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Court of Criminal Appeal 17 October 2022

Ensor v R (Cth)

[2022] NSWCCA 278

Fraud & dishonesty
CRIME SENTENCE MULTIPLE COUNTS MULTIPLE S 16A SCHEDULES GST FRAUD NO COMPELLING REASON ADVANCED FOR DELAY

Citation: Ensor v R (Cth) [2022] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 17 October 2022
Judges: Meagher JA, Button J, Wilson J

Background

The applicant was sentenced in the District Court on 25 January 2019 after pleading guilty on the first day of trial to eight counts of obtaining a financial advantage from the Commonwealth by deception, contrary to s 134.2(1) of the Criminal Code (Cth). The offences involved lodging 77 false Business Activity Statements with the ATO on behalf of eight proprietary companies between 2008 and 2011, fraudulently claiming GST refunds. A further 12 related offences of attempting to commit the same type of fraud were taken into account on schedules under s 16BA of the Crimes Act 1914 (Cth).

The total financial loss to the Commonwealth was approximately $3.47 million, comprising fraudulent GST refunds of around $1.88 million that were paid out, plus unrecovered GST of approximately $1.58 million. The applicant used the fraudulently obtained funds to develop luxury beachfront apartments, purchase a marina, buy a catamaran, and meet other personal expenses.

The sentencing judge imposed an aggregate term of six years imprisonment with a non-parole period of four years. The applicant filed a notice seeking leave to appeal out of time on 1 May 2022, with the associated notice of appeal filed on 11 July 2022, well over three years after sentence was imposed.

  • Whether leave should be granted to file an application for leave to appeal out of time, given the substantial delay
  • Whether there was a compelling explanation for the delay in bringing the appeal
  • Whether the proposed grounds of appeal had sufficient merit to justify granting leave, specifically:
  • Whether the sentencing judge erred in relation to the characterisation of the offending or the structure of the sentence
  • Whether new evidence warranted a different sentencing outcome
  • Whether the sentence was manifestly excessive

Decision

The Court refused leave to appeal out of time. Wilson J (with whom Meagher JA and Button J agreed) identified two relevant considerations under the applicable rules: the merits of the proposed appeal, and the explanation for the delay. Neither factor supported a grant of leave.

On delay, the applicant explained that he had originally filed a notice of intention to seek leave to appeal but allowed it to lapse. He said he had recently decided to pursue the appeal because of his experiences in custody during the pandemic and concerns about his health. The Court found this explanation unpersuasive and not a compelling reason for a delay of more than three years.

On the merits, the Court assessed each proposed ground and found none had reasonable prospects of success. The manifest excess ground was argued by reference to the other proposed grounds, which were themselves rejected. Wilson J observed that the sentence was in fact modest given the sustained, planned, and systematic nature of the fraud and the substantial loss caused to the Commonwealth. The structure of the aggregate sentence was described as conventional for federal offending.

The Court also noted that any matters that had been the subject of agreement between the parties, or that were not put to the sentencing judge in the way now argued on appeal, could not be relied upon to ground an appeal against sentence.

Orders Made

  • Leave refused to file out of time an application for leave to appeal from the sentence imposed on 25 January 2019.

Key Takeaways

  • Refusing leave to appeal out of time requires consideration of both the merits of the proposed appeal and the explanation for the delay, and neither factor need favour the applicant for leave to be refused.
  • A decision to revive a lapsed appeal, motivated by experiences in custody during the pandemic and personal health concerns, does not constitute a compelling explanation for a delay exceeding three years.
  • No error was established in the sentencing approach: the District Court's characterisation of the offending as serious, planned, and systematic, and its use of an aggregate sentence with a non-parole period, were each upheld as correct.
  • Under the principle in House v The King, manifest excess requires the applicant to demonstrate that the sentence is unfair or unjust; a sentence of six years with a four-year non-parole period for a fraud causing over $3.4 million in loss to the Commonwealth was found to be modest rather than excessive.
  • Arguments not raised before the sentencing court, or matters that were the subject of agreement, cannot be raised for the first time as grounds of appeal against sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 134.2(1) and s 11.1(1)
- Crimes Act 1914 (Cth), s 16BA
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases:
- Brierley v R [2022] NSWCCA 26
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DPP (Cth) v Beattie (2017) 270 A Crim R 556
- House v The King (1936) 55 CLR 499
- Kahler v R (Cth) [2021] NSWCCA 40
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Putland v The Queen (2004) 218 CLR 174
- R v Delzotto [2022] NSWCCA 117