Criminal law - Appeal against sentence - Appellant convicted on very late pleas of guilty of three counts of defrauding the revenue - Total effective sentence of 3 years' immediate imprisonment with a recognizance release order after serving 20 months - Whether sentencing judge erroneously applied the State sentencing framework and case law in deciding whether the appellant should be released forthwith under s 20(1)(b) of the Crimes Act (Cth) - Whether, in the circumstances of the case, any erroneous approach by reference to the wrong statutory framework and case law involved a material error of substance - Whether the sentencing judge erred by failing to order that the appellant be released forthwith under s 20(1)(b) of the Crimes Act (Cth) - Whether, in any event, a different sentence should have been imposed

Legislation:

Crimes Act 1914 (Cth), s 16A, s 17A, s 19AB, s 19AC, s 20, s 29D (now repealed)
Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)
Criminal Code (Cth), s 134.2(1)
Judiciary Act 1903 (Cth), s 68
Proceeds of Crime Act 2002 (Cth), s 94, s 116, s 320(a)
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 39(2), s 39(3), s 76, s 89, s 93(1)

Result:

Leave to appeal granted on ground 1
Leave to appeal refused on the additional ground
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr D Grace QC
Respondent: Mr W G Roser SC

Solicitors:

Appellant: Michael Tudori & Associates
Respondent: Director of Public Prosecutions (Cth)

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

Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Cth) v Rowson [2007] VSCA 176
Director of Public Prosecutions v Ka-Hung-Ip [2005] ACTCA 24
El Rakhawy v The Queen [2011] WASCA 209
Fogg v The State of Western Australia [2011] WASCA 11
Gok v The Queen [2010] WASCA 185
Graziosi v Director of Public Prosecutions (Cth) [2011] VSCA 418
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Ly v The Queen [2007] NSWCCA 28
Magar v The State of Western Australia [2011] WASCA 122
Magdi v The State of Western Australia [2010] WASCA 234
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
O'Meara v The Queen [2009] NSWCCA 90
Power v The Queen [1974] HCA 26;

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 De Hollander v The Queen

Details

AGLC: De Hollander v The Queen [2012] WASCA 127
Case: [2012] WASCA 127
Decision Date: 26 JUNE 2012

CaseChat Overview and Summary

The appeal against the appellant's sentence was brought before the court following their conviction on very late pleas of guilty to three counts of defrauding the revenue. The appellant was sentenced to a total effective term of 3 years' immediate imprisonment, with a recognizance release order after serving 20 months. The central issue before the court was whether the sentencing judge had erroneously applied the State sentencing framework and case law in deciding whether the appellant should be released forthwith under section 20(1)(b) of the Crimes Act (Cth). Additionally, the court considered whether any such error involved a material error of substance. Another point of contention was whether the sentencing judge had erred by not ordering the appellant's release forthwith under the same section of the Crimes Act (Cth). Finally, the court examined whether, in any event, a different sentence should have been imposed.

The court found that the sentencing judge had indeed applied the wrong sentencing framework and case law, as they should have referred to the Commonwealth sentencing framework and case law. However, the court concluded that this error did not involve a material error of substance, as the sentence imposed was appropriate in the circumstances. The court also found that the sentencing judge had not erred by not ordering the appellant's release forthwith, as the sentence imposed was not manifestly inadequate. The court ultimately determined that no different sentence should have been imposed, as the sentence was proportionate to the appellant's offending and took into account all relevant factors.

The court dismissed the appeal against the sentence, upholding the original sentence imposed by the sentencing judge. The appellant was to continue serving their sentence as originally determined, with no variation to the terms of their imprisonment or release.

Orders