R v Chambers No. DCCRM-00-301

[2002] SADC 148

R v Allen William CHAMBERS
[2002] SADC 148

Criminal - Sentencing Remarks
Judge David Smith

Offences – Pleas – Penalty

1. On the 5^th November 2002 in this Court Allen William Chambers pleaded guilty to 82 counts of defrauding the Commonwealth contrary to s29D of the Crimes Act, 1914.  These offences were committed at Adelaide between the 5^th March 991 and 16^th January 1995.

2. The maximum penalty at the relevant time for an offence against s29D of the Crimes Act, 1914 was a fine of $100,000 and/or imprisonment for 10 years.

   Circumstances of offending

3. The defendant operated a business selling computers and related parts.  He not only purchased within Australia but also imported such equipment.  These 82 counts concern imported computers and related equipment.  The defendant illicitly evaded paying sales tax on the goods the subject of the 82 counts by quoting a sales tax exempt number which he was not authorised to use.  The importers name which he used to evade the collection of the sales tax by the import agent was “EA O’Brien TA Kwikset-Typeset Australia Co”.  The defendant was known to the custom brokers as Alen O’Brien.  The sales tax exempt number quoted by the defendant had been previously assigned to the defendant’s partner in connection with a business called Kwikset-Typeset Aust (Co.).  The defendant was identified as the person conducting the transactions by the custom brokers.  Further, telephone numbers, post office records, false signatures and other items associated with the imported goods also lead to the defendant. 

4. The amount of sales tax evaded was $180,970.92. 

   Previous indictment and penalty

5. On the 23^rd January 2002 the defendant was found guilty by unanimous verdicts of a jury of 32 counts of defrauding the Commonwealth contrary to s29D of the Crimes Act, 1914 and one count of Organised Fraud contrary to s83(1) of the Proceeds of Crime Act, 1987.  Those offences also concerned non-payment of sales tax on computer hardware and related equipment and were committed at Adelaide between the 6^th March 1992 and the 27^th July 1995.

6. In respect of those charges, the amount defrauded was $77,868.78.

7. Indeed the detail of the allegations and the modus operandi in respect of the offences in counts 20 to 32 of that previous indictment, which also concerned importations, are strikingly similar to those on the present indictment and the periods of the two lots of offending overlap.

8. On the 5^th July 2002, Allen Chambers was sentenced by me in respect of that previous indictment.  For the 32 counts of Defrauding the Commonwealth he was sentenced to three years imprisonment.  For the offence of Organised Fraud he was sentenced to imprisonment for one year to be served concurrently with the three year term.  However, I directed that, upon the defendant entering into a recognizance in the sum of $5,000 to be of good behaviour for 24 months, he be released after serving only 12 months of the term of imprisonment.  That sentence was ordered to commence on the day of sentencing, namely the 5^th July 2002.

9. At the time of sentencing, the defendant had instituted an appeal against the convictions by the jury and accordingly he would not agree to have the present 82 counts taken into account as would have been done pursuant to s16BA of the Crimes Act.  Indeed, in the trial, the Crown led evidence of five other importations as “uncharged criminal conduct”.  I assume that those five instances are among the 82 counts now before me.

10. The defendants appeal has been withdrawn.  He accepts his guilt of, not only the 32 counts the subject of the previous indictment but also the 82 counts on this present indictment.

    Submissions on sentence

11. The submissions on penalty by the Commonwealth Director of Public Prosecutions were as follows:

    ·A term of imprisonment should be imposed with time to serve;

    ·The length of offending and the amount defrauded are both significant;

    ·Any sentence imposed should run concurrently with the sentence currently being served because the 82 offences occurred throughout the period the subject of the current sentence and are of a similar nature to the 32 counts in respect of which the defendant has been convicted; and

    ·The Court can backdate any sentence to when the defendant first went into custody (s16E Crimes Act), which was the 5^th July 2002 when he was sentenced.

