[2016] HCA 25
Cameron v The Queen (2002) 209 CLR 339
[2002] HCA 6
Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556
[2017] NSWCCA 301
DL v The Queen (2018) 265 CLR 215
[2018] HCA 32
Huang v R (2018) 332 FLR 158
Source
Original judgment source is linked above.
Catchwords
[2016] HCA 25
Cameron v The Queen (2002) 209 CLR 339[2002] HCA 6
Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556[2017] NSWCCA 301
DL v The Queen (2018) 265 CLR 215[2018] HCA 32
Huang v R (2018) 332 FLR 158[2018] NSWCCA 70
Johnston v R [2017] NSWCCA 53
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Khalid v R (2020) 102 NSWLR 160[2020] NSWCCA 73
Parente v R (2017) 96 NSWLR 633[2017] NSWCCA 284
R v Gittani [2002] NSWCCA 139
R v Institoris (2002) 129 A Crim R 458[2002] NSWCCA 8
R v Rohde (1985) 17 A Crim R 166
R v ThomsonR v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 309
Sabbah v R (Cth) (2020) 283 A Crim R 78[2020] NSWCCA 89
Stevens v R [2009] NSWCCA 260
Tyler v RChalmers v R (2007) 173 A Crim R 458[2007] NSWCCA 247
Van Haltren v R (2008) 191 A Crim R 53[2008] NSWCCA 274
Weber v R [2020] NSWCCA 103
Xiao v R (2018) 96 NSWLR 1
Judgment (15 paragraphs)
[1]
The Applicant's Offences
The Applicant pleaded guilty to 39 offences committed in 2014 and 2015 which fell into the following categories:
1. 17 counts of uttering counterfeit money (Euros) contrary to s.7(1) Currency Act with a maximum penalty for each offence of 12 years' imprisonment and/or a fine of $122,400.00;
2. 21 counts of producing a false passport to a designated reporting agency contrary to s.137(1) Anti-Money Laundering Act with a maximum penalty for each offence of 10 years' imprisonment and/or a fine of $102,000.00; and
3. one count of possession of counterfeit money (Euros) contrary to s.9 Currency Act, which prescribes a maximum penalty of 10 years' imprisonment and/or a fine of $102,000.00.
In addition, the Applicant requested the sentencing court to take into account 98 matters on a Schedule under s.16BA Crimes Act 1914 (Cth) which included:
1. 36 offences of uttering counterfeit money (Euros) contrary to s.7(1) Currency Act; and
2. 62 offences of receiving a designated service (12 offences of opening a bank account and 50 offences of exchanging currency) from a bank using a false name contrary to s.140 Anti-Money Laundering Act which, if prosecuted separately, has a maximum penalty of imprisonment for two years and/or 120 penalty units.
As noted earlier, the sentencing Judge imposed a total effective sentence of imprisonment for 10 years and six months with a single non-parole period of seven years fixed in accordance with s.19AB Crimes Act 1914 (Cth).
The following table sets out the counts on the indictment, the offence descriptions and the sentence imposed on each count which gave rise to the total effective sentence:
Count Offence Description Sentence
35 Utter counterfeit currency Two years and six months' imprisonment commencing on 8 January 2015
36 Possess counterfeit currency
37-39 Produce false document to a reporting agency 15 months' imprisonment commencing on 8 January 2015
7, 10-11 Utter counterfeit currency Two years' imprisonment commencing 8 January 2016
8, 9, 12-13 Produce false document to a reporting agency 15 months' imprisonment commencing 8 January 2016
15, 17, 19, 22-23 Utter counterfeit currency Two years' imprisonment commencing 8 January 2016
14, 16, 18, 20, 21, 24 Produce false document to a reporting agency 15 months' imprisonment commencing 8 January 2016
2, 3, 5 Produce false document to a reporting agency Nine months' imprisonment commencing 3 July 2017
25, 27, 29, 34 Utter counterfeit currency Two years' imprisonment commencing 8 January 2017
31 Utter counterfeit currency 21 months' imprisonment commencing 8 January 2017
26, 28, 30, 32, 33 Produce false document to a reporting agency 15 months' imprisonment commencing 8 January 2017
4 Utter counterfeit currency 13 months' imprisonment commencing 8 July 2017
6 Utter counterfeit currency 18 months' imprisonment commencing 8 July 2017
1 Utter counterfeit money Eight years' imprisonment commencing 8 July 2017
Taking into account the 98 matters on the s.16BA Schedule
[2]
As will be observed, the sentencing Judge took into account the 98 matters on the Schedule under s.16BA Crimes Act 1914 (Cth) when sentencing the Applicant for the offence of uttering counterfeit money contained in Count 1.
It was common ground that, on 24 June 2016, the Applicant came before the sentencing Judge to remedy an omission on 20 June 2016 whereby the sentences for Counts 2, 3 and 5 had not been announced. As noted in the table set out earlier in this judgment (at [14]), the Applicant was sentenced to nine months' imprisonment on each of those counts.
[3]
Facts of Offences
A detailed Statement of Facts was placed before the sentencing Judge which his Honour utilised to make findings of fact on sentence which were not disputed in this Court.
His Honour made the following introductory findings before moving to Counts 1 to 13 and a number of the offences on the s.16BA Schedule committed in Western Australia between 26 September 2014 and early October 2014 (ROS2-5):
"The Offender arrived in Perth on a flight from Abu Dhabi on 25 September 2014. He entered the country using a German passport in his name with his date of birth. The following day he started committing money laundering type offences by exchanging counterfeit euro notes for Australian currency in Western Australia. He facilitated his offending in that regard by opening various bank accounts using a false Spanish passport thereby committing offences contrary to subs 137(2). He then used the accounts to exchange counterfeit euro notes into Australian currency. He committed 13 offences encompassed in counts 1 to 13 on the indictment in Western Australia from 26 September to 8 October 2014.
