Criminal law - 'Money laundering' offences - Sentencing - Meaning of 'co­operation' - Voluntariness - Whether co­operation by participating in a compulsory statutory examination - Whether co­operation by giving evidence at trial of issues - Inference of knowledge or belief from surrounding circumstances

Acts Interpretation Act 1901 (Cth), s 15AA(1)

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 53(1)

Australian Crime Commission Act 2002 (Cth), s 24A, s 25A, s 28, s 30, s 31(6), s 34A, s 34B

Crimes Act 1914 (Cth), s 3, s 16A, s 21E

Criminal Appeals Act 2004 (WA), s 31(4)(a), s 40(1)(e)

Director of Public Prosecutions Act 1983 (Cth), s 5, s 6

A Child v The State of Western Australia [2007] WASCA 285

Alchikh v The Queen [2007] NSWCCA 345

Ansari v The Queen [2007] NSWCCA 204; (2007) 70 NSWLR 89

Assafiri v The Queen [2007] NSWCCA 159

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Bazzi v The State of Western Australia [2007] WASCA 195

Hayes v The Queen [1981] WAR 252

Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176

Law v The State of Western Australia [2009] WASCA 193

MA v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349

McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8

MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149

Nannup v The State of Western Australia [2011] WASCA 257

Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 63 ALJR 1

R v Cartwright (1989) 17 NSWLR 243

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Gallagher (1991) 23 NSWLR 220

R v Huang [2007] NSWCCA 259; 174 A Crim R 370

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Sukkar [2005] NSWCCA 55

Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313

Wilson v The State of Western Australia [2010] WASCA 82

1 McLURE P: I agree with Murphy JA that the appeal should be dismissed.

2 This court has on a number of occasions in recent years identified the general principles relating to the relevance and effect in sentencing of an offender's cooperation with law enforcement agencies: Nannup v The State of Western Australia [2011] WASCA 257 [34] - [38]; MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149; A Child v The State of Western Australia [2007] WASCA 285; MA v The Queen [2001] WASCA 325. These authorities show that a discount for cooperation will ordinarily be given even if the offender has not cooperated fully by disclosing everything he or she knows or by giving an undertaking to give evidence against another. Further, a discount for cooperation may be given even if the information and assistance is of limited value and sometimes where it is of no value. These propositions simply underscore the fact that whether and to what extent a discount is given for cooperation depends on all the circumstances of the particular case.

3 I agree with Murphy JA for the reasons he gives that the additional evidence in the form of the DVD of the appellant's examination by the Australian Crime Commission (ACC) does not constitute cooperation for the purposes of s 16A(2)(h) of the Crimes Act 1914 (Cth).

4 I will assume without deciding that the repetition of, or offer to repeat, to other law enforcement authorities information previously provided under compulsion to the ACC may, in appropriate circumstances, be capable of constituting cooperation for sentencing purposes. However, I agree with Murphy JA for the reasons he gives that the email of 27 January 2011 did not require or justify any discount for cooperation.

5 Further, I doubt that sworn evidence given by an offender at a trial of issues for sentencing purposes can ever be characterised as cooperation in any mitigatory sense. Even if that were possible, the appellant's evidence at the trial of issues does not require or justify a discount for cooperation. The matters relied on as constituting cooperation had, in substance, been disclosed by the appellant to the ACC around 17 months before the trial of issues; to the appellant's knowledge, his information had not resulted in anyone else being charged with any offence; the sentencing judge at the trial of issues made serious adverse findings as to the appellant's credit and motive in relation to his evidence; the adverse findings undermined the credibility of the appellant's evidence generally, including on the matters relied on as cooperation. Ground 1 should be dismissed.

6 Ground 2 does not have reasonable prospects of succeeding for the reasons given by Murphy JA. Accordingly, leave to appeal on that ground should be refused.

8 This is an appeal against sentence. The appellant pleaded guilty to one count contrary to s 400.4(1) of the Criminal Code (Cth) and one count contrary to s 53(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). Count 1 on the indictment read:

Between 29 April 2008 and 2 May 2009 at Perth or elsewhere in the State of Western Australia [the appellant] dealt with money or property that he intended would become an instrument of crime, namely an offence against section 136 or section 137 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), and at the time of dealing the value of the money or property was $100,000 or more, contrary to section 400.4(1) of the Criminal Code (Cth).

AND FURTHER THAT on 6 May 2009 at Perth in the State of Western Australia, [the appellant] moved physical currency of not less than $10,000, namely the equivalent of about $11,200, out of Australia without a report in respect of the said movement having been given in accordance with section 53 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), contrary to subsection 53(1) of that Act.

9 Notwithstanding his pleas of guilty, the appellant disputed some of the facts relied upon by the Crown in relation to count 1. Those factual issues were resolved at a trial of issues before Fenbury DCJ between 31 January 2011 and 2 February 2011. On 25 February 2011, Fenbury DCJ sentenced the appellant to an effective term of 7 years' imprisonment, comprising a term of 7 years' imprisonment for count 1, and 4 months' imprisonment for count 2, to be served concurrently with count 1.

10 The appellant relies on the following two grounds of appeal:

1. The learned sentencing Judge erred by failing to take into account the degree to which the appellant had co-operated with law enforcement agencies in the investigation of the offence or of other offences, as required by s 16A(2)(h) of the Crimes Act 1914 (Cth).
2. The learned sentencing Judge erred in the exercise of his discretion by making a material error of fact, namely, that the appellant knew that the money that he had dealt with in the context of count 1 on the indictment had been 'ill-gotten'.

11 On 16 May 2011, Mazza J granted leave to appeal on ground 1 and referred the question of leave on ground 2 to the hearing of the appeal.

12 On 6 May 2009, the appellant was apprehended by the Australian Federal Police (AFP) at Perth International Airport. He had planned to leave Australia on a flight bound for Germany. He was searched and was found to be carrying the equivalent of $11,200, made up of $5,000 in his jacket, $6,145 in his wallet, and the balance in various foreign currencies in a small black satchel he was carrying. The money had not been declared and the appellant had ticked 'no' in answer to the question on the outgoing passenger card about carrying currency in excess of the declarable amount of $10,000. Those are, in essence, the facts in relation to count 2.

