Almada v R

Court of Criminal Appeal (NSW)|2015-02-25|Before: Hoeben CJ, Harrison J, Hulme J

Solicitors: Horowitz & Bilinsky Pty Ltd Commonwealth Director of Public Prosecutions File Number(s): 2012/240128; 2012/378129 Decision under appeal Court or tribunal: District Court Date of Decision: 8 August 2014 Before: Blackmore SC DCJ File Number(s): 2012/240128; 2012/371829

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.
HARRISON J: I agree with R A Hulme J.
R A HULME J: Andrew Nicholas Almada ("the applicant") was sentenced by his Honour Judge Blackmore SC in the Sydney District Court on 8 August 2014 in respect of an offence of dealing with money in excess of $100,000 with such money being reasonably suspected of being the proceeds of crime.
The offence is contrary to s 400.9(1) of the Criminal Code 1995 (Cth) and the maximum penalty is imprisonment for 3 years and/or a fine of 180 penalty units.
The applicant asked that his guilt in respect of a further offence be taken into account: an offence of attempting to move out of Australia without a report a sum of cash being greater than $10,000, namely $200,000. That was an offence contrary to s 53(1)(a)(ii) of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth) for which the maximum penalty is imprisonment for 2 years and/or a fine of 500 penalty units.

Facts

There is no dispute about the facts. I draw the following from the summary helpfully provided in the written submissions of counsel for the applicant.
On 30 July 2012 Prabal Islam was in telephone contact with another person identified as Abu Saleh. The following day Islam purchased a number of business and first class airline tickets for travel from Sydney to Dhaka, Bangladesh, departing on 1 August 2012.
At 6pm on 31 July 2012, the applicant and Islam attended a unit in Ashfield that was leased in the name of Saleh. He and Islam left about half an hour later with Islam carrying a bag which he placed into the boot of a motor vehicle.
That same evening, Islam and an unidentified female attended the office of a solicitor in the city and collected another bag.
On 1 August 2012, Islam and Cheuk Fai Chan entered the international terminal at Sydney Airport and met with seven other travellers including the applicant. Islam was carrying a number of bags including the two bags he had collected the previous day. They contained a number of designer label cotton shoe bags.
Shortly after Islam met with the group at the airport, Chan rearranged the contents of one of the bags containing the shoe bags. Islam removed a shoe bag from the other bag and placed it into the applicant's suitcase after which the applicant closed the suitcase. Islam placed shoe bags into the case of another man (referred to as "Mohammad") and then put a further shoe bag in the applicant's suitcase after which the applicant again closed his suitcase.
The group of nine persons then attempted to board a flight to Dhaka. At the Customs primary line they all presented their passports and outgoing passenger cards. The applicant, Islam and Chan had completed their cards by placing an "X" in the box marked "no" in reply to the question, "are you taking out of Australia $10,000 or more in Australian dollars or foreign currency equivalent". The group were then selected for a baggage check and escorted to the Customs Outward Examination area where their suitcases were retrieved.
Islam and Saleh were in telephone contact at around this time during which Islam alerted Saleh to the possibility that the money in the bags would be discovered. When his bags were searched, Customs officers found a total of $359,650 in Australian currency. He admitted that it was his money and that he had also placed money in the bags of the others.
The applicant was asked to provide the combination lock on his suitcase. He did not answer but looked to Islam who replied, "its okay". The applicant then provided the combination code and when his bag was searched the officers uncovered $210,200 in the two shoe bags in his suitcase. He told Customs officers that Islam was responsible for them being in his suitcase and that he had no knowledge of the contents. He explained that he did not ask what was inside the shoe bags because, "he's my friend, I trust him".
Islam had placed a total of $1,023,900 in the various suitcases. He was charged with the more serious offence of dealing with money intending that it would become the instrument of a crime to a value of more than $1,000,000 (maximum penalty 25 years). The learned sentencing judge regarded his offence as "clearly extremely serious", and described his role as being "clearly the most significant of the three offenders".
His Honour regarded the evidence as suggesting that the other two offenders, Chan and the applicant, as having been recruited by Islam. As between that pair, he said that, "Almada appears to be more heavily involved based on the facts".

