O'Meara v R

[2009] NSWCCA 90

Appeal Outcome: Special leave dismissed by the High Court 10 March 2010 (S179/2009)

New South Wales

Court of Criminal Appeal

CITATION:	O'MEARA, Kenneth John v R [2009] NSWCCA 90
HEARING DATE(S):	24 September 2008
JUDGMENT DATE:	2 April 2009
JUDGMENT OF:	McClellan CJatCL at 1; Hoeben J at 2; Harrison J at 3
DECISION:	1. Other than with respect to the appeal against sentence, leave to appeal in respect of all grounds sought to be raised after the hearing of the appeal on 2 September 2008 refused. 2. Appeal against conviction and sentence otherwise dismissed.
CATCHWORDS:	CRIMINAL LAW – appeal against conviction and sentence – whether trial judge erred by failing to give jury an Edwards direction – whether trial judge failed to put defence case to jury in summing up – whether trial judge’s directions on attempt were adequate - whether trial was unfair by reason of counsel’s failure to apply for and trial judge’s failure to grant separate trials on separate counts – whether trial judge erred in directing jury that Commissioner of Taxation was a Commonwealth entity – further grounds of appeal submitted after hearing of the appeal - whether abuse of process - grounds of appeal futile in any event – appeal against conviction dismissed – CRIMINAL LAW - appeal against sentence – whether trial judge erred in not sentencing separately – whether sentences inappropriately accumulated – whether the offences were stale - whether sentences manifestly excessive – appeal against sentences dismissed
LEGISLATION CITED:	Criminal Appeal Act 1912 Criminal Code Act 1995 (Cth) Director of Public Prosecutions Act 1983 (Cth) Taxation Administration Act 1958 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Elliott v R, Blessington v R [2007] HCA 51; (2007) 234 CLR 38 Healey v R [2006] NSWCCA 235 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Elliott and Blessington [2006] NSWCCA 305; (2006) 68 NSWLR 1 R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
PARTIES:	Kenneth Ian O'Meara (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/5301
COUNSEL:	W Barber (Appellant) P Roberts SC (Respondent)
SOLICITORS:	Bevan Snell Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0978
LOWER COURT JUDICIAL OFFICER:	Williams DCJ
LOWER COURT DATE OF DECISION:	30 March 2007 (date of sentence)

2006/5301

McCLELLAN CJ at CL
HOEBEN J
HARRISON J

2 April 2009

O'MEARA, Kenneth Ian v R

Judgment

1 McCLELLAN CJ at CL: I agree with Harrison J.

2 HOEBEN J: I agree with Harrison J and the orders which he proposes.

3 HARRISON J: This Court heard the present appeal on 2 September 2008, which was at that time limited to an appeal against conviction that raised five grounds of appeal. The Court reserved its decision. Since that time the appellant has sought leave to raise further grounds of appeal not argued at the hearing of the appeal and to appeal against his sentence as well. The Crown does not oppose a grant of leave to appeal against the sentence but strenuously opposes the application to rely upon further grounds of appeal against conviction. In order to appreciate the nature and extent of the dispute, it is convenient to deal first with the matters that were argued at the hearing of the appeal in this Court and then to deal with the latest applications in the light of what emerges from that consideration.

Background

4 On 18 October 2006 the appellant was arraigned before Williams DCJ and a jury on an indictment charging one count of obtaining a financial advantage by deception under s 134.2 of the Commonwealth Criminal Code (Count 1) and five counts of attempting to obtain a financial advantage by deception under ss 11.1 and 134.2 of the Code (Counts 2 to 6). On 15 November 2006 the appellant was found guilty on all counts except Count 5 upon which they were unable to reach a verdict.

5 On 30 March 2007 the appellant was sentenced in relation to Counts 1 and 2 to 6 years imprisonment to commence on 15 November 2006 and on Counts 3, 4 and 6 to 6 years imprisonment for each offence to date from 15 November 2008. The overall term of imprisonment imposed was 8 years. The appellant was ordered to serve a non-parole period of 5 years and 4 months so that he becomes eligible for release on parole on 14 March 2012.

The Crown case

6 It was the Crown case at trial that during the period from July 2001 to the end of September 2002 the appellant dishonestly made false claims for refunds of GST in Business Activity Statements ("BAS") submitted to the Australian Taxation Office ("ATO") in the names of companies controlled by him. In each case the BAS contained false information concerning alleged purchases claimed to have been made that incurred GST. The BAS falsely claimed that the companies had made (usually) capital purchases and that the companies were entitled to a refund of the GST component. The total amount of GST claimed to be the subject of a refund in all charges amounted to $64,450,896. In respect of each purchase with the exception of Count 5 the appellant created false documentation showing that the purchases were made from another company State Debt Recovery Pty Ltd (Counts 1 and 2) or from the appellant himself using a business name Particle Spin Motors (Counts 3, 4 and 6).

7 In the years 2001 and 2002 the appellant used four companies controlled by him as well as the business name in a scheme that the Crown submitted was created for the purpose of defrauding or attempting to defraud the ATO. These companies were Wandsworth Holdings Pty Ltd (later re-named Innes Creighton Nationwide Pty Ltd), which traded under the name "Newcastle Prestige Property", State Debt Recovery Pty Ltd, Ozwide Real Estate Pty Ltd and Semiconductor Motor Corporation Pty Ltd.

8 On about 3 July 2001 the appellant caused a BAS to be lodged with the ATO on behalf of Newcastle Prestige Property (Wandsworth Holdings Pty Ltd) in relation to its business activities between 1 April 2001 and 30 June 2001. That BAS was the subject of Count 1. It claimed that the business had total sales for the period of $1,133,130 including GST with capital purchases of $6,669,829 and non-capital purchases of $17,948. The BAS claimed that the company was owed $607,980 for "purchases" (i.e. input tax credits) and that it owed the ATO $103,012 for GST on sales. The net amount claimed as a refund by the company was accordingly $504,968.

9 Following a request by the ATO for supporting documentation the appellant sent it three invoices. One of these was on the letterhead of "State Debt Recovery Office" and the address shown was the same as Wandsworth Holdings Pty Ltd. The invoice purported to record the sale to Wandsworth Holdings Pty Ltd of "10 Source Code in Visual Basic covering Programs in Specification H564/2005-2014" at a unit price of $543,166.32 totalling $5,431,663.23 plus a GST amount totalling $543,166.32.