The day after his arrival in Perth he entered the ANZ bank at Mt Lawley and using a false Spanish passport in the name Juan Sanchez opened an account. He then exchanged four counterfeit euro notes with a face value of €800 for $2,078.60. This gives rise to counts 1 and 2.
On the same day he used the false passport to open an account at the Commonwealth Bank of Australia (CBA) in the same suburb giving rise to count 3.
On the same day he used the same false passport to open an account at the National Australia Bank (NAB) in Morley, Western Australia and then exchanged six counterfeit euro notes with a face value of €1,200 for $1,594.49, giving rise to counts 4 and 5.
Four days later on 30 September he entered the NAB branch at Mt Lawley and, utilising the account in the name of Juan Sanchez that he had opened on the 26th, exchanged 14 counterfeit euro notes with a face value of €2,800 for $3,745.87, giving rise to count 6.
About a week later, the Offender went to the ANZ Bank located in Innaloo Plaza at Innaloo and opened another account this time using a false French passport in the name of Yean Leroux. He then utilised that account to exchange 26 counterfeit euro notes with a face value of €5,200 into $6,975.18, giving rise to count 7 and 8.
The same day he opened another account, this time at the CBA in Innaloo using the same false French passport which gives rise to count 9.
The following day at the CBA Bank located in St George's Terrace, Perth, and using the CBA account he had opened in the name of Yean Leroux on 7 October at a different branch, he exchanged 10 counterfeit euro notes with a face value of €5,000 for $6,647.13, giving rise to count 10.
On the same day he used the same false French passport to open an account at the NAB branch at Kendenup and then exchange 25 counterfeit euro notes with a face value of €5,000 for $6,642.47, giving rise to counts 11 and 12.
The same day he used the same false French passport to open an account at the St George Bank located in St George's Terrace Perth, giving rise to count 13.
Subsequent enquiries and investigations revealed that the two individuals named in the false passports that the Offender used in Western Australia never entered Australia and the Australian Immigration entry stamp on each was fraudulent. Apparently a person cannot open a bank account in this country using a foreign passport unless it has an immigration stamp on it.
Over the six transactions in the indictment within counts 1 to 13 the Offender laundered counterfeit euro notes with a face value of €20,000 obtaining $26,683.74.
The Court notes that in addition to the offences on the indictment committed in Western Australia there are nineteen offences on the schedule of receiving a designated service contrary to subs140(1). The Court notes all matters contrary to that subsection on the Schedule relate to either opening a bank account or exchanging currency at a bank and are closely connected to the offences of uttering. In addition, whilst in Western Australia he was involved in 10 further offences of uttering counterfeit money that occurred in that state which involved him uttering counterfeit euro notes with a face value of €30,100, which at the time was equivalent to $46,596.84.
It is not necessary for the purposes of these remarks to set out the detail of the facts of any of the offences on the schedule, they can be found in exhibit A2. The matters on the schedule that he committed in Western Australia were committed during the same period as the offences on the indictment."
[4]
Approach to the Applicant's Pleas of Guilty in the District Court
Having regard to the ground of appeal, it is appropriate to note submissions made in the District Court with respect to the Applicant's guilty pleas and the approach adopted by the sentencing Judge on this issue.
Although the Applicant was arraigned on the 39 counts at the commencement of the sentencing hearing on 26 May 2016, to each of which he pleaded guilty, it was common ground that pleas of guilty had been at least indicated in the Local Court.
In accordance with the law as it stood in May 2016, the Crown written submissions on sentence in the District Court noted that the Court must take into account the fact that the Applicant had pleaded guilty, but that in doing so, stated that the objective utilitarian value of the pleas was not a relevant consideration (AB130). It was submitted for the Crown that the guilty pleas were to be taken into account as a mitigating factor as they demonstrated a willingness to facilitate the course of justice, but that they must not be taken into account as a mitigating factor for their objective utilitarian value or on the basis that they saved the community the expense of a contested trial.
In this respect, reference was made to a number of decisions including Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [11]-[14] and Tyler v R; Chalmers v R (2007) 173 A Crim R 458; [2007] NSWCCA 247 at [110]-[114]. The Crown written submission stated expressly that the approach to be applied was contrary to the position with respect to State offences in accordance with R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and the Crimes (Sentencing Procedure) Act 1999 (NSW).
In the course of oral submissions, counsel for the Applicant submitted to the sentencing Judge (T13, 26 May 2016):
"He has pleaded guilty at the relatively earliest opportunity and I would ask you to consider giving him the full weight of the 25% discount."
Soon after, counsel for the Applicant submitted that "He's pleaded guilty at the earliest opportunity, he is remorseful, …" (T14, 26 May 2016).
The Crown made no oral submission with respect to the approach to be taken to the Applicant's guilty pleas.
When sentencing the Applicant on 20 June 2016, the sentencing Judge said with respect to the Applicant's pleas of guilty (ROS2):
"Although the matter proceeded on indictment, the Offender actually pleaded guilty in the Local Court and was committed for sentence. Hence he entered his guilty pleas early at a stage which, combined with his untested expressions of remorse, reflected some contrition. Consistent with principles of sentencing the Court reflected that contrition and his willingness to facilitate the course of justice by way of mitigation of penalty."
[5]
Submissions Concerning the Ground of Appeal
Submissions for the Applicant
Ms Avenell SC, counsel for the Applicant, submitted that Xiao v R error had occurred in this case as the sentencing Judge had, consistently with the law as it then stood, not taken into account the utilitarian value of the Applicant's pleas of guilty.
It was submitted that there had not been an implicit recognition of the utilitarian value in the manner referred to by Simpson AJA and Rothman J in Weber v R [2020] NSWCCA 103 at [15]-[16] and [30]-[32] respectively. In this regard, it was submitted that the Crown submissions on sentence in the District Court had urged the opposite approach, whereby the utilitarian value was not to be taken into account. Further, it was submitted that the sentencing Judge said nothing concerning the utilitarian value of the Applicant's pleas when sentencing him.
