R v. Edwards; ex parte Cth DPP - [2008] QCA 85

SUPREME COURT OF QUEENSLAND

CITATION:

R v Edwards; ex parte Cth DPP [2008] QCA 85

PARTIES:

R
v
EDWARDS, Gary John Simon
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 18 of 2008
DC No 767 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Cth DPP

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2008

JUDGES:

McMurdo P, Mackenzie AJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – where respondent convicted of offence against s 31(1) Financial Transaction Reports Act 1988 (Cth) – where offence involved conducting cash transactions with the sole or dominant purpose of ensuring that the transfer would not give rise to a “significant cash transaction” reportable to the Australian Transactions Reports and Analysis Centre – where offence consisted of 437 transactions aggregating close to
$3 million – where respondent sentenced to 12 months imprisonment with release after four months on a recognisance of $5,000 to be of good behaviour for a period of three years – whether sentence manifestly inadequate – whether sentence of sufficient deterrent effect

Financial Transaction Reports Act 1988 (Cth), s 4, s 31(1)
Criminal Code Act 1899 (Qld), s 669A

Ansariv R (2007) 173 A Crim R 112; [2007] NSWCCA 204, considered
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Bin Huang; R v See Hon Siu [2007] NSWCCA 259, distinguished
R v Johnson Au [2001] NSWCCA 468, considered
R v Katia; ex parte A-G(Qld) [2006] QCA 300; CA No 111 of 2006, 22 August 2006, cited
R v Liekefett; ex parte A-G [1973] Qd R 355, cited
R v Marshall, unreported, Hoath DCJ, DC No 1183 of 2004, 27 May 2004, considered
R v Melano; ex parte Attorney-General of Queensland [1995] 2 Qd R 186; [1994] QCA 523 cited
R v Narayanan [2002] NSWCCA 200, considered
R v Pullicino, unreported, NSW District Court, 21 June 1996, considered
R v Qin, unreported, Robin DCJ, DC No 245 of 2000, 25 August 2000, distinguished
York v The Queen (2005) 225 CLR 466; [2005] HCA 60, cited

COUNSEL:

G P Long SC for the appellant
P J Davis SC for the respondent

SOLICITORS:

Director of Public Prosecutions (Cth) for the appellant
Russo Lawyers for the respondent

McMURDO P:The appeal of the Commonwealth Director of Public Prosecutions against sentence should be dismissed for the reasons given by Mackenzie AJA. I add only the following brief observations.

Deterrence is an important consideration when sentencing for this offence under s 31(1) Financial Transaction Reports Act 1988 (Cth) ("the Act").…

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.

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Details

Case: [2008] QCA 85
Decision Date: 11 April 2008

CaseChat Overview and Summary

The respondents were convicted of an offence under section 31(1) of the Financial Transaction Reports Act 1988 (Cth). The offence involved conducting cash transactions with the primary intent to avoid triggering a 'significant cash transaction' reportable to the Australian Transaction Reports and Analysis Centre. The offence comprised 437 transactions totaling nearly $3 million. The respondents were sentenced to 12 months imprisonment, with release after four months on a recognisance of $5,000, and required to maintain good behaviour for three years. The Commonwealth Director of Public Prosecutions sought to appeal the sentence, arguing that it was manifestly inadequate and not sufficiently deterrent.

The legal issues before the court were whether the sentence imposed on the respondents was manifestly inadequate and whether it had sufficient deterrent effect. The court needed to consider the nature and seriousness of the offence, the objectives of sentencing, and whether the sentence imposed was disproportionate to the crime committed. The Attorney-General or other Crown law officer's application to increase the sentence required the court to weigh the appropriate punishment for the offence against the rights of the respondents.

The court dismissed the appeal, finding that the sentence was not manifestly inadequate. The primary judge had considered the appropriate punishment for the offence, including the deterrence and denunciation aspects of sentencing. The court held that the sentence imposed was sufficient to achieve the objectives of general deterrence and denunciation. The court also noted the respondents' early guilty plea and the absence of any aggravating circumstances, which were taken into account in determining the sentence. The appeal was dismissed, and the original sentence was upheld.

The court did not make any additional orders beyond dismissing the appeal. The original sentence imposed on the respondents remained in effect. The court's decision emphasised the importance of considering the specific circumstances of each case when determining an appropriate sentence, while also upholding the need for deterrence and denunciation in cases of serious financial crime.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Edwards; ex parte Cth DPP [2008] QCA 85
PARTIES:	R v EDWARDS, Gary John Simon (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant)
FILE NO/S:	CA No 18 of 2008 DC No 767 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Cth DPP
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	27 March 2008
JUDGES:	McMurdo P, Mackenzie AJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – where respondent convicted of offence against s 31(1) Financial Transaction Reports Act 1988 (Cth) – where offence involved conducting cash transactions with the sole or dominant purpose of ensuring that the transfer would not give rise to a “significant cash transaction” reportable to the Australian Transactions Reports and Analysis Centre – where offence consisted of 437 transactions aggregating close to $3 million – where respondent sentenced to 12 months imprisonment with release after four months on a recognisance of $5,000 to be of good behaviour for a period of three years – whether sentence manifestly inadequate – whether sentence of sufficient deterrent effect Financial Transaction Reports Act 1988 (Cth), s 4, s 31(1) Criminal Code Act 1899 (Qld), s 669A Ansariv R (2007) 173 A Crim R 112; [2007] NSWCCA 204, considered House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Bin Huang; R v See Hon Siu [2007] NSWCCA 259, distinguished R v Johnson Au [2001] NSWCCA 468, considered R v Katia; ex parte A-G(Qld) [2006] QCA 300; CA No 111 of 2006, 22 August 2006, cited R v Liekefett; ex parte A-G [1973] Qd R 355, cited R v Marshall, unreported, Hoath DCJ, DC No 1183 of 2004, 27 May 2004, considered R v Melano; ex parte Attorney-General of Queensland [1995] 2 Qd R 186; [1994] QCA 523 cited R v Narayanan [2002] NSWCCA 200, considered R v Pullicino, unreported, NSW District Court, 21 June 1996, considered R v Qin, unreported, Robin DCJ, DC No 245 of 2000, 25 August 2000, distinguished York v The Queen (2005) 225 CLR 466; [2005] HCA 60, cited
COUNSEL:	G P Long SC for the appellant P J Davis SC for the respondent
SOLICITORS:	Director of Public Prosecutions (Cth) for the appellant Russo Lawyers for the respondent