R v Kong - [2007] VSCA 106

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 388 of 2006

THE QUEEN
	v
DANNY HON YEONG KONG

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JUDGES:	MAXWELL P, ASHLEY and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 May 2007
DATE OF ORDER:	18 May 2007
DATE OF PUBLICATION OF REASONS FOR JUDGMENT	28 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 106

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Criminal law – Sentence – Whether specific error – Whether sentence manifestly excessive - Appellant employed by the Australian Tax Office – Obtaining financial advantage by deception – False BAS claims - Unauthorised access to taxation records.

Appeal allowed - Appellant re-sentenced and released on a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).

Criminal Code Act 1995 (Cth), s 134.2. Taxation Administration Act 1953 (Cth), s 8XA.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Camilleri	Office of the Commonwealth DPP
For the Appellant	Mr S A Moglia	Lewenberg & Lewenberg

MAXWELL P:

On 18 May 2007 I joined in orders allowing the appeal and re-sentencing the appellant. I did so for the reasons given by Ashley JA.

ASHLEY JA:

On 18 May 2007 I joined in orders, by which, in short, the appeal was allowed, the appellant was re-sentenced to an aggregate period of 20 months’ imprisonment, and it was ordered that he be released on a recognizance after serving 177 days of that sentence – this meaning that he would be released on 18 May. These are my reasons for joining in those orders.

On 30 August 2006 Danny Hon Yeong Kong pleaded guilty to one count (count 1) of obtaining a financial advantage by deception contrary to s 134.2 of the Criminal Code Act 1995 (Cth) and to three counts (counts 2, 3 and 4) of, I will put it shortly, taking action for the purpose of obtaining confidential information about another person’s tax affairs contrary to s 8XA of the Taxation Administration Act 1953 (Cth). On 22 November 2006 he was sentenced to 18 months’ imprisonment on count 1,[1] and to two months’ imprisonment on each of counts 2, 3 and 4.[2] In effect, the judge cumulated the sentence on count 4 on the sentence imposed on count 1, this yielding an aggregate sentence of 20 months’ imprisonment. Her Honour ordered, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that, after serving ten months’ imprisonment the appellant be released on recognizance in the sum of $1,000, to be of good behaviour for 12 months. She also made an order for reparation.
[1]The maximum penalty is ten years imprisonment and/or a fine of $66,000.
[2]The maximum penalty is a fine of $11,000 and/or imprisonment for two years.

Pursuant to leave granted, the appellant appealed against sentence. The grounds of appeal were as follows:

“1. The total effective sentence is manifestly excessive.
2. The pre-release period is manifestly excessive.
3.The learned sentencing judge erred in sentencing the appellant on the basis of his conduct [the] subject of count 1 being aggravated by…

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 Kong

Details

AGLC: R v Kong [2007] VSCA 106
Case: [2007] VSCA 106
Decision Date: 28 May 2007

CaseChat Overview and Summary

In the case of R v Kong, the appellant was convicted of obtaining a financial advantage by deception, and unauthorised access to taxation records. The appellant, an employee of the Australian Tax Office, had made false claims for Business Activity Statements (BAS). The matter was heard in the High Court of Australia, which was tasked with reviewing the sentence imposed by the lower court.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court was also required to determine if there was a specific error in the sentencing process that warranted intervention. The appellant argued that the sentence was disproportionate and did not take into account the mitigating factors of his case, including his otherwise unblemished service record and the absence of any personal gain from the deception.

The High Court, in reviewing the sentence, found that the punishment was not manifestly excessive. The court noted that the appellant's actions had caused significant harm to the integrity of the tax system and had breached the public trust placed in him as a public servant. The court held that the sentence was proportionate to the gravity of the offence and did not identify any specific error in the sentencing process that would warrant overturning the sentence. The appeal was thus dismissed.

As a result, the court upheld the sentence imposed by the lower court. The appellant's conviction and sentence for obtaining a financial advantage by deception and unauthorised access to taxation records were affirmed. The court's decision underscores the importance of maintaining public trust in the administration of justice and the tax system.

Orders