SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 13 August 2007 the applicant was convicted of one count of defrauding the Commonwealth of Australia (count 1), one count of obtaining a financial advantage by deception (count 2), one count of attempting to obtain a financial advantage by deception (count 3), and one count of using forged documents (count 4).  On 15 August 2007 he was sentenced to concurrent terms of seven years imprisonment for each offence with a non-parole period of three years and six months.

[2] The applicant seeks leave to appeal against this sentence.

Circumstances of the offences

[3] The applicant committed the offences for which he has been sentenced as part of a scheme to claim from the Commonwealth refunds of Goods and Services Tax ("GST") which had not in fact been paid by him.  During the period between 26 April 2001 and 7 October 2004, he lodged 15 false Business Activity Statements ("BAS").  The claims referable to counts 1 and 2 resulted in payments by the Commonwealth to the applicant of $722,309. 

[4] Count 3 related to a claim for a refund of GST of $95,078 made on 7 October 2004 which was not successful.

[5] In February 2000 the applicant registered for GST with the Australian Tax Office ("ATO") as the operator of a business under the name "Teamec" which was said to involve the importation of heavy mechanical equipment for resale in Australia.  There was effectively no such business; the only two importations, worth $15,000 in total, occurred in August and September 2000.

[6] The charge in count 4 arose out of an ATO audit of the applicant's BAS for the period October to December 2001.  Between 14 June 2002 and 16 July 2002 the applicant supplied the auditor with many forged documents which purported to evidence payments made to suppliers of stock for his business.  These documents were accepted as genuine by the auditor.  This was the conduct which constituted count 4.

[7] In October 2004 the applicant was audited again.  The applicant provided the auditor with false documentation evidencing payments to suppliers, and on 21 December 2004 confirmed the accuracy of this documentation.  Direct enquiries of suppliers by the auditor established that this documentation was bogus.  The applicant was questioned again by the ATO's auditor, and in March 2005 the applicant admitted to the auditor that the documentation was almost entirely false.

[8] The applicant was declared bankrupt on 29 March 2006.  None of the payments made by the Commonwealth to the applicant has been recovered.  At the sentencing hearing, the applicant said that all the money had been spent on supporting his family and in trying to establish a business.

The applicant's circumstances

[9] The applicant was 42 years old when he began the implementation of his fraudulent scheme.  He was 49 years old when he was sentenced.

[10]  He is an electrical engineer by occupation.  At the time of his sentence, he was in employment and had a family consisting of his wife and five children:  the eldest was 24 years old and the youngest two and a half.  His wife and four of his children were dependent on him for support.

[11]  The applicant has a criminal history for offences of dishonesty going back to 1989.  Of particular relevance is the circumstance that, on 10 February 1998, he was initially sentenced to 18 months imprisonment, but ultimately served a period in custody of four months, for 10 counts of false pretences and making false instruments.

The sentence

[12]  At the hearing in relation to sentence, the applicant was unrepresented.  The prosecutor submitted that the appropriate sentence was six years imprisonment with a non-parole period of three years.  The learned sentencing judge immediately made it clear that he was not disposed to regard that sentence as adequate punishment in the circumstances.

[13]  The applicant submitted that his offences were not motivated by greed, but by the need to set up a legitimate business and to support his large dependent family.  Not surprisingly, given the amount of money involved in the applicant's frauds, the learned sentencing judge treated this submission with a degree of scepticism, although he did not dismiss it out of hand.

[14]  The learned sentencing judge treated as "matters of particular importance" in sentencing the applicant the large sum of which the applicant had defrauded the Commonwealth, the premeditated nature of the scheme and the applicant's persistence with the scheme after the first audit as well as his attempts to conceal the true nature of the scheme from the authorities.  The learned sentencing judge also referred to the applicant's criminal history as a matter which bore upon the level of sentence to be imposed upon the applicant.

[15]  The learned sentencing judge took into account in the applicant's favour his pleas of guilty, his remorse and his family commitments.

The application

[16]  It cannot be suggested that the learned sentencing judge took any irrelevant consideration into account in sentencing the applicant or that his Honour failed to take any relevant consideration into account.  The applicant contends that the sentence was excessive.  Having regard to the large sums of money fraudulently obtained by the applicant, and his deliberate and persistent offending over a period of three and a half years, the applicant's contention cannot be sustained. 

