fail to comply with a condition any of the order without reasonable excuse, you can be brought back before this court and a judge of this court can:
·fine you up to 1000;
·increase the period that are required to be of good behaviour;
·can revoke the order; and
·resentence you in relation to the original offending, that is require you to serve out the entire head sentence of imprisonment of two years.
(f) Pursuant to s 18 of the Sentencing Act 1991, I declare that the 8 days of Pre Sentence Detention be reckoned as time served in relation to the sentence I impose today.
(g) Finally, pursuant to s 6AAA of the Sentencing Act 1991, had you pleaded not guilty to the charges, I would have sentenced you to an aggregate sentence of 2 years and 7 months with 10 months to serve.
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