REGINA v KELVIN [2000] NSWCCA 190

REGINA v KELVIN [2000] NSWCCA 190

Full-time imprisonment was the only appropriate sentence for the applicant's repeated and persistent tax fraud, committed over a prolonged period by a professional accountant and registered tax agent in breach of trust and with limited cooperation. However, the 18-month period before release was appealably excessive when all matters were considered, including that this was a first offence, reparation had been made in full, there was positive good character evidence, the applicant would almost certainly lose his right to practise as an accountant, and the trial averted would have gone for many weeks rather than a couple of days.

Jurisdiction
Australia
Judgment Date
18 May 2000
Procedural Posture
Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal upheld; sentence varied.
Legal Topics
['tax Fraud' 'defrauding the Commonwealth' 'severity Appeal' 'general Deterrence' 'recognisance Release Order']
['criminal Law' 'taxation' 'sentencing'] ['tax Fraud' 'defrauding the Commonwealth' 'severity Appeal' 'general Deterrence' 'recognisance Release Order']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Severity of Sentence / Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentences imposed for six counts of defrauding the Commonwealth contrary to s29D of the Crimes Act 1914 (Cth) were excessive.' 'Whether full-time imprisonment was the appropriate sentencing disposition for repeated tax fraud by a professional accountant and registered tax agent.' 'What weight should be given to the guilty plea, reparation, prior good character, likely loss of professional practice rights, and limited cooperation.']

Ratio Decidendi

Full-time imprisonment was the only appropriate sentence for the applicant's repeated and persistent tax fraud, committed over a prolonged period by a professional accountant and registered tax agent in breach of trust and with limited cooperation. However, the 18-month period before release was appealably excessive when all matters were considered, including that this was a first offence, reparation had been made in full, there was positive good character evidence, the applicant would almost certainly lose his right to practise as an accountant, and the trial averted would have gone for many weeks rather than a couple of days.

Court Disposition

Leave to appeal granted; appeal upheld; sentence varied.

Orders

  • ['The concurrent sentences imposed were varied to sentences of 2 years imprisonment to date from 24 August 1999.' 'The applicant was ordered to be released on recognisance after giving securities following completion of 12 months of the sentence, on 23 August 2000.' 'The overall sentence would expire on 23 August...