12. Further, counsel for the Commonwealth Director of Public Prosecutions, Mr Oates, submitted that the Court might consider it appropriate to impose a longer head sentence with respect to the current offences to reflect the fact that there are more offences on this indictment and more than twice the amount of evaded sales tax.  As to time actually to be served, counsel, Mr Oates, made no submission but left that question to the discretion of the Court.

13. Counsel for the defendant, Mr Longson, on the other hand submitted in the end that I should impose a penalty no greater than that imposed on the 5^th July 2002 both as to head sentence and the time to be actually served, and that it should be concurrent in both respects with the previous penalty.

    Backdating

14. In my view, backdating to the 5^th July 2002 is not appropriate and in particular is not justified by either s16E of the Crimes Act, or s30 of the Criminal Law (Sentencing) Act.  The usual crucial pre-condition to backdating a sentence, namely the fact of the defendant being in custody for the offences for which he or she is about to be sentenced, does not exist.  In this case, the defendant is in custody on sentence for the offences, the subject of the previous indictment.  In the case of R v Jamieson (1988) 30 SASR 130, as to this topic, King CJ said at page 134 as follows:

    “Section 21 of the Correctional Services Act 1982 authorises the sentencing judge to direct that a sentence shall be deemed to have commenced or shall commence on a day that is earlier or later than the commencing date of the sittings at which the sentence is passed, and subs (3) of s21 requires the judge to specify the date on which, or the time at which, the sentence is to commence or is deemed to have commenced.

    In R v Garrett (1978) 18 SASR 308 it was held on the legislation as it then stood, and I think that there is no material distinction between that legislation and the present provision, that there was power to order the commencement of a sentence prior to the date of the commencement of the sittings at which the sentence was passed. Moreover Hogarth J and White J took the view that the legislation is broad enough to give a court a discretion to make an order ante-dating the sentence so as to cover a period during which the offender is not in custody.

    It seems to me, however, that the circumstances in which it would be proper to make the latter order must be very rare.  The purpose of the section, I think, is plainly to enable the Court to make an order directing the commencement of the sentence on a date which will result in incorporation into the sentence periods spent in custody prior to the actual passing of the sentence.

    I can envisage cases in which it might be proper to use it to ante-date the sentence to include a period during which the offender has not been in custody.  Such circumstances might exist where the offender has been in custody for some period of time, say, three months following his arrest, but has then been released on bail.  It might be proper in such circumstances to ante-date the sentence for a period of three months, being a period equivalent to that which he had actually spent in custody.  In R v Smith and Shoesmith (1983) 32 SASR 219, Mitchell J envisaged the use of the power to ante-date a sentence as a device to give effect to the principle of totality where the total effect of a number of sentences might otherwise be oppressive. But apart from circumstances such as those, I find it difficult to envisage any circumstances in which it could be proper to ante-date the sentence to include in the term of imprisonment, any period, at least prior to the commencement of the sittings at which the sentence is passed, during which the offender has not actually been in custody. To do so would be to create a fiction that the offender is actually serving a sentence of imprisonment when he is not in custody at all, and I do not think that that is the purpose for which the power has been conferred upon the Court.”

15. Accordingly, because the defendant has not been in custody in respect of the 82 counts on the present indictment, there can be no backdating at all.  Whilst, the fact that the offending in the present indictment was part of the same course of criminal conduct as was charged in the previous indictment does not justify any backdating, it is a consideration which is relevant to, whether any sentence should be effective immediately and therefore run concurrently with the unexpired portion of the previous sentence, or commence upon the expiration of the sentence imposed by me on the 5^th July 2002.

16. Indeed, I consider that because both lots of offending are part of the same course of criminal conduct, any head sentence can appropriately commence at today’s date, and therefore run concurrently with the unexpired portion of the sentence which I imposed on the 5^th July 2002 (see Attorney-General v Tichy (1982) 30 SASR 84 at 92‑3). Such a course is permitted by s19 of the Crimes Act. Further, because the defendant is subject to “an existing recognizance release order” then a new recognizance release order or non-parole period will need to be fixed in respect of the aggregate of any new sentence and the unexpired portion of the previous sentence (see s19AE Crimes Act, 1914).

