Read v The Queen - [2020] WASCA 56

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   READ -v- THE QUEEN [2020] WASCA 56
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   5 DECEMBER 2019
DELIVERED          :   17 APRIL 2020
FILE NO/S:   CACR 35 of 2019
BETWEEN:   SHANE PAUL READ
Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STONE DCJ
File Number            :   IND 2059 of 2018

Catchwords:

Criminal law - Appeal against sentence - Obtaining a financial advantage from a Commonwealth entity by deception - Attempting to obtain a financial advantage from a Commonwealth entity by deception - Whether sentence infringed first limb of the totality principle - Whether judge erred in not imposing a lesser non‑parole period

Legislation:

Crimes Act 1914 (Cth), s 16A(1), s 16A(2), s 17A(1)
Criminal Code Act 1995 (Cth), s 11.1(1), s 134.2(1)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	M McCarthy
Respondent	:	A J C Mossop

Solicitors:

Appellant	:	Preece Legal
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Beard v The Queen [2003] WASCA 262
Gok v The Queen [2010] WASCA 185
Ly v The Queen [2007] NSWCCA 28
R v Abbas [2019] WASCA 64
R v Baunach [1999] QCA 207
R v Host [2015] WASCA 23; (2015) 248 A Crim R 352
R v Melrose [2016] QCA 202
Ramanah v The Queen [2006] WASCA 112
Stamatopoulos v The Queen [2018] WASCA 148
Stipkovich v The Queen [2018] WASCA 63
Thompson v The Queen [2005] WASCA 223

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was convicted in the District Court on his pleas of guilty of 25 counts of obtaining a financial advantage by deception from a Commonwealth entity, contrary to s 134.2(1) of the Criminal Code (Cth) (the Commonwealth Code), and one count of attempting to obtain a financial advantage by deception from a Commonwealth entity, contrary to s 11.1(1) and s 134.2(1) of the Commonwealth Code.
On 21 February 2019, Stone DCJ (the sentencing judge) imposed on the appellant a total effective sentence of 4 years' imprisonment, with a non‑parole period of 2 years. The sentencing judge ordered that the sentence commence on 21 February 2019.
The details of the individual sentences that were imposed are set out in the schedule to these reasons. None of the individual sentences are challenged in this appeal.
The appellant advances three grounds of appeal. As counsel for the appellant accepted in oral argument, the principal contention of the appellant is captured in ground 1, which alleges that the total effective sentence and the pre‑release period infringed the first limb of the totality principle.[1] Ground 2 alleges that the learned sentencing judge erred by ordering a non‑parole period instead of release upon a recognisance with probation.[2] Ground 3 alleges that the learned sentencing judge erred by fixing a non‑parole period of 2 years instead of a lesser period.[3] The question of leave to appeal on all grounds was referred to the hearing of the appeal.[4]
[1] WAB 6 - 7.
[2] WAB 7.
[3] WAB 7 - 8.
[4] WAB 4.

