DPP (C'th) v Jackson
[2000] VSCA 247
•18 December 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 233 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA |
| Appellant |
| v |
| PETER JOHN JACKSON |
| Respondent |
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JUDGES: | TADGELL, CALLAWAY and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 December 2000 | |
DATE OF JUDGMENT: | 18 December 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 247 | |
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CRIMINAL LAW – Sentencing – Crown appeal – Multiple counts of defrauding the Commonwealth over many years – Sentence of 2 years 8 months’ imprisonment with release on recognizance after 9 months increased to 4 years’ imprisonment with non-parole period of 18 months – Double jeopardy – Crimes Act 1914, ss.5 and 29D, Financial Transactions Reports Act 1988, s.24.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr G.J.C. Silbert | Office of the Commonwealth Director of Public Prosecutions |
| For the Respondent | Mr O.P. Holdenson, Q.C. | Nedovic & Co. |
TADGELL, J.A.:
The Court's reasons in this case will be delivered by Mr Justice Callaway.
CALLAWAY, J.A.:
On 12th July 1996 the respondent was arrested in connection with his continued receipt of his mother's age pension following her death. It then became apparent that a large number of other offences had been committed. Eventually 70 additional charges were laid. The matter was mentioned in the Melbourne Magistrates' Court from time to time in late 1996, throughout 1997 and in early 1998. On 10th February 1998 the respondent was committed for trial. On 7th August of that year an indictment was filed in the County Court containing 20 counts. The respondent then pleaded guilty to all but five of those counts and, in April 1999, indicated that he would plead guilty to another four. On 19th June 2000 a 19-count indictment was filed over, to which the respondent pleaded guilty. All but two of the counts were of offences against s.29D, or ss.5 and 29D, of the Crimes Act 1914.
Although the counts are numerous, they relate to four distinct courses of criminal conduct:
· Count 1 charged that the respondent defrauded the Commonwealth by obtaining payments of age pension which were no longer payable following the death of his mother.
· Counts 2 to 5 charged conduct by which the respondent assisted one Donald Course to avoid payments of income tax. Count 2 refers to the opening of 12 accounts with financial institutions in false names, contrary to the provisions of s.24(1) of the Financial Transactions Reports Act 1988, and count 3 to the operation of 12 such accounts in false names, contrary to the provisions of s.24(2). Those offences took place between July 1988 and July 1996. Count 4 relates to income tax payable by course in the sum of $144,321.93 for the financial years ended 30th June 1985 and 30th June 1986 and count 5 to such income
tax in the sum of $869,691 for the financial years ended 30th June 1987 to 30th June 1995.
· Counts 6 to 16 relate to the respondent's failure to declare assessable income received by his family trust in its taxation returns for the financial years ended 30th June 1985 to 30th June 1995.
· Counts 17 to 19 concern the fraudulent receipt by the respondent, or his being knowingly concerned in the fraudulent receipt by his wife, of sole parent's benefit or family allowance.
The learned sentencing judge also distinguished between the four groups of counts on the indictment:
· The respondent was sentenced to six months' imprisonment on count 1.
· He was sentenced to three months' imprisonment on each of counts 2 and 3 and eight months' imprisonment on each of counts 4 and 5. Those four sentences were ordered to be served concurrently.
· He was sentenced to three months' imprisonment on count 6 and 12 months' imprisonment on each of counts 7 to 16. Those 11 sentences were also ordered to be served concurrently.
· He was sentenced to six months' imprisonment on each of counts 17, 18 and 19. Those sentences, too, were ordered to be served concurrently.
His Honour's directions as to the dates on which the four groups of sentences would commence resulted in a total effective sentence of two years and eight months' imprisonment, consisting of six months' imprisonment on count 1, six months' imprisonment on counts 17 to 19, eight months' imprisonment on counts 2 to 5 and 12 months' imprisonment on counts 6 to 16. It was ordered that the respondent be released on recognizance after he had served nine months of the total effective sentence.
Those sentences were passed on 13th July 2000. On 9th August 2000 the Director of Public Prosecutions appealed on the following grounds:
"1.The total effective sentence of 2 years, 8 months' imprisonment is manifestly inadequate and a different total effective sentence should have been imposed.
