R v Chambers No. DCCRM-00-301 - [2002] SADC 148

R v Allen William CHAMBERS
[2002] SADC 148
Criminal - Sentencing Remarks
Judge David Smith
Offences – Pleas – Penalty

On the 5^th November 2002 in this Court Allen William Chambers pleaded guilty to 82 counts of defrauding the Commonwealth contrary to s29D of the Crimes Act, 1914. These offences were committed at Adelaide between the 5^th March 991 and 16^thJanuary 1995.
The maximum penalty at the relevant time for an offence against s29D of the Crimes Act, 1914 was a fine of $100,000 and/or imprisonment for 10 years.
Circumstances of offending
The defendant operated a business selling computers and related parts. He not only purchased within Australia but also imported such equipment. These 82 counts concern imported computers and related equipment. The defendant illicitly evaded paying sales tax on the goods the subject of the 82 counts by quoting a sales tax exempt number which he was not authorised to use. The importers name which he used to evade the collection of the sales tax by the import agent was “EA O’Brien TA Kwikset-Typeset Australia Co”. The defendant was known to the custom brokers as Alen O’Brien. The sales tax exempt number quoted by the defendant had been previously assigned to the defendant’s partner in connection with a business called Kwikset-Typeset Aust (Co.). The defendant was identified as the person conducting the transactions by the custom brokers. Further, telephone numbers, post office records, false signatures and other items associated with the imported goods also lead to the defendant.
The amount of sales tax evaded was $180,970.92.
Previous indictment and penalty
On the 23^rd January 2002 the defendant was found guilty by unanimous verdicts of a jury of 32 counts of defrauding the Commonwealth contrary to s29D of the Crimes Act, 1914 and one count of Organised Fraud contrary to s83(1) of the Proceeds of Crime Act, 1987. Those offences also concerned non-payment of sales tax on computer hardware and related equipment and were committed at Adelaide between the 6^th March 1992 and the 27^th July 1995.
In respect of those charges, the amount defrauded was $77,868.78.
Indeed the detail of the allegations and the modus operandi in respect of the offences in counts 20 to 32 of that previous indictment, which also concerned importations, are strikingly similar to those on the present indictment and the periods of the two lots of offending overlap.
On the 5^th July 2002, Allen Chambers was sentenced by me in respect of that previous indictment. For the 32 counts of Defrauding the Commonwealth he was sentenced to three years imprisonment. For the offence of Organised Fraud he was sentenced to imprisonment for one year to be served concurrently with the three year term. However, I directed that, upon the defendant entering into a recognizance in the sum of $5,000 to be of good behaviour for 24 months, he be released after serving only 12 months of the term of imprisonment. That sentence was ordered…

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 Chambers No. DCCRM-00-301

Details

AGLC: R v Chambers No. DCCRM-00-301 [2002] SADC 148
Case: [2002] SADC 148
Decision Date: 26 November 2002

CaseChat Overview and Summary

Allen William Chambers pleaded guilty to 82 counts of defrauding the Commonwealth contrary to s29D of the Crimes Act, 1914. The offences were committed at Adelaide between 5th March 1991 and 16th January 1995. The defendant operated a business selling computers and related parts, both locally and imported, and illicitly evaded paying sales tax on the goods by quoting a sales tax exempt number he was not authorised to use. The amount of sales tax evaded was $180,970.92. The court needed to decide on the appropriate penalty for the defendant's conduct, considering the nature and extent of the offending, as well as the personal circumstances of the defendant.

The court found that a term of imprisonment was the appropriate penalty. The court considered the submissions from both the Commonwealth Director of Public Prosecutions and the defendant's counsel. The Crown argued for a longer head sentence due to the increased number of offences and the amount defrauded. However, the defendant's counsel argued for a penalty no greater than that imposed on the previous conviction, and for it to run concurrently. The court took into account the defendant's guilty pleas, contrition, and the fact that the offending was part of the same course of criminal conduct as the previous conviction. The court imposed a sentence of imprisonment for three years, to run concurrently with the unexpired portion of the previous sentence.

The court decided that the defendant would serve only part of the sentence imposed, due to the pleas of guilty and the contrition shown. The court also confirmed the previous recognizance release order, with an effective release date of 5th July 2003. The defendant was ordered to pay a pecuniary penalty in the sum of $180,070.92, with the proceeds of sale of the property restrained by order to be used to reimburse the Official Trustee's costs and disbursements.

Orders