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