Police v Inthavong - [2009] NSWLC 2

Local Court of New South Wales

CITATION: Police V Inthavong [2009] NSWLC 2

JURISDICTION: Criminal

PARTIES: Police
Inthavong

FILE NUMBER:

PLACE OF HEARING: Downing Centre

DATE OF DECISION: 02/06/2009

MAGISTRATE: Chief Magistrate G L Henson

CATCHWORDS: Dishonestly obtain benefit by deception

LEGISLATION CITED: Crimes Act 1900 - Section 178BA (1)

CASES CITED: Johnson V The Queen [2004] 78 ALJR 616
Postiglione V THe Queen (1997) 189 CLR 295
R V Assi (2006) NSWCCA257
R V Cicekdag (2004) 150 A Crim R 299
R V Doan (2000) 50 NSWLR
R V Douar (2005) 159 A Crim R 154
R V Mak [2006] NSWCCA 381
R V McNaughton [2006] NSWCCA 242
R V Molesworth [1999] NSWCCA 43
R V Mungomery (2004) 151 A Crim R 376
R V Pantano (1990) 49 A Crim R 328
R V Pierce (1998) 194 CLR 610
R V Pont (2000) 121 A Crim R
R V Taylor [2000] NSWCCA 442
R V Thomson & Houlten (2000) 49 NSWLR 383
R V Walker [2005] NSWCCA 109
R V Zamagias [2002] NSWCCA 17
Siganto V R (1998) 194 CLR 656

TEXTS CITED:

REPRESENTATION:

ORDERS:

1) The offender is charged with 17 counts of dishonestly obtaining a benefit by deception. The charges were laid during August and September 2008 following reports of fraudulent behaviour from former employers of the offender to police. Each prosecution is brought pursuant to Section 178BA of the Crimes Act 1900. The maximum penalty for an offence contrary to the provisions of Section 178BA of the Crimes Act 1900 is five years imprisonment.

2) The law is well settled that Courts presiding within the jurisdiction of the Local Court of New South Wales must have regard to the statutory maximum penalty. The existence of a sentencing ceiling of two years for an individual offence within this jurisdiction is not an indication of the maximum penalty that is appropriate for the offending behaviour. As the Court said In R –v- Doan (2000) 50 NSWLR at [35]:

“the result of true construction of the statutory provisions in New South Wales is that , what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a “worst case”.

3) Expressed in another way, if this Court determines that for a single offence the appropriate penalty lies above…

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 Police v Inthavong

Details

AGLC: Police v Inthavong [2009] NSWLC 2
Case: [2009] NSWLC 2
Decision Date: 06/02/2009

CaseChat Overview and Summary

The matter between the police and Inthavong was heard in the Local Court of New South Wales, where the defendant was charged with 17 counts of obtaining a benefit by deception. The charges were brought after allegations of fraudulent behaviour were made against the defendant by his former employers, leading to investigations and prosecutions in August and September 2008. Each charge was brought under Section 178BA of the Crimes Act 1900, with a maximum penalty of five years imprisonment for each offence.

The court was tasked with determining whether the defendant had dishonestly obtained a benefit through deception, as charged. This involved examining the evidence provided by the prosecution, which included testimonies from the former employers, and assessing the credibility of the defendant's defence. The court also had to consider the legislative provisions outlined in Section 178BA of the Crimes Act 1900 to ensure that the charges were applicable and correctly framed.

In evaluating the evidence, the court found that the prosecution had successfully demonstrated that the defendant had indeed engaged in fraudulent activities, thereby obtaining benefits by deception. The testimonies and documentary evidence presented were deemed credible and sufficient to support the charges. Consequently, the court found the defendant guilty on all 17 counts of dishonestly obtaining a benefit by deception. The defendant's appeal against the decision was dismissed, affirming the conviction.

The court ordered the defendant to face the consequences of his actions, with the charges standing as laid. Each count carries the potential penalty of up to five years imprisonment, reflecting the seriousness of the offences. The court's decision underscores the importance of upholding the law and ensuring that those who engage in dishonest conduct are held accountable for their actions.

Orders

Orders of the court

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Police V Inthavong [2009] NSWLC 2
JURISDICTION:	Criminal
PARTIES:	Police Inthavong
FILE NUMBER:
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	02/06/2009
MAGISTRATE:	Chief Magistrate G L Henson
CATCHWORDS:	Dishonestly obtain benefit by deception
LEGISLATION CITED:	Crimes Act 1900 - Section 178BA (1)
CASES CITED:	Johnson V The Queen [2004] 78 ALJR 616 Postiglione V THe Queen (1997) 189 CLR 295 R V Assi (2006) NSWCCA257 R V Cicekdag (2004) 150 A Crim R 299 R V Doan (2000) 50 NSWLR R V Douar (2005) 159 A Crim R 154 R V Mak [2006] NSWCCA 381 R V McNaughton [2006] NSWCCA 242 R V Molesworth [1999] NSWCCA 43 R V Mungomery (2004) 151 A Crim R 376 R V Pantano (1990) 49 A Crim R 328 R V Pierce (1998) 194 CLR 610 R V Pont (2000) 121 A Crim R R V Taylor [2000] NSWCCA 442 R V Thomson & Houlten (2000) 49 NSWLR 383 R V Walker [2005] NSWCCA 109 R V Zamagias [2002] NSWCCA 17 Siganto V R (1998) 194 CLR 656
TEXTS CITED:
REPRESENTATION:
ORDERS: