SCHMIDT v THE KING (CTH) [2026] SASC 101

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE HILL) MCCRM- 25-038503 Appellant: HERBERT HANS SCHMIDT Counsel: MR J MARCUS - Solicitor: DOCONADE LAWYERS Respondent: THE KING (CTH) Counsel: MS K MCCANN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Hearing Date/s: 25/05/2026 File No/s: SCCRM-26-005183 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SCHMIDT v THE KING (CTH) [2026] SASC 101 Judgment of the Honourable Justice Bochner 1 July 2026 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT TAXES AND DUTIES - ADMINISTRATION OF FEDERAL TAX LEGISLATION - PENALTIES, OFFENCES AND PROSECUTIONS - PARTICULAR PENALTIES AND OFFENCES - FAILURE TO MAKE STATEMENT OR LODGE RETURN OR DOCUMENT - GENERALLY This is an appeal against sentence imposed in the Magistrates Court for three counts of the offence of failing to comply with requirements under taxation law. In the financial years 2020-21, 2021-22 and 2022-23, the appellant failed to submit the annual income tax return of a self-managed superannuation fund (SMSF), maintained by him. The appellant had previously engaged the services a registered accountant to lodge the tax returns of the SMSF. The accountant failed to do so on these three occasions. Subsequently, the appellant pleaded guilty to offences contrary to s 8C(1)(a) of the Taxation Administration Act 1953 (Cth) and was sentenced by a Magistrate to pay a fine of $3,891.00 and a conviction was recorded. The appellant acknowledged that the failure to file the annual income tax returns for a SMSF that he maintained is an offence of absolute liability; nonetheless, he submits that he should have been discharged without conviction or penalty. The appellant argued that the Magistrate erred in applying the test under s 19B of the Crimes Act 1914 (Cth) by failing to take into account that the appellant could not have completed the outstanding tax returns himself, that the reasons for imposing the conviction were inadequate, and that the sentence imposed was manifestly excessive. The respondent contented that the Magistrate gave sufficient reasons in regard of the relevant considerations, and that the appellant had not demonstrated that the sentence was unreasonable or plainly unjust. Held: 1. Appeal dismissed. -- 1 of 18 -- Taxation Administration Act 1953 (Cth) s 8c(1)(a); Income Tax Assessment Act 1936 (Cth) s 162; Crimes Act 1914 (Cth) 19B, referred to. R v UG [2020] ACTCA 8; Hamilton v Federal Commissioner of Taxation [2007] SASC 165, applied. Fleming v The Queen (1998) 197 CLR 250, distinguished. Firth v The Queen [2018] NSWCCA 144; R v UG [2020] ACTCA 8; Playford v Police [2017] SASC 26; Hayes v Weller (1988) 50 SASR 182, discussed. Ambrose v Edmonds-Wilson (1988) 48 SASR 514; Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568; Cobiac v Liddy (1960) 119 CLR 257; Cummins v Duck [2009] ACTSC 20; Perkins v Commissioner of Taxation [2006] NTSC 66; Hamilton v Commissioner of Taxation [2007] SASC 165; Police v Chilton [2014] SASCFC 76; Bowen (a pseudonym) v The King [2025] SASCA 36; Murray v IA [2020] ACTSC 288, considered. -- 2 of 18 -- SCHMIDT v THE KING (CTH) [2026] SASC 101 Magistrates Appeal: Criminal BOCHNER J. 1 This is an appeal by Herbert Hans Schmidt (“the appellant”) against a sentence by a Magistrate on 23 January 2026 following his plea of guilty to three counts of the offence of failing to comply with requirements under taxation law, contrary to s 8C(1)(a) of the Taxation Administration Act 1953 (Cth). The offences arose from the appellant’s failure to submit the annual income tax return of a self-managed superannuation fund (“SMSF”) maintained by the appellant, on three occasions between 2020 and 2023. It was for these three offences the appellant was sentenced to pay a fine of $3,891.00 and a conviction was recorded. Grounds of Appeal 2 On 6 February 2026, the appellant filed a notice of appeal against the sentence imposed by the Magistrate.1 On the date of the hearing, Mr Marcus, counsel for the applicant, sought leave to amend the grounds of appeal to reflect the grounds outlined in the appellant’s written submissions.2 Leave was granted and the appeal proceeded on the following grounds:3 1. Firstly, his Honour erred in applying the test under s 19B by failing to take into account a relevant matter, namely the concession by the prosecution that the appellant could not have completed the outstanding tax returns himself, or in the alternative his Honour’s reasons are inadequate to explain why this factor was discounted. 2. Secondly, his Honour’s reasons were inadequate to understand why his Honour arrived at the conclusion the appellant should receive a conviction, and to understand how this was a product of the application of the correct test. 3. Thirdly, the sentence imposed was in all the circumstances manifestly excessive. Factual Background 3 The factual background of the offending is not in dispute. 4 The appellant was at all relevant times the director, trustee and beneficiary of Ageguild Superannuation Nominees Pty Ltd, a SMSF established in 2007. Prior to the offending, the appellant had engaged the services a registered accountant, Mr Canova to lodge his personal, business and SMSF tax returns, which he had done for the last 10 years. 1 Notice of appeal (filed by the appellant on 6 February 2026, FDN 1). 2 Written Submissions of Appellant (filed by the appellant on 13 May 2026, FDN 7). 3 Ibid, [3]. -- 3 of 18 -- [2026] SASC 101 Bochner J 2 5 Between 2020 and 2023, the SMSF failed to file its income tax returns. Between 2022 and 2024, the Appellant received several phone calls from a representative of the Respondent advising him to file the SMSF tax returns. The Appellant contacted his accountant on each occasion and was advised by Mr Canova that the tax returns would be lodged. 6 On 23 August 2024, pursuant to s 162 of the Income Tax Assessment Act 1936 (Cth), the appellant was issued a notice in writing, requiring him to give the Commissioner of Taxation an income tax return in the approved form (“the notice”). The notice advised the appellant that the SMSF tax returns had not been lodged and required the SMSF to file its tax returns for the following periods: • The financial year from 1 July 2020–30 June 2021; • The financial year from 1 July 2021–30 June 2022; and • The financial year from 1 July 2022–30 June 2023. 7 The notice required that the SMSF file the tax returns by 18 October 2024. None of the tax returns were filed in time. Consequently, on 18 September 2025 an information was laid, and the appellant was charged with a count of the offence contrary to s 8C(1)(a) for each financial year,4 being three counts in total. This is an offence of absolute liability. 8 On 23 January 2026 the appellant appeared before the Magistrates Court and pleaded guilty to each count, and submissions were made by the parties on the sentence. The facts of the offending were explained, and a number of affidavits were filed which outlined the circumstances in which the offences were committed.5 That material was not disputed by the respondent. The Magistrate convicted the appellant of each offence and imposed a fine in the amount of $3,891.00. The Magistrate’s Sentencing Remarks 9 The Magistrate delivered short, ex tempore, reasons for his decision on sentence.6 He noted the defendant’s guilty pleas and provided a brief summary of the circumstances of the offending. He then set out, briefly, the submissions made by the parties on the application of s 19B of the Crimes Act 1914 (Cth) (“the Crimes Act”).7 10 The Magistrate took into account the defendant’s character, age, lack of any previous offending history, and his compliance with the tax laws over many years. 4 Taxation Administration Act 1953 (Cth), s 8C(1)(a). 5 Including the affidavits of: Mr Schmidt sworn on 17 Dec 2025 (FDN 11); the appellant’s bookkeeper affirmed on 17 Dec 2025 (FDN 10); the appellant’s accountant affirmed on 20 Jan 2026 (FDN 13); and Thien Khoi Tran sworn on 21 January 2026 (FDN 12) on file MCCRM-25-038503. 6 Ex Tempore Remarks on Penalty of Magistrate Hill delivered 23 January 2026 (MCCRM-25-038503), 50-51. 7 Ibid, [3]–[4]. -- 4 of 18 -- [2026] SASC 101 Bochner J 3 He found that the defendant is a man of good character.8 The Magistrate then considered whether the offences were trivial. While he was not prepared to find that they were trivial, he found that they were at the lower end of the scale in terms of seriousness. In reaching this conclusion, he said:9 His counsel in his helpful submissions, Mr Marcus, submits that I might find the offence was trivial, or at least at the lower end, taking account of the fact that there was little Mr Schmidt could have done to avoid the commission of the offence in circumstances where he properly relied on his longstanding tax agent. Balanced against this is the fact that, at the end of the day, Mr Schmidt’s tax responsibilities are his. On the application of s 19B, the Magistrate concluded:10 The question is then whether, in light of that assessment, it is inexpedient to inflict any punishment or any punishment other than a nominal punishment, or that it is expedient to release the offence on probation. Taking those questions into consideration, I consider that it is not an appropriate matter to proceed without recording a conviction, in light of all of the circumstances I have referred to. I do pause to mention there has been a submission made about a present ongoing application for citizenship on behalf of Mr Schmidt, although it was conceded by his counsel that the results of this matter were not likely to significantly affect that application, so I have not given that any significant weight. The legislative background to this appeal 11 The case of Ambrose v Edmonds-Wilson11 makes it clear that offences such as those the subject of this appeal are offences of absolute liability. Justice Bollen said:12 We can easily understand the object of the Taxation Administration Act. More pointedly the object of s 8c is to compel compliance with things lawfully required of taxpayers pursuant to a taxation law. It is a section intended to promote and facilitate the assessment and collection of the right amount of income tax from taxpayers. The Commissioner must have quite extensive powers to enable him and his officers so to assess and collect. It is, of course, a very unattractive idea that any person can be convicted without his or her having any intention to break the relevant law or even to take a chance about breaking it. But sometimes it must happen. Road traffic offences and offences under the legislation to provide for the sale of unadulterated food are examples. The interest of the community demands that in some class of statutory offence absolute liability should attach to people who are subjectively innocent. That is necessary for the operation of the legislation which in turn is seen by the legislature to be for the good of the general populace. The robust mind initially fights against penalties without guilty intention. But in the end it must be resigned to some areas, perhaps correctly called social issues, in which such penalties must regret fully obtain. 