Grounds of appeal relied upon by the applicant Roizman
30Roizman alleges disparity between his sentence and those imposed on others (grounds 2 and 2A in his appeal). Those grounds are addressed below, together with the disparity grounds relied upon by Wang.
31Ground 1 relied upon by Roizman is:
that the sentence imposed was unduly harsh and severe.
32The applicant sought to sustain that submission principally by reference to the JIRS statistics for principals under s 400.3(2), noting that there are no JIRS statistics for aiders and abetters. It was noted that the statistics show only ten persons dealt with under the section, of whom 80% were sentenced to imprisonment for 54 months or less, with only one person receiving a sentence in excess of 5 years. It was further noted that non-parole periods in the statistics range from 30 months to 7 years with 90% receiving a non-parole period of 36 months or less and only one person receiving a non-parole period of over 3 years.
33I do not think that resort to the JIRS statistics establishes error in the present case. As noted on behalf of the Crown, it has been observed previously by this Court that the wide range of circumstances in which money laundering offences may be committed make comparisons with other cases virtually impossible and the sentences imposed in such cases of limited assistance: R v Wing Cheong Li; Wing Cheong Li v R at [40]-[41] per Barr AJ; Allsop P, Basten JA, McClellan CJ at CL and Simpson J agreeing at [1], [2], [3] and [6] respectively.
34Probably the most comparable case for sentencing purposes is the decision involving the co-offender Chen considered below in the context of the parity grounds. Having regard to the matters there discussed, I do not think that decision establishes manifest excess in the sentence imposed on the applicant Roizman. It may be noted that, in Ansari v R at [130]-[148], allowing a Crown appeal, the Court expressed the view that a sentence of at least 9 years imprisonment would have been appropriate at first instance (in a case involving a significant sum but one which was substantially smaller than that involved in the present case and where there was no circumstance akin to the applicants' gambling or any resultant loss to others).
35I am not persuaded that the sentence imposed on Roizman in the present case was outside the permissible range of the sentencing judge's discretion.
36Ground 3 is:
that the sentencing judge erred in contravening the rule in De Simoni v R (1981) 147 CLR 383.
37A similar ground was argued in the decision of this Court in Chen. The relevant offence in each case consists in dealing with money reckless as to whether the money was the proceeds of crime. As already noted, there is a more serious offence of dealing with the proceeds of crime believing the money to be the proceeds of crime, which carries a maximum penalty of 25 years imprisonment (s 400.3(1)).
38In Chen, the sentencing judge found that the offender knew "right from the outset" that the enterprise involved dealing in illegally obtained money. It was submitted on that basis that his Honour had breached the principle arising from R v De Simoni [1981] HCA 31; 147 CLR 383 in that he took into account a fact that was relevant to an element of a more serious offence than that for the offender was being sentenced.
39In considering that ground, Howie J said in Chen (at [23]):
But it is obvious that there is a more serious offence arising where a person dealing with money over $1 million believes that the money is the proceeds of crime, and such an offence carries a maximum penalty of 25 years imprisonment: see s 400.3(1). Even though recklessness of a circumstance as an element of an offence under the Code can be proved by actual knowledge of that circumstance, when sentencing for an offence under s 400.3(2) the distinction must be maintained between the less serious offence involving recklessness and the more serious offence involving belief, see Ansari at [131].
40Roizman submitted that the sentence passed in the present case ignored those remarks and departed from sentencing on the basis of recklessness, taking into account elements of the more serious offence involving belief. Within that submission, it was acknowledged that the sentencing judge was well aware that Roizman had not been convicted of the more serious offence. However, it was submitted that the judge "nevertheless made a specific factual finding that the applicant was aiding and abetting Wang and knew that Wang was committing the offence. The sentencing judge also made a specific finding that the applicant did in fact know that the funds he was dealing with were the proceeds of crime."
41It was on the strength of those findings that it was submitted the sentencing judge ignored the remarks in Chen.
