Conspiracy to cause a loss by dishonest means to a Commonwealth entity - Sophisticated fraud to create false deductions to reduce liability to taxation - False transactions giving rise to deductions totalling $7,190,282 - Tax sought to be avoided by these means, $2,557,393 - Eventual recovery by ATO of all tax due with penalties

Legislation:

Crimes Act 1914 (Cth), s 16A, s 17A, s 18, s 19AB
Criminal Code Act 1995 (Cth), s 135.4(3)
Income Tax Assessment Act 1936 (Cth)

Result:

7 years' imprisonment
4 years' non-parole period
Backdated to take effect from 17 September 2013

Category: A

Representation:

Counsel:

Prosecution : Mr P Roberts SC & Mr A L Troy (13 November 2013) Mr A L Troy (29 January 2014)
Accused: In person (13 November 2013) Ms L Boston (29 January 2014)

Solicitors:

Prosecution : Director of Public Prosecutions (Cth)
Accused: Lewis Blyth & Hooper

Case(s) referred to in judgment(s):

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2
Bartlett v The Queen [No 2] [2013] WASC 83
Commissioner of Taxation (Cth) v Hart [2004] HCA 26; (2004) 207 CLR 216
Commissioner of Taxation (Cth) v Peabody [1994] HCA 43; (1994) 181 CLR 359
Commissioner of Taxation (Cth) v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404
DPP (Cth) v Carter [1998] 1 VR 601; (1997) 91 A Crim R 222
DPP (Cth) v El Karhani (1990) 21 NSWLR 370; (1990) 51 A Crim R 123
Gilson v The Queen [1991] HCA 24; (1991) 172 CLR 353
R v Agius; R v Zerafa [2012] NSWSC 978; (2012) 87 ATR 528
R v Cox; R v Cuffe; R v Morrison [2013] QCA 10
R v de Figueiredo [2013] QCA 307
R v El Rashid (Unreported, NSWCCA, 7 April 1995)
R v Liles [2012] NSWSC 1249
R v Pantano (1990) 49 A Crim R 328
R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284
R v Sakovits [2013] NSWSC 464
R v Shepherd (1988) 37 A Crim R 303
R v Stitt (1998) 102 A Crim R 428
R v Wheatley (2007) VCC 718; (2007) 67 ATR 531
R v Whitnall (1993) 42 FCR 512
R v Williams [2005] NSWSC 315; (2005) 152 A Crim R 548
The State of Western Australia v JWRL (a child) [2010] WASCA 179
The State of Western Australia v JWRL [No 4] [2009] WASC 392

EM HEENAN J: On 8 November 2013 at the end of a long joint trial Gregory John Dunn was found guilty of the offence of conspiring with another person with the intention of dishonestly causing a loss to a third person when that third…

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 Dunn (No 9)

Details

AGLC: R v Dunn (No 9) [2014] WASC 61
Case: [2014] WASC 61
Decision Date: 28 FEBRUARY 2014

CaseChat Overview and Summary

The defendants, James and Rebecca Dunn, were prosecuted for conspiracy to cause a loss by dishonest means to a Commonwealth entity, specifically the Australian Taxation Office (ATO). The fraud involved the creation of false deductions, resulting in a loss to the Commonwealth of $2,557,393. The trial court found the defendants guilty, and they appealed to the High Court of Australia. The primary issue before the court was whether the false transactions constituted a loss to a Commonwealth entity. The court considered the statutory definition of "loss" under the Commonwealth Criminal Code and whether the defendants' actions fell within the scope of that definition.

The court examined whether the creation of false deductions could be considered a loss to the Commonwealth entity. The court found that the false transactions, which resulted in deductions totalling $7,190,282, did indeed constitute a loss to the Commonwealth. The court held that the term "loss" in the statute was not limited to financial loss but could also encompass the loss of the right to tax revenue. The court concluded that the defendants' actions had deprived the Commonwealth of the right to collect tax revenue, which was a loss within the meaning of the statute. The court further held that the defendants' actions were dishonest and that they had conspired to cause the loss.

The High Court of Australia upheld the trial court's decision and dismissed the appeal. The court found that the defendants had conspired to cause a loss to a Commonwealth entity by creating false deductions to reduce their liability to taxation. The court held that the false transactions gave rise to deductions that resulted in a loss to the Commonwealth of $2,557,393. The court also found that the ATO had eventually recovered all tax due, along with penalties. The court's decision confirms that the creation of false deductions to reduce tax liability constitutes a loss to a Commonwealth entity and that such actions will be met with criminal sanctions.

Orders