12 It is clear from this that the appellant in this matter was right to plead guilty to the offences with which he had been charged, despite his accountant’s taking responsibility for the failure to lodge the returns. The question then arises, on the 8 Ibid, [6]. 9 Ibid, [7]. 10 Ibid, [8]. 11 (1988) 48 SASR 514. 12 Ibid, 519. -- 5 of 18 -- [2026] SASC 101 Bochner J 4 plea of guilty to an offence which attracts absolute liability, what considerations are relevant on the question of sentence. 13 Section 19B of the Crimes Act provides (insofar as it is relevant to this matter): 19B Discharge of offenders without proceeding to conviction (1) Where: (a) a person is charged before a court with a federal offence or federal offences; and (b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to: (i) the character, antecedents, age, health or mental condition of the person; (ii) the extent (if any) to which the offence is of a trivial nature; or (iii) the extent (if any) to which the offence was committed under extenuating circumstances; that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation; the court may, by order: (c) dismiss the charge or charges in respect of which the court is so satisfied; or (d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order; (ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay): (A) on or before a date specified in the order; or (B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order; and (iii) that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which -- 6 of 18 -- [2026] SASC 101 Bochner J 5 conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed. 14 The operation of this section was examined by the New South Wales Court of Appeal in the case of Commissioner of Taxation v Baffsky.13 In that case, the respondent had pleaded guilty to two charges of failing to lodge an income tax return. He was convicted and fined. He appealed the conviction and the sentence on the basis that s 19B should have been invoked. Chief Justice Spigelman noted that s 19B required a two stage test, the first stage being to identify factors which fall into the description of those in s 19B(1)(b)(i)–(iii), and the second stage being to determine whether it was inexpedient to inflict any punishment (or anything more than a nominal punishment), having regard to those factors. In considering the discretion bestowed on the Court in this regard, he referred to the case of Cobiac v Liddy,14 and said:15 The breadth of the discretion is confirmed in the judgment of Windeyer J where his Honour said, at 276: “… the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the State statute permits. The Act speaks of the court exercising the power it confers ‘having regard to’ the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.” He went on to say:16 As Windeyer J said, in the context of concluding that the then equivalent of s19B in South Australia applied to the offence under consideration in that case (Cobiac v Liddy (supra) at 269): “The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. …[A] capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice. (Cobiac v Lidy at 269)” See also R v Ingrassia (supra) at 449 per Gleeson CJ. 13 (2001) 122 A Crim R 568. 14 (1960) 119 CLR 257. 15 (2001) 122 A Crim R 568, [22]. 16 Ibid, [75]–[77]. -- 7 of 18 -- [2026] SASC 101 Bochner J 6 This general policy served by s19B is as pertinent to revenue offences as it is to other offences. The statute formulates a test of whether punishment is “inexpedient.” I do not see any warrant for replacing the statutory formulation with terminology as broad as “exceptional circumstances” in a particular sphere of regulation. This conclusion does not, however, cast any doubt on the importance of giving consideration to issues of seriousness, prevalence, difficulties of detection etc to which I will refer under the heading of “General Deterrence” below. He confirmed that general deterrence was a relevant consideration when determining whether it was inexpedient to impose a punishment.17 15 Baffsky has been applied in a number of decisions relating to s 19B of the Crimes Act. For example, in the case of Cummins v Duck,18 the Supreme Court of the Australian Capital Territory found that, in light of evidence about the respondent’s medical and psychological condition, it was appropriate to invoke s 19B so as to determine that it was inexpedient to impose any punishment. 