R v Cappadona

[2001] NSWCCA 194

Reported Decision: (2001) 47 ATR 317
122 A Crim R 52

New South Wales

Court of Criminal Appeal

CITATION:	R v Cappadona & Anor [2001] NSWCCA 194
FILE NUMBER(S):	CCA 60801/00; 60802/00
HEARING DATE(S):	Friday, 4 May 2001
JUDGMENT DATE:	24 May 2001
PARTIES :	The Crown (Appl) Tom Cappadona (Resp) Dorothy Cappadona (Resp)
JUDGMENT OF:	Stein JA at 1; Foster AJA at 2; McClellan J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0314 00/11/0315
LOWER COURT JUDICIAL OFFICER :	Andrew ADCJ

COUNSEL :	M A Wigney (Crown/Appl) J W Conomos (Resps)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Appl) Mr Peter O'Neill (Resps)
CATCHWORDS:	CRIMINAL LAW - Crown appeal against sentence - s 29D Crimes Act 1914 (Cth) - Systematic fraud - taxation - prescribed payment system - pay as you earn - early guilty plea - high level co-operation - principles when sentencing for revenue fraud - general deterrence - whether sentences manifestly inadequate - whether sentences unreasonable or plainly unjust
LEGISLATION CITED:	Crimes Act 1914 (Cth) ss 16A(1), 16G, 17A, 21B, 21E, 29D
CASES CITED:	Dinsdale v The Queen, (2000) 175 ALR 315 Director of Public Prosecutions v Hamman, 1 December 1998, CCA, unreported Everett v The Queen (1994) 181 CLR 295 House v The King (1936) 55 CLR 499 R v Cartwright (1989) 17 NSWLR 243 R v Gallagher (1991) 23 NSWLR 220 R v Kelvin (2000) 46 ATR 1
DECISION:	See para 47

IN THE COURT OF

CRIMINAL APPEAL

No: 60801/00

No: 60802/01

STEIN JA

FOSTER AJA
McCLELLAN J

THURSDAY, 24 MAY 2000

REGINA v Dorothy CAPPADONA

REGINA v Tom CAPPADONA

JUDGMENT

1    STEIN JA: I agree with McClellan J.

2    FOSTER AJA: I agree.

3 McCLELLAN J: The Director of Public Prosecutions appealed against the sentence imposed on Tony Cappadona and Dorothy Cappadona for breaches of s 29D of the Crimes Act 1914 (Cth) (the Act) The respondents each pleaded guilty to eight charges under s 29D of the Act

4    The respondents had engaged in a deliberate and systematic fraud on the Australian Taxation Office over a period in excess of five years failing to make tax payments totalling $3,550,774.

The general facts:

5    Mindgrove Pty Limited (Mindgrove) was incorporated on 1 November 1993 and was a trustee for the Capazzo Trust referred to as the trust. The sole beneficiary of the trust was Atirey Pty Limited. The nature of the trust business was to provide formwork and some concreting and steelwork on various building sites around Sydney including the Olympic site at Homebush. Mindgrove was registered with the Australian Taxation Office as a remitter of payments pursuant to the prescribed payment system, PPS, for subcontractors and pay as you earn, PAYE, deductions for employees. Income tax returns for the trust indicate that in the 1997 year it had 299 employees and 51 subcontractors. In the 1998 year it had 480 employees and 72 subcontractors. Mindgrove (NSW) Pty Ltd (Mindgrove NSW) was incorporated on 24 April 1998. It also operated as a formworker and was registered with the ATO as a PAYE and PPS group employer.