13 In relation to count 1, on the same day, 6 May 2009, the AFP executed a search warrant at the appellant's residential premises where they seized numerous documents relating to, amongst other things, two names which turned out to be false identities that had been used by the appellant to remit funds overseas. Investigations indicated, and it was alleged, that between 29 April 2008 and 2 May 2009, by some 65 separate transactions through a number of different financial institutions in and around Perth, the appellant was involved in remitting more than $500,000 overseas, using the false identities referred to above.

14 The disputed facts at the trial of issues related to the quantum of money that the appellant personally dealt with, and the number of occasions that the appellant was involved. The appellant's evidence was that he completed false forms and personally handed over cash in 15 of the 65 transactions; that for another 37 of the 65 transactions, he completed the false forms, but did not personally deal with or hand over any cash; and that he had no involvement in the remaining 13 transactions. The judge did not accept the appellant's evidence.

15 The judge referred to the question of the appellant's involvement and made findings as follows (ts 230 - 232):

I do not think the court is required to arrive at an arithmetic or specific figure as being the number of transactions in which Mr Ungureanu actually presented or handed over money. I think what is warranted is a general finding about Mr Ungureanu. Did he simply and only hand over money in 15 cases, totalling just over $100,000, and then falsely fill out a form and nothing more with respect to the other 37? Or was he in the thick of it; that is, that is, one of a small number - three or four people, perhaps - who were jointly engaged in a joint criminal enterprise that dealt with approximately $500,000 being sent overseas, and it not being clear or important who precisely did what with respect to any specific transaction?

...

He was unable to explain how he knew or how he was so sure that the 15 transactions that he admits were effected by him were effected by him, he simply said that he remembered them. Given his admission that he effected 25 in his own name and 15 out of 65, making 40, it's difficult to see how he can simply say he remembered the 15 that he says he did. I don't accept his evidence about that, quite frankly, I did not think he would have been candid about that. His evidence was that he was recruited by others to do what he did by chance - although they were, of course, all Romanians, as he is Romanian - and that his judgment on many occasions was affected by alcohol. He sought to distance himself entirely and only conceded the minimum involvement, and I think that is a deliberate sentencing strategy he has adopted. ...

However, based on the 15 he admits, and his admitted role in the 37 and all of the other evidence, I find he was deeply involved in these matters. He was not alone - I'm not saying that - he was not the person in charge - I'm not saying that - but I have no doubt he was, as counsel put it, in the thick of it all and I find he had more involvement in the other 50 or 49 transactions than merely falsely filling out the forms for 37. But as to precisely what it is not certain. But it doesn't matter for the purposes of sentencing. It seems to me he is clearly involved with respect to $500,000 worth of business - for want of a better way of putting it - on the basis of him being part of a joint criminal enterprise. So for the purposes of sentencing it matters not precisely what he did, he was involved with a mob who shifted $500,000 or thereabouts out of Australia, it seems to me, and so that is the basis of the sentencing that I think - if there's some quibble about that - 400, 500 - it would not make a jot of difference, in my view. So if I'm wrong in making it 5 and it should really be 4, being the hundred he admits and the 300 that is involved in the 37 that he did the false documents for, well, that would not make any difference to the sentencing in my view. (emphasis added)

The judge's sentencing remarks and the sentencing hearing

16 The judge made, in substance, the following observations relevant to sentence in his sentencing remarks which are not the subject of challenge in this appeal:

• By reference to the quantum of money involved, the multiplicity of transactions and the duration of the conduct, count 1 is a serious example of the type of offence admitted (ts 261, 265);
• The facts of the case reveal a high degree of criminality and the appellant had a deep involvement in that criminal conduct (ts 261, 265 - 266);
• Count 2 is a less serious offence involving significantly less criminality (ts 261);
• In relation to contrition, a guilty plea was entered, albeit not at the earliest reasonable opportunity, and in the face of a very strong prosecution case. The guilty plea should be given some weight, but less than it would otherwise be given (ts 263);
• Although the appellant has no prior history of this type of offending, he has been subjected to two substantial terms of imprisonment previously, making both personal and general deterrence important considerations (ts 264).

17 The question of the appellant's co-operation with law enforcement is the subject of ground 1. In relation to co-operation, the sentencing judge said (ts 263 - 264, 265):

In relation to cooperation, it would not seem to me to be that there has been any cooperation. Apparently, you made some gestures in that regard. You may have, or may not have provided information to some tribunal which may or may not exist, I don't know exactly what that's all about, but I really can't take much account of that. So it's not a case where there's significant cooperation. So you can't call in aid that, in relation to mitigation of penalty, I don't think.

...

I'm told you're aggrieved at being the only one charged, well, I bet you are. I can understand that entirely. You must have had some ability to remedy that but it hasn't, apparently, been taken by you but that's all I can say about that, but I'm sure you are aggrieved about it, and I can understand it and I accept it.

18 The judge's sentencing remarks on this issue were made in the following context.

19 The Crown, in written submissions dated 23 February 2011, said (pars 22 - 23):

At no stage has the offender co-operated with the authorities in the investigation of the offences and is not entitled to any mitigation of his sentence on that basis.

Prior to the trial of the issues, the offender indicated that he was willing to name others involved in the criminal enterprise. He was advised that any offer of assistance should be made directly to the Australian Federal Police (AFP). The AFP have advised that no assistance ensued.

20 At the sentencing hearing, counsel for the Crown orally submitted (ts 245):

There's been no cooperation. There was, in fairness, though, communicated to the Crown on behalf of Mr Ungureanu a willingness to name others involved in the criminal enterprise, and of course, your Honour heard certain evidence. Mr Ungureanu was advised that his offer of assistance should be made directly to the Australian Federal Police. I'm instructed that no such advance or offer of assistance or contact has been made.

