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R v Hughes

R v Hughes

Case [2020] NSWDC 98 9 April 2020

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hughes [2020] NSWDC 98
Hearing dates: 20 March 2020
Decision date: 09 April 2020
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [142]

Catchwords:
Dishonestly obtain by deception a financial advantage from the Commonwealth; attempt same offence

Legislation Cited:
Bail Act 2013
Crimes Act 1914 (Cth)
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Criminal Code (Cth) 1995

Cases Cited:
Brown (aka Davis) v The Queen [2020] VSCA 60
Cahyadi v The Queen (2007) 168 A Crim R 41
Callaghan v R [2006] NSWCCA 58
Hughes v R [2011] NSWCCA 226
Pearce v the Queen (1998) 194 CLR 610
Rakielbakhour v DPP [2020] NSWSC 323
R v Achurch (2011) 216 A Crim R 152
R v Carradonna (2000) 118 A Crim R 312
R v Todd (1982) 2 NSWLR 517
Veen v The Queen (No 2) (1988) 164 CLR 466
Xiao v R [2018] NSWCCA 4
Zreika v R [2012] NSWCCA 44

Category: Sentence
Parties: Director of Public Prosecutions (Cth)
Mark Andrew Hughes (Offender)
Representation:
Counsel:
R J Perrignon (Cth Crown)
W Tuckey (Offender)
Solicitors:
B Scard
H Christinson

File Number(s): 17/16328717/163313
Publication restriction: Nil

REMARKS ON SENTENCE

The offender is to be sentenced in respect of the following two offences for which he has pleaded guilty:

Count 1 - On or about 19 September 2013 at Brushgrove and elsewhere in the State of New South Wales, did attempt, by deception, to dishonestly obtain a financial advantage from the Commonwealth, namely, a Goods and Services Tax refund by causing to be lodged with the Australian Taxation Office, a false Business Activity Statement on behalf of Phillip Thompson (ABN 59 363 636 911).

The offence is contrary to ss 11.1(1) and 134.2(1) of the Criminal Code (Cth) 1995.

Count 2 - Between about 24 February 2014 and about 8 August 2014, at Brushgrove and elsewhere in the State of New South Wales, did, by deception, dishonestly obtain a financial advantage from the Commonwealth, namely, Goods and Services Tax refunds and Fuel Tax Credits, by causing to be lodged with the Australian Taxation Office, six false Business Activity Statements on behalf of Clarence Business & Property Investments Pty Limited (ABN 19 165 756 641).

The offence was contrary to s 134.2(1) of the Criminal Code 1995 (Cth).

In addition, the offender asked to be taken into account the following two items on a Schedule pursuant to s 16BA of the Crimes Act 1914 (Cth):

On or about 4 September 2014 at Brushgrove and elsewhere in the State of New South Wales, he did attempt, by a deception, to dishonestly obtain a financial advantage from the Commonwealth, namely, a Goods and Services Tax refund, by causing to be lodged with the Australian Taxation Office, a false Business Activity Statement for the tax period 1 August 2014 to 31 August 2014 on behalf of Clarence Business & Property Investments Pty Limited.

On…

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 Hughes

Details

AGLC: R v Hughes [2020] NSWDC 98
Case: [2020] NSWDC 98
Decision Date: 09 April 2020

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Hughes, the court was presented with the issue of the defendant's attempt to obtain a financial advantage by means of deception. The case was heard in the Federal Court of Australia, with the defendant charged under the Commonwealth Criminal Code for attempting to dishonestly obtain a financial advantage by deception. The defendant's actions involved an intricate scheme where he sought to manipulate the system to receive financial benefits to which he was not entitled.

The legal issues before the court were primarily concerned with the interpretation and application of the criminal provisions related to obtaining financial advantage by deception. The court was required to determine whether the defendant's actions constituted an attempt to commit the offence and whether the prosecution had sufficiently proven the elements of the offence beyond reasonable doubt. The court also needed to consider the appropriate sentence if the defendant was found guilty.

The court found that the defendant had indeed attempted to obtain a financial advantage by deception, as evidenced by the detailed planning and execution of the scheme. The court emphasised the seriousness of the offence and the need to deter such conduct. In sentencing, the court took into account the gravity of the offence, the defendant's role in the scheme, and the need for general deterrence. The court imposed a full-time custodial sentence, with specific orders outlined in the judgment.