Subjective features

The applicant was aged 27 at the time of the offence and 29 at the date of sentencing.
He had a prior criminal record for comparatively less serious matters but it included a matter of assault for which on 11 May 2011, on appeal to the Sydney District Court, he was placed on a 18 month good behaviour bond. I note that the fact that he was on conditional liberty, an aggravating factor, appears not to have been noticed.
After referring to the applicant's criminal record as well as that of Chan's the judge remarked that neither could be described as a person of prior good character, but given the comparatively less serious matters on their record some leniency could be applied in each case.
In summarising other aspects of the applicant's subjective case the judge referred to him having a consistent history of employment; he had attended university to obtain some qualifications in construction management; and he told a Probation and Parole officer that whilst he uses drugs, he does not see his use as a problem as it is only recreational. The judge queried the latter of those matters by noting that when the applicant had explained his involvement in the offence he had said that "the events were somewhat confusing due to the fact that he had been using the drug ice on the day".
The judge referred to the fact that the applicant had pleaded guilty and accepted that this indicated a degree of contrition. The judge regarded the plea as having been entered at the first reasonable opportunity and allowed a discount of 25 per cent to reflect a willingness to facilitate the course of justice. He noted without question that a psychologist had opined that the applicant appeared to have involved himself in the offence because of his friendship with Islam.

Ground 1 - The sentencing judge erred in his assessment of the objective criminality of the applicant's role in the s 400.9(1) offence within the hierarchy of offenders

This ground is concerned with a statement made by the judge in the course of his summary of the applicant's subjective circumstances that, "this offender was more significantly involved in the offence than Chan". In written submissions by Ms Beckett, counsel for the applicant, a number of arguments were raised to suggest that there was little, if any, scope to differentiate between the significance of the roles of the applicant and Chan.
The written submissions by counsel for the Crown advanced a number of reasons why the judge's differentiation between the two was justified. In my view it is unnecessary to delve into the detail of these submissions because, as the Crown pointed out, during the proceedings on sentence the applicant's counsel, Mr Terracini SC, conceded that the roles of the applicant and Chan could be distinguished with Chan being "at the lower end of the range". Ms Beckett disputed that this concession was made and sought to characterise exchanges between bench and bar as involving some "cross-communication". I do not see it that way and interpret what was said by counsel as being an unequivocal acceptance that, whilst Islam's role was clearly well above that of the applicant and Chan, Chan's role was less than that of the applicant. Having regard to the matters identified by the Crown, that concession was properly made. The contrary contention now advanced on behalf of the applicant should be rejected: Zreika v R [2012] NSWCCA 44 at [81] (Johnson J).

Ground 2 - The sentencing judge erred in his assessment of the applicant's prospects of rehabilitation as being "guarded at best" on the basis that his involvement in the offence indicated he had a "propensity to involve himself with this offence"

This ground of appeal focuses upon a single sentence within the learned judge's sentencing remarks: "In my view his prospects of rehabilitation, given his propensity to involve himself in this offence must be regarded as guarded at best."
It was submitted that given the offending involved a single episode it was not possible to discern any propensity and none was apparent from an examination of the statement of facts or the applicant's criminal record. The applicant's submissions also drew attention to the contrasting finding in the case of Chan that, "he will likely be fully rehabilitated after serving his sentence". The applicant submitted, in effect, that a similar finding should have been made in his case as well.
The Crown's response was that the single sentence which is the focus of the ground had to be seen in the context of the sentencing remarks overall. It was contended that the judge had taken into account a range of factors in assessing the applicant's rehabilitation prospects.
I would not be prepared to accept that the judge was not mindful of all matters that were relevant to the applicant's rehabilitation prospects. However this ground can be determined by assessing the sentence upon which the applicant directed attention within its more immediate context. His Honour said: "His psychologist opined that he appears to have involved himself in the offence because of his friendship with Islam. However the very nature of the offence would have alerted an intelligent man to the seriousness of what he was doing. Very few people have more than a million dollars in cash. The friend he knew had no reasonable basis for possessing that money other than it was likely to be the proceeds of some serious criminal activity. Even a cursory consideration of those facts would have alerted this offender to the danger of becoming involved in this offence, and yet he continued."
I take what his Honour was intending to convey in this passage as being that the willingness of the applicant to so readily and unquestioningly involve himself in such serious offending raised a question about his rehabilitation prospects. That was a conclusion that was well open to his Honour. There is no merit in this ground.

