Charles Anthony Whittall, whose date of birth is 14 January 1976, is before the Court for sentence in relation to two offences. Both of those offences are in breach of s 4.9 (1) of the Commonwealth Criminal Code.
Across both charges, Mr Whittall is to be dealt with on the basis that he dealt with, namely, possessed and disposed of a total of $2,675,673 and it is reasonable to suspect that such sum is the proceeds of crime. In sum, the dealings comprise a series of payments and purchases between 30 December 2008 and 23 December 2013. Those dealings included the purchase of a house, furnishings, jewellery, travel, various luxury cars, payments for a sandstone wall and cash transfers via Western Union. They also included providing his partner Reagan Boxall with money for the purposes of making payments towards the house and towards travel.
[2]
CIRCUMSTANCES OF THE OFFENCE, FOR PURPOSES OF S 16A (2)(A) OF THE CRIMES ACT.
The agreed facts set out that the value of the money involved in the dealings was out of proportion with Mr Whittall's income or any legitimate source of funds. The reason that there are two charges is because the legislation in relation to this class of offence was amended. Accordingly, the first charge relates to dealings between 30 December 2008 and 18 March 2010 and involved an amount of $1,551,368.36 at a time that the maximum penalty was a period of two years imprisonment and/or a fine of $8,500. The operative change in the legislation means that, from 19 March 2010, the maximum penalty for the same offence is provided a maximum period of three years imprisonment and/or a fine of $19,800. The increase in the punishment represents the view of the legislature about the seriousness of such matters. In the case of each offence I will take into account the maximum penalty as a benchmark or a guide stick in the way that is contemplated by the authorities.
R v Whittall [2019] NSWDC 606 | Case summary | Zoe
In relation to that second charge the amount that was dealt with between 19 March 2010 and 23 December 2013 is an amount of $1,179,595.72. The agreed facts between the parties enumerate a number of dealings in relation to the particularised events of dealing. I do not see the utility where there is an agreed statement of facts to read those items slavishly onto the record. Suffice to say that each matter, the amount of money involved, while not being determinative is an important factor in assessing the objective seriousness of the matter, as is the range of the offending, being in each case across the first offence between 30 December 2008 and 18 March 2010, and the longer period between 19 March 2010 and 23 December 2013 in relation to the second charge. It will emerge from the figures that I have described that the first charge while representing a lesser number of dealings involved a larger amount of money significantly than the second count. The authorities make it clear that a number of different dealings will sometimes increase the objective seriousness.
I have been provided with some sentencing statistics which provided some limited extrinsic assistance given that there was some further detail with them by the offender's representatives, together with a schedule of a number of potential comparative cases. The same for the Crown; I have a number of potentially analogous cases. One of those cases, for instance, involved a single transaction but in an amount of $35,000,000 and it was hard to find an exact analogue in relation to this matter. In sentencing people for Commonwealth matters it is important to try and divine the role, accepting what the superior Courts have said about this particular offences. While it is not the lowest form of offending in money laundering, it is towards the lower end, and there are offences that catch recklessness or actual knowledge in dealing and the like, and this is an offence that involves absolute liability.
The offender and his partner have been the recipients of benefits of the dealing. Against that, as Mr Robinson SC puts for the offender, there does not seem to have been anything covert or clandestine in terms of trying to disguise the dealing, it was done, to paraphrase, in plain view. Given it is an offence of absolute liability and is made out as soon as there is a dealing and a reasonable suspicion attaching to the funds it is a little difficult, across the range of other activities caught by some of the analogous cases, to characterise exactly what Mr Whittall's role was. Having considered issues of quantum, number of dealings, the length of criminality involved in each count and against some of the other, what I might describe as murky or more clandestine dealings in some of the other cases, and taking into account that sometimes very, very large amounts of money are involved, I assess the objective seriousness of the offending in each of these cases as not quite reaching the mid-range of objective seriousness.
In sentencing federal offenders one is obliged to have regard to part 1B of the Crimes Act. In addition to anything else that is relevant I am obliged to take into account the matters that are listed in s 16A of the Crimes Act that are relevant and known to me and I am obliged to impose a sentencing that is of a severity that is appropriate in all the circumstances. I am obliged to have regard to the restraint imposed by s 17A, which, in my words, indicates that the Court is only to impose a period of imprisonment where there is no other proper penalty available in all of the circumstances.
