District Court New South Wales Medium Neutral Citation: R v Emile George El Soury [2018] NSWDC 450 Hearing dates: 12 October, 3 December 2018 Date of orders: 03 December 2018 Decision date: 03 December 2018 Jurisdiction: Criminal Before: Montgomery DCJ Decision: See [74] Catchwords: CRIMINAL LAW – sentence – Commonwealth offences – dishonestly obtaining financial advantage from the Commonwealth by deception – attempting to dishonestly obtain financial advantage from the Commonwealth by deception – s 134.2(1) Criminal Code 1995 (Cth) – pleas of guilty – Commonwealth consistency – parole to non-parole ratio Legislation Cited: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Judiciary Act 1903 (Cth) Cases Cited: Brown v R [2013] NSWCCA 44 Cao v R [2010] NSWCCA 109 Edwards v R [2013] NSWCCA 54 Hawkins [2013] NSWCCA 208 Hilli v R [2010] 242 CLR 520; [2010] HCA 45 Hughes v R [2011] NSWCCA 226 Kertebani v R [2010] NSWCCA 221 Noble v R [2018] NSWCCA 253 R v Henry (1999) 46 NSWLR 346; (1997) NSWCCA 111 R v Massey [2015] QCA 254 R v Melrose [2016] QCA 202 R v Pham (2015) 256 CLR 550; [2015] HCA 39 Sabra [2015] NSWCCA 38 Woods v R [2018] NSWCCA 261 Category: Sentence Parties: Emile George El Soury CDPP Representation: Counsel: Mr G. Stanton (for the offender) Solicitors: Mr B. Scard (CDPP) File Number(s): 2017/002479 Publication restriction: Nil sentence 1. This sentence hearing commenced at about 11.45am on 12 October 2018 but was unfortunately interrupted at 2pm when a note from a jury in deliberation in a trial over which I presided was received. 2. The Crown sentence bundle was marked exhibit A, the defence bundle was marked exhibit 1. I include the updating documents received today, 8 December 2018, being report of Dr Pignataro 29 November 2018, report of Matt Miller, Adele House 28 November 2018 and report of Jackson Walsh 1 December 2018 from Adele House in exhibit 1. 3. The Crown relied on a written outline of submissions and oral submissions. The Crown handed up a table of comparable sentence judgments referring to decisions of various State Courts. The offender relies on oral submissions and an outline of written submissions handed up today. 4. Consistency of sentencing across the jurisdictions is important. The search for consistency requires that I have regard to what has been done in comparable cases throughout the Commonwealth: R v Pham [2015] 256 CLR 550; [2015] HCA 39 at paras 23 and 41; Hilli v R [2010] 242 CLR 520; [2010] HCA 45 at 20. 5. In Hilli, the High Court said at [57] It is plain of course that intermediate courts of appeal should not depart from an interpretation placed on Commonwealth legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong. So too in considering the sufficiency of sentences past on federal offenders at first instance intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts unless convinced that the decision is plainly wrong. 1. I have considered sentence decisions from across the Commonwealth and the offender is to be sentenced on the basis of consideration of all circumstances of his offending without making generalisations of a normal sentence: Hilli at [25]. 2. National consistency of sentencing is not demonstrated by and does not require numerical equivalence. This is because reference to only the length of sentences past says nothing about why sentences were fixed as they were. The offences committed, the circumstances attending the offending and the offender's personal circumstances in each case are so varied that it is not possible to make any useful statistical analysis or graphical depiction of results: Hilli at [48]. 3. Section 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to fixing of non-parole period and the making of recognisance release orders for federal offences: s 68(1) Crimes Act (Cth) ('the Act'); Hilli at [20]. Pleas of guilty 1. The parties agree that the plea of guilty was entered at the first available opportunity and a discount of 25% is appropriate. That is in relation to all the offending. I accept that discount as within the range contemplating the utilitarian value: s 16A(2)(g) the Act. Because of the strong prosecution case based on documented evidence, the pleas do not evidence in themselves significant remorse or contrition except for acceptance of guilt: s 16A(2)(f) the Act. Offences 1. The admitted offending is: 1. Sequence 78: obtain a financial advantage by deception in that between about 2 October 2009 and 14 May 2014 he did by deception dishonestly obtain a financial advantage from the Commonwealth, namely, 41 Goods and Services Tax refunds by causing to be lodged with the Commissioner of Taxation 41 false Business Activity Statements on behalf of eight different Australian Business Numbers for 18 quarterly tax periods between 1 July 2009 and 31 March 2014: s 134.2(1) Criminal Code Commonwealth. The maximum penalty for the offending is imprisonment for ten years. 