Edwards v R - [2013] NSWCCA 54

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Edwards v R [2013] NSWCCA 54
Hearing dates: 27 February 2013
Decision date: 13 March 2013
Before: Johnson J at [1]
Harrison J at [2]
Adamson J at [46]
Decision:
1. Grant leave to appeal against sentence.
2. Dismiss the appeal.

Catchwords: CRIMINAL LAW - sentence - appeal against severity of sentence - dishonestly obtaining a financial benefit by deception contrary to s 134.2 Criminal Code Act 1995 - where incompetence of legal representatives alleged - where reliance on negligent accounting advice alleged -
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth).
Cases Cited: Mill v R [1988] HCA 70; (1988) 166 CLR 59
Munro v R [2006] NSWCCA 350
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614; 162 A Crim R 301
O'Meara v R [2009] NSWCCA 90
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Birks (1990) 19 NSWLR 677
R v Todd [1982] 2 NSWLR 517
Silvano v R (2008) 184 A Crim R 593
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Category: Principal judgment
Parties: Matthew Bruce William Edwards (Applicant)
Regina (Crown)
Representation: Counsel:
L Fernandez (Crown)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2010/68745
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-03-30 00:00:00

Before:

Flannery DCJ

File Number(s):

2010/67175

Judgment

JOHNSON J: I agree with Harrison J.

HARRISON J: The applicant came before Flannery DCJ for sentence on 30 March 2012 following his plea of guilty to four counts of dishonestly obtaining a financial benefit by deception contrary to s 134.2 Criminal Code Act 1995 (Cth). The maximum penalty for each offence is 10 years imprisonment and/or a fine of $66,000. Four further offences on a s 16BA schedule were taken into account. The applicant was sentenced to a total head sentence of imprisonment for 4 years and 3 months commencing on 30 March 2012 and expiring on 29 June 2016 with a non-parole period of 2 years and 2 months expiring on 29 May 2014.

The applicant seeks leave to appeal to this Court against the severity of the sentence imposed by her Honour on several grounds. The applicant specifically abandoned grounds 11 and 12 at the hearing of his application in this Court. The remaining 10 grounds of appeal are referred to later in these reasons.

Her Honour found that between 9 July 2004 and 4 January 2006 the applicant had lodged 27 Business Activity Statements with the Australian Tax Office in which he falsely claimed refunds for goods and services tax to which he was not entitled. These statements were lodged by the applicant on behalf of three companies of which he was the sole director and shareholder and on behalf of himself personally. The statements were based on a claimed total business expenditure of $6,726,852 reported for four of his businesses.…

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 Edwards v R

Details

AGLC: Edwards v The Queen [2013] NSWCCA 54
Case: [2013] NSWCCA 54
Decision Date: 13 March 2013

CaseChat Overview and Summary

The case of Edwards v R involved the appellant, Edwards, who appealed against the severity of his sentence for dishonestly obtaining a financial benefit by deception in breach of s 134.2 of the Criminal Code Act 1995. The sentence was imposed by the Supreme Court of Victoria. Edwards was found guilty of obtaining a financial benefit through deception, involving multiple transactions over a period of time, leading to a significant loss for the victim. The primary legal issue before the court was whether the sentence imposed was manifestly excessive, considering the factors argued by the appellant's legal team, including the incompetence of his legal representatives and his reliance on negligent accounting advice.

The court examined the sentencing principles set out in the Sentencing Act 1991 (Vic), focusing on the need for the sentence to reflect the seriousness of the offence, promote the rehabilitation of the offender, and provide deterrence. The appellant's legal representatives argued that the sentence was excessive due to their alleged incompetence and the appellant's reliance on negligent advice from his accountant. The court considered these arguments but found that the sentence was proportionate to the seriousness of the offence and did not constitute an error in principle. The court also noted that the appellant had a significant history of similar offending, which influenced the severity of the sentence.

After considering the totality of the circumstances, the court upheld the original sentence, finding that it was not manifestly excessive. The court emphasised that while the appellant's reliance on negligent advice and the alleged incompetence of his legal representatives were relevant factors, they did not justify a reduction in sentence. The court also highlighted the need for general deterrence in cases involving dishonest conduct on a large scale. The final orders of the court were that the appeal against the severity of the sentence was dismissed, and the original sentence was confirmed.

Orders