Arun Kumar v The Queen - [2010] NSWCCA 138

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Arun KUMAR v R [2010] NSWCCA 138

FILE NUMBER(S):
2008/10553

HEARING DATE(S):
16 December 2009

JUDGMENT DATE:
19 August 2010

PARTIES:
Arun KUMAR (Applicant)
REGINA (Respondent Crown)

JUDGMENT OF:
McClellan CJatCL Simpson J Hidden J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/0647, 2008/11/1022

LOWER COURT JUDICIAL OFFICER:
Sweeney DCJ

LOWER COURT DATE OF DECISION:
13 March 2009

COUNSEL:
B Stratton QC with PJ McGrath (Applicant)
L Crowley (Respondent Crown)

SOLICITORS:
George Sten & Co (Applicant)
Commonwealth Director for Public Prosecutions (Respondent Crown)

CATCHWORDS:
CRIMINAL LAW
sentence
money laundering and other offences arising out of identity fraud scheme
whether discount should have been allowed for assistance to authorities
whether sentence on money laundering count manifestly excessive

LEGISLATION CITED:
Criminal Code Act 1995 (Cth)
Passports Act 1938 (Cth)
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth)
Financial Transaction Reports Act 1998 (Cth)
Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
R v Louis Sukkar [2005] NSWCCA 55
R v Gallagher (1991) 23 NSWLR 220
R v Chu (NSWCCA, unreported, 16 October 1998)
Alchikh v R [2007] NSWCCA 345
Assafiri v R [2007] NSWCCA 159
Du Randt v R [2008] NSWCCA 121
R v Viana [2008] NSWCCA 188
R v Z [2006] NSWCCA 342, 167 A Crim R 436
R v Ansari [2007] NSWCCA 204, 70 NSWLR 89
R v Van Dang Tran [2007] NSWDC 310
R v Huang and Siu [2007] NSWCCA 259, 174 A Crim R 370

TEXTS CITED:

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/10553
McClellan CJ at CL
Simpson J
Hidden J
Thursday 19 August 2010

Arun KUMAR v R

Judgment

McCLELLAN CJ at CL: I agree with Hidden J.
SIMPSON J: I agree with Hidden J.
HIDDEN J: The applicant, Arun Kumar, pleaded guilty in the District Court to an indictment containing twenty counts, representing his involvement in an extensive identity fraud scheme. Most were Commonwealth offences, but there were also some State offences. They were as follows:
Count 1: Money laundering, that is, dealing with money, intending that it would become an instrument of crime, contrary to s 400.4(1) of the Criminal Code Act 1995 (Cth);
Counts 2 – 3: Two offences of possessing a false passport, contrary to s 9A of the Passports Act 1938 (Cth);
Counts 4 – 13: Ten offences of using a false foreign passport as an identity document, contrary to s 22(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth);
Counts 14 – 17: Four offences of opening an account with a cash dealer in a false name, contrary to s 24 of the Financial Transaction Reports Act 1998 (Cth). In sentencing for count 14, four further offences under the same provision and another of attempting such an offence were taken into account under s 16BA of the Crimes Act 1914 (Cth);
Count 18: Using a false instrument, contrary to s 301(2) of the Crimes Act 1900 (NSW);
Count 19: Attempting to obtain a financial advantage by deception, contrary to ss 178BA and 344 of the Crimes Act (NSW);
Count 20: Having custody of an implement adapted for the purpose of making false instruments, contrary to s 302A of the Crimes Act (NSW).
For all the offences other than count 1, the applicant was sentenced to fixed terms of imprisonment ranging from 6 months to 1 year and 9 months, all dating from 28 March 2008. On count 1, he was sentenced to imprisonment for 4 ½ years, with a non-parole period of 2 years and 9 months, to date from 28 March 2009. The aggregate sentence, then, was imprisonment for 5 ½ years with an effective non-parole period of 3 years and 9 months. He seeks leave to appeal against sentence, the focus of the application being the sentence for the first count and the aggregate sentence.
The applicant and his wife were involved in the identity fraud scheme. Both were sentenced by the same judge on the same occasion. His wife was sentenced to a lesser aggregate term, but the disposition of her case has no bearing upon the present application.
Facts
At this stage a brief overview of the scheme, and the applicant’s involvement in it, will suffice. It will be necessary later to examine more closely the facts giving rise to the first count.
In 2008, Federal and State law enforcement authorities were investigating a Pakistani/Indian syndicate, based in Sydney, which was involved in the manufacture of false identities and the later use of those identities to open and operate bank accounts in false names for fraudulent purposes. In general terms, the syndicate’s methodology was as follows:
Firstly, false foreign travel documents, such as passports or visas, false tenancy agreements, false payslips and pay advices and other false documents would be created.
Secondly, members of the syndicate would attend various branches of the Roads and Traffic Authority and use false documentation to obtain driver licences in false identities.
Thirdly, those false identities were used to open bank savings accounts, which were then “operated” so as to build up a credit rating. After a period of time applications would then be made for credit or loans.
Finally, credit or loan funds having been approved, those facilities would be used to obtain money or goods. No repayments would be made, the accounts would be left to fall into default, and the defrauded financial institutions would recover nothing.
A considerable number of individuals performed a variety of tasks in what was an extensive fraudulent scheme. The structure of the syndicate was hierarchical. Its head, identified as Mohammed Shoaib Hanif, was known as “the Chief”. Others performed the following roles:
identity manufacturers;
accounts, information and bookkeepers;
supervisors, who were advisors and trainers of the runners;
runners, who lodged the fraudulent applications.
In 2002, and between 2006 and 2008, the applicant carried out a number of tasks for the syndicate. These included:
attending RTA branches to obtain driver licences in false names;
opening, operating and maintaining bank accounts with various financial institutions;
maintaining and storing information and equipment obtained and used by the syndicate;
attempting to obtain loan funds from a financial institution.
The applicant was arrested on 28 March 2008 at Sydney International Airport, as he was about to travel to his native India with his wife and family. He was found to be in possession of $126,500, which he had not declared as cash which he was taking out of the country. It is this which gave rise to the first count. He remained in custody from his arrest until he was sentenced.