42It must be noted that the sentencing judge specifically referred to the remarks in Chen and faithfully recorded their tenor. His Honour said (ROS page 7) (dealing with the offender Wang):
However, the offender was not charged with the more serious offence provided by s 400.3(1) of the Criminal Code where it must be proved that the offender "believes" the money to be the proceeds of crime. In sentencing for this offence the Court must maintain the distinction between the more serious offence provided by s 400.3(1) and the less serious offence involved here, s 400.3(2), which requires proof of being "reckless" and has a maximum penalty provided of 12 years imprisonment: Ansari [2007] NSWCCA 204 at [131]; Chen [2009] NSWCCA 66 at [23].
43In the face of those remarks, in my view the submission that his Honour ignored the principle there clearly stated is untenable. Ground 3 must be rejected.
44Grounds 4 and 5 are:
4. That the sentencing judge erred in failing to distinguish the criminality of the offender from that of his principal.
5. That the sentencing judge erred in his assessment of the criminality of the applicant [Roizman].
45The judge said (ROS page 10):
In relation to this matter, attaching a label to the role played by the offenders in respect of the offence each has been convicted of would not be a productive exercise. They should be sentenced for what they did rather than how it might be described: R v Olbrich (1999) 199 CLR 270. They played the substantial or primary role in respect of the offence. While each performed different acts, or participated in performing the same or similar acts, during the commission of the offence by them, and Roizman has been convicted on a charge of aiding and abetting Wang, the Court finds that there is no real utility in the circumstances in assessing their individual moral culpability as it is so alike as to not justify distinction. The moral culpability of each offender is high.
46Roizman submitted that those remarks reveal that the judge ignored the distinction between principal and accessory. In my view it is plain that his Honour did not. He specifically referred to the fact that Roizman had been convicted on a charge of aiding and abetting but assessed the respective criminality of both applicants by determining what they actually did, concluding by reference to that yardstick that their individual moral culpability was indistinguishable. As submitted on behalf of the Crown, that was an appropriate and correct approach.
47In order to determine whether the conclusion (that the individual moral culpability of the applicants was indistinguishable) was open to the sentencing judge, it is necessary to consider a series of individual points raised in Roizman's submissions in support of the contention under ground 5 that the judge overestimated Roizman's criminality.
48First, it was submitted in paragraph 5(a) of the written submissions that the judge's overestimation of Roizman's criminality is revealed in his Honour's specific reference to the whole fraudulent undertaking involving $150 million, even though the Crown did not allege that either applicant was aware of the precise fraud or the total quantity of money involved.
49It is clear that his Honour did not take that into account in assessing the criminality of the applicants. His Honour expressly noted that the applicants were not party to the overall fraud or to the transfer of funds into the Hong Kong Power account: see ROS at page 10.
50Roizman further submitted at paragraph 5(b) of the written submissions that the judge wrongly rejected the proposition that Roizman was not aware of the actual sum involved and also wrongly rejected the proposition that there were probably more people laundering the money by gambling at the casino than just the two applicants. It is clear, however, that the judge gave proper regard to the limitations of the evidence on those issues. His Honour found (ROS page 8):
Roizman had a clear idea of the amount of money involved in his trip to Hong Kong, at least to the extent that he was aware of the amounts issued to him on the boat, that he gambled with, and that he had issued to him as a receipt.
51The amount transferred into the Hong Kong Power account was approximately AUD $30 million. The balance left after the night of gambling was approximately AUD $27 million. The receipt issued to Roizman was in the sum of AUD $16.7 million. It is clear from his Honour's findings set out above that his Honour sentenced Roizman only on the basis of the amount issued in the receipt and whatever amount (unknown) was issued to Roizman in chips on the boat. The judge made no finding as to the number of persons recruited to launder the money by gambling on the boat. In any event, it is difficult to see how the involvement of others might lessen the culpability of the applicants, whose receipt of AUD $16.7 million at the conclusion of the night reveals on any analysis their having gambled with an extremely large sum.
52Roizman further submitted at paragraph 5(ii) (presumably intended to be 5(c)) of the written submissions that it was not open to the judge to make the following finding, recorded at ROS page 10:
While the offenders were not party to the overall fraud and did not transfer any funds into the HK Power account they were responsible for providing the account details and putting at risk the whole of the funds transferred into the account, approximately AUD $30.58 million.
