De Hollander v The Queen

Case [2012] WASCA 127


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DE HOLLANDER -v- THE QUEEN [2012] WASCA 127

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   23 APRIL 2012

DELIVERED          :   26 JUNE 2012

FILE NO/S:   CACR 128 of 2011

BETWEEN:   JOANNE KAREN DE HOLLANDER

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STAVRIANOU DCJ

File No  :IND 1467 of 2010

Catchwords:

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Crimes Act 1914 (Cth), s 16A, s 17A, s 19AB, s 19AC, s 20, s 29D (now repealed)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;

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De Hollander v The Queen [2012] WASCA 127
Case
[2012] WASCA 127
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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

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