Van Eeden v R

Court of Criminal Appeal (NSW)|2012-02-08|Before: Basten JA, Hulme J, Schmidt J, Spigelman CJ, McHugh J, Phillips CJ, Visa J

Judgment 1BASTEN JA : I agree with Schmidt J that the application for leave to appeal against sentence in this matter should be refused. I also agree with her reasons, but would add the following. 2Ground 3 complained that the sentencing judge had undervalued the adverse effect of the sentence on the applicant's life in Australia following his arrest. That ground did not in terms identify any challenge based on failure to take into account the effect on his family or dependants, as required s 16A(2)(p) of the Crimes Act 1914 (Cth). Nevertheless, that provision was relied upon by the applicant in submissions. 3As explained by Spigelman CJ in Togias , this provision has long been construed as precluding a sentencing judge from giving "substantial" weight to such considerations, absent exceptional circumstances: Togias [2001] NSWCCA 522; 127 A Crim R 23 at [13]-[16]. Some of the authorities referred to in Togias date from a period when courts were more willing than is the case today to assume that legislation was not intended to depart from general law principles: Malika Holdings Pty Ltd v Stretton [2001] HCA 14; 204 CLR 290 at [27]-[30] (McHugh J). Nevertheless, as Spigelman CJ also noted, it is not for this Court now to depart from a position adopted by appellate courts in most States: see also R v Matthews (1996) 130 FLR 230 at 233-234 (Phillips CJ, Southwell and Hampel AJJA agreeing). 4That is not to say that the legislative direction is to be flouted by ignoring the consideration in cases lacking exceptional circumstances: it merely means that the accepted sentencing range for a particular offence is likely to have incorporated the usual expected consequences for dependants and that the effect of any unusual consequences, shown to be probable, will depend on all the other circumstances, including the seriousness of the offence. 5A typical case in which the effect on dependants may be given significant weight is one in which the offender is a mother with a baby or young child in her care. In the present case, the applicant's wife has no doubt lost a period of co-habitation with him and the children will have lost contact with their father who was, possibly, the principal breadwinner, for the period of his incarceration. These consequences may be accepted as probable, not because they were addressed in the evidence, but because they are the usual consequences of incarceration of a person in the position of the applicant. It follows that, in accordance with the established principles, they could not significantly affect the length of the sentence imposed. 6So far as a general complaint was made that the sentence was excessive, reliance was placed in submissions primarily on the errors, described as significant, which had already been addressed in other grounds. 7There were three factors which were potentially favourable to the applicant in respect of this ground. The first was the finding that he was to be sentenced as a courier and not as a principal, although that classification was of limited relevance in respect of an offence involving dealing in money where there is a risk that the money "will become an instrument of crime". Secondly, he entered an early plea of guilty indicating a wish to facilitate the course of justice. The sentencing judge did not indicate the extent of any diminution in the sentence which might have followed from that fact, but it can be assumed to have been significant. Thirdly, although the amount involved was a significant sum, it was in the middle of the range covered by this particular offence. 8The maximum penalty for the offence was 10 years imprisonment. In those circumstances, the sentence imposed does not itself demonstrate any manifest excess. 9RS Hulme J : I agree with Schmidt J. 10Schmidt J : The applicant seeks leave to appeal from a sentence imposed upon him by Solomon DCJ on 15 December 2010. On 1 November 2010, the applicant entered a plea to a charge brought under s 400.4(2) of the Criminal Code Act 1995 (Cth). He was sentenced to a term of imprisonment of 3 years, 1 month to date from 15 December 2010, expiring on 14 January 2014, with a non-parole period of 1 year, 10 months. In fixing that sentence his Honour indicated that he had taken into account that the offender had spent approximately 2 months in custody. 11The charge to which the applicant entered the plea was: "On or about 12 October 2009 at Sydney in the State of New South Wales did deal with money where there was a risk that the money would become an instrument of crime and was reckless as to the fact that there was a risk that the money would become an instrument of crime and at the time of the dealing the value of the money was $100,000 or more." 12The maximum penalty for the offence, which is concerned with amounts ranging from $100,000 to $1,000,000, was 10 years imprisonment and/or a fine of $66,000.

