Musgrove v R

Judgment

1. BELL P: Mr Ryan Thomas Musgrove (the applicant) seeks leave to appeal against a sentence imposed by her Honour Judge Girdham SC (the sentencing judge) in the District Court of New South Wales at Sydney on 3 May 2019.
2. The sentencing judge imposed an aggregate sentence comprising a non-parole period of 2 years and 9 months with an aggregate head sentence of 4 years and 6 months, for the following offences to which the applicant pleaded guilty: 1. Sequence 1 - Did deal with proceeds of crime, $60,000, knowing it was the proceeds of crime and intending to conceal it was the proceeds of crime, contrary to s 193B(1) of the Crimes Act 1900 (NSW) (Crimes Act); maximum penalty, 20 years imprisonment; 2. Sequence 2 - Did deal with proceeds of crime, $200,000, knowing it was the proceeds of crime and intending to conceal it was the proceeds of crime, contrary to s 193B(1) of the Crimes Act; maximum penalty, 20 years imprisonment; 3. Sequence 5 - Did knowingly participate in a criminal group, to wit, the supply of prohibited drugs for a commercial purpose and the subsequent laundering of money, contrary to s 93T(1) of the Crimes Act; maximum penalty, 5 years imprisonment.
3. The sentencing judge allowed a 25% discount for early guilty pleas, and indicated sentences (after discount) of 3 years and 9 months in respect of sequence 1, 4 years in respect of sequence 2, and 2 years and 4 months in respect of sequence 5.
4. In relation to the objective seriousness of each offence, the sentencing judge outlined that the offences forming sequences 1 and 2 "each fall below the mid-range", and the offence forming sequence 5 "falls low in the scale of objective gravity".
5. The sentencing judge noted that the indicative sentence for sequence 5 would be "subsumed within or run concurrently with the sentences otherwise to be imposed", and that there would be some accumulation for sequences 1 and 2 "so as to ensure the sentence remains with a just and appropriate measure of the total criminality".
6. The ratio of the non-parole period to the head sentence was approximately 61.1%. The non-parole period is due to expire on 3 January 2020.
7. The applicant seeks leave to appeal on the ground that the aggregate sentence is manifestly excessive.

Facts

1. In relation to the incident the subject of sequence 1, on 23 June 2016, the applicant drove a vehicle to an address at Canley Heights in Sydney, where a Mr Van Do (Mr Do), a member of a Vietnamese money laundering syndicate (the syndicate) arrived in a separate vehicle and walked over to the applicant, who was in the driver's seat. The applicant handed Mr Do a black bag which Mr Do placed in the boot of his vehicle. The applicant drove off. Police investigations later that night established that the applicant had handed over $60,000 in cash.
2. In relation to the incident the subject of sequence 2, on 28 July 2016, the applicant drove a co-offender, Mr David Redshaw, to a location near the Hume Highway at Bankstown, where they met with a Mr Thi Quynh Quyen Tran, another member of the syndicate, who arrived in a separate vehicle. The applicant got out of his vehicle, and gave the other member a black and white plastic bag. Subsequent police investigations established that the applicant had handed over $200,000 in cash.

