McRae v R

Court of Criminal Appeal (NSW)|2023-02-13|Before: Wilson J, Adams J, Cavanagh J, Adams JJ

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant sought leave to appeal from a sentence imposed upon her in respect of one count of dealing with proceeds of crime being reckless as to whether it was the proceeds of crime, contrary to s 193B(3) of the Crimes Act 1900 (NSW) and one count of deal with property where there are reasonable grounds to suspect that the property is the proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW). In 2020, police commenced investigations into an organised money laundering scheme. The applicant and a number of other co-offenders were recruited to participate in the scheme. The applicant established a company, opened bank accounts, flew from the Gold Coast to Sydney on a number of occasions, deposited cash given to her by persons higher up in the scheme into the bank accounts and then transferred the money to bank accounts controlled by a cryptocurrency dealer in Queensland. Count 1 involved the sum of $188,000 in cash. Count 2 involved the sum of $883,500 in cash. The applicant pleaded guilty in the District Court of NSW to both counts. The sentencing judge allowed for a partial accumulation and imposed a total sentence of 3 years and 6 months imprisonment with a non-parole period of 1 year and 9 months. The applicant sought leave to appeal on two grounds, being: 1. his Honour erred in assessing the role of the applicant, including by having undue regard to the activities of others; and 2. the sentence was manifestly excessive. The Court per Cavanagh J (Wilson and N Adams JJ agreeing) granted leave to appeal but dismissed the appeal. Ground 1 The test to be applied to a challenge to factual findings made by a sentencing judge is whether the findings were open on the evidence before the sentencing judge (see R v O'Donoghue (1988) 34 A Crim R 397) (per Cavanagh J at [54]). The Court accepted that the findings as to the applicant's role were open to the sentencing judge, although there were no agreed facts as to those two matters. There was other evidence, such as the information provided by the applicant to a clinical psychologist, to which his Honour was entitled to have regard (per Cavanagh J at [62]). Further, the sentencing judge was entitled to draw inferences having regard to the evidence as a whole (per Cavanagh J at [62]). The applicant was unable to identify any reasonably available inferences, other than those made by the sentencing judge, as to the applicant's involvement in the scheme. Ground 1 was dismissed. In respect of Ground 2, the applicant relied on a mathematical calculation having regard to the indicative sentences (prior to the application of the 25% discount) to support the submission that the sentence was manifestly excessive. There is no evidence that his Honour adopted any impermissible mathematical approach and, further, it is difficult (and perhaps, misconceived) to rely upon mathematical calculations as a basis for contesting indicative sentences (per Cavanagh J at [70]). [1] The applicant did not point to any other factors in the sentencing exercise which might have suggested that the sentence was manifestly excessive, nor did she refer to any other comparative cases (per Cavanagh J at [73]). The Court dismissed Ground 2.

Judgment

WILSON J: I agree with Cavanagh J.
N ADAMS J: I agree with Cavanagh J.
CAVANAGH J: The applicant, Hayley McRae, seeks leave to appeal from the sentence imposed upon her in the District Court of New South Wales by Judge King SC on 14 April 2022.
The applicant entered a plea of guilty in respect of two offences, being: 1. That between 3 February 2021 and 4 February 2021, she did deal with the proceeds of crime, namely $188,000 cash, being reckless as to whether it was the proceeds of crime, contrary to s 193B(3) of the Crimes Act 1900 (NSW) (sequence 3); and 2. Between 9 December 2020 and 29 January 2021, she did deal with certain property, namely $883,500 cash, that there were reasonable grounds to suspect were the proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW) (sequence 7).
In respect of sequence 3, his Honour provided an indicative sentence of 2 years and 6 months imprisonment.
In respect of sequence 7, his Honour provided an indicative sentence of 3 years imprisonment.
His Honour allowed for a partial accumulation and imposed a total sentence of 3 years and 6 months imprisonment with a non-parole period of 1 year and 9 months, such that the applicant will be eligible for parole on 13 January 2024. The total sentence will expire on 13 October 2025.
The applicant seeks leave to appeal on two grounds, being: 1. his Honour erred in assessing the role of the applicant, including by having undue regard to the activities of others; and 2. the sentence was manifestly excessive.
The maximum penalty in respect of sequence 3 is 10 years imprisonment. The maximum penalty in respect of sequence 7 is 5 years imprisonment. There is no standard non-parole period in relation to either of the offences.
For the purposes of sentence, his Honour received a statement of agreed facts, a sentencing assessment report, a report of a clinical psychologist, Dr Sam Borenstein, dated 22 March 2022, some references and other medical evidence. The remarks on sentence were largely based on the agreed facts (albeit that the applicant asserts that the sentencing judge made findings beyond the agreed facts which were not supported by the evidence).
As the sentencing judge observed, in 2020, police commenced an investigation into organised money laundering by Mr Yi Zhong and other people. The police uncovered evidence of a well-established organised and ongoing criminal group directed by Mr Zhong. The objective was to launder money from the proceeds of crime. Mr Zhong routinely received large amounts of Australian currency from various persons and converted that cash into Bitcoin cryptocurrency before returning the cryptocurrency to those persons who had provided him with the cash.
In or about December 2020, the applicant and a number of other co-offenders were recruited to assist in that process. The applicant's role was at a relatively low level. The conduct of the applicant which gave rise to both counts was of a similar nature.

