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Court of Criminal Appeal 4 September 2014

Commonwealth Director of Public Prosecutions v Afiouny

[2014] NSWCCA 176

Fraud & dishonesty
CRIMINAL LAW APPEAL SENTENCE APPEAL BY TWO OFFENCES CRIMINAL CODE (CTH)

Citation: Commonwealth Director of Public Prosecutions v Afiouny [2014] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 4 September 2014
Judges: Price J, Harrison J, Garling J (all agreeing)

Background

The respondent was convicted of two counts of bribing a Commonwealth public official, contrary to s 141.1(1) of the Criminal Code (Cth). Between July and August 2011, he paid seven bribes totalling approximately $352,190 and US$20,000 to a Customs officer to facilitate the clearance of shipping containers carrying tobacco through Port Botany. The scheme sought to evade between $25 million and $27 million in customs duties and taxes.

The respondent had been found in 2007 civil penalty proceedings to have engaged in similar tobacco smuggling conduct, for which he was fined $1.75 million. The Customs officer he bribed in 2011 was, in fact, operating under a controlled operations authority and lawfully recording all communications. The respondent was arrested on 1 September 2011.

The respondent pleaded guilty. The District Court sentenced him to two wholly concurrent head sentences of 3 years and 3 months imprisonment, with a single non-parole period of 1 year and 8 months. The Commonwealth Director of Public Prosecutions appealed on the basis that the sentences were manifestly inadequate.

  • Whether the sentencing judge erred by making the two head sentences wholly concurrent, given the material differences between the two offences
  • Whether the single non-parole period of 1 year and 8 months was of a severity appropriate to the circumstances, as required by s 16A(1) of the Crimes Act 1914 (Cth)
  • Whether a combined discount of 60% for guilty plea, remorse, and assistance to authorities was excessive
  • Whether the overall sentences were manifestly inadequate

Decision

The Court of Criminal Appeal allowed the appeal on all four grounds, finding that the sentences imposed at first instance were manifestly inadequate and fell outside the range of appropriate sentences.

On the question of concurrency, the Court found it was an error to impose wholly concurrent sentences. The two offences were materially different: the first charge related to five importations for the respondent's own financial benefit, while the second arose from a single importation for a friend's benefit. The principle of totality requires a sentencing court to ensure the total sentence reflects the overall criminality of separate offences, and wholly concurrent sentences failed to do so here.

The Court held that the 60% combined discount was excessive and fell outside the sentencing judge's discretion. While the respondent's assistance to authorities was described as being of a very high order, including participation in a controlled operation at personal risk, the Court found the combined discount for guilty plea and assistance ought not to have exceeded 50%. The appropriate discount was assessed at 50%.

On resentencing, the Court took a notional starting point of 8 years for each offence (as the sentencing judge had), applied a 50% discount, and arrived at head sentences of 4 years for each count. To reflect the distinct criminality of each offence without producing a crushing total, the Court accumulated the sentences by 12 months, resulting in a single non-parole period of 3 years and 6 months.

Orders Made

  • Appeal allowed
  • Sentences imposed by Finnane DCJ on 23 January 2014 quashed
  • Count 1: four years imprisonment, commencing 23 January 2014, expiring 22 January 2018
  • Count 2: four years imprisonment, commencing 23 January 2015, expiring 22 January 2019
  • Single non-parole period for both offences fixed at 3 years and 6 months, commencing 23 January 2014, expiring 22 July 2017

Key Takeaways

  • A combined discount of 60% for guilty plea and assistance to authorities was held to be excessive even where the assistance was of a very high order; the Court of Criminal Appeal confirmed the combined discount should not have exceeded 50% in the circumstances.
  • Wholly concurrent sentences will not always satisfy the totality principle where two offences are materially distinct in nature and in the offender's degree of involvement or financial interest.
  • Under s 16A(1) of the Crimes Act 1914 (Cth), a non-parole period must reflect a severity appropriate to all the circumstances of the offences; a single non-parole period of 1 year and 8 months for serious Commonwealth bribery involving millions of dollars in evaded duties was found to fall below that standard.
  • The Court confirmed that previous civil penalty findings for similar conduct, while not criminal convictions, can nonetheless be taken into account as part of an offender's background and history at sentencing.
  • In resentencing, partial accumulation of concurrent sentences (here, 12 months) is an available mechanism to reflect the totality of criminal conduct across multiple distinct offences without producing a disproportionately severe result.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 141.1(1)
- Crimes Act 1914 (Cth), s 16A(1); Part 1B; s 19AB
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Mill v R [1988] HCA 70; (1988) 166 CLR 59
- R v Gallagher (1991) 23 NSWLR 221
- R v Knight [1981] 26 SASR 573
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- R v Sukkar [2006] NSWCCA 92
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249