R v Duong No. Sccrm-00-268

[2001] SASC 36

R v DUONG
[2001] SASC 36

Court of Criminal Appeal:  Doyle CJ, Duggan and Williams JJ
(Leave to Appeal in Private)

1................ DOYLE CJ, DUGGAN AND WILLIAMS JJ.             This is an application for leave to appeal against sentence.

1. The applicant was sentenced by a District Court Judge on two counts of defrauding the Commonwealth.  The applicant was found guilty by a jury.  The maximum penalty for each offence is imprisonment for 10 years or a fine of $110,000.  The offences arose out of the submission of false tax returns.

2. The Judge imposed a single sentence of imprisonment for three years.  The Judge directed that the applicant be released after serving 12 months of that sentence.  The applicant is to be released upon entering a recognisance to be of good behaviour for two years.

3. The applicant has sought to leave to appeal against the sentence on the basis that the sentence is manifestly excessive. There is also a complaint that the Judge sentenced the applicant on an erroneous factual basis. The applicant also claims, in the grounds of appeal, that the Judge failed to take into account the abolition of remissions, contrary to s 16G of the Crimes Act 1914 (Cth).

4. The application for leave to appeal was filed about five days after the expiry of the time within which it should have been filed.  It is not clear whether or not Nyland J intended to refuse to extend time within which to make application for leave to appeal.  However, it is clear from what Her Honour said that if she thought there had been an arguable case on appeal, she would have granted an extension of time.

5. By application dated 25 January 2001 the applicant applied to have determined by the Full Court her application for leave to appeal against sentence.  The application was considered by the Full Court in private.  The Court for that purpose comprised me, Duggan J and Williams J.

6. For these purposes the Court has had available to it the sentencing remarks, the transcript before Nyland J and her reasons for refusing leave, and a written summary of argument prepared by counsel for the applicant.

7. The Court is unanimously of the opinion that leave to appeal should be refused.

8. The crimes were committed pursuant to a carefully planned and executed fraudulent scheme.  The scheme continued over a period of about two years.  The applicant overstated expenditure by about $900,000, and the tax avoided, including penalties, is said to be of the order of $500,000.  The net loss to the Commissioner of Income Tax is estimated at the order of $350,000.

9. This is the sort of offence that calls for a heavy penalty, and for a deterrent penalty.  The sentence imposed reflects that requirement.  There is no reason to think that the Judge overlooked the fact that remissions are not available.

10. As to the complaint that the Judge may have overstated the amounts involved, and may have over estimated the net loss, the short answer is that, that is largely supposition.  The Judge made findings.  The applicant chose not to give evidence in relation to these matters as part of the sentencing submission.  The Judge had available to him the transcript of the trial.  In any event, as Nyland J said, it is questionable whether the sentence could have been affected by differences in the amounts of the sort suggested by the applicant.

11. Our view is that the appeal has no reasonably arguable prospect of success, and it is for that reason that we refuse leave to appeal.