This is a case study on recklessly making a misleading or false statement to a taxation officer by a health professional. The case involved dealings with the Australian Health Practitioner Regulation Agency (AHPRA) and ultimately resulted in a sentence of recognisance without conviction.
What is alleged to have occurred?
Our client was a health professional who was charged with several offences of recklessly making a statement to a taxation officer that was false or misleading contrary to S8N of the Taxation Administration Act 1953. They were also charged with incorrectly keeping records with the intention of deceiving or misleading a taxation officer contrary to s8K of the Taxation Administration Act 1953. The allegations related to a number of tax returns that were investigated by the Australian Taxation Office (ATO) over a period of several years.
It must be noted that the client had no criminal history. This was the first time they had ever been charged with criminal offences. The client was devastated by the charges particularly because at the time the initial investigation was carried out by the ATO, they were asked to repay monies owed as a result of the investigation, which the client did straight away believing that this had resolved the issues to the ATO’s satisfaction.
However, the ATO then decided to review the matters and prosecute our client by charging them with criminal offences. Our client was a registered health practitioner and subject to oversight from the AHPRA. The client was required to make a mandatory report of their charges to avoid any further disciplinary action and possible charges. As this was the first time the client had ever been charged with a criminal offence, they were not aware of the extent of their notification obligations.
Pursuant to s130 of the Health Practitioner Regulation National Law, health professionals are required to make mandatory notifications if they are charged with a criminal offence and the maximum penalty is 12 months imprisonment or more. They are also at risk of further criminal charges if they fail to make a mandatory notification.
What happened at court?
Kristina Kothrakis and Sophie Parsons acted as criminal defence lawyers for the client. They worked first on assisting the client to inform AHPRA of the criminal charges and to provide an explanation as to the short delay in making the necessary notification. AHPRA accepted the explanation provided and simply requested to be notified of the court dates and outcome. They then explained the charges and allegations to the client and obtained instructions as to what had occurred. They also provided the client with the options moving forward and, once informed, the client indicated that they wish to plead guilty, emphasising that although they were willing to accept responsibility for some oversights with previous tax returns, they had not intentionally acted dishonestly. Our lawyers then set to work to prepare the client and ensure that they have the best possible defence in court.
The outcome of the case was crucial. The client was a highly educated professional person working as a health professional and a criminal conviction being recorded would be problematic both personally and professionally.
Our lawyers engaged in extensive negotiations with the prosecutor from the ATO to resolve the charges and amend the facts. They carefully reviewed evidence relied upon by the ATO including previous tax returns, notices sent to our client at the relevant time indicating that he was the subject of an investigation, and other materials. Our lawyers also obtained instructions from the client and further information that clarified some of the matters in dispute, including a letter from our client’s previous employer which the ATO relied upon as evidence of dishonesty.
The client was assisted to rely on support from a former employer to clarify some of the statements that were said to be dishonest. This had led to the charge that amounted to an allegation of dishonesty ultimately getting withdrawn by the ATO. This meant that our client only pleaded guilty to two charges of recklessly making a statement to a taxation officer that was false or misleading contrary to s8N of the Taxation Administration Act 1953 with the remaining charges withdrawn. Once the charges and facts were finalised, the matter was ready to proceed at the Melbourne Magistrates’ Court.
In Commonwealth matters, there is only one sentencing option available that does not necessarily involve the recording of a conviction. Section 19B of the Crimes Act (Cth) allows for an offender to be discharged without proceeding to conviction; however there is a very high threshold that needs to be met in order to be eligible. The Court needs to be satisfied that having regard to the character and personal circumstances of the accused, the degree of triviality of the offending and any other extenuating circumstances must be in such a way that it would be inexpedient to impose a punishment other than a nominal punishment. If the court is satisfied of this, then there are various options available to them, including placing the accused person on a bond to be of good behaviour.
In this case, emphasis was placed on the fact that section 8N is not an offence which involves an element of dishonesty. It was submitted that although our client had failed to exercise due care to the task, they did not do so dishonestly, which was a significant consideration. Further, the monetary value of the expenses the client sought to claim was objectively low, the act was unsophisticated offending, the ATO failed to properly inform the client about the reason the claims were deemed unacceptable in their correspondence, and the client promptly paid the significant penalties which were originally imposed by the ATO. It was also submitted that the recording of a conviction, together with the significant penalties the prosecution were seeking, was disproportionate to the gravity of the offending conduct.
What was the result?
We were successful in persuading the Magistrate that a section 19B bond was appropriate. The client was ultimately released without conviction upon entering into a recognisance.
Kristina Kothrakis and Sophie Parsons
Kristina is a Director at Doogue + George with a key focus on outcomes as well as client experience. She has a well-earned reputation for tenacity, strategic thinking, persuasive court advocacy and a client-centred, empathetic approach.
Sophie is a Partner and In-House Counsel at Doogue + George. She is an experienced advocate who appears regularly in Victorian courts and tribunals and assists clients with advice and representation at every stage of proceedings.
View their profiles here.
DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 07/02/2025
