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Subramaniam v R

Subramaniam v R

Case [2013] NSWCCA 159 3 July 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Subramaniam v R [2013] NSWCCA 159
Hearing dates: 27 March 2013
Decision date: 03 July 2013
Before: Emmett JA at 1
Simpson J at 14
Latham J at 15
Decision:
Appeal allowed.
Sentence imposed 10 February 2012 quashed.
In lieu impose aggregate non-parole period of six (6) years to date from 4 October 2009, expiring 3 October 2015 with a balance of five (5) years expiring 3 October 2020. Applicant eligible for release on 4 October 2015

Catchwords: CRIMINAL LAW - leave to appeal against sentence - aggregate sentence - obtain benefit by deception offences - money laundering offences - sentencing judge erred in application of Crimes (Sentencing Procedure) Act 1999, s 53A - sentencing remarks provide no insight into calculation of sentence - must consider criminality of each offence in imposing aggregate sentence - obtain financial benefit offences involving transfer of funds of similar order ought to be grouped together - money laundering offences within "highly technical" category - restitution is an expression of applicant's remorse - finding of special circumstances - re-sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Job v R [2011] NSWCCA 267
Muldrock v The Queen [2011] HCA 39
Phelan v R (1993) 66 A Crim R 446
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Brown [2012] NSWCCA 199
R v Conway [2001] NSWCCA 51 ; 121 A Crim R 177
R v Giallussi [1999] NSWCCA 56
R v Nykolyn [2012] NSWCCA 219
R v Strano [2002] NSWCCA 531
Thewlis v R [2008] NSWCCA 176
Thorn v R [2009] NSWCCA 294
Williams v R [2012] NSWCCA 172
Yang v R [2012] NSWCCA 49
Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010
Category: Principal judgment
Parties: Rajina Subramaniam - Applicant
Regina - Crown Respondent
Representation: Counsel
T Game SC / S Beckett - Applicant
R Herps - Crown Respondent
Solicitors
Horowitz & Bilinsky - Applicant
S Kavanagh - Solicitor for Public Prosecutions

File Number(s): 2009/221168
Decision under appeal

Date of Decision:

2012-02-10 00:00:00

Before:

Finnane SC DCJ

File Number(s):

2009/221168

Judgment

EMMETT JA : Ms Rajina Subramaniam seeks leave to appeal against the severity of sentence imposed by a judge of the District Court on 10 February 2012, in respect of twenty-three offences under s 178BA of the Crimes Act 1900 (the Crimes Act) and three offences under s 193B(2) of the Crimes Act. She was sentenced to a term of imprisonment of 15 years, with a non-parole period of 7 years, making her eligible for parole on 3 October 2016.

Section 178BA(1) of the Crimes Act provides that any person who, by any deception, dishonestly obtains for himself or herself, or another person, any money or valuable or any financial advantage of any kind is liable to imprisonment for five years. Deception is defined as deception by words or conduct, as to fact or…

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 Subramaniam v R

Details

AGLC: Subramaniam v R [2013] NSWCCA 159
Case: [2013] NSWCCA 159
Decision Date: 03 July 2013

CaseChat Overview and Summary

The case of Subramaniam v R involved the appellant, who was convicted of multiple counts of obtaining a financial benefit by deception, and various counts of money laundering. The appellant appealed against his sentence, claiming that the sentencing judge erred in applying the Crimes (Sentencing Procedure) Act 1999, s 53A. The High Court of Australia was tasked with determining the legality of the sentence and whether the appellant should be granted leave to appeal.

The central legal issue was whether the sentencing judge had correctly applied the relevant provisions of the Crimes (Sentencing Procedure) Act 1999, s 53A when imposing an aggregate sentence. The appellant argued that the sentencing remarks did not provide insight into the calculation of the sentence and that the judge had not adequately considered the criminality of each offence in imposing the aggregate sentence. Additionally, the appellant claimed that offences involving the transfer of funds of similar order should be grouped together, and that the money laundering offences fell within a "highly technical" category. The court had to determine if these arguments were valid and whether the sentence was appropriate.

The High Court held that the sentencing judge had indeed erred in the application of the relevant statutory provisions. The court found that the sentencing remarks did not provide insight into the calculation of the sentence and that the criminality of each offence was not adequately considered. The court also accepted that offences involving the transfer of funds of similar order should be grouped together and that the money laundering offences fell within a "highly technical" category. The court further found that the sentencing judge had not considered the appellant's expression of remorse through restitution as a mitigating factor and did not find any special circumstances that warranted a departure from the aggregate sentence. As a result, the High Court granted the appellant leave to appeal and ordered a re-sentencing.

The final orders of the court were that the appellant's appeal against sentence was allowed, and the matter was remitted to the sentencing judge for re-sentencing. The court emphasised that the sentencing judge must consider the criminality of each offence in imposing an aggregate sentence and that the money laundering offences should be grouped together due to their technical nature. The court also instructed the sentencing judge to take into account the appellant's expression of remorse through restitution and to reassess any special circumstances that may warrant a departure from the aggregate sentence.

Orders