Tomov v The Queen
[2011] WASCA 189
•13 SEPTEMBER 2011
TOMOV -v- THE QUEEN [2011] WASCA 189
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 189 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:173/2010 | 24 JUNE 2011 | |
| Coram: | BUSS JA NEWNES JA HALL J | 13/09/11 | |
| 35 | Judgment 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 402 Rooke v The Queen [2011] VSCA 49 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TOMOV -v- THE QUEEN [2011] WASCA 189 CORAM : BUSS JA
- NEWNES JA
HALL J
- Appellant
AND
THE QUEEN
Respondent
- Appellant
AND
THE QUEEN
Respondent
(Page 2)
ON APPEAL FROM:
For File No : CACR 173 of 2010
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND 1259 of 2010
For File No : CACR 175 of 2010
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND 1044 of 2010
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)
(Page 3)
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
Category: D
Representation:
CACR 173 of 2010
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr A L Troy
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (Cth)
CACR 175 of 2010
Counsel:
Appellant : Mr A C McIntosh
Respondent : Mr A L Troy
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (Cth)
(Page 4)
Case(s) referred to in judgment(s):
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 402
Rooke v The Queen [2011] VSCA 49
(Page 5)
- BUSS JA:
Appeal CACR 173 of 2010
1 The appellant in CACR 173 of 2010 (Mr Tomov) was convicted, on his pleas of guilty on the fast-track system in the District Court, on 11 counts in an indictment.
2 The counts alleged, in summary, that Mr Tomov had:
(a) used a foreign passport that was not issued to him, contrary to s 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) (count 1);
(b) uttered counterfeit money, contrary to s 7(a) of the Crimes (Currency) Act 1981 (Cth) (counts 2 and 3);
(c) dealt with money that was the proceeds of crime, contrary to s 400.7(1) of the Criminal Code (Cth) (count 4);
(d) produced a false passport to a reporting entity, contrary to s 137(1) of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth) (counts 5 and 7);
(e) transferred currency using a false name, contrary to s 140(1) of the Anti-Money Laundering and Counter Terrorism Financing Act (counts 6 and 8);
(f) possessed counterfeit money, contrary to s 9(1)(a) of the Crimes (Currency) Act (count 9);
(g) possessed money, it being reasonable to suspect that such money was proceeds of crime in relation to a Commonwealth indictable offence, contrary to s 400.9 of the Criminal Code (count 10); and
(h) possessed an electronic skimming device with intent that it be used by him or another person to commit the offence of dishonestly obtaining or dealing in personal financial information, or to facilitate the commission of that offence, contrary to s 480.5 of the Criminal Code (count 11).
3 McCann DCJ sentenced Mr Tomov as follows:
(Page 6)
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4 The total effective sentence was therefore 4 years 9 months' imprisonment. The sentencing judge imposed a non-parole period of 2 years 5 months. The sentence was backdated to commence on 4 March 2010, being the date on which Mr Tomov was taken into custody for the offences in question.
5 Mr Tomov appeals to this court against his total effective sentence and his non-parole period. He does not challenge the individual sentences.
(Page 7)
Appeal CACR 175 of 2010
6 The appellant in CACR 175 of 2010 (Mr Boyanov) was convicted, on his pleas of guilty on the fast-track system in the District Court, on 28 counts in an indictment.
7 The counts alleged, in summary, that Mr Boyanov had:
(a) used a foreign passport that had not been issued to him, contrary to s 21(2) of the Foreign Passports (Law Enforcement and Security) Act (count 1);
(b) uttered counterfeit money, contrary to s 7(a) of the Crimes (Currency) Act (counts 2, 5, 8, 13 and 16);
(c) produced a false passport to a reporting entity, contrary to s 137(1) of the Anti-Money Laundering and Counter Terrorism Financing Act (counts 3, 6, 9, 12, 14, 17, 20 and 23);
(d) received currency exchange using a false name, contrary to s 140(1) of the Anti-Money Laundering and Counter Terrorism Financing Act (counts 4, 7, 10, 15, 18, 21 and 24);
(e) attempted to utter counterfeit money, contrary to s 7(a) of the Crimes (Currency) Act, read with s 11.1 of the Criminal Code (count 11);
(f) dealt with money that was the proceeds of crime, contrary to s 400.7(1) of the Criminal Code (counts 19 and 22);
(g) possessed a false passport, contrary to s 21(4) of the Foreign Passports (Law Enforcement and Security) Act (count 25);
(h) possessed counterfeit money, contrary to s 9(1)(a) of the Crimes (Currency) Act (count 26);
(i) possessed an electronic skimming device with intent that it be used by him or another person to commit the offence of dishonestly obtaining or dealing in personal financial information, or to facilitate the commission of that offence, contrary to s 480.5(1) of the Criminal Code (count 27); and
(j) possessed money, it being reasonable to suspect that such money was proceeds of crime in relation to a Commonwealth indictable offence, contrary to s 400.9 of the Criminal Code (count 28).
(Page 8)
8 McCann DCJ sentenced Mr Boyanov as follows:
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(Page 9)
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(Page 10)
9 The total effective sentence was therefore 4 years 9 months' imprisonment. The sentencing judge imposed a non-parole period of 2 years 5 months. The sentence was backdated to commence on 4 March 2010, being the date on which Mr Boyanov was taken into custody for the offences in question.
10 Mr Boyanov appeals to this court against his total effective sentence and his non-parole period. He does not challenge the individual sentences.
CACR 173 and 175 of 2010 are related appeals
11 The sentencing judge dealt with Mr Tomov and Mr Boyanov together. Although separate indictments were presented against Mr Tomov and Mr Boyanov, and they were not jointly charged with any offences, they were associates, and his Honour found that they 'worked as a team' (ts 143). The appeals were heard together.
12 It will be apparent that the total effective sentence and the non-parole period imposed on each of Mr Tomov and Mr Boyanov were identical.
The material facts relating to Mr Tomov's offending
13 Mr Tomov is a Bulgarian national. He assumed a false identity in order to enter Australia. The Crown alleged, in its sentencing submissions before his Honour, that some of Mr Tomov's offending was 'committed in company' with Mr Boyanov, who was described as a 'linked offender'.
