SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
R v Millard
Citation:
[2016] ACTSC 305
Hearing Date:
13 October 2016
Decision Date:
26 October 2016
Before:
Elkaim J
Decision:
See paragraph [33]
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND
PROCEDURE – Judgment and Punishment – Sentence –
particular offences – dishonesty offences – lodging false income
tax returns – offences committed in custody – plea of guilty –
significant criminal history
Legislation Cited:
Crimes Act 1914 (Cth), ss 16A, 17A, 19, 19AC, 20
Criminal Code Act 1995 (Cth), s 135.1(3)
Cases Cited:
DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Millard v The Queen [2016] ACTCA 14
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Camp, unreported decision of Wall J in the Queensland
District Court, 6 June 2013
R v Craig [2016] ACTSC 26
R v Miles [2015] ACTSC 162
R v Potts [2016] ACTSC 190
R v Stitt (1998) 102 A Crim R 428
R v Thorn [2016] ACTSC 217
Parties:
The Queen (Crown)
Matthew John Millard (Offender)
Representation:
Counsel
Mr T Shepherd (Crown)
Mr M Hassall (Offender)
Solicitors
Commonwealth Director of Public Prosecutions (Crown)
Legal Aid ACT (Offender)
File Number:
SCC 237 of 2015
ELKAIM J:
Introduction
1.
On 31 May 2016 the offender pleaded guilty, in this court, to the following nine
offences:
(a)
Count 1 – On or about 12 January 2011 at Canberra in the Australian Capital
Territory, Matthew John Millard lodged an income tax return in the name of
Matthew Millard for the 2010 financial year containing false information, with
the intention of dishonestly causing a loss to another person, namely the
Commonwealth.
(b)
Count 2 – On or about 17 February 2011 at Canberra in the Australian Capital
Territory, Matthew John Millard lodged an income tax return in the name of
Matthew Millard for the 2009 financial year containing false information, with
the intention of dishonestly causing a loss to another person, namely the
Commonwealth.
(c)
Count 3 – On or about 29 April 2011 at Canberra in the Australian Capital
Territory, Matthew John Millard lodged an income tax return in the name of
Justin Monfries for the 2010 financial year containing false information, with
the intention of dishonestly causing a loss to another person, namely the
Commonwealth.
(d)
Count 4 – On or about 15 September 2011 at Canberra in the Australian
Capital Territory, Matthew John Millard lodged an income tax return in the
name of Matthew Millard for the 2011 financial year containing false
information, with the intention of dishonestly causing a loss to another person,
namely the Commonwealth.
(e)
Count 5 – On or about 7 November 2011 at Canberra in the Australian Capital
Territory, Matthew John Millard lodged an income tax return in the name of
Brett DeBrueys for the 2010 financial year containing false information, with
the intention of dishonestly causing a loss to another person, namely the
Commonwealth.
(f)
Count 6 – On or about 7 November 2011 at Canberra in the Australian Capital
Territory, Matthew John Millard lodged an income tax return in the name of
Brett DeBrueys for the 2011 financial year containing false information, with
the intention of dishonestly causing a loss to another person, namely the
Commonwealth.
(g)
Count 7 – On or about 28 May 2012 at Canberra in the Australian Capital
Territory, Matthew John Millard lodged an income tax return in the name of
Scott Longfield for the 2009 financial year containing false information, with
the intention of dishonestly causing a loss to another person, namely the
Commonwealth.
(h)
Count 8 – On or about 28 May 2012 at Canberra in the Australian Capital
Territory, Matthew John Millard lodged an income tax return in the name of
Scott Longfield for the 2011 financial year containing false information, with
the intention of dishonestly causing a loss to another person, namely the
Commonwealth.
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(i)
Count 9 – On or about 28 May 2012 at Canberra in the Australian Capital
Territory, Matthew John Millard lodged an income tax return in the name of
Brett DeBrueys for the 2009 financial year containing false information, with
the intention of dishonestly causing a loss to another person, namely the
Commonwealth.
