It seems to me that, accepting that double counting should be avoided, it is in the public interest that a more or less identifiable "reward" should be able to be proffered to offenders who assist the authorities. In the reality of things, lawyers must be able to give some real indication to their clients of the advantage to them of taking this course of action. Considering the risks that are frequently associated with helping police and, especially, giving evidence, a vague promise of some unspecified reduction in sentence will rarely suffice. In my respectful view, judges should attempt to indicate the degree to which the sentence has been discounted because of assistance ( R v Gallagher (1991) 23 NSWLR 220 per Hunt J at 234), though not where to do so would be unduly artificial or contrived: Gallagher (1991) 23 NSWLR per Gleeson CJ at 228. I believe (with respect, differing from Howie J in the passage above quoted) that most cases - of which the present is an example - fairly readily permit the separate identification of assistance to the authorities from the other subjective features that might be present and that it is desirable that this should be done where it is possible.
119 Where quantification of the separate factors of an early plea and assistance to the authorities is practicable, there is a strong argument for separately indicating each factor. This will have the effect of maintaining the purpose of identifying the "reward" which offenders obtain for pleading guilty on the one hand and, on the other, assisting the authorities with information and, in some cases, giving evidence. It also has the advantage of transparency. I think that in most cases it will be relatively simple to separate these factors.
120 In this case, the evidence of assistance to the authorities was, as Beazley JA demonstrates, substantial. Contrary to the mistaken submission made by the Crown prosecutor below, it also included the likelihood that the respondent would give evidence. This latter consideration is extremely significant. The learned trial judge's assessment of the 35% discount was, therefore, modest. In my view this Court should take the approach exemplified in R v AMT [2005] NSWCCA 151, where the Court agreed that the overall discount was too low. Grove J (with whom the other judges agreed) said -
"[17] Without suggesting that discounts should be the subject of simple addition, a reduction of forty per cent to a person who had a potential of receiving close to or twenty-five percent for the early plea of guilty and something up to fifty percent for assistance to authorities, does appear to reflect less than would be appropriate for the relevant matters.
…
[22] …I consider that the applicant's complaints in relation to the inadequacy of the discounts have been made out. I consider that the situation ought to be met, adopting his Honour's global approach, by a discount of sixty per cent rather than forty per cent."
121 As it happened, the learned sentencing judge quantified the discounts when he gave the global figure. Especially when it is considered that - otherwise than was understood by his Honour - the respondent would need to give evidence, I am unable to see that the total discount was wrong or outside the relevant sentencing discretion. Nor, with respect, do I agree that the discounts should be successively applied in order to give a lesser ultimate discount than that thought appropriate by the learned sentencing judge. This is especially so when it is borne in mind that the Crown prosecutor below did not submit to his Honour that successive application was appropriate and did not bring to his Honour's attention either NP or El Hani.
122 Accordingly, I am of the view that (subject to variation of the commencement date, which I discuss below) the Crown appeal from the sentence imposed on the drug charge should be dismissed.
123 This brings me to the money laundering offence. A company which had been registered as a currency exchange business since November 1998, Exchange Point Pty Limited (the company) was used as an instrument for large scale money laundering overseas and within Australia. The method used was to recycle money without the need for physical transfer of cash. The company was operated by three brothers, Azees, Haja and Jaleel Ansari. Jaleel usually resided in France. The three were in regular contact with people overseas who were associated with or managed money exchange outlets, mainly in Singapore. The overseas client would require the deposit of specified amounts into particular bank accounts. Corresponding amounts of cash would be deposited in a structured manner to avoid notice in the bank accounts within a day or two of the orders being placed. Between October 2003 and July 2004, many of these deposits were made by one Mohamed Sadiq Habiburahman, on behalf of the company. From August 2003, the Ansari brothers' services were utilised by a European-based narcotics syndicate to facilitate the movement of proceeds of crime out of Australia.
124 In October 2003 the respondent came to Sydney at the behest of persons he met in Romania on an introduction by his nephew. In brief, he collected cash totalling about $2.2 million from an apartment in a Sydney suburb and delivered it to the company. He was paid about USD10,000. (For reasons that it is not necessary to detail the respondent is not charged with offences relating to this conduct.) The offence for which he is presently under sentence, comprising count 1, was committed in the following year. He was approached again by his nephew and asked to make another trip to Australia for the same purpose. He was told that he would have to go to Sydney and that money would be delivered to him over a period of four to six weeks and he was then to take it to the company's premises. He was promised USD10,000, as before. He agreed.
125 On 23 June 2004 the respondent arrived in Australia and went straight to the company's premises after booking into a cheap hotel in Bondi. Shortly after he became involved in the storage of the MDMA comprising the first count and he was arrested five days later, on 28 June 2004. He did not actually either collect or deliver any cash. No doubt it is for this reason that he was charged with conspiracy to deal with $1 million or more rather than a substantive offence. The maximum penalty for this offence is a fine not exceeding $79,200 or imprisonment for 12 years or both.
126 Taken into account on a Form 1 in respect of count 2 was an offence of possessing property reasonably suspected of having been unlawfully obtained. This related to an amount of $15,000, which was in his possession when he was arrested. It was not contended that this money was either the proceeds of the sale of the MDMA or cash obtained for delivery to the company.
