Citation: The Queen v Gould [2020] NSWDC 831
Court: District Court of New South Wales
Date: 17 December 2020
Judge(s): Wilson SC DCJ
Background
A former chartered accountant was convicted by jury of a single count of attempting to pervert the course of justice, contrary to s 43(1) of the Crimes Act 1914 (Cth). The maximum penalty for that offence is 10 years' imprisonment. The offending arose from Federal Court civil proceedings conducted between 2010 and 2013, in which the central question was whether several foreign-incorporated companies had their central management and control in Australia for the purposes of Australian tax law.
The Crown alleged that the offender coached a key witness, a Belgium-born Swiss-based corporate services provider, to give false evidence in those Federal Court proceedings. The false evidence was designed to make it appear that the witness, rather than the offender, managed and controlled the relevant companies from Switzerland, thereby defeating the Deputy Commissioner of Taxation's position in the proceedings.
The offender had founded and led a Sydney chartered accounting firm and had been associated with the relevant companies through a web of nominee directors, shareholders, and corporate service entities spanning Switzerland, the Cayman Islands, and the United Kingdom. The jury returned its guilty verdict on 26 November 2019.
Legal Issues
- What facts could the sentencing court take into account, given that the jury convicted on a multi-particular indictment without returning a special verdict identifying which particular or particulars it found proved?
- How did the High Court's decision in Chiro v The Queen (2017) 260 CLR 425 affect the approach to fact-finding at sentence in those circumstances?
- What standard of proof applied to facts adverse to the offender, and to facts relied upon in mitigation?
- What was the appropriate sentence, having regard to the objective seriousness of the offending and the offender's personal circumstances?
Decision
Fact-finding at sentence after a multi-particular verdict
The indictment relied on five particulars of the attempted perversion of justice, including encouraging the witness to assert he made decisions on the offender's advice (not at his direction), that he was the beneficial owner of the relevant companies, and that he controlled their affairs. The jury was directed that proof of any one particular was sufficient for conviction. Because no special verdict was requested, the court could not know which particular or particulars the jury accepted.
The defence submitted, relying on Chiro v The Queen, that the offender could only be sentenced on the factual basis consistent with the least serious particular. His Honour considered this argument but proceeded to make independent findings of fact based on the evidence. The applicable standard was the criminal standard: facts adverse to the offender had to be established beyond reasonable doubt, while mitigating facts needed only be proved on the balance of probabilities, following The Queen v Olbrich [1999] HCA 54.
Objective seriousness
His Honour found the offending to be well above the mid-range in terms of objective seriousness, describing it as potentially at the high range. The conduct was characterised as deliberate, persistent, and calculated solely to mislead the Federal Court in order to obtain a financial advantage. The court noted that no comparable case reviewed reflected the same degree of determined and sustained intent to achieve the outcome of perverting justice.
Sentence
Having considered all available sentencing options, his Honour concluded that only a term of full-time imprisonment was appropriate. A non-custodial sentence would not reflect the serious criminality involved. In arriving at the sentence, the court took into account mitigating factors including the offender's age, delay in prosecution, any extra-curial punishment suffered, and any matters likely to cause additional hardship during custody.
Orders Made
- Convicted of attempting to pervert the course of justice, contrary to s 43(1) of the Crimes Act 1914 (Cth).
- Sentenced to full-time custodial imprisonment of 3 years and 4 months, commencing 11 May 2020 and expiring 10 September 2023.
- Non-parole period of 1 year and 8 months fixed under s 19AB of the Crimes Act 1914 (Cth), commencing 11 May 2020 and expiring 10 January 2022.
- Earliest release date: 10 January 2022.
Key Takeaways
- Where a jury convicts on a multi-particular indictment without returning a special verdict, the sentencing court must make its own findings of fact based on the evidence, applying the criminal standard to any facts adverse to the offender. The absence of a special verdict request does not automatically limit the court to the least serious particular.
- Chiro v The Queen (2017) 260 CLR 425 was engaged by the defence to argue for sentencing on the least serious factual basis, but the judgment illustrates that the court retains the function of independently finding the facts relevant to sentence from the evidence adduced at trial.
- Attempting to pervert the course of justice by coaching a witness to give systematically false evidence across multiple aspects of contested Federal Court proceedings was assessed as well above mid-range, if not at the high end, of objective seriousness for a s 43(1) offence.
- The District Court noted that no comparable precedent involved the same combination of deliberate, persistent, and financially motivated conduct directed solely at misleading a superior court over an extended period.
- Mitigating factors such as age, prosecutorial delay, extra-curial punishment, and likely hardship in custody are relevant considerations under the Crimes Act 1914 (Cth) sentencing framework, even where the objective gravity of the offence is high.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), ss 16A, 16E, 17A, 19AB, 43
- Crimes Act 1900 (NSW), s 66EA
- Income Tax Assessment Act 1997 (Cth), s 6
Cases
- Chiro v The Queen (2017) 260 CLR 425
- The Queen v Olbrich [1999] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Cheung v The Queen (2001) 209 CLR 1
- Einfeld v R [2010] NSWCCA 87
- R v Achurch [2011] NSWCCA 186
- R v Elomar [2018] NSWCCA 224
- AB v R [2014] NSWCCA 31
- Giourtalis v R [2013] NSWCCA 216
- Kenny v R [2010] NSWCCA 6
- R v Isaacs (1997) 41 NSWLR 374
- R v Todd [1982] 2 NSWLR 517
- R v Gregory (1996) 86 A Crim R 521
- R v Wall [2002] NSWCCA 42
- DPP v Page & Ors [2006] VSCA 224
- R v El Rashid (Unreported, NSWCCA, 7 April 1995)