R v Thorn
[2016] ACTSC 217
•13 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Thorn |
Citation: | [2016] ACTSC 217 |
Hearing Date: | 6 July 2016 |
DecisionDate: | 13 July 2016 |
Before: | Refshauge J |
Decision: | 1. James Thorn be convicted of submitting a false income tax return on 15 November 2010, intending to cause a loss to the Commonwealth (CC 15/41260). 2. James Thorn be sentenced to 15 months imprisonment to commence on 9 December 2015. 3. James Thorn be convicted of submitting a false income tax return on 21 January 2011, intending to cause a loss to the Commonwealth (CC 15/41261). 4. James Thorn be sentenced to 15 months imprisonment to commence on 9 March 2016, that is to be cumulative as to 3 months on the first sentence. 5. James Thorn be convicted of submitting a false income tax return on 16 March 2011, intending to cause a loss to the Commonwealth (CC 15/41262). 6. James Thorn be sentenced to 12 months imprisonment to commence on 9 September 2016, that is to be cumulative as to 3 months on the second sentence. 7. James Thorn be convicted of submitting a false tax return on 10 May 2011, intending to cause loss to the Commonwealth (CC 15/41263). 8. James Thorn be sentenced to 12 months imprisonment to commence on 9 November 2016, that is to be cumulative as to 2 months on the third sentence. 9. James Thorn be convicted of submitting a false tax return on 7 June 2011, intending to cause loss to the Commonwealth (CC 15/41264). 10. James Thorn be sentenced to 12 months imprisonment to commence on 9 January 2017, that is to be cumulative as to 2 months on the fourth sentence. 11. James Thorn be convicted of submitting a false tax return on 15 July 2011, intending to cause loss to the Commonwealth (CC 15/41265). 12. James Thorn be sentenced to 12 months imprisonment to commence on 9 April 2017, that is to be cumulative as to 3 months on the fifth sentence. 13. James Thorn be convicted of submitting a false tax return on 15 July 2011, intending to cause loss to the Commonwealth (CC 15/41266). 14. James Thorn be sentenced to 12 months imprisonment to commence on 9 July 2017, that is to be cumulative as to 3 months on the sixth sentence. 15. James Thorn be convicted of submitting a false tax return on 24 August 2011, intending to cause loss to the Commonwealth (CC 15/41268). 16. James Thorn be sentenced to 12 months imprisonment to commence on 9 October 2017, that is to be cumulative as to 3 months on the seventh sentence. 17. James Thorn be convicted of submitting a false tax return on 25 August 2011, intending to cause loss to the Commonwealth (CC 15/41267). 18. James Thorn be sentenced to 12 months imprisonment to commence on 9 December 2017, that is to be cumulative as to 2 months on the eighth sentence. 19. On 12 July 2017 James David Thorn be released upon giving security in the sum of $100 to be of good behaviour for a period of 3 years and that he be subject to supervision by the Director-General of the Directorate of Justice and Community Safety or her delegate for the period of 3 years or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of that person as to treatment or counselling for alcohol and drug use and mental impairment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – dishonesty offences – submitting false tax return – causing loss to Commonwealth – deliberate conduct – planning and premeditation – course of conduct – deterrence CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – offender’s subjective circumstances – traumatic childhood – physical and sexual abuse – history of substance abuse – mental impairment – psychiatric treatment order – compliance with medication – offender seeking rehabilitation CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – inter-jurisdictional sentencing – interaction between Commonwealth and Territory sentences – s 19 of the Crimes Act 1914 (Cth) – no break between sentences – sentence commences immediately after end of non parole period |
Legislation Cited: | Crimes Act 1914 (Cth), ss 16A, 16A(2), 16A(2)(a), 16A(2)(b), 16A(2)(c), 16A(2)(d), 16A(2)(e), 16A(2)(ea), 16A(2)(f), 16A(2)(fa), 16A(2)(g), 16A(2)(h), 16A(2)(j), 16A(2)(ja), 16A(2)(k), 16A(2)(m), 16A(2)(n), 19, 19AC, 20 Criminal Code Act 1995 (Cth), s 135.1(3) |
Cases Cited: | BAE, Kangmin v The Queen [2015] NSWCCA 133 Barbaro v The Queen (2014) 253 CLR 58 |
Parties: | The Queen (Crown) James David Thorn (Defendant) |
Representation: | Counsel Ms E Wren (Crown) Mr A Doig (Defendant) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Capital Lawyers (Defendant) | |
File Number: | SCC 24 of 2016 |
REFSHAUGE J:
Part of the fabric of a civilised democratic society is that the government provides services and infrastructure for the peaceable and productive conduct of the affairs of the community. In order to do so, it is necessary for government to be funded and, while there are other sources of funding, the principal source of such funding is through income tax.
Each and every income earner in the large population of Australia, together with other income producing entities, such as businesses, must pay tax that is due. This means that, logistically, for the most part, the Australian tax system depends on self assessment.
It is, therefore, necessary for the integrity of the tax system to be preserved and the legislature has provided for offences which are designed to achieve that and penalties to support such offences.
