Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mark Andrew Hughes v R [2011] NSWCCA 226 Hearing dates: 5 October 2011 Decision date: 05 October 2011 Before: Allsop P Latham J Rothman J Decision: Leave to appeal granted Appeal dismissed Catchwords: CRIMINAL LAW – sentence – obtain financial advantage by deception – Criminal Code 1995 (Cth) – lodgement of false business activity statements – whether sentences should have been imposed concurrently – sentences reflect criminality inherent in course of offending – sentencing judge had regard to applicant's medical condition – hardship to offender's family not so extreme as to operate in mitigation of sentence – no miscarriage of sentencing judge's discretion Legislation Cited: Crimes Act 1914 Category: Principal judgment Parties: Mark Andrew Hughes - Applicant Regina – Crown Respondent Representation: Counsel: Self-represented - Applicant S McNaughton – Crown Respondent Solicitors: Self – represented - Respondent Commonwealth Director of Public Prosecutions – Crown Respondent File Number(s): 2009/1232 Decision under appeal Court or tribunal: District Court of NSW Date of Decision: 20/08/2010 Before: PI Lakatos SC DCJ File Number(s): 2009/1232 Judgment 1. ALLSOP P: I will ask Latham J to deliver the first judgment. 2. LATHAM J: The applicant seeks leave to appeal against a sentence imposed by Lakatos SC DCJ on 20 August 2010 in respect of 7 offences under the Criminal Code 1995 (Commonwealth), namely obtaining a financial advantage by deception (counts 1 to 4) and attempting to obtain a financial advantage by deception (counts 5 to 7). The offences each carry a maximum term of imprisonment of 10 years. 3. On each of counts 1 and 5 the applicant received a fixed term of one year imprisonment to date from 20 May 2010. On count 7 the applicant received a fixed term of one year imprisonment to date from 20 July 2010. On count 6 the applicant received a one-year fixed term of imprisonment to date from 20 September 2010. On count 3 and 4 the applicant received a sentence of two years fixed term imprisonment to date from 20 September 2010 and on count 2 the applicant received a term of imprisonment of 4 - 3 - years to date from 20 November 2010, including a non-parole period of two years and six months. The aggregate sentence was thus one of 4 years and 6 months imprisonment with an aggregate non parole period of 3 years. The applicant is eligible for release on 20 May 2013. 4. The applicant appears for himself on the hearing of the appeal. The grounds of appeal that were filed are as follows :- 1 to get the sentences to run concurrently 2 count 3 versus count 2 sentence inconsistencies 3 inconsistent sentences on counts 1 and 5 versus count 4 4 medical conditions 5 caring for my mother 1. The written submissions filed by the applicant explain the first ground in terms of the anticipated outcome of this appeal, namely that the applicant seeks to serve his remaining sentences concurrently as and from 20 May 2010. The applicant has finished serving his sentences for counts 1, 5, 6 and 7. The effect of the submission is that the applicant maintains that all sentences ought to have been dated from 20 May 2010, thereby resulting in a total sentence of 4 years imprisonment with an effective non-parole period of two years and six months. 2. This ground does not identify any error on the part of the sentencing judge. In order to determine whether there is any merit in the contention that all sentences ought to have been imposed concurrently, it is necessary to turn to the remaining grounds. 3. The alleged inconsistency between the sentences imposed on count 3 and count 2 is said to reside in the fact that the amount of money the subject of count 2 ($106,148.54) was marginally less than the amount of money the subject of count 3 ($109,158). The applicant points to the fact that the sentence imposed on count 2 is in fact twice the length of the sentence imposed on count 3, thus revealing a relevant discrepancy. 4. The disposition of grounds 2 and 3 requires some attention to the circumstances of the applicant's offending. 5. In brief terms, the offences were constituted by the submission by the applicant of a number of false business activities statements claiming large GST refunds. The applicant submitted false statements on behalf of a legitimate trading entity by overinflating the entities' expenditure. The first false statement was submitted on 23 September 2004. 6. Shortly after the lodgment of the fourth false statement (count 5) the applicant was contacted by an Australian Taxation Office Compliance Verification Officer on 14 January 2005. The applicant provided the ATO officer with false information and invoices. 7. By the 18th of February 2005 the applicant had started using the names of unsuspecting associates to gain control of three other entities, register those entities for GST purposes and lodge false statements on behalf of those entities. In all, a total of four entities lodged a total of 30 statements over a 17 month period, falsely claiming GST refunds totalling $401,168.54 to which the applicant was not entitled. A total loss resulted to the ATO of $298,022.54. 8. The offences came to the attention of the ATO in about December 2005. In January 2005 all accounts associated with the applicant were stopped from receiving any refunds as a result of the submission of statements. 9. Returning to ground 2 of the appeal, count 2 encompasses the longest period of offending. Count 2 related to 12 statements lodged by the applicant between September 2004 and 16 January 2006. A significant number of these statements were lodged after the applicant was contacted by the first ATO officer on 14 January 2005. Count 2 also included a statement that was lodged a month after a second ATO auditor contacted him on 20 December 2005. 10. Count 3 related to 8 statements lodged by the applicant between March and October 2005. It was clearly within the legitimate sentencing discretion of the judge to impose a longer sentence in respect of count 2, given that it revealed a more extensive course of criminal conduct than that represented by count 3. It should also be borne in mind that the fixed term of two years imposed in respect of count 3 is in effect equivalent to a non parole period of two years. In that regard, it does not differ substantially from the sentence imposed in respect of count 2. I can see no merit in this ground of the appeal. 