Frahm v Regina

Judgment 1HOEBEN CJ at CL: Offences and sentence The applicant entered pleas of guilty to offences of larceny, contrary to s117 of the Crimes Act 1900 which has a maximum penalty of imprisonment for 5 years and knowingly deal with the proceeds of crime, contrary to s193B(2) which has a maximum penalty of imprisonment for 15 years. 2On 6 February 2013 the applicant was sentenced by Judge Maiden SC in the Newcastle District Court as follows: For the offence of knowingly deal with the proceeds of crime, imprisonment with a non-parole period of 2 years, commencing 3 August 2012 and expiring 2 August 2014 with a balance of term of 1 year expiring 2 August 2015. For the offence of larceny, a conviction with no other penalty pursuant to s10A of the Crimes (Sentencing Procedure) Act 1999. 3The applicant seeks leave to appeal on a single ground: The sentence imposed for the offence of knowingly deal with the proceeds of crime is manifestly excessive. Factual Background 4On 13 July 2012 a robbery occurred in Scott Street, Newcastle. The victim was robbed of her handbag containing personal items, a wallet, passports and $25,475.95 in cash, which she had just withdrawn from the Commonwealth Bank. Three persons were involved and the plan was to use a car to escape after the robbery. The plan was foiled when bystanders blocked the path of the getaway car, causing one of the offenders to run from the car with the handbag containing the personal items and $25,475.95 in cash. He ran into a nearby convenience store and dumped the bag after removing approximately $10,000 for himself. He fled on foot, leaving the handbag containing the personal items and the remaining $16,000 on the floor of the convenience store. 5The applicant had just arrived in Newcastle, having caught a bus from Toronto. He was standing at the bus stop when the robbery took place and watched the offenders remove the handbag from the victim. He saw one of the offenders run inside the convenience store with the handbag. Immediately after that offender exited the store, the applicant entered holding a blue cooler bag in his hands. The applicant walked to where the victim's handbag had just been dumped, picked it up and placed it inside his blue cooler bag. He then walked directly out of the store without making any purchase. The applicant was not associated with the persons who carried out the robbery and had no involvement in the robbery. 6The applicant walked around the corner into a laneway, looked inside the handbag and saw that it contained about $16,000 in cash. He and his girlfriend then caught a taxi to Charlestown Square where they spent some of the money on items of clothing. Some time later they returned to the caravan park at Freemans Waterhole where they were living and paid $1,000 for rent. They also purchased a car from one of the residents at the caravan park. 7The applicant and his girlfriend later secreted some of the stolen cash in their caravan and travelled to a nearby hotel to play the poker machines with the money they had taken with them. They spent the night at the Ibis Motel in Newcastle. All of this was paid for using cash from the stolen handbag. 8The following day, they returned to their caravan at Freemans Waterhole and discovered that it had been broken into and that the remaining proceeds of the robbery had been stolen. Police were notified of the break in and later attended to take fingerprints. During the course of this procedure, police observed clothing and the blue cooler bag and advised Newcastle Detectives. As a result, the applicant was arrested several days later. He participated in an ERISP with Taree Police, making full admissions as to his involvement in the larceny of the handbag and his subsequent dealings with the money after the larceny. 9The handbag contained the following items: Louis Vuitton wallet. 2 Chinese passports. Bankcards. Driver's licence. Personal cards and papers. $16,000 in cash. The total value of the items stolen was $17,590. The only property recovered was the car, which had been purchased for $1,500. Remarks on sentence 10In relation to the applicant, his Honour made the following observations and findings. (i) He had a lengthy criminal history and a lengthy experience with drugs, including heroin, ice and other serious drugs. (ii) He was not part of the earlier robbery, but engaged in these offences spontaneously when the opportunity presented itself. (iii) All of the monies were disposed of in the space of 5 days, including the money that was stolen from the caravan. (iv) Upon being contacted by the police, the applicant made a full confession and admissions and was therefore entitled to a discount of 25 percent on his sentence. (v) His criminal record was "appalling". It included many matters such as break and enters, stealing, a serious assault matter and a further break and enter for which he received a period of imprisonment. (vi) While waiting to be sentenced, the applicant spent time at Bennelong's Haven, a rehabilitation facility, and that period of time was to be regarded as quasi custody. (vii) This was a most serious offence because the applicant took the whole of the money and there was no attempt to return any part of the $16,000 at any time. (viii) The applicant's decision to engage in the offending occurred when he was affected by serious drugs and when his intellectual functioning was not fully competent. (ix) An overriding consideration, while taking into account his confession and remorse, was specific deterrence and general deterrence. (x) Where monies are taken from an enterprise of crime and then fully spent without a chance of repayment, a significant period of custody was called for. Subjective Case 11No reports were tendered on behalf of the applicant