NGUYEN v REGINA

Court of Criminal Appeal (NSW)|2011-05-09|Before: Allsop P, Hoeben J, Hall J

Judgment 1ALLSOP P : I have had the advantage of reading the reasons of Hall J. I have one reservation which disables me from agreeing with the orders that he proposes. Given the unqualified agreement of Hoeben J with the reasons of Hall J, there is no necessity for me to resolve finally the reservation that I have. 2I am unwilling to agree with the disposition of the argument put forward by Mr Odgers SC as to the "double counting" in relation to the multiple occasions on which the applicant offended. The disposition of this argument involves, on one view, a resolution of the views expressed by different courts in R v Huang, R v Siu [2007] NSWCCA 259; 174 A Crim R 370 and Cicciarello v R [2009] NSWCCA 272, beyond, or in different terms from, that undertaken by Hall J. 3I have come to the view that I do not need to resolve this issue because, even assuming some error as argued, I would resentence the applicant to no lesser term of imprisonment than was imposed by the sentencing judge. Though the term of imprisonment passed, including the non-parole period, was by no means light, the Commonwealth Parliament has made clear the seriousness of the offence and the gravity and weight of punishment should contravention occur. The very same consideration (the repetition of offences) even if not going to the objective criminality because of the collocation of events to make up $1 million for the application of the relevant section, does go to personal subjective deterrence. 4Given my agreement with the reasons of Hall J otherwise and the above remarks, the order that I would make is that I would refuse leave to appeal. 5HOEBEN J : I agree with Hall J. 6HALL J : The applicant pleaded guilty to a charge under s.400(3)(2) of the Criminal Code Act 1995 (Cth) that between 1 November 2007 and 14 January 2008 she dealt with in excess of $1 million where a risk existed that the money would become an instrument of crime and she was reckless to that risk. 7The maximum penalty for such an offence is 12 years' imprisonment and/or a fine of $79,200. 8On 25 June 2010, the applicant was sentenced to a term of imprisonment of 5 years and 6 months commencing 25 June 2010 and expiring on 24 December 2015, with a non-parole period of 3 years and 6 months. The applicant will be eligible for release on parole on 24 December 2013.

Factual matters 9The applicant has born on 6 October 1955. She is, accordingly, aged 55 years. 10The following facts were summarised in the Crown's written submissions:- "6. The Applicant was the manager, authorised representative and compliance manager of a money transfer business, which operated from a number of locations including inside a fabric shop in Cabramatta and inside a Vietnamese green grocery in Bankstown. 7. In the course of that business, the Applicant received large amounts of cash from customers along with instructions to transfer the funds to beneficiaries in Vietnam. Commonly, those instructions falsely purported to originate from registered customers of the business, bore false names and signatures and directed multiple transfers of the funds, artificially split up into amounts of less than $10,000.00, often to the same beneficiary on the same date. The Applicant deposited the cash into the business bank account to cover the value of the instructions received. 8. The Applicant failed to obtain any identification from customers for any of the relevant cash transfers and failed to instruct her employees about the reporting requirements of the Financial Transaction Reports Act ... 9. The Applicant instructed employees of the business that it was permissible for a customer to send more than $10,000.00 if it was split up into two or more transfers of less than $10,000.00 each, and that in those circumstances no customer identification was required; and it was acceptable for customers to sign in different names and that, provided each transfer was for less than $10,000.00, the customer's signature was no important." 11Leading up to April 2006, the applicant received training and information from AUSTRAC, the Commonwealth Government Agency responsible for training, monitoring and reviewing cash dealers and designated remittance services for compliance with legislation including the Financial Transaction Reports Act 1988 (Cth) and the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth). 12In 2007 and 2008, the applicant operated an international money transfer business. The business' head office was responsible for lodging with AUSTRAC significant cash transaction reports, for cash dealings of $10,000 of more for itself and all of its branches and agents (19 in all including the Bankstown branch).

