Moore v The Queen

[1999] FCA 448

Phillip John Moore v The Queen
[1999] FCA 448
No. AG 73 of 1998
Number of pages - 15
Criminal Law

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

MILES, MATHEWS AND MADGWICK JJ

Criminal Law - appeal - verdict - whether conviction unsafe and unsatisfactory - extent to which appellate court should examine evidence and summing-up for itself - whether case left to jury as if accused had made admissions - whether questions asked by jury indicated jury went beyond its proper role - whether trial judge adequately instructed jury on these matters - he did.

Criminal Law - appeal - sentence of imprisonment - Crimes Act 1914 (Cth), s 29D - fraud on revenue - failure to disclose income - whether special circumstances required to justify non-custodial sentence - whether sentencing judge took all relevant factors into account - he did.

Crimes Act 1914 (Cth), s 29D

Crimes Act 1900 (ACT), s 556J

Periodic Detention Act 1995 (ACT), s 6(1)

Income Tax Assessment Act 1936

Taxation Administration Act 1953 (Cth), s 8ZE

Ratten v The Queen (1974) 131 CLR 510 followed

Chamberlain v The Queen (1984) 153 CLR 521 followed

M v The Queen (1994) 181 CLR 487 followed

Hayes v The Queen (1973) 47 ALJR 603 applied

Morris v R (1987) 163 CLR 454 discussed, considered

Gipp v The Queen [1998] HCA 21; (1998) 155 ALR 15 considered

R v Purdon (unreported, 27 March 1997, Court of Criminal Appeal of NSW) cited

R v Ruggiero (unreported, 1 December 1998, Court of Criminal Appeal of SA) considered

Timothy Christopher Morris (1992) 61 A Crim R 233 considered

R v Whitnall (1993) 68 A Crim R 119 considered, discussed

The Queen v Cobb [1999] FCA 159 considered

CANBERRA, 4 March 1999 (hearing), 15 April 1999 (decision)

#DATE 15:4:1999

Appearances

Counsel for the Appellant: Mr S R Norrish QC with J Pappas

Solicitors for the Appellant: Mr G J Bellew

Counsel for the Respondent: Chamberlains Law Firm

Solicitors for the Respondent: Commonwealth Director of Public Prosecutions

THE COURT ORDERS THAT:

1. The appeals be dismissed and the convictions and sentences of the Supreme Court be confirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

MILES, MATHEWS AND MADGWICK JJ

1. These are appeals against conviction and sentence. On 12 August 1998 the appellant was convicted on three counts of defrauding the Commonwealth, contrary to s 29D of the Crimes Act 1914 (Cth) (the Crimes Act). The fraud alleged in the respective counts was that in his income tax return for each of the tax years 1990, 1991 and 1992 the appellant failed to declare income. He was sentenced on each count to imprisonment for 18 months, all sentences to run concurrently, with a minimum term of six months.

2. The only ground of the appeal against conviction is that the conviction was unsafe and unsatisfactory. That ground having been raised, the Court, as a court of criminal appeal, must undertake an independent examination of the relevant evidence in order to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused. That principle has been established, for courts of criminal appeal in Australia, since at least the time of the decision of the High Court in Ratten v The Queen (1974) 131 CLR 510, and for this Court, since Chamberlain v The Queen (1984) 153 CLR 521. Although the process of an appeal against conviction does not provide a substitute for trial by jury, it was said in Ratten at 516:

"If the court has a doubt, a reasonable jury should be of a like mind."

3. The High Court reformulated this principle in M v The Queen (1994) 181 CLR 487 at 494 stating:

"A doubt experienced by an appellate court is a doubt which a jury ought to have experienced."

4. These principles appear to have been the subject of increasing emphasis by the High Court over the years.

5. On behalf of the appellant in the present appeal, emphasis was placed on the judgment of Gaudron J in Gipp v The Queen [1998] HCA 21; (1998) 155 ALR 15, and in particular the following passages:

"[17] The expression 'unsafe and unsatisfactory' has no very precise meaning. It is commonly used to indicate that, although there was evidence to sustain a verdict of guilty, the jury ought, nonetheless, have entertained a reasonable doubt as to guilt: see, for example, Chamberlain v R (No 2) (1984) 153 CLR 521 at 531; 51 ALR 225 per Gibbs CJ and Mason J; Morris v R (1987) 74 ALR 161; 163 CLR 454 at 461 per Mason CJ, 473 per Deane, Toohey and Gaudron JJ; M v R (1994) 126 ALR 325; 181 CLR 487 at 492-3 per Mason CJ, Deane, Dawson and Toohey JJ (with whom Gaudron J agreed on this point at 508). That is the sense in which it was understood by the Court of Appeal in this case. However, it, or an equivalent expression such as 'unjust or unsafe', may be used to indicate that there is some defect in the summing up: Carr v R (1988) 165 CLR 314 at 340-1, 345; 81 ALR 236 per Gaudron J. See also Chidiac v R (1991) 171 CLR 432 at 458; 98 ALR 368 per Gaudron J, or 'some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled': Davies and Cody v R (1937) 57 CLR 170 at 180.

[18] It is well settled that, where it is contended that a verdict is unsafe or unsatisfactory, in the sense that the jury should have entertained a reasonable doubt as to guilt, '[a]n appellate court must itself consider the evidence in order to determine whether it was open to the jury to convict': Carr v R (1988) 165 CLR 314 at 331; 81 ALR 236 at 248 per Brennan J. And '[i]f the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence': M v R (1994) 181 CLR 487 at 494; 126 ALR 325 at 329 per Mason CJ, Deane, Dawson and Toohey JJ, referring to Chamberlain v R (No 2) at 618-19; 51 ALR 225 and Chidiac v R at 443-4. See also Jones v R (1997) 149 ALR 598; 72 ALJR 78. In that exercise, it is necessary for an appellate court to have regard to the whole of the evidence. And ordinarily, it will also be necessary to have regard to the trial judge's summing up."

6. Mr Norrish SC, for the appellant, laid emphasis on the reference by her Honour on the need to have regard to the whole of the evidence, and, ordinarily, to the summing-up. In this respect it is necessary to acknowledge that in Morris v R, Mason CJ at 466 stated that the duty of the court of criminal appeal was "to make a careful and independent assessment of the critical evidence". Deane, Toohey and Gaudron JJ at 473 said that it was necessary to make an independent examination of relevant evidence, both as to sufficiency and quality. (emphasis added).

7. In view of the differing opinions about how far a court of criminal appeal should go in examining the evidence for itself, we would observe that we do not think it was intended by any member of the High Court to lay down a rule that, by raising as a ground of appeal that a conviction is unsafe and unsatisfactory, an appellant casts upon the appeal court a duty to try the case again or to examine the entirety of the transcript of the oral testimony given at the trial and the entirety of the exhibits. Particularly when the appellant is represented by counsel, the appeal court should be enlightened as to what it is about the evidence that is said to be inadequate or defective, to what issues any impugned evidence relates and in what respect, if any, the summing-up is defective. It should not be left to the appeal court to find its own way into and down every burrow in order to see if it can unearth some doubt which the jury never had. In this respect we were assisted by the submissions of Mr Norrish, who succinctly drew attention to the aspects of the evidence and the summing-up which he submitted led to a conviction which was unsafe and unsatisfactory. As we are not aware of any other grounds on which the appellant can possibly succeed, we restrict ourselves to the matters raised by the appellant's counsel on his behalf.

8. The issues in the trial were relatively simple. The prosecution alleged that, in respect of each of the tax years 1990, 1991 and 1992 the appellant knew, at the time of completing and lodging his income tax returns, that he had received the relevant amounts by way of income, that he was required to disclose that income and that he failed to do so.

9. The following was common ground. The appellant, a person of prior good character, and aged 57 at the time of trial, was a successful business man with a variety of business interests. In 1986 he purchased a property at Robina in Queensland. In September 1998 he mortgaged the property as security for a loan of $105,000. With the proceeds of the loan, he acquired units in an investment trust administered by a body or company referred to as Landco. In the 1990 tax year he received a distribution from the trust of $25,000 as a cash distribution and $34,705 as a "unit call" in lieu of cash distribution. The cash distribution was used by the appellant to reduce the principal on the loan. In 1990 in an undated letter Landco wrote to the appellant stating:

"The Taxable Distribution for the year ended 30 June 1990 is $59,790 and should be included in your 1990 income tax return Ö"

10. On 22 October 1990 the appellant lodged his tax return for the 1990 tax year and did not disclose either the cash distribution or the value of the unit call. That was the foundation of the first count.

11. In the 1991 tax year the appellant received from the trust cash distributions of $36,400, and, in lieu of cash distributions, investment entitlements connected with Landco totalling $60,254.

12. Again in an undated letter in 1991 Landco wrote to the appellant advising:

"The taxable distribution for the year ended 30 June 1991 is $97,845 and should be included in your 1991 income tax return."

13. On 16 October 1991 the appellant lodged his tax return for the 1991 tax year and failed to disclose the cash distribution or the granting of the investment entitlements in lieu. Those were the allegations on the second count.

14. In the 1992 tax year, the appellant received $16,400 by way of cash distributions from Landco, which he used to reduce the principal on the loan. He was allocated shares in a Landco company in lieu of a further $15,000 cash distribution. Later in the same tax year he sold the shares for $63,000 and redeemed his investment units for $242,000, making a substantial capital gain on both transactions.

15. In his 1992 tax return the appellant failed to disclose the capital gain made on the sale of the shares and the redemption of the investment units.