Personal circumstances of the applicant

1. The applicant was aged 41 at the time of the offences.
2. The applicant had a criminal history which included minor drug matters of some age. The sentencing judge remarked that the applicant's criminal record "consists mainly of matters that are irrelevant to these sentencing proceedings".
3. A Sentencing Assessment Report prepared by Mr Poonam Chand, Community Corrections Officer, details the applicant's belief that his drug use was a contributing factor towards his poor decision-making at the time of the offending. The applicant was under financial stress at the time of the offending, due to losses in his business and ongoing mortgage repayment obligations. Indeed, the sentencing judge outlined that she was "satisfied" that the applicant engaged in the offences "for financial reward given his perilous financial state". The Sentencing Assessment Report records that the applicant's participation in the offending was for financial gain as one of the co-accused promised "to finance him a vehicle".
4. A report by a Clinical Psychologist, Mr John Machlin (Mr Machlin), dated 17 December 2018, was tendered on the applicant's behalf. The report noted that the applicant's childhood and family background history was complicated, featuring a significant degree of violence, insecurity and instability. The applicant was moved back and forth amongst family and started smoking cannabis heavily at the age of 14.
5. Mr Machlin diagnosed the applicant with substance use disorder in remission and a probable history of depressive episodes. However, although the applicant had some depressive history that was relevant to lifestyle and declining drug problems prior to his offending, Mr Machlin was of the opinion that it was probably not a direct precipitant to his offending. Mr Machlin indicated that he believed the applicant to have good rehabilitative prospects, and that he did not foresee any factors that would otherwise compel the applicant to reoffend.
6. The sentencing judge made note that the Court was satisfied that "the offender is remorseful", and that "[h]e has been assessed at low to medium risk of reoffending". Her Honour noted that the applicant "has good prospects of rehabilitation", noting that: "…he voluntarily ceased his association with the criminal group not by reason of detection or arrest. He then actively sought to rehabilitate himself by ceasing the use of cannabis and seeking business and employment opportunities in the construction industry. By so doing he has demonstrated he was committed to restoring himself to a lawful lifestyle and he did so well before his arrest. I am satisfied his prospects of rehabilitation are good and he is unlikely to commit further offences in the future."
7. The sentencing judge thus gave "full weight to the offender's subjective case, including the rehabilitation he had committed to before his arrest and incarceration, assessment of the objective gravity of each offence and the criminality demonstrated by reason of their combination and having made an allowance for early pleas of guilty of 25%" in imposing the term of imprisonment, as indicated above.
8. The applicant seeks leave to appeal against his sentence on the ground that the "sentence imposed is manifestly excessive".

Legal principles

1. In order for the applicant to succeed on the appeal, the applicant must satisfy the Court that the aggregate sentence is manifestly excessive in the sense that it is unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [26]-[28]; Hughes v R [2018] NSWCCA 2 at [86] (Hughes).
2. In Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191 at [113], Bathurst CJ observed that: "The circumstances in which a sentence will be found to be manifestly excessive are well established. The Court will only intervene if the sentence is unreasonable or plainly unjust, such that the Court may infer that in some way there has been a failure of the sentencing judge to properly exercise the sentencing discretion. In that context, it must be remembered that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a different way." (footnotes omitted).
3. Bathurst CJ continued (at [114]): "…the indicative sentences recorded in accordance with s 53A(2) of the [Crimes (Sentencing Procedure) Act 1999 (NSW)] are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive."
4. In Hughes at [86], the Court of Criminal Appeal stated that: "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."
5. These principles were recently applied by the Court of Criminal Appeal in Alou v R [2019] NSWCCA 231 at [156].

