R v Sedlbauer
[2013] VCC 1134
•4 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-02335
CR-13-01347
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHIAS SEDLBAUER |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 September 2013 | |
DATE OF SENTENCE: | 4 September 2013 | |
CASE MAY BE CITED AS: | R v Sedlbauer | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1134 | |
REASONS FOR SENTENCE
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Subject: Sentencing: Taxation Fraud
Catchwords: Energy Grants Credit Scheme; GST; BAS
Legislation Cited:
Cases Cited:
Sentence: 6 years and 6 months with 4 year non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | CDPP |
| For the Accused | Mr J. Gullaci | VLA |
HIS HONOUR:
1 Matthias Sedlbauer you have pleaded guilty to two charges of obtaining a financial advantage by deception and two charges of attempting to do so.
2 The charges are brought under the Commonwealth Criminal Code and the maximum penalty for each charge is 10 years imprisonment.
3 The prosecutor, Mr Devlin, comprehensively opened the circumstances of the offending by reading from a written document headed ‘Plea Summary’, which was tendered.
4 Charge 1 concerns the obtaining of a total of $1,039,116.51 by lodging with the Australian Tax Office (ATO), between 7 December 2004 and 4 February 2008, false claims under the Energy Grants Credit Scheme (EGCS) and false Business Activity Statements (BAS).
5 Charge 2 concerns attempting to obtain energy grants totalling $206,267.21 between 26 April 2007 and 1 June 2007.
6 Charge 3 concerns attempting to obtain payment of a Goods and Services Tax (GST) refund in the sum of $4,794 by lodging a false BAS on 7 July 2009 relating to the period between 1 April 2009 and 30 June 2009.
7 Charge 4 concerns obtaining GST refunds totalling $33,705 by lodging false Business Activity Statements between 6 August 2009 and 10 December 2010.
8 The parties agreed that I am able to impose an aggregate sentence concerning the total offending. I will do so. Had I not chosen to do so, to encompass all the offending, I would have been likely to have done so with Charges 1 and 2 and then again with Charges 3 and 4 and then accumulated some portion of the latter on the former.
9 The ATO system is largely ‘self-assessment’ relying on the truthfulness and integrity of taxpayers and claimants.
10 You were first contacted by an ATO auditor on 7 February 2006 concerning suspected false claims. It seems that you avoided answering requests for information from the ATO. After this date you ceased claims on behalf of the two companies previously used by you however, your offending continued using different entities.
11 In February 2008 a search warrant was executed at your residence and documents were seized. You exercised your right to make no comment at that time and in March 2008.
12 Charges 1 and 2 are two ‘rolled-up’ charges relating to 109 transactions. You were charged with these offences in July 2011 and committed by hand-up brief procedure in December 2011.
13 The trial of these charges was listed for October 2012 but this trial date was vacated to enable you to obtain funding. Your legal advisers ceased to act at the beginning of November 2012. After some difficulty you were eventually represented by Legal Aid and the trial was re-listed on 13 May 2013. On the second day the matters resolved into a plea of guilty with the charges being rolled up.
14 In March 2011 the informant had received information regarding possible BAS frauds by you. These allegations were investigated but the informant seems to have been essentially focussing on the subject of Charges 1 and 2. After your pleas of guilty to Charges 1 and 2 the proceedings were adjourned to enable all the outstanding matters to be investigated and joined in the one proceeding. Hence the current indictment containing 4 charges.
15 You have a criminal history including relevant matters for dishonesty. On 8 April 2003 you were convicted of numerous dishonesty offences and released on a Community Based Order for 15 months. You breached this Order by further offending and on 5 February 2004 you were fined for the original offending, fined for the breach of the CBO and sentenced to imprisonment for 6 months on the breaching offences, which consisted of dishonesty offending, however the sentence of imprisonment was wholly suspended for 2 years.
16 The numerous offences that I have described as the original offending included stealing mobile phones and accessories from your employer, Telstra, pawning some of the phones and making and using false documents and other deceptive conduct.
17 The breaching offences included fraudulently claiming trade discounts on motor vehicle equipment and using false references to support an application to obtain your firearms licence which you had previously lost on becoming a prohibited person on conviction for the original offences.
