R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24 Hearing dates: 1 October 2021 Date of orders: 14 February 2022 Decision date: 14 February 2022 Before: Fullerton J at [1] Adamson J at [210] Hamill J at [219] Decision: R v Rostankovski 1. The Director's appeal against the sentence imposed on Mr Rostankovski be dismissed. R v Hausman 1. The Director's appeal against the sentence imposed on Mr Hausman be dismissed except to vary the sentencing order made by Abadee DCJ on 1 April 2021 in the following limited respect: I am required pursuant to s 16AC of the Crimes Act to set out the period of imprisonment and non-parole period I would have imposed in relation to Count 2 (being the money laundering offence) but for Mr Hausman's undertaking to assist authorities in the future. Accordingly, but for Mr Hausman's undertaking (yielding a 20% discount), I would have imposed a period of imprisonment of 12 years imprisonment for Count 2 (being the money laundering offence) with a non-parole period of 7 years. If Mr Hausman does not adhere to his undertaking to assist in the future, the Commonwealth Director of Public Prosecutions may appeal under s 16AC(3) of the Crimes Act (Cth) against the adequacy of the reduced sentence I have imposed. I am also required to state the penalty that would have been imposed in relation to count 1, the blackmailing offence, but for your assistance. In contrast to the requirements of federal sentencing law, however, the requirement to state the impact of your assistance extends to both the past and the future (s 23(4) of the CSP Act). The discount on this sentence, for past and future assistance, is a combined discount of 25%. That means that but for your past and future assistance, you would have received a sentence of imprisonment on the blackmail offence of 7 years and 6 months with a non-parole period of 4 years and 6 months. [Variation in bold]. 2. In every other respect, the sentence imposed by Abadee DCJ is confirmed. Hausman v R On Mr Hausman's application for leave to appeal the severity of his sentence: 1. Grant leave to appeal. 2. Appeal dismissed. Rostankovski v R On Mr Rostankovski's application for leave to appeal the severity of his sentence: 1. Grant leave to appeal 2. Appeal dismissed. Catchwords: CRIME — Crown appeals — whether excessive allowance for totality — reconciling principles of cumulation and concurrency with totality principle —where offenders sentenced to both State and Commonwealth offences — whether sentences manifestly inadequate — Crown appeal against Rostankovksi dismissed — Crown appeal against Hausman allowed in limited respect — sentence which would have been imposed but for past and future assistance to authorities — Hausman resentenced — cross-appeals against severity of sentences — both respondents/cross-applicants convicted of one count of blackmail contrary to s 249K(2) of the Crimes Act (NSW) and one count of laundering the proceeds of the commission of the blackmail offence contrary to ss 400.3(1) and 11.2A(1) of the Criminal Code (Cth) — Rostankovski additionally convicted of one count of aid and abet fraud contrary to ss 135.1(3) and 11.2(1) of the Criminal Code (Cth) — separate sentences and non-parole periods for State and Commonwealth offences — application of s 19(3) of the Crimes Act (Cth) Rostankovski sentenced to imprisonment for 10 years and 5 months with a non-parole period of 7 years and 2 months — Hausman sentenced to imprisonment for 8 years with a non-parole period of 6 years — whether patent errors of sentencing principle required intervention in a resentencing exercise for both cross-applicants — error in dealing with Rostankovski's prior good character — Crown conceded disparity between Rostankovski's sentence and Hausman's sentence for blackmail — no lesser sentence warranted in law — appeals dismissed Legislation Cited: Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Code (Cth) Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measure) Act 2020 (Cth) Cases Cited: Blake v R [2021] NSWCCA 258 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Chen v R [2010] NSWCCA 224 CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9 Davis v R [2015] NSWCCA 90 Dickson v R [2016] NSWCCA 105 Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 Director of Public Prosecutions (NSW) v Abdulrahman [2021] NSWCCA 114 Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 Director of Public Prosecutions (Vic) v Swingler (2017) 269 A Crim R 526; [2017] VSCA 305 Elshani v R (2015) 255 A Crim R 488; [2015] NSWCCA 254 Fasciale v R (2010) 207 A Crim R 488; [2010] VSCA 37 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 Hildebrand v R [2021] NSWCCA 9 Johnson v The Queen [2004] HCA 15 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Macallister (A Pseudonym) v R [2020] NSWCCA 306 Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McCarthy v R (2011) 206 A Crim R 131 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 O'Grady v R [2015] NSWCCA 16 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Anquetil [2020] NSWSC 995 R v Anthony James Dickson (No 18) [2015] NSWSC 268 R v Dong [2021] NSWCCA 82 R v Faulkner (1972) 56 Cr App R 594 R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 R v Hammond [2020] NSWSC 888 R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 R v Huang [2007] NSWCCA 259; (2007) 173 A Crim R 370. R v Issakadis [2018] NSWSC 378 R v Janceski [2005] NSWCCA 288 R v Kennedy [2000] NSWCCA 527 R v Kitson [2019] NSWSC 1109 R v KM [2004] NSWCCA 65 R v Leroy (1984) 2 NSWLR 441 R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106 R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 R v Vo; R v Tran [2006] NSWCCA 165 R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 RO v R [2019] NSWCCA 183 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 60 Sigalla v R [2021] NSWCCA 22 Woods v R [2020] NSWCCA 219 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 Texts Cited: DA Thomas, Principles of Sentencing, 2nd ed (1979) Category: Principal judgment Parties: The Crown (Appellant / Cross-Respondent) Daniel Hausman (Respondent / Cross-Applicant) Daniel Rostankovski (Respondent / Cross-Applicant) Representation: Counsel: S McNaughton SC / G Wright (The Crown) P English (Hausman) B Walker SC / T Woods (Rostankovski)