Citation: O'Meara, Kenneth John v R [2009] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 2 April 2009
Judges: McClellan CJ at CL, Hoeben J, Harrison J
Background
The appellant was convicted in the District Court on one count of obtaining a financial advantage by deception and four counts of attempting to obtain a financial advantage by deception, contrary to the Commonwealth Criminal Code. The offences arose from a scheme in which the appellant lodged false Business Activity Statements (BAS) with the Australian Taxation Office (ATO) on behalf of companies he controlled, falsely claiming GST refunds totalling approximately $64.4 million. Only one refund was actually paid, in the amount of around $505,000.
The scheme operated from July 2001 to September 2002. The appellant supported the false BAS claims with fabricated invoices, purportedly from companies he also controlled, recording the sale of fictitious capital items such as software source codes. The appellant was sentenced to an overall term of eight years imprisonment, with a non-parole period of five years and four months.
The appeal was initially heard on 2 September 2008, confined to five grounds against conviction. After the hearing, the appellant sought leave to raise additional grounds and to appeal against sentence. The Crown opposed the late conviction grounds but did not oppose the sentence appeal.
Legal Issues
- Whether the trial judge erred by failing to give the jury an Edwards direction (a direction warning the jury about the dangers of acting on the evidence of an alleged accomplice or person with a motive to implicate the accused)
- Whether the trial judge failed to adequately put the defence case to the jury in the summing-up
- Whether the trial judge's directions on attempt were adequate
- Whether the trial was unfair because of the failure to order separate trials on separate counts
- Whether the trial judge erred in directing the jury that the Commissioner of Taxation was a Commonwealth entity
- Whether the late grounds of appeal raised after the hearing should be granted leave, and whether doing so would constitute an abuse of process
- On sentence: whether the judge erred in not sentencing separately on each count, whether sentences were inappropriately accumulated, whether the offences were too stale to attract the sentences imposed, and whether the sentences were manifestly excessive
Decision
The Court of Criminal Appeal, in a judgment delivered by Harrison J (with McClellan CJ at CL and Hoeben J agreeing), dismissed all five original grounds of appeal against conviction. No errors were identified in the trial judge's directions regarding the Edwards warning, the defence case, the law of attempt, or the status of the Commissioner of Taxation as a Commonwealth entity. The separate trials ground also failed.
On the application to raise additional conviction grounds after the hearing, the Court refused leave. Harrison J found that permitting entirely new grounds to be agitated after the matter had been reserved would constitute an abuse of process. The Court also found that the proposed additional grounds were futile in any event, providing a separate and sufficient basis for refusal.
On sentence, the Court found no error in the way the sentences were structured or accumulated. The sentencing judge had followed the principles in Pearce v The Queen in considering whether sentences should be cumulative or concurrent. The Court rejected the argument that the offences were so stale as to undermine the sentences, noting the offences had been pursued promptly once detected.
The Court declined to find that the total sentence of eight years was manifestly excessive. The sentencing judge had properly identified the need for both general and specific deterrence, given the scale of the fraud, the abuse of a tax system that depends on honest reporting, and the appellant's prior criminal history including subsequent drug, firearms and fraud convictions.
Orders Made
- Leave to appeal refused in respect of all grounds sought to be raised after the hearing of 2 September 2008, except for the sentence appeal
- Appeal against conviction dismissed
- Appeal against sentence dismissed
Key Takeaways
- Raising entirely new grounds of appeal after a matter has been reserved for judgment may constitute an abuse of process, and the Court of Criminal Appeal may refuse leave on that basis alone.
- No error was established in the trial judge's directions on attempt, the Edwards warning, or the characterisation of the Commissioner of Taxation as a Commonwealth entity under the relevant legislation.
- In dismissing the sentence appeal, the Court confirmed that large-scale GST fraud involving fabricated documentation and exploitation of a relatively new tax system warrants significant terms of imprisonment, with both general and specific deterrence playing a substantial role.
- Accumulation of sentences across multiple counts was found to be consistent with the principles in Pearce v The Queen where the offences, though related, were separate acts of deception.
- The staleness of the offences did not reduce the sentences, as detection and prosecution had proceeded without undue delay once the fraud came to light.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW)
- Criminal Code Act 1995 (Cth), ss 11.1, 134.2
- Director of Public Prosecutions Act 1983 (Cth)
- Taxation Administration Act 1958 (Cth)
Cases:
- Elliott v R, Blessington v R [2007] HCA 51; (2007) 234 CLR 38
- Healey v R [2006] NSWCCA 235
- Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Elliott and Blessington [2006] NSWCCA 305; (2006) 68 NSWLR 1
- R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90
- R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10