Stamatopoulos v The Queen
[2018] WASCA 148
•29 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STAMATOPOULOS -v- THE QUEEN [2018] WASCA 148
CORAM: MAZZA JA
MITCHELL JA
PRITCHARD J
HEARD: 9 MAY 2018
DELIVERED : 29 AUGUST 2018
FILE NO/S: CACR 141 of 2017
BETWEEN: PETER STAMATOPOULOS
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BOWDEN DCJ
File Number : IND 2058 of 2016
Catchwords:
Criminal law - Appeal against sentence - 60 counts of dishonestly obtaining a financial advantage from the Commonwealth of Australia by deception - Three counts of attempting to dishonestly obtain a financial advantage from the Commonwealth of Australia by deception - Total effective sentence of 8 years' imprisonment - Non-parole period of 4 years - Totality principle
Legislation:
Crimes Act 1914 (Cth), s 16A(1), s 16A(2), s 16B, s 21B
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 | : | Mr S Vandongen SC |
| Respondent | : | Mr A J C Mossop |
Solicitors:
| Appellant | : | Holborn Lenhoff Massey |
| Respondent | : | Director Of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Beard v The Queen [2003] WASCA 262
Bransby v The Queen [2010] WASCA 165
Chen v The Queen [2015] NSWCCA 122
De Hollander v The Queen [2012] WASCA 127
Dwayhi v The Queen; Bechara v The Queen [2011] NSWCCA 67
Gok v The Queen [2010] WASCA 185
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ly v The Queen [2007] NSWCCA 28
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pollock v The Queen [2012] WASCA 30
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Baunach [1999] QCA 207
R v Hawkins [2013] NSWCCA 208
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Ramanah v The Queen [2006] WASCA 112
Robertson v The Queen [2007] NSWCCA 270
Roffey v The State of Western Australia [2007] WASCA 246
Scook v The Queen [2008] WASCA 114
Thompson v The Queen [2005] WASCA 223
JUDGMENT OF THE COURT:
This is an appeal against sentence.
The appellant was charged on indictment in the District Court with 60 counts of dishonestly obtaining a financial advantage from the Commonwealth of Australia by deception, contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) (Criminal Code) (counts 1 ‑ 58, 60 and 61). The appellant was also charged with three counts of attempting to commit an offence contrary to s 134.2(1) of the Criminal Code (counts 59, 62 and 63).[1] The maximum penalty for each of these offences is 10 years' imprisonment and/or a pecuniary penalty not exceeding 600 penalty units.[2]
[1] AB 29 - 39.
[2] Crimes Act 1914 (Cth) s 4B(2); the monetary value of a penalty unit varied during the period of the offending. See par 2 of the Crown's submissions on sentence; AB 112. The difference in the value of a penalty unit is immaterial to this appeal.
On 22 June 2017, the appellant pleaded guilty on the fast‑track system and was duly convicted of all of the 63 counts in the indictment.[3] Later that day, he was sentenced by Bowden DCJ to a total effective sentence of 8 years' imprisonment with a non‑parole period of 4 years. A reparation order, pursuant to s 21B of the Crimes Act 1914 (Cth) (Crimes Act), was made requiring the appellant to pay to the Commonwealth the sum of $884,664.97.[4]
[3] ts 6 - 7.
[4] ts 42 - 51, 55 ‑ 56.
While the total effective sentence was set on 22 June 2017, its structure was, without objection, 'corrected' on 23 June 2017 and 21 July 2017. The structure of the total effective sentence set out in the table below reflects the order made on 21 July 2017.[5]
[5] ts 55 - 56, sentencing remarks ts 2 ‑ 4.
