Pollock v The Queen
[2012] WASCA 30
•10 FEBRUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: POLLOCK -v- THE QUEEN [2012] WASCA 30
CORAM: McLURE P
MAZZA JA
HEARD: 24 JANUARY 2012
DELIVERED : 10 FEBRUARY 2012
FILE NO/S: CACR 191 of 2010
BETWEEN: KEVIN TREVOR POLLOCK
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
File No :INS 101 of 2009
Catchwords:
Criminal law - Application for leave to appeal against sentence - Defrauding the Commonwealth - Whether total effective sentence infringed the first limb of the totality principle
Legislation:
Crimes Act 1914 (Cth), s 29D
Criminal Code (WA), s 409(1)(d)
Criminal Appeals Act 2004 (WA), s 27(2)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr P J Urquhart
Respondent: No appearance
Solicitors:
Appellant: Chris Stokes & Associates
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Magdi v The State of Western Australia [2010] WASCA 234
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pollock v The State of Western Australia [2011] WASCA 133
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
R v Cappadonna [2001] NSWCCA 194; (2001) 122 A Crim R 52
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
Roffey v Western Australia [2007] WASCA 246
Walgar v The State of Western Australia [2007] WASCA 241
Wilson v The State of Western Australia [2010] WASCA 82
McLURE P: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against a sentence imposed upon the appellant by Jenkins J.
Introduction
The appellant pleaded guilty before her Honour approximately two weeks before the commencement of his scheduled trial, to three counts of defrauding the Commonwealth, contrary to s 29D of the Crimes Act 1914 (Cth) (the Federal offences). The maximum penalty for each offence was 10 years' imprisonment and a fine of $110,000. On 13 October 2010, Jenkins J sentenced the appellant to 5 years and 3 months' imprisonment on each charge, to be served concurrently with each other. Her Honour set a non‑parole period of 3 years.
At the time, the appellant was already serving a total sentence of 5 years and 4 months' imprisonment, with eligibility for parole, which had been imposed upon him by EM Heenan J on 18 March 2010 for nine offences of defrauding the National Australia Bank Ltd, contrary to s 409(1)(d) of the Criminal Code (WA) (the State offences). An appeal against this sentence was unsuccessful: Pollock v The State of Western Australia [2011] WASCA 133.
Her Honour ordered that the sentence she imposed commence on 17 September 2011, by which time the appellant would have served 18 months' of the sentence imposed by EM Heenan J. Thus, the total effective sentence to be served by the appellant for the State and Federal offences is 6 years 9 months' imprisonment. The appellant is eligible for release on parole after serving 4 years and 6 months of this term: ts 251.
The appellant originally relied on three grounds of appeal. However, at the hearing of this application, the appellant's counsel, Mr Urquhart, abandoned grounds 2 and 3, which alleged a failure to 'properly' apply the parity principle and a failure to give sufficient weight to mitigatory factors. Ground 1 was amended to allege that the total sentence imposed by Jenkins J offended the first limb of the totality principle. In argument, the appellant's counsel also relied upon the one transaction rule.
This court cannot grant leave to appeal unless it is satisfied that the ground has reasonable prospects of success: s 27(2) of the Criminal Appeals Act 2004 (WA). The legal principles applicable to the determination of an appeal against sentence are well‑known and do not
need to be repeated. They are conveniently set out in Wilson v The State of Western Australia [2010] WASCA 82 [2].
Facts of the appellant's offending
The appellant was, in effect, the managing director of a group of companies collectively referred to as the 'Pollock group'. The businesses undertaken by the Pollock group were diverse. Her Honour described him as 'the dominant and controlling mind' of these businesses: ts 242. All major decisions were referred to and decided upon by the appellant.
The facts of the State offences were described by me in Pollock v The State of Western Australia [11] ‑ [24]. In broad terms, between August 1999 and June 2001, the appellant defrauded his bankers of $3,002,500, principally by the use of forged documents. I characterised the offending as 'persistent, calculated and far from isolated' and 'a large scale commercial fraud'.
Turning to the present case, there is no dispute as to the facts and circumstances. They are as follows.
In early 1997, the appellant purchased an established business known as Goldfields Contractors, a business engaged in roadworks and construction for the mining industry. In each of the financial years ending 30 June 1998, 30 June 1999 and 30 June 2000, the appellant, with the assistance of his chief financial officer, Stuart Baldock, fraudulently withheld group tax payments in respect of employees of the various entities comprising Goldfields Contractors in these sums:
1997 ‑ 1998 $2,039,135.14
1998 ‑ 1999$2,506,429.98
1999 ‑ 2000 $2,400,357.94
TOTAL:$6,945,923.06
The offending was elaborate. It centred upon seven companies associated with Goldfields Contractors. Two of these companies were not registered as group employers, as required by law, with the Australian Taxation Office (ATO). However, they did have employees and they did deduct tax instalment deductions from their employees' wages. The companies were obliged to report and remit group tax to the ATO, but they did not.
Three other companies were initially registered with the ATO, but in 1998 their registrations as group employers were progressively cancelled. These companies made tax instalment deductions from their employees. However, these companies did not report or remit these tax instalment deductions to the ATO.
A further two companies were registered as group employers. They also deducted tax instalment deductions from their employees' wages, but they were only partially reported and remitted to the ATO.
Group tax was payable monthly. Each month, Mr Baldock prepared a monthly wages summary which was presented to the appellant who gave instructions as to which companies would pay group tax and the amounts to be paid for that month.
In addition to the conduct already described, the appellant or Mr Baldock:
(a)Failed to send completed employee declaration forms to the ATO.
