Federal Court of Australia

Tax Practitioners Board v Dabalos (formerly Van Stroe) (No 3) [2025] FCA 223

ORDERS

THE COURT NOTES THAT:

1.    On 3 May 2022 the Court ordered that the respondent be permanently restrained from providing tax agent services (as defined in the Tax Agent Services Act 2009 (Cth)) for a fee or other reward, whilst not a registered tax agent within the meaning of the Act (Injunction Order). The Injunction Order remains in effect.

THE COURT ORDERS THAT:

1.    The respondent is guilty of contempt of court by breach of the Injunction Order on the 233 separate occasions between 5 July 2022 and 14 July 2023 specified in Appendix A to the first statement of charge dated 18 June 2024.

2.    The respondent is guilty of contempt of court by breach of the Injunction Order on the 132 separate occasions between 1 July 2024 and 17 October 2024 specified in Appendix A to the second statement of charge dated 20 November 2024.

3.    For each of the 233 contempts the subject of the first statement of charge, the respondent be imprisoned for a period of four months to be served concurrently (four months term), commencing on 25 March 2025.

4.    For each of the 132 contempts the subject of the second statement of charge, the respondent be imprisoned for a period of eight months to be served concurrently (eight months term), such eight months term to commence immediately upon expiry of the four months term referred to in order 3.

5.    The four months term and the eight months term are to be served consecutively, so that the total term of imprisonment is 12 months.

6.    After the respondent has served six months of the 12 months period referred to in order 5 she will be released from prison and the balance will be suspended from execution, subject to the condition that upon the Court determining that there has been any further breach of the Injunction Order within a three year period of her release, the respondent will be imprisoned to serve the balance of the 12 months period now imposed.

7.    The respondent surrender herself to the Australian Federal Police at 9.30 am on Tuesday, 25 March 2025 at the Registry of the Federal Court of Australia, located on level 6, Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue, Perth WA 6000.

8.    Upon surrender, the Australian Federal Police is directed to take the respondent to a correctional institution under the control of the Western Australian Minister for Corrective Services.

9.    A warrant for the respondent's imprisonment referred to in orders 3 and 4 be issued and be provided to the Commissioner, Corrective Services WA with a copy of these Orders.

10.    The warrant not be executed until after 9.30 am on 25 March 2025.

11.    If at any time the Court determines there has been a further breach in the circumstances set out in order 6, a further warrant will issue to the Australian Federal Police on terms to be determined by the Court at that time to take the respondent into custody to serve the six months' balance of the 12 months sentence.

12.    The respondent pay the applicant's costs of the interlocutory applications dated 18 June 2024 and 20 November 2024 on an indemnity basis to be agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The respondent, now known as Ms Jessa Dabalos, was permanently restrained by order of this Court from providing tax agent services for fee whilst not a registered tax agent. In contempt of the order, Ms Dabalos provided such services on some 365 identified occasions. Ms Dabalos admits the contempts, and it now falls to me to sentence her.

2    I have determined that a period of imprisonment is appropriate in this case.

The previous findings of civil liability and breach

3    These reasons are related to findings in earlier proceedings in this Court brought by the Tax Practitioners Board against Ms Dabalos.

4    The Board commenced proceedings against Ms Dabalos on 12 August 2021. Shortly after, McKerracher J made an interim injunction that pending determination of liability, Ms Dabalos be restrained from preparing and lodging income tax returns for taxpayers, being the provision of a tax agent service, for a fee or other reward, whilst not a registered tax agent within the meaning of the Tax Agent Services Act 2009 (Cth) (TAS Act).

5    On 3 May 2022, I made a declaration to the effect that on 531 separate occasions between 1 July 2020 and 15 August 2021, Ms Dabalos contravened s 50-5(1) of the TAS Act, by preparing and lodging income tax returns for taxpayers, being the provision of a tax agent service, for a fee or other reward, whilst not a registered tax agent: Tax Practitioners Board v Van Stroe [2022] FCA 482 (Van Stroe (No 1)). I also granted a permanent injunction under s 70-5(1) of the TAS Act restraining Ms Dabalos from so acting.

