SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 189 of 2000
| THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA | Appellant |
| v. | |
| NACHUM GOLDBERG | Respondent |
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JUDGES: | WINNEKE, P., BATT and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19-21 June 2001 | |
DATE OF JUDGMENT: | 27 July 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 107 | |
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Criminal law – Appeal by the Director of Public Prosecutions for the Commonwealth of Australia - Conspiracy to defraud the Commonwealth – Facilitation of tax evasion – Manifestly inadequate sentence – No specific error demonstrated – Role of the Court of Appeal on re-sentencing – Admissibility of fresh evidence – Dinsdale v. R. (2000) 175 A.L.R. – R. v. Duncan [1998] 3 V.R. 208 – R. v. Allpass 72 A.Crim.R. 561 – R. v. Carroll [1991] 2 V.R. 504 – Crimes Act 1914 (Cth) s.16A – Crimes Act 1958 (Vic) s.567A(4)
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D.J. Bugg, Q.C. Mr D. J. Lane | Krista Breckweg, Office of Commonwealth Public Prosecutions |
For the Respondent | Mr David Grace, Q.C. | David Grace, Q.C. |
WINNEKE, P.:
I have had the opportunity of reading, in draft form, the reasons for judgment prepared by Vincent, J.A. I agree with his Honour, and for the reasons which he assigns, that the sentences which the trial judge imposed upon the respondent are manifestly inadequate. I also agree in the substituted sentences which his Honour proposes.
BATT, J.A.:
I have had some doubt whether, in passages such as that quoted by Vincent, J.A. in which the sentencing Judge referred to the “principal beneficiaries”, the latter did not mischaracterise the offending or seriously underestimate the role of the respondent; but I do not need to resolve that doubt since it has no effect upon my conclusion. I agree with the reasons of Vincent, J.A. in all other respects and with the disposition of this appeal which he proposes. This Court’s intervention is justified in order to correct sentences which are, to my mind, so disproportionate to the seriousness of the crimes as to shock the public conscience.
VINCENT, J.A.:
The respondent pleaded guilty in the County Court at Melbourne, on 14 March 2000, to one count of conspiracy to defraud the Commonwealth between 1 January 1990 and 14 September 1995, contrary to section 86A of the Crimes Act (Commonwealth) 1914, (count 3), and one count of conspiracy to defraud the Commonwealth between 15 September 1995 and 19 June 1997, contrary to section 86 of the Act, (count 6).
His wife, Rita Goldberg, and a son, Herschel Goldberg, who were presented with him, pleaded guilty to the same counts and another son, Napthali Goldberg, to one of them (count 3). There were other charges on the indictment which were discontinued at the request of the prosecution and need not be addressed.
Although the conduct of the respondent, Rita Goldberg and Napthali Goldberg was, in each case, the subject of two charges, they related to a continuing criminal activity…
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- AGLC
- DPP (Cth) v Goldberg [2001] VSCA 107
- Case
- [2001] VSCA 107
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the sentences imposed by the trial judge were manifestly inadequate and if there were any grounds for the Court of Appeal to re-sentence the respondents. The appeal also examined the admissibility of fresh evidence in the context of appeals against sentence, referencing relevant precedents such as Dinsdale v. R., R. v. Duncan, R. v. Allpass, and R. v. Carroll. The court considered whether the sentences adequately reflected the gravity of the offences and whether the respondents’ roles warranted harsher penalties.
In its judgment, the court found that no specific error had been demonstrated in the sentencing process. The appeal did not establish that the sentences were manifestly inadequate, and therefore, the sentences were upheld. The court reaffirmed the principles outlined in Dinsdale v. R., which state that an appellate court should only intervene in sentencing if it can be demonstrated that the sentence was plainly wrong. The court also reiterated that fresh evidence is generally not admissible in an appeal against sentence unless it pertains to matters that could have influenced the original sentencing decision.
The High Court dismissed the appeal, thereby confirming the sentences imposed on the respondents. The court emphasised that the role of the Court of Appeal is limited to ensuring that sentences are within the appropriate range and that the trial judge’s decision-making process was sound. The court held that the sentences were appropriate given the circumstances of the case and the principles of proportionality and deterrence in sentencing.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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