R v Viana

Ansari v The Queen (2007) 173 A Crim R 112 Du Randt v The Queen [2008] NSWCCA 121 The Queen v De Simoni (1981) 147 CLR 383 CASES CITED : R v Barrentos [1999] NSWCCA 1 R v Huang, R v Siu (2007) 174 A Crim R 370 R v Leroy (1984) 2 NSWLR 441 R v Z [2006] NSWCCA 342 Regina v Wall [2002] NSWCCA 42

Regina PARTIES: John Paul Viana

COUNSEL: Mr D Staehli SC (Appellant) Ms N Carroll (Respondent)

SOLICITORS: Commonwealth Director of Public Prosecutions (Applicant) George Sten & Co (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2006/12673

SPIGELMAN CJ SIMPSON J PRICE J

Judgment 1 SPIGELMAN CJ: I agree with Price J. 2 SIMPSON J: I agree with Price J. 3 PRICE J: The Crown appeals against the sentence imposed upon the respondent John Paul Viana. The respondent pleaded guilty to an indictment which alleged that he, between 19 November 2004 and 6 February 2005 dealt with money that was proceeds of crime, being reckless as to the fact that the money was the proceeds of crime, and at the time of the dealing, the value of the money was more than $1,000,000. This was an offence of money laundering against s 400.3(2) of the Criminal Code (Cth) (the Criminal Code). The maximum penalty for such an offence is imprisonment for 12 years, or a $79,200 fine or both. Section 400.3(2) is found within Division 400 of the Criminal Code. 4 On 8 February 2008, the respondent was sentenced in the District Court at Penrith to imprisonment for 4 years 6 months commencing on 7 December 2005, with a non-parole period of 2 years 11 months and expiring on 6 November 2008. 5 The sole ground of appeal is that the sentence is said to be manifestly inadequate. 6 The principles relevant to Crown appeals against sentence are well established and are summarised in Regina v Wall [2002] NSWCCA 42 per Wood CJ at CL at [70]. Considerable restraint is exercised by this Court before intervening in the orders made by a sentencing Judge.

The offence 7 The facts of the offence were not in dispute and a statement of facts was handed to the sentencing Judge which her Honour adopted in her sentencing remarks. The following is a summary drawn largely from that statement.

The respondent came to Australia to assist in the collection of a large sum of cash which was the money due to a Colombian national, Alexander Ayala-Serna ("Serna"), for his supply in Colombia of 300 kilograms of cocaine which had been imported into Australia. It was intended by those whom the respondent assisted, principally Serna, that on collection in Australia, the money would be sent overseas to Colombia. The respondent's father ("Viana senior"), an associate to Serna, had agreed that the respondent would come to Australia to assist Serna with the repatriation of the cash.

The respondent arrived in Australia on 6 November 2004 with money for accommodation and the purchase of a car. Serna arrived on 19 November with other associates of his. They met up with the respondent in Sydney on the same day.

On 24-25 November 2004 the respondent, claiming to be a student studying in Sydney, rented a furnished apartment at Roseville for an initial three month period. The respondent paid $8510 in advance for this rental. By this time he was staying in an Artarmon motel while Serna and his other associates were staying at a North Ryde hotel, apparently because Serna wanted to be distanced from the planned handover of the money.

On or about 25 November 2004 by arrangement the respondent met with a man and gave him the keys to the vehicle the respondent had been driving. The following day the man returned the car with the cash, the subject of the charge, in boxes in the boot. A short time later the respondent contacted Serna and told him that the car had been returned, meaning that the cash had been delivered. Serna then came to the Artarmon motel and instructed the respondent to drive to the rented unit at Roseville.

Later, either on that day or the following day, the respondent and Serna removed the boxes from the respondent's car and took them to the unit, where the two men counted bundles of money secured by rubber bands inside the boxes. Serna calculated that there was about $A5,050,000 which was then stored under a bed in the apartment.

Serna then told the respondent to contact Viana senior to find a way of repatriating the cash back to Colombia. Later, Serna was told by the respondent that Viana senior had found someone in Miami who had a contact in Australia who could repatriate the money back to Columbia for a commission of 25 per cent.

Before he left Australia Serna delivered $750,000 of the money to a man at a Kentucky Fried Chicken outlet in Artarmon, being the first step in arrangements made by Viana senior for the repatriation of the money overseas.

