R v Mascall, Mascall and Sewell - [2012] NSWDC 176

District Court

New South Wales

Medium Neutral Citation: R v MASCALL, MASCALL and SEWELL [2012] NSWDC 176
Decision date: 11 May 2012
Before: Cogswell SC DCJ
Decision:
Paul Mascall - for the offences of conspiracy to defraud the Commonwealth and conspiracy to cause a loss to the Commonwealth - 4 years imprisonment. To be released upon giving security in the sum of $500 by recognizance and without sureties after serving 2 years imprisonment.
Lesley Mascall - for the offences of conspiracy to defraud the Commonwealth and conspiracy to cause a loss to the Commonwealth - 3 years imprisonment. To be released upon giving security in the sum of $500 by recognizance and without sureties, after serving 15 months imprisonment.
Paul Sewell - for the offence of conspiracy to defraud the Commonwealth and obtain a financial benefit by deception - 2 years imprisonment, to be released forthwith upon giving security in the sum of $500 by recognizance and without sureties.

Catchwords: CRIMINAL LAW - Particular offences - property offences - defrauding the Commonwealth - conspiracy - Vanuatu tax evasion scheme - reliance on advice of tax agent in entering the scheme - objectively serious offence - tax shortfall of over $166,000 (Lesley Mascall), over $174,000 (Paul Mascall), over $25,000 (Paul Sewell), over $450,000 (Air Solutions) and nearly $65,000 (Varitech) - offending behaviour part of course of conduct extending over long period.
Sentence - purpose - general deterrence of great importance - personal deterrence - of little importance in this case - relevant factors - motivation - financial gain through evasion of income tax obligation - no prior criminality - all offenders of good character - excellent prospects of rehabilitation - parity - Lesley Mascall in a more serious category than co-conspirator (Mr McLean) - offending extended over longer period - significant delay in prosecution owing to extensive preparation - offenders aged between 56 and 71 - response to charges - active co-operation with authorities - retained accountant to rectify tax affairs - repaid debt - offered to assist authorities in prosecution of the accountant - pleas of guilty - 20 per cent discount - contrition - corrected an Australian Tax Office error resulting in additional reparation - remorse - all offenders offered a sincere apology - other offences in accordance with s 16BA Crimes Act 1914 (Cth) taken into account.
Legislation Cited: Crimes Act 1914 (Cth), s 16A, s 16BA, s 29D and s 86(1)
Criminal Code Act 1995 (Cth), s 134.2(1) and s 135.4(3)
Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
Regina v Boughen and Cameron [2012] NSWCCA 17
Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31
Regina v Dennison [2011] NSWCCA 114
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Regina v Morris (1992)…

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.

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Details

Case: [2012] NSWDC 176
Decision Date: 11 May 2012

CaseChat Overview and Summary

In the case of R v Mascall, Mascall and Sewell, the defendants were convicted of various charges relating to a conspiracy to defraud the Commonwealth through a tax evasion scheme. The defendants included Lesley Mascall, Paul Mascall, Paul Sewell, Air Solutions, and Varitech, all of whom were involved in the scheme to evade income tax obligations through a complex arrangement facilitated by a tax agent. The court had to determine appropriate sentences for the defendants, taking into account the nature and extent of their involvement, their motivation, and other relevant factors.

The legal issues before the court involved determining the appropriate sentences for the defendants, considering the gravity of the offences, the defendants' motivations, and the circumstances surrounding the offences. The court had to balance the need for general deterrence with the prospects of rehabilitation and the offenders' cooperation with authorities. The court also had to consider the significant delay in prosecution due to the extensive preparation of the case, the offenders' good character, and their cooperation in repaying the tax debts.

In sentencing the defendants, the court emphasised the importance of general deterrence given the serious nature of the offences, which involved a substantial tax shortfall. The court noted that while personal deterrence was of lesser importance, the offenders' motivation was primarily financial gain through tax evasion. The court found that the offenders had cooperated with authorities, repaid their debts, and had no prior criminal history. The court also considered the delay in prosecution and the age of the offenders. The court concluded that the appropriate sentences would serve the purpose of deterrence and reflect the offenders' cooperation and remorse.

