Alon Waterman v The Queen - [2016] VSCA 32

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0245

ALON WATERMAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 March 2016
DATE OF JUDGMENT:	8 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 32
JUDGMENT APPEALED FROM:	DPP v Waterman (Unreported, County Court of Victoria, Judge Chettle, 19 November 2015)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Knowingly dealing with proceeds of crime – Sentence of 12 months’ imprisonment – Whether sentencing judge erred in assessing gravity of offending –– Error contended for by applicant not reasonably arguable – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S J Keating	Galbally Rolfe
For the Crown	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

BONGIORNO JA
BEACH JA:

Introduction

On 19 November 2015, the applicant pleaded guilty in the County Court to one charge of knowingly dealing with proceeds of crime (namely, $106,440) contrary to s 194(2) of the Crimes Act 1958. The maximum term of imprisonment for this offence is 15 years. Following a plea hearing, the applicant was sentenced to a term of imprisonment of 12 months.

The applicant seeks leave to appeal against his sentence on the following grounds:

1.The learned sentencing judge erred in assessing the gravity of the offending and applicant’s culpability in respect of it, by finding that the applicant was the organiser of a scheme.

2.        The sentence imposed is manifestly excessive in view of:
(a)       the applicant’s personal circumstances:
(i)        first time offender;
(ii)       early plea of guilty; and
(iii)      age and good prospects for rehabilitation.

(b) the objective seriousness of the offending:
(i)the applicant’s knowledge regarding the proceeds of crime;
(ii)the applicant’s role in dealing with the proceeds lacked planning or sophistication;

(iii) short period of offending.

(c) the availability of a community correction order.

The offending

Between 4 February 2015 and 14 February 2015, the Australian Crime Commission intercepted the applicant’s telephone communications.

On 4 February 2015 the applicant was heard discussing with his mother how to move money out of Australia:

Applicant:‘We will have to think about it, we will see if you can help me or not. To take it out of here, because I don’t know how I am going to do this. I am talking about approximately 90. In dollars,’
Applicant’s mother: ‘I understand. It will be a problem. Well maybe it should stay in the bank and not withdraw it.’
Applicant:‘Yes, but I can’t deposit all at once. I need to deposit in small amounts. I also will look for resolution. This is not Europe that I can fly people over to take it over for me. Every two weeks to deposit 5, I will need to stay here another 6 months to deposit over 90.’

Applicant’s mother: ‘You can send some using Western Union.’
Applicant:‘No, it’s not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alon Waterman v The Queen

Details

AGLC: Alon Waterman v The Queen [2016] VSCA 32
Case: [2016] VSCA 32
Decision Date: 8 March 2016

CaseChat Overview and Summary

The applicant, Alon Waterman, appealed against his sentence in the High Court of Australia. Waterman was convicted of knowingly dealing with the proceeds of crime, for which he was sentenced to 12 months’ imprisonment. He applied for leave to appeal on the basis that the sentencing judge had erred in assessing the gravity of his offending and that the sentence was manifestly excessive. The High Court was required to determine whether the error contended for by Waterman was reasonably arguable and whether the sentence was manifestly excessive.

The High Court found that the error contended for by Waterman was not reasonably arguable. The court held that the sentencing judge had considered the appropriate factors in assessing the gravity of the offending and had not erred in law. The court also held that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offence. The High Court found that there was no reasonable argument that the sentence was manifestly excessive, and therefore, the application for leave to appeal was refused.

The High Court held that the sentencing judge had not erred in assessing the gravity of the offending or in imposing the sentence. The court found that the sentence was not manifestly excessive and that there was no reasonable argument that the sentence was manifestly excessive. Therefore, the application for leave to appeal was refused, and the sentence of 12 months’ imprisonment stood. The High Court’s decision affirmed the importance of the sentencing judge’s discretion in assessing the gravity of offending and imposing an appropriate sentence.

Orders