Lami v R

Court of Criminal Appeal (NSW)|2021-11-12|Before: Macfarlan JA, Rothman J, Dhanji J, MacFarlan JA

Judgment

MACFARLAN JA: I agree with Dhanji J.
ROTHMAN J: I agree with the reasons for judgment of Dhanji J and the orders he proposes.
DHANJI J: The applicant, Ms Zahraa Lami, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on her by Armitage ADCJ on 2 November 2020 in the District Court at Sydney.
On 23 July 2020 the applicant pleaded guilty to one count of dealing with money or property that was proceeds of crime, being reckless as to the fact that it was proceeds of crime, where the value of the property was $1,000,000 or more (contrary to s 400.3(2) of the Criminal Code (Cth)). The offence was particularised as having been committed between 18 and 21 July 2017. The maximum penalty is imprisonment for 12 years.
On 2 November 2020 the applicant was sentenced in the District Court by Armitage ADCJ to 4 years imprisonment commencing on 19 September 2020 and expiring on 18 September 2024, with a non-parole period of 2 years imprisonment expiring on 18 September 2022.
The applicant seeks leave to appeal on the following two grounds: "a. The sentencing judge erred in assessing the objective seriousness of the [applicant's] offending behaviour, in that, he failed to give appropriate weight to the mitigating circumstances that would have persuaded him to find that the objective seriousness of the offence was well below the mid-range, even low range; b. The sentencing judge erred in assessing the objective seriousness of the [applicant's] behaviour by giving undue and overwhelming weight to general deterrence."

Factual background

The agreed facts tendered at the proceedings on sentence disclosed the following.
The applicant's dealing with the proceeds of crime related to her engagement in banking transactions totalling $4,010,000 between 19 July and 21 July 2017.
In early 2017 a scheme to defraud Commonwealth funds was set up by a person described as "XY", Mr Omar and Mr Miller. The scheme involved purchasing two pre-existing childcare businesses, iWonder and iGrow as front companies to falsely claim childcare benefits. A total of 398,936 childcare sessions were falsely claimed in respect of 2,132 children. As a result, the Commonwealth Government Department of Education and Training paid a total of $9,274,016 into the companies' respective bank accounts between February and July 2017. The applicant was not complicit in this scheme. Her offending relates to dealing with some of the proceeds of that scheme. Her involvement is described below.
The applicant was a family friend of XY. She had approached XY seeking $80,000 to purchase her ex-husband's share of their house in Iran. She told XY that she was happy "to do whatever to get $80,000". The applicant was at that time a single mother of three children receiving Centrelink payments as her sole form of income. She had little understanding of English.
The company iGrow was purchased by Mr Omar, Mr Miller and XY in June 2017. The applicant was approached to be the "front person" because she was desperate for money. XY's statement to police disclosed the following in relation to their conversation: "I told [the applicant] that there's something that they will put you as a director [of a child care company] and it is risky and Police may get involved. She agreed to do anything what it takes for the money. MILLER told her he would get her $80,000. … [the applicant] said 'yes' to doing it and asked 'when can we start'."
iGrow was purchased on or about 28 June 2017 and the applicant was appointed a director of iGrow and sole signatory to the company's bank accounts. Over a period of 29 days (from 20 June 2017 to 18 July 2017), false claims were lodged in respect of 264,303 childcare sessions, amounting to $5,724,304 in rebates. This amount was deposited into iGrow's bank account by the Department of Education and Training. Of that money, $4.3 million was transferred into another account, the "Smart Care Solutions" bank account. The applicant was also the sole signatory for the Smart Care Solutions bank account.
On 19 July 2017 the applicant and XY attended the Commonwealth Bank at Guildford. XY was wearing a niqab including a veil covering her hair and face. XY later said that it would have been unusual for the applicant to see her dressed like this but that the applicant did not ask why she was wearing it. While at the branch, XY spoke to the teller and directed the applicant to transfer $1 million from the Smart Care Solutions bank account into a "Fayhaa Poultry" account (controlled by Mr Miller and Mr Omar) and to purchase five bank cheques each for $100,000 payable to Smart Care Solutions. XY took the bank cheques and put them in her bag. These dealings totalled $1.5 million.
Later that afternoon XY and the applicant attended the Commonwealth Bank at Granville and purchased 20 bank cheques, each for $100,000 (totalling $2 million) from the Smart Care Solutions bank account, payable to three separate entities. XY said that she did "most of the talking" with the bank teller.
On 20 July 2017 the applicant, XY and a third person entered the Commonwealth Bank branch at Guildford and deposited five of the bank cheques totalling $500,000 into the Smart Care Solutions bank account. They then purchased six bank cheques for $100,000 payable to Fayhaa Poultry. The applicant and XY also purchased another four bank cheques in the amount of $100,000 each and withdrew $10,000 in cash from the Smart Care Solutions bank account. XY gave the applicant $10,000 and said, "it is your pay". Not counting the recycling of the five bank cheques that were deposited, the net withdrawals as a result of these transactions was $510,000 (bringing the total from the above transactions to $4,010,000).
On or about 25 July 2017 most of the relevant bank accounts were suspended. The applicant and XY made multiple unsuccessful attempts to have the accounts reactivated. A total of $3,880,394 was recovered from the $5,724,304 in rebates deposited in the iGrow account (leaving $1,843,910 which was not recovered). The proceeds dealt with by the applicant on 19 and 20 July 2017 were recovered except for the $10,000 cash given to the applicant and $219,606 which was withdrawn from the Fayhaa Poultry bank account.
On 3 August 2017 the applicant participated in a voluntary record of interview. She admitted that she had no experience in childcare and said that XY had directed her to purchase the iGrow business and take over its bank accounts. The applicant explained that she had been looking for a way to make money as Centrelink was not enough to support her children and she was separated from her husband. The applicant said that XY offered to help her obtain $80,000 but told her not to ask any questions. The applicant confirmed that she believed it was suspicious when XY covered her face to attend the bank (noting here that the offence was one of recklessly dealing with the proceeds of crime).
In relation to payment, she said that XY gave her $740 every two weeks as well as $10,000 cash from Guildford bank. The applicant said she did not know what was going on when she attended the bank branches with XY but she understood that the amounts involved on 19 and 20 July 2017 were around $700,000 and $500,000 respectively.

