Ridley v R

[2008] NSWCCA 324

Reported Decision: 192 A Crim R 139

New South Wales

Court of Criminal Appeal

CITATION:	Gavin Mark RIDLEY v REGINA [2008] NSWCCA 324
HEARING DATE(S):	12 September 2008
JUDGMENT DATE:	18 December 2008
JUDGMENT OF:	Allsop P at 1; Johnson J at 99; Price J at 100
DECISION:	1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted. 3. Appeal against sentence dismissed.
CATCHWORDS:	TAXATION – SALES TAX – TAX EVASION – administration of Goods & Services Tax scheme – Business Activity Statements lodged with Australian Tax Office – input tax credits improperly claimed – serious fraud against the revenue - CRIMINAL APPEAL – CONVICITION – alleged failure to give directions – directions said to be inadequate – directions said to be misdirections. - CRIMINAL APPEAL – SENTENCE – considerations said not to be legitimate – weight given to specific deterrence – sentence said to be manifestly excessive.
LEGISLATION CITED:	Crimes Act 1914 (Cth) Criminal Code 1995 (Cth)
PARTIES:	Gavin Mark RIDLEY REGINA
FILE NUMBER(S):	CCA 3833/2007
COUNSEL:	Mr P Lowe Mr P Roberts SC
SOLICITORS:	Mr P Bodiscoe
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0192
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ
LOWER COURT DATE OF DECISION:	3 August 2007

3833/2007

18 December 2008

Gavin Mark RIDLEY v REGINA

JUDGMENT

1 ALLSOP P: Gavin Mark Ridley (the appellant) appeals against his conviction and sentence following a jury verdict in respect of a trial in the District Court between 2 and 22 May 2007.

2 On 2 May 2007, the appellant pleaded not guilty to twelve counts on an indictment, nine counts relating to defrauding the Commonwealth contrary to the Crimes Act 1914 (Cth), s 29D and three counts of attempt by deception to dishonestly obtain a financial advantage contrary to the Criminal Code 1995 (Cth), ss 134.2 and 11.1.

3 The jury convicted the appellant on all twelve counts.

4 On 3 August 2007, Sorby DCJ sentenced the appellant in respect of each of the charges on which he had been found guilty to an effective overall period of imprisonment of 8 years with a non-parole period of 5 years.

The indictment

5 The indictment contained twelve counts as follows:

Counts 1 to 9:

“… On or about [date] at Sydney in the State of New South Wales did defraud the Commonwealth, namely the Commissioner of Taxation, in the sum of [$ amount] by causing to be lodged with the Australian Taxation Office a Business Activity Statement for the period [period] on behalf of [name of company] which falsely claimed a Goods and Services Tax refund of [$ amount].”

Counts 10 to 12:

“… On or about [date] at Sydney in the State of New South Wales did attempt by a deception to dishonestly obtain a financial advantage, namely a Goods and Services Tax refund in the sum of [$ amount] from a Commonwealth entity, namely the Commissioner of Taxation by lodging with the Australian Taxation Office a Business Activity Statement for the period [period] for [name of company] which falsely claimed a Goods and Services Tax refund of [$ amount].”

Relevant legislation

6 Section 29D of the Crimes Act provided:

“(1) A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence.

Penalty: 1000 penalty units or imprisonment for 10 years, or both.”

7 Section 134.2 of the Criminal Code provided:

“(1) A person is guilty of an offence if:
(a) the person, by a deception, dishonestly obtains a financial advantage from another person; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.

(2) Absolute liability applies to the paragraph (1)(b) element of the offence.”

8 Section 11.1 of the Criminal Code provided:

“(1) A person who attempts to commit an offence is guilty of the
offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

(3A) Subsection (3) has effect subject to subsection (6A).

(4) A person may be found guilty even if:
(a) committing the offence attempted is impossible; or
(b) the person actually committed the offence attempted.

(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.

(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).”

9 Section 133.1 of the Criminal Code defined “deception” as follows:

“ deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and
includes:
(a) a deception as to the intentions of the person using the
deception or any other person; and
(b) conduct by a person that causes a computer, a machine or an
electronic device to make a response that the person is not authorised to cause it to do.”

10 Section 130.3 of the Criminal Code provided:

“For the purposes of this Chapter, dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.”

11 Section 130.4 of the Criminal Code provided:

“In a prosecution for an offence against this Chapter, the determination of dishonesty is a matter for the trier of fact.”

The Crown case

12 It was the Crown case that during the period February 2001 to July 2001 the appellant dishonestly made false claims for refunds for Goods and Services Tax (“GST”) in twelve Business Activity Statements (“BASs”) submitted to the Australian Taxation Office by the appellant in the names of three companies controlled by him. The Crown said that in each, the subject BAS contained false information concerning alleged acquisitions claimed to have been made which incurred GST. It was said that the BASs falsely claimed that the companies in question had made these acquisitions and that the companies were entitled to a refund of the GST component of the acquisition. The total amount of tax claimed to be the subject of refund in the twelve charges was $2,858,160. The ATO paid over the claimed refunds for the first nine BASs (Counts 1 to 9), totalling $1,746,582. However, it did not pay over the amounts claimed in the last three BASs (Counts 10 to 12), totalling $1,111,578.