6    Ms Dabalos was served with the papers in relation to the liability hearing and was informed of the hearing, but chose not to participate: Van Stroe (No 1) at [21]-[42].

7    I was satisfied that the Board was entitled to default judgment in relation to the pleaded contraventions: Van Stroe (No 1) at [51]-[53]. Having considered the evidence and principles, I made the declarations of contravention as sought by the Board. I was also satisfied that a permanent injunction should be granted.

8    The terms of the orders made on 3 May 2022 were clear. Leaving aside the costs order, they were as follows:

TO: JESSA VAN STROE (ALSO KNOWN AS JESSA LAYOLA)

TAKE NOTICE THAT, PURSUANT TO ORDER 41.06 OF THE FEDERAL COURT RULES 2011 (CTH):

You are liable to imprisonment, sequestration of property or other punishment for contempt if you:

(a)    refuse or neglect to do the things that this order requires you to do; or

(b)    do the things that this order requires you to abstain from doing, or you otherwise disobey this order.

THE COURT DECLARES THAT:

1.    Upon admissions which the respondent is taken to have made consequent upon defaults under the Federal Court Rules 2011 (Cth), on each occasion specified in Appendix A to these orders, the respondent contravened s 50-5(1) of the Tax Agent Services Act 2009 (Cth) (TAS Act) by preparing and lodging income tax returns for taxpayers, being the provision of a tax agent service, for a fee or other reward, whilst not a registered tax agent within the meaning of the TAS Act.

THE COURT ORDERS THAT:

2.    Pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), counsel be permitted to deliver oral submissions at the hearing by way of internet connection.

3.    Pursuant to s 70-5(1) of the TAS Act, the respondent be permanently restrained from providing tax agent services (as defined in the TAS Act) for a fee or other reward, whilst not a registered tax agent within the meaning of the TAS Act.

4.    The matter be listed for hearing on a date to be fixed for the purposes of determining the quantum of any pecuniary penalties to be imposed upon the respondent in respect of her declared contraventions of the TAS Act.

9    Ms Dabalos was personally served with a copy of these orders on 5 May 2022.

10    The penalty hearing proceeded on 31 August 2022. Ms Dabalos was notified of the date of the penalty hearing, but did not appear and did not seek to file any evidence or submissions.

11    On 6 December 2023 I published reasons and made orders concerning penalty: Tax Practitioners Board v Van Stroe (No 2) [2023] FCA 1533.

12    I summarised the key circumstances of the offending as follows:

[6]    From at least 2017, the Board received a number of referrals about the conduct of Ms Van Stroe in relation to providing tax agent services for a fee, despite not being a registered tax agent.

[7]    On 8 March 2018 the Board issued a letter to Ms Van Stroe (then known as Ms Layola) informing her that the Board was concerned with her conduct as an unregistered tax agent. In the letter the Board notified her of the civil penalty provisions under s 50-5 of the TAS Act and that the Board would not hesitate to apply to the Court for the imposition of civil penalties if it received information in the future that she was continuing to provide tax agent services for a fee or other reward.

[8]    A schedule to the claim relied upon for the purpose of the first hearing set out particulars of each of 531 alleged contraventions of the TAS Act by Ms Van Stroe. It also provided details of each taxpayer who received services from Ms Van Stroe, the date and amount of payment to her, and the date the taxpayer's income tax return was lodged with the Australian Taxation Office (ATO).

[9]    A number of taxpayers provided affidavit evidence as to their dealings with Ms Van Stroe. I accept the Board's submission that those taxpayer affidavits evince a pattern of behaviour indicative of a deliberate attempt to engage in a profit-making scheme in circumstances where Ms Van Stroe was operating outside the regulatory framework for a number of years. Her usual practice was to meet with a taxpayer who had heard of her services through word of mouth and came to meet with her at a specified address. Ms Van Stroe would access their MyGov accounts with them, and then complete details for their tax return. She did not take steps to confirm that information included in the tax returns was supported or substantiated by reliable documentary evidence. She generally charged $180 for her services. The affidavits provide examples where false income tax deductions were not brought to the attention of the relevant taxpayer. Further, the evidence indicates that at least seven of the deponents of taxpayer affidavits were subject to an audit by the ATO, with an administrative penalty being imposed on six of those taxpayers.