21 Counsel for the appellant said at the sentencing hearing (ts 252 - 253):

Now, yes, I received correspondence back from the DPP that Mr Ungureanu should approach the AFP directly, but the reason why no arrangements were made to do that is I was also advised by my learned friend that the material that he could provide about the involvement of others had already been provided by him under an involuntary examination in another entity. That's about as much as I could say there, given the secrecy provisions regarding that. So the information that he was prepared to provide regarding the involvement of others had already been obtained by the police, the AFP, although I think from memory the investigating officer from the AFP contends that he's not aware of that information. I don't know, but let's put it this way; there is a government organisation out there that is aware because Mr Ungureanu gave a frank and candid account, very much similar to the account he gave at the trial of the issues about the involvement of others. ...

The impression I got from the evidence of the investigating officer is that, well, we didn't have the resources, and now we don't have the resources to pursue these people further. Now, for a criminal enterprise of this magnitude, one would have thought, at least in an ideal world, that those whose money this belongs to would be pursued. Three names have been provided to the AFP and even without Mr Ungureanu's evidence, there's at least one by the name of Gabrielle Epurs that they should have, at the very least, attempted to interview. Now, as I said, sir, Mr Ungureanu is very aggrieved by that. I have told him it cannot really greatly impact on the sentence that he is to receive, save and except that at least puts him at the level in which he was engaged in this enterprise. Drawing from that, it is evident that there were others who were higher above him and were engaged in this enterprise to make substantially more profits than he was making.

The question of the appellant's knowledge - 'ill-gotten gains'

22 The error of fact alleged by ground 2 is said to be found in the following excerpts from the judge's sentencing remarks (ts 262, 266):

The court [in R v Huang [2007] NSWCCA 259] stated: 'We are of the opinion that the offender's belief as to the source of the funds [will always be a relevant consideration regardless of whether the offender is charged with an offence concerned with the proceeds of crime or an offence concerned with property being used as an instrument of crime. Where it is the latter, the belief as to the source of the funds or its nature is less relevant because the offence] is directed at the use to be made of the funds'. Now, pausing there, I would say that there's not much evidence about source or destination of the funds. There's no specific reference to it. I continue: 'The understanding of the offender as to what was to be the destination of [the money or the purposes for which it was to become an instrument of crime is also a relevant consideration. In the present case it was a significantly aggravating factor that the respondent Huang believed that he was actively involved in dealing with the money for the purpose of evading the payment of tax. But as was stated in Ansari, this is not a matter that is decisive of the seriousness of the particular] offence or the appropriate penalty'. Now, again, I don't know much about that. I mean, I've got my suspicions but there's nothing specific about that.

...

And although I can't say you were the organiser of this matter, you were an active participant with knowledge, as I have already found. Perhaps in relation to that issue generally, in returning to this question of your knowledge of where the money came from or where it was going, there's not much evidence about the source or destination of the funds involved in this case. In fact, I don't think there is. It just wasn't really anything mentioned. That is not a criticism. However, given your modest personal means and the method revealed, plainly, the gains being transferred were ill-gotten, it seems to me, and, in my view, knowingly so. That is, you must have known this and you may not have known specifics but you knew enough to be fixed at least with general knowledge of those matters, in my view. (emphasis added)

So in all of the circumstances of the case [with respect to count 1], and particularly having regard to the maximum penalty, the amount of money involved, the multiplicity of transactions, the difficulty of detection, the need to deter others and your role in the matter, together with your plea of guilty and your personal antecedents, I think a sentence of imprisonment for seven years is warranted. I then deal with count 2. The Crown presses for cumulative sentences in respect of imprisonment. You tried to take $11,200 out of the country without declaring it. You falsely stated you did not have more than 10,000. If you had had 9,999, you would not have been obliged to declare it and you could have taken it out of the country. It's a clear breach of the law but of modest dimension. You've lost the $11,200 and I must have regard to that. Although your explanation is dubious and although the origin of the moneys is suspect, as an offence of its kind, by reference to the quantum of moneys, I think it is at the low end of the range of criminality. And I note also that, having regard to the forfeiture and the remarks that I've made and also to the severity of the penalties that I have been imposing in relation to the other count, you will be sentenced to a term of imprisonment for four months in relation to count 2. In the circumstances, although a separate offence, I order that it be served concurrently. That makes a sentence of seven years' imprisonment, starting date 22 days ago, being 3 February 2011. I make a parole order. You are eligible for parole after serving four years' imprisonment.

Co-operation with law enforcement agencies

24 Part 1B of the Crimes Act 1914 (Cth) is headed 'Sentencing, imprisonment and release of federal offenders'. Division 2 of pt 1B is headed 'General sentencing principles'. Division 2 of pt 1B contains s 16A.

25 Section 16A provides, relevantly:

16A Matters to which court to have regard when passing sentence etc.

(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

...

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

26 The term 'law enforcement agency' is not defined in the interpretation section (s 3), nor is it given a definition for the purposes of the relevant part (pt IB). However, it is given an express definition for the purposes of other parts, namely pts IAB, IAC and IACA. Although the definition of 'law enforcement agency' in each of those parts varies slightly, all definitions include, relevantly, the AFP and the ACC (Australian Crime Commission). The term 'law enforcement officer' is defined in the interpretation section (s 3) as follows:

law enforcement officer means any of the following:

(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);

(b) a member of the police force of a State or Territory;

(ba) a staff member of ACLEI;

(c) a member of the staff of the ACC;

(d) an officer of the Australian Customs Service;

(e) a member of a police force, or other law enforcement agency, of a foreign country.

27 In this appeal, the parties proceeded on the basis that the AFP and the ACC were law enforcement agencies within the meaning of s 16A(2)(h).