Now appearing before me for sentence is James David Thorn who, on arraignment on 23 May 2016, pleaded guilty to nine counts of doing something with the intention of dishonestly causing a loss to another person and that other person is a Commonwealth entity. This is an offence against s 135.1(3) of the Criminal Code Act 1995 (Cth).
The maximum penalty for the offence is imprisonment for five years.
Each of the offences was constituted by Mr Thorn lodging a tax return with the intent that refunds of the tax will be paid as disclosed in the income tax return. In this case, the income tax returns contained false information to be lodged with the Australian Tax Office.
The facts
Between November 2010 and August 2011, Mr Thorn was a detainee at the Alexander Maconochie Centre (AMC), a correctional facility in this Territory. During this period, he lodged a number of income tax returns which claimed refunds to which neither Mr Thorn nor the persons for whom he lodged them were entitled to be paid.
Between November 2010 and 2011, a total of $18,431.82 was paid into various bank accounts being, in each case, the bank account nominated in the false returns for payment of refunds from the income tax returns fraudulently prepared by Mr Thorn and submitted by him.
A further $53,491.73 in refunds was calculated by the Australian Taxation Office but not released because of the concerns which the Tax Office had about the submitted tax returns, pending an audit. Following the audit of the return, the amounts assessed as payable were not paid.
The first count on the indictment involved an income tax return submitted by Mr Thorn in his own name but making reference to an Australian Business Number which was invalid and which did not belong to any entity. The return suggested that he had earned $35,258, of which $7,635 had been withheld as tax. In fact, Mr Thorn was, for the relevant period, detained in the AMC and did not earn the stated sum nor were any monies retained as withholding tax payable nor paid to the Australian Taxation Office on his behalf.
Nevertheless, the Australian Taxation Office assessed the information as though it were true and paid the sum of $7,928.86 into Mr Thorn’s bank account. Most of that money was then paid out into a bank account in the name of Mr Thorn’s father.
Count 2 involved the submission of an income tax return by Mr Thorn in the name of another detainee at the AMC but, in this case, using a bank account in the name of Mr Thorn’s then girlfriend.
The Australian Business Number used was that of a sole trader who stated that he had never employed the detainee during the 2010 financial year or at any other time. The detainee was in receipt of Centrelink benefits or detained at the AMC during the period.
Nevertheless, the income tax return was assessed and, following the assessment, the Australian Taxation Office paid $6,446 into Mr Thorn’s girlfriend’s bank account, funds that were then disbursed, including to Mr Thorn’s mother.
Later, Mr Thorn submitted an income tax return for another detainee with another stated bank account belonging to a woman not then in custody, but who appears to have been an associate of Mr Thorn. This was count 3.
Mr Thorn used the same Australian Business Number as in count 2 and, again, the owner of the business confirmed that the detainee had not been employed by the business during the 2010 financial year or at any other time. The detainee was, in fact, in receipt of Centrelink benefits and did not earn the alleged sum of $82,524 as claimed in the income tax return and the claimed withholding tax of $28,462 had not been paid to the Australian Taxation Office on his behalf.
Nevertheless, the Australian Taxation Office determined that a tax refund in the sum of $26,765.02 was payable, but the amount was not released as the income tax return was selected for audit. A letter was sent to the detainee requesting further information. When no response was received, the Australian Taxation Office amended the income tax return by reducing the salary, wages and tax withheld amounts to nil.
Mr Thorn had a conversation with an associate of his who was the owner of the bank account nominated in the return, making arrangements for the disbursement of the money once it was paid into the bank account. In that phone call, Mr Thorn made it clear what he was doing, that he was doing it to obtain money, that he was taking precautions not to get detected and almost boasting about how many fraudulent returns he had prepared.
Count 4 involved a further income tax return submitted by Mr Thorn in the name of another detainee stating another Australian Business Number and suggesting that the detainee had earned $31,112 and that $15,118 had been withheld as tax and paid to the Australian Taxation Office. It noted as the bank account into which any refund was to be paid as the account of another woman with whom Mr Thorn made arrangements, including that she give him the details of the bank account and distribute payment from it, including a sum to his mother.
The Australian Business Number stated was not a valid number and no withholding tax had been received from the Australian Taxation Office. The detainee had been a detainee at the AMC for a substantial period of the 2010 financial year and received Centrelink benefits thereafter. He did not earn the sum claimed as wages and the sum claimed as a result of withholding tax had not been paid to the Australian Taxation Office.
The Australian Taxation Office, however, assessed the income tax return and determined that $2,328.48 was payable and transferred the sum into the bank account.
Mr Thorn called the owner of the bank account from the AMC and told her to disburse the funds, some to herself, some to the detainee and the rest to him, apparently through his mother.
In fact, because of the amount received, which was less than Mr Thorn expected, Mr Thorn’s mother was given only $800 on his behalf.
The fifth count involved a similar operation where Mr Thorn submitted an income tax return for another detainee referring to another Australian Business Number and stating that the detainee had earned $31,112 of which $15,118 had been withheld as tax and paid to the Australian Taxation Office.