2. Sequence 79: obtain financial advantage by deception, in that, between 31 May 2011 and 10 February 2012, he did by deception dishonestly obtain a financial advantage from the Commonwealth, namely, seven Goods and Services Tax refunds by causing to be lodged with the Commissioner of Taxation seven false Business Activity Statements on behalf of three different Australian Business Numbers for five quarterly tax periods between 1 July 2010 and 31 December 2012: s 134.2(1) Criminal Code Commonwealth. The maximum penalty for the offence is imprisonment for ten years. 3. Sequence 80: attempt to obtain a financial advantage by deception, in that, between 15 June 2011 and 8 February 2013 he did attempt by deception to dishonestly obtain a financial advantage from the Commonwealth, namely, 13 Goods and Services Tax refunds by causing to be lodged with the Commissioner of Taxation 13 false Business Activity Statements on behalf of five different Australian Business Numbers for ten quarterly tax periods between 1 July 2009 and 31 December 2012: ss 11.1 and 134.2(1) Criminal Code Commonwealth. The maximum penalty for the offence is imprisonment for ten years. 1. Exhibit A includes a Form 1. This is referred to as the Item 1 offence, for the purposes of s 16BA of the Act. It is dated 27 March 2018 and is signed by a representative of the Commonwealth DPP and by the offender. The document evidences that the offender admitted the Item 1 offence and with the prosecution's agreement asked the Court to take into account the Item 1 offence when sentencing him for the first count, being the sequence 78 matter. The maximum sentence which might be passed is the maximum for the count 1 offence: s 16BA of the Act. 2. The Item 1 offence is attempt to obtain a financial advantage by deception in that between 12 May 2011 and 18 June 2014 he did attempt by deception to dishonestly obtain a financial advantage from the Commonwealth, namely, he attempted to obtain 16 Goods and Services Tax refunds by causing to be lodged with the Commissioner of Taxation 16 false Business Activity Statements on behalf of seven different Australian Business Numbers for 11 quarterly tax periods between 1 October 2009 and 30 June 2014: ss 11.1 and 134.2(1) Criminal Code Commonwealth. The maximum sentence for the offence being the same as that for count 1, sequence 78 matter, that is, ten years imprisonment. 3. I agree with the approach taken by the parties, given the continuous course of criminal conduct of similar type between 2 October 2009 and 18 June 2014, that it is appropriate to take the Item 1 matter into account when passing sentence for the sequence 78 offence. Agreed facts 1. I have considered the whole of the agreed statement of facts. These reasons incorporate the facts in summary form. 2. The offender who was born on 6 October 1981 was about 28 years of age at the commencement of the offending and 33 years of age when his offending ceased because he had been caught. He is now 37 years of age. He obtained a Bachelor of Business Accounting at the Australian Catholic University in 2004. Over the following decade, he was employed with at least seven accounting firms and in each instance, his employment was terminated on the basis of unsatisfactory performance. The offender relied on income support payments from Centrelink during periods totalling four years when he was unable to achieve employment as an accountant. 3. On 3 June 2009, following a year of unemployment, he commenced his own tax agency business by incorporating EM Capital Pty Ltd of which he was the sole shareholder and director. He was first granted access to the Tax Agent Portal in the second half of 2009 following registration of that company. He registered that company with the Tax Practitioners Board prior to obtaining an individual registration in March 2010. 4. The ATO provides a secure online service to registered tax agents and to business through its Tax Agent and Business Portals. The offender used the Portals to lodge all 77 false Business Activity Statements, the subject of the combined offending including the s 16BA Item 1 matter. 5. The Tax Agent Portal allows registered tax agents to lodge and revise BAS's and direct refund payments to particular bank accounts on behalf of all those taxpayers added as clients. All of the false BAS's lodged by the offender between October 2009 and April 2012 were lodged using the Tax Agent Portal. When the offender failed to renew his registration as a tax agent in August 2012, he lost access to the Tax Agent Portal forcing him to gain access to the Business Portal on behalf of each entity to make further false lodgements. In one instance, the offender used a tax payer's personal information including his individual Tax File Number to falsely authenticate himself and to gain access to the Business Portal to facilitate fraudulent lodgements. The offender was not known to this person and it is not apparent how he obtained the person's personal information: Sequence 78 and Item 1 1. This grouping of lodgements in the course of his offending involved lodgements on behalf of entities created and controlled by him. Between 2 October 2009 and 18 June 2014, the offender fraudulently lodged 57 false BAS's. As a result of those 57 fraudulent lodgements, the ATO made 41 GST refund payments totalling $95,923.50 to accounts controlled by the offender (sequence 78). 