R v Lang [2018] ACTSC 215

Crimes Act 1900 (ACT) s 114B

Crimes (Sentencing) Act 2005 (ACT) s 7

R v Toumo'ua [2017] ACTCA 9

R v Lou (No. 2) [2017] ACTSC 266

1. The offender pleaded guilty to the offence that, between 1 January 2013 and 4 July 2016 at Canberra, she dealt with money or other property which formed the proceeds of crime and was reckless about whether the money or property was derived from unlawful activity.

2. An offence of money laundering contrary to s 114B of the Crimes Act 1900 (ACT) carries a maximum penalty of 10 years' imprisonment and/or a fine.

3. The plea of guilty was entered in the Supreme Court before the matter was listed for trial. The plea followed discussions that resulted in the prosecution filing a fresh indictment containing one "rolled up" count.

4. For many years prior to the offence, the offender resided in a de facto relationship with Donald Johnston. The couple had children. They lived in a home that was leased from ACT Housing.

5. Until 2013, Mr Johnston and the offender received modest government benefits.

6. The offender had nine bank accounts. Between 2013 and 2015, she began to make significant cash deposits into the accounts, including many deposits of between $1000.00 and $3000.00 and other deposits of between $4000.00 and $5000.00.

7. On 23 December 2015, the offender purchased a property in Dickson for $600,000.00. She paid a substantial deposit and obtained a loan of $480,000.00.

8. On 10 February 2016, the offender purchased a property at McKellar for $820,000.00. She paid a substantial deposit and obtained a loan of $656,000.00.

9. Until 4 July 2016, the offender continued to make substantial cash deposits into her bank accounts.

10. In 2013, the offender registered as a sole trader undertaking sex work and she began to declare taxable income. The offender's statements to the police indicate that in the period covered by the offence she worked sporadically as a sex worker.

11. From 2013 to 2015 she declared significant taxable incomes from her business (rising to $120,926.00 in 2015) as well as personal taxable income (rising to $60,596.00 in 2015), but in each tax year the cash deposits into her various accounts significantly exceeded the income declared.

12. In 2016, police intercepted telephone conversations that revealed multiple drug sales by Mr Johnston, assisted by his son Alex Johnston. When stopped by police on 9 July 2016, Mr Johnston was in possession of heroin with a minimum street value of about $48,000.00 and cannabis with a minimum street value of about $10,000.00. Mr Johnston pleaded guilty to one count of trafficking in heroin and one count of trafficking in cannabis.

13. The parties agreed that, over the period of the offence, the offender received proceeds from Mr Johnston's illicit drug dealings in the sum of $175,000.00.

14. Having regard to the sum involved and the period over which it occurred, the offence is of significant objective seriousness. First, the sum involved was substantial, being $175,000.00. Second, the period over which the offence occurred was extensive, being three and a half years. Third, the offence was motivated by a desire for personal gain. There is no other possible explanation for the offence. Next, I infer that there was a significant number of transactions through the period, although the precise number is not known. I draw that inference because the agreed facts refer to sums of $1000.00, $3000.00, and the like. Finally, at least at some stage after the offence began, the offender must have known that the money was derived from the sale of illicit drugs.

15. I note that, during the period of the offence, the offender and Mr Johnston were not always living in the same house. Nevertheless, I infer that they maintained friendly relations during those periods such that the offender was able to access the proceeds of his illicit drug dealings.

16. At the time of the offence, the offender was between 42 and 45 years of age.

17. In 2001, she committed offences of attempted armed robbery and armed robbery, for which she received suspended sentences and an associated four year good behaviour order from 2002 to 2006. Her criminal record contains other minor matters relating to dishonesty and drug use, but those offences are historical and of almost no relevance.

18. The offender is one of two children. The childhood was marred by her father's untreated schizophrenia. She had no contact with him after her parents separated when she was 13 years old. The offender has good relationships with her sister and mother.

19. The offender remains in a relationship with Mr Johnston. Their children are now 28, 20 and 19 years of age. The couple's 20-year-old son and his partner reside with them.

20. The offender failed to complete high school but later obtained a Year 12 Certificate through the Canberra Institute of Technology. She commenced a university degree but did not complete it. She has worked as a sex worker for most of her adult life but said that she intends to obtain qualifications that will enable her to undertake different work.

21. The offender has a long history of substance abuse. She denied recent use of illicit drugs. She takes methadone. She attends the SMART Recovery Program with her partner, partly to support him in remaining abstinent.

22. The offender provides considerable support to Mr Johnston in relation to his attempts to rehabilitate from a long standing drug addiction, and probably also to her son. Regrettably, the imposition of a sentence of imprisonment will always have a negative impact on the family and friends of an offender. The impact that a sentence of imprisonment may have on this offender is not out of the ordinary.

23. The offender is involved in organised activities that include dragon boating and ballroom dancing.

24. The offender has a thyroid condition and she suffers from anxiety. Both conditions are managed well with medication.

25. The offender was assessed as at low to medium risk of general re-offending; her primary criminogenic risks being mental health issues and unemployment. She is addressing both matters. The offender has expressed no real remorse or insight into her behaviour and the impact that it might have on the community. These factors render her prospects of rehabilitation somewhat uncertain. Nevertheless, I accept the assessment that she is a person of low to medium risk of general re-offending.

26. I was taken to comparable cases, in particular R v Toumo'ua [2017] ACTCA 9 and R v Lou (No. 2) [2017] ACTSC 266. Due to the low number of matters of this type in the ACT, and the fact that offenders sentenced for offences of money laundering are often also sentenced for other serious matters of a different type, there is no clear sentencing pattern in the ACT. In working out the sentence, I am guided by the maximum penalty and by the factors informing the objective seriousness of the offence, which are referred to above, and the offender's subjective circumstances.

27. I accept the offender's submission that, given that the offender is in her 40s, there are some positive social factors supporting rehabilitation, and the offender has not spent any time in prison, except for a period almost two decades ago, sending her into a prison environment will not be conducive to maintaining abstinence from drugs or the positive lifestyle that she has now established.

28. However, I must have regard to sentencing purposes beyond rehabilitation. In particular, general deterrence is important; there must be a strong message of deterrence in relation to the deliberate and prolonged laundering of money that is the proceeds of the sale of illicit drugs. I also take into account the other sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT), including accountability, denunciation, and the recognition of harm to the community caused by offences of this type.

29. The parties accept that I must impose a sentence of imprisonment, and the issue is whether a sentence of full-time imprisonment is required. In my view, in order to meet the relevant sentencing purposes, and having regard to the objective seriousness of the offence and the subjective circumstances, it is necessary that the offender spend some time in full-time imprisonment.

30. The offender is convicted. I would have sentenced her to two years and three months' imprisonment, but I have discounted that sentence by about 15 per cent for the plea of guilty to 23 months' imprisonment. The sentence will run from 31 July 2018 to 30 June 2020. The sentence will be suspended after the offender has served eight months, on 31 March 2019. The suspended sentence is associated with a good behaviour order for the term of 15 months from when the suspended sentence starts, requiring the offender to report to Community Corrections within two working days of release and thereafter submit to the supervision of Community Corrections.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.