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

1. BATHURST CJ: I agree with McCallum J.

2. HOEBEN CJ at CL: I agree with McCallum J and the orders which she proposes.

3. 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.

4. 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.

5. 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.

6. 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 the Criminal Code.

7. The trial began on 24 June 2010 and ran for several weeks. On 28 July 2010, the Crown completed his closing address to the jury. The following day, the applicant failed to appear. The applicant’s mother, who was representing herself, did appear. After delaying the trial for a short period and in the absence of any explanation for the applicant’s failure to appear, the judge issued warrants for his arrest (in the name on the indictment and various pseudonyms by which the applicant is known). Her Honour then proceeded with the trial in the applicant’s absence. The applicant’s barrister made a closing address on his behalf and the applicant’s mother made her closing address. The judge then summed up the case and the jury retired to deliberate its verdicts. Perhaps unsurprisingly in the circumstances, the applicant’s mother was remanded in custody from that date.

8. On 2 August 2010, the jury returned with verdicts of guilty on all counts on the indictment.

9. The proceedings on sentence were listed for 17 September 2010. The applicant had not been arrested by that date and did not appear. The judge proceeded to sentence the applicant’s mother. She was sentenced to a total effective sentence of imprisonment for 6 years and 6 months with a non-parole period of 4 years. The individual sentences imposed were as follows:

Count	Offence	NPP	Full Term	Sentence
2	Dishonestly cause a loss	2 years	2.5 years	Concurrent
4	Dishonestly cause a loss	2 years	2.5 years
1	Defraud	3.5 years	6 years	Concurrent commencing after 6 months served on counts 2 & 4
3	Defraud	3.5 years	6 years
5	Obtain financial advantage	3.5 years	6 years
6	Dishonestly cause a loss	3.5 years	6 years

10. The judge also made a reparation order against the mother in the sum of $1,906,286.65.

11. The sentencing proceedings against the applicant were stood over to 4 February 2011 for mention. In the meantime, the applicant was arrested but, presumably for want of complete information, was granted bail the same day. He did not appear on 4 February 2011.

12. The sentencing proceedings were fixed for 29 April 2011. The applicant did not appear on that date but was legally represented, presumably pursuant to the initial retainer at trial. On the adjourned date, the Crown submitted that the judge should proceed to sentence the applicant, noting that her Honour was familiar with the evidence that had been led at the trial. In the circumstances, the applicant’s legal representative, who had had no contact with either the applicant or his family, was confined to acknowledging that the Court had power to deal with the applicant in his absence; he otherwise made no submissions.

13. The judge asked the Crown whether there were any matters which should result in a different sentence for the applicant from that imposed on his mother. The Crown said there were not and indeed invited the judge to make the same findings of fact in respect of the applicant as had been made in respect of the mother, including the proposition that they were both principals in the business; that their roles in the conduct of the business were different but of equal importance; that the applicant had greater control of certain aspects of the business including supervisory roles and control of the factory and delivery of collection of clothing but that the mother had a different role; that both offenders had deliberately arranged their affairs so as to avoid the payment of their various taxation obligations and that in each case the fraud was premeditated and relatively sophisticated.

14. The Crown submitted that the area in which there was some minor departure between the two cases fell in her Honour’s treatment of the mother’s subjective case noting that, in the case of the applicant, there was simply no evidence as to any subjective circumstances apart from the fact that, obviously, the applicant was significantly younger than his mother.

15. The judge noted that the principle of parity required “a similar outcome”, adding:

“the only consideration I might give is in relation to the ratio of non-parole to parole period. I don’t have any subjective circumstances on which to make any finding that there should be any substantial parole period as opposed to non-parole period”.

16. The Crown agreed and noted that, since the mother had been sentenced, the High Court had handed down its decision in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45. Her Honour responded by saying “60% is no longer the norm”.

17. In a short ex tempore judgment (which, with the consent of both counsel, incorporated by reference her Honour’s detailed findings recorded at the time she sentenced the mother), the judge sentenced the applicant to an effective total sentence of imprisonment for 6 years and 6 months (the same as in the case of the applicant’s mother) but with a non-parole period of 5 years compared with 4 years in the case of his mother. A reparation order was made in the same terms as in respect of the mother.

