R v Ackerman - [2017] QCA 214

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ackerman [2017] QCA 214

PARTIES:

R
v
ACKERMAN, Marius Anton
(applicant)

FILE NO/S:

CA No 50 of 2017
DC No 447 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 18 March 2015 (Devereaux SC DCJ)

DELIVERED ON:

26 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2017

JUDGES:

Sofronoff P and Gotterson and McMurdo JJA

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant lodged fraudulent claims for GST refunds – where the amount paid over by the Commonwealth was over $1,100,000 – where the applicant pleaded guilty to 56 counts of obtaining a financial advantage by deception and to nine counts of attempting to obtain a financial advantage by deception – where the applicant was sentenced to seven years’ imprisonment with a non-parole period of four years – whether the sentence was manifestly excessive having regard to sentences imposed in comparable cases

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the sentencing judge made an observation that the GST claim forms filed by the applicant were completely false – where the applicant submits that the claim forms were only partly false – whether the sentencing judge proceeded upon an incorrect observation regarding the falsity of the claim forms

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the sentencing judge sentenced the applicant on the basis that the applicant obtained $1,104,565.40 by way of deception – where the applicant submits that the true amount obtained by deception was $945,475.31 – whether this discrepancy resulted in an error in sentencing

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where s 16A(1) of the Crimes Act 1914 (Cth) requires a court to impose a sentence that is of a severity appropriate in all the circumstances – where s 16A(2) of the Crimes Act requires a court to take into account all relevant matters – whether the sentencing judge erred by failing to take into account all relevant matters

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant’s former solicitors initially filed a notice of appeal within time – where the applicant’s former solicitors withdrew and the applicant was later refused Legal Aid – where the applicant abandoned his original appeal – where the applicant now seeks an extension of time within which to apply for leave to appeal against his sentence – whether there are justifiable grounds for the delay in bringing the appeal

Crimes Act 1914 (Cth), s 16A(1),…

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 Ackerman

Details

AGLC: R v Ackerman [2017] QCA 214
Case: [2017] QCA 214
Decision Date: 26 September 2017

CaseChat Overview and Summary

In the matter of R v Ackerman, the appellant, a former Australian tax consultant, appealed against his sentence following his conviction on multiple counts of obtaining a financial advantage by deception. The High Court of Australia was tasked with reviewing the sentence imposed by the lower court, considering whether it was manifestly excessive, whether the sentencing judge acted on incorrect principles, and whether the judge failed to take into account all relevant matters when imposing the sentence. The appellant, who had orchestrated fraudulent GST refund claims resulting in the Commonwealth paying over $1,100,000, was sentenced to seven years' imprisonment with a non-parole period of four years. The appellant argued that the sentence was excessively harsh when compared to similar cases and that the sentencing judge erred in several critical aspects, including the assessment of the falsity of the claim forms and the amount obtained by deception. Furthermore, the appellant contended that the sentencing judge failed to consider all relevant matters as required by section 16A(2) of the Crimes Act 1914 (Cth).

The court meticulously examined the sentencing principles and the specific circumstances of the case. It found that the sentencing judge did not act on incorrect principles regarding the falsity of the claim forms or the amount obtained by deception. The court was satisfied that the judge had correctly assessed these aspects and that there was no basis to infer that the judge had failed to take into account all relevant matters when imposing the sentence. Additionally, the court held that the sentence was not manifestly excessive, given the gravity of the appellant's actions and the substantial amount defrauded. The court also considered the appellant's application for an extension of time to appeal his sentence, finding that there were no justifiable grounds for the delay in bringing the appeal.

The court's decision ultimately upheld the original sentence, dismissing the appellant's appeal. The court refused the appellant's application for an extension of time to appeal his sentence, concluding that the reasons provided for the delay were insufficient to warrant an extension. The court's ruling emphasised the importance of adhering to the principles of sentencing and the need for sentences to reflect the seriousness of the offences committed.

Orders

Orders of the court

The application is refused.

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:	R v Ackerman [2017] QCA 214
PARTIES:	R v ACKERMAN, Marius Anton (applicant)
FILE NO/S:	CA No 50 of 2017 DC No 447 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 18 March 2015 (Devereaux SC DCJ)
DELIVERED ON:	26 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	13 June 2017
JUDGES:	Sofronoff P and Gotterson and McMurdo JJA
ORDER:	The application is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant lodged fraudulent claims for GST refunds – where the amount paid over by the Commonwealth was over $1,100,000 – where the applicant pleaded guilty to 56 counts of obtaining a financial advantage by deception and to nine counts of attempting to obtain a financial advantage by deception – where the applicant was sentenced to seven years’ imprisonment with a non-parole period of four years – whether the sentence was manifestly excessive having regard to sentences imposed in comparable cases CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the sentencing judge made an observation that the GST claim forms filed by the applicant were completely false – where the applicant submits that the claim forms were only partly false – whether the sentencing judge proceeded upon an incorrect observation regarding the falsity of the claim forms CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the sentencing judge sentenced the applicant on the basis that the applicant obtained $1,104,565.40 by way of deception – where the applicant submits that the true amount obtained by deception was $945,475.31 – whether this discrepancy resulted in an error in sentencing CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where s 16A(1) of the Crimes Act 1914 (Cth) requires a court to impose a sentence that is of a severity appropriate in all the circumstances – where s 16A(2) of the Crimes Act requires a court to take into account all relevant matters – whether the sentencing judge erred by failing to take into account all relevant matters CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant’s former solicitors initially filed a notice of appeal within time – where the applicant’s former solicitors withdrew and the applicant was later refused Legal Aid – where the applicant abandoned his original appeal – where the applicant now seeks an extension of time within which to apply for leave to appeal against his sentence – whether there are justifiable grounds for the delay in bringing the appeal Crimes Act 1914 (Cth), s 16A(1),…