2.The term to be served of 9 months imprisonment is manifestly inadequate and a different term to be served should have been imposed.
3.The sentences of imprisonment imposed on each of counts 2 to 16 inclusive are manifestly inadequate and different sentences should have been passed.
4.The learned sentencing judge erred in that he made the sentences on counts 6 to 16 fully concurrent having regard to the nature, gravity and circumstances of the offending including the period over which it occurred.
5.The learned sentencing judge erred in that he made the sentences on counts 17 and 18 fully concurrent with the sentence on count 19 having regard to the nature, gravity and circumstances of the offending including the period over which it occurred.
6.The learned sentencing judge erred in that he failed to give sufficient weight to:
(a)The nature, circumstances and gravity of the offences committed by the respondent.
(b) The period over which the offending occurred.
(c)The variety of the criminal conduct over the period in question.
(d) The culpability of the respondent as principal offender.
(e)The role played by the respondent in facilitating the evasion of taxation by Donald Course.
(f)The total loss to the revenue resulting from the respondent's activities in relation to the affairs of Donald Course.
(g) The profit earned by the respondent.
(h) The lack of remorse on the part of the respondent.
(i) The need for specific deterrence.
(j)The need to pass a sentence that would be calculated to deter other persons disposed to commit similar offences from committing such offences."
Ground 1 was abandoned at the hearing of the appeal and Mr Silbert explained that no separate challenge was made to the term of nine months' imprisonment referred to in ground 2 if the head sentence remained. It will be observed that no complaint is made about the sentence imposed on count 1.
The appeal raises no question of legal principle save that implied by alleged manifest inadequacy. Both the public interest and justice to the respondent will be best served if we decide the case promptly. If we do not intervene, the respondent is due to be released in April next year. If we do intervene , it is only fair that he should know his position as soon as possible. We propose therefore to adopt the recitation of the facts in the sentencing remarks, together with his Honour's observation at p.133 of the transcript that these were "extremely serious examples of the particular types of crimes in question", and to proceed directly to what we perceive to be the points of substance.
Mr Silbert submitted that each of counts 2 and 3 comprised 12 separate offences, the former occurring over a period of approximately seven years and the latter over a period of eight years. We do not accept that that is the correct characterisation of those counts, which charge two offences only, but the point need not be pursued. The assistance the respondent gave to Course by opening and operating accounts in false names was preliminary to his aiding and abetting Course to avoid payment of the tax referred to in counts 4 and 5. With great respect to the learned sentencing judge, we think that the sentences imposed on those two counts are manifestly inadequate. Prominent among the considerations leading to that conclusion are the quantum of tax avoided, none of which will be recovered from Course, and the lengthy period of offending. The maximum custodial penalty for the offence charged in count 4 was five years' imprisonment and, for that charged in count 5, 10 years' imprisonment. Taking into account both s.16G of the Crimes Act and the double jeopardy incident to a Crown appeal, we would substitute sentences of 12 months' imprisonment on count 4 and 16 months' imprisonment on count 5.
Counts 6 to 16 involved a continuous course of conduct extending from 1985 to 1995, during which the respondent failed to declare rental income of $1,228,052 and interest of $30,450. The quantum of tax evaded was $480,129.77, but a settlement was reached with the Commissioner. The amount paid pursuant to the settlement involved a substantial component for interest and penalties. Compare R. v. Schwabegger[1]. Mr Silbert submitted, among other things, that total concurrency nevertheless bespoke error. Reluctant though we are to interfere with what was evidently a careful sentencing disposition, we are persuaded that that submission should be accepted. Not only must a good deal of weight be given to general deterrence in relation to such offences but also, we observe, there was repeated dishonesty year-in and year-out as the trust's returns were lodged and its income understated. The maximum custodial penalties were five years' imprisonment in relation to count 6 and 10 years' imprisonment in relation to counts 7 to 16. Again taking into account s.16G and the incidence of double jeopardy, we consider that eight months of the sentence imposed on count 16 should be served cumulatively upon the sentence imposed on count 7.
