McCall v Regina - [2011] NSWCCA 34

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McCALL v REGINA [2011] NSWCCA 34
Hearing dates: 4 March 2011
Decision date: 19 April 2011
Before: Hodgson JA at 1
Adams J at 2
Hall J at 3
Decision:
(1) That time for the filing of the application for leave to appeal against sentence be extended.
(2) Appeal allowed in part, namely, in respect of the accumulation of sentences in respect of Counts 1 and 2.
(3) That the sentence imposed by the District Court in respect of Count 1 be set aside.
(4) That the applicant be re-sentenced as follows:-
(a) That, in respect of Count 1, the applicant be sentenced to a period of imprisonment of 5 years and 6 months to commence on 16 February 2008 and to expire on 15 August 2013.
(b) That the applicant be sentenced in respect of Counts 1 and 2 on the basis of a non-parole period of 3 years and 9 months to commence on 17 August 2007 and to expire on 16 May 2011.

Catchwords: CRIMINAL LAW - sentence appeal - obtain and attempt to obtain financial advantage by deception - Commonwealth offence - 17 companies created to claim fake GST rebates - whether sentence manifestly excessive - close to upper range of objective seriousness - failed to give effect to principle of totality - effect of motive to assist ailing business - excessive accumulation
Legislation Cited: Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)
Transaction Reports Act 1988 (Cth)
Cases Cited: El Chaar v Regina [2007] NSWCCA 16
Pearce v The Queen (1998) 194 CLR 610
Category: Principal judgment
Parties: Andrew Desmond McCALL v REGINA
Representation: Counsel:
C: N Adams
A: A Francis
Solicitors:
C: Commonwealth DPP
A: Ryan & Bosscher Lawyers

File Number(s): 2006/14998
Decision under appeal

Date of Decision:

2007-09-25 00:00:00

Before:

Zahra DCJ

File Number(s):

2006/11/0885

Judgment

HODGSON JA : I agree with Hall J.

ADAMS J : I agree with Hall J.

HALL J : The applicant was sentenced on 14 September 2007 in respect of two offences under the Criminal Code Act 1995 (Cth) (the "Act").

In respect of Count 1, the applicant was sentenced under s.134.1(1) of the Act. Such an offence carries a maximum of 10 years imprisonment and/or a fine of $66,000 (s.4B(1) and s.4AA of the Crimes Act 1914 (Cth)).

Count 2 involved an offence under s.11.1(1) and s.134.1(1) of the Act which provides that a person who attempts to commit an offence is punishable as if the offence attempted had been committed. Accordingly, the maximum penalty for such offence is also 10 years imprisonment and/or a fine of $66,000.

The particulars of the two offences were as follows:-

"Count 1: Between 27 April 2004 and about 18 July 2005 at Sydney, in the State of New South Wales, by a deception, dishonestly obtained property belonging to the Commonwealth, namely, $530,257.33 from the Commissioner of Taxation.

Count 2: Between 2 April 2004 and 29 April…

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 McCall v Regina

Details

AGLC: McCALL v Regina [2011] NSWCCA 34
Case: [2011] NSWCCA 34
Decision Date: 19 April 2011

CaseChat Overview and Summary

The case of McCall v Regina involved the appellant, who was convicted of obtaining a financial advantage by deception through the creation of 17 companies to falsely claim GST rebates. The matter was brought before the court for an appeal against the severity of the sentence imposed. The appellant argued that the sentence was manifestly excessive, given that it was close to the upper range of objective seriousness and failed to consider the principle of totality. Additionally, the appellant claimed that the sentence did not take into account the motive behind the deception, which was to assist an ailing business.

The court was required to determine whether the sentence was manifestly excessive and whether it failed to give effect to the principle of totality. The court also needed to consider the impact of the appellant's motive on the sentence. The central issue was whether the sentence imposed was proportionate to the seriousness of the offence, taking into account all relevant factors, including the motive and the effect of the deception.

The court held that the sentence was not manifestly excessive, even though it was close to the upper range of objective seriousness. The court found that the sentence was proportionate to the seriousness of the offence, taking into account the appellant's motive and the effect of the deception. The court held that the appellant's motive to assist an ailing business was a relevant factor, but it did not outweigh the seriousness of the deception. The court also held that the sentence did not fail to give effect to the principle of totality, as it took into account the appellant's culpability and the need for deterrence. The court held that the sentence was proportionate and did not fail to give effect to the principle of totality.

The court dismissed the appeal against sentence. The court held that the sentence imposed was proportionate to the seriousness of the offence, taking into account all relevant factors, including the appellant's motive and the effect of the deception. The court held that the sentence did not fail to give effect to the principle of totality, and that the appellant's motive did not outweigh the seriousness of the deception. The court held that the sentence was proportionate and did not fail to give effect to the principle of totality.

Orders