10 On 18 July 2001 the ATO authorised the payment of a refund in the sum of $505,103.30 transferred electronically to the account of Wandsworth Holdings Pty Ltd. An amount of $550,000 was withdrawn from that account on 24 July 2001 and deposited into an account in the name of Ozwide Real Estate Pty Ltd.

11 On 20 December 2001 the appellant wrote to the ATO on the letterhead of Ozwide Real Estate Pty Ltd attaching a copy of a completed BAS for that company for the period from July 2001 to September 2001. That BAS was the subject of Count 2. It recorded capital purchases for the company of $3,425,707 with GST on purchases of $311,427.90. There were no sales by the company disclosed for that period. The BAS claimed a refund of $311,428. There was evidence that the appellant later sought to amend this BAS by claiming sales of $572,785 with GST of $57,278.50. The amount claimed as a refund after that adjustment was $254,149.

12 The letter attached an invoice dated 19 July 2001 from "State Debt Recovery Office". It was in the same format as the invoice furnished to the ATO by Wandsworth Holdings Pty Ltd. It purported to record the sale to Ozwide Real Estate Pty Ltd of five "Source code for W2000 . . ." totalling $3,425,706 with GST of $311,247.90.

13 On 25 January 2002 the appellant telephoned the ATO and spoke to an ATO officer concerning his personal liability for GST under the trading name used by him of Particle Spin Motors. He said that he had an invention that he had sold but that he would not receive the full price until 1 April 2002. He requested that the ATO agree to an arrangement whereby Particle Spin Motors would pay $16M by way of GST on 1 March 2002 and that he would pay the balance of approximately $5.9M on 1 April 2002. On 31 January 2002 the ATO sent a letter to the appellant agreeing to this arrangement. No monies were ever paid pursuant to it.

14 On or about 30 January 2002 the appellant caused a completed BAS for Semiconductor Motor Corporation Pty Ltd to be lodged with the ATO for the month of January 2002. That BAS was the subject of Count 3. It reported "capital purchases" of $168,025,000 with GST on purchases of $15,275,000. There were no reported sales for the company for that month. A refund was sought in the sum of $15,275,000.

15 On 6 February 2002 the ATO asked the appellant to contact it to discuss the January 2002 BAS for Semiconductor Motor Corporation Pty Ltd. On 8 February 2002 the appellant wrote to the ATO informing it that Particle Spin Motors had developed a Perpetual Motion Motor that it had sold to Semiconductor Motor Corporation Pty Ltd for $152,750,000 plus GST. A tax invoice was enclosed. It was in the same format as that from State Debt Recovery Office referred to earlier. It was dated 28 December 2001 on the letterhead of Particle Spin Motors. The customer was recorded as Semiconductor Motor Corporation Pty Ltd and the subject matter was "Rights to Perpetal [sic] Motor Design". The cost was stated to be $152,750,000 plus GST of $15,275,000 making a total of $168,025,000.

16 The ATO wrote to Semiconductor Motor Corporation Pty Ltd on 17 April 2002 seeking documentation to support the claimed refund of GST in the January BAS. The appellant replied in curious terms that appeared designed to enable him to avoid having to show the invention to an ATO field officer by leaving the motor offshore. Further correspondence ensued. In May 2002 an officer from the ATO visited the appellant at his premises. The appellant showed him minutes of meetings of Semiconductor Motor Corporation Pty Ltd purporting to confirm the legitimacy of the claimed refund.

17 On or about 3 July 2002 two further completed BASs were lodged by the appellant for Semiconductor Motor Corporation Pty Ltd. One was the April 2002 BAS, which is the subject of Count 4. It reported "capital purchases" of $101,200,000 with GST on purchases of $9,200,000. There were no reported sales for the company for that month. A refund of $9,200,000 was sought. The second BAS was for May 2002, which is the subject of Count 5. The May 2002 BAS reported "non-capital purchases" of $379,500 with GST on purchases of $34,500. There were no reported sales for the company for that month. A refund of $34,500 was sought.

18 Also on 3 July 2002 five BASs were lodged for Particle Spin Motors. They covered the months from January to May 2002. The April BAS claimed total sales of $101,217,600 including GST and claimed that the ATO was owed $9,201,600 apparently to reflect the supposed capital purchases of Semiconductor Motor Corporation Pty Ltd in the April 2002 BAS. The second BAS was for May 2002 and claimed total sales of $397,100, apparently to reflect the supposed non-capital purchases of the company in its May 2002 BAS. No monies were ever paid to the ATO calculated in accordance with either BAS.

19 On 25 July 2002 the AFP executed a search warrant at the appellant's home and business premises and certain documents were seized.

20 On or about September 2002 a further BAS was lodged for Semiconductor Motor Corporation Pty Ltd for the month of June 2002. It was the subject of Count 6. It reported "capital purchases" of $441,375,000 and GST on purchases of $40,125,000. There were no reported sales for the company for the month. A refund of the GST amount was sought.

21 Also on 30 September 2002 a BAS for Particle Spin Motors was lodged with the ATO claiming total sales of $441,392,000 including GST. This was apparently intended to reflect the supposed capital purchases in the June 2002 BAS of Semiconductor Motor Corporation Pty Ltd.

22 On 26 February 2003 the AFP executed further search warrants at the appellant's home and business premises.

23 Apart from documents created by the appellant there was no evidence that State Debt Recovery Office Pty Ltd conducted any form of business activity or had any available funds. It never filed any income tax or BAS returns for the 2001 year despite the fact that it had registered for GST purposes and it never accounted to the ATO for the GST component of any sale or supply of goods.

24 Ozwide Real Estate Pty Ltd had two bank accounts but the bank records revealed that it never had the funds to make million dollar capital acquisitions. There was also no record of any payment of $3,425,707. The sum of $550,000 paid into its account on 24 July 2001 was the only significant amount that it received.

25 Documents recovered pursuant to search warrants included a computer file containing an invoice from Particle Spin Motors to Semiconductor Motor Corporation Pty Ltd showing a sale to the value of $101,200,000 including GST of $9,200,000 and an invoice dated 30 June 2002 from Particle Spin Motors to Semiconductor Motor Corporation Pty Ltd showing total sales of $440M including GST of $40,000,000. These invoices were in the same format as that sent to the ATO with the letter dated 8 February 2002.

