R v Gay

Case [2002] NSWCCA 6 5 February 2002

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CITATION: REGINA v GAY [2002] NSWCCA 6

FILE NUMBER(S): CCA 60285/01

HEARING DATE(S): 8 November 2001

JUDGMENT DATE:
5 February 2002

PARTIES :

REGINA v Brian Edward GAY

JUDGMENT OF: Mason P at 1; Hulme J at 20; Hidden J at 27

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/31/0334

LOWER COURT JUDICIAL
OFFICER : Shillington DCJ

COUNSEL : Appellant: E Nicholson QC
Respondent Crown: G Bellew

SOLICITORS: Appellant: Gray & Ryan
Crown: Commonwealth Director of Public Prosecutions

CATCHWORDS: Criminal appeal - sentencing - tax fraud - appropriateness of custodial sentence - relevance of administrative penalties imposed by Tax Commissioner - serious dely in laying charges a factor in mitigating otherwise appropriate sentence

CASES CITED:
R v Stitt (1998) 102 ACrimR 428
R v Hamman (CCA, 1 December 1998, unreported)
R v Kelvin [2000] NSWCCA 190
R v Cappadona (2001) 47 ATR 317
Blanco (1999) 106 A Crim R 303
R v Todd [1982] 2 NSWLR 517
Mill v The Queen (1988) 166 CLR 59
R v Schwabegger [1998] 4 VR 649
R v Morris (1993) VR 192
Whitnall (1993) 68 A Crim R 119

DECISION: Reasons for orders made 8 November 2001

CCA 60285/01

MASON P
HULME J
HIDDEN J

Tuesday 5 February 2002

REGINA v Brian Edward GAY

JUDGMENT

1 MASON P: The applicant, Brian Edward Gay, was dealt with in the District Court for ten charges of defrauding the Commonwealth, pursuant to s 29D of the Crimes Act, 1914 (Cth). Five charges related to his failure to declare part of his income in his personal income tax returns for the years ended 30 June 1989 to 1993. The other five charges related to his being knowingly concerned in the failure by a company known as Roktat Pty Limited to declare part of its income in its income tax returns for the same financial years. On 26 April 2001 Shillington DCJ sentenced him on each charge to concurrent terms of imprisonment for three years, to date from the date on which sentence was passed, and directed his release on recognizance upon certain conditions after twelve months.

2 The applicant sought leave to appeal against those sentences. The application was heard on 8 November 2001 and the Court determined that the appeal should be allowed and the appellant resentenced, undertaking to give its reasons later. Effectively, the three year sentence was affirmed but the recognizance release order was varied so as to enable the applicant’s release that same day, 8 November. These are my reasons for that decision.

3 The applicant and his wife were the directors of Roktat Pty Limited. However, the applicant’s wife had no active role in the company’s affairs and it was effectively controlled by the applicant himself. The company carried out electrical installation work in coalmines in the Hunter Valley. During the relevant financial years the applicant prepared invoices in the name of Trademax Products, a registered business name in which he and his wife had an interest, which falsely…

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 Gay

Details

AGLC: R v Gay [2002] NSWCCA 6
Case: [2002] NSWCCA 6
Decision Date: 5 February 2002

CaseChat Overview and Summary

In the case of R v Gay, the appellant was convicted of multiple counts of tax fraud and was sentenced to imprisonment. The appeal before the court focused on the appropriateness of the custodial sentence imposed, considering the administrative penalties already imposed by the Tax Commissioner. The appellant argued that the severity of the sentence was unwarranted given the additional administrative penalties and the significant delay in the prosecution. The court was required to determine whether the sentence was excessive or inappropriate in light of these factors.

The legal issues before the court involved whether the administrative penalties imposed by the Tax Commissioner should be taken into account when determining the custodial sentence, and whether the serious delay in laying charges warranted a reduction in the sentence. The court considered whether the sentence imposed was disproportionate, taking into account the appellant's culpability, the deterrence value of the sentence, and the need for the sentence to reflect the seriousness of the offence.

The court held that while the administrative penalties imposed by the Tax Commissioner were relevant, they were not the sole determinant of the appropriate sentence. The court acknowledged the delay in prosecution but found that it did not sufficiently mitigate the appellant's culpability or the need for a punitive sentence. The court ultimately determined that the sentence was appropriate and not excessive, as it reflected the gravity of the offences and served the purposes of punishment, deterrence, and denunciation. The appeal was dismissed.

The court did not make any orders altering the sentence imposed on the appellant, upholding the original custodial sentence as appropriate and proportionate to the crimes committed.

Orders