28 The word 'co-operated' is not defined for the purposes of s 16A(2)(h) or elsewhere in the Crimes Act. It may be noted, however, that the word 'co-operate' is used in s 21E in div 10 of pt 1B. Section 21E makes provision, in effect, for the circumstance where a sentence has been reduced because the offender has undertaken to 'co-operate' with a law enforcement agency in proceedings, but after sentence fails to 'co-operate' in accordance with the undertaking 'without reasonable excuse'. Provision is made in s 21E(2) for an appeal by the Commonwealth DPP in those circumstances. Subsection (3) of s 21E addresses the situation where the person has 'failed entirely' to 'co-operate' in accordance with the undertaking, and also where the person has failed 'in part' to 'co-operate' in accordance with the undertaking.

29 Section 16A(2) makes it plain that the matters enumerated under that provision are to be taken into account '[i]n addition to any other matters'.

30 Apart from the legislative requirement in s 16A(2)(h), it is well-established that it is generally appropriate to recognise an offender's willingness to co-operate with law enforcement agencies with a discount in the sentence imposed. In A Child v The State of Western Australia [2007] WASCA 285, Wheeler and McLure JJA observed that the giving of a discount reflects two underlying principles [12]:

One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law-abiding citizens that crime should be detected and successfully prosecuted.

31 That passage was preceded by these observations of Wheeler and McLure JJA [11]:

A substantial discount is given to an offender who gives useful information or assistance to law enforcement authorities, irrespective of whether that demonstrates remorse or contrition. Where the information or assistance does demonstrate genuine remorse or contrition ... the discount should be greater. The more potentially useful the information is to authorities, the greater should be the discount. Finally, any danger or hardship which the person assisting authorities may be placed in or may undergo as a result of co-operation should be taken into account.

32 There is no 'tariff' discount for co-operation with law enforcement agencies; whether and to what extent there is a discount depends on all the circumstances of the particular case, and the resulting discount may be small or large: MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 [54]; A Child v The State of Western Australia [13]; Bazzi v The State of Western Australia [2007] WASCA 195 [26]; R v Gallagher (1991) 23 NSWLR 220, 234. A 'pragmatic case by case approach' has been adopted: Hayes v The Queen [1981] WAR 252, 253 (Burt CJ, Wickham & Kennedy JJ agreeing).

33 Whatever the offender's motive for co-operating with the authorities, whether it be genuine remorse or simply self-interest, what is to be encouraged is full and frank co-operation. The extent of the discount will, to a large extent, depend upon the willingness with which disclosure is made. An offender will not receive any discount where the disclosure is tailored so as to reveal only the information which the offender knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything he or she knows: R v Cartwright (1989) 17 NSWLR 243, 252 - 253; MA v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349 [1], [62], [112] - [114]. See also the observations by Burt CJ on the significance of 'full and frank' disclosure in Hayes v The Queen at 254.

34 There is a distinction to be drawn between an offer, or intention to assist, and actual assistance. To win a substantial discount, an intention to assist is not enough; actual assistance is necessary: Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 [36]; R v Sukkar [2005] NSWCCA 55 [52] - [53]; Alchikh v The Queen [2007] NSWCCA 345 [25]; Assafiri v The Queen [2007] NSWCCA 159 [23].

35 An initial offer to assist, genuinely made, may, of course, be the first step in a continuum of co-operation, which leads to the provision of evidence at a trial. An offer which actually goes through the 'fire of a trial' has a far stronger claim than assistance which an offender was prepared to give, but was not called upon to give: R v Sukkar [52]. Nevertheless, it is to be recalled that a failure or refusal by a defendant to provide co-operation to law enforcement agencies does not aggravate the offending. Where an offender provides some material co-operation to law enforcement agencies, the offender's failure or refusal to provide other co-operation does not cancel or neutralise the mitigating character of the co-operation which has in fact been provided. Ordinarily, a discount should be allowed to an offender who has given or promised some material information or assistance: Nannup v The State of Western Australia [2011] WASCA 257 [64] (Buss JA, McLure P & Mazza J agreeing).

36 What is to be rewarded is genuine co-operation with the authorities: R v Cartwright (253); MA v The Queen [114]. Where genuine co-operation has been provided, a discount will not be lost merely as a result of the authorities not acting on the information because, for example, more cogent evidence from another source has emerged, or the subject of the information has pleaded guilty: R v Cartwright (253); MA v The Queen [114]. On the other hand, a discount may not be awarded where the information is not acted upon in circumstances where the accused has deliberately delayed in providing information for a lengthy period of time or has destroyed some relevant evidence, with the result that the information eventually supplied is of little effective value or benefit to the authorities: Assafiri v The Queen [23]. Where an offender has given past or promised future co-operation, the focus of attention, in relation to sentencing, must be on the nature, extent and value of this co-operation: Nannup v The State of Western Australia [64].

The offender's knowledge of the source of the funds

37 The appellant pleaded guilty to, relevantly, one count of money laundering contrary to s 400.4(1) Criminal Code (Cth), which provides:

400.4 Dealing in proceeds of crime etc. - money or property worth $100,000 or more

(1) A person is guilty of an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is, and the person believes it to be, proceeds of crime; or

(ii) the person intends that the money or property will become an instrument of crime; and

(c) at the time of the dealing, the value of the money and other property is $100,000 or more.

Penalty: Imprisonment for 20 years, or 1200 penalty units, or both.

38 Subsection (b) provides for two alternative mental elements. That is, a belief that the money or property involved is proceeds of crime, or an intention that the money or property involved will become an instrument of crime. In this case, the indictment, to which the appellant entered a plea of guilty, alleged the latter mental element.

39 A plea of guilty to an offence necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence: Law v The State of Western Australia [2009] WASCA 193 [27].

40 If, for the purposes of sentencing, the prosecution seeks to have the sentencing judge take a matter into account as an aggravating circumstance, it is for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Likewise, if the offender seeks to have the sentencing judge take a matter into account as a mitigating circumstance, it is for the offender to bring that matter to the attention of the judge and, if necessary, call evidence. It will only be necessary to call evidence where the asserted fact is controverted by the other party, or where the judge is not prepared to act on it, even though it is not controverted by the other party: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25]; Law v The State of Western Australia [29] - [31].

