Acosta v The Queen

Case [2015] VSCA 94


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0053

ALAIN ACOSTA Applicant
v
THE QUEEN Respondent

---

JUDGES: WEINBERG and KYROU JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 8 May 2015
DATE OF JUDGMENT: 8 May 2015
MEDIUM NEUTRAL CITATION: [2015] VSCA 94
JUDGMENT APPEALED FROM: DPP (Cth) v Acosta (Unreported, County Court of Victoria, Judge Smith, 18 February 2015)

---

CRIMINAL LAW — Sentence — Obtaining and attempting to obtain financial advantage by deception through submission of false income tax returns — Guilty plea — Applicant sentenced to 2 years’ imprisonment to be released on recognisance release order after 6 months — Whether manifestly excessive — Whether sentencing judge failed to give proper weight to delay which deprived applicant of opportunity of having income tax charges heard together with other charges and to seek concurrency for the income tax charges —Whether sentencing judge erred in stating that applicant pleaded guilty at a ‘relatively early stage’ instead of ‘the earliest possible stage’ — Whether sentencing judge erred in taking into account convictions for unrelated offences post-dating income tax offending — Application for leave to appeal refused.

---

APPEARANCES: Counsel Solicitors
For the Applicant Mr C M Terry Matthew White & Associates
For the Crown Ms K Breckweg Office of the Commonwealth Director of Public Prosecutions

WEINBERG JA

KYROU JA:

Introduction and summary

  1. On 23 January 2015, the applicant (now aged 29) pleaded guilty to seven charges arising from the submission of false income tax returns (ITRs) and the receipt of refunds totalling $33,181.40 to which he was not entitled.  Following a plea he was sentenced on 18 February 2015 as follows:

Charge on Indictment Offence Maximum Sentence
1 Obtaining financial advantage by deception [Criminal Code (Cth) s 134.2(1)] 10 years Aggregate sentence: 2 years’ imprisonment, to be released on recognisance release order after 6 months
2 Obtaining financial advantage by deception 10 years
3 Obtaining financial advantage by deception 10 years
4 Attempt to obtain financial advantage by deception [Criminal Code (Cth) ss 134.2(1) and 11.1(1)] 10 years
5 Attempt to obtain financial advantage by deception 10 years
6 Attempt to obtain financial advantage by deception 10 years
7 Attempt to obtain financial advantage by deception 10 years
Total Effective Sentence: 2 years’ imprisonment
Recognisance Release Order: 6 months’ imprisonment
Pre-sentence Detention Declared: Nil
6AAA Statement: 30 months’ imprisonment wholly cumulative with the sentence currently being served.
  1. The applicant seeks leave to appeal on the following grounds:

1.        The sentence imposed was manifestly excessive.

3.The applicant’s subsequent convictions resulted in a higher head sentence than that which would have been imposed if they had not occurred.[1]

[1]On the hearing of the application, the applicant abandoned Ground 2. 

  1. For the reasons set out below, the application for leave to appeal is refused.

Circumstances of the offending

  1. The applicant lodged the following ITRs with the Australian Taxation Office (‘ATO’):

(a)               on 6 July 2011, he lodged an ITR  in his own name (‘2011 Acosta Return’);

(b)               on 18…

Continue reading Acosta v The Queen

Sign in free to access the full text

Details
AGLC
Alain Acosta v The Queen [2015] VSCA 94
Case
[2015] VSCA 94
Decision Date

CaseChat Overview and Summary

Acosta sought leave to appeal against the sentence imposed upon his conviction for obtaining and attempting to obtain financial advantage by deception through the submission of false income tax returns. Acosta was sentenced to 2 years’ imprisonment, to be released on a recognisance release order after 6 months. Acosta argued that the sentence was manifestly excessive, that the sentencing judge failed to give proper weight to the delay in the proceedings which deprived him of the opportunity of having the income tax charges heard together with other charges and to seek concurrency for the income tax charges, and that the sentencing judge erred in stating that Acosta pleaded guilty at a ‘relatively early stage’ instead of ‘the earliest possible stage’. Acosta also argued that the sentencing judge erred in taking into account convictions for unrelated offences post-dating the income tax offending.

The court considered whether the sentence was manifestly excessive, whether the sentencing judge failed to give proper weight to the delay in the proceedings, whether the sentencing judge erred in stating that Acosta pleaded guilty at a ‘relatively early stage’ instead of ‘the earliest possible stage’, and whether the sentencing judge erred in taking into account convictions for unrelated offences post-dating the income tax offending. The court found that the sentence was not manifestly excessive, that the sentencing judge did not fail to give proper weight to the delay in the proceedings, that the sentencing judge did not err in stating that Acosta pleaded guilty at a ‘relatively early stage’ instead of ‘the earliest possible stage’, and that the sentencing judge did not err in taking into account convictions for unrelated offences post-dating the income tax offending.

Accordingly, Acosta’s application for leave to appeal was refused. No orders as to costs were made.

This case underscores the importance of a defendant's timely guilty plea and the potential consequences of delays in proceedings. It also highlights the court's approach to considering unrelated convictions in sentencing, emphasising that such convictions can be relevant if they provide context for the defendant's criminal history and propensity. This decision serves as a reminder to legal practitioners of the factors that courts may consider in sentencing and the significance of procedural timing in criminal cases.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.