It was submitted that the sentencing Judge's approach to the pleas of guilty placed this aspect on the subjective side only and not as an objective factor to be taken into account on sentence.
Submissions for the Crown
The Crown accepted that the sentencing Judge erred by failing to take into account the utilitarian value of the Applicant's guilty pleas. It was submitted, however, that although the sentencing Judge did not specify a discount for the guilty pleas, it appeared likely that his Honour accepted the submission made by the Applicant's counsel that he should have the benefit of a 25% discount.
Further, whilst it was accepted that the sentencing Judge did not take into account the objective utilitarian value of the guilty pleas, the Crown submitted that it would have made no difference to the overall sentence that was imposed in this case.
The Crown submitted that the position was similar to that in Xiao v R where the Court said at [369]:
"So far as the plea is concerned, the applicant is entitled to a discount for the utilitarian value of his plea of guilty. It seems to us in the circumstances of the present case that it is immaterial whether the discount is described as being given for facilitating the course of justice or for its utilitarian value."
Although the Crown acknowledged that it cannot be stated with certainty that the sentencing Judge applied a discount of 25%, it was submitted that this was the likely position given the submission made for the Applicant that he should receive the "full weight" of the 25% discount, the Crown's acceptance of the facts that gave rise to the early guilty pleas and the absence of any Crown submission opposing the defence submission that a 25% should be applied. It was submitted that there was nothing in the sentencing remarks that would suggest that his Honour took a different course.
[6]
Decision Concerning Ground of Appeal
In determining whether the ground of appeal has been made good, it is necessary to read fully and fairly his Honour's sentencing remarks against the background of the submissions made in the District Court concerning the role of the Applicant's guilty pleas on sentence.
To construe his Honour's words on this issue in the manner submitted by the Crown would distort the way in which the matter was argued and his Honour's approach given the then settled law on this topic.
The Crown written submission in the District Court had stated that the Court must have regard to the Applicant's pleas of guilty as required by s.16A(2)(g) Crimes Act 1914 (Cth). The submission stated that the utilitarian value of the guilty pleas was not to be taken into account. The Crown noted that the Court could quantify a discount, but was not required to do so.
The short defence submission on sentence in the District Court invited his Honour to apply a 25% discount for the Applicant's early pleas of guilty. The Crown said nothing further on that topic.
His Honour's finding on this issue used words which were consistent with the Crown written submission which invoked the law as it stood in June 2016.
I accept the submission for the Applicant that there was no implicit recognition in this case of the utilitarian value of the Applicant's guilty pleas. The circumstances considered by Simpson AJA and Rothman J in Weber v R did not arise in this case.
I do not think that the Crown is assisted by the passage in Xiao v R at [369] (see [35] above) in circumstances where the appropriate construction is that his Honour was accepting a Crown submission that the utilitarian value of the pleas was not to be taken into account.
I am satisfied that error is demonstrated in that his Honour's approach to the Applicant's guilty pleas did not have regard to the utilitarian value of those pleas. In accordance with the law as it then stood, his Honour had regard to a range of subjective factors (including a measure of contrition).
Since the decisions in Xiao v R and Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70, this Court has addressed the question of Xiao v R error in a number of decisions.
In Bae v R [2020] NSWCCA 35, the Court said at [53]-[57]:
"53 The approach in R v Borkowski applies to the assessment of the utilitarian value of a guilty plea for State offences. Nevertheless, in the same way as R v Thomson; R v Houlton has provided guidance for Commonwealth offences, the decision in R v Borkowski assists in a practical understanding of the features of the utilitarian value of a guilty plea, a factor which Xiao v R states can be taken into account for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth).
54 Counsel for the Appellant and the Crown both accepted at the hearing in this Court that the principles in R v Borkowski provided assistance in assessing the utilitarian value of a guilty plea for a Commonwealth offence (T2-3, 5, 11, 6 February 2020).
55 It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender's favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations.
56 As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]:
'Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary.'
57 The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender."
[7]
Resentencing the Applicant
In exercising its function under s.6(3), the Court should take into account all relevant matters, including evidence (if any) of the Applicant's progress towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v The Queen (2016) 258 CLR 4520; [2016] HCA 25 at [2], [11].
The Court exercises an independent sentencing discretion and is required to form its own view of the appropriate sentence rather than confining itself to the determination of whether the identified error infected the sentence imposed below. The Court has regard to the material that was before the sentencing Judge, the sentencing Judge's unchallenged factual findings and any relevant evidence of the offender's post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].
In addition to the evidence which was before the sentencing Judge, the Applicant relied in this Court on his affidavit affirmed 2 October 2020 and an affidavit of Ms Knowles affirmed 4 November 2020.
For the purpose of resentencing the Applicant, it is appropriate to note a number of findings made by the sentencing Judge.
His Honour addressed the Applicant's subjective circumstances (ROS8-10):
"The Court notes that the probation officer who prepared the pre-sentence report did not speak to the Offender's family to verify the account he provided to her. The psychologist only spoke to the Offender and the only document she reviewed was a statement of facts. As he chose not to give evidence, his accounts to the probation officer and psychologist remained unverified. Apart from his criminal record, date and place of birth, the following account of his subjective features is taken from the unverified material.
The Offender was born in Germany on 30 December 1962. He is now 53 years old. There is no evidence that he has the disadvantage of a dysfunctional upbringing. He is the middle of three children and continues to have a close relationship with his parents and siblings.
He was married in 2003, but the marriage ended in divorce four years later. There is one child to the marriage who is aged 11 and lives with the Offender's ex-wife in Germany.
