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R v Agius; R v Castagna (No 14) [2018] NSWSC 1248

sentence — one count of conspiracy to defraud Commonwealth offence contrary to ss 29D and 86(1) of Crimes Act 1914, one count of conspiracy to defraud Commonwealth offence contrary to s 135.4(3) of Commonwealth Criminal Code and one count of conspiring to deal with money or other property which was proceeds of crime, believing it to be proceeds of crime and the value of money or other property was $1 million or more offence contrary to ss 11.5(1) and 400.3(1) of Commonwealth Criminal Code — need for two conspiracy counts due to amendment to relevant statutory provisions which took effect on 24 May 2001 — offences concerned a conspiracy over approximately 11 years between two offenders to conceal one offender’s true assessable income from Commissioner of Taxation using foreign companies and foreign bank accounts controlled by other offender as well as ongoing conspiracy to deal with unpaid tax value of which was $1 million or more — injury, loss or damage — s 16A(2)(e) — objective seriousness — Australian income tax system based on “self-assessment” — testimony from ATO revealed that ATO “rel[ies] on the honesty of the taxpayer to tell us what is their assessable income and allowable deductions” offending therefore involved abuse of trust — offending difficult to detect, onerous to investigate and time-consuming and expensive to prove — conspiracies involved sophisticated deceit, use of foreign bank accounts and secrecy conferred by laws of Vanuatu — offending in conspiracy counts very serious — dealing in proceeds of crime offence incorporates additional criminality because it concerned transfer of proceeds under guise of loans which permitted offender to use funds for further enrichment through property development — offences involved deliberate dishonesty for financial gain to detriment of Australian community — offenders felt entitled to conspire because they considered themselves members of financial elite who were not subject to obligations to which others must conform —tangible loss from offending $2,622,371.56 while intangible loss is loss of confidence in efficacy and integrity of taxation system — general deterrence — s 16A(2)(ja) — general deterrence highly significant in conspiracy matters — important that those who engage in tax fraud appreciate that it is a serious crime for which they may be imprisoned — sentences imposed must be sufficient to deter those who regard payment of tax as voluntary or an obligation which can be defeated by use of deceit — delay — delay relevant to sentencing in various respects — “uncertain suspense” in which a person can be left for an extended period of time can be taken into account — an offender may demonstrate progress towards rehabilitation in intervening period — a sentence for stale crime calls for a measure of flexibility — evidence did not establish any tardiness from AFP or ATO in investigating charges or bringing them to trial — proof of offences required documents many of which could not be obtained despite several attempts and legal proceedings — regardless justice requires measure of understanding and flexibility where there has been a significant delay between time offender becomes aware of risk of prosecution and imposition of a sentence — this is so even where considerable portion of delay was inevitable consequence of complexity of offences committed — sentence imposed on Mr Agius 7 years’ and 6 months imprisonment with 4 year non-parole period joined to a previously imposed sentence — sentence imposed on Dr Castagna 7 years’ imprisonment with 4 year non-parole period
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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