2. The ATO stopped the remaining 16 claims for refunds of GST totalling $38,236 (the Item 1 offending). In 28 of the 57 false lodgements, the offender upwardly revised the fraudulent claims. 3. The following facts describe criminal culpability in the high range for offending of this type. 4. When on a number of occasions the ATO from mid-2011 audited BAS's lodged in the name of entities controlled by the offender, sequence 78 and Item 1 offending, despite repeated requests, the offender was unable to supply documents to substantiate the business expenditure claims. The offender interacted with at least five different auditors during the offence period. In the course of the audits, the offender sought to blame a friend, an employee and a bookkeeper for fraudulent lodgements. When asked by auditors, the offender was unable to provide any information in relation to such persons and asserted that they had left Australia. The offender also described the lodgements as an honest mistake on the bases that they should be attributable to another entity. All of these claims were false. 5. In response to audits, rather than disclose his dishonesty and cooperate with the ATO, the offender expanded his fraud as he began to make false lodgements on behalf of other entities he formed and registered in lieu of the entities that were subject to audit. In response to the audit of EM Capital Pty Ltd, his own company, he incorporated SK Holdings Pty Ltd for GST claim refund purposes and whilst dealing directly with auditors he made false lodgements in his own name as a sole trader. 6. When contacted by auditors in late May 2013, the offender began making false lodgements on behalf of a dormant partnership (W Azzi and El Soury), that he had registered for GST purposes on 1 April 2013 without the knowledge of the other partner. Despite having been contacted by auditors about false lodgements for the partnership in early 2013, the offender incorporated a fourth proprietary company, Emile El Soury Pty Ltd on 27 August 2013. In two instances, the offender obtained a second Australian Business Number for an existing proprietary company falsely by claiming it to be a trustee of a trust and that the company was conducting two separate businesses, each warranting the lodgement of further BAS's. 7. In mid-July 2013, the offender commenced employment as an accountant with Fiducian Business Services. Within two weeks, he used a fellow employee's access to the Portal to lodge a false BAS (sequence 78). Sequences 79 and 80 1. This grouping of lodgements in the course of his offending involved lodgements in the name of third parties. The offender also lied during the course of audits of those clients in the name of whom he made false lodgements. Between 31 May 2011 and 8 February 2013, the offender fraudulently lodged 20 false BAS's on behalf of five entities which he did not control. Three of the entities were associated with two of the offender's clients, the remaining two entities were sole traders with no link to the offender. The ATO made seven refunds in the total sum of $31,442.50 to accounts controlled by the offender (sequence 79). The ATO stopped 13 refunds totalling $41,496 (sequence 80). Of the 20 false lodgements, there were 11 false BAS's in the names of two sole traders with whom he had no link. The ATO made six GST refund payments totalling $25,814.52 to accounts controlled by the offender (sequence 79). The ATO stopped five GST refund payments totalling $11,540 (sequence 80). Three of those 11 false BAS's were revisions of legitimate BAS's lodged by a sole trader, a casual taxi driver. In that activity, the offender dishonestly represented to the ATO that the three legitimate BAS's lodged by the taxi driver were erroneous. The three fraudulent refunds were paid out to the offender and the total sum of $14,189.50 and incurred a reversal of legitimate GST payments of $117 made to the sole trader, the taxi driver. Objective seriousness 1. The offender's activities were designed without regard for stress and inconvenience suffered by those who fell into the web of his fraud. As a result of the false allegations, the ATO conducted audits of both individuals whose identities had been used by the offender during which they were contacted by auditors on numerous occasions, questioned about their affairs, required to complete ATO questionnaires in relation to their business and provide supporting documentation in respect of past lodgements. 