Hookham v The Queen

[1994] HCA 52

HIGH COURT OF AUSTRALIA

BRENNAN, DEANE, DAWSON, TOOHEY AND GAUDRON JJ

HOOKHAM v THE QUEEN; (1994) 181 CLR 450; (1994) 94 ATC 4789, (1994) 29 ATR 1; F.C. 94/049; Number of pages - 11; (1994) 75 A Crim R 588

9 November 1994

Income Tax (Cth)

Income Tax (Cth)—Taxation offences—Reparation—Person concerned in management of corporation deemed to have committed offence—Power to require person convicted of offence to make reparation for loss—Whether failure to remit deducted tax "loss" Taxation Administration Act 1953 (Cth), s. 8 y(1)—Crimes Act 1914 (Cth), s. 21B(1).

Headnote

Section 8y(1) of the Taxation Administration Act 1953 (Cth) provided: "Where a corporation does or omits to do an act or thing the doing or omission of which constitutes a taxation offence, a person... who is concerned in, or takes part in, the management of the corporation shall be deemed to have committed the taxation offence and is punishable accordingly."


Section 21B(1) of the Crimes Act 1914 (Cth) provided: "Where: (a) a person is convicted of an offence against a law of the Commonwealth; ... the court may, in addition to the penalty, if any, imposed upon the person, order the offender: (c) to make reparation to the Commonwealth or to a public authority under the Commonwealth, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the Commonwealth or the authority, as the case may be, by reason of the offence."


Held, that a court is empowered by s. 21B(1) of the Crimes Act to order an offender convicted of a taxation offence under s. 8y(1) of the Taxation Administration Act to make reparation to the Commonwealth in respect of loss suffered by the Commonwealth by reason of the offence.


Per curiam. Section 8y(1) does not deem a person to have committed an offence that was really committed by the corporation. Rather, that person is deemed to have committed the offence because of his complicity in it. Accordingly, the liability to conviction imposed is not a fiction created only for the purpose of punishment.


A company failed to pay group tax deductions to the Commissioner of Taxation as required by s. 221F(5)(a) of the Income Tax Assessment Act 1936 (Cth). A director of the company was convicted under s. 8y(1) of the Taxation Administration Act of the nine distinct taxation offences committed by the company.


Held, that the Commonwealth had suffered a loss within the meaning of s. 21B(1) of the Crimes Act in that it was deprived of money which it would have been paid had it not been for the commission of the offences.


Per curiam "Loss" in s. 21B (1) is not limited to the transfer from the Commonwealth to someone else of a proprietary interest.


Decision of the Supreme Court of New South Wales (Court of Criminal Appeal): Reg. v. Hookham (1993), 31 NSWLR 381, affirmed.

Hearing

1994, October 5, November 9
#DATE 9:11:1994


APPEAL from the Supreme Court of New South Wales

On 15 January 1993 Judge Downs, a judge of the District Court of New South Wales, stated a case for the consideration of the Court of Criminal Appeal. The case was in part as follows: "(i) On 21 September 1990 Mark Ernest Hookham ('the appellant') appeared in the Maitland Local Court charged with nine offences against s. 221F(14) of the Income Tax Assessment Act 1936 of failing to pay group tax. The appellant was charged under s. 8Y of the Taxation Administration Act 1953 as a director who had been concerned or taken part in the management of the Markham Boat Company Pty. Ltd., which had, as registered group employer, failed to remit group tax for each of nine months. He pleaded guilty. On 5 November 1990 he was convicted, fined $1,000 to each of We nine offences ordered to pay repara6orn in the sum of $198,224.43, court costs in the sum of $360 and professional costs in the sum of $300. (ii) On 5 November 1990 the appellant lodged notices of appeal to the District Court on all grounds. The total amount of tax which was the subject of the appeals and remained outstanding was $198,608.39. The appeals were heard on 30 September and 1 October 1992 at Newcastle District Court before me. At the conclusion of Me hearing of We appeals I reserved my judgment. I convicted the appellant of each offence on 15 October 1992. On the application of the appellant I adjourned the sentencing proceedings to 16 November 1992. (iii) In my judgment I found that the Markham Boat Company Pty. Ltd. was a registered group employer which deducted group tax but omitted to remit the group tax and so committed a taxation offence pursuant to s. 221F(14). I also found that the appellant took part in the management of the corporation and so was deemed to have committed the offence pursuant to s. 8Y. (iv) As a result of these findings the respondent sought an order that the appellant should pay reparation to the Commissioner of Taxation pursuant to s. 21B of the Climes Act 1914. (v) On 17 November 1992 1 held that I did not have jurisdiction to order the appellant to pay reparation pursuant to s. 21B of the Crimes Act 1914 ... (vii) On 18 November 1992 I was requested by the respondent to state and sign a case for the opinion of this Honourable Court. Accordingly, I have adjourned the further hearing of the sentencing of the appellant so that the question of law arising in the course of it may be submitted for determination. The question of law for determination is: 'Upon the true construction of section 21B of the Crimes 4ct 1914 and section 8Y of the Taxation Administration Act 1953 do I have jurisdiction to order the appellant to pay reparation?'" The Court of Criminal Appeal (Priestley JA, Wood and Sully JJ) answered the question "Yes". Hookham appealed to the High Court by special leave.


