R v Aan - [2010] QCA 313

[2010] QCA 313

COURT OF APPEAL

McMURDO P
WHITE JA
McMEEKIN J

CA No 149 of 2010
DC No 1135 of 2010
DC No 3256 of 2008

THE QUEEN

AAN Applicant

BRISBANE

DATE 10/11/2010

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty to four counts of obtaining goods or services whilst bankrupt without disclosing the bankruptcy under s 269(1)(ac) Bankruptcy Act 1966 (Cth).

The offences occurred between December 2003 and October 2004. He was 65 and 66 years old at the time of the offences and 72 at sentence. He pleaded guilty on 8 December 2008 but was not sentenced until 2 June 2010.

On each count he was sentenced to imprisonment for 18 months, to be released after serving nine months upon giving security by recognizance in the sum of $5,000 on condition that he be of good behaviour for a period of three years.

He was also dealt with for a breach of suspended sentence imposed in the Brisbane District Court on 19 May 2004 and ordered to serve the outstanding period of 12 months' imprisonment. His parole release date was fixed at 2 March 2011.
He has a significant and relevant criminal history. In November 1993, he was sentenced in the Sydney District Court for three counts of supplying a prohibited drug, including one involving a commercial quantity, to an effective term of six years' imprisonment with a non-parole period of four years and six months.

The following February he was sentenced in the Sydney District Court to a $1,000 good behaviour bond for six years for dishonestly obtaining a valuable thing by deception and obtaining credit by fraud.

He was next dealt with in the Brisbane District Court on 19 May 2004 and sentenced to 12 months' imprisonment, wholly suspended with an operational period of three years, for one count of fraud and one count of attempting to misappropriate property with a circumstance of aggravation. Both those offences occurred in June 2001.

On 11 May 2005 in the Southport Magistrates Court he was convicted and sentenced to three months' imprisonment, released forthwith on entering into a surety to be of good behaviour for three years and ordered to perform 50 hours' community service for preparing to leave Australia without consent as an undischarged bankrupt and carrying on business whilst an undischarged bankrupt.

On 24 April 2007 he was dealt with for breaching the suspended sentence imposed on 19 May 2004 but sentenced only to the rising of the Court.

On 29 May 2009 in the Downing Centre District Court he was sentenced to 18 months' imprisonment, to be released after serving nine months, on 25 February 2010, for fraudulently omitting to account for money received in violation of the terms on which that money was received between August 2001 and August 2002.

The circumstances of the present offences:
The applicant was declared bankrupt on 19 April 2002 and the bankruptcy continued until 11 May 2005. The four charges spanned a nine month period in which he…

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 R v Aan

Details

AGLC: R v Aan [2010] QCA 313
Case: [2010] QCA 313
Decision Date: 10/11/2010

CaseChat Overview and Summary

In the case of R v Aan, the applicant, Aan, appealed against the sentence imposed on him by the District Court of Queensland. The applicant had pleaded guilty to four counts of obtaining goods or services while bankrupt without disclosing the bankruptcy, and was sentenced to imprisonment for 18 months, to be released after serving nine months upon giving security by recognizance in the sum of $5,000 on condition that he be of good behaviour for a period of three years. The applicant also pleaded guilty to a breach of suspended sentence and was ordered to serve the outstanding period of 12 months' imprisonment. The parole release date was fixed at 2 March 2011. The applicant sought leave to appeal against his sentence and to adduce further evidence.

The legal issues in this case were whether the sentence imposed by the District Court was manifestly excessive, and whether the further evidence of the applicant's significant assistance to New South Wales police should be received by the Court of Appeal. The Court of Appeal held that the sentence was manifestly excessive and that the further evidence of the applicant's significant assistance to New South Wales police should be received by the Court. The Court found that the applicant's prior criminal history and the serious aspects of his offending warranted a sentence of actual detention despite the mitigating features, but had the material now placed before the Court been before the sentencing Judge, the appropriate sentence in respect of the four bankruptcy offences was 18 months' imprisonment, to be released after serving six months on a recognizance of $5,000 for three years. The breach of suspended sentence should be fully activated but with a parole release date after six months.

The Court of Appeal allowed the appeal against sentence and substituted six months for nine months' imprisonment on each Commonwealth offence and, in respect of the breach of the suspended Queensland sentence, substituted for the date, 2 March 2011, fixed for the offender to be released on parole, the date, 2 December 2010. The Court confirmed the sentence imposed at first instance, except for the reduction in the actual period required to be served by the applicant for his offending from nine months to six months. The Court directed that the applicant's lawyers explain to him the effect of the order and of his sentence in accordance with s 16F Crimes Act 1914 (Cth).

Orders