Chang v R

1. [1]

   MACFARLAN JA: In 2015 the appellant, Song (Peter) Chang was tried in the District Court before a judge and jury on a charge that:

2. [2]

   After a 10 week trial, the jury returned a verdict of guilty. On 26 November 2015 the trial judge convicted the appellant of the offence of which the jury had found him guilty and imposed a sentence of 5 years imprisonment to date from 10 June 2015, with a non-parole period of 3 years commencing on the same date.

3. [3]

   The Crown case at trial was that the intended loss was to be caused to the Australian Taxation Office (“ATO”) by an accrual-basis GST reporting entity, JKC Developments Pty Ltd (“JKC”), claiming and receiving GST refunds to which it was not entitled on the basis of it receiving invoices from other entities within the same corporate group which were inflated or false. Those other entities were High Trade Constructions Pty Ltd (“HTC”) and Lobbyfit Design & Cons Pty Ltd (“Lobbyfit”). JKC later changed its name to Protons National Pty Ltd.

4. [4]

   The group of companies of which these companies were members was effectively owned and controlled by Mr Li Zhang, one of the alleged co-conspirators. Mr Simon Chee-To Chan, the other alleged co-conspirator, was an internal accountant employed by the group. The appellant was an employee of the group who, on the Crown case, had an intimate knowledge of, and involvement in, the preparation and lodgement of GST returns by JKC and invoicing within the group.

5. [5]

   JKC was a property developer. Prior to 2002 it engaged HTC to construct residential units on a property at Chippendale in Sydney. Other companies in the group, including Lobbyfit, worked on the project and issued invoices to JKC.

6. [6]

   The Crown’s case was that the conspiracy charge involved two schemes. The first related to the construction phase of the Chippendale project, during which HTC invoiced JKC for considerably more than the true value of the work undertaken by HTC. JKC lodged GST returns claiming credits or refunds in respect of the inflated invoices. As a result JKC, according to the sentencing judge’s finding on sentence, received $1,260,189 from the ATO in excess of its entitlement.

7. [7]

   The second scheme related to the period after the Chippendale project was certified to be ready for occupation, at a time when the sales of units were in the process of being completed. In this period, reliance upon further inflated invoices from HTC was alleged to have resulted in JKC receiving another $217,482 in GST refunds to which it was not entitled. As well, the Crown case was that in this period Lobbyfit issued false invoices which enabled JKC to obtain $1,517,319 in GST refunds to which it was not entitled.

8. [8]

   The Crown contended that when JKC was placed into administration, and then later into liquidation, the ATO loss became irreversible because JKC became unable to repay to the ATO the funds which it had wrongly obtained.

9. [9]

   The appellant appealed to this Court against his conviction and sought leave to appeal against his sentence in the event that his conviction stands.

THE GROUNDS OF APPEAL AGAINST CONVICTION

1. [10]

   The appellant relied upon the following Amended Grounds of Appeal:

LEGISLATIVE PROVISIONS

1. [11]

   The appellant was charged with an offence contrary to s 135.4(3) of the Criminal Code (Cth). That provision and other presently relevant parts of the Criminal Code are in the following terms:

THE COURSE OF THE TRIAL

1. [12]

   In the transcript extracts which follow, passages that refer to GST claims, refunds, credits or business activity statements and therefore have particular relevance to the grounds of appeal have been highlighted.

Prior to empanelment of the jury

1. [13]

   Before empanelment commenced, the Crown Prosecutor gave the jury panel the following outline of the Crown’s case:

2. [14]

   The trial judge then added:

The Crown opening

1. [15]

   The Crown opening to the jury included the following statements:

The evidence at the trial

1. [16]

   It is unnecessary for present purposes to say any more about the evidence adduced at the trial other than that it was extensive and, as would have been expected in light of the terms of the Crown opening, focussed upon the circumstances of the invoicing between companies in the group in relation to the Beaconsfield project, the preparation and submission of GST returns for JKC and on the appellant’s knowledge of and involvement in those activities. The evidence included that of the appellant who gave evidence in his own case.

