R v Kertebani

Case [2010] NSWCCA 221

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v David KERTEBANI; David KERTEBANI v R [2010] NSWCCA 221

FILE NUMBER(S):
2008/6219008
2008/6219006

HEARING DATE(S):
17 September 2010

JUDGMENT DATE:
26 October 2010

PARTIES:
Commonwealth Crown - Applicant
David Kertebani - Respondent
David Kertebani - Applicant
Commonwealth Crown - Respondent

JUDGMENT OF:
Simpson J Hoeben J Price J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/0336

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
16 February 2010

COUNSEL:
Mr N Adams - Commonwealth Crown
Mr J Agius SC -Applicant/Respondent

SOLICITORS:
Commonwealth Director of Public Prosecutions - Commonwealth Crown
Uther Webster & Evans - Applicant/Respondent

CATCHWORDS:
CRIMINAL LAW - offences contrary to the Commonwealth Criminal Code 1995 - obtaining a financial advantage by deception - sentence appeals by Crown and offender - application by offender to adduce fresh evidence - whether circumstances special and unusual - whether Crown appeal revealed latent error - in offender's application whether sentencing judge misunderstood objective seriousness of offence - whether sentencing judge erred in failing to have adequate regard to the effect on offender's family of his imprisonment.

LEGISLATION CITED:
Crimes Act 1914 (Commonwealth)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Code Act 1995

CATEGORY:
Principal judgment

CASES CITED:
Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194
House v The King (1936) HCA 40; (1936) 55 CLR 499
R v Ashton (2002) 137 A Crim R 73
R v Edwards (1996) 90 A Crim R 510
R v Ehrenburg (NSW CCA, 14 December, 1990 unreported)
R v Glyn Morgan Jones; R v Anthony Joseph Luis Hili [2010] NSWCCA 108
R v Herrera (unreported, 6 June 1997)
R v Maslen and Shaw (1995) 79 A Crim R 199 at 209
R v Smith 44 SASR 587 at 588
R v Wirth (1976) 14 SASR 291

TEXTS CITED:

DECISION:
Respondent’s application to adduce fresh evidence is refused.
Crown appeal against sentence is dismissed.
Respondent’s application for leave to appeal against sentence is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/6219008
2008/6219006

SIMPSON J
HOEBEN J
PRICE J

Tuesday, 26 October 2010

R v David KERTEBANI
David KERTEBANI v R

Judgment

  1. SIMPSON J:  I agree with Hoeben J.

  2. HOEBEN J:  On 5 December 2008 in the District Court at Sydney the respondent pleaded guilty to one charge of obtaining a benefit by deception pursuant to s 134.2(1) of the Criminal Code Act 1995 (Commonwealth) (“the Code”).  The maximum penalty for an offence under this section is imprisonment for 10 years.

  3. The respondent also admitted to one other offence against s400.4(1) of the Code, i.e. dealing with the proceeds of crime, and asked that that offence be taken into account by the Court in passing sentence pursuant to s16BA Crimes Act 1914 (Commonwealth). 

  4. The respondent came before Sorby DCJ for sentence on 16 February 2010. His Honour sentenced the respondent to a term of imprisonment for 2 years (16 February 2010 to 15…

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Details
AGLC
R v Kertebani [2010] NSWCCA 221
Case
[2010] NSWCCA 221
Decision Date

CaseChat Overview and Summary

The respondent in this case was convicted of obtaining a financial advantage by deception, contrary to the Commonwealth Criminal Code 1995. He was sentenced to a term of imprisonment by Sorby DCJ on 16 February 2010, and subsequently appealed both the sentence and the order for reparation. The Crown also appealed the sentence, contending it was too lenient. The respondent sought to adduce fresh evidence regarding the state of his wife’s health, arguing this was relevant to the impact of his imprisonment on his family. The court considered whether the circumstances were special and unusual to warrant allowing fresh evidence, and whether the sentencing judge had misunderstood the objective seriousness of the offence or failed to adequately consider the effect of imprisonment on his family.

The court had to determine if the fresh evidence was admissible under the principles set out in R v Smith, which allow for fresh evidence if it explains facts existing at the time of sentencing that were not known to the sentencing judge or to put them in a new light. The respondent argued that the recent health reports were admissible because they showed the true significance of his wife's condition, which existed at the time of sentencing. The court also had to consider if the Crown’s appeal had revealed a latent error in the sentencing process, and whether the sentencing judge had erred in failing to have adequate regard to the effect on the offender's family of his imprisonment.

In its reasoning, the court allowed the fresh evidence to be adduced as it related to the true significance of the respondent's wife's health condition, which was in existence at the time of sentencing. The court found that the evidence was relevant to the impact of the sentence on the respondent's family, which was a factor the sentencing judge should have considered. The court determined that the circumstances were indeed special and unusual, justifying the admission of fresh evidence. The court concluded that the sentencing judge had not adequately considered the effect of imprisonment on the offender's family and that the Crown’s appeal had not revealed a latent error in the sentencing process.

