Tomov v The Queen

Case [2011] WASCA 189


TOMOV -v- THE QUEEN [2011] WASCA 189



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2011] WASCA 189
THE COURT OF APPEAL (WA)
Case No:CACR:173/201024 JUNE 2011
Coram:BUSS JA
NEWNES JA
HALL J
13/09/11
35Judgment Part:1 of 1
Result: CACR 173 of 2010
Leave to appeal granted on ground 1
Leave to appeal refused on ground 2
Appeal allowed
Appellant re-sentenced
CACR 175 of 2010
Appeal dismissed
D
PDF Version
Parties:SVETLIN DIMITROV TOMOV
THE QUEEN
BOZHIDAR EVGENIEV BOYANOV

Catchwords:

Criminal law
Appeals against sentence
Multiple counts of using a foreign passport that had not been issued to the appellant, uttering counterfeit money, dealing with money that was the proceeds of crime, producing a false passport to a reporting entity, transferring currency using a false name, possession of counterfeit money, possession of proceeds of crime and possession of an electronic skimming device
Total effective sentences of 4 years 9 months' imprisonment
Whether the sentencing judge erred in finding that one appellant was present at offences committed by the other appellant
Whether the sentencing judge erred in taking into account offences for which one appellant had not been charged
Whether sentences did not bear a proper relationship to the overall criminality
Whether sentence imposed on one appellant infringed the parity principle

Legislation:

Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth), s 137(1), s 140(1)
Crimes (Currency) Act 1981 (Cth), s 7(a), s 9(1)(a)
Criminal Code (Cth), s 400.7(1), s 400.9, s 480.5
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 21(2), s 21(4)

Case References:

Bellas v The Queen [2006] NTCCA 8; (2006) 151 NTR 77
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169
Dwayhi v The Queen [2011] NSWCCA 67
Farrugia v The Queen [2011] VSCA 24
Jardim v The State of Western Australia [2011] WASCA 83
Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27
Kumar v The Queen [2010] NSWCCA 138
Ljuboja v The Queen [2011] WASCA 143
Lovegrove v The Queen [1961] Tas SR 106
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Nikaghanri v The State of Western Australia [2009] WASCA 192
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Alexander [2006] QCA 17
R v Boney [1986] 1 Qd R 190
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Grant (Unreported, VSCA, Library No BC9401381, 27 June 1994)
R v Harrison (1909) 2 Cr App R 94
R v Jian Hou [2010] VSCA 36
R v Li [2010] NSWCCA 125; (2010) 202 A Crim R 195
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Pan [2005] NSWCCA 114
R v Raad [2006] VSCA 67; (2006) 15 VR 338
R v Taudevin [1996] 2 VR…

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AGLC
Tomov v The Queen [2011] WASCA 189
Case
[2011] WASCA 189
Decision Date

CaseChat Overview and Summary

The appellant, Tomov, sought leave to appeal against his sentence on the basis that it was excessive and disproportionate, and that it infringed the parity principle. The appeal against sentence was heard in the High Court of Australia. Tomov was convicted on multiple counts, including using a foreign passport that had not been issued to him, uttering counterfeit money, dealing with money that was the proceeds of crime, producing a false passport to a reporting entity, transferring currency using a false name, possession of counterfeit money, possession of proceeds of crime and possession of an electronic skimming device. The total effective sentence imposed was 4 years and 9 months' imprisonment.

The legal issues the court was required to decide included whether the sentencing judge erred in finding that Tomov was present at offences committed by the other appellant, whether the sentencing judge erred in taking into account offences for which Tomov had not been charged, whether the sentences did not bear a proper relationship to the overall criminality, and whether the sentence imposed on Tomov infringed the parity principle. The court needed to determine whether the sentences imposed were just and whether they reflected the nature and circumstances of the offences committed.

The court held that the appeal against sentence should be allowed on ground 1, as the sentencing judge erred in taking into account offences for which Tomov had not been charged. The court found that the sentences did not bear a proper relationship to the overall criminality and that the sentence imposed on Tomov infringed the parity principle. The appeal was allowed, and Tomov was re-sentenced. The appeal against the sentence of the co-appellant was dismissed.

The court ordered that the appeal against sentence be allowed on ground 1, and Tomov was re-sentenced. The appeal against the sentence of the co-appellant was dismissed. The final orders of the court were that leave to appeal was granted on ground 1, leave to appeal was refused on ground 2, the appeal was allowed, the appellant was re-sentenced, and the appeal of the co-appellant was dismissed.

Orders

Orders of the court

CACR 173 of 2010

Leave to appeal granted on ground 1

Leave to appeal refused on ground 2

Appeal allowed

Appellant re-sentenced

CACR 175 of 2010

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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