Gomes v Regina - [2008] NSWCCA 142

New South Wales
Court of Criminal Appeal

CITATION: GOMES v Regina [2008] NSWCCA 142

HEARING DATE(S): 7 December 2007

JUDGMENT DATE:
24 June 2008

JUDGMENT OF: Tobias JA at 1; Hulme J at 2; Hidden J at 53

DECISION: Leave to appeal granted
Appeal dismissed

PARTIES: Regina
Alfredo GOMES
Jose GOMES

FILE NUMBER(S): CCA 2007/2906; 2007/2907

COUNSEL: Crown: Mr M Barr
Applicants: Mr P Byrne SC

SOLICITORS: Crown: S Kavanagh
Applicants: P Hodges

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0929
06/11/0932

LOWER COURT JUDICIAL OFFICER: Mahoney ADJ

- 1 -

2007/2906
2007/2907

TOBIAS JA
HULME J
HIDDEN J

Tuesday, 24 June 2008

Alfredo Julio GOMES v R

Jose Manuel GOMES v R

Judgment

1 TOBIAS AJA: I agree with Hulme J.

2 HULME J: Each of the Applicants for leave to appeal in the above matters pleaded guilty to 12 counts, the first of which was in terms that they:-

“Being directors of a body corporate, namely Smartpak Australia Pty Ltd, did defraud Scottish Pacific Business Finance Pty Ltd, by factoring false invoice number 46155 in the name of Wolf Industries Pty Ltd for the amount of $55,065.12 to Scottish Pacific Business Finance Pty Ltd.

3 The other 11 counts took a similar form although the names on the invoices were commonly different and the amounts varied between about $12,000 and $46,000. The total of the amounts stated in the 12 counts was $378,144.72.

4 The offences arose under Section 176A of the Crimes Act and each rendered the Applicant liable to imprisonment for a period of 10 years.

5 The Applicants asked that a further 62 similar offences be taken into account. The total of the invoice amounts, the subject of the 12 counts and the 62 further matters was $2,044,664.72. The smallest amount involved in any offence was just over $7,000 and the largest just over $55,000. The 74 offences occurred over a period from November 2002 to June 2003. It would seem that the 74 offences were intended to be representative charges given that the statement of Agreed Facts placed before Mahoney DCJ indicated that there had been over 400 false invoices factored between November 2002 and October 2003. However, as the balance of these invoices were not the subject of charges, the Applicants could not be punished for any criminality involved in the use of these further invoices.

6 The sentences his Honour’s remarks on sentence indicated he intended to impose were as follows:- AB 28-9, 65

Count	Commencing Date	Non-parole period or fixed term	Full Term
6, 11	29.3.07	16 months fixed term
4, 5, 7, 9	29.09.07	69 weeks (about 17 ¼ months)	23 months
1, 2, 3, 8, 10 & 12	8.3.08	24 months	47 months

7 (In fact his Honour specified that the non-parole periods of the sentences imposed on counts 4, 5, 7 and 9 should end on 25 July 2008.)

8 Thus the effective sentence included a non-parole period 3 weeks short of 3 years and…

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 Gomes v Regina

Details

AGLC: Gomes v Regina [2008] NSWCCA 142
Case: [2008] NSWCCA 142
Decision Date: 24 June 2008

CaseChat Overview and Summary

The case of Gomes v Regina involves the applicants who pleaded guilty to 12 counts of defrauding parties by issuing false invoices. They sought leave to appeal against their sentences. The matter was heard in the High Court of Australia. The applicants argued that the sentences imposed by the lower court were excessive and that the Court should intervene to reduce them. The appeal hinged on whether the original sentencing was so disproportionate as to warrant judicial intervention.

The primary legal issue before the Court was whether the sentences imposed on the applicants were manifestly excessive. The applicants contended that the sentences were disproportionate given the nature of the offences and the applicants' background, which included no prior convictions. They argued that the lower court had not adequately considered all mitigating factors. The Crown, on the other hand, maintained that the sentences were appropriate given the significant financial loss caused by the applicants' actions.

The Court considered the principles of sentencing, particularly the need for sentences to reflect the seriousness of the offence and to achieve the purposes of punishment, deterrence, and rehabilitation. The Court emphasised that the primary responsibility for sentencing lay with the lower courts, and that the appellate courts should only intervene where the sentence was manifestly excessive. After carefully reviewing the sentencing remarks and the circumstances of the case, the Court found that the sentences imposed were within the range of reasonable outcomes. The Court concluded that the original sentences did not demonstrate a failure to apply the relevant legal principles or an error of law that warranted appellate intervention.

Orders