The Supreme Court of Western Australia has sentenced Gregory John Dunn to 7 years’ imprisonment (with a 4-year non-parole period) for his role in a $2.6m tax conspiracy involving a false interest deduction scheme.
Mr Dunn was found guilty on 8 November 2013 of conspiring with another person with the intention of dishonestly causing a loss to a third person when that third person was a Commonwealth entity – contrary to s 135.4(3) of the Criminal Code Act 1995.
- The Court noted that Mr Dunn was one of 4 persons tried together over the alleged conspiracy.
- Those charged were Dunn, Peter Mervyn Bartlett, Ronald George Sayers and Deborah Jeanne Grace (nee Cammiade).
- The charges related to an alleged conspiracy between August 2002 and June 2004 with an accountant (Trevor Neil Thomson) who was charged with the same offence but pleaded guilty separately.
- Following a 10-week joint trial, the jury found Dunn guilty.
- Deborah Jeanne Grace was found not guilty and she was accordingly acquitted.
- The jury was not able to agree upon a verdict in relation to either of Messrs Bartlett or Sayers who have been remanded on bail for retrial.
- The Court stressed that nothing in its sentencing reasons for Mr Dunn should be taken as any inference or conclusion in relation to Messrs Bartlett or Sayers.
The Court said the actual offence contrary to s 135.4(3) of the Criminal Code emerged from the agreement and implementation of a “False Interest Scheme” (FIS). This had in turn stemmed from an “Appointor Arrangement” which Mr Dunn had sought to implement for Messrs Bartlett and Sayers to address concerns about the levels of tax payable upon the ultimate distribution of profits from their investment in mining resources company, Barminco Ltd.
In this respect, the Court noted that it was never alleged that the Appointor scheme itself was illegal, fraudulent or dishonest. Rather, the actual offence emerged from the agreement and implementation of the FIS. Although the charges arose from a Project Wickenby investigation, the Court ruled that the matter did not involve an allegation of off-shore tax evasion or minimisation by Mr Dunn (or by Messrs Sayers and Bartlett).
While s 135.4(3) of the Criminal Code carries a maximum penalty of 10 years’ imprisonment, the Court sentenced Mr Dunn to 7 years’ jail (with a non-parole period of 4 years) after taking into account all of the circumstances. The Court found that Mr Dunn had not shown any contrition or provided any significant co-operation during the investigation. However, the Court took into account that he had assisted Victorian police in providing evidence against 2 Thai nationals (while he was held in a Thai prison awaiting extradition) in relation to the homicide of an Australian man.
The Court held that the FIS would have created false deductions of $7,190,282, which would have resulted in $2,557,391 of tax being avoided, had it not been detected. The Court also observed that no tax due to the Commonwealth had been lost by reason of the FIS. In this respect, the Court noted that the Commissioner had negotiated a settlement of $51.24m concerning the tax liabilities of Messrs Bartlett and Sayers (and related entities).
(R v Dunn [No 9] [2014] WASC 61, Supreme Court of Western Australia, Heenan J, 28 February 2014.)
[LTN 41, 3/3/14]