6    Between December 1993 and February 1998 Mindgrove acting as trustee for the trust and Mindgrove (NSW) made cash payments for overtime to many employees and subcontractors of the trust without deducting and remitting tax instalment deductions to the ATO or otherwise declaring the payments as income thereby defrauding the Commonwealth. During the relevant period Tom Cappadona and Vincenzo Milazzo were the managers of Mindgrove, the managers and directors of Mindgrove (NSW) and the directors and equal shareholders of Atirey. Tom Cappadona was also registered as the company secretary of Mindgrove (NSW). Dorothy Cappadona was the bookkeeper and administration manager for Mindgrove, Mindgrove (NSW) and the trust and prepared taxation returns and employees group certificates. She was the authorised group certificate signatory for both companies and together with Vincenzo Milazzo signed as payer on PPS payee declarations. She worked at the registered office of the companies at 106 Wetherill Street, Silverwater, referred to as the office, and she and Carmela Milazzo were equal shareholders of Mindgrove and together with Tom Cappadona were the directors.

7    During the relevant period the employees and subcontractors of Mindgrove and Mindgrove (NSW) were paid for their normal working hours usually by cheque or by direct credit into their bank accounts. Overtime was paid in the same manner to some of the employees and subcontractors and the remainder were paid overtime in cash. These cash amounts were not declared to the ATO as income by either the employer or the employees and subcontractors. On some occasions this was by way of verbal agreement and on other occasions agreement was implied. The foreman at each job site would prepare weekly time sheets indicating the normal and overtime hours worked by each employee and subcontractor at that particular site. The foreman would then forward the time sheets to Tom Cappadona who would calculate and indicate the overtime on the sheets to be paid in cash and not declared, for the benefit of Dorothy Cappadona and the bookkeeper's assistant in the preparation of payments. The cash withdrawals were accounted for in the trust books as cash payments to suppliers and its bank statements annotated with the words cash cheques. The cash was usually withdrawn on Wednesdays by way of cash cheques, signed by Tom or Dorothy Cappadona and Vincenzo Milazzo. The pay envelopes were prepared by Dorothy Cappadona at the office and she and Tom Cappadona would add the cash payments. The following day Tom Cappadona and/or Vincenzo Milazzo would take the envelopes to the building sites for distribution. A search by Australian Federal Police officers of the residence of Vincenzo Milazzo on the morning of Thursday 18 February 1999 revealed a bag containing 231 pay envelopes each marked Mindgrove (NSW) in a different worker's name. All but two contained a pay slip advice and all but 39 contained an amount of cash. The total amount of cash in the envelopes was $69,394. The contents of the pay slips had been prepared the night before by Tom and Dorothy Cappadona at the office and provided to Vincenzo Milazzo.

8    The fraud was discovered when an informant approached the Australian Taxation Office followed by interviews which were conducted on 24 September 1997. A three month audit of Mindgrove was commenced in January 1998 and on 16 February 1998 Tom Cappadona was interviewed having been formally authorised in writing by Dorothy Cappadona to answer questions in relation to the taxation audit. He stated that some suppliers were paid by cash cheque, all subcontractors were paid by cheque and neither the subcontractors nor the employees received cash payments. He was asked to supply invoices to support the cash withdrawals indicated in the books as payments to suppliers. Invoices, bank statements and cheque butts were eventually supplied. Examination and further inquiries of the suppliers by the officers of the Australian Taxation Office revealed that they were not genuine, that is they had been altered or fabricated so they purported to refer to cash payments. The words cash cheque were removed from the bank statements, details on the cheque butts had details blanked out and/or new details added and invoices supplied to support Tom Cappadona's explanation that withdrawals were for payments to suppliers.

9    In September 1998 the Australian Federal Police took over the investigation and in February 1999 executed the search warrant on the registered office of the companies. The search yielded the original altered invoices, cheque butts and bank statements. The amount of undeclared cash payments made by each company to employees and subcontractors was $8,876,935 and a conservative estimate of the quantum of tax instalment deductions not remitted, is $3,550,774.