18 Some of the current offending occurred during the period you were on the suspended sentence however, because of the passage of time you will not be breached.
19 To your credit you consented to me making a reparation order in the sum of $1,072,821.51 however you have no assets at present and cannot meet any of this order.
20 You must benefit from your pleas of guilty. The pleas to Charges 3 and 4 were made at the first reasonable opportunity. Indeed you cooperated and facilitated the process. The pleas to Charges 1 and 2 came late nevertheless you must still benefit from these pleas. Your pleas of guilty save time, expense and the need for witnesses to give evidence. The trial of Charges 1 and 2 in particular is likely to have been complex and lengthy.
21 Your counsel urged me to accept that you have shown some remorse for your conduct and that this remorse is reflected in your pleas of guilty. I accept his submissions that I should give some weight to remorse in the pleas. There is other evidence of remorse, to which I will refer later and which, of course, is relevant to penalty.
22 There has been considerable delay in the proceedings. There was a delay of about 2 years from the time you were first contacted by the ATO auditor in early 2006 until the search of your premises in early 2008. There was then another far too lengthy delay before you were charged on summons in mid 2011. It cannot be said that you made efforts to rehabilitate once your offending was first suspected or discovered. Quite the opposite; you continued to offend. However, I accept your counsel’s submission that you have lived under the stress of the pending matters for far too long.
23 I also accept his submission that you had no criminal history until you stole from your employer in late 2000. You also have no pending charges except for a drink driving allegation where you have been charged with refusing to undergo a breath test. As I understand you intend to contest this charge and have done so successfully previously.
24 Your counsel conceded that your offending involved breaching the trust of some clients for whom you had acted as a financial adviser by using their personal information to further the offending. Your prior criminal history included breaching the trust of your employer for the original offending and, as I understood the summary, breached the trust of a friend concerning the breaching offences.
25 Your current offending spanned a long period and as I noted in discussion was persistent however I need to keep in mind, as your counsel noted, that you were considerably younger when it began than you are now. Your counsel accepted that your offending was prolonged, planned, premeditated and abused the system of self assessment on which the taxation system is based. He noted that you created false entities and used the personal names and details of your clients, that you continued offending after detection and that you had no genuine diesel fuel entitlement at all.
26 Most of the money you obtained was spent on drugs with binges of up to $1500 a day. Some of the money was spent on life-style pursuits. Now you have nothing. You have lost your property in Pakenham in which you now have no equity, your business has collapsed.
27 A psychological report from Ms Carla Lechner was tendered.
28 She details your personal background. You will soon turn 38. Your parents, aged 68 and 72, attended court to support you as did some friends. You completed year 12 and described yourself to Ms Lechner as an ‘above average’ student. You are a long time keen fisher and hunter. Your upbringing was relatively unremarkable. You have worked in various occupations and completed a training course as a mortgage broker in 2003. You then ran a financial consulting company for 5 years then another for the next 5 years; the latter became unviable in February this year. You were on the Newstart Allowance until going into custody last Monday.
29 Ms Lechner notes that you were devastated on losing your shooter’s licence in 2003 after being convicted of the Telstra related charges. You could not hunt as you wished. You mixed with a new crowd and began using cocaine. You lost your shooter's licence again in about 2008 when charged with drink driving. You had an altercation with police when pulled over. You considered yourself badly treated intensifying your anger towards authority figures.
30 Ms Lechner noted that you do not appear to be emotionally close to anyone in particular.
31 She also detailed your drug history. At times you have used ice and ecstasy but cocaine is your drug of choice. At the time of the examination last month Ms Lechner noted that you still use cocaine intermittently.
32 She noted a grievance you had with the ATO and as a result of your treatment by the office, particularly being ‘on hold’ waiting to speak to an officer. You thought “treat me wrong so I’ll treat you wrong”. You were also angry about having your shooter’s licence taken from you. You researched the diesel rebate scheme. This occurred at a time when you developed ‘quite a habit’ with cocaine. You were also under financial pressure and were gambling.