41 A sentencing court can only take into account aggravating factors if it is satisfied of the existence of such factors beyond reasonable doubt: R v Olbrich [27]; Law v The State of Western Australia [33].

42 In the context of a money laundering offence, the most important consideration will be what the offender did; there may be little or no evidence before the court as to the organisation behind the offence, the source of the funds or the ultimate use to be made of them: R v Olbrich [19]; Ansari v The Queen [2007] NSWCCA 204; (2007) 70 NSWLR 89 [123]. If there is no evidence as to the offender's state of knowledge as to the source of the funds, the purpose of dealing with them, or their ultimate destination, then the court must simply deal with the matter on the objective facts as proved by the evidence: Ansari v The Queen [124].

43 However, even if, as in this case, an offender is convicted of the offence of money laundering with the intention that the money will become an instrument of crime (ie, s 400.4(1)(b)(ii)), the offender's belief as to the source of the funds will still be a relevant sentencing consideration. As the court said in R v Huang [2007] NSWCCA 259; 174 A Crim R 370 [32]:

Notwithstanding the Crown submissions to the contrary before this Court, we are of the opinion that the offender's belief as to the source of the funds will always be a relevant consideration regardless of whether the offender is charged with an offence concerned with the proceeds of crime or an offence concerned with property being used as an instrument of crime. Where it is the latter, the belief as to the source of the funds or its nature is less relevant because the offence is directed at the use to be made of the funds. So the offence of the respondent Siu was aggravated because he believed that the funds were as a result of illegal activity, albeit the activity was not of the utmost seriousness.

44 Actual knowledge may be inferred as a matter of inference, from the circumstances surrounding the commission of the alleged offence. For example, a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. However, wherever knowledge is inferred from the circumstances surrounding the commission of the offence, knowledge must be the only rational inference available. See Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 63 ALJR 1, 3.

45 It was common ground in this appeal (although apparently unknown to the sentencing judge) that the 'entity' referred to at the sentencing hearing, by whom the appellant had been compulsorily examined, was the ACC.

46 Part II div 2 of the Australian Crime Commission Act 2002 (Cth) (ACC Act) deals with examinations. By s 24A, an ACC examiner (appointed under s 46B) may conduct an examination for the purposes of a special ACC operation or investigation. Examinations must be held in private and only persons approved by the examiner are permitted to be present: s 25A(3), (5). An examiner has the power to summon a person to appear before the examiner at an examination to give evidence and, for that purpose, may require the person to take an oath or to make an affirmation: s 28(1), (5).

47 By s 30(1) - (2), amongst other things, a person required to attend an examination is obliged to attend, to take an oath or affirmation (if required by the examiner to do so) and to answer all questions that the examiner requires the person to answer. Failure to do any of those things will result in the person committing an indictable offence, punishable by a fine of up to $22,000 or imprisonment for up to 5 years: s 31(6). It is also an offence to give evidence that is, to the person's knowledge, false or misleading. That offence too is punishable by a fine of up to $22,000 or imprisonment for up to 5 years: s 33(1) - (2). Further, conduct that would constitute either of the offences mentioned above would also place the person in contempt of the ACC, such contempt being punishable in the Federal or a State or Territory Supreme Court as if it constituted contempt of that court: s 34A, s 34B.

48 A person who is required to submit themselves to an examination by the ACC may claim 'use immunity' in relation to the answers they give to questions. If such immunity is claimed, and granted by the examiner, the answers given are not admissible in evidence against the person in, amongst other things, criminal proceedings: s 30(4) - (5).

49 Following an examination, the examiner may direct that, amongst other things, the evidence given at the examination, and the fact that any person has given evidence at an examination, must not be published, or must not be published except in a specified way and to specified persons: s 25A(9). The Chief Executive Officer of the ACC may, in writing, vary or revoke any such directions made by an examiner, but only if to do so would not prejudice the safety, reputation or fair trial of a person: s 25A(10) - (11).

50 It is not in dispute that on 4 August 2009, the appellant was subjected to a compulsory examination under the ACC Act. At the commencement of the examination, the appellant claimed, and was granted, an immunity (see [48] above) in relation to the answers he gave during the examination. The appellant was told at the start of the examination that the proceedings were confidential and that his evidence would 'only be available to persons with a legitimate law enforcement interest'.

51 At the conclusion of the examination, the examiner made directions under s 25A(9) of the ACC Act, namely that:

The evidence given by [the appellant], the contents of documents produced to the commission during this examination, any evidence that might enable [the appellant] to be identified, and the fact that [the appellant] has given evidence during this examination must not be published, except to the CEO, examiners and members of staff of the ACC, and members of law enforcement agencies.

52 Consistently with those directions and the provisions of the ACC Act, the evidence given by the appellant during the course of the examination was not before the trial judge.

Application to adduce the ACC examination evidence

53 On 26 September 2011, the appellant made an application to this court seeking an order that the evidence given by the appellant to the ACC on 4 August 2009 be admitted into evidence at the hearing of this appeal. The appellant submitted that the admission of the evidence was necessary in order for this court to be able to determine whether the judge made the error alleged in ground 1; that is, whether the judge erred in failing to take into account the degree to which the appellant had co-operated with law enforcement agencies as required by s 16A(2)(h) of the Crimes Act.

54 The application was not opposed by the respondent. Mr Sean Mullins, on behalf of the respondent, swore an affidavit on 27 September 2011 stated to be in order to 'facilitate the ACC ... making available material which may become relevant to a ground of appeal at the hearing'. Mr Mullins deposed, in effect, that he had been in contact with an ACC employee who had confirmed that the ACC was willing to provide the relevant material to the court for the purposes of this appeal.

55 The court registry subsequently received a letter from the ACC enclosing a DVD containing the recorded examination of the appellant. The letter stated, amongst other things, that the Chief Executive Officer of the ACC had decided to make the relevant information temporarily available to the court for the purposes of the appeal, on strict conditions concerning disclosure. The letter also attached a written 'variation of ACC non-publication directions', stated to be made pursuant to s 25A(10) of the ACC Act. The directions which were varied were those given by the examiner orally at the conclusion of the examination of the appellant on 4 August 2009.

