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District Court 18 June 2024

R v BRADY

[2024] NSWDC 223

Fraud & dishonesty
SENTENCE COMMONWEALTH OFFENDING GST FRAUD GENERAL DETERRENCE ICO CONSIDERATION.

Citation: R v Brady [2024] NSWDC 223
Court: District Court of New South Wales
Date: 18 June 2024
Judge: Lerve DCJ

Background

The offender pleaded guilty in Wagga Wagga Local Court to two Commonwealth fraud offences. He had lodged false Business Activity Statements (BAS) with the Australian Taxation Office (ATO), falsely claiming GST input tax credits for purchases made by a business he never actually operated. The offending took place over a short period in April 2022.

The offender was one of three co-offenders. He registered an ABN in March 2022, listing his business activity as window cleaning, and then submitted inflated GST refund claims to the ATO online. He was in regular contact with a co-offender who guided him through the process. One GST refund of $15,724 was successfully obtained; two further attempts, totalling approximately $57,567, were unsuccessful.

At sentencing, the court also considered a third matter taken into account under a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth). That matter involved an attempted dishonest obtaining of a further $27,766 from the Commonwealth.

  • What sentence was appropriate for two substantive Commonwealth fraud offences and one s 16BA schedule matter, having regard to the nature, circumstances, and totality of the offending?
  • What weight should be given to the guilty pleas, the offender's personal circumstances, and parity with co-offenders?
  • Whether the sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time custody.

Decision

Lerve DCJ identified general deterrence as a significant sentencing consideration. His Honour emphasised that GST fraud is not a victimless crime: it deprives the broader community of public revenue and undermines a taxation system that depends on the honesty of participants. The offending was planned and deliberate, undertaken with the guidance of a co-offender over a sustained, if brief, period.

A 25% discount was applied to the sentences to reflect the utilitarian value of the guilty pleas. The court considered the offender's personal circumstances, including substance abuse and mental health issues, but noted that the offender had consistently refused to engage with rehabilitation services offered by Community Corrections.

On the question of an ICO, the court declined to impose one. His Honour found that the offender's complete failure to engage with relevant agencies gave the court no confidence that an ICO would promote rehabilitation. Full-time custody was considered better suited to addressing accountability, denunciation, and recognition of the harm caused to the community. The court also had regard to ss 16A(1) and 16A(2)(k) of the Crimes Act 1914 (Cth) in reaching that conclusion.

Parity with co-offenders Garrett and Armstrong, both sentenced at the same court in late 2023, was also considered. The court structured the sentences to run consecutively but set a single recognizance release order to give effect to the totality principle.

Orders Made

  • The offender was convicted of both offences.
  • For Sequence 1 (obtaining $15,724, with the s 16BA schedule matter taken into account): sentenced to 13 months' imprisonment commencing 18 June 2024.
  • For Sequence 3 (attempted obtaining of $29,801): sentenced to 10 months' imprisonment commencing 18 November 2024.
  • After 7 months of actual custody, the offender is to be released on a recognizance under s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $1,000, to be of good behaviour for 2 years.
  • The recognizance conditions include: good behaviour; appearance for sentence on any breach; notification of address changes to the court; supervision by the Department of Community Corrections; and compliance with directions regarding substance abuse and mental health treatment and counselling.
  • Intended release date: 17 January 2025.
  • Reparation order made in favour of the Commonwealth in the sum of $15,724.

Key Takeaways

  • The District Court confirmed that GST fraud, while non-violent, attracts significant weight on general deterrence because it exploits a system reliant on the honesty of participants and causes real harm to the broader community.
  • A 25% discount for guilty pleas was assessed as appropriate, reflecting both the utilitarian value of the pleas and the facilitation of the course of justice.
  • Where an offender has consistently refused to engage with rehabilitation services prior to sentencing, the court found that an ICO could not be justified on the basis that it might promote future engagement.
  • Under s 16BA of the Crimes Act 1914 (Cth), additional offences taken into account on a schedule are subject to the principles from the NSW Court of Criminal Appeal's Guideline Judgment on Form 1 matters (2002) 56 NSWLR 146.
  • Consecutive sentences were structured with a single recognizance release order to give practical effect to the totality principle across multiple offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including ss 16A, 16BA, 20(1)(b)
- Criminal Code 1995 (Cth), ss 134.2(1) and 11.1(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)

Cases:
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- Acosta v R [2015] VSCA 94
- Chan v R [2023] NSWCCA 206
- DG (No. 1) v R [2023] NSWCCA 320
- DPP (Cth) v Beattie (2017) 270 A Crim R 556
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Hili & Jones v The Queen (2010) 204 A Crim R 434
- Khanat v R (Cth) [2024] NSWCCA 41
- Rasel v R [2022] NSWCCA 239
- Sabra v R [2015] NSWCCA 38
- Stanley v DPP [2023] HCA 3
- Tonga, Samuel [2023] NSWCCA 120
- Zheng v R [2023] NSWCCA 64