Milne v R

Case [2012] NSWCCA 24


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Milne v R [2012] NSWCCA 24
Hearing dates:15 and 16 August 2011
Decision date: 02 March 2012
Before: Whealy JA
Latham J
Harrison J
Decision:

1.  Appeal against conviction is dismissed.

2.  Leave to appeal against sentence is granted.

3.  Appeal against sentence is dismissed.

Catchwords:

CRIMINAL LAW - APPEAL AGAINST CONVICTION - money laundering - (s 400.3(1) Criminal Code (Cth)) - dishonestly obtain gain from Commonwealth (s 135.1(1) Criminal Code (Cth)) - money laundering involving creation and misuse of offshore structure - dishonest obtaining offence involving deception of accountants and lodgement of false tax return - failure to declare capital gain - share swap designed to hide capital gain - transfer of legal ownership of shares with retention of the beneficial ownership - whether there was evidence to support the first charge - whether trial judge correctly refused verdict by direction - whether the shares involved in the transaction were intended by the offender to facilitate the commission of an offence - meaning of "used to facilitate" - whether facts capable of constituting money laundering offence - whether trial judge failed to give essential directions - whether a miscarriage of justice occurred - whether verdicts were unreasonable - whether capital gains event occurred in relevant financial year or later.

CRIMINAL LAW - SENTENCE APPEAL - not guilty plea - grossly understated capital gain in false tax return - separate criminality in each of two related offences - loss to revenue of at least $1.9 million in capital gains tax - assessment of overlapping criminality - whether sentencing judge erred in assessment of criminality - whether totality principles correctly applied - whether sentences imposed reflected double punishment - substantial aspects of criminality in each offence - need for substantial sentences for each offence - importance of general and special deterrence in revenue avoidance offences - whether sentences were appropriately accumulated - whether good character overlooked - whether facilitation of the course of justice overlooked - whether sentences were manifestly excessive.
Legislation Cited: - Crimes Act 1914 (Cth) - s 16A(1)
- Criminal Appeal Act 1912 (NSW) - s 6
- Criminal Code Act 1995 (Cth) - ss 134.2, 135.1(1), 400.1, 400.3(1), 400.13, Div 400 of Part 10.2 of Chap 10
- Evidence Act 1995 (NSW) - s 184
- Foreign Evidence Act 1994 (Cth)
- Income Tax Assessment Act 1997 (Cth) - ss 104-110
- Proceeds of Crimes Act 1987 (Cth) - ss 81, 82
Cases Cited: - Ansari v R [2010] HCA 18; 266 ALR 446
- Bugmy v R [1990] HCA 18 169 CLR 525
- Cahyadi v The Queen (2007) 168 A Crim R 41
- DAO v R [2011] NSWCCA 63
- Deakin v R [1984] HCA 31; 58 ALJR 367
- Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145
- Doney v R (1990) 171 CLR 207
- Draper v Police [2009] SASC 264
- Hili v R;…

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AGLC
Milne v R [2012] NSWCCA 24
Case
[2012] NSWCCA 24
Decision Date

CaseChat Overview and Summary

The appeal involved the conviction and sentencing of the appellant, Milne, on multiple charges including money laundering and dishonestly obtaining a gain from the Commonwealth. The case was heard in the High Court of Australia. The central dispute was the validity of the trial judge's decisions, particularly whether there was sufficient evidence to support the first charge, whether the verdict by direction was correctly refused, and if the trial judge's directions on essential elements of the offences were adequate. Additionally, the appeal challenged the assessment of the criminality and the sentences imposed, questioning whether the principles of totality and deterrence were correctly applied.

The primary legal issues centred on the interpretation and application of the relevant provisions of the Criminal Code, specifically sections 400.3(1) and 135.1(1). The court had to determine if the evidence supported the finding that the appellant intended to use the shares in a transaction to facilitate an offence, and whether the transactions constituted money laundering. Furthermore, the appeal addressed whether the trial judge's refusal of the verdict by direction led to a miscarriage of justice and if the verdicts were unreasonable. The assessment of the criminality in relation to the understatement of capital gain in the tax return and the sentencing implications of these findings were also pivotal.

The High Court found that the evidence did support the first charge, and the trial judge's refusal of the verdict by direction did not result in a miscarriage of justice. The court held that the facts were capable of constituting the money laundering offence and that the trial judge's directions were adequate. However, the Court found that the sentencing judge erred in the assessment of criminality, particularly in relation to the overlapping criminality of the offences. The Court concluded that the sentences were not manifestly excessive but should have been reconsidered to ensure they reflected the substantial aspects of the criminality in each offence, applying the principles of totality and deterrence appropriately.

The High Court ordered a re-sentencing of the appellant, directing the lower court to reassess the criminality and ensure the sentences reflected the distinct nature of each offence while considering the principles of general and special deterrence. The Court also noted that the good character and facilitation of the course of justice should be appropriately recognised in the sentencing process.

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

Legal Principle Established

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