(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
21 October 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUD - DEFRAUDING THE COMMONWEALTH
Following a trial by jury the applicant was convicted of 13 counts of dishonestly obtaining a financial advantage from a Commonwealth entity by deception, contrary to s 134.2(1) of the Criminal Code (Cth) and two counts of attempting to dishonestly obtain a financial advantage from a Commonwealth entity by deception, contrary to ss 11.1 and 134.2(1) of the Criminal Code (Cth). The applicant was jointly charged on five of these counts with his former wife.
For the 10 counts on which the applicant was solely charged, the sentencing judge imposed a single head sentence of six years’ imprisonment. For the five counts on which he was jointly charged, the sentencing judge imposed a single head sentence of four years’ imprisonment. Her Honour ordered that the two sentences be served concurrently and fixed a non-parole period of three years and six months.
The applicant seeks leave to appeal against his sentence on the ground that it was manifestly excessive.
Held (the Court) granting permission to appeal but dismissing the appeal:
1. It is not reasonably arguable that the sentence is manifestly excessive.
2. The applicant’s sentence is neither unreasonable nor unjust.
[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
AGLC
Ryan v The King [2022] SASCA 110
Case
[2022] SASCA 110
Decision Date
CaseChat Overview and Summary
The applicant, Ryan, appealed against a sentence imposed by the District Court for defrauding the Commonwealth. The appeal was heard by the Supreme Court of South Australia.
The central legal issue before the Court was whether the sentence imposed was manifestly excessive, considering the nature of the offending and the applicant's personal circumstances.
The Court affirmed that general deterrence and denunciation are paramount considerations when sentencing for serious fraud against Commonwealth entities. Applying this principle, and taking into account the full extent of the applicant's systematic defrauding of Commonwealth revenue, the Court concluded that the sentence, while substantial, was neither unreasonable nor unjust. The Court found that individuals who engage in such conduct can reasonably expect significant custodial sentences.
Leave to appeal was granted, but the appeal itself was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
General deterrence and denunciation are prime considerations when sentencing for serious fraud against the Commonwealth and its agencies.[19] Both general and personal deterrence were particularly important sentencing considerations in this matter.[19] Kovacevic v Mills (2000) 76 SASR 404, [39]-[40] (Doyle CJ, Mullighan, Bleby and Martin JJ); Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1, [57] (Warren CJ, Redlich JA and Ross AJA); Milne v The Queen (2012) 88 ATR 14, [296]-[297] (Whealy JA, Latham and Harrison JJ); Heng v The Queen [2022] SASCA 24, [3]-[4] (Livesey P).Conclusion When the full extent of the applicant’s offending is taken into account, together with the applicant’s personal circumstances, it cannot be said that the sentence which was imposed is manifestly excessive. Whilst it may be considered high, it is neither unreasonable nor unjust. Those who systematically defraud the revenue of significant sums may expect substantial custodial sentences. Leave to appeal should be granted but the appeal dismissed.