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District Court 12 November 2018

R v Kabir

[2018] NSWDC 495

Fraud & dishonesty
CRIMINAL LAW SENTENCE MULTIPLE OFFENCES COMMONWEALTH

Citation: R v Kabir [2018] NSWDC 495
Court: District Court of New South Wales
Date: 12 November 2018
Judge: Wilson SC DCJ

Background

The offender was a registered tax agent and franchisee of a national accounting network, Tax Smart Group, operating from premises in Kingsford, NSW. He had legitimate access to both the Tax Smart centralised client database and the ATO's tax agent portal, which together contained the personal and financial details of thousands of clients across the network.

Between November 2012 and June 2014, the offender used that access to lodge fraudulent income tax returns with the ATO using compromised Tax File Numbers belonging to others. The resulting refunds were directed into third-party bank accounts and withdrawn as cash. When police executed a search warrant at his home in June 2014, officers observed him throw a package from an upstairs window before they gained entry. Seized items included the laptop used for the fraudulent lodgements, client data printouts, and correspondence related to bank accounts held in another person's name.

The offender pleaded guilty to two principal charges: dealing with the proceeds of crime (valued at $51,692.97) and dishonestly obtaining a financial advantage from the Commonwealth by causing 16 false income tax returns to be lodged (claiming $22,475.18 in refunds). He also requested the court take into account, under section 16BA of the Crimes Act 1914 (Cth), a further charge of dishonestly causing a risk of loss to the Commonwealth totalling $16,814.73.

  • What weight should be given to the guilty plea, given it was entered almost three years after arrest?
  • How should the section 16BA additional charge affect the sentence on the principal offences?
  • Whether an aggregate sentence was appropriate across the two principal counts, and at what level it should be set.
  • What discount applied for the guilty plea, and what was the appropriate non-parole period?
  • Whether a reparation order should be made, and in what amount.

Decision

His Honour identified the applicable maximum penalties as 15 years for the proceeds of crime offence and 10 years for the financial advantage by deception offence. The court treated the guilty plea as a mitigating factor but reduced its weight because it was entered at a relatively late stage, approximately three years after arrest. A discount of 20% was applied.

On the section 16BA matter, the court confirmed that additional charges admitted but not convicted of are taken into account by giving greater weight to personal deterrence and the community's entitlement to retribution. The section 16BA charge attached to the second principal count.

The court determined that an aggregate sentence was appropriate given the nature and temporal overlap of the offending. The indicative sentences, each three years after the guilty plea discount, produced a total indicative figure of six years. Applying totality principles to ensure the aggregate sentence was not crushing, the court reduced this to five years with a three-year non-parole period.

A reparation order was also made under section 21B of the Crimes Act for the full amount defrauded from the Commonwealth.

Orders Made

  • The offender was convicted of both offences on the Crown Sentence Summary.
  • An aggregate sentence of five years imprisonment was imposed, commencing 13 November 2018.
  • Non-parole period of three years, expiring 12 November 2021.
  • Head sentence expiring 12 November 2023.
  • Reparation order of $85,375.46 made pursuant to section 21B of the Crimes Act 1914 (Cth).

Key Takeaways

  • A guilty plea entered nearly three years after arrest attracted only a reduced discount of 20%, reflecting its late timing in the proceedings.
  • Under section 16BA of the Crimes Act 1914 (Cth), additional charges that an offender admits but is not convicted of are taken into account by increasing the weight given to personal deterrence and retributive considerations in sentencing on the principal charges.
  • Aggregate sentencing is available where the offences are sufficiently connected in nature and time, and the District Court exercised its discretion to impose an aggregate term in order to avoid a combined sentence that would be crushing.
  • Totality principles operated to reduce a combined indicative sentence of six years to an aggregate of five years, with the court satisfied the outcome was proportionate in all the circumstances.
  • Where an offender has defrauded the Commonwealth, a reparation order under section 21B of the Crimes Act may be made for the full amount of the financial loss caused.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), including ss 16BA and 21B
- Criminal Code (Cth), including s 400.5(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)

Cases
- Conte v R [2018] NSWCCA 209
- Hili v The Queen (2010) 242 CLR 520
- Liu v R [2018] NSWCCA 70
- Muldrock v The Queen (2011) 244 CLR 120
- Noble v R [2018] NSWCCA 253
- R v Anderson [1981] VR 155
- R v Capper [2000] NSWCCA 63
- R v Hinton (2002) 134 A Crim R 286
- R v Rivkin (2004) 59 NSWLR 284
- R v Togias (2001) 127 A Crim R 23
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Xiao v R [2018] NSWCCA 4