Commonwealth Director of Public Prosecutions

Mark WHITTAKER - Failing to lodge income tax returns

General Prosecutions

On 8 September 2017, Judge Morzone QC of the District Court at Cairns dismissed Mark Whittaker’s appeal, confirming that he had breached an earlier sentence imposed in relation to his failure to lodge income tax returns.

Whittaker was originally sentenced on 3 April 2014, after Magistrate Priestly of the Magistrates Court at Cairns found him guilty of failing to lodge income tax returns for the financial years 2002, 2003, 2004, 2005, 2007, 2008, 2009 and 2010. Whittaker also ignored a final notice issued by the Australian Taxation Office on 15 June 2012 to lodge the returns by 10 August 2012.

Whittaker was sentenced by Magistrate Priestly to 6 months imprisonment, released immediately upon a recognizance with a condition that he lodge the outstanding tax returns. Whittaker unsuccessfully appealed this conviction in the District Court at Cairns. His application for leave to appeal to the Queensland Court of Appeal was dismissed on the basis that none of his proposed grounds of appeal were viable. Whittaker’s application for special leave to appeal to the High Court was also dismissed.

Whittaker failed to lodge the income tax returns as ordered by Magistrate Priestly and the CDPP commenced breach proceedings against him. Following a hearing in April 2017, Magistrate Brassington of the Magistrates Court at Cairns found that the breach was proven.  After the conclusion of the hearing but prior to the Magistrate handing down her decision, Whittaker lodged all of the outstanding returns.

As a result of the breach, Magistrate Brassington ordered that the original recognizance imposed be revoked and re-sentenced Whittaker to 3 months imprisonment for each offence, to be served by way of an intensive corrections order. Whittaker appealed against the finding that the breach had been proven, arguing that he was never required to lodge a tax return as he was not a tax payer.

In dismissing the appeal in September 2017, Judge Morzone DCJ QC said Whittaker’s grounds of appeal were “misconceived and doomed to fail”. His Honour also remarked that his “contentions and arguments [were] devoid of merit.” Whittaker failed to demonstrate any meritorious grounds for the District Court to interfere with the decision of Magistrate Brassington. Her Honour’s decision was confirmed and the appeal was dismissed. Whittaker has not lodged a further appeal.