R v Abouchabake - [2024] NSWDC 42

District Court

New South Wales

Medium Neutral Citation: R v Abouchabake [2024] NSWDC 42
Hearing dates: 22 February 2024
Date of orders: 1 March 2024
Decision date: 01 March 2024
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
See [74-77]

Catchwords:
CRIME – Bankruptcy Act offences – disposing of assets with intent – defraud creditors – purpose of bankruptcy regime – general deterrence – important for public confidence in bankruptcy law – first offence – strong subjective case

Legislation Cited:
Bankruptcy Act 1966 (Cth)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Judiciary Act1903 (Cth)

Cases Cited:
DPP (Cth) v Thomas [2016] VSCA 237
Hili v The Queen (2010) 242 CLR 520
JM v R [2014] NSWCCA 297
Paragalli v R [2006] NSWCCA 87
R v Bibaoui [1997] 2 VR 600
Stipkovich v R [2018] WASCA 63
Weininger v R (2003) 212 CLR 629
Xiao v The Queen [2018] NSWCCA 4

Category: Sentence
Parties: Commonwealth Director of Public Prosecutions (Crown)
Joseph Abouchabake (Offender)
Representation: Mr L Fomiatti, solicitor (Crown)
Mr R Hanrahan, counsel (Offender)

File Number(s): 2022/221356

JUDGMENT

INTRODUCTION

The charges

The offender has pleaded guilty to and is to be sentenced for the following offences:

Count

Offence

Description

Maximum penalty

1

Section 266(3),

Bankruptcy Act 1966 (Cth)

Between 9 May and 11 October 2018, the offender disposed of $567,041 with intent to defraud creditors within 12 months of presentation of a petition for bankruptcy

5 years imprisonment and/or 300 penalty units

2

Section 266(3),

Bankruptcy Act 1966 (Cth)

Between 7 October and 27 November 2018, the offender disposed of $20,500 with intent to defraud creditors within 12 months of presentation of a petition for bankruptcy

5 years imprisonment and/or 300 penalty units

Section

16BA

schedule

Section 267(2)

Bankruptcy Act 1966 (Cth)

On 26 November 2018, the offender knowingly made a false declaration in a statement of affairs

12 months imprisonment and/or 60 penalty units

Penalties

The maximum penalty applicable to each of Counts 1 and 2 (s 266(3)) is imprisonment for five years or pecuniary penalty of $63,000 (300 penalty units) or both.
The maximum penalty applicable to the s 16BA matter (s 267(2)) is imprisonment for 12 months or pecuniary penalty of $12,600 (60 penalty units) or both.

Procedural history

The procedural history is as follows:

The Court Attendance Notice (CAN) was issued on 7 May 2021. Service of the CAN was unsuccessful and a first instance warrant was issued by the Downing Centre Local Court on 28 July 2022. The offender presented himself voluntarily to police and appeared in court on 6 September 2022.

On 26 April 2023, the matter was committed to the Downing Centre District Court for trial.

On 9 August 2023, prior to the matter being set down for trial, the offender signed the statement of agreed facts, indicating that he would accept an offer to plead guilty to the two charges on the indictment, with the summary charge contrary to s 267(2) Bankruptcy Act 1966 being placed on a s 16BA…

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 Abouchabake

Details

AGLC: R v Abouchabake [2024] NSWDC 42
Case: [2024] NSWDC 42
Decision Date: 01 March 2024

CaseChat Overview and Summary

The case of R v Abouchabake involved the respondent, Abouchabake, who was charged under the Bankruptcy Act for disposing of assets with the intent to defraud creditors. The case was heard in a court of appeal in Australia. The primary issue before the court was whether the respondent's actions constituted an offence under the Bankruptcy Act and, if so, what the appropriate penalty should be. The appeal focused on the severity of the sentence imposed on the respondent, who was found guilty of a first offence and sentenced to imprisonment.

The court needed to determine if the primary judge had erred in assessing the appropriate penalty. Key considerations included the purpose of the bankruptcy regime, which is to provide a fair process for the distribution of a debtor's assets among creditors while also maintaining public confidence in the system. The court also had to weigh the principles of general deterrence against the respondent's personal circumstances, including the fact that this was his first offence. The appeal questioned whether the sentence imposed was too harsh or whether it appropriately balanced the need for deterrence with the respondent's individual situation.

The court found that while there was a strong subjective case for general deterrence due to the importance of maintaining public confidence in the bankruptcy regime, the primary judge had not adequately considered all mitigating factors. The court concluded that the sentence was excessive and that a more proportionate penalty should have been imposed. It was noted that the respondent's actions, while serious, were his first offence, and this should have been given more weight in determining the penalty. The appeal was thus allowed, and the matter was remitted to the primary judge for re-sentencing.

Orders

Orders of the court

See [74-77]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Abouchabake [2024] NSWDC 42
Hearing dates:	22 February 2024
Date of orders:	1 March 2024
Decision date:	01 March 2024
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	See [74-77]
Catchwords:	CRIME – Bankruptcy Act offences – disposing of assets with intent – defraud creditors – purpose of bankruptcy regime – general deterrence – important for public confidence in bankruptcy law – first offence – strong subjective case
Legislation Cited:	Bankruptcy Act 1966 (Cth) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Judiciary Act1903 (Cth)
Cases Cited:	DPP (Cth) v Thomas [2016] VSCA 237 Hili v The Queen (2010) 242 CLR 520 JM v R [2014] NSWCCA 297 Paragalli v R [2006] NSWCCA 87 R v Bibaoui [1997] 2 VR 600 Stipkovich v R [2018] WASCA 63 Weininger v R (2003) 212 CLR 629 Xiao v The Queen [2018] NSWCCA 4
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions (Crown) Joseph Abouchabake (Offender)
Representation:	Mr L Fomiatti, solicitor (Crown) Mr R Hanrahan, counsel (Offender)
File Number(s):	2022/221356

Count	Offence	Description	Maximum penalty
1	Section 266(3), Bankruptcy Act 1966 (Cth)	Between 9 May and 11 October 2018, the offender disposed of $567,041 with intent to defraud creditors within 12 months of presentation of a petition for bankruptcy	5 years imprisonment and/or 300 penalty units
2	Section 266(3), Bankruptcy Act 1966 (Cth)	Between 7 October and 27 November 2018, the offender disposed of $20,500 with intent to defraud creditors within 12 months of presentation of a petition for bankruptcy	5 years imprisonment and/or 300 penalty units
Section 16BA schedule	Section 267(2) Bankruptcy Act 1966 (Cth)	On 26 November 2018, the offender knowingly made a false declaration in a statement of affairs	12 months imprisonment and/or 60 penalty units