13 The GST system, and how it was administered, was explained to the jury by witnesses. It was explained that the GST was a consumption tax levied on the supply of goods, services and activities, and imposed at a rate of 10%. It was explained that in a typical situation in which goods were sold or services supplied, the seller or provider included the GST in the price of the goods or services and the seller or provider accounted to the Australian Taxation Office for the GST component in the sale. It was explained that if the buyer bought goods or services for its business purposes, the buyer was able to claim a credit for the amount of GST that it had paid. This credit was called an “input tax credit”. This credit was offset against any GST on goods or services that the buyer supplied to its own customers.

14 It was explained that as part of the administration of the GST scheme, businesses have to register with the ATO and that businesses account to the ATO for the GST on the supplies they make and obtain credits pursuant to claims for the GST input tax credits. These returns and claims are made in a BAS which the ATO requires to be completed monthly or quarterly. The system that operated was one of “self assessment” requiring the taxpayer to make an honest and complete return.

15 The GST legislation came into operation on 1 July 2000.

16 During 1998 and 1999, the appellant and a business partner, Mr Anthony Gee, were interested in establishing a business venture involving tyre recycling. The appellant participated in negotiations with representatives of a company called Link Pty Ltd (“Link”). Link’s founder, a Mr Wenzel, had invented a method of stripping and processing motor vehicle tyres to produce crumbed rubber material which could be used to make various rubber products. Link was in the business of making and selling speciality plant and equipment to undertake this manufacturing process. Link had a factory in Brisbane where its plant and machinery were demonstrated. The appellant and Mr Gee were interested in establishing manufacturing plants in Sydney, Brisbane and Melbourne to operate the Link recycling process and obtain from Link sole rights to use this process in defined areas. This proposal was subject to the appellant and Mr Gee raising all of the required funds from potential investors.

17 Three companies were incorporated by the appellant and Mr Gee to operate the proposed businesses: Envirotyre Industries Pty Ltd (“Envirotyre Industries”); Southern Rubber Technology Pty Ltd (“Southern Rubber Technology”); and Queensland Tyre Resources Pty Ltd (“Queensland Tyre Resources”). In addition, the appellant incorporated two other companies: Envirotyre Management Pty Ltd (“Envirotyre Management”) and Envirotyre Sales Pty Ltd (“Envirotyre Sales”). These five companies comprised what was referred to as the Envirotyre Group.

18 The appellant drafted a heads of agreement document between Envirotyre Management and Link which came to be dated 23 December 1998. The heads of agreement outlined a proposal to purchase plant and machinery from Link and Link’s agreement to supply exclusively such plant and machinery to Envirotyre Management in a defined geographic area (Queensland, New South Wales, Australian Capital Territory, Victoria, Tasmania and South Australia). The appellant later substituted another company which he and Mr Gee controlled, Interequity Capital Management Limited (Hong Kong) (“Interequity”), for Envirotyre Management in the heads of agreement. The heads of agreement concerned a proposed arrangement for the supply of technical equipment and machinery. It referred to the obtaining of a $10m letter of credit for the purchasing of the Link plant and machinery for three factories by 30 September 1999, that date being the final date for the entering into of a binding contract. Under the heads of agreement, Link also permitted the use of its name “within public documents that are required for the capital raising process”. The final clause of the heads of agreement stated that the heads of agreement represented the understanding of the parties with respect to the matters referred and, except for two clauses, the heads of agreement was not binding.

19 The appellant and Mr Gee set about attempting to raise large sums of money from potential investors to establish three separate ventures for a factory in each of three different states. Seventeen million dollars was sought to be raised from the public for each of three ventures under a prospectus. These efforts were unsuccessful. Interim stop orders were imposed by the Australian Securities and Investments Commission on the use of the prospectuses and final stop orders were placed on the prospectuses in August 2000.

20 The money required for preparing the prospectuses and other start up costs of $20,000 came from the appellant. The appellant claimed in cross-examination that both he and Mr Gee advanced about $150,000 each to Envirotyre Management in or by November 2000. There was no documentary or bank evidence to substantiate this in the evidence.

21 At no time was there ever any purchase of plant or equipment or technology rights from Link made by the appellant or Mr Gee or by any of the companies referred to above associated with them; nor was any contract or arrangement ever entered into with Link (other than the heads of agreement). Envirotyre Industries, Southern Rubber Technology, and Queensland Tyre Resources never operated any business. These three companies were, however, registered with the ATO for taxation and GST purposes.

22 In early February 2001, the ATO received notification of a change to the bank details for the above three companies. The new bank account was at the Commonwealth Bank in the name of “Envirotyre Group”. The persons nominated to operate the account were the appellant, Mr Gee and Mr Gee’s father.