Count
Sentence
1 - 17
14 months' imprisonment, commencing on 22 June 2017
18 - 32
14 months' imprisonment, commencing on 22 August 2018
33 & 34
14 months' imprisonment, commencing on 22 October 2019
35 - 40
14 months' imprisonment, commencing on 22 December 2020
41 - 57
14 months' imprisonment, commencing on 22 February 2022
58, 60 & 61
14 months' imprisonment, commencing on 22 April 2023
59, 62 & 63
12 months imprisonment, commencing on 22 June 2024
Total effective sentence
8 years' imprisonment
The appellant does not challenge any of the individual sentences (or the reparation order).[6] The sole ground of appeal alleges that the total effective sentence infringed the first limb of the totality principle. The question of leave to appeal in respect of this ground was referred to the hearing of the appeal.[7]
[6] Appellant's submissions, par 15; AB 11; appeal ts 63.
[7] Order 8 October 2017; AB 6.
For the reasons that follow, we are of the view that leave to appeal must be refused and the appeal dismissed.
The facts
The appellant did not dispute, either at first instance or in this court, the extensive and detailed statement of material facts read to the sentencing judge by the Crown prosecutor.[8] The statement, and the annexures to it, were included in the prosecution brief. These are the salient facts.
[8] ts 21; appeal ts 63 ‑ 64, 69.
The 63 offences committed by the appellant related to the lodgement with the Australian Taxation Office (ATO) of 112 income tax returns containing false information, which resulted in the payment of $2,007,060.97 in tax refunds, of which the appellant obtained $1,795,849.13. The three attempted offences involved refunds the payment of which was stopped by the ATO when the offending was discovered.[9]
[9] ts 8.
The appellant qualified as a chartered accountant in 1991, and commenced as one of three directors of Stirling Partners Pty Ltd (Stirling Partners) in 2007. He remained a director until 1 October 2015.[10]
[10] ts 13.
Stirling Partners provided accounting services to its clients. These services included the preparation and lodgement with the ATO of income tax returns for individuals, trusts and companies. Stirling Partners had access to the ATO's electronic lodgement system for accountants, known as 'HandiTax'.[11]
[11] ts 12 - 13.
Between 21 October 2011 and 8 September 2015, the appellant used the Stirling Partners' computer system to access HandiTax to lodge fraudulent income tax returns for eight family members and 19 clients of Stirling Partners, without their instructions or consent.[12]
[12] ts 14.
The appellant's modus operandi was sophisticated and involved many individual acts of dishonesty.[13] In essence, the appellant would, at first instance, prepare and lodge legitimate income tax returns on behalf of clients, individuals, companies and trusts. He would then lodge amended returns which contained false entries that related to dividends and franking credits, without his clients' knowledge or consent. These amended returns resulted in tax refunds being paid by the ATO, which the taxpayer was not entitled to receive.[14]
[13] ts 43.
[14] ts 14.
Of the $2,007,060.97 paid by the ATO as a consequence of the appellant's dishonest scheme, $1,250,017.54 was paid into the Stirling Partners' trust account, and $757,043.43 was paid into an account in the name of the Stamatopoulos Family Trust, which was controlled by the appellant.[15]
[15] ts 16.
In order to access the money paid into the Stirling Partners' trust account, the appellant forged his clients' signature on 16 authorities, which authorised the payment of various sums into one of seven bank accounts he controlled. These authorities were given to Stirling Partners' bookkeeper, who believed them to be genuine. Nearly all of the money paid into the Stirling Partners' trust account was paid to the appellant in accordance with the fraudulent authorities. However, $211,211.84 was not transferred to the appellant because on 2 October 2015, the remaining Stirling Partners directors discovered and reported the appellant's fraud to the ATO. This sum was subsequently repaid to the ATO.[16]
[16] ts 16.
On 8 October 2015, Australian Federal police officers and ATO investigators executed a search warrant at the appellant's home.[17] On 12 October 2015, a search warrant was executed on the premises of Stirling Partners.[18]
[17] ts 16.
[18] ts 17.
On 16 October 2015, the appellant voluntarily participated in a formal record of interview with ATO investigators. In that interview, the appellant provided and read from a prepared written statement. The statement was not a full and frank disclosure of all his fraudulent activities. The appellant misled investigators by saying that no family members' tax returns were included in his fraudulent scheme. However, the appellant told the ATO investigators that the money he had obtained was used to pay for his home mortgage, everyday incidental expenses, a car lease with BMW, share purchases and a payment to a property developer.[19]
[19] ts 17, 25.
