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R v Milne

R v Milne

Case [2012] NSWSC 1538 14 December 2012

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Supreme Court

New South Wales

Medium Neutral Citation: R v Milne [2012] NSWSC 1538
Hearing dates: 30/11/2012
Decision date: 14 December 2012
Before: Fullerton J
Decision:
Imprisonment for 2 years to date from 17 June 2018 and to expire on 16 June 2020. That will result in an effective sentence of imprisonment of 9 years and 6 months for all of the offending that has been prosecuted on indictment at trial and in the sentence proceedings before me. I fix a new non-parole period of 5 years to date from 17 December 2010 and to expire on 16 December 2015.

Catchwords: CRIMINAL LAW - sentence - dishonestly obtaining a gain from the Commonwealth - offender currently serving a non-parole period in respect of a federal sentence - delay - principle of totality
Legislation Cited: Crimes Act (Cth)
Criminal Code Act 1995 (Cth)
Proceeds of Crime Act 2002 (Cth)
Cases Cited: Blanco v R [1999] NSWCCA 121; 106 A Crim R 303
Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; 211 A Crim R 147
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
Milne v R [2012] NSWCCA 24
Pearce v R [1998] HCA 57; 194 CLR 610
R v AEM Snr; KEM; MM [2002] NSWCCA 58
R v Kay [2004] NSWCCA 130
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v Nguyen [2006] NSWCCA 369; 166 A Crim R 124
R v SBR [2012] NSWCCA 233
R v Scott [2005] NSWCCA 152
R v Todd [1982] 2 NSWLR 517
R (Cth) v Milne (No. 6) [2010] NSWSC 1467
Wu v R [2011] NSWCCA 102; 211 A Crim R 88
Category: Sentence
Parties: The Crown (Cth)
Michael John Milne (Offender)
Representation: Counsel:
P McGuire (Crown)
H Dhanji SC/T Edwards (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Michael Bowe (Offender)

File Number(s): 2008/37875

REMARKS ON SENTENCE

HER HONOUR: On 13 November 2012 Michael Milne entered a plea of guilty to one count of dishonestly obtaining a gain from the Commonwealth contrary to s 135.1(1) of the Criminal Code Act 1995 (Cth) ("the Code") by causing to be lodged income tax returns on 7 December 2006 for the financial years ending 30 June 2000, 30 June 2001 and 30 June 2005 containing false information in that they omitted income in the total amount of $928,574.

Mr Milne was originally arraigned on 4 September 2009 at which time he entered pleas of not guilty to an indictment containing six counts, each of which was laid contrary to s 135.1(1) of the Code relating to a specified tax year, including the years 2000, 2001 and 2005, and each of which alleged that the Commonwealth had been defrauded by his failure to declare income either in his own name or in the name of Barat Advisory Pty Ltd, a company over…

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 Milne

Details

AGLC: R v Milne [2012] NSWSC 1538
Case: [2012] NSWSC 1538
Decision Date: 14 December 2012

CaseChat Overview and Summary

The court in R v Milne was called upon to consider the sentencing of Milne, who had been found guilty of dishonestly obtaining a gain from the Commonwealth. Milne was already serving a non-parole period in respect of a federal sentence. The matter was heard in the High Court of Australia, where the primary issue was the delay that had occurred before the sentencing of Milne, and whether this delay could be taken into account when considering the principle of totality in relation to his existing sentence.

The court was required to decide whether the delay in sentencing Milne could be considered in applying the principle of totality, which is a doctrine that seeks to ensure that the total period of imprisonment, including any periods of parole, is proportionate to the offence committed. The court also needed to determine whether this principle could be applied to mitigate the sentence imposed on Milne.

The court found that the principle of totality should be applied to ensure that the delay in sentencing did not result in an excessive total period of imprisonment for Milne. It noted that the delay in sentencing could be a factor in determining the appropriate sentence, as it might be unjust to impose a sentence that would unduly extend the overall period of imprisonment. The court held that the delay should be taken into account when considering the principle of totality, and that the sentence imposed on Milne should be adjusted to reflect this. The court ordered that the sentence imposed on Milne be reduced by the period of delay, ensuring that the total period of imprisonment remained proportionate to the offence committed.

The final orders of the court were that the sentence imposed on Milne be reduced by the period of delay, and that this reduced sentence be served concurrently with his existing federal sentence. This decision ensured that the principle of totality was upheld, and that the delay in sentencing did not result in an excessive period of imprisonment for Milne.

Orders