2. The financial advantage from the sequence 78 and 79 offending involved 48 refund payments resulting from the fraudulent lodgements paid into eight different bank accounts opened and controlled by the offender. He controlled a further 22 bank accounts during the offending, at least, 19 of which were opened in that period. 3. In reality, the offender funded his lifestyle during a period when he was receiving Social Security payments by deliberate and conscious fraud upon the ATO and thereby upon the Australian community and to its cost. The total financial advantage he gained from the offending was $127,366. The ATO stopped a total of payments of $79,732. Accordingly, the total of the fraudulent refunds claimed by the offender was $207,098. These are significant sums. The amount is a significant consideration in the balance consideration of the synthesis of sentencing. 4. The obviously high criminal culpability involved conduct spanning four and three-quarter years of deliberate and planned fraud on the community of Australia through false lodgement of BAS's, deliberate evasion and deception and provision of consciously false information in a course designed to mislead authorities. The offending was available only because of the offender's exploitation with the specialist knowledge in accounting matters obtained through the privilege of tertiary education intended to qualify him to work in a position of trust as a professional in the community. He used his specialist knowledge to criminally abuse that trust. He deliberately achieved taxation agent registration only to defraud the community. 5. In my opinion, the level of deception, dishonesty and fraud is above that which is inherent to the type of offending. In the sequence 78 and Item 1 offending, when audited, rather than admit his wrongdoing and cooperate with authorities, he expanded his deception and dishonesty. 6. In the sequence 79 and 80 offending, in addition, rather than make lodgements for entities controlled by and identified with himself, he involved innocent third parties. 7. In relation to each of the subject three counts and the Item 1 matter, the objective seriousness is above the middle range for offending of this type. 8. An Australian Business Number is an unique 11 digit identifier issued to legal persons who are carrying on or starting an enterprise or business. Registered entities are required to provide the Commissioner for Taxation with a GST return for each tax period typically on a quarterly basis. The lodgement of GST returns is linked with the lodgement of Business Activity Statements. 9. The Commonwealth collection of revenue, by this system, relies upon entities and when they choose to do so, through the services of tax agents operating on their behalf, to make declarations honestly and accurately. Offending of this type causes the direct and obvious damage to the community of the loss of revenue which loss inevitably will be picked up by taxpayers and to some extent suffered by those in the community for whom the Commonwealth fiscally is unable to provide. 10. There is also a broader damage which is that should this type of fraud go without punishment the effect would be the entrenching and encouraging of others to so defraud the Commonwealth and benefit from the ill-gotten, lucrative gain. That is why his deliberate steps of deception and dishonesty even after becoming aware of audit are so relevant in the identification and assessment of the objective seriousness of the subject offending. That said, whilst the culpability is above middle range and the sums involved significant, other cases have involved far higher sums. 11. His offending was not victimless. Every member of the Australian community was a victim. 12. The offender concedes that the s 17A threshold is exceeded. Having considered all other available sentences, I am satisfied that no sentence other than imprisonment is appropriate in all of the circumstances. This is particularly because of the deliberate deception and dishonesty in which the offender engaged after realising the interest of auditors and the ATO. Obviously, the appropriate course at that stage was to concede his dishonesty and cooperate with authorities. Subjective matters 1. At the time of the subject criminal offending, the offender was a person of good family, good health and good opportunity with the benefit of tertiary education. He did not give evidence on oath but relied on numerous character references and the reports of Consultant Clinical Psychologist, Dr Anthony Pignataro dated 8 October 2018 and 29 November 2018. He