Citation: Regina v Walsh [2004] NSWCCA 435
Court: NSW Court of Criminal Appeal
Date: 8 December 2004
Judge(s): Sully J, Hidden J, Howie J (Howie J writing)
Background
The applicant was a company director who pleaded guilty in the District Court to four counts of defrauding the Commonwealth under s 29D of the Crimes Act (Cth). The offences related to the understatement of income in personal and company tax returns over several years. He was sentenced by Christie DCJ to an effective term of imprisonment of three years six months, later corrected on re-sentence to three years with a non-parole period of two years from 24 July 2003.
The most serious count (Count 6) concerned the 1996 tax return of the company, TPS. The agreed statement of facts placed before the sentencing judge included an allegation that the company had failed to disclose approximately $1,023,751 received from Lend Lease, making the total undisclosed income for that count approximately $1,515,506. No objection was taken to the statement of facts at the time.
After sentence, an accounting firm examined all known TPS and personal accounts and found no record of TPS actually receiving the Lend Lease cheques. The applicant then brought an appeal seeking to admit this material as fresh evidence and to have his sentence reduced on the basis that the sentencing judge had proceeded on an inflated and erroneous factual basis.
Legal Issues
- Whether the fresh accounting evidence should be admitted on appeal to show the applicant was sentenced on a false factual basis
- Whether the absence of that evidence at the sentencing hearing caused a miscarriage of justice
- Whether the sentencing judge otherwise erred in failing to make adequate allowances for delay, the impact of imprisonment on the applicant's family, and the plea of guilty
Decision
The Court of Criminal Appeal refused to admit the fresh evidence. The Court affirmed the principle that post-sentence evidence may be admitted where its absence before the sentencing court led to a miscarriage of justice, drawing on R v Goodwin and R v Fordham. However, the Court concluded that no such miscarriage arose on the facts of this case.
The Court's reasoning centred on the circumstances of the plea. The applicant had accepted an agreed statement of facts without objection. The Court found that the fresh accounting evidence was equivocal: the inability to trace the Lend Lease payments through known accounts did not establish that the company had not received them. The funds may have been received but passed through an undisclosed account, a method consistent with how the frauds were otherwise conducted.
On the remaining sentencing grounds, the Court found no error. The applicant's counsel had appropriately conceded at sentence that delay did not warrant a reduction, and the effect of imprisonment on the applicant's family was not of an exceptional nature that would justify a departure from an otherwise appropriate sentence. On the plea of guilty, the Court noted it had not been entered at the earliest opportunity and was made only three days before trial, a circumstance the sentencing judge had correctly taken into account.
The Court described the resulting sentence as a moderate one, having regard to the seriousness of the taxation fraud and the need for general deterrence.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, but the appeal dismissed
Key Takeaways
- Post-sentence evidence may be admitted on appeal where its absence from the sentencing hearing caused a miscarriage of justice, but the test is not simply that the evidence was unavailable at the time.
- Where an applicant accepted an agreed statement of facts without objection at sentence, the Court of Criminal Appeal will require cogent evidence of actual error before finding a miscarriage of justice. Inconclusive accounting evidence showing funds could not be traced was insufficient.
- The principle that fresh or new evidence is received only where there has been a miscarriage of justice is not a rigid checklist: the conditions described in R v Goodwin and R v Fordham are illustrative examples rather than exhaustive preconditions.
- Delay in prosecution may be a relevant sentencing consideration, but its weight depends on the seriousness of the offence and its effect on the offender. A concession by defence counsel that delay did not warrant reduction can be appropriate in serious fraud matters.
- Family hardship caused by imprisonment does not ordinarily justify a departure from an otherwise appropriate sentence unless the circumstances are exceptional. Standard consequences for a spouse and children do not reach that threshold.
Legislation and Cases Referenced
Legislation
- Crimes Act (Cth), s 19A (requirement to fix an overall non-parole period)
- Crimes Act (Cth), s 29D (defrauding the Commonwealth)
Cases
- R v Goodwin (1990) 51 A Crim R 328
- R v Fordham (1998) 98 A Crim R 359