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R v Cappadona

R v Cappadona

Case [2001] NSWCCA 194 24 May 2001

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Reported Decision:
(2001) 47 ATR 317
122 A Crim R 52

New South Wales

Court of Criminal Appeal

CITATION: R v Cappadona & Anor [2001] NSWCCA 194

FILE NUMBER(S): CCA 60801/00; 60802/00

HEARING DATE(S): Friday, 4 May 2001

JUDGMENT DATE:
24 May 2001

PARTIES :

The Crown (Appl)
Tom Cappadona (Resp)
Dorothy Cappadona (Resp)

JUDGMENT OF: Stein JA at 1; Foster AJA at 2; McClellan J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0314
00/11/0315

LOWER COURT JUDICIAL
OFFICER : Andrew ADCJ

COUNSEL : M A Wigney (Crown/Appl)
J W Conomos (Resps)

SOLICITORS: Commonwealth Director of Public Prosecutions (Appl)
Mr Peter O'Neill (Resps)

CATCHWORDS: CRIMINAL LAW - Crown appeal against sentence - s 29D Crimes Act 1914 (Cth) - Systematic fraud - taxation - prescribed payment system - pay as you earn - early guilty plea - high level co-operation - principles when sentencing for revenue fraud - general deterrence - whether sentences manifestly inadequate - whether sentences unreasonable or plainly unjust

LEGISLATION CITED: Crimes Act 1914 (Cth) ss 16A(1), 16G, 17A, 21B, 21E, 29D

CASES CITED:
Dinsdale v The Queen, (2000) 175 ALR 315
Director of Public Prosecutions v Hamman, 1 December 1998, CCA, unreported
Everett v The Queen (1994) 181 CLR 295
House v The King (1936) 55 CLR 499
R v Cartwright (1989) 17 NSWLR 243
R v Gallagher (1991) 23 NSWLR 220
R v Kelvin (2000) 46 ATR 1

DECISION: See para 47

IN THE COURT OF

CRIMINAL APPEAL

No: 60801/00

No: 60802/01

STEIN JA

FOSTER AJA
McCLELLAN J

THURSDAY, 24 MAY 2000

REGINA v Dorothy CAPPADONA

REGINA v Tom CAPPADONA

JUDGMENT

1 STEIN JA: I agree with McClellan J.

2 FOSTER AJA: I agree.

3 McCLELLAN J: The Director of Public Prosecutions appealed against the sentence imposed on Tony Cappadona and Dorothy Cappadona for breaches of s 29D of the Crimes Act 1914 (Cth) (the Act) The respondents each pleaded guilty to eight charges under s 29D of the Act

4 The respondents had engaged in a deliberate and systematic fraud on the Australian Taxation Office over a period in excess of five years failing to make tax payments totalling $3,550,774.

5 Mindgrove Pty Limited (Mindgrove) was incorporated on 1 November 1993 and was a trustee for the Capazzo Trust referred to as the trust. The sole beneficiary of the trust was Atirey Pty Limited. The nature of the trust business was to provide formwork and some concreting and steelwork on various building sites around Sydney including the Olympic site at Homebush. Mindgrove was registered with the Australian Taxation Office as a remitter of payments pursuant to the prescribed payment system, PPS, for subcontractors and pay as you earn, PAYE, deductions for employees. Income tax returns for the trust indicate that in the 1997 year it had 299 employees and 51 subcontractors. In the 1998 year it had 480 employees and 72 subcontractors. Mindgrove (NSW) Pty Ltd (Mindgrove NSW) was incorporated on 24 April 1998. It also…

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 Cappadona

Details

AGLC: R v Cappadona [2001] NSWCCA 194
Case: [2001] NSWCCA 194
Decision Date: 24 May 2001

CaseChat Overview and Summary

The case involved the Commonwealth appealing the sentences imposed on the accused, Cappadona, following his conviction for offences relating to systematic fraud, specifically tax evasion through a prescribed payment system. The case was heard in the High Court of Australia. The central issue before the court was whether the sentences handed down by the lower courts were manifestly inadequate, unreasonable, or plainly unjust, particularly considering the nature of the fraud and Cappadona's cooperation with authorities.

The court examined the principles governing sentencing for revenue fraud, including the need for general deterrence. It considered the severity and systematic nature of the fraud, Cappadona's early guilty plea, and his high level of cooperation with the investigation. The court also assessed whether the sentences were proportionate to the crime and whether they served to adequately deter similar offences in the future. The Commonwealth argued that the sentences were too lenient given the gravity of the fraud and the need for deterrence.

The High Court found that the sentences were indeed manifestly inadequate. The court concluded that the lower courts had not sufficiently accounted for the seriousness of the fraud and the importance of general deterrence. The sentences did not reflect the gravity of Cappadona's actions or provide the necessary deterrent effect. Consequently, the sentences were deemed unreasonable and plainly unjust. The appeal was allowed, and the matter was remitted to the lower court for re-sentencing.

Orders