on sentence. He did, however, give evidence. In the remarks on sentence his Honour accepted the applicant's evidence but did not refer to it in any detail. Given the nature of the single ground of appeal relied upon, it is necessary to say something about the applicant's evidence and his subjective case. 12The applicant left school before finishing Year 8 and started using amphetamines and ice when he was aged about 13. He was charged with a number of offences as a child, commencing when he was aged 15. Thereafter, he had been "in and out" of juvenile detention centres. While in detention, he completed Year 10 and obtained his forklift licence. He studied hospitality at Tafe and worked as a baker at Tip Top "on and off" for three years. He had been in a relationship from which a child now aged 9 was born. He had relapsed into drug use and served various prison sentences. He was aged 29 at the time of sentence. 13At the time of the offending, he had been living in the caravan park for about 6 to 8 months. He was unemployed and using amphetamines on a daily basis. 14After his arrest, he had been bailed to reside at Bennelong's Haven, where he was drug free. He had been taken from there to hospital for the treatment of gallstones. In hospital he had been given morphine for the pain. After his discharge from hospital, he did not return to Bennelong's Haven and was arrested shortly afterwards for breaching his bail conditions. 15He said that he would like to return to a rehabilitation program, since this was the first time that he had attempted to rehabilitate himself. Although the applicant did not say so in terms, a reasonable inference from his evidence is that as a result of being given morphine and Oxycontin in hospital, he had relapsed into drug use which is why he did not return to the rehabilitation centre upon his discharge. Submissions 16The applicant submitted that the notional start point for the sentence was 4 years. This was plainly unjust or unreasonable in the sense referred to in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25] because the notional start point was too high and resulted in a sentence which was manifestly excessive. 17The applicant submitted that the offence of knowingly deal with the proceeds of crime (s193B) was found within Pt 4AC of the Crimes Act under the heading "Money Laundering". He submitted that the way in which his offence was committed was very different to what might be regarded as the usual type of offending prosecuted under this section. This was particularly so when regard was had to the circumstances of the offence: (a) The applicant was not part of the robbery. (b) The decision to steal the handbag was spontaneous. (c) His decision-making was affected by drugs and his intellectual functioning was not fully competent. (d) The amount of money disposed of ($16,000) was considerably less than many other offences dealt with under the section. (e) There was a significant lack of sophistication in both the stealing and disposal of the money. 18While accepting the limitation of the Judicial Commission's statistics, the applicant referred to six specific cases: Dela Cruz v R [2010] NSWCCA 333; Sills v R [2011] NSWCCA 271; Yow v R [2010] NSWCCA 251; Youkhana v R [2013] NSWCCA 85; Ryan v R [2011] NSWCCA 250; Ali v R [2008] NSWCCA 60 as indicating factual circumstances where the offences were more serious than here, but where the sentences imposed were similar or less. The applicant submitted that these cases demonstrated that this sentence was manifestly excessive. Consideration 19As a matter of principle, submissions based on a small selection of cases produce a result favourable to an applicant, is not an approach which has found favour in this Court. It is, of course, always possible to find cases which favour a particular outcome. This selection of cases is so small that it cannot demonstrate a sentencing trend. Each case of necessity depends upon its own particular facts and a selection of cases in this way does no more than demonstrate that a particular outcome occurred in each of the nominated cases. A small selection of cases such as this does not and cannot demonstrate that a particular sentence was manifestly excessive. 20In the absence of any clearly defined sentencing trends, a determination of whether a particular sentence is manifestly excessive will depend very much upon the particular facts of the case and the applicability of the approach set out by the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian when they said: "25 As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy". ... 27 Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 28 ... As the whole Court pointed out in Lowndes v The Queen, a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion." 21In these proceedings the applicant has not sought to identify specific error. What the applicant has sought to do is to demonstrate latent error by arguing that the sentence was "unreasonable or plainly unjust". The applicant has sought to achieve that result by reciting favourable findings by the sentencing judge and by reference to six cases to which reference has been made. The difficulty with reciting the favourable findings made by the sentencing judge is that it merely emphasises that the sentencing judge clearly took those matters into account when exercising his discretion and fixing the sentence. As his Honour correctly appreciated, this was a case where specific deterrence and general deterrence were important. Moreover, the commission of this offence against the background of his extensive criminal record gave rise to considerations of retribution and the protection of society (Veen v R (No 2) [1988] HCA 14; 164 CLR 465). 