The court allowed the fresh evidence to be adduced and considered it in the appeal. It found that the sentencing judge had not adequately considered the impact of imprisonment on the offender's family and that the sentence was too lenient given the seriousness of the offence. The court varied the sentence to a term of imprisonment of 2 years and 6 months, with a non-parole period of 12 months, to be served from 16 February 2010. The court also varied the reparation order to $300,000.

Orders

Orders of the court

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Background

Background to the litigation

The respondent came before Sorby DCJ for sentence on 16 February 2010. His Honour sentenced the respondent to a term of imprisonment for 2 years (16 February 2010 to 15 February 2012), to be released after 14 months on 15 April 2011 upon entering into a recognizance, self, in the sum of $1, with a condition that the respondent be of good behaviour for a period of 10 months. His Honour also made a reparation order pursuant to s21B Crimes Act 1914 in the sum of $307,555.Factual Background The respondent was a builder and was involved in the construction of residential and commercial properties. In November 2005 the respondent had received an assessment from the Australian Tax Office (ATO) asserting a liability of $970,000. The respondent needed assistance to prepare objections to this assessment. He was introduced to a co-offender, Mr Dwayhi, as a person who could assist and advise him about his tax issues. At the time Mr Dwayhi was a Compliance Verification Officer with the ATO. His function was to substantiate and process Business Activity Statements (BAS) lodged by ATO clients. Mr Dwayhi told the respondent that he could assist him with the objections to the assessment, but that he would need to be paid. Mr Dwayhi told the respondent that he could help him get money by processing false BAS’s which would result in GST refunds and that the respondent could use that money and pay part of it to him. Mr Dwayhi instructed the respondent on how the lodgements should be carried out and what he would do once the BAS’s were lodged with the ATO. Mr Dwayhi advised him that he had done this before and that there would be no difficulties as he would process everything himself and if there were an audit, the respondent would just have to pay the money back. The first false BAS was lodged on 4 January 2006 on behalf of a company which was formerly controlled by the respondent’s brother. The second false BAS was lodged on 9 February 2006 on behalf of another company (Daedel (NSW) Pty Limited) (Daedel). The scheme involved fictitious purchases by the two companies. The respondent falsely claimed proposed expenditure of some $5.7 million. This involved fictitious expenditure incurred by the first company for $3,050,000 and fictitious purchases by Daedel of $2,684,530. Had this expenditure been genuine, the relevant companies would have been entitled to GST refunds from the ATO. During the relevant period, neither company made any purchases. Mr Dwayhi corruptly used his position with the ATO to improperly process the two false BAS’s which had been lodged by the respondent and in doing so facilitated the deception. As a result of the deception, a total of $494,669 was paid by the ATO into two accounts to which the respondent had access. The respondent admits that he paid $130,000 to Mr Dwayhi. The fraud was subsequently discovered by the ATO as part of its internal quality assurance audit. The quality assurance audit is a process whereby a random BAS which had previously been verified by an ATO Compliance Officer is selected and scrutinised by a panel of ATO officers.

Evidence

Evidence Before The Court

In support of his application for leave to appeal, the respondent sought leave to adduce and rely upon fresh evidence. This fresh evidence related to the state of his wife’s health and comprised two reports of Matthew Jones, psychiatrist, 24 August and 30 August 2010 and a further report from the psychologist, Ms de Torres of 10 August 2010. Consideration – Application to Adduce Fresh Evidence The Court decided to consider the fresh evidence application before hearing the sentence appeal. In making his application to adduce fresh evidence, the respondent relied upon the following statement of principle by King CJ in R v Smith 44 SASR 587 at 588:“The proper purpose of fresh evidence on an appeal against sentence is to bring before the Court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It was not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O’Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. …While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant’s condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence.” The respondent submitted that the recent reports of Dr Jones and Ms de Torres while dealing with events which had occurred after the passing of the sentence were admissible for the purpose of showing the true significance of the evidence which was before the judge at the time of sentence. In Smith the sentencing judge had been aware that the offender had been diagnosed with the HIV virus and that although he was asymptomatic at that point in time, it could worsen. By the time the matter came before the South Australian Court of Criminal Appeal, the virus had become symptomatic and the offender was in a serious state of ill health. For the above reasons, the South Australian Court of Criminal Appeal allowed the evidence to be adduced. The respondent also relied upon R v Ehrenburg (NSW CCA, 14 December, 1990 unreported) and R v Ashton (2002) 137 A Crim R 73 as other illustrations of the application of this principle. In Ehrenburg there was expert evidence before the sentencing judge that the offender suffered from conditions which could cause damage to her unborn child. After a short period of imprisonment, the offender prematurely gave birth to a child who was deformed and required a great amount of ongoing medical attention. In Ashton the sentencing judge was not aware that the offender had any psychological disorder as he had not been diagnosed with any such disorder. After sentence had been passed, the offender’s psychiatrist noticed that he was psychotic, paranoid, depressed and possibly suicidal. In both those cases the court had regard to the “fresh evidence”.

Decision

Reasons for decision

SIMPSON J

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Ratio Decidendi

Legal Principle Established

Established by: SIMPSON J

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