The detainee had been employed by another company but was only paid wages of $480 and only $21 tax was withheld and he did not earn the sum claimed nor had the amount stated as withholding tax been paid to the Australian Taxation Office.
For the expected refund, Mr Thorn provided the details of the detainee’s own bank account and the Australian Taxation Office determined from assessment of the income tax return that a refund in the sum of $1,728.48 was payable. It was deposited into the detainee’s bank account. Later, $680 was transferred to Mr Thorn’s bank account.
The sixth count involved a similar operation in the name of another detainee but using the same bank account as used for count 5.
The income tax return referred to an Australian Business Number that belonged to a sole trader who had not employed the detainee in the 2010 financial year or at any other time.
The income tax return stated that the detainee had earned $37,008 and that $25,370 had been withheld as tax and paid to the Australian Taxation Office. That was incorrect.
That income tax return, however, was referred for an audit by the Australian Taxation Office before any funds were released and was subsequently amended to remove the claim for tax withheld and to include Centrelink payments which had not been disclosed.
Had the income tax return been processed, it would have resulted in a refund of $8,204.96.
It appears that, instead, the detainee was assessed as owing money to the Australian Taxation Office.
Count 7 involved the lodgement of an income tax return for another detainee stating the bank account details which were, in fact, the bank account details of Mr Thorn’s sister.
The income tax return referred to an Australian Business Number that was not a valid number and did not belong to any entity. It stated that the detainee had earned $37,068 and that $25,370 had been withheld as tax and paid to the Australian Taxation Office.
The detainee did not earn that sum and no sum had been withheld nor paid to the Australian Taxation Office on his behalf.
An assessment of the income tax return determined that a tax refund in the sum of $8,167.16 was payable but the amount was not released by the Australian Taxation Office and no money was paid to the bank account.
In August 2011, Mr Thorn submitted a further income tax return for himself referring to his own bank details for payment of the refund. This was count 8.
He used the same Australian Business Number as used to commit the offence in count five and asserted that he had earned $46,000 with $15,118 being withheld as tax and paid to the Australian Taxation Office.
Mr Thorn was detained at the AMC for the entirety of the 2011 financial year and did not earn the sum of $46,000 nor had the sum of $15,118 been withheld and paid to the Australian Taxation Office on his behalf.
Later, Mr Thorn lodged a second income tax return by telephone for the 2011 financial year with identical information. The paper income tax return was cancelled.
An assessment of the income tax return determined that a tax refund of $8,626.11 was payable but the income tax return was selected for audit and the Australian Taxation Office sent a letter to Mr Thorn requesting verification of the amounts. When no response was received, the Australian Taxation Office amended the income tax return by removing the $15,118 tax withheld.
Count 9 related to a further income tax return lodged by Mr Thorn in the name of another detainee who was housed with Mr Thorn at the AMC in March 2011.
The bank account details for refunds in this case were those of Mr Thorn.
The income tax return stated an Australian Business Number that was that of a company which did not employ the detainee in the 2010 financial year or at any other time. The income tax return claimed that the detainee had earned $31,112 and $15,118 had been withheld as tax and paid to the Australian Taxation Office. In fact, during the financial year the detainee was in receipt of Centrelink benefits or detained at the AMC and did not earn the sum of $31,112 nor was the sum of $15,118 withheld and paid to the Australian Taxation Office. The income tax return was not processed. If it had been processed, it would have resulted in a refund of $1,728.48.
The offence
The offences committed by Mr Thorn are offences intended to defraud the Australian taxation system. Such offences have consistently been held by the courts to be a serious matter. Thus, in R v Stitt (1998) 102 A Crim R 428, Dunford J, with whom Beazley JA and Wood CJ at CL agreed, said at 430:
Fraud on the Taxation Department [sic] is a serious offence ... It is, in a very real sense, not only a fraud on the Department [sic] as such, but a fraud on all other taxpayers who lawfully pay what is due for the maintenance of our governments, their institutions and services for the common good.
As noted above, (at [2]), the taxation system relies on self-assessment. A breach of that system amounts to a breach of trust because of the abuse of that system. See, for example, The Queen v Voll [2014] QCA 170 at [5]-[8], [14]. See also, R v Camp (Unreported, District Court of Queensland, Wall DCJ, 6 June 2013) at 2.
In R v Hawkins (1989) 45 A Crim R 430 at 435, the Court noted that the amount of money involved was a “significant matter for consideration” in determining the gravity of such offences. In this case, the total amount paid out by the Australian Taxation Office was $18,431.82. It is a significant sum, though not even among the largest that have been paid out in frauds on the revenue. Nevertheless, the amount is a circumstance of some aggravation.
Similarly, the conduct continued over some time. This meant that the dishonest conduct was deliberate and not isolated or opportunistic. Indeed, it involved a degree of planning and premeditation, as can be seen from the arrangements that had to be made first for the identification of the relevant bank account and, thereafter, for the disbursement of the funds from that account.