At the sentence proceedings the applicant gave evidence, not all of which was accepted by the sentencing judge. However, her Honour did accept that he and his wife became involved in the criminal enterprise because they were in financial difficulty following a series of failed business ventures. He gave evidence of certain conduct by Hanif which, he said, led him to feel compelled to commit the offences. It is unnecessary to recite that evidence; it is sufficient to say that her Honour found it unworthy of belief.
Her Honour found no evidence that the applicant and his wife were enriched by their participation, accepting that the he received payments totalling $5,000 in 2002 and approximately $18,000 in the period from 2006 to 2008, including the provision of household appliances and money for food and living expenses. These amounts were paid in instalments over those periods. For the money laundering, the subject of count 1, he was to receive $10,000.
At the end of 2002, the applicant and the family returned to India. They came back to Australia in 2005, and he and his wife resumed offending early in the following year. The applicant gave evidence that Hanif pressured him to do so, saying that he had harmed people who crossed him. Her Honour accepted that the applicant felt concerned for the safety of his wife and children. In addition, the applicant’s wife obtained employment in a restaurant owned by Hanif and the family needed her earnings. In the circumstances, her Honour accepted that he and his wife felt trapped in the situation in which they had involved themselves. Nevertheless, her Honour concluded that the applicant’s participation in the offences was a result of his poor financial circumstances, and was not persuaded that he began committing the offences and continued to do so after his return to Australia only because of pressure from Hanif.
In assessing the objective gravity of the offences, her Honour noted that the applicant had involved himself in organised criminal activity over a lengthy period of time. His wife was subordinate to him and acted according to his directions. Her Honour found his role to be more than that of a “runner” because of the additional duties he performed.
Subjective case
The applicant was 42 years old at the time of sentence and is now 43. He has two sons, still of school age. They have been in the care of his parents in India. His parents do not enjoy good health and, as one would expect, the boys have been anxious and experiencing behavioural problems.
Her Honour found him to be remorseful, although she considered that remorse to be “qualified a little” by his insistence that he and his wife were pressured to commit the offences, which she did not accept. He had pleaded guilty in the Local Court, and her Honour allowed him a 25% discount of sentence for all charges.
After his arrest he had offered to assist the authorities in the investigation, a matter to which I shall return. Her Honour accepted that for that reason he had been in protective custody and was likely to remain so. There was evidence, which her Honour accepted, of threats being made against his children and his family, and a police officer who gave evidence expressed the opinion that Hanif was a person of influence and power both in this country and overseas.
The applicant also gave evidence, again accepted by her Honour, that he had been visited in custody by associates of Hanif, who said things which could be interpreted as veiled threats relating to assistance which he might be perceived to have given. For his protected status her Honour allowed a further discount of sentence on all charges of 10%.
The application
Mr Bruce Stratton QC, who appeared with Mr McGrath for the applicant, argued the application on two bases: that her Honour erred in declining to allow any discount of sentence for the applicant’s assistance to the authorities and that, in any event, the sentence for the first count is manifestly excessive.
Assistance
Following his arrest, the applicant participated in an electronically recorded interview with police in which he made admissions of his involvement in the offences. He also provided information concerning the activities of Hanif and other persons involved in the scheme. He was registered as a New South Wales Police informant. Over several subsequent months, he attended nine further interviews with Australian Federal Police officers for the purpose of preparing a draft induced statement.
However, towards the end of July 2008 the applicant cancelled a further meeting and, although an induced statement was prepared, he did not sign it. Shortly thereafter, his then solicitor informed the Commonwealth Director of Public Prosecutions that he would not continue assisting police unless certain demands were met. These included the immediate release from custody of his wife and himself and “a formal determination” that the time they had been in custody “be in full satisfaction” of the charges then before the Court. Subsequently, he engaged his present solicitor who, in September 2008, sought to revisit the question of assistance and conveyed the applicant’s preparedness to complete and sign an induced statement. However, the Australian Federal Police had decided by then that his assistance was not required and had notified the solicitor of that decision a few days previously.
On this issue, her Honour received evidence from Federal Agent Adam Marsden and Detective Sergeant Matthew Sturton (New South Wales Police), who were involved in the investigation, and Sergeant Damien Stewart of the Federal Police, who was not involved in the investigation but who assessed the value of the assistance proffered by the applicant. From that evidence her Honour made the following findings:
The applicant did not sign an induced statement and gave no undertaking to give evidence against anyone.
Most of the information he supplied was already known to the police, and was predominantly corroborative of other material. It was of limited intelligence value only. It was assessed by Sergeant Stewart as of “nil value” to the investigating police, and no-one had been charged as a result of it.
The applicant’s information about his own participation in the scheme was not reliable, in that he had understated his role in the criminal activity and had not been truthful about the circumstances of his first contact with Hanif.
Hanif had been arrested, and the applicant had been considered as a corroborative witness in what was, in any event, a strong case against him. However, police decided not to use the applicant as a witness because he had not been truthful about his own involvement, and there were other witnesses available whose evidence was significantly more powerful and accurate. In addition, police were conscious of the applicant’s concern about his own safety and that of this family in India, particularly his children, whom they could not protect.