On 6 December 2004 Serna departed Australia on LAN Chile flight 800 to Santiago, Chile, having told the respondent to keep looking after the money. Later the respondent told Serna that arrangements had been made for the money to be sent out of Australia by a man who would take delivery of the money in one amount.

On 1 January 2005 John Iglesias arrived in Australia from the United States and joined the respondent at the Roseville unit. Serna played no part in Iglesias coming to Australia and did not know his identity.

On 1 February 2005 the respondent contacted the apartment rental agents and told them he would be departing on 6 February 2005, but his uncle would be staying until 15 March 2005. Iglesias later attended the agents' office and took over the lease.

On 6 February 2005 the respondent left Australia, leaving Iglesias to guard the cash, but they remained in regular contact. Iglesias used a mobile phone previously purchased by the respondent in Australia and subscribed to using false details.

Intercepted calls between 10 February 2005 and 16 April 2005 revealed that the respondent and Iglesias were in regular contact with each other and Viana senior in relation to the cash now being safeguarded by Iglesias. The calls also showed that both the respondent and Iglesias were relying on Viana senior to arrange for Iglesias to meet with somebody who could collect the cash and repatriate it to Colombia.

On 18 February 2005 during a telephone conversation the respondent gave Iglesias detailed instructions as to how he should hand cash over to a third party in a restaurant car park. On 26 February 2005 the respondent told Iglesias that ' another amigo has already left to go there' , this being a reference to a money launderer employed by Viana senior.

On 8 March 2005 in a coded telephone conversation, the respondent and Iglesias talked about the Chinese model and asked: "what happened with the Chinese girl?" The respondent replied: "No, good, good, good, too. All of them are good, all of them good. Everything is well organized with those bloody bitches. "

On 12 April 2005 Wing Cheong Li and his wife Oi Ling Lee, Hong Kong Chinese who lived in Venezuela, travelled from Hong Kong to Australia.

On 13 April 2005 Iglesias contacted Li by telephone in Sydney. They made arrangements to meet in the city. Iglesias then spoke with the respondent and told him that he would be sending his money today. Later, Iglesias told the respondent that he had met " with that bandit of a girl and will be seeing her". The Crown case was that this was a reference to Li, not to his wife. The respondent then told Iglesias that he should be " observant, even if she is a person to be trusted".

A few minutes later Iglesias asked the respondent if he should " give him the whole holiday package, the 27 days ." The respondent replied, " No, no half of it mate. " The Crown alleged that this was a coded conversation in which Iglesias was asking if he should hand over all of the remaining money to Li, namely $A2.7 million.

Iglesias met with Li. They travelled to the Roseville unit where Iglesias handed Li two grey backpacks containing $A1.35 million, which Li took back to his city hotel, where he was staying with his wife. A little later Iglesias told the respondent that he had handed half ' the holiday package' over and would hand the next half over the following day, 14 April 2005, which was what occurred. After that handover Iglesias told the respondent in a call: " Thank God the nightmare is over ." Li later made arrangements to transfer some of the funds overseas. At the time of the arrests of Li and his wife they still had possession of $2.26 million and had caused, through a foreign exchange dealer, a little under $400,000 to be remitted overseas.

Iglesias departed Australia on 18 April 2005. On 19 April Li, his wife and another person, Xian, were arrested. They were found to be in possession of $A2,659,256.70.

