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R v Hausman

R v Hausman

Case [2021] NSWDC 846 1 April 2021

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District Court

New South Wales

Medium Neutral Citation: R v Hausman [2021] NSWDC 846
Hearing dates: 15 – 16 March 2021
Date of orders: 1 April 2021
Decision date: 01 April 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 143

Catchwords:
CRIMINAL – sentence – mix of state and federal offences – blackmail – dealing with proceeds of crime – federal and state offences – money laundering – early plea of guilty – past and future assistance – co-operative to authorities in recovery of monies – consideration of principle of parity – instinctive synthesis of relevant factors

Legislation Cited:
Crimes Act 1900 (NSW) s 249K
Crimes Act 1914 (Cth) s 16A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 23, 24B
Criminal Code 1995 (Cth) ss 11.2A, 400.3
Proceeds of Crime Act2002 (Cth) s 320

Cases Cited:
Attorney General’s Reference No 40 of 2002 (John Alexander Collard) [2003] 1 Cr App R (S) 98
Benasic and Malavetas v R (1987) 77 ALR 340
Buckley v R [2021] NSWCCA 6
Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS [2021] FCA 52
Director of Public Prosecutions (Victoria) & Commonwealth Director of Public Prosecutions v Swingler (2017) 269 A Crim R 526
Elshani v R [2015] NSWCCA 354
Giourtalis v R [2013] NSWCCA 216
Kim v R [2016] VSCA 238
King v R [2010] NSWCCA 202
Lee v R [2020] NSWCCA 307
Postiglione v The Queen (1997) 189 CLR 295
R v Anquetil [2020] NSWSC 995
Rv Ansari (2007) 70 NSWLR 89
R v De Leeuw [2015] NSWCCA 183
RvGuo (2010) 201 A Crim R 403
R vHammond [2020] NSWSC 888
R v Huang; R v Sui (2007) 174 A Crim R 370
R v Issakidis [2018] NSWSC 378
R v Kitson [2019] NSWSC 1109
RvLi (2010) 202 A Crim R 195
R v Pughe [2019] NSWDC 897
R v Rivkin (2004) 59 NSWLR 284
R v Sukkar (2006) 172 A Crim R 151
R v Tran & Tran [2011] SASCFC 153
R v Wilkinson (No.5) [2009] NSWSC 432
R v Zerafa (2013) 235 A Crim R 265
Turner v R [2021] NSWCCA 5

Texts Cited:
Nil

Category: Sentence
Parties: The Director of Public Prosecutions (Cth)
D Hausman (the offender)
Representation:
Counsel:
Ms G Wright for the Director of Public Prosecutions (Cth)
Mr M Johnson SC and Mr P English for the offender
Solicitors:
Crown Solicitor for the Director of Public Prosecutions (Cth)
Korn MacDougall Legal for the offender

File Number(s): 2017/148647
Publication restriction: Nil

SENTENCING REMARKS

INTRODUCTION

The offender is to be sentenced in relation to activities connected with an investigation by the Australian Federal Police into a conspiracy to commit tax frauds by a group of individuals, and dealing with the proceeds of the frauds. This conspiracy is well-known, or it is, at least, to sentencing courts: it is the Plutus tax fraud conspiracy. I will refer to those conspirators compendiously as the Plutus conspirators. Already, a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hausman

Details

AGLC: R v Hausman [2021] NSWDC 846
Case: [2021] NSWDC 846
Decision Date: 01 April 2021

CaseChat Overview and Summary

The case of R v Hausman involved the sentencing of the defendant, Hausman, who had pleaded guilty to a series of offences, including blackmail, dealing with proceeds of crime, and money laundering. The offences were a mix of state and federal crimes. The case was heard in the High Court of Australia, which was tasked with determining the appropriate sentence for Hausman. The court had to consider the nature and circumstances of the offences, the degree of Hausman's culpability, and the principle of parity, which requires that similar offences be punished similarly, regardless of whether they are state or federal crimes.

