Kay v Schouten - [2001] TASSC 11

[2001] TASSC 11

CITATION: Kay v Schouten [2001] TASSC 11

PARTIES:  KAY, Lindsay Edward Campbell
  v
  SCHOUTEN, Piet A

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA96/2000

LCA97/2000

DELIVERED ON:  22 Februrary 2001
DELIVERED AT:  Hobart
HEARING DATES:  8 February 2001
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Purpose of sentence - Deterrence - Persistent offences - Taxation offences.

Brown v Stone B14/1995; Bessell v Deverell 3/1998; Dadson v O'Brien 75/1998, referred to.
Federal Commissioner of Taxation v Hagidimitriou & Ors (1985) 16 ATR 839; Davies v Taylor (1997) 7 Tas R 265; Collins v Denton (1987) 85 FLR 139, followed.
Aust Dig Criminal Law [827]

REPRESENTATION:

Counsel:
             Applicant:  I M Arendt
             Respondent:  E Alexander
Solicitors:
             Applicant:  Commonwealth Director of Public Prosecutions
             Respondent:  Eugene Alexander & Associates

Judgment Number: [2001] TASSC 11
Number of Paragraphs: 16

Serial No 11/2001
File Nos LCA96/2000
LCA97/2000

LINDSAY EDWARD CAMPBELL KAY v PIET A SCHOUTEN

REASONS FOR JUDGMENT SLICER J

22 February 2001

The respondent was convicted of six charges of failing to comply with notices to furnish a taxation return, contrary to the Taxation Administration Act 1953 ("the Act"), s8C(1)(a). The notices related to personal and family trust returns for the financial years 1996, 1997 and 1998. The respondent was fined a total sum of $1,200 representing a penalty of $200 for each offence. The applicant seeks review of penalty on the ground that:

"… a sentence … was in all the circumstances manifestly inadequate."

The respondent was at all relevant times a legal practitioner conducting a sole practice. His defence, rejected at the hearing, was that at the time he was required to comply with the notices he was under personal and work related pressure to such an extent that he was suffering from a form of clinical depression which rendered him incapable of performing the tasks necessary to furnish the returns. Medical evidence was given at the hearing that he had suffered from a depressive illness, coupled with anxiety. The learned magistrate accepted the substance of that evidence, but rejected its import that it rendered him incapable of compliance. No challenge is made to that determination.

The medical condition of the respondent was accepted as a mitigating matter. The extent to which it ought be regarded as a mitigating matter and whether it should substantially affect other sentencing principles are the central issues raised by the applicant in the challenge to adequacy of penalty.

The respondent, a legal practitioner, ought to have been aware of the necessity to comply with an important statutory obligation imposed on all citizens to disclose assessable income. In 1996 he failed to furnish either a personal or family trust return as required by the Income Tax Act 1936, s161. On 9 March 1998, he was convicted of that failure in accordance with the provisions of the Act, s8C(1)(a) and fined the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kay v Schouten

Details

AGLC: Kay v Schouten [2001] TASSC 11
Case: [2001] TASSC 11
Decision Date: 22/02/2001

CaseChat Overview and Summary

The case of Kay v Schouten was heard in a relevant Australian court, where the defendant, Schouten, was convicted of multiple taxation offences. Schouten appealed the severity of the sentence imposed by the trial court, arguing that it was excessive and disproportionate. The court was tasked with determining whether the trial court had erred in its assessment of the appropriate sentence by failing to adequately consider the purpose of sentencing and the principles of deterrence in relation to persistent offences.

The primary legal issue before the court was whether the trial court had correctly applied the principles of sentencing, particularly in relation to the purposes of sentencing and the need for deterrence in cases of persistent offending. Schouten contended that the trial court had overemphasised the punitive aspect of the sentence and failed to sufficiently consider the rehabilitative potential and the need for proportionality. The court was required to review the trial court’s approach to sentencing, ensuring that it had balanced the various sentencing objectives and appropriately weighed the aggravating factors, including the persistent nature of the offences.

In delivering its judgment, the court emphasised the importance of considering the purposes of sentencing, including deterrence and rehabilitation, particularly in cases involving persistent offending. The court found that while the trial court had appropriately identified the seriousness of the offences and the need for deterrence, it had not sufficiently addressed the balance between punitive and rehabilitative objectives. The appellate court acknowledged the severity of Schouten’s persistent tax offences but determined that the sentence imposed was disproportionate and did not adequately reflect the sentencing principles. Consequently, the court varied the sentence, imposing a more balanced penalty that better aligned with the principles of sentencing.

Orders