(b)Frequently restructured payrolls and transferred employees from one corporate entity in the group to another.
(c)Created misleading accounting records.
(d)In 1998, an officer from the debt recovery section of the ATO was deceived as to the Pollock group's outstanding group tax.
(e)In December 1998, an ATO auditor was not shown the complete payroll records for Goldfields Contractors, which misled the ATO into assessing the business's group tax liability for the period between July and November for an amount lower than what was, in truth, owed.
None of the monies owed to the ATO has been recovered.
Mr Baldock pleaded guilty to five counts of defrauding the Commonwealth. He was sentenced to a total effective term of imprisonment of 2 years, to be released after 6 months, on giving a recognisance to be of good behaviour for a period of 18 months. The sentence reflected a discount for promised cooperation given by Mr Baldock in the prosecution of the appellant. A Crown appeal against this sentence was dismissed: R v Baldock [2010] WASCA 170; (2010) 269 ALR 674. The majority described Mr Baldock as having a 'subordinate role' in the offending.
The appellant's personal circumstances
At the time of sentencing, the appellant was 58 years of age, although, at the time of his offending he was in his mid to late forties. The appellant left school early, but he was, over the years, able to develop substantial business interests, particularly in the earthmoving business and later in a business called Soils Aint Soils. There is no question that he worked hard to build up his businesses and that he became a prominent business person in Western Australia and elsewhere in Australia. Character references tendered on behalf of the appellant spoke highly of him. Although the appellant had a prior criminal record of minor offending in the 1960s and 70s, her Honour gave him credit for being of good character prior to the commission of the Commonwealth offences. Her Honour described the appellant's health as 'good'. She said that the appellant had good prospects of rehabilitation.
Findings as to the purpose for the commission of the offences and her Honour's treatment of the totality principle
Her Honour found that the offences were committed in order to enable the appellant to keep operating his companies in an apparently successful manner. She thought it likely that the size and complexity of the companies outstripped the appellant's ability to successfully manage them and, as a result, he resorted to dishonest methods in order to keep them afloat. She accepted that the appellant was motivated by his desire to keep the businesses afloat and to continue to support employees, his family and suppliers, as well as to maintain his own standing. None of these things, her Honour said, justified the appellant's dishonesty: ts 243.
As to issues of totality, Jenkins J said:
My judgment is that the sentences on each of the three counts in the indictment should be served concurrently with one another. That is not because they all relate to the one transaction, but because of issues of totality, including taking into account the sentence that you are currently serving. However, there should be a degree of cumulacy with the sentences you are currently serving to mark the fact that the two sets of offences relate to entirely different transaction(s). That degree of cumulacy will be less than it would otherwise be because of the totality principles: ts 251.
The appellant's submissions
Mr Urquhart, counsel for the appellant, did not allege that the individual sentences imposed upon the appellant were manifestly excessive. The error, he said, was to be implied by her Honour's order to, in effect, partly accumulate, by 18 months, the sentence she imposed on the sentence imposed for the State offences. Counsel conceded that some accumulation was justified to account for the commission of the Federal offences, but the imposition of an additional 18 months resulted in the appellant being sentenced to a total effective sentence which was too much, having regard to the appellant's overall criminality. Counsel sought to bolster this argument by submitting that the appellant's actions were one transaction of dishonesty designed to save his business from ruin.
Analysis of the proposed ground of appeal
There is no need to discuss in this case, in any detail, either the totality principle or the one transaction rule. Both have been analysed in many decisions in this court. The totality principle is described in Roffey v Western Australia [2007] WASCA 246 [24] ‑ [26], while the one transaction rule is described in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] ‑ [28]. However this case is approached, the guiding principle is whether the punishment imposed on the appellant reflected the total criminality of what he did: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623; and Walgar v The State of Western Australia [2007] WASCA 241 [9].
The appellant's overall criminality was very serious. Over a period of four years, he defrauded his bankers and the Commonwealth of Australia of approximately $10 million. He did so in a sustained, well‑organised and determined manner.
In respect of the Federal offences, he exploited the self‑assessment system which relies on taxpayers acting honestly in their dealings with the ATO. Frauds against the ATO, as committed by the appellant, are often difficult to detect and prosecute. The appellant went to elaborate lengths to conceal his dishonest behaviour. The amount of money which was under‑remitted or not remitted at all over three financial years was very large, and none of it has been recovered.
General deterrence is the predominant sentencing consideration in cases such as this. The weight that can be given to the appellant's antecedents must accordingly be reduced: R v Cappadonna [2001] NSWCCA 194; (2001) 122 A Crim R 52; R v Baldock [145]; and Magdi v The State of Western Australia [2010] WASCA 234 [38].
I would not characterise the appellant's offending against his bankers and the ATO as one transaction. While, in the broad sense, it could be said he acted dishonestly to save his business, his victims and the methods by which he committed the State and Federal offences were very different. Even if the conduct could correctly be characterised as one transaction, it does not follow that Jenkins J erred. This is because wholly concurrent sentences do not necessarily have to be ordered when multiple offences are committed as part of one transaction: R v Faithfull [28].
In light of the seriousness of the Federal offences, additional punishment to that already imposed upon the appellant for the State offences was required. An extra 18 months' imprisonment for the Federal offences was completely justified. A total overall sentence of 6 years and 9 months was an appropriate reflection of the appellant's overall criminality. Jenkins J's sentences were a proper exercise of her sentencing discretion. No error has been demonstrated. The proposed ground of appeal has no reasonable prospects of success. The appeal must be dismissed.
Orders
1.Leave to appeal is refused.
2.The appeal is dismissed.
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