23 On the day that the ATO received notification of this change of bank account, three BASs were lodged with the ATO for the three companies, Envirotyre Industries, Southern Rubber Technology and Queensland Tyre Resources, for the quarter July to September 2000. In each respective BAS, the relevant company claimed a GST input credit in relation to “other acquisitions”, but otherwise revealed no financial activity resulting in tax implications for the quarter. Envirotyre Industries claimed an input tax credit of $144,960 (Count 1); Queensland Tyre Resources claimed an input tax credit of $83,730 (Count 2); and Southern Rubber Technology claimed an input tax credit of $139,536 (Count 3).

24 On 7 February 2001, three BASs were lodged with the ATO for the three companies for the quarter October to December 2000. In each respective BAS, the relevant company claimed an “input tax credit in relation to other acquisitions”, but otherwise revealed no financial activity resulting in any tax implications for that quarter. Envirotyre Industries claimed an input tax credit of $173,880 (Count 4); Queensland Tyre Resources claimed an input tax credit of $100,403 (Count 5); Southern Rubber Technology claimed an input tax credit of $167,371 (Count 6).

25 On 15 Feburary 2001, the ATO refunded the amounts claimed in each of the six BASs filed up to that point, by way of direct transfer to the Envirotyre Group bank account.

26 On 20 April 2001, three BASs were lodged for the three companies for the quarter January to March 2001. Each of the companies claimed an “input tax credit in relation to other acquisitions”, but otherwise revealed no financial activity resulting in tax implications for the quarter. Envirotyre Industries claimed an input tax credit of $376,959 (Count 7); Queensland Tyre Resources claimed an input tax credit of $201,567 (Count 8); and Southern Rubber Technology claimed an input tax credit of $355,223 (Count 9).

27 On 30 April 2001, the ATO refunded the claimed amount for Envirotyre Industries’ BAS for the quarter January to March 2001.

28 On 22 May 2001, the ATO refunded the amount claimed by Queensland Tyre Resources, plus $614.81 interest for late refunding for the same period.

29 The evidence disclosed that in early June 2001, a compliance officer of the ATO, a Ms Janceska, telephoned the appellant to ascertain further details about the January to March 2001 BAS for Southern Rubber Technology. She asked what the main business activity of the company was. The appellant told her that it was tyre recycling and that a plant was being set up and should be completed by October 2001. Ms Janceska queried the acquisitions nominated in the BAS as amounting to $3,907,453. She said she would need a breakdown of the expenses to verify the amount. She gave the appellant her facsimile number.

30 On or about 4 June 2001, Ms Janceska received a facsimile transmission on Southern Rubber Technology letterhead signed by the appellant. The document stated the following:

“Following our telephone conversation on Friday of last week, please find enclosed the details for the breakdown of “G11 – other acquisitions” as requested.
#1 Vendor: Tiphaze Pty Ltd
Supply: Tyre Recycling Technology Licence Fee
Amount: $1,684,030.00 incl GST
#2 Vendor: Tiphaze Pty Ltd
Supply: Tyre Recycling Processing Equipment – first installation/hire payment
Amount: $2,219,465.00 incl GST
#3 Vendor: FPD Savilles Pty Ltd
Supply: Office Rental
Amount: $3,958.00 incl GST
Total of G11 “other acquisitions” - $3,907,453.00
I trust that this provides the information that you require such that our refund can now be processed.”

31 After receiving this document, Ms Janceska requested the appellant to provide invoices from the suppliers. Ms Janceska then received two invoices which were in evidence, both dated 15 January 2001. They were sent to her by facsimile. The invoices purported to be from “Tiphaze Pty Ltd – The Industrial Process People”. After receipt of these invoices, Ms Janceska decided to allow the processing of the refund for the quarter January to March 2001 for Southern Rubber Technology. On 18 June 2001, a taxation refund was made, plus a sum $2,338.24 by way of interest for late refund payment.

32 The above two invoices contained line items for the price of “Core Technology Licence Fee – Link Process Installation; Southern Rubber Technologies Tyre Plant”; and “Equipment Supply/Licence – Link Process Installation; Southern Rubber Technologies Tyre Plant Stage 1, include: PS 6000 Shredder, SH 1500 Grinding/Granulation System, FST 3000 Fibre System, SCR 2400 Screening System, Computer Controller and Process Module.” The prices in the two invoices were ex GST, with a line item of a GST component. Each invoice contained at the bottom of the page the statement: “All accounts due and payable 30 days from invoice date.”

33 On 12 July 2001, three BASs were lodged for the three companies for the quarter April to June 2001. Envirotyre Industries claimed an input tax credit of $457,192 (Count 10); Queensland Tyre Resources claimed an input tax credit of $230,310 (Count 11); and Southern Rubber Technology claimed an input tax credit of $424,076 (Count 12).

34 On or about 20 July 2001, another ATO officer, Mr Hale, telephoned the appellant concerning the April to June 2001 BAS for Queensland Tyre Resources. When he questioned the appellant about the purchases of $2,533,410 referred to in the BAS, the appellant said:

“The amount was to set up a factory to recycle car tyres by shredding them into small rubber pellets and turning them into new products.”

35 Mr Hale asked the appellant to send him a copy of the tax invoice for verification purposes. On 31 July 2001, Mr Hale received a facsimile with Queensland Tyre Resources letterhead signed by and in the handwriting of the appellant. The coversheet stated:

“David, sorry for the delay. I had to retrieve the document back from the accountant. Any questions please call.”

36 The copy invoice supplied was a Tiphaze Pty Ltd tax invoice dated 6 June 2001. The invoice in the description column identified:

“Equipment Supply/Licence - Link Process Installation; Queensland Tyre Resources Tyre Plant Stage 1; Include: PS 3000 Shredder, SH 1500 Grinding/Granulation System; FST 3000 Fibre System, SCR 2400 screening system, computer controller and process module.”

37 Mr Hale then made enquiries of ATO records concerning the company Tiphaze Pty Ltd and identified a telephone number for the accountants for the company. On 1 August 2001, Mr Hale spoke to someone at that firm and asked for some verification of the invoice. No response was ever forthcoming.

38 On 2 August 2001, Mr Hale again spoke to the appellant on the telephone. Mr Hale asked the appellant some questions concerning the business of Queensland Tyre Resources. Mr Hale asked the appellant where the Queensland Tyre Resources factory was. The appellant said that it was at Beaudesert, but that he could not give the precise address and said that he would get back to Mr Hale. Mr Hale asked if there were any employees there. The appellant said that there were not, but there would eventually be 13 employees on the site. The appellant said that in all there would be 64 employees working for the group. The appellant said that Tiphaze staff were currently at the site (of Queensland Tyre Resources’ factory). The appellant told Mr Hale that Tiphaze was manning the plant (in Queensland) and that he dealt with Ryner Wenzel and Peter Cook from Tiphaze.

39 On 8 August 2001, under cover of a facsimile headed “Envirotyre Group” and signed by the appellant, Mr Hale received two further invoices from Tiphaze dated 6 June 2001 relating to Envirotyre Industries and Southern Rubber Technologies having information of the kind referred to earlier under the description column with substantial amounts of payment, each over $4m and GST for each company over $400,000.

40 Thereafter, another ATO officer, Mr Brown was given the ATO files of the three companies for the purpose of auditing their BASs. Mr Brown made a number of unsuccessful telephone calls to the appellant and left messages for him. On 6 September 2001, Mr Brown received a telephone call from the appellant. During the telephone conversation, the appellant said words to the effect:

“They would have a factory operating at some point where they could install all the machinery and press a button and the thing would start operating.”

The appellant said the factory would be operational next year. Mr Brown requested documentation to support the BASs and requested a meeting. ATO letters (one for each company) were sent to the appellant on 13 September 2001 confirming what was required to be produced.

41 On 17 September 2001, Mr Brown and a colleague (Jan Campbell) visited the appellant at his office premises at 2 Bulletin Place, Sydney. During conversation with them, the appellant confirmed preparing the BASs for each of the companies. The appellant produced 15 original invoices which purported to relate to the acquisitions in the 12 BASs which had been lodged. Mr Brown inspected these invoices and obtained copies. The invoices each had individual invoice numbers which, on their face, disclosed that a number of invoices (apart from these 15) had been issued by Tiphaze; that is, there appeared to be consecutive numbered invoices with other invoices between the numbers on the invoices produced. After some further conversation about a technology licence fee, the appellant produced three separate documents which purported to be licensing agreements between Southern Rubber Technology, Queensland Tyre Resources and Envirotyre Industries with Tiphaze. Mr Brown asked for copies of these agreements, but was told by the appellant that for legal reasons he could not be given the whole document. The appellant gave Mr Brown photocopies of extracts of the document.

42 Mr Brown then asked questions about addresses, locations of factories, payments and financing of the operation. The appellant said that they were originally going ahead with a prospectus but “we now have private backing from a BRW Top 200 person in Victoria”. The appellant showed Mr Brown a document entitled “Envirotyre Group Prospectus”. When asked about proof of payment, the appellant said:

“No payments have been made at this point. We’ve simply invoiced as per the agreement. The schedule of payments in the agreement.”

The appellant also said:

“Delivery hasn’t occurred, installation hasn’t taken place because we’ve got a dispute with the supplier, Tiphaze, and we also have some issues with the sites in that we haven’t secured the locations for the reasons of a dispute with the EPA.”

43 On 21 September 2001, Mr Brown left a telephone message for the appellant requesting amongst other things the location of the factory sites. Later that day Mr Brown received an email from the appellant stating:

“Locations being secured subject to required approvals: 36 Lisbon Street, Fairfield; 29 and 31 Reo Cr, Campbelltown; site in Redbank Plains Road, Blackstone or Coopers Plains to be determined. Subject to above along with lease issues.”