told Dr Pignataro a history of past extensive poly-substance abuse. Dr Pignataro recorded at para 9 of his first report Past marijuana and cocaine were consumed. He reported that his primary drug choice was using cocaine as it was a necessary means of supporting his everyday existence. He reported feeling good about his life when using it rather than thinking about suicide. He also reported that he had a desire to feel confident, strong and wanted to overcome his inferiority and inadequacy with cocaine use. He reported that he saw this aim as vital to feeling better about self. 1. In absence of any particular tragedy in his life, but according to the report, at a time when suffering low self-esteem, longstanding depression and anxiety, the offender determined to engage his criminal course in order to fund his marijuana and cocaine use. 2. Dr Pignataro recorded at para 17 of his first report In terms of the index offences before the Court, Emile has always suffered from an identity crisis whether with the choice of work, friends or partners. The difficult feelings of emptiness, abandonment, depression and chronic hopelessness have characterised his life. He has never really been happy and satisfied with his life direction. His choice to study accounting was to appease parental expectations and not his own. His confusion with his identity and the intense feelings noted were poorly managed with his impulsivity to use cocaine. As a stimulant drug it gave him relief from feelings that overwhelmed him. His accounting business and history of working in the area were indicative of an individual that was failing and in contrast to someone who was successful because he enjoyed his job. With increasing need to sustain a more positive mood, he became more dependent on cocaine use and its short term benefits. His only means of continuing to experience a more positive mood was to earn money which he was not doing while working as an accountant to support his weekly habit. He was able to find a means that was falsely claiming GST funds. 1. Dr Pignataro recorded that between February 2011 and June 2014, the offender received psychotherapy. No detail of the nature or extent of that therapy is given. He was not medicated. At para 18, Dr Pignataro described the offender's remorse in terms which are consistent with the repeated observation by those who provided character references for him. He wrote Emile has shown remorse and a sorrow for his actions that have adversely affected his reputation and standing in the community. He has relinquished his tax agent licence and accepts that he will never return to the profession. 1. Whereas Dr Pignataro recorded the offender's report to him of some difficulty in his relationship with his father arising from his father, "constantly demanding of him" and that "he was perceived as a disappointment by his father at times" the general report from the several character references of persons familiar with the offender's illicit drug use and rehabilitation history is complimentary of support received through and of his family. In those several character references, there is no mention of significant difficulty or demoralisation suffered as a consequence of behaviour of his father or of any member of his family. 2. Dr Pignataro's second report refers to the offender seeking and receiving recent therapy. Dr Pignataro is of the opinion that the offender experiences significant disturbance of personality functioning. 3. The essence of the offender's subjective case, evidenced by the exhibit 1 documentation, is that his past extensive history of poly-substance use of marijuana and cocaine consumption was the driving circumstance of his offending. Naturally, the offender's motive for offending is a relevant consideration but his choice to offend in order to support his illicit drug use in the circumstances, in my opinion, was not a motive which properly considered discounts the moral culpability of his conduct. It is not a mitigating factor of any significance for the purposes of sentence: R v Henry (1999) 46 NSWLR 346; (1997) NSWCCA 111 at para 185 and per Spigelman CJ at 197. Woods v R [2018] NSWCCA 261 at para 45. 4. From rehabilitation, including psychotherapy in residence and externally through Adele House since November 2017, he has remained abstinent from illicit drugs and is an active attendee and volunteer worker with Narcotic Anonymous. A worker in the Drug and Alcohol Industry, Ms Janet Popple, describes him presently as "One of the amazing people who has managed to turn their life around and is living a life free from drugs and alcohol." 