16. The Australian Taxation Office began investigating the appellant's affairs in September 1994 and took up the matter with his accountant, Mr Lee in October 1994. Mr Lee gave evidence in the prosecution case and we shall return to it. As a result of information received in the investigation, the Australian Taxation Office calculated the tax avoided at $28,439.05 (1990), $51,017.99 (1991) and $17,289.76 (1992). Penalties were imposed and paid by the appellant, being $25,586.60, $38,812.65 and $11,039.65 for the respective tax years, together with an additional late penalty of $3,308.93 and costs of $470.

17. The only real issue at trial was whether at the time of lodging each of the three tax returns, the appellant acted dishonestly, that is to say, he was aware that he had failed to disclose income. That issue related to the state of the mind of the appellant at the material times. The prosecution accepted that, in the absence of any admission, the case against the appellant was entirely circumstantial. The jury received adequate instruction on the obligation cast upon the prosecution in a circumstantial case to exclude any reasonable hypothesis consistent with innocence.

18. The case for the appellant, who gave evidence, was that at the time of receipt of the relevant income in each of the years, he knew that he would have to disclose it in his subsequent returns, but that at the time of completing and lodging the returns he had forgotten to do so. He raised his prior good character, and called evidence to support it. The jury were adequately instructed as to how to take that evidence into account.

19. So summarised, the issue at trial appears to have been a classic jury question. Bearing in mind the evidence of the appellant himself and that of his witnesses, were the jury entitled to regard the circumstantial case against him as sufficiently strong to exclude reasonable doubt as to his alleged dishonesty at the time of submitting his tax returns? Before answering the latter question it is instructive to bear in mind the words of Mason CJ in Morris v R at 464 when he cautioned that:

"Merely to say that it was a matter for the jury is to assert without demonstration that the question must be answered in the affirmative."

20. Mr Norrish asked us to focus on three matters as central issues in the appeal. The first is that on our own independent examination of the evidence, we would conclude that "it would be dangerous in all the circumstances to allow the verdict to stand": Hayes v The Queen (1973) 47 ALJR 603 at 604. In this regard it is necessary to highlight what counsel have submitted are the relative strengths and weaknesses of the factual material. For the prosecution it was submitted that the circumstantial case against the appellant was strong, that in effect it called for an explanation from the appellant and that the jury were entitled to reject the appellant's explanation that the omissions occurred by reason of his lack of memory. Counsel for the prosecution referred to the evidence which went to establish the following:

(i) The fact that the appellant was an experienced businessman.

(ii) The fact that he was well trained in commercial practices generally, and in particular in the keeping of records pertaining to investment and other properties.

(iii) The significance of the sums involved.

(iv) The fact that there had been three separate omissions over a three year period.

(v) The conversation between the appellant and Mr Lee following the investigation by the Australian Taxation Office, and in particular the reason advanced by the appellant to Mr Lee for his non-disclosure (see below).

(vi) The letters from Landco advising the appellant that the distributions in cash and in lieu of cash were taxable in his hands and should be declared as such in the next tax return.

(vii) The completion of the tax returns in 1990 and 1992 within months of the letters from Landco.

(viii) The keeping of the Landco letters in a separate file.

(ix) The claim by the appellant in each of the tax returns of a tax deduction for the interest paid on the loan which provided the funds for the Landco investments.

To that we should add that the jury had the advantage of seeing and hearing the appellant give evidence.

21. Counsel for the appellant relied on the following as compelling the jury to find that the prosecution had not excluded all the hypotheses consistent with innocence:

(1) Prior good character.

(2) The fact that the appellant gave evidence.

(3) The consistency of the evidence with mere oversight on the appellant's part.

(4) The lack of a false audit trail.

(5) Full and frank disclosure as soon as the non-disclosure was brought to his attention.

(6) Certain remarks by his Honour with regard to the above (5).

(7) Two questions put by the jury, indicating a failure to appreciate the issues and their task.

(8) His Honour's response to the jury's questions.

22. The last four of the above matters were put also as two separate issues on which Mr Norrish submitted the Court should focus, namely:

* The possibility that the jury were misled concerning the state of the evidence as to what the appellant said to his accountant on learning of the Australian Taxation Office investigation in September 1994.

* The concerns expressed by the jury in their questions raising issues which were irrelevant and not the subject of evidence, and which invited inferences adverse to the appellant which were unreasonable in all the circumstances.

23. We find it impossible to decide the unsafe and unsatisfactory ground without consideration of these two issues, and we shall proceed to deal with them here.

24. The appellant's accountant was called in the prosecution case. His evidence-in-chief went to show that when his firm prepared the tax returns for the appellant as it had done for some years, it received no instruction that the appellant had received income from the Landco investments, although instructions were received about the interest paid on the loan which provided the funds for those investments. The evidence-in-chief of Mr Lee did not carry the prosecution case very far. It went not much further than to exclude the possibility that the appellant had given instructions to the accountants to include the income in his tax returns and that the non-disclosure was the fault of the accountants and not of the appellant.

