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Court of Criminal Appeal 26 April 2013

Natasha Youkhana v R

[2013] NSWCCA 85

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW EVIDENCE PARITY PRINCIPLES OFFENDER FOR A SIMILAR OFFENCE OFFENDER HAD BEEN CHARGED OFFENDER

Citation: Youkhana v R [2013] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 26 April 2013
Judges: Hoeben CJ at CL, Slattery J, Bellew J

Background

The applicant pleaded guilty to four offences arising from Operation Schoale, a joint taskforce investigation into a large-scale cocaine importation network. Her husband was one of the senior figures in that operation. Her offences included dealing with approximately $4.64 million in crime proceeds, perverting the course of justice, giving false evidence before the NSW Crime Commission, and structuring financial transactions to avoid reporting obligations.

On sentence before Judge Haesler SC in the District Court, most facts were agreed. However, one factual matter was disputed: whether the applicant had given a co-offender, Alessio Torrelli, a further $1 million in cash to conceal on her behalf. Torrelli was unavailable to give evidence, and the Crown sought to prove the disputed facts through Torrelli's out-of-court representations, relying on provisions of the Evidence Act 1995 that allow hearsay from unavailable persons in certain circumstances.

The applicant was sentenced to an overall non-parole period of three years commencing December 2011, with a balance of term of 18 months. She sought leave to appeal on grounds relating to the admissibility of Torrelli's representations, the correctness of the disputed factual findings, and parity with her sister, who had been sentenced for related offences.

  • Whether the sentencing judge erred in admitting Torrelli's out-of-court representations as evidence under s 65(2)(b) and s 65(2)(d) of the Evidence Act 1995
  • Whether the representations were made in circumstances that made fabrication unlikely or reliability likely
  • Whether the sentencing judge erred in concluding, on the basis of those representations, that the disputed fact of the $1 million payment was proved beyond reasonable doubt
  • Whether the applicant had a justifiable sense of grievance in light of the lesser sentence imposed on her sister for similar offending (the parity ground)

Decision

Admissibility of Torrelli's representations: The Court of Criminal Appeal found no error in the sentencing judge's decision to admit Torrelli's representations under s 65(2) of the Evidence Act. The judge had correctly assessed the circumstances in which those representations were made, being satisfied that they were unlikely to be fabricated and were likely reliable. The Court confirmed that the threshold requirements of s 65(2)(b) and s 65(2)(d) were met.

Proof of disputed facts beyond reasonable doubt: The Court found no error in the sentencing judge's conclusion that the $1 million payment was established beyond reasonable doubt. The representations, admitted as hearsay under s 65(2), were capable of supporting that finding when assessed alongside the other evidence before the court.

Parity with the co-offender: The applicant argued that her sentence was disproportionate compared with that imposed on her sister, Tanya Youkhana, who had pleaded guilty to overlapping offences. The Court rejected this ground. The sentencing judge had expressly considered the parity principle and the principle of totality. Critically, the applicant faced additional charges over and above those laid against her sister, she was responsible for involving her sister in the offending, and her overall criminality was substantially greater. Even on a comparison limited to their shared FTRA offence, the applicant's conduct involved a higher sum and greater culpability.

The appeal was dismissed on all grounds, though leave to appeal was formally granted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that hearsay representations of an unavailable co-offender may be admitted at a sentencing hearing under s 65(2)(b) and s 65(2)(d) of the Evidence Act 1995, provided the sentencing judge is satisfied that the circumstances of the representations make fabrication unlikely or reliability likely.
  • Where such representations are properly admitted, a sentencing court may rely upon them to find disputed facts proved beyond reasonable doubt, provided the overall evidence supports that standard.
  • A parity challenge requires the applicant to demonstrate a justifiable sense of grievance. Differences in the range and number of charges, the degree of involvement in the broader offending, and the relative culpability of co-offenders are all relevant to whether that threshold is reached.
  • In dismissing the parity ground, the Court emphasised that a co-offender charged with fewer and less serious offences is not a meaningful comparator for parity purposes where the overall criminality differs substantially.
  • Under the Evidence Act 1995, the preconditions in s 65(2) are directed to the reliability of the circumstances in which representations were made, not to whether the representations are ultimately accepted as true; that remains a question of weight for the tribunal of fact.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 65(2)(b), 65(2)(d)
- Crimes Act 1900 (NSW), ss 193B(2), 319
- New South Wales Crime Commission Act 1985, s 20(1)
- Financial Transaction Reports Act 1988 (Cth), s 31(1)
- Crimes Act 1914 (Cth)

Cases:
- Harris v R [2005] NSWCCA 432
- Hopley v R [2008] NSWCCA 105
- House v The King (1936) 55 CLR 499
- R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
- R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61
- R v Tanya Youkhana [2011] NSWDC 63
- R v Natasha Youkhana [2011] NSWDC 204