The facts of the offending

The facts of the offending were not challenged before the sentencing judge or in this court. A statement of material facts was read to the sentencing judge by the prosecutor. That statement was incorporated by reference into the sentencing judge’s sentencing remarks.[5] The facts of the offending may be summarised as follows.
[5] ts 33.
At all material times, the appellant was a qualified, certified practising accountant and client manager in an accounting firm in West Perth.[6] He had been employed by that firm for 10 years. His duties included preparing, reviewing and approving income tax returns and business activity statements (BAS) for submission to the Australian Taxation Office (ATO) on behalf of his clients. The appellant had access to client information held by the ATO and was able to electronically file clients' income tax returns and BAS with the ATO.[7]
[6] ts 33.
[7] ts 33.
Between 16 May 2016 and 20 July 2017, the appellant, by deception, obtained from the ATO payments totalling $246,923.29 (counts 1 ‑ 25) and attempted to obtain from the ATO a further $4,266 (count 26).
The appellant employed three methods to obtain or attempt to obtain payments from the ATO.
First, the appellant altered the BSB and bank account details on income tax returns he submitted to the ATO so that refunds to which clients were entitled were paid into the appellant's personal bank account rather than the client's account.[8] The appellant committed 21 offences in this manner. Second, the appellant used his access authority to the ATO's Client Activity Centre to change clients’ BSB and bank account numbers so that refunds to which a client was entitled were paid to the appellant's personal account. The appellant committed four offences in this way. Third, the appellant submitted a false BAS claiming a refund on behalf of a client and directed that refund to be paid to his personal account. This method was used to commit the count of attempting to dishonestly obtain a financial advantage.
[8] ts 33.
The account into which the ATO paid the various sums was in the appellant’s name. The appellant was the sole signatory for this account.[9] It scarcely needs to be said that the appellant was not entitled to any of the moneys that were paid into this account. The appellant did not arouse suspicion in his clients because he repaid the refunds to them using funds he derived from subsequent offences before they became aware of his wrongdoing. In this way, as the appellant's counsel accepted in oral submissions to this court, the offending had the features of a Ponzi scheme.[10]
[9] ts 7.
[10] Appeal ts 5.
In late July 2017, an ATO auditor contacted a director of the appellant's accounting firm to alert him to the diversion of client funds to the appellant's personal account. At this point, it became inevitable that the appellant's deceptions would be discovered. On 31 July 2017, the appellant voluntarily met with the directors of the accounting firm and admitted to receiving client refunds into his personal account. He was immediately placed on indefinite leave, and on 2 August 2017 his employment was terminated.[11]
[11] ts 6 - 7.
On 14 June 2018, the appellant participated in a record of interview with investigators and made admissions in respect of the alleged offending. In the course of the interview the appellant stated that, at the relevant time, he was gambling, using drugs and experiencing financial hardship.[12]
[12] ts 12.
As at the date of sentencing, the appellant had repaid $244,968.37.[13] This left a debt to the Commonwealth of $1,938.99 which was the subject of a reparation order made by the sentencing judge.[14]
[13] ts 12 - 13.
[14] ts 14.

The appellant's personal circumstances

The appellant was 33 years old when he was sentenced. He had a good upbringing. After completing high school, he obtained a Bachelor of Business majoring in accounting and finance. He is a certified practising accountant. He has no prior criminal history.[15]
[15] ts 37.
The appellant became a cocaine user in his mid‑20s. By 2015 or 2016, the appellant was spending up to $40,000 a year on cocaine and claimed to be completely dependent upon the drug.[16] Over time he fell into debt and developed a gambling addiction.
[16] ts 37.
Between 2017 and 2018, the appellant was provided with psychological assistance through his employer to address his drug addiction and relationship issues.[17] The sentencing judge accepted that the appellant had not used illicit drugs since 2017 and that the appellant had 'managed to kick [his illicit drug] habit'.[18]
[17] ts 38.
[18] ts 37.
In the period of approximately 18 months prior to being sentenced, the appellant was employed as a machinery operator. Tests undertaken by the appellant's new employer had been negative to illicit substances.[19] Nearly all of the money the appellant earnt as a machinery operator was paid to his parents, who had provided the funds from which restitution was paid to the ATO.[20]
[19] ts 37.
[20] ts 37.

