Kabir v R

Case [2020] NSWCCA 139


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Kabir v R [2020] NSWCCA 139
Hearing dates: 29 May 2020
Date of orders: 08 July 2020
Decision date: 08 July 2020
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Wilson J at [96]
Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

APPEAL – sentence appeal – where appellant obtained a financial advantage by deception from a Commonwealth entity – where bank accounts opened for tax refunds from lodgement of false income tax returns – where appellant dealt with proceeds of crime – where additional offence to be taken into account on s 16BA schedule – whether appellant asked whether he wished the additional offence to be taken into account – whether denial of procedural fairness – whether a particular person to be considered victim of offending – where term victim to be construed broadly – whether sentencing judge took relevant matters into account – whether error in finding appellant was not remorseful

Legislation Cited:

Crimes Act 1914 (Cth), ss 16, 16AAA, 16A(2), 16BA(1),(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 33

Criminal Code 1995 (Cth), ss 134.2(1), 135.1(5), 400.5(1)

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257

CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64

Ex parte Gleeson [1907] VLR 368

Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12

House v The King (1936) 55 CLR 499; [1936] HCA 40

HT v The Queen [2019] HCA 40; 93 ALJR 1307

Jung v R [2017] NSWCCA 24

Lamb v Moss (1983) 49 ALR 533

LS v R [2020] NSWCCA 27

Milne v R [2012] NSWCCA 24; 219 A Crim R 237

Newman v R [2018] NSWCCA 208

Newmarch v Atkinson (1918) 25 CLR 381; [1918] HCA 53

O’Neil-Shaw v Regina [2010] NSWCCA 42

Purves v R [2019] NSWCCA 227

R v Betka [2020] NSWSC 77

R v Brandt [2004] NSWCCA 3

R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505

R v Capper [2000] NSWCCA 63

R v Felton [2002] NSWCCA 443; 135 A Crim R 328

R v Hinton [2002] NSWCCA 405; 134 A Crim R 286

R v Irusta [2000] NSWCCA 391; 117 A Crim R 6

R v Kennedy [2000] NSWCCA 527

R v Khan (No 11) [2019] NSWSC 594

R v Nahlous [2013] NSWCCA 90; 228 A Crim R 503

R v Qutami [2001] NSWCCA 353; 127 A Crim R 369

R v Togias [2001] NSWCCA 522; 127 A Crim R 23

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214…

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AGLC
Kabir v The Queen [2020] NSWCCA 139
Case
[2020] NSWCCA 139
Decision Date

CaseChat Overview and Summary

In the matter of Kabir v R, the appellant appealed against his sentence for obtaining a financial advantage by deception from a Commonwealth entity. The appellant was found to have obtained a financial advantage by lodging false income tax returns and subsequently opening bank accounts to receive tax refunds. The appellant also dealt with the proceeds of his crime. The court had to consider whether the appellant was asked if he wished an additional offence to be taken into account under the schedule of section 16BA of the Crimes Act 1914 (Cth). Additionally, the court needed to determine whether the appellant was denied procedural fairness and whether a particular person was to be considered a victim of the offending. The term "victim" was to be construed broadly. The court also had to consider whether the sentencing judge took relevant matters into account and whether there was an error in finding that the appellant was not remorseful.

The court found that the appellant was not asked if he wished the additional offence to be taken into account, but this did not result in a denial of procedural fairness. The court also found that the term "victim" should be construed broadly and that the Commonwealth was a victim of the offending. The court found that the sentencing judge took relevant matters into account and that there was no error in finding that the appellant was not remorseful. The appeal was dismissed, and the original sentence was affirmed. The court found that the sentence was appropriate, taking into account the appellant's offending, the harm caused, and the need for deterrence and denunciation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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