Perkins v Commissioner of Taxation - [2006] NTSC 66

Perkins v Commissioner of Taxation [2006] NTSC 66
PARTIES:PERKINS, Jennifer Fay

v
COMMISSIONER OF TAXATION

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 14 of 2006 (20502684)
DELIVERED:  30 August 2006
HEARING DATES:  30 August 2006
JUDGMENT OF:  MARTIN (BR) CJ
CATCHWORDS:
CRIMINAL LAW

Criminal Law – Appeal – Justices Appeal – guilty plea – appeal against sentence – recording of conviction sentence manifestly excessive – appeal allowed – appellant discharged without conviction
Crimes Act 1914 (Cth) s 16A, s 19B
HPS Transport Pty Ltd v Australian Taxation Office (unreported, South Australian Supreme Court, delivered 12 December 2003); applied
Commissioner of Taxation v Baffsky (2001) 192 ALR 92; followed
REPRESENTATION:
Counsel:
Appellant:T Aickin
Respondent:  A Cooper
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent:  Commonwealth Director of Public Prosecutions
Judgment category classification:         C
Judgment ID Number:  Mar0618
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Perkins v Commission of Taxation [2006] NTSC 66

No. JA 14 of 2006 (20502684)
BETWEEN:

PERKINS, Jennifer Fay

Appellant

AND:

COMMISSIONER OF TAXATION

Respondent

CORAM: MARTIN (BR) CJ
REASONS FOR JUDGMENT
(Delivered 30 August 2006)
Introduction

The appellant pleaded guilty to five counts of failing to furnish to the Commission of Taxation a GST return for five quarterly periods between 1 April 2003 and 30 September 2004. The learned Magistrate convicted the appellant of each offence and imposed a single fine of $3550. The appellant appealed against the sentence on the sole ground that insofar as a conviction was recorded, the sentence is manifestly excessive, but on the appeal relied upon error by the learned Magistrate as to the applicable range of penalties.
At the conclusion of the hearing of the appeal I allowed the appeal and set aside the orders of the Magistrate recording a conviction and imposing a fine. I ordered that the appellant be discharged without conviction on entering into a bond in the amount of $1000 to be of good behaviour for a period of two years from 30 August 2006. I now set out my reasons for allowing the appeal and imposing that penalty.
Facts
The appellant was born in Alice Springs and was aged 38 years at the time of sentence. She attended school in Alice Springs and Adelaide to year 12 level. For 10 years the appellant was employed in clerical and administration work and was subsequently employed by Telstra.
The appellant returned to Alice Springs after her mother died in 2000 and, after discussions with her cousin, purchased a franchise business in Alice Springs jointly with her cousin. Each contributed $7500 and the appellant obtained a loan of $240,000.
This was the appellant’s first attempt at operating a business. Within a week of the business opening in 2001 the appellant’s cousin walked out of the partnership and moved interstate leaving the appellant to operate the seven day a week business on her own. The appellant found…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Perkins v Commissioner of Taxation

Details

AGLC: Perkins v Commissioner of Taxation [2006] NTSC 66
Case: [2006] NTSC 66
Decision Date: 30 August 2006

CaseChat Overview and Summary

In Perkins v Commissioner of Taxation, the appellant, who was born in Alice Springs and aged 38 at the time, was appealing against the conviction and sentence imposed by a Magistrate in relation to tax offences. The appellant had purchased a franchise business in Alice Springs, but the business failed and she was left with significant tax liabilities. The Magistrate imposed a fine of $3550, which the appellant argued was manifestly excessive given her limited means. The respondent conceded that the prosecutor had misadvised the Magistrate regarding the appropriate penalty range.

The legal issues before the court were whether the penalty imposed by the Magistrate was manifestly excessive and whether the prosecutor's misadvice was a factor to be considered in the appeal. The court had to determine if the penalty was disproportionate to the appellant's capacity to pay and if the misadvice by the prosecutor warranted a review of the sentence. The relevant statutes and cases, such as HPS Transport Pty Ltd v Australian Taxation Office and Commissioner of Taxation v Baffsky, were considered in the context of the appeal against sentence.

The court found that the penalty imposed by the Magistrate was indeed manifestly excessive given the appellant's limited capacity to pay and her circumstances. The court accepted the respondent's concession that the prosecutor had misadvised the Magistrate regarding the appropriate penalty range. The court also noted that the appellant's lack of business acumen and the small amounts involved in the tax liabilities further supported the argument for a lesser penalty. The court allowed the appeal, set aside the orders of the Magistrate, and ordered that the appellant be discharged without conviction, but with a bond of $1000 to be of good behaviour for two years.

This outcome reflected the court's consideration of the appellant's financial situation, the small amounts involved in the tax liabilities, and the misadvice by the prosecutor. The court's decision emphasised the importance of proportionality in sentencing and the need for accurate legal advice to be provided to the court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the conclusion of the hearing of the appeal I allowed the appeal and set aside the orders of the Magistrate recording a conviction and imposing a fine. I ordered that the appellant be discharged without conviction on entering into a bond in the amount of $1000 to be of good behaviour for a period of two years from 30 August 2006. I now set out my reasons for allowing the appeal and imposing that penalty.Facts The appellant was born in Alice Springs and was aged 38 years at the time of sentence. She attended school in Alice Springs and Adelaide to year 12 level. For 10 years the appellant was employed in clerical and administration work and was subsequently employed by Telstra. The appellant returned to Alice Springs after her mother died in 2000 and, after discussions with her cousin, purchased a franchise business in Alice Springs jointly with her cousin. Each contributed $7500 and the appellant obtained a loan of $240,000. This was the appellant’s first attempt at operating a business. Within a week of the business opening in 2001 the appellant’s cousin walked out of the partnership and moved interstate leaving the appellant to operate the seven day a week business on her own. The appellant found herself working from the early hours of the morning to late in the evening. The business never made a profit and in late 2004 was sold for half the purchase cost. For the first 12 months of the business the appellant had the support of an accounting firm that was sponsored and paid for by ATSIC. When that support was withdrawn, the appellant engaged a local bookkeeper to take care of the accounting side of the business, including taxation responsibilities. Until about two weeks before the complaint was issued, the appellant believed that the bookkeeper was lodging the returns required to comply with the taxation responsibilities of the business. After becoming aware of the failures and impending prosecution, the appellant wrote to her bookkeeper requesting immediate contact so that the appellant could advise the Tax Office when the statements would be filed. The amounts involved were not large. The Magistrate was provided with details of three returns lodged for the quarters ending 30 June 2003, 31 December 2003 and 31 March 2004 showing a total GST debt for those three quarters of $7915 and total PAYG tax withheld of $5166. At the time of sentence the appellant had lodged the two further returns, but there is no information as to the liabilities contained in those returns. At the time of sentencing in March 2006 a total in unpaid liabilities and penalties of $31,848.81 was owed. That amount may have been reduced because the business was sold at a loss. As I have said, a total fine of $3550 was imposed. The appellant’s capacity to pay the fine and to meet the outstanding liability to the Taxation Office is severely limited. At the time of sentence the appellant was earning $150 per week for part time work in the operation of a crèche.Error The respondent admitted on the appeal that the prosecutor before the Magistrate misled his Honour in connection with the appropriate range of penalties. Relying upon an authority concerned with failure to lodge tax returns, the prosecutor submitted that the appropriate range of penalty for the first offence was between $350 and $700 and for the subsequent offences between $800 and $1200, thereby providing a minimum penalty for the five offences of $3550. The prosecutor later submitted that the range was a guideline and that the amount of penalty was a matter of discretion for the magistrate.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.