Henderson, Michael John v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Judge: Crawford CJ,Porter J,Wood J
• Judgment Date: 23 October 2012
• Court: Court of Criminal Appeal
• Docket Number: 64/2012 65/2012
• Date: 23 October 2012

[2012] TASCCA 12

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Crawford CJ, Porter and Wood JJ

64/2012 65/2012

Henderson, Michael John

and

State of Tasmania

Henderson, Michael John

and

R

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Whether total effective sentence of imprisonment for seven years and six months for 80 crimes of dishonesty involving $1,356,766.20 manifestly excessive.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Crawford CJ

23 October 2012

1 The appellant pleaded guilty before Blow J to 80 crimes of dishonesty. On a State indictment there were 24 counts of dishonestly acquiring a financial advantage, contrary to theCriminal Code (Tas), s252A, by which he defrauded a finance company of $468,311 between February and July 1999, and on a Commonwealth indictment there were 56 counts of obtaining a financial advantage by deception, contrary to the Criminal Code Act 1995 (Cth), s134.2, by which he defrauded the Commonwealth of $888,455.20 between September 2005 and May 2006. The total defrauded was $1,356,766.20.

2 On 22 December 2011, for the State crimes he was sentenced to imprisonment for three years six months commencing on 16 September 2009, when his custody commenced. No order for parole was made, for reasons explained by the learned judge. For the Commonwealth crimes he was sentenced to imprisonment for five years six months commencing on 16 September 2011, and a non-parole period of one year nine months was fixed. In combination, the total effective sentence was imprisonment for 7¹/₂years from 16 September 2009, with eligibility for parole under the Crimes Act 1914 (Cth) commencing on 16 June 2013, three years nine months after the imprisonment commenced. In other words, once the appellant has served half of the 71/2years' imprisonment he will become eligible for parole.

3 He filed notices of appeal against both sentences. Each is based on a sole ground that the sentence was manifestly excessive in all the circumstances.

4 The facts upon which he was sentenced were comprehensively stated by the learned judge in his comments when passing sentence. They were as follows:

‘Mr Henderson has pleaded guilty to 80 crimes of dishonesty that resulted in losses of over $1.3 million. He has been prosecuted by both the Tasmanian authorities and the Commonwealth authorities. I have heard the State and Commonwealth cases together, but I will have to impose separate sentences. The State prosecution relates to earlier events than the Commonwealth prosecution, and I will therefore discuss those events first.

Mr Henderson has pleaded guilty to 24 charges of dishonestly acquiring a financial advantage contrary to s252A of theCriminal Code (Tas). He committed these crimes over a period of about five months, between February and July 1999. He systematically defrauded a company named IBM Global Financing Australia Ltd, which I will refer to as “IBMGF”. That company was based in Sydney. It was a member of the International Business Machines (or “IBM”) group. It provided finance for the operators of small businesses wishing to lease computer equipment. Mr Henderson controlled a company named Millennium Hardware (Australia) Pty Ltd. He arranged for his company to become an agent of IBMGF.

On 24 relevant occasions he faxed lease applications to IBMGF. Each application purported to be signed by an individual who was the proprietor of a small business. Some of the individuals had never met Mr Henderson. Some had met him. None of them knew anything about the lease applications. Mr Henderson had obtained copies of the drivers' licences of some of these individuals. He had forged copies of thelicences of others. He faxed photocopies of the actual and forged licences to IBMGF in support of the applications.

All of the 24 applications were successful. When a lease application was successful, it was the practice of IBMGF to transfer the price of the goods to its agent as the supplier of the computer equipment. Accordingly, the company made 24 payments into an account nominated by Mr Henderson. The payments varied in size from $18,833 to $19,945. The total paid was $468,311. It was by obtaining each of those 24 payments that Mr Henderson committed the 24 crimes with which he has been charged under s252A. There were other similar transactions that do not concern me.

In order to delay the detection of his fraudulent conduct, Mr Henderson made a practice of paying at least one monthly instalment to IBMGF in respect of each of these fraudulent transactions. The total amount of the instalments that he paid in relation to them was $20,796.83. The loss to IBMGF was therefore $447,514.17. None of that money has been recovered.