26 Police also found a copy of a letter addressed to Holman Engineering Pty Ltd dated 2 September 2001. It referred to attached plans. These were in a document entitled "The TOC Pulsed Electric Motor Generator". It was identical to Exhibit CV which was material downloaded from the Internet by an ATO officer relating to an invention by a person named Adams. He had supposedly invented a "free energy machine" that converted the perpetual motion of sub-atomic particles, known in physics as "particle spin", into conventional electric power.

27 Also located by police were a number of what were alleged to be bogus records apparently created to give an impression of authenticity to the alleged transactions between Semiconductor Motor Corporation Pty Ltd and Particle Spin Motors. These included minutes of a meeting attended by fictitious persons and entries recording events that did not take place. Another computer document found by police at the appellant's premises suggested that Particle Spin Motors had substantial funds available to it in a cash management account at Sandford Securities and a share portfolio with a value of $163M. However, no such account existed in fact. The appellant had at one time invested something in the order of $50,000 with Sandford Securities but the account was closed on 14 August 2000. There was no documentary or other evidence at the trial as to what the alleged "non-capital purchases" were in May 2002, apart from the similarity in amounts in the May 2002 BAS lodged for Particle Spin Motors.

The defence case

28 The appellant did not give evidence at his trial. His case was presented through cross-examination of Crown witnesses and closing argument. It was the appellant's case at trial that the Crown had failed to establish beyond reasonable doubt that the transactions that resulted in GST refund claims were false. The appellant argued that the relevant businesses undertook their GST accounting on an accruals basis so that GST credits and liabilities were reportable and payable from the time when transactions were entered into. Payment towards settlement of the transaction did not need to occur in the relevant GST reporting period so that bank statements, which appeared to disclose an incapacity on the part of the purchasing businesses to complete the transactions in the relevant periods, did not conclusively establish that the transactions were false.

29 It was also argued that the Crown had failed to establish that the transacted computer software property, relevant to Counts 1 and 2, had no intrinsic value. Investigators had failed to conduct an exhaustive analysis of the software stored on the appellant's computer and so could not exclude the reasonable possibility that he possessed source codes that had commercial value. He argued that the evidence supported the inference that he had the means to carry out commercial software development.

30 The appellant also argued at trial that the Crown had failed to establish that the transactions involved in Counts 3 to 6 were not genuine. The appellant also emphasised that a reconciliation of the figures in the BASs of Semiconductor Motor Corporation Pty Ltd and Particle Spin Motors left the appellant with a net taxation liability. He argued that this founded an inference that he did not intend to obtain a financial advantage from the ATO. Furthermore, there had been no attempt to disguise the appellant's connection with any of the business entities involved in the transactions, thereby supporting an inference that the appellant had no intention to engage in fraudulent activities and that the transactions were genuine.

Grounds of Appeal

31 The appellant originally appealed against his conviction pursuant to s 5(1)(a) of the Criminal Appeal Act 1912. There were three original grounds of appeal:

1. The trial judge erred by failing to give the jury an Edwards direction.

2. The trial judge failed to put the defence case to the jury in his summing up.

3. The trial judge's directions on attempt were inadequate and involved error.

32 On 14 January 2008 the appellant sought to rely upon two further grounds of appeal:

4. The trial was unfair by reason of trial counsel's failure to apply for, and the trial judge's failure to grant, separate trials in respect of Counts 1 and 2, and Counts 3 to 6.

5. The trial judge erred when he directed the jury that as a matter of law the Commissioner of Taxation was not [sic: was ] a Commonwealth entity.

Ground 1

33 The appellant argued that the allegedly false documentation and statements made to ATO officers supporting the existence of the transactions said to give rise to the claimed refunds in the BAS material constituted "post offence conduct". As such they were said to be analogous to lies told by an accused after the offence and should therefore have been the subject of an Edwards direction to the jury. The appellant submitted that this followed because the Crown had substantially relied upon evidence of post offence conduct that was motivated by a consciousness of guilt. The appellant contended that the evidence was analogous to the false alibi cases where the accused has lied to prevent discovery of the offence.

34 The appellant referred to Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 at 333 n [59] where Gaudron and Gummow JJ identified the four key elements of an Edwards direction as follows:

"So far as is presently relevant, it was held in Edwards that, where a lie is relied on to prove guilt, the trial judge must first identify the lie, and the circumstances and events relied on by the Crown to indicate that it constitutes an admission against interest. Secondly, the jury must be told it may take the lie into account only if satisfied, having regard to those circumstances and events, that the lie reveals the accused's knowledge of the offence charged or an aspect of it. Thirdly, the jury must be told that there may be reasons other than realization of guilt why the accused told the lie. Fourthly, the jury should then be told that if it accepts the lie was told for a reason other than realization of guilt, it cannot regard the lie as an admission against interest: [1993] HCA 63; (1993) 178 CLR 193 at 210-211 per Deane, Dawson and Gaudron JJ."

35 The appellant's argument is erroneous. According to the evidence, the so-called false documentation was either produced by the appellant to the ATO officers to support one of the claimed refunds or was found located at his premises during the execution of search warrants. In either event the false documentation was created as part of the appellant's efforts to convince the ATO of the genuineness of the transactions said to give rise to the entitlement to the refunds. Similarly, the lies told to the ATO by the appellant were told as part of his endeavours to convince the ATO of the authenticity of the claim for the refunds. The creation of the documents and the telling of the lies were not post offence conduct and were not analogous to lies told by an accused after the offence. It had nothing to do with the subject matter of an Edwards direction.

36 Moreover, the Crown did not use the false documentation in some indirect fashion, as the appellant contended, to demonstrate a "consciousness of guilt" or corroboration of guilt. No such suggestion was made during the trial. The Crown set out to prove beyond reasonable doubt that the documentation said to evidence the transactions was bogus, as were the claims made by the appellant to ATO officers, and to establish that there were in fact no transactions. It was the Crown case that as there were no transactions there was no proper basis for any of the claimed refunds of GST and that the claims were therefore necessarily made dishonestly. The trial judge was not asked by either party to give an Edwards direction because the circumstances for such a request had not arisen.

37 There were no circumstances in this case that called for the trial judge to give an Edwards direction.

38 Reliance upon this ground requires leave under Rule 4 of the Criminal Appeal Rules. The appellant submitted that leave should be granted because the evidence was important to the Crown case and featured heavily in the Crown's closing arguments. Counsel for the appellant sought to advance arguments at the trial that would have been complemented by an Edwards direction. Furthermore, counsel for the appellant at trial was not "very experienced" and had not practised "extensively in the criminal law".

39 Having regard to the view I have formed about this ground of appeal, it is strictly unnecessary to express an opinion about whether or not leave should be granted.