56 The written variation to those directions, dated 16 September 2011, is in the following terms:

1. The evidence given by the witness, the contents of any document or thing produced to the Examiner and any information that might enable the witness to be identified or the fact that the witness gave evidence to the Examiner (the information).
2. The fact that the witness gave evidence to an ACC Examiner at an examination on 4 August 2009 (the event information).

1. Subject to paragraph 4 below, the information and event information may only be published to:

1. the Chief Executive Officer, Examiners and specified members of the staff of the ACC; 2. law enforcement agencies and the staff of such agencies for confidential intelligence use only;

1. to officers of the Commonwealth Director of Public Prosecutions ('CDPP') and CDPP counsel involved in an appeal against sentence commenced by the witness with respect to a sentence imposed by His Honour Judge Fenbury of the WA District Court on 25 February 2011 (the Appeal);

1. to solicitors and counsel for the witness for purposes relating to the Appeal; 2. to the member Justices of the Western Australian Court of Appeal and their Associates and staff for purposes relating to the Appeal.
2. Publication of the information and event information is subject to the following:

1. the restrictions on use in subsection 30(5) of the ACC Act; 2. the information and event information may not be publicly released except as may be ordered by a Court as part of the Appeal proceedings;

1. the information may not be considered as part of any proposed adverse administrative action against any person without prior approval of the ACC; and

1. the court hearing the Appeal proceedings be requested to order:- 1. 'the information may only be viewed within premises occupied by the Court and in the presence of a Justice's Associate'; 2. 'the information is to be returned in specie to the ACC upon completion of the Appeal proceedings and no copy shall be made'. (footnotes omitted)

57 On 27 September 2011, McLure P directed that the appellant's application to adduce the additional evidence be dealt with at the hearing of the appeal.

58 This court has the power to admit the evidence: s 40(1)(e) Criminal Appeals Act 2004 (WA). Having viewed the DVD as discussed later in these reasons, I am satisfied that it is relevant to the disposition of ground 1. The application to receive the evidence is unopposed. In my view, in these circumstances, the appellant's application should be allowed, and the DVD accepted into evidence.

59 However, given the high degree of confidentiality surrounding the information contained on it, it will be necessary to hear from the parties in relation to appropriate orders for suppression of this judgment. I note that in the covering letter from the ACC, it is foreshadowed that the respondent will seek orders for suppression to prevent the publication of the information contained on the DVD, and the manner by which the information was obtained, outside of the court.

Disposition of ground 1 - Co-operation The material before the sentencing judge

60 Under s 16A(2) of the Crimes Act, the court is to take into account co-operation, within the meaning of subpar (h), insofar as it is 'relevant and known to the court'.

61 In this case, very little, was 'known to the court'. All that was known was that a few days before the trial of issues, an offer to name others involved in the offences was communicated to the Commonwealth DPP by the appellant's lawyer, that the response from the Commonwealth DPP was that the appellant should approach the AFP, and that no approach was made to the AFP because the appellant's lawyer had been told that the information the appellant could provide had already 'been provided by him under an involuntary examination in [sic] another entity' (ts 252). The appellant's lawyer added that the appellant gave to that (unidentified) entity a 'frank and candid account' which was 'very much similar' to the account he gave at the trial of the issues about the involvement of others. He said that the appellant was 'aggrieved' that the others had not been pursued, apparently because of a lack of resources at the AFP.

62 As to the last-mentioned matter, at the trial of issues, the investigating officer at the AFP gave evidence that, although he had not been provided with the material from the ACC examination of the appellant, other members of the AFP would have had access to that material (trial of issues, ts 62). The investigating officer's evidence regarding the names given by the appellant in the course of the ACC examination is not entirely clear; he was familiar with some and appeared to have a somewhat vague recollection of others. The overall sense of his evidence was that the names, if not known by him, were known to the AFP, and that a decision had been made not to investigate them further (trial of issues, ts 60 - 63, 91 - 94).

63 The appellant submits that there are three instances of co-operation with law enforcement agencies that the sentencing judge failed to take into account:

(a) the appellant's participation in a compulsory examination by the ACC on 4 August 2009;

(b) the appellant's offer, sent by his counsel via email on 27 January 2011, to the Commonwealth DPP, stating that the appellant was 'prepared to co-operate with Police'; and

(c) the appellant's oral testimony at the trial of issues which took place between 31 January 2011 and 2 February 2011.

64 As to the first alleged instance of co-operation, in my view, the judge did not err on the materials before him. The materials before the judge were sparse in the extreme. The nature of the suggested co-operation was expressed at a very high level of generality. The fact that the suggested co-operation involved an involuntary examination would, prima facie, indicate that the appellant had not been a willing participant in giving assistance to the authorities. There was nothing which suggested any contrition by the appellant. It was more that the appellant felt 'aggrieved' that others had not similarly been charged. It was evident to the judge, from the trial of issues, that the AFP had not regarded the pursuit of the others to be sufficiently important to warrant further resources or investigation. Also, to the extent that the appellant's counsel invited the judge to find that the appellant's disclosure under the involuntary examination was 'frank and candid', and 'very much similar' to the account provided by the appellant at the trial of issues, the judge was entitled to take into account his prior finding that the appellant, at the trial of issues, had not been candid about the nature and extent of his involvement in the criminal enterprise.

65 The appellant, nevertheless, contended in this appeal that whatever doubts the judge had about the appellant's veracity generally, there was at least no dispute that the persons named by the appellant were 'real people' (appeal ts 9). That may be so, but, in my view, the judge was still entitled to ascribe no weight to the provision of the information absent a candid explanation of the extent of the appellant's involvement generally and, in particular, in relation to his assertion that he was 'recruited by others'.