Formulation of written directions to the jury

1. [17]

   Draft “Directions of Law” prepared by the trial judge described the second offence element of which the jury had to be satisfied beyond reasonable doubt as follows (the emphasis being in the original document):

2. [18]

   In response to questions from the trial judge asked in the course of discussions with counsel concerning this document (in the absence of the jury), the Crown Prosecutor identified the conspiracy agreement alleged as follows:

3. [19]

   The appellant’s counsel objected to the inclusion in the draft of the words “to do an act” under the heading “Second Element”, noting that those words do not appear in s 135.4(3) of the Criminal Code which created the subject offence (Transcript p 1757-9). After discussion with the judge, counsel said that he sensed that the trial judge was against him on the objection (p 1758.30) and indicated that, if words to this effect were to remain in the document, he would prefer the word “act” to remain rather than it being changed to “something”.

4. [20]

   In the course of that discussion the appellant’s counsel made the following statement which is not entirely clear, at least as it appears in the transcript, but seems to have been directed to the references to “invoices” in the second part of the “2nd Element”:

5. [21]

   This interpretation of what counsel said is reinforced by the request that he made shortly after (p 1759.30) that the judge refrain from giving an example under the “2nd Element” heading. The judge accepted that request and the example (relating to invoices) does not appear in the final form of the directions (see the “3rd Matter” referred to in [31] below).

6. [22]

   After a short adjournment, the trial judge made a further draft of the directions available to counsel. One matter raised by the appellant’s counsel in response was as follows:

7. [23]

   During the course of the appellant’s counsel’s address to the jury, the trial judge gave both counsel a further draft of the written directions and invited their comments. The appellant’s counsel took some objections to the form of the document but none that are presently relevant. It is likely that the document contained the material that appears in the final form under the heading “3rd Matter” (see [31] below).

8. [24]

   Further discussion about the draft directions occurred later, with one presently irrelevant change being agreed between counsel (Transcript p 1926). Defence counsel did not take any other objection.

The Crown’s closing address

1. [25]

   At the commencement of his closing address, the Crown Prosecutor referred a number of times to the need for the Crown to prove beyond reasonable doubt that the appellant and at least one other conspirator had the dishonest intention of causing a loss to the ATO. He continued:

2. [26]

   After a luncheon adjournment, the Crown Prosecutor continued:

3. [27]

   Later, the Crown Prosecutor said:

4. [28]

   Later again the Crown Prosecutor said:

Defence counsel’s address

1. [29]

   In the course of his address, defence counsel posed the question of why the alleged conspirators would have intended that the group companies go into liquidation. He contended that there would have been no sense in constructing the home units if it was intended all along that the group companies go into liquidation (Transcript pp 1839-40).

The written directions to the jury

1. [30]

   The written directions that the trial judge gave to the jury included an identification of the matters that constituted the “legal ingredients” that the Crown was required to prove beyond reasonable doubt.

2. [31]

   Having referred to the need for the Crown to prove that the appellant made an agreement with Mr Zhang and Mr Chan, and did so intentionally, the directions continued:

3. [32]

   Other directions in the document included the following:

The Summing-Up

1. [33]

   With reference to the “3rd Matter” identified in the written directions, the trial judge said:

2. [34]

   In referring to the “7th Matter” listed in the document, the trial judge said:

3. [35]

   The trial judge again referred to the relevant agreement as one to make false GST claims at p 38 of the summing-up.

4. [36]

   In turning to “general categories of facts for the Crown to prove”, the trial judge said:

5. [37]

   In the course of summarising the Crown’s submissions his Honour said:

6. [38]

   In referring to the appellant’s counsel’s submissions, the trial judge said that a number of questions had been posed, as follows:

7. [39]

   At the conclusion of the summing-up, both counsel raised limited points with the trial judge, none being of present relevance. As a result, his Honour gave some further directions to the jury.

GROUND 1: WHETHER THE CROWN SUBMISSIONS AND TRIAL DIRECTIONS LEFT THE CONSPIRACY UNDEFINED AND INCLUDED ELEMENTS WHICH WERE INCORRECT, ELIDED OR UNCLEAR

1. [40]

   The essence of the appellant’s submissions in relation to this ground of appeal is encapsulated in the following paragraphs of his written submissions:

2. [41]

   I accept that neither the Crown’s submissions nor the trial judge’s written directions were as clear as they should have been. At times the distinction between the terms of the agreement the subject of the conspiracy, the means by which the object of the conspiracy was intended to be achieved and overt acts done pursuant to the agreement was not maintained. Nevertheless, I do not consider that the jury would have been under any misapprehension as to the conclusions at which it had to arrive, beyond reasonable doubt, if it was to convict the appellant.