Ground 2

40 In Healey v R [2006] NSWCCA 235, Smart AJ (with whom McClellan CJ at CL and Rothman J agreed) said at [62]:

"[62] There is a substantial body of authority that a summing-up must put the defence case fairly and adequately to the jury. The jury must be given an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence. See Stokes v The Queen (1960) 105 CLR 279 at 284, R v Sukkar [2005] NSWCCA 54 at [93] and the cases there cited."

41 At pages 1 and 26 of his summing-up the trial judge expressly stated that he did not intend to review the arguments of counsel. The appellant submitted further that when the trial judge did comment upon the defence case he did so for the purpose of explaining why it could not succeed. The principal argument in the defence case in relation to Counts 3 to 6 was that it was open to the jury to find that:

(a) The appellant lodged countervailing BASs on behalf of Particle Spin Motors that acknowledged GST liabilities for the relevant transactions;

(b) These amounts exceeded the corresponding GST claims of Semiconductor Motor Corporation Pty Ltd;

(c) The BAS figures supported the inference that the appellant ultimately stood to lose money once the payments were made;

(d) In these circumstances it could not be established beyond reasonable doubt that the appellant intended to obtain a financial advantage.

42 The appellant contended that those aspects of the defence case should have been, but were not, summarised and left to the jury. They put in issue the question of whether or not the prosecution had established the requisite intention and dishonesty on the part of the appellant in relation to Counts 3 to 6.

43 In support of his argument the appellant drew particular attention to a passage from the trial judge's summing-up at pages 28 and 29 as follows in the course of which the appellant submits his Honour directed the jury to reject the defence:

"If you are satisfied beyond reasonable doubt that any or all of those transactions were sham transactions, then it does not matter, for the purposes of the offence, that Particle Spin Motors and Mr O'Meara, who trades as Particle Spin Motors, might have submitted a countervailing business activity statement in which he owed the same amount or virtually the same amount to the tax office because Mr O'Meara's charged with attempting to dishonestly obtain a financial advantage from the Australian Tax Office by submitting a BAS for Semiconductor Motor Corporation, the benefit would go to Semiconductor Motor Corporation Pty Limited, and if that attempt had been successful and Semiconductor Motor Corporation received the refund, then if the process was based on a sham and you are satisfied beyond reasonable doubt in that regard, then that refund would have been dishonestly obtained by him for the company."

44 The appellant complained further that a redirection provided by the trial judge at the request of counsel for the appellant, in combination with the earlier passage, only served further to confuse the issue as to whether the appellant actually had a defence. It was at page 35 of the summing-up in the following terms:

"Now, I said to you that that factor that the countervailing Business Activity Statement was lodged does not mean to say that an offence of obtaining an advantage for Semiconductor Motor Corporation has not been established, but it is a matter that you can consider on the question of whether Mr O'Meara intended to obtain a financial advantage in those circumstances. Okay?"

45 The appellant submitted that these directions fell short of the requirement of a trial judge to "put the defence case fairly and adequately to the jury".

46 In my opinion there is no substance in this ground. If the jury were satisfied that there was no underlying transaction, and therefore no basis for refunds of GST, the subsequent repayment of a sum equivalent to the refunds obtained, or a promise to do so, would not constitute a defence to these counts. The passages in the trial judge's summing up upon which the appellant relies correctly informed the jury that the issue of whether or not the transactions were a sham was the essential issue for it to decide. Both the Crown and the defence comprehensively examined the evidence in addresses. It was in those circumstances unnecessary for the trial judge to refer again to those facts at length in his summing-up.

47 No complaint was made by defence counsel at the trial about these matters. Rule 4 applies. Although strictly irrelevant having regard to the view I have formed, I would not otherwise have granted leave to argue this ground of appeal.

Ground 3

48 The appellant submitted that the directions on attempt were inadequate for three reasons:

(a) At the time the direction was given, the jury was not instructed that the Crown had to prove the appellant's intention to commit the completed offence. A more complete direction on intention was given later after a complaint by defence counsel.

(b) The direction erroneously and confusingly introduced the fault element of recklessness, contrary to s 11.1(3) of the Criminal Code Act.

(c) The direction did not adequately explain that the Crown had to establish conduct by the appellant that was immediately connected with, and which could not reasonably be regarded as having any purpose other than, the commission of the offence.

49 The relevant portion of his Honour's summing-up was at pages 12 to 14 as follows:

"For conduct on the part of Mr O'Meara to constitute the crime of an attempt in regard to [Counts 2 to 6], the conduct the Crown relies on must be something more than conduct that is merely preparatory to the committing of an offence or the offence in question and it is a question of fact for you, the jury, to determine whether in any particular case an attempt has been made. So that in regards to counts (2) to (6) one thing that you would have to be satisfied of beyond reasonable doubt is that in each case Mr O'Meara did something that was more than preparatory to committing the alleged offence. It would have to be more than preparatory in order to constitute an attempt within the Commonwealth criminal law . . .You have to be satisfied that whatever was done in counts (2) to (6), constituted an attempt, that is it was more than merely preparing to commit a crime, that it was something that was done beyond that.

Now apart from the fact that there is an attempt in the charges, an attempt in charges (2) to (6), apart from that issue, the legal ingredients for each charge are the same. They are that Mr O'Meara did firstly by a deception, secondly dishonestly, thirdly obtain, or in the case of attempt, attempt to obtain a financial advantage, and fourthly from a Commonwealth entity. . . The words "by a deception" simply means that a person puts forward something said to be true when it is in fact not true and that is done intentionally by the person or done recklessly by the person.

Now I do not think you need in this particular case to worry about the question of recklessness but if a person acts intentionally or recklessly in that way that constitutes a deception, and a person has an intention to do something if they mean to do it. Intent and intention are very familiar words and they carry their normal meaning. Intention can be inferred or deduced from the circumstances in which an act or acts take place or from the conduct of an accused person. When you are considering the question of intention in respect of each of these matters the intention is the intention of the accused, not what your intention might have been had you been in this position, nor the intention of any theoretical person. So it is important to remember that. So by a deception simply means that intentionally or recklessly a person means to put forward something said to be true when it is [in] fact not true."

50 With respect to the first contention, the "complaint" referred to above was in fact a direction sought by defence counsel in the following terms:

". . .your Honour should direct the jury that they should be satisfied that Mr O'Meara had the intention to engage in the conduct which was to obtain the financial advantage."

51 The further directions that were given to the jury were given by way of a reminder of what they had already been told, as follows:

"Now you must be satisfied beyond reasonable doubt that Mr O'Meara in each case intended, that is intended or meant to obtain the financial advantage that he either did obtain or that he was trying to obtain . . ."

52 There is in my opinion no inadequacy to be found in his Honour's summing-up on this basis. An essential element of the principal offence was the obtaining of a financial advantage. This was apparent from his Honour's summing-up and it was made plain by his Honour that it also constituted a necessary element in the attempt counts. His Honour's directions were neither inadequate nor erroneous in this respect.

53 With respect to the contention that his Honour's direction erroneously or confusingly introduced the fault element of recklessness, the appellant relied upon the terms of s 11.1 of the Criminal Code Act 1995 (Cth) as follows:

" 11.1 Attempt

(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted."

54 The appellant contended that one effect of this provision is that recklessness will not suffice as a fault element in relation to a physical element of an attempt offence. It was also contended that his Honour omitted to direct the jury on the requisite intention at the time he was directing the jury on attempt, that he limited the direction on intention to the element of deceptive conduct and only belatedly expanded the intention direction to address the object of the offence, and wrongly introduced the fault element of recklessness which he failed adequately to correct in a way that removed it from the jury's consideration.

55 The appellant re-emphasised that the failure by the Crown to establish the requisite intention on the part of the appellant had been an important part of his case and submitted that an absence of clear directions on the fault element of the attempt counts had caused the trial to miscarry. That submission is said to be reinforced by earlier contentions that the trial judge did not adequately put the defence case. The appellant submitted that the summing-up did not discharge the basic responsibility of identifying and communicating to the jury what the real issues at the trial were in light of the applicable law. The appellant also contended that the trial judge omitted to instruct the jury that to constitute an attempt, the relevant conduct had to be immediately rather than remotely connected with the offence and could not reasonably be regarded as having any purpose other than to commit the particular crime.

56 In my opinion his Honour's summing-up to the jury on the issue of attempt was perfectly adequate. The appellant's submissions, with one exception, amount in effect to a semantic critique of his Honour's chosen words with a view to finding fault. The difficulty with this approach, in this case, however, is that there is none. For example, his Honour repeatedly told the jury that the conduct of the appellant had to be more than merely preparatory to committing the alleged offence. No other explanation of that concept was required as his Honour also noted. Furthermore, there was also no difficulty with any notion of proximity of the appellant's conduct to the completed offence. The only factual difference between the attempts and the completed offence was that in the case of the attempt counts the appellant did not succeed in obtaining the GST refunds that he sought.

57 The exception to which I have referred relates to the appellant's arguments on the issue of recklessness. The Crown submitted that the intention to commit the crime created by s 134.2 does not necessarily include the state of mind of an accused person as to the nature of the deception involved in that crime. Section 134.2 provides as follows:

" 134.2 Obtaining a financial advantage by deception

(1) A person is guilty of an offence if:



(a) the person, by a deception, dishonestly obtains a financial advantage from another person; and

(b) the other person is a Commonwealth entity."

58 The Crown argued that there was no barrier provided by s 11.1(3) or otherwise to prevent a person from being convicted of an attempt to commit an offence against s 134.2 where the alleged deception involved in the offence was, or was intended to be, a deception that was known to be either false or where there was a substantial risk that it was or would be false in accordance with the definition of recklessness in s 5.4. That definition is as follows:

" 5.4 Recklessness

(1) A person is reckless with respect to a circumstance if:



(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.


(2) A person is reckless with respect to a result if:


(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.


(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element."

59 Intention is also defined in s 5.2 as follows:

" 5.2 Intention

(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events."

60 More particularly s 5.1 refers to the fault element of offences in these terms:

" 5.1 Fault elements

(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

(2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence."

61 In my opinion there is no room for the appellant's contention that one effect of s 11.1(3) is that recklessness will not suffice as a fault element in relation to a physical element of an attempt offence. No authority is cited for such a proposition. It does not follow as a necessary result from a reading of these quoted provisions or some of them. There is no logical or persuasive reason why it should be so. In any event, even if there were error in his Honour's summing-up in the respect alleged, any such error would not amount to or constitute a miscarriage of justice in the trial process for the reason that the deceptive conduct of the appellant in attempting to obtain the refunds was manifest and clearly intentional. Moreover, his Honour expressly told the jury that he did not think that they needed to worry about the question of recklessness "in this particular case". It was never suggested that the appellant did act recklessly and if anything his Honour's reference to it was more likely to have detracted from the Crown case than the other way around.

62 This ground of appeal is not made out.

Ground 4

63 This ground has no merit. No application was made for a separate trial of any of the counts on the indictment. There was a close relationship between the facts and circumstances of all counts and a proper and compelling basis for their joinder in the indictment. The fact that the trial judge ruled that a tendency notice issued by the Crown did not comply with s 97 of the Evidence Act1995 and that it could not use certain evidence as constituting tendency evidence did not mean that there was no longer a proper basis for the joinder of all six counts. Each party at trial addressed each of the counts separately and referred to evidence that was said to be relevant to them. In addition, the documentary evidence tendered during the trial had been physically divided into six separate parts, one for each count. The evidence on Count 5 was different to the evidence in relation to the other counts in a significant respect and the fact that the jury was unable to reach a verdict on Count 5 is a convincing illustration that it actually treated each count separately. No unfairness attended the way in which the counts were tried in this respect.

64 This was not a situation where the concerns brought forward by Howie J in R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 at par [29] apply.

Ground 5

65 For an offence against s 134.2 to be made out, the person from whom the financial advantage must be obtained has to be a "Commonwealth entity". The charges in the indictment particularised the Commissioner of Taxation as the relevant Commonwealth entity. The Commissioner of Taxation is appointed by the Governor-General under s 4 of the Taxation Administration Act 1958 (Cth) and has the responsibility for the general administration of that Act.

66 The trial judge outlined the elements of the offences to the jury and at page 13 of his summing-up said the following:

" . . . and fourthly from a Commonwealth entity. Now as a matter of law the Commissioner of Taxation is a Commonwealth entity, and I do not really need to say any more about that, but that is a matter that you have to be satisfied of beyond reasonable doubt".