Sequence 7 - Deal with property suspected to be proceeds of crime

On 7 December 2020, the applicant along with three co-offenders flew on the same flight from the Gold Coast to Sydney, having been recruited by a person higher up the chain, Mesut Torun, to make cash deposits at banks. After checking into their hotel, which was paid for by one of the co-offenders, they met Mr Torun in the foyer of the Rydges Hotel at Parramatta.
Thereafter, the co-offenders made a number of cash deposits into differing bank accounts in the names of companies that each of the co-offenders had established/registered (and remained the sole directors of) at the time of the deposits.
On 9 December 2020, the applicant made two cash deposits ($15,250 and $14,750) at two separate bank branches into accounts for a company that she had registered on 7 December 2020 named "Temptations Agency Proprietary Limited". At the time of registration and depositing of the money into the account, the applicant was the sole director of the company.
On the same day, other co-offenders (Mr Hope and Mr Prasad) made two separate cash deposits in the names of companies which they had registered and of which they were the sole directors.
All of the companies shared the same postal address at 171/10 Albert Street, Broadbeach, Queensland, which was a mailing centre.
As part of the findings on sentence, the sentencing judge said: "Each bank account that received cash deposits made by the offender transferred a corresponding amount from the account a short time later. The funds were transferred to bank accounts controlled by Bitflow Proprietary Limited, a cryptocurrency dealer in Queensland."
On 10 December 2020, the applicant and a number of the co-offenders (Mr Prasad, Mr Riddleston and Mr Hope) again made a number of cash deposits at separate bank branches. The applicant made two cash deposits ($17,250 and $18,550) at two separate bank branches.
All of the cash deposits made on 10 December 2020 were made into bank accounts linked to 171/10 Albert Street, Broadbeach in Queensland.
The sentencing judge found: "Once the cash was deposited into the various business accounts by an offender, the full amount of each deposit was invariably transferred out of the account on the same (or following) day. The cash was transferred into Bitflow-controlled accounts and sent offshore where it was converted to cryptocurrency - namely, Bitcoins. The Bitcoins were sent to a digital wallet controlled by Zhong."
As the sentencing judge noted, during December 2020, the applicant made four cash deposits totalling $65,800 into bank accounts linked to her.
Then, between 11 January 2021 (incorrectly specified as 2020 in the agreed facts) and 29 January 2021, the applicant made 24 separate cash deposits into the bank accounts of either Temptations Agency Pty Ltd (being the company which she established) or Empire Auto Group (being the company which was established by a co-offender, Mr Prasad) as follows: 2.2.1 ANZ - 12 January 2021 to 29 January 2021 $129,900 2.2.2 Westpac - 11 January 2021 to 28 January 2021 $141,150 2.2.3 NAB - 11 January 2021 - 25 January 2021 $174,500 2.2.4 CBA/Bankwest - 11 January 2021 - 28 January 2021 $263,700 2.2.5 Bendigo - 13 January 2021 $30,000 2.2.6 Suncorp - 19 January 2021 $48,200 2.2.7 Credit Union - 12 January 2021 $30,000

The total amount of cash deposited by the applicant during December 2020 and January 2021 was $883,500.
The sentencing judge made similar findings in respect of each of the co-offenders in terms of the deposits they made into various accounts and, specifically, into the accounts of the companies which they had established.