Remarks on sentence 13The sentencing hearing took place on 4 December 2009 and 11 June 2010. A detailed statement of facts was tendered. 14The sentencing judge, in his remarks on sentence made on 25 June 2010 (p.1), set out the facts as summarised by the Crown as follows:- "(1) During the relevant two and half month period, the offender, through her money transfer business, collected $1,948,014.26 in cash together with 234 instructions to transfer that money to Vietnam. (2) On each occasion, when the cash was presented to the money transfer business for subsequent transfer to Vietnam, it was presented in amounts greater than $10,000 and then counted out in a number of smaller amounts, each of less than $10,000. The customer then completed a series of written instruction sheets, which often involved false names. (3) The counting out of the cash into less than the $10,000 lots were carried out by:- (a) the customer in the presence of this offender or her staff; (b) the offender; or (c) one of the offender's employees. (4) The offender then took possession of the cash and the written transfer instructions. (5) Acting on these written instructions, the offender took the cash to her bank each day and then conducted international money transfers to Vietnam. In total, she conducted 234 international money transfers over the charged period, each for an amount of less than AUD$10,000. (6) As a result, the offender avoided the obligations under the Financial Transactions Reports Act to report significant cash transactions. (7) In total, the offender transferred $1,948,014.26 over a two and a half month period."

The statutory provisions 15The relevant provisions are contained in Part 10.2 - Money laundering - of Chapter 10 - National infrastructure - in the Criminal Code Act . 16Section 400.3 is entitled Dealing in proceeds of crime etc - money or property worth $1,000,000 or more . 17Extracted below are the provisions of s.400.3(1) and (2). As noted above, the applicant was charged with an offence under s.400.3(2). However, the submissions made on her behalf focused attention on that section in the context of the companion provisions constituting s.400.3(1):- "400.3 Dealing in proceeds of crime etc - money or property worth $1,000,000 or more (1) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is, and the person believes it to be, proceeds of crime; or (ii) the person intends that the money or property will become an instrument of crime; and (c) at the time of the dealing, the value of the money and other property is $1,000,000 or more. Penalty: Imprisonment for 25 years, or 1500 penalty units, or both. (2) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is proceeds of crime; or (ii) there is a risk that the money or property will become an instrument of crime; and (c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and (d) at the time of the dealing, the value of the money and other property is $1,000,000 or more. Penalty: Imprisonment for 12 years, or 720 penalty units, or both." (emphasis added) 18Recklessness is a fault element in an offence under s.400.3(2). In accordance with the general principles of criminal responsibility set out in Chapter 2 of the Code, an offence under s.400.3(2) involves both physical and fault elements. 19Section 5.4, Recklessness , is in the following terms:- "5.4( 1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) I f recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. " 20I will return to consider the significance of s.5.4(4) to this case below. 21The sentencing judge considered the objective seriousness of the offence. It is this part of the remarks in particular that is the subject of criticism in relation to Ground 1 of the grounds of appeal which are set out below. The second paragraph in the extract below is relevant to the submissions on Ground 2. His Honour stated (Remarks on Sentence, p.2):- "... These facts reveal an objectively serious offence. It was an offence that involved 234 separate transactions totalling nearly two million dollars. The offence involved flagrant breaches of the law given the remittance of monies sent overseas and it was carried out to avoid the statutory reporting requirements for amounts exceeding $10,000. The amount of money together with the total number of transactions places the offence at less than the mid-range of objective seriousness for such offences, but not very far below it." 22His Honour proceeded to observe (Remarks on Sentence, p.3):- "... the governing principle is that I must impose a sentence that is of a severity appropriate in all the circumstances. In cases such as this, general deterrence is of significant importance to send a message to like minded people in the community that such activities will be met with condign punishment. The subjective factors in the offender's favour are taken from material tendered and the evidence of the offender's daughter ... The offender was born on 16 October 1995 in Vietnam. She is the eldest of seven children. At the end of the Vietnam War, she had been at university, but did not complete her studies. When the Communist took control of Vietnam, she fled the country with two of her brothers to Malaysia and then Australia." 23The sentencing judge then set out an extract from a report by Dr Tim Watson-Munro (Exhibit A) and referred to the evidence of the applicant's daughter to the effect that she was now running the business and was fully "complying with all the requirements" . She stated that her mother was no longer conducting business transactions. She had only been involved in administration. 24The sentencing judge additionally noted the evidence to the effect that the applicant was the manager of the money transfer business which operated from a number of locations, was the authorised representative and compliance manager of the money transfer business and was the only person authorised to lodge reports required by the Financial Transaction Reports Act . Reference was made in the remarks on sentence (p.4) that the applicant dealt with large amounts of cash in the course of running the business by receiving cash from customers, depositing it into the business bank accounts and arranging for the money to be telegraphically transferred to Vietnam. 25The applicant received instructions from customers and made multiple cash transfers each in the amount of less then $10,000 using multiple false names and using false signatures. 26In the remarks it was observed that, in the period charged (between 1 November 2007 and 14 January 2008), a period of approximately 10 weeks, 234 transfers were made by the applicant to Vietnam, totalling $1,948,014.26. 27The sentencing judge then recorded the following finding (Remarks on Sentence, p.5):- "I find on the basis of this evidence that the role of the offender was significant. Increased profits through commissions or greed was the motive for the offending. The offender did not give evidence before me and express any remorse for the offence. She did tell Dr Watson-Munro that she had a sense of shame as a result of the offending." 28His Honour noted that general deterrence as an important consideration in the sentencing exercise "involving as it does money laundering" and that the legislature had reflected the seriousness of the offences by presenting high maximum custodial sentences as penalties (Remarks on Sentence, p.5). 29Reference was also made to the fact that the applicant had pleaded guilty on the day after the trial was due to start on 4 July 2009. A discount on sentence of 15% was allowed on account of the plea. 30It was noted that the offender had prior convictions in 2001 involving the making and using a false instrument, both offences arising out of the offender's money transfer business. The sentencing judge also noted that significant specific deterrence was an important element in sentencing for the offence.

