R v Campbell

[2010] NSWDC 150

CITATION:	R v CAMPBELL [2010] NSWDC 150
HEARING DATE(S):	4 June 2010
EX TEMPORE JUDGMENT DATE:	4 June 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	On count 1 I set a fixed term of two and a half years. On count 3 I set a fixed term of six months. On count 2 the offender is sentenced to imprisonment consisting of a non-parole period of three years and a head sentence of five years. Reparation order of $363,367.25
CATCHWORDS:	CRIMINAL LAW - Sentence - Obtain financial advantage - Fraudulent claims - Diesel and Alternative Fuel Grant Scheme
LEGISLATION CITED:	Crimes Act 1914 (Cth)
PARTIES:	The Crown Ian Robert Campbell
FILE NUMBER(S):	DC 2009/00028888; DC 2009/00111722; DC 2009/00202952
COUNSEL:	Mr S Hanley - Offender
SOLICITORS:	Director of Public Prosecutions (Cth) Ryan & Bosscher Lawyers - Offender

SENTENCE

1 HIS HONOUR: Ian Robert Campbell appears for sentence today having pleaded guilty this afternoon to an indictment containing three counts. He had earlier pleaded guilty at the Local Court to these same charges, the indictment being necessary because of some defect in the committal papers. So despite the fact that he has pleaded guilty today, the Crown accepts that he pleaded guilty at an early opportunity.

2 Those three charges are all offences of obtaining a financial advantage from the Commonwealth by lodging claim forms containing false statements. The offender had a remarkably simple but fatally flawed scheme of operation. He took advantage of the Diesel and Alternative Fuel Grant Scheme which commenced on 1 July 2000. That scheme was designed to provide cash rebates to businesses in certain industries to subsidise their vehicle fuel expenses. The scheme requires that those who wish to make a claim must register their businesses for the rebate scheme, nominate the vehicles which are the subject of claims and provide bank account details for the ATO to pay the rebates.

3 In March 2002 the offender applied for an ABN. That was issued and the offender then registered for the rebate scheme. That registration referred to a single vehicle. The offender became the registered owner of that vehicle in April 2002. Between about 1 September 2002 and about 9 December 2004 the offender made fifty-six claims for rebates. He was entitled to none of them. The total amount that he claimed was $381,866.44. He obtained almost all of this. The only amount he did not receive was the final payment of $8,130.89. That payment is the subject of count 3 on the indictment, charged as an attempt, because by this stage the ATO was investigating matters and the payment was withheld.

4 It appears, as far as can be ascertained on the material before me, that the offender had no legitimate business and that the ABN was registered solely for the purpose of this fraudulent scheme. As is clear, on each occasion the offender lodged a fraudulent claim form he was committing a separate criminal offence. The Crown has chosen to charge offences covering broadly equal periods. There is no distinction between count 1 and count 2 on the indictment except that they relate to different periods and different amounts, but the conduct in both counts is essentially the same. Count 1 relates to the period 1 September 2002 to 5 August 2003 and relates to $104,013.62. Count 2 relates to the period 1 August 2003 to 30 November 2004 and relates to the sum of $258,353.63.

5 The fatal flaw in the offender’s scheme concerned the size of the refunds claimed. Averaged over the period, the offender was claiming over 14,000 litres of fuel a week for a single vehicle. That is 2,006 litres each day. If the vehicle never stopped, that is, if it ran twenty-four hours a day, seven days a week, it would still be using eighty-four litres an hour according to the claims made by the offender. That would mean that it would have to be refuelled at least two times an hour or at least thirty-three times a day.

6 The offender was spoken to by ATO investigators in May 2005. The offender blamed everything on a man called Bill Hilder who, it appears, does not exist. He also told the ATO that he could not provide the fuel purchase book because, somewhat inventively, his dog had chewed it up. He did provide at some stage fuel receipts, delivery dockets and invoices, but an examination of those showed recurring spelling errors. It appears that those documents were falsely created in order to cover the offender’s tracks. They failed lamentably.

7 This is substantial criminality. The sum involved is significant. The offender apparently spent the money on clothes and speedway cars, at least that is what he told the ATO officers. The offender offended repeatedly, each time having the chance to reflect on what he was doing.

8 He has a criminal history. Most of the matters on it are for assaults or similar matters. He has received a number of bonds over the years, but most of the offences, not all of them, are of some age. There is one matter described as false pretence of title on his criminal history that occurred in 1992 and he was fined $250. So although it is probably an offence involving dishonesty, because of its age and apparent lack of seriousness it has not played a significant part in the sentence I have decided to impose upon the offender.

9 The offender described to the author of the pre-sentence report a stable and uneventful upbringing. He had been married for eighteen years but that relationship recently ended. He moved from Sydney for a sea change to Foster in October 2009. He lives with and cares for his seventeen year old niece. There are however alternative arrangements for her care given the likelihood that the offender will receive a full-time custodial sentence.

10 The offender completed Year 10 but did not receive his School Certificate. He joined the Army but was medically discharged after he injured his knees. Since then he has been on a disability pension supplemented by an army pension. He has not held any other paid employment but has apparently been a volunteer for the Rural Fire Service in the State Emergency Service for fourteen years.

11 When these proceedings began this morning Mr Hanley drew to my attention the circumstance that this matter had been adjourned in order that Justice Health could be asked to provide information to the Court about treatment for what was said to be a myriad of health issues concerning the offender. Mr Hanley commendably told me that he needed to inform me that the Court had been misled, that the claims in medical reports relied on by the offender were false. Statements to the effect that the offender has problems with his liver are not truthful. He does not need a liver transplant in the future. Mr Hanley told me that he was putting these matters, not only as part of his duty of candour, but also on instructions.

