R v Tacey - [1994] QCA 367

IN THE COURT OF APPEAL [1994] QCA 367

SUPREME COURT OF QUEENSLAND

C.A. No. 434 of 1993.

Brisbane
[R v. Tacey]
BeforePincus J.A.
Davies J.A.

White J.

T H E Q U E E N

PAMELA MARY EATON TACEY

Respondent

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

_______________________________________________________________

DAVIES J.A. PINCUS J.A.

WHITE J.

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J	udgment delivered 02/03/1994

JOINT REASONS FOR JUDGMENT DAVIES J.A. AND WHITE J. SEPARATE
CONCURRING REASONS OF PINCUS J.A.

APPEAL ALLOWED. SET ASIDE SENTENCES IMPOSED BELOW AND IN EACH CASE SUBSTITUTE A FINE OF 350 PENALTY UNITS ($35,000). THE COURT WILL ACCEPT FURTHER SUBMISSIONS, IF REQUIRED, AS TO TIME TO PAY FINES, AND AS TO APPROPRIATE DEFAULT ORDERS IN EVENT OF NON-PAYMENT. ANY REQUEST FOR TIME TO PAY TO BE SUPPORTED BY AFFIDAVIT DEPOSING TO FACTS ON WHICH IT IS BASED.

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CATCHWORDS: CRIMINAL LAW - OFFENCES AGAINST GOVERNMENT - fraud - non-disclosure of cash takings of business in tax returns - systematic and deliberate fraud initiated and persisted in - fine imposed - whether custodial sentence warranted - mitigating factors - unacceptable risk of stroke if custodial sentence imposed

Crimes Act 1914 (Cth), s. 29D
Counsel:R. Hanson Q.C. with him G. Walsh for the Respondent

J.A. Griffin Q.C. with him I. Erskine for the Appellant

Solicitors:Director of Public Prosecutions for the Respondent

John M. O'Connor & Company for the Appellant

Date(s) of Hearing:4 February 1994

J	OINT REASONS FOR JUDGMENT - DAVIES J.A. and WHITE J.

Judgement delivered 02/03/1994

The respondent, on 12 November 1993, pleaded guilty to three counts of defrauding the Commonwealth contrary to s. 29D of the Crimes Act 1914 (Cth). In respect of each of those offences the learned sentencing judge imposed a fine of $6666 making a total fine of approximately $20,000. The maximum penalty for an offence against s. 29D is a fine of 1,000 penalty units ($100,000) or imprisonment for ten years, or both.

The Commonwealth Director of Public Prosecutions appeals against that sentence submitting that the respondent's frauds were serious frauds on the revenue, that there were no substantial mitigating circumstances and that consequently they justified the imposition of a custodial sentence which included a period of imprisonment actually to be served.

The offences in respect of which the respondent was convicted were committed on 31 March 1989, 28 February 1990 and 10 January 1992. At each of those times the respondent was a director of Curtain Wonderland Pty Ltd which carried on the business of the manufacture and sale of curtains and curtain accessories. She was one of two directors of that company, the other being her brother. The company is a trustee for the Tacey Russell Family Trust, the beneficiaries being the members of the respondent's and her brother's families. The business is a very large one. It operates eleven retail outlets in the Brisbane metropolitan area and has distributor stores operating under a franchise style arrangement at the Gold Coast and the near North Coast. Attached to various retail stores were clearance…

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 Tacey

Details

AGLC: R v Tacey [1994] QCA 367
Case: [1994] QCA 367
Decision Date: 28/07/1994

CaseChat Overview and Summary

The case of R v Tacey involved an appeal by the Commonwealth Director of Public Prosecutions against the sentences imposed on Pamela Mary Eaton Tacey, who had pleaded guilty to three counts of defrauding the Commonwealth. The appellant argued that the sentences imposed by the learned sentencing judge were too lenient given the seriousness of the offences. The offences were committed over a period of time, with the respondent failing to disclose cash takings of her business in her tax returns, resulting in a tax avoidance of $114,615. The maximum penalty for the offence under section 29D of the Crimes Act 1914 (Cth) was a fine of 1,000 penalty units ($100,000) or imprisonment for ten years, or both.

The Court of Appeal considered whether the sentences imposed were appropriate, taking into account the seriousness of the offences, the difficulty in their detection, and the mitigating factors presented. The Court held that the offences were very serious and that a term of imprisonment should ordinarily have been imposed. However, due to the respondent's significant health risks, including the risk of stroke if she were to serve a custodial sentence, the Court determined that a non-custodial sentence was appropriate. The Court allowed the appeal, set aside the sentences imposed, and substituted fines of 350 penalty units ($35,000) for each offence. The Court also noted that further submissions could be made regarding the time to pay the fines and appropriate default orders in the event of non-payment. Pincus J.A. concurred with the decision, agreeing with the conclusions of Davies J.A. and White J.

Orders