Dela Cruz v R

Court of Criminal Appeal (NSW)|2010-11-30|Before: Simpson J, Blanch J, Hulme J

CITATION: Dela Cruz v R [2010] NSWCCA 333

HEARING DATE(S): 30 November 2010 JUDGMENT OF: Simpson J at 1; Blanch J at 2; Hulme J at 26

(1) Leave to appeal be granted; DECISION: (2) In relation to the first count under s178BA that the sentence of a non-parole period of 2 years to commence 8 April, 2009 and to expire on 7 April, 2011 with an additional term of 1 year to expire 7 April, 2012 be confirmed; (3) The sentence in respect of the second charge under s178BA of imprisonment of a non-parole period of 2 years commencing 8 April, 2011 and expiring on 7 April, 2013 with an additional term of 1 year to expire on 7 April, 2014 be confirmed; (4) The sentence imposed on the count under s193B(2) of the Crimes Act be quashed and instead and taking into account the matters on the Form 1, sentenced to imprisonment for a period of 14 months from 8 February, 2012 and a balance of term of 2 years. The total sentence would be a non-parole period of 4 years from 8 April, 2009 with a balance of term of 2 years and she would be eligible for release to parole on 7 April, 2013. Since that last sentence is under 3 years I direct she be released to parole on 7 April, 2013.

CATCHWORDS: CRIMINAL LAW - obtaining financial advantage by deception - breach of trust - money laundering offence charged additionally to principal offence - no additional criminality - sentence to be concurrent not cumulative

Crimes Act 1900, s178BA(1), s193B(2) LEGISLATION CITED: Criminal Code (Cth), s400.4(1) Criminal Appeal Act 1912, s6(3)

R v George NSWCCA (unreported) 23 September 1994 R v Hare [2007] NSWCCA 303 R v Itaoui [2006] NSWCCA 273 Nahlous v R [2010] NSWCCA 58 Pearce v The Queen (2998) 194 CLR 610 CASES CITED : R v Prasad 2 A Crim R 45 Schembri v Regina [2010] NSWCCA 149 R v Strano [2002] NSWCCA 531 Thorn v The Queen [2009] NSWCCA 294 R v Trim [2002] NSWCCA 82 R v Tripodina 35 A Crim R 183

PARTIES: Amie Dela Cruz (Applicant) Regina (Respondent)

COUNSEL: D O'Neil (Applicant) V Lydiard (Respondent)

SOLICITORS: S O'Connor, Legal Aid Commission S Kavanagh, Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT DATE OF DECISION: 10 December 2009

LOWER COURT MEDIUM NEUTRAL CITATION: R v Amie Dela Cruz

30 November, 2010 Amie DELA CRUZ v Regina JUDGMENT

1 SIMPSON J: I agree with the orders of Blanch J. 2 BLANCH J: The applicant appeared before the District Court and on 10 December, 2009 she was sentenced as follows: 1. On a charge of obtaining a financial advantage by deception on 24 May, 2007 to imprisonment for a non-parole period of 2 years to commence 8 April, 2009 and expire on 7 April, 2011 with an additional term of one year. 2. On a charge of obtaining financial advantage by deception between 6 and 7 April, 2009 to imprisonment for a non-parole period of 2 years commencing on 8 April, 2011 and expiring on 7 April, 2013 with an additional term of one year. 3. On a charge of knowingly deal with the proceeds of crime between 14 May and 10 July, 2007 to imprisonment for a non-parole period of 14 months to commence on 8 August, 2012 and expiring on 7 October, 2013 with an additional term of 27 months to expire on 7 January, 2016.

3 The charges of obtaining financial advantage by deception were contrary to s178BA(1) of the Crimes Act 1900 which carries a maximum penalty of 5 years. The charge of knowingly deals with the proceeds of crime is contrary to s193B(2) Crimes Act 1900 which carries a maximum term of imprisonment of 15 years. The total effective sentence was one of a non-parole period of 4 years and 6 months commencing on 8 April, 2009 with an additional term of 2 years and 3 months.

4 In addition to the above matters, the applicant asked for 2 matters of obtaining financial advantage by deception to be taken into account. It does not appear from the remarks on sentence that his Honour said those matters were taken into account but he did say during the course of his remarks that he knew he was to take those matters into account when dealing with the charge under s193B(2) Crimes Act and his Honour did in fact sign the Form 1 to that effect.

