THE QUEEN v PHILLIP JOHN GOULD 4 NOVEMBER 2009
COMMENTS ON PASSING SENTENCE BLOW J
Mr Gould has pleaded guilty to 28 charges of obtaining a financial advantage by deception, contrary to section 134.2 of the Criminal Code 1995 (C'th), and to another charge of attempting to commit such a crime. What he did was to dishonestly claim refunds of Goods and Services Tax input credits on 29 GST returns contained in business activity statements that he lodged with the Australian Taxation Office over a period of more than two years between October 2003 and November 2005. In total he dishonestly obtained $165,994.72 from the Commonwealth over that period, and by the crime of attempting to obtain a financial advantage he attempted to obtain a further $6,589 from the Commonwealth.
He pretended to be carrying on four businesses. He registered those businesses for GST purposes, and he submitted returns in which he pretended that there had been substantial capital expenditure which would result in an entitlement to refunds. In fact, he was not carrying on any of those businesses. The capital expenditure had not been made, and the contents of the returns and the statements lodged by him were entirely fictitious. He committed these crimes for the purpose of obtaining gambling money, and for the purpose of living more comfortably than would otherwise have been possible.
Mr Gould is 57 years old. He has a bad criminal record involving many convictions for crimes and offences involving dishonesty.
There are a number of matters that I must take into account in his favour. He has pleaded guilty to these charges. He has co-operated in having this case disposed of sooner than would ordinarily have been the case. He has been in custody in relation to other crimes since 1 September 2008, and is therefore entitled to a somewhat shorter sentence because of what the High Court has called the totality principle.
I have come to the view that I am required to backdate his sentence to commence on 26 October 2009. I am required to do that because he, at the moment, is in custody in relation to sentences imposed under State law. The first of those sentences was one imposed by his Honour Justice Slicer on 11 December 2008. At that time, Mr Gould was serving a sentence, but the sentence imposed by Justice Slicer was not a cumulative sentence and it therefore commenced to run on 11 December. The sentence that Mr Gould was previously serving which was imposed by me on 1 September 2008, has long since finished. Slicer J imposed a sentence of 15 months' imprisonment with an order that Mr Gould be eligible for parole after having served half that sentence, so he was required to serve at least a non-parole period of 7½ months from 11 December 2008.
On 7 January 2009, a magistrate imposed a cumulative sentence of three months' imprisonment, again under State law. Under the Corrections Act 1997, s71(5), the result of that was that Mr Gould was not eligible to be released on parole until he had served 7½ months in respect of the sentence imposed by Slicer J, plus the whole three months of the sentence imposed by the magistrate. The result was that he was not eligible to be released on parole until he had served 10½ months commencing on and including 11 December 2008. That period of 10½ months concluded on 25 October 2008 at midnight. In my view, he was eligible to be released on parole as from 26 October 2009.
The Crimes Act 1914 (C'th), s19(1)(b), applies in the present situation because Mr Gould has not been paroled under State law. He is still in custody in respect of one or more State sentences. I am therefore required to direct that any sentence I impose today is to commence immediately after the end of the non parole period that applies in respect of any State sentences. I think the term "non-parole period" in that provision must refer to the total minimum term period of 10½ months, represented by the non-parole period of 7½ months from Slicer J's sentence, plus the three months of the magistrate's sentence. So, it is on that basis that I have concluded that I am required by the legislation to impose a sentence that takes effect as and from 26 October 2009.
There are more mitigating factors that I am required to take into account. Mr Gould is sorry for having committed these 29 crimes. It is significant, as gambling was one of the major factors that led to him committing them, that he has taken substantial steps to overcome his gambling addiction. I think I should take into account in his favour at least part of the delay that has occurred in him being brought to justice for these crimes, if only because there was a delay between the completion of an Australian Taxation Office audit in February 2006 and the commencement of an Australian Federal Police investigation in relation to these crimes in mid-2007. It is also relevant that he has been separated from his family as a result of them having moved to Queensland before he went into custody. He had to stay in Tasmania pending the bringing of these proceedings to a conclusion. There has been an impact on his family, and his imprisonment on these charges will result in a continuing financial impact on his family. There has also been an emotional impact on his family, particularly on his son.
However, I think that the only appropriate penalty for these crimes is a significant sentence of imprisonment, particularly because of the large amounts involved, the long period over which the offending continued, and the multiplicity of offences. Offences like these cost the Commonwealth a lot of money and are difficult to detect, and it is therefore appropriate to impose a deterrent sentence. There has been no money recovered by the Commonwealth, and it is unlikely that any significant amount ever will be recovered from Mr Gould. The appropriate penalty is a single global sentence of imprisonment.
Phillip John Gould, I convict you on all charges. I sentence you to two years' imprisonment with effect from 26 October 2009. I make a recognizance release order providing for you to be released after serving 16 months of this sentence, upon you entering into a recognizance, without sureties, in the sum of $5,000, requiring you to be of good behaviour for three years after your release from prison.