Grounds of Appeal 13The grounds of appeal are: "1. The sentencing judge erred in finding that the applicant's prospects of rehabilitation were neutral. 2. The sentencing judge engaged in speculation as to the source of the money and thereby fell in to error. 3. The sentencing judge undervalued the onerous nature of the Criminal Justice Visa and the life of the applicant since the date of charging. 4. The sentence imposed by the learned sentencing judge was too severe having regard to the objective and subjective circumstances of the offence. "

The sentencing Judgment 14His Honour referred to agreed facts which were in evidence. In October 2009, the applicant checked in at Sydney International Airport for a flight to Germany. He filled in an outgoing passenger card, declaring that he was not taking $10,000 or more out of the country. When approached by an Australian Customer Border Protection officer, he said that he was not carrying more than $10,000 or the foreign equivalent. When approached again later, he admitted that he was carrying excess currency. He then filled out an International Currency transfer report, disclosing that he was taking $1,500, USD worth $10,000 and EUR2,000. He said that he had no other undeclared currency. A search of his baggage located a large quantity of Australian banknotes. The cash found had a value of $432,268, which had not been declared. The total currency was $418,000, USD10,000, EUR2,000 and CLP1,000 (Chilean Pesos). 15His Honour accepted that although there had been a history of delay, (as the result of the initial laying of a different charge, which was withdrawn), the applicant had entered a plea at the earliest opportunity and that this indicated a wish to facilitate the course of justice, as well as a degree of contrition. 16His Honour took the view that the offence was a serious one, requiring both general and specific deterrence to feature in the sentence imposed. He had regard to the provisions of s 16A of the Crimes Act 1914 (Cth) and referred to various of the matters there specified to be taken into account. His Honour was satisfied that the applicant was a courier, not a principal. He found that the source of the money was unclear, but noted that an element of the offence was that there was a risk that the money would become an instrument of crime. 17His Honour noted the applicant's character and antecedents, also noting that the applicant had not given evidence. He referred to a pre-sentence report which referred to the 54 year old applicant's 6 marriages, 6 children and 6 grandchildren; his marriage for 13 years to his current wife and their two children aged 10 and 5 years; and his residence in the Dominican Republic for about 20 years, where he had conducted businesses, describing himself as an 'entrepreneur'. 18His Honour indicated that he was 'neutral ' as to the applicant's prospects of rehabilitation, although noting in his favour the plea. He accepted the submission that the applicant's family had been unable to visit him since his arrest in October 2009 and that this must have caused hardship and pain to his family. He also accepted the submission that since his arrest he had been unable to leave Australia, having been the subject of a criminal justice visa, the conditions of which were onerous and prevented him from obtaining employment, or receiving social security whilst on bail. His Honour also accepted that the applicant was impecunious and relying on the charity of others, while in Australia. 19His Honour concluded that no other sentence than a term of full-time imprisonment was available in the circumstances, the applicant's criminality being significant.

The evidence 20The applicant did not give evidence. As well as the agreed statement of facts there was a pre-sentence report prepared in December 2010, which noted that the applicant had stated that he was 'currently residing with a friend [in] Enmore, although prior to this he was renting a property in Mosman and then St Leonards.' 21The report noted that the applicant gave a background of having been raised as an only child in Holland by his adopted parents, now deceased, who provided for him financially and with a good education. He had not completed a degree in mathematics at university, but had then worked with his grandfather, who owned a cleaning business. He was an entrepreneur who had owned and managed a number of businesses, including a taxi company, nightclubs and a construction company. In the Dominican Republic he had purchased a second hand tyre company about 13 years previously, which had been successful, but had closed down, due to his being in Australia. 22Under the heading 'Attitude to the Offence' and 'Summary and Community Based Sentencing Options' it was observed: "Mr Van Eeden claimed that he made an impulsive decision to travel to Australia for a short holiday after learning about the country on the discovery channel. He claimed that he did not declare the currency because he "wanted to avoid tax". He also maintained that $10,000 was from a win on the poker machines and the rest of the money was given to him by a Dutch male associate to take home to the Dominican Republic for him. ... "Mr Van Eeden does not have any prior contact with this Service although enquiries indicated that he has previously served two custodial sentences in the Netherlands. It was difficult to obtain a comprehensive picture of Mr Van Eeden and his lifestyle given that this service was not able to speak to anyone of significance other than a friend he has met while in Sydney, or to verify any information provided by him in relation to this report. He maintained that he committed the offence in order to avoid tax and as a favour to an associate he had met in Australia. He acknowledged that this decision has negatively impacted on him and his family."

