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Dwayhi v R; Bechara v R

Dwayhi v R; Bechara v R

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Case Copied 5 April 2011 57 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dwayhi v R; Bechara v R [2011] NSWCCA 67
Hearing dates: 21 February 2011
Decision date: 05 April 2011
Before: Whealy JA at 1
Hidden J at 2
Johnson J at 3
Decision:
With respect to the Applicant Fadhi Dwayhi, leave to appeal is granted, but the appeal is dismissed.
With respect to the Applicant Badoui Bechara:
(a) leave to appeal is granted;
(b) the sentences imposed in the District Court on 21 August 2009 are quashed;
(c) in their place, Badoui Bechara is sentenced as follows:
(i) on the first count, sentenced to imprisonment for three years commencing on 21 August 2009 and expiring on 20 August 2012;
(ii) on the second count, sentenced to imprisonment for two years commencing on 21 August 2009 and expiring on 20 August 2011;
(iii) pursuant to s.19AC Crimes Act 1914 (Cth) , Badoui Bechara is to be released on 20 August 2011 on a recognizance release order, himself the sum of $1,000.00, to be of good behaviour for the balance of the sentence;
(iv) confirm the reparation order made by the District Court under s.21B Crimes Act 1914 (Cth) in the sum of $101,632.00 in favour of the Commissioner of Taxation.

Catchwords: CRIMINAL LAW - sentence - obtain benefit by deception under s.134.2(1) Criminal Code 1995 (Cth) - lodgement of false Business Activity Statements with ATO to obtain GST refund - Dwayhi an ATO verification officer acting corruptly to process sham returns - Bechara a businessman who obtained benefit - Kertebani another businessman who obtained benefit - three offenders sentenced by different judges - Dwayhi and Bechara claim legitimate sense of grievance by reference to Kertebani's sentence - different charges against each offender - different roles of offenders - gross breach of trust by Dwayhi as ATO employee - principle of parity, proportionality or relativity between sentences of offenders involved in same criminal enterprise - objective test of legitimate grievance - requirement for marked and unjustifiable disparity - strong desirability that related offenders be sentenced by same judge - necessity for courts and prosecutorial bodies to actively promote this practice - Dwayhi not establish legitimate sense of grievance - Bechara does - error established - Bechara resentenced
Legislation Cited: Criminal Code 1995 (Cth)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Cases Cited: R v Kertebani; Kertebani v R [2010] NSWCCA 221
R v Wei Pan [2005] NSWCCA 114
Lewins v R [2007] NSWCCA 189
Nguyen v R [2008] NSWCCA 308
Gurney v R; Willetts v R [2011] NSWCCA 48
Pavicevic v R [2010] ACTCA 25
England v R; Phanith v R [2009] NSWCCA 274
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Li [2005] NSWCCA 154
Jimmy v R [2010] NSWCCA 60; 240 FLR 27
R v Wing Cheong Li [2010] NSWCCA 125
Lowe v The Queen [1984] HCA 46; 154 CLR 606
R v Mercieca [2004] VSCA 170
R v Rodden

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

Case: [2011] NSWCCA 67
Decision Date: 05 April 2011

CaseChat Overview and Summary

The cases of Dwayhi v R and Bechara v R involved appeals against sentences imposed on Dwayhi, an Australian Taxation Office (ATO) officer, and Bechara, a businessman, who were convicted of obtaining a benefit by deception under section 134.2(1) of the Criminal Code 1995 (Cth). Both Dwayhi and Bechara were involved in a scheme where false Business Activity Statements were lodged with the ATO to obtain a Goods and Services Tax (GST) refund. Dwayhi, who was an ATO verification officer, acted corruptly by processing these sham returns. Bechara, along with another businessman, Kertebani, received benefits from this scheme. The three offenders were sentenced by different judges, leading Dwayhi and Bechara to argue that the disparity in their sentences indicated a legitimate sense of grievance, particularly in light of Kertebani's sentence.

The legal issues before the court included whether the principle of parity, proportionality, or relativity applied between the sentences of offenders involved in the same criminal enterprise, and whether there was a legitimate sense of grievance by reference to the sentence of another offender. The court also considered the objective test for a legitimate sense of grievance, requiring a marked and unjustifiable disparity between sentences. Additionally, the desirability of related offenders being sentenced by the same judge was examined, along with the need for courts and prosecutorial bodies to actively promote this practice.

The court held that Dwayhi did not establish a legitimate sense of grievance by reference to Kertebani's sentence, as their roles and the nature of their offences were different. However, Bechara did establish a legitimate sense of grievance in comparison to Kertebani's sentence. The court found an error in the sentencing of Bechara, and as a result, he was resentenced. The court emphasised the importance of consistency and fairness in sentencing related offenders, highlighting the strong desirability that such offenders be sentenced by the same judge to ensure parity and proportionality.

Orders