Sequence 3 - Recklessly deal with proceeds of crime

His Honour then went on to make findings in respect of the applicant's dealing with the proceeds of crime in February 2021. On 21 January 2021, a surveillance device in Mr Zhong's home recorded a 40-minute conversation of Mr Zhong recruiting another co-offender, Judy Ly, to assist him in money laundering. Essentially, the arrangement was that Ms Ly would receive $1 million in cash (weekly) and hold onto it until $330,000 was picked up every Monday, Tuesday and Wednesday. For that, Mr Zhong would receive $8,000 per week and Ms Ly would be paid $2,000 per week.
The discussion between Mr Zhong and Ms Ly was captured on CCTV by a camera at Ms Ly's unit complex on 1 February 2021. Mr Zhong could be seen taking a large duffle bag (containing $1 million cash) into Ms Ly's apartment complex and then leaving six minutes later without the bag. Five hours later, Ms Ly could be seen leaving her complex and being handed a small Louis Vuitton bag by Mr Torun.
The next day, on 2 February 2021, Ms Ly was again captured on CCTV leaving her unit complex. Mr Torun was recorded as attending. Ms Ly handed a green bag containing cash to Mr Torun.
The following day, Mr Torun made four cash deposits totalling $124,700 at four separate bank accounts for Pawn Hub Pty Ltd.
On 2 February 2021, three of the co-offenders again flew from the Gold Coast to Sydney and made cash deposits into separate bank accounts for various amounts.
On 3 February 2021, the applicant flew from the Gold Coast to Sydney. She made three cash deposits of $37,800, $34,700 and $15,500 (totalling $88,000) at three separate banks into the Temptations Agency bank account.
She did the same thing the next day; that is, she made three cash deposits ($35,200, $33,500 and $31,300) totalling $100,000 into the Temptations Agency bank accounts at three separate banks in Parramatta. The conduct of the applicant on 3 and 4 February is the subject of sequence 3.
The applicant did not have any association with the co-offenders after 5 February 2021.
Mr Zhong was arrested on 22 February 2021. Mr Torun and Ms Ly were arrested on 10 March 2021. The applicant was arrested on 14 April 2021. The other co-offenders operating at a similar level (Mr Bryson, Mr Riddleston, Mr Prasad and Mr Nicolaou) were similarly arrested.

Remarks on sentence

In respect of the sequence 7, his Honour observed that: 1. The applicant registered a dummy company which was not involved in any real business; 2. She went to the effort of opening seven bank accounts at seven different banks into which she eventually deposited the money; 3. She specifically flew from the Gold Coast to Sydney with the co-offenders in December 2020 to participate in the offence; 4. She stayed in the same hotel as the co-offenders and would have known that the co-offenders were involved in the same activity. This demonstrated a degree of planning to commit the offence, the offence being a rolled-up charge that occurred over more than seven weeks and involved going to seven separate bank accounts to make 28 separate deposits. The effort to separate the deposits was done to try and conceal the larger amount which might have attracted the attention of authorities; 5. The total amount (that is, $883,500) was 8.8 times the minimum for this type of offence and thus a significant quantity of money; and 6. The offender transferred the funds to a cryptocurrency dealer in Queensland where it was then converted to cryptocurrency.
In respect of sequence 3, the sentencing judge observed that by her plea, the applicant admitted that when she committed the physical elements of the offence, she foresaw the possibility that the money was the proceeds of crime. She flew from the Gold Coast to Sydney to participate in the offence. His Honour found that the total amount (being $188,000) was not an insignificant quantity of cash.
His Honour found that the applicant must have appreciated that she was dealing with the proceeds of crime and was reckless as to the source of the funds, although he observed that most people would conclude that such sums of money were highly likely to be the proceeds of drug dealing rather than any other type of offence.
His Honour explained that, although all of the offenders had not yet come before the Court for sentence, it was important that the conduct of the offender be viewed in the context of the overall scheme which was being operated by Mr Zhong.
However, his Honour also observed that what the co-offenders might have done was not relevant to the sentence to be imposed in respect of the applicant.
His Honour concluded that each of the offences was a serious example of such an offence.
Turning to subjective matters, his Honour observed that the applicant was 22 years old at the time of the offending and 24 years old at the time of sentence. She ought not to be regarded as a fully mature individual but she was significantly older than 18. She had no prior convictions. His Honour had regard to the Sentencing Assessment Report, noting that when the applicant was interviewed for the purposes of that report, she clearly sought to diminish her role and pretended that she had no knowledge of what was going on.
His Honour considered those matters relevant to the issue of remorse and contrition. His Honour had regard to a report from Mr Sam Borenstein, Clinical Psychologist, as well as other documents, including a letter from Headspace Southport and various character references.
His Honour noted that the applicant tended to diminish her role in the offending, having regard to the history obtained by Mr Borenstein. The applicant claimed that she did not know that she was a director of the company she had established until after she had been arrested and that, although she had opened various bank accounts, she had no knowledge of the money deposited as being the proceeds of crime.
His Honour noted the school history of the applicant (which was unremarkable) and that she had worked as a teenager. There was no family history of psychiatric or psychological injury. She had been in a short-lived violent relationship. She fell pregnant between the time of the offending conduct and sentence. At the time of sentence, she was 17 weeks pregnant, albeit she no longer had any contact with the father of the child.
His Honour accepted the opinion of Mr Borenstein that the applicant suffered from depression, moderate symptoms of anxiety and severe symptoms of stress.
His Honour did not accept that the applicant had demonstrated remorse and contrition. The applicant did not give evidence on sentence and his Honour found that there was nothing in the report of Mr Borenstein which might suggest that she had expressed remorse or contrition. His Honour considered the applicant was a low risk of reoffending, particularly as she was pregnant.
In the end, after expressing some concern, his Honour expressed satisfaction that the threshold set in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act") had been passed and sentenced the applicant to the term of imprisonment. He reduced the non-parole period to 50%, noting that the applicant would be eligible for release at the time that should allow her, if she continued with the pregnancy and gave birth to the child, to be released at a reasonable time to re-establish contact with the child.

Ground 1

The central proposition advanced by the applicant is that there is no evidence that she created the bank accounts linked to the company she registered and, further, there is no evidence that, after the money was deposited into the accounts, it was the applicant who sought to transfer it out of the accounts.
The applicant submits that the sentencing judge erred in finding both that the applicant established the bank accounts and that she transferred the money out of the bank accounts. The applicant particularly refers to the statements of the sentencing judge that "she went to the effort of opening seven bank accounts at seven different banks into which to eventually deposit the money" and "transferred the funds to a cryptocurrency dealer in Queensland where it was then converted to cryptocurrency."
The applicant submits that these findings, coupled with the (said to be) focus of the sentencing judge on the activities of others, conflated the applicant's role with people engaged in similar roles but to a greater extent and involving greater amounts of currency. The applicant submits that his Honour wrongly conflated the applicant's role with those people at a higher level within the hierarchy. This is said to have represented an error in the exercise of the sentencing discretion because it wrongly elevated the applicant's level of criminality.
The Crown accepts that the sentencing judge made the two findings of fact which the applicant seeks to challenge. That is, that the applicant opened the bank accounts linked to the company she registered and, secondly, that she transferred the funds to a cryptocurrency dealer in Queensland. The Crown accepts that each of the findings relate to his Honour's assessment of the objective seriousness of sequence 7.
The Crown submits that the agreed facts provide an evidentiary basis for both findings. Bearing in mind that the applicant registered the company name and listed herself as a sole director and shareholder, it was open to the sentencing judge to infer that she was responsible for opening the bank accounts in the company name. Similarly, it was open to the sentencing judge to find that she transferred the funds to the cryptocurrency dealer. Again, she was the sole director and shareholder, and the funds were transferred at a time proximate to the times when they were deposited by her.
Further, the Crown submits that the references to the role of the co-offenders and the explanations of those persons involved in the scheme throughout the sentencing judgment did not have the effect or tendency to conflate the role of the applicant. His Honour clearly identified the role played by the applicant in respect of each of the offences.
The test to be applied to a challenge to factual findings made by a sentencing judge is whether the findings were open on the evidence before the sentencing judge (see R v O'Donoghue (1988) 34 A Crim R 397).
Certainly, as was submitted, there was no statement in the agreed facts that it was the applicant who set up the bank accounts and that she was the person who transferred the funds out of the accounts. The agreed facts were silent on these matters.
The position of the applicant on appeal appears to be that, as there were no specific agreed facts as to who set up the bank accounts and who transferred the money, it was not open for the sentencing judge to make any findings about those matters.
During oral submissions, Counsel for the applicant submitted that the inference drawn by his Honour that the applicant transferred the money out of the bank accounts was only one amongst many which were available. However, absent identification of any other available inferences, I have difficulty understanding what they might have been. Mere speculation will not suffice and no other compelling inferences were advanced, either in the court below or in this court.
Further, the following exchange took place with Counsel for the applicant (in the court below) during the sentence hearing: "HIS HONOUR: But the fact is that there was a significant quantity of money, in circumstances where she flew from Queensland to New South Wales in order to deal with it and deposit significant amounts of cash at different banks but into her own company account, the company having been set up late in the day purely for the purpose of those accounts, and then transferring the money to one of the other players so that it could accordingly be changed into bitcoin and hence, disguised from the authorities. BUCKMAN: Absolutely. There is no issue about any of that; that's what happened, your Honour. HIS HONOUR: Any ordinary person would ask themselves why is someone paying me to fly, paying the fare, no doubt, to fly from Queensland to New South Wales in order to stay in a hotel or motel for a number of days in order to collect cash money and take it to not one bank to deposit to the account of "My Company", but to several banks to deposit into that account, and then asking them to immediately transfer the money without any significant delay to another account. I mean, it defies belief, doesn't it? BUCKMAN: Yes."