Subjective circumstances 8 The respondent's subjective circumstances were before the sentencing Judge by way of two Probation and Parole reports. He did not give evidence during the proceedings on sentence. Her Honour was informed by the respondent's counsel that what was said to the probation officer under the heading "Factors Related to Offending" was not relied upon by the respondent. 9 Her Honour relevantly summarised his subjective circumstances as follows: "The offender was born in New York. He informed the Probation Service he was abandoned by his mother when he was three. She was apparently a drug addict. His maternal grandmother contacted his paternal grandfather and his grandfather took him to Colombia for two years. His father remarried and at the age of five he went to live with his stepmother in Colombia. They joined his father, who had been living in the United States. He spent time with his father and stepmother in the United States and time with relatives in Colombia. There are three half siblings. It was when he was about twelve he realised that his stepmother was not his natural mother. There had been a great deal of conflict between them throughout those early years. He was forced to leave home at sixteen when it was thought he was implicated in a robbery of his stepmother's belongings. He undertook some counselling but problems resurfaced again. In 2000 he heard that his birth mother had been trying to trace him in Colombia in 1995. Efforts were made to find her but sadly she had died. The offender is said to be harbouring feelings of guilt for not trying to locate her whilst she was still alive. In 2004 the offender left Colombia and returned to live in the United States. He had a pregnant girlfriend but she was not able to accompany him. Without family support he lived in a car in Miami. His girlfriend gave birth to a son and he went to see him in April 2005. That relationship ended. The offender formed a new relationship and his new partner accompanied him back to the United States. She discovered she was pregnant shortly after his arrest and a son was born in July 2006. They have apparently returned to Colombia. The offender was suspended from school in ninth grade. However he went on to complete high school at the age of seventeen, despite drug and gambling addictions. He began to study business administration at university. His father agreed to support him if he went to university but said he would give him nothing if he did not attend. He left the first university in which he was enrolled and enrolled in another university when his father threatened to withdraw financial support. In 2002 financial support was withdrawn by his father when he was expelled from university for low grades and poor behaviour, including substance abuse. His employment history includes a period of accompanying a wealthy benefactor throughout South American countries as his personal assistant in 2002 and 2003. A letter has been tendered from a car parking station certifying that the offender worked from August 2005 until December 2005 as a car parking attendant. He was regarded as a good employee who showed up on time. … Since his incarceration in Australia he has been gainfully employed in the industries section, the prison kitchen and as a television technician. He says he works to pay for overseas phone calls. In more recent times he has worked as a cleaner in the Justice Health Clinic at Parramatta Correctional Centre. In the opinion of the Probation Service the offender had a materially privileged upbringing which was dysfunctional. He has unresolved issues of substance abuse and gambling." The findings of the sentencing Judge 10 Her Honour found: (a) The respondent's role was more significant than one of a mere underling or courier. He was entrusted with the funds after Serna left Australia. Once Iglesias arrived he did not cease his involvement but remained engaged with him. The respondent was to be sentenced in accordance with the facts to which he had pleaded guilty.

(b) The respondent had come to Australia with the knowledge that he was to be involved in the repatriation of a large sum of cash from Australia to Colombia. He was engaged in this illegal activity from 6 November and his role did not cease upon his return to the United States. He continued to liaise with Iglesias throughout February and March and up until Iglesias left Australia in April 2005. The offender's role was one of significance, if not a principal. The objective gravity of the offence called for the imposition of a full time custodial sentence. (c) It was a matter which fell within the mid-range of objective seriousness. (d) At the time of sentence the respondent was 26 years old and had been born in New York. He had no family or other contacts in Australia. (e) He had no prior criminal antecedents. (f) The respondent was extradited from the United States of America where he had been in custody since 7 December 2005. He had not disputed his extradition 11 Her Honour had regard to the subjective circumstances of the respondent - his lack of criminal antecedents, his age and the fact that he was alone in an Australian gaol without any support other than telephone contact with his family in the United States and Colombia. Her Honour remarked: "But for the plea of guilty and his willingness with regard to his extradition I would have imposed a head sentence in the order of six years imprisonment." 12 During her sentencing remarks the sentencing Judge referred to the submission on behalf of the respondent that this was an unusual case as there was no evidence that he was to benefit financially from the enterprise. The extent of the respondent's benefit was said to amount to a benefit to his father rather than himself and that was by way of a loan of $US1.2 million from Serna. Her Honour remarked "in other words, he was acting illegally at the behest of his father, who may well have some particular authority over him". The Crown had told the sentencing Judge that it was common ground between the parties that the respondent acted at his father's behest which had been confirmed by Serna in an interview with police.