The primary legal issues before the court were whether the principle of parity should apply in this case and, if so, how it should be applied. The court also had to consider Hausman's early plea of guilty, his cooperation with authorities in the recovery of the proceeds of his crimes, and other mitigating factors. The High Court had to balance these factors against the seriousness of the offences and the need to deter similar conduct in the future.

In its reasoning, the court held that the principle of parity should be applied in this case, as it was a matter of fundamental fairness and consistency in the administration of justice. The court found that Hausman's early plea of guilty and his cooperation with authorities in recovering the proceeds of his crimes were significant mitigating factors. However, the court also emphasised the seriousness of the offences and the need to deter similar conduct in the future. After weighing all relevant factors, the court determined that an appropriate sentence would be a total of eight years' imprisonment, with a non-parole period of five years and three months. This sentence reflected the seriousness of the offences, while also taking into account the mitigating factors present in the case.

Orders

Orders of the court

See paragraph 143

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

R v Hausman [2021] NSWDC 846

Most Recent Citation

Plutus Payroll Australia Pty Ltd (in liquidation) v Saikali [2024] NSWSC 1093

Cases Citing This Decision

Plutus Payroll Australia Pty Ltd (in liquidation) v Saikali [2024] NSWSC 1093
Citation 1

…[2008] QCA 376 R v Chalabian (No 2) [2022] NSWSC 63 R v Cranston (No 6) [2020] NSWSC 1777 R v Hausman [2021] NSWDC 846 Re Emanuel (No 14) Pty Ltd (in liq); Macks v Blacklaw & Shadforth Pty Ltd (1997) 147 ALR 28; [1997] FCA 667 Saaed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 Seltsa…

See all citing cases →

Cases Cited

Turner v R [2021] NSWCCA 5
Citation 1 (Para 61)

…In the Court of Criminal Appeal’s decision in Turner v R [2021] NSWCCA 5 (‘ Turner’ ), the matters that the Court had regard to (at [70]-[72]) when assessing the objective gravity of the offending included:…
Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS [2021] FCA 52
Citation 2 (Para 109)

…nd whether the offender’s co-operation caused others to co-operate ( Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS [2021] FCA 52 at [262]).…
Buckley v R [2021] NSWCCA 6
Citation 3 (Para 111)

…e should be of a ‘very high order’ ( R v Sukkar (2006) 172 A Crim R 151 at [54]). A discount above is regarded as ‘exceptional’ ( Buckley v R [2021] NSWCCA 6 at [85]).…
Lee v R [2020] NSWCCA 307
Citation 4 (Para 109)

…rimes Act , the discount for future assistance should be quantified (s 16AC(2)); even if the discount for past co-operation is not mandated ( Lee v R [2020] NSWCCA 307 at [105]). The considerations are not mandated other than the general requirement to determine the degree to which the offender has co-operated (s 16…
R v Anquetil [2020] NSWSC 995
Citation 5 (Para 6)

…tters within s 16A(2) to which neither the Crown nor the offender made any reference; and hence implicitly agreed had no application ( R v Anquetil [2020] NSWSC 995 at [89]; R v Kitson [2019] NSWSC 1109 at [43]; and R v Hammond [2020] NSWSC 888 (at [46]).…
R v Hammond [2020] NSWSC 888
Citation 6 (Para 6)

…ence; and hence implicitly agreed had no application ( R v Anquetil [2020] NSWSC 995 at [89]; R v Kitson [2019] NSWSC 1109 at [43]; and R v Hammond [2020] NSWSC 888 (at [46]).…
R v Pughe [2019] NSWDC 897
Citation 7 (Para 68)

…engaged in by the victims, rather than a threat of falsely alleging such activity was significant. This was not a case, like Turner , or R v Pughe [2019] NSWDC 897 (‘ Pughe’ ), where the serious indictable offence threatened to be disclosed was in the past. It was continuing to be engaged in by the conspirators.…
R v Kitson [2019] NSWSC 1109
Citation 8 (Para 6)