[3]
PLEA OF GUILTY S 16A (2)(g) OF THE CRIMES ACT, TOGETHER WITH CONTRITION AND REMORSE S 16A (2)(f) OF THE CRIMES ACT
This is a matter where a plea of guilty was entered after two listed trial dates had been vacated. The plea of guilty was entered at the Commonwealth Super Callover, at which I presided, wherein a range of matters were listed to see whether the matters could be resolved by way of pleas of guilty.
Since Xiao v R [2018] NSWCCA 4 case it is permissible in a federal case to identify a utilitarian discount as well as a discount that reflects an ability to an interest in facilitating the course of the administration of justice. Pleas of guilty will often have work to do also in relation to contrition and remorse, and here I have, although unsworn, a written statement from Mr Whittall that expresses his remorse, together with statements of remorse attributed to him by his partner Ms Boxall, and statements of remorse recorded by his assessing forensic psychiatrist, Dr Roberts. Although there is some restraint on the Court's ability to give full weight to those matters where there is no sworn evidence that enables me to personally assess the way in which the offender expresses his remorse, given his plea of guilty and some other matters, that I will come to, and the three sources of expressed remorse, I am prepared to consider that Mr Whittall is contrite and remorseful for his conduct. Although I will ultimately be giving an identifiable discount for what I will describe generally as past assistance, in the thorny issue as to whether I should give an identifiable discount for matters under s 16AC I have determined not to do so. There are some logistical difficulties with affording an identifiable discount when Mr Whittall has not only demonstrated both an ability and a preparedness to assist the law enforcement authorities, but has also indicated a continuing interest in doing so. The way I have decided to treat that portion of the confidential material before me is to take it into account as another manifest of Mr Whittall's contrition and remorse and his interest in facilitating the course of justice. I also take it into account in due course in reaching the views that I have about his rehabilitation. The discount that relates to the matters of utilitarian discount and assisting the administration of justice in a generalised way in the circumstances of this case is 20%.
[4]
DETERRENT EFFECT AND NEED FOR ADEQUATE PUNISHMENT S 16A (2)(j), S 16A (2) (j)(a), S 16 (2) (k)
It is clear, in a principled fashion, that I am obliged to arrive at a sentence that will both generally deter, that is deter others who would behave in the same way, and I have in mind statements from intermediate Courts of Appeal that say in relation to money laundering offences generally, because they are hard to detect, it is important that a message of general deterrence be sent. In relation to personal or specific deterrence I take the view, given the long passage of these offences through the Court system, the reversals that Mr Whittall has experienced in his personal life, both in terms of his health and his financial health generally in terms of his bankruptcy, that the need for specific deterrence at this point has become a little dilute. There is clearly a need for the penalty to effect adequate punishment.
[5]
THE OFFENDER'S CHARACTER, ANTECEDENTS AND BACKGROUND FOR PURPOSES OF S 16A (2) (M)
I take into account that, but for some tax offences that were somewhat related to this investigation and committed after the offences for which I sentence him, and one matter of an entirely different kind, Mr Whittall is sentenced by me as a person of prior good character. His lack of record is something that entitles him to leniency that somebody with a more serious record would not be afforded.
He is 43 years old. He has been in a long term loving relationship with his partner Ms Boxall, who is 41 years old, for about 21 years. They have lived happily and hope to have a constructive family life, but the decay in their financial circumstances, the anxiety that Mr Whittall is diagnosed with by Dr Roberts as a result of his current predicament and the stress of the ongoing proceedings, are matters that have made their life less idyllic than they had hoped it would be.
[6]
PROSPECTS OF REHABILITATION FOR PURPOSES OF S 16A (2)(N)
I accept Mr Robinson's submission that Mr Whittall, rather than having good prospects of rehabilitation, because this matter has been on foot for so long, he is effectively rehabilitated. He has been on bail for in excess of five years, on my calculation, and there is no suggestion of any breach of bail or any further offending. He presents as a man in his middle years who is, rather than being at the crossroads, well rehabilitated. There has been a delay in the matter, but delay cannot be seen as being attributable to decisions by the prosecuting authority. There was some lengthy investigation involved which, while explicable, may have added to the delay. I accept that, more recently, given there was a disputed facts hearing and there was some defence applications to vacate trial dates so that some of the more recent delay has been at Mr Whittall's instigation, given difficulties with his ability to fund legal representation from time to time. That said, the proceedings have been on foot for a long time. I accept from Ms Boxall that the circumstances in which the search was undertaken were stressful and distressing to her both and to Mr Whittall, and that he experienced some degree of extra curial punishment as a result of that, which can be taken properly into account in terms of character, antecedents and background.