Thus, while the offences may be regarded as not “particularly sophisticated”, there is still “a degree of planning and deception involved”: R v D’Altera (Unreported, District Court of Queensland, Jones DCJ, 2 May 2012) at 3. This is also an aggravating feature.
As Rares J said in R v Miles [2015] ACTSC 162 at [70]-[72], of similar offences:
This was a calculated, pre-meditated series of crimes against not just the ATO, but the whole community ...
This type of fraud is not easy to detect. It can only occur because of the trust that the community places in taxpayers, to self-assess their liability to taxation. There is a strong need for deterrence and punishment for this kind of offence.
In addition, the offences constituted a course of conduct. While that factor is required to be taken into account under s 16A(2)(c) of the Crimes Act 1914 (Cth), there are two senses in which that term is used. In one sense, it is used as describing a single criminal enterprise with various aspects so that the offences are part of a single course of conduct (R v Farris (2015) 301 FLR 230 at 232; [6], R v de Leeuw [2015] NSWCCA 183 at [177]). In that case, there is a likely overlap of the criminality of each of the counts.
In this case, however, the course of conduct means something different, namely part of a continuous predatory operation on the revenue system of the Commonwealth. It appears that, after the first successful attempt by Mr Thorn in obtaining a refund, he was encouraged to continue the conduct with the sole intention of obtaining money to which he, and the others participating in the enterprise, were not entitled.
Thus, as Templeman J pointed out in Chief Executive Officer of Customs v Lin [2007] WASC 314 at [105]:
Paragraph (c) requires account to be taken of the course of conduct, if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character … Each offence is necessarily more serious than the offence which preceded it because the first defendant became a repeat offender to an ever-increasing extent. There is every reason to assume that the first defendant would have continued his course of conduct if it had not been discovered.
To the same effect were the comments of Hall J, with whom Hoeben CJ at CL and Wilson J agreed, in BAE, Kangmin v The Queen [2015] NSWCCA 133 at [81]-[82], as follows:
81.Whilst each of the offences in Counts 1 to 5 were committed within a period of months as part of one scheme or enterprise, they each involved separate acts of aiding/abetting the prohibited importation of significant quantities of prohibited drugs. Each involved its own deliberate planned contravention of the Crimes Act. In my opinion, the fact that they took place in the course of a single enterprise does not mean that they may be properly characterised as merely involving a single course of conduct.
82.The mere temporal relationship between the series of offences, [sic] does not, of course, mean that by virtue of that fact the criminality of one importation can or does encompass the criminality of another or other offences. Each, on the evidence, involved a deliberate and very serious contravention of the provisions of ... the Criminal Code.
In addition, the losses resulting from the tax fraud had not only an impact on the Commonwealth and the wider community through the risk to services and infrastructure unable to be provided but, as McLure P stated in R v Host [2015] WASCA 23 at [24]:
... the real victims of such conduct are the members of the Australian community as a whole because it reduces the funds available for essential and other services and increases the taxation burden on honest taxpayers.
Thus, the offences were serious, with aggravating features and amounting to a sustained, predatory attack of the Commonwealth revenues.
Subjective circumstances
I had a Pre-Sentence Report and a Forensic Mental Health Report. Mr Thorn also gave oral evidence before me. From this evidence, I make the following findings.
Mr Thorn was born and raised in Canberra and is the third eldest of six children. He is 28 years of age.
He had a dysfunctional and traumatic childhood where he was exposed to neglect, violence and drug abuse. It was said that, since he was 2, he has had no contact with his father, who he described as a violent man, although one of the bank accounts he used in his offending was that of his father.
Mr Thorn was removed from his mother’s custody and placed in foster care from the age of 12, but reported suffering from physical and sexual abuse during his time in foster care. This resulted in time he spent living on the street. As a result, he has a strained relationship with his mother, although he appears to have been supported and encouraged by her while in custody and, indeed, his mother received some of the funds that were paid to Mr Thorn and others in connection with the offences.
Mr Thorn is currently in a relationship and his partner is described by him as “a positive and pro-social influence on [him]”. He has also had regular contact with his immediate and extended family. They appear to have supported him. He plans to live with his partner when he is released from custody.
Mr Thorn has spent a significant portion of his adolescence and his adult life in custody, indeed, nearly all his adult life. This has impacted on his ability to engage with main stream education. He has limited employment history, though he had been employed as a roof tiler for several weeks in 2008. He has expressed a desire to seek and maintain full-time employment, but this will be a significant challenge for him. He cannot presently obtain employment in the AMC for he is, at his own request, housed in the Management Unit.
Mr Thorn has a history of polysubstance abuse that commenced before his teenage years. Indeed, he commenced regular use of cannabis at approximately ten years of age, a very young age, well before he could make an informed decision about such use. This is relevant to sentencing for the addiction, in such circumstances where the addiction causes or contributes to his criminality, reduces his moral culpability. See Douglas v The Queen (1995) 56 FCR 465 at 470.
