R v Wright - [1994] QCA 16

IN THE COURT OF APPEAL [1994] QCA 016

SUPREME COURT OF QUEENSLAND	C.A. No. 432 of 1993
Brisbane
BeforeMr Justice Davies Mr Justice Pincus Justice White
[R. v. Wright]

T H E Q U E E N
v.

MARK WRIGHT Respondent

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

DAVIES J.A. PINCUS J.A.

WHITE J.

_______________________________________________________________
Judgment delivered 02/03/1994
JOINT REASONS FOR JUDGMENT OF DAVIES J.A. AND WHITE J. SEPARATE
CONCURRING REASONS OF PINCUS J.A.
_______________________________________________________________

APPEAL ALLOWED. SET ASIDE SENTENCE OF IMPRISONMENT FOR 12 MONTHS, WHOLLY SUSPENDED, AND SUBSTITUTE A SENTENCE OF 18 MONTHS' IMPRISONMENT, THE RESPONDENT TO BE RELEASED UPON GIVING SECURITY BY RECOGNIZANCE THAT HE WILL BE OF GOOD BEHAVIOUR FOR TWO YEARS AFTER SERVING THREE MONTHS OF TERM.

EXISTING ORDERS FOR FINES REMAIN.
FURTHER ORDER THAT SHERIFF OR NOMINATED OFFICER OF THE SHERIFF'S
OFFICE EXPLAIN TO THE RESPONDENT, IN LANGUAGE LIKELY TO BE
UNDERSTOOD BY HIM, THE PURPOSE AND CONSEQUENCE OF MAKING
RECOGNIZANCE RELEASE ORDER, INCLUDING AN EXPLANATION OF THE
MATTERS REFERRED TO IN S. 16F(2) OF CRIMES ACT.
_______________________________________________________________

CATCHWORDS:CRIMINAL LAW - OFFENCES AGAINST GOVERNMENT - imposition on Commonwealth - false tax returns - scheme of systematic fraud initiated and persisted in - fully suspended custodial sentence and fine - whether custodial sentence warranted - mitigating factors - whether fine in addition to imprisonment

Crimes Act 1914 (Cth), s. 29B
Counsel:R. Hanson Q.C. with him F. Walsh for the Appellant

I.D.F. Callinan Q.C. with him S.G. Durward for the Respondent

Solicitors:Commonwealth Director of Public Prosecutions for the

Appellant

Ruddy Tomlins and Baxter for the Respondent

Date(s) of Hearing:4 February 1994

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

Judgement delivered 02/03/1994

The respondent, on 5 November 1993, pleaded guilty to four offences of imposition upon the Commonwealth contrary to s. 29B of the Crimes Act 1914 (Cth). On the same day the following sentence was imposed on him in respect of each offence: 1.Imprisonment for a period of twelve months to be suspended

forthwith upon his entering into a recognisance in the sum of $500 conditioned that he keep the peace and be of good behaviour for a period of two years; and

2.A fine of $5,000.

The sentences of imprisonment were concurrent. He was allowed a period of six weeks within which to pay the fine. The maximum penalty for an offence against s. 29B is two years' imprisonment.

The appellant, the Commonwealth Director of Public Prosecutions, who appealed against that sentence, submitted that the offences for which the respondent was convicted 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. He relied upon the correctness of a proposition stated by Higgins J. in R. v. Whitnall (1993) 93 A.T.C. 4439 at 4445 in the following terms:

"At least, so far the Courts are concerned, serious frauds on the revenue will result in custodial sentences. In the absence…

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 Wright

Details

AGLC: R v Wright [1994] QCA 16
Case: [1994] QCA 16
Decision Date: 2/03/1994

CaseChat Overview and Summary

The case of R v Wright involves an appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed on Mark Wright, who had pleaded guilty to four offences of imposition on the Commonwealth under s. 29B of the Crimes Act 1914 (Cth). Wright was sentenced to a wholly suspended term of imprisonment of 12 months and a fine of $5,000 for each offence. The Director of Public Prosecutions argued that the sentence was too lenient and did not adequately reflect the seriousness of the fraud, which involved the evasion of substantial tax liabilities over a number of years. The appeal raised questions about the appropriate sentence for tax fraud, particularly in cases where the fraud is systematic and involves large sums of money. The Court of Appeal allowed the appeal and set aside the wholly suspended sentence, substituting it with a term of 18 months' imprisonment, with Wright to be released upon giving security by recognisance after serving three months. The Court also upheld the imposition of fines in addition to the custodial sentence.

The Court of Appeal considered the sentencing principles applicable to tax fraud and compared them with those applied in cases of social security fraud. It noted the general trend towards the imposition of custodial sentences for social security fraud, even for relatively small amounts, while tax fraud cases often resulted in wholly suspended sentences or fines. The Court found that the original sentence in this case did not adequately reflect the seriousness of the fraud and did not sufficiently deter future offences. The Court emphasised that tax frauds involving substantial sums of money and a systematic scheme should generally result in a custodial sentence, unless there are substantial mitigating circumstances. The Court concluded that, while there were some mitigating factors in Wright's case, such as his early guilty plea and payment of the tax involved, they did not outweigh the seriousness of the fraud. The Court also held that fines could be imposed in addition to a custodial sentence under s. 29B of the Crimes Act, following an amendment in 1989.

Orders