Hughes v R - [2011] NSWCCA 226

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Mark Andrew Hughes v R
Medium Neutral Citation:	[2011] NSWCCA 226
Hearing Date(s):	5 October 2011
Decision Date:	5 October 2011
Before:	Allsop P Latham J Rothman J
Decision:	Leave to appeal granted Appeal dismissed
Catchwords:	CRIMINAL LAW – sentence – obtain financial advantage by deception – Criminal Code 1995 (Cth) – lodgement of false business activity statements – whether sentences should have been imposed concurrently – sentences reflect criminality inherent in course of offending – sentencing judge had regard to applicant’s medical condition – hardship to offender’s family not so extreme as to operate in mitigation of sentence – no miscarriage of sentencing judge’s discretion
Legislation Cited:	Crimes Act 1914
Category:	Principal judgment
Parties:	Mark Andrew Hughes - Applicant Regina – Crown Respondent
Representation:	Counsel: Self-represented - Applicant S McNaughton – Crown Respondent Solicitors: Self – represented - Respondent Commonwealth Director of Public Prosecutions – Crown Respondent
File Number(s):	2009/1232
Decision under appeal:
Court or Tribunal:	District Court of NSW
Date of Decision:	20/08/2010
Before:	PI Lakatos SC DCJ
File Number(s):	2009/1232

JUDGMENT

ALLSOP P: I will ask Latham J to deliver the first judgment.
LATHAM J: The applicant seeks leave to appeal against a sentence imposed by Lakatos SC DCJ on 20 August 2010 in respect of 7 offences under the Criminal Code 1995 (Commonwealth), namely obtaining a financial advantage by deception (counts 1 to 4) and attempting to obtain a financial advantage by deception (counts 5 to 7). The offences each carry a maximum term of imprisonment of 10 years.
On each of counts 1 and 5 the applicant received a fixed term of one year imprisonment to date from 20 May 2010. On count 7 the applicant received a fixed term of one year imprisonment to date from 20 July 2010. On count 6 the applicant received a one-year fixed term of imprisonment to date from 20 September 2010. On count 3 and 4 the applicant received a sentence of two years fixed term imprisonment to date from 20 September 2010 and on count 2 the applicant received a term of imprisonment of 4 - 3 - years to date from 20 November 2010, including a non-parole period of two years and six months. The aggregate sentence was thus one of 4 years and 6 months imprisonment with an aggregate non parole period of 3 years. The applicant is eligible for release on 20 May 2013.
The applicant appears for himself on the hearing of the appeal. The grounds of appeal that were filed are as follows :-
1 to get the sentences to run concurrently
2 count 3 versus count 2 sentence inconsistencies
3 inconsistent sentences on counts 1 and 5 versus count 4
4 medical conditions
5 caring for my mother
The written submissions filed by the applicant explain the first ground in terms of the anticipated outcome of this appeal, namely that the applicant seeks to serve his remaining sentences concurrently as…

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 Hughes v R

Details

AGLC: Mark Andrew Hughes v The Queen [2011] NSWCCA 226
Case: [2011] NSWCCA 226
Decision Date: 5 October 2011

CaseChat Overview and Summary

In the case of Hughes v R, the respondent, Hughes, was convicted for engaging in a course of conduct involving the lodgement of false business activity statements with the intention of obtaining a financial advantage by deception, contrary to section 134.1 of the Criminal Code 1995 (Cth). The case was heard and determined by the High Court of Australia. Hughes appealed against his sentence, arguing that the sentences imposed by the sentencing judge should have been ordered to run concurrently and that the sentencing judge did not sufficiently take into account his medical condition and the hardship that his imprisonment would cause his family.

The primary legal issue before the court was whether the sentences imposed by the sentencing judge should have been ordered to run concurrently, and whether the sentencing judge had erred in failing to sufficiently take into account Hughes' medical condition and the hardship that his imprisonment would cause his family. The court considered whether the sentencing judge's approach to sentencing was flawed, and whether it led to an outcome that was manifestly unjust or disproportionate to the offending.

The court found that the sentencing judge had not erred in ordering that the sentences run consecutively. The court held that the sentencing judge had appropriately considered the principles of totality and proportionality in determining the sentence. The court found that the sentences reflected the criminality inherent in Hughes' course of offending, and that the sentencing judge had regard to Hughes' medical condition and the hardship to his family, but concluded that the hardship was not so extreme as to operate in mitigation of sentence. The court found that the sentences imposed by the sentencing judge were not manifestly unjust or disproportionate to the offending.

The High Court dismissed the appeal and affirmed the sentences imposed by the sentencing judge. The court held that the sentencing judge had not erred in ordering that the sentences run consecutively, and that the sentences reflected the criminality inherent in Hughes' course of offending. The court found that the sentencing judge had appropriately considered Hughes' medical condition and the hardship to his family, but concluded that the hardship was not so extreme as to operate in mitigation of sentence. The court held that the sentences imposed by the sentencing judge were not manifestly unjust or disproportionate to the offending.

Orders