The Queen v Krogh[1999] QCA 464

COURT OF APPEAL

DAVIES JA

THOMAS JA

ATKINSON J

CA No 261 of 1999

THE QUEEN

v.

JOHN ANTHONY KROGH Applicant

BRISBANE

DATE 04/11/99

JUDGMENT

THOMAS JA:  The applicant was sentenced in the District Court upon two counts of defrauding the Commonwealth and one count of attempting to defraud the Commonwealth.  He was sentenced to four years' imprisonment on the first count and two years on the other counts, such sentences being concurrent, and a non-parole period was fixed at 18 months.  Reparation orders were made in favour of the Commissioner of Taxation of $135,547.50 and in favour of the Health Insurance Commission of $2,744.70. A declaration was made as to 195 days pre-sentence custody.

The applicant is 33 years old and has no prior criminal history.  He was a partner in a tax accounting firm in New South Wales.  Over a period of two and a half years between March 1996 and November 1998 he took advantage of his access to the system of electronic lodgment of taxation returns and fabricated 33 returns using the names and tax file numbers of taxpayers who were known to him either as customers of the practice or as acquaintances.  He selected persons who would be unlikely to lodge a return of their own for the year in question. Apart from the names and tax file numbers, all the details in the returns were fictitious.  They were prepared to show a false tax instalment deduction entitlement and by other means to show entitlement to refund.  When refund cheques were sent by the Taxation Commissioner addressed to those persons at the applicant's address, he would intercept them and make further arrangements, again involving forgery, to bank the cheques to his personal account.  The total amount fraudulently obtained by these 33 series of transactions was $135,547.50.

Count 2 involved an attempt to obtain further funds involving over $107,000 including one in his own name seeking a refund of $85,000.  Due to discovery of the attempted fraud no assessments were issued and so no further loss occurred in respect of the attempt.

Count 3 relates to a further fraudulent scheme being practised by the applicant directed to the Health Insurance Commission.  He created on his computer false accounts and receipts for medical services and presented forged accounts and receipts at Medicare branches, obtaining cash refunds to which he was not entitled.  The charge covers 12 such instances resulting in $2,744.70 being fraudulently obtained.

None of the proceeds of these fraudulent schemes was recovered.  In fact, the applicant was bankrupted on 24 February 1999.  It is obvious that the applicant committed sustained, sophisticated, fraudulent practices.  He had no need or, so far as is known, any particular economic pressures to act as he did.  His schemes involved multiple forgeries including forgeries of group certificates, taxation returns and medical receipts and claims. The learned sentencing Judge rightly regarded the conduct as at the serious end of cases of this kind.  A further feature of the case is that no satisfactory explanation has ever been given as to the manner in which the money has been used or placed.  The applicant did not desist of his own motion - he was arrested after a taxation investigation of some months. Following arrest he cooperated to some extent and acknowledged his guilt in relation to some of the returns particularised in count 1 but, as the learned sentencing Judge observed, there were other aspects in which cooperation was not forthcoming.

Subsequently he pleaded guilty on an ex-officio indictment and allowance must be made in his favour for having saved the difficulty and expense of a contested trial.  A psychological report and a behaviour report were tendered but that material does not greatly assist his cause.  The parts that are of most assistance to him refer to a failed relationship, to a personality structure described as that of a "neurotic introvert" and the observation that he is prone to anxiety and depression.

We have been referred to a number of decisions which are said to be more or less comparable.  Counsel for the applicant conceded that the sentence of four years' imprisonment was appropriate and confined his submissions to the non-parole period, contending that a non-parole period of 18 months is excessive having regard to a number of decided cases.  He submitted that four of the five cases relied on below did not support a non-parole period of 18 months.

From a list, which is contained in the record which had been presented by the prosecutor below, reference was made to Dreghorn, Arnold, Kenny, Jesse, Moffat and Kazacos, all of which are unreported, and further reference was made to To and Do (1998) 100 A.Crim.R. 558, and Ruggiero (1998) 104 A.Crim.R. 358.

Whilst some of these cases have a superficial similarity, they all have points of distinction, some with features more serious and some less serious.  But none of them invite a satisfactory point by point comparison.  In other words, each of the above cases represents a sentence which was moulded to the particular circumstances of the case.  They may be useful in demonstrating approximate ranges of head sentence and of non-parole periods, but it is the combination of those aspects which matters when a Court reviews the overall question of excessiveness.

The fine tuning which this Court has been invited to do in relation to the non-parole aspect of the sentence, in my view is more than this Court can or should attempt.  In particular, in Kazacos, which was number 44 of 1999 and which was delivered on 11 June 1999, this Court reviewed relevant cases and imposed a sentence of four years with a non-parole period of 15 months.  Now, while the amount of money involved in that case was considerably greater than in the present case and whilst in some respects Kazacos' conduct was more serious, that case also involved special and perhaps somewhat surprising findings of fact by the learned sentencing Judge concerning the personal circumstances of Kazacos and the influences which played a part in his commission of the offences.  Whilst differing from the learned sentencing Judge in some respects, the Court felt bound to give effect to some of those special findings.  Also, in Kazacos, all the money had been repaid and Kazacos had been subjected to very substantial additional financial penalties imposed by the Commissioner.  In the result there is no apparent inconsistency, in my view, in Kazacos having been given a sentence with a slightly shorter non-parole period than the present applicant's non-parole period.

I do not propose to review the other cases one by one.  In my view, when one bears in mind the following features of the present case both the period of imprisonment and the non-parole period lie within the limits of reasonable sentencing discretion.  The factors are that they were very serious offences which occurred over a lengthy period;  that the conduct was deliberate, calculated and persistent;  that it ceased only after it was detected.  There was a guilty plea with some degree of co-operation but very little other mitigation.  There is no prospect of recovery of any amount and no explanation exists as to where the money went.  Offences of this type are difficult to detect.  The applicant abused a responsible position to obtain confidential information to practise his fraudulent schemes. There was no circumstance of economic need or other persuasive mitigatory factor. 

In all these circumstances, I would refuse the application.

DAVIES JA:  I agree.

ATKINSON J:  While if I were sentencing the applicant I may have imposed a lesser non-parole period, I am not convinced that the sentence imposed was manifestly excessive.  Accordingly, I agree that the application should be refused.

THOMAS JA:  Application refused.