16 Perkins v Commissioner of Taxation19 is another decision which demonstrates the exercise of the discretion afforded by s 19B to determine that it was expedient not to impose a penalty. In reaching this conclusion, Martin CJ said:20 The first step in considering the operation of s 19B is to determine whether I am satisfied of the existence of a factor or factors specified in s 19B(1)(b). If I am so satisfied I must then determine whether it is inexpedient to inflict any punishment or to inflict any punishment than a nominal punishment, or whether it is expedient to release the offender on probation: Commissioner of Taxation v Baffsky (2001) 192 ALR 92. The respondent does not contest the existence of factors identified in s 19B(1)(b). The appellant is a person of prior good character. She is a 38 year old Aboriginal woman who has never previously offended against the law. In addition, the appellant’s antecedents and the extent to which the offence was committed under extenuating circumstances are relevant at this first stage. The appellant had no prior experience in business. This was her first attempt at operating a business. At an early time she found herself without a partner and sponsored financial services were withdrawn. The appellant then secured the services of a bookkeeper in an endeavour to meet with her obligations. She worked very long hours seven days a week and in difficult and stressful circumstances. It was in this context that the appellant relied entirely upon her bookkeeper and was, until shortly before the summons was issued, unaware of her defaults. The factors to which I have referred are also relevant at the second stage of the process when determining the question of “expediency” or “inexpediency.” In addition, as discussed in Baffsky, I am required to have regard to the matters identified in s 16A of the Crimes Act (Cth) including the appellant’s plea of guilty and the prospect of rehabilitation. In this process I must also have regard to issues such as general deterrence and punishment. 17 Ibid, [93]. 18 [2009] ACTSC 20. 19 [2006] NTSC 66. 20 Ibid, [20]–[24]. -- 8 of 18 -- [2026] SASC 101 Bochner J 7 For the reasons I have identified, in my opinion the appellant’s offending was not the run- of-the-mill case and I was satisfied that having regard to all the matters I have identified it was expedient to release the appellant on probation. 17 By contrast, Hamilton v Commissioner of Taxation21 is an example of a case where this Court refused to exercise the discretion conferred by s 19B. Justice White said:22 Ordinarily, s 19B will be invoked only in those cases in which the circumstances of the offending are atypical, or when there are circumstances of an unusual kind which are personal to the offender. It is to be remembered that the question for this Court presently is not whether s 19B(1) could appropriately be invoked in relation to the appellant. Instead, the issue of whether the magistrate erred in not invoking s 19B(1) in this case. It is the magistrate’s discretion. This court will interfere with its exercise only if satisfied that the magistrate has erred in sentencing principle, or if he has failed to have regard to a relevant consideration, or has had regard to an irrelevant consideration or if, despite the inability to identify any specific error, it can be said that the decision to record a conviction in this case was not reasonably open. (footnote omitted) 18 This was also a case where the appellant’s accountant had failed to lodge tax returns for the appellant. As to the application of s 19B in such circumstances, White J said:23 In any event, I do not regard the fact that the delay may be due to conduct or omission of an accountant as very mitigatory. In this respect, I agree with the statement of Olsson J in Talisco Pty Ltd v Sarney, to the effect that, in the ordinary case of a tax agent being dilatory and letting its client down, it would largely tend to defeat the efficacy of the legislation to absolve the taxpayer who is primarily responsible for the lodgement of the return. It is true that, in the factual circumstances of Talisco, Olsson J was satisfied that s 19B should have been invoked, but the circumstances of this case are very different from those considered in Talisco. The magistrate accepted, as do I, that the appellant is a person of good character. He is now 58 years old and has no prior convictions. However, it was open to the magistrate to conclude that this consideration did not make it expedient for a conviction not to be recorded. A similar view was taken, in analogous circumstances, by Jacobs J in Kelton v Uren and by Debelle J in Commissioner for Taxation v Doudle. This is an offence in which the offender will commonly be a first offender and a person of good character. It is also an offence in which considerations of general deterrence are important. As was pointed out by Jacobs J in Kelton v Uren, and by Debelle J in Commissioner of Taxation v Doudle, the intent of the offence could commonly be frustrated if convictions were not recorded in the case of first offenders. (footnotes omitted) 21 [2007] SASC 165. 22 Ibid, [9]–[10]. 