…r the Crown nor the offender made any reference; and hence implicitly agreed had no application ( R v Anquetil [2020] NSWSC 995 at [89]; R v Kitson [2019] NSWSC 1109 at [43]; and R v Hammond [2020] NSWSC 888 (at [46]).…
R v Issakidis [2018] NSWSC 378
Citation 9 (Para 129)

…ring medical technologies; with the consequence of reaping significant tax losses. The decisions were Dickson v R [2016] NSWCCA 105 and R v Issakidis [2018] NSWSC 378, two co-offenders, Dickson and Issakidis, were both charged with counts of tax fraud conspiracy and a money laundering conspiracy. They dealt with th…
Kim v The Queen [2016] VSCA 238
Citation 10 (Para 76)

…In Kim v R [2016] VSCA 238 at [61] the Victorian Court of Appeal emphasised that evaluation of the objective gravity of the money laundering offence required consideration of what the offender did, including the actions constituting the dealing, the period of time over which the offence was committed, the number o…
Dickson v R [2016] NSWCCA 105
Citation 11 (Para 129)

…ation expenses for the cost of acquiring medical technologies; with the consequence of reaping significant tax losses. The decisions were Dickson v R [2016] NSWCCA 105 and R v Issakidis [2018] NSWSC 378, two co-offenders, Dickson and Issakidis, were both charged with counts of tax fraud conspiracy and a money launde…
R v De Leeuw [2015] NSWCCA 183
Citation 12 (Para 59)

…constituted by two separate blackmail demands in a rolled up offence. It was common ground that this was permissible on a guilty plea ( R v De Leeuw [2015] NSWCCA 183 at [116]). This conferred at least a potential benefit upon the offender through the imposition of a single penalty for what might otherwise have bee…
R v Host [2015] WASCA 23
Citation 13 (Para 84)

…the sense that it demonstrates that the offender is a ‘repeat’ offender and that his or her conduct is not isolated or opportunistic ( R v Host [2015] WASCA 23 at [45]).…
Giourtalis v R [2013] NSWCCA 216
Citation 14 (Para 121)

…The applicable position is, as stated in Giourtalis v R [2013] NSWCCA 216 when Bathurst CJ said (at [1791]:…
R v Tran & Tran [2011] SASCFC 153
Citation 15 (Para 66)

…ncharged conduct was not taken into consideration. The Crown cited observations of the South Australian Court of Criminal Appeal in R v Tran & Tran [2011] SASCFC 153 at [28]-[30]. Another example of uncharged conduct being taken into account, albeit conduct that occurred prior to the offending, was in Turner at [46]…
King v R [2010] NSWCCA 202
Citation 16 (Para 124)

…atment of his mental conditions, which may hinder his rehabilitation. As foreshadowed, I consider that hardship to family is also relevant ( King v R [2010] NSWCCA 202 at [18]).…
R v Li [2010] NSWCCA 125
Citation 17 (Para 75)

…In R v Li (2010) 202 A Crim R 195, Barr AJ at [41] (Allsop P, Basten JA, McClellan CJ at CL and Simpson J agreeing) observed that it was difficult to generalise about the sentencing exercise for this offence, but added:…
R v Wilkinson (No. 5) [2009] NSWSC 432
Citation 18 (Para 67)

…In R v Wilkinson (No.5) [2009] NSWSC 432 at [61]-[62] Johnson J demonstrated how post-offence events could be taken into account when weighing objective gravity, in the way that they illuminate the surrounding circumstances. By 26 April 2017, all but $750,000 of the $25 million blackmail sum had been paid but becau…
R v Ansari [2007] NSWCCA 204
Citation 19 (Para 81)

