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Aitchison v The Queen

Aitchison v The Queen

Case [2015] VSCA 348 15 December 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0051

MARTIN AITCHISON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2015, 15 December 2015
DATE OF JUDGMENT:	15 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 348
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Aitchison (Unreported, County Court of Victoria, Judge Sexton, 17 February 2015)

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CRIMINAL LAW – Sentence – Appeal and application for leave to appeal against sentence – Commonwealth offence – White collar crime – Repeated and extended fraudulent lodging of Business Activity Statements claiming fuel rebates – Systematic defrauding of public revenue which relies on trust and integrity – General deterrence – Whether general deterrence should be a sentencing objective in Commonwealth offences – Distinction between ‘marginal general deterrence’ and ‘absolute general deterrence’ – Whether the principle of general deterrence is inconsistent with s 16A of the Crimes Act 1914 (Cth) – Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) – Whether introduction of express reference to general deterrence in s 16A(2) implied that it was not previously a relevant consideration in sentencing federal offenders – Whether previous good character is a sentencing consideration in white collar offences – Principle of proportionality – Whether proportion of harm caused by the offending should be a key sentencing consideration – Whether white collar offences committed against the public revenue should be distinguished from white collar offences committed against individuals – Whether sentence of 8 years with recognisance release order after 5 years is manifestly excessive – Appeal dismissed and application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Alexander with Mr H Kirimof	Bagaric Lawyers
For the Respondent	Mr D J Lane	Commonwealth Director of Public Prosecutions

WHELAN JA:

For the reasons set out by Santamaria JA, I too agree that leave to appeal should be refused on proposed ground 1, and that the appeal should be dismissed.

SANTAMARIA JA:

On 28 November 2014, the appellant (now aged 64) pleaded guilty to three charges of obtaining financial advantage by deception and one charge of attempting to obtain financial advantage by deception. Following a plea on 28 November 2014 and 4 February 2015, the appellant was sentenced on 17 February 2015 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Dishonestly obtain financial advantage by deception from a Commonwealth entity [Criminal Code (Cth) 134.2(1)]	10 years imprisonment [Criminal Code (Cth) 134.2(1)]	2 years	Sentence to commence 17 August 2020
2	Dishonestly obtain financial advantage by deception from a Commonwealth entity	10 years imprisonment	4 years	Sentence to commence 17 August 2017
3	Dishonestly obtain financial advantage by deception from a Commonwealth entity	10 years imprisonment	5 years	Base sentence
4	Attempt to dishonestly obtain financial advantage by deception from a Commonwealth entity [Criminal Code (Cth) 134.2(1) and 11.1]	10 years imprisonment [Criminal Code (Cth) 134.2(1)]	18 months	Sentence to commence 17 August 2021

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 Aitchison v The Queen

Details

AGLC: Aitchison v The Queen [2015] VSCA 348
Case: [2015] VSCA 348
Decision Date: 15 December 2015

CaseChat Overview and Summary

In the matter of Aitchison v The Queen, the appellant, a Commonwealth offender, sought to appeal and apply for leave to appeal against his sentence. The appellant had been found guilty of a series of offences involving the repeated and extended fraudulent lodging of Business Activity Statements to claim fuel rebates. This systematic defrauding of public revenue raised significant questions regarding the principles and objectives of sentencing, particularly in cases of white collar crime. The central issues before the court included the role of general deterrence in sentencing, the distinction between marginal and absolute general deterrence, and the relevance of previous good character in such cases. Additionally, the court considered whether the principle of proportionality should guide the sentencing of white collar offences against public revenue differently from those against individuals.

The court examined the objectives of sentencing under the Crimes Act 1914, particularly the role of general deterrence. It noted that while general deterrence was not explicitly mentioned in section 16A of the Act, it was implicit in the statutory objectives. The court held that general deterrence, particularly marginal general deterrence, was relevant and consistent with the statutory objectives. It distinguished this from absolute general deterrence, which was not relevant to sentencing. The court further clarified that the introduction of an express reference to general deterrence in section 16A(2) did not imply it was previously irrelevant. It also found that the principle of proportionality required consideration of the harm caused by the offending, but did not deem the sentence of 8 years with recognisance release after 5 years to be manifestly excessive.

The court concluded that the sentence imposed was appropriate, taking into account the objectives of sentencing and the nature of the offences. It found no basis to interfere with the sentence or to grant leave to appeal. The appeal was dismissed, and the application for leave to appeal was refused. This decision underscores the importance of considering the objectives of sentencing, including general deterrence and proportionality, in cases of white collar crime.

Orders