3. [42]

   The written direction under the heading “3rd Matter” (see [31] above) exemplifies the lack of clarity. This direction stated that the Crown had to prove that the conspiracy agreement was “to do something” with the requisite dishonest intention. The appellant’s counsel objected at trial to the inclusion of these words (see [19] above) and his counsel on appeal (who did not appear at the trial) initially submitted that their inclusion amounted to a misdirection because they did not reflect the language of the offence provision, s 135.4(3), there being no words to that effect in that provision.

4. [43]

   In carefully reasoned written submissions in response, the Crown contended otherwise, submitting that sense could only be made of the provision if such words were notionally read into it. It pointed out that in any event their inclusion in the direction did no more than erect an additional hurdle for the Crown to surmount and that their inclusion was therefore favourable to the appellant. However, ultimately the appellant did not press his complaint about the inclusion of those words in the direction, with the result that it is appropriate for this Court to assume that they were properly included and not to express a view as to the merits of the argument not now pressed.

5. [44]

   There remained the fact that the “something” to which the direction referred was undefined, at least to that point in the document. Nevertheless, in my view a fair reading of the document taken in the context of the trial as a whole indicates that the “something” that the parties had to be found to have agreed to do was “to make false GST claims” (with the requisite dishonest intention). This was the agreement referred to in the “7th Matter” by the Crown in its description of its case to the jury panel and in opening and closing (see the emphasised portions of [13] to [28] above).

6. [45]

   There was the potential for confusion when in closing address the Crown referred to its case as being that the conspiracy agreement included the preparation of invoices (see [26] above), this reference occurring in the course of the Crown’s discussion of the “3rd Matter” in the written directions. These submissions were reflected in the trial judge’s summing-up (see [37]).

7. [46]

   In my view these references resulted in the Crown assuming the additional burden of satisfying the jury beyond reasonable doubt that the parties to the agreement intended the agreement to be implemented by particular means, namely the preparation of inflated or false invoices. As opened, the agreement was simply one to make false GST claims with the requisite dishonest intention. On that basis, the jury would have had to be unanimous in concluding that that agreement was made but there would have been no requirement of unanimity about any further agreement that the parties may have made as to the means by which the object of the conspiracy was to be achieved. Allegations as to these means would have amounted only to particulars of the Crown case.

8. [47]

   This is demonstrated by the decision in R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98, a case to which the trial judge was not referred. In that case, Count 1 of the indictment alleged a conspiracy to defraud the victim “by dishonestly inducing [a trust] to invest money in a purported investment scheme proposed by” the alleged co-conspirators. The Crown’s case at trial suggested that there were different means by which the conspirators contemplated that their object might be achieved. In that context, Phillips and Buchanan JJA said:

9. [48]

   In adopting these observations, and in referring to other decisions in which Walsh was followed, this Court said in Pratten v R [2014] NSWCCA 117:

10. [49]

    The Crown’s reference in the present case to an intention to use inflated or false invoices (and the trial judge’s repetition of that reference in the summing-up) would not in my view have diverted the jury from the clear understanding that it must have had that, whatever else it had to find, it was necessary for it to conclude unanimously and beyond reasonable doubt that the appellant had agreed with Mr Zhang and Mr Chan to make false GST claims (with the intention of dishonestly causing a loss to the ATO). That was how the case was opened and what the nine weeks of trial was all about. There were repeated references throughout the trial to false GST claims and it was made abundantly clear to the jury that the relevance of the production of inflated or false invoices was that they would facilitate the making of false GST claims. That is, they were the means by which the object of the agreement was to be achieved.

11. [50]

    As noted above ([42]), the appellant’s counsel at trial took an objection to the inclusion in the directions under the heading “3rd Matter” of the words “to do something”. He did not however make the complaint which is now made in support of this ground of appeal. Counsel argued on appeal that the reference at trial to shattering the “fundamental intention to cause a loss in all the circumstances of the case into tiny little fractures” ([20] above) constituted such an objection but I do not accept that it did. Rather, it was made to support the successful point I have identified in [21] above. It did not make the points now made.