[10]    The 531 contraventions the subject of the declaration all occurred after the Board sent the letter of 8 March 2018 to Ms Van Stroe. They occurred during the period 1 July 2020 to 16 August 2021.

[11]    The Board's investigation reveal that Ms Van Stroe earned some $99,590 from taxpayers in relation to the conduct.

13    I imposed a penalty by way of a fine of $230,000. At the time I observed that a fine of such level, which outweighed the benefit received from the conduct, should provide some form of general deterrence: Van Stroe (No 2) at [46]-[49]. I also observed that the permanent injunction made 3 May 2022 was to stay in place. I am satisfied that Ms Dabalos was served with the 6 December 2023 orders on 12 December 2023.

Ms Dabalos contravened the permanent injunction

14    It is to be recalled that the permanent injunction was made on 3 May 2022. Within little more than two months Ms Dabalos breached the terms of the injunction.

15    In summary, following an investigation (described more fully below), the Board ascertained that on 233 occasions between 5 July 2022 and 14 July 2023 Ms Dabalos prepared and lodged income tax returns for taxpayers and did so for a fee, despite not being a registered tax agent.

16    On 18 June 2024 the Board filed a first statement of charge initiating these contempt proceedings. The Court papers were served on Ms Dabalos on 25 June 2024.

17    The Board then ascertained by continuing investigations that on 132 further occasions between 1 July 2024 and 17 October 2024 Ms Dabalos prepared and lodged income tax returns for taxpayers and did so for a fee, despite not being a registered tax agent.

18    So, Ms Dabalos continued to breach the permanent injunction on a further 132 occasions from 1 July 2024, despite being on notice that contempt proceedings against her had been commenced.

19    The 132 further acts of contempt are the subject of a second statement of charge filed by the Board initiating contempt proceedings.

20    The two charges, progressed by way of separate interlocutory applications, were programmed and first listed for hearing before me on 29 January 2025.

21    Ms Dabalos made contact with the Court prior to the hearing and attended on the day. I was concerned, having regard to the seriousness of the offences, that Ms Dabalos did not appear to have received any legal advice and was unrepresented. Accordingly, in those circumstances I adjourned the hearing of the applications to 5 March 2025 to enable Ms Dabalos to seek legal advice.

22    Shortly prior to the adjourned hearing I received through chambers an email from Ms Dabalos in which she said that she had spoken to lawyers (who she identified) but that she was not in a position to pay them the sum on account which they had sought. In the email Ms Dabalos said that she wished to plead guilty at the hearing and made several inquiries relevant to the sentencing process. My chambers replied suggesting relevantly that she might approach Legal Aid for assistance.

23    On the scheduled date of 5 March 2025 Ms Dabalos appeared before me. She was unrepresented. On hearing from Ms Dabalos that Legal Aid had been unable to assist her, I told her I was prepared to issue a certificate referring her for pro bono assistance from a barrister, and to further adjourn the hearing for that purpose. Ms Dabalos declined that offer. She expressly asked that the hearing proceed. I should add that it was clear that one of the matters that most concerned Ms Dabalos was that if she were imprisoned, she would not see her children. It was apparent that Ms Dabalos was aware of the risk of imprisonment and its consequences for her children. Furthermore, I note that the solicitors for the Board provided Ms Dabalos with some material published by the Department of Justice Corrective Services in relation to access between parents who are in custody in Western Australian corrective facilities and their children.

24    In all of the circumstances I was satisfied that the Court had taken reasonable steps to facilitate legal representation, that Ms Dabalos was aware of the significance of the potential outcome and that she had been afforded every reasonable opportunity to put on evidence or otherwise make submissions. It was therefore appropriate to proceed with the hearing.

25    Accordingly, I proceeded to have the charges read to Ms Dabalos and she formally admitted all of the contempts the subject of the first and second statements of charge.

The Board's evidence as to the first statement of charge

26    Although Ms Dabalos has admitted the charges against her, it is necessary to describe the circumstances of the conduct.

27    The Board relied on a number of affidavits that set out the nature and results of its investigations. In particular, evidence was provided by Mr Philip Ee, who described his position as an Investigations Officer with the Board. The Board also relied on affidavits provided by a sample of six taxpayers who had dealings with Ms Dabalos.

