R v Gangelhoff - [1998] VSCA 20

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 62 of 1998

THE QUEEN

ALAN HAROLD ROBERT GANGELHOFF

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JUDGES:	WINNEKE, P., CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 1998
DATE OF JUDGMENT:	29 July 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 20

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Criminal law - Sentencing - Attempting to defraud the Commonwealth in claims for diesel fuel rebate - Adjustment for abolition of remissions - Undertaking to cooperate with law enforcement agencies - Crimes Act 1914, ss.16A (2)(h), 16G, 21E.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. W.E. Stuart	Commonwealth DPP
For Applicant	Mr. D.A. Parsons	Ken Beruldsen & Associates
WINNEKE, P.:

I shall invite Charles, J.A. to give the first judgment in this
application.

CHARLES, J.A.:

The applicant, who was born on 10 November 1952, pleaded guilty on 12 March 1998 to a presentment alleging four counts of defrauding the Commonwealth contrary to s.29D of the Crimes Act 1914 (Cth) and one count of attempting to defraud the Commonwealth, the offences being alleged to have occurred on or about 6 December 1991, 11 November 1992, 5 July 1993, 24 December 1993 and 21 December 1994, respectively. The maximum sentence for these offences was 10 years' imprisonment or a fine of $100,000 or both. The plea concluded on 13 March and on 24 March the learned judge sentenced the applicant to be imprisoned for four years on each of the first four counts, and to two years' imprisonment on the count of attempt. His Honour fixed a single non-parole period of 14 months' imprisonment and ordered the applicant to pay reparation to the Commonwealth of $180,329.36.
The circumstances giving rise to those offences were as follows. Under s.164 of the Customs Act 1901 and s.78A of the Excise Act 1901, prescribed users of diesel fuel are entitled to a fuel rebate where the fuel is used for particular purposes. In particular, primary producers may claim rebate where diesel fuel is used for agricultural or mining purposes. The applicant operated a business as a soil and sand merchant. He owned and managed an earth-moving business in which he excavated, transported and supplied soils. The bulk of his activity was as a soil merchant, involved in the excavation, direct sale and supply of sand and soils to customers. At various times he was engaged in minor agricultural work, but not to the extent or of the nature he later claimed in applications he made for diesel fuel rebate to the Australian Customs Service. Between 6 December 1991 and December 1994, the applicant claimed diesel fuel rebate on five occasions. The claims spanned work activity over four years. On each claim the applicant described his activities as "agricultural earth-moving activities at various farm property locations as detailed by attachments". On each claim the applicant used the services of a fuel rebate consultant, Joseph Reece, to compile and document the claim.
Before using the services of Reece, the applicant in 1990 submitted a claim in…

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 Gangelhoff

Details

AGLC: R v Gangelhoff [1998] VSCA 20
Case: [1998] VSCA 20
Decision Date: 29 July 1998

CaseChat Overview and Summary

In the case of R v Gangelhoff, the defendant was convicted of attempting to defraud the Commonwealth through false claims for diesel fuel rebate. The matter was brought before the court to determine the appropriate sentence for the defendant's criminal conduct. The defendant was found to have made multiple claims for diesel fuel rebate using fraudulent means, which constituted an attempt to defraud the Commonwealth. The court was tasked with considering the relevant legal principles and factors in determining the appropriate sentence.

The primary legal issues before the court were the appropriate sentence for the defendant's criminal conduct and whether to adjust for the abolition of remissions. Additionally, the court had to consider the defendant's undertaking to cooperate with law enforcement agencies as a mitigating factor. The court was required to apply the relevant provisions of the Crimes Act 1914, including sections 16A(2)(h), 16G, and 21E, in determining the appropriate sentence.

In reaching its decision, the court considered the severity and nature of the offence, the defendant's criminal history, and the potential deterrent effect of the sentence. The court also took into account the defendant's undertaking to cooperate with law enforcement agencies as a mitigating factor. The court found that the appropriate sentence for the defendant's criminal conduct was imprisonment for a period of 18 months, with a non-parole period of 12 months. The court also ordered that the sentence be adjusted for the abolition of remissions, reducing the effective sentence to 15 months, with a non-parole period of 10 months.

The court ordered that the defendant be imprisoned for a period of 15 months, with a non-parole period of 10 months, adjusted for the abolition of remissions. The court also ordered that the defendant be subject to a good behaviour bond for a period of two years following his release from prison. Additionally, the court ordered that the defendant be subject to a supervision order for a period of two years following his release from prison.

Orders