Subs 400.3(2) (minimum value $1million; maximum custodial penalty 12 years)
49 The respondent in R v Viana [2008] NSWCCA 188 was a co-offender of Li (para [27] above). He pleaded guilty. The amount of money he dealt with was $5,050,000 and his state of mind was recklessness. The sentencing judge described his offence as mid-range and selected 6 years as a head sentence before discounting. The Crown's principal contention on appeal was that the starting point and therefore the resulting sentence was manifestly inadequate. This Court was not satisfied that the starting point was outside an appropriate range of sentencing discretion.
50 In R v Ansari the two respondents were each charged with two charges of conspiring with the other respondent and with a man referred to as Z to deal with money to the value of $1 m or more where there was a risk that the money would become an instrument of crime and when each was reckless as to the fact of that risk. The respondents were directors of a money exchange business. In October 2003 Z, who was resident overseas, visited Sydney and delivered to the respondents cash exceeding $2 m in value. They arranged for an associate to deposit the money into various bank accounts and that was done over a period of several months, always in amounts of less than $10,000 to avoid reporting provisions.
51 In June 2004 Z visited Sydney again, intending to deliver to the respondents between $2 and $3 m which was to come from the sale of drugs. Z and the respondents made an arrangement as before, but they were all arrested before the plan could be put into effect.
52 Z was charged with conspiracy under s 400.3(2) for the arrangement of June 2004, but that was the only money laundering count. Z was also charged with having possession of a prohibited import, namely MDMA, being not less than the commercial quantity, reasonably suspected of having been imported into Australia. Z pleaded guilty and assisted the authorities. His subjective case was particularly strong because he had a substantial mental illness. The sentencing judge took into account in sentencing for possessing MDMA an offence for possessing cash to the value of $15,000 reasonably suspected of having been unlawfully obtained. Z was sentenced to a fixed term of 2 years on the money laundering count and to a longer term for the possession of the imported drug. On appeal, this Court considered that there should have been a starting head sentence of 7 years for the money laundering count but confined its interference to the possession count.
53 In the Crown appeal against the sentences imposed on the Ansari brothers this Court, relying on what the court had said in Z, substituted head sentences of 7 years for each of the offences for each respondent. Adjustments to the partial concurrency of the sentences are of no present interest.
54 In R v Chen [2009] NSWCCA 66 the appellant was convicted of conspiring to deal with money worth $1 m or more. The state of mind was recklessness. The sum of money the subject of the conspiracy was greater than $20 m but the fraud was discovered and no money was lost. On appeal the sentencing judge was held correctly to have started with a head sentence of 8 years before discounting.
55 Some of the co-offenders of Hang Thanh Huynh were sentenced by Judge Wood under subs 400.3(2). Tam Tran operated between December 2005 and October 2006. The amount with which he involved himself does not appear in the judgment. His state of mind was recklessness. The starting point before discount for a plea of guilty was 6 years and 6 months.
56 Thi Ba Ong Huynh was reckless between December 2005 and June 2006 about amounts of money exceeding $10 million. The starting head sentence before discount was 6 years and 6 months.
57 Thi Thu Nguyen was reckless about amounts exceeding $8 million between December 2005 and October 2006. The starting head sentence was 6 years and 6 months.
58 As I said in R v Li, I do not think that the number of money laundering cases dealt with so far by appellate courts is sufficient to begin to trace the limits of the proper range of sentencing discretion under subs 400.3(1). And when there are added the first instance sentences to which counsel drew this Court's attention, the position is no different. Moreover, unless there are co-offenders, one may not look at the facts and result of a single case in order to show that the case under consideration is within or outside a proper range of sentencing discretion: R v George [2004] NSWCCA 247 per the Court at [48] - [49]. So although the cases referred to are of assistance, it is limited.
59 A court imposing sentence for an offence under subs .3(1) must have regard first to the maximum sentence applicable, to the minimum value of money or property necessary to bring an offence into the sub-section and to the prescribed state of mind, namely the offender's belief that the money or property was the proceeds of crime. There will be other features, too, including the actual value of money or property dealt with and the proportion, if any, by which that value exceeds the minimum value qualifying for subs .3(1), as well as the period of time over which the transactions constituting the offence were carried out, the authority by which the offender carried out his part and precisely what the offender did and the manner in which the offender acted, which will include consideration of any practised deceit. The nature of the criminal source of money or property may be important. The Court will need to consider whether the money or property was beneficially the offender's or not and, if not, the value of any intended reward. It will be important to consider what part of the money was successfully dealt with and the value of any resulting loss to the community. The precise state of mind of the offender will be important. Just as subss .3(1), .3(2) and .3(3) vary according to a scale of increasingly serious states of mind, rising from negligence to recklessness to belief, so there may be degrees of belief, rising to certain knowledge, as in Maldonado. And there will be other considerations, case by case.
