In a Project Wickenby case, the NSW Court of Criminal Appeal has unanimously allowed an appeal by the Commonwealth DPP and increased the sentences that had been imposed on 2 men by Finnane DCJ in the NSW District Court in July 2011 and September 2011.
The Court said each man had pleaded guilty to 2 counts:
- The first count was of conspiracy to defraud the Commonwealth (s 29D and s 86 of the Crimes Act 1914) between 1 July 1997 and 23 May 2001.
- The second count was of conspiracy dishonestly to cause a loss to the Commonwealth (Criminal Code 1995, s 135.4(3)), between 24 May 2001 and 31 July 2004.
Finnane DCJ sentenced each of the men to imprisonment for 2 years, to be served by way of an Intensive Correction Order. The DPP argued that, in all of the circumstances, the length of the sentences was manifestly inadequate.
Broadly, the tax evasion scheme in question involved false claims of deductions as business expenses, done through companies based in Vanuatu. The Court said the amount of tax evaded totalled just over $1.75m. The ATO had issued assessments for tax shortfall, penalties and interest totalling around $5.87m.
The Court of Criminal Appeal considered the orders that the sentences be served by way of Intensive Correction Orders were erroneous. It allowed the DPP’s appeal and quashed the sentences that had been imposed and in lieu thereof:
- on Count 1, sentenced each man to imprisonment for 1 year and 6 months, commencing on 27 February 2012 and expiring on 26 August 2013;
- on Count 2, sentenced each man to imprisonment for 1 year and 6 months, commencing on 27 August 2013 and expiring on 26 February 2015; and
- that a recognizance release order operate after each man had served 18 months in prison. (R v Boughen; R v Cameron [2012] NSWCCA 17, NSW Court of Criminal Appeal, Simpson, Hislop and Latham JJ, 27 February 2012.)
[LTN 40, 29/2]