10    Mindgrove and Mindgrove (NSW) and Atirey have entered into terms of settlement with the Australian Taxation Office in respect of moneys owed by them and also by their employees and subcontractors to the Australian Taxation Office. Mindgrove and Mindgrove (NSW) agreed to pay $2,854,368 for the tax liability of payments made to employees and subcontractors between 1 July 1993 and 30 June 1999. Tom and Dorothy Cappadona and Vincenzo and Carmela Milazzo each entered into terms of settlement whereby each agreed to be assessed for an additional sum of $50,000 income for each of the three financial years from 1997 to 1999 and to pay an additional tax of seventy-five per cent for the tax shortfall for the first of those years. The total agreed debt in respect of the failure to deduct and pay tax instalments deductions, prescribed payments, income tax, additional tax and interest is $3,229,368. It is secured by mortgages over three properties, the residence of the Cappadonas and Milazzos and the company's office, the debt to be paid in monthly instalments, the last being due on 30 June 2003. The agreement which relates to the charges before the court does not include any penalty payment nor is expressed to be in lieu of the payment of any penalty.

11    Both respondents entered pleas of guilty at the earliest possible opportunity and both gave evidence at the sentence hearings. Neither has any prior convictions. Evidence was led before the sentencing judge of their good character which was not contested by the Crown.

12    The sentence hearing occupied more than one day. After the first day both respondents agreed to be interviewed by the police and disclosed their knowledge of the involvement of others in the offence. The appellant accepts that both respondents have provided a "full and frank" disclosure of their own involvement and the involvement of others. Both respondents have signed undertakings to cooperate with the authorities and give evidence in any future proceedings. No proceedings have presently been commenced.

The approach of the sentencing judge.

13    The sentencing judge concluded that these were very serious frauds involving a large sum of money. Accepting the need to reflect the objective of general deterrence in any sentence imposed in relation to an offence involving systematic revenue fraud, his Honour found that there were further aggravating features. These were identified as the substantial amount of the fraud, estimated to be $3.5 million; the period of five years over which the frauds were committed; the element of planning in the offences; cash payments to suppliers; the provision of false documentation to the Australian Taxation Office in an attempt to avoid detection and the breach of duty owed to the Australian Taxation Office to ensure that the amounts of tax were debited from employees and subcontractors and remitted to the Australian Taxation Office.

14    Having identified these matters the sentencing judge set out the background facts and other matters relevant to any leniency which could be afforded the respondents. Of Tom Cappadona he said:

"Mr Tom Cappadona is aged fifty-one. He was born in Italy and emigrated to Australia with his mother when four years old. His father had immigrated two years earlier. He is a man of prior good character and record. Upon leaving school he undertook an apprenticeship in construction carpentry and spent seven years in the formwork building industry until he established his own formwork business in 1978 the company he runs today. Mr Cappadona is clearly a hard working man who has build one of the most successful formwork businesses in Sydney. Projects undertaken include the construction of the Olympic Stadium at Homebush. There is extensive favourable character evidence all of which I accept. This reveals that his company has been responsible for the formwork construction of many large scale buildings in Sydney, that he is an excellent subcontractor and tradesman who is regarded throughout the industry as honest and reliable. The testimonial evidence also shows that he is regarded as one, if not the best, in the industry who would readily be engaged in the future. There is evidence within the union movement that he is regarded as honest and reasonable in industrial matters and being "fair to his men within the top five per cent of employers". Clearly also he has an excellent family and has educated his children up to university level. I accept all of the evidence of past impeccable record, integrity and good character, devotion to family and contribution to the community.
A pre-sentence report reveals Mr Cappadona attributes these offences to being under significant financial pressure to complete the building contracts that his company had undertaken. He claims that the demand for labour in the building industry at that time was very high and some of his employees refused to work overtime unless they were paid in cash without being subject to personal tax. He feels that his accountant did not fully explain to him the consequences of the business' actions in doing what it did.
I accept the evidence that Mr Cappadona is contrite and remorseful. I regard it as extremely unlikely that he would ever re-offend. The Crown accepts that the prisoners indicated that they propose to plead guilty at a very early stage of the proceedings. The Crown also accepts that the early pleas of guilty avoided a relatively complex and potential very lengthy trial and were therefore of considerable utilitarian value. I think that any trial in this matter would have been complex and would have extended over many several months and in my opinion the value of the pleas here lie primarily in the utilitarian effect of having saved the community the cost of a trial. They are also indicative of the prisoner's contrition.
I accept also that Mr Cappadona has suffered shame and humiliation as a result of these matters and that it has had a devastating effect on his family. There have been strains in the marriage as a result which it is hoped can be reconciled when this matter is finalised. Any prison sentence will cause hardship to the prisoner and his family and will make it difficult for him to maintain his commitments to repayment.
As already said Mindgrove and Mindgrove (NSW) and Atirey have entered into terms of settlement with the Australian Taxation Office in respect of moneys owed by them and also by their employees and subcontractors to the Australian Taxation Office. Mindgrove and Mindgrove (NSW) agreed to pay $2,854,368 for the tax liability of payments made to employees and subcontractors between 1 July 1993 and 30 June 1999, and Tom and Dorothy Cappadona and Vincenzo and Carmela Milazzo each entered into terms of settlement whereby each agreed to be assessed for an additional sum of $50,000 income for each of the three financial years from 1997 to 1999 and to pay an additional tax of seventy-five per cent for the tax shortfall for the first of those years. As I already indicated the total agreed debt in respect of the failure to deduct pay tax instalment deductions, prescribed payments, income tax, additional tax and interest is $3,228,368 and is secured by mortgages over three properties, the residence of the Cappadonas, Milazzo and the company's office. The debt is to be paid in monthly instalments the last being due on 30 June 2003. The agreement which pertains to these charges before the court does not include any penalty payments nor is it expressed to be in lieu of the payment of any penalty.
I am satisfied that there has been a substantial degree of sacrifice involved in the repayments and that it is a matter which may properly be taken into account by way of mitigation."

