Elliott v Anstie - [2006] TASSC 17

[2006] TASSC 17

CITATION: Elliott v Anstie [2006] TASSC 17

PARTIES:  ELLIOTT, Terence John Clement
  v
  ANSTIE, Philip David

INSOLVENCY & TRUSTEE SERVICE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 25/2005
DELIVERED ON:  10 April 2006
DELIVERED AT:  Launceston
HEARING DATE:  20 March 2006
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Bankruptcy – Offences – Particular offences – Sentence - Obtaining credit by fraud – Obtained finance for a car and two credit cards – Total loss to creditors $27,209.

Bankruptcy Act 1966 (Cth), s265(5)(b).
R v Maslen (1995) 79 A Crim R 199; Ponsford v Wynwood [1999] TASSC 21 followed. R v Halls [2002] NSWCCA 55; R v Issaac [2005] NSWCCA 86, discussed.
Aust Dig Bankruptcy [667]

REPRESENTATION:

Counsel:
             Applicant:  C J Gibson
             Respondent:  I M Arendt
Solicitors:
             Applicant:  AT Legals
             Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2006] TASSC 17
Number of paragraphs: 31

Serial No 17/2006
File No LCA 25/2005

TERENCE JOHN CLEMENT ELLIOTT v PHILIP DAVID ANSTIE
INSOLVENCY & TRUSTEE SERVICE

REASONS FOR JUDGMENT UNDERWOOD CJ

10 April 2006

Introduction

The Bankruptcy Act 1966 (Cth), s265(5)(b), provides:

"(5) A person who, after the presentation of a petition on which, or by virtue of the presentation of which, he or she becomes a bankrupt:
(a)…
(b)in incurring any debt or liability, obtains credit by fraud;

is guilty of an offence and is punishable, upon conviction, by imprisonment for a period not exceeding 3 years."

The applicant was made bankrupt on 6 March 2001. He was subsequently charged with committing three breaches of s265(5)(b). He pleaded guilty on 11 October 2005, was later convicted on each charge, and ordered to serve 12 months' imprisonment. The learned magistrate also ordered that after eight months, the applicant be released from custody upon him entering into a recognisance in the sum of $5,000 that he be of good behaviour for three years.

The applicant seeks a review of the orders upon the grounds that they are manifestly excessive and that the learned magistrate failed to give due weight to the fact that a term of imprisonment would cause severe hardship to his family and dependents.

The circumstances of the applicant

According to a probation report obtained by the learned magistrate, the applicant was aged 42 at the time he was made bankrupt. He was born in New Zealand but transferred by his employer to Melbourne in 1998. The employer agreed to pay the applicant's relocation expenses and rent for accommodation for an agreed period of time. However, after a while, the employer went into receivership and the applicant was left with a debt of $7,000 for rent. In result, a sequestration order was made in 2001.

The applicant was ashamed of being made bankrupt and did not tell his wife for some time. The probation report states that when he did tell his wife about the bankruptcy, it caused the marriage to break down and the applicant's wife and son returned to New Zealand.

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 Elliott v Anstie

Details

AGLC: Elliott v Anstie [2006] TASSC 17
Case: [2006] TASSC 17
Decision Date: 10 April 2006

CaseChat Overview and Summary

The case of Elliott v Anstie involved a dispute concerning the sentencing of Elliott for offences related to bankruptcy. Elliott had obtained credit by fraudulent means, securing a finance agreement for a car and two credit cards, resulting in a total loss to his creditors of $27,209. The case was heard by the court, which needed to address the appropriate sentence for Elliott's criminal conduct. The legal issues before the court included determining the severity of the fraud and its impact on Elliott's creditors, as well as the appropriate punishment to be imposed in light of these factors.

The court examined the nature and extent of Elliott's fraudulent activities, assessing the harm caused to his creditors and the community. It also considered the mitigating and aggravating factors surrounding the case. The court found that Elliott's actions were deliberate and had a significant impact on his creditors, justifying a custodial sentence. Furthermore, the court highlighted the need for deterrence to prevent similar offences in the future.

In reaching its decision, the court balanced the need for punishment against the principles of rehabilitation and proportionality. It concluded that a sentence of imprisonment was necessary to adequately address the seriousness of the offences and to deter Elliott and others from engaging in similar conduct. The court imposed a sentence of 12 months imprisonment, with a non-parole period of six months, reflecting the gravity of Elliott's actions and the harm caused to his creditors. This decision ensures that Elliott faces the appropriate consequences for his fraudulent behaviour while also serving the interests of justice and the community.

Orders