R v Houvardas [2000] NSWCCA 203

New South Wales Court of Criminal Appeal

CITATION : R v Houvardas [2000] NSWCCA 203 FILE NUMBER(S) : CCA 60066/00 HEARING DATE(S) : 18 May 2000 JUDGMENT DATE : 18 May 2000

PARTIES : Regina v Michael Houvardas JUDGMENT OF : Mason P at 1, 26, 28; Heydon JA at 2; Smart AJ at 27

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0983 LOWER COURT JUDICIAL Davidson DCJ OFFICER :

COUNSEL : A J Bellanto QC - Appellant R F Sutherland - Respondent SOLICITORS : Neil J O'Connor - Appellant Commonwealth DPP - Respondent CATCHWORDS : Criminal law - sentencing - applicant author and instigator of offences - applicant sentenced for longer period than principal co-offender - applicant contended sentence offended principle of parity and discriminated against applicant - no error by sentencing judge in circumstances - leave to appeal granted - appeal dismissed LEGISLATION CITED : Crimes Act 1914 (Cth) Regina v Hodges (1997) 95 A Crim R 85 CASES CITED: Lowe v Regina (1984) 154 CLR 606 Postiglione v Regina (1997) 189 CLR 295 Regina v Leonard and Rose (unreported NSWCCA 9 May 1997) DECISION : Leave to appeal granted; appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

