DPP (Cth) v Fincham - [2008] VSCA 186

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 75 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA

PATRICK JOHN FINCHAM

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JUDGES:	MAXWELL P, BUCHANAN and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 September 2008
DATE OF JUDGMENT:	23 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 186

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CRIMINAL LAW – Sentence – Crown appeal – Wholly suspended sentence of imprisonment for crimes of deceiving the Tax Office and attempting to pervert the course of justice manifestly inadequate – Offender ordered to serve 12 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O P Holdenson QC with Mr R R Davis	The Commonwealth Director of Public Prosecutions
For the Respondent	Mr D C Hallowes	Mr R Harris

MAXWELL P:

I agree with Buchanan JA that, for the reasons he gives, the appeal should be allowed and the respondent re-sentenced as he proposes.

BUCHANAN JA:

The principal question in this case is whether a wholly suspended sentence of imprisonment imposed for crimes of deceiving the Tax Office by lodging false returns and attempting to pervert the course of justice by producing false medical reports constituted sentencing error.

The respondent was arraigned and pleaded guilty in the County Court to a presentment containing two counts of defrauding the Commonwealth by making false claims to the Australian Taxation Office for Goods and Services Tax (‘GST’) refunds (counts 1 and 2) and two counts of attempting to pervert the course of justice (counts 3 and 4).

The respondent controlled a company, which carried on the business of a scrap metal dealer. Goods exported from Australia do not attract GST. Accordingly, companies which sell goods overseas do not have to charge or remit the tax in respect of those goods. On the other hand, if an exporting company has been charged GST in purchasing goods which it subsequently exports, it is entitled to claim an input tax credit.

Between October 2000 and September 2001, the company controlled by the respondent lodged four business activity statements claiming that it had exported goods and was entitled to significant input tax credits for GST said to have been paid upon purchasing the goods. Consequently, an amount of $121,884.97 was paid by the Australian Taxation Office into a bank account operated by the respondent. The respondent’s company was not entitled to any refund because the transactions recorded in the business activity statements had not taken place. The respondent

falsely stated to an investigator from the Australian Taxation Office that he had purchased and processed scrap metal which was placed in drums and shipped to Asia. The respondent said that the person who organised the shipping and export documents was one Rhamid Wassim. Later, the Australian Taxation received a facsimile from the respondent’s solicitors purporting to be a letter from ‘Rhamid’ to the respondent confirming that the respondent would sell Rhamid ‘export material’. No-one called Rhamid could be found at the address on the letter.

The respondent was charged with the offences…

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 DPP (Cth) v Fincham

Details

AGLC: Director of Public Prosecutions (Cth) v Fincham [2008] VSCA 186
Case: [2008] VSCA 186
Decision Date: 23 September 2008

CaseChat Overview and Summary

The case before the court was an appeal by the Director of Public Prosecutions for the Commonwealth against the sentence imposed on the respondent, Fincham. The respondent had been found guilty of deceiving the Tax Office and attempting to pervert the course of justice. The primary judge had imposed a wholly suspended sentence of imprisonment, a decision which the Crown sought to appeal on the basis of its manifest inadequacy. The court was tasked with determining whether the sentence was appropriate, and if not, what sentence should be imposed in its place.

The court considered the nature of the offences committed, the respondent's culpability, and the principles of sentencing relevant to such crimes. The court noted the respondent's lack of remorse and the seriousness of the offences, which involved deliberate deception and an attempt to obstruct justice. The court found that the wholly suspended sentence did not adequately reflect the seriousness of the crimes or serve the purposes of denunciation and deterrence. The Crown argued that a custodial sentence was necessary to uphold the law and maintain public confidence in the criminal justice system.

After considering the arguments and the relevant sentencing principles, the court concluded that the wholly suspended sentence was manifestly inadequate. The court took into account the need to impose a sentence that was proportionate to the respondent's offending and served the purposes of sentencing. The court ordered that the respondent serve 12 months' imprisonment, with the possibility of early release on good behaviour. This decision aimed to ensure that the sentence was appropriate to the crimes committed and that the principles of sentencing were properly applied.

Orders