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Court of Criminal Appeal 14 February 2022

R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R

[2022] NSWCCA 24

Fraud & dishonestyPublic order & justice offences

Citation: R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24
Court: NSW Court of Criminal Appeal
Date: 14 February 2022
Judge(s): Fullerton J (primary), Adamson J, Hamill J

Background

Two offenders, referred to here as Hausman and Rostankovski, pleaded guilty to offences arising from conduct connected to the Plutus tax fraud conspiracy, a large-scale scheme investigated by the Australian Federal Police. Neither was charged as a co-conspirator in the fraud itself. Their offending centred on a blackmail scheme targeting some of the principal conspirators, and the subsequent laundering of the proceeds.

Both offenders were convicted of blackmail under the Crimes Act 1900 (NSW) and money laundering under the Criminal Code (Cth). Rostankovski faced an additional Commonwealth offence of aiding and abetting one of the principal conspirators to commit a tax fraud. The District Court sentenced Rostankovski to 10 years and 5 months imprisonment (non-parole period of 7 years and 2 months) and Hausman to 8 years (non-parole period of 6 years). Hausman received a discount for both a guilty plea and assistance provided to investigating authorities.

The Crown appealed both sentences as manifestly inadequate. Each offender cross-appealed against the severity of his sentence.

  • Whether the sentencing judge made an excessive allowance for totality, rendering the sentences manifestly inadequate
  • How to reconcile cumulation and concurrency principles with the totality principle where an offender is sentenced for both State and Commonwealth offences
  • The operation of s 19(3) of the Crimes Act 1914 (Cth) in structuring sentencing orders involving mixed State and Commonwealth offences
  • Whether the sentencing judge erred in dealing with Rostankovski's prior good character
  • Whether a disparity between Rostankovski's and Hausman's sentences for the blackmail offence amounted to a sentencing error warranting intervention
  • Whether the "but for" sentences (the sentences that would have been imposed absent Hausman's assistance to authorities) required correction under s 16AC of the Crimes Act 1914 (Cth) and s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

The Court dismissed the Crown's appeal against Rostankovski's sentence in full. Although an error was identified in how the sentencing judge dealt with Rostankovski's prior good character, the Court found no lesser sentence was warranted in law, and intervention was not justified.

The Crown's appeal against Hausman's sentence was also largely dismissed. The Court upheld the overall sentence but allowed the appeal in one limited respect: the "but for" figures required under s 16AC of the Crimes Act 1914 (Cth) and s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were corrected. These figures represent the sentences that would have been imposed had Hausman not assisted authorities. Correcting them was necessary to comply with the statutory obligation to specify those benchmarks accurately, but the correction did not alter the sentences actually imposed.

Both cross-appeals against the severity of the sentences were dismissed. The Court granted leave to appeal in each case but found no error in principle or outcome that warranted resentencing.

On the question of sentencing structure, the Court acknowledged the genuine complexity of imposing sentences for both State and Commonwealth offences simultaneously. Because no aggregate sentence spanning both regimes is available, separate sentences and non-parole periods must be fixed, with starting dates determined under s 19 of the Crimes Act 1914 (Cth). The Court confirmed that totality principles remain operative across this process, but rejected the argument that the sentencing judge had applied them incorrectly.

Orders Made

Crown appeal against Rostankovski:
- Dismissed.

Crown appeal against Hausman:
- Dismissed, except for a limited variation to correct the "but for" sentences required by statute:
- But for Hausman's undertaking to assist in the future (yielding a 20% discount), the money laundering offence would have attracted 12 years imprisonment with a non-parole period of 7 years.
- But for Hausman's past and future assistance (a combined 25% discount), the blackmail offence would have attracted 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months.
- All other aspects of the sentence imposed by Abadee DCJ confirmed.

Hausman's cross-appeal (severity):
- Leave to appeal granted; appeal dismissed.

Rostankovski's cross-appeal (severity):
- Leave to appeal granted; appeal dismissed.

Key Takeaways

  • Sentencing for mixed State and Commonwealth offences presents structural complexity: no single aggregate sentence can span both regimes, requiring separate sentences and non-parole periods with fixed commencement dates governed by s 19 of the Crimes Act 1914 (Cth). Totality principles continue to apply across this structure.
  • The Court of Criminal Appeal confirmed that an identified error in a sentencing judge's reasoning does not automatically lead to resentencing. Where no lesser sentence is warranted in law, the Court will decline to intervene even if an error is established.
  • A disparity between co-offenders' sentences does not of itself constitute a sentencing error. The Crown conceded a disparity existed between Rostankovski's and Hausman's sentences for the blackmail offence, but the Court found this did not justify intervention on the cross-appeal.
  • Under s 16AC of the Crimes Act 1914 (Cth) and s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), sentencing courts must specify the sentences that would have been imposed but for an offender's assistance to authorities. An error in stating those figures can be corrected on appeal without disturbing the actual sentences imposed.
  • In dismissing both cross-appeals, the Court reinforced that leave to appeal is distinct from success on appeal: the seriousness of the offending here supported the sentences actually imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 249K(2) (blackmail)
- Crimes Act 1914 (Cth), ss 16AC, 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Criminal Code (Cth), ss 135.1(3), 400.3(1), 11.2(1), 11.2A(1)
- Criminal Appeal Act 1912 (NSW)
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measure) Act 2020 (Cth)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Cahyadi v R (2007) 168 A Crim R 41
- Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556
- Director of Public Prosecutions (NSW) v Abdulrahman [2021] NSWCCA 114
- Director of Public Prosecutions (Vic) v Swingler (2017) 269 A Crim R 526
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Huang v R (2018) 96 NSWLR 743
- Johnson v The Queen [2004] HCA 15
- Kentwell v The Queen (2014) 252 CLR 601
- Lowndes v The Queen (1999) 195 CLR 665
- Blake v R [2021] NSWCCA 258
- CMB v Attorney-General (NSW) (2015) 256 CLR 346
- Dickson v R [2016] NSWCCA 105