Mr Tomov: count 1
14 On 25 January 2010, Mr Tomov arrived at Darwin International Airport under the assumed name of Ladislav Berko. He was carrying and produced a forged Czech Republic passport. An immigration official accepted the passport as valid and current identification of Mr Tomov, and he was permitted to enter Australia. In August 2009, Mr Tomov had attempted to enter Australia, but was refused entry.
Mr Tomov: count 2
15 At about 2.25 pm on Monday, 15 February 2010, Mr Tomov entered the Bendigo Bank at 67 Smith Street, Darwin, with €1,800 in counterfeit money made up of 36 x €50 notes. He approached the Bendigo Bank service consultant, requesting a currency exchange of the Euros for Australian dollars. Mr Tomov produced the counterfeit money knowing it to be counterfeit money.
(Page 11)
16 Mr Tomov also produced his genuine Bulgarian passport. In exchange for the counterfeit €1,800, Mr Tomov received $2,587.91 Australian dollars.
Mr Tomov: count 3
17 At about 3.07 pm on Monday, 15 February 2010, Mr Tomov attended the Commonwealth Bank at 66 Smith Street, Darwin, with a further €1,800 in counterfeit money made up of 36 x €50 notes. He approached the Commonwealth Bank service consultant, requesting a currency exchange of the Euros for Australian dollars. Mr Tomov produced the counterfeit money knowing it to be counterfeit money.
18 Mr Tomov also produced his genuine Bulgarian passport. In exchange for the counterfeit €1,800, he received $2,567.10 Australian dollars.
Mr Tomov: count 4
19 At about 4.30 pm on Monday, 15 February 2010, Mr Tomov attended the Western Union International Limited Agency t/a Exchange Currency at Shop 27, 69 Mitchell Street, Darwin. Western Union International Limited Agency is a reporting entity under the Anti-Money Laundering and Counter-Terrorism Financing Act.
20 Mr Tomov approached the service consultant, intending to transfer $AUD6,000, part of which was the proceeds of previous counterfeit money transactions during which Mr Tomov had knowingly exchanged counterfeit Euro notes for legal Australian currency. As I have mentioned, Mr Tomov had received $AUD2,587.91 from the Bendigo Bank and $AUD2,567.10 from the Commonwealth Bank.
21 Mr Tomov requested that the $AUD6,000 be sent to Miroslav Pescev Margaritov in Bulgaria.
Mr Tomov: count 5
22 During the transaction the subject of count 4, Mr Tomov produced the forged Czech Republic passport in the name of Ladislav Berko, falsely reporting his identification to be that of another. Mr Tomov produced the passport knowing it was false.
(Page 12)
Mr Tomov: count 6
23 As a result of being shown the false passport, the service consultant was deceived into believing the passport was genuine, and transferred the $AUD6,000 to Miroslav Pescev Margaritov for a fee of $AUD255.
Mr Tomov: dealing in proceeds of crime: no count on indictment
24 At about 10.46 am on Tuesday, 16 February 2010, Mr Tomov and Mr Boyanov attended the Western Union International Limited Agency at the GPO in Cavanagh Street, Darwin.
25 Mr Tomov approached the service consultant, intending to transfer $AUD700, part of which was the proceeds of the previous counterfeit money transactions during which he had knowingly exchanged counterfeit Euro notes for legal Australian currency.
26 Mr Tomov requested that the $AUD700 be sent to Panka Mitkova Tomov in Bulgaria.
Mr Tomov: count 7
27 During the transaction, the subject of count 6, Mr Tomov produced the forged Czech Republic passport in the name of Ladislav Berko, falsely reporting his identification to be that of another. Mr Tomov produced the passport knowing it was false.
Mr Tomov: count 8
28 As a result of being shown the false passport, the service consultant was deceived into believing that the passport was genuine, and transferred the $AUD700 to Panka Mitkova Tomov for a fee of $AUD60.
Mr Tomov: count 9
29 At about 7.35 am on Thursday, 4 March 2010, detectives from Perth Major Fraud Squad executed a search warrant at Unit 3, 13 - 15 Alga Street, Scarborough. Mr Tomov was found at this address, together with Mr Boyanov. A search of the living room revealed a laptop bag that contained €1,000 in counterfeit money (and $2,000 genuine Australian dollars).
Mr Tomov: count 10
30 In addition to finding €1,000 in counterfeit money, the police also located $2,000 genuine Australian dollars.
(Page 13)
31 Mr Tomov admitted the Australian cash was obtained by exchanging counterfeit currency in Darwin and Perth.
Mr Tomov: count 11
32 A search of the roof space at the Scarborough property revealed an electronic device contained in an oven mitt. A plastic bag containing numerous blank cards and double-sided sticky tape was also located in the roof space.
33 The skimming device contained software to capture bank account details and a pinhole camera to record the account holder's personal identification number. The device is fixed to automatic teller machines (ATMs) in order to illegally obtain cardholders' account information. The electronic information can later be encoded onto blank cards and used fraudulently to obtain money.
34 Forensic analysis of the faceplate for the ATMs revealed a right index finger impression belonging to Mr Tomov.
The material facts relating to Mr Boyanov's offending
35 Like Mr Tomov, Mr Boyanov is a Bulgarian national who assumed a false identity in order to enter Australia. The Crown also alleged, in its sentencing submissions before his Honour, that some of Mr Boyanov's offending was 'committed in company' with Mr Tomov.
Mr Boyanov: count 1
36 On 14 January 2010, Mr Boyanov arrived at Darwin International Airport under the assumed name of Jan Kudrikovy. He was carrying and produced a forged Czech Republic passport. An immigration official accepted the passport as valid and current identification for Mr Boyanov, and he was permitted to enter Australia.
Mr Boyanov: count 2
37 On Thursday, 28 January 2010, at about 11.09 am, Mr Boyanov attended the ANZ Bank at 247 Trower Road, Casuarina with €1,000 in counterfeit money made up of 10 x €100 notes. Mr Boyanov approached the ANZ Bank service consultant, requesting a currency exchange of the Euros for Australian dollars. Mr Boyanov produced the counterfeit money knowing it to be counterfeit money.
(Page 14)
Mr Boyanov: count 3
38 The ANZ Bank is an authorised deposit-taking institution and reporting entity under the Anti-Money Laundering and Counter-Terrorism Financing Act.