25. In cross-examination of Mr Lee, counsel for the appellant put questions apparently designed to show that when spoken to by Mr Lee about the Australian Taxation Office investigation, the appellant's response was consistent with lack of recall of the relevant income. The cross-examination proceeded:

"(Transcript p 56)

Did you ask him whether he had in fact received some income from Landco Unit Trust? - Yes.

What was his response? - He had said that he did, and we then subsequently offered the information to the Tax Office.

Did he tell you initially that he had no clear recollection of how he had funded that investment? - Yes. Yes, I asked that question to him.

And did he tell you that he would need to go through his papers and come back to you with information? - Yes.

Ö

(Transcript p 57)

And it is the fact, is it not that, after that initial telephone inquiry from the Taxation Office, Mr Moore indicated - sorry, and your telephone call to him - Mr Moore indicated that he would have to go through his records and bring in to you what he could find in relation to the Landco transaction? - Yes.

(Transcript p 65)

Do you now have any recollection of what it was Mr Moore said to you? His reaction when you first raised this matter with him? - Mr Moore realised that the tax office had Ö He wanted to get it sorted out with the Tax Office.

Well, then perhaps I can give you this example. He may have said, for instance, 'Well, the game is up; they have caught me out. They now know I'm a cheat'. Did he say something like that? - I'm not sure if he said words as strong as that. I mean he admitted that there was a non-disclosure. He realised there was a non-disclosure and had needed to provide information to the tax office which he was going to do.

(Transcript p 66)

Well, did he say, sir, anything to indicate to you that prior to your phone call he had had that realisation? - No.

Did he give you the contrary impression? - Yes.

HIS HONOUR: Sir, in your letter to the Tax Office, you indicated on page 3 of that letter, on the bottom of the page, in effect that Mr Moore had not realised something. 'At the time he did not really think much of the taxation consequence of the whole transactions.'? - Yes, that is right.

Summarised, that is what you understood Mr Moore to have said to you? - Yes.

Or at least part of what he said to you? - Yes."

26. This evidence is to be read along with that of the appellant himself whose evidence-in-chief contained the following:

"(Transcript p 88)

Now, in September of 1994 did you receive a phone call from Mr Gary Lee, who has recently given evidence in these proceedings? - Yes, I did.

And did he say something to you about your taxation affairs? - Yes, he did.

Are you able to recall now with any accuracy what he said? - Not the exact words, but the general text of the conversation, yes.

Ö

Mr Lee rang me and said that he had had a phone call from the Taxation Office regarding some undisclosed income for some of my returns, and what did I know about it.

Did he say anything to you about the source, or nature, of any of that income? - Yes, it was to do with the Landco Investments, or Landco Trust.

What did you say to Mr Lee? - ÖWell, I was horrified to think that I hadn't disclosed income.

Ö

(Transcript p 89)

Well, I don't remember the exact words but I do remember saying, 'I am surprised'. I said, 'I don't know of any income that I haven't disclosed. I will have to check my records and come back and go through it with you'.

27. As we have already indicated, it was not part of the prosecution case that the appellant had made any admission that at the time of completing and lodging the tax returns he realised that there was a non-disclosure of income. However, in his summing-up, his Honour reminded the jury that Mr Lee had said that "Mr Moore admitted that there had been a non-disclosure and he'd need to sort it out", and in summarising the case for the prosecution his Honour said:

"Ö on one construction of what Mr Lee had said, you might even think that Mr Lee had been given to believe that Mr Moore had been aware that he hadn't returned income that he ought to have returned, although that, of course, was not what Mr Moore said was the conversation in his evidence."

28. Mr Norrish complains that this was an inaccurate summary of the evidence and was expressed in such a way as must inevitably have had an unfair and prejudicial effect on the jury. On an analysis of the evidence as recorded in the transcript, we agree that it does appear that Mr Lee meant that the appellant admitted only that he realised, when told in the telephone conversation, that there had been a non-disclosure at the time of completing and lodging the tax returns in the previous years. Mr Lee did not say that the appellant admitted that he realised at the time of completing and submitting the tax returns, that there was a non-disclosure. We agree further that, in that part of the summing-up which we have quoted, the jury may have taken it to mean that the prosecution was relying on an admission by the accused that he was at the relevant times aware of his non-disclosure. The matter was confused somewhat by counsel for the appellant suggesting to Mr Lee that the appellant had given "quite the contrary impression", without counsel putting what was alleged to have been said to give that impression.