Counsel then went on to say: "BUCKMAN: Yes and that is the essence of the recklessness aspect of the offence and the fact that she should have reasonably suspected that they be proceeds of crime. She only deposited the money in; she didn't have anything to do with the transfer after the money had been deposited in. HIS HONOUR: How was it transferred from accounts that were in her name or the company's name? BUCKMAN: That was done by the principals, your Honour, I'm not sure how, my friend might be able to assist on that, but she didn't have anything to do with that. My friend might be able to -"
Then, when the Crown was asked, the following exchange ensued: "KO: --sole director is the offender, and the evidence is the offender set up those bank accounts and she must have been provided the details to transfer. HIS HONOUR: Or she had to authorise the transfer. KO: She had to authorise someone else, but of course, your Honour has no evidence about that; your Honour only has the facts that these bank accounts are in a company name that she is the sole director for, and she was the one that set up the bank account. By inference, she was the one who transferred or at least she authorised someone to transfer."
During his submissions on appeal, Counsel for the applicant agreed that, having regard to the submissions on sentence, the most that could be said for the applicant is that the Crown wrongly said to his Honour, without any further demur, objection or challenge from the applicant that: 1. the evidence is that the applicant set up the bank account; and 2. there was an available inference that the applicant transferred the money out of the bank accounts.
In my view, the applicant is not entitled to succeed on ground 1 for the following reasons: 1. Firstly, although there may not have been any agreed fact about who established the bank accounts, the applicant relied on the report of Mr Borenstein, Clinical Psychologist, as evidence on sentence. In Mr Borenstein's recitation of the history provided by the applicant to him, he records that "Ms McCrae states she opened various accounts…" The Crown Prosecutor may or may not have been referring to that evidence when submitting that the evidence established that the applicant opened the accounts, but it is not the position that there was no evidence to support the finding made by the sentencing judge. There was merely no fact agreed upon by the parties. 2. It may be unsurprising that Counsel for the applicant on sentence did not respond to or challenge the statement of the Crown Prosecutor about the evidence in those circumstances. 3. The sentencing judge must be taken to have considered all of the evidence and not just the statement of agreed facts. 4. Further, in circumstances in which the applicant was the sole director of the company which had only been established shortly before the money was deposited into the accounts, the compelling inference is that the applicant established the accounts as she was recruited to do. 5. Similarly, although Counsel for the applicant submitted that the inference that she transferred the money out of the accounts as part of that which she was recruited to do was not the only available inference, Counsel ultimately accepted that there were no other competing inferences (it was only speculation). Drawing inferences is part of the process of fact-finding. Juries are instructed that they may draw an inference for the purposes of determining facts. The sentencing judge was entitled to draw an inference urged upon him by the Crown, particularly in circumstances in which it was not suggested to the contrary by Counsel for the applicant on sentence and no competing inferences were raised. 6. In my view, the applicant overstates the significance of the findings of fact which she seeks to challenge in the determination of objective seriousness. Nothing said by the sentencing judge elevated those particular findings (amongst all of the other findings made by his Honour) to be of such significance that this Court should conclude that his Honour erred in the ultimate conclusion as to the seriousness of the offending.
Finally, I do not accept that his Honour's consideration and analysis of the scheme as a whole and the role of the co-offenders has in some way led his Honour to conflate the role of the applicant with persons further up the hierarchy of the scheme.
His Honour's comment "particularly in the circumstances of the overall context" does not lead to that view. Rather, his Honour was appropriately observing that the offending was serious, having regard to the overall context of the offending. That does not mean that his Honour was elevating the role of the applicant above that supported by the facts, or in any way confusing the role of the applicant.
Nothing in the remarks on sentence supports the submission of the applicant in this regard.
I would dismiss ground 1 of the appeal.