Orders

Orders of the court

Full-time custodial sentence. For orders see [142]

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Hughes [2020] NSWDC 98

Most Recent Citation

Director of Public Prosecutions v McFarlane [2025] VCC 1351

Cases citing this decision · 3 of 3 shown

Director of Public Prosecutions v McFarlane
[2025] VCC 1351

…2015] VSCA 94; R v Massey [2015] QCA 254; Cao v The Queen [2010] NSWCCA 109; DPP v Ockwell [2024] VCC 270; DPP v Blanke [2023] VCC 1291; DPP v Hughes [2020] NSWDC 98; DPP v Dattilo [2026] VCC 1617; DPP v Castaldi [2015] VCC 596; DPP v Wilkins [2014] VCC 1344. [10] DPP v Ockwell [2024] VCC 270. 72I am satisfied tha…
Nweke v The Queen (No 2)
[2020] NSWCCA 227 Para 31

…The third proposal was to adopt the structure of the sentence imposed in similar circumstances in R v Hughes [2020] NSWDC 98. In that case, the Commonwealth Director of Public Prosecutions urged the sentencing judge (Mahony SC DCJ) to fix the new sentence to commence on the date of imposition but to reduce its ter…
Nweke v R
[2020] NSWCCA 153 Para 77

…roach where the sentencing for the further offence takes place after the expiry of the earlier parole period is described by Mahony DCJ in R v Hughes [2020] NSWDC 98 at [137]-[138] as follows:…

View all 3 citing cases →

Cases cited in this decision · 18 of 18 shown

R v Todd
[2024] NZHC 897 Para 136

…n. Nor am I satisfied that the offender could be described as being in a “state of uncertain suspense”, as referred to by Street CJ in R v Todd (1982) 2 NSWLR 517, a case involving the effect of serious delay as a mitigating factor in sentence. The Covid-19 pandemic is therefore not a matter which can be given much w…
Rakielbakhour v DPP
[2020] NSWSC 323 Para 134

…legal representatives have been taken into account on applications under the Bail Act 2013 in this jurisdiction (see for example Rakielbakhour v DPP [2020] NSWSC 323 per Hamill J). Having considered the jurisprudence that has emerged here and in other jurisdictions within the last month, no general sentencing prin…
Brown v The Queen
[2020] VSCA 60 Para 107

…The Crown referred to the Victorian Supreme Court decision in Brown (aka Davis) v The Queen [2020] VSCA 60 at [48], where the court recognised that the impact of the virus was a situation that was rapidly evolving and the court was reluctant to express a general statement of principle regarding how courts should…
Xiao v R
[2018] NSWCCA 4 Para 46

…h of the prosecution case. Whilst the discount for the plea of guilty need not be quantified, its quantification was desirable, relying on Xiao v R [2018] NSWCCA 4 at [278]. Here the offender’s pleas were late. Although they avoided a trial, the Crown submitted that they did not demonstrate genuine contrition, rem…
Zreika v R
[2012] NSWCCA 44 Para 125

…ed by the application of sentencing principles and construction of numerous provisions of the Crimes Act 1914 (Cth) . As Johnson J said in Zreika v R [2012] NSWCCA 44 at [83]:…
Hughes v R
[2011] NSWCCA 226 Para 31

…Also included in Exhibit A was the offender’s appeal to the Court of Criminal Appeal which was dismissed on 5 October 2011 (see [2011] NSWCCA 226).…
Cahyadi v R
[2007] NSWCCA 1 Para 52

…well‑established authority, for example Pearce v the Queen (1998) 194 CLR 610, and the application of the principle of totality in accordance with Cahyadi v The Queen (2007) 168 A Crim R 41.…
Callaghan v R
[2006] NSWCCA 58 Para 88

…The Crown submitted that the offender’s reliance on Callaghan v R [2006] NSWCCA 58 was misconceived. Here, the proper application of the principle of totality required a significant degree of accumulation between the sentences to be imposed on Counts 1 and 2, and the balance of parole to be served. As the balance o…
R v Badanjak
[2004] NSWCCA 395

…d any damage to health or shortening of life: R v Sopher at 573; R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at 6-8 [23] – [31]. 118 In R v Badanjak [2004] NSWCCA 395, Wood CJ at CL (McClellan AJA and Smart AJ agreeing), at [9] – [11], summarised the principles applicable where an offender’s medical condition was sough…
R v Wickham
[2004] NSWCCA 193

…nt contexts, including, for example, offenders with the HIV virus ( R v Higgins [2002] NSWCCA 407; 133 A Crim R 385), asthma and angina ( R v Wickham [2004] NSWCCA 193) and ischaemic heart disease and non-insulin dependent diabetes ( R v Way ). 120 In R v Higgins , Howie J (Wood CJ at CL and Smart AJ agreeing) said…
R v Keir
[2004] NSWCCA 106

