Regina v Johnson AU [2001] NSWCCA 468 | Case summary

JUDGMENT 1 SPIGELMAN CJ: I invite Justice Sully to give the first judgment. 2 SULLY J: This is an application for leave to appeal against sentence. The applicant, Mr Au, pleaded guilty, before his Honour Judge Freeman in the Sydney District Court, to a charge of having breached the Financial Transaction Reports Act 1988 s 31(1). The maximum penalty for any such breach is imprisonment for five years, with or without a substantial fine. 3 Judge Freeman sentenced the applicant to imprisonment for fourteen months and ordered that he be released after having served nine months upon his entering a recognisance to himself for the sum of $500 to be of good behaviour for five months. The non-parole period thus set expires on 30 April 2002. 4 The relevant facts can be, for present purposes, shortly stated. They are that the applicant executed eight transfers of funds over the period from 18 November to 31 December in amounts ranging from $7000 to $8500. The amounts thus remitted were remitted to two particular accounts in China. Four of the remittances took place over the space of three days and on 19 November the prisoner transmitted $8000 from the St George Bank in Market Street in the city and later that same day the same amount from another bank in Chatswood. 5 His Honour found, in my respectful opinion correctly, that it was a reasonable inference that the dominant purpose of the remittances was to avoid the reporting requirements of the Act. His Honour found that there was an aggravating element, namely, that the offence was committed whilst the prisoner was on parole. That finding was undoubtedly open to his Honour on the material before him; and I agree that it was, as his Honour regarded it, an aggravating element. 6 His Honour found that the applicant was aware, at the very least, of what his Honour described as the suspicious nature of his acts; and that he was probably aware, at least in some sense, of their illegality. It was the fact that he had committed the offence whilst on parole. 7 His Honour expressed the view, with which I respectfully agree, that offences of the type here in question are offences which call for a significant degree of general deterrence because, as his Honour put it: "It is necessary not only to deter individuals from undermining the laws relating to tax avoidance and money laundering, but to publish the message that anyone, however naive they may be, is likewise susceptible to punishment for taking part in such attempts to avoid financial scrutiny." 8 His Honour's approach to the structuring of the sentence was to commence with a sentence of imprisonment for two years and then, in accordance with s 16G of the Commonwealth Crimes Act to deduct one-third in order to take account of the absence of remissions in New South Wales. That yielded a term of sixteen months, from which his Honour deducted two months in consideration of the applicant's plea of guilty, it having been offered at a very early stage in the proceedings, albeit, in the view of his Honour, in the face of what his Honour described as strong Crown evidence. 9 As I have said, his Honour then passed sentence in the term of fourteen months resulting from that calculation, setting a nine-month parole period and making ancillary orders to which I have earlier referred. 10 The applicant put before the sentencing Judge by way of explanation for what he had done, the proposition that he had been influenced by a man called Chiu Lin, a fellow prisoner, to make the remittances, in effect, on Chiu Lin's behalf.

