Citation: Chalabian v R [2024] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 5 April 2024
Judge(s): Leeming JA, Walton J, Fagan J (Fagan J delivered the principal judgment; Leeming JA and Walton J agreed)
Background
The applicant was a solicitor of 23 years' standing who operated an incorporated law practice in Sydney. His co-offenders, Hausman and Rostankovski, had blackmailed the perpetrators of a large Commonwealth fraud, demanding $25 million in exchange for silence. The applicant arranged for the blackmail payments to be deposited into his firm's trust account and then transferred out at the co-offenders' direction. Between February and May 2017, $24.2 million passed through the account in this way, with approximately $880,000 diverted to the applicant's own benefit.
A jury found the applicant guilty of dealing with money in excess of $1 million that was proceeds of crime, knowing it to be such, contrary to s 400.3(1) of the Criminal Code (Cth). The sole issue at trial was whether the applicant actually believed the funds were proceeds of crime at the time of the dealings. The trial judge had also left two lesser alternative verdicts to the jury: one based on recklessness (s 400.3(2)) and one based on negligence (s 400.3(3)).
On 23 June 2022, Johnson J sentenced the applicant to 12 years' imprisonment with a non-parole period of 7 years and 6 months. The applicant sought leave to appeal against both conviction and sentence on two grounds.
Legal Issues
- Whether the trial judge's directions about considering alternative verdicts (under ss 400.3(2) and 400.3(3)) erroneously restricted the jury's freedom to organise its own reasoning and deliberation.
- Whether the sentences imposed on co-offenders Hausman and Rostankovski, and on a related offender Menon, gave rise to a justifiable sense of grievance under the parity principle.
Decision
Ground 1: Alternative verdict directions
Leave to raise Ground 1 was required because trial counsel had not sought a redirection at the time of the summing up. The Court refused leave, finding no error in the directions as given.
On a fair reading of the summing up, the trial judge had not directed the jury in any specific sequence for its reasoning and deliberation. Because the primary offence and the two alternatives differed only in the applicant's state of mind at the time of the dealings (belief, recklessness, or negligence), consideration of the principal charge necessarily drew the jury into considering the alternatives. The directions did not realistically preclude the jury from deliberating about those lesser possibilities.
Ground 3: Parity with co-offenders and a related offender
The Court granted leave to appeal against sentence on this ground but dismissed the appeal. The Court found that the applicant's sentence bore an appropriate relationship to the starting points used when sentencing Hausman and Rostankovski. The significantly lower sentences those co-offenders ultimately received for the common offence reflected, first, substantial guilty plea discounts (50% for Hausman, 20% for Rostankovski) and, second, an unorthodox further reduction employed by the sentencing judge to achieve an appropriate overall effective sentence when accumulating the proceeds offence upon the blackmail sentence. Neither of those factors was present for the applicant, making direct comparison inappropriate.
The comparison with Menon (a participant in the underlying Commonwealth fraud who was also convicted of conspiring to deal with proceeds of crime) likewise did not establish a justifiable sense of grievance. Menon's involvement with the $24.2 million was more limited than the applicant's, his conspiracy to launder was of wider scope and longer duration involving substantially overlapping conduct with a separate fraud offence, and his subjective case was stronger. The equivalent head sentences for the proceeds offences did not produce disparity once those differences were accounted for.
Orders Made
- Leave to appeal against conviction on Ground 1: refused.
- Leave to appeal against sentence on Ground 3: granted.
- Appeal against sentence: dismissed.
Key Takeaways
- Where co-offenders receive lower ultimate sentences due to guilty plea discounts and sentencing adjustments for totality, those reductions represent points of incomparability rather than evidence of disparity for parity principle purposes.
- The parity principle (which allows a co-offender to claim a justifiable sense of grievance when sentenced more harshly than another) does not operate by comparing final numerical outcomes in isolation; widely different sentencing circumstances can justifiably produce different results.
- A conviction ground that was not raised by way of objection or redirection request at trial requires leave to be argued on appeal, and that leave will be refused where no error in the directions is established.
- Where alternative statutory verdicts differ from the principal charge only in the defendant's mental state, directions that do not prescribe a rigid deliberation sequence will not ordinarily be found to have precluded the jury from considering those alternatives.
- In dismissing the sentence appeal, the Court confirmed that an unorthodox method of achieving appropriate totality across offences sentenced in the same proceedings can legitimately produce a result that, while producing a lower sentence for a co-offender, does not give rise to any justified grievance on the part of an offender sentenced without those considerations in play.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), ss 400.3(1), 400.3(2), 400.3(3)
- Crimes Act 1900 (NSW), s 249K(2)
- Supreme Court (Criminal Appeal) Rules 2021, r 4.15
Cases
- Kelly v R [2017] NSWCCA 256
- King v The Queen (2012) 245 CLR 588; [2012] HCA 24
- R v Chalabian (No 13) [2022] NSWSC 470
- R v Dev Menon [2023] NSWSC 768
- R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24
- Stanton v The Queen [2003] HCA 29
- Wood v R [2022] NSWCCA 84