B. J. Shaw QC (with him A. J. O'Brien), for the appellant. To determine the effect of a provision such as s. 8Y of the Taxation Administration Act 1953, Parliaments purpose in creating the statutory fiction must be ascertained (1). The words "and is punishable accordingly" show that the purpose of the deeming is to make a person taking part in the management of a corporation punishable in the same way as the corporation. It is not intended to expose him to anything other than punishment. The making of a reparation order under s. 21B of the Crimes Act 1914 (Cth) A 'in addition to the penalty". Reparation to the Commonwealth is not punishment of the offender. Any loss suffered by the Commonwealth was not suffered "by reason of the offence" of the appellant. It was the corporation that committed the act or omission that constituted the offence. The effect of the deeming is to create a statutory fiction: although the appellant has not himself committed the offence, he is deemed to have committed it. However, s. 8Y(1) does not deem a person taking part in the management of a corporation to have done or omitted to do the act or thing done or omitted by the corporation or deem there to be an obligation on a person taking part in the management to pay to the Commissioner the amount of deductions made by the corporation. Nor does it deem to be loss suffered by reason of the offence deemed to have been committed by someone in the position of the appellant, loss which is actually suffered by the Commonwealth "by reason of the offence" committed by an employer corporation in omitting to remit deductions. If the Commonwealth has suffered any loss by reason of any offence, it is only "by reason of the offence" committed by the employer corporation. The

(1) Muller v. Dalgety and Co. Ltd. (1909), 9 CLR 693, at pp. 696-697, 705; R. v. Norfolk County Council (1910), 60 LJQB 379; Hill v. East and West India Dock Co. (1884), 9 App Cas 448, at pp. 456, 458.

corporation's offence was to omit to remit deductions within seven days of the end of the month in which they were made, and any loss to the Commonwealth can only have arisen by its failure ever to remit the deductions. On any view, the deeming effected by s. 8Y does not extend beyond the offence. The loss was not suffered by reason of the offence because it is necessary to deem all sorts of things, beside commission of the offence, before one can reach that conclusion. Courts do not expand a deeming provision further than is necessary to achieve its purpose (2). For a loss to be suffered by the Commonwealth, the offence must result in the transfer of an item of property or something in the nature of property from the Commonwealth to some other person (3). If Parliament intended tax owing by a corporation to be recoverable from a person taking part in the management of the corporation, it would have provided a mechanism by which that person could recover the amount of tax from the corporation. It would also have provided for any amount recovered by the Commonwealth by way of reparation to reduce the amount of the corporation's outstanding obligation to pay unremitted deductions. The imposition of the liability of a corporation for unpaid tax on persons simply because they take part in the management of a corporation is a result that can be reached only by clear language (4).