Notice of application for extension of time 31The applicant relied upon a notice to extend time to appeal dated 21 January 2011, it being noted that there had been no application for leave to appeal given within the three months of sentence.

Grounds of appeal 32There were three grounds in the following terms:- "1. The sentencing judge breached the principle in R v De Simoni . 2. The sentencing judge erred in taking into account the number of transactions when assessing the objective seriousness of the offence. 3. The sentencing judge erred in increasing the sentence imposed on the basis of 'on-going persistent criminal conduct of the offender'."

Ground 1: The sentencing judge breached the principle in R v De Simoni

(1) Applicant's submissions 33In the written submissions for the applicant reference was made to specific matters set out in the Statement of Facts (Exhibit 1), in particular, the fact that it was recorded that the applicant instructed her staff that if a customer wanted to send more than $10,000 overseas but wished to split it up into two or more transfers of less then $10,000, that was permissible (paragraph 32). 34It was also observed that it appeared to have been accepted at the sentencing proceedings that a higher commission was paid if money was divided up in this way (a fee or commission of between $8 and $20 was charged for each transfer: paragraph 37). There were no automatic systems in place to calculate commissions on transfers of more than $10,000 (paragraph 35), although the evidence was given from the applicant's daughter that, during the relevant period, some transfers of more than $10,000 were made and reported (transcript, p.18). 35It was noted that it was not recorded in the Statement of Facts that the applicant knew, when she made particular transfers, that amounts of greater then $10,000 had been structured to avoid reporting requirements. 36Mr S Odgers SC, who appeared on behalf of the applicant, submitted that the sentencing judge had breached the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. It was contended that the applicant was sentenced on the basis that, when she took possession of the money, she "intended" that the money would be transferred out of Australia in amounts of less than $10,000 and thereby avoid the reporting requirement attaching to transfers of $10,000 or more. In other words, she intended to avoid the statutory reporting requirements for amounts exceeding $10,000. 37The applicant did not plead guilty to the more serious offence under s.400.3(1) of dealing with more than $1 million intending that the money would become an instrument of crime under s.31(1) of the Financial Transaction Reports Act . The applicant was charged, as noted above, with an offence that she was reckless to the risk that the money would become an instrument of the commission of an offence under s.31(1) of the Financial Transaction Reports Act . 38The well-known principles were stated in De Simoni (supra) by Gibbs CJ at 389 (Mason and Murphy JJ agreeing) in the following terms:- "[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted ... The combined effect of the two principles, so far as is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

