(h) Respondent's oral submissions
124No range? Against that conclusion, the respondent said, first, that there had only be a relatively small number of laundering offences dealt with by appellate courts, by reference to R v Wing Cheong Li [2010] NSWCCA 125; 202 Crim R 195 at [40], such that there was no "range". But the inference that the discretion has miscarried does not turn on the existence of a range, particularly where, as here, s 400.4 is broadly drafted and applies to a wide range of conduct. Moreover, the sentence imposed by this Court neither permits nor requires a determination of the bounds of the range within which it should fall: Barbaro at [28].
125Thorn and Schembri. Secondly, the respondent maintained that the decisions in this Court of Thorn v R [2009] NSWCCA 294; 198 A Crim R 135 and Schembri v R [2010] NSWCCA 149; 78 ATR 159 "put an end to any submission" that the sentence was manifestly inadequate.
126The respondent's submission that Thorn v R [2009] NSWCCA 294, where the applicant was resentenced to a term which would have been 3 years, 6 months before discount, with a non-parole period of 2 years, 8 months, was in many respects similar to this case, cannot be accepted. The respondent also relied on Schembri v R [2010] NSWCCA 149; 78 ATR 159, which was said to be in many respects on all fours with this case. That, too, cannot be accepted.
127Thorn was concerned with one count of dealing with the proceeds of crime contrary to s 400.4(1) of the Code, 11 counts of dishonestly obtaining a financial advantage contrary to s 134.2(1) of the Code and one count of attempting to obtain a financial advantage (the attempt offence). The overall sentence imposed was 5 years, 4 months with a non-parole period of 3 years, after a 30 per cent discount for plea and assistance. The offences concerned false GST refund claims totalling $295,201.45. For reasons explained, the offence was considered to be a highly technical breach of s 400.4, with little benefit to be gained from considering the cases mentioned or the statistics indicating the range of sentences imposed for such offences. In the result, it was concluded that this was an offence towards the lowest range of the type of offending covered by the section.
128It was concluded that the appellant had not been sentenced for the fraud offences in accordance with law, which required that he be sentenced for each offence individually and that it then be determined whether those sentences should be concurrent or cumulative. In the result, he was resentenced to a term of 4 years, 2 months, after a 25% discount, with a non-parole period of 2 years, 4 months. This also does not assist the respondent in this case, given the very different circumstances and grounds of appeal here under consideration. Here the nature of the respondent's offending is very serious, unlike the low range offending which arose for consideration in Thorn.
129It follows that it is not necessary to consider the correctness of what was observed in Thorn at [31], where it was observed that "the activity came within the scope of the offence under s 400.4, because the offence is so widely drawn. But it was a highly technical version of the offence."
130In Schembri the applicant had been found guilty by a jury of 9 counts of obtain a financial advantage by deception (s 134.2(1) of the Code); six counts of attempt to obtain a financial advantage by deception (the Criminal Code Act, ss 11.1 and 134.2(1)); and one count of deal with proceeds of crime (count 17 of the indictment) being $100,000 or more (s 400.4(1) of the Code). The applicant was sentenced to an aggregate term of imprisonment of 7 years from 20 October 2008 to 19 October 2015, with a non-parole period of 4 years from 20 October 2008 to 19 October 2012.
131The only ground pressed on appeal related to the sentence imposed in relation to count 17 (which related to using the proceeds of the funds obtained as the result of nine other accounts). The Crown conceded in relation to that offence that the sentencing judge erred in imposing a sentence that was not wholly concurrent with counts 1 to 15. In the result a sentence the 2 years imprisonment was made wholly concurrent with the other sentences.
132That decision did not support the case pressed for the respondent. There the Court observed:
"11 Count 17 charged the applicant with a money laundering offence which arose out of the same facts as the other offences with which she was charged. There have been at least three cases before the Court in the last year where the Court has criticised the prosecution practice of charging offenders in this way. To the credit of the Crown Prosecutor in this case, he brought those cases to our attention and made the concession to which we have referred.
12 The problem was adverted to in Thorn v R [2009] NSWCCA 294, when Howie J pointed out that money laundering offences were intended by the legislature to be directed at activity where persons were intimately involved in dealing in money that was the result of some other person's criminal activity, so as to hide its source.
13 Shortly after Thorn, this Court delivered its decision in Nahlous v R [2010] NSWCCA 58. In that case, the applicant had pleaded guilty in the Local Court to six offences contrary to the provisions of the Copyright Act 1968 (Cth) (the decoder offences) concerning the sale of, or offering to sell, unauthorised decoders. The relevant provisions of that Act were ss 135ASB(1) and 135ASC(1). The applicant also pleaded guilty to an offence contrary to the Criminal Code Act, s 400.6(1). That section is concerned with dealing in the proceeds of crime. The decoder offences each carried a maximum penalty of imprisonment for 5 years. The offence of dealing in the proceeds of crime carried a maximum penalty of imprisonment for 10 years. The applicant, on a plea of guilty, was sentenced to various terms of imprisonment of 3 to 6 years, to be served by way of periodic detention, on the copyright offences. Relevantly for present purposes, however, on the money laundering offence, he was sentenced to 20 months imprisonment.