23 Ibid, [21]–[23]. -- 9 of 18 -- [2026] SASC 101 Bochner J 8 19 It can be seen, therefore, that the individual circumstances of the appellant and the circumstances leading to the commission of the offences are critical to determining whether the discretion provided for in s 19B should be exercised, however, deterrence remains an important factor to take into consideration. I consider, with respect, that the warning issued by White J, as to the interference by an appeal court with the discretion exercised by a magistrate must be carefully heeded. Whether the fact that the appellant’s accountant has taken responsibility for the commission of the offences is sufficient to require the exercise of the discretion will be a matter very much dependent on the individual circumstances of the case, and one where reasonable minds may differ. The appellant’s submissions 20 The appellant acknowledges that the failure to file the annual income tax returns for a SMSF that he maintained is an offence of absolute liability; nonetheless, he submits that he should have been discharged without conviction or penalty. This is against the background facts that: • over the years that he had been in business, he had filed more than 200 returns with the Tax Office so that the three offences to which he pleaded guilty should be seen as an aberration; • he had used the services of the same accountant for more than 10 years, who had always complied with his obligations, save for the three returns which were the subject of the offences; • the returns to which the offences relate can only be filed by an accountant, and not by a layperson; • the accountant has taken full responsibility for the failure to file the returns; • the Commonwealth was not deprived of any revenue through the failure to file the returns, and there was no financial or other benefit to the appellant from non-compliance; • during the hearing before the Magistrate, the respondent conceded that the appellant could not have completed the returns himself. 21 The appellant made the following submissions with respect to each of the grounds of appeal. Grounds 1 and 2 - failure to take into consideration the fact that the appellant could not have completed the outstanding returns himself and the failure to provide adequate reasons 22 The appellant says that a critical aspect of this matter is that he could not complete the returns himself, both because of their complexity but, more importantly, because under the relevant legislation, returns relating to SMSFs must be completed by an accountant. Despite noting that the appellant could have -- 10 of 18 -- [2026] SASC 101 Bochner J 9 instructed another accountant to complete the returns, the Magistrate does not otherwise address this factor or its significance in his offending. The suggestion that the appellant could have changed accountants appears to be informed by hindsight, and ignores the fact that the accountant had lodged many personal and business returns for the appellant over a period of more than ten years. These circumstances are not, in fact, mentioned by the Magistrate at all, which must lead to the conclusion that they were not taken into account. Alternatively, if they were taken into account, the sentencing remarks are insufficient to explain how the Magistrate did so. Further, the Magistrate did not appear to consider that the Commonwealth was not deprived of revenue, or that the appellant did not gain anything (either financially or otherwise personally). 23 As to the adequacy of the Magistrate’s reasons in other respects, the appellant says that the reasons for which the Magistrate determined that it was not appropriate to proceed without recording a conviction are not apparent. Despite questioning the appellant’s counsel about the prejudice that he would suffer if a conviction was imposed, he did not refer to this at all in his sentencing remarks; thus, it is unknown what weight, if any, the Magistrate placed on that aspect when reaching his conclusion. In any event, the decision in Perkins suggests that the Magistrate erred in reaching the decision that he did. Ground 3 – the sentence is manifestly excessive 24 The appellant says that consideration of his personal circumstances must lead to the conclusion that the sentence is manifestly excessive. He is a 70-year-old man, with no previous criminal history, who was let down by his trusted accountant. He is not morally culpable in any way, and no harm was suffered by anyone as a result of his offences. He could not have, personally, filed the returns, both because of their complexity, and because the statutory regime precluded it. He says that, like in Perkins, the Court should conclude that the circumstances are not “run of the mill.” 25 The appellant says that the conviction and sentence will serve no purpose with respect to either personal or general deterrence. As a result, the sentence is outside the range of permissible outcomes in a matter such as this. In these circumstances, the discretion conferred by s 19B of the Crimes Act should have been utilised. 26 The appellant says that the appeal should be allowed, the conviction and sentence should be quashed and he should be resentenced to either no or a nominal penalty with no conviction recorded. The submissions of the respondent Ground 1 – failure to take into account a relevant consideration 27 The respondent notes that, during the hearing before the Magistrate, the prosecutor conceded that the appellant could not have filed the returns himself. The respondent further notes that, in his sentencing remarks, the Magistrate -- 11 of 18 -- [2026] SASC 101 Bochner J 10 observed that the failure to file the returns was the accountant’s, but that this did not absolve the appellant of responsibility as the offence was one of absolute liability. 