(2) Crown submissions in reply on Ground 1 39The Crown, in its written submissions, correctly observed that the argument in support of Ground 1 depended entirely on the construction of the sentencing remarks reproduced in paragraph [22] above. 40The Crown submitted that the relevant part of the remarks amounted to (Crown Submissions at [12]):- "12. ... a global description of the nature and purpose of the offence and its objective seriousness. The impugned remarks do not focus upon the Applicant's state of mind, nor do they focus the Applicant's role in the offending. It is beyond question that the purpose of remitting the sums of money of less than $10,000 was to avoid the statutory reporting requirements. The Applicant's role was to facilitate, on instructions from customers wishing to send money overseas, the counting of larger amounts of money into sums of less than $10,000. The counting of the cash into these smaller amounts was carried out by:- (a) the customer in the presence of the Applicant or her staff; (b) the Applicant; or (c) one of the Applicant's employees. The applicant would then take possession of the cash and the written transfer instructions and effect money transfers each in the sum of less than $10,000 to Vietnam." 41The Crown contended that it was clear from the remarks on sentence that the sentencing judge was clearly mindful of the offence for which he was sentencing the applicant. Reference was made to the relevant passages in the remarks on sentence (p.5) in which his Honour referred to the relevant charge against the applicant as involving "recklessness" . 42That was the basis, it was submitted, upon which the applicant was sentenced and not, as contended by the applicant, on the basis of and intentional dealing within s.400.3(1) of the Code. 43Accordingly, it was submitted Ground 1 had not been made out and should be dismissed.

(3) Consideration of Ground 1 44The observations made by the sentencing judge (at p.2) to which attention has been drawn, namely, "... it (the charge) was carried out to avoid the statutory reporting " , considered in isolation, provides a basis for the argument presented on behalf of the applicant. There was a need, as Mr Odgers submitted, for the sentencing judge to articulate with some precision the relevant matters as to the objective seriousness of the offence. In that respect, it was submitted (transcript, 9 May 2011 at p.2):- "My response [to the Crown submissions] is that in this case, given the difficulty, given the very fine lines that are drawn between the offence to which she pleaded guilty and the more serious offence, ... this case, given those difficulties, his Honour really did need to be very careful in his remarks on sentence to make it clear that he understood what he was sentencing the applicant for and what he was not sentencing her for and not punishing her for." 45In the course of submissions, the presiding judge, the learned President, raised with Mr Odgers the proposition that, although the sentencing judge was sentencing for an offence based on recklessness, it is possible to envisage a range of circumstances amounting to "reckless" conduct. At the lower end of a possible range, the "reckless conduct" may involve laziness or failure to undertake property training, whilst at the higher end recklessness conduct may involve intentional action. In general terms, a heavier sentence may be expected at the higher end of the range of recklessness. 46I have earlier set out the definition of "recklessness" in s.5.4 of the Code. As there noted, if recklessness is a fault element for a physical element of an offence by the terms of s.5.4, proof of intention, knowledge or recklessness will satisfy that fault element. Accordingly, in light of the definition, it is possible to envisage that there may be cases in which intention may be proved in relation to a physical element for an offence under s.400.3 for the purpose of establishing recklessness as an element of an offence under s.400.3(2). 47I am of the opinion that although substantial, it cannot be said that the sentence imposed is itself indicative of a sentencing exercise directed to an offence under s.400.3(1) rather than an offence under s.400.3(2). 48Furthermore, an examination of the whole of the remarks on sentence, in my opinion, indicates that the sentencing judge was mindful throughout the sentencing process that he was sentencing in respect of an offence involving the concept of recklessness. That is clear, not only from the opening paragraph of the remarks on sentence, but also from the detailed recitation of factual matters relied upon in respect of the objective seriousness of the offence. These did not indicate that the sentencing judge had made an his assessment on the basis of factual matters directed to an offence under s.400.3(1)(b)(ii) of the Code. 49Whilst the reference in the remarks to remittance of monies "to avoid the statutory reporting" was inappropriate as a description of the facts, seen in context, they should not be given an interpretation that overrides the substance of the matters which are otherwise set out in the remarks on sentence which are wholly consistent with criminal conduct referred to in s.400.3(2). 50I have, accordingly, concluded that Ground 1 should be dismissed.