D. H. Bloom QC (with him P. A. Johnson), for the respondent. Section 8Y(1) deems the person who is concerned in, or who takes part in, the management of the corporation to have committed the taxation offence, the taxation offence necessarily being that which was committed by the corporation (5). Such a person is liable as principal (6). Section 8Y is indistinguishable in effect from s. 5 of the Crimes Act and s. 38(1) of the Companies and Securities (Interpretation and Miscellaneous Provisions) (Western Australia) Code (7). A "loss" has been suffered by the Commonwealth by reason of the offence. "Loss" covers not only the situation where

(2) Muller v. Dalgety and Co. Ltd.; Redland Shire Council v. Stradbroke Rutile Pty. Ltd. (1974), 133 CLR 641, at pp. 655-656; Fleet Motor and General Insurance Co. (Aust.) Pty. Ltd. v. Tickle, (1984) 1 NSWLR 210; Reg. v. Bilick and Starke (1984), 36 SASR 321, at pp. 328-330; Murphy v. H.F. Trading Co. Pty. Ltd. (1973), 47 ALJR 198, at pp. 200-201.

(3) Reynolds v. Deputy Commissioner of Taxation (1984), 71 FLR 27.

(4) Lean v. Brady (1937), 58 CLR 328, at p. 336.

(5) Parker v. Churchill (1986), 9 FCR 334, at p. 347.

(6) R. v. Crossley (1948), 48 SR (N.S.W.) 494, at p. 495; Walsh v. Sainsbury (1925), 36 CLR 464, at p. 477; Mallan v. Lee (1949), 80 CLR 198, at pp. 216-217.

(7) Hamilton v. Whitehead (1988), 166 CLR 121, at p. 125.

something is taken away from the Commonwealth that was in its possession but where something to which it is entitled is not going to accrue to it by reason of the default (8). Nothing in Murphy v. H.F. Trading Co. Ply. Ltd. suggests that s. 21B does not apply to an offender to whom s. 8Y has applied. Section 8Y differs from s. 182 of the Customs Act 1901 (Cth) in an important respect. The latter did not deem the agent to have committed the offence. The words " punishable accordingly" in s. 8Y(1) are not words of limitation. They are there to indicate that the penalty which attaches is that specified elsewhere in relation to the principal offence (9). As costs are not "punishment" (10), the court could not order costs against the offender if the appellant's contention is correct. A construction should be adopted which promotes the purpose or object underlying s. 8Y(1) (11). The legislative intention behind s. 8Y is to hold the hands and brains of a corporation which commits a taxation offence responsible for that offence (12).
(8) Murphy v. H.F. Trading Co. Pty. Ltd. (1973), 47 ALJR, at p. 200; Parker v. Churchill (1986), 9 FCR, at pp. 348-349.

(9) Mallan v. Lee (1949), 80 CLR, at pp. 211-212; Vlahov v. Federal Commissioner of Taxation (1993), 26 ATR 49, at pp. 53-54.

(10) Latoudis v. Casey (1990), 170 CLR 534, at pp. 543, 562-563, 567.

(11) Acts Interpretation Act 1901 (Cth), s. 15AA.

(12) Parliamentary Debates (Hansard), 1984, House of Representatives, 13 September 1984, p. 1280; Hamilton v. Whitehead (1988),166 CLR, at pp. 128-129.


B. J. Shaw QC, in reply.

Cur. adv. vult.


Counsel for the Appellant: B.J. Shaw QC with A.J. O'Brien


Solicitor for the Appellant: Thorntons


Counsel for the Respondent: D.H. Blloom QC with P.A. Johnson


Solicitor for the Respondent: Commonwealth Director of Public
Prosecutions

Orders

Appeal dismissed.

Decisions

BRENNAN J The question in this case is whether, pursuant to s.21B(1) of the Crimes Act 1914 (Cth), a court may order an offender convicted of a taxation offence pursuant to s.8Y(1) of the Taxation Administration Act 1953 (Cth) to make reparation to the Commonwealth in respect of a loss suffered by the Commonwealth by reason of the offence. In my opinion, the terms of s.21B(1) dictate an affirmative answer. Section 21B(1) reads as follows:
"Where:
(a) a person is convicted of an offence against a law of the
Commonwealth; or
(b) an order is made under section 19B in relation to a federal
offence committed by a person;
the court may, in addition to the penalty, if any, imposed upon the
person, order the offender:
(c) to make reparation to the Commonwealth or to a public
authority under the Commonwealth, by way of money payment or
otherwise, in respect of any loss suffered, or any expense
incurred, by the Commonwealth or the authority, as the case may be,
by reason of the offence; or
(d) to make reparation to any person, by way of money payment or
otherwise, in respect of any loss suffered by the person as a
direct result of the offence."
The offence by reason of which the Commonwealth suffers a reparable loss must be the federal offence for which the offender is convicted or in respect of which an order is made under s.19B. However, s.19B is immaterial to this case. The conviction for a particular federal offence is one of the conditions on which the power to order the offender to make reparation arises. The other is that the offence be the reason for the loss. It is therefore necessary to identify the offence for which the offender is convicted.