29. However, that part of the summing up of which complaint is made, has to be read in the context of the summing-up as a whole and of the trial as a whole. Earlier in his summing-up his Honour had said in relation to this conversation:

"Now, all I say to you about that is this that area where you have to be careful about putting too much weight on people's recollection of particular conversations. Was that only one conversation that Mr Lee had with Mr Moore? Well, his original evidence given on the previous day, that's yesterday, would not seem to support that because he did say after an initial inquiry Mr Moore indicated he'd need to refer to his records, and he did so, and as a result he wrote the letter which would imply, you might think, that there was more than one conversation, or at least some gap in the conversation. So, as I say, don't be too concerned - or don't place too much store on particular words."

30. Moreover, counsel for the appellant at the trial, who was otherwise astute to take whatever points could be taken properly on his client's behalf, did not ask for a correction or further direction from his Honour in this regard. In any event, towards the end of the summing-up when reminding the jury of the burden cast upon the prosecution his Honour said:

"Ö the evidence against this accused is entirely circumstantial. That is to say that there is nothing said by him to anyone which would amount to an admission that, at the relevant time or times, he had the necessary criminal intent."

31. Ultimately, it seems to us that there was no danger that the case was left to the jury on the basis that the prosecution was relying on an admission by the appellant to Mr Lee that the appellant was aware of his non-disclosure at the time of completing and submitting the tax returns.

32. Allied to the submission that the jury were allowed to consider a possible admission of dishonesty on the part of the appellant was the further submission on the appeal that the jury were wrongly allowed to consider that there was an inconsistency between the appellant's evidence and the evidence of Mr Lee as to the contents of the telephone conversation in September 1994. For the reasons we have already given in relation to the issue of whether or not there was an admission, a close analysis of the transcript leads to the conclusion that such an inconsistency is not made out. Again, however, it must be taken that the atmosphere of the trial was such that the possibility of prejudice to the accused was not enough for counsel to seek a specific direction from his Honour. It may well have been that counsel took the view that it was not in his client's interests to concentrate the jury's attention to the details of the conversation so late in the trial. The suggested but illusory inconsistency is not a matter which, in our opinion, clouded the jury's verdicts.

33. At the conclusion of the giving of evidence-in-chief by the appellant, the jury raised a question relating to his 1994 tax return. The question was whether certain investment income was derived after the Australian Taxation Office had commenced its investigation, and if so, on what date the 1994 tax return was lodged. His Honour, in the absence of the jury, received submissions as to how the questions might be answered and, before the appellant resumed his evidence for the purpose of further cross-examination, the jury were directed that there was no evidence on the point and that no inference adverse to the appellant could be drawn upon the absence of such evidence. The direction was in accord with what counsel requested of his Honour in their submissions. The matter of the 1994 tax return was not pursued by counsel for the prosecution in cross-examination of the appellant.

34. After the jury retired to consider their verdicts, they sent his Honour a second question, which was whether the appellant was "involved either personally or in an advisory capacity in the sale of properties in Landco developments Ö in the period June '90 to October '90". Again, in the absence of the jury, his Honour heard submissions about how this question should be answered. Counsel for the appellant submitted correctly that the question did not appear to arise from the evidence or the charge to the jury and he requested that the jury be directed that they should not engage in "some sort of Sherlock Holmes exercise in the jury room".

35. When the jury returned, his Honour gave the following direction:

"The answer is there is no evidence to suggest that at all, and I just say this to you, that there is no evidence to suggest it and it would be erroneous to ask the question whether he was or not, because in terms of what you are dealing with, you are dealing with the evidence as it is, not the evidence as it might have been had the Crown chosen to lead it or not.

So the answer is no. There is nothing to suggest Mr Moore was involved in either of those capacities in the sale of properties in Landco, and you therefore can't draw any inference adverse to him based on any such premise or even the possibility of any such premise."

36. It is submitted on the appeal that both questions reflect a tendency by a jury to concern themselves with matters which went outside the issues in the trial, especially when the second question was asked after they had retired to consider their verdicts and had been instructed by the trial judge about what those issues were and how they should approach them. It was submitted that his Honour ought to have warned the jury on the second occasion that they should not speculate about matters not in evidence and that his Honour should have directed them at that stage that, in order to find the appellant guilty, they would have to reject with certainty his sworn denials. The interest of the jury in irrelevant matters which the appellant had not had the opportunity to address, and the failure of the trial judge to give the cautions requested were, it was submitted, either of themselves or in combination with other aspects of the trial which have already been discussed, sufficient to make the jury's verdict unsafe and unsatisfactory.

37. In our view, his Honour gave adequate directions in response to both questions. The directions were essentially in accordance with what the appellant's counsel sought at the trial but, in any event, on an overall analysis, were adequate to remind the jury of its essential role to address the issues that had been explained to them. What led the jury to ask a question about the 1994 tax return or the appellant's possible role in the sale of Landco properties in 1990 are matters of speculation but the questions were not so wide of the mark, either in relation to the central issue of the appellant's honesty at the time of completing and lodging the tax returns, or the allied issue of the appellant's credit as a witness, that they showed that the jury misunderstood its function or misunderstood what the trial was about. No application was made or, in our view, could have been made successfully, for the discharge of the jury. In our view, his Honour responded to both questions in an appropriate and adequate manner. It cannot be reasonably supposed at this stage that the jury continued to concern themselves in the subject matter of the two questions or that their verdicts were tainted by any such past or continuing concern.

