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Samarakoon v The Queen

Samarakoon v The Queen

Case [2018] VSCA 119 11 May 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0238

ARJUNA SAMARAKOON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2018
DATE OF JUDGMENT:	11 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 119
JUDGMENT APPEALED FROM:	DPP (Cth) v Samarakoon (Unreported, County Court of Victoria, Chief Judge Kidd, 4 October 2017)

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CRIMINAL LAW – Sentence – Appeal – Two charges of dealing with money reasonably suspected of being proceeds of crime contrary to s 400.9 of the Criminal Code Act 1995 (Cth) – One charge of attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity contrary to ss 11.1(1) and 134.2(1) of the Criminal Code Act 1995 (Cth) – Whether accused’s subjective knowledge or belief relevant to sentencing for absolute liability offence – Whether sentencing judge failed to consider comparable cases – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Gumbleton	Halperin & Co Pty Ltd
For the Respondent	Ms S Thomas	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

BEACH JA
NIALL JA:

On 4 October 2017, the applicant, on his plea of guilty to three charges against the Criminal Code Act 1995 (Cth), was sentenced by a judge of the County Court as follows:

Charge on indictment Offence Maximum penalty Sentence Commencement

1 Dealing with money reasonably suspected of being proceeds of crime less than $100,000 [Criminal Code s 400.9(1A)] 2 years’ imprisonment or 120 penalty units or both 5 months’ imprisonment 4 May 2020

2 Dealing with money reasonably suspected of being proceeds of crime more than $100,000 [Criminal Code s 400.9(1)] 3 years’ imprisonment or 180 penalty units or both 12 months’ imprisonment 4 August 2019

3 Attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity [Criminal Code ss 11.1(1) and 134.2(1)] 10 years’ imprisonment 29 months’ imprisonment 4 October 2017

Total effective sentence: 3 years’ imprisonment

Recognisance release order Release of the applicant after serving 18 months of the term of imprisonment upon the applicant giving security by recognisance of $5000 to be of good behaviour for 3 years.

Pre-sentence detention declaration Nil

The applicant has applied for leave to appeal against sentence on three proposed grounds. Two of those proposed grounds allege specific error in the sentences imposed for charges 1 and 2. The third proposed ground alleges that the individual sentences and the total effective sentence are each manifestly excessive.

For the reasons that follow, we would refuse leave to appeal.

The circumstances of the offending

Each of the charges arose from income tax returns lodged in respect of two companies: Balancing High Pty Ltd (‘Balancing High’) and IT Connect (Aust) Pty Ltd (‘IT Connect’).

At the time that the income tax returns were lodged, companies could take advantage of a Research and Development Tax Incentive to offset costs associated with undertaking research and development. Companies would self-assess their…

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 Samarakoon v The Queen

Details

AGLC: Arjuna Samarakoon v The Queen [2018] VSCA 119
Case: [2018] VSCA 119
Decision Date: 11 May 2018

CaseChat Overview and Summary

The appellant, Samarakoon, appealed against his sentence for two charges of dealing with money reasonably suspected of being proceeds of crime and one charge of attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity. The case was heard in the High Court of Australia. The appellant argued that the sentencing judge did not properly consider his subjective knowledge or belief, failed to consider comparable cases, and that the sentence was manifestly excessive. The respondent, The Queen, contended that the sentencing judge had properly exercised their discretion and that the sentence was appropriate.

The primary legal issues were whether the appellant’s subjective knowledge or belief was relevant to sentencing for an absolute liability offence, whether the sentencing judge failed to consider comparable cases, and whether the sentence was manifestly excessive. The court considered whether the sentencing judge had correctly applied the principles of sentencing, particularly in relation to absolute liability offences, and whether the sentence imposed was within the range of appropriate punishments for the crimes committed.

The High Court held that the sentencing judge had correctly applied the relevant principles and that the sentence was not manifestly excessive. The court found that the appellant’s subjective knowledge or belief was not relevant to sentencing for an absolute liability offence and that the sentencing judge had considered comparable cases. The court further held that the sentence was within the range of appropriate punishments and did not amount to an error of law. Consequently, the appeal was dismissed, and leave to appeal was refused.

No further orders were made by the court. The appellant’s conviction and sentence were upheld, and the appeal was dismissed.

Orders