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Shmuel v The King [2023] VSCA 135

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity contrary to s 134.2 of the Commonwealth Criminal Code. Original sentence imposed 3 years of imprisonment with offender to be released after 18 months on entering a recognizance in the sum of $5,000 to be of good behaviour for 3 years.. Offender appealed on the grounds that the sentence was manifestly excessive and that the sentencing judge erred by failing to consider the offender’s prospects of rehabilitation.

Manifest Excess: The sentencing judge was correct to describe offender’s offending as ‘serious’. Offender attempted to obtain a financial advantage of $390,766. They did so as a qualified and experienced accountant and in the face of their company being wound up on the application of the ATO by knowingly providing false information to the ATO 66 times.Their Honour was also correct to describe offender’s moral culpability as ‘high’. Offender’s behaviour was not simply a breach of the duty of honesty reposed in each tax payer, but a breach of trust by an accountant, company director and Tax Agent with access to the digital Tax Agent Portal. Accordingly, the sentencing judge was correct to emphasise principles of general and specific deterrence as well as denunciation. The sentencing judge considered and gave appropriate weight to the mitigating factors offender could call in aid. That the sentencing judge referred to their consideration of offender’s lack of prior convictions other than in the main body of the reasons is not material.

Rehabilitation: There is no doubt that the sentencing judge failed to make express reference to the issue of rehabilitation in the reasons. However, that alone does not make good the offender’s argument that their Honour failed to take account of a mandatory consideration in the sentencing exercise. The judge made reference to the offender’s lack of prior convictions, their age, health and other personal circumstances, their character and professional reputation as an accountant, as well as their lack of contrition and the reasons for it. These are all matters relevant to an assessment of the appellant’s prospects of rehabilitation. The issue of rehabilitation was discussed during the plea hearing. Further, the assessment of rehabilitation prospects in this matter was far from difficult. Despite the seriousness of the offending and lack of contrition, offender’s prospects were positive rather than negative. Even if expressly referred to, that finding would not have required a complicated analysis.

Appeal to leave granted. Appeal dismissed.

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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