The Queen v Sioli

[2020] VCC 1607

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00935

THE QUEEN

v

POLEVIA SIOLI

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 2020
DATE OF SENTENCE:	7 October 2020
CASE MAY BE CITED AS:	The Queen v Sioli
MEDIUM NEUTRAL CITATION:	[2020] VCC 1607

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms L. Palmisano	Commonwealth Director of Public Prosecutions
For the Accused	Mr R. de Vietri	Victoria Legal Aid

HIS HONOUR:

Introduction

1Mr Sioli, you have pleaded guilty to one charge of dishonestly causing a risk of a loss to the Commonwealth between 6 September 2006 and 4 September 2007.

2This charge encompasses 27 false income tax returns.

3At the time you committed this offence, the maximum penalty was five years’ imprisonment or a fine of $33,000 or both a fine and imprisonment. Since then the maximum penalty for the offence has been raised. However, you are subject to the maximum penalty applying at the time you committed the offence. 

Circumstances

4The circumstances of your offending are set out in the prosecution summary, which is Exhibit A. You agree with its contents through your counsel. 

5Over a period of a year in 2006 and 2007, you prepared and lodged 27 income tax returns for 26 persons. These returns were false in that they inflated the amount of the deductions and offsets. In due course, each of those persons received refunds, which were paid to your account, from which you deducted a fee, varying between $100 and $1500. The total amount of the refunds paid into your account was $203,692.49. Three other refunds were sent to the taxpayer directly.

6The loss to revenue of these dishonest returns is at least $101,750.85, from which you received $39,353.12.

7During 2007 and 2009, you left Australia and then returned.

8In June 2009, there was an unsuccessful attempt to interview you formally.

9On 8 August 2009, you left Australia. You stayed away until 14 December 2019, when you arrived in Brisbane. You were then arrested. You spent 33 days in custody until released on bail.

Criminal history

10You have no previous convictions or findings of guilt.  In fact, you have no subsequent convictions or findings of guilt.

11On 30 July 2020, you entered a plea of guilty. This was the fifth committal mention hearing in this matter, the others having occurred between 7 April and 30 July. In terms of court events, it is an early plea of guilty.

12In your case, this plea is clear evidence of your remorse. The fact of remorse is further evidenced in the letters written by your friends and relatives. Remorse is significant for it points to a desire not to re-offend. 

13It has the utilitarian benefit of avoiding the cost and delay of a trial. I note the indictment lists many witnesses of which 26 witnesses are your former clients. By pleading guilty when you did, you spared a great many people the ordeal of giving evidence at a committal hearing and subsequent trial. That number of witnesses suggests a trial of several weeks. Your plea has saved the cost and delay of the trial. It has also helped the administration of justice by making space for other cases which require a trial.

Pre-sentence detention

14As has been repeatedly said to me, there are 33 days of pre-sentence detention.

Personal

15You are now 55. You were born and raised in Samoa. Between 1992 and 1998, you lived in American Samoa. You married Merita and have four adult children.

16Between 1998 and 2004, you and your family lived in New Zealand.

17In 2000, Merita died in a motor vehicle accident. You were injured in that accident.

18In 2001, you completed a Diploma in Office Administration. You started a degree course in accounting but stopped after two years.

19Between 2004 and 2007, you and your children lived in Australia. You found work at a chicken farm. By 2007, the available work had become sporadic. The financial impact forced you, your then partner and children to leave your rented premises. After staying with your sister, you found a home with a friend. It was a squeeze with the sharing of bedrooms. It was while staying there that most of the taxation returns were prepared and lodged.

20You prepared these returns to gain money to help to find stable accommodation and with your childrens’ education.

21On 21 October 2007, you and your family left Australia. Your mother had conferred on you the title of “Matai”, which meant you were the chief of the family group. From then until 2014, you lived mainly in Samoa.

22In 2012, you married Sina. You and she have three young children. You became the adoptive father of her three children, triplets, now aged 10.

23In 2014, you and your family moved to New Zealand where you gained work as a truck driver.

24In 2017, you suffered a minor heart attack.

25In December 2019, you and two of your children flew to Brisbane. You intended to visit your mother and your siblings living in Queensland. You were arrested at the airport. You were much surprised. You suffered chest pains. You were taken to hospital and remained an inpatient for four days. After discharge from hospital, you were detained and then extradited to Victoria.