44 On 26 September 2001, Mr Brown checked one of the site location addresses that had been given to him, namely 36 Lisbon Street, Fairfield. He found that it consisted of a vacant factory with a for sale or lease sign outside.

45 On 28 September 2001, Mr Brown telephoned the appellant’s office and was told by the receptionist that the appellant was not in and that she did not know when to expect him. Mr Brown attended the appellant’s business premises on 8 October and was told that the appellant was overseas.

46 On 30 April 2002, a search warrant was executed on the appellant’s business premises at Bulletin Place and various documents and computer material were seized. Documents located during the police search included three “licence agreements” each dated 8 September 2000, which had been shown to Mr Brown on 17 September 2001. According to the terms of these licence agreements, the licensor (Tiphaze) purported to confer “certain rights in relation to certain hardware and technology” to Southern Rubber Technology, Queensland Tyre Resources and Envirotyre Industries. Each of the documents was executed. They appear to have been signed by Mr Gee (in stamped signature) on behalf of the three companies and by the appellant on behalf of Tiphaze.

47 Federal Police printed out hard copies of various computer files seized from the appellant’s computer. The computer files that related to Tiphaze invoices showed that the files were all (first) created on Sunday 16 September 2001, the day before the ATO officer, Mr Brown visited the appellant. The computer files that related to the licence agreements dated 8 September 2000 showed that the files were (first) created on 21 February 2001 and last modified on 16 September 2001.

48 Evidence concerning Tiphaze was presented at the trial. According to incorporated records, Tiphaze was incorporated in 2000 and registered in New South Wales. Its sole director and shareholder was Mr Mark Heasman. Tiphaze was registered with the ATO and provided with a tax file number. According to information supplied to the ATO, Tiphaze’s principal business activity was labour hire. Seized from the business premises of the appellant were some (unregistered) documents, some bearing the date 15 June 2001 transferring ownership of Tiphaze (the documents included resignation of the director, appointment of new director and transfer of shares).

49 Evidence was given at the trial by Mr Lance Heasman, the brother of Mr Mark Heasman, who had recently died. Lance Heasman was the managing director of a crane hire company. In the year 2000, he purchased a number of shelf companies through a firm of accountants (Cassaniti and Associates). One of these companies was Tiphaze. He caused his brother, Mark Heasman, who was one of his employees, to become the sole director of that company. Lance Heasman said that he was planning to use these shelf companies to re-structure his crane-hire business, but subsequently changed his mind. Lance Heasman employed Mr Gee as a business consultant. During 2000, Mr Gee told Lance Heasman that he could use the company Tiphaze if it was not required. Lance Heasman got his brother to sign various company documents (in blank) to transfer Tiphaze. He understood that these documents were taken away by Mr Gee.

50 Evidence was given at the trial concerning the address which appeared at the bottom of the Tiphaze invoices, namely Suite 179, 3 Holtermann Street, Crows Nest. 3 Holtermann Street was a shop which offered mail boxes for rent. The appellant first applied to rent mail box No 179 on 4 May 2001.

51 Evidence was given at the trial that the factory premises at 36 Lisbon Street, Fairfield were purchased by a company called Eagle Fly Pty Ltd which had, until 2003, no association with the appellant or Mr Gee. A tyre recycling plant using Link equipment was established there by Eagle Fly during the years 2001-2002.

52 The appellant gave evidence at the trial. His evidence was to the effect that at the time of lodging the various BASs he intended establishing tyre recycling businesses. He claimed that he thought he was entitled and was indeed obliged to lodge these BASs as the acquisitions claimed in them were (or would be) made. He claimed that Interequity had claimed the rights to the Link Tyre Recycling System through the heads of agreement document and that Tiphaze, as agent of Interequity, was entitled to and did, enter into licensing agreements with Southern Rubber Technology, Queensland Resources and Envirotyre Industries. He said that the acquisitions in the BASs were referred to in the three licensing agreements. He claimed that the prospectuses which were issued to raise money for the proposed ventures stated that Interequity owned Link Technology and that he believed that this was so, as he had received advice to this effect from a lawyer. In his cross-examination he stated the following which was the essence of his explanation:

“My honest belief was at all times there was a right to claim the input tax credits as they were put forward otherwise we wouldn’t have put them forward in the first place. There was [sic] investors coming in. There was a variety of discussion going on to move the business forward and these activity statements were filled out on the premise that the business was still moving forward.”

Issues at the trial

53 Before coming to the notice of appeal and the grounds of appeal, it is important to understand, in essence, how the cases were put at the trial. The Crown case was that there were no transactions involving Tiphaze or any of the three companies in whose names the BASs were lodged. The Crown case was that the claims for GST refunds were based on fictitious transactions, that Tiphaze had nothing to sell or supply and that the supporting documentation generated by the appellant, including the Tiphaze invoices and licensing agreements, were shams created to fool the ATO. In those circumstances, the appellant was necessarily and obviously acting dishonestly in submitting the claims for taxation refunds.

