5-9, 12, 14, 15, 19-23, 26-29 March 2012; 2-5, 10-13, 16-20, 23-24, 26-27 April 2012; 1-4, 7-11, 14-18, 21-24, 28-31 May 2012; 4-7, 12, 18-22, 25-29 June 2012; 2-6, 9-12, 16, 18-20, 23-27, 30-31 July 2012; 14, 17 August 2012
Decision date:
23 August 2012
Before:
Simpson J
Decision:
Robert Francis Agius
(1) In respect of the first count on the indictment: Mr Agius convicted.
Mr Agius sentenced to imprisonment for 4 years and 5 months, commencing on 31 July 2012 and expiring on 30 December 2016.
(2) In respect of the second count on the indictment: Mr Agius convicted.
Mr Agius sentenced to imprisonment for 4 years and 6 months, commencing on 31 December 2016 and expiring on 30 June 2021.
Fix a single non-parole period of 6 years and 8 months, expiring on 30 March 2019.
Kevin Zerafa
(1)In respect of the first count on the indictment: Mr Zerafa convicted.
Mr Zerafa ordered to perform community service work for 500 hours. Mr Zerafa to report to the Burwood District Office of the NSW Probation and Parole Service at 3.45pm on Tuesday, 28 August 2012.
(2)In respect of the second count on the indictment: Mr Zerafa convicted.
Mr Zerafa sentenced to imprisonment for 3 years, commencing on 23 August 2012 and expiring on 22 August 2015.
Order that Mr Zerafa be released forthwith, on entering into a recognisance to be of good behaviour for 3 years.
Catchwords:
CRIMINAL LAW - sentencing after trial - conspiracy to defraud the Commonwealth - Crimes Act 1914, s 29D, s 68(1) - conspiracy to cause loss to the Commonwealth - Criminal Code (Cth) - Crimes Act 1914, Pt 1B - relevant sentencing considerations - nature and circumstances of offences - contrition - cooperation with law enforcement authorities - general deterrence - scheme involving fraudulent claims for deductible business expenses - false invoices - false document trail - period of offending - financial benefit - involvement and participation of offenders - attempts at concealment of offences - course of criminal conduct - necessity for adequate punishment - personal circumstances of offenders - evidence of good character - absence of mitigation - worst category case - effect of reduction in maximum penalty - totality - mitigating circumstances - influence of older and more powerful employer - attempt to halt participation - delay in proceedings - probable effect of sentence on family and dependants - must be exceptional - availability of intensive correction order - not appropriate - cooperation with prosecution in adducing evidence
[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.
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Details
AGLC
R v Agius; R v Zerafa [2012] NSWSC 978
Case
[2012] NSWSC 978
Decision Date
CaseChat Overview and Summary
In the case of R v Agius; R v Zerafa, the defendants were convicted of conspiracy to defraud the Commonwealth. The court was tasked with determining the appropriate sentence for both defendants following their trial. The case involved fraudulent claims for deductible business expenses, which included the use of false invoices and a false document trail. The court had to consider various relevant sentencing factors, including the nature and circumstances of the offences, the contrition shown by the defendants, their cooperation with law enforcement, and the need for general deterrence.
The legal issues that the court needed to decide were primarily focused on the sentencing principles applicable under the Criminal Code (Cth) and the Crimes Act 1914. The court considered the necessity for adequate punishment, the personal circumstances of the defendants, and the extent of their involvement and participation in the offending. The court also examined the mitigating factors, such as the influence of an older and more powerful employer, the attempt to halt participation in the scheme, and the delay in proceedings. Furthermore, the court took into account the probable effect of the sentence on the family and dependants of the defendants.
The court found that this was a worst category case due to the serious nature of the offending, which involved a prolonged period of fraudulent claims and significant financial benefit. Despite the reduction in the maximum penalty, the court determined that the defendants' conduct warranted a severe punishment. The court considered the totality of the circumstances, including the absence of mitigation and the need for general deterrence. Ultimately, the court decided that an intensive correction order was not appropriate, and the defendants were sentenced to imprisonment, taking into account the cooperation with the prosecution in adducing evidence.