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R v Milne (No 6)

R v Milne (No 6)

Case [2010] NSWSC 1467 17 December 2010

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CITATION: R (Cth) v Milne (No. 6) [2010] NSWSC 1467

HEARING DATE(S): 2 December 2010

JUDGMENT DATE :
17 December 2010

JUDGMENT OF: Johnson J at 1

DECISION: Michael John Milne, in relation to each of the counts of which you were found guilty by the jury, an order was made on 2 December 2010 convicting you of each offence. In relation to the first count (the ss.400.3(1) offence), you are sentenced to imprisonment for a term of seven years to date from 17 December 2010 and to expire on 16 December 2017. In relation to the second count (the s.135.1(1) offence), you are sentenced to imprisonment for a term of three years and six months to date from 17 December 2015 and to expire on 16 June 2019. A non-parole period is fixed of four years and nine months to date from 17 December 2010 and to expire on 16 September 2015.

CATCHWORDS: CRIMINAL LAW - sentencing after trial - money laundering (s.400.3(1) Criminal Code (Cth)) - dishonestly obtain gain from Commonwealth (s.135.1(1) Criminal Code (Cth)) - money laundering offence involved creation and misuse by Offender in 2004 and 2005 of sophisticated offshore structure - dishonest obtaining offence involved deception by Offender of accountants preparing tax returns in 2005 and 2006 - false return lodged in November 2006 - grossly understated capital gain on disposal of shares - loss to revenue of at least $1.9 million in capital gains tax - assessment of overlapping criminality - avoidance of double punishment - substantial aspects of criminality in each offence - need for substantial sentence for each offence - objectively serious offences - importance of general deterrence - partly cumulative sentences appropriate

LEGISLATION CITED: Criminal Code (Cth)
Crimes Act 1914 (Cth)
Proceeds of Crime Act 2002 (Cth)
Criminal Procedure Act 1986

CATEGORY: Sentence

CASES CITED: R v Isaacs (1997) 41 NSWLR 374
Cheung v The Queen [2001] HCA 67; 209 CLR 1
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
R (Cth) v Milne (No. 1) [2010] NSWSC 932
Greaves v R [2010] EWCA Crim 709
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Langdon [2004] VSCA 205; 11 VR 18 at 39
Ryan v The Queen [2001] HCA 21; 206 CLR 267
R v Rivkin [2004] NSWCCA 7
R v Williams [2005] NSWSC 315; 152 A Crim R 548
R v Huang [2007] NSWCCA 259; 174 A Crim R 370
R v Guo and Anor [2010] NSWCCA 170
Siganto v The Queen [1998] HCA 74; 194 CLR 656
Cameron v The Queen [2002] HCA 6, 209 CLR 339
Hili v The Queen; Jones v The Queen [2010] HCA 45
Power v The Queen [1974] HCA 26; 131 CLR 623
Deakin v The Queen [1984] HCA 31; 58 ALJR 367
Bugmy v The Queen [1990] HCA 18; 169 CLR 525
R v Wing Cheung Li [2010] NSWCCA 125
R v Nguyen [2010] NSWCCA…

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 (No 6)

Details

AGLC: R v Milne (No 6) [2010] NSWSC 1467
Case: [2010] NSWSC 1467
Decision Date: 17 December 2010

CaseChat Overview and Summary

The accused, Milne, was convicted of multiple offences, including money laundering and dishonestly obtaining a gain from the Commonwealth. The case reached the court for sentencing following the trial. The primary legal issues the court had to address were the assessment of overlapping criminality between the offences, the need to avoid double punishment, and the determination of a suitable sentence for each offence, considering their seriousness and the importance of general deterrence.

The court considered the substantial aspects of criminality in each offence, emphasising the need for a substantial sentence for each. The money laundering offence involved the creation and misuse of a sophisticated offshore structure by the offender in 2004 and 2005. The dishonest obtaining offence involved deception by the offender of accountants preparing tax returns in 2005 and 2006, culminating in a false return lodged in November 2006 that grossly understated a capital gain on the disposal of shares. The loss to the revenue amounted to at least $1.9 million in capital gains tax. The court recognised the importance of avoiding double punishment for overlapping criminality while ensuring that each offence was adequately addressed. Given the objectively serious nature of the offences and the need for general deterrence, the court found that partly cumulative sentences were appropriate.

The court delivered its decision, imposing sentences that reflected the gravity of the offences committed by Milne. The sentences were structured to ensure that each offence was appropriately punished without unfairly duplicating the penalty for overlapping criminality. The final orders reflected the court's reasoning and the need to balance the requirements of punishment, deterrence, and the prevention of double punishment.

Orders