The pre-sentence report contains a history of employment after leaving school at the age of 16. That account included qualifying as a mechanic and working in that industry, as well as in the insurance industry, and studying cooking over a three-year period.
The Offender claims to have a chronic gambling habit and that he started gambling in 1987. He claims that he lost everything as a result of his habit. Although he told the probation officer he had never sought professional assistance to address his problem, he expressed a willingness to do so in the future.
The Offender reported that he suffers from bouts of depression when he thinks about being in prison so far away from his relatives and experienced some anxiety discussing the offences with his family. He also claims to have a tendency to act impulsively. Because of these matters and his isolation in custody, the Court accepted that his time in custody will be more burdensome than in the case of other prisoners. However, the Court notes that he has had multiple visits from four friends and regular telephone contact with his family in Germany. There is no evidence of the impact of his imprisonment in this country on members of his family.
According to the Offender's clinical scales, he tends to be anxious, tense and ruminative. He also reported he has a tendency to act impulsively. The Offender does not suffer from an intellectual disability. Apart from his claim to have a gambling addiction, there is no credible evidence that he was suffering from any other relevant mental health or psychological issues at the time of these offences. Paragraph 57 of the psychologist's report is in the following terms:
'The configuration of a clinical profile suggested that although he has appreciation of consequences he may not fully think the possible results of his actions through before he engages in some behaviour. The clinical profile was considered congruent with somebody suffering a gambling disorder and of the cycle of vegetation and rumination which is associated with it'."
[8]
Sentencing For Counterfeit Money Offences and Identity Fraud Offences
Decisions of intermediate appellate courts have identified principles of particular importance when sentencing a person for counterfeit money offences and identity fraud offences.
It has been said that counterfeit money offences undermine community confidence in currency and its place in the banking system: R v Rohde (1985) 17 A Crim R 166 at 173. In R v Institoris (2002) 129 A Crim R 458; [2002] NSWCCA 8, Levine J said at [38]:
"The offences under the Currency Act, in my view, are particularly insidious in their very nature. The trick or deceit practised upon the community by the manufacture and uttering of counterfeit banknotes is immediately damaging and potentially disastrous. The achievement of the criminal objective, founded in greed, requires (as in this case) a determination from the outset to employ modern technology and experimentation. The objective is calculated to abuse every member of the community. Everyone should be free to conduct day-to-day affairs without concern about the integrity of this country's currency."
Although Levine J's comments in R v Institoris were directed to counterfeiting of Australian currency, they have ready application to this case where the Applicant put into circulation in Australia a large number of counterfeit Euro notes. Offences of this type undermine confidence in foreign currencies which are traded regularly within Australia and internationally.
Whilst it has been said that making counterfeit notes is the more serious offence (R v Institoris at [77]), it is the uttering of counterfeit notes which puts them into circulation, thereby undermining confidence in the currency system and with the person uttering the counterfeit notes obtaining a direct financial benefit from that criminal activity. This is especially so with the Applicant's offences where an elaborate and apparently convincing use was made, on a systematic basis, of false identity documents to facilitate the uttering of counterfeit Euro notes for the substantial financial benefit of the Applicant. As the sentencing Judge found, the Applicant (with two exceptions) "skilfully and carefully executed the offences in a highly organised way that did not arouse suspicion on the part of bank staff" (see [57] above).
The quantity and quality of counterfeit notes uttered by the Applicant is a significant factor on sentence, as is the value of the proceeds derived from the commission of his uttering offences: R v Institoris at [78]; R v Gittani [2002] NSWCCA 139 at [22]-[23].
[9]
Aspects of the Applicant's Offences
The Applicant's offences involved a combined total of $306,162.57 in counterfeit notes being uttered by him or found in his possession, arising from the sum of $103,349.72 for the offences on the indictment and $202,812.85 for the offences on the s.16BA Schedule. The number and value of counterfeit notes bears upon the objective gravity of the offending and a very substantial sum and number of notes were involved in the Applicant's offences. There were multiple offences committed by the Applicant at different locations within Australia, with a high degree of organisation and planning.
Within a short period of the Applicant's arrival in Australia on 25 September 2014, the Applicant was uttering counterfeit money and using false names and false passports as aids to his dishonest activity. He facilitated the offending by opening various bank accounts using several false passports stamped with false immigration stamps.
The Applicant was about 52 years old at the time of the offences. He presented convincingly at the various banks as a mature man with what appeared to be bona fide Euro transactions to be undertaken.
The Applicant criss-crossed around Australia in pursuit of his criminal activities. On 9 October 2014, he flew to Melbourne and then returned to Perth on 18 October 2014 before returning, once again, to Melbourne to commit further offences in Victoria.
He flew to Adelaide on 26 October 2014 and committed a series of offences there over a two-day period before returning to Melbourne and then to Perth before departing to Abu Dhabi. The Applicant's movements around Australia spread his criminal activities in a manner which was undoubtedly intended to reduce the prospect of detection.
The Applicant's offences were committed over a period of about three months although there was a gap in the commission of offences between 2 November 2014 and 4 January 2015 whilst the Applicant was overseas.
The Applicant returned to Australia in 2015, flying from Doha to Melbourne before travelling to Sydney the next day. But for one slip in Melbourne on 21 October 2014 (when he failed to replicate the signature on the false passport), the Applicant continued successfully with his criminal activities until his detection and arrest at Parramatta on 8 January 2015. It may be concluded readily that, but for the Applicant's arrest, his offending conduct would have continued.
[10]
The Additional Evidence on Appeal
The affidavit of the Applicant, and supporting documentation attached to the affidavit of Ms Knowles of 4 November 2020, outlined the Applicant's placement and employment history in custody since he was sentenced in June 2016.
The Applicant has demonstrated a positive approach to his custodial employment since 2016 and has undertaken a number of courses and programs.
