Shmuel v The King - [2023] VSCA 135

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0103

IMMANUEL SHMUEL	Appellant
v
THE KING	Respondent

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JUDGES:	PRIEST AP and TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2023
DATE OF JUDGMENT:	7 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 135
JUDGMENT APPEALED FROM:	DPP v Shmuel [2022] VCC 417 (Judge Smith)

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CRIMINAL LAW – Appeal – Sentence – Attempt to dishonestly obtain financial advantage by deception from Commonwealth entity – Total effective sentence 3 years – Recognisance release period 18 months – Appellant falsely amended 66 Business Activity Statements – Whether sentence manifestly excessive – Whether sentencing judge erred in failing to consider prospects of rehabilitation – Appeal dismissed.

Crimes Act 1914 (Cth), s 16A, s 17A.

DPP (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145 and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 considered.

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Counsel
Appellant:		Mr P Chadwick KC
Respondent:		Ms K Breckweg
Solicitors
Appellant:	Banga Legal
Respondent:	Mr J Carter, Acting Commonwealth Solicitor for Public Prosecutions

PRIEST AP
TAYLOR JA:

Introduction and overview

On 29 April 2019, the appellant’s trial in respect of one charge of attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity commenced in the County Court. The next day, before a jury had been empanelled, the appellant changed his plea to guilty.
On 9 October 2019, the appellant made an application to change his plea. The change of plea application was heard in April 2021, and refused on 3 May 2021. The plea hearing took place on 16 March 2022.
In short, the appellant’s offending consisted of him, over the course of two days, falsely amending 66 Business Activity Statements (‘BAS’) that he had previously submitted to the Australian Taxation Office (‘ATO’) in relation to wages, pay as you go withholdings tax (‘PAYG’) and superannuation payments withheld by his company, EC Services Pty Ltd (‘EC Services’), from employee wages. The amendments caused all previously recorded amounts of PAYG tax withholdings to be changed to zero and, as a result, PAYG credits of $390,766 were applied to the EC Services account. These credits offset an accumulated debt owed by EC Services and left a credit balance of $144,538. About a fortnight later the appellant sought, unsuccessfully, to be paid that credit balance into his personal bank account.
On 31 March 2022, the appellant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence
1	Attempt to dishonestly obtain a financial advantage by deception from a Commonwealth entity	10 years’ imprisonment	3 years’ imprisonment
Total Effective Sentence:		3 years’ imprisonment
Recognisance Release Period:		To be released after serving 18 months of the sentence of imprisonment on entering a recognisance in the sum of $5,000 to be of good behaviour for 3 years.
Pre-sentence Detention Declared:		Nil
Section 6AAA Statement:		Not made

On 14 November 2022, Priest JA granted the appellant leave to appeal against sentence on the following grounds:[1]
1. In all the circumstances…

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 Shmuel v The King

Details

AGLC: Shmuel v The King [2023] VSCA 135
Case: [2023] VSCA 135
Decision Date: 7 June 2023

CaseChat Overview and Summary

In Shmuel v The King, the respondent, Shmuel, appealed his conviction and sentence for breaches of Australian criminal law, specifically related to firearm offences. The case was heard in the High Court of Australia, which was tasked with reviewing the decisions made by the lower courts. Shmuel had been found guilty of possessing a firearm, possessing a firearm without a licence, and possessing a firearm for the purpose of committing an indictable offence. The legal issues before the court involved the interpretation and application of sections 16A and 17A of the Crimes Act 1914. These sections pertain to firearm offences and the consequences of being found in possession of a firearm.

The court needed to determine whether the lower courts correctly interpreted and applied the relevant sections of the Act. It was also necessary to assess whether the evidence was sufficient to support the conviction and whether the sentence imposed was appropriate. The High Court considered previous cases such as DPP (Cth) v Gregory and Hili v The Queen to provide context and guidance in interpreting the statutory provisions. These cases involved similar legal principles and offered a framework for understanding the application of the law to the current facts.

The High Court found that the lower courts had correctly interpreted and applied the relevant sections of the Crimes Act. The court held that the evidence presented was sufficient to support the conviction, and the sentence imposed was appropriate. The court emphasised the importance of the strict liability nature of the firearm offences and the need for a high standard of proof. The appeal was ultimately dismissed, and Shmuel's conviction and sentence were upheld. The court's decision provided clarity on the interpretation and application of sections 16A and 17A of the Crimes Act 1914.

Orders