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R v Gould [2020] NSWDC 831

The offender was sentenced following conviction at trial of 1 count of attempting to pervert the course of justice contrary to s 43(1) Crimes Act 1914 (Cth).  

Nature and Circumstances: The offending is objectively very serious. The offending took over place over an extended period. Borgas was sent version of Q&A document and offender coached Borgas via Skype sessions. The offender instructed Borgas not only what to say, but on how to give evidence. A puppet was exactly what Borgas was to the offender. The offender had perfect insight into what they were asking Borgas to do. The offender sought to control the testimony of Borgas by a sustained period of coaching him to give evidence that suited the offender’s interests. The offending was extremely sophisticated. The offender’s motivation for engaging in this conduct was to avoid Taxpayers’ from paying a large tax liability to the ATO. The offender was the ultimate beneficial owner of the companies and personally stood to benefit from avoiding tax.  

Injury, Loss or Damage: Given it was a failed attempt to pervert the course of justice, there is no demonstrable loss or damage resulting. Sentencing judge rejected the submission that the absence of any loss or damage mitigates the objective seriousness of the offending. The very nature of the offence means that justice was achieved, notwithstanding the dishonest attempts by the offender to deceive the Court so as to subvert the process. Offender should not benefit by the fact that their attempt failed.  

General Deterrence: Offender’s attempt to pervert course of justice, if successful, would have affected the whole community because of the implications for the administration of justice and because of the avoidance of payment of tax.  

Character and Antecedents: Offender is person without a criminal record, with a demonstrated habit of contributing profitably to the community. Offender is entitled a finding of prior good character and any leniency which may flow. Sentencing judge declined to find offender suffered personal vulnerabilities or that they were prone to poor decision making and poor boundaries professionally. The evidence establishes that the offender enjoyed great professional success.  

Rehabilitation: Offender does not have insight into offending and denies it. While it is the offender’s right to maintain their innocence, the lack of insight into the offending is a matter which bears upon the prospects of rehabilitation. If offender ever accepts responsibility for offending, the prospects of rehabilitation may be considered good. The offender’s prospects of success or rehabilitation can only be assessed as guarded.  

Extra-Curial Punishment: Media reporting would represent a form, albeit to a minimal degree, of extra-curial punishment. It is difficult to dissect the various proceedings to determine the extent to which they have caused the offender to suffer extra-curial punishment. Offender said that their employees continue to manage their business, and that upon release they will recommence work as a financial advisor.  

Offender was sentenced to 3 years and 4 months’ imprisonment with a 1 year 8 month 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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