39 At the time of the transaction to exchange the Euros for Australian dollars, the subject of count 2, Mr Boyanov produced a forged Italian passport in the name of Mario Fentuchi, falsely purporting his identification to be that of another. Mr Boyanov produced the passport knowing it was false.
Mr Boyanov: count 4
40 As a result of being shown the false passport, the service consultant was deceived into believing that the passport was genuine and the Euros were genuine and legal tender, so that she provided Mr Boyanov with $AUD1,440 in Australian currency debited from the ANZ Bank foreign exchange account.
Mr Boyanov: count 5
41 On the morning of Monday, 15 February 2010, Mr Boyanov left accommodation at 48 Mitchell Street, Darwin together with Mr Tomov. Both were in possession of a significant amount in counterfeit €100 notes and €50 notes.
42 At about 10.40 am on Monday, 15 February 2010, Mr Boyanov went into the Bendigo Bank at 67 Smith Street, Darwin, with €2,000 in counterfeit money made up of 20 x €100 notes. Mr Boyanov approached the Bendigo Bank service consultant, requesting a currency exchange of the Euros for Australian dollars. Mr Boyanov produced the €2,000 knowing it to be counterfeit money.
Mr Boyanov: count 6
43 The Bendigo Bank is an authorised deposit-taking institution and reporting entity under the Anti-Money Laundering and Counter-Terrorism Financing Act.
44 At the time of the transaction to exchange the Euros for Australian dollars, the subject of count 5, Mr Boyanov produced the forged Italian passport in the name of Mario Fentuchi, falsely purporting his identification to be that of another. Mr Boyanov produced the passport knowing it was false.
(Page 15)
Mr Boyanov: count 7
45 As a result of being shown the false passport, the service consultant was deceived into believing that the passport was genuine and the Euros were genuine and legal tender, so that the service consultant provided Mr Boyanov with $AUD2,876 in Australian currency debited from the Bendigo Bank foreign exchange account.
Mr Boyanov: count 8
46 At about 11.09 am on Monday, 15 February 2010, Mr Boyanov went into the Commonwealth Bank at 66 Smith Street, Darwin, with €2,000 in counterfeit money made up of 20 x €100 notes. Mr Boyanov approached the Commonwealth Bank service consultant, requesting a currency exchange of the Euros for Australian dollars. Mr Boyanov produced the €2,000 knowing it to be counterfeit money.
Mr Boyanov: count 9
47 The Commonwealth Bank is an authorised deposit-taking institution and reporting entity under the Anti-Money Laundering and Counter-Terrorism Financing Act.
48 At the time of the transaction to exchange the Euros for Australian dollars, the subject of count 8, Mr Boyanov produced the forged Italian passport in the name of Mario Fentuchi, falsely purporting his identification to be that of another. Mr Boyanov produced the passport knowing it was false.
Mr Boyanov: count 10
49 As a result of being shown the false passport, the service consultant was deceived into believing that the passport was genuine and the Euros were genuine and legal tender, so that the service consultant provided Mr Boyanov with $AUD2,853.23 in Australian currency debited from the Commonwealth Bank foreign exchange account.
Mr Boyanov: count 11
50 At about 12.00 noon on Monday, 15 February 2010, Mr Boyanov attended the American Express Foreign Exchange (AMEX) desk at the Westpac Bank, 23 Smith Street, Darwin, with €2,500 in counterfeit money consisting of €50 and €100 notes. Mr Boyanov approached an AMEX service consultant, requesting a currency exchange of the Euros for Australian dollars. Mr Boyanov produced the €2,000 knowing it was counterfeit money.
(Page 16)
51 The service consultant observed that the texture and the thickness of the Euros were not consistent with genuine legal tender, and telephoned her supervisor. Mr Boyanov became agitated and demanded the return of the money, declining to proceed with the transaction. The service consultant returned the Euros, and Mr Boyanov left the bank without completing the transaction.
Mr Boyanov: count 12
52 Westpac Bank is an authorised deposit-taking institution and reporting entity under the Anti-Money Laundering and Counter-Terrorism Financing Act.
53 At the time of the attempted transaction to exchange the Euros for Australian dollars, the subject of count 11, Mr Boyanov produced the forged Italian passport in the name of Mario Fentuchi, falsely purporting his identification to be that of another. Mr Boyanov produced the passport knowing it was false.
54 Mr Boyanov and Mr Tomov then travelled to the Casuarina Shopping Precinct in the northern suburbs of Darwin. Mr Boyanov was observed by the ANZ Bank service consultant, who had dealt with him previously on 28 January 2010, to be walking with Mr Tomov in the adjoining shopping mall at Casuarina Square.
Mr Boyanov: count 13
55 At about 2.39 pm on Monday, 15 February 2010, Mr Boyanov went into the Bendigo Bank at 67 Smith Street, Darwin, with €2,800 in counterfeit money made up of 8 x €100 notes and 40 x €50 notes. Mr Boyanov approached the Bendigo Bank service consultant, requesting a currency exchange of the Euros for Australian dollars. Mr Boyanov produced the €2,800 knowing it was counterfeit money.
Mr Boyanov: count 14
56 The Bendigo Bank is an authorised deposit-taking institution and reporting entity under the Anti-Money Laundering and Counter-Terrorism Financing Act.
57 At the time of the transaction to exchange the Euros for Australian dollars, the subject of count 13, Mr Boyanov produced the forged Italian passport in the name of Mario Fentuchi, falsely purporting his identification to be that of another. Mr Boyanov produced the passport knowing it was false.
(Page 17)
Mr Boyanov: count 15
58 As a result of being shown the false passport, the service consultant was deceived into believing that the passport was genuine and the Euros were genuine and legal tender, so that the service consultant provided Mr Boyanov with $AUD4,028.40 in Australian currency debited from the Bendigo Bank foreign exchange account.
Mr Boyanov: count 16
59 At about 3.26 pm on Monday, 15 February 2010, Mr Boyanov returned to the Commonwealth Bank at 66 Smith Street, Darwin, with €2,000 in counterfeit money made up of 20 x €100 notes. Mr Boyanov approached the Commonwealth Bank service consultant, requesting a currency exchange of the Euros for Australian dollars. Mr Boyanov produced the €2,000 knowing it was counterfeit money.
