Jail sentence for GST fraud reduced because of error in accumulating sentences

A businessman who was sentenced to jail for a total period of 7 years, with a non-parole period of 4 years and 3 months in relation to 2 counts of deceptively and dishonestly obtaining $714,000 in false GST rebates, has been successful before the NSW Court of Criminal Appeal in arguing that the sentence was excessive. The businessman was engaged in a timber importing business, and created 17 bogus companies to claim GST rebates on false creditable acquisitions. However, he successfully argued that the sentences were excessive in terms of the way in which the sentencing judge accumulated the sentences for each count of deception etc without giving proper effect to the principal of "totality of sentencing" which required a greater degree of concurrency in the sentences.

As a result, the NSW Court of Criminal Appeal unanimously agreed that the total sentence should be reduced to a period of 6 years, with a non-parole period of 3 years and 9 months. Specifically, it did this by way of re-ordering that (a) the sentence in respect of the first count was to commence 6 months after the commencement of the sentence in respect of the second count, (b) the commencement and expiry dates of the term of imprisonment of 5 years and 6 months imposed in respect of the first count consequently be changed in order to allow for the (above) 6 months adjustment, and (c) the aggregate non-parole period in respect of the sentences imposed in respect of the second count and the new sentence to be imposed by the Court of Appeal in respect of first count be re-determined accordingly.

However, the businessman was unsuccessful in arguing that the sentences were excessive on the basis of the sentencing judge's failure to take account his motives for committing the offence - namely, to obtain funds to keep his ailing business afloat, as opposed to sheer greed. The Court of Appeal agreed with the Crown that "it is no answer to the commission of a criminal offence that an offender was in financial difficulties and hoped to use the proceeds of crime to trade out of those circumstances" and that this motive carried little weight as a mitigating factor. As a result, the Court of Appeal found that there was no error in the fact that the sentencing judge did not distinguish the businessman's motives from a case of personal greed.

Finally, the Court of Appeal agreed to hear the businessman's appeal despite it being lodged out of time essentially because the extent of the accumulation of the sentences was sufficiently excessive to the require the intervention of the Court.