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District Court 3 December 2018

R v Emile George El Soury

[2018] NSWDC 450

Fraud & dishonesty
CRIMINAL LAW SENTENCE COMMONWEALTH OFFENCES S 134.2(1) CRIMINAL CODE 1995 (CTH) PLEAS OF GUILTY COMMONWEALTH CONSISTENCY

Citation: R v Emile George El Soury [2018] NSWDC 450
Court: District Court of New South Wales
Date: 3 December 2018
Judge(s): Montgomery DCJ

Background

The offender, a qualified accountant who had obtained a Bachelor of Business Accounting in 2004, established his own tax agency business in 2009 after a prolonged period of unemployment. As a registered tax agent, he gained access to the Australian Taxation Office's Tax Agent Portal and Business Portal, which allowed him to lodge Business Activity Statements (BAS) on behalf of clients.

Between October 2009 and June 2014, the offender used those portal privileges to lodge 77 false BAS documents across a range of Australian Business Numbers, fraudulently claiming GST refunds to which neither he nor the relevant entities were entitled. Some of the ABNs were entities he created and controlled himself; others belonged to third parties whose details he used without their knowledge. In one instance, he used another individual's Tax File Number to gain portal access, though how he obtained that person's information was not established.

The offender pleaded guilty to three Commonwealth offences: two counts of dishonestly obtaining a financial advantage from the Commonwealth by deception, and one count of attempting to do so. A further attempt offence was taken into account on a Form 1 (a formal mechanism under the Crimes Act 1914 (Cth) allowing additional related offences to be considered at sentencing without a separate conviction).

  • What aggregate sentence and non-parole period were appropriate for three Commonwealth fraud offences, taking into account a Form 1 matter?
  • What discount applied for the early guilty pleas, and did those pleas demonstrate genuine remorse?
  • How should national consistency in sentencing Commonwealth offenders be approached, including the parole-to-non-parole ratio?
  • What weight should be given to the offender's personal circumstances, including prospects for rehabilitation?

Decision

Montgomery DCJ applied the framework established by the High Court in Hilli v R and R v Pham, which requires sentencing courts to consider all relevant circumstances of the individual offending and offender, rather than applying a fixed numerical formula or percentage for non-parole periods in Commonwealth matters. The court also consulted comparable decisions from courts across all Australian jurisdictions to achieve national consistency, without treating sentence lengths as directly comparable absent knowledge of the underlying facts.

A 25% discount was applied for the guilty pleas, agreed by both parties as reflecting the pleas being entered at the first available opportunity. However, the court noted that because the prosecution case rested on strong documentary evidence, the pleas did not in themselves demonstrate significant remorse or contrition beyond acceptance of guilt.

The court acknowledged a number of mitigating factors in the offender's favour. He was a first-time offender with strong family and community support, was engaged with Narcotics Anonymous, had demonstrated a commitment to rehabilitation, and had not breached his bail conditions during a lengthy period on bail. The court also applied a discount for what it characterised as "quasi-custody" and the particular impact of a first term of imprisonment. Deterrence, both general and specific, was nonetheless a significant sentencing consideration given the nature and duration of the fraud.

After applying all relevant discounts and weighing the offender's circumstances against the seriousness of the offending, the court imposed an aggregate sentence of four years' imprisonment with a non-parole period of one year and ten months. The parole period was made subject to conditions directed at supervision, drug and alcohol treatment, psychological counselling, and rehabilitation programs.

Orders Made

  • The offender was convicted of the three charged offences.
  • A reparation order was made requiring payment of $127,366 to the Commonwealth (Australian Taxation Office).
  • An aggregate sentence of four years' imprisonment was imposed, commencing 3 December 2018.
  • The non-parole period runs until 2 October 2020 (one year and ten months); the balance of the sentence ends 2 December 2022.
  • Parole conditions include compliance with Community Corrective Services supervision and directions, drug and alcohol treatment or counselling, psychological treatment or counselling, and participation in a rehabilitation program.

Key Takeaways

  • Under the framework in Hilli v R and R v Pham, sentencing courts imposing terms on Commonwealth offenders must consider all individual circumstances and consult decisions from across Australian jurisdictions; national consistency does not require numerical equivalence in sentence lengths.
  • A 25% guilty plea discount was appropriate where pleas were entered at the first available opportunity, but a strong documentary prosecution case limits the extent to which pleas can be taken as evidence of genuine remorse.
  • Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which ordinarily governs the non-parole ratio in state matters, does not apply to fixing non-parole periods for federal offences; the court instead applies the Crimes Act 1914 (Cth) and the principles in Hilli.
  • The District Court treated the sustained duration of the offending (nearly five years), the exploitation of professional portal access, and the use of a third party's personal identifying information as aggravating features of the fraud.
  • Positive rehabilitation steps taken during a lengthy bail period, including engagement with Narcotics Anonymous and the absence of any bail breaches, were accepted as genuine mitigating factors bearing on the non-parole period.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 134.2(1) and s 11.1
- Crimes Act 1914 (Cth), including ss 16A, 16BA, 19AB, 19AKA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Judiciary Act 1903 (Cth)

Cases
- Hilli v R (2010) 242 CLR 520; [2010] HCA 45
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- R v Massey [2015] QCA 254
- R v Melrose [2016] QCA 202
- Noble v R [2018] NSWCCA 253
- Woods v R [2018] NSWCCA 261
- Sabra [2015] NSWCCA 38
- Brown v R [2013] NSWCCA 44
- Cao v R [2010] NSWCCA 109
- Edwards v R [2013] NSWCCA 54
- Hawkins [2013] NSWCCA 208
- Hughes v R [2011] NSWCCA 226
- Kertebani v R [2010] NSWCCA 221
- R v Henry (1999) 46 NSWLR 346