28    Mr Ee explained that he commenced inquiries resulting in the commencement of a formal investigation under subdivision 60-E of the TAS Act on 23 October 2023 into the conduct of Ms Dabalos, following a referral from the Australian Taxation Office. He initially focused on the income tax assessment filings of certain taxpayers after the date of the injunction. These taxpayers referred to assistance they had received from Ms Dabalos in filing their tax returns, and her general instruction to pay a fee for those services to the account of Mr Pastrulet Dabalos, who is Ms Dabalos's husband.

29    Mr Ee's investigation included an analysis of bank statements of Mr Dabalos which he was able to procure for the period between 31 May 2021 and 30 June 2023. Those bank statements evidenced deposits generally in the sum of $180, and paid with descriptions such as 'tax', 'payment', 'lodgement' or 'accountant' that suggested the payments were made for the services provided by Ms Dabalos. Most transactions occurred in the months of July and August, immediately after the end of the financial year, and Mr Ee matched the deposits to corresponding tax returns made by a taxpayer on or about the date of the deposit into Mr Dabalos's account.

30    Mr Ee also analysed bank statements of Ms Dabalos that he was able to procure for the period between 2 October 2021 and 18 March 2024. They evidenced deposits from Mr Dabalos's bank account into Ms Dabalos's bank account, many of which were made contemporaneously with the deposits he had received from taxpayers. The deposits to Ms Dabalos's accounts including descriptions such as 'pay', 'allowance' and 'bill'. There was also evidence of direct deposits to Ms Dabalos's accounts from a small number of taxpayers.

31    Mr Ee compiled the results of his investigations into a table that identifies the date of the deposit, the bank statement description, the amount paid, the name of the taxpayer and the date of their income tax return lodgement. The table forms the basis of the first statement of charge. Mr Ee also produced by his affidavit the first pages of taxpayer returns which confirmed the matching exercise he had undertaken.

32    The evidence of the various taxpayers was that they engaged Ms Dabalos to prepare and lodge income tax returns on their behalf in 2022 and 2023. The taxpayers were referred to Ms Dabalos by friends or relatives and were not aware she was not a registered tax agent. The taxpayers would transact with Ms Dabalos via text, email, or Facebook Messenger in which Ms Dabalos would request their MyGov login details to prepare the lodgement and then instruct that payment of $180 be made into her or Mr Dabalos's bank account.

33    The Board submitted and I accept that the evidence indicated a consistent pattern of behaviour. It is highly improbable that the receipt of fees by Ms Dabalos from persons who had filed tax returns on or shortly after the day of payment to her or Mr Dabalos's bank accounts was coincidental. The evidence of the various taxpayers corroborates this conclusion.

34    In the circumstances, I am satisfied beyond reasonable doubt that Ms Dabalos committed the contempts the subject of the first statement of charge.

The Board's evidence as to the second statement of charge

35    On 25 July 2024 Mr Ee commenced another formal investigation under subdivision 60-E of the TAS Act into the conduct of Ms Dabalos after being notified on behalf of the Board that Ms Dabalos had been personally served with the first statement of charge and interlocutory application relating to the contempts.

36    Mr Ee gave evidence that the second investigation was undertaken by way of a similar analysis of bank statements and matching task to that already described. Mr Ee reviewed bank statements of Mr and Ms Dabalos for the periods 1 July 2024 to 31 July 2024 and 1 August 2024 to 23 October 2024.

37    And, similarly, Mr Ee compiled the results of his investigations into a table that identifies the date of the deposit, the bank statement description, the amount paid, the name of the taxpayer and the date of their income tax return lodgement. The further table forms the basis of the second statement of charge. Mr Ee also produced by his affidavit the first pages of taxpayer returns which confirmed the matching exercise he had undertaken.

38    Mr Ee also spoke to another taxpayer who confirmed that he engaged Ms Dabalos in July 2024. The taxpayer provided affidavit evidence that he was referred to Ms Dabalos via a friend and transacted with Ms Dabalos over Facebook Messenger. He provided his MyGov login details and transferred $400 into the bank account of Mr Dabalos for lodgement services provided by Ms Dabalos to both him and his friend.