11. The complaint in respect of ground 3 is of a similar nature. The applicant contends that the total amount the subject of counts 1 and 5 was $77,668, whereas the amount comprehended by count 4 was $79,456. The applicant then contends that the two year sentence imposed in respect of count 4 is excessive, having regard to the sentence of one year imposed in respect of each of counts 1 and 5. 12. Count 4 related to the lodgment of 6 statements between September and December 2005. Counts 1 and 5 related to the lodgment of two statements by the applicant whereby an amount of $3260 was obtained in October 2004 (count 1) and a further amount of $74,408 was attempted to be obtained in January 2005 (count 5). 13. Once again, the extent of the criminality demonstrated by the lodgment of six false statements over a four-month period (count 4) exceeds the criminality inherent in each of counts 1 and 5. The former demonstrates a sustained course of conduct whereas the latter consists of two discrete episodes of criminal conduct. In these circumstances, there is no error demonstrated by the sentences imposed in respect of these counts. 14. Ground 4 claims that the judge did not take account of the applicant's medical conditions at the time of sentence and the impact that custody would have upon the applicant's health. 15. The judge referred to a number of reports which were before him for the purposes of sentence, namely a Probation and Parole report, a report of Dr Pridgeon, the applicant's treating doctor since March 2004, a psychiatric report under the hand of Dr Westmore and a report by a psychologist, Ms Katherine Wakely. The judge referred to the contents of all of these reports in the course of his remarks on sentence (pp 10 - 16) 16. Dr Pridgeon's report of 23 July 2010 dealt with the applicant's physical health. The judge noted that the applicant has been treated for hypertension, diabetes and stress. The judge also noted a diagnosis of anxiety and depression. 17. Later in the course of his remarks the judge said at page 20 :- I am also duty-bound to have regard to the prisoner's character, antecedents, age, means and physical or mental condition. I have been referred to the evidence of Dr Pridgeon concerning the prisoner's health situation. In my view whilst it can be said that his health is not perfect these are not matters which significantly impact upon the appropriate sentence to be imposed. 1. It is clear from these remarks that the judge did have regard to the applicant's physical condition and the report of his treating doctor. There was no suggestion before the judge, nor was any submission made, to the effect that the applicant's illnesses could not be appropriately treated in custody. To the extent that the applicant is now experiencing difficulty obtaining treatment within the prison setting, that is unfortunate, but there is no basis for intervention by this Court in the absence of evidence that a delay in obtaining appropriate treatment has seriously compromised the applicant's health, in circumstances that could not have been foreseen at the time of sentence. 2. The applicant's legal representative on sentence referred to a conversation with the applicant, wherein the applicant accepted "that there has to be a substantial period of imprisonment still to go." A short time later in the course of submissions, the applicant's legal representative said "your Honour might see fit having regard to the offender's current medical conditions that your Honour might see that a sentence perhaps in the order of 27 months to serve 18 is not below an appropriate range in all the circumstances." (T/S 29 July 2010, pp 11- 13). This submission was obviously rejected by the judge and, in my view, appropriately so. An aggregate non parole period of 18 months would entirely fail to adequately represent the totality of the criminality inherent in the combination of offences. It should also be borne in mind that counts 1 - 3 were committed whilst the applicant was on conditional liberty. 3. Ground 5 refers to the fact that the applicant was at the time of sentence the sole carer for his disabled mother aged 69. The applicant asserts that the judge did not consider the effect that his incarceration would have upon his mother. This ground appears to raise the extent to which hardship to others, occasioned by the imprisonment of an offender, ought be considered in imposing an appropriate sentence. 4. In the course of his remarks the judge said :- The last matter to which I will have regard and which is a significant issue in the present case, in my view, is the probable effect of the sentence on the prisoner's family or his dependants. It is clear the prisoner's mother is 69 years of age, and has a number of health problems and is elderly and probably infirm. In my view, however, those features do not constitute the exceptional circumstances required in order for me to take that matter into account in affecting the sentence which should be imposed. 1. This was an entirely conventional statement of principle by the judge. Section 16A(2)(p) of the Crimes Act 1914 does no more than reflect the common law, namely that hardship to an offender's dependants only operates in mitigation of the sentence where it is so extreme that it causes a court to draw back from imposing a sentence which is otherwise justified. Hardship to an offender's family must exceed the sort of hardship which inevitably results when a parent or carer is incarcerated, before a sentence may be ameliorated accordingly. There is no merit in this ground of the appeal. - 8 - 2. Returning briefly to ground 1, it should be apparent from the reasons thus far expressed for dismissing the remaining grounds that there is no basis for the contention that all sentences ought to have been imposed concurrently. Sentencing is a discretionary exercise. The applicant has not demonstrated that the discretion has miscarried in relation to the individual sentences or in relation to the aggregate sentence imposed. 3. ALLSOP P: I agree. 4. ROTHMAN J: I agree with Latham J. 5. ALLSOP P: The orders of the Court are:- 1. Leave to appeal granted 2. Appeal dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2018