127 At the sentencing proceedings, the Crown prosecutor's written and oral submissions paid almost no attention to the significance of the money laundering offence. His written submission amounted to very little more than -
"The offender entered Australia to facilitate the laundering of money from the sale of MDMA. Whilst in Australia, he was also to facilitate the distribution of MDMA by warehousing it upon receipt…The Crown acknowledges that the offences before the court form part of the same course of conduct in that the offender appears to have arrived in Australia with the intention of facilitating the money laundering exercise and in the course of so doing was to assist in the warehousing and distribution of a large quantity of MDMA."
128 In oral submissions the Crown prosecutor conceded, in effect, that it could not be proved that the respondent was aware of the drug transaction before he came to Australia and that the respondent's role in relation to the drugs became evident to him after his arrival. It followed that he did not enter Australia in order to facilitate the laundering of money from the sale of the MDMA. The Crown case was, in the result, that (in addition to warehousing the drugs) the respondent's role, as it developed, was to take the cash from the sale of the MDMA and deliver it to the Ansari brothers, who would then launder it.
129 It should be remembered that count 1 was a conspiracy. It is clear that the conspiracy was in existence before the respondent came to Australia. There was no evidence that the respondent agreed to do anything with the proceeds of drugs sales. Of course, a conspiracy can unfold. I doubt that the conspiracy charged comprehended the extension contended for by the Crown. The evidence that the respondent had agreed to transfer the proceeds of the MDMA sale is inferential and, to my mind, no more than suggestive. It may well be that he would have been prepared to do so, if asked. But there was no evidence that he was.
130 It is obvious from the above-quoted passage from the learned sentencing judge's reasons for sentence that his Honour did not conclude that the conspiracy included any agreement by the respondent in relation to the proceeds of the MDMA. Nor did his Honour conclude that receiving the proceeds of the MDMA was part of the respondent's dealing with the drugs. If he had done so, it would, of course, have rendered the respondent's role in the drug transaction more serious. The quoted passage indicates his Honour's conclusion about the character of the conspiracy, namely, "to engage in shady money dealings, which he anticipated had some connection with tax evasion or something of that sort, no doubt understanding that it was either criminal or likely to be criminal in this country". The passage also makes it clear that his Honour rejected the submission that receiving the proceeds of sale the MDMA was part of the respondent's role in relation to count 2. It is sufficient to say that I would not be prepared to hold that the learned sentencing judge was wrong so to find.
131 The learned sentencing judge described the respondent's role in the money laundering arrangement as "menial". In this Court the Crown prosecutor submitted that the respondent was trusted with a large quantity of drugs and to deal with over $1 million in cash. In this he was said to be entirely unsupervised. As to the first submission, I agree that the respondent was trusted. No doubt this was, in part, because he had been recruited by his nephew and because he had already successfully taken money to the company to be laundered. Having regard to his continuous contact with the other criminals involved in the enterprise, I would not accept that the respondent was "entirely unsupervised". More importantly, the respondent was never given any money pursuant to the conspiracy. The extent to which he was to do whatever was necessary to fulfil his agreement is not known and whether or not he would have been supervised is similarly unknown. His previous deliveries were unsupervised to a significant degree but he was not charged with those acts. Those acts were little more than collection and delivery as instructed. This does not to my mind mean anything more than that he was a trusted "menial" agent. I would not, at all events, be prepared to conclude that the learned trial judge was wrong in respect of this fact.
132 If the character of the respondent's involvement in the drug transaction had been held to include the receipt of the proceeds and its delivery to the company, then he cannot be additionally punished for the money laundering offence (although the overlap is not quite entire because the conspiracy predated his involvement in the drug transaction): Pearce v The Queen (1998) 194 CLR 610. It seems to me that the learned sentencing judge, by imposing a substantial sentence on the 1st count, did not consider that the respondent's involvement in the 2nd count included the receipt and delivery of the proceeds. (I interpolate that, if his Honour had accepted that the two offences were connected in this way, a significantly higher sentence for count 2 may have been appropriate and, I think, would have been imposed.) It was thus appropriate that there should be an additional sentence for count 1. This having been determined, the next questions were the length of the sentence, whether the sentences should be accumulated and, if so, to what extent.
133 The maximum punishment for the 1st count was twelve years imprisonment plus a fine. A fixed term sentence of two years was imposed. Ignoring the question of special circumstances, this would imply a total sentence of two years and eight months. Accepting a discount of 60% for the early plea and assistance to the authorities, the learned trial judge must have arrived at a sentence, before discount, of six years and six months. Having regard to the subjective features of the case, including the respondent's mental condition and the circumstances of his imprisonment, the fact that the conspiracy was not effected and the role to be played by the respondent, I do not, with respect consider that this sentence was by any means lenient, let alone appealably lenient.
134 I have set out above the view of the learned trial judge as to the respondent's belief when he came to Australia about the source of the money he was to deliver to the company. His Honour did not find that the offender agreed to handling the proceeds of the MDMA transaction, as such, though it seems likely that he would may have done so, if asked. As I have said, events did not so transpire, the respondent having been arrested before the drug transaction was completed or any money delivered to be laundered. The learned trial judge did not elaborate on the connection between the two offences but the fact that his Honour imposed completely concurrent sentences for both counts suggests that he considered that the two offences were a single course of criminal conduct.
135 There was no submission below that the sentences should be cumulative. I think that the reason for this was simply that the Crown case was that counts 1 and 2 should be seen as part of the same course of conduct. The Crown prosecutor submitted in this Court that the sentences should have been accumulated. For the reasons given by Beazley JA, I agree that this submission should be accepted. I also agree with the accumulation proposed by her Honour.
136 HOWIE J: I agree with Beazley JA.
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