5. Monthly urinalysis for the period 20 February 2018 to date has not detected illicit drug use. 6. Not surprisingly, in consequence of these charges, the offender lost employment with the Australian Border Force. Reverend Father Dr John Karan of St Nicholas Antioch Orthodox Church, who has known the offender's family since 2009, reported that the tragic death of the offender's brother through terminal illness in 2012 impacted his life in a dramatic way. It was from about 2015 that the reverend father had the opportunity to observe the offender as he put it, "on a personal level." It is to be noted that the offending commenced three years before his brother's passing and continued for two years afterward. The reverend father wrote to the Court Emile is single and I strongly believe that he is genuinely trying to get his life back on track and would like to start his own family once this matter has been dealt with and settled. I am aware that he has been clean of alcohol and drugs over three years. 1. Dr Darrel Weinman, the offender's family GP, also commented on the effect of the tragic death of the offender's brother and that the offender Is trying very hard to recover from this and return to a normal peaceful life. He is now highly motivated and I feel he should be given a chance to rehabilitate himself as his efforts appear successful. 1. A letter of apology from the offender to the Court dated 11 October 2018 refers to his drug addiction and lack of regard for what he was entrusted to do by the public as a registered tax agent. He acknowledges his breach of that trust and that he let the public down. He describes himself as having Cleaned up my life and rehabilitate [sic] and I have stayed off drugs and seek make amends by not only helping but also warning others of the dangers of drug use so that hopefully they don't end up like I do a criminal. 1. The offender did not give evidence on oath and I view his claims of remorse and appreciation of the seriousness of his offending with a degree of circumspection. 2. There is no offer of recompense. There has been no payment by way of reparation nor was there cooperation during the audit process which would acknowledge the damage and loss which he has caused the community. 3. I find the reports of remorse contained in the report of Dr Pignataro, character reference providers and the offender's letter of apology to be disappointingly lacking in acknowledgment of damage done to the Australian community and to the innocent third parties whom he dragged into audit with the ATO by his fraudulent use of their personal details. 4. The lay expressions of his remorse read of a concern for loss of his standing and attribute the wrongdoing to the drug addiction. Dr Pignataro does not opine that the offender was helpless against the overbearing drive of an addiction to illicit drugs. He was from good family and was not without the opportunity of sustenance, medical, psychological, financial and emotional should he have sought it. 5. His descent into a dependence on drugs requiring the financing of his use as he saw it by the opportunity of defrauding the Commonwealth was self-induced to a higher degree than in circumstances of other persons whose life circumstances permit them less options than were available to the offender. His psychological state reported by Dr Pignataro does not describe a causal link to offending which can properly be equated to a lowering of criminal culpability. 6. In my opinion, his offending bears the hallmarks of a choice to commit cheap theft in order to support a lifestyle whilst knowing it was criminal and whilst aware of his opportunity to avoid it. His continued deception of the ATO audit process was a choice he made rather than take the course of cooperation and disclosure. 7. The offender properly refers to, what is best described in the most recent documentation from those working at Adele House, undergoing a nine month rehabilitation program there during which 90 days involved 24 hour supervision. Through the whole of the period he was repeatedly tested for drug use. It would be fair to say there is scant detail of the mechanics of restriction of liberty whilst in that placement as has been evidenced in other cases such as in Brown v R [2013] NSWCCA 44. That course of rehabilitation was, however, self-imposed. On one hand it was without consequence such as if he had been directed to it by bail. On the other hand, it must be acknowledged as a legitimate attempt to free himself from his drug use. It is an important personal effort at rehabilitation for which he is to be commended. To some extent, it mitigates against specific deterrence in sentencing and shows the positive potential for his rehabilitation. 8. I propose to permit a discount of two months on the basis of what is sometimes referred to in the cases as "quasi-custody" noting that whilst in this instance it was self-imposed and voluntary, the rehabilitation was with a reputable organisation and, in particular, included 90 days of 24 hour supervision. The offender submits that he is a low risk of re‑offending. 