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Court of Criminal Appeal 2 July 2012

Banovec v R

[2012] NSWCCA 137

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW CONVICTION APPEAL APPLICATION TO LEAD ADDITIONAL EVIDENCE RELEVANT PRINCIPLES SENTENCE APPEAL APPELLANT NON

Citation: Banovec v R [2012] NSWCCA 137
Court: Court of Criminal Appeal, NSW
Date: 2 July 2012
Judge(s): Basten JA, Hoeben JA, McCallum J

Background

The appellant, an Austrian citizen and permanent resident of Australia, was convicted after trial of five counts of fraudulent omission to account and one count of perjury. He subsequently entered pleas of guilty to a further perjury count and a count of destroying or damaging a book. The District Court sentenced him on all matters in April 2010, with sentences totalling seven years.

An application for leave to appeal against both conviction and sentence was filed approximately 19 months after sentencing. The conviction grounds centred on alleged failures by the Crown to lead relevant evidence, the refusal to separate the counts for trial, and a challenge to a jury direction. The sentence appeal raised a distinct issue: the sentencing judge had not been informed of the harsher conditions the appellant, as a non-citizen, would likely face in custody due to the interaction between his sentences and immigration department policy.

The Department of Immigration and Citizenship (DIAC) had the power to cancel the appellant's visa under the Migration Act 1958 (Cth) because his sentences exceeded the relevant thresholds. This meant the Department of Corrective Services would not place him in minimum-security accommodation until DIAC resolved his deportation status, potentially requiring him to serve the bulk of his sentence under maximum-security conditions despite holding a C1 classification.

  • Whether the Crown failed in its obligations by not leading relevant and material evidence at trial
  • Whether the trial judge correctly refused an application to have the counts tried separately
  • Whether the trial judge's direction to the jury on receipt of funds for personal use was adequate
  • Whether the Court of Criminal Appeal should admit additional evidence on the sentence appeal concerning the immigration and custodial conditions applicable to non-citizen prisoners
  • Whether hardship arising from those conditions warranted re-opening the sentence, even where no error by the sentencing judge was established

Decision

Conviction appeal: The Court granted leave to appeal on grounds raising mixed questions of fact and law but dismissed the conviction appeal in full. On the Crown's obligations to lead evidence, the court examined whether omitted material was sufficiently relevant and material to have affected the outcome. On the question of separate trials, the court applied settled principles governing joinder and found no error in the trial judge's refusal to order separation. The direction concerning receipt of funds was also found to be sound. Leave was refused on two of the four conviction grounds.

Admissibility of additional sentence evidence: The Court accepted the additional evidence concerning DIAC policy and Corrective Services practice, noting that its source (advice from Legal Aid NSW's Prisoners Legal Service) spoke to its accuracy, and that the Crown did not dispute its accuracy. However, the Court observed that this information was readily available from the date of conviction and could have been placed before the sentencing judge at the time. Its non-presentation meant no error on the part of the sentencing judge was demonstrated.

Sentence appeal: The Court acknowledged the long-established principle that particular hardship in custody, including conditions significantly harsher than those experienced by the general prison population, is a proper consideration for a sentencing court. However, the Court found that re-opening the sentence was not warranted here. Whether the appellant's visa would ultimately be cancelled remained speculative, and there was also uncertainty between the accounts given by Legal Aid NSW and the Department of Corrective Services about when progression to lower-security classification would be considered. The court declined to conduct a predictive exercise based on uncertain evidence, and dismissed the sentence appeal.

Orders Made

Conviction Appeal:
- Leave to appeal granted in respect of Grounds 1 and 3; appeal dismissed
- Leave to appeal refused in respect of Grounds 2 and 4

Sentence Appeal:
- Leave to appeal granted; appeal dismissed

Key Takeaways

  • Hardship arising from prison conditions, including restrictions on minimum-security classification linked to immigration proceedings, is a recognised sentencing consideration in NSW, but it does not automatically warrant a reduction or re-opening of sentence.
  • Where evidence relevant to sentencing was available at the time of the original proceedings but was not placed before the sentencing judge, its omission does not establish error by that judge, and the Court of Criminal Appeal will be slow to intervene on that basis alone.
  • In dismissing the sentence appeal, the Court applied the principle from R v Mostyn that a court will not re-sentence where the basis for doing so requires a speculative or unreliable predictive exercise about future custodial arrangements.
  • The Court of Criminal Appeal confirmed that hardship in custody, whether arising from protective custody, disability, lack of English proficiency, or immigration status, has long been a legitimate factor in NSW sentencing, drawing on R v Cartwright and AB v The Queen.
  • An applicant seeking to adduce additional evidence on appeal bears the consequences of that evidence having been obtainable at first instance; the availability of the evidence at the time of sentencing was central to the court's refusal to re-open the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178A, 327(1)
- Australian Securities and Investments Commission Act 2001 (Cth), s 67(1)
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 43
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 7
- Criminal Procedure Act 1986 (NSW), s 21(2)
- Migration Act 1958 (Cth), s 501

Cases:
- R v Cartwright (1989) 17 NSWLR 243
- AB v The Queen [1999] HCA 46; 198 CLR 111
- R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
- Bekink v R [1999] WASCA 160; 107 A Crim R 415
- Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1
- Gallagher v R [1986] HCA 26; 160 CLR 392
- House v The King [1936] HCA 40; 55 CLR 499
- R v Assim [1966] 2 QB 249
- De Jesus v R [1986] HCA 65; 61 ALJR 1