The court ordered that Paul Mascall be sentenced to 4 years imprisonment for conspiracy to defraud the Commonwealth and conspiracy to cause a loss to the Commonwealth, to be released after serving 2 years upon giving security of $500. Lesley Mascall was sentenced to 3 years imprisonment for the same offences, to be released after serving 15 months upon giving security of $500. Paul Sewell was sentenced to 2 years imprisonment for conspiracy to defraud the Commonwealth and obtain a financial benefit by deception, to be released forthwith upon giving security of $500.

Orders

Orders of the court

Paul Mascall - for the offences of conspiracy to defraud the Commonwealth and conspiracy to cause a loss to the Commonwealth - 4 years imprisonment. To be released upon giving security in the sum of $500 by recognizance and without sureties after serving 2 years imprisonment.

Lesley Mascall - for the offences of conspiracy to defraud the Commonwealth and conspiracy to cause a loss to the Commonwealth - 3 years imprisonment. To be released upon giving security in the sum of $500 by recognizance and without sureties, after serving 15 months imprisonment.

Paul Sewell - for the offence of conspiracy to defraud the Commonwealth and obtain a financial benefit by deception - 2 years imprisonment, to be released forthwith upon giving security in the sum of $500 by recognizance and without sureties.

Background

Background to the litigation

Full text does not contain this section.

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 MASCALL, MASCALL and SEWELL [2012] NSWDC 176
Decision date:	11 May 2012
Before:	Cogswell SC DCJ
Decision:	Paul Mascall - for the offences of conspiracy to defraud the Commonwealth and conspiracy to cause a loss to the Commonwealth - 4 years imprisonment. To be released upon giving security in the sum of $500 by recognizance and without sureties after serving 2 years imprisonment. Lesley Mascall - for the offences of conspiracy to defraud the Commonwealth and conspiracy to cause a loss to the Commonwealth - 3 years imprisonment. To be released upon giving security in the sum of $500 by recognizance and without sureties, after serving 15 months imprisonment. Paul Sewell - for the offence of conspiracy to defraud the Commonwealth and obtain a financial benefit by deception - 2 years imprisonment, to be released forthwith upon giving security in the sum of $500 by recognizance and without sureties.
Catchwords:	CRIMINAL LAW - Particular offences - property offences - defrauding the Commonwealth - conspiracy - Vanuatu tax evasion scheme - reliance on advice of tax agent in entering the scheme - objectively serious offence - tax shortfall of over $166,000 (Lesley Mascall), over $174,000 (Paul Mascall), over $25,000 (Paul Sewell), over $450,000 (Air Solutions) and nearly $65,000 (Varitech) - offending behaviour part of course of conduct extending over long period. Sentence - purpose - general deterrence of great importance - personal deterrence - of little importance in this case - relevant factors - motivation - financial gain through evasion of income tax obligation - no prior criminality - all offenders of good character - excellent prospects of rehabilitation - parity - Lesley Mascall in a more serious category than co-conspirator (Mr McLean) - offending extended over longer period - significant delay in prosecution owing to extensive preparation - offenders aged between 56 and 71 - response to charges - active co-operation with authorities - retained accountant to rectify tax affairs - repaid debt - offered to assist authorities in prosecution of the accountant - pleas of guilty - 20 per cent discount - contrition - corrected an Australian Tax Office error resulting in additional reparation - remorse - all offenders offered a sincere apology - other offences in accordance with s 16BA Crimes Act 1914 (Cth) taken into account.
Legislation Cited:	Crimes Act 1914 (Cth), s 16A, s 16BA, s 29D and s 86(1) Criminal Code Act 1995 (Cth), s 134.2(1) and s 135.4(3)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146 Regina v Boughen and Cameron [2012] NSWCCA 17 Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31 Regina v Dennison [2011] NSWCCA 114 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Regina v Morris (1992)…