This is, perhaps, of less significance here for, while his incarceration was a result of the commission of offences caused or contributed to by his drug addiction, the commission of the current offences cannot be so characterised. Nevertheless, his addiction has led him to associate with people known to the criminal justice system and his personal circumstances mean that this has an undue effect on him.
Mr Thorn ceased consumption of cannabis when he was fifteen because he recognised the ill effects of it on his mental health. He has had only used irregularly, about six times, since then.
His use of cocaine, ecstasy, heroin, methylamphetamine, amphetamine and benzodiazepines escalated, however, from when he was approximately aged eighteen. His drug of choice since then has primarily been methylamphetamine. He would binge on methylamphetamine whenever possible and maintain this level of use until approximately eighteen months ago.
He has now expressed “a level of disgust” at his history of illicit substance abuse and, confirmed in his oral evidence to me, wishes now to remain free from illicit substances and concentrate on a commitment to pro-social change. He commenced pharmacotherapy approximately six years ago and spoke to the author of the Pre-Sentence Report about this matter.
Nevertheless, these offences are worrying and the Pre-Sentence Report also notes that he has been subject to disciplinary action on multiple occasions in the AMC, including refusing to provide a sample of urine for analysis and with urinalysis results proving positive for illicit and non-prescribed substances. I did not, however, have the dates of such infractions and I am prepared to accept that, more recently, he has been abstinent.
Mr Thorn has been subject to mental impairment for most of his life. He has been diagnosed as the subject of multiple mental health conditions. He has been assessed as having a psychotic illness and possibly a mood disorder.
A comprehensive assessment undertaken in 2004 suggested that he had untreated but recently diagnosed ADHD. He has, on many occasions, been prescribed anti-psychotic medication. This has proved relatively effective in custody but he frequently missed appointments with mental health providers while in the community.
As a result, he has been placed on a number of psychiatric treatment orders, the first being in 2007 with treatment provided by long-acting depot-medication. He has, since then, been further subject to psychiatric treatment orders.
Unfortunately, although he is described as “an intelligent and persuasive individual when relatively stable”, he then, it appears, “may lose some insight and has refused treatment on more than one occasion”.
Mr Thorn has on-going problems with medication which were set out in the Forensic Mental Health Report. I do not need to repeat them here.
The upshot is that when he is adherent to his medication he appears to be relatively well but, in the community, he tends not to maintain regular contact with mental health providers. This has often resulted in offending which has meant a return to custody.
The latest psychiatric treatment order was revoked in 2013 and it appears that the last occasion on which a mental health provider saw Mr Thorn was in May 2014.
The Pre-Sentence Report, however, records that he has had regular contact with the Hume Health Centre (the Health Centre within the AMC) in relation to general health issues but has demonstrated a level of non-compliance with appointments.
My assessment is that Mr Thorn’s mental impairment is a significant indirect contributor to his offending. It seems to me he is vulnerable and easily led, with some limited capacity to appreciate all the consequences of his actions. Nevertheless, his participation in the offending had a significant level of culpability. I do not consider that his mental impairment contributed directly in any significant way to the commission of these offences.
Mr Thorn attributed his behaviour to a level of intoxication from prescribed and illicit substances and expressed to the author of the Pre-Sentence Report “a disbelief at being able to secure large sums of money from the Tax Office” and claimed the continuation of his offending was an attempt to gain financial benefit “for as long as possible”.
He suggested that he was “directed” to submit tax claims by other more mature detainees. While this has a capacity to minimise his involvement, I am not prepared, in the circumstances, to reject Mr Thorn’s claims of pressure applied to him. It seems to me consistent with his presentation and not intended to detract from his open acceptance before me of responsibility for his offending.
Mr Thorn has a long and depressing criminal history. It commenced when he was about twelve years old. Initially, many of the offences were assaults but gradually they became dishonesty offences. He has a total of one hundred and thirteen offences on his criminal record, the vast majority of which are dishonesty offences (eighty-seven offences), largely theft, burglary and dishonestly driving or riding in a motor vehicle without the owner’s consent. He also has some offences of possession of drugs and of damaging property.
He has spent much time, including most of his adult life, in custody. He says, however, that he now really wants to try to turn his life around.
He must, of course, not be punished again for these offences, but they are part of his antecedents and affect considerations such as his likelihood of re-offending, his attitude to disobedience to the law, his moral culpability and his prospects for reform. See Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
Consideration
Under s 16A of the Crimes Act, the court is required, for federal offences, to impose a sentence “that is of a severity appropriate in all the circumstances of the offence”.
In addition to other matters, the court must take into account matters set out in s 16A(2) of the Crimes Act. These are, in addition to any other relevant matters.
I shall deal with those matters serially:
Section 16A(2)(a) – Nature and circumstances of the offences
I have set out above (at [10]-[44]), the nature and circumstances of the offences. They were serious offences which, while unsophisticated, did involve a degree of pre-meditation and planning. They constituted a serious attack on the integrity of the Australian taxation system.
Section 16A(2)(b) – Taking account of other offences
There are no other offences to take into account.