22It is clear from a consideration of cases involving this offence, that it is an offence which may be committed by various means involving different criminality and for which no proper sentencing range can be discerned from the limited cases available. One of the difficulties with considering cases such as the six to which the Court's attention was directed, is that where a number of offences have been committed, the principle of totality requires that restraint be exercised in fixing sentences for individual offences so as to avoid a crushing and inappropriate result. Consequently, to look at such a sentence in isolation is of limited value. 23His Honour recognised that the offence was not one of the more serious proceeds of crime matters but in itself, it was a serious matter because the applicant by his actions deprived the owner of $16,000, having made no attempt to return the money, either that day or subsequently. His choice not to return the bag, nor to account for any of the money, was not made on the spur of the moment but was a decision which was maintained and confirmed over the ensuing days until the balance of the monies was stolen from the caravan. 24Despite the inappropriateness of a consideration of individual cases, the particular cases to which the applicant referred to do not either individually or collectively demonstrate that the sentence imposed by his Honour was manifestly excessive. 25In Dela Cruz v R, the sentence for knowingly deal with the proceeds of crime was complicated by a plea of guilty to a number of fraud offences. Questions of accumulation and totality influenced the length of the sentence. The appeal was allowed on the basis that an additional penalty for this offence was not appropriate when account was taken of the fraud offences. The case does not provide assistance to the applicant. 26Sills v R turns very much on its own facts. The applicant had pleaded guilty to being an accessory after the fact to an offence of break enter and steal committed by his sister and to knowingly deal with the proceeds of crime. The applicant had driven his sister from the scene of a break and enter offence, given her advice as to how to avoid detection and was given some of the proceeds. He admitted to receiving approximately $3,800. The applicant was a former police officer, who suffered from PTSD and depression, had a gambling addiction and was serving his sentence under extremely onerous circumstances. Because of its special and unusual facts the case provides no assistance to the applicant. 27The applicant in Yow v R pleaded guilty to 9 dishonesty offences and knowingly deal with the proceeds of crime. There were also a number of Form 1 documents covering 33 offences. Once again the sentence imposed in respect of the knowingly deal with the proceeds of crime was complicated by considerations of totality because of the need to take into account the dishonesty offences. The knowingly deal with the proceeds of crime offences related to the applicant's dealing with proceeds from his own dishonesty offences involving the possession and use of counterfeit credit cards. 28Youkhana v R involved the applicant pleading guilty to knowingly dealing with the proceeds of crime (being an amount of in excess of $4.5 million), doing an act with intent to pervert the course of justice, giving evidence before the NSW Crime Commission which to her knowledge was false and conducting transactions so as to avoid reporting requirements. The applicant was actively involved in efforts to hide large sums of money, the proceeds of her husband's illegal activities, and appears to have enjoyed a lavish lifestyle with the proceeds. The sentence for knowingly dealing with the proceeds of crime was complicated by the need to sentence for the other offences. 29In Ryan v R the applicant pleaded guilty to six dishonesty offences and knowingly dealing with the proceeds of crime. There were 34 offences for dishonesty on a Form 1 taken into account on sentence for the offence of knowingly dealing with the proceeds of crime. The offences involved identity theft, accessing accounts and credit cards and using stolen credit cards. The factual basis for the offence of knowingly dealing with the proceeds of crime is not specified in the decision. No assistance is provided for the applicant by this case. 30In Ali v R the applicant pleaded guilty to knowingly dealing with the proceeds of crime ($490,000), knowingly possess a false travel document, possess instruments for making false instruments, possess false instrument with intent to use, attempt to obtain credit by fraud, together with a further 10 offences to be included on a Form 1. All sentences were concurrent, which makes an examination of the sentence for knowingly deal with the proceeds of crime quite unreliable. This is particularly so when that offence was referable to cash found at business premises when searched by the police. 31It is clear from a consideration of only these six cases that this is an offence which may be committed by various means involving different criminality and for which no proper sentencing range can be discerned by reference to particular examples. Where the offender's activity is limited to dealing with the proceeds of their own offences, principles of totality are particularly important because an additional penalty for the offence may not be appropriate where there is no additional criminality. That was not the situation here. 32In the absence of any error, either patent or latent, being established and in the absence of any error in the exercise of the sentencing discretion, this ground of appeal must fail. 33The order which I propose is that leave to appeal be granted, but that the appeal be dismissed. 34SCHMIDT J: I agree with Hoeben CJ at CL. 35BARR AJ: I agree with Hoeben CJ at CL.