Ground 1- the sentencing judge erred in finding that the applicant's prospects of rehabilitation were neutral 23It was the applicant's case that his Honour erred in the conclusion reached, failing to have regard to the evidence that he had been a productive member of the Dominican Republic, where he had resided for some 20 years. He had a limited criminal history, restricted to 2 custodial sentences in the Netherlands. He also had a productive work record and had raised a family. 24There had been a long gap in offending which ought to have been accepted as a basis for inferring that there were reasonable prospects of rehabilitation and that the applicant was unlikely to offend in future. This was not a case of a continuing attitude of disobedience, so that more weight should have been given to retribution, personal deterrence or protection of the community. 25It was also relevant that the offender was granted bail on 2 December 2009 and had not offended while he remained in the community until 15 December 2010. This period of post arrest rehabilitation ought also to have led to a positive finding in respect of rehabilitation. 26On the Crown's case, his Honour's neutral conclusion as to the applicant's prospects of rehabilitation was unduly favourable to the applicant. The evidence did not establish a 'gap' in offending, nor did it show there was no continuing attitude of disobedience to the law, as the dates of the offences were not established on the evidence. The applicant had proffered an inherently implausible explanation of the circumstances of the offence and had not given evidence. The reference in the pre-sentencing report to his criminal record was not the subject of detailed submissions, nor any reference in the judgment. It followed that the evidence provided no foundation for the complaints advanced. 27The Crown's submissions must be accepted. The applicant led no evidence. The material in the pre-sentencing report provided no basis for any firm conclusions as to the applicant having positive prospects of rehabilitation, particularly having in mind the applicant's implausible, untested explanation of the circumstances of his offending. No error has been shown and this ground of appeal must accordingly fail.

Ground 2- The sentencing judge engaged in speculation as to the source of the money and thereby fell into error 28It was submitted for the applicant that it was not open to his Honour to make any assumptions about the source of the money found in his possession. The offence was committed as soon as the applicant falsely completed the outgoing passenger card. Reference was made to some particular exchanges with defence counsel during the course of submissions, to demonstrate that the result of his Honour's approach was that the sentencing process was infected with error. 29Section 400.4(2) of the Code provides: "(2) 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 proceeds of crime; or (ii) there is a risk that the money or property will become an instrument of crime; and (c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and (d) at the time of the dealing, the value of the money and other property is $100,000 or more. Penalty: Imprisonment for 10 years, or 600 penalty units, or both." 30By his plea the applicant acknowledged that he was guilty of the offence charged. He gave no evidence and the only explanation he offered as to the source of the money which he was carrying, was implausible. There was more than the one exchange relied upon about this issue during the course of the submissions made below. His Honour's judgment makes it clear that his Honour did not wrongly speculate about the source of the money, but properly took into account the relevant element of the offence to which the applicant had pleaded guilty. His Honour observed: "As to the nature and circumstances of the offence I am satisfied that the offender was not a principal and that the offender was a courier of the money. I note that the source of the money is unclear however an element of the offence is that there is a risk that the money would become an instrument of crime." 31That conclusion was open and reflected no error. It follows that this ground of appeal was also not established.