Ground 2: The sentencing judge erred in taking into account the number of transactions when assessing the objective seriousness of the offence.

Ground 3: The sentencing judge erred in increasing the sentence imposed on the basis of "on-going persistent criminal conduct of the offender". 51These two grounds were argued together.

(1) Specific matters 52I have earlier referred to the facts agreed for the purposes of sentencing, namely, that the applicant conducted 234 international money transfers over the approximate 10 week period, each transfer being for an amount less than AUD$10,000 and that the total transferred in that period was $1,948,014.26. 53The indictment charged the applicant with dealing with money, being $1,000,000 or more, contrary to s.400.3(2) of the Code. The indictment set out the following particulars:- "Trang Thi Phuong Nguyen did possess money reckless to the fact that it would become an instrument of crime, namely, an offence contrary to section 31(1) of the Financial Transaction Reports Act 1988 committed by [company name] trading as [business name]." 54The sentencing judge took into account the number of transactions where amounts of less than $10,000 were transferred overseas, thereby avoiding the statutory reporting requirements for amounts exceeding that amount, when assessing the objective seriousness of the offence. The sentencing judge made observations in the remarks as to relevant factors to be taken into account, including (Remarks on Sentence, p.6):- "The need for a strong subjective deterrent aspect, given the ongoing persistent criminal conduct of the offender"

(2) Submissions for the applicant 55It was submitted for the applicant that to take into account the total number of transactions in assessing the objective seriousness of the offence and to impose a more severe penalty because the criminal conduct was "on-going" and "persistent" , was an error as the Crown had chosen to proceed with a single offence under s.400.3(2) of the Code rather than a number of offences under s.31 of the Financial Transaction Reports Act . 56The complaint was that the Crown had combined a large number of separate "possessions" by the applicant of less than $10,000 into "a possession" of more than $1,000,000 ( Applicant's Written Submissions at [14]). It was said that one result of this was to make the applicant liable to the maximum penalty of 12 years, rather than a maximum penalty of only 5 years for the four offences under the Financial Transaction Reports Act . 57The submission was that where multiple criminal acts are the foundation for a more serious offence, to take account of the number of individual acts as an aggravating factor in assessing objective seriousness constituted "impermissible double counting" . Reliance for this proposition was placed upon the decision of this Court in Cicciarello v R [2009] NSWCCA 272 at [19]. 58I note at this point that that case concerned a charge of supplying not less than a commercial quantity of methylamphetamine: the Drug Misuse & Trafficking Act 1985 (NSW), s.25(2). I will return to the decision in Cicciarello (supra) below. 59In a case involving multiple criminal acts which are the foundation for a more serious offence, to increase the sentence imposed on the basis of "ongoing persistent criminal conduct of the offender" it was submitted, constituted an impermissible double counting. At the very least, it was incumbent on the sentencing judge, it was submitted, to explain how the number of acts had been taken into account in a way that does not involve double counting. 60In the course of his oral argument, Mr Odgers contended that there was a need to resolve two potentially conflicting principles when sentencing an offender involving multiple acts. 61The first principle entitles a sentencing judge to take into account the number of times something is done (as in a case involving a course of criminal conduct) as that would be relevant to the state of mind of the offender. On the other hand, there is the sentencing principle which proscribes double counting. The principle of "double counting" , it was contended, trumps other principles (transcript, 9 May 2011, p.8). 62In support of his argument, Mr Odgers stated that each of the individual transactions undoubtedly involved the less serious offence under s.400.7(2) which carried a maximum penalty of 2 years. He said in that situation the "principle of double counting" must be applied. 63Finally, Mr Odgers submitted that the applicant should be re-sentenced. He emphasised that it was important to recognise that this is not a case where the money constituted proceeds of crime or a case where the applicant suspected that the money would be used as an instrument of crime, other than the reporting offence. This, it was said, was an important distinction from cases such as R v Huang & Siu (2007) 174 A Crim R 370 (where, for example, Siu was aware the money was unlawfully obtained and Huang was aware that the purpose of the transaction was to avoid tax). It was said that the applicant's criminality was not aggravated by any belief that the money was the result of illegal activity or by a belief that some criminality other than an offence under the Financial Transaction Reports Act was contemplated. 64It was also submitted that the financial gain to the applicant was very limited.