…is trite that poor physical health and its impact upon the severity of an offender’s imprisonment are relevant factors in sentencing. R v Kier [2004] NSWCCA 106 is a recent authority for that proposition if any is needed. But it is clear that ill health does not necessarily require that a sentence be mitigated from…
R v Higgins
[2002] NSWCCA 407

…n system. This Court has considered this factor on sentence in different contexts, including, for example, offenders with the HIV virus ( R v Higgins [2002] NSWCCA 407; 133 A Crim R 385), asthma and angina ( R v Wickham [2004] NSWCCA 193) and ischaemic heart disease and non-insulin dependent diabetes ( R v Way ). 12…
R v BJW
[2000] NSWCCA 60

…ate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life: R v Sopher at 573; R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at 6-8 [23] – [31]. 118 In R v Badanjak [2004] NSWCCA 395, Wood CJ at CL (McClellan AJA and Smart AJ agreeing), at [9] – [11], summaris…
Regina v Azar
[2000] NSWCCA 26

…by this court in R v Vachalec [1981] 1 NSWLR 351 and R v L NSWCCA 17 June 1996; see also R v Burrell (2004) 114 A Crim R 207 and R v Azar [2000] NSWCCA 26. [11] It remains the responsibility of the Corrective Services Authorities to provide appropriate care and treatment for prisoners: see R v Vachalec , and R v Kr…
Pearce v The Queen
[1998] HCA 57 Para 52

…f any sentence to be imposed, and the degree of accumulation required in accordance with well‑established authority, for example Pearce v the Queen (1998) 194 CLR 610, and the application of the principle of totality in accordance with Cahyadi v The Queen (2007) 168 A Crim R 41.…
Bailey v Director of Public Prosecutions
[1988] HCA 19

…imprisonment will have a grave adverse effect on the offender’s health. [10] That decision was applied by the High Court in Bailey v DPP (1988) 62 ALJR 319, and by this court in R v Vachalec [1981] 1 NSWLR 351 and R v L NSWCCA 17 June 1996; see also R v Burrell (2004) 114 A Crim R 207 and R v Azar [2000] NSWCCA 26.…
Veen v The Queen (No 2)
[1988] HCA 14 Para 48

…warranting greater emphasis on consideration of retribution, deterrence and the protection of society in accordance with Veen v The Queen (No 2) (1988) 164 CLR 466 at 477.…
[1981] NSWCCA 26
[1981] NSWCCA 26

…r’s health. [10] That decision was applied by the High Court in Bailey v DPP (1988) 62 ALJR 319, and by this court in R v Vachalec [1981] 1 NSWLR 351 and R v L NSWCCA 17 June 1996; see also R v Burrell (2004) 114 A Crim R 207 and R v Azar [2000] NSWCCA 26. [11] It remains the responsibility of the Corrective S…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
2 mentions (from Para 27)
Bail Act 2013 (NSW)
1 mention (from Para 134)
Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 138)
Crimes Act 1914 (Cth)
1 mention (from Para 32)

Medium Neutral Citation:	R v Hughes [2020] NSWDC 98
Hearing dates:	20 March 2020
Decision date:	09 April 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [142]
Catchwords:	Dishonestly obtain by deception a financial advantage from the Commonwealth; attempt same offence
Legislation Cited:	Bail Act 2013 Crimes Act 1914 (Cth) Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Criminal Code (Cth) 1995
Cases Cited:	Brown (aka Davis) v The Queen [2020] VSCA 60 Cahyadi v The Queen (2007) 168 A Crim R 41 Callaghan v R [2006] NSWCCA 58 Hughes v R [2011] NSWCCA 226 Pearce v the Queen (1998) 194 CLR 610 Rakielbakhour v DPP [2020] NSWSC 323 R v Achurch (2011) 216 A Crim R 152 R v Carradonna (2000) 118 A Crim R 312 R v Todd (1982) 2 NSWLR 517 Veen v The Queen (No 2) (1988) 164 CLR 466 Xiao v R [2018] NSWCCA 4 Zreika v R [2012] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions (Cth) Mark Andrew Hughes (Offender)
Representation:	Counsel: R J Perrignon (Cth Crown) W Tuckey (Offender) Solicitors: B Scard H Christinson
File Number(s):	17/16328717/163313
Publication restriction:	Nil