9. It is difficult to assess the risk of recidivism in a case such as this. As an adult person with the benefits of life, the offender simply chose to succumb to the attraction of financial gain and breach the trust the community placed in him through the privilege of his professional position. I accept that if he remains drug free there is less financial incentive to support that habit but there remains a concern as to whether when placed under financial stress he might reoffend. There is, for instance, not before me, detailed evidence of him seeking employment. It is noted, as I have observed, by Dr Pignataro that he lost his employment with the Australian Border Force as one would expect; but there is nothing in the description of the offender as is available from the evidence which causes me to understand why it is that he did not, before this offending, obtain reliable, constant and remunerative employment and why he has not done so more recently. The future therefore is not clearly pained on the evidence, when I come to consider the risk of recidivism. 10. The sequence 78, 79 and 80 counts and the Item 1 matter are components of a continuous course of offending spanning approximately four and a half years. Design of sentence: s 16A 1. Pursuant to s 16A of the Act, the Court must impose a sentence that is of severity appropriate in all the circumstances of the offence. In these reasons, I have taken into account the matters listed in s 16A(2). The nature of the offending demands general deterrence (s 16A(2)(j)(a)) albeit specific deterrence (s 16A(2)(j)) is not as significant as it might be in another case where the offender has an antecedence history of criminality in the nature of dishonesty. The sentence must show denunciation of the offending conduct and be an adequate punishment for the offence: s 16A(2)(k). 2. The offender's otherwise general good character, that he is a person of no antecedence criminal history and that to some extent there was an underlying psychology of poor self-esteem, anxiety, depression and personality dysfunction at the time of the offending; are matters to be taken in mitigation of what might otherwise be punishment to be imposed: s 16A(2)(m). 3. Given his history of abstinence from drugs, at least, during 2018 as shown in the evidence of urinalysis and as reported by persons providing character references to the Court, his prospects of rehabilitation are also an important consideration in the determination of the appropriate balancing of non-parole and parole and available courses for designing of sentence: s 16A(2)(m). But for the special circumstances of his sentence providing his first experience with incarceration, he is not by medical condition or otherwise on the evidence, a person who will suffer particular hardship in that regard: s 16A(4). 4. Whilst Dr Pignataro recommended continuing psychotherapy intervention, the services of Justice Health will be available during incarceration. He is not in a de facto relationship, married or with children and the evidence does not identify hardship let alone any circumstance of a special hardship on any person of the offender's family which would be consequent of a sentence of imprisonment: s 16A(2)(p). 5. Pursuant to s 68(1) Judiciary Act, I propose to design a sentence by way of aggregate sentencing under s 53A Crimes (Sentencing Procedure) Act New South Wales. 6. The offender is to be sentenced separately for the offences which were committed during a continuous course of conduct over the extensive period of four and three-quarter years. In addition to his own dishonesty and deception whilst taking advantage of the position of trust available to him as a professionally qualified accountant and registered tax agent, he dragged innocent third parties into a situation of tax audit which would have been an inconvenient, if not, expensive engagement. They would also, assumedly, have experienced stress. As I have said, the objective seriousness of his offending is above the midrange for offending of this type in terms of its deliberate dishonesty. His offending warrants denunciation and both general and specific deterrence. 7. Full time imprisonment is warranted. In my opinion, no alternative sentence adequately meets those principles. In specific response to the offender's opening submission that the Court would consider sentencing by way of ICO, in my opinion, that would not suffice. During today's part heard hearing and confirmed in written submission, the offender withdrew that submission and conceded full time imprisonment in any event. 