15 His Honour concluded that the gravity of the offence and the need for deterrence in matters involving systematic revenue fraud called for a full time custodial sentence. However his Honour was aware that both respondents had agreed to provide assistance to the authorities and had participated in recorded interviews with the Australian Federal Police. He was also told that they had both signed undertakings to cooperate in future proceedings in accordance with s 21E of the Commonwealth Crimes Act.

16 Having regard to these matters the sentencing judge formed the view that both prisoners had given high level co-operation and concluded that it is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice. See R v Cartwright (1989) 17 NSWLR 243.

17    His Honour stated:

"I am satisfied that both prisoners have given full and frank co-operation and have acted out of remorse and have genuinely co-operated with the authorities. This information could significantly assist the authorities. The information revealed substantial documentation and has the potential for further prosecution against at least seven other persons. I do not here set out the details of that information but it is acknowledged by the appropriate authorities that both prisoners have made a full and frank disclosure of their involvement in offences in relation to the taxation affairs of Mindgrove companies and full and frank disclosure of their knowledge of other persons involved including matters pertaining to ten other companies which were defrauding the Australian Taxation Office by paying cash wages to their employees. I am satisfied as I have said that this is high level assistance to the authorities and is deserving of the extension of leniency."

18    With respect to Dorothy Cappadona the sentencing judge also set out the background facts and matters relevant to leniency. He said:

"Mrs Dorothy Cappadona is aged forty-nine. She is a person of prior good character and record. She resides in the family home with her three adult children, two sons aged twenty-four and eighteen and a daughter who is twenty-one. She was born in Australia to parents of Italian descent. Her father is deceased and her eighty-seven year old mother experiences health problems and she shares the responsibility of caring for her. A pre-sentence report indicates, and I accept that evidence, that she was raised in a strict Italian Catholic environment whereby females are traditionally taught that marriage is the ultimate goal and it is the responsibility of the wife to nurture and maintain the relationship. Following difficulties in the relationship she has sought professional counselling on a regular basis. She obtained her School Certificate in 1976 and completed twelve months secretarial course at TAFE. After various positions as a clerk and secretarial assistance and then in 1978 she commenced work with her husband when he started the building company and she has worked in that business ever since. It is apparent that she has played an important role in the success of this company. Her current position is that of office administrator. A pre-sentence report states as follows:
'Mrs Cappadona accepts responsibility for her role in the commission of these offences. It is of note that she reports complaining to her husband and his partner several times that she was not comfortable with the method of paying cash in hand and in 1998 she said that she withdrew her name as a company director because she did not like the way the company was run. She does state that in the building industry it was traditional for workers to be paid in cash for overtime in order to meet deadlines without industrial conflict. However, in making this statement the offender concedes that she was aware that this practice was illegal.'
That is confirmed in her own evidence where she stated that she knew that what was being done was wrong but has been forthright in admitting that she was part of the process of concealment.