Mr Henderson was charged in late 1999 in relation to IBMGF. There were protracted committal proceedings. He was committed for trial in March 2003. An indictment was filed in September of that year. As a result of a pre-trial conference in November 2004, Mr Henderson's solicitors wrote an open letter to the Director of Public Prosecutions advising that he proposed to plead guilty, and the Crown consented to the proceedings being adjourned to February 2005. In that month Mr Henderson failed to appear. A warrant was issued for his arrest. He had not left Tasmania, or even changed his address, but he was lying low. In August 2009, the police learned that he was living in New South Wales. He was arrested in that State on 16 September 2009, and has been in custody ever since. He was extradited to Tasmania shortly after his arrest.

The crimes to which the Commonwealth charges relate were committed by Mr Henderson after the warrant was issued for his arrest, over a period of about eight months from September 2005 to May 2006 inclusive. Mr Henderson has pleaded guilty to 56 counts of obtaining a financial advantage by deception, contrary to s134.2 of theCriminal Code (Cth). The Commonwealth Government operates a scheme whereby business proprietors engaged in primary industry and related activities can obtain rebates in relation to their purchases of diesel fuel. That scheme is known as the Energy Grant Credits Scheme. Mr Henderson committed the crimes in question by lodging 56 false claim forms with the Australian Taxation Office (“the ATO”) and thereby obtaining payments under that scheme when he was not entitled to any such payments at all. The proceeds of those claims totalled $888,455.20. None of that money has been recovered.

Mr Henderson did not make any of the false claims in his own name. He used the names of three other individuals: his half brother, a man who worked for him in a firewood business, and a friend. He lodged false documents with the ATO registering eight non-existent businesses for the purposes of the scheme. Those documents showed that the three individuals were the proprietors of logging, transport and firewood businesses. At one time anyone wishing to defraud the Commonwealth by lodging false claims for diesel fuel rebates needed to submit forged invoices, but the Commonwealth had streamlined its procedures by 2005, with the result that forged invoices were no longer necessary. Having registered some small businesses, Mr Henderson needed only to submit claim forms setting out false information as to the dates and quantities of fuel purchases. The resulting payments were so large that an audit was undertaken. There was ample evidence that someone had committed a substantial fraud, but it took quite some time for the authorities to amass a considerable body of circumstantial evidence implicating Mr Henderson as the offender.

During the sentencing proceedings before me, a controversy emerged as to why Mr Henderson committed these crimes and what he did with the proceeds of them. Mr Henderson had a friend and business associate named Dimitrios Belias. Mr Belias was murdered in Melbourne on 9 September 1999. Mr Henderson understood that Mr Belias owed very large amounts of money to some Melbourne underworldfigures, was unable to pay, and was first threatened and ultimately killed as a result. Counsel for Mr Henderson told me that, although Mr Henderson was in no way responsible for the incurring of any debts that led to the killing of Mr Belias, he was contacted after the murder; that a demand was made for him to pay the balance of Mr Belias' debts; that he was threatened; and that he paid the debts in full with the proceeds of money that he fraudulently obtained. As a result of discussions between counsel, I will sentence Mr Henderson on the basis of the following undisputed facts:

• • Mr Belias told Mr Henderson of his predicament and his fears, and Mr Henderson decided to help him financially.

• • Mr Henderson made arrangements for his company to become an agent of IBMGF so that he could defraud that company in order to obtain money to pay the debts of Mr Belias.

• • Some money was obtained from IBMGF and used for that purpose, but that money was the subject of other transactions. None of the proceeds of the 24 transactions to which the pleas of guilty relate was used for that purpose. The proceeds of the 24 relevant transactions were used by Mr Henderson for his own purposes.

• • Mr Henderson commenced sending false claim forms to the ATO as a result of demands and threats relating to the payment of the debts of Mr Belias long after the murder.

• • Most of the proceeds of the fraudulent claims to which the Commonwealth charges relate were used to pay the debts of Mr Belias. However a substantial and unquantifiable component of those proceeds was used for Mr Henderson's own purposes.

In relation to the Commonwealth charges, Mr Henderson's pleas of guilty indicate that he concedes that no defence of duress is available to him under s10.2 of theCriminal Code (Cth). For one thing, that defence is only available...