SENTENCING – Appeal by Crown against sentence – Conspiracy to dishonestly cause a risk of loss to the Commonwealth – Sophisticated and audacious deceit – Misuse of professional position – Lack of contrition – Sentence of two years’ imprisonment with release after twelve months’ on giving security by recognizance of $5,000 to be of good behaviour for twelve months – Whether sentence imposed was inadequate – Sentence fixed inadequate and disproportionate to objective gravity of offending.
SENTENCING – Number of particular errors not subject of discrete ground of appeal identified – Sentencing judge impermissibly used sentence that would have been imposed upon co-offender but for plea of guilty as starting point for respondent’s sentence: R v Wong (2001) 207 CLR 584; Markarian v R (2005) 228 CLR 357 – Sentencing judge erroneously regarded fact that respondent and co-offender charged with different offences attracting different maximum penalties as irrelevant to question of parity – Sentencing judge erroneously utilised inappropriately low sentence of co-offender when applying parity principle – Sentencing judge erred in attaching weight to relative benefit obtained by respondent and co-offender – Benefit obtained relevant sentencing factor but of little or no weight in present case – Sentencing judge erred in weight given to fact that respondent would be imprisoned in Victoria when resident in New South Wales.
SENTENCING – Appeal by Crown against sentence – Discretion to decline to intervene despite finding of inadequacy – Residual discretion survives abolition of double jeopardy: R v Karazisis [2010] VSCA 350 – Crown not permitted on appeal to depart from position adopted at first instance in absence of exceptional circumstances – Delay in prosecution of respondent – Exercise of re-sentencing discretion would terminate respondent’s present liberty – Refusal to intervene despite finding of manifest inadequacy.
SENTENCING – Crimes Act 1914 (Cth) – Relationship between head sentence and recognizance release order – Period before release on recognizance must reflect minimum period of imprisonment which justice requires.
SENTENCING – White collar crime – Significant tax evasion – Serious crime – Difficult to detect – General deterrence particularly important – Good character of lesser importance – Benefit obtained of limited importance – Imprisonment generally only sentencing option absent powerful mitigating circumstances.
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Appearances:
Counsel
Solicitors
For the Applicant
Mr N Robinson SC and Mr N Adams
Commonwealth Director of Public Prosecutions
For the Respondent
Mr O P Holdenson QC and Ms P Murphy
Sparke Helmore Lawyers
WARREN CJ
REDLICH JA
ROSS AJA:
Introduction
1 On 29 May 2009, the respondent pleaded not guilty in the Supreme Court to two counts of defrauding the…
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.
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Details
AGLC
DPP (Cth) v Gregory [2011] VSCA 145
Case
[2011] VSCA 145
Decision Date
CaseChat Overview and Summary
The case of the Director of Public Prosecutions (Commonwealth) versus Gregory came before the court on appeal against the sentence given to the respondent for conspiracy to dishonestly cause a risk of loss to the Commonwealth. The primary legal issue the court had to address was whether the sentence of two years' imprisonment with release after twelve months on giving security of $5,000 to be of good behaviour for twelve months was inadequate given the nature of the offence. The court also examined whether the sentencing judge erred in various respects when determining the sentence.
In considering the appeal, the court found that the sentencing judge had made several errors in the sentencing process. These included using the sentence of a co-offender as a starting point, failing to appropriately consider the different charges and maximum penalties, and incorrectly attaching weight to the relative benefits obtained by the respondent and co-offender. Despite finding the sentence inadequate, the court concluded that it would not intervene, citing the delay in prosecuting the respondent and the lack of exceptional circumstances warranting departure from the initial position.
The court further clarified that the period before release on recognizance should reflect the minimum period of imprisonment that justice requires. It also noted the importance of general deterrence in cases of significant tax evasion, emphasizing that imprisonment is generally the only option absent powerful mitigating circumstances. Given the findings, the appeal was ultimately dismissed.
The court did not make any changes to the original sentence. The respondent's sentence of two years' imprisonment with release after twelve months on giving security of $5,000 to be of good behaviour for twelve months remained in place, and the appeal was dismissed.