38. It follows that it has not been shown that this Court should have some doubt about the guilt of the appellant, or that the jury should have entertained some such doubt, or that there was something about the conduct of the trial that leads to a conclusion that the jury's verdicts were unsafe and unsatisfactory. We are not convinced that there was a miscarriage of justice. The appeal against conviction will be dismissed.

APPEAL AGAINST SENTENCE

39. It was submitted that the sentence imposed upon the appellant of imprisonment for 18 months on each count, each to run concurrently, with a minimum term of six months, was excessive having regard to:

(a) The appellant's age.

(b) The appellant's exemplary character.

(c) The appellant's full disclosure of the undisclosed income in each case.

(d) The appellant's co-operation with the Australian Taxation Office with regard to the disclosure of income and with the Director of Public Prosecutions in the conduct of the trial.

(e) The payment by the appellant of substantial additional tax, administrative penalties and costs.

(f) The transparent and unsophisticated nature of the non-disclosure of income in each case.

40. Before proceeding with the merits, it is as well to deal shortly with the principles. For the Director, it was submitted that there was a well established principle in cases of revenue fraud, namely that a custodial sentence is to be imposed in the absence of circumstances which justify the imposition of some lesser penalty and that the principle, being of universal application, provides no basis for distinguishing between different types of fraud on the revenue, particularly social security fraud and taxation fraud. Reliance was placed for the general principle on the judgments of the Court of Criminal Appeal of New South Wales in R v Purdon (unreported, 27 March 1997) the Court of Criminal Appeal of South Australia in R v Ruggiero (unreported, 1 December 1998) and the Court of Criminal Appeal of Victoria in Timothy Christopher Morris (1992) 61 A Crim R 233.

41. The Director contended for the same general principle in this Court in R v Whitnall (1993) 68 A Crim R 119. In that case the respondent pleaded guilty to eight counts of defrauding the Commonwealth by furnishing false income tax returns relating to him and a company which he controlled. The fraud involved setting up a false bank account in order to receive undisclosed income which resulted in an avoidance of tax amounting to $74,667. This Court refused to set aside as inadequate a suspended sentence of three years imprisonment with an order for 208 hours of community service. In that case, Higgins J surveyed a number of decisions in courts of criminal appeal and sentences at first instance and concluded at 126:

"At least, so far as the courts are concerned, serious frauds on the revenue will result in custodial sentences. In the absence of 'substantial mitigating circumstances' that sentence will include a period actually to be served."

42. That conclusion by Higgins J no doubt was an accurate reflection of the sentencing patterns which emerged from the survey conducted. As a matter of general principle, however, we agree with the caution expressed by Davies J at 120 that:

"Ö no broad statement of principle which fails to have regard to the particular facts of a case should be adopted."

43. His Honour added at 121:

"It would be wrong to hold as a matter of principle, that persons convicted of an offence under s 29D of the Crimes Act of defrauding the Commonwealth by virtue of the non-disclosure of income or the overclaiming of deductions should necessarily serve a term of actual imprisonment. So to hold would be to discriminate in an arbitrary and unfair manner against persons so convicted. Rather, a sentencing judge should take account of all relevant circumstances including, as is in this case, any payment of the assessed tax and administrative penalties."

44. Drummond J said at 127:

"But the main purpose of this appeal was, as the Director of Public Prosecutions frankly acknowledged, to establish a prima facie rule that an offender against the tax, social security and related laws of the Commonwealth must go to gaol, even after full weight has been paid to the sentencing directions in Pt IB of the Crimes Act 1914 (Cth). I do not think revenue offences should be regarded, for the purpose of sentencing, as any different from other offences having serious antisocial consequences. Actual imprisonment may often be appropriate in such cases and consistency in sentencing is also an important aim of the criminal justice system: Griffiths (1977) 137 CLR 293 at 326-327. But 'a fair margin of discretion must be left to the sentencing judge' (at 326). There is no justification for departing from the fundamental principle that the proper sentence in the case of any serious offence will be dictated by the circumstances of the particular case. The nature of the offences, here in question, as revenue offences, is but one of those circumstances, albeit an important one."

45. We conclude that the general principle can be stated no higher than that the cases in Australia show that a conviction for a serious fraud on the revenue is likely to result in an immediate term of imprisonment, but in any particular case, proper regard must be had to all relevant considerations including the sentencing criteria laid down in s 16A of the Crimes Act. Further, it must always be remembered that those criteria are subject to the fundamental principles of modern sentencing law enshrined in s 17A(1) that the Court should not pass a sentence of imprisonment without having considered all other available sentences and unless satisfied that no other sentence is appropriate in all the circumstances of the case.