Consideration

1. The applicant concedes that the offences occurred in the context of a complex drug trafficking operation which included money laundering. The sentencing judge, moreover, was satisfied that the applicant was "aware of the significant amount of prohibited drugs that the criminal group were involved in and the importance of his role in delivering the money so it could be laundered and so remove the taint from its provenance."
2. In this context, the Crown drew attention to the observations of Wood CJ at CL in R v Shi [2004] NSWCCA 135 at [34], Spigelman CJ and Simpson J (as her Honour then was) concurring: "…that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrence sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse." The applicant's role in the organisation, as established by his guilty pleas and concession noted in [23] above, together with the sentencing judge's finding of the applicant's awareness of the significant amount of prohibited drugs that were involved, makes the observations of Wood CJ at CL applicable to the present case. It was wrong to characterise the applicant's conduct, as his counsel sought to do, as simply involving the delivery of two bags of cash.
3. Counsel for the applicant submitted that the following factors supported her contention that the sentence was manifestly excessive: 1. the offences for which the applicant was charged and convicted can involve considerable sums far in excess of the two amounts involved in this case; 2. the length of time over which the offences were committed was relatively short; 3. the offences involved a motive for drugs for personal use only; 4. whilst the overall planning and sophistication in the criminal organisation was no doubt considerable, the applicant's offence was unsophisticated, and his role was minimal; and 5. the strength of the applicant's subjective case with particular emphasis placed upon: 1. the fact that the applicant had voluntarily broken off his association with the criminal group at the time of his arrest; 2. his cessation of drug use; 3. his genuine remorse; 4. his good prospects of rehabilitation; and 5. the sentencing judge's assessment that he was unlikely to reoffend.
4. In response, the Crown submitted that the applicant had not demonstrated that his aggregate sentence was unreasonable or plainly unjust, and emphasised that the applicable maximum penalties were significant, with sequences 1 and 2 each carrying maximum penalties of 20 years, and sequence 5 carrying a maximum penalty of 5 years. It was submitted that the sentencing judge had found that the offences were below mid-range and had sentenced accordingly.
5. The Crown submitted that the starting points for sequences 1 and 2 were 5 years and 5 years and 4 months, respectively, and were consistent with those maximum penalties, the findings on objective seriousness (which were not challenged), the increased amount of money involved in sequence 2, and that this sequence was the second of the applicant's offences. In relation to sequence 5, it was submitted that the starting point of just over 3 years was not excessive, and in any event, that this indicative sentence was wholly concurrent with or subsumed by the other indicative sentences. There was also a very substantial degree of concurrency between sequences 1 and 2.
6. The Crown also emphasised that the applicant was the beneficiary of a generous adjustment of the ratio of the aggregate non-parole period to the head sentence, which was reduced to approximately 61.1% following the finding of special circumstances.
7. In my opinion, it cannot be concluded that the aggregate sentence imposed was manifestly excessive, especially bearing in mind the degree of concurrency which was substantial in relation to sequences 1 and 2, and total in relation to sequence 5. Rather, in my view, the aggregate sentence was well within the range open to the sentencing judge in the exercise of her sentencing discretion in respect of serious offences. It was accepted, moreover, that the subjective circumstances were fully and appropriately taken into account.
8. The applicant played a deliberate role in a serious and well organised drug and money laundering operation in which he was trusted to distribute large sums of money. The fact that the particular sums delivered and distributed could have been higher is not really to the point, for whilst it is true that they could have been higher, even much higher, they were far from trivial. The applicant knew, moreover, that the money being distributed was derived from the sale of what it is to be inferred was a substantial quantity of drugs. The relatively short period of time over which the offences were committed and the applicant's place in the overall hierarchy were, in my view, reflected in the sentencing judge's characterisation of the offences as each falling below mid-range. In truth, her Honour's sentence placed them well below mid-range.
9. Whilst the special circumstances to which emphasis was given in written submissions all bode well for the applicant's rehabilitation into the community on his release from custody, and whilst the circumstances of his own upbringing were most difficult and unfortunate, I am comfortably satisfied, as indeed was accepted, that these matters were fully and appropriately taken into account by the sentencing judge who received competent submissions by the applicant's counsel at the sentencing hearing. As is evident from her Honour's Remarks on Sentence, the sentencing judge drew attention to and placed proper emphasis upon these matters, and the various written reports and testimonials which supported them.
10. The sentence imposed was not manifestly excessive. It reflected the sentencing judge's assessment of each offence and the combination "as a serious example of its kind, but not nearly as serious as some often seen in these Courts". I agree with that characterisation.
11. My conclusion that the sentence was well within the range open to the sentencing judge and not manifestly excessive is reinforced by the degree of concurrency reflected in the aggregate sentence and the "full weight" which her Honour gave to the applicant's subjective case which resulted in a non-parole period of 2 years and 9 months.
12. I would refuse leave to appeal.
13. SIMPSON AJA: I agree with Bell P.
14. R A HULME J: I agree with Bell P.

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