(3) Crown submissions 65The Crown contended that the fact that the applicant was not charged with one or more offences under s.31(1) of the Financial Transaction Reports Act is an irrelevant matter. The indictment made it clear that s.31(1) of that Act was a mere particular of the risk that money in the possession of the applicant would become an instrument of crime. It was said that the applicant was reckless as to the existence of that risk. Accordingly, there was no substance to the point that the applicant was charged with one count under s.400.3(2) of the Code instead of a number of offences under s.31 of the Financial Transaction Reports Act . 66Further, there was no substance to the submission that the applicant had committed 234 offences under s.400.7(2), each carrying a maximum penalty of only 2 years imprisonment, which the Crown chose to aggregate into one offence under s.400.3(2) carrying the maximum penalty of 12 years imprisonment. 67The Crown observed that there was nothing to suggest that charges under either s.400.7(2) of the Code or offences under s.31(1) of Financial Transaction Reports Act were ever in contemplation. 68The decision to charge a person at all, or the crime with which to charge a person, is one that is solely within the province of the prosecuting authorities. The submission, in relation to the availability of alternative charges, it was contended, can do no more than speculate about what motivated the prosecution to charge the applicant as it did. 69The proper characterisation of the charge, it was submitted, was the charge to which the applicant pleaded guilty, being a single charge involving $1,948,014.26 in cash, the particulars of which involve 234 transfer transactions. 70The Crown further submitted there was no sentencing error in the approach of the sentencing judge in taking into account the "on-going" and "persistent" conduct of the offender. 71The Crown relied upon the observations of this Court in Huang & Siu (supra) at [35] as follows:- "Of course, the number of transactions carried out by the offender in committing the offence and the period over which the transactions occurred are significant because they indicate the extent of the offenders' criminality. Generally speaking, a number of transactions involving small amounts of money will be more serious than a single transaction of a larger amount. The latter will be seen as an isolated offence." 72It was submitted for the Crown that the reasoning in this paragraph in Huang is directly contrary to the applicant's contention as to "double counting" . The Crown also relied upon the observation in Huang at [34]:- "The amount of money is clearly a highly significant matter because the legislation uses it as a principal means of dividing the offences into categories and it is the primary identifier of what is the maximum penalty for an offence."