On 16 October 2015, the Commissioner of the Australian Federal police obtained orders over property effectively controlled by the appellant pursuant to s 18 and s 19 of the Proceeds of Crime Act 2002 (Cth). The assets the subject of the order comprised real estate, a share portfolio and funds held in eight bank accounts.[20]
[20] ts 18.
On 22 June 2016, the appellant consented to the forfeiture of all of the restrained property to the Commonwealth of Australia. The value of that property was approximately $850,000.[21]
[21] ts 18.
On 12 October 2016, the appellant signed a list of admissions pursuant to s 32 of the Evidence Act 1906 (WA) which was given to ATO investigators, admitting, amongst other things, the conduct alleged in the statement of material facts and that this conduct was knowingly dishonest . Charges against the appellant were laid in early November 2016, and the appellant entered pleas of guilty to those charges in the Perth Magistrates Court at his first appearance on 18 November 2016.[22]
[22] ts 19, 26 - 28, 42 ‑ 43, 45, 47.
The sum the subject of the reparation order is the amount of money not recovered by the Commonwealth of Australia.[23]
[23] ts 8.
The appellant's antecedents
At the time he was sentenced, the appellant was 51 years of age. He is married and has three young children. His offending has had a devastating effect upon his family.[24]
[24] ts 47.
The appellant experienced a difficult upbringing. His parents placed high expectations upon him which, despite his efforts, could not be satisfied. As a result, the appellant perceived that he was not a person of worth unless he was materially wealthy.[25]
[25] ts 45 ‑ 46.
The sentencing judge was provided with a number of character references which spoke well of the appellant. It was said that the offences were out of character, that he was a good provider for his family, and that he had performed voluntary work in the past.[26] The appellant has no prior criminal history.[27]
[26] ts 45 - 46.
[27] ts 47.
In addition to the character references, the sentencing judge was provided with a pre‑sentence report dated 17 January 2017; a psychiatric report written by Dr S D Febbo, a consultant psychiatrist, dated 24 March 2017; and a psychological report from Ms Julie Hasson, a forensic psychologist, dated 14 December 2016. Of these reports it is only necessary to refer to the one written by Dr Febbo.
Dr Febbo reported, and his Honour accepted, that the appellant suffered from bipolar disorder, which had previously been undiagnosed.[28] Dr Febbo also reported that the appellant described to him episodes of pathological elevation of mood or hypomania. Dr Febbo stated that at the time of his offending, the appellant was in one of these episodes which included excessive energy, a heightened level of self‑esteem, a diminished need for sleep and a sense of grandiosity. Dr Febbo noted that the appellant described significant personality pathology and fulfilled the diagnostic criteria for a paranoid personality disorder, with significant borderline and narcissistic personality traits. Dr Febbo also noted that the appellant was, at the time the report was written, depressed.[29]
[28] Dr Febbo's report, page 7; ts 46.
[29] Dr Febbo's report, page 8; ts 46.
Dr Febbo wrote that the appellant acknowledged that the reason for his offending was 'greed'.[30] In Dr Febbo's opinion it was likely that the reasons for the appellant's offending were complex and, in part, related to both his bipolar disorder and personality pathology.[31] In Dr Febbo's opinion the appellant's mental health issues contributed to the offending to a significant degree. He assessed the appellant's risk of reoffending as 'at the lower end of the spectrum'.[32]
[30] Dr Febbo's report, page 9, ts 29.
[31] Dr Febbo's report, page 9.
[32] Dr Febbo's report, page 9; ts 46.
The victim impact statements
His Honour received victim impact statements from the two remaining directors of Stirling Partners. As a result of the appellant's fraudulent behaviour, Stirling Partners has directly or indirectly incurred various costs, including legal fees ($50,745) and the engagement of external auditors ($10,017). In addition to these and other costs, the directors and other employees have spent considerable time with officers from the ATO, the Australian Federal police and other entities, which might otherwise have been used to generate professional fees. Some clients left the practice as a result of the commission of the offences. The offending has affected Stirling Partners' reputation and has affected the profitability and value of the practice.[33]
[33] ts 45.
