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Acosta v The Queen

Acosta v The Queen

Case [2015] VSCA 94 8 May 2015

Unrelated Convictions

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0053

ALAIN ACOSTA	Applicant
v
THE QUEEN	Respondent

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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)

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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.

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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

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.

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.

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

Circumstances of the offending

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Acosta v The Queen

Details

AGLC: Alain Acosta v The Queen [2015] VSCA 94
Case: [2015] VSCA 94
Decision Date: 8 May 2015

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