5 The facts were set out in a statement which noted that between February, 2007 and June, 2007 the applicant was employed by Australian Pharmaceuticals Industrial Limited Company (API) as a senior accounts clerk. She devised a scheme where moneys were transferred to her own St George bank account. To achieve that end she prevailed on various fellow employees and the scheme involved the use of a false invoice number which could only be done by a person such as the applicant who had a valid password.

6 On 7 March, 2007 the sum of $21,930.22 was sent to her St George account and on 15 May, 2007 the sum of $53,740 was sent. These are the transactions on the Form 1. Over the next few days she withdrew from her account almost the whole of that amount, which transaction is part of the charge under s193B(2).

7 On 24 May, 2007 $406,725.16 was credited to her account, this being the first count under s178BA and most of that money was drawn out including the transfer of $360,000 from her St George account into her ING account.

8 The applicant left Australia for the Philippines on 11 June, 2007 and in the ensuing days $206,000 was transferred overseas by internet transfers from her St George account. Other transfers followed in July from both her ING account and her St George account.

9 On 15 December, 2008 the applicant commenced employment as an accounts clerk at the Norfolk Group, a company involved in the building industry. On 6 April, 2009 she arranged for a sum of $35,459.22 to be paid into her Bank West account. This is the second charge under s178BA. She was arrested at Sydney airport on 7 April and an amount of $30,558.06 was frozen in her bank account and subsequently forfeited. Of the funds, the subject of the API frauds, $478,395 has not been recovered.

10 This ground asserts that his Honour erred in commencing with the sentencing outcome he wished to achieve and then determining the individual sentences. In the course of delivering his remarks on sentence, the judge said: "the overall sentence of non-parole imprisonment to which the offender should be sentenced would be one of four years and six months imprisonment backdated to commence on 8 April 2009 with an additional term of two years and three months imprisonment. That would mean a total effective head sentence of six years and nine months imprisonment with a total period of non-parole being four years and six months, reflecting a finding of special circumstances of two thirds."

11 That statement occurred after his Honour had set out the facts and relevant submissions and authorities. There was then a luncheon adjournment and after lunch his Honour engaged in a discussion with the lawyers appearing for the prosecution and the defence. The remarks quoted were made during the course of that discussion but it is apparent from the further statements by the sentencing judge that he had worked out individual sentences. Indeed he said: "But it seems to be transparent in the sentencing process that that would be reflected by a sentence on each of the 178B(a) counts whereby the notional head sentence would be one of four years imprisonment to which I would apply the discount for 25% for the plea of guilty. … That would then normally leave a head sentence of three years. Applying the finding of special circumstances, that would mean a non-parole period of two years."

12 It is apparent his Honour had determined the relevant appropriate sentence for each offence but he was concerned with the question of accumulation. He was in fact being careful to ensure he did follow the dictum in Pearce v The Queen (1998) 194 CLR 610 at paragraph 40. Those requirements in Pearce have made the task of sentencing for multiple offences complicated and onerous. Legislation presently before Parliament to remove some of those requirements may simplify the process. Nevertheless, in this particular case I do not believe any error has been demonstrated.

13 This ground asserts his Honour erred in assessing the criminality of the charge of "knowingly deal with the proceeds of crime". It will be seen from the facts in this case that the applicant fraudulently obtained sums of money by transferring them to her bank account and then she withdrew the money from the bank account. No question is raised that the prosecution of this activity as a separate crime is oppressive. The issue raised is whether or not there should have been any accumulation of the sentence for the offence.

14 There have been a number of cases in this Court addressing this issue. In Thorn v The Queen [2009] NSWCCA 294 the Court was dealing with a case where the accused had been charged with fraud offences under the Commonwealth Criminal Code and also with a count of dealing with the proceeds of crime contrary to s400.4(1) of the Code. In the judgment of Howie J at paragraph 27 it was said: "This was an unusual use of a money laundering offence. To the extent that there was an overlap with the fraud offences the charge represented the use of the funds that had been dishonestly obtained under those offences. The criminality was very much in the obtaining of the funds not in their use."

15 He went on to say at paragraph 31: "But here the applicant was merely transferring the money obtained by the fraudulent claims from the company accounts to his personal account or drawing it from an ATM so that he could use it to gamble. He was doing nothing to hide the source or to change the nature of the funds. He was simply gaining access to them. The activity came within the scope of the offence under s400.4, because the offence is so widely drawn. But it was a highly technical version of the offence."

16 His Honour noted that money laundering in its true sense involved dealing with money that was the result of some other person's criminal activity so as to hide its source.

