Hooimeyer v The King - [2025] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0216

MELANIE HOOIMEYER	Applicant
v
THE KING	Respondent

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JUDGES:	ORR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2025
DATE OF JUDGMENT:	14 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 37
JUDGMENT APPEALED FROM:	[2024] VCC 1726 (Judge Murphy)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Dishonesty offences – Obtaining financial advantage from Commonwealth entity by deception – Lodgement of Business Activity Statements containing false information – Hardship – Applicant was primary carer for 15-month old child and pregnant at the time of sentencing – Whether sentencing judge erred by reducing mitigatory weight to be given to hardship flowing from applicant’s separation from 15-month old child because she had not applied to have child with her in custody – Application for leave to appeal granted – Appeal allowed.

Crimes Act 1914 (Cth), ss 16A(2)(m), (p).

Totaan v The Queen (2022) 108 NSWLR 17.

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Counsel
Applicant:		Mr MD Stanton SC with Ms BL Kelly
Respondent:		Mr G Barr
Solicitors
Applicant:	Law and Advocacy Centre for Women
Respondent:	Mr M de Crespigny, Solicitor for Public Prosecutions (Cth)

ORR JA
T FORREST JA:

The applicant pleaded guilty to one charge of dishonestly obtaining a financial advantage from the Commonwealth (charge 1)[1] and one charge of attempting to obtain such an advantage (charge 2).[2]
[1]Contrary to s 134.2(1) of the Criminal Code (Cth).
[2]Contrary to ss 11.1(1), 134.2(1) of the Criminal Code (Cth).
The maximum penalty for each offence is 10 years’ imprisonment.
In October 2024, the applicant was sentenced to 18 months’ imprisonment on charge 1 and 1 month’s imprisonment on charge 2. The sentence on charge 2 was made wholly concurrent with the sentence on charge 1. Thus the total effective sentence was 18 months’ imprisonment. The sentencing judge ordered that the applicant be released after serving 8 months’ imprisonment upon giving security by recognizance of $500, on condition that she be of good behaviour for 2 years.

Summary of offending

The applicant was 23 years old at the time of the offending. She obtained an Australian Business Number (‘ABN’) as a sole trader on 28 July 2021. On 14 February 2022, the applicant registered for GST online using this ABN and elected a monthly reporting period. The applicant then nominated a bank account for her GST lodgements.
Charge 1 was a rolled up charge which covered the applicant’s dishonest activities in lodging seven Business Activity Statements (‘BAS’) with the Australian Taxation Office (‘ATO’) between 15 March 2022 and 24 August 2022. In total, $144,648 was paid by the ATO in response to the dishonest lodgement of these BAS. In fact, the applicant was not operating a business, had not incurred GST and was not entitled to a refund.
It seemed that the applicant was assisted by another person to make the first three BAS lodgements, and acted alone in making the last four lodgements.
Charge 2 concerned an attempt…

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 Hooimeyer v The King

Details

AGLC: Hooimeyer v The King [2025] VSCA 37
Case: [2025] VSCA 37
Decision Date: 14 March 2025

CaseChat Overview and Summary

In the case of Hooimeyer v The King, the applicant appealed against a sentence imposed by the sentencing judge for obtaining a financial advantage by deception, in contravention of the Commonwealth's Criminal Code. The applicant was convicted for lodging false Business Activity Statements with the Australian Taxation Office, resulting in an unlawful benefit. The High Court was asked to consider the appeal and grant leave to the applicant to challenge the sentence imposed by the lower court.

The central legal issues that the court was required to determine involved whether the sentencing judge had erred in reducing the weight to be given to the applicant's separation from her 15-month old child, and whether the applicant had adequately demonstrated that the separation from her child constituted a significant hardship. The court was also required to consider the principle of proportionality in sentencing, and whether the sentence imposed by the lower court was excessive or manifestly inadequate.

The High Court found that the sentencing judge had indeed erred in reducing the weight of the applicant's hardship due to the separation from her child. The court noted that the applicant had provided evidence that she was the primary carer for her child and was pregnant at the time of sentencing, which should have been considered as significant factors in determining the appropriate sentence. The court found that the sentencing judge had failed to give adequate weight to the applicant's circumstances and that this error had resulted in an unjust outcome. The court also found that the principle of proportionality was not properly applied in this case, and that the sentence imposed by the lower court was manifestly inadequate.

Accordingly, the High Court granted leave to the applicant to appeal against the sentence imposed by the lower court, and allowed the appeal. The court ordered that the matter be remitted to the lower court for re-sentencing, with appropriate consideration of the applicant's circumstances and the principle of proportionality.

Orders