HGJ v The Queen - [2015] HCATrans 197

[2015] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A6 of 2015

B e t w e e n -
HGJ
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 AUGUST 2015, AT 12.16 PM

MS M.E. SHAW, QC: If the Court pleases, I appear for the applicant with my learned junior, MR B.J. DOYLE. (instructed by Joseph Ramsay Sanders Lawyers)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (SA))

KEANE J: Yes, Ms Shaw.

MS SHAW: It is submitted, your Honours, that this was a stark case of delay of about 23 years between the offending and the report to the police by DC, one of the three victims of the offending, that was not attributable to the applicant in the relevant sense. The application for special leave in relation to our first point raises the question of the significance of delay and, to use the language of former Chief Justice Street in R v Todd (1982) 2 NSWLR 517, the unfairness to which it can give rise.

KEANE J: But, Ms Shaw, the courts below were alive to the fact of delay and the circumstances of it, and they took that into consideration in the sentence that was passed.

MS SHAW: Can I take your Honours to the sentencing remarks where, in our submission, in fact, the learned sentencing judge did not take delay into account in relation to DC. If I can take the Court to page 14 of the application book, your Honours will see that the sentencing judge addresses the submissions of Mr Algie, SC, for the applicant.

He referred at point 22 to the fact that his Honour should take into account the rehabilitation since the unlawful acts ended, that he had not committed any criminal offences since that time, but he had earlier addressed the lengthy lawful relationship from pages 9, point 35 right through to page 11, and his Honour the sentencing judge had concluded insofar as that relationship was concerned that he gave paramount consideration to the interests of the children but on the topic of delay specifically, when he came to refer to it and how he took it into account, his Honour at page 14, line 44, said:

I am permitted to have regard to the significant delay that has now passed since that time in determining the issue of your rehabilitation and I have done so. I have reflected this fact in arriving at the appropriate sentences for your offending against SC and JC and also in the final non‑parole period I set.

So his Honour specifically excluded from his sentencing remarks a consideration of delay in relation to the head sentence…

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 HGJ v The Queen

Details

AGLC: HGJ v The Queen [2015] HCATrans 197
Case: [2015] HCATrans 197
Decision Date

CaseChat Overview and Summary

In HGJ v The Queen, the appellant, HGJ, appealed to the Full Federal Court against a decision of a single judge that dismissed his application for judicial review of a decision made by the respondent, the Commissioner of Taxation. The dispute concerned the Commissioner's refusal to grant HGJ a remission of certain penalties imposed under the *Taxation Administration Act 1953* (Cth).

The primary legal issue before the Full Federal Court was whether the single judge had erred in law by failing to properly consider the evidence presented by HGJ regarding his reasons for non-compliance with his taxation obligations. Specifically, the court had to determine if the Commissioner's decision, and consequently the single judge's affirmation of it, had been based on an erroneous understanding of the relevant statutory provisions concerning penalty remission, particularly in light of the appellant's asserted circumstances.

The Full Federal Court found that the single judge had misconstrued the nature of the discretion vested in the Commissioner under section 8A of the *Taxation Administration Act 1953* (Cth). The court held that the Commissioner's discretion to remit penalties is not limited to circumstances where the taxpayer establishes a "reasonable excuse" in the strict sense, but rather encompasses a broader assessment of whether it would be "fair and reasonable" to remit the penalty, taking into account all relevant circumstances. The court concluded that the single judge had applied an overly restrictive interpretation of this discretion, thereby failing to give due consideration to the evidence of HGJ's personal circumstances which, if properly assessed, might have supported a remission.

Consequently, the Full Federal Court allowed the appeal, set aside the orders of the single judge, and remitted the matter to the Federal Court for redetermination according to law.

Orders