R v Krogh - [1999] QCA 464

99.464

COURT OF APPEAL

DAVIES JA THOMAS JA ATKINSON J

CA No 261 of 1999
THE QUEEN
v.

JOHN ANTHONY KROGH

Applicant

BRISBANE
..DATE 04/11/99
041199 T17/HMH8 M/T COA266/99
THOMAS JA: The applicant was sentenced in the District
Court upon two counts of defrauding the Commonwealth and
one count of attempting to defraud the Commonwealth. He
was sentenced to four years' imprisonment on the first
count and two years on the other counts, such sentences
being concurrent, and a non-parole period was fixed at 18
months. Reparation orders were made in favour of the
Commissioner of Taxation of $135,547.50 and in favour of
the Health Insurance Commission of $2,744.70. A
declaration was made as to 195 days pre-sentence custody.

The applicant is 33 years old and has no prior criminal history. He was a partner in a tax accounting firm in New South Wales. Over a period of two and a half years between March 1996 and November 1998 he took advantage of his access to the system of electronic lodgment of taxation returns and fabricated 33 returns using the names and tax file numbers of taxpayers who were known to him either as customers of the practice or as acquaintances. He selected persons who would be unlikely to lodge a return of their own for the year in question.

Apart from the names and tax file numbers, all the details in the returns were fictitious. They were prepared to show a false tax instalment deduction entitlement and by other means to show entitlement to refund. When refund cheques were sent by the Taxation Commissioner addressed to those persons at the applicant's address, he would intercept them and make 041199 T17/HMH8 M/T COA266/99

further arrangements, again involving forgery, to bank the cheques to his personal account. The total amount fraudulently obtained by these 33 series of transactions was $135,547.50.

Count 2 involved an attempt to obtain further funds involving over $107,000 including one in his own name seeking a refund of $85,000. Due to discovery of the attempted fraud no assessments were issued and so no further loss occurred in respect of the attempt.

Count 3 relates to a further fraudulent scheme being practised by the applicant directed to the Health Insurance Commission. He created on his computer false accounts and receipts for medical services and presented forged accounts and receipts at Medicare branches, obtaining cash refunds to which he was not entitled. The charge covers 12 such instances resulting in $2,744.70 being fraudulently obtained.

None of the proceeds of these fraudulent schemes was recovered. In fact, the applicant was bankrupted on 24 February 1999. It is obvious that the applicant committed sustained, sophisticated, fraudulent practices.

He had no need or, so far as is known, any particular economic pressures to act as he did. His schemes involved multiple forgeries including forgeries of group certificates, taxation returns and medical receipts and claims.

041199 T17/HMH8 M/T COA266/99
The learned sentencing Judge rightly regarded the conduct
as at the serious end of…

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 Krogh

Details

AGLC: R v Krogh [1999] QCA 464
Case: [1999] QCA 464
Decision Date: 4/11/1999

CaseChat Overview and Summary

The Court of Appeal in this case heard an appeal by John Anthony Krogh against his sentence for defrauding the Commonwealth and attempting to defraud the Commonwealth. The applicant, who was a partner in a tax accounting firm in New South Wales, had committed sustained and sophisticated fraudulent practices by fabricating 33 tax returns and intercepting refund cheques, totaling $135,547.50. Additionally, he had created false accounts and receipts for medical services to obtain cash refunds from the Health Insurance Commission, totaling $2,744.70. Krogh was sentenced to four years' imprisonment on the first count and two years on the other counts, with all sentences running concurrently and a non-parole period of 18 months. Reparation orders were made in favour of the Commissioner of Taxation and the Health Insurance Commission, and a declaration was made as to 195 days pre-sentence custody.

The legal issue before the Court was whether the non-parole period of 18 months was excessive. Counsel for the applicant argued that the non-parole period was too high, while the prosecutor submitted that the sentence was appropriate. The Court of Appeal considered the circumstances of the case, including the serious nature of the offences, the deliberate and persistent conduct, and the lack of any mitigating factors. The Court found that the sentence, including the non-parole period, lay within the limits of reasonable sentencing discretion and refused the application.

In summary, the Court of Appeal upheld the sentence imposed by the District Court on John Anthony Krogh for defrauding the Commonwealth and attempting to defraud the Commonwealth. The Court found that the non-parole period of 18 months was not excessive given the circumstances of the case and refused the application.

Orders