Alon Waterman v The Queen
[2016] VSCA 32
•8 March 2016
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 good. Because all the ways that require a name, I need to find people to send it. I can’t have my name as sender 5 times. It will raise questions.’
On 10 February 2015 the applicant was told by an unknown female where to locate a black suitcase containing money:
Applicant:‘I am outside the house.’
Unknown female: ‘There is a key in the door. Open the door and get in my room, second door on the right. Get in. In the closet, if you open it, there is a black suitcase. Inside the suitcase there is a black bag with all the money inside.’
Applicant:‘Okay, and tell me, how much is in there except for what I gave you.’
Unknown female: ‘Except for what you gave there is 23.5, sorry, 22.5. So in total 66.5.’
Applicant:‘I will return the bag.’
Unknown female: ‘The bag is not important. I received it with money. You can keep it. Thanks sweetheart.’
On 14 February 2015 the applicant was heard discussing the arrest of other Israeli citizens with an unknown male.
Applicant:‘I heard today, I don’t know them really, but there is a festival that I didn’t go to and some Israelis were arrested on their way there. I panicked do I digged (sic) a huge hole in the garden. I buried it until our friend gets back in a few days.’
Unknown male: ‘I know that the price for a thing like this now is about fifty thousand greens or so.’
Applicant:‘I am here alone and will finish here with one hundred, maybe a bit less. So it will give us some air.’
On 26 February 2015, at approximately 7:45am, police executed a search warrant at premises at which the applicant was sleeping. The applicant told police that he lived at the address. During a search of the applicant’s bedroom, police located and seized $1,000 cash in the red and blue backpack on the shelf in the wardrobe; $1,950 cash in a zip lock bag in a brown backpack located on the floor; $36,990 cash in the same brown backpack; and a Visa debit card in the name of the applicant.
In a black satchel bag in a hallway cupboard at the premises, police located $66,500 cash. A total of $106,440 cash in Australian currency of various denominations was seized. Later that day the applicant was interviewed by police and made a ‘no comment’ record of interview.
The applicant’s background
The applicant was 32 years of age at the time of sentence. He was born in Adelaide, but is an Israeli citizen as well as being an Australian citizen.
The applicant has no prior or subsequent convictions. He grew up in a Kibbutz in the Golan Heights, and was educated to a Year 12 level in Israel before performing a year of non-military service. The applicant’s employment has included the selling of various products and travelling throughout the United States promoting those products, before returning to Israel.
The applicant came to Australia briefly in 2008, before returning again to Israel. He came back to Australia in late 2014, and was living in the premises where the offence, to which he pleaded guilty, was committed.
The judge’s reasons for sentence
The judge commenced his reasons for sentence by referring to the circumstances of the applicant’s offending. The judge noted that the applicant had no prior convictions and no subsequent convictions, before setting out a description of the applicant’s background.[1]
[1]DPP v Waterman (Unreported, County Court of Victoria, Judge Chettle, 19 November 2015). (‘Reasons’) [4]–[19].
There was debate on the plea about the extent of the applicant’s involvement in the criminal conduct to which he had pleaded guilty. The judge dealt with this debate as follows:
[In submissions, your counsel asserted] that your involvement in this offending arose out of one of your housemates offering you a commission to deal with the money.
It was asserted that you were not an organiser of the scheme, nor was it your project. It was asserted that the scheme was arranged by others and your role was simply to pick up and facilitate the movement of the money.
I made it clear [to your counsel] that I reject that assertion. There is no evidence to support it. In my view, it is contrary to the contents of the telephone calls that are contained in [the prosecution summary] to which I have already referred. As [your counsel] conceded, there is no evidence to support the assertions that you make.[2]
[2]Reasons [13]–[15].
The judge dealt with the issue of remorse and prospects for rehabilitation as follows:
I treat your plea of guilty as evidence of some remorse and that was asserted to (sic) by the witnesses who gave evidence that you have demonstrated remorse for your conduct in the time since your release on bail. That release on bail saw you released with relatively strict conditions. You were reporting regularly. In fact, I was told on a daily basis up until recent times. That was an imposition that you complied with.
