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DPP (Cth) v Goldberg

DPP (Cth) v Goldberg

Case [2001] VSCA 107 27 July 2001

Appeal

Admissibility of Evidence

Facilitation of Tax Evasion

Manifestly Inadequate Sentence

Re-sentencing

Criminal Law

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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. Mr B.P. Mullaly	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…

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 Goldberg

Details

AGLC: DPP (Cth) v Goldberg [2001] VSCA 107
Case: [2001] VSCA 107
Decision Date: 27 July 2001

CaseChat Overview and Summary

The Director of Public Prosecutions for the Commonwealth of Australia appealed against the sentences imposed on two respondents, Goldberg and another, who were found guilty of conspiracy to defraud the Commonwealth in relation to tax evasion. The respondents were convicted for their roles in facilitating a scheme that resulted in significant tax losses for the Commonwealth. The case was heard in the High Court of Australia, which is the apex court in the Australian judicial system.

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