The sentencing remarks
The aggravating circumstances identified by the sentencing judge were:
1. The offending involved a flagrant breach of trust with respect to the appellant's obligations to the ATO, Stirling Partners, members of his family, the clients of his firm, and the wider community.[34]
2.The appellant used his knowledge of the ATO's system to carry out the fraud.[35]
3.He defrauded the Commonwealth of Australia of a large sum of money.[36]
4.The offences were committed in a systematic way involving the making of 'numerous [fraudulent] entries' over a long period of time, and he instructed people he worked with to pay the refunds into bank accounts he controlled.[37]
5.The offences were not committed out of need but, rather, by a desire to be seen as successful and to have the trappings of material success.[38]
[34] ts 44.
[35] ts 44.
[36] ts 36, 47.
[37] ts 43 ‑ 44.
[38] ts 44.
The sentencing judge took into account the following mitigating factors:
1.The appellant entered early pleas of guilty.[39]
2.The pleas of guilty facilitated the administration of justice by obviating the need for a trial which would have occupied 'a considerable period of time'.[40]
3.The appellant had cooperated with the ATO and consented to the forfeiture of assets that had been made the subject of a property restraining order. He had also made formal admissions to the elements of the offences and to the facts alleged in the statement of material facts.[41]
4.The appellant was genuinely remorseful for what he had done.[42]
5.He had no prior record and was otherwise of good character.[43]
6.The appellant was not likely to reoffend and there were excellent prospects of him being rehabilitated.[44]
7.At the time of the commission of the offences the appellant was suffering from an undiagnosed mental illness, namely bipolar disorder which affected his moral culpability,[45] and was causally connected to the offending.[46]
8.The delay between the discovery of the appellant's fraudulent behaviour and charges being laid.[47]
[39] ts 45.
[40] ts 44.
[41] ts 43, 45.
[42] ts 44, 47.
[43] ts 47.
[44] ts 47 ‑ 48.
[45] ts 46.
[46] ts 47.
[47] ts 47.
His Honour found that there was 'very little need' for personal deterrence. However, general deterrence was a relevant sentencing consideration. His Honour regarded the appellant's offending as very serious and that notwithstanding the mitigating factors, significant sentences were required in order to adequately punish the appellant for what he had done.[48]
[48] ts 47 - 48.
The appellant's submission in support of the ground of appeal
Senior counsel for the appellant acknowledged the seriousness of the appellant's offending.[49] In his oral submissions, senior counsel emphasised the mitigating circumstances identified by the sentencing judge, some of which he said 'were quite unusual',[50] and went 'above and beyond the ordinary sort of mitigating circumstances'[51] that were found in cases of this nature. In this regard, senior counsel pointed to:
1.The appellant's voluntary interview with ATO investigators on 16 October 2015, although he acknowledged that the appellant had not been full and frank in that interview.[52]
2.The appellant consented to the forfeiture of the restrained property.[53]
3.The making of admissions pursuant to s 32 of the Evidence Act prior to charges being laid which effectively admitted all of the elements of the offences and the facts contained in the statement of material facts.[54]
4.The period of delay in the matter coming to court caused the appellant stress and anxiety.[55]
[49] Appeal ts 66.
[50] Appeal ts 67.
[51] Appeal ts 67.
[52] Appeal ts 67.
[53] Appeal ts 67.
[54] Appeal ts 68 - 69.
[55] Appeal ts 75.
Senior counsel referred the court to a number of cases said to be comparable to the present case, including those referred to by the respondent at first instance, being: Ly v The Queen;[56] Thompson v The Queen;[57] Ramanah v The Queen;[58] R v Baunach;[59] Gok v The Queen;[60] Bransby v The Queen;[61] and Dwayhi v The Queen; Bechara v The Queen.[62]
[56] Ly v The Queen [2007] NSWCCA 28.
