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

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.
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.
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…

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 Bransby v The Queen

Details

AGLC: Bransby v The Queen [2010] WASCA 165
Case: [2010] WASCA 165
Decision Date: 6 AUGUST 2010

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