Millington v Oliviera

[1988] TASSC 61

Serial No 60/1988
List “A”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Millington v Oliviera [1988] TASSC 61; A60/1988

PARTIES:  MILLINGTON
  v
  OLIVIERA

FILE NO/S:  LCA 120/1988
DELIVERED ON:  6 December 1988
JUDGMENT OF:  Underwood J

Judgment Number:  A60/1988
Number of paragraphs:  6

Serial No 60/1988

List "A"

File No LCA 120/1988

MILLINGTON v OLIVIERA

REASONS FOR JUDGMENT  UNDERWOOD J

6 December 1988

1. This is a motion to review a fine of $75 imposed by a magistrate on conviction for a breach of the Taxation Administration Act, s8C. The single ground of appeal is that the penalty was manifestly inadequate in the circumstances of the case. This appeal was heard in conjunction with three other similar appeals. I refer to the reasons for judgment handed down in the appeal of O'Brien v ADC Sport Pty Ltd and, insofar as those reasons deal with matters of general principle I incorporate them in these reasons for judgment.

1. Unlike the other three matters this complaint related to a failure to furnish information with respect to income tax. On the 24 June 1988 the Deputy Commissioner of Taxation required the respondent to furnish within 21 days the following information:

"(a)the names and addresses of all employees and subcontractors engaged by J.C.'s Seafood

Restaurant during the period 1 March 1987 to date;

(b)the date each individual employee and subcontractor was paid and the amount of each individual payment during the period 1 March 1987 to date;

(c)the amounts of tax instalment deductions effected from each payment listed in (b) above during the period 1 March 1987 to date."

1. The learned magistrate imposed a fine of $75 and ordered payment of costs and made an order (pursuant to the Tax Administration Act, s8G) that the required information be furnished within one month.

1. The learned magistrate was given very little information upon which to base an appropriate penalty. The outline presented by the prosecutor was consistent with a total failure to furnish any information or remit any instalments of tax over a period of three months. It was equally consistent with a failure during the same period to furnish complete information and remit some instalments of tax. The learned magistrate was not told of the contents of previous returns which would have given some indication of the likely number of employees and the likely amount of tax which should have been deducted and remitted with respect to those employees.

1. The learned magistrate was only told that:

"The information is necessary so the .... employees' returns can be calculated, and also the amounts of tax that should have been forwarded to the Department can be calculated ... The defendant has no priors .... He's the operator of J.C.'s Seafood restaurant."

1. This state of affairs requires the court to consider the adequacy of the penalty on the basis that, where more than one inference from the stated facts was reasonably open to the learned magistrate, that most favourable to the respondent should have been adopted. The applicant's complaint was prosecuted by an officer from the Australian Taxation Office. The failure to present the sentencing magistrate with all necessary and relevant material makes it more difficult for the applicant to sustain an argument that the penalty imposed was manifestly inadequate in the circumstances of the case. However, notwithstanding that I am satisfied that in the circumstances of this case the penalty was manifestly inadequate. The application will be allowed and the fine set aside. In lieu thereof a fine of $200 is imposed.