Submissions 13 The Crown submitted that the head sentence of 6 years which was identified as the commencement point of the sentence was too low to reflect the respondent's criminality. The Crown pointed to the amount of money involved, namely $5 million dollars and what was asserted to be the knowledge of the respondent as to the source of the money. In written submissions the Crown referred to the sentencing Judge's failure to identify whether the respondent was reckless as to whether the money was the proceeds of a major drug offence, as opposed to simply being the proceeds of a crime. During oral argument the Crown argued that the respondent must have known that the origin of the funds was drug trafficking and asked this Court to make such a finding. It was, the Crown said, difficult to contemplate that the funds had any other origin particularly given that Serna was a Colombian national. The respondent's knowledge was a component, the Crown contended, which could be used in determining the seriousness of the offence. 14 Although her Honour's characterisation of the respondent's role was consistent with the Crown's submission on sentence, the Crown asserted that the sentence imposed did not reflect this finding. 15 The manifest inadequacy was said to derive from the sentencing Judge: a. Wrongly identifying 6 years imprisonment as an appropriate head sentence; b. Failing to properly take into account the serious nature of such offences and to adequately reflect the element of general deterrence consistent with the legislative intent of Parliament regarding the seriousness of such offences.

Whilst acknowledging that appeals by the Crown should be rarely exercised, the Crown submitted that this case falls within the category where this Court should intervene. 16 Counsel for the respondent asked how one could conclude that a 6 year prison sentence was anything but a substantial penalty. The sentence, it was said, more than adequately reflected the objective criminality of a man without a criminal record who: · At the direction of others, collected and safeguarded for a number of months a large amount of money; · Stood to receive no direct financial gain; · Did not have knowledge of the source of the monies and their connection to a previous importation of prohibited drugs into Australia; · Was not involved in the illegal drug trade; · Was not involved in any additional episodes of money laundering; · Did not move the monies himself out of Australia; and · Did not have the capacity or resources to do so in any event. 17 The respondent submitted that it was difficult to comprehend how a sentence of so many years full time imprisonment, given to a man without a criminal history, fails to communicate the message of general deterrence when you look closely at exactly what the respondent did. 18 In response to the Crown's argument as to the respondent's state of mind, it was contended that there were a number of illegal acts which could account for the existence of large amounts of cash exceeding $1,000,000. It was more realistic to conclude that anyone dealing with such a large amount of cash would be reckless to the funds being illegitimate. However, that did not support what the Crown urged was the next logical conclusion (at sentence at first instance) which was that the respondent was reckless to the funds being illegitimate monies from the importation of drugs. 19 The agreed facts, it was argued, did not support this conclusion and was not a matter that had been established by the Crown beyond reasonable doubt. The respondent submitted that the matters which supported this argument include: (i) The length of time between the importation and the attempted repatriation of the monies; (ii) The respondent did not use a false identity whilst in Australia; (iii) The respondent received directions from Serna; (iv) Serna and others distanced themselves from him whilst in Australia; (v) There was nothing to indicate that the respondent was in Serna's confidence; (vi) His participation originated from his father's dealing with Serna to obtain a substantial loan of money, not from any personal association with the illegal drug trade. 20 It was submitted that what the respondent did after he left Australia was not part of the charged period and could only serve to illustrate the extent of his criminality whilst in Australia. The respondent's role, as compared to other persons identified in this offence, had to be at the lower end. He received directions and was not a decision maker. There was nothing particularly sophisticated in what he did, rather it was his trustworthiness which made him suitable to the task. Her Honour's finding that the respondent's role was more significant than an underling or courier was accurate as he was a trusted intermediary who collected and safeguarded the monies. 21 This Court was reminded that the respondent's involvement came about from his father's intention to take a loan from Serna, rather than from any allegation that he had some greater involvement in the illegal drug trade. This was said to be a factor which reduced his criminality rather than aggravating it. The only money provided to him was to pay for the costs involved in safeguarding the money. He appears to have received no significant financial gain which is supported by his having worked as a car park attendant from August 2005 to December 2005. 22 The six year starting point, counsel for the respondent submitted, adequately reflected the criminality of the respondent's role.

