Chang v R - [2016] NSWCCA 296

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chang v R [2016] NSWCCA 296
Hearing dates: 29 November 2016
Decision date: 16 December 2016
Before: Macfarlan JA at [1];
Johnson J at [101];
Schmidt J at [102]
Decision:
(1) Grant leave to appeal against sentence.
(2) Dismiss the appeals against conviction and sentence.

Catchwords:
CRIMINAL LAW – conviction appeal – conspiracy with intention of dishonestly causing loss to Commonwealth – s 135.4(3) Criminal Code (Cth) – whether agreement to lodge false GST returns based on inflated or false inter-group invoices – whether directions to jury concerning conspiracy’s object, means of achievement and overt acts sufficiently clear – whether verdict uncertain
CRIMINAL LAW – sentence appeal – conspiracy with intention of dishonestly causing loss to Commonwealth – s 135.4(3) Criminal Code (Cth) – agreement to lodge false GST returns based on inflated or false inter-group invoices – whether findings as to offender’s role adequate
Legislation Cited: Criminal Appeal Rules 1952
Criminal Code (Cth)
Cases Cited: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
Pratten v R [2014] NSWCCA 117
R v Aziz [1982] 2 NSWLR 322
R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98
Category: Principal judgment
Parties: Song Chang (Appellant)
Regina (Respondent)
Representation:
Counsel:
Mr P Bruckner / Mr R Johnson (Appellant)
Mr K Ginges (Respondent)
Solicitors:
Hardinlaw (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2014/34517
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 November 2015

Before:

Lakatos DCJ

File Number(s):

2014/34517

Judgment

MACFARLAN JA: In 2015 the appellant, Song (Peter) Chang was tried in the District Court before a judge and jury on a charge that:

“Between about 1 January 2002 and about 30 June 2006 at Sydney, New South Wales and elsewhere [he] did conspire with Li ZHANG and Simon Chee-To CHAN with the intention of dishonestly causing a loss to a third person, namely the Commonwealth.
Contrary to section 135.4(3) of the Criminal Code (Law Part Code 41505).”

After a 10 week trial, the jury returned a verdict of guilty. On 26 November 2015 the trial judge convicted the appellant of the offence of which the jury had found him guilty and imposed a sentence of 5 years imprisonment to date from 10 June 2015, with a non-parole period of 3 years commencing on the same date.
The Crown case at trial was that the intended loss was to be caused to the Australian Taxation Office (“ATO”) by an accrual-basis GST reporting entity, JKC Developments Pty Ltd (“JKC”), claiming and receiving GST refunds to which it was not entitled on the basis of it receiving invoices from other entities within the same corporate group which were inflated or false. Those other entities were High Trade Constructions Pty Ltd (“HTC”) and Lobbyfit Design & Cons Pty Ltd (“Lobbyfit”). JKC later changed its name to Protons…

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 Chang v R

Details

AGLC: Chang v The Queen [2016] NSWCCA 296
Case: [2016] NSWCCA 296
Decision Date: 16 December 2016

CaseChat Overview and Summary

The case of Chang v R involved an appeal against conviction and sentence in relation to a conspiracy with the intention of dishonestly causing loss to the Commonwealth. The conspiracy involved the lodgement of false GST returns based on inflated or false inter-group invoices. The primary issue before the court was whether the directions to the jury concerning the conspiracy's object, means of achievement, and overt acts were sufficiently clear, and whether the verdict was uncertain. The appeal against sentence centred on whether the findings as to the offender's role were adequate.

The court examined the directions given to the jury by the trial judge, focusing on whether they were clear enough for the jury to understand the elements of the offence and the legal principles involved. The court found that the directions were adequate and did not lead to any uncertainty in the verdict. The court also considered the offender's role in the conspiracy, finding that the trial judge's assessment was appropriate and that the offender's role was adequately established. The court concluded that the appeal against conviction and sentence was without merit.

The appeal against conviction was dismissed, and the appeal against sentence was also dismissed. The convictions and sentences imposed by the trial judge were upheld. The court found no error in the trial judge's handling of the case and confirmed the verdict and sentence. The decision reinforces the importance of clear jury directions in conspiracy cases and the need for a proper assessment of the offender's role in the conspiracy.

Orders