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Court of Criminal Appeal 6 October 2017

Voronov v Regina

[2017] NSWCCA 241

Fraud & dishonesty
CRIME APPEALS SENTENCE NON PAROLE PERIODS FEDERAL OFFENCES

Citation: Voronov v Regina [2017] NSWCCA 241
Court: NSW Court of Criminal Appeal
Date: 6 October 2017
Judge(s): Bathurst CJ, Hoeben CJ at CL, McCallum J (judgment delivered by McCallum J)

Background

The applicant was convicted by a jury of six federal tax fraud offences following a trial in the District Court. The offences involved failing to collect and remit GST, and failing to declare income and pay income tax over four financial years, with the fraud conducted through a clothing business operated jointly with the applicant's mother.

The applicant absconded before the jury returned its verdicts and was sentenced in his absence. He was ultimately arrested in March 2015, nearly four years after sentencing, and committed to serve his term. Both the applicant and his mother received a total effective sentence of six years and six months imprisonment, but the applicant received a non-parole period of five years compared with four years for his mother.

The applicant sought leave to appeal against the non-parole period only, arguing that the sentencing judge had applied an incorrect legal test when fixing it.

  • Whether the sentencing judge erroneously applied the State law "special circumstances" requirement (under the Crimes (Sentencing Procedure) Act 1999 (NSW)) when fixing the non-parole period for federal offences sentenced under the Crimes Act 1914 (Cth)
  • Whether, if error was established, the non-parole period should be reduced on resentence

Decision

The Court of Criminal Appeal granted leave to appeal and found that the sentencing judge had erred. When sentencing for federal offences under the Crimes Act 1914 (Cth), the non-parole period is governed by federal legislation, not by the State law requirement that an offender demonstrate "special circumstances" to justify a longer parole period. The sentencing judge's ex tempore reasons expressly referred to the absence of any finding of "special circumstances" as a reason for fixing a longer non-parole period, indicating that the State statutory framework had been applied in error.

The Court considered the appropriate non-parole period on resentence. Since sentencing, the applicant had compiled a strong custodial record: no adverse reports, participation in educational courses, and consistently favourable case notes. McCallum J observed that, ironically, the applicant's prospects of rehabilitation had become stronger than those demonstrated by his mother at sentencing, who had maintained her innocence and expressed no remorse. The absence of subjective material at the time of original sentencing, due to the applicant's own absence, had therefore ceased to be a meaningful point of distinction between the two co-offenders.

Applying the parity principle and taking into account the applicant's current subjective circumstances, the Court determined that the non-parole period should be reduced to four years, bringing it into line with the period fixed for his mother.

Orders Made

  • Leave to appeal granted
  • The non-parole period fixed on 27 June 2016 varied to four years, commencing 11 March 2015 and expiring 10 March 2019

Key Takeaways

  • The Court of Criminal Appeal confirmed that the State "special circumstances" test under the Crimes (Sentencing Procedure) Act 1999 (NSW) does not govern the fixing of non-parole periods for federal offences sentenced under the Crimes Act 1914 (Cth); federal law applies instead.
  • Where a sentencing judge's reasons expressly invoke a State statutory concept that has no application to the federal sentencing task, that constitutes an identifiable legal error warranting appellate intervention.
  • Under s 7 of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may vary a non-parole period without quashing the underlying sentences, where the appeal is confined to that discrete issue.
  • The parity principle requires that co-offenders of comparable culpability receive comparable sentences; a longer non-parole period for one co-offender demands proper justification beyond the mere absence of subjective material at the time of sentencing.
  • Post-sentence custodial conduct, including participation in rehabilitation programs and a clean disciplinary record, can be relevant on resentence before an appellate court and may affect the appropriate non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 19AB, 29D
- Criminal Code Act 1995 (Cth), ss 134.2(1), 135.1(5)
- Criminal Appeal Act 1912 (NSW), s 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)

Cases
- Elshani v R [2015] NSWCCA 254
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45