CA No 54 of 2010 CA No 55 of 2010 CA No 140 of 2010 CA No 141 of 2010 SC No 13 of 2010
DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
23 November 2010
DELIVERED AT:
Brisbane
HEARING DATES:
21 June 2010; 22 June 2010
JUDGES:
Muir and Fraser JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
In respect of each appellant it is ordered that:
1. The appeal against conviction be dismissed;
2. Leave to appeal against sentence be granted;
3. The appeal against sentence be allowed;
4. The sentence be set aside;
5. The appellant be sentenced to a term of imprisonment of five years with a non-parole period of two years and six months;
6. The time spent in pre-sentence custody between 8 March 2010 and 23 November 2010, a period of 260 days, be declared imprisonment already served under the sentence.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – appellants charged with two counts of conspiracy to defraud the Commonwealth – appellants acquitted on earlier count (count 1) but convicted on count 2 – appellants set up a tax avoidance scheme – whether payments made under scheme deductible on the basis that they were losses and outgoings incurred in gaining or producing assessable income or necessarily incurred in carrying on a business for the purpose of gaining or producing such income – whether trial judge erred in ruling that the payments were not tax deductible
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – appellant Hargraves submitted verdict unreasonable having regard to the overt acts alleged by the prosecution in relation to count 2 – whether verdict unreasonable
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – trial judge directed the jury that when assessing the credit of witnesses generally they might have regard to their ‘interest in the subject matter of the evidence’ and ‘self-protection’ – whether direction contravened principles in Robinson and Stafford – whether direction gave rise to a miscarriage of justice – whether proviso applicable
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – whether cumulative effect of a number of matters resulted in a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – sentencing hearing conducted on the basis that the appellants’ offending commenced on a certain date – primary judge imposed sentence on the basis that appellants’ offending commenced on an earlier date – whether…
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
AGLC
R v Hargraves & Stoten [2010] QCA 328
Case
[2010] QCA 328
Decision Date
CaseChat Overview and Summary
The appellants, Hargraves and Stoten, were convicted of conspiracy to defraud the Commonwealth in relation to a tax avoidance scheme, and they appealed their convictions and sentences. The primary issues before the court were whether the trial judge erred in ruling that the payments made under the scheme were not tax deductible, and whether the verdict was unreasonable given the evidence. Further, the appellants argued that the trial judge’s direction to the jury regarding the credit of witnesses contravened established principles and led to a miscarriage of justice. They also contended that the cumulative effect of certain matters resulted in a miscarriage of justice. Additionally, the appellants challenged the sentence imposed, arguing it was manifestly excessive given the circumstances of the case.
The court found that the trial judge’s ruling on the tax deductibility of the payments was not erroneous, and that the verdict was not unreasonable in light of the evidence presented. Regarding the direction to the jury, the court held that the trial judge's instruction did not contravene established principles and did not result in a miscarriage of justice. The court also rejected the appellants' argument that the cumulative effect of certain matters led to a miscarriage of justice. As for the sentence, the court held that the primary judge imposed the sentence on a factual basis inconsistent with the jury’s verdict, and that the sentence was manifestly excessive given the appellants’ clean criminal history, the relatively short duration of the offending, and the fact that they repaid the outstanding tax and penalty tax.
The appeal against the convictions was dismissed, and leave to appeal against the sentences was granted. The appeals against the sentences were allowed, the sentences were set aside, and the appellants were each sentenced to five years' imprisonment with a non-parole period of two years and six months. The time spent in pre-sentence custody was declared as time already served under the new sentences.
Orders
Orders of the court
In respect of each appellant it is ordered that:
1. The appeal against conviction be dismissed;
2. Leave to appeal against sentence be granted;
3. The appeal against sentence be allowed;
4. The sentence be set aside;
5. The appellant be sentenced to a term of imprisonment of five years with a non-parole period of two years and six months;
6. The time spent in pre-sentence custody between 8 March 2010 and 23 November 2010, a period of 260 days, be declared imprisonment already served under the sentence.