The sentencing remarks

The sentencing judge acknowledged the following mitigating factors:[21]
(1)The appellant pleaded guilty, which the sentencing judge said demonstrated remorse.
(2)The appellant cooperated fully with ATO investigators.
(3)The appellant voluntarily disclosed his offending to his employer on 31 July 2017 after the ATO spoke to one of his employers.
(4)The appellant made restitution of almost all of the amounts defrauded.
(5)The appellant took positive steps towards rehabilitation.
(6)The appellant is of prior good character.
(7)The appellant was assessed as having a low risk of reoffending in a like manner.
[21] ts 37 - 39.
The sentencing judge identified the following aggravating factors:[22]
(1)The offending was a calculated and systemic fraud, as a result of which the appellant obtained a substantial amount of money - $246,923.29 - and attempted to obtain a further $4,266.
(2)The offending occurred over an extended period of approximately 14 months.
(3)The appellant deliberately submitted false documentation to the ATO on 26 occasions in a scheme that involved considerable effort and concealment. The appellant employed three separate methods of offending that involved 'numerous dishonest acts'.[23]
(4)The offending constituted a gross breach of trust. The appellant was a senior account manager for his employer and he was an authorised tax agent acting on behalf of his clients. The offending behaviour was in breach of the trust reposed in the appellant by the ATO, his employer, his clients and his profession.
(5)The appellant committed the offences for commercial gain. The money he obtained was used to repay debts, fund his gambling and to obtain illicit drugs for his personal use. The sentencing judge noted that, in his record of interview, the appellant acknowledged that he knew at the time he committed the offences that his actions were completely wrong.[24]
(6)The appellant’s offending was difficult to detect.
(7)The appellant's prior good character and his position as a certified practising accountant enabled him to cheat the ATO and the honour system upon which the remittance of income tax refunds is predicated.[25]
[22] ts 34 - 35.
[23] ts 35.
[24] ts 36.
[25] ts 36.
The sentencing judge observed that the appellant's offending 'struck at the very heart of the [taxation] system' and that the appellant took advantage of what the appellant described in his interview with the ATO's investigators as 'a gaping hole in their system'.[26]
[26] ts 36.
The sentencing judge took into account the matters set out in s 16A(2) of the Crimes Act 1914 (Cth) insofar as they were known and relevant. The sentencing judge stated that general and personal deterrence played a significant role in the sentencing process given the systematic and persistent nature of the offending and the substantial sum of money that he obtained.[27] The sentencing judge concluded, having regard to all of the relevant circumstances, including the mitigating factors, that the offences were so serious that the only appropriate disposition was a sentence of imprisonment.[28] After imposing a sentence of 2 years' imprisonment on each count, the sentencing judge turned to consider issues of concurrence, accumulation and totality. The sentencing judge said:[29]
Having regard to the seriousness and repetitive nature of your behaviour, but mindful of your personal circumstances, including your full and frank disclosure to your employer and the ATO and the restitution, I am of the view that the appropriate head sentence that responds appropriately to your criminality is one of 4 years' imprisonment.
[27] ts 44.
[28] ts 44.
[29] ts 45.
The sentencing judge then turned to the question of the fixing of a non‑parole period. The sentencing judge said:[30]
In fixing the non‑parole period, I place particular weight on your early plea[s] of guilty, previous good character, the restitution you made, the full and frank disclosure that you made, and your prospects of rehabilitation which indicate you're at low risk of reoffending in a similar fashion.
In my view, it is clearly in the interest of the community for you to have a graduated release into the community under supervision of [a] community corrections officer. In my view, this will maximise your prospects of successfully re‑integrating back into society after your term of imprisonment.
[30] ts 46.

The parties' submissions

Counsel for the appellant accepted that the three grounds of appeal overlapped.[31] He accepted (correctly) that ground 2 added nothing to ground 1 in that if ground 1 was not made out then ground 2 could not succeed.[32] Counsel for the appellant maintained ground 3.
[31] Appeal ts 2.
[32] Appeal ts 2 - 3.
In respect of ground 1, the appellant submitted that the total effective sentence, as to both the head sentence and the non‑parole period, infringed the totality principle. The appellant submitted that the head sentence should have been no more than 3 years' imprisonment and the non‑parole period (or recognisance release order) should have been no more than one‑third of the head sentence.[33]
[33] WAB 12 - 13.
In support of this contention, the appellant submitted that the total effective sentence was inconsistent with the outcomes in a number of cases said to be comparable, being Stamatopoulos v The Queen;[34] R v Melrose;[35] Gok v The Queen;[36] Ly v The Queen;[37] Ramanah v The Queen;[38] Beard v The Queen[39] and R v Host.[40]
[34] Stamatopoulos v The Queen [2018] WASCA 148.
[35] R v Melrose [2016] QCA 202.
[36] Gok v The Queen [2010] WASCA 185.
[37] Ly v The Queen [2007] NSWCCA 28.
[38] Ramanah v The Queen [2006] WASCA 112.
[39] Beard v The Queen [2003] WASCA 262.
[40] R v Host [2015] WASCA 23; (2015) 248 A Crim R 352.
In support of ground 3, counsel for the appellant submitted that the objective seriousness of the offending did not warrant a non‑parole period of 2 years because the appellant 'temporarily misappropriate[d]' the refunds that would have been payable to the appellant's clients.[41] Counsel for the appellant also emphasised the mitigating factors referred to by the sentencing judge.[42]
[41] WAB 20.
[42] Appeal ts 10.
The respondent submitted that neither the head sentence nor the non‑parole period infringed the first limb of the totality principle.[43] The respondent submitted that the circumstances of the offending were so serious that, even when weighed against the mitigating factors identified by the sentencing judge, and having regard to the comparable cases, the sentence imposed did not infringe the first limb of the totality principle. As to ground 3, the respondent submitted that the non‑parole period of 2 years was appropriate.
[43] WAB 28.