12. [51]

    In these circumstances, I consider that r 4 of the Criminal Appeal Rules 1952 is applicable and the appellant requires the Court’s leave to challenge on appeal directions that were not relevantly challenged at trial. To preclude “armchair” appeals based on alleged errors of law which are not reflective of injustice to an accused person when considered in the context of the trial as a whole, the Court needs to be cautious in granting leave. It will only do so where a substantial injustice has, or at least may have, arisen from the error (Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72]-[73]). For the reasons I have given, I do not consider that there was any relevant error of law in the directions but, even if there was, no substantial injustice flowed from it as the jury was well aware of the task before it.

13. [52]

    The absence of relevant objection by the appellant’s counsel at trial was a strong indication that in the context of a long trial in which competent counsel vigorously defended his client’s rights, the jury would not have been left with any relevant misunderstanding or doubt as to what it had to find. The following passage quoted in R v Aziz [1982] 2 NSWLR 322 at 331 from an earlier authority is in point:

14. [53]

    I return then to the terms of this ground of appeal. Contrary to the assertions in them, the conspiracy was not “undefined” and did not include elements which were “incorrect, elided or unclear”. As I have said, the conspiracy alleged was clear: it was to make false GST claims (with the requisite dishonest intention). The means by which that object was to be achieved was the production of inflated or false invoices. An intent to use those means was not one of the essential ingredients of the offence. However by reason of the Crown’s submissions about the written directions under the heading “3rd Matter” and the trial judge’s reference to them in the summing-up, the Crown assumed a burden that it would not otherwise have had of satisfying the jury, unanimously and beyond reasonable doubt, that the means by which the conspiracy was to be effected was the production of inflated or false invoices.

15. [54]

    The assumption of this additional burden worked in the appellant’s favour and therefore did not prejudice him. The position was similar to that which Phillips and Buchanan JJA described in Walsh at [61]:

16. [55]

    Contrary to the appellant’s submission (see [40] above), the written directions to the jury did not elide the conspiracy agreement with an overt act done in furtherance of the agreement. That the distinction between the two concepts was maintained is apparent from a comparison of the “3rd Matter” with the “7th Matter” (see [31] above).

17. [56]

    Moreover, again contrary to the appellant’s submissions, the “3rd Matter”, when read in the context of the addresses and summing-up, was not relevantly ambiguous. The reasons I have given above indicate why the jury’s task would have been clear to it.

18. [57]

    Further, contrary to the appellant’s submission, the Crown did not put that the jury had to be satisfied that the conspirators intended that group entities be liquidated. It was sufficient for the Crown to allege and prove that the conspirators had the dishonest intention of causing a loss. The means by which that loss was intended to come about were not ingredients of the offence. Whilst the Crown unnecessarily assumed the burden of satisfying the jury unanimously and beyond reasonable doubt that, in an immediate sense, the loss was to be brought about by JKC relying upon inflated or false invoices, it did not assume such an unnecessary burden in respect of any intended ultimate means by which that loss would be caused, for example, by the liquidation of group entities.

19. [58]

    Again contrary to the appellant’s submissions, the “3rd Matter” in the written directions was not “ambiguous as to who needed to have the intention of dishonestly causing the loss” (see [40] above). It is clear that when the “3rd Matter” is read in conjunction with the “6th Matter” (which is as follows) the jury was told that the appellant and at least one other party to the agreement had to be proved to have had the dishonest intention.

20. [59]

    The appellant further submitted that the “3rd Matter” in the written directions suggested that the jury did not need to be unanimous about the intended means to cause loss ([40] above). This submission must be rejected. The directions stated, in terms, that the jury had to be unanimous about the “something” the subject of the agreement. This was to make false GST claims and, because of the Crown submissions to which I have referred above (see [45]), it also included the intent that this be achieved by means of inflated or false invoices.

GROUND 2: WHETHER THE OFFENCE OF WHICH THE APPELLANT WAS CONVICTED IS AN OFFENCE UNKNOWN TO THE CRIMINAL LAW

1. [60]

   The appellant submitted in relation to this ground that the trial judge’s written directions to the jury under the heading “3rd Matter”, that the “subject of the agreement must be to do something” (with the requisite intention) did not reflect the terms of s 135.4(3) which created the offence of which the appellant was convicted. As noted above ([43]), in oral argument the appellant however withdrew that submission. As a result, this ground of appeal was impliedly abandoned.