Her Honour also noted the applicant’s demands, through his former solicitor, as a condition of his continued assistance: demands which she found, of course, to be unreasonable and such as could not properly have been acceded to by the police. She expressed her conclusion on the question of assistance in this way:
“The police decided not to use Mr Kumar as a witness but he also withdrew his assistance. Of great significance is the assessment that the information Mr Kumar provided was not honest and accurate. When he gave evidence here, I formed the view he generally did so to his own advantage, rather than frankly, and so I accepted the police assessment. In the event Mr Kumar’s proffered assistance, to the extent he gave it, was assessed as of no value to the police. Therefore he is not entitled to any discount.”
In arriving at that conclusion, her Honour referred to R v Louis Sukkar [2005] NSWCCA 55, in which Bryson JA, with whom Barr and Hoeben JJ agreed, considered a ground of an application for leave to appeal against sentence that the applicant had received an inadequate discount for assistance at [43] ff. At [50] – [51], Bryson JA referred to the examination of this issue by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 226 – 230, and by Spigelman CJ in R v Chu (NSWCCA, unreported, 16 October 1998). His Honour continued at [52] – [53]:
”52 To my mind there is a distinction of some significance between assistance actually given to prosecuting authorities, and assistance which an offender was willing to give to prosecuting authorities, but did not give because the authorities did not regard it as useful, or because some other reason or circumstances defeated the giving of assistance. The cases of which Spigelman CJ spoke, in which discounts in the range of twenty to fifty percent have been given, are cases where assistance actually was given. Assistance which an offender wishes to give, but the prosecuting authorities do not feel that they should accept, does not have the same claim for discretionary allowance of a discount. It was, in my view, relevant and appropriate for the applicant to give evidence of circumstances which defeated his readiness to give assistance, but no examination by the Court of those circumstances can elevate the assistance which in his concept he was ready to give to the same claim for discount as assistance which was actually rendered, perhaps in the form of participating in entrapment of other offenders, perhaps in the form of giving evidence in Court and standing challenge on it, or in other ways. An offer which actually goes through the fire of a trial has a far stronger claim than assistance which an offender was prepared to but was not called upon to give.
53 A claim for a discount for an offer of assistance necessarily requires an assessment to be made of the practical value of the assistance; if it had no practical value, or relatively little practical value, that must have an impact on its significance, although it leaves the offer of assistance under consideration as an indication of contrition.”
Her Honour also referred to Alchikh v R [2007] NSWCCA 345, another case in which complaint was made about the adequacy of a discount for assistance. Handley AJA, with whom Hulme and Hall JJ agreed, said at [25]:
“The discount allowed for assistance to the authorities is for assistance that is accepted and used by them. The value of that assistance, and the discount to be allowed, are to be determined on objective and pragmatic grounds. If the authorities reject the proffered assistance, and it is not used, the prisoner will have given no assistance in the result and will not be entitled to any discount on that basis. In such a case the prisoner may be entitled to a greater discount for his plea of guilty but only if a sentencing Judge is able to find on the civil onus that his proffered assistance was honest and truthful.”
Mr Stratton submitted that there was some other evidence to which her Honour did not refer, on the basis of which more favourable findings of fact could reasonably have been made. Detective Sergeant Sturton said that included in the information provided by the applicant were “slight bits” which were new, were worth looking at and were followed up by police. Sergeant Stewart said that information from the applicant led to certain premises being searched a second time, whereupon some useful information and documents were found. Mr Stratton also noted that it was only part of the applicant’s information concerning his own involvement which police found to be inaccurate or untruthful. Finally, he pointed out that her Honour referred to the applicant’s threat to withdraw his assistance unless certain conditions were met, but not to the renewal of his offer of assistance after he engaged his new solicitor.
As to the “slight bits” of information referred to by Detective Sergeant Sturton, it is clear from that description that the information was of little value. As to the second search of premises described by Sergeant Stewart, those premises were a storage unit rented by the applicant and such information that was obtained related only to his own involvement. None of this material led to the apprehension of anyone else involved in the scheme, and it did not call into question the police assessment of the value of the applicant’s information which her Honour accepted.
It was not suggested that the whole of the applicant’s account of his involvement in the offences was unreliable. However, insofar as it was, that would tend to taint the other information he provided and affect his credibility if he were called as a witness. As to the renewal of his offer of assistance, I have noted that police had already decided that he would not be used as a witness, principally because of their poor assessment of the value of the information he had provided.
Generally, Mr Stratton submitted that, limited as the applicant’s assistance might have been, it was worthy of some discount over and above the 10% allowed for his being on protection. He referred to s 16A(2)(h) of the Crimes Act (Cth), which requires a court to take into account when sentencing a person “the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences”. Mr Stratton pointed out that the applicant had co-operated in relation to “other offences” in that his information extended beyond his own involvement to that of others.