Mr Boyanov: count 17
60 At the time of the transaction to exchange the Euros for Australian dollars, the subject of count 16, Mr Boyanov produced the forged Italian passport in the name of Mario Fentuchi, falsely purporting his identification to be that of another. Mr Boyanov produced the passport knowing it was false.
Mr Boyanov: count 18
61 As a result of being shown the false passport, the service consultant was deceived into believing that the passport was genuine and the Euros were genuine and legal tender, so that the service consultant provided Mr Boyanov with $AUD2,853.23 in Australian currency debited from the Commonwealth Bank foreign exchange account.
Mr Boyanov: count 19
62 At about 4.20 pm on Monday, 15 February 2010, Mr Boyanov attended the Western Union International Limited Agency t/a as Exchange Currency at Shop 27, 69 Mitchell Street, Darwin. Western Union International Limited Agency is a reporting entity under the Anti-Money Laundering and Counter-Terrorism Financing Act.
63 Mr Boyanov approached the service consultant intending to transfer AUD$4,500, which was part of the proceeds of previous counterfeit money transactions during which he had knowingly exchanged counterfeit Euro notes for legal Australian currency. Mr Boyanov requested that the $AUD4,500 be sent to Penka Mitkova Tomov in Bulgaria.
(Page 18)
Mr Boyanov: count 20
64 During the transaction, the subject of count 19, Mr Boyanov produced the forged Czech Republic passport in the name of Jan Kudrikovy, falsely purporting his identification to be that of another. Mr Boyanov produced the passport knowing it was false.
Mr Boyanov: count 21
65 As a result of being shown the false passport, the service consultant was deceived into believing that the passport was genuine and transferred $AUD4,500 to Penka Mitkova Tomov for a fee of $AUD195.
Mr Boyanov: count 22
66 At about 10.46 am on Tuesday, 16 February 2010, Mr Boyanov and Mr Tomov attended together at the Western Union International Limited Agency at the GPO in Cavanagh Street, Darwin.
67 Mr Boyanov approached the service consultant, intending to transfer $AUD1,400, which was part of the proceeds of previous counterfeit money transactions during which he had knowingly exchanged counterfeit Euro notes for legal Australian currency. Mr Boyanov requested that the $AUD1,400 be sent to Emil Evgeniev Boyanov in Bulgaria.
Mr Boyanov: count 23
68 During the transaction, the subject of count 22, Mr Boyanov produced the forged Czech Republic passport in the name of Jan Kudrikovy, falsely purporting his identification to be that of another. Mr Boyanov produced the passport knowing that it was false.
Mr Boyanov: count 24
69 As a result of being shown the false passport, the service consultant was deceived into believing that the passport was genuine and transferred $AUD1,400 to Emil Evgeniev Boyanov for a fee of $AUD80.
Mr Boyanov: count 25
70 As I have mentioned, on Thursday, 4 March 2010, detectives from Perth Major Fraud Squad executed a search warrant at Unit 3, 13 - 15 Alga Street, Scarborough.
71 Mr Boyanov was located at the property together with Mr Tomov.
(Page 19)
72 A search of the roof space revealed a plastic bag containing several items including the Italian passport in the name of Mario Fentuchi, with the picture on the passport depicting Mr Boyanov.
73 The passport was later examined by a document expert at the Department of Immigration, who confirmed that the Italian passport was a forgery.
Mr Boyanov: count 26
74 A search of the living room at the Scarborough property revealed a laptop bag that contained counterfeit Euro currency, namely €1,000 notes in €50 denominations. Mr Boyanov was interviewed and said the notes were obtained from the Czech Republic.
Mr Boyanov: count 27
75 As I have mentioned, a search of the roof space at the Scarborough property also revealed the skimming device contained in an oven mitt. A plastic bag containing numerous blank cards and double-sided sticky tape was also located in the roof space.
Mr Boyanov: count 28
76 During the search of the living room, $AUD2,000 genuine currency was located in $50 and $100 dollar denominations. Mr Boyanov stated that the currency was obtained from exchanging the counterfeit currency for genuine currency whilst in Darwin and Perth.
77 When interviewed under caution on 4 March 2010, Mr Boyanov stated:
Yes there is a lot of things that I can tell but I can’t really say that now, right now, what I can say is that I did owe a lot of money [to] a group of people overseas and they forced me to, ah, travel to Australia and provided me the documents and basically that was that.
The findings made by the sentencing judge
78 During his sentencing remarks, the sentencing judge made, relevantly, these findings:
(a) The offending by Mr Tomov and Mr Boyanov occurred after Mr Tomov arrived in Australia on 25 January 2010 (Mr Boyanov having arrived on 14 January 2010), except for Mr Boyanov's
- initial passport offence. Mr Tomov and Mr Boyanov 'worked as a team' (ts 143).
- (b) Mr Tomov and Mr Boyanov were Bulgarian citizens. They were persuaded to come to Australia by a criminal in Bulgaria who ascertained that each of them was heavily in debt. The Bulgarian criminal provided them with the forged passports, the counterfeit Euros and three skimmers. Mr Tomov brought the Euros to Australia and Mr Boyanov brought the skimmers (ts 143).
(c) After carrying out in Darwin the offences I have described, Mr Tomov and Mr Boyanov travelled together to Perth (ts 143).
(d) When Mr Tomov and Mr Boyanov were arrested at the Scarborough property, neither of them had possession of any equipment capable of encoding the blank cards, and there was no evidence that either of them (or anyone else) had used any of the skimmers (ts 144).
(e) Mr Tomov and Mr Boyanov were knowingly involved in the preparation of a fraudulent skimming operation in Australia, and they were actively engaged in this operation when they were arrested. However, 'someone else was going to be responsible for using the skimmers, meaning someone who had the encoder' (ts 144).
(f) The money sent by each of Mr Tomov and Mr Boyanov to Bulgaria went to his family. This money was payment for involvement in the fraudulent skimming operation. None of the money was to be used for further criminal activity (ts 144).
(g) The fraudulent skimming operation was highly sophisticated, organised and professional. It had considerable access to high quality equipment including forgery and counterfeiting facilities (ts 144).
(h) Each of Mr Tomov and Mr Boyanov was an important, determined and willing participant in the fraudulent skimming operation over a lengthy period that commenced in Bulgaria. Each of them had plenty of time to 'back out' before coming to Australia. Their own activities were not, however, sophisticated. They took 'all the risks' and were 'almost amateurish' in some respects (ts 144).