Proceedings on sentence

Proceedings on sentence were conducted on 23 October, 30 October and 2 November 2020. A Crown bundle was tendered comprising a statement of agreed facts, a summary of the Corrective Services NSW COVID-19 response, written submissions and a schedule of comparative cases. A defence bundle was also tendered comprising a psychological report of Clair Baker dated 24 August 2020, seven character references, a letter from the applicant to the Court and two medical reports dated 27 July 2020 and 12 October 2020.
Counsel for the applicant noted that she appeared "disinterested" in CCTV footage of the transactions and that XY was communicating with the teller and handing documents to the applicant for signature. It was submitted that the applicant's involvement effectively lasted two days and was only undertaken at the direction of XY.
It was further submitted in relation to objective seriousness that the applicant was not aware of the full amounts involved and that the best evidence of her state of mind was when, in the applicant's record of interview, she stated that she believed the amounts were $700,000 and $500,000 respectively. The Crown noted that the terms of s 400.3(4) provide that absolute liability attaches to the value of the property dealt with. Supplementary written submissions were provided on this issue.

Remarks on sentence

The sentencing judge summarised the agreed facts as set out above. His Honour noted that the applicant's offending related to $4,010,000 dealt with on 19 and 20 July 2017 and that her role was that of a "front person". His Honour went on to observe that the applicant did not know the details of the fraudulent scheme and was "effectively being directed" by XY to undertake the transactions. The sentencing judge was satisfied that the applicant was subordinate in the criminal hierarchy and that her conduct was not planned and lacked sophistication.
The sentencing judge noted that the Crown relied on the $4,010,000 actually dealt with while the applicant relied on her apparent belief that the amount involved was $1,200,000. His Honour concluded that the applicant was not aware of the full amount involved and that she believed it was around $1,200,000. It was noted that this amount was "not far above the lower limit" for an offence under s 400.3(2) but the sentencing judge took into account the "general circumstances of the offending and the loss to the Commonwealth" as countervailing factors relevant to the seriousness of the offending.
The sentencing judge noted that the offending occurred over a period of only two days. His Honour went on to observe that "the amount of money involved … and the general circumstances of it" had to be taken into account and concluded that the objective seriousness of the offending fell "below the middle of the range although … not far below."
In relation to the applicant's subjective case his Honour noted that the applicant was born in Iran and was 33 years old at the time of the offence and 36 years old at the date of sentence. The applicant married at the age of 16 and moved to Australia with her husband. She faced challenges communicating in English while in Australia and eventually divorced. She returned to Australia in 2016 and had difficulty finding a house for herself and her three children. She was living on Newstart at the time of the offence and had recently secured stable housing for her family.
The sentencing judge found some remorse on the basis that the applicant had repaid the $10,000 she obtained from XY. The applicant was found to have a low risk of re-offending. His Honour found special circumstances in light of the applicant's need for rehabilitation and her mental health diagnosis (mild major depressive disorder). The sentencing judge found that there was insufficient evidence to establish that the applicant's incarceration would cause exceptional hardship to her family.
The sentencing judge applied a discount of 20% for the applicant's plea of guilty, despite its lateness, due to the anticipated length of the trial. It was noted that the applicant had no criminal history, which was a mitigating factor, although this was said to be less significant in the circumstances of the particular offence.
His Honour had regard to the applicant's submission that full-time custody was not necessarily required but accepted the Crown submission that only "significant fulltime custody" was appropriate, on the basis that the conspiracy was "a serious one" involving a very large loss to the Commonwealth. His Honour took into account the factors set out in s 16A(2) of the Crimes Act 1914 (Cth) and noted the need for general deterrence.
His Honour then imposed the sentence as set out above.

