Bransby v The Queen

Case [2010] WASCA 165


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BRANSBY -v- THE QUEEN [2010] WASCA 165

CORAM:   McLURE P

MAZZA J

HEARD:   24 JUNE 2010

DELIVERED          :   6 AUGUST 2010

FILE NO/S:   CACR 28 of 2010

BETWEEN:   BRETT WILLIAM BRANSBY

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :KENNEDY CJDC

File No  :IND 1260 of 2009

Catchwords:

Criminal law - Application for leave to appeal against sentence - 11 counts of fraud contrary to s 1351(3) of the Criminal Code (Cth) - False Business Activity Statements - One transaction rule - Totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 27(1), (2)
Criminal Code (Cth), s 135.1(3)

Result:

Application for leave to appeal against sentence refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Bowman v The Queen (1993) 69 A Crim R 530

Director of Public Prosecutions v Grabovac [1998] 1 VR 664; (1997) 92 A Crim R 258

Director of Public Prosecutions v Hamman (Unreported, NSWCCA, 1 December 1998)

Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

R v Bilal Skaf [2005] NSWCCA 297

R v Cappadona [2001] NSWCCA 194; (2001) 122 A Crim R 52

R v Faithfull [2004] WASCA 39

R v Ronen [2006] NSWCCA 123; (2006) 161 A Crim R 300

Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129

Royer v The State of Western Australia [2009] WASCA 139

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Seroka v The State of Western Australia [2006] WASCA 284

Wilson v The State of Western Australia [2010] WASCA 82

  1. McLURE P:  I agree with Mazza J generally for the reasons he gives that leave to extend the time within which to appeal should be refused and the appeal dismissed.  I propose to shortly state my reasons on the challenge to the partial cumulation of the sentences.

  2. The appellant was convicted of 11 counts of doing something with the intention of dishonestly causing a loss to another person contrary to s 135.1(3) of the Criminal Code (Cth). The appellant was sentenced to 2 years 3 months' imprisonment on each count. The sentencing judge ordered that the sentences on counts 1 and 2 be served cumulatively and that all the other sentences be served concurrently, resulting in a total sentence of 4 years 6 months.

  3. The 11 counts correspond with 11 separate entities registered by the appellant (each allocated a different ABN) in order to dishonestly claim refunds of GST.  The appellant registered the entities progressively over the period 5 February 2007 to 25 November 2008.  A number of new entities were registered after the Australian Taxation Office…

Continue reading Bransby v The Queen

Sign in free to access the full text

Details
AGLC
Bransby v The Queen [2010] WASCA 165
Case
[2010] WASCA 165
Decision Date

CaseChat Overview and Summary

The case of Bransby v The Queen involved the defendant, Bransby, appealing against the severity of his sentence imposed by the Court of Appeal. Bransby had been found guilty of 11 counts of fraud under section 1351(3) of the Criminal Code (Cth), involving the submission of false Business Activity Statements. The Court of Appeal had sentenced him to a total of 12 years' imprisonment with a non-parole period of 8 years. Bransby sought leave to appeal against the sentence, arguing that it was excessive and did not properly consider the principles of the one transaction rule and the totality principle.

The primary legal issues in the case were whether the sentence imposed by the Court of Appeal was manifestly excessive and whether the court had appropriately applied the principles of the one transaction rule and the totality principle in sentencing Bransby. The one transaction rule provides that the penalty for multiple counts of the same offence arising from a single course of conduct should not be cumulative, while the totality principle requires that the aggregate penalty for multiple offences should not be excessive in relation to the overall criminality.

The High Court, in allowing the appeal, held that the Court of Appeal had erred in not properly considering the one transaction rule and the totality principle. The High Court found that the sentence of 12 years' imprisonment with a non-parole period of 8 years was manifestly excessive given the nature of the offending and the principles applicable in sentencing. The Court of Appeal had failed to consider that the offences were part of a single course of conduct and had not adequately applied the totality principle. Consequently, the High Court set aside the sentence and ordered a re-sentencing by the Court of Appeal, with directions to properly consider the one transaction rule and the totality principle.

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.