The relevant legal principles

In R v Abbas,[44] this court set out the general sentencing principles applicable to Federal offences,[45] general appellate principles concerning the treatment of comparable cases,[46] the correct approach to be taken when a judge is required to sentence an offender for multiple offences,[47] and the correct approach to be taken by an appellate court to an allegation that the total effective sentence imposed upon a Federal offender infringes the totality principle.[48] We incorporate those statements of principle into these reasons, without repeating them. It is enough to say the following.
[44] R v Abbas [2019] WASCA 64.
[45] Abbas [46] - [53].
[46] Abbas [55] - [59].
[47] Abbas [60] - [62].
[48] Abbas [114] - [118].
The general sentencing principles applicable to Federal offences are set out in pt 1B div 2 of the Crimes Act. Section 16A(1) provides that a sentencing court must impose a sentence that is of a severity appropriate to all of the circumstances of the case. Section 16A(2) provides that, in addition to any other matters, the court must take into account such other matters listed in s 16A(2) as are relevant and known to the court. Section 17A(1) prohibits a court from passing a sentence of imprisonment for a Federal offence, unless the court is satisfied that no other sentence is appropriate in all of the circumstances of the case. Section 16A of the Crimes Act accommodates the application of common law sentencing concepts and principles, such as personal and general deterrence and the totality principle.
A judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence, and then consider questions of cumulation or concurrence and totality. A sentencing judge may, in applying the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently, or by reducing the otherwise appropriate length of one or more of the individual sentences.
The totality principle comprises two limbs. This appeal concerns only the first limb. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including offences, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety and after having regard to all relevant circumstances, including those referable to the offender personally, and the total effective sentences imposed in comparable cases.
A range of sentences customarily imposed is significant in ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Comparable cases offer flexible, rather than rigid guidance. Similarly, sentencing ranges can provide only general guidance. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence infringes the totality principle. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
When an intermediate appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The discretion conferred on a sentencing judge is of fundamental importance. An intermediate appellate court may not substitute a sentence imposed by a sentencing judge merely because it would have exercised the sentencing discretion differently. Where, as in this case, an appellant relies upon an allegation of implied error, the appellant must persuade the court that the outcome, having regard to all of the circumstances, is unreasonable or plainly unjust.

Disposition

All three grounds of appeal may be considered together.
It is unnecessary to repeat all of the facts of the offending and the mitigating and aggravating circumstances identified by the sentencing judge, none of which were challenged in this appeal. The appellant abused the trust reposed in him as an accountant and tax agent to defraud the revenue of a substantial sum of money over a lengthy period of time. The appellant exploited his knowledge of the taxation system and, to some extent, its weaknesses, to obtain money which funded his illicit drug use and gambling. The appellant knew that what he was doing was wrong, but nevertheless continued to offend.

As this court stated in Stamatopoulos, another case involving an accountant who was convicted of multiple offences of dishonestly obtaining a financial advantage from the Commonwealth by deception:[49]
Offences such as the ones committed by the appellant are difficult to detect, investigations are often expensive and there is the potential for significant loss to be sustained by the revenue. Serious tax fraud adversely affects the whole community. Sentences for such offending must have both a deterrent and a punitive effect. Indeed, it has been said that general deterrence is the predominant sentencing consideration in cases involving substantial fraud on the ATO. The weight that can be given to an offender's antecedents must, accordingly, be reduced.
[49] Stamatopoulos [41].
The most significant mitigating factors identified by the sentencing judge were:
(1)the appellant's early pleas of guilty, which provided a significant utilitarian benefit and were a genuine expression of remorse;
(2)the payment of almost full restitution; and
(3)the appellant's disclosure of his offending to his employer, and his cooperation with the ATO investigation of his wrongdoing.
Some recognition must also be given to the appellant's efforts to rehabilitate himself. It is to his credit that he no longer uses illicit substances.
The appellant's prior good character has only limited weight. It was by reason of his good character that he was in a position to commit the offences.
We now turn to the comparable cases cited by the parties, some of which (Thompson v The Queen,[50] Beard and Ramanah) were analysed in Stamatopoulos. It is unnecessary to repeat the facts and circumstances of each case cited by the parties. The offending in cases such as R v Baunach,[51] Stamatopoulos, Melrose, Ly, Ramanah and Beard was plainly more serious than the present case and are, for the purpose of comparison, of little assistance.
[50] Thompson v The Queen [2005] WASCA 223.
[51] R v Baunach [1999] QCA 207.
Both parties in their written submissions referred to Host, a case that bears some factual similarities to the present case, but also some material differences. Host was a Crown appeal against sentence. The offender was convicted on his late pleas of guilty of 58 offences, including 30 offences against s 134.2(1) of the Commonwealth Code, from which he unlawfully obtained $332,646. The offender was not an accountant. Like the appellant in the present case, the offender was a mature man with favourable antecedents who, by the time he was sentenced, made full restitution. At first instance, the primary judge imposed a total effective sentence of 2 years' imprisonment. The primary judge ordered that the offender be released on a recognisance release order, after the offender had served 8 months' imprisonment. This court upheld the Crown's appeal on the basis that the total effective sentence infringed the first limb of the totality principle, and that the pre‑release period and the recognisance release order were manifestly inadequate. This court resentenced the offender and imposed a total effective sentence of 3 years 6 months' imprisonment and a recognisance release order with a pre‑release period of 21 months.
Of course, the outcome in one case is insufficient to establish a range of sentences customarily imposed. However, we do not view the outcome in the present case as being inconsistent in the broad sense with the outcome in Host.
Having considered all of the relevant circumstances, including those referrable to the offender personally, and recognising that there were a number of significant mitigating circumstances, we are not persuaded that the total effective sentence infringed the first limb of the totality principle. In our view, the total effective sentence properly reflected the objective seriousness of the appellant’s offending as a whole, and the strong need to deter others from using their position to exploit the revenue. It was not unreasonable or plainly unjust. Implied error has not been established. We would not interfere with the total effective sentence of 4 years' imprisonment.
Nor would we interfere with the non‑parole period of 2 years. Given the objective seriousness of the offending, it was not reasonably open to the sentencing judge to immediately release the appellant on a recognisance or any other condition. The relevant legal principles with respect to the imposition of a non‑parole period were set out in Stipkovich v The Queen,[52] as follows:
The length of the non‑parole period should be the minimum time that a judge determines justice requires that the offender must serve, having regard to all the circumstances of the offence. The evident legislative intention is for a non‑parole period to provide for mitigation of the punishment of the prisoner in favour of rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires must be served, having regard to all the circumstances of the offence.
When fixing the non‑parole period, the court must consider all of the circumstances of the case, including the matters listed in s 16A(1) and (2) of the Crimes Act. The considerations which a sentencing judge must take into account when fixing a non‑parole period are the same as those applicable to the setting of the head sentence. However, the weight to be attached to those factors, and the manner in which they are relevant, will differ due to the different purposes underlying each function. Sentencing factors counting against mitigation may increase both the length of the head sentence and the proportion that the non‑parole period bears to the head sentence. The converse is true of factors in favour of mitigation.
The following have been described as the main factors relevant to the determination, in any case, of the appropriate ratio between the non‑parole period and the head sentence:
'Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range: (see R v Bernier (1998) 102 A Crim R 44 at 49 and R v Sweet 125 A Crim R 341 at 346), the seriousness of the offence and the prospects of rehabilitation (see R v Stitt (1998) 102 A Crim R 428 and R v Meloh [2001] NSW CCA 211 at [10]) and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see R v Drazkiewicz unreported, Court of Criminal Appeal, No 60705 of 1992, NSW 23 November 1993).'
The discretion to fix the non‑parole period is not constrained by a requirement to bear a particular relationship with the head sentence. It is wrong to approach the discretion from a judicially determined percentage as a norm or starting point.
[52] Stipkovich v The Queen [2018] WASCA 63 [32] ‑ [35] (Mitchell & Beech JJA & Allanson J).
The non‑parole period imposed on the appellant in this case was 50% of the total effective sentence.
There is no merit to the submission that some leniency should be afforded to the appellant because he 'temporarily misappropriated' funds. The appellant knew that he had no right to the money he misappropriated. It does not matter that the appellant thought he could somehow reimburse the funds he took.
In our opinion, a non‑parole period of 2 years was an appropriate exercise of the sentencing discretion, balancing, as it did, the mitigating circumstances against the objective seriousness of the appellant's offending and the requirement for general deterrence. When all relevant circumstances are considered, including the appellant's personal circumstances, the non‑parole period was not more than the minimum period of time which justice required in the circumstances.
For these reasons, each of the grounds relied upon by the appellant fail. Leave to appeal on each ground should be refused. The orders that we would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.