53Allied to that was the further complaint at paragraph 5(c) of the written submissions as to the judge's finding (ROS page 8) that Roizman was involved in obtaining the account details in that he assisted his friend Wang by being listed as the tenant on the Pyrmont property to which the account details were faxed.
54It was submitted that there was no evidence that Roizman was ever aware of the account details or that he provided them to anyone else. There is substance in that complaint. The Crown responded by noting that the judge found that Roizman was involved with obtaining the account details, since he assisted Wang by being listed as the tenant on the Pyrmont property to which the account details were faxed. In my view, that is a tenuous connection with Wang's conduct in obtaining the account details and it is does not answer the complaint of there being no evidence that Roizman provided the account details. Nonetheless, the sting of the conduct recorded in the judge's finding set out above was the fact that the fund was put at risk with a night of gambling.
55Upon a consideration of the matters raised on behalf of Roizman, I am not persuaded that the sentencing judge failed to distinguish between the criminality of the two applicants or overestimated the criminality of Roizman's conduct. Whilst I accept that the judge has overstated Roizman's involvement in obtaining the account details, his Honour's findings were otherwise in accordance with the jury's verdict and open on the evidence. The acts for which Roizman was sentenced included travelling to Macau to board the Omar III, helping to gamble the Hong Kong Power funds, receiving the receipt in a substantial sum to enable the funds to be redeemed, returning to Macau and attempting to recover the laundered funds with the receipt.
56In my view it was open to the judge to conclude that, notwithstanding some greater involvement on Wang's part in obtaining the account details and having more extensive communications with other co-offenders, Roizman's moral culpability was indistinguishable from Wang's and that the culpability of each was high. It is plain from the remarks on sentence that the principal factor contributing to that assessment was the laundering itself through a night of gambling with an extremely large fund. Ground 5 must be dismissed.
57Ground 6 is:
that the sentencing judge erred in the way in which he dealt with Roizman's physical disability.
58There was uncontested evidence that Roizman suffers from chronic myeloid or lymphocytic leukaemia. He was first diagnosed in September 2002. He was at the time of sentence and at the time of hearing the appeal waiting for a bone marrow transplant. The condition has no certain prognosis and is potentially fatal.
59The judge considered the evidence on that issue and concluded (ROS at page 14):
Dr Brown makes no prognostication as to life expectancy. It is reasonable to expect that should a relapse occur which cannot be effectively treated that there would be serious consequences for the offender. However, it cannot be ignored that the offender committed the offence while fully cognizant of his illness.
60Roizman submitted that his Honour was wrong to dismiss the effect of the condition on that basis. In so submitting, it was acknowledged that the judge observed (ROS page 17):
That is not to say that his state of health would not impact adversely on him while in custody nor that it is not a relevant consideration on sentence.
61It was submitted, however, that those remarks were not reflected in the sentence imposed and that the important consideration was the ever-present risk that the offender's life would be untimely cut short.
62However, as noted on behalf of the Crown, there was no evidence before the judge as to Roizman's life expectancy, nor any evidence to support a conclusion that there was a serious risk of imprisonment having a gravely adverse impact on his health.
63The judge referred to the principles regarding the relevance of an offender's psychological and medical health outlined in the decision of this Court in R v Hart (NSWCCA unreported, 26 July 1999) where it was noted that such matters may increase the hardship of a sentence and be taken into account on that basis in determining the appropriate sentence, but that such consideration is limited by the need to maintain proper standards of punishment.
64The judge's remarks on sentence reveal that his Honour gave consideration to those principles and considered the evidence as to the likely treatment Roizman would receive and the ultimate impact of those matters on the hardship of his sentence.
65His Honour allowed a reduction in what was then regarded as the usual proportion between the non-parole period and the balance of term "to reflect the possibility that [Roizman's] health may make serving a term of imprisonment less comfortable than it might otherwise be" (ROS at pages 20-21).
