Court of Criminal Appeal
New South Wales
Case Title: R v Mereb;R v Younan Medium Neutral Citation: [2014] NSWCCA 149 Hearing Date(s): 21.07.2014 Decision Date: 06 August 2014 Before: Hoeben CJ at CL at [1]
McCallum J at [44]
Garling J at [45]Decision: Crown appeal dismissed.
Catchwords: CRIMINAL LAW - Crown appeal against sentence - offences of conspiring with intention of dishonestly causing a loss to Commonwealth contrary to s135.4(3) Criminal Code (Cth) - clients of an accounting firm known as Owen T Daniel & Co - participation in illegal scheme organised by accountants to avoid payments of tax - tax shortfall approximately $1 million - whether sentence of imprisonment for 4 years with a non-parole period of 2 years manifestly inadequate - sentence not "unreasonable or plainly unjust" - exercise of residual discretion in Crown appeal - appeal dismissed. Legislation Cited: Crimes Act 1914 (Cth) - s16A(1)
Criminal Appeal Act 1912 - s6(3)Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Bugmy v The Queen [1990] HCA 18;169 CLR 525
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
Markarian v R [2005] HCA 25; 228 CLR 357
Munda v Western Australia [2013] HCA 38; 249 CLR 600
R v Boughen and Cameron [2012] NSWCCA 17
R v Hili; R v Jones [2010] NSWCCA 108
R v Lamella [2014] NSWCCA 122
R v Hawkins [2013] NSWCCA 208
R v Liles [2012] NSWSC 1249
R v Sakovitis [2013] NSWSC 464
R v Wall [2002] NSWCCA 42
R v Zerafa [2013] NSWCCA 222
Ruha v R [2010] 198 A Crim R 430
Wong v R [2001] HCA 64; 207 CLR 585Category: Principal judgment Parties: Commonwealth Regina - Appellant
Paul Boutros Mereb - Respondent
Youssef Saadallah Younan - RespondentRepresentation - Counsel: Counsel:
Mr GA Farmer SC - Appellant Crown
Mr R Strickland SC - Respondents- Solicitors: Solicitors:
Commonwealth Director of Public Prosecutions - Appellant Crown
DCE Lawyers Pty Ltd - RespondentsFile Number(s): 2008/161229
2009/232614Decision Under Appeal - Before: Sweeney DCJ - Date of Decision: 07 February 2014 - Court File Number(s): 2008/1612292009/232614
JUDGMENT
HOEBEN CJ at CL:
Offences and sentence
On 18 June 2013 a jury found each of the respondents guilty of conspiring with each other, Carol Abibadra, Kevin Zerafa and others including Owen T Daniels and Robert Agius with the intention of dishonestly causing a loss to the Commonwealth contrary to s135.4(3) of the Criminal Code (Cth).Sweeney DCJ sentenced each of the respondents to a term of imprisonment of 4 years with a non-parole period of 2 years, commencing 7 February 2014.
The Crown has appealed against those sentences on the following grounds:
1. The sentencing judge erred by taking into account as "a significant extra curial punishment" the…
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- Case
- [2014] NSWCCA 149
- Decision Date
CaseChat Overview and Summary
The court had to consider whether the sentences imposed by the Primary Judge were manifestly inadequate and whether there was an error in imposing a single non-parole period of 2 years. The Crown submitted that the High Court's approval of the statement of principle in Ruha v R made it clear that the necessary deterrent and punitive effects of sentences for serious tax fraud must be reflected both in the head sentence and in any provision for earlier release from custody. The Crown submitted that the sentences imposed in this case did not satisfy those tests. The respondents argued that the sentences were appropriate given the circumstances and the mitigating factors considered by the Primary Judge.
The court found that the Primary Judge had appropriately considered the mitigating factors, including the impact of the penalties on the respondents' personal financial positions. The court found that the Primary Judge had not given too much weight to the potential impact of the penalties and that there was a factual basis for finding that the penalties would constitute significant extra curial punishment. The court found that the sentences imposed were not manifestly inadequate and that there was no error in imposing a single non-parole period of 2 years. The appeal was dismissed.
No orders were made by the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
In written and oral submissions the Crown refined this ground of appeal to a submission that while her Honour was entitled to have regard to the imposition of additional penalties following the failure to pay tax as extra curial punishment and therefore a matter which could be properly taken into account by way of mitigation, her Honour had given too much weight to that factor. The Crown submitted that the respondents had not fully disclosed their personal financial positions and as such, it was impossible to determine the exact extent to which any penalties would impact upon them. It submitted that as a result, it was not open to her Honour to characterise these potential payments as "significant" extra curial punishment.Consideration There are a number of difficulties with that submission. The first is a factual one in that the respondents said that they would have to sell their homes in order to pay the penalty tax. That evidence was accepted. That of itself would indicate considerable hardship and family disruption for the respondents. Another and perhaps more fundamental difficulty with the submission is that referred to in R v Lamella [2014] NSWCCA 122 where Price J (with whom Garling and Bellew JJ agreed) said:"33 It is well established that a complaint that a judge failed to attribute sufficient weight to an issue on sentence will not generally be a material error. As Johnson J said in Majid v R [2010] NSWCCA 121 at [40]:"The second, third and fourth grounds of appeal complain that the sentencing Judge had given "insufficient weight" to different aspects of the Applicant's subjective case in passing sentence. In Stephens v R [2009] NSWCCA 240, Grove J (McClellan CJ at CL and RA Hulme J agreeing) observed at [16]-[18], that there are inherent problems in a ground expressed in that fashion succeeding, as the ground tacitly concedes that some weight had been placed upon the factor by the sentencing Judge. Circumstances in which matters of weight will justify intervention by this Court are narrowly confined, whether the proceeding is a Crown appeal or an offender's application for leave to appeal with respect to sentence: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57]."" In those circumstances, it was open to her Honour to find that the past and intended future penalty payments constituted "significant extra curial punishment". There was a factual basis for the finding in that the amount of their penalties was large and the selling of their houses would involve hardship. No convincing basis has been demonstrated to establish that her Honour gave "too much weight" to this factor. This ground of appeal has not been made out.Ground 2 - Error in imposing a single non-parole period of 2 years.Ground 3 - The sentence was manifestly inadequate. The Crown submitted that the High Court's approval of the statement of principle in Ruha v R [2010] 198 A Crim R 430 at [45] in Hili and Jones at [41] made it clear that the necessary deterrent and punitive effects of sentences for serious tax fraud must be reflected both in the head sentence and in any provision for earlier release from custody. The Crown submitted that this was another way of stating the requirement in s16A(1) of the Crimes Act 1914 (Cth) that a court should make an order which was of a severity appropriate in all the circumstances to the offence. The Crown submitted that the sentences imposed in this case did not satisfy those tests.