67 I consider that his Honour's direction was accurate and appropriate. The appellant argued that there was nothing about the position held by the Commissioner of Taxation that would support a conclusion that it was coterminous with the expression "the Commonwealth". He contended that for his Honour's direction to the jury to have been correct, the Commissioner of Taxation must be a Commonwealth entity, which is defined in the dictionary to the Criminal Code to mean the Commonwealth or a Commonwealth authority. As a Commonwealth authority is defined to mean a body established by or under a law of the Commonwealth, the appellant argued that it related only to bodies and not to persons and could not therefore extend to apply to the Commissioner of Taxation who is a person but, according to this argument, is not a Commonwealth entity. However, this argument does not properly take account of the fact that the dictionary also says that "person" includes a Commonwealth authority that is not a body corporate. Accordingly, the person who is the Commissioner of Taxation is a Commonwealth entity.

68 This ground of appeal fails.

Subsequent events

69 As already noted, after the hearing of the appeal, the appellant sought to raise further grounds of appeal. This occurred in the following way.

70 After the hearing of the appeal the appellant forwarded a document to the Registry on 18 September 2008 that purports to be a Notice of Application for Extension of Time for Notice of Appeal or Notice of Application for Leave to Appeal. The appellant gave the following information as reasons why leave should be granted:

"1. Had the Crown advised the court of trial that an assessment, relevant to the proceedings, had issued, section 59 of the Taxation Administration Act 1953 would have been ignited. Section 59 would have prohibited the Crown making out the case which it did at trial, that is, a case contrary to the facts in that assessment.

A challenge to facts in an assessment cannot be made in any court outside the Administrative Appeals Tribunal.

At trial the Crown did not advise the court of trial that such an assessment had issued.

2. By letter dated 7 July 2008, Raelene Vivian, Deputy Commissioner of Taxation, has now advised that at least one, and possibly three relevant assessments had issued. That advice was received after the date ordered that the appellant's submissions be filed in the Court of Criminal Appeal.

3. The failure to advise that an assessment had issued is, prima facie, suppression of evidence, a serious indictable offence under s 317 of the Crimes Act 1900."

71 This document was accompanied by others including a document entitled "Submissions in support of Grounds of Appeal". The document contained no grounds of appeal per se but did contain two subheadings that were as follows:

"1. The Crown suppressed conclusive evidence at trial.

2. The trial was a nullity."

72 The submissions apparently in elaboration of the first complaint were to the effect that assessments issued by the Commissioner were incapable of dispute in any court other than the Administrative Appeals Tribunal and that therefore, in the absence of a determination from it to the contrary, the assessments were "conclusive evidence" that the transactions – i.e. the taxable supplies - upon the basis of which they were prepared were genuine. The appellant submitted that as a consequence "the countervailing transactions in Count 3, the creditable acquisitions, could not, to be consistent, be sham transactions, and never occurred, as was the Crown case".

73 However, this does not follow as a matter of course. The transactions that formed the basis of the charges were alleged by the Crown to be fundamentally false. The subject matter of the charges was the transactions, not the assessments. The assessments that were issued by the ATO based upon these false transactions did not operate to convert them into genuine transactions. By the same token, corresponding assessments issued by the ATO adjusting the net liability of the appellant or his companies for GST that were themselves calculated by reference to the original assessments would give the underlying transactions upon which they were based no greater validity than they would otherwise have. The appellant's argument is no more than an attempt to suggest that there is an inconsistency between his conviction and the existence of assessments issued by the ATO on the assumption that the relevant transactions were not shams. The appellant's argument is circular. It ignores the fact that the assessments that were issued were the result of the deception forming an essential element of the offences for which he was convicted.

74 The submissions apparently in elaboration of the second complaint refer to the fact that the indictment was signed by Elizabeth Jane Ryan, a person supposedly authorised by the Director of Public prosecutions under s 9(2) of the Director of Public Prosecutions Act 1983 (Cth) ("the DPP Act"). Section 9 only provides for such authorisation where the Director has instituted the prosecution. The appellant contends that the prosecution was instituted by Federal Agent Patrick Bernard Lott and that "[A]t some later point, the Director appears to have taken over the proceedings". The appellant says that he was not notified of that fact. The appellant contends that there is no power for the Director to delegate the authority to sign an indictment where the proceedings have been taken over. The letter of authorisation produced as authority for Ms Ryan to sign the indictment is said to be specific, and limited, to s 9(2)(b) prosecutions, and gives no authority to sign indictments in s 9(3) prosecutions. According to this analysis, Ms Ryan had no authority to sign the indictment so that the trial was a nullity. See R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10.

75 In my opinion it is unnecessary to consider these submissions. It will be apparent that none of these submissions was available to the Crown at the time of the hearing of the appeal in this Court and no argument was presented to the Court on these topics on behalf of either the appellant or the Crown. The Crown's attitude to the reception of these late submissions is discussed later in these reasons.

76 However the contention is in any event without foundation. Proceedings against the appellant for the offences for which he was ultimately convicted were commenced by court attendance notices returnable on 18 January 2005. The person named as prosecutor on two of the notices was Federal Agent Lawson and Federal Agent Lott for the balance. The Commonwealth DPP carried on those committal proceedings pursuant to the function conferred on the Director by s 6(1)(e) of the DPP Act from the time of the first return of the notices until the time when the appellant was committed for trial on 10 October 2005. Following the appellant's committal to the District Court at Sydney, the Director maintained carriage of the appellant's prosecution on indictment pursuant to the Director's function conferred by s 6(1)(a).

77 Elizabeth Ryan, the Senior Assistant Director, found an indictment against the appellant on 18 September 2006. A copy of the indictment is in the papers provided to this Court on the appeal. The indictment was presented at the appellant's trial. At the time of finding the indictment Ms Ryan held a delegation in writing from the Director in relation to the Director's functions under s 6(1). The indictment complies with the requirements of s 9(2)(b) of the DPP Act.

78 Subsequently, by letter dated 30 September 2008 the appellant forwarded to the Registry a document entitled "Supplementary Submissions". It was received on 13 October 2008 and makes a series of what are described as "Further Submissions" under the following headings:

1. The Crown suppressed conclusive evidence at trial.

2. The trial was a nullity.

3. The trial court was not informed of the applicable legislation.

4. The Crown suppressed relevant evidence (in addition to the conclusive evidence suppressed).

5. The indictment.

6. The appellant's conduct was not voluntary.

79 Finally, by letter to the Registrar dated 21 October 2008, the appellant forwarded what he described as "further submissions in the appeal". He requested that at the hearing of his appeal, which by that time had been heard some seven weeks earlier, a file in the Common Law Division be made available to the Court. Those proceedings would appear to be proceedings commenced by the appellant in the Administrative Law List seeking relief against a series of defendants including the trial judge. No other details of the proceedings are given. No reference to this file or the proceedings to which it relates was made at the hearing of the appeal.