[57] Thompson v The Queen [2005] WASCA 223.
[58] Ramanah v The Queen [2006] WASCA 112.
[59] R v Baunach [1999] QCA 207.
[60] Gok v The Queen [2010] WASCA 185.
[61] Bransby v The Queen [2010] WASCA 165.
[62] Dwayhi v The Queen; Bechara v The Queen [2011] NSWCCA 67.
In addition to these cases, senior counsel also made reference to Chen v The Queen;[63] Beard v The Queen;[64] R v Hawkins;[65] and Robertson v The Queen.[66]
[63] Chen v The Queen [2015] NSWCCA 122.
[64] Beard v The Queen [2003] WASCA 262.
[65] R v Hawkins [2013] NSWCCA 208
[66] Robertson v The Queen [2007] NSWCCA 270.
In oral argument, senior counsel said that Thompson was the case most analogous to that of the appellant.[67]
[67] Appeal ts 77.
The respondent's submission in respect of the ground of appeal
Counsel for the respondent submitted that the appellant's offending was 'extremely or exceptionally serious'.[68] He emphasised the serious breach of trust, the amount of money that was defrauded, the period of time over which the offences were committed, and the 'multiple acts of dishonesty' committed by the appellant.[69]
[68] Appeal ts 81.
[69] Appeal ts 81.
Counsel for the respondent acknowledged the mitigating factors identified by the sentencing judge, but submitted that notwithstanding these factors, the total effective sentence was appropriate.[70] With respect to the comparable cases, the respondent's counsel submitted that Ramanah was the most comparable.[71]
[70] ts 81 ‑ 85.
[71] Appeal ts 85.
Relevant legal principles
Division 2 of pt 1B of the Crimes Act sets out the general sentencing principles applicable to federal offenders.[72] Section 16A(1) of the Crimes Act provides that in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a sentencing court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. By s 16A(2), a court must take into account such of the matters listed in that subsection that are relevant and known to the court.[73]
[72] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [23].
[73] De Hollander v The Queen [2012] WASCA 127 [67] ‑ [68].
It has been held that the totality principle is consistent with provisions of the Crimes Act applicable to the sentencing of federal offenders. In particular, s 16B requires a court sentencing a federal offender to have regard to any other sentences already imposed on the person.[74] The totality principle was described by McLure JA in Roffey v The State of Western Australia.[75] It is a species of implied error of the type referred to in House v The King.[76] Although Roffey concerned the sentencing of an offender under state law, her Honour's statement of the relevant principle reflects the law applicable to federal offenders. A sentence is required to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all the offences viewed in their entirety and having regard to the circumstances of the case including those referable to the offender personally.[77]
[74] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308.
[75] Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26].
[76] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505.
[77] See also Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 615, 621, 623 ‑ 624.
In R v Pham,[78] the High Court restated how comparable cases are to be treated in the sentencing of federal offences.[79] Part 1B of the Crimes Act does not specifically provide that in sentencing federal offenders, judges are to take into account current sentencing practices. This obligation arises as a matter of common law.[80] An Australia‑wide approach is taken to the sentencing of federal offenders to ensure consistency across the States and Territories.[81] The point of judges in intermediate appellate courts having regard to cases decided by other comparable courts throughout the Commonwealth is twofold: first, they can and should provide guidance as to the identification and application of relevant sentencing principles and secondly, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or and impugned sentenced. This does not mean that the range of sentences so disclosed is necessarily the correct range or otherwise determinative of the upper and lower limits of an appropriate sentencing discretion.[82]
[78] R v Pham [2015] HCA 39; (2015) 256 CLR 550.
[79] Pham [26].
[80] Pham [23].
[81] Pham [19] ‑ [20].
[82] Pham [26] ‑ [27].
The High Court re‑emphasised the following:[83]
(1)Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2)The consistency that is sought is consistency in the application of the relevant legal principles.
(3)Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4)Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5)For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
(6)When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.
