Citation: Mark Andrew Hughes v R [2011] NSWCCA 226
Court: Court of Criminal Appeal, New South Wales
Date: 5 October 2011
Judge(s): Allsop P, Latham J, Rothman J
Background
The applicant was sentenced in the District Court on 20 August 2010 after being convicted of seven offences under the Criminal Code 1995 (Cth): four counts of obtaining a financial advantage by deception and three counts of attempting to do so. Each offence carried a maximum of 10 years imprisonment. The offences arose from the submission of false business activity statements (BAS) falsely claiming GST refunds on behalf of four entities over a 17-month period, resulting in a total loss to the Australian Taxation Office of approximately $298,000.
The offending began in September 2004 with the lodgment of a false BAS for a legitimate trading entity. After being contacted by an ATO compliance officer in January 2005, the applicant continued offending and went on to use the identities of unsuspecting associates to register three further entities for GST purposes, through which additional false claims were lodged. Several of the offences were committed while the applicant was on conditional liberty.
The District Court imposed an aggregate sentence of four years and six months imprisonment, with an aggregate non-parole period of three years. The applicant, appearing unrepresented before the Court of Criminal Appeal, sought leave to appeal on five grounds.
Legal Issues
- Whether all sentences should have run concurrently from the commencement date of 20 May 2010
- Whether there were inconsistencies in the sentences imposed across individual counts, given the similar dollar amounts involved
- Whether the sentencing judge adequately took into account the applicant's medical conditions (hypertension, diabetes, anxiety, and depression)
- Whether the sentencing judge gave sufficient weight to the hardship that incarceration would cause to the applicant's elderly, disabled mother
Decision
Concurrent sentences and count-by-count inconsistency. The Court rejected the argument that all sentences should have been imposed concurrently. Latham J found that the applicant had not demonstrated any error by the sentencing judge in relation to the individual sentences or the aggregate. On the alleged inconsistencies between counts, the Court found that the number and duration of false statements lodged under each count was the relevant measure of criminality, not merely the dollar amounts involved. Count 2, for example, encompassed 12 statements lodged over an extended period, including several lodged after the applicant was directly contacted by ATO officers, justifying the longer sentence relative to count 3.
Medical conditions. The Court found that the sentencing judge had expressly considered the medical evidence, including reports from a treating general practitioner, a psychiatrist, and a psychologist. The judge acknowledged the applicant's conditions but found they did not significantly affect the appropriate sentence. The Court noted that no submission had been made at sentence to the effect that the applicant's conditions could not be adequately managed in custody, and no evidence was presented on appeal showing that delays in prison treatment had seriously compromised the applicant's health in a way that could not have been foreseen at sentencing.
Hardship to the applicant's mother. The Court confirmed that the sentencing judge had considered the impact on the applicant's 69-year-old disabled mother but found the circumstances did not reach the threshold required for this factor to operate in mitigation. The Court confirmed that under s 16A(2)(p) of the Crimes Act 1914 (Cth), hardship to dependants must be so extreme that it causes the court to draw back from an otherwise justified sentence. The ordinary hardship that results from a parent or carer being imprisoned does not meet that standard.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that apparent numerical similarities in the dollar amounts across fraud counts do not, of themselves, require equivalent sentences; the extent and duration of the underlying criminal conduct is the more relevant consideration.
- A sentencing judge's treatment of medical evidence will not constitute error where the reports were expressly considered and no case was advanced at sentence that the conditions were unmanageable in a custodial setting.
- Under s 16A(2)(p) of the Crimes Act 1914 (Cth), hardship to an offender's family or dependants operates in mitigation only where it is so extreme that a court is drawn back from a sentence otherwise justified; routine hardship flowing from incarceration does not meet this threshold.
- In dismissing the appeal, the Court reaffirmed that sentencing is a discretionary exercise and an applicant must demonstrate that the discretion miscarried, whether in relation to individual counts or the aggregate sentence.
- Offending that continued after direct contact by regulatory authorities, and that was committed while the applicant was on conditional liberty, are factors that courts will weigh in assessing the relative seriousness of individual counts.
Legislation and Cases Referenced
Legislation:
- Criminal Code 1995 (Cth) — offences of obtaining and attempting to obtain a financial advantage by deception
- Crimes Act 1914 (Cth), s 16A(2)(p) — obligation to consider the probable effect of a sentence on the offender's family or dependants
Cases: No specific cases were cited in the judgment text.