Section 16A(2)(c) – Course of conduct
I have described above (at [51]-[54]), that these offences were a course of conduct which, in the circumstances, renders the offences continuing somewhat more serious.
Section 16A(2)(d) – Personal circumstances of any victim
While the offences do render the Commonwealth and, indeed, the Australian taxpayer, victims of the offences, there are no particular personal circumstances of any individual that are relevant.
Section 16A(2)(e) – Loss
I have described above the loss to the community of $18,431.82. It is a significant loss although by no means a large scale amount as is sometimes seen in such offences.
Section 16A(2)(ea) – Victim Impact Statement
Given that there are no individual identifiable victims, no victim impact statement has been provided.
Section 16A(2)(f) – Remorse
Mr Thorn did express remorse when he gave oral evidence before me. He expressed an intention to move on with his life and put his horrendous criminal history behind him. This will be very challenging for him and, although I accept the sincerity of his expressions and will attempt to construct a sentence that will re-inforce his commitment, I express some reservations about his ability to follow through with that when released from custody. Nevertheless, I accept that he has expressed remorse and that his expressions were not challenged when he gave his oral evidence. On the other hand, he has taken no action to make any reparation for the losses resulting from the offences and is unlikely to be able to do so for a very long time, if at all.
Section 16A(2)(fa) – Contribution to Pre-Trial Disclosure
This is not relevant in these proceedings.
Section 16A(2)(g) – Plea of Guilty
Mr Thorn pleaded guilty on 23 May 2016. Although he initially appeared in person in the Magistrates Court, he was represented until his committal for trial on 11 February 2016. He was initially unrepresented in this Court and, although unrepresented when he entered a plea of guilty, a solicitor appeared on that occasion as amicus curiae, that solicitor being from the firm which ultimately represented Mr Thorn.
In the circumstances, the plea was not made at the earliest opportunity but it was before a date for trial had been set and was accepted by the Crown to have been a relatively early plea.
In Cameron v The Queen (2002) 209 CLR 339 at 343; [11]-[14], the Court held that a guilty plea may indicate several factors in mitigation including evidence of remorse, acceptance of responsibility and “willingness to facilitate the course of justice”.
Although this was a strong prosecution case which, as pointed out in Ferrer-Esis (1991) 55 A Crim R 231 at 238, means that a discount has less value, it seems to me that some discount is appropriate in these circumstances.
Section 16A(2)(h) – Co-operation with law enforcement agencies
There was no particular co-operation involved in this case.
Section 16A(2)(j) – Specific Deterrence
Both specific and general deterrence have a part to play in this case. Mr Thorn is currently serving a head sentence of four years and nine months for various offences including theft and burglary. I have noted his criminal convictions above.
These current offences were committed while he was in custody and this indicates the need for a significant level of specific deterrence.
As noted in Comptroller-General of Customs v Parker (No 3) [2006] NSWSC 1269 at [21], specific deterrence is not merely to deter an offender from repeating precisely the conduct the subject of the offences but has a broader purpose to deter the offender from engaging in other forms of dishonesty. In this case, that particularly means dishonesty relevant to revenue.
There is a need for specific deterrence.
Section 16A(2)(ja) – General Deterrence
General deterrence is a relevant factor and particularly relevant where, as here, the offences are easy to commit and difficult to detect. This is necessary to resist any notion that governments “are fair game” for this type of activity: R v Camp.
To support the system of self-assessment, general deterrence is important to preserve its integrity: R v Host at [30].
It is also worth noting, as the Victorian Court of Appeal did in Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145 at [53], that special emphasis on general deterrence is required in the case of taxation offences because, as I have noted above (at [103]), they are not particularly easy to detect and, if undetected, produce great rewards and great loss to the Commonwealth.
Section 16A(2)(k) – Adequate Punishment
There is no doubt that significant punishment is required in this case. In my view, a sentence of imprisonment is the only sentence that can be imposed.
Section 16A(2)(m) – Character, Antecedents, Age, Means and Physical and Mental Condition of the Offender
I have set out above (at [57]-[82]), the details of Mr Thorn’s age, antecedents, character, means and physical and mental condition. They should be taken into account.
Section 16A(2)(n) – Prospects of Rehabilitation
The Crown submitted that there was minimal evidence of good prospects for Mr Thorn’s rehabilitation. To some extent that is true. Nevertheless, he did say to me in oral evidence that he was committed to his rehabilitation. He said he really wants to turn his life around. There is some support for that in that he asserted to me, without contradiction, that he had voluntarily asked to be placed in the Management Unit of the AMC so that he could be separated from other offenders who would have, to put it bluntly, “a bad influence on him”. I have already indicated (at [77]), that my assessment is he is easily led. While his separation in the AMC will be of value, the real test will be when he returns to the community and, while I am satisfied that he genuinely intends to do what he can to remain crime and drug free, I have significant reservations about the likelihood of that.