26In Victoria, you and your two children lived with a niece in Hoppers Crossing. Your wife and the other children remain in New Zealand. You are not eligible for Centrelink payments. You found some work which paid little. You have not worked since June 2020.

27You suffer from Type 11 diabetes and are treated for it.  It is clear that you suffered a minor heart attack in December of 2017. You also suffer from injuries sustained in a motor vehicle accident in 2014.  

Discussion

28Your counsel concedes a sentence of imprisonment is appropriate. However, he submits an immediate release is also appropriate so that you do not serve any further time in custody. He relies on a number of matters: 

(a) I have described the significance of your plea of guilty. The letters from your family and friends speak of your character and your remorse. I accept you are remorseful; 

(b) until this offence, you were of good character;

(c) you have used the long delay in dealing with this charge by remaining of good character. Although the prosecution quotes an important judicial comment about the lack of significance of good character in white collar crime, what has happened with you before and after the commission of this offence means the prospect of your re-offending generally is minimal. I should add that the prosecution agrees the delay is not due to you trying to avoid prosecution. As such, you should be given full benefit of the delay;

(d) you have spent 33 days in custody following your arrest in Brisbane;

(e) your health is poor;

(f) you are responsible for a family, which includes six dependent children;

(g) you have been separated from your family in New Zealand since your arrest;

(h) as a person of strong religious commitment, you are ashamed of your actions;

(i) you are most unlikely to re-offend or, put differently, your prospects of rehabilitation are excellent.

29As to your culpability, your counsel submits, and I accept, it is in the middle range of seriousness for this offence. The offence involved a significant amount of money, carried out over a year with the taxation returns of 26 persons and where your actions were hidden from your clients. Many of those persons came from the Samoan community. Most of them believed you were a proper tax agent.

30Your counsel raised the dichotomy between offending for the purposes of need and not greed. It is usually raised in social security matters. In any event, your counsel relies on it to negate the possibility of greed. As such, it is a neutral issue in sentencing in this case.

31Despite your counsel’s submission, general deterrence is an important purpose of sentencing in your case. There is a need for complete honesty in dealing with taxation matters. My sentence should emphasize the need. As the prosecution points out, it is a process of a taxpayer or his or her agent preparing a taxation return. The return is then assessed by the taxation authorities on the basis of the information contained in the return. Accordingly, there is a need for complete honesty in completing the return.

32There is another aspect of general deterrence. As the Court said in R v Gregory[1] :

“A sentence imposed for fraud upon the taxation revenue is intended to reaffirm basic community values that all citizens according to their means should fairly share the burden of the incidence of taxation so as to enable government to provide for the community, that the revenue must accordingly be protected and that the offender should be censured through manifest denunciation. When these considerations are not reflected in the responses of the courts, the criminal justice system itself fails to achieve its objectives.”

[1] [2011] 34 VR 1 at [57].

33Your offence showed a degree of sophistication. By using your residential address as the address of your clients, it meant in all bar three instances, the notices of assessment and the refunds came to you and not to your clients. They never knew that you put false figures in their returns and they never saw the actual refunds from the Tax Office. 

34Generally, detection of false income tax returns is a difficult and labour intensive process. In your case, the investigation started through the identification of common IP addresses, which was unusual for the E-Tax platform. That was the start. However, the rest of the investigation involved interviewing the available taxpayers. This took time and effort. You left Australia before a formal interview of you could take place. 

35Specific deterrence is also a relevant sentencing consideration in your case. Despite your excellent prospects for rehabilitation, you are still subject to the vagaries of life. At your age, you have a wife and six dependent children to look after financially. In 2007, you found yourself in financial difficulty and behaved dishonestly to provide for your family. There remains a slight possibility the temptation may arise again.

36Again, there is a need to denounce this offence through my sentence.

37Finally, I agree with the prosecution submission that your telephone conversation of 31 August 2007 does not amount to a partial admission and should not be construed as you co-operating with the authorities. 

Comparative cases

38Apart from the case of Gregory, your counsel also referred me to two sentences of judges of this Court. The prosecutor supplied a table of comparative cases of intermediate courts of appeal.

39The prosecution agrees a sentence of imprisonment with an order for immediate release is within the range of an appropriate sentence.

40I have considered all other available sentences before reaching a sentence of imprisonment. None is appropriate in your case. 