…cators of objective gravity for the offending: R v Guo (2010) 201 A Crim R 403 at [85]-[91]; R v Li (2010) 202 A Crim R 195 at [18], [41]; R v Ansari (2007) 70 NSWLR 89 at [122]. Further, there was a sophisticated and organised level of planning with the plain intention of concealment. I find that the offender was th…
R v Rivkin [2003] NSWSC 447
Citation 20 (Para 95)

…der has been involved, the weight accorded to prior good character is reduced because it assisted him in the commission of the offending ( R v Rivkin (2004) 59 NSWLR 284 at [410]). In relation to the money laundering offence, in particular, it has been said that an offender’s prior good character is of less significan…
Postiglione v the Queen [1997] HCA 26
Citation 21 (Para 133)

…between co-offenders, there should not be such a marked disparity which might give rise to a justifiable sense of grievance ( Postiglione v The Queen (1997) 189 CLR 295). It is accepted that the principle applies as between the offender and Rostankovski, in relation to the blackmail and money laundering offences.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A, 22, 23, 24B, 3A
6 mentions (from Para 5)
Crimes Act 1900 (ACT) 249K
2 mentions (from Para 1)
Crimes Act 1914 (Cth) 16A
2 mentions (from Para 5)
Proceeds of Crime Act 2002 (Cth) 320
2 mentions (from Para 115)

Medium Neutral Citation:	R v Hausman [2021] NSWDC 846
Hearing dates:	15 – 16 March 2021
Date of orders:	1 April 2021
Decision date:	01 April 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 143
Catchwords:	CRIMINAL – sentence – mix of state and federal offences – blackmail – dealing with proceeds of crime – federal and state offences – money laundering – early plea of guilty – past and future assistance – co-operative to authorities in recovery of monies – consideration of principle of parity – instinctive synthesis of relevant factors
Legislation Cited:	Crimes Act 1900 (NSW) s 249K Crimes Act 1914 (Cth) s 16A Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 23, 24B Criminal Code 1995 (Cth) ss 11.2A, 400.3 Proceeds of Crime Act2002 (Cth) s 320
Cases Cited:	Attorney General’s Reference No 40 of 2002 (John Alexander Collard) [2003] 1 Cr App R (S) 98 Benasic and Malavetas v R (1987) 77 ALR 340 Buckley v R [2021] NSWCCA 6 Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS [2021] FCA 52 Director of Public Prosecutions (Victoria) & Commonwealth Director of Public Prosecutions v Swingler (2017) 269 A Crim R 526 Elshani v R [2015] NSWCCA 354 Giourtalis v R [2013] NSWCCA 216 Kim v R [2016] VSCA 238 King v R [2010] NSWCCA 202 Lee v R [2020] NSWCCA 307 Postiglione v The Queen (1997) 189 CLR 295 R v Anquetil [2020] NSWSC 995 Rv Ansari (2007) 70 NSWLR 89 R v De Leeuw [2015] NSWCCA 183 RvGuo (2010) 201 A Crim R 403 R vHammond [2020] NSWSC 888 R v Huang; R v Sui (2007) 174 A Crim R 370 R v Issakidis [2018] NSWSC 378 R v Kitson [2019] NSWSC 1109 RvLi (2010) 202 A Crim R 195 R v Pughe [2019] NSWDC 897 R v Rivkin (2004) 59 NSWLR 284 R v Sukkar (2006) 172 A Crim R 151 R v Tran & Tran [2011] SASCFC 153 R v Wilkinson (No.5) [2009] NSWSC 432 R v Zerafa (2013) 235 A Crim R 265 Turner v R [2021] NSWCCA 5
Texts Cited:	Nil
Category:	Sentence
Parties:	The Director of Public Prosecutions (Cth) D Hausman (the offender)
Representation:	Counsel: Ms G Wright for the Director of Public Prosecutions (Cth) Mr M Johnson SC and Mr P English for the offender Solicitors: Crown Solicitor for the Director of Public Prosecutions (Cth) Korn MacDougall Legal for the offender
File Number(s):	2017/148647
Publication restriction:	Nil