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DPP (Cth) v Gaw

DPP (Cth) v Gaw

Case [2006] VSCA 51 15 March 2006

Sentencing

Criminal Liability

Double Jeopardy

Discretionary Considerations

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 225 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
	v.
KEVIN ANTHONY GAW

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JUDGES:	CALLAWAY, EAMES and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2006
DATE OF JUDGMENT:	15 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 51

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Criminal law – Sentencing – Crown appeal – Offences against Corporations Act 2001 (Cth), s.184(2) – Respondent sentenced for other offences in 2001 and since released – Sentenced for present offences to three-and-a-half years’ imprisonment with immediate release on recognizance – Manifest inadequacy – Immediate release not open having regard to offence seriousness, antecedents and limited circumstances of mitigation – Further evidence received on resentencing – Whether exceptional hardship to dependants – Double jeopardy and discretionary considerations – Appeal dismissed – Crimes Act 1914 (Cth), s.16A(2)(p).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T.E. Wraight	Director of Public Prosecutions (Cth)
For the Respondent	Mr C.F. Thomson	Andrew George Solicitors

CALLAWAY, J.A.:

In late September 2001 the respondent, who was born on 10^th May 1953, pleaded guilty to an eight count indictment and requested that two further offences be taken into account pursuant to s.16BA of the Crimes Act 1914 (Cth). He had been operating an investment club for betting on horse races. The scheme was promoted through two corporations, but the respondent was a bankrupt who was prohibited from managing a corporation. Although the enterprise was a managed investment scheme within the meaning of s.601ED of the Corporations Act 2001 (Cth), it was not registered as required by that Act. Counts 1 to 4 related to the respondent’s failure to register the scheme. Counts 5 to 8 related to the fact that investors were induced to subscribe by the respondent’s knowingly and falsely stating that their investments were “fully guaranteed against loss”. The further offending to be taken into account arose from the respondent’s management of the two corporations whilst he was a bankrupt.

Judge Anderson imposed a total effective sentence for those offences of two years and four months’ imprisonment but ordered that the respondent be released on recognizance after serving eight months. The respondent was so released on 28^th May 2002 and the recognizance lapsed on 28^th January 2004. In the meantime, in July 2003, he was charged with further offences. A co-offender, Melanie Louise Ash, was charged at the same time. A contested committal did not proceed and eventually both the accused pleaded guilty. In the respondent’s case, that was three days before the trial was due to begin.

The 24 charges laid against the respondent in July 2003 were reduced to eight counts on the indictment, each of an offence against s.184(2) of the Corporations Act, and a further offence to be taken into account pursuant to s.16BA of the Crimes Act. That offence consisted of communicating instructions to a director of a corporation whilst being disqualified from managing a corporation[1]. The 28 charges originally laid against Ash were reduced to…

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 Gaw

Details

AGLC: DPP (Cth) v Gaw [2006] VSCA 51
Case: [2006] VSCA 51
Decision Date: 15 March 2006

CaseChat Overview and Summary

The case before the court involved the Director of Public Prosecutions for the Commonwealth (DPP) appealing against the sentence given to Gaw, who was found guilty of offences under the Corporations Act 2001. Gaw had previously been sentenced for other offences in 2001 and was subsequently released. For the current set of offences, he was sentenced to three-and-a-half years' imprisonment but was released immediately on recognizance. The DPP contended that the sentence was manifestly inadequate, particularly considering the seriousness of the offences, Gaw’s prior criminal record, and the limited circumstances of mitigation presented. The court had to decide if Gaw's immediate release was appropriate and whether any exceptional hardship to his dependants was sufficient to justify the original sentence. Additionally, the court examined the implications of double jeopardy and other discretionary factors in resentencing Gaw.

The court examined whether the original sentence was manifestly inadequate and if Gaw’s release on recognizance was justified. It considered the nature and seriousness of the offences, Gaw's prior criminal history, and the mitigating factors presented. The court also assessed new evidence concerning potential exceptional hardship to Gaw's dependants and whether this justified maintaining the original sentence. The legal principles guiding the court included the requirement for sentences to reflect the gravity of the offence and the need to protect the community. The court held that Gaw’s immediate release was inappropriate given the circumstances and that the original sentence did not adequately reflect the seriousness of the crimes or Gaw's criminal antecedents.

After considering all the evidence and legal principles, the court found that the original sentence was indeed manifestly inadequate. The court noted that Gaw’s prior criminal history and the seriousness of the current offences warranted a more substantial penalty. The court also concluded that Gaw's release on recognizance was not justified, as it did not appropriately reflect the need to deter Gaw and others from committing similar offences. The appeal was dismissed, and Gaw was re-sentenced to a term of imprisonment, considering all relevant factors, including the mitigating evidence and the need for an appropriate deterrent effect.

The court ordered that Gaw be re-sentenced to a term of imprisonment, specifying the length and conditions of the sentence. The new sentence was designed to reflect the seriousness of the offences, Gaw's criminal history, and the need to protect the community. The court did not specify the exact term but indicated that it was significantly longer than the original sentence and would include appropriate conditions to ensure Gaw's reintegration into society and to deter future criminal behaviour.

Orders