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- (i) However, each of Mr Tomov and Mr Boyanov was more than a mere courier in that each of them made other preparations in Australia. Each of them willingly played a 'vital role', and this would have continued if they had not been arrested. Each of them always intended to stay in Australia for a lengthy period in order to participate in setting up the fraudulent skimming operation (ts 144).
(j) Mr Boyanov either uttered or had in his possession 10,800 counterfeit Euros. Mr Tomov either uttered or had in his possession 4,600 counterfeit Euros. However, 'for all practical purposes', the counterfeit Euros were their 'joint property'. A total of $AUD12,600 was remitted to Bulgaria (ts 145).
(k) Each of Mr Tomov and Mr Boyanov 'offended in company with the other over a lengthy period' (ts 146).
(l) The skimming devices had significant potential to defraud (ts 146).
The organisation of the balance of these reasons
79 I will consider, first, Mr Tomov's appeal and then turn to Mr Boyanov's appeal.
Mr Tomov's appeal: grounds of appeal
80 Mr Tomov relies on four grounds of appeal, which read:
1. The learned sentencing Judge erred in fact in finding that [Mr Tomov] was present when Bozhidar Boyanov (Boyanov) committed all of the offences except count 1 in the indictment that was preferred against Boyanov.
2. The learned sentencing Judge acted on a wrong principle, or took into account an irrelevant matter, by taking into account offences in respect of which [Mr Tomov] had not been charged or convicted, which [Mr Tomov] had not asked to be taken into account, and which were not admitted by [Mr Tomov].
3. The aggregate sentence that was imposed on [Mr Tomov] did not bear a proper relationship to the overall criminality involved in all of the offences, having regard to [the] circumstances in which those offences were committed and factors personal to [Mr Tomov].
4. The aggregate sentence that was imposed on [Mr Tomov] infringed the parity principle.
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81 On 12 January 2011, Mazza J granted leave to appeal on grounds 3 and 4, and referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.
82 It is convenient to deal, first, with ground 3, then ground 4 and, finally, grounds 1 and 2 together.
Mr Tomov's appeal: the merits of ground 3
83 Ground 3 alleges in essence that the total effective sentence imposed on Mr Tomov infringed the first limb of the totality principle.
84 A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The principle applies, relevantly for present purposes, where an offender is to be sentenced for multiple offences. The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the relevant offences, viewed in their entirety, and after having regard to the circumstances of the case, including those circumstances referable to the offender personally.
85 The principles governing, and the proper approach to fixing, a non-parole period for federal offences are set out in my reasons in Ljuboja v The Queen [2011] WASCA 143 [105] - [111]. It is unnecessary to repeat them.
86 The maximum penalties for the offences committed by Mr Tomov are set out at [3] above. No complaint is made about the length of any of the individual sentences. Also, it was not submitted that it was inappropriate to order some accumulation of the individual sentences.
87 The major sentencing considerations for the offences in question are appropriate punishment and personal and general deterrence.
88 The sentencing judge observed in relation to general deterrence (correctly, in my respectful opinion):
International criminals and gangs and their agents, such as Mr Tomov and Mr Boyanov, must be deterred from choosing Australia or anywhere to commit offences of this kind, especially having regard to their boss's evident access to quality equipment and the ease with which financial offences can be committed and identity fraud committed. The integrity of Australia's sovereignty, financial systems and personal financial security are all genuinely put at risk by this kind of offending (ts 147).
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89 Mr Tomov's personal circumstances were these. He was born on 22 October 1967 and was aged 42 years at the time of sentencing. Mr Tomov is married and has two teenage children, one aged 18 and the other 11. He had no prior criminal record. His Honour described his prior character as 'excellent'. Mr Tomov had a good work history. He became involved with the criminal enterprise because of the collapse of his real estate business and his inability to support himself and his family. His Honour said that Mr Tomov was 'exploited' (ts 145).
90 As to personal deterrence, the sentencing judge accepted that there was a low risk of Mr Tomov 'offending again in this way' (ts 147).
91 Neither counsel for Mr Tomov nor counsel for the Crown was able to refer the court to any previous sentencing decisions that could reasonably be described as comparable to the present case.
92 I have, however, read and taken into account the following cases which are of some limited assistance:
(a) as to the possession of an electronic skimming device with intent, R v Raad [2006] VSCA 67; (2006) 15 VR 338;
(b) as to offences concerning the possession or uttering of counterfeit money, R v Grant (Unreported, VSCA, Library No BC9401381, 27 June 1994); Bellas v The Queen [2006] NTCCA 8; (2006) 151 NTR 77; R v Alexander [2006] QCA 17;
(c) as to using another person's passport for identification purposes, contrary to s 21(2) of the ForeignPassports (Law Enforcement and Security) Act, Nikaghanri v The State of Western Australia [2009] WASCA 192;
(d) as to the provision of false or misleading information to a reporting entity, the provision of false or misleading documents to a reporting entity and the possession of a false document contrary to s 136(1), s 137(1) and s 138(3) of the Anti-Money Laundering and Counter Terrorism Financing Act, R v Jian Hou [2010] VSCA 36;
(e) as to the offence of money laundering, R v Li [2010] NSWCCA 125; (2010) 202 A Crim R 195; Kumar v The Queen [2010] NSWCCA 138.
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93 I am satisfied that the total effective sentence of 4 years 9 months' imprisonment with a non-parole period of 2 years 5 months was within the range of a sound exercise by his Honour of the sentencing discretion. The sentence properly reflected the major sentencing considerations, after taking into account Mr Tomov's fast-track plea of guilty, his favourable antecedents including the absence of a prior criminal record, and his low risk of reoffending. The objective seriousness of the offending and the importance of general deterrence demanded a sentence of the order imposed by his Honour.
94 The total head sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances including those referable to Mr Tomov personally. The non-parole period was within the appropriate range and reflected the considerations relevant to the fixing of a non-parole period. The sentence is not plainly unreasonable or unjust.
95 Ground 3 fails.
Mr Tomov's appeal: the merits of ground 4
96 Ground 4 alleges in essence that the total effective sentence imposed on Mr Tomov infringed the parity principle.
97 In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ said in relation to the principle of parity of sentencing as between co-offenders:
The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).