2. In this case, the appellant was convicted pursuant to s.8Y(1) of the Taxation Administration Act of nine taxation offences committed by The Markham Boat Company Pty. Ltd. ("the corporation") in the management of which he had been concerned or taken part. Section 8Y reads:
"(1) Where a corporation does or omits to do an act or thing the
doing or omission of which constitutes a taxation offence, a person
(by whatever name called and whether or not the person is an
officer of the corporation) who is concerned in, or takes part in,
the management of the corporation shall be deemed to have committed
the taxation offence and is punishable accordingly.
(2) In a prosecution of a person for a taxation offence by
virtue of subsection (1), it is a defence if the person proves that
the person:
(a) did not aid, abet, counsel or procure the act or omission of
the corporation concerned; and
(b) was not in any way, by act or omission, directly or
indirectly, knowingly concerned in, or party to, the act or
omission of the corporation.
(3) For the purposes of subsection (1), an officer of a
corporation shall be presumed, unless the contrary is proved, to be
concerned in, and to take part in, the management of the
corporation.
(4) In this section, 'officer', in relation to a corporation,
means:
(a) a director or secretary of the corporation;
..."
As the appellant did not prove the matters mentioned in pars (a) and (b) of s.8Y(2), he was convicted of the taxation offences constituted by the relevant acts or omissions of the corporation. The corporation, being a group employer, had omitted to pay to the Commissioner of Taxation the amounts of deductions made from the salary and wages of employees in nine of the months between May 1989 and March 1990, contrary to the provisions of s.221F(5)(a) and (14) of the Income Tax Assessment Act 1936 (Cth). That was the gravamen of the offences of which the appellant was convicted and, by reason of those offences, the Commonwealth lost the amounts of the deductions which should have been paid but were not paid. Thus the conditions upon which the power to order the appellant to make reparation depended were satisfied.


3. The appellant's argument that s.8Y(1) deems an offender to have committed an offence for a purpose other than the making of a reparation order misses the point. Once s.8Y(1) deems an offender to have committed an offence, its work is done so far as it affects the power conferred by s.21B(1). Section 8Y(1) is relevant to the power conferred by s.21B(1) in that it identifies the corporation's offence as the offence for which the offender is liable to be convicted.


4. Section 8Y(1), like s.5(1) of the Crimes Act ((1) The difference between them lies in a differing onus of proof.), identifies the parties to a single offence. Although those provisions "deem" a party to have committed an offence, the liability to conviction thus imposed is not a fiction created for the purpose of punishment only. Section 21B(1) is not concerned with the purpose for which an offender is deemed liable to conviction. Nor is it concerned with the legislative facilitation of proof of guilt of a federal offence. It is concerned merely with the fact of conviction on which the power conferred by s.21B(1) depends. Convictions which follow from application of s.8Y(1) or s.5(1) are nonetheless convictions and may enliven the power conferred by s.21B(1).


5. That is not to say that a court, exercising its discretion under s.21B(1), will not inquire into the circumstances which have exposed the offender to liability to conviction. It is one thing to hold that a court has power to make a reparation order; it is another to determine how that power should be exercised. The question reserved for determination in a case stated by a District Court Judge for the opinion of the Court of Criminal Appeal was whether the Judge had jurisdiction (which I take to mean power) to order the appellant, who stood convicted of nine taxation offences, to pay reparation. The answer to that question is yes, as the Court of Criminal Appeal held. The appeal to this Court must therefore be dismissed.


