THE KING v JACE PETER SCHICK 11 FEBRUARY 2025
COMMENTS ON PASSING SENTENCE PORTER AJ
Jace Schick, the defendant, appears for sentence in this Court having pleaded guilty in the lower court to one charge of obtaining a financial advantage by deception contrary to s 134.2(1) of the Commonwealth Criminal Code. In essence, the admitted facts that are on 3 April 2022 and on 8 April 2022 respectively he lodged with the Australian Taxation Office (ATO) five and then two business activity statements. The first lodgement was for the five reporting periods commencing November 2021 and ending March 2022, and the second for the months of July 2022 and August 2022. The relevant business activity statements contained representations of the defendant that he had paid certain amounts in GST on purchases and collected lesser amounts in GST on sales. He declared those representations were true and correct. The result was the payment to him of the difference between what he had claimed he had paid in GST on purchases and what he had collected. As a result of the false representations in the seven business activity statements, the defendant was paid the sum of $102,679 to which he was not entitled. By way of background, the GST, as a broad base consumption tax, is administered by the Commissioner of Taxation through the ATO. GST applies where an entity supplies goods or services in the course of carrying on an enterprise. For there to be such taxable supplies, among other things, an entity must be registered with the ATO for GST. Entities must register if their current or projected annual GST turnover meets a certain threshold, although anyone carrying on an enterprise may register. An entity is not entitled to register if it is not carrying on an enterprise. Registered entities must lodge a business activity statement for each tax period (known as a BAS) which might be monthly or quarterly depending on turnover. The entity must report the GST collected on taxable supplies and GST paid on acquisitions. If the former exceeds the later the ATO refunds the entity with a difference via an electronic funds transfer into a nominated bank account.
On 3 February 2015 the defendant re-activated an ABN in his name for the main business activity of “Site Preparation Services”. On 30 March 2022, he completed an online ATO registration form to register his ABN for GST purposes and backdated the start date of the registration to 1 July 2021. However, between 4 October 2021 and 4 March 2022 he was serving a term of imprisonment. The defendant was required to make a GST report to the ATO on a monthly basis. On 31 March 2022 the defendant applied to update his GST activity statement situation so that it was noted as “for action”. On 3 April 2022 the date of the first offending, he updated his ATO profile and nominated a particular bank account as his payment destination. The account was in his name, and he was the sole proprietor. On the same day he lodged four business activity statements for the periods July to October 2021 inclusive in each of which there was claim of no GST collected from sales, and no GST paid on any purchasers. The defendant was arrested and formerly interviewed on 5 April 2023. He said he started a gardening business and registered the ABN on 3 February 2015. In relation to the events of offending he said that he was using drugs heavily, associating himself with people who were “doing scams” or organising “rorts”. He indicated that he was not functioning at all well because of the drugs. He said that he did not know what an activity statement is or what or BAS means. He said that he lost his phone and his bankcards, and did not have access to his ATO, Centrelink accounts or MyGov accounts. He could not log in to his bank account “because it had been changed.” He claimed to be illiterate in terms of dealing with paperwork, digital or otherwise, and was not able to do his tax returns but used an accountant. Importantly, he said that in exchange for $5,000 cash he gave all of his personal details to another person including his bank details. He called the ATO and then gave his phone to this other person He said that he was shown something on his phone to do “through the ATO” and had to return $1,000. Precisely what he was attempting to convey to police officers is not clear but the inference is that he was told how to submit business activity statements with false details so as to obtain payments to his account, and that he in fact had not received any of the money that was paid by the ATO. He denied receiving any financial advantage other than the $4,000. He admitted that his business ended before November 2021.
