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Upadhyaya v R

Upadhyaya v R

Case [2017] NSWCCA 162 7 July 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Upadhyaya v R [2017] NSWCCA 162
Hearing dates: 15 March 2017
Decision date: 07 July 2017
Before: Leeming JA at [1];
Latham J at [24];
Campbell J at [25].
Decision:
(1) Refuse leave to amend to add particular (d) of the existing proposed ground of appeal as an additional ground;
(2) Otherwise grant leave to appeal;
(3) Appeal dismissed.

Catchwords: CRIMINAL APPEAL – sentence appeal – appeal against aggregate sentence – fraud – corporate victim – where applicant the director of the corporate victim operating two horse studs – where applicant falsely inflated invoices for hay and oats – where primary judge made a direction under s 97 Victims Rights and Support Act 2013 (NSW) – whether aggregate sentence was manifestly excessive – consideration of the use of comparative cases in sentencing – consideration of the effect of compensation directions in mitigation of sentence – consideration of whether counsel can raise a new argument before the Court of Criminal Appeal that could have been raised before the primary judge – leave to raise new argument refused – leave to appeal otherwise granted – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Victims Rights and Support Act 2013 (NSW)
Cases Cited: Attorney General of New South Wales v Tho Services Limited (in liquidation) (ACN 000 263 678) [2016] NSWCCA 221
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25
Chen v R [2015] NSWCCA 122
De Angelis v The Queen [2015] NSWCCA 197
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 199
Lu v R [2014] NSWCCA 307
Markarian v The Queen (2005) 228 CLR 357
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Mundine v R [2017] NSWCCA 97
R v Brough [1995] 1 NZLR 419
R v Kalache (2000) 111 A Crim R 152; [2000] NSWCCA 2
R v Hawker [2001] NSWCCA 148
R v Martin [2005] NSWCCA 190
R v Phelan (1993) 66 A Crim R 446
R v Stanbouli (2003) 141 A Crim R 531
R v Tadrosse (2005) 65 NSWLR 740
R v Woodman [2001] NSWCCA 310
The Queen v Kilic (2016) 91 ALJR 131; [2016] HCA 48
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
The Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zreika v R (2012)…

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 Upadhyaya v R

Details

AGLC: Upadhyaya v R [2017] NSWCCA 162
Case: [2017] NSWCCA 162
Decision Date: 07 July 2017

CaseChat Overview and Summary

The applicant, a director of a corporate victim, appealed against the aggregate sentence imposed for defrauding the corporation through the submission of inflated invoices for hay and oats. The case was heard by the NSW Court of Criminal Appeal, which was required to consider whether the sentence was manifestly excessive. The court also examined the use of comparative cases in sentencing, the impact of compensation directions on the sentence, and whether counsel could introduce a new argument before the Court of Criminal Appeal that could have been raised at the primary hearing.

The court considered the use of comparative cases, which were submitted for the purpose of showing that the applicant’s sentence was manifestly excessive. The court held that while comparative cases could be useful in demonstrating the relativity of sentences, they did not provide a definitive answer as to whether a sentence was manifestly excessive. The court also considered the effect of the compensation direction on the sentence, finding that while the compensation direction mitigated the sentence, it did not necessarily mean that the sentence was manifestly excessive. Furthermore, the court considered whether the applicant’s counsel could raise a new argument before the Court of Criminal Appeal that could have been raised before the primary judge. The court held that the new argument could not be raised as it was not available at the time of the primary hearing.

The Court of Criminal Appeal held that the aggregate sentence was not manifestly excessive, and the appeal was dismissed. The court refused leave for counsel to raise the new argument before the Court of Criminal Appeal, finding that it was not available at the time of the primary hearing. The court did, however, grant leave to appeal, allowing the applicant to challenge the sentence on the basis that it was manifestly excessive.

Orders