(7)Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle. (footnotes omitted)
[83] Pham [28].
Disposition
The submission made by the respondent as to the seriousness of the offending should be accepted. The appellant engaged in a systematic fraud of the revenue over a long period of time, and obtained a large sum of money. His conduct was an abuse of the privilege and responsibility afforded to him as a chartered accountant. The offences committed by the appellant exploited the self‑assessment scheme upon which the taxation system relies. The offending involved multiple dishonest acts, including acts of forgery. He used Stirling Partners' bookkeeper to unwittingly assist him to carry out his illegal scheme. His offending has had a serious impact upon the remaining directors of the practice. 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.[84] 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.[85]
[84] See De Hollander [129].
[85] Pollock v The Queen [2012] WASCA 30 [25].
The mitigating factors identified by the sentencing judge, including those emphasised by senior counsel for the appellant, must be acknowledged and given appropriate weight, but they cannot lead to the imposition of a penalty which is disproportionate to the gravity of the offences.[86] The appellant's pleas of guilty at the first reasonable opportunity, his formal admissions, his cooperation in the forfeiture proceedings and his genuine remorse were matters of substantial importance.
[86] Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 [53].
Some of the other mitigatory factors were of less importance in this case, including the appellant's prior good character, the impact of delay and his mental health issues.
The appellant's prior good character has only limited weight because it was by reason of his good character that he was in the position to commit the offences.
As for delay, having regard to the applicable principles described in Scook v The Queen,[87] the appellant was perhaps fortunate that his Honour gave any mitigating weight to this factor. The delay in charging the appellant was not great, having regard to when the appellant's fraudulent behaviour came to light and the complexity of the investigation that followed.
[87] Scook v The Queen [2008] WASCA 114 [58] ‑ [65].
With respect to the appellant's mental impairment, we make a number of observations. First, there is no evidence that the appellant's mental impairment adversely impacted on his ability to discern that what he was doing was wrong or to restrain himself from offending as he did over a long period of time. Secondly, the effect of Dr Febbo's report was that the appellant reported to him two episodes of hypomania, one in 2007 and the other was said to have occurred 'two or three years ago'.[88] As Dr Febbo spoke to the appellant in early 2017, this means that the second episode of hypomania occurred, at best for the appellant, in 2014. Given that the appellant's offending started in 2011, it is difficult to see how any known episode of hypomania impacted on all of the appellant's offending. Thirdly, Dr Febbo does not explain, and it remains unclear, just how the appellant's hypomania was causative of his offending or reduced his moral culpability. Lastly, it was not suggested that the appellant's mental impairment was the only cause of the offending, or that it was the dominant cause of his offending. At best, it was a cause of the appellant's offending; it was not a matter of great significance. Senior counsel for the appellant 'specifically submit[ted]' in the hearing of the appeal that the other matters were more significant mitigating circumstances.[89]
[88] Dr Febbo's report, page 3.
[89] Appeal ts 73.
The number of comparable cases cited by the parties involving fraud of the magnitude committed here is small. It is not possible to draw from such a small number of cases a clearly discernible sentencing pattern. The cases which are most factually analogous to the present case are: Beard, Thompson and Ramanah.
In Beard, the offender pleaded guilty to one count of engaging in organised fraud contrary to s 83(1) of the Proceeds of Crime Act 1987 (Cth). The offence had been committed between 29 May 1997 and 16 March 2000. The offender defrauded the Commonwealth by lodging false and amended income tax returns.[90] In this period, the offender defrauded the Commonwealth of amounts totalling approximately $600,000, by committing over 300 separate acts of fraud in respect of 192 clients.[91] At all relevant times, the offender was employed by a chartered accountant, and conducted his own bookkeeping business. He was not, himself, an accountant or a registered tax agent.[92] The offender was sentenced to 9 years' imprisonment with a non‑parole period of 4 years 6 months.[93] The sentence was not disturbed on appeal.[94]
[90] Beard [4].
[91] Beard [8].
[92] Beard [7].
[93] Beard [3].
[94] Beard [53].