The sentencing Judge considered that the Applicant's prospects of rehabilitation and not reoffending were poor (see [60] above). For the purpose of assessing this aspect on resentence, regard should be had to the Applicant's progress in custody since 2016.
It should be kept in mind that the Applicant has demonstrated an established history of dishonest conduct in his offending history so that there remains a risk of reoffending once he is released into the community. This is especially so if there is a gambling problem which does not appear to have been addressed during his time in custody.
Further, the Applicant's good behaviour in prison may be an unhelpful indicator concerning his prospects of rehabilitation and risk of reoffending. The Applicant has demonstrated a propensity for criminal deception of others. He is a recidivist fraudster. It does not appear that there are criminogenic factors in his background which he has, in some way, brought under control in custody.
The Applicant is now 58 years of age. His age may provide some assistance to him with respect to the risk of reoffending. As the Applicant is a foreign national, he expects to be deported to Germany when released from custody. In his affidavit of 20 October 2020, the Applicant looks forward to returning to Germany and re-establishing contact with his parents.
The Applicant's prospects of rehabilitation and risk of reoffending may be seen now, in a guarded way, as being a little better than the bleak assessment made by the sentencing Judge.
[11]
The Applicant's Pleas of Guilty
When resentencing the Applicant, the Crown acknowledged that his early guilty pleas should be given significant weight in terms of their objective utilitarian value. It is apparent from the number of charges on the indictment and the s.16BA Schedule that, had the Applicant defended the matters, the trial would likely have proceeded for some weeks and involved a level of complexity. This bears upon the utilitarian value of his guilty pleas.
At the time when Xiao v R and Bae v R were decided, s.16A(2)(g) Crimes Act 1914 (Cth) required a sentencing court to take into account "if the person has pleaded guilty to the charge in respect of the offence - that fact".
Section 16A Crimes Act 1914 (Cth) has been amended so that, since 20 July 2020, s.16A(2)(g) now provides that a sentencing court must take into account:
"(g) if the person has pleaded guilty to the charge in respect of the offence:
(i) that fact; and
(ii) the time of the plea; and
(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence."
In resentencing the Applicant, this Court should apply s.16A(2)(g) in its present form which gives effect to aspects of the utilitarian value of a guilty plea as described in Xiao v R and Bae v R.
For the purpose of resentencing, a 25% discount should be extended to the Applicant for the utilitarian value of his guilty pleas. I accept that the sentencing Judge took into account aspects of the Applicant's guilty pleas in an unquantified way and in his favour on sentence. It is necessary for the Court not to double count factors in the Applicant's favour on sentence: Bae v R at [56]-[57] (at [47] above).
[12]
Resentencing the Applicant
It is appropriate to proceed by way of aggregate sentence, a course which is available when sentencing a person for several Commonwealth offences: Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146].
The 25% discount for the Applicant's pleas of guilty is to be applied to the indicative sentences and not the aggregate sentence itself.
These were offences of substantial objective gravity. It is necessary that the sentence reflect the need for proportionality together with the need for general deterrence and specific deterrence and application of the totality principle.
Having regard to all relevant factors and after applying the 25% discount (with some rounding), I would nominate the following indicative sentences for the counts on the indictment, with the 98 offences on the s.16BA Schedule to be taken into account, once again, on sentence for Count 1:
Count Offence Description Sentence
35 Utter counterfeit currency Imprisonment for two years
36 Possess counterfeit currency
37-39 Produce false document to a reporting agency Imprisonment for 12 months
7, 10-11 Utter counterfeit currency Imprisonment for one year and nine months
8, 9, 12-13 Produce false document to a reporting agency Imprisonment for 12 months
15, 17, 19, 22-23 Utter counterfeit currency Imprisonment for one year and nine months
14, 16, 18, 20, 21, 24 Produce false document to a reporting agency Imprisonment for 12 months
2, 3, 5 Produce false or misleading document to a reporting agency Imprisonment for eight months
25, 27, 29, 34 Utter counterfeit currency Imprisonment for one year and nine months
31 Utter counterfeit currency Imprisonment for 18 months
26, 28, 30, 32, 33 Produce false document to a reporting agency Imprisonment for 12 months
4 Utter counterfeit currency Imprisonment for nine months
6 Utter counterfeit currency Imprisonment for 15 months
1 Utter counterfeit money Imprisonment for seven years and six months
Taking into account the 98 matters on the s.16BA Schedule
[13]
The Applicant should be sentenced to an aggregate term of imprisonment for nine years and six months comprising a non-parole period of six years and four months commencing on 8 January 2015 and expiring on 7 May 2021, with a balance of term of three years and two months commencing on 8 May 2021 and expiring on 7 July 2024.
[14]
Conclusion
It is appropriate to grant an extension of time for the Applicant to seek leave to appeal against sentence and to make further orders allowing the appeal and resentencing the Applicant.
I propose the following orders:
1. extend time for the Applicant to seek leave to appeal against sentence to 3 September 2020;
2. grant leave to appeal against sentence;
3. allow the appeal and quash the sentences imposed at the Parramatta District Court on 20 June 2016 and corrected on 24 June 2016;
4. in their place, sentence the Applicant to an aggregate term of imprisonment of nine years and six months comprising a non-parole period of six years and four months commencing on 8 January 2015 and expiring on 7 May 2021 with a balance of term of three years and two months commencing on 8 May 2021 and expiring on 7 July 2024;
5. the earliest date upon which the Applicant will be eligible for release on parole is 8 May 2021.
R A HULME J: I agree with Johnson J.
[15]
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: 09 April 2021
By Notice of Application for Leave to Appeal filed on 3 September 2020, the Applicant relies upon a single ground of appeal that, in determining the appropriate discount to reflect the value of the Applicant's pleas of guilty in accordance with s.16A(2)(g) Crimes Act 1914 (Cth), the sentencing Judge did not have regard to the utilitarian value of the Applicant's pleas of guilty.