Speaking obliquely, there are matters that in terms of the past could properly attract an identifiable discount. Mr Robinson contends for a far more generous discount than I believe is available on the state of the authorities. Against that Ms Crown says that the discount would be negligible. It is clear that on four occasions Mr Whittall has behaved in a way that is very consistent with (a) his assertions of his rehabilitation, and (b) a desire to assist law enforcement authorities in an identifiable way and over and above things that are attracted just to deal with the passage of this piece of litigation. Ultimately on balance I am persuaded that an identifiable discount for those past matters is 10%, meaning that there will be a total discount of 30% applied to the sentence at which I ultimately arrive.
The point on which the parties were joined, apart from calculation of some of the matters that I have described, is that the Crown contends that it is inevitable, when one considers the analogous cases and the objective seriousness of the offending, notwithstanding things that mitigate in Mr Whittall's favour, that there would need to be a period of fulltime imprisonment. Mr Robinson SC, who appeared from time to time with Mr Djemal, says that I could properly deal with the matters by way of fully suspending any period of imprisonment. Having thought about the matters anxiously I have ultimately determined that there is a position that can accommodate to some extent the sentiment of both sets of submissions. I have ultimately determined that the amount of money involved and the period of time of the dealing means that there will necessarily need to be a period of imprisonment, although the effect of my orders will be that Mr Whittall will be imprisoned, in terms of time to be served, for a relatively short period of time. That is because I do not think that it is in the proper protection of the community that he imprisoned for any longer than is required by the objective seriousness and the other purposes of s 16A (2) when his rehabilitation is largely complete. It would be a naïve person who would imagine that a person with effectively no criminal record who goes into custody will be better rehabilitated by that course.
Those things said I am going to proceed to deal with the formal orders.
Just stand up if you would, Mr Whittall.
I have tried to give effect to all of the matters that have been argued on your behalf and by the Crown. I have taken into account your physical difficulties as well as your psychological difficulties. I accept that the period that you serve in custody will be more onerous because of those difficulties, and I have taken that into account in weighing the different figures.
I want to make it clear that but for the discounts in relation to each of the counts there would have been a starting point sentence of 16 months. I have determined that there should be some degree of accumulation between the two sentences, but it should be relatively modest taking into account but for a change in the legislation Mr Whittall would have faced one charge only, but for a bigger amount of money.
So the formal orders are that the offender is that the offender is convicted on both counts. There has been a little bit of rounding in terms of the application of the discount in each case. On Count 1, the offender is sentenced to a term of imprisonment of 11 months, commencing today on 20 September 2019 and expiring on 19 August 2020. In relation to Count 2, there will be a sentence of 11 months, commencing on 20 March 2020 and expiring on 19 February 2021. Pursuant to s 20 (1)(b) of the Commonwealth Crimes Act, I order that the offender be released after serving six months imprisonment upon him entering into a recognisance himself in the sum of $100 without security and the recognisance condition is that he be of good behaviour for 18 months.
Just sit down, Mr Whittall, you do not have to keep sitting, but I am obliged to explain to you the effect of the order, there are three bits of it.
Given I accumulated the second period of imprisonment on the first period of imprisonment, that has the effect of imposing 18 months imprisonment. Of that 18 months you will only serve six months and then you will be released to recognisance, which is a written binding legal promise to be of good behaviour for 18 months. That means the amount of further imprisonment that you could potentially serve on any breach is 12 months imprisonment, but it floats in an obligation to be of good behaviour across 18 months from your release. So that if you got to 18 months minus one day and committed an offence that was seen to be in breach of the recognisance release order arguably you could do a further 12 months on top of the six months you actually serve.
[7]
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Decision last updated: 29 October 2019