6. The respondent, by a notice of contention, seeks to canvass an observation by Priestley JA as to the propriety of the Judge having regard to the "personal circumstances and means of an offender" in exercising the s.21B(1) discretion. That is not a question which arises under the stated case, nor is it appropriate to deal with such a question except on appeal in a concrete case when a challenge is made to the relevance of a factor that has affected the exercise of the judge's discretion. The respondent must be content with the observation that the scope and purpose of the law containing the power determine the boundaries of relevance.


7. The appeal should be dismissed.

DEANE, DAWSON AND GAUDRON JJ The Markham Boat Company Pty. Ltd., of which the appellant was a director, failed to pay group tax deductions (i.e., PAYE deductions in respect of its employees) to the Commissioner of Taxation as required by s.221F(5)(a) of the Income Tax Assessment Act 1936 (Cth). It thereby committed nine distinct offences under ss.221F(14) and 221F(5)(a) of that Act. Each of those offences was a "taxation offence" within the definition contained in s.8A(1) of the Taxation Administration Act 1953 (Cth). Section 8Y of the Taxation Administration Act provides, as far as is relevant:
"(1) Where a corporation does or omits to do an act or thing the
doing or omission of which constitutes a taxation offence, a person
(by whatever name called and whether or not the person is an
officer of the corporation) who is concerned in, or takes part in,
the management of the corporation shall be deemed to have
committed the taxation offence and is punishable accordingly.
(2) In a prosecution of a person for a taxation offence by virtue
of subsection (1), it is a defence if the person proves that the

person -
(a) did not aid, abet, counsel or procure the act or omission of
the corporation concerned; and
(b) was not in any way, by act or omission, directly or
indirectly, knowingly concerned in, or party to, the act or
omission of the corporation."



2. The appellant pleaded guilty in the Maitland Local Court to nine counts of failing to pay group tax deductions to the Commissioner, having been charged with those offences as "a person who was concerned in, or took part in, the management of a corporation, namely the MARKHAM BOAT COMPANY PTY LTD" which had "omitted to do an act the omission of which constituted ... an offence against paragraph 221F(5)(a) of the Income Tax Assessment Act".


3. Section 21B of the Crimes Act 1914 (Cth) provides, as far as is relevant:
"(1) Where:
(a) a person is convicted of an offence against a law of the
Commonwealth;
...
the court may, in addition to the penalty, if any, imposed upon the
person, order the offender:
(c) to make reparation to the Commonwealth or to a public
authority under the Commonwealth, by way of money payment or
otherwise, in respect of any loss suffered, or any expense
incurred, by the Commonwealth or the authority, as the case may be,
by reason of the offence".



4. The appellant was convicted and fined $1000 in respect of each of the offences to which he pleaded guilty and was ordered to pay reparation in the sum of $198,224.43. He appealed to the District Court where the judge stated a question of law for the determination of the Court of Criminal Appeal as follows:
"Upon the true construction of section 21B of the Crimes Act 1914
and section 8Y of the Taxation Administration Act 1953, do I have
jurisdiction to order the appellant to pay reparation?"
The Court of Criminal Appeal answered the question in the affirmative and the appellant now appeals by special leave to this Court. He contends that he is deemed by s.8Y of the Taxation Administration Act to have committed the offences only for the purpose of punishment and not for any other purpose, in particular, not for the purpose of s.21B of the Crimes Act. He supports this contention by reference to the words "shall be deemed to have committed the taxation offence and is punishable accordingly" in s.8Y(1).