18. The individual sentences imposed on the applicant were as follows:

Count	Offence	NPP	Full Term	Sentence
2	Dishonestly cause a loss	2 years	2.5 years	Concurrent
8	Dishonestly cause a loss	2 years	2.5 years
9	Dishonestly cause a loss	2 years	2.5 years
10	Dishonestly cause a loss	2 years	2.5 years
1	Defraud	4.5 years	6 years	Concurrent commencing after 6 months served on counts 2, 8, 9 & 10
7	Obtain financial advantage	4.5 years	6 years

19. The applicant remained at large for almost 4 years. He was arrested on 11 March 2015 and brought before the sentencing judge on 1 April 2015 so that commencement dates for the individual sentences could be fixed. On that date, her Honour mistakenly informed the applicant that he had been sentenced to a term of imprisonment for 6 years with a non-parole period of 4 years and 6 months. On the strength of that error, her Honour indicated that the applicant would be eligible for release on parole on 10 September 2019. The error was identified in the course of consideration of an appeal and was corrected by the sentencing judge on 27 June 2016.

20. The Crown also invited her Honour on that date to fix a single non-parole period in accordance with s 19AB of the Crimes Act 1914. Her Honour fixed a non-parole period of five years commencing on 11 March 2015 and expiring on 10 March 2020.

21. The sole ground of appeal is:

The sentencing judge erred by applying a requirement of “special circumstances” in determining the period of the applicant’s non-parole period when sentencing under the Crimes Act 1914 (Cth)

22. In her short ex tempore judgment sentencing the applicant in his absence, the judge said:

In relation to sequence 1 for Mr Voronov, I propose to sentence him to a term of imprisonment of 6 years, taking into account, as I have indicated, the lack of information I have about his personal circumstances, a lack of finding I can make about any special circumstances or prospects of rehabilitation. I propose to make a non-parole period of 4 years and 6 months.

23. As to the total effective sentence, her Honour said:

That is my intention to [sic] relation to the global sentence, a non-parole period of 5 years, a total term of 6 years and 6 months to reflect the seriousness of the offence and the non-parole periods it required.

24. Her Honour’s judgment did not otherwise address the different non-parole period fixed in respect of the applicant compared with that fixed in respect of his mother.

25. In the circumstances of this case, it is appropriate to have regard to exchanges during argument to shed light on those brief remarks. The Crown did not oppose that course and indeed relied on the transcript of the sentencing proceedings in her written submissions in this Court.

26. As already noted, the judge had remarked that the principle of parity required “a similar outcome”, the only difference being the absence of any subjective case in respect of the applicant. Immediately before giving her ex tempore judgment, the judge said:

And it would seem to be that if I make similar orders but slightly longer non-parole periods and slightly shorter parole periods I would be complying with my need to address the lack of special circumstances, if there are any. The difference in special circumstances and the High Court decision in Hili and Jones.

27. The Crown agreed. Her Honour then proceeded to deliver judgment “right away”. It may be noted that her Honour had intended to deal with the matter later in the day so as to have an opportunity to remind herself of the terms of her sentencing judgment given over seven months earlier in respect of the applicant’s mother. However, the Crown informed her Honour that he had to be at the airport by 1pm and asked whether her Honour would instead deal with the matter at 11am. The transcript reveals that, on top of the considerable listing pressures her Honour was already under that day, she was good enough to accommodate the Crown in that respect and so placed herself under additional pressure. I wish to emphasise that I mean no criticism of her Honour in that respect (on the contrary) but only to note the myriad burdens of her Honour’s day.

28. The applicant’s single ground of appeal rests on the contention that her Honour’s reference to “special circumstances” should be understood as an erroneous reference to s 44(2B) of the New South Wales legislation, the Crimes (Sentencing Procedure) Act 1999 (NSW), which of course had no application in sentencing for Commonwealth offences.

29. The Crown submitted that the structure and language of the judge’s reasons considered together with her comments during argument set out above do not support that conclusion. It was submitted that the difference between the two non-parole periods was rather the result of her Honour’s consideration of the subjective case presented in respect of the applicant’s mother compared with the absence of any subjective case for the applicant due to his having voluntarily absented himself from the proceedings. Certainly, the two sentencing tasks were distinguishable on that basis and were so distinguished by her Honour. But it does not follow that the applicant’s complaint is not made out.

