Andrew Joseph THORN V R [2009] NSWCCA 294 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
17/11/2009
JUDGMENT DATE:
15 December 2009
JUDGMENT OF:
Campbell JA at 1; Howie J at 2; Rothman J at 60
DECISION:
1. Application for leave to appeal is granted and the appeal is allowed. 2. The sentences imposed in the District Court are quashed and in lieu the following sentences are imposed: (a) On the charge of attempt, imprisonment for 6 months to date from 27 March 2009. (b) On the first charge of obtaining, imprisonment for 6 months to date from 27 July 2009. (c) On the 2nd to 5th charges of obtaining, imprisonment for 9 months to date from 27 January 2010. (d) On the 6th to 8th charges of obtaining, imprisonment for 14 months to date from 27 March 2010. (e) On the 9th to 11th charges of obtaining, imprisonment for 18 months to date from 27 July 2010. (f) On the charge of money laundering, imprisonment for 2 years 8 months to date from 27 September 2010. There is to be an overall non-parole period of 2 years 4 months from 27 March 2009 to expire on 26 July 2011.
CATCHWORDS:
Criminal Law - Appeal against sentences - GST frauds - use of money laundering offence in relation to profits of the frauds - whether maximum penalty reliable - inappropriate use of s 4K Crimes Act (Cth) to impose single sentence for fraud offences - applicant re-sentenced.
LEGISLATION CITED:
Criminal Code (Cth) - ss 134.2(1), 400.4(1) Crimes Act (Cth) - s 4K Judiciary Act 1903 (Cth) - s 68 Crimes Act 1958 (Vic)
Commonwealth Director of Public Prosecutions - Crown Archbold Legal Solutions - Applicant
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2009/18664
LOWER COURTJUDICIAL OFFICER:
Sides DCJ
LOWER COURT DATE OF DECISION:
27 March 2009
2008/18664
CAMPBELL JA HOWIE J ROTHMAN J
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.
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AGLC
Thorn v R [2009] NSWCCA 294
Case
[2009] NSWCCA 294
Decision Date
CaseChat Overview and Summary
In the case of Thorn v R, the applicant appealed against his sentences imposed for a series of GST frauds. The respondent, the Crown, had prosecuted the applicant for multiple counts of GST fraud and money laundering. The primary legal issues in this case revolved around the reliability of the maximum penalty for the money laundering offence and whether the use of section 4K of the Crimes Act (Cth) to impose a single sentence for the fraud offences was appropriate. The court had to determine whether the maximum penalty for the money laundering offence was reliable and whether the sentencing judge erred in imposing a single sentence for the fraud offences.
The High Court held that the maximum penalty for the money laundering offence was not reliable because it was not shown that the applicant's conduct was likely to result in the payment of the full amount of the tax liability. Therefore, the court found that the maximum penalty for the money laundering offence was not reliable. The court further held that the sentencing judge had erred in imposing a single sentence for the fraud offences because the applicant's conduct amounted to multiple discrete offences. The court held that the use of section 4K of the Crimes Act (Cth) to impose a single sentence for the fraud offences was inappropriate.
Consequently, the High Court allowed the applicant's appeal against his sentences. The applicant was re-sentenced by the Court of Appeal. The court ordered that the applicant be re-sentenced for the fraud offences and the money laundering offence separately, taking into account the appropriate maximum penalties for each offence.