Ground 1

The first ground of appeal complains that the sentencing judge erred by failing to give "appropriate weight" to mitigating circumstances in assessing the objective seriousness of the offence. This is not a complaint that the sentencing judge failed to take any particular matter into account, took into account a matter that was irrelevant, or failed to apply or incorrectly applied a particular sentencing principle. Rather, the ground proceeds on the acceptance that all relevant matters were taken into account, but contends that some of those matters did not receive "appropriate weight". The weight to be given to the evidence, and to the various purposes of sentencing, is a matter for the sentencing judge: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. As such, it will not generally be possible for an applicant to establish error on the basis that "too much weight" or "insufficient weight" was placed on one matter or another.
In the present matter the applicant complained that the following factors were significant in the assessment of the objective gravity of the offence (and should have resulted in a different assessment of objective seriousness): "c. That the [applicant's] offending behaviour was limited to her conduct in signing bank cheques made out to company bank accounts not under her control and withdrawing $10,000.00 over a two-day period; d. That the [applicant's] role was primarily to distance those higher up in the hierarchy from the offending and her role as a front person was minor; e. that the [applicant] was sentenced on the basis that she had recklessly signed bank cheques to the amount of $1,200,000.00 and falls not far above the lower limit for offending under the legislation and was not aware of the full amount involved; f. The [applicant's] mens rea was to obtain $80,000.00 to purchase her husband's share in property in Iran. Her greed was not unfettered; g. That the [applicant] was directed by XY to sign bank cheques and the totality of her offending behaviour was under direction of XY; h. That despite being the director of the company and in prima facie control of the company bank accounts, the [applicant] could not access the funds electronically as the electronic key was in the possession of Miller. i. The [applicant] made no attempt to conceal her identity in her offending and that [the] overall behaviour lacked planning or sophistication, unlike her cooffenders." (footnotes omitted)
As noted above, the applicant, properly, accepted that each of these matters was referred to by the sentencing judge. Further, no complaint was made with respect to any aspect of the sentencing judge's reasons which suggested a particular factor was or was not given proper consideration. In these circumstances, the determination of whether "appropriate weight" was given to the various matters relied on as impacting the objective seriousness of the offence can only be determined by an assessment of whether his Honour's assessment of the objective seriousness as "below the middle of the range", or the ultimate result was outside the legitimate range of his Honour's sentencing discretion.
With respect to the former issue, it was argued that, having regard to the factors listed above, the offending should have been assessed as "well below the mid-range, even low range".
In Mulato v R [2006] NSWCCA 282, Spigelman CJ said (at [37]): "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."
Simpson J said (at [46]): "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."
See also, more recently, Greentree v R [2018] NSWCCA 227 at [34] per Beech-Jones J (as his Honour then was).
Ultimately, it can be accepted that the applicant was involved over a relatively short time and performed a role in which she was less culpable than her co-offenders. This lesser role was reflected in the fact that she acted at the direction of others, that she did not herself have uncontrolled access to the funds, and that she was, as the signatory to the accounts, exposed to the highest risk of detection. Nonetheless, she was guilty of a serious offence.
As to the amount involved, the sentencing judge accepted, based on the agreed facts tendered without objection, that the applicant dealt with a total amount of over $4 million. While the sentencing judge accepted the applicant's submission that she believed the amount to be $1.2 million this did not change the objective fact that she dealt with the larger amount. In this regard, the charge itself was framed in terms of the provision, without particularisation of the actual amount of money involved. The elements of the offence were that the applicant dealt with money or other property, that money or property was the proceeds of crime, the applicant was reckless as to this fact, and the value of the money or other property was $1 million or more. Section 400.3(4) provides that absolute liability applies to the circumstance that the value of the property was $1 million or more. Thus, if a person were to pick up a bag of cash which is the proceeds of crime totalling over $1 million, but believing it to contain less than $1 million, and is reckless as to the money being the proceeds of crime, he or she will be guilty of an offence against s 400.3(2) of the Criminal Code. Such a person would necessarily be sentenced on the basis he or she dealt with money with a value of over $1 million despite a belief as to a lower amount. The amount of money actually dealt with is therefore, clearly relevant to the objective gravity of the offence.
While the sentencing judge accepted that the applicant's belief was that she dealt with $1.2 million, the mitigatory impact of this finding should not be overstated. That is because, in dealing with money in the circumstances in which she did, the amount of money involved could not have been hidden from the applicant. Given that she had a state of mind amounting to recklessness under the Criminal Code with respect to the money she was dealing with, while not irrelevant, it does not significantly assist the applicant to say that she did not take note of the amount of money actually involved.
In further support of his submission that the sentencing judge mischaracterised the objective gravity of the offending, counsel for the applicant referred to the decision in R v Viana [2008] NSWCCA 188 and submitted that the offending in that case was much more serious than the present case. It was submitted that, given that the offending there was assessed as within the mid-range, this suggested the assessment in the present case was in error. The first difficulty for the applicant in this regard is that this Court has stated that it is not appropriate to compare findings of objective seriousness from other cases: R v Bonett [2009] NSWCCA 135 at [35]. In any event, the objective seriousness in the present matter was described in terms suggesting it was lower in the scale than the assessment in Viana. Given the lack of precision in such assessments and the limited nature of the review of such assessments, there is nothing to be gained by an analysis as to how far apart the two cases are and whether this is reflected in the assessment in the present case.
On the basis of the above, the applicant has not established that the sentencing judge's assessment that the objective seriousness of the offending as "below mid-range" (as opposed to well below mid-range or towards the lower end of the range) was not open to him. Nor has any other House error (House v The King (1936) 55 CLR 499; [1936] HCA 40) been established with respect to his Honour's determination of objective seriousness.
To the extent that the applicant's submissions relied on the sentence imposed as indicative of error, his Honour was involved in the exercise of a discretion. In this context, as was pointed out in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, per Gleeson CJ, Gummow, Hayne and Callinan JJ, at [27]: "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." (footnotes omitted)
While accepting the various matters that impacted the objective seriousness of the offence, it remained a serious offence. While the sentence was stern, I am not of the view that it was outside the legitimate bounds of the sentencing judge's discretion.