30. Consideration of this issue is complicated by her Honour’s reference to the High Court’s decision in Hili and Jones. As already noted, in referring to that decision, her Honour remarked “60% is no longer the norm”. More accurately, the decision holds that there is and should be no judicially determined “norm” or starting point for the percentage of a term of imprisonment that a federal offender should actually serve; the discretion reposed in the Court in accordance with the terms of the federal statute is not qualified by any superimposed judicial gloss.

31. It is difficult to know what influence the High Court’s decision in Hili ought to have had on the task of sentencing the applicant in the present case. If the applicant’s mother was sentenced by reference to the application of the so-called norm of 60%, considerations of parity would suggest the application of a similar ratio for the applicant, subject only to any relevant difference between their subjective cases. Conversely, the decision in Hili made clear that any norm thought to apply when the mother was sentenced did not correctly form part of the sentencing exercise.

32. In any event, the language in which the judge expressed herself cannot be ignored. A similar ground of appeal was considered by this Court in Elshani v R [2015] NSWCCA 254, coincidentally an appeal from a sentence imposed by the same judge. There, as here, the judge had referred when sentencing an offender for federal offences to “a finding of special circumstances” (here, “a lack of finding I can make about any special circumstances”). The Court of Criminal Appeal acknowledged the pressures of work under which the District Court operates and the necessity for sentencing judges in that Court to despatch matters quickly. Making due allowance for those considerations, the Court was persuaded that the judge had mistakenly applied the State rather than the Commonwealth legislation: at [22].

33. The Crown submitted that any such suggestion may be dismissed in the present case, since her Honour had careful regard, in her remarks sentencing the applicant’s mother, to particular sections of the Commonwealth legislation. That is true. However, as explained above, the judge sentenced the applicant over 7 months later and under constrained circumstances. Her Honour (with respect, appropriately) adopted and incorporated her findings in respect of the applicant’s mother; it is quite possible notwithstanding the careful language of the earlier judgment that her Honour no longer had the Commonwealth provisions at the forefront of her mind when she came to sentence the applicant.

34. In my view, the most telling fact is her Honour’s express reference to an inability to find “special circumstances”. That strongly indicates some inadvertent conflation of the two regimes. That is confirmed by a consideration of the non-parole period in fact fixed, which is about 75% of the total effective sentence. That of course is the default position under the State legislation which must be applied unless there is finding of special circumstances.

35. The applicant’s submissions have persuaded me that, for reasons that are entirely understandable, the judge inadvertently and mistakenly approached the sentencing task on the basis that, in the absence of any subjective case presented by the absent offender, the non-parole period should be that dictated by the application of the State legislation.

36. In the event of re-sentence, the applicant relies on the affidavit of Tamryn Beverage attaching copies of records held by corrective services in respect of the applicant. Those records show that the applicant is regarded as a good prisoner. He has undertaken a number of courses whilst in prison including commencing the HSC (it is not clear from the records whether that has yet been completed successfully). He has incurred no adverse reports and is described favourably in the case notes. As submitted on the applicant’s behalf, that material suggests that the applicant has good prospects of rehabilitation.

37. At the time the applicant was sentenced, the judge was faced with, on the one hand (in the case of the mother), a subjective case carefully analysed in a pre-sentence report and, on the other hand, no subjective case for the offender; only the information that he had absconded.

38. On the material before this court, there is little to distinguish the subjective cases. It must be accepted that the applicant did abscond but he now has the benefit of an impressive record of good conduct in prison which provides a firm basis for accepting that he has good prospects of rehabilitation. Ironically, his case on that issue is now probably stronger than was the case for the mother; she was openly defiant at the time she was sentenced. She maintained her innocence and said she had no remorse for something she did not do.

39. In all the circumstances, I consider it appropriate to re-sentence the applicant so as to fix the same non-parole period as was fixed in the sentence imposed on his mother. The language of s 7 of the Criminal Appeal Act 1912 (NSW) suggests that the Court has power in an appropriate case to determine an appeal against sentence by varying the sentence. Having regard to the limited basis of the present appeal, I do not think it is necessary to quash the sentences imposed on the applicant; the appeal can conveniently be disposed of by varying the non-parole period fixed below.

40. For those reasons, I propose the following orders:

1. that leave to appeal be granted;

2. that the non-parole period fixed on 27 June 2016 in respect of the sentences imposed in the District Court be varied to a non-parole period of four years commencing on 11 March 2015 and expiring on 10 March 2019.

41. The applicant will be eligible for release on parole on 10 March 2019.

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Decision last updated: 06 October 2017