Citation: El-Chaar v Regina [2007] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 24 January 2007
Judge(s): Beazley JA; Buddin J; Hislop J
Background
The appellant was sentenced in the District Court to eight years' imprisonment with a five-year non-parole period after pleading guilty to 12 counts of dishonestly obtaining property by deception and one count of attempting to do so, all contrary to the Commonwealth Criminal Code. The offences involved lodging 13 false Business Activity Statements with the Australian Taxation Office, falsely claiming GST refunds in connection with a fictitious residential development project in the Liverpool area. The total amount fraudulently obtained exceeded $1 million.
The scheme was sophisticated. An ATO employee who was a relative of the appellant by marriage used her position to improperly process several of the early false claims, establishing a pattern that allowed subsequent claims to pass undetected. The offending spanned approximately 12 months from March 2003 to March 2004.
The appellant sought leave to appeal against the sentence on seven grounds. Central among them were claims that the sentencing judge gave insufficient weight to alleged death threats made against the appellant and his family arising from a failed earlier business venture, and that the overall sentence was manifestly excessive.
Legal Issues
- Whether the total sentence of eight years with a five-year non-parole period was manifestly excessive given the circumstances of the offending
- Whether the sentencing judge gave insufficient weight to alleged death threats and financial pressure as motivation for the offences
- Whether the sentencing judge erred in failing to differentiate sentences between individual counts, particularly given variations in the amounts involved and the role of duress in relation to some charges
- Whether the principles in Pearce v The Queen required the sentencing judge to impose different sentences for individual offences based on distinguishing features between them
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, upholding the sentence imposed by Solomon DCJ. The Court found the offences were serious, premeditated, and sustained over a lengthy period. The modus operandi was sophisticated, involved inside assistance, and the total amount exceeded $1 million. The appellant was also subject to a bond for an earlier dishonesty offence at the time of the conduct, which added to the gravity of the overall picture.
On the duress and motivation argument, the Court acknowledged that duress can constitute a mitigating factor on sentence and accepted that it had been taken into account by the sentencing judge. However, financial difficulty is no answer to the commission of an offence. The Court also noted that the evidence pointed to personal gain as a significant motivation, including overseas travel, suggesting the appellant had been living what the sentencing judge described as "the high life" rather than acting purely under compulsion.
On the question of differentiation between individual charges, the Court acknowledged that there were some differences between the offences, including the varying amounts involved and the degree to which duress featured. However, those differences were not so strikingly overwhelming as to necessarily require the imposition of different sentences for the individual counts. The Court found no error in the sentencing judge's approach.
Even if some differentiation between charges had been technically warranted, the Court concluded that the effective overall sentence was appropriate and that this was not a case in which a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW).
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Duress may operate as a mitigating factor on sentence, but the Court of Criminal Appeal confirmed it had been taken into account here and that financial pressure alone does not excuse the commission of a criminal offence.
- Where differences between individual offences exist, such as variations in amounts or the role of duress, the sentencing court is not required to impose differentiated sentences unless those differences are so overwhelming as to demand separate treatment.
- In dismissing the appeal, the Court applied the principle from Pearce v The Queen but found it was not breached: the sentencing structure, while dealing with multiple offences in two blocks, produced an overall effective sentence that was appropriate.
- Aggravating features that weighed heavily in the sentencing assessment included the premeditated and sophisticated nature of the fraud, the involvement of an insider at the ATO, the duration of the offending, and the fact that the appellant was on a bond for a prior dishonesty offence at the time.
- Personal enrichment, evidenced by overseas travel and a lifestyle inconsistent with genuine financial hardship, undermined the weight that might otherwise have attached to the appellant's claimed motivations.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW) s 6(3)
- Criminal Code Act 1995 (Cth) ss 11.1, 134.1, 134.1(1)
Cases:
- House v The King (1936) 55 CLR 499
- Pearce v The Queen (1998) 194 CLR 610
- R v Oblach (2005) 65 NSWLR 75
- Regina v Liu [2005] NSWCCA 378