54 The appellant’s case was that the claims for input tax credits were based on genuine transactions or, at least, that the appellant believed that they were genuine transactions, the Tiphaze invoices reflected actual transactions and Tiphaze was acting in those transactions as the agent for Interequity. Interequity had (or the appellant believed that it had) obtained rights under the heads of agreement to the subject matter of the Tiphaze invoices. The three companies were entitled or obliged to account for the Tiphaze invoices in their BASs, even though no actual money was paid as the three companies reported to the ATO on an accruals basis. The appellant was not acting dishonestly in submitting the claims for taxation refunds.

55 This claim of the appellant involved the proposition that under the heads of agreement, Interequity had acquired (or at least the appellant believed it had acquired) rights to the “Link tyre recycling process”. The appellant relied on the prospectuses dated 19 May 2000 to support his claim about the acquiring of rights. The appellant pointed to parts of the prospectus in which it was said that Interequity had such rights and had licensed (or would license) such rights to Envirotyre Industries, Southern Rubber Technology and Queensland Tyre Resources.

56 Whether Interequity had in fact acquired the property referred to in the Tiphaze invoices and therefore had the legal capacity to transfer or license to the three companies that property was an issue at the trial. A direction from the trial judge concerning the heads of agreement was therefore necessary.

57 In Mr Lowe’s address to the jury on behalf of the appellant, it was suggested the Crown case had failed to appreciate and understand “the notion of managed investments of which the joint venture under the prospectus was one”.

58 The only agreement that was proved to have existed between Link and Interequity was that contained in the amended heads of agreement, that is, the heads of agreement in which Interequity was the substituted party, being the agreement dated 23 December 1998, which was drafted by the appellant. There was no subsequent agreement between the parties as contemplated in that document, binding or otherwise. The heads of agreement concerned a proposed arrangement for the supply of technical equipment and machinery. The reference to rights was in clause 2 where the word “rights” was used in the following sense:

“Further, Link will supply exclusively to [Envirotyre/Interequity] in the Territories only, and [Envirotyre/Interequity] agrees to acquire the distribution and supply rights to the equipment and technology developed, owned, produced by or licensed to Link (“rights“) in the Territories geographical areas so defined in Schedule B.”

59 Nowhere in the heads of agreement was the sale of the intellectual property to the Link tyre recycling process envisaged. I have already set out clause 11 of the heads of agreement. The qualification to the lack of any binding arrangement reflected in clause 11 concerned clauses 9 and 10 which were directed to ensuring that Link did not sell its machinery to anyone else in the designated geographical area during the term of the heads of agreement, being 23 December 1998 to 31 July 1999.

60 None of the stipulations provided for in the heads of agreement, including the furnishing of a $10M letter of credit was met by Interequity.

61 On the face of the agreement, as a matter of law, Interequity did not at any time acquire any rights from Link arising from the heads of agreement. There was no other evidence of any other source of rights.

62 There was no other basis in the evidence for any conclusion as a matter of law that the Tiphaze invoices reflected genuine transactions. There was no documentary evidence of any connection between Tiphaze and Interequity, nor any evidence other than what the appellant said at the trial that Tiphaze was the agent for Interequity.

63 In his address to the jury, Mr Lowe, counsel for the appellant, put the following:

“If you accept that he (the appellant) had an honest mistaken belief, putting aside the issue of law, but he had a mistaken belief [that] the heads of agreement conferred rights, technology rights, hire equipment rights and the like. If you accept he had an honestly mistaken belief the heads of agreement conferred rights to the use of the technology or access to the use of technology then at the end of the day I will be putting to you that you must acquit my client.”


Grounds of appeal

Ground one: the trial judge erred in law when he directed the jury regarding the legal effect of the heads of agreement

64 The direction of the trial judge was as follows:

“… you have heard evidence in both the Crown case and from the accused as to the existence to two documents entitled heads of agreement – essentially the same document but with different parties and the documents are before you. Both documents were not expressed to be, nor were they, binding contracts – and this is a direction of law I give you. A binding contract: the terms of the document indicate that they were intended to be, namely,” the understanding of the parties with respect to the matters referred to above, and is not … binding on any party”, which is clause 11.
Neither Mr Wenzel signing those documents, nor the payment of $20,000 by the accused, had the consequence of altering the nature of those documents into binding contracts. As a matter of law no property of any kind passed under the terms of those documents.”

65 Mr Lowe, on appeal, argued that this was an incorrect conclusion from the heads of agreement. I do not agree. It was plainly correct. It was plainly an arrangement to be binding in only the limited sense identified by clauses 9 and 10.

66 Detailed submissions were put on behalf of the appellant that somehow the surrounding circumstances of the prospectuses elevated the heads of agreement to some legal effect not reflected in the words. I reject this submission. The evidence did not support any such proposition. The trial judge was plainly correct in his direction.

67 There was a submission that there was a conferral of rights under the heads of agreement by part performance. This was said to be by the payment of $20,000. No basis in the evidence arose for this conclusion.