66 For these reasons, and there being no other basis upon which the appellant criticised the judge's approach on the materials before him, the judge has not been shown to be in error on the material before him.

67 The appellant next contends that on the basis of the additional evidence adduced in the appeal, ie, the DVD of the appellant's examination by the ACC, this court, in making its own assessment, should find that the appellant's participation in the examination, properly characterised, constituted co-operation with a law enforcement agency for the purposes of s 16A(2)(h), and warranted a reduction in sentence.

68 The appellant submits that there was co-operation in spite of the information being disclosed under compulsory examination. The appellant says that it is a question of fact and degree, and that simply because information is provided in the context of an involuntary examination, that should not necessarily preclude it from being characterised as co-operation and taken into account in sentencing. The respondent, on the other hand, submits that the provision of information in circumstances where the person is obliged to provide that information cannot constitute co-operation. Further, it is said, the usual public interest considerations which justify a reduction in sentence where an offender provides information to law enforcement agencies do not apply where the information is provided involuntarily, on pain of criminal sanction.

69 As noted earlier, the word 'co-operate' is not defined in the Crimes Act. The ordinary meaning of the verb 'co-operate' is 'to work or act together or jointly; unite in producing an effect' (Macquarie Dictionary, online), or 'to work together, act in conjunction (with another person or thing, to an end or purpose, or in a work)' (Oxford English Dictionary, online). In my view, the word 'co-operate', in its ordinary signification, connotes a voluntary act. That is the sense in which it is used in s 21E. That provision expressly contemplates that an offender might elect to withdraw from the undertaking given, and refuse to 'co-operate' as promised earlier. The word 'co-operated' in s 16A(2)(h) would not, in my view, bear a different meaning from its ordinary meaning and the meaning evidently used in s 21E.

70 Moreover, such a construction would promote the purpose or object underlying pt 1B of the Act, which, it is to be inferred, would include the furtherance of the usual public interest considerations with respect to sentencing where the offender co-operates with law enforcement agencies: s 15AA(1) of the Acts Interpretation Act 1901 (Cth).

71 Having regard to the nature of a compulsory examination under the ACC Act discussed earlier, an examinee's disclosure of information merely in compliance with and pursuant to his or her obligations under the ACC Act could not be regarded as the voluntary disclosure of information, and could not be regarded as co-operation within the meaning of s 16A(2)(h).

72 That is not to say, however, that in all circumstances the provision of any information by an examinee to the ACC could never be regarded as co-operation. If, for example, the accused could show, on the civil standard, that information was volunteered beyond what was required (bearing in mind the terms of the usual oath) in order to meet the examinee's obligations under the ACC Act, so that the information was shown to be the product of a voluntary act, rather than being given under compulsion, the information might bear the character of co-operation within the meaning of s 16A(2)(h). An accused may, of course, face evidentiary difficulties in proving that information allegedly volunteered went beyond what was strictly necessary to comply with his or her obligations under the Act. Nevertheless, the possibility in theory cannot be discounted. Evidence of co-operation might be clearer, for example, where the examinee had voluntarily provided a written statement to assist the ACC prior to the commencement of an examination.

73 I have viewed various parts of the DVD of the ACC's examination of the appellant to obtain my own general impression of the evidence. I have also considered the whole of the transcript, and read the supplementary written submissions filed by both parties which, amongst other things, include references to parts of the transcript relied upon by the appellant.

74 There is no evidence of any voluntary statement being provided by the appellant either prior to or within the course of the examination. The answers given by the appellant during the course of the examination did not constitute 'co-operation' within the meaning of s 16A(2)(h). The appellant's answers were confined in scope to the specific questions asked. At no stage did he, for example, voluntarily elaborate, nor did he offer up any extra information that was not the subject of direct questioning. On the contrary, the appellant's answers often appeared to be evasive, and he frequently claimed that he could not remember. This prompted the examiner to remind him, on a number of occasions, that he was obliged to answer truthfully, and that he could be imprisoned if he refused to do so.

75 The appellant also responded to questions on a number of occasions by saying that he never asked the persons who supplied the money where the money came from, and they never told him.

76 At the conclusion of the examination, the appellant informed the examiner that his mother had passed away that morning. There was some suggestion in this appeal that that matter may have affected the appellant's ability to provide cogent responses to the questions put to him. After raising the matter with the examiner, the appellant said, in effect, that if he subsequently remembered any further information, he would speak to his lawyer and make contact with the police. The examiner made it clear to the appellant that that course was open to him, and emphasised that if he chose to do so, he should do so 'sooner rather than later'.

77 In my view, even taking into account the fact of the appellant's mother's passing on the morning of the examination, it is plain from a consideration of the transcript as a whole that the appellant did not offer any information beyond what he considered to be the bare minimum required to answer the questions put to him.

78 In supplementary written submissions filed following the appeal, the appellant identified a number of specific instances during the ACC examination which he says constituted 'assistance'. It is said, for example, that he 'volunteered' the false names that he had used in the course of his offending. That submission is untenable. In no sense did the appellant 'volunteer' that information. Rather, it was provided in response to direct questioning, viz: 'Have you ever used false names to send money overseas?' and 'What false names have you used?' The appellant refers to certain other pieces of information said to be 'given' or 'volunteered' by him. However, like the above example, all of the pieces of information referred to were disclosed by the appellant in response to direct questioning by examiner, and cannot be said to have been offered by the appellant 'voluntarily' in any sense of the word.

79 In relation to the second alleged instance of co-operation, the email from the appellant's lawyers to the Commonwealth DPP on 27 January 2011, was in these terms:

I can confirm, having taken instructions, that the client is prepared to co-operate with Police re: the naming of others involved in this criminal enterprise e.g. he can provide the full names of the individuals described ... at p.283 of the brief.

80 The Director of Public Prosecutions Act 1983 (Cth) establishes, by s 5(1), an 'Office to be known as the Director of Public Prosecutions'. By s 5(3) of that Act, the 'Office' consists of the Director and members of the staff of the Office. By s 6 of that Act, the functions of the Director are, in substance, to institute proceedings and carry out prosecutions.