He has also abstained, at least recently, from consuming illicit drugs and intends to remain abstinent. He has also committed to obtaining employment on his release, though he may find that a challenge. He has been taking an anti-psychotic medication and is sufficiently compliant as not to be required to be subject to a psychiatric treatment order, though he does not consult with mental health providers.
He says he feels a different person. He also says that he wants to be under parole. While I cannot do that, I can make a probation order. He also says that he now knows where to go for help when things go wrong.
In custody, he has been involved in some activities around landscaping and permaculture. He says that this may give him the chance for employment on his release. Further, his godmother conducts a car detailing business and has offered him employment. He wants, in the long term, to be a youth worker.
Thus, having regard to these matters, I cannot say that he has no prospects of rehabilitation but, nevertheless, I accept the caution expressed by the Queensland Court of Appeal in R v Holzberger [2007] QCA 258 at [19], where the Court said:
The judge was entitled to consider that those efforts of rehabilitation must be treated with some circumspection in the light of his persistent past recidivism.
See also Govinden (1999) 106 A Crim R 314 at 319; [35].
Comparable Cases
In addition to these matters, I was assisted by reference to comparable cases. Without trespassing beyond the permissible bounds of prosecutorial submissions set out in Barbaro v The Queen (2014) 253 CLR 58 at 73; [38], I found these useful for sentencing principles and as comparable sentences to which the High Court makes clear I should have regard.
I have regard to R v Miles to which I have made reference above. A difficulty with the matters involving Mr Miles is that he was sentenced at the same time for a large number of Territory offences. Nevertheless, a careful perusal of the decision shows some assistance in the approach to be taken.
I also have regard to the decision of Burns J R v Craig [2016] ACTSC 26, where his Honour dealt with seven offences of the same kind. It appears that there was something of an “industry” about this offending within the AMC in the years 2009 and 2011. Mr Craig submitted the income tax returns between 15 June 2009 and 23 June 2011. Mr Thorn’s offending consisted of submitting tax returns between 15 November 2010 and 25 August 2011, over a period of some nine months.
Again, the principles and approach of the Court in that decision were helpful.
Finally, I was referred to the decision of Burns J in R v Potts [2016] ACTSC 190. Again, it was useful in understanding the general approach that has been taken to these matters, though it was a rather different matter.
Delay
I note that the most recent offence was committed by the lodgement of a tax return in 2011.
I accept that the investigation of the returns was complicated. Indeed, it was clear from the Statement of Facts that was tendered by consent and admitted into evidence that significant forensic evidence was required in connection with the investigation. Nevertheless, there was a significant delay before Mr Thorn was charged on 24 September 2015 and that was really unexplained.
As pointed out in Blanco (1999) 106 A Crim R 303 at 306: “a sentence for a stale crime does call for a measure of understanding and flexibility of approach”. Further, fairness to an offender requires consideration of how the offender presents at the time of sentence rather than when the offence was committed: R v Todd [1982] 2 NSWLR 517 at 519-20. In this case, Mr Thorn has taken some steps to improve his rehabilitation. As I have noted above, he states that he has tried to make himself a “different person”. He remains on his medication and has not used drugs. He has specifically placed himself in the Management Section of the AMC to limit contact with other offenders.
This is very relevant in considering how to take the delay into account.
Interaction with Territory offences
As noted above (at [99]), Mr Thorn is currently serving a significant sentence of imprisonment for Territory offences. This has two important consequences. The first is in relation to the determination of when the sentence which I must impose should begin. The second is that I must bear in mind issues of totality to ensure that the sentence is not such as to destroy any realistic prospect of reform or hope for achievement of Mr Thorn’s goals when, ultimately, he is returned to the community.
As to the start date of the sentence, I was informed that Mr Thorn’s non parole period expired on 8 December 2015.
The interaction between Commonwealth and Territory sentences can be complicated. In this case, it seems to me, it is regulated by s 19 of the Crimes Act, which relevantly provides:
19. Cumulative, partly cumulative or concurrent sentences
(1)Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that:
(a)no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(b)if a non-parole period applies in respect of any State or Territory sentences - the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.
It may be accepted that the intention of the section is to ensure that there is “no hiatus between release on the State sentence and the commencement of the Federal sentence”: Mercanti v The Queen (2011) 210 A Crim R 213 at 216; [14].
If the court relied on the purpose of the section alone, then I could commence the sentences today because Mr Thorn remains in custody, he having not been granted parole from the date when his non parole period ended.
In my view, however, that would not be consistent with the section. The section makes it clear that the sentence must commence “immediately after the end of the [non parole] period”. There is no reason not to give the plain words of the section their ordinary meaning. The consequence of that, of course, is that there is a degree of concurrency where, at the end of a non parole period, the offender is not granted parole. That will apply here. In my view, that must have been in contemplation of the legislature and it is not permissible to ignore the plain words of the legislation to give some other effect to the stated purpose.
Accordingly, I will commence the sentence from 9 December 2015.
