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R v Hughes [2020] NSWDC 98

sentence — attempted by deception to dishonestly obtain a financial advantage from the Commonwealth offence contrary to ss 11.1(1) and 134.2(1) of Commonwealth Criminal Code — did by deception dishonestly obtain a financial advantage from the Commonwealth offence contrary to s 134.2(1) of the Commonwealth Criminal Code — offending related to $99,551 falsely claimed and $26,611 paid — additional 2 counts of attempted by deception to dishonestly obtain a financial advantage from the Commonwealth offences contrary to s 11.1(1) and 134.2(1) of the Commonwealth Criminal Code taken into account pursuant to s 16BA — nature and circumstances of the offence — s 16A(2)(a) — offending conduct involved substantial planning and dishonest conduct including identity theft of half-brother’s details, setting up of false accounts and execution of false BAS return — attempt fell within upper part of low range of objective seriousness — aggravated by offender being on parole — monies used to support lifestyle which offender could not otherwise afford, as in receipt of carer’s pension — sophisticated involving incorporation of corporate entity by which fraudulent BAS statements were facilitated, fell within mid-range and towards bottom of that mid-range — given level of deception, period of offending, amount of the fraud and falsification to ATO representatives, offending was objectively serious — antecedents — s 16A(2)(m) — offences occurred whilst parole for 4 previous obtaining financial advantage by deception offences and 3 previous counts of attempting to commit such offences — offender’s criminal history does not entitle them to leniency in sentencing process — history includes violence, firearms, dishonesty, and obtaining money by deception offences — offender lost father at age 12 and thereafter subject to physical assault by older brother over 4 year — this phase in childhood likely to have adversely impacted upon development of offender’s personality and attitudes — mental condition — s 16A(2)(m) — sentencing judge took into account psychiatric history —instability and unpredictability in mood and behaviour, anti-depressant medication for depressive symptoms and personality traits predisposed offender to defiant attitude towards authority — offender stopped taking anti-depressant medication at time of offending — whilst offender suffered from mood and anxiety symptoms, not extensive or severe enough for diagnosis of psychiatric condition at time of offences — quite likely depressive and anxiety symptoms contributed to impaired judgement at time of offences — rehabilitation — s 16A(2)(n) — prospects for rehabilitation must be guarded given offender’s disavowal of psychological interventions in the past and demonstrated limited insight into offending — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — 10% utilitarian discount in respect of late plea made in fact of strong Crown case — no demonstration of genuine contrition, remorse or acceptance of responsibility for their actions, lack of insight into offending conduct, tendency to minimise that conduct and blame others for it — general deterrence — s 16A2(j)(a) — deterrence important to protect integrity of the revenue and that courts will impose condign punishment for deliberate and sustained fraud — authorities establish tax fraud on Commonwealth revenue of this kind attracts a full-time custodial sentence in the absence of most exceptional circumstances, none of which are present here — specific deterrence — s 16A(2)(j) — offender must understand continuing criminal conduct will attract more severe penalties — in breach of parole reveals continuing attitude of disobedience to the law which warrants a greater emphasis on considerations of retribution, deterrence and the protection of society — physical condition — s 16A(2)(m) — COVID-19 — weight given to illnesses suffered by offender and weight given to considerations concerning COVID-19 virus must be assessed in light of all circumstances of the case and appropriate balance has to be maintained between criminality of offender and their health considerations — COVID-19 pandemic affects whole population, including those in custody — taken into account social visits to correctional centres have been suspended and implications of social isolation will heighten anxiety for those in custody by comparison to implications of social isolation in the community — not satisfied offender at any greater risk than any other person in custody from contracting COVID-19 virus — no medical evidence of extent of illness suffered put before sentencing judge — sentence — sentence imposed 3 years’ and 8 months imprisonment with a 2 year and 6 month non-parole period — reparation order for payment of $26,611.00 of Commonwealth of Australia
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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