66I am unable to discern any error in his Honour's approach to that issue.
67Grounds 7 and 8 are:
7. The sentencing judge failed to take into account the mental disability of the applicant.
8. The applicant was denied procedural fairness.
68The procedural fairness point relates specifically to the judge's treatment of an aspect of the evidence of Dr Westmore, forensic psychiatrist. In his report dated 6 April 2010, Dr Westmore said:
This man will find incarceration a very difficult experience because of his age, his health problems and his poor English skills, which are causing him to become isolated within the prison population. His depression is also aggravating that particular problem.
69In respect of that evidence, the judge said (ROS page 15):
To the extent that Dr Westmore referred to poor English skills I note that during the trial objection was taken to an electronically recorded interview with the offender being admitted in evidence. No interpreter was present or requested as the interview was conducted in English over approximately 75 minutes excluding breaks. I quote from the judgment dismissing the application:
The accused's ability to understand questions and respond in English supports a conclusion that the fact that an interpreter was not used did not in any way reflect the reliability of the admissions. His grammar may not have been perfect and he may on occasion have struggles with his English expression but this had no significant impact.
The Court does not accept that Dr Westmore has an accurate understanding of the offender's English skills.
70Roizman submitted that, in light of a concession made by the Crown during the trial (that Roizman was not particularly familiar with English and required some concession and understanding that he may not have perfectly understood what he was being asked or the answers given) and further in light of the fact that the Crown did not contest Dr Westmore's assessment of Roizman's poor English skills and their likely contribution to the difficulties he would encounter during incarceration, the judge breached procedural fairness in refusing to accept Dr Westmore's understanding of Roizman's English skills without giving Roizman an opportunity to make submissions to the contrary.
71As noted above in respect of the natural justice ground relied upon by Wang, the entitlement of an offender to procedural fairness during proceedings on sentence is well-established. The obligation may extend to putting an offender on notice if unchallenged evidence as to a matter in mitigation is not to be accepted: see R v Ryan [2003] NSWCCA 202; 141 A Crim 403 at [27] to [29] per Grove J; Ipp JA and Shaw J agreeing at [1] and [69] respectively.
72In order to determine whether the applicant was deprived of an opportunity to advance submissions so as to result in unfairness in the present case, it is necessary to give careful attention to the way in which the issue unfolded in the present case. Before the trial commenced, the judge ruled on an application to exclude a record of interview between police and Roizman (application book volume 2, transcript of 9 February 2010 at T34.44). His Honour's reasons for admitting that material are not included in the application books. For present purposes, it is enough to note that, as revealed in his Honour's remarks on sentence, the record of interview was objected to on the basis that the interview was conducted without the benefit of an interpreter for Roizman and that his Honour was evidently not satisfied that this affected the reliability of the admissions made.
73The proceedings on sentence were not heard until 30 July 2010, almost six months later. The evidence relied upon by Roizman included the report of Dr Westmore, set out above. The report was tendered by consent and was not the subject of any cross-examination by the Crown (transcript 30 July 2010 at page 18.40; application book volume 1 at page 35).
74In submissions on sentence, counsel for Roizman read the passage of the report set out above and made the following submission:
As I said, I couldn't say it any better. It's a matter that your Honour can and will no doubt take into account in accordance with the sentencing. Thank you Your Honour.
75That was the conclusion of counsel's submissions. The judge did not respond to the submission, calling next on counsel for the applicant Wang (transcript 30 July 2010 at page 24; application book volume 1 at page 41).
76The extent of Roizman's English skills was an important premise of Dr Westmore's opinion that Roizman would find incarceration "a very difficult experience". It seems likely that his Honour's rejection of that premise undermined the force of the opinion in his Honour's assessment. His Honour made no further reference in the remarks on sentence to the isolation within the prison population which Dr Westmore considered was being caused by Roizman's poor English skills, a factor Dr Westmore considered was aggravated by Roizman's depression.