In Thompson, the offender pleaded guilty on the fast‑track system to 158 counts, including 155 of dishonestly obtaining a financial advantage contrary to s 134.2(1) of the Criminal Code. The offences involved a total amount of $3,106,447, of which the offender received $3,068,182.51.[95] At all relevant times, the offender was a chartered accountant, a registered tax agent and a registered financial adviser.[96] Over a period of just over four years, the offender falsified, in various ways, 158 income tax returns and thereby fraudulently obtained tax refunds which were paid to him.[97] In November 2003, after learning that he was under investigation, the offender left Australia.[98] However, on 4 December 2003, he returned to Perth to 'face the music'.[99] The offender cooperated with the Australian Federal police and helped them recover a large portion of the money he had defrauded.[100] The offender suffered from mental impairment more serious than that of the appellant in the present case. The offender was sentenced to a total effective sentence of 6 years 6 months' imprisonment with a non‑parole period of 3 years 3 months, which was not disturbed on appeal.[101]
[95] Thompson [1].
[96] Thompson [4].
[97] Thompson [7].
[98] Thompson [13].
[99] Thompson [14].
[100] Thompson [15].
[101] Thompson [2].
Steytler P (with whom McLure JA agreed) undertook a review of sentences imposed in other cases and noted that the sentence imposed on the offender was 'a good deal lower than might be expected in an ordinary case of fraud of this magnitude'[102] even allowing for the matters in mitigation. He concluded that the sentence was of a severity appropriate in all of the circumstances, including the contribution that the offender's mental impairment had to the offending.[103]
[102] Thompson [77].
[103] Thompson [78].
In Ramanah, the offender was sentenced to 9 years' imprisonment with a 4 year 6 month non‑parole period in respect of 184 offences of defrauding the Commissioner of Taxation. The offences were committed over a period in excess of eight years, and benefit to the offender exceeded $1.5 million.[104] At all relevant times, the offender was a registered tax agent who amended his clients' tax returns without their knowledge in order to fraudulently claim rebates to which they were not entitled, which he kept for himself.[105] In order to keep track of his deceit, the offender used a computer generated spreadsheet containing details of the fraudulent refunds and of the various schemes he used.[106] The offender had previously worked in the audit section of the ATO.[107] The offender had good antecedents and had pleaded guilty.[108] His appeal against sentence was dismissed.[109]
[104] Ramanah [2].
[105] Ramanah [3].
[106] Ramanah [4].
[107] Ramanah [11].
[108] Ramanah [14] ‑ [15].
[109] Ramanah [1], [24] ‑ [25].
Insofar as such a small number of cases can be of assistance, they reveal outcomes broadly comparable with the sentence that was imposed upon the appellant. The cases do not assist the appellant's claim that the total effective sentence imposed upon him infringed the first limb of the totality principle.
Before leaving the comparable cases, we will mention Chen. In that case, the offender was convicted after trial of 23 offences of dishonestly obtaining a financial advantage from the Commonwealth of Australia, and four offences of attempting to obtain a financial advantage.[110] The offender fraudulently obtained approximately $1.4 million.[111] He was sentenced to a total effective term of 10 years' imprisonment with a non‑parole period of 6 years.[112] The offender's appeals against both conviction and sentence were dismissed.[113] While Chen has factual similarities to the present case, it has no real utility because the appeal against sentence was based upon a single ground of appeal that alleged an express error.[114]
[110] Chen [1].
[111] Chen [9].
[112] Chen [2].
[113] Chen [3] ‑ [4].
[114] Chen [73].
Having regard to all relevant sentencing factors, we are far from persuaded that the total effective sentence imposed upon the appellant in this case infringed the first limb of the totality principle. The total effective sentence imposed upon him, including the non‑parole period, bore a proper relationship to the appellant's overall criminality involved in all of the offences viewed in their entirety and having regard to the circumstances of the case, including those referrable to the offender personally. Implied error has not been established.
The orders that we would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES MURPHY & MAZZA29 AUGUST 2018
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