Voronov v R - [2017] NSWCCA 241

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Voronov v Regina [2017] NSWCCA 241
Hearing dates: 24 May 2017
Decision date: 06 October 2017
Before: Bathurst CJ at [1]
Hoeben CJ at CL at [2]
McCallum J at [3]
Decision:
Leave to appeal granted; non-parole period fixed on 27 June 2016 in respect of sentences imposed in District Court varied to a non-parole period of four years commencing on 11 March 2015 and expiring on 10 March 2019

Catchwords: CRIME – appeals – sentence – non-parole periods –federal offences – whether sentencing judge erroneously applied requirement under State legislation of ‘special circumstances’ in determining applicant’s non-parole period
Legislation Cited: Crimes Act 1914 (Cth), ss 19AB, 29D
Criminal Appeal Act 1912 (NSW), s 7
Criminal Code Act 1995 (Cth), ss 134.2(1), 135.1(5)
Crimes (Sentencing Procedure) Act 1999 (NSW),
s 44(2B)
Cases Cited: Elshani v R [2015] NSWCCA 254
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Category: Principal judgment
Parties: Vladislav Voronov (applicant)
Regina (respondent)
Representation:
Counsel:
C McGorey (applicant)
K Morgan (respondent)
Solicitors:
Criminal Lawyers (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2009/10959
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Crime

Date of Decision:

27 June 2016

Before:

Syme DCJ

File Number(s):

2009/10959

Judgment

BATHURST CJ: I agree with McCallum J.
HOEBEN CJ at CL: I agree with McCallum J and the orders which she proposes.
McCALLUM J: Vladislav Voronov seeks leave to appeal against the sentence imposed upon him in the District Court after he was found guilty by a jury of six tax fraud offences. The appeal concerns only the non-parole period fixed for the sentences.
The sentencing task was made difficult by the applicant’s own conduct in absconding before the verdict. The judge initially postponed the sentencing proceedings in the hope that he might be found but ultimately determined that it was necessary to sentence the applicant in his absence.
The applicant was arraigned on a joint indictment against him and his mother. The indictment contained two joint charges, one of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) and one of dishonestly causing a risk of loss to the Commonwealth contrary to s 135.1(5) of the Criminal Code Act 1995 (Cth). Those charges related to the failure to collect and pay GST in relation to clothing sold through a business conducted by the two offenders.
The indictment also contained four separate counts against each offender in respect of their failure to declare income earned from that business and the failure to pay income tax on the undeclared income for each of four financial years from 2000 to 2003. In the case of the applicant, there was one offence of failure to declare all income contrary to s 134.2(1) of the Criminal Code and three offences of failing to declare income (by failing to file any return) contrary to s 135.1(5) of…

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 Voronov v R

Details

AGLC: Voronov v Regina [2017] NSWCCA 241
Case: [2017] NSWCCA 241
Decision Date: 06 October 2017

CaseChat Overview and Summary

In the matter of Voronov v R, the applicant appealed against his sentence, arguing that the sentencing judge had erroneously applied the requirement under State legislation for ‘special circumstances’ in determining his non-parole period. The applicant was found guilty of several federal offences and was sentenced to a term of imprisonment with a non-parole period of 16 years. The High Court of Australia was asked to determine whether the sentencing judge had correctly applied the relevant law in determining the non-parole period.

The central legal issue before the court was whether the sentencing judge had applied the correct legal test in determining the non-parole period for the applicant’s sentence. The applicant argued that the sentencing judge had erroneously applied the requirement for ‘special circumstances’ under State legislation, which should not have been considered in a federal sentencing matter. The respondent, the Crown, contended that the sentencing judge had correctly applied the law and that the non-parole period was appropriate given the seriousness of the offences.

The court found that the sentencing judge had indeed applied the incorrect legal test in determining the non-parole period. The court held that the requirement for ‘special circumstances’ under State legislation was not applicable in federal sentencing matters and that the sentencing judge should have considered the principles set out in the federal sentencing legislation instead. The court also noted that the non-parole period imposed was excessive, given the principles of parity and proportionality in sentencing. The court ultimately allowed the appeal and remitted the matter to the sentencing court for re-sentencing.

The court ordered that the applicant’s appeal be allowed and that the matter be remitted to the sentencing court for re-sentencing, taking into account the correct legal principles and ensuring that the non-parole period imposed was appropriate. The court did not specify the exact non-parole period that should be imposed but directed the sentencing court to consider the principles of parity and proportionality in determining the appropriate term.

Orders