R v Anderson - [2012] QCA 215

[2012] QCA 215

COURT OF APPEAL

MARGARET McMURDO P
FRYBERG J
NORTH J

CA No 123 of 2012
DC No 541 of 2012

THE QUEEN

ANDERSON, Stuart
(AKA MARSHALL, Terrence Charles) Appellant

BRISBANE

DATE 20/08/2012

JUDGMENT

THE PRESIDENT: Justice Fryberg will deliver his reasons first.

FRYBERG J: The unrepresented applicant has applied for leave to appeal against ten sentences of concurrent imprisonment for three years, coupled with an order for release after 15 months, upon his entering his entering into a recognisance release order, imposed in the District Court on 16 April this year, after he pleaded guilty to ten counts related to what might broadly be described as tax fraud.

The sole ground of appeal is that the sentences were manifestly excessive.

The offences arose out of six false claims for refunds of GST made by the applicant on behalf of four different entities. They were four companies, called respectively: Driving Miss Daisy Florist Couriers Pty Ltd., Dream Builder Essence Trading Pty Ltd., Rufus Ray Trading Pty Ltd. and Fifi Trading Pty. Ltd.

In relation to each entity, there was one count of using false documents to dishonestly induce a Commonwealth official, and to influence the exercise of a public duty.

In relation to Driving Miss Daisy Florist Couriers Pty Ltd., there were two counts of dishonestly obtaining a financial advantage from the Commonwealth by deception; in relation to Dream Builder Essence Trading Pty Ltd., one count of attempting to dishonestly to obtain a financial advantage from the Commonwealth by deception; in relation to Fifi Trading Pty Ltd., one count of that offence also; and in relation to Rufus Ray Trading Pty Ltd., two counts of that offence.

Put simply, the applicant's scheme was to lodge business activity statements claiming refunds of GST and support them when asked for documentation with forged documents.

His first two attempts were successful, and a total of more than $53,000 was paid to the courier company. Subsequently, nearly $32,000 was recovered from that company. That was the amount over-claimed, that is, the amount of the financial advantage obtained.

His other attempts were unsuccessful. The attempted financial advantage sought by them exceeded $65,000.

The offences were committed between 24 October, 2001, and 7 March, 2002. A warrant for the applicant's arrest was issued on 4 August, 2004, but it was not executed until 26 September, 2011. The delay in executing the warrant was not explained to the sentencing judge, and there is no reason to think that his Honour proceeded on the basis that the applicant had evaded arrest.

The applicant was aged 49 at the time of the offending, and 60 when sentenced. He had a long and continuous history of offences of dishonesty dating back to 1992.

At the time of the present offences, he was subject to a good behaviour bond given to obtain his release in respect of a 12 month term of imprisonment imposed on 19 January, 2001. That sentence was imposed in relation to social security fraud…

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 Anderson

Details

AGLC: R v Anderson [2012] QCA 215
Case: [2012] QCA 215
Decision Date: 20/08/2012

CaseChat Overview and Summary

The case of R v Anderson involved the appellant, Stuart Anderson (also known as Terrence Charles Marshall), appealing against his sentence of ten concurrent terms of imprisonment for three years, with a release order after 15 months. The sentences were imposed by the District Court on 16 April 2012, following Anderson's guilty plea to ten counts related to tax fraud. The central issue for the Court of Appeal was whether the sentences imposed were manifestly excessive. The appellant's primary argument was that the sentencing judge failed to properly consider his plea of guilty, his background, and the circumstances surrounding the offence. Additionally, the appellant argued that the period until release should be reduced from 15 months to 12 months.

The Court of Appeal considered the legal principles governing appeals against sentence and whether there was a misapplication of principle by the sentencing judge. The court held that intervention is warranted only if the difference between the sentence imposed and those in other cases is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle. The court dismissed the appeal on the basis that the appellant's list of comparable sentences did not demonstrate that the sentencing judge misapplied proper sentencing principles. The court also noted that the appellant did not apply to lead fresh evidence, and no grounds for such an application were apparent in the case.

The Court of Appeal unanimously agreed to dismiss the application for leave to appeal, with the result that the sentences imposed by the District Court would stand. The application for leave to appeal was refused, and the court adjourned.

Orders