98 The object of the principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe (610) (Gibbs CJ), (613) (Mason J), (623 - 624) (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 302 - 303 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not
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- subjective. See R v Pan [2005] NSWCCA 114 [34] (Johnson J, Giles JA & Hoeben J agreeing). The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P, Pullin JA agreeing).
99 An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a primary judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P, McLure JA agreeing).
100 The parity principle may be applied to reduce the sentence of an offender by reference to the sentence imposed on another offender where the offenders have been participants in a common criminal enterprise, even though they have not been charged or found guilty of committing precisely the same offence or offences. See Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27 [202] - [203] (Campbell JA, Rothman J generally agreeing), [245] - [246] (Howie J, Rothman J agreeing generally); Dwayhi v The Queen [2011] NSWCCA 67 [28] - [31] (Johnson J, Whealy JA & Hidden J agreeing); Farrugia v The Queen [2011] VSCA 24 [11] - [23] (Redlich & Bongiorno JJA); Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 250 FLR 169 [26] - [28] (Warren CJ, Redlich JA & Ross AJA).
101 However, practical difficulties in the application of the parity principle will often arise where the offenders have not been charged with or found guilty of committing precisely the same offence or offences. See Jimmy [203]; Gregory [27]. In Gregory, Warren CJ, Redlich JA and Ross AJA observed:
The greater the differences in the nature and seriousness between the crimes charged, the more difficult the application of the principle will become, to the point where the differences are so great that the principle can no longer be applied [27].
102 The Court of Appeal of Victoria has held that, apart from the parity principle, the broad principle of equal justice may, in a particular case,
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- require some relativity between the sentences imposed on offenders. That is, the existence of a common criminal enterprise between offenders does not, at least in Victoria, delineate the outer limits of the application of the parity principle. See Farrugia, where Redlich and Bongiorno JJA said:
While the general principle of consistency of sentencing is achieved by a consideration of comparable cases which inform the range of sentences applicable (Hudson v The Queen [2010] VSCA 332, [28] - [34]), the essential and different characteristic of the parity principle requires the alteration of one sentence to conform with that of a related offender (Kelly v The Queen [2011] VSCA 10, [6] - [7]). But there will be circumstances in which the principles of consistency and parity become so closely related that the principles of equal justice may dictate that the sentence under question should be brought into line, or more closely conform, with the sentence imposed on an offender for a related crime (see Jimmy v The Queen (2010) 269 ALR 115 at 173 (Rothman J)). Such reasoning need not be confined to co-offenders or a common criminal enterprise. Once one has regard to the purposes of sentencing, automatic consequences need not necessarily follow from the presence or absence of particular factual circumstances. The discretionary decision must be made in light of the circumstances of the individual case (R v Engert (1995) 84 A Crim R 67 at 68 (Gleeson CJ); Republic of Croatia v Sneddon (2010) 265 ALR 621 at 639).
If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight [26] - [27].
See also Rooke v The Queen [2011] VSCA 49 [34] (Ashley JA, Harper JA & Hargrave AJA agreeing).
103 In the present case, the sentencing judge dealt with the issue of parity during debate with counsel for Mr Tomov (Mr Monisse) and counsel for Mr Boyanov (Mr Hope), as follows:
MONISSE, MR: And the only other point I wish to raise, your Honour, is your Honour's of a view of full parity, but the only point I make here is - - -
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- McCANN DCJ: By the way, before you make that point I think if anyone was to get a more heavy sentence it would be Mr Boyanov, so the parity principle would be used by me to actually reduce Mr Boyanov's sentence. Mr Boyanov committed more offences, was in Australia for longer, so I don't think you have parity problems. Your client is unlikely to be marked up to Mr Boyanov's level. If there's a case for parity, it's Mr Boyanov that needs to be the precedent.
HOPE, MR: If I can rise on that point? I understand there's no protest by the State for parity, and if I understand your Honour's utterances earlier correctly, I'm not required to make submissions as to parity.
McCANN DCJ: No. Perhaps I could expose my thinking on this now and if anyone has a difficulty with it - - -
HOPE, MR: Yes, sir.
McCANN DCJ: I'll just read this out:
'Mr Boyanov was the more serious offender in terms of the number of offences committed and the time period during which he committed them, and he had two forged passports, or false passports, whereas Mr Tomov only had one, and Mr Tomov was more naive in that he actually used his real name on one occasion, his real passport.'
MONISSE, MR: Two occasions.
McCANN DCJ: Two occasions. Thank you. So there's a case for actually dealing with Mr Boyanov more harshly. However, the possession of the skimmers is the gravamen of the criminal enterprise. Mr Tomov was present when Mr Boyanov committed all his offences, except count 1. They have the same age, personal history, and were engaged in basically the same criminal enterprise for the same person, and they both got roughly the same amount of money out of it.
HOPE, MR: Tomov brings in the counterfeit - that tends to even things up, I would've thought, as well.
McCANN DCJ: Yes. What, you're trying to get Mr Tomov up a bit, are you?
HOPE, MR: No, no, not at all. I'm concerned if this - if my learned friend, Mr Monisse, is saying that there is a difference in culpability, then I'd protest that submission and - but I understand I'm not to be heard on that.
McCANN DCJ: Yes. I think at the end of the day they should be treated the same.
HOPE, MR: Yes. May it please the court.
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- McCANN DCJ: Yes, for those reasons (ts 140 - 141). (emphasis added)
104 Later, in his sentencing remarks, his Honour said in relation to parity:
I've already dealt with the issue of parity during submissions and I adopt what I said there (ts 152).
105 His Honour's observation, during debate with counsel for Mr Tomov, that 'the parity principle would be used by me to actually reduce Mr Boyanov's sentence. Mr Boyanov committed more offences, was in Australia for longer, so I don't think you have parity problems. Your client is unlikely to be marked up to Mr Boyanov's level', reveals a material error.
106 In particular, the parity principle is not invoked for the purpose of:
(a) reducing the sentence to be imposed on a co-offender whose criminality is more culpable or whose personal circumstances are less favourable; or
(b) increasing the sentence to be imposed on a co-offender whose criminality is less culpable or whose personal circumstances are more favourable.