Sentence

41Accordingly, I sentence you to 12 months' imprisonment and I direct you be released immediately upon giving security by recognisance in the sum of $100 to comply with the condition that you be of good behaviour for a period of two years.

42Mr Sioli, the effect of my sentence is that you have a sentence of imprisonment hanging over your head for two years. During that period, if you commit an offence punishable by imprisonment that will breach your recognisance and you may be ordered to serve the year in prison. You may also be required to pay the $100.

43I might add that a recognisance release order may be discharged or varied under s.20AA of the Crimes Act 1914 of the Commonwealth.

Reparation

44The prosecution seeks reparation of $101,750.85. You oppose the making of the order. Your counsel submits your plea of guilty does not admit the actual loss of revenue to the Australian Taxation Office. It admits only the risk of loss.

45Your counsel submits I cannot find a figure of actual loss, and relies upon the examples of the taxpayers, Clamp[2] and Newman[3].

[2] ‘Clamp’ is a pseudonym applied for anonymisation purposes.

[3] ‘Newman’ is a pseudonym applied for anonymisation purposes.

46With Clamp, the amount claimed for donations was $5000. When asked, he did not donate that amount but only small amounts.  In point of fact the figure of $100 was substituted and that related to a lottery ticket of $100, which is not a donation to a charity.  In fact, the substituted figure is generous. 

47With Newman, I would interpret her answer to the investigator to mean there were no such expenses. Treating the figure as zero is reasonable.

48The figure of $101,750,85 is calculated using a programme called WINTAP. This programme is used by the staff of the Australian Taxation Office to assess income tax returns generally. Coupled with the information supplied by the individual taxpayers in this case has led to that figure. The figure has moved beyond the idea of “risk of loss” to an actual loss. The actuality of the loss is not influenced by three of the taxpayers saying their deductions were understated. Since they do not say by how much, the information is too slender to make any findings. I am satisfied the actual loss to revenue is $101,750.85. I am prepared to make a reparation order in that amount.

S 6AAA equivalent

49In the absence of your plea of guilty, I would have sentenced you to
16 months’ imprisonment with immediate release and the same recognizance amount and period of good behaviour.  Do you understand those matters,
Mr Sioli?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  I will at the end of the hearing give your counsel an opportunity to use this video link to have a conversation with you in private if that is what he wishes.

52Finally, Ms Palmisano and Mr de Vietri, members of the media have been listening to this proceeding this morning and they have sought access to the indictment, the prosecution opening and the defence response, each of which I have made - not the indictment, but the other two documents are exhibits.

53Do either of you have any objection to me allowing them access to those documents or any of them?

54MS PALMISANO:  Your Honour, if I may, could I just make a phone call to obtain some instructions?

55HIS HONOUR:  Yes.

56MR de VIETRI:  I may also ask of the same indulgence, Your Honour, just to confirm.  I was aware that there were media but in relation to the specific documents I will just seek instructions on that if I may.

57MS PALMISANO:  Sorry, Your Honour, I cut across you.

58HIS HONOUR:  That is all right.

59MS PALMISANO:  I just wanted to confirm the sentence.  Was it 12 months' imprisonment released forthwith on a $100 recognisance for two years?

60HIS HONOUR:  Indeed that is right.

61MS PALMISANO:  Thank you, Your Honour.

62MR de VIETRI:  Your Honour, may I just raise a matter of practicality?  Your Honour and Your Honour's associate may have turned their mind to this but I've recently appeared in a matter where a community corrections order was imposed which of course requires ordinarily signature and that signature and my understanding is now being replaced with a verbal consent.

63The recognisance release order is of course a promise to the court which is ordinarily done by signature on that recognisance.  It could be arranged for
Mr Sioli to sign that document and return it to the court through my instructor somehow but I am just raising it as a matter of practicality as to maybe the Commonwealth prosecutor may be able to inform the court as to how that has been occurring.

64HIS HONOUR:  Before she speaks I had a discussion with my associate this morning about this issue and he says there is a practice.  Perhaps if you would, Mr Associate, just indicate what you understand to be the practice?

65ASSOCIATE:  Yes, I think the approach is taken now in this current climate is that he can indicate his verbal consent here with a video link and I can put it on that actual order.

66MR de VIETRI:  Yes, that is certainly how I have noted that it has been occurring with community corrections orders and I have no objection to
Mr Sioli undertaking that recognisance or in other words promise to the court verbally and it being transcribed and noted by Your Honour's associate.

