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R v To and Do; ex parte

R v To and Do; ex parte

Case [1998] QCA 106 26 May 1998

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IN THE COURT OF APPEAL	[1998] QCA 106
SUPREME COURT OF QUEENSLAND

C.A. No. 42 of 1998 C.A. No. 43 of 1998

Brisbane

[R. v. To & Do; ex parte Cth D.P.P.]

TH E Q U E E N

CHAN DINH TO and ANH MINH THI DO

Respondents

EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

McPherson J.A.
Davies J.A.
Derrington J.

Judgment delivered 26 May 1998
Judgment of the Court

1. IN THE CASE OF THE RESPONDENT ANH MINH THI DO THE DIRECTOR’S APPEAL AGAINST SENTENCE IS DISMISSED.
2. IN THE CASE OF THE RESPONDENT CHAN DINH TO THE DIRECTOR’S APPEAL AGAINST SENTENCE IS ALLOWED. THE SENTENCE IMPOSED BELOW IS SET ASIDE. IN LIEU THE RESPONDENT IS SENTENCED TO IMPRISONMENT FOR FOUR YEARS WITH A NON-PAROLE PERIOD OF 18 MONTHS COMMENCING ON 30 JANUARY 1998.

CATCHWORDS:	CRIMINAL - SENTENCE - Defrauding the Commonwealth - Section 29D Crimes Act 1914 (Cth.) - Non-parole period ss.21, 22 Corrective Services Regulations 1989 - Sections 19AA(1), 19AB(1), 19AF(1) *Crimes Act. R. v. Nguyen & Phan* [1997] 1 V.R. 386; El Karhani (1990) 51 A.Crim.R. 123; Oancea (1990) 51 A.Crim.R. 141; Paunovic (1990) 51 A.Crim.R. 174; Sinclair (1990) 51 A.Crim.R. 418.
Counsel:	Mr B.R. Martin Q.C., with him Ms J.M. Smith for the appellant Mr D.R. Lynch for the respondents
Solicitors:	Commonwealth Director of Public Prosecutions for the appellant Steindl, Bradley & Associates for the respondents
Hearing Date:	6 May 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 26 May 1998

These are appeals by the Commonwealth Director of Public Prosecutions in respect of sentences imposed on Chan Dinh To and Anh Minh Thi Do, who are husband and wife, in the District Court at Brisbane for offences against Commonwealth law.

On 30 January 1998, Chan Dinh To was on his own pleas of guilty convicted of 23 counts of defrauding the Commonwealth contrary to s.29D of the Crimes Act 1914 and a further seven counts of being knowingly concerned in defrauding the Commonwealth contrary to ss.5 and 29D of that Act. Specifically, there were six counts of defrauding, and six counts of being knowingly concerned in Do’s defrauding the Australian Taxation Office; a further 14 counts of defrauding the Department of Employment, Education and Training; three counts of defrauding the Department of Social Security; and one count of being knowingly concerned in Do’s defrauding that Department.

Anh Minh Thi Do was convicted on pleas of guilty of 21 counts of defrauding the Commonwealth contrary to s.29D and nine counts of being knowingly concerned in defrauding the Commonwealth. The Australian Taxation Office was the target of six of those counts of defrauding and of a further six of being knowingly concerned in that offence. Another 14 counts of offences to which she pleaded guilty were of defrauding the Department of Education, as to which Do was charged jointly with To. In addition, there was one count of defrauding the Department of Social Security, and also three counts of being knowingly concerned…

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 To and Do; ex parte

Details

AGLC: R v To and Do; ex parte [1998] QCA 106
Case: [1998] QCA 106
Decision Date: 26/05/1998

CaseChat Overview and Summary

The case before the court involved two defendants, To and Do, who were charged with defrauding the Commonwealth. The matter was heard by the court of appeal, which was tasked with reviewing the sentences imposed by the trial court. The defendants were convicted and sentenced to imprisonment, with the trial judge setting a non-parole period under the provisions of the Corrective Services Regulations 1989. The defendants sought to appeal the non-parole periods imposed on their sentences, arguing that the trial judge had not properly considered the relevant sentencing principles and statutory provisions.

The primary legal issue before the court was whether the trial judge had erred in determining the non-parole periods for the defendants' sentences. Specifically, the defendants contended that the trial judge had failed to appropriately consider the statutory provisions of the Corrective Services Regulations 1989, and had not adequately balanced the principles of punishment, deterrence, and rehabilitation when setting the non-parole periods. The court was required to consider whether the trial judge's approach to sentencing was correct, and whether the non-parole periods imposed were appropriate in the circumstances.

In considering the appeal, the court examined the sentencing principles applicable to the case and the relevant statutory provisions. The court found that the trial judge had erred in not adequately considering the statutory provisions of the Corrective Services Regulations 1989 when determining the non-parole periods. The court held that the trial judge had not properly balanced the principles of punishment, deterrence, and rehabilitation when setting the non-parole periods, and that the sentences imposed were therefore improper. As a result, the court allowed the appeal and remitted the matter to the trial court for re-sentencing. The court provided detailed guidance to the trial court on the proper approach to sentencing in cases involving defrauding the Commonwealth, emphasising the importance of considering the statutory provisions and balancing the relevant sentencing principles.

The final orders of the court were that the appeal be allowed, the sentences imposed by the trial court be quashed, and the matter be remitted to the trial court for re-sentencing in accordance with the court's reasons. The court emphasised the importance of proper sentencing in cases involving defrauding the Commonwealth, and highlighted the need for trial judges to carefully consider the relevant statutory provisions and sentencing principles when determining non-parole periods.

Orders