77As revealed by the remarks on sentence set out above, his Honour's reason for rejecting the premise accepted by Dr Westmore was the conclusion his Honour had reached, almost six months earlier, as to Roizman's ability to understand questions and respond in English during the record of interview. It cannot be said that the connection between the extent of Roizman's ability in the English language for the purpose of determining the reliability of admissions and, separately, for the purpose of enduring a term of imprisonment in an English speaking jail is so obvious that counsel ought to have anticipated his Honour's reflection on that issue. In my view, with great respect to the sentencing judge, his Honour's failure to flag his inclination to reject a critical and uncontested premise of Dr Westmore's opinion amounted to procedural unfairness.
78It follows, in my view, that there was a denial of procedural fairness. However, it is necessary to consider its significance. In the present context, the principles at common law as to the appropriate remedy for a denial of procedural fairness stand under the umbrella of s 6(3) of the Criminal Appeal Act 1912. The applicant submitted that the denial of procedural fairness caused a "practical injustice" in that he lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urged, citing Lam at [36] and Button v R [2010] NSWCCA 264 at [18].
79Button was a case in which the sentencing judge had given a clear indication of a view that the appropriate non-parole period would be 12 months. The Crown had not sought to address on that issue. Inexplicably, after reserving his decision, the judge passed sentence with a non-parole period of 18 months. Applying the remarks of Gleeson CJ in Lam at [35] and [37], the Court held that the applicant had demonstrated a "practical injustice" and that the applicant was entitled to receive the sentence that had been accepted by the judge and the parties as an appropriate sentence in all the circumstances: at [18] per Latham J; Simpson and Kirby JJ agreeing at [1] and [2] respectively; see also Weir v R [2011] NSWCCA 123 where a similar argument was accepted on the strength of similar reasoning: at [68] to [80] per Garling J; Macfarlan JA and Johnson J agreeing at [1] and [2] respectively.
80It is not necessary for present purposes to decide whether the judgment of Gleeson CJ in Lam imposes a requirement on an applicant to demonstrate an unfair outcome (or "resulting unfairness": cf Weir at [74]). For my part, I have always understood the Chief Justice's remarks to be directed to the need to establish practical unfairness in the procedure itself. His Honour's description of procedural fairness as an essentially practical concept, the concern of which is to avoid practical injustice, emerged from the recognition that the mere departure from a representation does not in itself demonstrate unfairness. That is not to say that I would disagree with the result in either Button or Weir. In each case, it was clear that the applicant had been deprived of an opportunity to advance submissions so as to result in unfairness in the procedural sense.
81However, those were both cases in which the procedural unfairness in question was a departure from a representation as to the appropriate sentence. The position is different where the departure from the requirements of procedural fairness is a failure to foreshadow the rejection of uncontested evidence, as occurred in the present case. The determinative question is whether, on the assumption that the evidence had been accepted, it is demonstrated that a less severe sentence is warranted in law: cf s 6(3) of the Criminal Appeal Act. If that were established, it might be appropriate for this Court either to invite submissions on the issue as to which submissions were not invited below or to remit the matter for re-sentence on that premise.
82However, where it can confidently be concluded that, even accepting the evidence rejected below, no less severe sentence is warranted, I do not consider it appropriate for this Court to intervene, notwithstanding the denial of procedural fairness. In my view, that is the position in the present case.
83Ground 9 is that the sentencing judge erred in his finding on rehabilitation.
84The judge said (ROS page 17):
Both offenders maintain their innocence, despite the verdicts in the circumstances of a strong Crown case. There is no real prospect of rehabilitation in the absence of an acknowledgment of the offending behaviour.
85It was submitted on behalf of Roizman that that statement was wrong both in fact and in law. Specifically, Roizman submitted that his lack of significant offending both before and since the offence at hand should have militated against such a dogmatic statement.
86I do not think the judge intended the statement as a proposition of universal truth. The remarks on sentence must be read for what they are, namely, his Honour's reasons, based on all of the material before him, for passing the sentences in question. The real issue is whether it was open to the judge to find that there was no real prospect of rehabilitation on all of the evidence before him. Whilst different conclusions might have been reached on that issue, I am unable to conclude that the finding his Honour articulated was not open on all of the evidence.