GROUND 3: WHETHER THE WRITTEN DIRECTIONS AND SUMMING-UP WERE INTERNALLY INCONSISTENT AND CONFUSING

1. [61]

   This ground of appeal is sought to be supported by submissions to the same effect as those put in support of Ground 1. They should be rejected for the reasons I have given in relation to Ground 1.

GROUND 4: THE CHARGE ON THE INDICTMENT WAS LATENTLY DUPLICITIOUS OR ALTERNATIVELY THE VERDICT IS UNCERTAIN

1. [62]

   The concepts of duplicity and uncertainty of verdict referred to in this ground were described in Walsh by Phillips and Buchanan JJA (with whom Ormiston JA agreed) at [40] as follows:

2. [63]

   The appellant submitted that the charge in the indictment in the present case was “latently duplicitous because there are a number of agreements (or, a number of ‘somethings’) which could have formed the basis for conviction and therefore the indictment alleges a number of different offences” ([88]).

3. [64]

   In my view the present is a case to which the following observations in Walsh apply:

4. [65]

   As in Walsh, there was here, for the reasons that I have given in relation to Ground 1, only one conspiracy alleged. That was a conspiracy to have false GST claims lodged. References in the evidence, and in the trial judge’s instructions to the jury, to the preparation of invoices were to the means by which the dishonest object was to be, and was, achieved and to overt acts done in furtherance of the conspiracy.

5. [66]

   In the alternative in relation to this ground of appeal, the appellant submitted that the charge against him was “latently duplicitous by alleging 2 separate schemes, described as scheme 1 and scheme 2, which were described as 2 separate conspiracies” (paragraph [89]).

6. [67]

   However, the two schemes were not alleged by the Crown to constitute separate conspiracies but were referred to simply to distinguish chronologically between different stages of the Chippendale project.

7. [68]

   In relation to this ground, the appellant also relied upon the Crown’s submissions concerning the “3rd Matter” in the then proposed written directions (see [26] above). As I have concluded, however, insofar as those submissions referred to the preparation of invoices, they related to the means by which the conspirators intended to effect their dishonest agreement to have false GST claims lodged. The fact that the Crown, and then the judge, unnecessarily indicated that the jury needed to agree unanimously in relation to those means simply constituted a further hurdle that the Crown had to surmount to obtain a conviction. The jury remained well aware that it needed also to conclude, unanimously and beyond reasonable doubt, that the alleged conspirators agreed (with the requisite dishonest intention) to have false GST claims lodged.

8. [69]

   Additionally, because the points sought to be made by this ground of appeal were not taken at trial, the comments I have made above in relation to r 4 of the Criminal Appeal Rules (see [51] above) apply equally in relation to this ground of appeal.

GROUND 5: WHETHER THE VERDICT WAS UNREASONABLE BECAUSE THE CROWN CASE REQUIRED A CONCLUSION THAT THE APPELLANT INTENDED THAT LOSS WOULD BE CRYSTALLISED ON LIQUIDATION AND THERE WAS NO EVIDENCE TO SUPPORT SUCH A CONCLUSION

1. [70]

   The passage from the Crown’s closing address cited by the appellant in support of his assertion that the Crown case was that the conspiracy charged included an agreement of the conspirators ultimately to put relevant group companies into liquidation (see [27] above) does not assist the appellant. In that passage it was asserted that it was part of the Crown case to prove that JKC and HTC were placed into liquidation, thereby crystallising the ATO’s loss. It was, however, not contended that an intention to liquidate formed part of the conspiracy agreement. It was the fact, as the Crown told the jury (Transcript p 1776.20), that to obtain a conviction the Crown did not have to prove that loss was actually caused. However, that it was caused was a relevant factual matter which may have assisted the jury in finding that the conspiracy to lodge false GST claims was proved beyond reasonable doubt.

2. [71]

   The appellant further submitted that it was part of the Crown case that the conspiracy agreement included an agreement that JKC would never pay the HTC and Lobbyfit invoices.

3. [72]

   He relied on the following passage from the Crown closing address:

4. [73]

   This Crown submission did not have the effect that an agreement or intention that the inflated or false invoices not be paid was a constituent part of the conspiracy agreement it alleged. As I have said earlier ([49] above), the jury were clearly apprised of what that agreement was alleged to have been (that is to lodge false GST claims, with the requisite intention). What was to occur concerning invoices was a part of the means, and indeed the principal means, by which the object of the conspiracy agreement was to be achieved.