39    The Board again submitted and I accept that the evidence relating to the second statement of charge indicated a consistent pattern of behaviour. Similarly, it is highly improbable that the receipt of fees by Ms Dabalos from persons who had filed tax returns on or shortly after the day of payment to her or Mr Dabalos's bank accounts was coincidental. The evidence of the relevant taxpayer corroborates this conclusion.

40    In the circumstances I am satisfied beyond reasonable doubt that Ms Dabalos committed the contempts the subject of the second statement of charge.

Nature of contempt proceedings

41    Under s 31 of the Federal Court of Australia Act 1976 (Cth), this Court has the same power to punish for contempt as that possessed by the High Court for contempt of that Court. Part 42 of the Federal Court Rules 2011 (Cth) establishes two procedures for contempt in the face or in the hearing of the Court (Division 42.1) and for contempt generally (Division 42.2). It is the latter that applies to these applications.

42    In Tax Practitioners Board v Hacker (No 2) [2020] FCA 1048 Rangiah J stated the relevant principles as to breach of an undertaking constituting a contempt:

[16]    A breach of an undertaking is, like disobedience of a court order, a contempt of court, for which the contemnor is liable to punishment: Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 at 496-497.

[17]    It is necessary to prove the contempt beyond all reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534.

[18]    A deliberate act committed in breach of an injunctive order or undertaking will constitute wilful disobedience unless it be casual, accidental or unintentional: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113.

[19]    However, it is not necessary for the applicant to prove that the contemnor intended to breach an order of, or an undertaking to, the Court: see Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 at [57]-[58]; Anderson v Hassett [2007] NSWSC 1310 at [8]; Mudginberri at 112. Nor is it necessary to prove that the contemnor was aware that his or her conduct constituted a breach of the undertaking: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143; Metcash Trading Ltd v Bunn (No 5) (2009) FCA 16 at [9].

Sentencing principles

43    As explained in Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 (Besanko, Wigney and Bromwich JJ), the rationale of sentencing for contempt is the protection of the effective administration of justice. The Full Court said:

[97]    The plurality in [Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375] observed at 388 [41], endorsing the statement of principle by Hayne J in Re Colina; Ex parte Tourney [1999] HCA 57; 200 CLR 386 at 429 [12], that the 'cardinal feature of the power to punish for contempt' was as an exercise of judicial power to 'protect the due administration of justice'. Viewed in that way, contempt proceedings are essentially protective in nature as to the judicial function and the role of the courts, even if they also serve to vindicate private interests and rights. Contempt proceedings are therefore to be viewed as essential in facilitating courts being able to function properly. That includes being, and being seen to be, effectual in adjudicating upon and resolving disputes, and in particular making orders that will ordinarily be obeyed. This means that individual contempt cases have an importance transcending the instant case by supporting and enhancing the integrity of judicial proceedings, both in respect of orders made, and more generally. That view of contempt proceedings can be seen to permeate longstanding sentencing authority in this area.

44    In Tax Practitioners Board v Hacker (No 4) [2021] FCA 940 Abraham J comprehensively gathered authorities that identify a number of considerations that are relevant in determining the appropriate penalty for contempt of court:

[21]    Considerations relevant to determining an appropriate penalty for contempt of court have been identified, in a non-exhaustive manner, to include: the contemnor's personal circumstances; the nature and circumstances of the contempt; the effect of the contempt on the administration of justice; the contemnor's culpability; the need to deter the contemnor and others from repeating contempt; the absence or presence of a prior conviction for contempt; the contemnor's financial means; and whether the contemnor has exhibited general contrition and made a full and ample apology: Director of Fair Work Building Industry Inspectorate v Cartledge (No 2) [2015] FCA 851 at [6]; Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494 at [25]; Kazal at [101]-[103]; Matthews v ASIC [2009] NSWCA 155 at [129].