80 The "Supplementary Submissions – 2" (as they are called) are expressed to be "further to the appellant's submissions dated 18 September 2008, and the appellant's supplementary submissions". They are set out under the single heading "The indictment" and purport on their face to be in further elaboration of the appellant's earlier submissions made under that heading on 30 September 2008.

81 Each of the appellant's latest submissions is discursive, repetitive and unstructured. They raise matters that were not the subject of argument at the hearing of the appeal. It will again be apparent that none of these submissions was available to the Crown at the time of the hearing of the appeal in this Court and no argument was presented to the Court on these topics on behalf of either the appellant or the Crown.

82 The Crown's attitude to all of the appellant's further submissions relating to his conviction was the same. It is only in the most compelling circumstances that an appellate court would or should grant leave to a party to raise a further ground of appeal after the conclusion of the hearing of the appeal. See generally R v Elliott and Blessington [2006] NSWCCA 305; (2006) 68 NSWLR 1; Elliott v R, Blessington v R [2007] HCA 51; (2007) 234 CLR 38. The Crown submitted that it was almost inconceivable that circumstances could arise whereby an appellate court would permit an appellant in person to have a second hearing of grounds of appeal abandoned at the original hearing by that party's counsel, at a time when the Court has reserved its consideration of the grounds of appeal argued at the original hearing.

83 According to the Crown's submissions, there is nothing exceptional or compelling in the material submitted by the appellant to warrant or to justify the Court entertaining the appellant's application to argue new and potentially far-ranging matters at this stage. In contrast, there are cogent reasons why this Court should not entertain the application. Principal amongst those is said to be the fact that the appellant's then counsel abandoned most, if not all, of the matters now sought to be raised prior to the hearing of the appeal. The Crown submitted that the appellant's further proposed submissions were both unintelligible and lacked merit. The Crown went as far as to suggest that the fact that the appellant has adopted the course of raising all these further matters only after the appeal has been heard demonstrates that he is acting vexatiously and in abuse of the process of the Court.

84 The Crown's general submission was that in the circumstances of this case the Court should simply refuse leave to the appellant to raise any further matters on the conviction appeal. In my opinion that submission should be accepted. It is usually uncontroversial that an applicant for leave may make out a case for the grant of leave where the proposed new grounds of appeal appear to have merit or are at least arguable and there are compelling reasons why the new grounds of appeal were not raised at an earlier time. In the present case the proposed grounds appear to lack any merit at all and there is no compelling reason why they were either not reinstated (in the case of the grounds that were abandoned) or raised for the first time before the appeal was disposed of in court. The manifold contentions that the appellant seeks to agitate appear to me to be no more than a series of disparate ideas that he has formulated without legal advice and at leisure but which do not withstand scrutiny. By way of comparison with the grounds of appeal upon which the appellant did rely at the hearing of the appeal, of which none has struck me as having any merit for the reasons already discussed above, the latest propositions are very close to an abuse of the process of the Court. In my opinion it would be futile to grant leave to argue them as fresh grounds of appeal.

Appeal against sentence

85 In contrast to the approach taken by the Crown to the appellant's attempt to rely upon fresh grounds of appeal against his conviction, the Crown took a different approach to the appellant's application for leave to appeal out of time against his sentence. The Crown specifically conceded that there was no reason in principle why the Court should not entertain an application to appeal against the sentence imposed on the appellant, even at this very late stage. The Crown specifically did not oppose the granting of leave for this purpose.

86 The Crown relied upon its original submissions on sentence at the trial. There was no discernible error in the approach taken by his Honour to the sentences that he imposed. The Crown submitted that the sentences were well within the range for the very serious offences for which the appellant was convicted. The Crown submitted that the fact that the sentences were not imposed until approximately five years following the acts that constituted the offences was solely attributable to the appellant and there was in the circumstances no reason why the sentences should have been reduced because of that delay. In order to understand this approach it is necessary to examine the appellant's submissions.

87 The appellant lodged submissions on sentence with the registry on 22 October 2008. The submissions are made under five headings that can for present purposes be treated as grounds of appeal on this issue. They are dealt with in turn.

The trial judge erred in not sentencing separately

88 The appellant submitted that his Honour erred in failing allegedly contrary to Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 to sentence him separately in regard to each offence. The appellant submitted that "the trial judge failed to abide [sic] the above rule of law when he sentenced contrary to that principle" and that he should therefore be re-sentenced. No other submissions in elaboration of that proposition are advanced.

89 The appellant was sentenced to a period of imprisonment consisting of a total non-parole period of 5 years and 4 months to date from 15 November 2006 and to expire on 14 March 2012. On Counts 1 and 2 the appellant was sentenced to a total term of imprisonment of 6 years to date from 15 November 2006 and to expire on 14 November 2012. On Counts 3, 4 and 6 the appellant was sentenced to a total term of imprisonment of 6 years to date from 15 November 2008 and to expire on 14 November 2014. He was to be eligible for consideration for release to parole on 14 March 2012.

90 It is apparent that his Honour dealt with the offences in Counts 1 and 2 together as they related to facts concerned with what have been called the source codes or computer software charges. He dealt with the remaining Counts 3, 4 and 6 together as they related to facts concerned with what have been called the intellectual property in the perpetual motion engine charges. This distinction is even referred to in the appellant's original written submissions dated 3 January 2007 signed by Mr Buchen of counsel.

91 Clearly where there are two or more offences that contain common elements, the Court should not punish the offender twice for the commission of the elements that are common. If this is the principle upon which the appellant seeks to rely, that reliance is in my view misplaced. In my opinion the appellant in fact got the benefit of the manner in which his Honour dealt with the various counts. Counts 3, 4 and 6 had common elements and the appellant was sentenced for these counts together. It would arguably have been an error by the trial judge to have sentenced the appellant for these offences separately (as he contends should have occurred) because of the considerable accumulation of elements common to all three. The sentences for Counts 1 and 2 related to entirely different facts, the only significantly common element with the other counts being that Count 2 was also an attempt offence. This however is irrelevant.