Disposition
As noted above (at [106]), I consider that no sentence but a sentence of imprisonment is appropriate. There are multiple sentences to be imposed, each of which must result in an appropriate sentence, as required by Pearce v The Queen (1998) 194 CLR 610. I have regard, however, to the totality of the imprisonment to be imposed and, in those circumstances, have regard to the extent to which the sentences should be partly or wholly concurrent. In my view, while there is some overlap of criminality between the offences because of the nature of the enterprise, particularly the continuation of the offending, they are not really part of a single enterprise that would require a high degree of concurrency.
I regard the offences where money was actually paid to Mr Thorn or his associates to be the more serious offences and, as noted above, the more funds received, the more serious the offence. Similarly, the more funds sought to be received, the more serious the offence. This can be reflected in either the head sentence or the degree of cumulation. It is not a perfect mathematical exercise, but designed to set a total sentence that is adequate punishment, reflecting the total criminality.
Nevertheless, I must then review the length of the term of imprisonment arrived at to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed but not more than that. That may require some further degree of concurrency to ensure that the sentence does not exceed the adequate punishment for the whole of the criminality committed.
I note that under s 19AC of the Crimes Act, I must set a single recognizance release order for the sentences I must impose if they do not exceed 3 years in aggregate. The terms of such an order must comply with s 20 of the Crimes Act.
Mr Thorn, please stand:
1. I convict you of submitting a false income tax return on 15 November 2010, intending to cause a loss to the Commonwealth.
2. I sentence you to 15 months imprisonment to commence on 9 December 2015. Had you not pleaded guilty, I would have sentenced you to 20 months imprisonment.
3. I convict you of submitting a false income tax return on 21 January 2011, intending to cause a loss to the Commonwealth.
4. I sentence you to 15 months imprisonment to commence on 9 March 2016, that is to be cumulative as to 3 months on the first sentence. Had you not pleaded guilty, I would have sentenced you to 20 months imprisonment.
5. I convict you of submitting a false income tax return on 16 March 2011, intending to cause a loss to the Commonwealth.
6. I sentence you to 12 months imprisonment to commence on 9 September 2016, that is to be cumulative as to 3 months on the second sentence. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
7. I convict you of submitting a false tax return on 10 May 2011, intending to cause loss to the Commonwealth.
8. I sentence you to 12 months imprisonment to commence on 9 November 2016, that is to be cumulative as to 2 months on the third sentence. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
9. I convict you of submitting a false tax return on 7 June 2011, intending to cause loss to the Commonwealth.
10. I sentence you to 12 months imprisonment to commence on 9 January 2017, that is to be cumulative as to 2 months on the fourth sentence. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
11. I convict you of submitting a false tax return on 15 July 2011, intending to cause loss to the Commonwealth.
12. I sentence you to 12 months imprisonment to commence on 9 April 2017, that is to be cumulative as to 3 months on the fifth sentence. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
13. I convict you of submitting a false tax return on 17 July 2011, intending to cause loss to the Commonwealth.
14. I sentence you to 12 months imprisonment to commence on 9 July 2017, that is to be cumulative as to 3 months on the sixth sentence. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
15. I convict you of submitting a false tax return on 24 August 2011, intending to cause loss to the Commonwealth.
16. I sentence you to 12 months imprisonment to commence on 9 October 2017, that is to be cumulative as to 3 months on the seventh sentence. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
17. I convict you of submitting a false tax return on 25 August 2011, intending to cause loss to the Commonwealth.
18. I sentence you to 12 months imprisonment to commence on 9 December 2017, that is to be cumulative as to 2 months on the eighth sentence. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
19. That is a total sentence of 3 years to commence on 9 December 2015.
20. I order that, on 12 July 2017, you be released upon giving security in the sum of $100 to be of good behaviour for a period of 3 years and that you be subject to supervision by the Director-General of the Directorate of Justice and Community Safety or her delegate for the period of 3 years or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of that person as to treatment or counselling for alcohol and drug use and mental impairment.
[His Honour then spoke directly to Mr Thorne]
Mr Thorn, you probably understand what all that means but I am obliged to explain it to you. In brief, I have indicated the three years is the sentence that I impose for the criminality that you committed in your personal circumstances. These were serious offences and require a stern response. Nevertheless, I have started those sentences from 8 December 2015 so there is a degree of concurrency with your current sentence because that is what I believe the law actually requires.
I have set a recognisance release order. There is a non parole period but it does not go through the Sentence Administration Board. There is an automatic release so long as you have parole at that stage and are not retained for the Territory offences. If you have parole at that point, and indeed your sentence may have expired by then, then you will be released on 12 July 2017. That is 12 months from today which is, in my view, the time that you should directly additionally spend in custody for these offences. That is serious and I appreciate that you have spent a long time in custody.
| I certify that the preceding one hundred and thirty-nine [139] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 19 August 2016 |
You are now committed, you tell me, to your reform. It is going to be a challenge for you. I hope that you will be able to use the time left in custody to learn skills that you will need in the community; to remain abstinent from drugs; to remain compliant with mental health providers; to keep away from pro-criminal associates and to return to the community as crime free and not to be returned to the courts for further sentencing. That will be a very significant challenge for you.
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