17 In Nahlous v R [2010] NSWCCA 58 this Court was dealing with an accused who had pleaded guilty to an offence of selling unauthorised decoders and also with dealing with the proceeds of crime. The accused sold unauthorised equipment to obtain pay television services and had obtained $15,000 which was recovered. It was his possession of that $15,000 which gave rise to the charge of dealing with proceeds of crime. In that case it was held by the Court at paragraph 17: "We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty."

18 In Schembri v Regina [2010] NSWCCA 149 the Court was dealing with an accused who was sentenced on a number of counts of obtaining a financial advantage by deception and on one count of dealing with the proceeds of crime. The fraud offence related to misstatements to the Australian Taxation Office and the charge of dealing with the proceeds of crime related to his possession of the money so obtained. The Court amended the sentence to make the sentence for dealing with the proceeds of crime totally concurrent with the other sentence and cited Nahlous (supra) and Thorn (supra) with approval.

19 In my view the criminality involved in these charges is significantly the fraudulently obtaining of significant amounts of money and the fact that a large part of that money has not been recovered. The sentencing judge noted there was considerable planning and sophistication in the obtaining of the money. He also noted it was of particular concern that most of the money had been dissipated. Those are indeed significant factors when assessing the criminality involved in the offence of obtaining a financial advantage by deception. I do not believe an additional penalty is appropriate in respect of the charge of knowingly deal with the proceeds of crime in this case. The applicant simply gained access to the funds the subject of the fraud.

20 This ground argues the trial judge made no allowance for the applicant's expressed remorse. He said: "However, I am concerned about the statements of remorse and contrition that are said to found prospects of rehabilitation. I do not think those statements are based on any sense of realism and unfortunately I think that it is also confirmed by the psychologist's report".

21 His Honour was no doubt referring to the statement in the psychologist's report: "Amie's lack of insight into the implications of her offending is also consistent with her entrenched narcissistic disorder. These individuals are very quick to rationalise their misdemeanours and justify their shortcomings with apparently plausible reasons for their self centeredness."

22 I also note the applicant gave evidence before the sentencing judge and he was in a good position to make an assessment of the existence and level of contrition. I do not believe any greater discount should have been given or lesser sentence imposed because of contrition.

23 This ground argues that the sentence is manifestly excessive. To the extent that the sentence for the offence under s193B(2) was made cumulative, I agree. Otherwise I do not believe the sentence was excessive. The sentencing judge was referred to a number of authorities including R v George NSWCCA (unreported) 23 September 1994, R v Itaoui [2006] NSWCCA 273, R v Prasad 2 A Crim R 45, R v Tripodina 35 A Crim R 183, R v Trim [2002] NSWCCA 82 and R v Strano [2002] NSWCCA 531. His Honour was not referred to the decision of this Court in R v Hare [2007] NSWCCA 303 where McClellan CJ at CL annexed to the judgment a series of cases and sentences relating to s178BA. A review of those authorities reveals that the non-parole periods of two years were, in fact, well within the range of sentencing discretion of the sentencing judge particularly when a second fraud of the same nature was perpetrated almost two years after the first.

24 I have noted the affidavit of the applicant who appears to have settled into the prison environment. She has been doing courses and she believes she has addressed her gambling issues. On the other hand the criminality involved in these offences was significant and in accordance with s6(3) of the Criminal Appeal Act 1912 I do not believe that a less severe sentence is warranted in law in respect of the two charges of obtaining financial advantage by deception.

25 Accordingly, I propose that: 1. Leave to appeal be granted; 2. That in relation to the first count under s178BA that the sentence of a non-parole period of 2 years to commence 8 April, 2009 and to expire on 7 April, 2011 with an additional term of 1 year to expire 7 April, 2012 be confirmed; 3. That the sentence in respect of the second charge under s178BA of imprisonment of a non-parole period of 2 years commencing 8 April, 2011 and expiring on 7 April, 2013 with an additional term of 1 year to expire on 7 April, 2014 be confirmed; 4. That the sentence imposed on the count under s193B(2) of the Crimes Act be quashed and instead and taking into account the matters on the Form 1, I would sentence her to imprisonment for a period of 14 months from 8 February, 2012 and a balance of term of 2 years. The total sentence accordingly, would be a non-parole period of 4 years from 8 April, 2009 with a balance of term of 2 years and she would be eligible for release to parole on 7 April, 2013. Since that last sentence is under 3 years, I direct that she be released to parole on 7 April, 2013.

26 HULME J: I also concur and the orders of the Court will be as indicated by Blanch J.

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