Ground 3 - The sentencing judge undervalued the onerous nature of the criminal justice visa and the life of the applicant since being charged 32The applicant was arrested on 12 October 2009 and granted bail on 2 December 2009, spending 7 weeks in custody. On 27 January 2010, he was granted a criminal justice visa, which will be revoked on completion of sentence, when it appears that the applicant will be deported. 33The result was that while on bail the applicant was prevented from leaving Australia, where his family was unable to visit him and where he was unable to support himself. It was submitted for the applicant in written submissions, that in his judgment his Honour had paid 'lip service' to these matters, with the result that the sentence did not adequately reflect the onerous nature of the visa, up to the time of sentence. In oral submissions the consequences of his inability to leave Australia and his isolation from his family were emphasised as having been given insufficient weight. 34It was the case advanced for the applicant below that the onerous conditions of the visa would be taken into account in determining sentence. On appeal it was accepted that his Honour indicated that while those conditions were not tantamount to a prison sentence, they were a factor which he would take into account. His Honour also observed: "The conditions of a Criminal Justice Visa are onerous and the offender has not been able to obtain employment nor receive any social security benefits whilst on bail. I accept the submission that the offender is presently impecunious and has relied on the charity of others during his stay in Australia." 35Despite this it was argued that the sentence imposed did not adequately reflect the effect of the visa, which prevented the applicant from leaving Australia, the position of his family, the collapse of his business and the need for him to rely on charity, having been precluded from obtaining employment or receiving social security. 36Again, the Crown contended that there was no substance to this ground and that to the contrary, his Honour had been unduly favourable to the applicant, particularly in the account taken of the matters specified in s 16A(2)(p) of the Crimes Act , which provides: "(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants" 37In R v Hinton [2002] NSWCCA 405; [2002] 134 A Crim R 286 it was observed: "31 It is now clear that the reference in s 16A(2)(p) of the Crimes Act to the "probable effect that any sentence or order under consideration would have on any of the person's family or dependents" should be read as if it were proceeded by the words "in an exceptional case": R v Togias [2001] NSWCCA 522 where many of the relevant cases concerned with the effect on a child of a sentence of imprisonment imposed upon the mother are considered in the judgment of Grove J. But each case will, to a very great degree, depend upon its own facts involving an evaluation of the seriousness of the objective circumstances of the offence committed, the extent of the requirement for general and, perhaps, specific deterrence, and the nature and degree of the impact of the sentence upon the third person. It should be emphasised that the question of whether the probable effect of a sentence upon a third party will give rise to an exceptional case, cannot be considered in isolation from the facts of the particular matter and the degree of criminality involved in the offences for which sentence is to be imposed." 38In R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 it was observed by Spigelman CJ: "13 His Honour approached the sentencing exercise on the basis that hardship to a child had to be classified as "exceptional" before it could be given substantial weight for the purposes of s16A(2)(p). Counsel for both the Appellant and the Respondent in this appeal accepted that his Honour was correct. 14 The necessity for such an "exceptional" effect has long been accepted for sentencing at common law. (See eg R v Edwards (1996) 90 A Crim R 510 per Gleeson CJ at 516-517). 15 The South Australian Court of Criminal Appeal held that legislation in that State to the same effect as s16A(2)(p) did not affect the application of the common law principle ( R v Adami (1989) 51 SASR 229). The Western Australian Court of Criminal Appeal came to the same conclusion with respect to s16A(2)(p) ( R v Sinclair (1990) 51 A Crim R 418 esp at 430-431). This was also the conclusion of the Court of Appeal in Victoria ( R v Matthews (1996) 130 FLR 230 at 233). (See also R v Carmody (1998) 100 A Crim R 41 at 45). 16 Courts of Criminal Appeal in three States have interpreted s16A(2)(p) as not altering the common law. Exceptional hardship is required. It is important that Courts of Criminal Appeal adopt the same approach to the interpretation of national legislation. Some comments by Dunford J appear to express a different view ( R v Caradonna [2000] NSWCCA 398 at [25]). However Gleeson CJ referred to the South Australian and Western Australian decisions without disapproval in Edwards supra at 517. Subsequently to Caradonna , where he had agreed with Dunford J, Wood CJ at CL affirmed the authority of the earlier cases ( R v Ceissman [2001] NSWCCA 73 at [36]). 17 If there is to be any change in this position, and that was not put in this case even on a formal basis, only the High Court can effect it." 39Again, the Crown's submission must be accepted. His Honour expressly accepted the submission that the applicant's family had been unable to visit him since his arrest in October 2009 and that this must have caused hardship and pain to his family, even though there was no evidence led as to the 'probable effect' of the applicant's incarceration on his family, other than what was revealed in the pre-sentence report, where it was noted that he continued to have contact with his wife, but that his family had been unable to visit him in Australia. His Honour also expressly accepted the consequences of the criminal justice visa, which he also took into account. 40That circumstances such as this are matters to be taken into account is well settled (see for example Thi Lan Nguyen v R [2009] NSWCCA 181). Nevertheless, what also must not be overlooked are the observations of Hunt J, with whom Gleeson CJ and Lee CJ at CL agreed, observed in R v Ferrer-Esis (1991) 55 A Crim R 231: "There were a number of subjective facts which the judge took into account. The respondent is incarcerated in a foreign country, living amidst a foreign language and a foreign culture. He is isolated from any outside contact. However, with all due respect to views to the contrary which may have been expressed by others, I do not consider that very much weight should be given to that particular circumstance. The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here (as did the respondent) has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact." 41This is an approach which has been repeatedly followed. While his Honour did not expressly find that the applicant came to Australia for the specific purpose of committing a crime here, his own explanation of the circumstances of his offence, raise considerations of the kind discussed by Hunt J in this case. 42It follows that no basis for the conclusion that his Honour erred in the consideration which he gave to these matters was established. This ground of appeal was also not made out.

Ground 4 - The sentence imposed was too severe having regard to the objective and subjective circumstances of the offence 43It was the applicant's case that the sentence was manifestly excessive in the circumstances. 44The maximum penalty for the offence was 10 years imprisonment and/or a fine of $66,000. The offender was sentenced to a term of 3 years, 1 month with a non-parole period of 1 year, 10 months. He is due to be released on 14 October 2012, when he is likely to be deported. 45No error is revealed by the sentence imposed. On any view the offence was objectively a very serious one, as his Honour correctly concluded, involving a sum of over $400,000. As well as taking the applicant's subjective circumstances into account, both general and specific deterrence had to feature in the sentence imposed, as was accepted in the submissions advanced for the applicant below. 46No error has been shown in his Honour's approach to the relevant objective and subjective matters which arose for consideration. A term of imprisonment was unquestionably required to be imposed. As the Crown submitted, in some respects it is arguable that his Honour's approach was unduly favourable to the applicant in all of the circumstances. In the result, it has not been established that the sentence was manifestly excessive. It has certainly not been shown that the sentence was unreasonable or plainly unjust. 47It follows that this ground of appeal has also not been established.

Orders 48I would propose that leave to appeal be refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2012

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