Citation: R v Caradonna [2000] NSWCCA 398
Court: NSW Court of Criminal Appeal
Date: 6 October 2000
Judges: Wood CJ at CL, Dunford J, Carruthers AJ
Background
The respondent pleaded guilty in the District Court to three counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth), each count involving the lodgment of false tax returns with the Australian Taxation Office. The frauds spanned three successive tax years (1994/1995 to 1997/1998) and involved fabricated employment details, forged group certificates, and false expense claims. The total amount sought across all three counts was approximately $63,487, of which the respondent personally received around $46,373.
The trial judge, Tupman DCJ, sentenced the respondent to concurrent two-year terms to be served by way of periodic detention. Her Honour treated certain personal and family circumstances as special circumstances warranting departure from the usual practice of imposing full-time custody for substantial revenue fraud. Those circumstances included the imminent birth of a second child, the financial impact on the respondent's family, and his role supporting an intellectually disabled younger brother.
The Crown appealed to the Court of Criminal Appeal, contending that the sentences were inadequate and that periodic detention was not appropriate for offences of this character.
Legal Issues
- Whether the original sentences of periodic detention were manifestly inadequate for three counts of substantial Commonwealth revenue fraud.
- Whether the personal and family circumstances identified by the sentencing judge constituted a proper basis for departing from the general principle that such offenders should serve full-time custodial sentences.
- Whether, following resentencing by the Court of Criminal Appeal, the respondent should be assessed for a home detention order as an alternative to full-time imprisonment.
Decision
The Court of Criminal Appeal upheld the Crown appeal and resentenced the respondent to concurrent terms of six months' full-time imprisonment. The Court accepted that periodic detention was inadequate for offences of this nature and seriousness. General deterrence was identified as a significant sentencing consideration, and the Court held that offenders who defraud the revenue in substantial amounts should ordinarily serve full-time custodial sentences.
The Court acknowledged the respondent's personal circumstances, including his family responsibilities and prior good character, and applied the principle of double jeopardy (which moderates the severity of a sentence imposed on Crown appeal) to arrive at a term at the lower end of what it regarded as the appropriate range. Nevertheless, those circumstances did not, in the Court's view, justify the departure from full-time custody that the District Court had accepted.
Following resentencing, the respondent's counsel applied for an order that the respondent be assessed for home detention under ss 7 and 74 to 83 of the Crimes (Sentencing Procedure) Act 1999 (NSW), read with s 20AB of the Crimes Act 1914 (Cth). The Court noted that home detention is a less onerous form of custody than institutional imprisonment, drawing on the earlier decision in R v Jurisic. It held that ordering a home detention assessment would further dilute sentences already calibrated at the bottom of the appropriate range, rendering them inadequate.
The Court refused the home detention assessment application. The general rule requiring full-time custody for substantial revenue fraud would not, in the Court's view, be satisfied by the concessions that home detention entails. The Court also noted that the respondent appeared to require medical investigation, and directed that this be communicated to the Director of Health Services upon his admission into custody.
Orders Made
- Crown appeal upheld.
- Original sentences of two years' periodic detention set aside.
- Respondent resentenced to concurrent terms of six months' full-time imprisonment on each of the three counts.
- Application for referral for home detention assessment refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that offenders who defraud the Commonwealth revenue of substantial amounts should, as a general rule, serve full-time custodial sentences, and that periodic detention is ordinarily inadequate for such offending.
- Personal and family hardship, while a relevant sentencing factor under s 16A(2)(p) of the Crimes Act 1914 (Cth), did not displace the sentencing principle of general deterrence in cases involving serious and repeated revenue fraud.
- Where the Court of Criminal Appeal resentences on a Crown appeal, the principle of double jeopardy operates to moderate the severity of the sentence imposed, typically resulting in a term at the lower end of the appropriate range.
- Home detention is treated as a less onerous custodial alternative than institutional imprisonment, and ordering an assessment for it has the practical effect of further watering down an already-imposed sentence of imprisonment.
- In dismissing the home detention application, the Court applied its discretion under s 78(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to decline the assessment referral where granting it would render an otherwise adequate sentence inadequate.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), ss 16A, 20AB, 29D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 7, 76, 77, 78, 80, 81
Cases Cited
- R v Jurisic (1998) 45 NSWLR 209
- R v Morris (1992) 61 A Crim R 233
- R v Whitnall (1993) 120 ALR 449
- R v Wright (1994) 74 A Crim R 152
- R v Nguyen and Pham (1996) 86 A Crim R 521
- R v Stitt (1998) 102 A Crim R 428
- R v Hollocoglu (1992) 29 NSWLR 67
- R v Edwards (1996) 90 A Crim R 510
- R v Kelvin [2000] NSWCCA 190
- R v Gentz [1999] NSWCCA 285
- R v Webster [1999] NSWCCA 313
- Director of Public Prosecutions v Hamman (CCA, 1 December 1998)
- R v Ruggero (SASC, 1 December 1998)
- R v Day (CCA, 23 April 1998)
- R v Byrne (CCA, 5 August 1998)