The Qld District Court has removed a sentence previously imposed on a man for non-lodgment of returns after finding there were “extenuating circumstances” allowing the discretion.

The District Court heard the man pleaded guilty to 4 charges against the TAA for failing to lodge income tax returns for the 2006, 2007, 2009, and 2010 financial years. On 5 February 2013, the Magistrate sentenced the man to a fine of $3,300 and also recorded a conviction. In appealing against the sentence, the man argued the Magistrate did not allow him to complete his submissions and did not fully consider a request that no fine or recording of a conviction be imposed in relation to the sentence. Further, the man said that after completion of the sentencing imposing a fine, the Magistrate took further submissions from the Prosecution that if a fine was imposed, then a conviction must be recorded. In doing so, the Magistrate modified the sentence recording a conviction, despite having stated that no conviction would be recorded during the hearing. The man argued the Magistrate could have modified the orders and removed the fine, which would have resulted in no conviction being recorded.

The District Court said there were “extenuating circumstances” and noted, among other things, the man’s personal problems in meeting all his financial obligations (including putting his 2 daughters through university) and that the Commonwealth owed him money rather than he owed it money. It also noted the man’s attempts to get Tax Packs, certificates of earnings, etc, and that all the returns had since been lodged. On balance, the District Court was of the view that s 19B of the Crimes Act 1914 (Cwth) applied to the man’s circumstances.

The Court made the following orders: that the man’s appeal be allowed; that the orders made by the Magistrate on 5 February 2013 be set aside; and that pursuant to s 19B(1)(d) of the Crimes Act, the man be discharged without proceeding to conviction upon giving security by way of recognisance of id=”mce_marker”,000 and on the condition that he be of good behaviour for a period of 18 months.

(Gray v FCT [2014] QDC 30, Qld District Court, Samios DCJ, 7 February 2014.)

[LTN 38, 26/2/14]