[22]    Recognising there are number of authorities in this Court which refer to the relevant matters for consideration, the position was summarised in Kazal at [103]:

… The focus remains on the core themes of the objective seriousness of the conduct and, in particular, its effect on the administration of justice, subjective factors such as the contemnor's culpability, antecedents and attitude, including in particular any apology or other palpable sign of contrition, the capacity to pay a fine, and imprisonment being a last resort. Deterrence remains a dominant theme, both specific and general. Even denunciation and punishment can be seen as bolstering deterrence. That is especially so when the conduct entails contemplation and the opportunity to reflect and desist.

[23]    The Court has a wide range of penalties available to it: Sydney Medical Service Co-operative Limited v Lakemba Medical Services Pty Ltd (No 2) [2016] FCA 1188 at [14]; Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24 (INFO4PC.com Pty Ltd) at [138]. The Court has a discretion to impose a prison sentence, to fine, to make costs orders or to punish by any combination of such alternatives: Deputy Commissioner of Taxation v Hickey [1999] FCA 259; (1999) 42 ATR 229 at 242. The Court has the power to suspend on condition any sentence of imprisonment it might impose in respect of a contempt: INFO4PC.com Pty Ltd at [138]. A sentence of imprisonment may be partially suspended upon conditions: see, for example, Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) [2017] FCA 522 (Halkalia Pty Ltd) at [174]. A sentence of imprisonment for contempt is a penalty of last resort: Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596 … at [54].

45    Factors such as whether the contemnor has received a benefit from the conduct and whether the contempt is committed in the context of proceedings alleging conduct seriously prejudicial to the public interest are also relevant in assessing the nature of the contempt: Australian Securities and Investments Commission v One Tech Media Limited (No 4) [2018] FCA 1533 at [13] (Moshinsky J).

46    However, it must be recalled that any penalty imposed must be a proportionate response to the circumstances of the contempt charges. So, in these applications, I am not imposing any penalty in relation to the underlying liability the subject of Van Stroe (No 1) and for which a penalty was imposed in Van Stroe (No 2). I am sentencing in relation to the contempt charges.

47    Having regard to those principles, I turn to the relevant matters.

Consideration of appropriate sentence

Board's submission

48    The Board submitted that Ms Dabalos's 365 contempts were wilful, deliberate and brazen, commencing only two months after the permanent injunction order was made and continuing into October 2024. It submitted that a fine, imprisonment and payment of the applicant's costs on an indemnity basis was an appropriate sentence. The Board accepted that it was an appropriate case for any sentences of imprisonment to be considered on a concurrent basis. Properly, the Board did not make submissions as to the term of any imprisonment to be imposed: Kazal at [159]; and Hacker (No 4) at [26].

The seriousness of the admitted contempts

49    Whilst the fee charged for each contempt was relatively modest, the manner by which Ms Dabalos undertook the offending was such that without an inquiry of the nature undertaken by the Board, the scope of the contempts would not have readily come to light. The benefit to Ms Dabalos and her husband from the contempt was some $61,610. She in effect operated a small business of providing tax services for fee in breach of court orders that expressly barred such conduct.

50    Further, the conduct was undertaken in wilful disregard of the permanent injunction. Ms Dabalos was informed by service of the orders made on 3 May 2022 ([8] above) of the risk that a breach of the order would leave her liable to punishment for contempt, including imprisonment. Regardless, she proceeded to commit the 233 contempts the subject of the first statement of charge. Even after Ms Dabalos was on notice that she was acting in contempt of the permanent injunction ([16] above]), she continued to do so on a further 132 occasions. Ms Dabalos chose to continue to act in breach of the permanent injunction.

51    I find that Ms Dabalos's conduct was serious and contumacious. Whilst failure to comply with a court order may in some circumstances constitute only a civil contempt, disobedience with a court order that is serious may render the conduct criminal: Witham v Holloway (1995) 183 CLR 525 at 538-539; Tax Practitioners Board v Hacker (No 3) [2020] FCA 1814 at [139]; and Hacker (No 4) at [33]. Having regard to the repeated nature of the contempts, and the matters at [50] above, I accept the Board's submissions that Ms Dabalos's conduct was of such seriousness that it can be classified as criminal. It has the tendency to seriously prejudice the public interest in protecting the effective administration of justice.