I accept all of the testimonial evidence which shows that Mrs Cappadona has been a person of absolute integrity and described as a very special person and an honest and decent human being. She has been an excellent mother in a close knit and devoted family and has striven hard for the sake of her children. It is quite apparent that she is deeply and genuinely remorseful and has suffered shame and humiliation over what has happened. It is also apparent that this has had a great effect upon her and her family, all of which has been devastating as I have said.
On the evidence before me it does not appear that Mrs Cappadona gained much of anything from these frauds. I accept also that in the cultural environment in which she was raised and lived there was an element of having to obey or follow what she was instructed to do by her husband. It is acknowledged by her husband that he instructed his wife to conceal these frauds in her capacity as office administrator. She has been described as an impeccable bookkeeper. Nevertheless she has acknowledged that she knew what she did was wrong and that she was a part of concealing these matters.
The Crown concedes that Mrs Cappadona's culpability is less than that of her husband and that a lesser punishment would be justified. I have already referred to her early plea of guilty entitling her to an element of leniency and the discount she is entitled to for the significant assistance rendered to the authorities in the full and frank disclosure which she has made and to the substantial degree of sacrifice involved in repayment including the mortgaging of all the property that she jointly owns.
Mrs Cappadona in your case you would normally receive a sentence in this matter of two and a half years imprisonment. That sentence is adjusted under the provisions of s 16G of the Commonwealth Crimes Act to a period of one year eight months imprisonment to take into account the absence of remissions in New South Wales. That sentence is further reduced to a period of twelve months due to the early plea of guilty. See The Crown v Thompson unreported, NSWCCA, 17 August 2000. Under s 21E of the Crimes Act I specify that but for your co-operation I would have sentenced you to imprisonment for twelve months but as a result of your co-operation and in the special circumstance which I have outlined the sentence of twelve months imposed is suspended under the provisions of s 21B of the Crimes Act 1914.

The sentencing judge's conclusions with respect to Tom Cappadona

19 In relation to Tom Cappadona the sentencing judge concluded that the appropriate sentence would normally be four years imprisonment but that the sentence required adjustment pursuant to s 16G of the Commonwealth Crimes Act and should be adjusted to two years and eight months. His Honour further reduced the sentence to two years due to the early plea of guilty. He also determined that due to the prior good character and cooperation of the appellant and in particular his willingness to assist the authorities the sentence should be mitigated to be served by way of periodic detention.

The sentencing judge's conclusions with respect to Dorothy Cappadona

20 In relation to Dorothy Cappadona the sentencing judge found that her culpability was less than her husband and accordingly a lesser punishment was justified. He found that the appropriate sentence was two and a half years imprisonment but after adjustment pursuant to s 16G of the Commonwealth Crimes Act, and making allowances for an early plea of guilty the appropriate sentence was twelve months.

21 The sentencing judge further determined that as a result of the respondent's co-operation and other special circumstances, by which I assume he was referring to her cultural background, her sentence should be suspended pursuant to s 21B of the Crimes Act.

Principles when sentencing for revenue fraud

22    This Court comprehensively reviewed the approach to be taken to sentencing with respect to revenue fraud in Director of Public Prosecutions v Hamman, 1 December 1998, Court of Criminal Appeal, unreported, in which the majority judgment was delivered by Sheller JA.