[1][1998] 4 V.R. 649 at 654.
Mr Silbert submitted that, although the sentences imposed on counts 17 and 18 were appropriately made concurrent, count 19 charged a discrete and separate criminal offence warranting separate denunciation and punishment by way of cumulation. Full reparation has now been made. In our discretion, we think that no further increase should be made in response to the Director's appeal.
In reaching the foregoing conclusions we have not overlooked the ten mitigatory factors mentioned by the learned sentencing judge at pp.133-134 of the
transcript of his Honour's sentence. On the contrary, we have taken full account of them, with the exception of the effect that a prison sentence will have on the respondent's children, to which we have given less weight. Compare R. v. Matthews[2]. We have similarly given attention to the mitigatory factors stressed by Mr Holdenson in his argument, as is evident from the limited extent to which we are prepared to intervene.
[2](1996) 130 F.L.R. 230.
That leaves us with the difficult question of a non-parole period or recognizance release order. The increased sentences and additional cumulation we propose will result in a total effective sentence of four years' imprisonment. Release before the expiration of that period will be appropriately dealt with by a non-parole period. We are, however, conscious that double jeopardy is entitled to particular weight where the prospect of earlier release on recognizance has been held out to a respondent. We have accordingly decided that the non-parole period should be only 18 months.
In view of clerical errors in the return of prisoners, we shall set aside the whole of the sentence imposed below, even though for the most part we shall be affirming the sentences and directions that His Honour imposed and gave.
TADGELL, J.A.:
Gentlemen, I shall ask my associate to hand down to you draft orders. In conformity with the reasons that have just been delivered, the judgment of the Court will be in accordance with that draft, subject to any submissions, and I will give you a moment to read what is written. Are you content, gentlemen?
COUNSEL:
Yes, Your Honour.
TADGELL, J.A.:
The judgment of the Court will be in accordance with the document which I have handed to counsel, a copy of which I now initial, and that will be placed on the file.
The appeal is allowed. The sentences passed below are quashed and in lieu thereof the respondent is sentenced as follows:
· on count 1, to six months' imprisonment;
· on each of counts 2 and 3, to three months' imprisonment and, on count 4, to 12 months' imprisonment and, on count 5, to 16 months' imprisonment;
· on count 6, to three months' imprisonment and, on each of counts 7 to 16, to 12 months' imprisonment; and
· on each of counts 17, 18 and 19, to six months' imprisonment.
The sentence imposed on count 1 is to be taken to have been imposed on 13th July 2000 and to have commenced immediately.
The Court directs that:
· the sentences imposed on counts 17, 18 and 19 are to be served concurrently with each other and are to commence on the day following the day on which the sentence imposed on count 1 ends;
· the sentences imposed on counts 2, 3 4 and 5 are to be served concurrently with each other and are to commence on the day following the day on which the sentences imposed on counts 17, 18 and 19 end;
· the sentences imposed on counts 6 to 15 are to be served concurrently with each other and are to commence on the day following the day on which the sentence imposed on count 5 ends; and
· the sentence imposed on count 16 is to commence eight months after the day on which the sentences imposed on counts 6 to 15 commence.
The total effective sentence is four years' imprisonment. The Court fixes a non-parole period of 18 months.
The Court has decided that no sentence other than imprisonment is appropriate having regard to the nature of the offences, the period of time over which they were committed, the need to punish the respondent appropriately and the need to deter both the respondent and others from committing offences of the same or a similar character. It is ordered that those reasons be entered in the records of the Court.
It is declared that the period of 158 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that such declaration was made and its details.
MR SILBERT:
If the court pleases.
TADGELL. J.A.:
Mr Holdenson, you will be able to explain to your client, who is not present this morning, the consequences of the order in accordance with s.16F of the Act?
MR HOLDENSON:
I will cause that to be done. As a consequence of the order which either has been or is about to be made, I make application under s.15(1) of the Costs Act for an indemnity certificate in respect of the respondent's costs of the appeal.
(Discussion ensued.)
TADGELL, J.A.:
The respondent may have a certificate pursuant to s.15(1) of the Appeal Costs Act.
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