107 Rather, the principle is concerned to ensure a just sentencing outcome as between co-offenders (and offenders who have engaged in a common criminal enterprise) including the avoidance of a legitimate or justifiable sense of grievance because the sentencing relativities between the offenders do not appropriately recognise an offender (or offenders) whose criminality is less culpable or whose personal circumstances are more favourable.
108 In the present case, the sentencing judge, in deciding which individual sentences to make concurrent and which to make cumulative, divided the offences committed by Mr Tomov and the offences committed by Mr Boyanov into three categories. The first category comprised the offence of possession of an electronic skimming device with intent, being count 11 in the case of Mr Tomov and count 27 in the case of Mr Boyanov. The maximum available penalty for this offence is 3 years' imprisonment and his Honour sentenced each of Mr Tomov and Mr Boyanov to 18 months. The second category comprised using a foreign passport that had not been issued to him, being count 1 in the case of Mr Tomov and count 1 in the case of Mr Boyanov. The maximum available penalty for this offence is 10 years' imprisonment and his
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- Honour sentenced each of Mr Tomov and Mr Boyanov to 18 months. The third category comprised all of the other offences, being a total of nine offences in the case of Mr Tomov and a total of 26 offences in the case of Mr Boyanov. The maximum available penalties for these offences ranged between 2 years' and 12 years' imprisonment. Each of Mr Tomov and Mr Boyanov received individual sentences for these offences ranging between 3 months and 18 months.
109 His Honour decided that, within the third category of offences, the offence of possession of proceeds of crime, being count 10 in the case of Mr Tomov and count 28 in the case of Mr Boyanov, should be served cumulatively on the other sentences within that category, but otherwise the sentences within the third category should be concurrent. His Honour also decided that the sentences for the first and second categories, and the total effective sentence for the third category, should be served cumulatively. In other words, the 18-month term for the first category, the 18-month term for the second category and the total effective term of 21 months for the third category were aggregated to produce the total effective sentence of 4 years 9 months' imprisonment.
110 In R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, Gibbs CJ (Mason J agreeing) stated several propositions in relation to the sentencing of offenders. First, it was 'fundamental and important' that 'no one should be punished for an offence of which he has not been convicted' (389). Secondly, a sentencing judge is entitled, in imposing a sentence, to consider all of the offender's conduct, including that which would aggravate the offence, but 'cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence' (389). Thirdly, 'where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty' (392). See also R v Harrison (1909) 2 Cr App R 94, 95 - 96 (Channell J); Lovegrove v The Queen [1961] Tas SR 106, 107 - 108 (Burbury CJ, Crawford & Cox JJ agreeing); R v Boney [1986] 1 Qd R 190, 207 - 210 (McPherson J); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [18] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).
111 In the present case, as to the offences within the third category:
(a) Mr Tomov was charged with, pleaded guilty to and fell to be sentenced for two counts of uttering counterfeit money (maximum available penalty: 12 years), one count of dealing with money that
- was the proceeds of crime (maximum available penalty: 5 years), two counts of producing a false passport to a reporting entity (maximum available penalty: 10 years), two counts of transferring currency using a false name (maximum available penalty: 2 years), one count of possession of counterfeit money (maximum available penalty: 10 years) and one count of possession of proceeds of crime (maximum available penalty: 2 years); and
- (b) Mr Boyanov was charged with, pleaded guilty to and fell to be sentenced for five counts of uttering counterfeit money (maximum available penalty: 12 years), eight counts of producing a false passport to a reporting entity (maximum available penalty: 10 years), seven counts of receiving currency exchange using a false name (maximum available penalty: 2 years), one count of attempted uttering of counterfeit money (maximum available penalty: 12 years), two counts of dealing with money that was the proceeds of crime (maximum available penalty: 5 years), one count of possession of counterfeit money (maximum available penalty: 10 years), one count of possession of a false passport not issued to him (maximum available penalty: 10 years) and one count of possession of proceeds of crime (maximum available penalty: 2 years).
112 The larger number of charges in relation to Mr Boyanov in the third category is, to a significant extent, attributable to Mr Boyanov having produced a false passport when he uttered counterfeit money (being counts 2, 5, 8, 13 and 16). Consequently, on each occasion that Mr Boyanov uttered counterfeit money he committed three offences, namely, uttering counterfeit money, producing a false passport to a reporting entity and receiving currency exchange under a false name. By contrast, when Mr Tomov uttered counterfeit money (being counts 2 and 3) he produced his genuine Bulgarian passport and, as a result, committed only one offence on each occasion.
113 As I have mentioned, the sentencing judge sentenced Mr Tomov and Mr Boyanov at the same hearing. His Honour did not distinguish between them in the sentencing outcome. Each of them received the same total effective sentence.
114 Mr Tomov's and Mr Boyanov's offending as a whole was committed pursuant to a common criminal enterprise.
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115 I am satisfied that error in the sentencing process should be inferred from the absence of any disparity in relation to the third category of offences, in that:
(a) Mr Tomov was convicted of nine offences within this category whereas Mr Boyanov was convicted of 26.
(b) Mr Boyanov committed counts 2, 3 and 4 before the sustained offending by him and Mr Tomov on 15 and 16 February 2010.
(c) Mr Tomov was more naive than Mr Boyanov in that, in the context of Mr Tomov's counts 2 and 3, Mr Tomov used his own passport when exchanging counterfeit Euros for Australian dollars.
(d) Mr Boyanov had possession of two false passports whereas Mr Tomov had possession of only one.
(e) There was no material difference between Mr Tomov's personal circumstances, on the one hand, and Mr Boyanov's personal circumstances, on the other.
116 In my opinion, the sentencing outcome for the third category of offences and, in consequence, the total effective sentences imposed on Mr Tomov and Mr Boyanov were such as to engender a legitimate or justifiable sense of grievance on Mr Tomov's part. His Honour did not recognise, in the sentencing outcome, the material differences between their offending in relation to the third category. The absence of any disparity was unjustifiable.
117 Ground 4 has been made out.
Mr Tomov's appeal: grounds 1 and 2
118 Ground 1 alleges in essence that the sentencing judge erred in fact in finding that Mr Tomov was present when Mr Boyanov committed all of the offences, except for count 1 in the indictment presented against Mr Boyanov. Ground 2 alleges in essence that his Honour acted on a wrong principle, or took into account an irrelevant consideration, by taking into account offences for which Mr Tomov had been neither charged nor convicted and which Mr Tomov had neither requested to be taken into account nor admitted.