Ground 2

The applicant's submissions on ground 2 were short. Indeed, the applicant relied on her written submissions in support of ground 2. After identifying the relevant principles, the applicant submitted: "18. Before applying the 25% discount for the utilitarian value of the plea, the indicative sentence on Count 1 would be approximately 3 years and 3 months imprisonment, which is essentially one third of the maximum. In the case of Count 2, the starting point for the indicative sentence was 4 years imprisonment, which represents four-fifths of the maximum. There was a degree of accumulation applied to reflect the fact there were two offences before the Court. 19. Whilst purely mathematical calculations are not necessarily of any great assistance, upon a consideration of the material before the Court, and general principles of sentencing, it is submitted the sentence imposed by his Honour is manifestly excessive."
The applicant did not advance any further submissions as to why the sentence was manifestly excessive. The applicant did not rely on any comparable cases to support the submission. The applicant did not identify in the material before the Court any general principles of sentencing which might suggest that the sentence was manifestly excessive.
Certainly, the applicant had no criminal history. She was a young woman who appears to have been recruited into a complex and sophisticated scheme. As the Crown submits, the principles to be applied on a ground of manifest excess are well-known. They are summarised in Hughes v R [2018] NSWCCA 2 (at [86]). The Court (per Payne JA, R A Hulme and Garling JJ agreeing) at [86] stated: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust. See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]."
I accept the Crown's submission that there are difficulties with the applicant's reliance on mathematical calculations as a basis for contesting the indicative sentences (being four fifths of the maximum sentence for sequence 7 and one third of the maximum sentence for sequence 3).
In Merheb v R [2021] NSWCCA 224 at [84]-[45], Wright J (with whom Payne JA and Price J agreed) observed: "84 …Such an analysis treats the sentencing judge's description of the objective seriousness as the only, or the predominant, factor in determining the sentence and then apparently seeks to apply an arithmetic fraction based on that description to the maximum penalty. Attempting to analyse the correctness of a sentence by such an arithmetic calculation or mathematical method is misconceived. Sentencing does not involve such a mathematical exercise. In Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, French CJ, Hayne, Kiefel and Bell JJ explained, at [34]: 'Fixing the bounds of a range within which a sentence should fall or within which a sentence that has been imposed should have fallen wrongly suggests that sentencing is a mathematical exercise. Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, '[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform' (original emphasis)." (Footnotes omitted) 85. The sentencing judge did not apply such an impermissible, mathematical method but rather took into account all of the factors, both objective and subjective, that he identified in his remarks to arrive at the starting point, prior to the discount for the plea of guilty, for the sentence for the offence in count 1 and the relevant Form 1 offence. Furthermore, none of the sentencing judge's findings concerning those objective and subjective factors was sought to be challenged on appeal."
It is only necessary to say that his Honour made a specific finding that the threshold in s 5 of the CSP Act was met. His Honour found that the conduct was a serious example of these types of offences. In some respects, the subjective case was strong, but in other respects (such as lack of remorse), it was not.
In circumstances in which the applicant has not succeeded on her challenge to the findings of fact and does not suggest that any finding with respect to her subjective circumstances was in error (nor does she point to any other cases which tend to suggest there must have been error or misapplication of principle), it is difficult to understand the basis upon which the sentence is said to be manifestly excessive. Whether a different sentence might have been imposed is not to the point.
The applicant has not demonstrated that the sentence was manifestly excessive and the applicant fails on ground 2.
In the circumstances, the orders I propose are: 1. Leave to appeal is granted. 2. The appeal is dismissed.

Endnote

See also Merheb v R [2021] NSWCCA 224 at [84]-[85] per Wright J, with whom Payne JA and Price J agreed. 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: 22 March 2023

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