(4) Consideration of Grounds 2 and 3 73The question in the present case is whether it was correct to say that the principle against double counting had been breached by the sentencing judge. 74In sentencing in respect of an offence under s.400.3(2), a sentencing judge is required to have regard to those facts which are relevant in determining, inter alia, the extent or degree of recklessness involved in a particular case of offending under that provision. 75The submissions advanced in relation to Grounds 2 and 3 require consideration of whether the possibility of "double counting" arises having regard, in particular, to:- (1) The provisions of s.400.3(2) under which the applicant was charged and the criminality of such offending. (2) The provisions of s.400.7(2) and of s.31(1) of the Financial Transaction Reports Act and the criminality to which those provisions are directed. (3) The issue of double counting the subject of consideration in Cicciarello (supra) (an offence of supply prohibited drugs on three or more separate occasions in the specified period: s.25A(1) of the Drug Misuse and Trafficking Act 1985). (4) Whether the sentencing judge's remarks indicate that the number of transactions were treated as an aggravating circumstance. 76I note two matters:- (1) The Crown, in charging the applicant with an offence under s.400.3(2) of the Code, was, of course, entitled to rely upon the 234 transactions in the relevant 10 week period totalling in excess of $1,000,000 (2) The fact that a person may also be liable for an offence other than one under s.400.3(2) (for example, under s.400.7(2) for dealing in money valued in excess of $1,000 or more), is not a matter that, of itself, establishes double counting in this case. On the facts of the case, any potential liability the applicant could be said to have had under s.400.7(2) does not mean that, in taking account of the number of transactions for the purpose of determining the sentence to be imposed in the present case, those transactions were treated as an aggravating factor. 77It was, of course, not only open, but it was necessary for the sentencing judge, in evaluating the objective seriousness of the criminality involved in the offence charged, to take into account the fact that the offending involved 234 separate transactions totalling almost $2 million. In that regard, the sentencing judge did not attach significance merely to the number of transactions, but to the composite facts as agreed, including the fact that the transactions involved dealing with money contrary to s.400.3(2) involved in excess of $1 million. Those matters were relevant matters in determining the objective criminality involved in the offending conduct and, in particular, in relation to the issues of specific and general deterrence. 78On an examination of the remarks on sentence, there is no indication that the sentencing judge additionally treated those matters as aggravating factors contrary to the prohibition against double counting. They were, as I have stated, properly taken into account in assessing the objective seriousness of the offence charged but not otherwise. 79In Cicciarello (supra), on the other hand, this Court determined that the multiple criminal acts which were the foundation for the more serious offence with which the applicant in that case was charged, namely, supply of not less than a commercial quantity of the drug for which a maximum penalty of 20 years' imprisonment was provided, were also regarded and treated by the sentencing judge as aggravating factors. 80The aggravating factor in s.21A(2)(m) is directed to a situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct. As observed by Howie J in R v Tadrosse (2005) 65 NSWLR 740 at [29], a charge of that nature will frequently be found in cases of fraud or dishonesty perpetrated against a single victim such as a charge of embezzlement or larceny as a servant. Similarly, his Honour referred to a charge involving multiple instances of supplying drugs over a period of time as one offence under s.25 of the Drug Misuse & Trafficking Act . As his Honour stated in Tadrosse (supra) at [29]:- "... When sentencing for such an offence, the court must bear in mind the prohibition against taking into account as a matter of aggravation that which is an element of the offence charged." 81I do not consider that the sentencing judge's reference to "... ongoing persistent criminal conduct" indicates that, having determined the objective criminality of the offence, the sentencing judge "double counted" in the manner or on the basis argued for the applicant. The sentencing judge said that he took a number of factors into account but it is clear that this was after having determined the objective seriousness of the offence and only for the purpose of determining the appropriate sentence including:- "(2) The need for a strong subjective deterrent aspect, given the ongoing persistent criminal conduct of the offender;" 82The latter statement gave effect to one of the stated purposes of sentencing in the Crimes (Sentencing Procedure) Act 1999, namely:- " 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: ... (b) to prevent crime by deterring the offender ... ..." 83The statement does not carry with it the inference or conclusion that the sentencing judge considered the repetitive criminal acts (the 234 transactions) as aggravating factors additional to it having been relevant to the objective seriousness of the offence. 84I am, accordingly, of the opinion that Grounds 2 and 3 should be dismissed.

Orders 85In relation to the Notice of Application for an Extension of Time dated 21 January 2011, there was no submission made that an extension should not be granted. In those circumstances, to the extent that an extension of time is required, I propose to make an appropriate order in that respect. 86I propose the following orders:- (1) That the time for the making of an application for leave to appeal be granted. (2) Leave to appeal be granted. (3) The appeal be dismissed.

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: 18 May 2011

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