Citation: Bennett v R [2015] NSWCCA 56
Court: NSW Court of Criminal Appeal
Date: 8 April 2015
Judges: Simpson J, Rothman J, Adamson J (judgment by Adamson J, with whom Simpson and Rothman JJ agreed)
Background
The appellant was a businessman convicted following a jury trial before Jeffreys DCJ of two counts arising from a single underlying tax fraud conspiracy. The conspiracy involved sending money from an Australian company overseas, then receiving it back in Australia as a purported loan, while falsely claiming the outgoing payments as expenses in company tax returns to reduce taxable income and defraud the Australian Taxation Office.
Two counts were necessary on the indictment not because two separate conspiracies were alleged, but because the relevant Commonwealth legislation changed partway through the period of the alleged conduct. The first count covered the period to 23 May 2001 under the Crimes Act 1914 (Cth), and the second covered 24 May 2001 to 20 March 2006 under the Criminal Code Act 1995 (Cth). The defence at trial did not distinguish between those two periods in its submissions about the appellant's knowledge and intent.
The appellant was sentenced to 12 months' imprisonment for the first count and three years and nine months for the second count, with the sentences ordered to run cumulatively. He appealed against his conviction on the first count and against both sentences.
Legal Issues
- Whether the trial judge's direction to the jury to return consistent verdicts gave rise to a miscarriage of justice in respect of the first count
- Whether the appellant was bound by his trial counsel's agreement with that direction
- Whether the total sentence gave rise to a justifiable sense of grievance when compared with sentences imposed on co-conspirators (parity)
- Whether the cumulative sentence for the two counts was manifestly excessive given that the underlying conduct comprised a single conspiracy
Decision
Conviction appeal: The Court granted leave to appeal against conviction on the first count but dismissed the appeal. The trial judge's direction that the jury should return consistent verdicts was given in response to a question from the jury after it retired. Critically, defence counsel at trial not only did not object to the direction but expressly agreed with it. The Court held that, in those circumstances, the appellant was bound by counsel's conduct of the trial. No miscarriage of justice arose.
Parity: The Court found no unjustifiable disparity between the sentence imposed on the appellant and those imposed on co-conspirators Mr Agius and Mr Zerafa. The Court noted that the appellant was a successful businessman who participated in a calculated and deliberate deception involving considerable moral culpability, made no reparation for the substantial loss to the ATO, and could not establish that any difference in sentence reflected an error in principle.
Manifest excess and accumulation: The sentencing judge's approach of making the sentence for the first count wholly cumulative on the second count followed the same method adopted in related proceedings. The Court observed that, while other approaches may have been open, this method was not sensibly criticised where, as a matter of law, two counts were required to cover what was in substance a single conspiracy. The only meaningful sentencing comparison was the total term, not a count-by-count comparison across different offenders.
The Court noted that no separate ground of manifest excess had been pleaded in relation to the total sentence, and that, even if it had been, it would not have succeeded given the length and seriousness of the offending and the applicable maximum penalties.
Orders Made
- Leave granted under rule 4 of the Criminal Appeal Rules 1952 (NSW) in respect of the first ground of appeal against conviction
- Appeal against conviction dismissed
- Leave to appeal against sentence refused
Key Takeaways
- An appellant is bound by the way trial counsel conducted the defence, including any express agreement with a judicial direction to the jury. Failure to object, let alone affirmative agreement, forecloses a later complaint that the direction caused a miscarriage of justice.
- Where statutory amendment requires a single conspiracy to be charged across two counts covering different legislative periods, the sentencing court's decision to impose the sentences cumulatively is not inherently erroneous, provided the total term reflects the overall criminality.
- In dismissing the parity ground, the Court of Criminal Appeal confirmed that a sentence comparison for parity purposes must focus on the total sentence, not on individual counts in isolation, particularly where two counts represent a single course of criminal conduct.
- No disparity giving rise to a justifiable sense of grievance was established where the appellant's moral culpability was considerable, he made no reparation, and no relevant error in the sentencing exercise was identified.
- A ground of manifest excess that is not separately pleaded will not be examined by the Court of Criminal Appeal as a standalone issue, though the Court here indicated it would not have succeeded in any event.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 29D, 86
- Criminal Code Act 1995 (Cth), s 135.4
- Criminal Appeal Rules 1952 (NSW), r 4
Cases:
- Agius v The Queen [2013] HCA 27; 248 CLR 601
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- James v The Queen [2014] HCA 6
- Lane v R [2013] NSWCCA 317
- Pemble v The Queen [1971] HCA 20; 124 CLR 107
- R v Birks (1990) 19 NSWLR 677
- R v Agius; R v Zerafa [2012] NSWSC 978
- R v Green; R v Quinn [2011] HCA 49; 244 CLR 462
- R v Ronen [2006] NSWCCA 123
- R v Zerafa [2013] NSWCCA 222
- Wong v The Queen [2001] HCA 64; 207 CLR 584