Regina v William John Walters [2001] NSWSC 640

New South Wales Supreme Court

CITATION : Regina v William John Walters [2001] NSWSC 640 FILE NUMBER(S) : SC 70076/99 HEARING DATE(S) : 25 June 2001 to 13 July 2001 JUDGMENT DATE : 27 July 2001

PARTIES : Regina William John Walters JUDGMENT OF : Sully J at 1

D.J. Fagan SC - Crown/P.J. Renehan - Crown COUNSEL : J.R. Bishop/A. Blank/A. Ivantsoff/J. Mersic - Defendant

SOLICITORS : H. Armstrong - Commonwealth DPP C. Adamson - Paclaw Solicitors - Defendant LEGISLATION CITED : Crimes Act 1914 (C'wealth) CASES CITED : Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 DECISION : On Count 1: Fixed term of imprisonment for 2 years, commencing on 27 July 2001 and expiring on 26 July 2003; On Counts 2, 3 and 4: Fixed term of imprisonment for 3 years, commencing on 27 July 2001 and expiring on 26 July 2004; On Counts 5, 6, 7, 8 and 9: Imprisonment for 4 years and 8 months, commencing on 27 July 2004 and expiring on 26 March 2009, with a non-parole period of 3 years commencing on 27 July 2004 and expiring on 26 July 2007; On Count 10: Fixed term of imprisonment for 3 years, commencing on 27 July 2004 and expiring on 26 July 2007

SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SULLY J

Friday 27 July 2001

70076/99 - REGINA v WILLIAM JOHN WALTERS

ON SENTENCE

HIS HONOUR:

Introduction 1 On 25 June 2001 Mr. William John Walters, ("the prisoner"), was presented in this Court for trial upon an indictment containing ten counts. Each count charged the prisoner with having been knowingly concerned in the defrauding by a particular named company of the Commonwealth. A different company was named in each count, but the nature of the defrauding that was charged in each case was alleged to have been "in respect of group tax required to be remitted to the Commissioner of Taxation" by the particular named company. 2 Offences of the kind thus charged contravene section 29D of the Crimes Act 1914 (C'wealth), ("the Act"). A contravention of section 29D attracts, relevantly, a statutory maximum sentence of imprisonment for 10 years. 3 The prisoner pleaded upon presentment not guilty to each count of the indictment; and he stood thereupon trial by jury. On 13 July instant the jury returned a verdict of guilty upon each charge. The prisoner was formally convicted in each case; and was then remanded in custody until 20 July, on which day the Court heard submissions on sentence, thereafter remanding the prisoner in custody until today, for the passing of sentence. 4 Before proceeding with the necessary canvass of the relevant objective and subjective matters bearing in a particular way upon sentence, there are some general matters that can be conveniently considered. 5 First, the offences of which the prisoner has been convicted are all "federal offences" as defined in section 16(1) of the Act. It follows that the offender is a "federal offender" as defined in that same section; and that he is, therefore, to be sentenced in conformity with the detailed sentencing scheme for which provision is made in Part 1B of the Act. It will be necessary to return in greater detail to some in particular of the requirements of Part 1B. 6 Secondly, there was tendered, and marked as Exhibit B at the proceedings on sentence, a document of the kind contemplated by section 16BA of the Act. That section provides relevantly: "(1) Where a person is convicted of a federal offence or federal offences, and the court before which the person is convicted is satisfied that: (a) there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section: (b) the document contains a list of other federal offences, …………., which the person convicted is believed to have committed; (c) the document has been signed:………….. (ii) for and on behalf of the Director of Public Prosecutions, by a person authorised by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; and by the person convicted; (d) a copy of the document has been given to the person; and (e) in all the circumstances it is proper to do so; the Court may, with the consent of the prosecutor and before passing sentence on the person, ask him whether he admits his guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him for the offence or offences of which he has been convicted. (2) Subject to sub-section (3), if the person admits his guilt in respect of all or any of the offences specified in the list and wishes to have them taken into account by the court in passing sentence on him for the offence or offences of which he has been convicted, the court may, if it thinks fit, in passing sentence on him for the offence or offences of which he has been convicted, take into account all or any of the offences in respect of which the person has admitted his guilt. (3) ……………………………. (3A) ……………………………. (4) Where the court takes into account under this section all or any of the offences in respect of which the person has admitted his guilt, the sentence passed on him for any of the offences of which he has been convicted shall not exceed the maximum penalty that the court would have been empowered to impose on him for the offence if no offence had been so taken into account." 7 It is, in my opinion, proper in connection with the offences notified in Exhibit B to proceed in accordance with section 16BA. To this aspect of the present case, also, it will be necessary to return. 8 Thirdly, the need to sentence the prisoner for ten separate offences, and to factor into that exercise the further offences notified in Exhibit B, poses some difficult questions of both principle and practice. Dealing correctly with those questions requires a careful application of propositions established by two decisions of the High Court of Australia: Mill v The Queen (1988) 166 CLR 59; and Pearce v The Queen (1998) 194 CLR 610. The extended discussion of those propositions, and of their particular application to the present case, will be more usefully undertaken later in the present remarks on sentence. 9 Fourthly, and finally, there is something which would not usually be taken up in remarks on sentence, but which I feel strongly ought to be, as a matter of common fairness and decency to the prisoner, the subject of comment by the Court. 10 A central feature of the evidence at trial, and also of the competing Crown and defence cases as finally put to the jury, was the affluent lifestyle which the prisoner maintained for some years. That lifestyle was described, dissected and discussed in fine detail. What has thus emerged has been, already, the subject of a good deal of media comment. Much of what I have seen of that comment has struck me as being apt to expose the present prisoner to a degree of public mockery and ridicule that is in my opinion unseemly, unjust, unfeeling and unnecessary. 11 It is, I think, timely to make it clear that the prisoner was not prosecuted, has not been convicted, and is not now to be sentenced, because he aspired to a lifestyle that was more affluent than that enjoyed by many other people; or because he managed to maintain for some time a lifestyle of conspicuous affluence. Rather has he been prosecuted to conviction, and is now to be sentenced, because he financed that affluent lifestyle in a way that entailed such a use of the funds available to him as intentionally deprived the Commissioner of Taxation of the benefit of amounts of group tax deductions to which the Commissioner was lawfully entitled, and for which the prisoner persistently failed to account as by law required.