67MS PALMISANO:  Yes, Your Honour, the Commonwealth DPP did receive an email from Winnie Wang who is the senior administrator of the criminal division of the court and so the court's view is that it is entered into verbally with Your Honour announcing the offender's agreement was audio visually recorded and then noting on the court's copy that there was an 'AVL agreement in place' and that is to be put where the offender's signature would otherwise usually have been.

68HIS HONOUR:  Thank you, all of you for that.

69MS PALMISANO:  Your Honour, if we may now perhaps make those phone calls?

70HIS HONOUR:  By all means.  My associate will interrupt the process.  We will pause it for the moment while we allow that to happen.  I imagine it would take you five or ten minutes so we will just pause it for the moment and when you are already again, including you, Mr Sioli, we will all be brought back on the screen.  Can you do that, Mr Associate?

71ASSOCIATE:  Your Honour, I think perhaps the easiest way would be for them to mute themselves and turn their cameras off while they make those enquiries and then just come back on when they are ready to go.

72MS PALMISANO:  Thank you, Your Honour.

73HIS HONOUR:  Mr Sioli seems to have done that with alacrity.  I will leave me here, Mr Associate.  Mr Associate, did you find out anything about good behaviour?

74ASSOCIATE:  No, Your Honour, I did not manage to find out anything in regards to that.

75MR de VIETRI:  Thank you for that opportunity, Your Honour.  I have explained to Mr Sioli the fact that a promise is usually undertaken by way of signature but on this occasion Your Honour will ask for a promise to be made verbally, so he understands that now.

76In relation to the media application there is no opposition to those three documents being provided.  If Your Honour may consider making an order that names of family members are not published?  I just note that the defence submissions particularly have the names of children and other family members and in my submission it would not be appropriate if those names were published.

77If Your Honour is minded to make such an order or I could provide a redacted copy with those names and details redacted if Your Honour thinks that is the appropriate course.

78HIS HONOUR:  Thank you.  From the prosecution's side?

79MS PALMISANO:  Your Honour, there is no issue with the supplying of the indictment nor the prosecution opening, but we do say that in the interests of privacy of the victims if the opening can be provided subject to the non-reporting of the names of the victims, the taxpayers, and also that perhaps just the first page of the indictment be provided as the second page contains all of the witnesses as well, so we do not want the names of witnesses identified or reported.

80HIS HONOUR:  Why don't I take up Mr de Vietri's suggestion that he provides a redacted version of his submission and perhaps invite your end if that's not too onerous a task to provide a redacted version of the prosecution summary?

81MS PALMISANO:  Yes, Your Honour.

82HIS HONOUR:  If it is provided say to my associate and then he can make it available to anyone from the media who are interested and we will provide only the indictment as you say, the first page of the indictment, and the list of witnesses will not be provided.  Is that convenient?

83It is probably not convenient but they are there to do those two things and provide it to my associate.

84MS PALMISANO:  Yes, Your Honour, I can certainly try.  It is working electronically.  I need to figure out just how to actually do it, but I will certainly endeavour to do that, Your Honour.

85HIS HONOUR:  Mr Sioli, I take it that you understand Mr de Vietri has been able to explain to you or add to my explanation that I gave about the order that I have made and that you are agreeable or consenting to entering into such a recognisance.  Is that right?

86OFFENDER:  Yes, Your Honour.

87HIS HONOUR:  Unless there is anything else I think I will adjourn the court, thank you.

88MS PALMISANO:  Sorry, Your Honour, if I may I am just not sure if you are required to make an order stating that 33 days in custody has been served.  I am not sure.

89HIS HONOUR:  No, you are right.  If it is that Mr Sioli breaches and is ordered to serve - I will make a declaration that there are 33 days of pre-sentence detention as taken as time served or recognised as time served.  Thank you for that.  Unless there is anything else.

90MS PALMISANO:  Sorry, Your Honour, the Form 22, Your Honour will just - which is the reparation order, Your Honour will then make and then I guess your associate will forward it onto the parties once it is completed.

91HIS HONOUR:  Yes, I have made the order and I will just fill in the form.

92MS PALMISANO:  Yes, thank you.

93HIS HONOUR:  I was about to say is there anything else?

94MS PALMISANO:  No, Your Honour, nothing further from me thank you.

95MR de VIETRI:  Nothing further.

96HIS HONOUR:  Thank you, we will adjourn.

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