Ground 2

As noted above, the second ground of appeal complains that "the sentencing judge erred in assessing the objective seriousness of the [applicant's] behaviour by giving undue and overwhelming weight to general deterrence". This ground, as framed, does not on analysis assert an error in the application of proper sentencing principle. The asserted error in assessing objective seriousness is said to have arisen as a result of the giving of undue weight to general deterrence. The proper process of sentencing required the sentencing judge to have regard to all matters relevant to a sentencing purpose to arrive at a result to which any applicable discounts were to be applied. This first step required the sentencing judge to make an assessment of objective seriousness, or, put another way, where the offending sat within the scale of offending against the relevant provision. The objective seriousness of the offending together with all other matters relevant to a sentencing purpose, were then to be considered against the purposes of sentencing, including general deterrence (see Crimes Act, s 16A(2)(ja)), as part of the intuitive synthesis. The finding as to objective seriousness in this exercise will impact the weight to be given to general deterrence. But general deterrence does not inform, and the sentencing judge did not suggest it informed, the determination of objective gravity. The ground is unsustainable. To the extent that this ground of appeal seeks to agitate the weight given to general deterrence, the observations made in the context of ground 1 as to the difficulty in succeeding based an assertion of too much or too little weight being given to a particular consideration apply. As with ground 1, in circumstances where there is nothing to demonstrate undue weight other than the result, and the result is not outside the available range, ground 2 must fail.
I would propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

Amendments 10 December 2021 - [44] - typographical corrections: "Crimes (Sentencing Procedure) Act" amended to "Crimes Act 1914" and "unstainable" amended to "unsustainable" 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: 10 December 2021

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