12 The relevance of this circumstance is this. Of course I must ignore statements in the pre-sentence report which have as their basis material now known to be false, but I cannot ignore what appears to have been an attempt by the offender to mislead the Court when it comes to consider other aspects of the sentencing process such as assessing the prospects of the offender’s rehabilitation or considering the extent to which the offender has displayed a willingness to assist the course of justice. On the other hand, if the offender has in fact attempted to pervert the course of justice he could well face charges involving a maximum penalty, higher than the maximum penalty for any of the offences he is facing today. Therefore I will limit my consideration of the matters raised by Mr Hanley this morning in the way I have identified. To summarise, I will not take into account in the offender’s favour material in the pre-sentence report based on statements now known to be false. I will take into account against the offender his attempts to mislead the Court when deciding his prospects of rehabilitation and his willingness to assist the course of justice. Let me deal with those matters now.

13 The offender has, from the moment, it would seem, the offences came to the attention of the ATO, attempted to mislead people, firstly, by falsely claiming that a non-existent partner was responsible for the problems; secondly, by claiming that a dog had eaten the relevant paper work and, thirdly, by providing false documents (with spelling mistakes) to ATO officers. Such conduct has persisted. I am therefore unable to say that the offender has good prospects of rehabilitation. In fact, the history of this matter suggests that his prospects of rehabilitation are poor.

14 By his plea of guilty the offender has demonstrated a willingness to assist the course of justice. That is qualified, not only by the circumstance I have been discussing for some time now, but also by statements to the author of the pre-sentence report which indicate, as far as Mr Campbell wants other people to understand, he is only pleading guilty to get it over with and that he may have bumped up the figures a little bit but not to the extent indicated in the statement of facts. Those matters indicate something quite contrary to a genuine acknowledgment of guilt and a willingness to assist the course of justice. Although in ordinary circumstances a plea of guilty in a Commonwealth matter made at the earliest opportunity would usually entitle the offender to a discount of twenty-five per cent, the other circumstances to which I have referred suggest that, in this case, the discount should be less, approximately twenty per cent.

15 The objective seriousness of these matters is obvious, as is the need for a substantial sentence, involving a significant component of general deterrence, to be imposed. The point has repeatedly been made that as our taxation arrangements move further and further towards them being based on self-assessment the prospects for fraud are increased. This is a very good example. To a large extent the ATO relied on the honesty of those claiming fuel rebates. It was only, I suspect, the size of the claims made that alerted ATO officers to the potential for fraud to be uncovered.

16 Thus where fraud is discovered, substantial and even harsh sentences need to be imposed. The rather basic idea which flows through the criminal justice system is appropriate here. By imposing a significant sentence on Mr Campbell it is hoped that others in the community who might be tempted, during the process of self-assessment, to lie in order to gain financial advantage, will reflect upon the consequences for them if they do so.

17 I mentioned before that the offender was living with his seventeen year old niece. Mr Hanley concedes that the circumstances involving her are not exceptional such that I can take them into account, except as part of the general mix of subjective factors. I will do that because the offender will know that because of his misconduct she is deprived of his care and will be for a substantial period of time.

18 There clearly has been a significant delay in this matter. Part of it is due to the offender’s attempts to mislead the ATO after they began investigations. Part of it is due to the offender obtaining an adjournment in order to investigate non-existent illnesses. But a large part of the delay is also due to the lack of urgency with which the investigating and prosecuting authorities have moved. This is not a matter where the offender would have been able to sit back thinking that he had got away with things. It is, however, a matter where the offender must have known for many years that this day would eventually come. I will therefore take a large part of the delay into account in favour of the offender.

19 There are three matters on the indictment covering the one course of conduct. Of course the mere fact that an offender is to be sentenced for one course of conduct does not mean that concurrent sentences should be imposed. However, in my view, there is little to distinguish the offences, especially counts 1 and 2 which the Crown concedes have been divided up somewhat arbitrarily.

20 Having considered the appropriate sentence to impose upon count 2, the most serious of the matters on the indictment, and having then turned to the question of whether there should be accumulation or concurrency, I have applied the principle of totality and I am satisfied that the sentence for count 2, which will be longer than the sentences for counts 1 and 3, is such that no further punishment is required in order to cover those other counts.

21 The offender is sentenced to imprisonment.

22 On count 1 I set a fixed term of two and a half years to date from 4 June 2010.

23 On count 3 I set a fixed term of six months to date from 4 June 2010. They are fixed terms because of the sentence I will now impose on count 2.

24 On count 2 the offender is sentenced to imprisonment to date from 4 June 2010. I set a non-parole period of three years which will expire on 3 June 2013. I set a head sentence of five years.

25 Mr Campbell that means that you will serve at least three years in custody. The earliest day on which you can be released is 3 June 2013. Whether you are released on that day or not is not a question for me, it is a question for the parole authorities. If you are released on parole you will still continue serving your sentence in the community until the expiry of your sentence which is on 3 June 2015. Do you understand sir. Thank you.

26 HIS HONOUR: Anything else Madam Crown, Mr Hanley.

27 ZAKI: Yes your Honour. The Crown seeks an order pursuant to s 21B of the Crimes Act which is a reparation order for the amount obtained in the sum of $362,367.25.

28 HIS HONOUR: Is that opposed Mr Hanley?

29 HANLEY: No your Honour.

30 HIS HONOUR: I will make that reparation order.

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