Putland v The Queen

Case [2003] NTCCA 3


Putland v R[2003] NTCCA 3

PARTIES: ROBERT JOHN PUTLAND

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL  APPEAL FROM THE SUPREME COURT EXERCISING FEDERAL JURISDICTION

FILE NO:CA20 of 2001 (9923435)

DELIVERED:  15 April 2003

HEARING DATES:  19 and 20 March 2003

JUDGMENT OF:  Martin CJ, Mildren & Riley JJ

CATCHWORDS:

REPRESENTATION:

Counsel:

Appellant:Mr D Grace QC

Respondent:  Mr G Fisher,

Intervenor:Mr T Pauling QC with Ms S Brown-Hill for the Attorney General of the Northern Territory Intervening

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Commonwealth Director of Public Prosecutions

Intervenor:Solicitor General of the Northern Territory

Judgment category classification:           A

Judgment ID Number:  

Number of pages:  35

IN THE CRIMINAL COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Putland v R[2003] NTCCA 3

No. CA20 of 2001 (9923435)

BETWEEN:

ROBERT JOHN PUTLAND

Appellant

AND:

THE QUEEN

Respondent

CORAM:      MARTIN CJ, MILDREN & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 15 April 2003)

THE COURT:

  1. This is an appeal against sentence. The appellant pleaded guilty to two counts of defrauding the Commonwealth contrary to s 29D of the
    Crimes Act 1914 (Cth) and two counts each of breaching s 266(1) and
    s 269(1)(b) of the Bankruptcy Act 1966 (Cth). The maximum penalty for each offence contrary to s 29D of the Crimes Act is ten years imprisonment and the maximum penalty for each bankruptcy offence is three years imprisonment.

  2. The learned sentencing judge imposed an aggregate sentence of four years imprisonment and ordered that the appellant be released after serving twelve months upon entering into a bond to be of good behaviour for three years.

  3. The grounds of the appeal are that:

    1.the aggregate term of imprisonment was manifestly excessive;

    2.the unsuspended period was manifestly excessive;

    3.the learned sentencing judge erred in failing to order the applicant’s immediate release; and

    4.the learned sentencing judge did not have power to impose an aggregate term of imprisonment thereby making the order of imprisonment a nullity.

  4. Before dealing with the other grounds of appeal, it is convenient to deal with ground 4.

    Did the learned sentencing judge have power to impose an aggregate sentence?

  5. The appellant argues that the learned sentencing judge had no power to impose an aggregate sentence for the following reasons:

    1.Subject to the applicability of s 4K of the Crimes Act 1914 (Cth) (the Act) in relation to summary criminal proceedings, Part 1B of the Act impliedly excludes aggregate sentencing by superior courts upon conviction for two or more federal offences.

    2.Alternatively, it was put that s 4K alone, or together with the provisions within Part 1B, as supplemented by Commonwealth common law, impliedly excludes aggregate sentencing by superior courts.

    3.That s 52 of the Sentencing Act (NT) enabling an aggregate sentence to be imposed had no application because that provision was not "picked up" by s 68 or s 79 of the Judiciary Act 1903 (Cth).

    4.Alternatively, it was argued that if s 52 of the Sentencing Act…

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Putland v The Queen [2003] NTCCA 3
Case
[2003] NTCCA 3
Decision Date

CaseChat Overview and Summary

The appellant, Putland, appealed against his sentence imposed by the Supreme Court of the Northern Territory. The dispute concerned the sentencing of Putland for offences related to the failure to remit taxation instalment deductions and Prescribed Payment System payments, and for lodging a dishonest Statement of Affairs upon his bankruptcy.

The primary legal issue before the Court of Appeal was whether the sentencing judge had erred in principle by failing to adequately take into account the appellant's bankruptcy and the subsequent actions of Ms Roberts in continuing the business. The court also considered whether the decision in *Jackson* was plainly wrong in relation to the principles of sentencing in such circumstances.

The Court of Appeal, in dismissing the appeal, reasoned that the appellant had continued to operate his transport business in substance, despite his bankruptcy and the nominal transfer of a business name to Ms Roberts. The court found that Ms Roberts was effectively operating the business as a trustee for the appellant, and that the appellant had not established that the majority decision in *Jackson* was plainly wrong. Therefore, the court followed the precedent set in *Jackson*, which held that a bankrupt continuing to trade could be sentenced as if they were still trading. The court concluded that the sentencing judge had not erred in principle and that the sentence imposed was appropriate.

Orders

Orders of the court

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Background

Background to the litigation

W therefore consider that it has not been established by the appellant that the decision of the majority in Jackson, supra, is plainly wrong. In those circumstances, this Court ought to follow that decision. In our opinion, ground 4 must therefore be dismissed.Factual background Before dealing with the remaining grounds of appeal, it is necessary to set out in some detail, the factual basis upon which the appellant was sentenced. The Crown facts were not in dispute. Between 1985 and 1989, the appellant owned and operated two companies in the Northern Territory; Putland Haulage Pty Ltd and Centre Transport Industries Pty Ltd. These two companies went into liquidation in September 1987 with the Australian Taxation Office being the principal creditor. During the operation of these companies, the accused failed to remit either partially or totally, taxation instalment deductions and Prescribed Payment System payments (PPS) that were deducted from employees' gross salaries by way of taxation. The debt to the Commissioner was significant. Following the liquidation of these companies, the appellant continued to trade and on 12 February 1992, he was a sole trader using the business name "Northstate Transport Services". The appellant simply continued with his previous business activities operating from the same premises, with the same employees and the same equipment. On 12 February 1992, the appellant was declared bankrupt on the petition of a solicitor for the non-payment of a modest amount owed for legal fees. In about 1989, Ilene Roberts met the appellant at a time when she was about 22 years of age. Ms Roberts was employed and obtained work experience with the appellant, following which she became employed full-time and had secretarial duties, including being a signatory to Northstate Transport Services bank account. Putland's co-accused, a person called Fawcett, was a qualified accountant and registered tax agent. At the time of the appellant's bankruptcy and resultant closure of his business, Fawcett was the accountant for the appellant. Following the appellant's bankruptcy in 1992, nothing but the trading name effectively changed. The same employees continued to be employed, a transport business using the same assets operated from the same premises and initially, stationery from Northstate Transport Services was used. A dishonest Statement of Affairs was lodged by the appellant in which he neglected to list a number of assets, listed some assets or their value incorrectly and omitted some major creditors. The Statement of Affairs showed a surplus and the appellant advised the Insolvency Trustee Service of Australia (ITSA), the appellant's Trustee in Bankruptcy, that he intended to apply for an annulment of his bankruptcy. Due to the seeming surplus, the Trustee did little in securing the assets and gave the appellant permission to work, but not to trade. On 11 May 1990, the appellant registered the name Putland Equipment Hire. This business name was not used until it was transferred to Ms Roberts in April 1992 at the appellant's request. Ms Roberts has said that in April 1992 she and the appellant contacted a counsel at the Melbourne Bar for advice. That counsel has advised that he was not told, nor was he made aware, that the appellant was a bankrupt and that in the circumstances, Ms Roberts was merely carrying on the business as trustee for Putland.

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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