68 It was also said that subsequent conduct of the parties created a body of rights. In particular, it was said that Mr Wenzel and Link continued their dealings with the Envirotyre Group of companies including in relation to the issue of prospectuses in which they permitted their names to be used. None of these matters were a foundation for any conclusion that there were rights in the nature reflected in the invoices; nor does any of this material invalidate in any way the direction of the trial judge.

69 The matter was also put as a question of estoppel. No factual foundation was made out in the evidence for such a proposition.

70 Ground one fails.

Ground two: a substantial miscarriage of justice was occasioned by the failure of the trial judge to give proper and/or adequate directions to the jury regarding the “claim of right” argument advanced on behalf of the appellant

71 The appellant contended that the trial judge failed to give proper and/or adequate directions to the jury regarding the claim of right argument said to be advanced by trial counsel. This failure was both in respect of a claim of right as understood at common law (in respect of the first nine counts) as well as under the Criminal Code 1995 (Cth), s 9.5 (in respect of the last three counts). His Honour was also said to be in error in not permitting trial counsel for the appellant to address the jury regarding conferral of rights under the heads of agreement or mistaken belief that rights were so conferred and/or that a contract by way of conduct subsequently came into existence outside the heads of agreement.

72 It was not put by the trial judge or Crown Prosecutor that because of the legal effect of the heads of agreement the appellant’s view (albeit mistaken) about them and the legal effect of the document was irrelevant. It was recognised by the Crown that an alleged honest but mistaken belief of the appellant as to the legal effect of the heads of agreement and its alleged consequences was relevant to whether he had acted fraudulently or dishonestly.

73 The Crown objected to a specific direction on a “claim of right”. This objection was rightly made in my view. It was not a claim of right that was the relevant issue, it was whether the appellant knowingly made a false claim, which in truth did not exist, the appellant knowing that to be the case. This issue went squarely to the jury. During the trial judge’s summing up, a document was handed to each of the jurors setting out the elements of the charges in the counts. The document was as follows:

“Counts 1 - 9

In these counts in order to prove that the accused is guilty the Crown must prove beyond reasonable doubt in each count that:

1. a GST refund was made (as alleged in the particular count) by the Commonwealth (ATO);

2. the refund of GST was made pursuant to a false claim (ie a claim which in truth did not exist and a claim which the particular company was not entitled to make) for a refund;

3. the accused made the false claim for a refund knowing that the claim was false and in so doing was acting dishonestly.

Counts 10, 11 & 12

In these counts in order to prove that the accused is guilty the Crown must prove beyond reasonable doubt in each count that:

1. a claim for a refund of GST was made (as alleged in the particular count) to the Commonwealth (ATO);

2. that the claimed refund was a false claim (ie a claim which in truth did not exist and a claim which the particular company was not entitled to make);

3. that the claimed refund was made by the accused with the intention that the ATO make the refund;

4. the accused made the false claim for a refund knowing that the claim was false and in so doing was acting dishonestly.

74 The trial judge also said the following to the jury:

“Members of the jury, the accused says that when he filled in the BAS forms, the subject of each of the twelve counts on the indictment, or in the case of the first nine counts, they were filled in by Mr Gee, each one seeking a refund from the ATO, he held an honest if mistaken belief that he was entitled to the refunds claimed. The Crown must prove to you that what he did in filing the BAS forms was a dishonest act, that is, the accused was acting dishonestly as I have defined that word for you. The accused says that what he did was not dishonest. “

These directions served crisply to focus the jury’s mind on the relevant issue in the case concerning the appellant’s knowledge and state of mind, relevant to which was his sworn evidence upon which he was cross-examined that he honestly believed he was entitled to make the claim. There was no misdirection by the judge and no failure by the judge to admit any relevant defence or aspect of the defence to be put to the jury. The jury could not have been in any doubt from the summing up that what they had to decide was whether the accused was telling the truth about his state of mind and about the falsity or genuineness of his actions.

Ground three : a substantial miscarriage of justice was occasioned by the failure of the trial judge to redirect the jury regarding the appellant’s mistaken belief upon being requested to do so by trial counsel for the appellant

75 The appellant contended that the failure to redirect the jury in relation to mistaken belief upon being requested to do so by trial counsel, left the summing-up in respect of the case of the appellant without a fair balance.

76 It was submitted that some further redirection was required because of what was said to be the vigorous and extensive cross-examination of the appellant by the Crown Prosecutor and the so-called interjection of the prosecutor’s personal views and editorial comments into the questions he was asking. The appellant’s counsel submitted that the cross-examination of the appellant verged on the unfair and had a tendency to deflect the jury from a proper assessment of the credibility of the appellant. This, it was said, was compounded by the trial judge’s direction to the jury that they must pay attention to all the questions and answers that were given by the appellant before they reached a conclusion about his evidence.

77 The criticism of the Crown Prosecutor’s cross-examination was not warranted. The cross-examination was vigorous; the case was a fraud case, on the Crown case. The Crown case was to the effect that the so-called honest belief was nothing more than dishonesty in the witness box.