The defendant is now 35 years old. He has a recorded history of offending here and in the State of Victoria. In this State, the offending of any note starts in 2021 and mainly involves drugs, driving matters and some violence. Prominently, on 10 September 2021 on charges of aggravated burglary, assault and a summary assault he was sentenced in this Court to 15 months imprisonment wholly suspended on conditions. On 4 October 2021 he was sentenced to three months imprisonment for driving and drug offences. The record in Victoria starts in April 2023. Drug offending is prominent but there is some low level of dishonesty. The last entry is for 25 July 2023 when he was fined for possession of methamphetamine. Of course, the offending with which I am dealing occurred in Victoria but when the defendant was still subject to the suspended sentence imposed in this State. I have a report from Rebecca Fakhri, psychologist , dated 1 May 2024 and a home detention assessment report dated 31 January 2025. The defendant was born and lived in Victoria as a child his parents separating when he was young. He seems to have had a very difficult childhood with his mother addicted to illicit drugs; it seems heroin in particular. He was removed from her care when he was two and lived with his father and step-father. His father was a violent man exacerbated by heavy alcohol consumption. When 14, he started to use illicit substances and when 15 left home after living with his mother for about three months. He became somewhat nomadic at times living with friends and friends’ parents. At the age of 18 he started methamphetamine use and for the next seven years was heavily addicted. When he was 19 he joined the Bandidos Motor Cycle Club where, it is said, he was exposed to a significant level of violence. He was able to stop using drugs when he came to Tasmania when he was 25 or so, with his then partner. They were in a significant relationship to 2020. There are two children of that relationship aged 4 and 8. He maintains a good relationship with his ex-partner and has the children in his care twice a week. He had employment but relapsed into drug use. When he was released from prison in 2021 he went back to Victoria and took up with pro-criminal associates from his previous time there. It is that association which gave rise to this offending. I am satisfied that his drug use at this time was heavy, involving methylamphetamine and benzodiazepines. It seems he returned to Tasmania about 12 months or so ago and now lives here with his mother and sister. He has been largely abstinent from drugs and has had employment since October last year, very recently moving to a construction equipment hire and landscaping firm. He had a relapse for about a week eight months ago which he attributed to the breakdown of another intimate relationship but told Community Corrections he would like to engage in relapse prevention strategies. He also told Community Corrections he had changed significantly in more recent times with his priority being to remain drug free and to be family oriented. I have a lengthy character reference from the mother of his former long-term partner; that is the mother of his children. She notes that in 2020 when the couple separated, she watched the defendant very quickly destroy himself as a direct result of drug use. She says that since he has been sober again and back in Tasmania “it has been easy to welcome him again to our lives and family”. She reports him doing well to rebuild his relationship with his children. She attests to his hard-working nature and notes him living with his maternal family while trying to restore stability and healthy habits in his life.
As to the offending, it seems that he returned to Victoria at the request of an associate there, being one from his previous days. In return for drugs and some money to enable him to fund his habit, the defendant did what he was asked in relation to lodging the business activity statements. It is put that although the money obtained from the Commonwealth went to his bank account, he received very little of it, if much at all. The Crown’s position is that it is not able to contradict that assertion. As it is not inherently unlikely, and is consistent with reports of the influence of his associates and the extent of his drug addiction, there is no reason to reject it. In Ms Fakhri’s opinion, the defendant has a range of mental health impairments. Detailed testing is set out in her report. Primarily, the defendant has complex post-traumatic stress disorder, ADHD, traits of borderline personality disorder with a history of severe drug related problems, and various substance abuse disorders but in early remission. His disorders of complex PTSD, ADHD, borderline personality disorder and substance abuse disorders have a number of common symptoms. The combined effect is one of difficulty in controlling behaviours, with intrinsic impulsivity and emotional dyscontrol, as well as episodes of depression anxiety and self-damaging behaviours. The ability to exercise appropriate judgment and make calm and rational choices is also adversely affected. Risk taking behaviour occurs. Ms Fakhri’s report refers to the defendant’s decision to involve himself in this fraudulent scheme as being likely due to financial desperation and excitement of the prospect of having income to fund his substance abuse, lack of awareness due to his substance use, the influence of his friend and a lack of vigilance. In general, Ms Fakhri’s unchallenged view is that his mental state at the time was severe and suggests a reduction of moral culpability. I am satisfied of that proposition. The defendant remains with significant mental health issues. She notes imprisonment would likely weigh more heavily on him than someone without his conditions and his access to appropriate treatment would be comprised due to prison conditions but while accepted, I do not attach any great weight to these considerations. I do accept that regular psychological interventions including appropriate medication are needed.
As a case of taxation fraud this is a serious matter. As a result of the defendant’s actions, the Commonwealth was defrauded of the sum of about $102,000. It is made more serious because it occurs in the context of self-assessment and self-reporting in relation to taxation obligations, and the ATO relies on the honesty of people in completing and submitting the business activity statements. It is a system based on trust, open to abuse with that abuse being difficult to detect. The whole of the community suffers. General deterrence and condemnation are significant sentencing considerations. However, this is an unusual case. The facts remain that he was the one who, as a matter of choice, completed the forms online and lodged them by that means. But when speaking of choice, one must bear in mind the comments of Ms Fakhri that I have referred to. It is true that in strict terms he received the money, but he relinquished control of the bank account into which the money was paid. I note that although seven reporting periods were involved, there were two instances of lodgements only a few days apart. I proceed on the basis that the defendant whilst regularly and significantly affected by illicit substances was induced by a friend to effectively cede control of his account, and encouraged to complete the documentation for exchange for a small amount of money as well as drugs. Essentially his motive was one of gain to fund his addiction. Ordinarily, intoxication by drugs and addiction are not mitigatory factors. However, there is an exception where drug use and consequent addiction can be attributed to events in the person’s past. That arises in this case as the defendant had a dysfunctional upbringing and developmental stage, being exposed to violence and drugs. Additionally, since coming back to Tasmania he has not come to the notice of authorities, has obtained full-time employment and has regular access to his children. I have a reference from the defendant’s current employer who describes him as an extremely hard worker who is a loyal and reliable person who he was very pleased to be able to employ. The crime was committed nearly four years ago. The defendant was interviewed in April 2023 but not charged until January 2024. In the meantime, he has made very significant steps in rehabilitating himself with positive indications of a more settled life. Community Corrections assess him as suitable for home detention and community service. He is assessed as being medium risk and as having medium needs.