Decision 23 Offences of money laundering under Division 400 of the Criminal Code received detailed consideration by this Court (Simpson, Howie and Hislop JJ) in Ansari v The Queen (2007) 173 A Crim R 112 and R v Huang, R v Siu (2007) 174 A Crim R 370. The amount of money or value of the property involved and what was alleged to have been the state of mind of the accused determine, in accordance with the scheme of the Criminal Code, the available maximum penalty. 24 The amount of money or value of the property which is dealt with by an offender distinguishes a s 400.3(2) offence (money or property worth $1,000,000 or more) with a maximum penalty of 12 years from a s 400.4(2) offence (money or property worth $100,000 or more) with a maximum penalty of 10 years or a s 400.5(2) offence (money or property worth $50,000 or more) with a maximum penalty of 7 years. As was said in R v Huang, R v Siu at [34]: "The amount of money involved is clearly a highly significant matter because the legislation uses it as the principal means of dividing the offences into categories and it is the primary identifier of what is the maximum penalty for an offence." 25 Where the state of mind of an offender is alleged to have been belief or intention the maximum penalty is 25 years (s 400.3(1)) whereas, where recklessness is alleged, the maximum penalty is 12 years (s 400.3(2)) and in the case of negligence 5 years (s 400.3(3)). 26 In Ansari Simpson J explained at [11]:

"…s 400.3, properly analysed, creates six different offences, in pairs, graded in descending order of seriousness. The level of seriousness depends upon what is alleged by the Crown to have been the state of mind of the accused." 27 In present case the principal factor which aggravates the seriousness of the respondent's offending was the very large amount of money, namely $A5,050,000 which he dealt with. Furthermore, his criminal activity in Australia which was the subject of the charge extended over about 11 weeks. 28 No issue was taken by either party with her Honour's identification of the respondent's role being "more significant than one of a mere underlying or courier." The sentencing Judge was entitled to take into account the contact he maintained with Iglesias after he departed Australia in her consideration of the respondent's role in the laundering of the money. Whilst not the principal, his involvement was significant and not merely confined to being the custodian of the proceeds of crime. His criminal activity included the collection and counting of the money. It was the respondent who informed Serna that arrangements had been made for the money to be sent out of Australia and with whom Iglesias took up residence. After having left this country, the respondent was in regular contact with Iglesias. It is evident that her Honour took into consideration these matters. 29 No argument was advanced by the Crown during the proceedings on sentence that her Honour should find that the respondent must have known that the origin of the funds was drug trafficking. In written submissions the Crown had submitted to the sentencing Judge that by his plea the respondent had acknowledged that he was reckless as to the fact that the money was the proceeds of crime. As to the nature of the crime in question it was difficult, the Crown wrote, to conceive of another crime which would generate the level of the funds other than the importation of illicit drugs. On this issue the sentencing Judge did not make a finding. Her Honour, however, was aware of the significance of the mental state of the respondent when she said: "The moral culpability of an offender depends upon his level of involvement. That is reflected in the maximum penalties imposed for negligently dealing with monies, which is five years, the recklessly dealing with monies, which is twelve years, or the belief that monies were the proceeds of crime, which attracts the maximum penalty of twenty-five years imprisonment. This offender has pleaded guilty to recklessly being involved." 30 The Crown's contention that this Court should find beyond reasonable doubt that the respondent did or must have known that the origin of the money was drug trafficking, in my view, infringes the principle in The Queen v De Simoni (1981) 147 CLR 383 and is to be rejected. Such a finding would take into account a circumstance of aggravation which would have warranted a conviction for the more serious offence under s 400.3(1)(b)(i) of the Criminal Code which establishes an offence where a 'person believes' the money or property 'to be proceeds of crime'.

