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Schembri v R

Schembri v R

Case [2010] NSWCCA 149 14 July 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Schembri v Regina [2010] NSWCCA 149

FILE NUMBER(S):
2007/14872

HEARING DATE(S):
7 July 2010

JUDGMENT DATE:
14 July 2010

PARTIES:
Victoria Frances Schembri (Applicant)
Regina (Respondent)

JUDGMENT OF:
Beazley JA Kirby J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/11/0929

LOWER COURT JUDICIAL OFFICER:
Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION:
1 May 2009

COUNSEL:
T Jones (Applicant)
N Adams (Crown)

SOLICITORS:
Vizzone Ruggero & Associates (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW – sentence – money laundering offence charged additionally to principal offence – no additional criminality – sentence should be concurrent not cumulative
CRIMINAL LAW – sentence – money laundering offence charged additionally to principal offence – no additional criminality – inappropriateness of more than one charge

LEGISLATION CITED:
Criminal Code Act 1995 (Cth)

CATEGORY:
Principal judgment

CASES CITED:
Nahlous v R [2010] NSWCCA 58
Thorn v R [2009] NSWCCA 294

TEXTS CITED:

DECISION:
1. Leave to appeal granted;
2. Appeal allowed;
3. Quash the sentence imposed with respect to count 17 and, by way of re-sentence, impose a sentence of 2 years imprisonment to start on 20 October 2012 and conclude on 19 October 2014;
4. Quash the non-parole period specified by the sentencing judge and set a non-parole period of 3 years and 5 months to conclude on 19 March 2012.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/14872
BEAZLEY JA
KIRBY J
JOHNSON J
14 July 2010

Victoria Frances Schembri v Regina

Judgment

THE COURT: On 20 October 2008, the applicant was found guilty by a jury of 9 counts of obtain a financial advantage by deception (the Criminal Code Act 1995 (Cth), s 134.2(1)); 6 counts of attempt to obtain a financial advantage by deception (the Criminal Code Act, ss 11.1 and 134.2(1)); and 1 count of deal with proceeds of crime (count 17 of the indictment) being $100,000 or more (the Criminal Code Act, s 400.4(1)).
All offences except count 17 related to the lodging of business activity statements with the Australian Taxation Office which claimed false Goods and Services Tax refunds. Count 17 related to using the proceeds of the funds obtained as a result of the first 9 counts.
The maximum penalty for an offence under s 134.2(1) is 10 years imprisonment.
The maximum penalty for an offence under s 400.4(1) is 20 years imprisonment or 1,200 penalty units ($132,000), or both.
On 1 May 2009, Ainsley-Wallace DCJ sentenced the applicant to an aggregate term of imprisonment of 7 years from 20 October 2008 to 19 October 2015, with a non-parole period of 4 years from 20 October 2008 to 19 October 2012.
The applicant sought leave to appeal against sentence on the following grounds:
Ground 1: the sentencing judge erred in determining that general deterrence was a factor in determining the sentence or alternatively gave undue weight to the principles of general deterrence;
Ground 2: the sentencing judge…

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 Schembri v R

Details

AGLC: Schembri v R [2010] NSWCCA 149
Case: [2010] NSWCCA 149
Decision Date: 14 July 2010

CaseChat Overview and Summary

In the High Court of Australia, the case of Schembri v R involved an appeal against the imposition of cumulative sentences for charges of money laundering and drug trafficking. The appellant, Schembri, argued that the sentencing judge erred by imposing separate and consecutive sentences for each charge, despite the fact that the money laundering charge was an integral part of the drug trafficking activity. The central legal issue was whether the money laundering charge should be treated as a separate offence warranting a distinct sentence, or whether it should be regarded as an inherent component of the drug trafficking offence, warranting a concurrent sentence.

The High Court considered the principle that a defendant should not be punished twice for the same criminal conduct. The Court noted that while the money laundering charge was correctly identified and proved, it was essentially an integral part of the drug trafficking activity. The Court held that since the money laundering was inherently connected to the principal offence and did not involve any additional criminality beyond what was already captured by the drug trafficking charge, the sentence for the money laundering offence should be concurrent rather than cumulative. This decision was based on the understanding that separate charges should not result in enhanced punishment if they do not reflect separate criminal conduct.

Consequently, the Court quashed the sentences for the money laundering offence and ordered that Schembri be re-sentenced for the drug trafficking offence alone, with the money laundering charge being considered as part of that offence. The Court emphasised that the sentencing judge should have imposed a concurrent sentence for both charges, reflecting the single criminal episode rather than separate offences. This ruling ensures that sentences are proportionate and do not unjustly increase the penalty for the same criminal conduct.

Orders