23    The appropriate principles including matters of general application are:

(a) in determining the sentence appropriate to any offence regard must be had to its gravity viewed objectively;

(b) the maximum sentence fixed by the legislature defines the limits of sentence for cases in the most grave category;

(c) general deterrence is a predominate consideration when sentencing for offences of defrauding the revenue;

(d) a sentence by way of periodic detention has a strong degree of leniency built into it and is outwardly less severe in its denunciation of the crime. Many in the community would regard a total deprivation of liberty for a period of months as more punishing than a number of short term deprivations extending over a long period;

(e) although a matter to be taken into account it is of small account that when caught out the offender pays the tax due and additional tax by way of penalty;

(f) past integrity and good character carry little weight against systematic defrauding of the revenue over a significant period of time;

The competing submissions:

24 The Director of Public Prosecutions submits that both sentences were manifestly inadequate in all the circumstances. Although not identifying an explicit error of principle or specific error of law it is submitted that the resulting sentences were "unreasonable or plainly unjust" (see House v The King (1936) 55 CLR 499 at 505) and this Court should intervene.

25 It is submitted that the starting point adopted by his Honour was too low with the end result that after the various adjustments and deductions the sentences are "so far out of touch with the circumstance of the particular offence and the particular offender that …. it constitutes an affront to community standards". R v Gallagher (1991) 23 NSWLR 220 at 232.

26    The Director of Public Prosecutions submits Tom Cappadona should have received a sentence of full time custody and Dorothy Cappadona, at the least, a sentence of periodic detention.

27    For the respondent it is submitted that the acceptance by them of the obligation to pay all of the tax payable by the employees and subcontractors, the fact that he did not directly benefit from a significant proportion of the fraud and the need to maintain the business, were reasons why leniency was appropriate. Accordingly, it was submitted that a sentence other than by way of full time custody was appropriate.

Conclusions

28 Having regard to the principle adopted by this Court in Hamman (see also R v Kelvin (2000) 46 ATR 1) I am of the opinion that the submission of the Director of Public Prosecutions should be accepted with respect to Tom Cappadona but not with respect to Dorothy Cappadona.

29    The offences committed by Tom Cappadona involved a systematic fraud over a period in excess of five years. In an attempt to avoid detection he created fake business records and when the frauds were uncovered, provided false information and documentation to the Australian Taxation Office in an attempt to avoid detection. The frauds involved a very large sum of revenue - at least $3.5 million.

30    In my opinion this evidences very serious criminal conduct by Tom Cappadona. Although this is not an offence of the most grave category, even after making allowance for the favourable matters identified by the trial judge, a custodial sentence was required. Only a custodial sentence can achieve the objective of general deterrence for this type of fraud.

31    It is obvious that in the civil construction industry, with many employees and subcontractors and large and complex undertakings, the opportunity for dishonest contractors to defraud the Australian Taxation Office are significant. When offenders are caught the sentence imposed should be adequate to ensure that others will be dissuaded from similar criminal activity.

32    I appreciate the need for the sentence to reflect the cooperation which an offender has given to the authorities but, having regard to the extent of the wrongdoing, only a full time custodial sentence was appropriate.

33    In my opinion the decision of the sentencing judge does not adequately recognise the fact that general deterrence is a predominate consideration when sentencing for offences of defrauding the revenue.

34 Accordingly, I am satisfied that this is an appropriate case for this Court to intervene. Everett v the Queen (1994) 181 CLR 295 at 299. In my opinion the sentence imposed was manifestly inadequate and should be quashed. Dinsdale v The Queen (2000) 175 ALR 315.

35    With respect to Dorothy Cappadona I am of the opinion that this Court should not intervene. The evidence indicated that although she played a part in concealing the fraud she was not responsible for it and had complained about the fact that she was being required to participate in the fraudulent processes.