Deterrence

52    Ms Dabalos breached the permanent injunction despite notice of the potential consequences. She continued to breach the permanent injunction despite being put on notice that she was acting in contempt. I acknowledge that Ms Dabalos has indicated a level of remorse to the Court (as discussed below). However before committing the contempts she had the opportunity to assess and desist and chose not to do so: Kazal at [168]. Penalties imposed on Ms Dabalos to date, including a significant pecuniary penalty, have had little effect in changing her conduct. The issue of deterrence, particularly specific deterrence, is heightened in the circumstances of this case.

Admission and cooperation

53    In contrast to her approach to the liability and civil penalty proceedings, Ms Dabalos engaged with and appeared before the Court in relation to the statements of charge. She remained responsive to email communications from the Court about her hearing. Ms Dabalos has admitted her contempts. Whilst I acknowledge that these admissions came late and only after service of the second statement of charge and the listing of the hearing, she did indicate an intention to plead guilty at the first hearing date ([20] above) and her admissions and acceptance of wrongdoing justify some reduction in the punishment that would otherwise be imposed.

Ms Dabalos's personal circumstances

54    Ms Dabalos is 35 years old. She immigrated to Australia with her mother in 2005 at the age of 15 and married Mr Dabalos on 15 July 2022. She has two children, aged 2 and 16 years old.

55    Ms Dabalos prepared an apology letter to the Court which was read during the hearing. Ms Dabalos appeared to be genuinely upset when the letter was read. In the letter she explained that she was introduced to providing tax services when a friend asked her to translate some information and asked what kind of things might be claimed (presumably as deductions). After she provided some information, he gave her a 'tip' for helping. At the time she was in a difficult domestic situation (not involving her current husband) and had no financial support. She thought she could provide some more services to friends and get more 'tips' to bring in some income to help support her children. Over time this became her only source of income and she said that she deeply regretted her actions and took full responsibility for them. She acknowledged how serious her conduct became. She apologised to the Court and the Board for the inconvenience and misconduct. She also apologised to the taxpayers she had dealt with, and said she was aware that some were audited and paid penalties because of her actions. She said that she had placed herself in this position and 'If given a last chance I am committed to changing myself and I will not make the same mistake'.

56    I accept that Ms Dabalos has indicated a level of remorse for her conduct as a whole. I am concerned that she referred to the fees somewhat dismissively as 'tips' but reading her letter as a whole, contrition is apparent. In particular, it is notable that Ms Dabalos acknowledges that her conduct exposed taxpayers to investigations. Whilst Ms Dabalos does not expressly acknowledge that her conduct was in breach of court orders, she does reveal an understanding of the seriousness of her conduct generally.

57    As noted above, it was apparent that Ms Dabalos's chief concern was the effect of any imprisonment on her children.

58    It is well-recognised that hardship to family is an inevitable consequence of any prison sentence. In R v Wirth (1976) 14 SASR 291, Wells J observed (at 296):

Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court … It seems to me that courts would often do less than their clear duty - especially where the element of retribution, deterrence, or protection of society is the predominant consideration - if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.

But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back … hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so …

59    However, '[i]t is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account': Markovic v The Queen [2010] VSCA 105; (2010) 30 VR 589 at [7].

60    I acknowledge that imprisonment will no doubt leave Ms Dabalos's children in a position where they miss their mother and that they may face difficulties as a result of such separation. I have no information as to the role of Mr Dabalos or their extended family and friends (some of whom were present in Court) in assisting or supporting Ms Dabalos's children. Whilst I believe Ms Dabalos's concerns to be genuine, no exceptional hardship is demonstrated.

61    Ms Dabalos's 2023 income tax return indicated that she derives no income from an employer or any other source. The evidence indicates that she has substantial debts, including an income tax debt and the outstanding fine imposed in Van Stroe (No 2) of $230,000. It is therefore likely that imposing a fine would be futile due to Ms Dabalos's financial position: Formal Wear Express Franchising Pty Ltd v Roach [2004] QCA 339 at 6.

62    There was no suggestion of any antecedents.

Comparable cases

63    It is well-recognised that sentences imposed in other cases do not establish the bounds of a sound exercise of discretion in considering an appropriate period of imprisonment: Kazal at [118]; and eSafety Commissioner v Rotondo (No 3) [2023] FCA 1590 at [31].