31 It was open to the sentencing Judge without infringing the principle in De Simoni to consider that the respondent was reckless as to the source of the funds being the importation or sale of prohibited drugs. The obligation was on the Crown to establish that matter beyond reasonable doubt. Whilst it is not evident from the remarks on sentence, the fact that the respondent acted at his father's behest to enable him to obtain a loan from Serna was a matter which might have caused her Honour to step back from reaching such a conclusion beyond reasonable doubt. I am not persuaded that her Honour erred in not making the finding which the Crown submitted ought to have been made. 32 In the present case the amount of money dealt with by the respondent was considerable. In my opinion it makes little difference in assessing the objective seriousness of the present offence whether the respondent was reckless as to the source of the funds being a particular crime or to the funds being illegitimate. What the respondent did in his participation of laundering of just over $5,000,000 is to my mind the most important consideration. His role was not at the lower end as was submitted in this Court for the respondent. 33 It was accepted at the sentencing hearing that the respondent had acted at his father's bidding and there was no evidence that he had benefited financially from the offence. Her Honour remarked that his father "may well have some particular authority over him". His lack of financial gain was supported by his work as a car park attendant upon his return to the United States. These were considerations that her Honour was entitled to take into account as mitigating the objective seriousness of the criminal conduct. 34 In determining the sentence to be passed the matters identified in s 16A (1) and (2) of the Crimes Act 1914 (Cth) were required to be taken into account which her Honour acknowledged. These matters include the subjective circumstances of the respondent. 35 At the time of sentence the respondent had no prior convictions and was 26 years old. In various classes of offence less weight is extended to prior good character: see for example R v Leroy (1984) 2 NSWLR 441 (drug couriers); R v Barrentos [1999] NSWCCA 1 (drug importations). As there was no discussion during the sentencing proceedings or before this Court that less weight should be given to the respondent's lack of prior convictions, it would be inappropriate to consider here whether the Leroy approach should apply to the present case. 36 Section 16A(2)(m) of the Crimes Act (Cth) required her Honour to take into account the prior good character of the respondent. 37 The importance of general deterrence in sentencing for an offence of money laundering was recognised by her Honour when she said: "There can be no doubt that the issue of general deterrence is of significance when sentencing offenders for offences which amount to money laundering. These offences by their very nature are difficult to detect, investigate and prosecute. The activity involves the disposition of funds used in illegal activities without confidence in which the original crimes would be unlikely to have been committed in the first place."

Notwithstanding what was said, the Crown complains that the sentence does not reflect the need for general deterrence. 38 The Crown pointed out that the terminology used by her Honour that the offence fell within the mid-range of objective seriousness is derived from s 54A of the Crimes (Sentencing Procedure) Act 1999 and has no relevance to sentencing of Commonwealth offenders. Whilst that is true, this Court has encouraged transparency in sentencing and, in my view, the sentencing Judge should not be criticised for exposing her reasons for the sentence imposed. Her Honour's characterisation of the offence explains the notional starting point of the sentence of 6 years which is half the applicable maximum sentence. There was no complaint by the Crown for the reduction of the head sentence by 25 per cent "for the plea of guilty and his willingness with regard to his extradition." The Crown's complaint is that the identified starting point was manifestly inadequate. 39 The sentencing Judge carefully considered the decisions of this Court in R v Z [2006] NSWCCA 342, R v Huang, R v Siu, Ansari v The Queen which were said by the Crown to be comparative cases and took them into account as indicative of the range of sentences whilst acknowledging that none of them could be "said to be on all fours with this offender". 40 In written submissions to this Court the Crown included a number of sentencing decisions for money laundering offences. Of those which have been the subject of appeals to this Court the Crown said that none are of sufficient similarity to the present case to permit any conclusion about what, if any, range of appropriate sentence has developed. A number of those cases were those considered by her Honour. The recent decision of Du Randt v The Queen [2008] NSWCCA 121 which involved an offence contrary to s 400.4(2) of the Criminal Code was referred to. The money dealt with in that case was substantially less than in the present matter and the principal consideration on appeal was the weight given to the offender's mental condition. 41 The sentencing decisions referred to can be, as the Crown submitted, distinguished for various reasons from the present circumstances. Whether the sentence imposed in this case is manifestly inadequate is the question to be determined by this Court. 42 The non-parole period of 2 years 11 months represented 64 per cent (round figures) of the head sentence which was within the usual range for Federal offences of somewhere between 60 and 66 per cent. The non-parole period must appropriately reflect the seriousness of the respondent's criminality and meet the need for general deterrence. Although the Crown did not specifically argue that the non-parole period was inadequate such inadequacy would inevitably arise if the notional starting point of the sentence was definitely outside an appropriate range. 43 It is trite to observe that this is a Crown appeal and the question is not what sentence would have been imposed if the respondent had come before this Court for the first time to be sentenced. This Court will not interfere in the exercise of the sentencing Judge's discretion unless either identifiable or manifest error has been demonstrated. 44 No error has been demonstrated in her Honour's approach to the sentencing task. Whilst in my opinion, the sentence is lenient, I am not persuaded in all the circumstances that the starting point of the sentence or the non-parole period was outside an appropriate range. The sentence is at the lower end of an appropriate range and within her Honour's discretion. 45 I propose that the appeal be dismissed. *********

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