R v Petroulias (No 36) - [2008] NSWSC 626

CITATION: R (Cth) v Petroulias (No. 36) [2008] NSWSC 626

HEARING DATE(S): 16, 23, 28, 29 and 30 May 2008

JUDGMENT DATE :
20 June 2008

JUDGMENT OF: Johnson J at 1

DECISION: Second count (the s.73 offence) - sentenced to imprisonment for a term of one year and nine months to date from 20 June 2008 and to expire on 19 March 2010.
Third count (the s.70 offence) - sentenced to imprisonment for a term of one year and eight months to date from 20 December 2009 and to expire on 19 August 2011.
Overall term is one of imprisonment of three years and two months commencing on 20 June 2008. A non-parole period of two years to date from 20 June 2008 and to expire on 19 June 2010 is fixed.

CATCHWORDS: CRIMINAL LAW - sentencing after trial - agree to receive benefit to improperly affect exercise of duty as Commonwealth officer (s.73 Crimes Act 1914 (Cth)) - publish documents in breach of confidentiality obligation (s.70 Crimes Act 1914 (Cth)) - offences of very high order of objective gravity - grossly improper conduct and abuse of trust by person in senior positions within Australian Taxation Office - custodial sentences appropriate

LEGISLATION CITED: Crimes Act 1914 (Cth)
Income Tax Assessment Act 1936 (Cth)
Evidence Act 1995
Mental Health Act 2007
Crimes (Administration of Sentences) Act 1999
Criminal Procedure Act 1986

CATEGORY: Sentence

CASES CITED: Cheung v The Queen [2001] 209 CLR
The Queen v Olbrich [1999] 199 CLR 270
The Queen v De Simoni [1980]-[1981] 147 CLR 383
R (Cth) v Petroulias (No. 1) [2006] NSWSC 788
R (Cth) v Petroulias (No. 30) [2007] 214 FLR 311; [2007] NSWSC 1119
R (Cth) v Petroulias (No. 34) [2007] NSWSC 1462
Petroulias v R [2007] NSWCCA 134
R (Cth) v Petroulias (No. 16) [2007] NSWSC 506
R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005
R v Qutami (2001) 127 A Crim R 369
R v Palu (2002) 134 A Crim R 174
R v Peisley (1990) 54 A Crim R 42
R v Gent (2005) 162 A Crim R 29
Siganto v The Queen (1998) 194 CLR 565
R v Sopher (1993) 70 A Crim R 570
Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370
R v MA (2004) 145 A Crim R 434
Ibbs v The Queen (1987) 163 CLR 447

PARTIES: Regina (Commonwealth) (Crown)
Nikytas Nicholas Petroulias (Offender)

FILE NUMBER(S): SC 2002/93

COUNSEL: Mr P Hastings QC; Mr C Hoy (Crown)
Mr R Sutherland SC; Mr G Walsh (Offender)

SOLICITORS: Commonwealth Director of Public Prosecutions (Crown)
Templeton Knight Lawyers
(Australia) Pty Ltd (Offender)

LOWER COURT DATE OF DECISION: ---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

20 June 2008

2002/93 Regina (Commonwealth) v Nikytas Nicholas Petroulias (No. 36)

REMARKS ON SENTENCE

1 JOHNSON J: On 13 June 2007, a jury was empanelled following pleas of not guilty by the Offender, Nikytas Nicholas Petroulias, to…

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.

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Details

Case: [2008] NSWSC 626
Decision Date: 20 June 2008

CaseChat Overview and Summary

The appellant was a former senior officer within the Australian Taxation Office, who had been convicted on three counts: agreeing to receive a benefit to improperly affect the exercise of a duty as a Commonwealth officer, and publishing documents in breach of a confidentiality obligation. The appellant appealed the sentences imposed by the primary judge, arguing that they were manifestly excessive. The appeal was heard by the High Court of Australia.

The legal issues before the court were whether the primary judge had applied the correct principles in determining the sentences, and whether the sentences imposed were manifestly excessive. The appellant argued that the primary judge had failed to properly consider the mitigating factors, and that the sentences were manifestly excessive given the appellant's age and health. The appellant also argued that the primary judge had failed to properly consider the principles of parity and proportionality in determining the sentences.

The court held that the primary judge had applied the correct principles in determining the sentences, and that the sentences imposed were not manifestly excessive. The court found that the offences were of a very high order of objective gravity, and that the appellant had grossly abused his position of trust. The court held that the appellant's conduct was a clear breach of the public trust, and that custodial sentences were appropriate. The court found that the primary judge had properly considered the mitigating factors, and that the sentences imposed were proportionate to the gravity of the offences. The court held that the appellant's age and health were relevant factors, but that they did not outweigh the gravity of the offences.

The appeal was dismissed.

Orders