COLE -v- the QUEEN - [2013] WASCA 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: COLE -v- THE QUEEN [2013] WASCA 267

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 20 NOVEMBER 2013

DELIVERED : 28 NOVEMBER 2013

FILE NO/S: CACR 207 of 2013

BETWEEN: AARON JAMES COLE
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SLEIGHT DCJ
File No  :IND 651 of 2013

Catchwords:

Criminal law - Appeal against sentence - Dishonestly obtaining a financial advantage from the Commonwealth by deception - Appellant sentenced on an incorrect factual basis - Matter remitted to District Court for resentencing - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 31(5)(b)
Criminal Code (Cth), s 11.1(1), s 134.2(1)

Result:

Leave to appeal granted
Appeal allowed
Sentence set aside
Matter remitted to District Court for resentencing

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr M G A Plummer

Solicitors:

Appellant: JNC Legal
Respondent: Director of Public Prosecutions (Cth)

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

Nil

McLURE P: This is an appeal against sentence. On 20 November 2013 the court ordered that:
(1)leave to appeal be granted and the appeal be allowed;
(2)the sentence of 8 years' imprisonment, to serve a non‑parole period of 4 years and 9 months, imposed by his Honour Judge Sleight in the District Court at Perth on 4 October 2013 be set aside on the basis that the appellant was sentenced on an incorrect factual basis and a different sentence should have been imposed;
(3)the matter be sent back to the District Court to be dealt with further, in accordance with subs 31(5)(b) of the Criminal Appeals Act 2004 (WA); and
(4)the appellant be remanded in custody to appear in the District Court at Perth on 22 November 2013 at 10.00 am.
The respondent conceded the appeal and accepted that a different sentence ought to be imposed on the ground that the appellant was sentenced on an incorrect factual basis as to the period of offending. The factual background is as follows.
The appellant was convicted in the District Court on 4 October 2013 of one count of dishonestly obtaining a financial advantage from the Commonwealth by a deception under s 134.2(1) of the Criminal Code (Cth) (the Code) and one count of attempting to commit an offence contrary to s 134.2(1) under s 11.1(1) of the Code. He was sentenced by Sleight DCJ to a total sentence of eight years' imprisonment with a non-parole period of four years and nine months, to commence on 4 October 2013.
The appellant was sentenced on the basis that the offending involved the lodgement by the appellant of 778 false Business Activity Statement (BAS) claims to the Australian Taxation Office (ATO), on behalf of 77 client entities, claiming a total of $1,764,202.88. It was contended that the offending conduct occurred between 1 February 2007 and 11 February 2012. The amount dishonestly obtained in count one…

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 COLE -v- the QUEEN

Details

AGLC: Cole v The Queen [2013] WASCA 267
Case: [2013] WASCA 267
Decision Date: 28 NOVEMBER 2013

CaseChat Overview and Summary

The appellant in this case, Cole, was convicted in the District Court of obtaining a financial advantage from the Commonwealth by deception. The appeal before the court was against the sentence imposed by the District Court. The appeal hinged on the contention that the sentence was based on an incorrect factual basis. The appellant argued that the District Court had erred in its findings of fact, which led to an inappropriate sentence.

The legal issues that the court had to address were whether the District Court's findings of fact were correct and whether the sentence imposed was appropriate given those findings. The court had to consider whether the appellant's conduct warranted the sentence that was imposed and whether any error in the findings of fact necessitated a re-sentencing. The court also needed to determine if the sentence was manifestly excessive or inadequate in light of the appellant's conduct and the need for general deterrence.

In considering these issues, the court found that there were indeed errors in the factual findings made by the District Court. These errors led to a sentence that was based on an incorrect understanding of the appellant's role and culpability. The court concluded that because the sentence was predicated on these erroneous facts, it was necessary to remit the matter back to the District Court for resentencing. The court emphasised that the resentencing should be based on the correct facts and that the sentence should appropriately reflect the appellant's culpability and the principles of sentencing.

Orders