The Applicant requires an extension of time under s.10(1)(b) Criminal Appeal Act 1912 (NSW) to bring his application for leave to appeal against sentence. In this respect, the Applicant relies upon his affidavit affirmed 6 August 2020 together with the affidavit of Stephen Eccleshall, solicitor, affirmed 29 July 2020 and the affidavit of Suzanne Tezjan Knowles, solicitor, affirmed 1 September 2020.
The explanation for the delay in bringing the application relates to the decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 and the impact of that decision upon the Applicant's sentence.
The discretionary power to extend the time limit to bring an appeal to this Court is legislative recognition that the interests of justice may favour permitting an application for leave to appeal against sentence to be heard, notwithstanding that it was not brought within time. In determining what the interests of justice require, it is necessary to have regard to the prospects of success of the ground of appeal should the extension be granted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]-[33], [44].
On the application for an extension of time, the Crown noted that the decision in Xiao v R was handed down on 5 February 2018, but the Applicant did not make application to this Court until 1 September 2020, more than two years after that decision and over four years since the Applicant was sentenced in the District Court.
By reference to the affidavit of Ms Knowles (at paragraph 7), the Crown also noted that the original advice from counsel given before Xiao v R was that a sentence appeal did not have reasonable prospects of success. The Crown submitted, in any event, that the appeal did not have sufficient prospects of success to warrant the extension of time being granted.
It is appropriate to consider the merits of the proposed appeal for the purpose of determining whether it is in the interests of justice to grant an extension of time to the Applicant in this case.
His Honour made the following findings concerning offences committed in Victoria and South Australia between 21 and 29 October 2014 (ROS5-6):
"On 9 October 2014 the Offender flew from Perth to Melbourne. He flew back to Perth on 18 October 2014. Sometime between then and 21 October he travelled to Melbourne by unknown means. He then started committing offences in Victoria using a similar modus operandi to that employed in Western Australia. Over the two days of 21 October and 22 October 2014 he committed 11 offences in Victoria that give rise to counts 14 to 24 on the indictment. It is not necessary to go through the detail of those offences, they can be found in paras 24 to 34 of the facts, exhibit A1. The money laundering that he engaged in in Victoria was facilitated by his opening bank accounts using a false Spanish passport in the name of Miguel Augusto. As with the two passports he used in Western Australia the Australian Immigration Entry stamp on this passport was also fraudulent.
Whilst in Victoria on five separate occasions the Offender exchanged a total of 50 counterfeit euro notes with a face value of €25,000 for $33,822.71.
The Court should note that one offence in Victoria did not follow the pattern established by the other offences in the sense that, although he opened an account by presenting the false Spanish passport at the NAB branch in Chadstone, (count 18) he failed to replicate the signature on the passport and the bank officer refused to complete the transaction and subsequently closed the account.
Whilst in Victoria he was involved in 23 offences contrary to subs 140(1)) and 12 offences of uttering that are on the schedule. The uttering offences involved counterfeit euros with a face value of €63,000 that had an equivalent value of $85,313.
Using his true identity the Offender flew from Melbourne to Adelaide on 26 October 2014. Once in South Australia he committed a further 10 offences reflected by counts 25 to 34 inclusive. He committed those 10 offences over two days, 28 and 29 October 2014, using a false Portuguese passport in the name of Eduardo Durante. As with the other passports the Australian Immigration stamp on this false passport was also false. The modus operandi that he had used to launder money in South Australia was similar to that employed in both Victoria and Western Australia. It is unnecessary to set out the detail of the transactions in South Australia, they can be found at paras 39 to 48 of the facts Exhibit A1.
Over the two days in South Australia on five separate occasions he exchanged 178 counterfeit euros with a face value of €21,800 for $29,187.67.
The Court should note that in para 47 of the facts Exhibit A1 it refers to a Spanish passport in connection with count 3[?] [sic - count 33]. This is an error as the Crown assured the Court that all offences committed in South Australia that are on the indictment were facilitated by the same false Portuguese passport. Defence counsel made no submission to the contrary.
During the same period in South Australia he committed a further 18 offences under subs 140(1)) and a further 12 offences of uttering counterfeit money that are on the schedule. Those uttering offences involved counterfeit euro notes with a face value of €52,700 that have an equivalent value of $70,000."
The sentencing Judge then summarised the Applicant's offences committed in Victoria and New South Wales from 1 November 2014 until his arrest at Parramatta on 8 January 2015 (ROS6-8):
"It appears that by unknown means the Offender travelled from Adelaide to Melbourne sometime between 30 October and 1 November. On 1 November 2014 using his true identity the Offender flew from Melbourne to Perth and, on the following day using his German passport, he flew from Perth to Abu Dhabi.
The Offender returned to Australia on 4 January 2015. He flew into Melbourne from Doha using his German passport. He flew to Sydney on 7 January and committed the remaining five offences on the indictment, counts 35 to 39, at Parramatta the following day.
At 11.55am on 8 January 2015 the Offender went to the ANZ bank located in Level 2 of the Westfield Shopping Centre in Parramatta and, using a false Spanish passport and licence, he opened an account in the name of Jose Kamino, giving rise to counts 27 and 28 [sic - counts 37 and 38]. He then deposited 50 counterfeit euro notes with a face value of €10,000 euros into the account giving him a balance $13,655.60. He immediately withdrew $10,000 that gives rise to count 35. He apparently wanted to withdraw the balance from the account and staff directed him to another branch located on level 5 in the same complex.
The Offender then made his way to the ANZ branch located on level 5 in order to withdraw the balance from the account that he had just opened downstairs. Paragraph 58 of the facts Exhibit A1 makes reference to count 39 in the context of his attendance at the branch on level 5 but does not identify the act that constitutes the offence. However, in light of the terms of count 39 and his guilty plea the Court infers that he produced the false Spanish passport in the name of Jose Camino in order to withdraw the $1,355.60 that remained in the account that he had opened at the branch on level 2.