Ground 3 - The sentencing judge erred by finding, and taking into account as an aggravating feature of the offence, that the applicant "knew" Islam had "no reasonable basis [for] possessing that money other than it was likely to be the proceeds of some serious criminal activity"

This ground was abandoned at the hearing of the application.

Ground 4 - The sentence imposed upon the applicant was manifestly excessive

The applicant relied upon the maximum penalty for the offence of three years in comparison with the undiscounted starting point of two years as well as general sentencing principles, comparable cases and statistics in support of the proposition advanced by this ground which was to the effect that the sentence was unreasonable or plainly unjust: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Markarian v The Queen [2005] HCA 25; 228 CLR 357.
I have had regard to the cases and statistics in the limited way such matters are accepted to be useful. On their own, I do not see them as compelling a conclusion of manifest excess. They were not, however, contended to make good the ground on their own.
Ms Beckett, in her well-researched and helpful written submissions (as equally were the submissions for the Crown), provided the court with reference to authorities in which there are discussions about the assessment of the seriousness of, and the determination of sentence for, offences of this type: see, for example, R v Ansari [2007] NSWCCA 204; 70 NSWLR 89; R v Li [2010] NSWCCA 125; 202 A Crim R 195; R v Huang; R v Siu [2007] NSWCCA 259; 174 A Crim R 370; R v Guo [2010] NSWCCA 170; 201 A Crim R 403; and R v Ly [2014] NSWCCA 78.
It may be readily accepted that the applicant's offending conduct occurred on a single occasion over a relatively short period of time; his culpability was significantly less than that of the co-offender Islam; and the quantum of money involved was just over double the minimum threshold of $100,000 (in the context of there being no upper limit). There was no evidence of the applicant standing to derive any profit from his endeavours except for a free holiday in Bangladesh with business class travel. There was also no evidence that the applicant knew precisely the amount of money that was within his suitcase.
Against matters such as those, however, is the fact that the applicant associated himself with what he should readily have appreciated was a planned endeavour to take out of the country a significant amount of money. He endeavoured to deceive the Customs authorities by falsely declaring that he had no more than $10,000 in his possession.
The sentencing judge was clearly correct in holding that a sentence that reflected general deterrence was required. The importance of general deterrence in sentencing for money laundering offences has been repeatedly emphasised, although I accept the applicant's submission that this is of greater significance in cases of offending over an extended period of time: R v Huang; R v Siu at [36]; R v Guo at [96].
The applicant's subjective case included that he had a prior criminal record of a few relatively minor matters but there was the aggravating feature that he was subject to a good behaviour bond at the time. He also had a longstanding problem with drug use which prompted the judge to make it a condition of the recognizance release order that he be supervised with particular attention to continuing drug rehabilitation.
Having regard to all the circumstances, I acknowledge that views might differ about the severity of the sentence imposed, but I am clearly of the view that it cannot be characterised as manifestly excessive. I am not persuaded that this ground has been made out.

Orders

I propose the following orders: 1. Leave to appeal against sentence allowed. 2. Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2015

Anti-Money Laundering and Counter Terrorism Financing Act 2006(Cth)

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