I accept the absence of convictions is combined with your plea of guilty and the evidence that I have heard today that you have good prospects for rehabilitation.[3]
[3]Ibid [20]–[21].
Next, the judge dealt with a submission made by the applicant’s counsel that a community correction order could be imposed. In the course of dealing with this submission, the judge referred to and discussed this Court’s decision in Boulton v The Queen.[4]
[4][2014] VSCA 342 (‘Boulton’).
The judge rejected the applicant’s counsel’s submission that a community correction order was appropriate. The judge concluded that the nature of the applicant’s offending left no other alternative but the imposition of a term of imprisonment. In coming to this conclusion, the judge said:
Your conduct represents organised criminal behaviour calculated to take the profits of criminal activity from this country. You were dealing with significant profits of a drug related criminal enterprise. You knew what it was and what you were doing was illegal and effectively, you were gambling that you could conceal your activities from the Australian Authorities.
So often these courts deal with those at the bottom of the criminal community, particularly in the drug regime. You represent one of the rare defendants who are towards the top of that milieu. You did not apparently use drugs yourself, but you knowingly chose to financially gain from criminal conduct.
The calls set out in the prosecution opening make it clear that you were going to recycle the funds in part in further conduct in the future. You were not, as was asserted, a mere courier.
You could have explained your involvement in this offending to me. You did not nor did you have to, but I reject the assertions made from the Bar table by [your counsel] as to your role.[5]
[5]Ibid [33]–[36].
Ground 1: the gravity of the offending
In ground 1, the applicant makes complaint that the judge erred in assessing the gravity of his offending (and his culpability in respect of it) by finding that the applicant was ‘the organiser of a scheme’. In fact, the judge rejected an assertion by the applicant’s counsel, made from the Bar table, that the applicant was not the organiser of the scheme. The judge, as he foreshadowed during the plea, said that he was not prepared to accept this assertion, made by the applicant’s counsel, without evidence. The judge was entitled to take this position. To the extent that the applicant wanted the judge to rely upon some mitigatory factor or element when sentencing the applicant, the judge was entitled to require more than a mere assertion of fact from the Bar table.
Further, we see no error with the judge’s description of the applicant’s involvement in the offending for which the applicant had pleaded guilty. The applicant’s references in his telephone conversations to flying people over and to finding people to send the money to was well capable of supporting the conclusions made by the judge as to the level of the applicant’s involvement in this offending. Ground 1 is without merit.
Ground 2: manifest excess
In ground 2, the applicant asserts that the sentence imposed on him was manifestly excessive. Seven matters are relied upon:
(a) the applicant is a first time offender;
(b) the applicant’s ‘early plea of guilty’;
(c) the applicant’s age and good prospects for rehabilitation;
(d) the applicant’s knowledge regarding the proceeds of crime;
(e) the applicant’s role in dealing with the proceeds was said to lack planning or sophistication;
(f) the short period of the offending; and
(g) the availability of a community correction order.
It may be accepted that the applicant is a first time offender, of 32 years of age, with good prospects for rehabilitation, who pleaded guilty at a contested committal in August 2015.
The question of whether the applicant’s role in the offending lacked planning or sophistication may be debated. What cannot be debated is that the applicant’s conduct involved serious criminal offending. We see no error in the judge’s description of the applicant’s conduct as representing organised criminal behaviour calculated to take the profits of criminal activity (a drug related criminal enterprise) out of the country.
While a community correction order may have been open in this case, the judge was not required to grant such a disposition. Having regard to the objective seriousness of the applicant’s offending (and notwithstanding all of the matters relied upon by the applicant), it was open to the judge to determine that a term of imprisonment was required in this case.[6]
[6]Cf s 5(4C) of the Sentencing Act 1991.
As has been said many times before manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence is wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[7] The short answer in the present case is that it is not reasonably arguable in the circumstances of this case that the sentence imposed by the judge (12 months’ imprisonment) was wholly outside the range of sentencing options open to his Honour. Ground 2, like ground 1 is not reasonably arguable and must be rejected.
[7]R v Abbott (2007) 170 A Crim R 306.
Conclusion
The application for leave to appeal is refused.
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