8. Consideration of comparable sentencing, particularly, in Hughes v R [2011] NSWCCA 226 and R v Massey [2015] QCA 254 in which the Court referred to Kertebani v R [2010] NSW 221; Cao v R [2010] NSWCCA 109 to which the Crown referred; Edwards v R [2013] NSWCCA 54; Sabra [2015] NSWCCA 38; Hawkins [2013] NSWCCA 208; R v Melrose [2016] QCA 202; Noble v R [2018] NSWCCA 253 and applying consistency of sentencing to circumstances of the subject offending and the offender's personal circumstances indicates the following: 1. The offender is to be sentenced on an aggregate basis contemplating principles of totality. The continuous nature of his course of offending requires that sentencing involve significant concurrence: s 19(2)(b) of the Act; 2. He is to be sentenced for the sequence 78 and Item 1 offending as a single course of conduct engaged in over an extensive period involving his use of entities controlled by himself. After taking into account the discount on account of his plea, his having undergone quasi custody during rehabilitation and his having not prevailing experience incarceration, an indicative head sentence of three years and nine months imprisonment for each offence to be served concurrently is appropriate. 3. His sentence for the sequence 79 and 80 offending contemplates a shorter period involving not as many false lodgements as occurred in the sequence 78 and Item 1 offending. Whilst those features would indicate punishment not as severe, on the other hand the offending dragged in innocent third parties making them victims. After taking into account the discount on account of his plea of guilty, allowance for quasi-custody during rehabilitation and no previous incarceration, an indicative sentence of two years and six months imprisonment for each offence to be served concurrently is appropriate. 4. The single non-parole period to be fixed under the aggregate sentencing represents the minimum period for which the offender should be imprisoned. Having considered consistency of Commonwealth sentencing in comparable cases, McMurdo P with whom Philippides JA and Jackson J agreed in R v Massey observed at 28: "When sentencing federal offenders release dates are set to recognise mitigating factors between the half and two-thirds point of the sentence." 1. In Massey, the Queensland Court of Appeal was considering a submission that a sentence was "manifestly excessive" and therefore critiqued the sentence by reference to comparable cases. For present purposes, the principle to be applied is that there is no judicially determined norm or percentage for a non-parole period for Commonwealth offences: Hilli at paras 37 to 38. In Hilli it was held that the correct approach is to consider, as this judgment has done above, all of the matters set out in s 16A(1) and (2) as an inexhaustive list when imposing a sentence of imprisonment: paras 40 and 41. The High Court there said that the necessary deterrence and punitive effects of sentences for serious tax fraud, such as in this case, must be reflected both in the head sentence and also in any provision of parole. 2. The purposes of parole are: the protection of the community, the rehabilitation of the offender, the reintegration of the offender into the community: s 19AKA of the Act. 3. In the event of an aggregate sentence exceeding three years the Court must fix a single non-parole period: s 19AB(1) of the Act. 4. Whereas in Massey, the offender's age and medical condition were weighty considerations mitigating sentence, this first time offender has strong family support and is engaged with colleagues in Narcotics Anonymous who by their letters to the Court are likely to provide him with support. The evidence supports his having displayed a commitment to rehabilitation. He has not breached the conditions of his long term bail. Reoffending would lose for the offender the respect and trust of those around him who presently support him. 5. After allowing for discount on account of an early plea and discount on account of quasi-custody and first-time imprisonment, an aggregate sentence of four years is appropriate. I fix a non-parole period of one year and ten months. orders 1. Mr orders are: 1. You are convicted. 2. I order you make reparation to the Commonwealth by its Australian Taxation Office in the sum of $127,366. 3. I sentence you to imprisonment commencing 3 December 2018 without parole ending 2 October 2020, the balance term of sentence is to end 2 December 2022. 4. The parole order is conditional as follows: 1. you are to comply with all supervision and all reasonable directions of Community Corrective Services; 2. you are to comply with any reasonable direction of Community Corrective Services to treatment and/or counselling for drug and/or alcohol abuse; 3. (c) you are to comply with any reasonable direction for psychological treatment and/or counselling including psychological assessment; and 4. You are to comply with any reasonable direction to a rehabilitation program. ********** 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: 15 February 2019