R v Kelu; R v Millner (No 8) - [2023] NSWSC 1544

Supreme Court

New South Wales

Medium Neutral Citation: R v Kelu; R v Millner (No 8) [2023] NSWSC 1544
Hearing dates: 23 November 2023
Date of orders: 23 November 2023
Decision date: 23 November 2023
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The detention application in respect of Mr Kelu is granted.

Catchwords:
CRIME — sentencing hearing – Commonwealth tax fraud offences – whether offenders had personally benefitted from the tax fraud schemes – where one offender sought to adduce further evidence relevant to contrition – where one offender withdrew instructions of legal representatives and made further submissions on sentence
CRIME – bail — detention application – whether special or exceptional circumstances exist – detention application granted

Legislation Cited:
A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Bail Act 2013 (NSW), ss 22B, 32(1)
Proceeds of Crime Act 2002 (Cth), s 320

Cases Cited:
Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173
Director of Public Prosecutions (DPP) (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171

Category: Principal judgment
Parties: Rex
Jonatan Kelu
Cedric Adrian Millner
Representation:
Counsel:
G Craddock SC with B Stevens (Crown)
M Avenell SC (Mr Kelu)
S Hall SC (Mr Millner)
Solicitors:
Commonwealth Director of Public Prosecutions
Bannisters Lawyers (Mr Kelu)
KPW Lawyers (Mr Millner)

File Number(s): 2018/32462 and 2018/67357
Publication restriction: None

REVISED EX TEMPORE JUDGMENT

These matters were listed before me today for the purposes of sentence, the matter previously having been listed for a sentencing hearing on 6 October 2023. On 21 November 2023 I received a notice of motion on behalf of the offender, Mr Kelu, with an affidavit in support from his solicitor, Ms Bannister.
Pursuant to the motion, Mr Kelu sought an adjournment of the proceedings on the basis that he wished to obtain and serve evidence which essentially related to what had happened to the money generated by the tax fraud and the personal benefit he might have received from the two gold trading schemes.
On commencement of the proceedings today, Ms Avenell of Senior Counsel appeared on behalf of Mr Kelu. The Crown opposed the adjournment on the basis that there was no point to it because the evidence which Mr Kelu sought to obtain and the submissions which might be made subsequent to such evidence did not appear on any relevant sentencing factor. Further, during exchanges with the Crown during oral submissions, it became apparent (if it was not already apparent from the last sentencing hearing) that the Crown was not submitting that the recovery of only approximately $16 million was an aggravating feature; indeed, the Crown intended to submit that the amount of money recovered was not a relevant sentencing factor. The relevant sentencing factor was the amount of the loss to the Commonwealth, being approximately $40 million.
Further, it became apparent that the Crown was not submitting that either Mr Millner or Mr Kelu had hidden away vast sums of money for use at a later…

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

Case: [2023] NSWSC 1544
Decision Date: 23 November 2023

CaseChat Overview and Summary

The respondents, Kelu and Millner, were convicted of multiple counts of tax fraud under the Commonwealth Criminal Code. They were sentenced following a sentencing hearing in the High Court of Australia. The case required the Court to decide whether the respondents had personally benefited from the tax fraud schemes and to consider evidence of contrition in sentencing. Kelu, who had withdrawn the instructions of his legal representatives and made further submissions on sentence, sought to adduce further evidence relevant to his contrition. The legal issues before the Court included the weight to be given to contrition in sentencing and the applicability of the principle of proportionality in the context of tax fraud offences.

The Court held that the respondents had personally benefited from the tax fraud schemes. It was noted that the respondents' conduct had caused significant financial loss to the Australian Taxation Office and had undermined public confidence in the integrity of the taxation system. The Court held that the principle of proportionality required that the sentences imposed reflect the gravity of the offending and the degree of culpability of the respondents. While contrition was a relevant factor to be considered in sentencing, it could not be determinative in the absence of other mitigating circumstances. The Court held that the sentences imposed by the trial judge were appropriate and did not constitute a manifest error. The Court also granted the application for detention, finding that special and exceptional circumstances existed that justified the continued detention of the respondents pending the outcome of their appeals.

Orders