78 The case very much turned upon whether the jury believed the evidence of the appellant. Plainly it did not. The claim of right as a separate head of direction had nothing to do with the matter beyond the appellant’s assertion of his honest but mistaken belief which was squarely raised by him and his counsel. The cross-examination of the appellant was vigorous, but fair.

79 This ground of the appeal fails.

80 All three grounds having failed, the appeal against conviction should be dismissed.

Appeal against sentence

81 The sentences imposed upon the appellant were as follows: as to Counts 10, 11 and 12, fixed terms of two years for each count, to be served concurrently to commence on 24 May 2007 and to conclude on 23 May 2009; as to Counts 1 to 6, fixed terms of three years for each count, to be served concurrently to commence 24 May 2008 and to conclude 23 May 2011; as to Counts 7, 8 and 9, fixed terms of three years and six months for each count, to be served concurrently to commence 24 November 2008 and to conclude on 23 May 2012, with a further period of three years parole to commence on 24 May 2012 and to conclude on 23 May 2015.

82 In other words, the appellant was sentenced to somewhat under eight years imprisonment, including three years parole and thus to serve somewhat under five years in prison.

Ground one

83 The first ground of appeal against sentence was that the sentencing judge erred in finding that the commission of offences involved a breach of trust. This involved the following reference by the sentencing judge:

“The offences are objectively serious. The total amount of money is considerable and involved a breach of trust, the Australian Taxation Office relying on the honesty of the offender to lodge legitimate GST claims with authentic supporting documents. The offences involve fraud of [sicl on] all members of the community who pay their taxes.”

84 In effect this was a reference to the self assessment system that has been the relevant taxing regime for some years. This system relies on the honesty of individual taxpayers, subject to the conducting of audits. The evidence given by Mr Bowmer of the ATO was as follows:

“The Federal tax system is based on self assessment, which was introduced a number of years ago, and what that means is that the Commissioner accepts that taxpayers take reasonable care and make an honest attempt to meet their obligations, their tax obligations, and that includes things like keeping records that they are required to keep and lodging returns and activity statements so that the information is correct. So when those statements and returns are lodged, the Commissioner will accept those and relies on the information that the taxpayer has provided that they have made a reasonable attempt and an honest attempt to meet their obligations, unless he has reason to believe otherwise and this applies to both income tax returns and business activity statements.”

85 This is in terms a kind of trust. Members of the community rely on each other for honesty for the operation of the tax system. It was a legitimate comment by the primary judge and an entirely legitimate consideration.

Ground two

86 The second ground of appeal against sentence was that the sentencing judge erred by placing disproportionate weight on the need for personal deterrence.

87 The sentencing judge referred to the need for specific deterrence as being, with other considerations and with general deterrence, an important aspect of the sentencing exercise.

88 The sentencing judge also made some remarks concerning the prospects of rehabilitation of the appellant, as follows:

“The offender has no prior convictions and this will be his first experience of prison. Given this factor and his age the experience will be more onerous than otherwise. The offender’s unblemished record, his character and his past experience in the community are indicative of good prospects of rehabilitation on the part of the offender.”

89 Thus, it was said that the reference to the need for specific deterrence was misplaced and was reflective of a harsh view taken of the appellant’s offending conduct. I do not think that there is any inconsistency in the remarks, nor do I think that the sentencing judge placed any disproportionate weight on personal deterrence.

90 The Crown’s submission stressed the importance of general deterrence. The sentencing judge in his remarks said the following:

“As I said earlier, both specific and importantly general deterrence are important aspects in the sentencing exercise and in addition, retribution, the protection of society and rehabilitation. General deterrence, because taxation fraud is notoriously difficult to detect, investigate and prosecute successfully, is very important. “

91 A review of the judge’s sentencing remarks does not indicate any overall disproportionate weight to personal deterrence inconsistent with the prospects of rehabilitation.

Ground 3

92 The third ground of appeal against sentence was that the sentencing judge erred by imposing a sentence that was unduly harsh and manifestly excessive.

93 I reject this ground. The conduct of the appellant was extensive, concerning a very large sum of money and, to a degree, brazen.

94 In my view, the overall sentence was well within the permissible range for a serious fraud on the revenue of this kind.

95 It was submitted that the appellant did not personally benefit to the full extent of the depredation on the ATO. Evidence was tendered at the sentencing hearing as to what happened to the money after it was paid. The evidence was that approximately $1.2m went into an account controlled Mr Gee and $442,000 went into the account of an entity controlled by the appellant. However, there was no evidence as to why and how this occurred. It could not necessarily be assumed that the direction of the money to Mr Gee was something other than with the consent of, and to the advantage of, the appellant.

96 Whatever be the position as to the division of the proceeds of the fraud, in my view, the sentence was a fair one given the serious imposition on the Commonwealth and the public by these frauds.

97 I would grant leave to appeal on sentence and dismiss the appeal.

98 The orders that I would make are:

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted.

3. Appeal against sentence dismissed.

99 JOHNSON J: I agree.

100 PRICE J: I agree.

**********