5. The appellant's argument misconceives the function of s.8Y. That function is to reverse the onus of proof which would otherwise rest upon the prosecution of proving that a defendant who is concerned in, or takes part in, the management of a corporation is a participant in a taxation offence by reason that he or she aided, abetted, counselled, procured or was knowingly concerned in, or party to, its commission. Apart from the reversal of the onus of proof, it is to the same effect as s.5(1) of the Crimes Act which provides:
"Any person who aids, abets, counsels, or procures, or by act or
omission is in any way directly or indirectly knowingly concerned
in, or party to, the commission of any offence against any law of
the Commonwealth, whether passed before or after the commencement
of this Act, shall be deemed to have committed that offence and
shall be punishable accordingly."
That provision, extended to persons knowingly concerned in the commission of offences, merely reflects the position at common law, namely, that a person who intentionally assists in the commission of an offence or encourages its commission may be convicted as a party to it. That is to say, there may be parties to the one offence, other than the actual perpetrator, with varying degrees of participation, each of whom commits the offence. The "deeming" provisions in both s.5(1) of the Crimes Act and s.8Y of the Taxation Administration Act do not create a situation in which one person is to be regarded as having committed another person's offence. Rather, they require persons with the specified complicity in an offence to be regarded as parties to that offence ((2) See Lee v. Mallan (1949) SASR 17; Mallan v. Lee (1949) 80 CLR 198).


6. Section 8Y, in providing that the person is "punishable accordingly", is not providing for punishment for an offence which was really committed by the corporation and is only "deemed" to have been committed by that person; it is providing for punishment for an offence to which that person is deemed to be a party because of his or her complicity in it. The offences of which the appellant was convicted under s.8Y were the same offences as those committed by the corporation and he therefore fell within the words of s.21B of the Crimes Act making him liable to an order for reparation.


7. The appellant also submits that the Commonwealth has not suffered a loss by reason of the offences committed by him. That submission is again based upon the misconception that the offences committed by the appellant were a fiction, being only "deemed" to have occurred. But, as we have endeavoured to explain, the offences were actual offences to which the appellant was deemed to be a party. There is, therefore, no basis upon which to draw a distinction between the offences committed by the appellant and the offences committed by the corporation. The appellant goes on to submit that there was no loss suffered by the Commonwealth by reason of those offences because the Commonwealth was not deprived of anything in the nature of property. But a loss need not involve the transfer from the Commonwealth to someone else of a proprietary interest. The Commonwealth suffered a loss by being deprived of money which it would have been paid had it not been for the commission of the offences in question ((3)See Murphy v. H.F. Trading Co. (1973) 47 ALJR 198 at 200). There is no reason why that should not be regarded as being a reparable loss.


8. For these reasons the District Court judge had jurisdiction (or more accurately, power) to order reparation and the question reserved for the consideration of the Court of Criminal Appeal was correctly answered in the affirmative.


9. The respondent filed a notice of contention dealing with the extent of the discretion conferred by s.21B(1) upon a trial judge to order reparation. In particular, the respondent contends that the discretion does not extend to taking into account the offender's personal circumstances and means to meet any order. That, however, is not a question which arose upon the case stated by the District Court judge and is not a question before us. It is, however, appropriate to point out that, in a context where the Parliament has not expressly identified the considerations to be taken into account in making an order for reparation under s.21B, a trial judge would be excluded from taking account of an offender's personal circumstances and means only if, and to the extent that, "the subject matter and the scope and purpose" of the relevant statutory provisions enable it to be said that those particular considerations were "definitely extraneous to any objects the legislature could have had in view" ((4) Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 CLR 45 at 49).


10. We would dismiss the appeal.

TOOHEY J This matter came before the Court of Criminal Appeal of New South Wales by way of case stated.


2. The appellant was convicted, on his plea of guilty, of nine offences against s.221F(14) of the Income Tax Assessment Act 1936 (Cth) ("the Assessment Act"). Section 221F(14) provides that a person shall not contravene sub-s.(5) by virtue of par.(a) of that sub-section. At the relevant time s.221F(5)(a) required a group employer, in respect of income tax deductions made by the employer from the salary or wages of employees, to pay to the Commissioner of Taxation, not later than the seventh day of the month next succeeding a month in which the employer has made deductions, the amount of the deductions so made.


3. Section 8Y of the Taxation Administration Act 1953 (Cth) ("the Administration Act") provides in part:
"(1) Where a corporation does or omits to do an act or thing the
doing or omission of which constitutes a taxation offence, a person
(by whatever name called and whether or not the person is an
officer of the corporation) who is concerned in, or takes part in,
the management of the corporation shall be deemed to have committed
the taxation offence and is punishable accordingly.
(2) In a prosecution of a person for a taxation offence by virtue
of subsection (1), it is a defence if the person proves that the
person-
(a) did not aid, abet, counsel or procure the act or omission of
the corporation concerned; and
(b) was not in any way, by act or omission, directly or
indirectly, knowingly concerned in, or party to, the act or
omission of the corporation."



