R v MASCALL, MASCALL and SEWELL [2012] NSWDC 176

District Court New South Wales

Medium Neutral Citation: R v MASCALL, MASCALL and SEWELL [2012] NSWDC 176 Decision date: 11 May 2012 Before: Cogswell SC DCJ Decision: Paul Mascall - for the offences of conspiracy to defraud the Commonwealth and conspiracy to cause a loss to the Commonwealth - 4 years imprisonment. To be released upon giving security in the sum of $500 by recognizance and without sureties after serving 2 years imprisonment. Lesley Mascall - for the offences of conspiracy to defraud the Commonwealth and conspiracy to cause a loss to the Commonwealth - 3 years imprisonment. To be released upon giving security in the sum of $500 by recognizance and without sureties, after serving 15 months imprisonment. Paul Sewell - for the offence of conspiracy to defraud the Commonwealth and obtain a financial benefit by deception - 2 years imprisonment, to be released forthwith upon giving security in the sum of $500 by recognizance and without sureties. Catchwords: CRIMINAL LAW - Particular offences - property offences - defrauding the Commonwealth - conspiracy - Vanuatu tax evasion scheme - reliance on advice of tax agent in entering the scheme - objectively serious offence - tax shortfall of over $166,000 (Lesley Mascall), over $174,000 (Paul Mascall), over $25,000 (Paul Sewell), over $450,000 (Air Solutions) and nearly $65,000 (Varitech) - offending behaviour part of course of conduct extending over long period. Sentence - purpose - general deterrence of great importance - personal deterrence - of little importance in this case - relevant factors - motivation - financial gain through evasion of income tax obligation - no prior criminality - all offenders of good character - excellent prospects of rehabilitation - parity - Lesley Mascall in a more serious category than co-conspirator (Mr McLean) - offending extended over longer period - significant delay in prosecution owing to extensive preparation - offenders aged between 56 and 71 - response to charges - active co-operation with authorities - retained accountant to rectify tax affairs - repaid debt - offered to assist authorities in prosecution of the accountant - pleas of guilty - 20 per cent discount - contrition - corrected an Australian Tax Office error resulting in additional reparation - remorse - all offenders offered a sincere apology - other offences in accordance with s 16BA Crimes Act 1914 (Cth) taken into account. Legislation Cited: Crimes Act 1914 (Cth), s 16A, s 16BA, s 29D and s 86(1) Criminal Code Act 1995 (Cth), s 134.2(1) and s 135.4(3) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146 Regina v Boughen and Cameron [2012] NSWCCA 17 Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31 Regina v Dennison [2011] NSWCCA 114 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Regina v Morris (1992) 61 A Crim R 233 Regina v Nguyen and Phan (1996) 86 A Crim R 521 Powell v The Queen (1974) 131 CLR 623; [1974] HCA 26 Putlan v The Queen (2004) HCA 8; 218 CLR 174 Category: Sentence Parties: Regina (Crown) Paul Mascall (Offender) Lesley Mascall (Offender) Paul Sewell (Offender) Representation: Counsel: A J Payne SC (Offenders) P M Wass (Offenders) D Lee (Crown) File Number(s): DC 2008/46247; 2008/254397; 2008/137007; 2008/246234; 2008/137010; 2008/137012