46. It should also be acknowledged that both Ruggiero and Morris were cases of prosecution for imposition on the Commonwealth, an offence under s 29B of the Crimes Act, although a reading of the judgments indicates that they were treated as cases involving fraud. In the recent judgment of a Full Court of this Court in The Queen v Cobb [1999] FCA 159, it was said at [11]:

"There is an issue as to whether or not it was open to his Honour to have found, in effect, an intent to defraud, when that intent is not an element of an offence contrary to s 29B (which carries two years' imprisonment), though it is of an offence contrary to s 29A (false pretences - 5 years) and s 29D (defrauding - 10 years). In our view, it is unnecessary to determine that question. It may be assumed for present purposes that his Honour would have been entitled to find such an intent as an aggravating circumstance. It is apparent that his Honour declined to do so."

47. It is therefore an open question, as far as this Court is concerned, whether, for the purposes of sentence on a conviction for imposing upon the Commonwealth under s 29B, any intent to defraud may be taken into account.

48. We therefore think that Ruggiero and Morris are of limited assistance for the purposes of the present appeal. It may be noted that in Cobb the Full Court dismissed a prosecution appeal against the inadequacy of a sentence of two years imprisonment wholly suspended for one offence of defrauding the Commonwealth and substantial fines on five associated counts of imposition.

49. A major difficulty faced by the appellant in this regard is that it is not shown that his Honour failed to take into account the matters which are relied upon to indicate error. The submissions made to his Honour on sentence are not before us, but it appears that no suggestion was made that the proceedings should be adjourned for the purpose of obtaining a pre-sentence report or any other assessment of the appellant's suitability for a community services order or periodic detention. The evidence of the appellant's character, personal history and financial situation were already before his Honour and a pre-sentence report would have been of little assistance for the purpose of assessing the appellant's prospects of rehabilitation or of paying a substantial monetary penalty. A report from an authorised officer would have been necessary if the appellant was to be dealt with by way of a community services order or periodic detention: see Crimes Act 1900 (ACT), s 556J; Periodic Detention Act 1995 (ACT), s 6(1).

50. His Honour's reasons were brief and to the point. There was no doubt that his Honour was well aware of the appellant's age and previous good character. His Honour said that he accepted the evidence relating to the appellant's background and that the offences were "out of character". His Honour, whilst correctly observing that the offences involved the concealment of income of about $200,000 over a period of three years and "the keeping of the Commonwealth out of a considerable amount of taxation for Ö about five years [in one case] and lesser period in Ö the other two", acknowledged that the payment of the outstanding tax and penalties imposed some hardship on the appellant, but for which in addition a substantial fine would have been imposed. His Honour remarked, again correctly in the light of the jury's verdicts, that the only explanation as to the appellant's motivation for committing the offences was his desire not to pay tax on the income in question and that in that regard there was no reason for leniency. His Honour observed in conclusion that the appellant, having pleaded not guilty, was not entitled to any "further leniency" on the ground of contrition or remorse.

51. It cannot be said that his Honour overlooked or gave insufficient weight to the appellant's previous good character. It was open to his Honour to assess the seriousness of the offences as he did and to find that the seriousness was not mitigated by the simple wish to avoid paying tax. We agree with those findings. Furthermore, it is clear that the appellant was not sentenced on the basis that he had engaged in an intricate and deceitful series of transactions, which provided obstacles for those who conducted the investigation into his affairs. We agree with the sentencing judge that the relatively unsophisticated nature of the deception and the leaving of an "audit trail" do not in themselves constitute mitigating circumstances.

52. Clearly his Honour did not ignore the hardship imposed by the payment of tax and penalties. However, it was submitted that his Honour overlooked certain facts pertinent to those payments. The payments, or most of them, were made by December 1995 and the prosecution was commenced by informations laid or summonses issued in October 1996. The appellant could have been prosecuted under provisions of the Income Tax Assessment Act 1936 in which case, in accordance with s 8ZE of the Taxation Administration Act 1953 (Cth) the payments would have had to be refunded to him. It was submitted that as the Australian Taxation Office had accepted the payments, the appellant was entitled to entertain a reasonable expectation that he would not be prosecuted. Although there is no evidence from the appellant to support the submission that he in fact had such an expectation, we may assume that he did so. But he was not entitled to regard the receipt of the payments as in any way a guarantee that the Director of Public Prosecutions would not prosecute in accordance with the Director's statutory duty; nor should it be thought that he might entertain a reasonable expectation that a court would treat such payments as enabling him to buy his way out of a custodial sentence.

