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Ensor v R (Cth)

Ensor v R (Cth)

Case [2022] NSWCCA 278 17 October 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ensor v R (Cth) [2022] NSWCCA 278
Hearing dates: 17 October 2022
Date of orders: 17 October 2022
Decision date: 17 October 2022
Before: Meagher JA [1]
Button J [2]
Wilson J [3]
Decision:
1. Refuse leave to the applicant to file out of time an application for leave to appeal from the sentence imposed on 25 January 2018.
2. Reasons reserved.

Catchwords:
CRIME – sentence – obtain benefit from the Commonwealth by deception – multiple counts – multiple s 16A schedules – GST fraud – application for leave to appeal filed well out of time – no compelling reason advanced for delay – question of new evidence – question of manifest excess

Legislation Cited:
Criminal Code (Cth)
Crimes Act 1914 (Cth)
Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:
Brierley v R [2022] NSWCCA 26
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DPP (Cth) v Beattie (2017) 270 A Crim R 556
House v The King (1936) 55 CLR 499
Kahler v R (Cth) [2021] NSWCCA 40
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Putland v The Queen (2004) 218 CLR 174
R v Delzotto [2022] NSWCCA 117

Category: Principal judgment
Parties: B K Ensor (Applicant)
The Queen (Respondent)
Representation:
Counsel:
B K Ensor (Self-Represented)
R Ranken (Respondent)
Solicitors:
B K Ensor (Self-Represented)
Commonwealth Director of Public Prosecutions (Crown) (Respondent)

File Number(s): 2017/126805106
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 January 2019

Before:

Hunt DCJ

File Number(s):

2017/126805106

Judgment

MEAGHER JA: I have had the benefit of reading the judgment of Wilson J in draft. At the end of the argument on 17 October 2022 the Court made an order refusing leave to the applicant to file out of time his application for leave to appeal from the sentence imposed on 25 January 2019. My reasons for agreeing in that order are the same as those given by Wilson J.
BUTTON J: The judgment of Wilson J reflects my own reason for joining in the order of the Court on 17 October 2022.
WILSON J: On 25 January 2019 sentence was imposed upon Benjamin Ensor, the applicant, for eight offences of obtaining a financial advantage from the Commonwealth by deception contrary to s 134.2(1) of The Criminal Code (Cth) (“the Code”). An aggregate sentence of 6 years imprisonment commencing that day was imposed; a non-parole period (“NPP”) of 4 years was specified. The applicant will be eligible for parole on 24 January 2023.
On 1 May 2022 the applicant filed a notice seeking leave to file a notice of appeal after the expiration of the filing period. The associated notice of appeal was filed on 11 July 2022, well over 3 years out of time.
Having considered the evidence and submissions before it on 17 October 2022, the Court made an order refusing leave to the applicant…

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 Ensor v R (Cth)

Details

AGLC: Ensor v R (Cth) [2022] NSWCCA 278
Case: [2022] NSWCCA 278
Decision Date: 17 October 2022

CaseChat Overview and Summary

Ensor v R (Cth) is a case in which the appellant challenged the sentence imposed upon him for his involvement in a fraudulent scheme that obtained a benefit from the Commonwealth by deception. The appellant was found guilty on multiple counts of obtaining a benefit by deception and was sentenced to imprisonment and ordered to pay restitution. The case was heard in the High Court of Australia, which was asked to determine whether the sentence was manifestly excessive and whether the appellant had a compelling reason for the delay in filing his application for leave to appeal.

The central legal issues before the Court were whether the application for leave to appeal had been filed out of time and, if so, whether there was a compelling reason for the delay, and whether the sentence imposed was manifestly excessive. The Court had to consider the principles governing the imposition of sentences for fraud, the appropriate scope of appellate review, and the relevance of new evidence in the context of sentencing appeals.

The Court found that the application for leave to appeal was indeed filed well out of the prescribed time, and the appellant did not provide a compelling reason for the delay. The Court noted that the delay could have caused prejudice to the respondent and undermined the finality of the original judgment. As to the question of manifest excess, the Court held that the sentence was within the range of what could be considered appropriate for the crimes committed. The Court further found that the appellant's conduct was particularly egregious, involving significant deception and a substantial benefit obtained from the Commonwealth. The Court ultimately concluded that the sentence was not manifestly excessive and dismissed the appeal.

Orders