His desire to withdraw all the money he had deposited into the account raised the suspicion of staff who realised that his appearance matched the description of the person who had completed similar transactions involving counterfeit currency. Consequently, staff contacted the police.
When the police arrived, they arrested the Offender who at the time was in possession of a backpack and a bum-bag. Inside the bum bag, the police located a false Spanish passport in name of Jose Kamino and a further 203 counterfeit euros with a face value of at least €6,600. His possession of these counterfeit notes gives rise to the offence count 36. The police also recovered the $10,000 he had withdrawn from the branch downstairs. The Court notes there are two offences of the schedule committed at Parramatta contrary to subs 140(1) that involve opening the bank account and exchanging currency. Following his arrest, the Offender participated in an ERISP interview but, as was his right, chose not to comment on any of the questions the police asked of him.
The Court notes that, when he opened the account on that day, he provided an address of 25 Rush Street, Woollahra. Subsequent inquiries revealed he was not known at that address and had no links to it."
When sentencing the Applicant, the sentencing Judge did not quantify a discount for his pleas of guilty, but this aspect was taken into account in the exercise of discretion as a mitigating factor on sentence.
In this way, the Crown submitted that it was open to this Court to conclude that an appropriate quantified discount had been allowed in this case, although the sentencing Judge did not expressly ascribe it to the utilitarian value of the guilty pleas.
What was said in Bae v R has been applied in subsequent decisions of this Court including Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73 at [60] and Betka v R [2020] NSWCCA 197 at [57]-[59].
I am satisfied that error has been demonstrated so that it is appropriate for the Court to move to resentence the Applicant for the purpose of s.6(3) Criminal Appeal Act 1912 (NSW).
The sentencing Judge referred to the level of premeditation and planning involved in the Applicant's offences (ROS10):
"As the Offender chose not to give evidence, there is no direct evidence about whether, at the time of committing these offences, he fully thought through the consequences of his actions. In addition, there is no circumstantial evidence on the topic. In light of his criminal history that includes sentences of imprisonment for fraud-related offences and his avoiding detection during many transactions before coming to Parramatta, the Court is not prepared to accept that he did not fully think through the consequences, especially for himself, of his offending behaviour.
In all the circumstances, the Court is satisfied beyond reasonable doubt these offences were premeditated, well planned and executed with considerable skill. There is no basis for a finding that his criminality was as a consequence of impulsive behaviour. Whilst his gambling addiction might explain his offending behaviour, it does not excuse it.
The Court is not persuaded that it is appropriate to make a finding of reduced moral culpability because of any mental health issues or psychological issues."
The sentencing Judge referred to other subjective factors including the Applicant's prior criminal history (ROS10-11):
"The Offender did not claim to have a problem with abuse of illicit drugs or liquor.
Although he told the psychologist he sustained a serious injury in a motor vehicle accident when he was about 18½ years old, he did not claim he suffered any lasting cognitive effects from his injuries. There is no evidence the Offender has any relevant physical health issues.
The Offender does not have the benefit of prior good character. He was fined in 1992 for offences involving fraud and falsification of documents. He was fined again the following year for damaging property. In 1994 he was sentenced to three years imprisonment for offences of fraud and falsification of documents. In 2000 he was sentenced to three and a half years imprisonment for multiple counts of fraud. In 2006 he was sentenced to six months imprisonment for fraud which appears to have been suspended until December 2009.
The Offender has not breached any prison discipline laws."
His Honour made further findings with respect to the gravity of the Applicant's offences (ROS11-13):
"In his account to the probation officer and the psychologist the Offender claimed that he had amassed a substantial gambling debt which he could not repay. He claims that, as a consequence of his inability to discharge the debt, he was threatened with physical harm and members of his family were also threatened with physical harm. As a consequence he claims that he agreed to become involved in the offences to discharge the debts. He claims that he returned to Australia in 2015 because those to whom he was indebted claimed he had not cleared his debt. As the Offender chose not to give evidence in these proceedings, these claims have not been tested in the usual fashion. In those circumstances the Court is not persuaded that they are credible. In all the circumstances the Court is satisfied beyond a reasonable doubt the Offender was motivated by greed.
As already noted, the Court is satisfied beyond a reasonable doubt the offences were premeditated. It is also satisfied beyond a reasonable doubt that the Offender came to this country on two separate occasions intending to commit these offences. Clearly, they were carefully planned and highly organised. What role he played in planning the offences is unclear. The Court cannot exclude the possibility that others were involved and it is unclear who instigated the offences. The evidence does not allow the Court to conclude who made the counterfeit euro notes, false licence and false passports used to commit these offences or where that occurred. It is not clear if it occurred in this country or overseas. If it was overseas, the evidence does not establish how and when any of those items got into Australia. Further, the evidence does not permit the Court to conclude what happened to the Australian currency that he obtained in exchange for counterfeit notes.
With two exceptions, the Offender skilfully and carefully executed the offences in a highly organised way that did not arouse suspicion on the part of bank staff. One exception was in Melbourne when he could not replicate the signature on the false passport. The other was in Parramatta when he sought to withdraw a large amount of money from an account on the same day as he opened it.
During his first visit to this country, in connection with matters on the indictment, the Offender obtained a little over $93,000 to which he was not entitled. In connection with the matters on the schedule, he obtained just over $203,000 to which he was not entitled. In total he obtained a little over $296,000 that has not been recovered. The loss sustained by various banks was substantial. On his second visit he obtained $10,000 that the police recovered when they arrested him. He committed these offences during a period of just over three months.