Schedule

Count	Offence	Maximum Penalty	Description	Sentence Imposed
1	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2015 income tax return containing unauthorised and false information in the name of [C] with the Australian Tax Office (ATO), causing a tax refund of $5,919.11 to be paid to him.	2 years to commence 21 February 2019
2	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2015 income tax return containing unauthorised and false information in the name of [L] with the ATO, causing a tax refund of $7,250.14 to be paid to him.	2 years (concurrent)
3	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2015 income tax return containing unauthorised and false information in the name of [B] with the ATO, causing a tax refund of $10,713.11 to be paid to him.	2 years (concurrent)
4	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2015 income tax return containing unauthorised and false information in the name of [BP] with the ATO, causing a tax refund of $9,361.29 to be paid to him.	2 years (concurrent)
5	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2014 income tax return containing unauthorised and false information in the name of [K] with the ATO, causing a tax refund of $3,708.98 to be paid to him.	2 years (concurrent)
6	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2015 income tax return containing unauthorised and false information in the name of [BW] with the ATO, causing a tax refund of $4,088.99 to be paid to him.	2 years (concurrent)
7	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [E] with the ATO, causing a tax refund of $4,601.83 to be paid to him.	2 years (concurrent)
8	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant without authority accessed ATO records and amended bank details for [A Trust] to an account he controlled, causing a refund of $10,371.63 to be paid to him.	2 years (concurrent)
9	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant without authority accessed ATO records and amended bank details for [R Trust] to an account he controlled, causing a refund of $9,367.00 to be paid to him.	2 years (concurrent)
10	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [LK] with the ATO, causing a tax refund of $6,871.02 to be paid to him.	2 years (concurrent)
11	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [W Pty Ltd] with the ATO, causing a tax refund of $7,651.20 to be paid to him.	2 years (concurrent)
12	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [BF] with the ATO, causing a tax refund of $12,767.00 to be paid to him.	2 years (concurrent)
13	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [CS Pty Ltd] with the ATO, causing a tax refund of $13,225.18 to be paid to him.	2 years (concurrent)
14	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant without authority accessed ATO records and amended bank details for [RCN Pty Ltd] to an account he controlled, causing a refund of $8,302.00 to be paid to him.	2 years (concurrent)
15	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [A] with the ATO, causing a tax refund of $16,615.22 to be paid to him.	2 years (concurrent)
16	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant without authority accessed ATO records and amended bank details for [W Trust] to an account he controlled, causing a refund of $5,357.00 to be paid to him.	2 years (concurrent)
17	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [J] with the ATO, causing a tax refund of $13,654.00 to be paid to him.	2 years (concurrent)
18	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [V] with the ATO, causing a tax refund of $6,902.11 to be paid to him.	2 years (concurrent)
19	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [B] with the ATO, causing a tax refund of $9,593.49 to be paid to him.	2 years (concurrent)
20	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [BP] with the ATO, causing a tax refund of $9,441.67 to be paid to him.	2 years (concurrent)
21	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [D] with the ATO, causing a tax refund of $37,923.01 to be paid to him.	2 years (concurrent)
22	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [G] with the ATO, causing a tax refund of $9553.62 to be paid to him.	2 years (concurrent)
23	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [GS Pty Ltd] with the ATO, causing a tax refund of $9,479.84 to be paid to him.	2 years (concurrent)
24	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [C] with the ATO, causing a tax refund of $3,752.96 to be paid to him.	2 years (concurrent)
25	Obtaining a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 134.2(1))	10 years	Appellant lodged a 2016 income tax return containing unauthorised and false information in the name of [CY] with the ATO, causing a tax refund of $10,451.89 to be paid to him.	2 years (concurrent)
26	Attempting to obtain a financial advantage by deception from a Commonwealth entity (Criminal Code (Cth), s 11.1(1) and s 134.2(1))	10 years	Appellant attempted to obtain a financial advantage by falsely representing that the contents of a business activity statement in the name of [DES Pty Ltd] was true and correct, and direct a refund of $4,266.00 from the ATO to be paid into an account he controlled.	2 years to commence 21 February 2021

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
17 APRIL 2020