R v Hutton - [2004] NSWCCA 60

CITATION: Regina v Anthony Kendall Hutton [2004] NSWCCA 60

HEARING DATE(S): 8 March 2004

JUDGMENT DATE:
19 March 2004

JUDGMENT OF: Sully J at 1; Simpson J at 75; Sperling J at 76

DECISION: Leave granted to appeal against sentence; Appeal against sentence upheld to extent only of quashing the non-parole period of 25 months fixed by primary sentencing Judge; Fixed in lieu a non-parole period of 18 months to date from 6 June 2003 and expire on 5 December 2004

LEGISLATION CITED: Financial Transaction Reports Act 1988 (C'th)
Justices Act 1902 (NSW)
Crimes Act 1914 (C'th)

CASES CITED: Tickle Industries Pty Limited v Hann & anor. (1974) 130 CLR 321 at 331
Reg v Thomson and Houlton (2000) 49 NSWLR 383

PARTIES :
Regina
Anthony Kendall Hutton

FILE NUMBER(S): CCA 60411/03

COUNSEL: M. Bracks - Crown
M. Ramage QC - Appellant

SOLICITORS: Commonwealth Director of Public Prosecutions - Crown
William O'Brien Solicitors - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0360

LOWER COURT
JUDICIAL OFFICER : Latham DCJ

60411/03

SULLY J
SIMPSON J
SPERLING J
19 March 2004

REGINA v ANTHONY KENDALL HUTTON

Judgment

1 SULLY J: On 12 April 2002 the applicant, Mr. Hutton, pleaded guilty in the Local Court to 21 charges, each of which alleged an offence contravening section 31(1) of the Financial Transaction Reports Act 1988 (C’th), (hereinafter “the Financial Transaction Act”).

2 Section 31(1) provides:

“A person commits an offence against this section if:

(a) the person is a party to 2 or more non-reportable cash transactions; and

(b) having regard to:

(i) the manner and form in which the transactions were conducted, including, without limiting the generality of this, all or any of the following:

(A) the value of the currency involved in each transaction;

(B) the aggregated value of the transactions;

(D) the interval of time between any of the transactions;

(E) the locations at which the transactions took place; and

(ii) any explanation made by the person as to the manner or form in which the transactions were conducted;

it would be reasonable to conclude that the person conducted the transactions in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the currency involved in the transactions was transferred in a manner and form that:

(iii) would not give rise to a significant cash transaction; or

(iv) would give rise to exempt cash transactions.”

3 The following definitions, contained in section 3 of the Financial Transaction Act, are relevant to the construction and operation of section 31(1) of that Act:

non-reportable cash transaction

(a) to which a cash dealer is a party; and

(b) that is not a significant cash transaction or is an exempt cash transaction.”

significant cash transaction

4 A contravention of section 31(1) attracts…

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 Hutton

Details

AGLC: R v Hutton [2004] NSWCCA 60
Case: [2004] NSWCCA 60
Decision Date: 19 March 2004

CaseChat Overview and Summary

In Regina v Anthony Kendall Hutton, the applicant, Anthony Kendall Hutton, appealed against the severity of his sentence for 21 charges of contravening section 31(1) of the Financial Transaction Reports Act 1988 (Cth). Hutton was found guilty of conducting 299 cash transactions, each less than $10,000, to various overseas accounts, totalling over $2.7 million. Hutton's wife, Helena Rule, was also convicted for her involvement in similar offences. The District Court sentenced Hutton to imprisonment for 3 years and 6 months, with a non-parole period of 2 years and 1 month. The Court of Criminal Appeal heard Hutton's appeal on seven grounds, including the severity of the sentence, the failure to accumulate sentences properly, and the inadequate consideration of Hutton's early guilty plea and voluntary cessation of criminal activities.

The Court of Criminal Appeal found that the sentence was not manifestly excessive, except for the non-parole period. The Court noted that Hutton's non-parole period was disproportionately longer than his wife's sentence, despite the difference in their respective roles and involvement in the crimes. The Court granted leave to appeal against the sentence and reduced the non-parole period to 18 months, effective from 6 June 2003, and expiring on 5 December 2004. The Court did not uphold the other grounds of appeal, including the argument that the sentencing judge failed to explain the consequences of the non-parole period as required by section 16F of the Crimes Act 1914 (Cth).

Orders