4. The charges on which the appellant was convicted alleged that he was a person who was concerned in, or took part in, the management of The Markham Boat Company Pty. Ltd. which as a group employer omitted to pay deductions from the salary and wages of employees as required by the Assessment Act. The appellant was a director of the corporation.


5. The appellant lodged notices of appeal against his convictions. A judge of the District Court of New South Wales dismissed each of the appeals. A question then arose as to the power of the judge to accede to an application by the Crown that, in addition to the imposition of a penalty, the appellant be ordered in each case to make reparation to the Commonwealth pursuant to s.21B of the Crimes Act 1914 (Cth). Section 21B provides that where a person is convicted of an offence against a law of the Commonwealth, the court may, in addition to the penalty, if any, imposed upon the person, order the offender:
"(c) to make reparation to the Commonwealth ... by way of money
payment or otherwise, in respect of any loss suffered, or any
expense incurred, by the Commonwealth ... by reason of the
offence".
His Honour held that, in the circumstances of each case, he had no power to order reparation by the appellant. At the request of the Crown he stated a case for determination by the Court of Criminal Appeal which included the following question of law:
"Upon the true construction of section 21B of the Crimes Act 1914
and section 8Y of the Taxation Administration Act 1953, do I have
jurisdiction to order the appellant to pay reparation?"
The Court of Criminal Appeal (Priestley JA, Wood J and Sully J) answered the question "Yes". From that answer the appellant appeals to this Court.


6. Although the question posed speaks of the jurisdiction of the judge of the District Court, it is clear that it is the powers of the Court that are in issue. Jurisdiction is the authority which a court has to decide matters litigated before it; in the exercise of that jurisdiction a court has certain powers, whether express, implied or inherent ((5) Harris v. Caladine (1991) 172 CLR 84 at 136). Strictly speaking, the issue is whether s.21B(c) applied to the appellant in the circumstances. The appellant's contention was that s.8Y(1) of the Administration Act made him "punishable", that is, liable to a penalty but not to an order for reparation.


7. In the present case The Markham Boat Company Pty. Ltd., in failing to pay deductions to the Commissioner, omitted to do something in circumstances where that omission constituted a taxation offence ((6) "Taxation offence" is defined in s.8A(1) of the Administration Act). By reason of s.8Y(1), a person who is concerned in, or takes part in, the management of the corporation is deemed to have committed the offence and to be punishable accordingly. Section 8Y(2) provides a defence to a prosecution under sub-s.(1) if the defendant proves the matters mentioned therein. The appellant did not prove those matters. The effect of a deeming provision such as s.8Y(1) is that the person concerned is deemed to have committed the offence which the corporation itself committed ((7) Parker v. Churchill (1986) 65 ALR 107 at 119).


8. Section 5 of the Crimes Act provides that any person:
"who aids, abets, counsels, or procures, or by an act or omission
is in any way directly or indirectly knowingly concerned in, or
party to, the commission of an offence against any law of the
Commonwealth ... shall be deemed to have committed that offence and
shall be punishable accordingly".
The essential difference between s.5 and s.8Y is that the former casts the onus of proving involvement on the Crown whereas the latter, through s.8Y(2), offers the person charged a defence in certain circumstances. It is relevant to refer to s.5 because the authorities make it clear that a person convicted by the operation of that section is convicted as a principal participating in an offence ((8) Walsh v. Sainsbury (1925) 36 CLR 464 at 477; Mallan v. Lee (1949) 80 CLR 198 at 215-216; R. v. Crossley (1948) 48 SR(NSW) 494 at 495). Likewise, a person convicted of an offence against the Companies (Western Australia) Code by reason of the deeming provision in s.38(1) of the Companies and Securities (Interpretation and Miscellaneous Provisions) (Western Australia) Code is convicted as a principal ((9) Hamilton v. Whitehead (1988) 166 CLR 121). The point of this discussion is to emphasise that the appellant, though caught by a deeming provision, was convicted as a principal participating in the offence committed by The Markham Boat Company Pty. Ltd.