2.
The above offences are crimes of general dishonesty contrary to s 135.1(3) of the
Criminal Code 1995 (Cth). The maximum penalty for each of the offences is 5 years
imprisonment, a fine of $33,000, or both.
3.
The offences occurred while the offender was a prisoner in the Alexander Maconochie
Centre (the AMC).
4.
In essence the offender lodged false tax returns in order to obtain a dishonest
advantage consequent upon the inclusion, in the tax returns, of fabricated details. For
example, stated income had never been earned and amounts of tax withheld had never
actually been withheld. Although some of the returns were lodged in the names of other
persons the offender was the sole intended beneficiary of the crimes.
5.
As a result of the dishonesty, the taxation office, having processed three of the nine
returns, deposited sums of money into bank accounts nominated in the returns.
6.
The sums of money deposited into the accounts totalled $17,634.97. Had the scheme
being successful in respect of all nine returns, the sum of money that would have been
claimed was $67,734.24. No part of the sum paid into the accounts has been
recovered.
The offender’s background
7.
The offender was born in 1983. He was born and raised in Canberra. Despite his
parents separating when he was very young, he apparently had a stable childhood. He
has a good relationship with his three siblings.
8.
The offender completed Year 12 at high school and worked for about four years as a
tyre fitter. He has otherwise been in receipt of Centrelink benefits.
9.
The offender has a significant history of alcohol and illegal drug use. He started to use
cannabis when he was 16 years of age. He moved onto heroin when he was 20 and
then, at age 23, began using methylamphetamines.
10.
There is also a history of mental health problems. In August 2014 the offender reported
that he was experiencing auditory hallucinations. At about this time he started to carry
out actions of self-harm. In September 2014 he drank disinfectant liquid. After a review
by a psychiatrist he was commenced on antipsychotic medication.
11.
In April 2015 the offender said he had swallowed a razor blade. He was taken to the
Canberra Hospital Emergency Department but was discharged the same day. It is not
clear whether the investigations confirmed that he had in fact swallowed the blade. In
June 2015 the offender was placed on a methadone maintenance program.
12.
Through 2015 the offender attended a number of appointments with a drug and alcohol
counsellor. The last appointment was in December 2015.
13.
In January 2016 the offender attended a health clinic with superficial cuts to his wrist. A
few days later he underwent surgery to lengthen his tendons. He then went back to the
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AMC and suffered a burned left arm requiring medical attention. It is not clear whether
the burn was a deliberately self-inflicted injury.
14.
The offender’s substantial health problems however are a product of the conditions
consequent upon the drug overdoses in 2011 and 2012. It is clear from Exhibits C and
2 that the offender has suffered substantial physical impairment as a result of the
overdoses. He presented in court with a slow and restricted gait. His left arm was
bandaged as a result of previous surgery. The surgery was an attempt to allow him to
unclench his fist. His left arm is essentially useless.
15.
The offender has a significant criminal history going back many years and covering a
wide range of offences. They include theft, burglary, drug and driving offences.
Dishonesty is a common theme and Queensland has also been the subject of his
criminal conduct.
Consideration of sentence
16.
Sentencing for Commonwealth offences involves, amongst other relevant matters,
consideration of the factors set out in s 16A of the Crimes Act 1914 (Cth).
17.
The offences occurred over a period of about 16 months. They should be seen as part
of a course of illegal conduct. They had no purpose other than the obtaining of financial
advantage. There was no good cause for which the funds might have been applied.
The offences must be seen as an attempt both to defraud the Australian Taxation
Office and also as an insult to the many taxpayers who lawfully fulfil their obligations to
the Commonwealth.
18.