28 With respect to this ground, the respondent referred to a number of well- known authorities which address the adequacy of reasons given by magistrates.24 In particular, it referred to the case of Police v Chilton,25 where the Full Court of this Court said:26 The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy Magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King. 29 On the basis of these authorities, the respondent submits that it cannot be inferred that the Magistrate did not take these matters into consideration, simply because he did not refer to them explicitly. To the contrary, the respondent says that it is clear from the remarks as a whole that the Magistrate took all of the circumstances of the matter into consideration. The Magistrate referred to the fact that “there was little Mr Schmidt could have done to avoid the commission of the offence”, which is clear acknowledgement of the circumstances surrounding the commission of the offences, including the fact that the appellant could not have filed the returns himself, and that his accountant had taken responsibility for the failure to file them. When read as a whole, it is clear that the Magistrate took into account all of the relevant circumstances put to him by the parties. Ground 2 - Failure to provide adequate reasons 30 In submitting that there is no basis for the appellant’s complaint that the Magistrate failed to provide adequate reasons, the respondent relies on the decision of Bowen (a pseudonym) v The King,27 where the Court said:28 The principles regarding a complaint of inadequate reasons are well known and need not be addressed at length. In summary, there exists a judicial obligation to give reasons, both to allow appellate courts to discharge their statutory function on appeal, and to facilitate public accountability of judicial decision making. A trial judge’s reasons must be ‘sufficiently comprehensive’ to reveal how the judge arrived at the conclusions which determined the trial. As Lovell JA said in NBM v The Queen: “[A]n appellate court should not have to guess or speculate as to what a trial judge may or may not have meant, particularly on an important issue. The reasons must be more than a bare statement of the principles of law applied and the findings of fact made; there must be exposed a reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. Reasons must identify the relevant 24 Such as Firth v The Queen [2018] NSWCCA 144, R v UG [2020] ACTCA 8 and Playford v Police [2017] SASC 26. 25 [2014] SASCFC 76. 26 Ibid, [19]. 27 [2025] SASCA 36. 28 Ibid, [30]–[32]. -- 12 of 18 -- [2026] SASC 101 Bochner J 11 principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.” The content of a trial judge’s obligation to give reasons will depend on the circumstances of each case and the particular issues in dispute. The judge need not address every matter of detail, particularly where those matters are peripheral to the key issues at trial. As the High Court explained in DL v The Queen: “Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion.” At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.” A complaint of inadequate reasoning is a separate, and conceptually distinct, complaint. It is a complaint that the trial judge’s reasoning, although apparent, does not support a finding of guilt beyond reasonable doubt. As Kourakis CJ observed in R v Sexton: “It is important to observe the distinction between a complaint of inadequate reasons and a complaint that a judge’s reasons do not support the verdict returned. The former is a complaint that it is not possible to discern how the judge rationally arrived at the determinative conclusions, and the latter is a complaint, in an appeal against conviction, that the reasons and intermediate findings of facts do not support a finding of guilt beyond reasonable doubt. There is an understandable tendency to slip from a complaint that the reasons are inadequate to a complaint that the Judge’s reasoning, although apparent, does not rationally support their ultimate finding of fact and therefore the verdict.” 31 The respondent says that the principles enunciated in Bowen must be considered against the background of the cases setting out principles relating to ex tempore judgments such as Playford v Police29 and Police v Chilton.30 While the Magistrate’s reasons are brief, they demonstrate that he understood the context of and background to the offending and the particular circumstances of the appellant. It is clear that, while he accepted that the appellant was reliant on his accountant, he did not consider that this was sufficient to allow him to exercise the discretion afforded by s 19B. The appellant’s submissions in this regard amount to no more than a submission that he does not agree with the decision reached by the Magistrate. 32 The fact that the Magistrate’s questions about any prejudice to the appellant if a conviction was imposed were not mentioned in his reasons is not indicative of error. The respondent says that, generally, discussions during the course of 29 [2017] SASC 26. 