    Personal circumstances

17. I refer to the previous sentencing remarks and in particular to my comments as to the defendant’s personal history.  I will not repeat what is said there.

18. What is particularly significant now, and which was absent at the time of sentencing on 5^th July 2002 is that the defendant accepts his guilt of, not only the offences charged on the present indictment, but also the offences for which the jury found him guilty on the 23^rd January 2002.  He has withdrawn his appeals against conviction.  I accept his counsel’s submission that he is dealing with and confronting his criminal conduct and looking to move forward in his life.

    Sentencing

19. Comments made on the 5^th July 2002 about the applicable sentencing considerations apply again and I will not repeat them.

20. I am satisfied bearing in mind s17A of the Crimes Act that a sentence of imprisonment is the only appropriate penalty.

21. I will impose one penalty for all 82 offences. I note that it is not s4K(4) of the Crimes Act which empowers me to impose one penalty for a series of offences but s18A of the Criminal Law (Sentencing) Act (see R v Jackson (1998) 72 SASR 490).

22. I indicate also that I have had regard to the “remission provision” namely, s16G of the Crimes Act in fixing the sentence which I am about to impose.

23. I take into account the relevant matters specified in s16A of the Crimes Act and in particular sub-paragraph (g) namely the fact that the defendant has pleaded guilty.  I accept that criminal culpability is not necessarily directly proportional to either the number of offences or the amount of money which is the subject of the fraud. 

24. The sentence of the Court is that Allen William Chambers be imprisoned for three years.  I indicate that were it not for the pleas of guilty and the contrition shown the head sentence would have been four years.

25. That sentence is to commence today and is therefore to run concurrently with the unexpired portion of the sentence of three years imposed on the defendant on the 5^th July 2002 (see s19(1) Crimes Act, 1914 (Clth)).

26. I require the defendant to serve only part of the sentence I have imposed upon him.  I propose not interfering with the practical effect of what I have done in this regard on the 5^th July 2002.  I have exercised this leniency because:

    ·the offending, the subject of both indictments, was the same course of criminal conduct;

    ·if the defendant had agreed to the Commonwealth Crown’s suggestion that the offending, other than that in the previous indictment be taken into account on the 5^th July 2002, the end penalty would not have been significantly different to that imposed on the 5^th July 2002;

    ·the defendant is now contrite and remorseful and has confronted his criminality.

27. Accordingly, pursuant to s19AE (2) of the Crimes Act, 1914 (Clth) I confirm the existing recognizance release order made by me on the 5^th July 2002, namely I confirm my previous direction that upon Allen William Chambers entering into a recognizance in the sum of $5,000 to be of good behaviour for 24 months, he be released on the 5^th July 2003.

28. Further, I order that:

    1.Pursuant to s26 of the Proceeds of Crime Act 1987 (Commonwealth) the defendant pay to the Commonwealth a pecuniary penalty in the sum of $180,070.92.

    2.Pursuant to s49(1) of the said Act DIRECT the Official Trustee to forthwith pay to the Commonwealth, from the property restrained by order made by the Supreme Court on 17^th May 2000 and 1^st June 2000 (or any order that may be made in substitution therefore), an amount equal to the penalty amount; and

    3.That from the proceeds of sale of the property referred to in paragraph 2 hereof, the Official Trustee shall be entitled to reimbursement of its costs and disbursements in complying with this order, from the proceeds of sale of the said property.

29. On the 13^th December 2002, I called this matter back on as there was an error in the recognizance release order made on the 26^th November 2002, and the following new recognizance release order was made:

    “Pursuant to s19AE(2)(e) of the Crimes Act 1914, I make a new recognizance release order, to be effective on and from the 26^th November 2002 in respect of all Federal offences the defendant is to serve - being a sentence from and imposed on the 5^th July 2002 and a further sentence of three years imprisonment from and imposed on the 26^th November 2002 – namely, the defendant is to be released under s20(1)(b) of the Crimes Act 1914 after serving seven months and nine days from the 26^th November 2002 upon giving security by way of recognizance in the sum of $5,000.00 and upon condition that the defendant be of good behaviour for a period of 24 months upon his release from custody.”