81 The appellant did not argue that the Office of the Commonwealth DPP was itself a 'law enforcement agency' within the meaning of s 16A(2)(h) of the Crimes Act. Accordingly, it has not been shown that the email to the Commonwealth DPP itself constituted the provision of assistance to a 'law enforcement agency', for the purposes of s 16A(2)(h). Nor was the email even a preliminary step on the way to the provision of assistance to such an agency. As noted earlier, the communication did not result in any actual offer of assistance to either the AFP or ACC.

82 Even if the email were treated as the provision of some assistance to a law enforcement agency, it was too little too late to be given any weight. It does not indicate contrition or remorse. The appellant was offered the opportunity to participate in a voluntary interview with the AFP following his arrest on 6 May 2009, but declined to do so (trial of issues, ts 62). The email came some 17 months after the ACC examination, after the appellant had pleaded guilty and, in effect, on the eve of the trial of issues, notwithstanding that the appellant was told by the ACC examiner at the conclusion of the examination that if he intended to make contact with police, he should do so 'sooner rather than later'. There was no suggestion that he was offering any information beyond that previously elicited by the ACC in the compulsory examination. It was given at a time when a decision had been made by the AFP not to further investigate others for the offences. It was, moreover, in effect, a precursor to what the judge found to be a 'deliberate sentencing strategy [by the appellant] to distance himself' from his involvement in the offences. Further, the judge did not accept that the appellant's evidence at the trial of issues regarding the extent of his involvement, and his alleged 'recruitment by others', was candid.

83 The email of 27 January 2011 did not amount to co-operation.

Disposition - evidence at the trial of the issues

84 The third alleged instance of co-operation is the occasion of the appellant giving evidence at his own trial. In my opinion, this submission must also fail. A court of law is concerned with the administration of justice, and a court is clearly not a 'law enforcement agency' for the purposes of s 16A(2)(h). Nor could it be said that the occasion of the appellant giving evidence on his own behalf at a trial of issues following a plea of guilty constituted, in any sense, co-operation with a law enforcement agency.

Disposition of ground 2 - the appellant's knowledge of the source of the funds

86 The appellant submits that the sentencing judge made an error of fact in finding that the appellant knew that the 'source' of the money that he dealt with was 'ill-gotten', where there was no evidence to support that finding. It is submitted that the absence of evidence is confirmed by the judge's finding that there was no evidence as to the 'source or destination of the funds involved' (see [22] above). The first observation to make about that submission is that such an error, if made out, would be an error of law, not an error of fact: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 - 356; McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8, 9.

87 In my view, the appellant has misconstrued the nature of the finding made by the sentencing judge. The judge's finding appears to me to be directed to whether there was any evidence as to the specific source of the funds. It is clear from the judge's remarks that he was of the view that there was no evidence upon which such a finding could be made. Nevertheless, his Honour drew the inference that, having regard to all of the circumstances, the appellant must have known that the funds were, generally speaking, 'ill-gotten', that is, obtained by some unlawful means, even if there was no evidence as to the specific source. The question is whether it was open to his Honour to draw that inference. An inference of knowledge may be collected from all the circumstances, providing that it is the only rational inference available: Pereira.

88 The appellant had given evidence at the trial of issues that, in effect, he had asked once where the money was from, that he was told that it was winnings from gambling at the TAB, and that from that point on he did not care (trial of issues, ts 133 - 136). By drawing the inference that he did, the judge implicitly rejected the appellant's evidence. (The judge was not aware that, contrary to his evidence at trial, the appellant had told the ACC that he had not asked any questions in that regard.)

89 No error has been shown in the drawing of the inference. The judge, in finding knowledge, specifically referred to the appellant's 'modest personal means' and 'the method revealed'. Counsel for the respondent submitted that the other matters which would have permitted his Honour to draw the inference include the number of transactions, the amount of money involved (ie, in excess of $500,000), the duration of the conduct (ie, in excess of 12 months), and the use of false names. There was also his Honour's unchallenged finding that the appellant was part of a joint criminal enterprise involved in systematically and dishonestly laundering the funds overseas (ts 232, 261, 265 - 266). In my view, those matters, in combination, lead irresistibly to the inference drawn.

90 Paragraph 16 of the appellant's submissions in this appeal states that the appellant was not charged with the alternative offence dealing with money believing it to be the proceeds of crime (s 400.4(1)(b)(i)). However, the inference properly drawn by the judge is nevertheless a relevant sentencing consideration in relation to an offence under s 400.4(1)(b)(ii): R v Huang [32].

91 Although it was not a ground of appeal, the appellant in oral submissions suggested that the appellant had not been given notice that the judge might be invited to make a finding as to the appellant's belief as to the source of the funds in relation to sentencing considerations. I do not accept that submission. The prosecution, in its written and oral submissions on sentence, had submitted that the appellant had 'turned a blind eye' to the source of the funds (written submissions par 19; ts 241). The prosecution referred in terms to the New South Wales Court of Criminal Appeal's observations in R v Huang and extracted the relevant passage which referred to the offender's belief as to the source of funds being a relevant consideration. The submission of, in effect, wilful blindness, in conjunction with the relevant reference to R v Huang, and reference to the circumstances of the offences, invited the judge, in my view, to make a finding as to the appellant's belief as to the source of the funds.

92 Finally, the appellant did not suggest that, in drawing the inference, the sentencing judge was, in effect, punishing him for an offence for which he had not been convicted: cf R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389; R v Olbrich [18]; Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 [26].

94 Neither of the errors alleged in the grounds of appeal has been made out. The appellant did not allege that the sentence imposed was otherwise outside of a sound discretionary range. Even if the alleged errors were established, I am not satisfied that a different sentence should be imposed: s 31(4)(a) Criminal Appeals Act; Wilson v The State of Western Australia [2010] WASCA 82 [2]. Accordingly, leave to appeal on ground 2 should be refused and the appeal should be dismissed.