64    Acknowledging this well-established caveat, I have had regard to a number of cases where sentences of imprisonment have been imposed for breach of court orders. In particular, I have considered the following examples of sentences for contempt in the context of injunctions restraining the provision of tax services by persons who are not registered tax agents:

(a)    In Hacker (No 3), Rangiah J considered breaches by Mr Hacker of a permanent injunction restraining the provision of tax services in contravention of s 50-51 of the TAS Act. There were 25 instances of contempt referred to in four statements of charge for which he received sentences of imprisonment (other penalty orders were imposed for additional contempts). The effect of the orders made by Rangiah J was that Mr Hacker was sentenced to seven and a half months imprisonment, to serve four and a half months, with the remaining three months suspended on the condition that he not contravene, within three years, the permanent injunction restraining him from providing tax agent services. Mr Hacker committed some of those contempts after Rangiah J had reserved judgment in relation to earlier contempt proceedings (Hacker (No 3) at [116]).

(b)    In Hacker (No 4), Abraham J sentenced Mr Hacker in relation to two further instances of contempt, based on his provision of further tax services in breach of the injunction after the previous contempts had been established by Rangiah J. Mr Hacker was sentenced to four months' imprisonment (to be served concurrently, but cumulative on the balance of the sentence imposed by Rangiah J in Hacker (No 3), and to be suspended after two months of the four months had been served in custody on condition that there be no further breach within five years.

(c)    In Tax Practitioners Board v Williams [2023] FCA 63, Charlesworth J addressed liability for multiple civil contraventions of s 50-5(1) of the TAS Act, but also sentenced Mr Williams in relation to the provision of tax services on seven occasions in contempt of an interlocutory injunction preventing him for providing any such services. The contempts were engaged in over an 18-day period. Mr Williams was sentenced to a 10-day term of imprisonment.

Sentence

65    It is immediately apparent that I am sentencing Ms Dabalos in relation to incidents of contempt that vastly exceed in number those previously considered in the authorities. In contrast to Mr Hacker's conduct the subject of Hacker (No 4), Ms Dabalos did not continue to breach orders after contempt findings had already been made. However, insofar as the contempts the subject of the second statement of charge are concerned, she did so with knowledge that proceedings had already been instituted against her for the prior contempts. Those later contempts are of a more serious nature.

66    It would be oppressive and contrary to sentencing principles to fix a period of imprisonment based on some kind of extrapolation of the number of contempts and the sentencing periods imposed in the other cases to which I have referred. I have had regard to all of the matters set out above and principles of proportionality and totality. Having regard to the seriousness of the offending, it is not a case where a fine is appropriate. An appropriate sentence requires a period of imprisonment.

67    For each of the 233 contempts the subject of the first statement of charge, I sentence Ms Dabalos to a term of imprisonment of four months to be served concurrently (four months term).

68    For each of the 132 contempts the subject of the second statement of charge, I sentence Ms Dabalos to a term of imprisonment of eight months to be served concurrently (eight months term).

69    The four months term and the eight months term are to be served consecutively, so that the total term of imprisonment is 12 months. However, after Ms Dabalos has served six months of the 12 months period she will be released from prison and the balance will be suspended from execution, subject to the condition that upon the Court determining that there has been any further breach of the permanent injunction made 3 May 2022 within a three year period of her release, Ms Dabalos will be imprisoned to serve the balance of the 12 months period now imposed.

70    If the Court determines there has been a further breach, a warrant will issue to the Australian Federal Police on terms to be determined by the Court at that time to take Ms Dabalos into custody to serve the six months' balance of the 12 months sentence.

71    It will be a matter for the Court at that time to determine any additional penalty that might be imposed in relation to the further breach.

Costs

72    The Board sought its costs of these applications on an indemnity basis.

73    That award of costs is warranted because the present contempt applications were unnecessary, except to respond to the breaches of the permanent injunction by Ms Dabalos. It follows that she ought to pay the Board's costs of the contempt applications on an indemnity basis: Kazal at [192]-[198]; Hacker (No 4) at [69] (acknowledging the order was made against the background of previous findings of contempt); and eSafety at [53].

74    There will be orders accordingly.

Associate:

Dated:    21 March 2025