9. It follows that the appellant is a person convicted of an offence against a law of the Commonwealth within the language of s.21B of the Crimes Act. He is therefore liable, in addition to the penalty prescribed by that law, to a reparation order "in respect of any loss suffered ... by the Commonwealth ... by reason of the offence".


10. The appellant argued that the Commonwealth had not suffered any loss by reason of his offence. Rather, the Commonwealth had suffered loss by reason of the omissions of the corporation. The effect of the deeming provision in s.8Y(1), it was said, is to create a statutory fiction, namely, that the appellant committed each offence but that the provision does not deem the appellant to have omitted to do something which the corporation omitted to do or deem there to have been a loss suffered by reason of the appellant's offence when the loss was suffered by reason of the offence committed by the corporation.


11. However, the answer to this argument is that the appellant stands convicted of an offence against s.221F(14) of the Assessment Act and therefore stands convicted of a contravention of s.221F(5)(a), that is, of omitting to pay the deductions to the Commissioner. He stands convicted of an offence against a law of the Commonwealth and he is therefore an offender to whom s.21B applies. He is also liable to make reparation because the loss suffered by the Commonwealth was suffered by reason of the offence of which he was convicted, namely, a failure to pay deductions to the Commissioner.


12. In Murphy v. H.F. Trading Co. ((10) (1973) 47 ALJR 198 at 201)) Gibbs J said that, in the absence of argument, he was not prepared to hold that a customs agent who was convicted of offences under the Customs Act 1901 (Cth) was also liable to make reparation under s.21B of the Crimes Act. But the relevant section of the Customs Act only deemed the agent to be the owner of the goods in question and to be personally liable for any penalties recoverable under the Customs Act as if he were principal. The case is clearly distinguishable from the present one where the appellant is deemed to have committed the offence as a principal.


13. The words "punishable accordingly" in s.8Y(1) are in no sense words of limitation, confining the deemed offender to the penalty provisions only of the Assessment Act. The same expression is used to make clear that a person convicted by the operation of s.8Y(1) or s.5 is convicted as a principal so that provisions applicable to the actual offender are applicable to that person ((11) Mallan v. Lee (1949) 80 CLR at 211-212.). This also seems to have been the view taken by the Full Court of the Supreme Court of Western Australia in Vlahov v. Federal Commissioner of Taxation ((12) (1993) 26 ATR 49).


14. The appeal must therefore be dismissed. The respondent filed a notice of contention which arose in the following way. In the course of answering the question asked of the Court of Appeal, Priestley JA, with whom Wood and Sully JJ agreed, found the decision in Vlahov "doubly useful". The first respect was that already adverted to. The second respect in which his Honour found the decision useful was a statement by White J ((13) ibid at 55, with whose judgment Franklyn and Ipp JJ agreed, that:
"I am of the opinion that the court has a discretion whether or not
to make a reparation order. That discretion is, of course, to be
exercised judicially. In the exercise of that discretion, the
court may have regard to the personal circumstances and means of
the offender".
The respondent accepted that the court has a discretion whether or not to order reparation but it wished to challenge the proposition that the personal circumstances and means of an offender were relevant considerations in the exercise of that discretion. In effect, the respondent sought to confine relevant considerations to those going to culpability.


15. There is a difficulty in dealing with the notice of contention because it does not fall within any answer to the question asked in the case stated. Nor is it a matter that admits of an answer in the abstract. In particular, personal circumstances is a term of wide import and, conceivably, could intrude into matters of culpability. In the circumstances the Court should not deal with the notice of contention, other than to draw attention to the following passage from the judgment of Mason J in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd.(14)) (1986) 162 CLR 24 at 40
"In the context of judicial review on the ground of taking into
account irrelevant considerations, this Court has held that, where
a statute confers a discretion which in its terms is unconfined,
the factors that may be taken into account in the exercise of the
discretion are similarly unconfined, except in so far as there may
be found in the subject-matter, scope and purpose of the statute
some implied limitation on the factors to which the decision-maker
may legitimately have regard".



16. The appeal should be dismissed.