In R v Stitt (1998) 102 A Crim R 428, Dunford J said this:
Fraud on the Taxation Department is a serious offence and this is even more so when it
involves a sophisticated scheme, such as the present, to obtain from the Department so
called refunds of moneys which have never been paid in the first place, and where such a
substantial sum of money is involved. It is, in a very real sense, not only a fraud on the
Department as such, but a fraud on all other taxpayers who lawfully pay what is due for the
maintenance of our governments, their institutions and services for the common good. The
need for general deterrence in such cases has been referred to a number of times, for
example Wright (1994) 74 A Crim R 152,; Bahntoff (unreported, Court of Criminal Appeal,
Vic, No 21 of 1998, 14 May 1998), and similarly Social Security fraud: Sopher (1993) 70 A
Crim R 570,; Purdon (unreported, Court of Criminal Appeal, NSW, No 60659 of 1996, 27
March 1997), Corbett (1991) 52 A Crim R 112.
19.
In R v Camp, unreported decision of Wall J in the Queensland District Court, 6 June
2013, his Honour said offences of this type, that is involving a breach of trust within a
self-reporting system, should be expected to result in a term of imprisonment.
20.
In R v Miles [2015] ACTSC 162, Rares J said this:
This was a calculated, pre-meditated series of crimes against not just the ATO, but the
whole community. You even pretended that you had worked for money and paid tax on
your earnings when you stole from the Commonwealth government.
21.
There are three other cases which I have found useful: In R v Thorn [2016] ACTSC
217, the offender filed nine false tax returns, both in his own name and in the name of
others. The offences occurred during a period of residence in the AMC. The offender
was 28 years old with a drug and alcohol history as well as a lengthy criminal history.
Although he pleaded guilty before trial, it was not an early plea. Refshauge J sentenced
him to imprisonment adopting an approach which was partially cumulative and partially
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suspended. The head sentence was 3 years imprisonment but was suspended after 12
months. Good behaviour bonds were also imposed. I note Mr Thorn was also complicit
in the commission of these offences.
22.
In R v Potts [2016] ACTSC 190, the offender lodged two false tax returns. There was
an early plea of guilty and the offences were committed in the AMC. Burns J sentenced
the offender to imprisonment of 10 months on one count and 12 months on the other.
There was a degree of accumulation so that the offender faced 16 months
imprisonment. In addition there was a recognizance release order and a reparation
order.
23.
In R v Craig [2016] ACTSC 26, Burns J dealt with an offender who had lodged seven
false returns in his own name and also that of others. The offender had a lengthy
criminal history and was a serving prisoner at the time of the offences. He had a drug
problem. He entered early pleas of guilty and received a 25% reduction accordingly.
Periods of imprisonment between 12 and 15 months were imposed. Taking into
account that the offender was already in prison, a new non-parole period was set to
expire 12 months from the date of sentence.
24.
Although intentional, premeditated and occurring over a period of time, the offences
here were not the product of particularly sophisticated conduct. Rather they are an
amateurish attempt to defraud the Commonwealth and obtain undeserved funds. I think
the offences are of at least medium objective seriousness. Had the details revealed a
more clever process I would have increased the level of severity.
25.
In my view general deterrence plays an important role in sentencing for offences of this
type. Potential offenders must be made aware that the trust allowed to them through a
self-reporting system must not be abused because to do so would not only be
dishonest but might well result in a more supervisory, and expensive, system of tax
collection. I will return to specific deterrence a little later.
26.
Section 17A of the Crimes Act 1914 (Cth) says imprisonment should only be imposed if
the Court considers it to be the only appropriate sentencing option. It is clear from the
above authorities that there is no alternative to a term of imprisonment. I adopt the
reasoning of Refshauge J in R v Thorn [2016] ACTSC 217 as expressed in paragraph
130:
I consider that no sentence but a sentence of imprisonment is appropriate. There are
multiple sentences to be imposed, each of which must result in an appropriate sentence,
as required by Pearce v The Queen (1998) 194 CLR 610. I have regard, however, to the
totality of the imprisonment to be imposed and, in those circumstances, have regard to the
extent to which the sentences should be partly or wholly concurrent. In my view, while
there is some overlap of criminality between the offences because of the nature of the
enterprise, particularly the continuation of the offending, they are not really part of a single
enterprise that would require a high degree of concurrency.
