R v Nophadol Oughton
[2016] ACTSC 73
•14 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nophadol Oughton |
Citation: | [2016] ACTSC 73 |
Hearing Date(s): | 14 April 2016 |
DecisionDate: | 14 April 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to a two-year good behaviour order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – general dishonesty – First Home Owner Grant Scheme – guilty verdict following trial by jury – offence objectively serious – good behaviour order |
Legislation Cited: | Criminal Code 2002 (ACT) s 333(5) Crimes (Sentencing) Act 2005 (ACT) ss 7, 13 Crimes (Sentence Administration) Act 2005 (ACT) |
Parties: | The Queen (Crown) Nophadol Oughton (Offender) |
Representation: | Counsel Ms E Beljic (Crown) Mr J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Prail Lawyers (Offender) | |
File Number(s): | SCC 76 of 2015; SCC 77 of 2015 |
MURRELL CJ:
A jury found that the offender was guilty of the charge that, between about 1 June 2012 and 30 July 2013 at Canberra, he dishonestly caused a risk of loss to the ACT believing that there was a substantial risk of the loss happening, contrary to s 333(5) of the Criminal Code 2002 (ACT) (Criminal Code).
This offence carries a maximum available penalty of five years' imprisonment and/or a substantial fine.
Facts
The offender applied for a First Home Owner Grant in April 2011. He was advised that the grant had been approved but was conditional on the satisfaction of a residency requirement that the offender occupy the home that was the subject of the grant as his permanent place of residence for a continuous period of six months, commencing within the first 12 months after the building was completed. In December 2012, a First Home Owner Grant of $7,000 was paid to the offender.
The building was completed on 28 June 2012. The offender did not move into the property. Almost as soon as the property was completed, two sisters moved into the residence and they continued to reside there as the sole occupants of the property until April 2013, when they moved out. In May 2013, another occupant moved in with his family.
It is plain from the verdict that the jury accepted beyond reasonable doubt that the offender was well aware that the residency requirement meant that he had to physically move into the property and occupy it as his principal place of residence. The jury must have rejected the offender’s claim that he was under the mistaken belief that there was a legal technicality that enabled him to avoid this responsibility.
Objective seriousness
The offence has significant objective seriousness. The First Home Owner Grant is a beneficial scheme designed to assist first home owners. The offender gained the considerable benefit of a grant of $7,000. Throughout the period mid-2012 to mid-2013 the offender was aware that he was required to occupy the premises as his principal place of residence. He was also aware that he was not complying with that requirement. There was a continuing state of awareness of the requirement and his non-compliance with it, and a continuing state of mind of dishonesty.
In the period following the offence, the offender attempted to conceal his involvement in the offence by inferring that he had complied with the residency requirement when he was communicating with officers of the ACT Revenue Office.
The financial advantage that the offender gained by the dishonesty was the retention of the sum of $7,000 through a 12-month period and beyond. No doubt, he was optimistic that his dishonesty would not be discovered and he would never have to repay the grant.
As it transpired, the dishonesty did come to light and the ACT Revenue Office demanded repayment of the First Home Owner Grant, together with penalties and interest. The offender complied immediately with the demand.
The payment of a significant penalty plus interest is a form of extra-curial punishment that should be taken into account in the sentencing exercise.
Subjective circumstances
The offender is now 33 years of age. He was 29 or 30 years old at the time of the offence. He is a married man. He has no prior criminal record. He is a person of generally excellent character. He was described by character referees as respectful, hardworking, generous, courteous, helpful and intelligent.
The offender currently holds a responsible position with the ACT government. The future of his employment with the ACT government is at risk. But for this offence, he would almost certainly have enjoyed a very successful career in the public service as he showed much early promise. The fact that he has a conviction for dishonesty will stay with him for a very long time, and will damage his career prospects.
Other sentencing considerations
Unfortunately, the offender has demonstrated no remorse for his conduct. He is not entitled to any leniency for remorse.
In relation to rehabilitation, I very much doubt that the offender will reoffend through dishonest conduct or engage in any other criminal conduct. I am sure that he has learnt a very harsh lesson.
General deterrence is an important sentencing consideration. Tax evasion and tax minimisation are matters that are of increasing concern to the community. It is important that persons who might consider tax evasion to be “fair game” are deterred from that view.
In sentencing the offender, I have regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), in particular the requirements for adequate punishment, general deterrence, accountability and denunciation, which are to my mind the principal sentencing purposes to be addressed in this sentencing exercise. I also have regard to relevant considerations under s 33 of the Sentencing Act, to which I have already referred.
Sentence
The offender is convicted. Pursuant to s 13 of the Sentencing Act I make a good behaviour order requiring him to sign an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: |
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