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Court of Criminal Appeal 3 March 2017

Afiouny v R

[2017] NSWCCA 23

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL CAUSING LOSS TO COMMONWEALTH WHETHER TOTAL NON PAROLE PERIOD EXCESSIVE WHETHER ADEQUATE REASONS FOR NON

Citation: Afiouny v R [2017] NSWCCA 23
Court: Court of Criminal Appeal, New South Wales
Date: 3 March 2017
Judge(s): Hoeben CJ at CL; Latham J; Price J

Background

The appellant had earlier been re-sentenced by the Court of Criminal Appeal for two counts of bribing a Commonwealth customs official. Those offences related to seven bribes totalling over $352,000 paid to facilitate the importation of tobacco into Australia, potentially avoiding around $25 to $27 million in customs duty. The Court of Criminal Appeal imposed partially cumulative sentences with a single non-parole period of 3 years and 6 months commencing 23 January 2014.

Subsequently, in June 2015, the appellant pleaded guilty in the District Court to dishonestly causing loss to the Commonwealth under s 135.1(5) of the Criminal Code. This charge arose from his advisory role in smuggling five shipping containers of tobacco into Australia between April and June 2013, two of which were dry runs. The total revenue at risk across the genuine importations was approximately $17.7 million.

The District Court imposed a sentence of 20 months' imprisonment, with a single non-parole period structured to run alongside and integrate with the existing bribery sentences. The appellant challenged the non-parole period on three grounds.

  • Whether the total non-parole period was erroneously fixed in a way that left an insufficient parole period, contrary to principles applicable to Commonwealth sentences.
  • Whether the sentencing judge failed to give adequate reasons for the non-parole period imposed.
  • Whether the sentence was manifestly excessive.

Decision

The Court of Criminal Appeal, in reasons delivered by Hoeben CJ at CL (with Latham J and Price J agreeing), granted leave to appeal but dismissed the appeal on all three grounds.

On the first ground, the Court rejected the proposition that a parole period of insufficient length automatically constitutes error. Citing Power v The Queen and Bugmy v The Queen, the Court affirmed that a non-parole period reflects the minimum term a sentencing judge considers detention is required by justice. No freestanding principle requires any particular minimum duration of parole period.

On the second ground, the Court found that the sentencing judge's reasoning, read as a whole, disclosed an adequate basis for the non-parole period imposed. No error in the giving of reasons was established.

Addressing the third ground, the Court found the sentence was not manifestly excessive having regard to the seriousness of the offending, the applicant's prior smuggling history, and the substantial discount already applied for the early guilty plea and cooperation with authorities.

The Court also noted that even if error had been established, it would not have intervened in favour of the appellant. Because any resentencing would require full exercise of the discretion afresh, including reconsideration of both the head sentence and the non-parole period in light of the existing bribery sentences, the Court indicated it would have imposed a longer head sentence and non-parole period than the District Court did. Intervention would therefore not have benefited the appellant.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a non-parole period represents the minimum term a sentencing judge considers justice requires the offender to serve, and its length is not governed by any requirement to preserve a minimum parole period of a particular duration.
  • Under the principles in Power v The Queen and Bugmy v The Queen, the distinction between a parole period and a non-parole period is that release on parole is available in the former but not the latter; this does not make a short parole period an error of law in itself.
  • Where an error in the non-parole period is established, Kentwell v The Queen and Lehn v R require full resentencing rather than mere adjustment of the non-parole period, meaning both the head sentence and the non-parole period must be reconsidered afresh.
  • In dismissing the appeal, the Court observed that resentencing would have produced a less favourable outcome for the appellant, reinforcing that the absence of benefit from intervention can be a reason to decline to exercise the appellate discretion even where error is found.
  • Sentences for Commonwealth revenue offences involving sophisticated smuggling schemes attract significant weight given to general and specific deterrence, particularly where the scheme involved false documentation, coded communications, and losses to the Commonwealth running into tens of millions of dollars.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A(1) and (2), 19AD(3)(b)
- Criminal Code (Cth), ss 135.1(5) (dishonestly causing loss to the Commonwealth), 141.1(1) (bribery of a Commonwealth public official)

Cases:
- Commonwealth Director of Public Prosecutions v Afiouny [2014] NSWCCA 176
- Power v The Queen [1974] HCA 26; 131 CLR 623
- Bugmy v The Queen [1990] HCA 18; 169 CLR 525
- Deakin v R [1984] HCA 31; 58 ALJR 367
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Lehn v R [2016] NSWCCA 255