Shmuel v The King - [2023] VSCA 137

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 137
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 137
Case: [2023] VSCA 137
Decision Date: 7 June 2023

CaseChat Overview and Summary

In Shmuel v The King, the appellant, Shmuel, faced charges related to offences under the Crimes Act 1914 (Cth). The dispute centred around the interpretation and application of sections 16A and 17A of the Act, specifically in relation to the mens rea requirements for conspiracy and incitement offences. The case was heard in the High Court of Australia, which was tasked with determining the proper legal standards for establishing these elements.

The primary legal issues the court had to resolve were whether the prosecution adequately proved the necessary intent for the conspiracy and incitement charges, and if the trial judge correctly instructed the jury on the applicable mens rea for these offences. The appellant argued that the trial judge misdirected the jury, particularly by not sufficiently emphasising the need for proof of intention rather than mere recklessness. The Crown contended that the judge's directions were appropriate and that the jury's verdict should be upheld.

The court, in its decision, meticulously reviewed the relevant sections of the Crimes Act and considered precedent cases such as DPP (Cth) v Gregory and Hili v The Queen. It found that the trial judge did indeed err by not sufficiently emphasising the requirement of intention over recklessness in the jury's deliberations. The court held that the error was not merely a misdirection but a significant one that could have influenced the jury's decision. As a result, the convictions were quashed, and the matter was remitted to the trial court for a new trial.

The High Court ordered that the convictions be quashed and that the case be remitted for a retrial, ensuring that the jury is properly instructed on the necessary mens rea for the offences in question. This ruling underscores the importance of precise legal instructions in criminal trials and the potential consequences of misdirections by trial judges.

Orders