53. These payments were also relied upon to suggest error in his Honour's remarks about lack of contrition. It was submitted that his Honour was incorrect in implying that a plea of not guilty necessarily means an absence of remorse. However, that is not what his Honour said and we do not think that it is to be implied from his remarks. Clearly the appellant was not entitled to that element of leniency that is normally, but not always, attracted by a plea of guilty. The leniency so attracted is extended for pragmatic reasons such as the saving of public resources and time, or avoiding further indignity to a victim of crime. A plea of guilty may or may not reflect contrition, depending upon other circumstances of the case. On the other hand, a plea of not guilty cannot of itself reflect contrition; in certain circumstances a plea of not guilty may not be inconsistent with contrition, but the contrition has to emerge positively from the evidence or the circumstances. It was submitted that the payment of tax and penalties referred to above showed contrition on the appellant's part. His Honour, who had heard the appellant give evidence during the trial, did not think so. The appellant gave no evidence following conviction. His Honour did not think the appellant showed that sober realisation of wrong-doing and repentance that constitutes contrition or remorse for present purposes. No doubt the appellant is sorry for what he did, but we are not convinced that his Honour was compelled to find that the payment of the tax owing and the penalties imposed was done otherwise than in an acceptance of the inevitable. Hope that meeting one's financial obligations will enable avoidance of prosecution or a less drastic result upon conviction does not attract leniency.

54. Lastly, and in general terms, it was submitted that his Honour had simply failed to comply with the statutory obligation in s 17A(1) to "[consider] all other available sentences" before satisfying himself that no other sentence was appropriate in all the circumstances of the case, and further, in s 17A(2) to "state the reasons for [his] decision that no other sentence is appropriate".

55. As we have already remarked, s 20AB of the Crimes Act empowers a State or Territory court sentencing a Federal offender to pass a sentence of periodic detention or make a community service order in accordance with the law of the State or Territory. But the law of the Australian Capital Territory authorises periodic detention or a community services order only when the appropriate recommendation has been made. There was no such recommendation before his Honour. In that sense no such other sentence was available for his Honour to impose. We do not see that in the absence of an application by the appellant's counsel for an assessment, there was any error in failing to adjourn the proceedings in order that the appropriate authorities might assess whether such a recommendation might be made. Indeed, the alternative sentences of periodic detention and a community services order are still not available. The case for the appellant before his Honour and before this Court was not that there should be a sentence of a completely non-custodial nature on any one or more of the counts on which he was convicted, but that the custodial sentence for the totality of the offences should be wholly suspended. It is not submitted that three years was an excessive term of imprisonment. What was sought before his Honour and, essentially, before us, was an immediate and total suspension of the term. Only at the end of the submissions before us was it suggested that a custodial sentence on one count, wholly suspended, might be combined with another sentence of a non-custodial nature such as periodic detention or a community service order on one or both of the other counts. Mr Norrish properly acknowledged that the latter course was impossible without an adjournment of the hearing of the appeal for the purpose of assessment by the appropriate authorities. No such adjournment was sought.

56. In a case where full-time imprisonment has been ordered (and not suspended) and where, on appeal, it appears that the subject sentence is manifestly excessive by comparison with what would have likely been available by way of community service and/or periodic detention, it will be no answer to say that the trial judge was not asked to obtain an assessment from the requisite officer of the appellant's suitability. A sentencer must consider whether, assuming a favourable recommendation from such officer, some of those more lenient sentencing dispositions would be appropriate. Such, in our opinion, is the reach of the requirement in s 17A(1) to "[consider] all other available sentences". It cannot have been the intention of the legislature that full-time imprisonment might result from, for example, an inadvertent, ill-advised or (with the clear vision of hindsight) tactically misconceived failure by an offender or his/her lawyer to ask for a recommendation as to the offender's suitability for a less onerous sentencing disposition, when otherwise the inside of a prison cell might have been avoided.

57. Likewise, in considering whether a full-time custodial sentence was appellably excessive, this Court should measure it, among other things, on the same assumption. At firstinstance, or on appeal the Court can, of its own motion, adjourn the proceedings to obtain such a recommendation.

58. We would not however assume from his Honour's mere silence on the subject that, as an experienced sentencer, he had not given consideration to and rejected each of those two options. In Nominal Defendant v Australian Capital Territory & Anor [1999] FCA 448 the Court declined to infer an elementary error on the part of the court below merely from its silence on a point.

59. As Whitnall's case demonstrates, with some support from Cobb, it is not necessarily an error, in sentencing for an offence of serious fraud on the revenue, for a court to impose a sentence of imprisonment which is not immediately effective. But that is not the question here. Although minds might possibly differ on what ought to be done if we were re-sentencing, we find it impossible to say that the sentence imposed by his Honour, when measured explicitly against the possibilities in relation to community service and/or periodic detention, was outside the range of a sound exercise of his discretion. The appeal against sentence should be dismissed.

60. The orders of the Court are that the appeals be dismissed and that the convictions and sentences of the Supreme Court be confirmed.