119 At the sentencing hearing, counsel representing the Crown read from a statement of material facts relating to Mr Tomov and a statement of
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- material facts relating to Mr Boyanov. In the statement relating to Mr Tomov, she alleged that '[s]ome of the following offences were committed in company with Mr Boyanov'. In the statement relating to Mr Boyanov, she alleged that '[s]ome of the following offences were committed in company with a linked offender by the name of [Mr Tomov]'.
120 The sentencing judge said in the course of his sentencing remarks:
(a) Mr Tomov and Mr Boyanov 'worked as a team' (ts 143); and
(b) there were a number of aggravating factors in the offending, including '[e]ach man offended in company with the other over a lengthy period' (ts 146).
121 These remarks reflect comments made by his Honour earlier in the sentencing hearing during debate with counsel. For example, his Honour said during debate that 'Mr Tomov was present when Mr Boyanov committed all of his offences, except count 1' (ts 140); Mr Tomov and Mr Boyanov 'should be treated the same' (ts 141); it was 'aggravating that they were in company' (ts 142); and 'there's working in company [with] the other' (ts 142).
122 On appeal to this court, counsel representing the Crown (who was not counsel at first instance) accepted (properly, in my opinion) that although Mr Boyanov was physically present when Mr Tomov committed counts 7 - 11 on the indictment against him, there was no evidence or basis in fact for finding that Mr Tomov was physically present when Mr Boyanov committed any of counts 5 - 24 in the indictment against him.
123 It was, of course, plain on the evidence that on 15 and 16 February 2010, when Mr Boyanov committed counts 5 - 24, both Mr Boyanov and Mr Tomov were in Darwin and spent time together, and on these dates Mr Tomov committed counts 2 - 8.
124 His Honour's comments that 'Mr Tomov was present when Mr Boyanov committed all of his offences, except count 1' (ts 140) and Mr Tomov and Mr Boyanov 'should be treated the same' (ts 141) appear in the passage I have set out at [103] above. During the exchange with counsel embodied in this passage, his Honour dealt with the issue of parity. Later, in his sentencing remarks, his Honour 'adopted' what he had said in the passage in question; that is, he incorporated into his sentencing remarks the observations he had made earlier on the issue of parity. The
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- juxtaposition of his Honour's comment that 'Mr Tomov was present when Mr Boyanov committed all of his offences, except count 1' with his comment that Mr Tomov and Mr Boyanov 'should be treated the same' is significant.
125 In my opinion, the sentencing judge made a material error of fact, as alleged. Ground 1 has been made out.
126 As to ground 2, I am not persuaded that anything said by the sentencing judge in his sentencing remarks (including the earlier comments on parity which he incorporated into those remarks) can reasonably be interpreted as a finding that Mr Tomov was a party to the commission of most of the offences alleged against and committed by Mr Boyanov.
127 Ground 2 fails.
Mr Boyanov's appeal: ground of appeal
128 The sole ground of appeal relied on by Mr Boyanov alleges in effect that the sentencing judge erred in imposing a total effective sentence which infringed the first limb of the totality principle.
129 On 12 January 2011, Mazza J granted leave to appeal.
Mr Boyanov's appeal: its merits
130 I have set out, when examining the merits of ground 3 of Mr Tomov's appeal (which also alleges an infringement of the first limb of the totality principle), a description of the first limb; a reference to the principles governing, and the proper approach to fixing, a non-parole period for federal offences; the maximum penalties for the offences in question; the major sentencing considerations for these offences; and references to previous sentencing decisions which have some comparable features to the present case.
131 Mr Boyanov's personal circumstances were these. He was born on 9 December 1967 and was aged 42 years at the time of sentencing. He had no prior criminal record. His Honour described him as a person of 'good' character (ts 145). Mr Boyanov had a good work history including working in a nuclear power plant. He was in a long-term de facto relationship which had produced two children, aged 8 and 12. He became involved with the criminal enterprise because he was in desperate need for money as a result of financial difficulties. His Honour said that Mr Boyanov was 'exploited' (ts 145).
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132 As to personal deterrence, the sentencing judge accepted that there was a low risk of Mr Boyanov 'offending again in this way' (ts 147).
133 For the reasons I have given, in the course of considering Mr Tomov's assertion that the sentencing outcome infringed the first limb of the totality principle, I am satisfied that the total effective sentence imposed on Mr Boyanov, namely, 4 years 9 months' imprisonment with a non-parole period of 2 years 5 months, was within the range of a sound exercise by his Honour of the sentencing discretion. His Honour's decision in relation to concurrency and accumulation resulted in a total effective sentence that properly reflected Mr Boyanov's overall criminality, when his offences are viewed in their entirety, and after having regard to the circumstances of Mr Boyanov personally and the circumstances of his offending. The sentencing outcome is not plainly unreasonable or unjust.
134 The ground of appeal fails.
The result of Mr Tomov's appeal and his resentencing
135 I would grant Mr Tomov leave to appeal on ground 1 but refuse leave on ground 2. The appeal should be allowed and the sentencing decision relating to him should be set aside. This court has the materials necessary to resentence Mr Tomov.
136 The individual sentences on each of counts 1 - 11 should remain. The sentence for count 2 (18 months) should be made cumulative on the sentence for count 1 (18 months); the sentence for count 5 (9 months) should be made cumulative on the sentences for counts 1 and 2; and the sentence for count 6 (4 months) should be made cumulative on the sentences for counts 1, 2 and 5. All other sentences should be made concurrent with count 1. The total effective sentence is therefore 4 years 1 month imprisonment.
137 On applying the principles governing, and the proper approach to fixing, a non-parole period as set out in my reasons in Ljuboja [105] - [111], the appropriate non-parole period for Mr Tomov is 2 years 1 month.
138 The new sentence should be taken to have taken effect on 4 March 2010, being the date on which Mr Tomov was taken into custody for the offences in question.
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The result of Mr Boyanov's appeal
139 I would dismiss Mr Boyanov's appeal.
140 NEWNES JA: I agree with Buss JA.
141 HALL J: I agree with Buss JA.
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