GROUND 6: WHETHER A COMBINATION OF THE ERRORS AND DEFECTS ALLEGED IN THE EARLIER GROUNDS OF APPEAL GAVE RISE TO A MISCARRIAGE OF JUSTICE

1. [74]

   For the reasons that I have given, leave under r 4 of the Criminal Rules to rely on Grounds 1 and 4 should be refused and the remaining grounds should be rejected. The submissions in support of the grounds of appeal do not identify any errors or defects which, either alone or in combination, gave rise to a miscarriage of justice.

The sentencing judgment

1. [75]

   Due to the limited nature of the proposed grounds of appeal to be relied upon if leave to appeal is granted, it is unnecessary to summarise or quote many aspects of the sentencing judgment. As will be apparent from those grounds (identified below), the principal issues that the appellant (as I will continue to call him notwithstanding that he requires leave to appeal) seeks to raise relate to his involvement in the conspiracy, the extent to which invoices were inflated and whether the appellant was aware of the amount of that inflation. The following references to the sentencing judgment accordingly focus on those matters.

2. [76]

   The sentencing judge found that JKC received GST refunds of $2.994 million beyond those to which it was entitled, comprising $1,260,189 in respect of invoices received from HTC during the first part of the Chippendale project, $217,482 in respect of invoices received from HTC during the second part of that project and $1,517,319 in respect of invoices received from Lobbyfit (ROS 2.3).

3. [77]

   The judge’s principal findings concerning the appellant’s role in and knowledge of the conspiracy were as follows:

4. [78]

   Later, his Honour recorded a finding that the appellant “had a complete knowledge, perhaps not the most complete knowledge but a comprehensive knowledge of the scheme and what it was designed to achieve” (ROS 11).

5. [79]

   His Honour continued:

6. [80]

   The sentencing judge rejected the appellant’s contention that the evidence did not establish his knowledge of the construction costs of the project and that there was no evidence of his knowledge of Lobbyfit’s invoices (ROS 14-16).

7. [81]

   Later, his Honour returned to the appellant’s role in the conspiracy. His Honour acknowledged that the appellant may well have regarded himself as having “limited choice in the matter if he was to retain his employment” but found that “it was the offender’s decision to be party to the conspiracy and to undertake the steps established by the evidence” (ROS 23). His Honour also acknowledged that the appellant was not the “master mind” and took that into account as a significant matter (ROS 24).

8. [82]

   In his concluding remarks, the sentencing judge said:

9. [83]

   As indicated earlier, his Honour sentenced the appellant to a term of 5 years imprisonment to date from 10 June 2015, with a 3 year non-parole period to date from the same date.

Ground 1: Whether the sentencing judge erred by failing to make findings as to the extent of dishonesty of the appellant and the appellant’s involvement in the carrying out of the conspiracy

1. [84]

   This ground of appeal was not advanced by the appellant in the unqualified way in which it is expressed. To have done so would have been untenable as the sentencing judge made extensive findings concerning the appellant’s involvement in the conspiracy. These appear in the extracts in [77] to [79] above.

2. [85]

   Instead, the appellant sought to support the ground on two more limited bases.

3. [86]

   First, the appellant contended that, for the full amount of the loss to be relevant to his sentencing, the sentencing judge would have to have found that the conspiracy agreement to which he was a party involved an agreement or intention that relevant group companies would ultimately be liquidated. However, as I pointed out earlier ([70]), it was not necessary for the appellant’s conviction that this be found and such a case was not put by the Crown. Moreover, it was not necessary for the amount of the loss to be relevant to the appellant’s sentencing that there had been any such agreement or intention. The sentencing judge did not suggest that there had been but, quite properly, took the amount of the loss in fact suffered into account in sentencing.

4. [87]

   Secondly, the appellant contended that it was “open to his Honour to find the appellant believed the tax would ultimately be paid, in respect of at least some of the invoices”, and that the loss to the ATO as a result of those invoices being relied upon for GST refund claims was simply a cashflow loss.