27.
I have also had regard to the decision of the New South Wales Court of Criminal
Appeal in DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1, in particular at
paragraph 177. In my view a custodial sentence will “weigh more heavily” on this
offender because of his physical disabilities consequent upon his mental impairments.
28.
I am also of the view that his condition is relevant to specific deterrence because, to
quote counsel for the offender, he “has no capacity for consequential thinking.” I am not
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completely discounting the need for specific deterrence but its part in this sentence is
not as significant as it might have been in ‘normal’ circumstances.
29.
When the matter initially came before me on 13 October 2016 it was my intention to
hand down sentence on that day. However I did not do so because the accused
indicated an intention to repay some of the monies owing to the ATO. A figure of
$10,000 was suggested. Because of the effect such a payment might have on
sentence and because of the public interest in having the monies repaid I stood the
matter over to today to allow the offender to make the payment.
30.
When the matter commenced this morning I was informed that the payment had not
been made because, in effect, of technical difficulties in dealing with the ATO. For the
reasons given above I allowed the offender and his legal representatives some further
time to see if payment could be effected. When I was asked to return to court, I was
told that the efforts had not been successful and that the offender wished to proceed to
sentence notwithstanding that the payment had not been made. I pointed out that this
might have a significant effect on the sentence that I would hand down. This was
acknowledged on behalf of the offender and his instructions to proceed were
confirmed.
31.
I intend to sentence the offender to 15 months imprisonment for each count. Had he
not pleaded guilty, each term would have been 18 months. It is necessary for there to
be a degree of concurrency and a degree of accumulation. The accumulation is
designed to reflect those offences in which money was actually paid by the Tax Office.
These are Counts 1, 3 and 7. Although this approach is perhaps not strictly in
accordance with the decision of the High Court in Pearce v The Queen [1998] HCA 57;
194 CLR 610, I think it is permissible as reflecting a flexible and practical means of
dealing with the number of offences involved. This point was made in respect of the
same offender by the ACT Court of Appeal in Millard v The Queen [2016] ACTCA 14 at
paragraph 57.
32.
The intent of the accumulation of sentences is that the offender serves a further 12
months of imprisonment dated from 5 September 2016. It is necessary to commence
the sentences from this date, being the date of the expiry of the non-parole period set
for the Territory offences in respect of which the offender is currently in custody
(Crimes Act 1914 (Cth), s 19). It will also be necessary to make a single recognizance
release order under s 19AC of the same Act.
Orders
33.
I make the following orders:
(a)
I confirm the nine convictions.
(b)
In respect of each of Counts 2, 4, 5, 6, 8 and 9 you are sentenced to a period
of imprisonment of 15 months commencing on 5 September 2016 and ending
on 4 December 2017. These sentences are to be served concurrently.
(c)
In respect of each of Counts 1, 3 and 7 you are sentenced to a period of
imprisonment of 15 months commencing on 5 March 2017 and ending on 4
June 2018. These sentences are to be served concurrently.
(d)
I order that on 4 September 2017 you be released upon giving security in the
sum of $100.00 to be of good behaviour for a period of two years and that you
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be subject to supervision by the Director-General of the Directorate of Justice
and Community Safety for a period of two years or for such lesser period as
the person supervising you considers appropriate and you obey all reasonable
directions of that person as to treatment or counselling for alcohol and drug
use and mental impairment.
(e)
I make a reparation order in the sum of $17,634.97 to the Australian Taxation
Office.
I certify that the preceding thirty-three [33] numbered
paragraphs are a true copy of the Reasons for
Sentence of his Honour Justice Elkaim
Associate: V Wei
Date: 26 October 2016
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