R v Douglass - [2019] NSWDC 202

District Court

New South Wales

Medium Neutral Citation: R v DOUGLASS [2019] NSWDC 202
Hearing dates: 28 November 2018; 5 April 2019
Decision date: 05 April 2019
Jurisdiction: Criminal
Before: KING SC DCJ
Decision:
Special circumstances found – non-parole period rounded down to provide for 18 months of parole.
Sentenced to a term of imprisonment for 5 years and 6 months, comprising of a NPP of 4 years to commence on 28/11/18 and to expire on 27/11/22 and a balance of term of 1 year and 6 months commencing on 28/11/22 and expiring on 27/5/24.

Catchwords: CRIMINAL – sentence - dishonestly obtaining a financial advantage by deception – fraud - offender an accountant & registered tax agent who misappropriated some of the funds forwarded to him by his clients by forwarding less than the full BAS payments to the ATO, amending the BAS to match the reduced amount - between July 2010 and September 2017 skimming a total of $1,089,966.17 from the company & forcing the victims, his friends, to have to liquidate their company – aggravating features - systematic, frequent, planned offending, egregious criminal misconduct - gambling addiction – other subjective matters
Legislation Cited: Crimes Act 1900
Cases Cited: Assi v R [2006] NSWCCA 257at
Collier v R [2012] NSWCCA 213
Johnston v R [2017] NSWCCA 53
R v Grossi (2008) 183 A Crim R 15
R v Henry (1999) 46 NSWLR 346
R v Pantano (1990) 49 A Crim R 328
R v Thompson (NSWCCA 4 April 1994, unreported).
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Tuuta [2014] NSWCCA 40
Category: Sentence
Parties: Regina
Stephen Douglass
Representation:
Counsel:
Defence: Mr J Curtis
Solicitors:
Crown: Ms M McIvor

File Number(s): 2017/316749

Judgment

HIS HONOUR: Stephen Douglass appears for sentence in respect of a single offence, being an offence of dishonestly obtaining a financial advantage by deception contrary to s 192E (1) (b) of the Crimes Act 1900. The maximum penalty provided is ten years’ imprisonment and there is no standard non-parole period. He was committed for sentence on 11 September 2018 from Coffs Harbour Local Court and is entitled to a discount for the utility of the plea alone of 25%. Such a discount has been provided.
The facts are agreed and are as follows:
The offender has worked as an accountant since leaving high school. He was self-employed and worked from his home office in Park Beach Road, Coffs Harbour. He was also a registered tax agent.
The victims, Sheenah and Warren Whitten, are a married couple who owned and operated a local steel fabrication business, Arc Attack Engineering Pty Limited, for 20 years. Sheenah Whitten was responsible for the company administration while Warren Whitten ran the operation side of the business.
In 2003, following a recommendation, the victims employed the offender as their business and personal accountant. His role was to lodge the Business Activity Statement (BAS) and make the Pay As You Go (PAYG) and Goods and Services Tax (GST),…

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 R v Douglass

Details

AGLC: R v Douglass [2019] NSWDC 202
Case: [2019] NSWDC 202
Decision Date: 05 April 2019

CaseChat Overview and Summary

In the matter of the criminal proceedings against Douglass, the respondent was convicted of dishonestly obtaining a financial advantage by deception. The deception involved Douglass, an accountant and registered tax agent, misappropriating funds forwarded to him by his clients. Specifically, he reduced the Business Activity Statements (BAS) payments forwarded to the Australian Taxation Office (ATO) and subsequently amended the BAS to match the reduced amount. This fraudulent conduct occurred over a period spanning from July 2010 to September 2017, during which Douglass skimmed a total of $1,089,966.17 from the company, leading his victims, who were his friends, to liquidate their company. The case was heard in a relevant court.

The legal issues before the court encompassed determining the appropriate sentence for Douglass, considering the systematic, frequent, and planned nature of his offending, which was characterised as egregious criminal misconduct. Additionally, the court had to consider his gambling addiction and other subjective matters. The sentencing principles required careful examination of both the aggravating and mitigating factors to arrive at a just and balanced sentence.

In delivering the judgment, the court acknowledged the significant aggravating features of the case. The systematic and frequent nature of the offending, combined with the substantial financial loss inflicted on the victims, underscored the egregiousness of Douglass's conduct. However, the court also took into account his gambling addiction and other subjective matters that might have influenced his actions. Balancing these considerations, the court found that special circumstances warranted a rounding down of the non-parole period to facilitate parole eligibility after 18 months. Consequently, Douglass was sentenced to a term of imprisonment comprising a non-parole period of 4 years, to commence on 28 November 2018 and expire on 27 November 2022, followed by a balance of term of 1 year and 6 months, expiring on 27 May 2024.

The court's final orders mandated that Douglass serve a total sentence of 5 years and 6 months, with specific commencement and expiry dates for both the non-parole period and the balance of the term.

Orders

Orders of the court

Special circumstances found – non-parole period rounded down to provide for 18 months of parole.

Sentenced to a term of imprisonment for 5 years and 6 months, comprising of a NPP of 4 years to commence on 28/11/18 and to expire on 27/11/22 and a balance of term of 1 year and 6 months commencing on 28/11/22 and expiring on 27/5/24.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v DOUGLASS [2019] NSWDC 202
Hearing dates:	28 November 2018; 5 April 2019
Decision date:	05 April 2019
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Special circumstances found – non-parole period rounded down to provide for 18 months of parole. Sentenced to a term of imprisonment for 5 years and 6 months, comprising of a NPP of 4 years to commence on 28/11/18 and to expire on 27/11/22 and a balance of term of 1 year and 6 months commencing on 28/11/22 and expiring on 27/5/24.
Catchwords:	CRIMINAL – sentence - dishonestly obtaining a financial advantage by deception – fraud - offender an accountant & registered tax agent who misappropriated some of the funds forwarded to him by his clients by forwarding less than the full BAS payments to the ATO, amending the BAS to match the reduced amount - between July 2010 and September 2017 skimming a total of $1,089,966.17 from the company & forcing the victims, his friends, to have to liquidate their company – aggravating features - systematic, frequent, planned offending, egregious criminal misconduct - gambling addiction – other subjective matters
Legislation Cited:	Crimes Act 1900
Cases Cited:	Assi v R [2006] NSWCCA 257at Collier v R [2012] NSWCCA 213 Johnston v R [2017] NSWCCA 53 R v Grossi (2008) 183 A Crim R 15 R v Henry (1999) 46 NSWLR 346 R v Pantano (1990) 49 A Crim R 328 R v Thompson (NSWCCA 4 April 1994, unreported). R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Tuuta [2014] NSWCCA 40
Category:	Sentence
Parties:	Regina Stephen Douglass
Representation:	Counsel: Defence: Mr J Curtis Solicitors: Crown: Ms M McIvor
File Number(s):	2017/316749