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Court of Criminal Appeal 21 May 2010

Cao v Regina

[2010] NSWCCA 109

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE EVIDENCE CREDIBILITY PRIOR INCONSISTENT STATEMENTS FAILURE TO PUT MATTERS TO WITNESS

Citation: Cao v Regina [2010] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 21 May 2010
Judge(s): Macfarlan JA, Johnson J, RA Hulme J

Background

The applicant had pleaded guilty in the District Court to receiving stolen property and attempting to obtain a financial advantage by deception. The offences arose from a scheme in which 742 client tax files were stolen from a Hurstville tax agency in December 2005 and later came into the applicant's possession. Using the personal details and tax file numbers from those files, she lodged 47 fraudulent Australian Business Number applications with the ATO, then submitted 53 false Business Activity Statements claiming GST refunds totalling $120,950. The ATO detected and stopped the payments before any funds were released.

The applicant operated from multiple addresses across Sydney, used internet accounts subscribed in false names, and coordinated the movement of computers and files between locations with two co-participants. Police executing a search warrant at a Cronulla unit found 739 of the 742 stolen files, along with false identification documents and debit cards linked to fictitiously opened bank accounts.

Freeman DCJ sentenced the applicant to a fixed term of 16 months for the receiving offence and two years imprisonment (with release on recognizance after 16 months) for the Commonwealth offence, both sentences running concurrently from 9 October 2009. The applicant sought leave to appeal those sentences.

  • Whether the sentencing judge erred by making adverse credibility findings against the applicant, particularly where alleged prior inconsistent statements had not been put to her in cross-examination
  • Whether it was open to the judge to find that the applicant played a "central" role in the fraud, given the involvement of other participants whose roles had not been fully assessed
  • Whether the judge gave sufficient weight to the applicant's subjective circumstances, including her lack of family in Australia, gambling problem, age, absence of prior convictions, good character, and guilty plea
  • Whether the sentences imposed were manifestly excessive

Decision

The Court of Criminal Appeal rejected the challenge to the credibility findings. The sentencing judge had observed the applicant give evidence and had material before him, including the agreed facts, that was inconsistent with aspects of her testimony. The applicant's counsel had not raised the omission to put prior inconsistent statements to her during the sentencing hearing itself, and the Court noted that findings of fact by a sentencing judge will not be disturbed on appeal unless those findings were not open on the evidence. The judge's adverse credibility assessment was open to him.

On the question of the applicant's role, the Court found it was open to the judge to conclude that her activities were "central" to the attempted fraud. The involvement of another man (referred to as "Chen") did not undermine this finding, since the evidence about his role was limited and he had never been charged with any offence connected to the scheme. The Court noted the judge had not described the applicant as the sole architect of the enterprise.

The Court also rejected the submission that insufficient weight had been given to the applicant's subjective circumstances. The judge had been aware of and addressed those matters; the weight to assign them was a matter for his sentencing discretion. Citing established authority, the Court confirmed that the circumstances justifying appellate intervention on grounds of weight are narrowly confined.

Finally, the Court found the sentences were not manifestly excessive. Against maximum penalties of 10 years for each offence, sentences of 16 and 24 months served concurrently reflected the applicant's central role, the need for general deterrence in self-reporting taxation matters, the breach of trust involved, and the 30 additional offences taken into account on the two schedules. The Court added that even if error had been established, no lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Findings of fact by a sentencing judge will not be disturbed on appeal unless those findings were not open on the evidence, even where counsel failed to put alleged prior inconsistent statements to the witness during the hearing.
  • A finding that an offender played a "central" role in a fraud does not require the court to have fully assessed or excluded the roles of all other participants, particularly where other individuals were never charged.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the weight a sentencing judge assigns to subjective features is a matter of discretion, and appellate intervention on that basis is permitted only in narrowly confined circumstances.
  • Sentences for taxation fraud must reflect the importance of general deterrence and the breach of trust inherent in a self-reporting tax system, particularly where the offending was sophisticated and sustained.
  • No error was established in treating concurrent sentences of 16 months and 2 years as proportionate to an attempted deception of the Commonwealth for $120,950, against maximum penalties of 10 years per offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 188, 302
- Criminal Code 1995 (Cth), ss 11.1, 134.2(1), 145.2
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- O'Neil-Shaw v R [2010] NSWCCA 42
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Regina v Baker [2000] NSWCCA 85
- Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
- Thorn v R [2009] NSWCCA 294