33 Ms Lechner considered that you have features of an Anti-Social Personality Disorder. You display an anti-authoritarian attitude and believe authority figures have treated you unjustly and unfairly. The features of your Anti-Social Personality Disorder are characterised by ‘a failure to conform to lawful and ethical behaviour, problems with identity, self-direction and intimacy.
34 She thought you presented with symptoms of Cocaine Use Disorder.
35 She thought you emotionally immature. As I understand her report she thought your insight into your internal distress and self-destructive behaviours was limited.
36 Ms Lechner thought you would benefit from engagement with counselling services directed at both substance abuse and your psychological needs. A lengthy period on parole and support in the community may assist this, she wrote.
37 Your counsel noted that you have undergone personal development programs in 2012 and earlier this year and recently made preparations for further ongoing counselling. The primary point being made by your counsel was that you understand you need help and are willing to receive it. Clearly, you need to stop using cocaine. You left Ms Lechner with the impression that you thought you could achieve this on your own. It is imperative that you remain drug free in prison and it would be wise to provide you with as much support in prison and on release to maintain this.
38 You are fortunate to have a strong body of support from family and friends. Three character references were tendered. They each speak highly of you and note your remorse and shame. Each person was clearly shocked by your conduct.
39 I have been impressed by the openness and frankness with which you spoke to Ms Lechner. This quality was also referred to by your character referees. It is a positive rehabilitative sign although, of course, it needs to be seen in the context of long term and persistent dishonesty. I accept your counsel’s submission that although I cannot find you have good prospects for rehabilitation the positive rehabilitative signs that are present should be built on and encouraged. You have not experienced imprisonment previously and the sentence I impose will in part be directed to specific deterrence. You will be middle-aged when released. There have been long periods during which you have not offended. You have the opportunity to remain drug free in prison. You have the support of family and friends. You seem willing to accept some help.
40 I was provided with a chart of cases and referred to a number of other cases to assist me. The applicable sentencing objectives were not in dispute.
41 The prosecution submitted that a total effective sentence of between 6½ and 8½ years with a non-parole period of between 4 and 6 years should be imposed. Mr Gullaci argued that the sentence should fall somewhere around the lower end of that range.
42 During discussions I expressed concerns about the upper end of the prosecution range. Even the lower end at first blush is greater than that imposed in some other cases where the amount obtained or attempted to be obtained is roughly similar however, of course the seriousness of the crime is not determined merely by the sum involved. Although there are some mitigating features in your case other cases often have powerful mitigating features and the prosecution in your case is entitled to emphasise matters such as your prior history, your persistent and prolonged offending, your motivation and psychological drivers, your late plea on Charges 1 and 2, the caution with which your rehabilitation prospects need to be assessed and the use to which you put your gains, to mention some of the matters which interact and overlap.
43 In my view, the narrower range somewhat obliquely identified by Mr Gullaci is correct. That is not to say the prosecution range, emphasising the word "range", is not correct, as Mr Gullaci conceded, although, as just noted, in discussion during the course of the plea I noted that the upper end of the range seemed excessive. After reflection I consider the appropriate total effective sentence coincides with the lower figures nominated by the prosecution.
44 Can I ask you stand up please, Mr Sedlbauer.
45 You will be convicted on all charges and sentenced to a total effective sentence of 6 years and 6 months imprisonment. I fix 4 years as the period you must serve before being eligible for release on parole.
46 Had you not pleaded guilty I expect I would have imposed a sentence of at least 8 years with a non-parole period of about 6 years.
47 You have been in custody since Monday. Accordingly, pre-sentence detention of 2 days is to be reckoned as time already served on the sentence imposed.
48 Thanks very much, Mr Sedlbauer, you can sit down.
49 MR DEVLIN I think Your Honour's already declared that - sorry, that you were going to make the compensation order.
50 HIS HONOUR: I did.
51 MR DEVLIN: Thank you, Your Honour.
52 HIS HONOUR: Thank you for reminding me, I'll make the order, it was consented to. Thank you. Anything else that counsel need to point to me?
53 MR GULLACI: No, Your Honour.
54 MR DEVLIN: Thank you, Your Honour, no.
55 HIS HONOUR: All right, I'll leave the Bench. Thank you very much.
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