5. [88]

   This submission should not be accepted. The sentencing judge did not find that, when conspiring, the appellant knew or intended that a loss of the magnitude of $2.994 million would be suffered. Rather, he found, consistently with the jury verdict that, first, the appellant conspired with the co-conspirators to have false GST claims lodged, dishonestly intending to cause loss to the ATO, and secondly that the loss was in fact $2.994 million. A finding that the appellant believed that some or all of the invoices would in fact ultimately be paid would have been a finding in the appellant’s favour on sentence. As a result, the appellant would have had to satisfy his Honour of that proposition on the balance of probabilities (Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64], [66]). However the only evidence in support of the proposition was the appellant’s own evidence, and the sentencing judge, and by inference the jury, rejected him as a witness of truth, at least as to the extent of his involvement in the alleged conspiracy (ROS 16). In these circumstances, the appellant stood no realistic prospect of such a finding being made.

6. [89]

   I add that it was by no means clear to this Court that this second argument put to it in relation to this ground of appeal was put to the sentencing judge. The appellant was asked to demonstrate that it had been put (Transcript p 40) but did not do so.

Ground 2: Whether the sentencing judge erred by finding that invoices were “inflated” by a total $2.994 million

1. [90]

   As the Crown pointed out on appeal, the sentencing judge relied upon a concession at the sentencing hearing by counsel for the appellant that the loss occasioned by the conspiracy was $2.994 million (ROS 17). The concession was contained in paragraph [23] of the appellant’s Outline of Submissions on Sentencing.

2. [91]

   The appellant argued on appeal that the concession was implicitly conditional on the whole of the Crown case succeeding. However the Crown case was in fact fully successful, although the case was as I have described it and not as the appellant has contended on appeal that it was. I do not consider that any relevant condition attached to the concession, certainly not one that was not satisfied.

3. [92]

   The sentencing judge was in my view entitled to rely upon the concession. Accordingly, this ground of appeal must be rejected.

Ground 3: Whether the sentencing judge erred by finding that the appellant was aware that invoices were “inflated” by a total of $2.994 million

1. [93]

   The appellant submitted that this finding was made at two points in the sentencing judgment. The first was in the following passage:

2. [94]

   Neither of these statements amount to findings that the appellant was aware of the inflation or falsity of each and every invoice reflected in the total loss of $2.994 million. Rather, his Honour was finding that the appellant was aware in a general sense of the inflation or falsity of the invoices. In contrast, when his Honour dealt with the quantum of loss in his sentencing judgment, he did not include a finding that the appellant was aware of the precise amount of the loss. Accordingly no such conclusion was taken into account on sentence and this ground of appeal must accordingly be rejected.

Ground 4: If the Indictment is duplicitous the sentencing court is to sentence on the conspiracy that occurred first in time

1. [95]

   This ground of appeal does not arise as I have not found the charge in the indictment to be duplicitous.

Oral address

1. [96]

   In oral address, the appellant based his application for leave to appeal against his sentence on the following three points.

2. [97]

   First, he submitted that the sentencing judge had not made, but ought to have made, a finding as to what the scheme was to achieve, including whether it involved an attempt to liquidate group companies or whether it involved simply an intention to obtain a deferment of payment to the ATO. His second point was that there was no express finding that the conspiracy extended to the second scheme described by the Crown, that is, that involving Lobbyfit.

3. [98]

   I do not consider there to have been any deficiency in the sentencing judge’s findings. His Honour found that the conspiracy was to have JKC obtain GST refunds beyond its entitlement by relying upon inflated or false invoices. He expressly stated (ROS 2) that the conspiracy involved two schemes, one of which was the second scheme as described by the Crown. Consistently with what I have found was the way in which the Crown’s case was put to the jury, his Honour did not find on sentence, nor need to find, that the conspiracy agreement involved an intention to liquidate group companies.

4. [99]

   The third point was an elaboration of the point referred to in [87] above, namely, that it was open to the sentencing judge to find that the appellant and his co-conspirators intended only to obtain a temporary advantage. There is nothing that need be added to what I have already said in relation to that point.

ORDERS

1. [100]

   For the reasons that I have given, the following orders should be made:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Dismiss the appeals against conviction and sentence.

2. [101]

   JOHNSON J: I agree with Macfarlan JA.

3. [102]

   SCHMIDT J: I agree with Macfarlan JA.