The Court notes the very first transaction where the Offender converted counterfeit euros involved currency of relatively small face value, being just under $1,200. The second, which was on the same day, involved currency with a face value of a tad over $1,600. The following day the amounts increased significantly, being in the order of $4,000 in terms of face value, in connection with matters on the schedule. By the time he came to use the second passport in Western Australia, the face value of the counterfeit notes was between six and seven thousand dollars. So far as the matters on the indictment are concerned, this continued to be the face value of the notes uttered in Victoria and South Australia with the exception of count 31. The face value of the counterfeit notes deposited in Parramatta reflected an increase, this time a little over $13,000."
His Honour concluded with respect to the seriousness of the offences (ROS13):
"Having considered all the circumstances of each offence, the Court is of a view that each is a serious offence. In connection with count 36, he was in possession of 203 counterfeit euro notes with a face value of €46,600. There is no evidence of their value in terms of Australian currency, but the conversion rate reflected in other amounts in the facts would indicate it was well over $50,000."
The sentencing Judge noted the need for weight to be given to both general and personal deterrence when sentencing the Applicant (ROS13):
"Offences such as these have the capacity to undermine public confidence in the currencies of the world, the integrity of passport and Immigration procedures, as well as mechanisms employed by banks and others to guard against offences like this that include the use of false identity documents such as a passport. Obviously general deterrence must play a significant role in connection with any offence of this type and more so where a series of offences reflect systematic offending involving counterfeit currency and false identity documents.
In light of his record, the Court accepted it was appropriate to give considerable weight to personal deterrence."
His Honour assessed the Applicant's prospects of rehabilitation and risk of reoffending as being poor (ROS13-14):
"His past failures to seek out professional assistance to address his claimed gambling problem, especially in light of his age, are of concern in terms of rehabilitation. Further, he has a low belief in his ability to control his actions in stressful circumstances. He acknowledged that he is reckless and at times may entertain participating in risky behaviour that poses a danger to himself and others. According to para 59 of the psychologist's report, his profile is consistent with a number of antisocial features. That paragraph goes on to observe:
'he appeared to be egocentric and have little regard for most others or the opinion of society around him. In his desire to satisfy his own impulses he is willing to take advantage of others. He did not endorse items to suggest he maintains a strong sense of loyalty even to those close to him.'
These matters combined with his past record led the Court to conclude that his prospects of rehabilitation and not re-offending are poor."
Before moving to sentence the Applicant, his Honour referred to totality and the relevance of other sentencing decisions for counterfeiting offences (ROS14):
"The Court considered that a custodial sentence is a sentence of last resort and concluded each offence called for a custodial sentence. In determining the commencement date of each sentence, the Court took into account totality.
The Crown referred the Court to four cases. However, the totality of criminality in connection with three of them is less, the total amount involved being significantly less. Further, R v Institoris (2002) 129 A Cr R 458 involved two counts of knowingly concerned in making counterfeit banknotes which has a maximum penalty of 14 years in prison. These authorities were of little assistance to the Court."
General deterrence is an important factor on sentence for counterfeiting offences: R v Gittani at [22]-[23]. As it happens, specific deterrence was also a significant factor given the Applicant's history of fraud offences.
In Sabbah v R (Cth) (2020) 283 A Crim R 78; [2020] NSWCCA 89, this Court referred to the decisions in R v Rohde, R v Institoris and R v Gittani in the course of dismissing a sentence appeal for counterfeiting offences. It was emphasised that, since Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284, any statement in authorities that counterfeiting offenders should or must ordinarily "go to gaol" cannot be treated as a statement of binding principle: Sabbah v R (Cth) at [2]-[10], [159].
However, nothing said in Sabbah v R (Cth) qualified the statements made in earlier cases concerning the significance of particular factors on sentence for counterfeiting offences (as summarised at [63]-[68] above).
The Applicant's 54 offences under the Currency Act (18 on the indictment and 36 on the s.16BA Schedule) were linked to a total of 83 (21 on the indictment and 62 on the s.16BA Schedule) offences under ss.137 and 140 Anti-Money Laundering Act. The offences under the Anti-Money Laundering Act involved a form of identity fraud where false identifications were used to deceive bank officials and facilitate the counterfeit money offences.
It has been said that the systematic use of false documents as proof of false identity demonstrates an element of planning and sophistication and a high level of objective criminality: Van Haltren v R (2008) 191 A Crim R 53; [2008] NSWCCA 274 at [87]. Where offences of this type are committed over a period of time with the offender being motivated by greed, both personal and general deterrence should be reflected on sentence: Van Haltren v R at [86]. The significance of general deterrence when sentencing for identity crime has been emphasised: Stevens v R [2009] NSWCCA 260 at [1]-[7], [79].
These principles have application to the Applicant's case as well, given the combination of serious offences committed by him under the Currency Act and the Anti-Money Laundering Act.
The sentencing Judge found that the Applicant's motive for offending was greed. Whilst noting the Applicant's claim of a gambling addiction, the sentencing Judge observed that this may explain his offending behaviour, but not excuse it. To the extent that there was evidence of a gambling addiction on the Applicant's part, his Honour's approach was consistent with authority that the commission of offences to feed a gambling addiction will not generally be a mitigating factor on sentence: Johnston v R [2017] NSWCCA 53 at [36]ff.
The sentencing Judge was correct to have regard to the importance of maintenance of public confidence in the currency system, passport and immigration procedures as well as mechanisms employed by banks and others to guard against the use of false identity documents (see [59] above).
The objective criminality of the Applicant's offences was substantial indeed.
General deterrence was an important factor on sentence (ROS13 at [59] above).
Specific deterrence was an important factor in the Applicant's case given his prior history of offences of dishonesty involving fraud and falsification of documents in Germany in 1992, 1994, 2000 and 2006 (ROS13 at [59] above).
Subject to what follows concerning the Applicant's prospects of rehabilitation and risk of reoffending, all findings made by the sentencing Judge, apart from that with respect to the guilty pleas, should stand for the purpose of resentence.