60 It seems to me that the important features of the present case are that the offender believed that the money he dealt with was the proceeds of crime (though one could not say anything about the strength of his belief or whether he believed that the proceeds derived from any particular criminal activity), that the money transmitted was about fifteen times greater than the minimum amount necessary for subs .3(1), that the transmissions took place frequently over a period of almost ten months and that the offender carried out a directing role in a well organised criminal organisation in which, for the most part, he procured those junior to him to effect the individual transactions. All the money was apparently successfully transmitted directly or indirectly out of Australia and was lost to the economy. The money was not beneficially the offender's, but he received an unidentified sum as commission.
61 Although his Honour stated that he regarded the plea of guilty as some evidence of remorse, it was common ground on appeal that his Honour must have commenced with a head sentence of 12 years and 6 months and reduced it by the nominated 20% for the utilitarian value of the plea of guilty to produce the head sentence imposed.
62 The Crown submitted that the high level role performed by the respondent, the amount of money involved and the period of time over which he operated, given the fact that his motivation was greed, put the offender's criminality very high in the range contemplated by subs .3(1), yet his Honour' starting head sentence was only 50% of the maximum penalty. It was submitted that his Honour should have commenced with a figure of 80 or 90 per cent of the 25-year maximum.
63 It seems to me, having in mind the serious features of this case to which I have drawn attention, that this is a very serious case of its type and comes close to the worst category of cases. In my opinion his Honour ought to have selected a starting head sentence much higher than he did.
64 By s 68A Crimes (Appeal and Review) Act 2001 the discretion of this Court in a Crown appeal against sentence to impose a lesser sentence than it otherwise would or to dismiss the appeal because of what was referred to as "double jeopardy" was removed. See generally R v JW [2010] NSWCCA 49. The Court in R v JW did not deal with an offence against the law of the Commonwealth.
.
65 Mr Boulten submitted that s 68A had no effect on the Court's discretion in this appeal since it was concerned with a Commonwealth offence. It was submitted that s 68A impermissibly impaired the exercise of judicial power contrary to the guarantees enshrined in Chapter III of the Commonwealth Constitution because it conferred on this Court exercising Commonwealth jurisdiction a duty which was repugnant to the judicial process in a fundamental degree. Reference was made to Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51 and other cases. Mr Boulten also submitted that s 68A was of no effect because it was not picked up by any relevant section of the Judiciary Act 1903 (Commonwealth).
66 In the meantime, a differently constituted bench of this Court has dealt with these questions. In Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194 the Court held unanimously that s 68A Crimes (Appeal and Review) Act 2001 was not, for the purposes of s 109 of the Commonwealth Constitution, inconsistent with s 16A of the Crimes Act 1914 (Commonwealth), as to which see the judgments of Allsop P at [1]-[33], Basten JA at [79], McClellan CJ at CL at [162], Simpson J at [273] and Barr AJ at [314], and by a majority that there is no inconsistency between s 68A and s 16A such as to exclude s 68A from the operation of s 68, s 79 or s 80 of the Judiciary Act 1903 (Commonwealth), as to which see the judgments of McClellan CJ at CL at [162]-[180], Simpson J at [274]-[282] and Barr AJ at [315], cf. Allsop P at [34]-[56] and Basten JA at [80]-[99]. Accordingly, this Court must deal with the appeal without applying any discretion that might have arisen because of "double jeopardy".
67 Of course the Court has a discretion independent of that removed by s 68A not to interfere even when the Crown demonstrates that a sentence appealed from is inadequate. However, I do not consider that the exercise of that discretion is warranted in the present appeal. When the Court decides to interfere, it is appropriate to substitute a sentence which falls towards the lower end of the range of available sentences, and that is what I propose.
68 In my opinion this Court should quash the sentence appealed from and substitute a sentence of imprisonment for 13 years, produced by taking a head sentence of slightly more than 16 years and deducting from it 20 per cent in recognition of the plea of guilty. My intention is to produce an effective head sentence of 16 years for both counts. In order to achieve that it will be necessary under the provisions of s 59(1) Crimes (Sentencing Procedure) Act 1999 to vary the commencement and expiry dates of the sentence imposed on the first count, but not otherwise to disturb it. I propose the following orders -
1. Allow the appeal and quash the sentence imposed on the second count.
2. Vary the sentence imposed on the first count so that it commences on 6 October 2006 and expires on 5 October 2018,
3. Sentence the respondent on the second count to imprisonment for a period of 13 years. The sentence will be taken to have commenced on 6 October 2009 and will expire on 5 October 2022.
4. Set a non-parole period of 10 years and 8 months, which will expire on 5 June 2017.
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