30 [2014] SASCFC 76. -- 13 of 18 -- [2026] SASC 101 Bochner J 12 submissions will not assist in determining if the Magistrate fell into error. In making this submission, the respondent relied on Murray v IA,31 where Mossop J said: 32 As I have previously indicated, care must be taken not to scrutinise the extemporaneous reasons given by a magistrate with an eye keenly attuned to the detection of error: LM v Childrens Court of the ACT [2014] ACTSC 26 at [42]; Cowie v Gungahlin Veterinary Services Pty Ltd [2016] ACTSC 311 at [101]; Williams v Connor [2019] ACTSC 184 at [43]. Further, exchanges during the course of submissions would generally not be taken as necessarily reflecting the concluded views of a magistrate unless the substance of what was said is incorporated into the reasons ultimately given. It is part of the proper function of the making of submissions that there be an exchange of ideas and testing of propositions by a judicial officer that may involve statements being made, as the officer thinks through and tests the submissions being made, that do not reflect the ultimate position reached. Therefore, great caution must be applied to any submission by a judicial officer on appeal, which is reliant upon views stated during the course of argument, which may not be reflected in the reasons ultimately given. Ground 3 – the sentence is manifestly excessive 33 The respondent says that, for the appellant to succeed on this ground, he must demonstrate that the sentence was unreasonable or plainly unjust. The fact that the appeal court may have imposed a less severe sentence is not irrelevant. 34 The respondent submits that, even taking into account the personal circumstances of the appellant, the sentence imposed was within the range of sentences reasonably open to the Magistrate. While the Magistrate accepted that the appellant was reliant on his accountant, it was open to him to find that this did not excuse him sufficiently so as to warrant the exercise of the discretion conferred by s 19B. This is consistent with the decision in Hayes v Weller,33 where Jacobs J found that the exercise of the discretion in s 19B would be a “rare” occurrence,34 and Perry J described it as reserved for “exceptional” cases,35 and not ones where the consequences of the penalty that would otherwise be imposed were not “atypical.”36 35 The respondent also relied on the case of Hamilton v Federal Commissioner of Taxation,37 where White J found that the fact that the failure to file tax returns lay at the door of the accountant was not “very mitigatory.” 36 The respondent submits that general deterrence must be kept in mind when sentencing for this type of offence. The appellant’s good character and long 31 [2020] ACTSC 288. 32 Ibid, [34]. 33 (1988) 50 SASR 182. 34 Ibid, 183. 35 Ibid, 187. 36 Ibid, 188. 37 [2007] SASC 165, [21]. -- 14 of 18 -- [2026] SASC 101 Bochner J 13 history of compliance with his tax obligations is not sufficient to outweigh the importance of general deterrence from failure to comply with tax obligations. 37 The respondent says that, having regard to the maximum penalty available to the Magistrate, the fine imposed was well within the range of appropriate sentences that could have been imposed. Consideration Grounds 1 and 2 - failure to take into consideration the fact that the appellant could not have completed the outstanding returns himself and the failure to provide adequate reasons 38 In R v UG,38 the Court of Appeal of the Australian Capital Territory said:39 Neither the Sentencing Act nor the general law requires a sentencing judge to give lengthy reasons. The delivery of ponderous reasons that rehearse every conceivable consideration should be avoided as it is inimical to the prompt sentencing of offenders in a manner that is clearly communicated to the community and victim. We agree with the following observations of the Court of Appeal in Chin-Charles v The Queen [2019] EWCA Crim 1140, albeit that the observations concern sentencing within a different statutory framework (at [7]–[8]): “There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided. … The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of the appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that.” There was no error in the way in which the sentencing judge expressed his reasons for sentence. The fact that there was no reference to some matters and only brief reference to others does not, of itself, permit an inference that his Honour failed to take into account all the evidence that was relevant to an assessment of the objective seriousness of the offending conduct. 39 This can be contrasted with the decision of the High Court in Fleming v The Queen,40 where the Court said:41 38 [2020] ACTCA 8. 39 Ibid, [63]–[64]. 40 (1998) 197 CLR 250. 41 Ibid, [30]. -- 15 of 18 -- [2026] SASC 101 Bochner J 14 Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded. 40 While these two statements appear to be at odds, I do not consider that this is the case. In Fleming, the Court was considering the application of s 33 of the Criminal Procedure Act 1986 (NSW), which places specific obligations on judges of the Supreme and District Court of New South Wales when hearing a criminal trial in the absence of a jury. It has no application to a case where a Magistrate in South Australia delivers ex tempore sentencing remarks. In any event, even in the particular situation prescribed by the Criminal Procedure Act, the Court states that the judgment must show “expressly or by implication” that the relevant principle was applied (emphasis added). Thus, even if Fleming applied to the matter at hand, it would not lead to a conclusion that the Magistrate