14 The Court (McClellan CJ at CL, Howie and Rothman JJ) referred first to Thorn and noted, at [14], that there was a basis in that case for the money laundering charge:
"... because it captured criminality of the applicant's co-offender, who had never been charged and yet was involved in a joint criminal enterprise with the applicant."
15 The Court then stated, importantly, at [17]:
"We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty."
16 Those remarks apply in this case to count 17. However, it is important to re-emphasise this Court's disapproval of such prosecutorial action. The Crown Prosecutor informed the Court that he has brought this issue to the attention of the Commonwealth Director of Public Prosecutions. We note that the charges in this case were laid and the trial conducted and sentences passed well before the decisions to which we have referred were given. Nonetheless, the matter is of such importance that we consider a copy of these remarks should be brought to the attention of the Commonwealth Director of Public Prosecutions.
133The term of the sentence imposed for count 17 was not in issue on this appeal. What was common ground between the parties, which was accepted by the Court in the above context, was that the sentence imposed for that count should have been made wholly concurrent with the sentences imposed for the other offences. These are circumstances far removed from what arises to be considered on this appeal.
134Accordingly, Thorn and Schembri are far removed from the present appeal, which concerns a prosecution on a single count of money laundering.
135Low degree of criminality having regard to elements of the offence? Thirdly, the respondent focussed attention on the definition of "deals with money or other property" in s 400.2, which extends to concealing, disposing, importing and exporting money or other property. It was said that the criminality involved in this appeal was merely withdrawing money using an ATM card, and that in particular this was "not a situation where this respondent provided comfort to a criminal enterprise". That submission does not advance the matter.
136The respondent "received" money, "possessed" money, and "engaged in a banking transactions" relating to money which was, to her knowledge, the proceeds of crime. Providing comfort to a criminal enterprise is not an element of the offence created by s 400.4. Moreover, the considerations to which the respondent points do not detract from the deliberate, sustained, wilful conduct engaged in by the respondent over a relatively lengthy period of time. It was also said that there was "no hiding, as it were, no facilitation of crime", which submission sits ill with the respondent's decision to operate no fewer than seven separate bank accounts with the same bank over the ten month period in question, into which (according to the Crown's submissions, to which the respondent did not demur) she caused 3, 3, 1, 6, 1, 6 and 4 refunds to be deposited respectively.
137Choice of charge? Finally, it was said that the difficulty arose in this case because "the Crown chose not to charge the respondent under the tax fraud legislation". This last submission echoed one recorded by the sentencing judge in his remarks, namely, that Ms Ly could have been charged with offences under s 134.1 of the Code (defrauding the Commonwealth) which carries a maximum sentence of 10 years. But that submission was, as it was put by the Crown in reply, a submission "into the very territory that Elias forbids a court to go". The High Court has made it clear that consideration of different offences for which the offender might have been convicted is merely a distraction: Elias v The Queen [2013] HCA 31; 248 CLR 483 at [36], and that it risks compromising the court's impartiality and independence to sentence by reference to an uncharged offence which the court considers the prosecution should have charged: Elias at [35].
138As discussed in R v Wing Cheong Li; Wing Cheong Li v R at [41]:
"Notwithstanding the gridlike structure of the subsections, their graded component parts and maximum sentences, they comprehend such a wide range of criminality that there is bound, I think, to be an appreciable variation in the length of sentences within and between them. It seems to me, without undervaluing the importance of the principal differentiating factors - minimum value of money or property and state of mind - that each case will have other variables that bear on sentence. Perhaps the most important will be an exact appreciation of what the offender did, what acts he performed and with what authority and over what period of time. The total value of money or property involved will be important, and whether the money or property belonged to the offender or to another. The degree of planning or deceit that led to the commission of the offence and whether actual loss resulted, and the extent of such loss, will be important. Just as there is a distinction between recklessness and belief, the precise nature of proved belief may vary so as to affect the sentence. There will be a range of possible strengths of belief, rising to certain knowledge, as in Maldonado. Here the respondent's serious criminality was revealed by the number of the frauds involved; the amount of the money the subject of those frauds; the impact of the frauds; the planning and steps involved; the purpose of the frauds; and the actual loss which resulted."
139We have concluded in light of the terms and structure of the Code and the reasoning underpinning the sentence in each of the above comparative cases that the sentence imposed in the present case of 3 years 6 months with a non-parole period of 2 years 4 months was manifestly inadequate.