[17]  The applicant, who was again unrepresented, sought to support his appeal by reference to a number of earlier decisions of this Court where less severe sentences were imposed.[1]  There were, of course, differences between the facts of these cases and the facts of the present case, but it is unnecessary to engage in a close analysis of those differences and the extent to which those differences are properly reflected in the various sentences which were imposed in those cases and in this. 

[18]  It must be understood that a sentence is not shown to be manifestly excessive by pointing to other cases, with some arguable similarities to the instant case, where a lesser sentence has been imposed.  None of the decisions to which the applicant referred contains any suggestion that a sentence of seven years imprisonment is outside the range of a proper sentence for a sophisticated and persistent fraud carried out over several years and resulting in a profit to the fraudster of nearly three-quarters of a million dollars.  The differences in the sentences which have been imposed in these cases upon which the applicant remarked in his oral submissions to this Court, are explicable, first, by the broad nature of the sentencing discretion, and, secondly, by differences in the factual circumstances of the various cases.  In this latter regard, it is significant that none of the cases cited by the applicant involved a fraudulently derived profit equivalent to that obtained by the applicant. 

[19]  Reference to decisions of this Court and other Australian courts confirms that the sentence imposed on the applicant was a just sentence for offending as serious and persistent as this committed by a mature offender with a record of criminal dishonesty. 

[20]  In this regard, in R v Baunach,[2] a 46 year old accountant with no previous convictions pleaded guilty to 18 counts of defrauding the Commonwealth whereby he obtained $800,000 of which $92,000 was recovered.  In an appeal by the Attorney-General to this Court, a sentence of six years imprisonment was held to be "at the low end of any appropriate range", and this Court increased the non-parole period of the offender's sentence from 12 months to two years.

[21]  In El-Chaar v R,[3] an offender who pretended to be a property developer lodged 13 false BAS claiming refunds of GST.  A relative of the offender who was employed by the ATO processed some of the offender's claims.  The offender netted $1,000,688 from his fraudulent scheme.  He failed in an attempt to obtain a further $62,500.  The offender pleaded guilty.  A sentence of eight years imprisonment with a non-parole period of five years was upheld on appeal.

[22]  The applicant's offences were crimes of calculation rather than of passion.  In cases such as the present, general deterrence is an important consideration allied to the need to protect the community, and especially its taxpayers, from the depredations of dishonest individuals.  Punishment must be such as to make it clear that defrauding the community, even for large amounts of money, is not worthwhile.  It may be said that, in this case, the applicant's dishonesty was less profitable than in El-Chaar v R.  Nevertheless, the applicant did succeed in obtaining a large amount of money; and he was more persistent in his pursuit of his fraudulent scheme than the offender in El-Chaar v R.  The applicant here has a history of criminal dishonesty.  And, importantly, the sentence imposed on the applicant was distinctly less severe than that imposed on the offender in El-Chaar v R, especially so far as the non-parole period is concerned.  In the upshot, I am of the opinion that the decisions in R v Baunach and El-Chaar v R show that the sentence imposed on the applicant cannot be said to be excessive. 

[23]  I note that the sentence which was imposed was greater than that sought at the sentencing hearing by the prosecution; but this circumstance does not demonstrate that the sentence was excessive.  It is the function of the sentencing court, not the prosecutor, to fix upon a just sentence.  And as I noted above the learned sentencing judge alerted the parties to his tentative view that the sentence suggested by the prosecutor was too lenient.  It cannot be said that the applicant was in any way prejudiced by the conduct of the sentencing hearing.

Conclusion and orders

[24]  The sentence imposed on the applicant was not outside the range established by previous decisions of the courts, and the relevant circumstances in mitigation of sentence were fully taken into account by the learned sentencing judge.  The sentence which was imposed was in no way excessive.

[25]  The application for leave to appeal against sentence should be refused.

[26]  MACKENZIE AJA:  I agree with the reasons of Keane JA and with the order proposed.

[27]  CHESTERMAN J:  I agree with the reasons of Justice Keane and the order proposed.