92 This ground of appeal fails.

The trial judge erred in making the sentences accumulative [sic]

93 The single proposition upon which the appellant relied under this ground was that all the counts upon which he was convicted were in respect of offences that "arise from the same course of conduct". This was said to be because the Business Activity Statements lodged by the appellant were in respect of companies with which the appellant was associated and "[A]ll were done with the view to establishing the value of products in companies with the ultimate aim of going public".

94 The activities of the appellant for which he was sentenced for Counts 1 and 2 were separate and distinct acts of criminality from those for which he was sentenced for Counts 3, 4 and 6. The partial accumulation of the latter upon the former was an appropriate way for that difference to be recognised and given effect. His Honour did not fall into error in the way that he structured those sentences in the circumstances.

The trial judge erred in not discounting the sentence because the offence was stale

95 The appellant noted that the offences were said to have occurred between July 2001 and September 2002. No charges were laid until December 2004 and the trial was set down for April 2006 following a committal in approximately November 2005. The trial date was vacated on the appellant's motion and relisted on 18 October 2006 on which date it commenced.

96 The appellant does not seek to identify any general or particular prejudice that was occasioned to him by reason of the so-called delays to which he directs attention. There is nothing unusual or exceptional about the dates when the relevant events in this case took place. There is no evidence that evidence was lost or destroyed or that any particular witnesses were unavailable to give evidence at his trial by reason of the delay.

97 This ground of appeal is not made out.

The trial judge make [sic] factual errors in his sentencing reasoning

98 The trial judge's remarks on sentence were not included in the appeal papers that were provided to the Court having regard to the originally limited grounds of appeal. They were attached to the Crown's submissions dated 5 November 2008. However, the appellant relies only upon what his Honour said in those remarks at page 4 as follows:

" Each of these offences is an offence against s 134.1(1) of the Criminal Code Act ".

99 The appellant was in fact arraigned under s 134.2. The appellant has provided no submissions that appear to be directed to this ground of appeal beyond the submission that he was never arraigned under s 134.1 (1) so "that casts further doubt on the validity of the record of the trial Court". He submitted that the error demonstrated "part of an overall attitude by the trial judge to proceed to conviction and sentence regardless of the facts". The appellant submitted that as he "directed the trial judge's attention to that error during his bail application of 30 March 2007, and no attempt was made to correct it during revision, it can only be assumed that it was the intention of the trial judge to convict under s 134.1(1)".

100 There are a number of difficulties with that submission. It is only necessary to refer to one of them. It is tacitly recognised (correctly) by the appellant that the "error" was capable of correction, or revision as he describes it. It was no more than a typographical error that occurred at the time the appellant was sentenced. It is of no consequence. This ground of appeal fails.

The sentences are manifestly excessive

101 The appellant's submissions in aid of this ground were as follows: -

"The appellant is currently 65 years old.

It would be fair to say that the possibility of charges lay over his head from the time that the refund in count 2 was stopped. At the very least there was a fair amount of stress placed upon him – he was twice subjected to search and seizures by the AFP, once interviewed by the ATO officers – this could be said to [be] nothing short of stressful.

That state of affairs continued until the appellant was eventually charged in December 2004, three and a half years after the first offence allegedly occurred.

This continued stress, combined with the staleness of the offences warrant, in my submission, if the substantive appeal were to fail, that the sentences be re-determined with the above factors taken into account, leading to a substantial reduction in the sentence. As mentioned above, it is also submitted that there was no basis for accumulation."

102 In comparison to these submissions it is necessary to have regard to at least some of the remarks of his Honour when passing sentence to which the appellant makes no reference in his submissions. Those remarks are as follows: -

"I am satisfied that Mr O'Meara set out to deliberately defraud the Tax Office by taking advantage of the self reporting regime that existed for the newly introduced Goods and Services Tax and the suspected inability of the Tax Office to adequately investigate every claim that came before it. This was not just a superficial scheme but one designed to be able to sustain a reasonable degree of probing by the Australian Tax Office into its bona fides. Whilst it is true that Mr O'Meara put in a counter-veiling business activity statement in respect of Particle Spin Motors in regard to counts three, four and six of the indictment, the fact is that Particle Spin Motors had no capacity to pay the GST in question to the Australian Tax Office, whereas the latter did have the capacity to pay the refunds sought by Semiconductor Motor Corporation and all it needed was to have a delay between the claims made by the respective organisations to advance Mr O'Meara and disadvantage the Australian Tax Office to a significant degree.

Count one on the indictment obtained for Mr O'Meara over $500.000. That matter itself warrants a significant term of imprisonment.

Count three involved a refund of over fifteen and a quarter million dollars, which was about to be paid to Mr O'Meara but a stoppage was placed on the cheque by investigators. Had Mr O'Meara received that sum there would have been little prospect of its recovery. The amount in respect of count one on the indictment has not been recovered.

*****


There can be no question of a sentence other than one of imprisonment. These were a fraud, and attempted frauds against the revenue. The amount actually obtained was not as a result of any genuine debt. That amount of money is now not available for use by all Australians by virtue of the application of tax revenue, to necessary public infrastructure like hospitals, roads, health and aged care. Instead it has selfishly benefited one individual. Further, whilst Mr O'Meara did not occupy a position of trust in regards the Australian Tax Office, he did abuse the system of trust which is fundamental to the proper operation of the tax system, at a time when it was particularly vulnerable. In regard to such matters there needs to be a significant element of general deterrence.

Whilst Mr O'Meara's criminal record prior to 2000 appears to have little relevance to the present proceedings, it is disturbing to see that he has since then been convicted of drug, firearms and fraud offences. So that as well as general deterrence in my view, there should be a reasonable level of specific deterrence factored into the sentences to be imposed."

103 His Honour then proceeded to refer to a series of authorities to which he had been referred dealing with arguably comparable cases and the sentences imposed in each. It was not suggested by the appellant that his Honour fell into any error in the way or to the extent that he reasoned from those cases to the sentences he ultimately imposed.

104 I do not in the circumstances of this case consider that the sentences imposed by his Honour were manifestly excessive or excessive at all. The thrust of the appellant's submissions was in fact to emphasise what he describes as stress that was occasioned by investigation of his criminal activities, which was accompanied at the same time by a substantial fear of detection. These are matters that flowed from the appellant's own criminal activities and not in any way from the sentences that resulted.

105 The appeal against sentence fails.

Conclusion

106 I consider that the following orders should be made: -

1. Other than with respect to the appeal against sentence, leave to appeal in respect of all grounds sought to be raised after the hearing of the appeal on 2 September 2008 refused.

2. Appeal against conviction and sentence otherwise dismissed.

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