36    In 1998 she apparently withdrew her name as a company director because she did not like the way the company was being run. I accept that the cultural environment of her upbringing had the result that she believed it to be important that she obey her husband's instructions in many matters including business. Friction over these matters has apparently imposed significant strains on the relationship with her husband. Otherwise evidence was given of her integrity and genuine remorse, shame and humiliation.

37    Although as I have indicated general deterrence is a predominant consideration when sentencing for offences of defrauding the revenue the personal circumstances of Dorothy Cappadona were such that she had little real choice but to accept and participate in the fraudulent activities of her husband. Having regard to these matters I am of the opinion that a custodial sentence was not required and although periodic detention or a community service order may have been appropriate I have decided in all the circumstances, this Court should not intervene with the decision of the sentencing judge.

The appropriate sentence for Tom Cappadona

38 Having determined that the sentence imposed by the sentencing judge on Tom Cappadona should be quashed the appropriate sentence must be determined. It does not follow that a different sentence must be imposed (Hamman p 29). Although I am of the view that the failure to impose a full time custodial sentence indicates error this Court, when exercising the sentencing discretion must have regard to the consequences which have already followed from the imposition of the original sentence. That sentence was imposed on 14 November 2000 and the respondent has been deprived of his liberty during each subsequent weekend. Furthermore, when exercising the sentencing discretion this Court must be mindful of the fact that for the second time the respondent's freedom is put in jeopardy. Everett v The Queen (1994) 181 CLR 295at 298. It must be accepted that to impose a full time custodial sentence will impose significant hardship on the respondent.

39    In the present case, notwithstanding those considerations, I am satisfied that it is appropriate for the court to intervene. In my opinion the gravity of the offence demands that a full time custodial sentence be imposed by this Court.

40 Divisions 2 and 3 of Pt 1B of the Crimes Act 1914 set out the matters relevant to the exercise of the sentencing discretion. Section 16A(1) requires the court to impose a sentence of a severity appropriate in all the circumstances of the offence. Subs(2) requires that in addition to any other matters the court must take into account such of the matters as are there set out in lettered paragraphs and are relevant and known to the court.

41 Section 17A requires the court to be satisfied that no other sentence is appropriate in all the circumstances of the case and section 16G requires the sentence to be adjusted on account of the fact that being served in a prison in New South Wales the sentence is not subject to remission or reduction.

42 In my opinion having regard to the fact that the fraud was carefully organised, continued for five years and involved a great many individual criminal acts which deprived the revenue of $3.5 million the appropriate sentence on each charge was a term of imprisonment for five years to be served concurrently. The appropriate adjustment having regard to s 16G would provide a sentence of three years and four months. That sentence should be further reduced having regard to the early plea of guilty to two years and six months.

43    The fact that the sentencing discretion is being re-exercised should be recognised by reducing the sentence by six months and in addition, the time served by way of periodic detention should be counted in discharge of part of the full time custodial sentence.

44    Having regard to the serious nature of the offences and the fact that they involved a multiplicity of criminal acts over an extended period, a non parole period or recognisance release order is not appropriate.

45    The respondent is also entitled to a further reduction on account of the assistance to the authorities in investigating other aspects of the fraud and the involvement of third parties. Although these are revenue crimes the potential impact on the respondent of such cooperation should not be underestimated.

46 In my opinion the sentence should be reduced by a further six months on account of this cooperation. Accordingly I specify for the purpose of s 21E that but for the respondent's cooperation I would have imposed a sentence of two years but because of that cooperation the sentence should be reduced to a period of eighteen months. As I have indicated the time served by way of periodic detention should be counted and accordingly the sentence will expire on 13 May 2002.

47    I propose the following orders:

Tom Cappadona

1. The appeal is allowed.

2. The sentence imposed by the sentencing judge is quashed.

3. In lieu thereof the respondent Tom Cappadona is sentenced to eighteen months full time imprisonment for each offence to be served concurrently. Such sentence to commence on 14 November 2000 and expiring on 13 May 2002 with time already served by way of periodic detention to count.

Dorothy Cappadona

1. Appeal dismissed.
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