I have reviewed the six appellate cases from other jurisdictions referred to by Crown counsel, and I have looked at some 20 cases of this crime dealt with in this Court since 2003. I take into account the relevant matters set out in s 16A of the Crimes Act. I have already noted the nature and circumstances of the offending. The defendant’s personal circumstances and mental health at the time, and now, are such that permit a degree of leniency. The plea of guilty was entered on 31 May on the defendant’s very first appearance. Of its own that entitles the defendant to a not insignificant discount. This case justifies a fair degree of individualisation and I have come to the view that in lieu of a term of imprisonment, at least some of which would have had to be served, a home detention order coupled with an order for community service is an appropriate course to take. Home detention is imprisonment, but it is obviously in a less corrosive environment. It does have punitive aspects but at the same time allows for rehabilitation.
Mr Schick, I have set out the facts, your personal circumstances and what I see to be the relevant considerations. I stress that these sorts of crimes are serious ones given the general breach of trust involved and the impact on the community. In your case, I am prepared to take a course which avoids you immediately serving any time in prison. That may eventuate if you breach the orders I am about to make. You are convicted of the crime. Subject to your consent, I propose to make a home detention order. I also propose to make a community corrections order with conditions as to community service and mental health care. I will outline those orders. The period I direct to be the operational period of the home detention order is 12 months. The statutory core conditions of that order are contained in s 42AD(1) of the Sentencing Act. They will include electronic monitoring under paragraph (g), and accordingly s 42AD(1)(h) and (5) apply. All conditions will be set out in writing for you. I specify the home detention premises as [address]. As a condition of the order, you must attend Community Corrections at 75 Liverpool St, Hobart by 10am tomorrow for induction. I make further special conditions that apply to the operational period of the order. They are:
- Unless previously approved by a probation officer, you must remain at the home detention premises except as follows:
- Between 6 am and 6 pm on weekdays for the sole purposes of travelling to and from your place of employment and carrying out that employment, and for collecting your children from their home, school or day care, taking them to your home, and returning them to their home, school or daycare as required or arranged by the children’s mother, Maia Newbolt.
- Between 8 am and 6 pm on weekends for the sole purpose of collecting your children from their home, taking them to your home, taking them on outings while they are in your care, and returning them as required or arranged by the children’s mother.
- Between 4 pm and 6 pm on any day except Sunday for the sole purpose of travelling to and from Anytime Fitness, Bligh Street Rosny and undertaking exercise.
- You must submit to the supervision of a probation officer as required by that officer.
- You must not consume alcohol and must, when directed to do so by a police officer, probation officer or prescribed officer, submit to a breath test, urine test, or other test, for the presence of alcohol;
4 You must not:
(a) take any controlled drugs or substances within the meaning of the Misuse of Drugs Act 2001;
(b) take any medication containing an opiate, benzodiazepine, bupropion or pseudoephedrine without such medication having been prescribed or recommended in writing by a pharmacist, and you must on request provide written evidence of such prescription or recommendation;
- You must, when directed to do so by a police officer, probation officer or prescribed officer, submit to a breath test, urine test, or other test, for the presence of such drugs or medication;
6 You must maintain in operating condition an active mobile phone service, provide the details of that to a probation officer or prescribed officer, and be always accessible for phone contact.
The community correction order will be for a period of 18 months and contain conditions that you satisfactorily perform community service for a period of 140 hours, and that you submit to such medical, psychological or psychiatric assessment or treatment as directed by a probation officer. Reporting as required by the Sentencing Act for the purposes of that order will be the same reporting for home detention induction; that is by 10am tomorrow morning. [The defendant consented to the making of the order.] I make the home detention order and the community correction order in those terms. I make a reparation order in favour of the Commonwealth in the sum of $102,679.