11 It was critical to the version of facts put forward by the applicant that he had in fact had such a contact with Chiu Lin, and that he had been in fact influenced by Chiu Lin to assist with these particular transactions. 12 The learned primary Judge did not accept that version put forward by the applicant. His Honour seems to have taken the view that it was at least doubtful whether such a person as Chiu Lin existed at all; and, if he did, that it was doubtful that he had had any influence on the relevant activities of the applicant. It is not necessary, I think, to traverse in fine detail the way in which his Honour dealt with that aspect, and with the fine detail of his Honour's findings. It is sufficient to understand that, as I have said, his Honour's views in that connection were crucial to the findings of fact that he made, including, as they did, distinct findings distinctly adverse to the credit of the applicant. 13 It now appears that there was indeed a prisoner by the name of Chiu Lin, whether spelt in that particular way or in some conventionally phonetic variation; and it appears that such a person was indeed a prisoner in the Remand Centre simultaneously with the applicant, and in circumstances where both of the prisoners were sharing the same wing, with all that that, as may be understood as a matter of common sense, would have entailed in terms of ample opportunity for contacts of the kind which the applicant put forward at his sentencing hearing. 14 Those developments as to a correct understanding of the relevant factual background do not carry any criticism of the learned trial Judge. His Honour dealt with the matter, as of course his Honour was bound to do, upon the basis of the material before him; and the material before his Honour, not least of all in the form of the factual statement put before him by the relevant police, lent colour, to say the least, to the suspicions which his Honour was obviously entertaining, and by which he was so obviously influenced in the views that he ultimately took on the question of sentence. 15 That those views were in fact mistaken, as in my opinion is now sufficiently established, must go to the sustainability of the sentence imposed by his Honour; and, without more, would be sufficient to justify, in my opinion, the intervention of this Court. 16 That matter aside, various other particular submissions were made on behalf of the applicant. It was submitted that the sentencing Judge had failed to give proper consideration to the alternative of a non-custodial sentence. If it be accepted, as in my opinion it must be accepted, that the law does not require that a primary sentencing Judge set out in fine detail what might be described as a procedural check list, marking off successively each possibility, then I do not see, on a fair reading of the remarks on sentence, that it can be said that his Honour did not give proper consideration to non-custodial alternatives. 17 It is submitted that in commencing with a sentence of two years, and then as a first step making a deduction to allow for the requirements of s 16G of the Commonwealth Crimes Act, his Honour fell into error. It is submitted that he should have made all other appropriate deductions, and then made the s 16G deduction. There was no authority cited in support of this proposal; and in my submission it is unsound in law. 18 It was submitted that his Honour had erroneously taken into account the strength of the Crown case; and that he had therefore failed to give sufficient weight to the appellant's plea. These are aspects of pretty well every application for leave to appeal, as to which reasonable minds might differ. My view is that if there was nothing else to be taken into account, that matter itself would not be sufficient to warrant the intervention of this Court. 19 It was submitted that the learned sentencing Judge failed to make any allowance or deduction for the appellant's co-operation or assistance to the authorities. I would make in that connection the same remark as I have recently made as to the strength of the Crown case and the weight given to the applicant's plea. 20 It was submitted that the sentencing Judge failed to take into account the appellant's strong prospects of rehabilitation. I can but say that is not how I understand his Honour to have approached the matter, on a fair reading of the totality of the remarks on sentence. 21 It was submitted that the Judge had placed undue influence on general deterrence. I do not agree. What his Honour had to say about general deterrence seems to me to be sound in principle and sensible in fact. 22 For myself, it is the demonstrated error, as I see it, in a critical underpinning of his Honour's process of reasoning on the relevant facts which justifies the intervention of this Court. I do not think that the Court would be justified in intervening in a very marked way; but I think it is proper to take into account all the demonstrated and important changes in objective criminality in a way that reduces to some extent the sentence ultimately imposed by his Honour. 23 It seems to me that justice would be done if the sentence of fourteen months were reduced by a further two months to twelve months; and if the period of nine months to which his Honour referred was reduced by a period of two months. I would, therefore, favour orders that granted leave to appeal, that upheld the appeal, quashed the sentence imposed in the Court below and substituted for it a sentence of twelve months' imprisonment, with a direction that the applicant be released after seven months upon his entering into a recognisance himself in the sum of $500 to be of good behaviour for five months. The non-parole period would expire on 28 February 2002. Those are the orders that I would make. 24 SPIGELMAN CJ: I agree with Justice Sully's reasons. His Honour referred to the fact that the trial judge had quantified the utilitarian value of the plea in the present case. His Honour did so and made reference to Thomson and Houlton (1999 - 2000) 49 NSWLR 382. That decision of this Court did not extend to Commonwealth offences. Nevertheless, it has been identified as an appropriate guide in this Court for the purpose of such offences. See, for example R v Carter, unreported, NSWCCA 27 June 2001. 25 It is not necessary in this case to consider the implications for that line of authority of the recent High Court decision in Wong & Leung v The Queen, [2001] HCA 64. Suffice it to say that there are reasons for believing that at least prior to Thomson and Houlton, the practice in this State with respect to what it is convenient to continue to refer to as "a discount" for a plea appears to have been somewhat lower than had been the case in other States. In the context of Commonwealth offences, it remains of significance that a similar approach is taken with respect to matters of fundamental sentencing principle. It is not necessary to express a final view in this case. 26 I agree, for the reasons that Mr. Justice Sully has advanced, that the appropriate order is that which his Honour proposes. 27 GREG JAMES J: I too agree with the order proposed by Justice Sully as the appropriate order. I agree with his reasons and the additional remarks of the Chief Justice. 28 SPIGELMAN CJ: The order of the Court is as indicated by Justice Sully.

Regina v Johnson AU

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