060066/00

MASON P HEYDON JA SMART AJ

Thursday, 18 May 2000

REGINA v MICHAEL HOUVARDAS

JUDGMENT

1 MASON P: I ask Heydon JA to deliver the first judgment. 2 HEYDON JA: Michael Houvardas pleaded guilty to four charges of being knowingly concerned in principal offences committed by his wife, Anastasia Houvardas, contrary to s 5 of the Crimes Act 1914 (Cth). The principal offences committed by his wife consisted of one offence of false pretences contrary to s 29A of the Crimes Act and three offences of imposition contrary to s 29B of the Crimes Act. 3 The applicant was sentenced in respect of the s 29A offence to eighteen months' imprisonment to be released after serving nine months, the sentence to date from 27 January 2000. He was sentenced in respect of each of the three s 29B offences to four months' imprisonment. The maximum penalty in relation to s 29A is imprisonment for five years. The maximum penalty in relation to s 29B is imprisonment for two years. 4 For the s 29A offence Anastasia Houvardas was sentenced to imprisonment for six months with immediate release upon security by way of recognisance to be of good behaviour for six months and that a fine be paid of $30,000 at the rate of $1,000 per month. For the other offence she was sentenced to two months. 5 The essential factual position in relation to the s 29A offence was that the applicant, an accountant, prepared a taxation return for his wife for the year 1992 which was signed by his wife. It enclosed a photocopy of a group certificate signed by the applicant which stated that his wife's gross salary for the 1992 year was $104,000 and that tax instalments of $38,650 had been deducted. The supposed employer was Mike Houvardas Investments Pty Ltd which conducted a business called the "Barclay Reception Centre". The return was lodged on or about 19 May 1993. The ATO issued a refund cheque in the amount of $38,650 which the wife banked on 3 June 1993. It went to the benefit of the business in which both the applicant and his wife were beneficially interested. In fact, the wife had been paid no salary in the year in question and no tax instalments had been deducted. 6 The essential factual position underlying the s 29B offences was that returns for the years 1990, 1991 and 1993 were filed enclosing group certificates signed by the applicant but not allocated to Mike Houvardas Investments Pty Ltd and purporting to record tax instalments deducted from a salary paid to the wife. Again the wife in fact had been paid no salary and no tax instalments had been deducted. No refunds were in fact paid in respect of these returns. 7 Although the applicant gave evidence which caused Judge Davidson QC to consider whether the criminality had not extended over a period of years, he found that in truth it extended over a period of only four months. 8 The sentencing judge said that it was common ground that the major culpability rested with the applicant, not his wife. He said: "He was the author and instigator of these offences. I find that Anastasia's culpability in respect of them was that she was overborne by his expertise as an accountant and by perhaps also cultural factors which meant that she was led into these offences by him, whether or not she was led by cultural factors I take that view. If it had not been for his participation in these offences then she would not have been involved in them. Although she did do apparently some bookkeeping work so far as the conduct of the business of the Barclay Reception Centre is concerned, she has no accounting background, her background being that of a school teacher until marriage." 9 The sentencing judge also made findings about relevant subjective factors which were generally favourable to the applicant. 10 Mr Bellanto QC relied on these factors in support of one of his submissions and they are as follows: "3.5 The applicant, an accountant, was declared bankrupt in 1992 following which the family home at Strathfield was repossessed. 3.6 The applicant displayed an inability to recognise his full responsibilities professionally. 3.7 The applicant was personally of good character and general honesty and was a hardworking and devoted family man. 3.8 The offences were an unsophisticated series of offences which were doomed to discovery upon investigation. 3.9 The applicant was motivated by extreme financial pressure and by the need to continue to support his family as best he could. 3.10 The applicant was remorseful. 3.11 The applicant was a person of prior good character who was capable of contributing to the community. 3.12 The applicant suffered a great deal by virtue of his professional misconduct. 3.13 The applicant had prior convictions for minor tax offences which resulted in the imposition of pecuniary penalties none of which on their face would deprive him of any leniency which the court may extend to him. 3.14 There was a delay of approximately four years during which the applicant was under investigation in respect of the four offences. The investigations commenced in August 1993 and the information and summonses were prepared in April 1997." 11 In writing the applicant advanced three arguments in support of the contention that the sentencing judge fell into manifest error, which were supplemented orally, and propounded a further argument orally. 12 The applicant's first argument was that the sentence offended the principle of parity in that, though the wife enjoyed the benefit of the fraud jointly with the applicant, he received a much heavier sentence. 13 In this regard Mr Bellanto made the following points. There was a joint involvement in what had happened, she got the benefit of the funds which were directly deposited into the business account and used for general purposes, she signed and dated the returns, she also signed and dated a letter of 14 September 1993 which accompanied the 1993 return and she claimed interest deductions for the partnership, she was the manageress of the business, she did not draw wages and any drawings in her name but, rather, household expenses were paid and she was very much involved with the applicant's financial affairs. Mr Bellanto drew attention to the expression "degree of connivance" in the respondent's written submissions and characterised the applicant's wife's conduct by the use of that phrase. 14 It may not matter but I do not believe the respondent was seeking so to characterise the wife's behaviour. 15 Finally, Mr Bellanto pointed out there was no evidence that the applicant could have committed the offences without the assistance of his wife. 16 With respect to the submission, in my judgment, it does not demonstrate an error in the sentencing judge's reasoning. He did correctly find and gave appropriate weight to the fact that the applicant was the author and instigator of the offences, the fact that the applicant overbore his wife using his expertise as an accountant and the fact that had it not been for the applicant, the wife would not have been involved. The difficulty confronting the submission was it lacked what might be called positive evidentiary support and to some extent represented - and I am not being critical - the consequences of a change in representation in that while the applicant and his wife were represented below by the same counsel, Mr Bellanto appeared for the applicant alone today. 17 The applicant's second argument was that it was contrary to sound sentencing practice to impose a more severe sentence on an accessory than on a principal offender. He submitted that in law the responsibility should be shared at the very highest equally. He submitted that the involvement of the applicant had been, as he put it, "embellished to justify the higher sentence". He submitted that in basic legal terms the applicant was an accessory and should not be punished beyond the extent to which the principal offender was punished. Mr Bellanto cited Regina v Hodges (1997) 95 A Crim R 85 at 86; Lowe v Regina (1984) 154 CLR 606 and Postiglione v Regina (1997) 189 CLR 295 at 338. Nothing in these authorities specifically supports the proposition relied upon. Rather, they deal with general questions as to what does and does not create a justifiable sense of grievance. Sentencing an accessory more severely than a principal offender does not necessarily create a justifiable sense of grievance. Whether it does will depend on the circumstances of the particular case. The circumstances of this case could not fairly create that sense of grievance because of the role of the applicant as instigator. As the sentencing judge said: "He not only committed these offences but he got his wife embroiled in them too." 18 The third submission was that no consideration was given to whether periodic detention was a sufficient and available alternative. It may be accepted that that option was one which it was appropriate to consider. According to the Crown, the applicant's written submissions to the sentencing judge asked him to take "into consideration on sentence and consider options falling short of full-time custody". There is no reason to conclude that the sentencing judge did not comply with that request. That he did comply with it is supported by the fact that he imposed a non-custodial sentence on the applicant's wife. Further, the sentencing judge said: "A sentence of full-time custody is the only appropriate response". That implies that he considered other responses. There is no reason to suppose that the sentencing judge did not comply with s 17A(1) of the Crimes Act . 19 It was submitted in a case such as this, taking into account the sentencing judge's duty to bear in mind all the options short of full-time custody, the reasoning process should be stated and it was wrong that appellate courts should have to guess at the reasoning of the trial judge. 20 The written argument placed reliance on Regina v Leonard and Rose (unreported NSWCCA 9 May 1997). In that case Grove J rejected a submission that the sentencing judge had to elaborate on each of the sentencing options he rejects, saying rather that it is his duty only to expose his reasons for the chosen option. In this case the sentencing judge, in my opinion, did this. 21 Gleeson CJ gave consideration to an argument that the trial judge in Leonard and Rose should have referred to periodic detention explicitly because on one reading of the Crown's argument it conceded that periodic detention was the appropriate punishment. Sperling J agreed with the reasons of both Grove J and Gleeson CJ. 22 There is nothing to suggest any concession of a similar kind was made by the Crown in the present case. 23 The fourth argument propounded by the applicant drew attention to the subjective factors affecting the applicant's position. Without repeating the matters to which Mr Bellanto drew attention, they centre on the financial difficulties which faced the applicant at the time the offences were committed and the very serious consequences which the pleas of guilty had for him professionally and personally. 24 Though it is a natural human response to Mr Bellanto's eloquent submissions to experience sympathy for the applicant, the trial judge was conscious of all of those factors and in my judgment his conclusion does not fall outside the range of an appropriate sentencing discretion in this case. 25 I propose that leave to appeal be granted but that the appeal be dismissed. 26 MASON P: I agree. 27 SMART AJ: I also agree. 28 MASON P: The orders of the Court will be as indicated. **********