R v Song Chang - [2017] NSWDC 429

District Court

New South Wales

Medium Neutral Citation: R v Song CHANG [2017] NSWDC 429
Hearing dates: 2 June 2017
Date of orders: 02 June 2017
Decision date: 02 June 2017
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
Sentenced to an overall term of 5 years and 6 months with a non-parole period of 4 years and 6 months

Catchwords: CRIMINAL LAW – Sentence – Conspire with intention of dishonestly causing loss – Commonwealth
Legislation Cited: Criminal Code 1995; Crimes Act 1914
Category: Sentence
Parties: Song Chang
Australian Taxation Office
Representation: Mr Buckner
Mr Ginges

File Number(s): 2015/00083383

Judgment

The offender Song Chang is before the Court for sentence following his plea of guilty, entered on 14 February 2017, to one count in an indictment dated that date, that between about 1 April 2002 and 28 February 2007 at Sydney and elsewhere he conspired with Lee Xhang and Simon Chan with the intention of dishonestly causing a loss to the Commonwealth. The matter had originally been committed to this Court for trial on a different indictment which covered a slightly longer time period, but was the same charge, and when it came before me for trial on 7 February 2017 there was initially a plea of autrefois convict. That was withdrawn, with leave, on 14 February 2017 and the plea of guilty was entered. The Crown accepted that plea of guilty in full discharge of the earlier indictment.
This is an offence contrary to s 135.4(3) of the Criminal Code, 1995 which carries a maximum penalty of 10 years’ imprisonment. As a Commonwealth offence, the Court is required to sentence the offender having regard to the general provisions of Part 1B of the Crimes Act, 1914 but with particular reference to the matters contained in s 16A. An important overriding consideration is that the sentence must be of a severity appropriate in all the circumstances, including the circumstances of the offending, the circumstances of the offender and punishment and general deterrence. Full-time imprisonment can only be imposed if no other sentence is appropriate in all the circumstances. This is the case here, and the contrary has not been argued on behalf of the offender.
Considering the nature and circumstances of the offending is a necessary and important step in order to understand the objective criminality and level of culpability of the offender. In this matter they are to be found from the signed statement of agreed facts tendered on this sentence. From those I accept that between about 1 April 2002 and 28 February 2007 the offender and two others, Mr Zhang and Mr Chan, conspired to prepare and make excessive refund claims in business activity statements (BAS) lodged on behalf of a developer named Resort Hunter Valley Pty Limited, which I will call RHV in this sentence, and that they did so with the intention of dishonestly causing a loss to the Commonwealth.
Under the GST tax system relevant at the time, an entity could claim input tax…

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 Song Chang

Details

AGLC: R v Song Chang [2017] NSWDC 429
Case: [2017] NSWDC 429
Decision Date: 02 June 2017

CaseChat Overview and Summary

In the case of R v Song Chang, the defendant was convicted of conspiracy to dishonestly cause loss under the Criminal Code Act 1995 (Cth). The court was tasked with determining the appropriate sentence for the defendant following his conviction. The central issue before the court was the determination of the appropriate length and conditions of the custodial sentence, considering the nature and circumstances of the offence, as well as the principles of sentencing under the Commonwealth Criminal Code.

The court was required to weigh various factors in determining the sentence, including the seriousness of the offence, the defendant's role in the conspiracy, the degree of his culpability, and any relevant mitigating or aggravating circumstances. The court also considered the need for the sentence to serve as a deterrent and to promote the rehabilitation of the offender. The court acknowledged the defendant's previous good character and the absence of any prior criminal history, as well as the fact that he had shown remorse and had cooperated with authorities. However, the court also noted the significant scale of the conspiracy and the potential harm that could have resulted from the defendant's actions.

In delivering the sentence, the court held that the offence involved a high degree of planning and coordination, and that the potential loss to the victims was substantial. The court found that the defendant's role in the conspiracy was significant and that he had acted with a high degree of culpability. After considering all relevant factors, the court imposed an overall term of imprisonment of 5 years and 6 months, with a non-parole period of 4 years and 6 months. The court held that this sentence was appropriate to achieve the aims of punishment, deterrence, and rehabilitation, while also taking into account the circumstances of the case and the principles of sentencing under the Commonwealth Criminal Code.

Orders

Orders of the court

Sentenced to an overall term of 5 years and 6 months with a non-parole period of 4 years and 6 months

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

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Medium Neutral Citation:	R v Song CHANG [2017] NSWDC 429
Hearing dates:	2 June 2017
Date of orders:	02 June 2017
Decision date:	02 June 2017
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Sentenced to an overall term of 5 years and 6 months with a non-parole period of 4 years and 6 months
Catchwords:	CRIMINAL LAW – Sentence – Conspire with intention of dishonestly causing loss – Commonwealth
Legislation Cited:	Criminal Code 1995; Crimes Act 1914
Category:	Sentence
Parties:	Song Chang Australian Taxation Office
Representation:	Mr Buckner Mr Ginges
File Number(s):	2015/00083383