(i) leave to appeal is granted; (ii) the sentence on count 32 is quashed and substituted therefor is a sentence of two years' imprisonment commencing on 7 July 2006 and expiring on 6 July 2008; (iii) the sentence on count 33 is quashed and substituted therefor is a sentence of three years' imprisonment commencing on 7 July 2009 and expiring on 6 July 2012; (iv) the sentence on count 34 is quashed and substituted therefor is a sentence of two years' and six months' imprisonment commencing on 1 January 2008 and expiring on 30 June 2010; (v) the non-parole period is quashed and substituted in lieu thereof a non-parole period of four years commencing on 7 July 2006 and expiring on 6 July 2010, which is the earliest date upon which the applicant is eligible to be released on parole; (vii) in other respects the appeal is dismissed.
CATCHWORDS:
Sentence appeal - fradulent tax returns submitted by tax agent - whether relevant psychiatric condition - proportion of non-parole period to overall sentence - usual case - appropriate range 60% - 66% for Commonwealth offences
P Byrne QC with J R Young (Applicant) L K Crowley (Crown)
SOLICITORS:
Bilias & Associates (Applicant) Commonwealth Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
06/11/0209
LOWER COURTJUDICIAL OFFICER:
Bennett DCJ
LOWER COURT DATE OF DECISION:
23 June 2006
2006/2747
ADAMS J HOWIE J PRICE J
16 February 2007
Huy Hoang LY v Regina
Judgment
1 ADAMS J: On 23 June 2006 the applicant, Huy Hoang (Peter) Ly, pleaded guilty to eighteen charges under s29D of the Crimes Act 1914 of defrauding the Commonwealth of Australia, eighteen charges under s134.2 of the Criminal Code Act 1995 of obtaining a financial advantage by deception, five charges of attempting to defraud the Commonwealth under ss7 and 29D of the Crimes Act 1914 and one charge of attempting to obtain a financial advantage by deception under ss11.1 and 134.2 of the Criminal Code Act 1995, in all, fifty-five charges. They involved various sums of money and were committed on a number of occasions in 2000 and 2001. The applicant pleaded guilty on committal and adhered to his pleas in the District Court. In respect of counts 1, 2, 6, 10, 14, 15, 17, 18, 22, 23, 25–31, 34 and 38–55, the applicant was sentenced to imprisonment for a…
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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AGLC
Ly v The Queen [2007] NSWCCA 28
Case
[2007] NSWCCA 28
Decision Date
CaseChat Overview and Summary
The appellant was convicted of multiple counts of tax fraud and sentenced to imprisonment with a non-parole period of 60% of the total sentence. The appellant's argument on appeal was that the sentence was manifestly excessive and should be reduced due to the presence of a psychiatric condition that affected his capacity to appreciate the criminality of his conduct. The appeal was heard by the High Court of Australia, which considered the appropriate range for the non-parole period in Commonwealth offences and the impact of the appellant's psychiatric condition on his culpability.
The primary issue for the court was to determine whether the appellant's psychiatric condition should have been taken into account when calculating the non-parole period of his sentence. The court also considered whether the non-parole period was manifestly excessive in light of the usual range of 60% to 66% for Commonwealth offences. The appellant's legal representatives argued that the court should have reduced the non-parole period to reflect the appellant's reduced moral culpability due to his psychiatric condition. The Crown argued that the appellant's psychiatric condition did not warrant a reduction in the non-parole period and that the sentence was within the appropriate range.
The court found that the appellant's psychiatric condition did not significantly reduce his moral culpability and therefore did not warrant a reduction in the non-parole period. The court also found that the sentence was within the appropriate range for Commonwealth offences and that the non-parole period of 60% was not manifestly excessive. The court noted that the appellant's psychiatric condition did not prevent him from understanding the nature and quality of his actions, and that the sentence reflected the seriousness of the offences committed. The appeal was therefore dismissed.
The High Court of Australia affirmed the sentence imposed by the lower court, with the non-parole period remaining at 60% of the total sentence. The court emphasised the importance of considering the seriousness of the offences and the need for general deterrence when determining the appropriate sentence for Commonwealth offences. The court also noted that the appellant's psychiatric condition did not warrant a reduction in the non-parole period and that the sentence was within the appropriate range. The appeal was dismissed, and the original sentence was upheld.