R v Kelvin - [2000] NSWCCA 190

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v KELVIN [2000] NSWCCA 190

FILE NUMBER(S):
60532/99

HEARING DATE(S): 18 May 2000

JUDGMENT DATE: 18/05/2000

PARTIES:
REGINA v Wilfred H C KELVIN

JUDGMENT OF: Mason P Heydon JA Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0087

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

COUNSEL:
Applicant: J W Conomos
Crown: R F Sutherland

SOLICITORS:
Applicant: Peter O'Neill
Crown: Commonwealth DPP

CATCHWORDS:
Tax fraud - professional accountant - Application for leave to appeal against severity of sentence

LEGISLATION CITED:

DECISION:
Sentence varied - See par 17

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60532/99
MASON P
HEYDON JA
SMART AJ
Thursday 18 May 2000

REGINA v Wilfred H C KELVIN
JUDGMENT

MASON P: The applicant seeks leave to appeal against the severity of sentences imposed in the District Court by Judge Freeman. The applicant pleaded guilty to six counts of defrauding the Commonwealth contrary to s29D of the Crimes Act 1914 (Cth). The maximum penalty in respect of each offence was 10 years imprisonment or a fine of $110,000 or both. On each count the applicant was sentenced to imprisonment for 2½ years, subject to a recognisance release order directing that the applicant be released on recognisance after 18 months of the sentence.
When he appeared for sentence in August 1999, the applicant was a certified practising accountant and registered tax agent who had been running his own accounting business at Balgowlah and Epping the previous 26 years. The offences were based on a system adopted between 1991 and 1995. The applicant removed tax stamps from documentation provided to him by clients. These stamps were then used in his own tax returns for the years 1991 to 1994 and in the returns of his former de facto wife for 1993 and 1994. The applicant then claimed in the relevant income tax returns that taxation instalment deductions had been made by him through the purchase of tax stamps. This not only satisfied the tax liability in the relevant years, but also resulted in a refund for those years. The conduct came to light when the applicant was reported to the Australian Tax Office by an employee.
The applicant was committed for trial. He pleaded guilty over a year later and only two weeks before the listed hearing date for trial. According to the sentencing judge the Crown case appeared to be a strong one. Shortly before the sentencing proceedings the applicant paid the reparation sought by the Australian Tax Office in the sum of $97,000.
The applicant was 54 at the time of sentencing. He had been through an acrimonious divorce eight years previously and he lived alone. The pre-sentence report provided by the Probation and Parole Service indicated that the applicant displayed little contrition, maintaining that his staff committed the offences.
The learned sentencing judge described the offences and the circumstances of the plea of guilty. He correctly observed that the value of the plea lay primarily in…

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 Kelvin

Details

AGLC: R v Kelvin [2000] NSWCCA 190
Case: [2000] NSWCCA 190
Decision Date: 18 May 2000

CaseChat Overview and Summary

The case of R v Kelvin involved a professional accountant, Kelvin, who was convicted of tax fraud. The dispute centred on the severity of the sentence imposed on Kelvin, and his subsequent application for leave to appeal against this sentence. The matter was heard in the High Court of Australia. The legal issues before the court were whether the sentence was manifestly excessive or inappropriate, and if the trial judge had erred in the application of sentencing principles.

The court examined the principles of sentencing in the context of tax fraud committed by a professional accountant. It considered the culpability of the offender, the nature and extent of the fraud, and the impact on the community. The court also assessed whether there had been any error in the trial judge's application of the sentencing principles, such as whether the judge had appropriately balanced the deterrence and rehabilitation objectives. Ultimately, the court found that the sentence was not manifestly excessive and that the trial judge had correctly applied the relevant sentencing principles. The application for leave to appeal was therefore dismissed.

In its judgment, the court emphasised the importance of considering the totality of the circumstances in each case, including the offender's background and the nature of the fraud. It also highlighted the need for sentences to reflect both the culpability of the offender and the need to deter similar conduct in the future. The court's decision in this case serves as a reminder to all legal practitioners of the principles that underpin sentencing in cases of tax fraud.

Orders