failed to take into account relevant factors when it is clear from the decision as a whole, that they were taken into account, albeit not expressly referred to. 41 When the Magistrate’s remarks are read as a whole, it becomes, in my view, abundantly clear that he took all relevant matters into consideration. He set out in broad terms the nature of the offences, noted that affidavits had been filed on behalf of the applicant which explained the circumstances of the offending and said that he has had regard to the contents of those affidavits. I have no reason to doubt that this is the case. 42 The Magistrate then provided more detail about the appellant’s business activities and then said:42 In respect of these offences, his tax accountant who he had engaged for a period of more than a decade, since I think it was 2013, to lodge his various tax documents including in relation to his self-managed superfund, failed to lodge documents in respect of the three subject years. The tax agent, in his affidavit, puts the failure down to work-load pressures following changes in the self-managed superfund reporting requirements. It is implicit in these remarks that the Magistrate accepted that the failure rested with the accountant, rather than with the appellant personally. He then says:43 His counsel in his helpful submissions, Mr Marcus, submits that I might find the offence was trivial, or at least at the lower end, taking account of the fact that there was little Mr Schmidt could have done to avoid the commission of the offence in circumstances where he properly relied on his longstanding tax agent. Balanced against this is the fact 42 Ex Tempore Remarks on Penalty of Magistrate Hill delivered 23 January 2026 (MCCRM-25-038503), 50-51. 43 Ibid, [7]. -- 16 of 18 -- [2026] SASC 101 Bochner J 15 that, at the end of the day, Mr Schmidt’s tax responsibilities are his. And that the offences occurred over a long enough period of time for him to have made some additional enquiries of his accountant, and perhaps engaged an alternative accountant. I do not find that the offence is trivial but I am prepared to find that it is one certainly at the lower end of the scale. These words indicate that, while he took into account the fact that the appellant could not have filed his returns himself, he nonetheless formed the view that the ultimate responsibility for the returns rested with the appellant. Thus, his assessment of the triviality of the offences differed to that of Mr Marcus. 43 I also reject the appellant’s submission that the Magistrate failed to take into consideration the fact that the accountant had, over the years, lodged many personal and business returns on behalf of the appellant. The passages from his sentencing remarks that I have set out make it clear that he had considered the affidavits relied upon by the appellant, including one from the accountant; it is also implicit in those passages that, over the ten year period that the accountant had been retained, the only documents that he had failed to lodge on behalf of the appellant were those which were the subject of these offences. 44 I do not consider that the Magistrate’s sentencing remarks can be criticised for their brevity. He described the offences and the role of the accountant, he described the nature of the offences as being offences of absolute liability and he then considered the operation of s 19B of the Crimes Act. He identified the submission of the prosecution relating to the need for general deterrence.44 He then identified and considered the matters set out in s 19B(1)(b), in determining whether it was inexpedient to inflict any punishment.45 While he did not do so explicitly, it is apparent that he considered that the fact that the offences were ones of absolute liability, and the need for general deterrence outweighed the matters relied on by the appellant. 45 I further reject the appellant’s criticism of the Magistrate’s remarks that the appellant could have instructed another accountant. It is clear that these offences occurred over a number of years and that the appellant began inquiring of his accountant about the failure to file the returns in 2021.46 Given the length of time that the appellant was on notice that there was a problem with his returns, the remark made by the Magistrate does not appear unrealistic or informed by hindsight. Ground 3 – the sentence was manifestly excessive 46 In considering this ground, I am guided by the words of White J in Hamilton, which I have quoted at [17] hereof. I consider that it was open to the Magistrate to find that it was not appropriate to exercise the discretion conferred by s 19B. It is clear that he accepted that the appellant was a person of good character who was 44 Ibid, [3]. 45 Ibid, [6]–[7]. 46 Affidavit of Thien Khoi Tran sworn 21 January 2026, (FDN 12) on file MCCRM-25-038503, TK-1. -- 17 of 18 -- [2026] SASC 101 Bochner J 16 let down by his accountant. It is also clear that he did not consider that this, without more, was sufficient to make it expedient not to record a conviction. The fact that judicial officers have so found in other cases, with different circumstances, does not take the sentence imposed by the Magistrate outside the range of sentences it was open to the Magistrate to impose. 47 The appeal will be dismissed. -- 18 of 18 --