In relation to the State offences, Mr Stratton referred to s 23(1) of the Crimes (Sentencing Procedure) Act 1999, which provides that a court may impose a lesser penalty than it otherwise would on an offender, “having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence”.
Subsection (2) of that section requires a court to consider a number of matters, ten in all, in determining whether a lesser penalty should be imposed on that basis. They include:
“(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered …”
Mr Stratton noted that that was but one of a number of matters to be considered.
In response, the Crown prosecutor pointed out that the usefulness of assistance provided by an offender remains an important matter in determining whether a sentence should be discounted and, if so, to what extent. The Commonwealth provision is expressed in broader terms than the State provision. The Crown prosecutor submitted that in a case such as the present the considerations to be found in s 23 of the Crimes (Sentencing Procedure) Act would apply to the exercise of the discretion under s 16A(2)(h). That may well be so, although the scope of the Commonwealth provision was not argued before us and this is not the occasion to make any pronouncement about it.
Mr Stratton observed that in Sukkar the issue was the adequacy of a discount allowed for assistance, not whether any should have been allowed at all. The same is true of Alchikh. In Sukkar the trial judge had allowed a discount of 10% for the assistance, finding that it was not negligible and that there was a willingness to assist authorities: [43].
On the other hand, the Crown prosecutor referred us to Assafiri v R [2007] NSWCCA 159, in which the complaint was that the trial judge refused any discount for the applicant’s assistance: see the judgment of Howie J, with whom Basten JA and Grove J agreed, at [20] ff. Howie J noted that the proffered assistance in that case was late and was of little practical benefit to investigating police. At [23], his Honour described the effectiveness of the assistance as “minimal” and expressed the view that it was open to the judge to decide that no discount should be given because of this. His Honour said, “Although the attempt made to assist the police is one of the matters to be considered, so is the effectiveness of the assistance and its benefit to the authorities …” He concluded that, while another judge might have allowed the applicant a small discount, it was in the discretion of the sentencing judge to withhold one.
That was the course which her Honour took in the present case after an examination of the relevant material. The matter called for a discretionary judgment, and no error in the exercise of that discretion has been established. It is also to be remembered that her Honour allowed the applicant a discount of 25% for his early plea of guilty and a further discount of 10% for his protected status, a total of 35%. It is not uncommon for sentencing judges to allow a combined discount of that order for a plea of guilty and assistance, and the applicant cannot complain that he was not afforded a greater reduction.
This ground is not made out.
Count 1
As noted above, the first count is brought under s 400.4(1) of the Code, creating the offence of dealing with money or other property, of a value of $100,000 or more, which is the proceeds of crime and is believed to be such by the offender, or which the offender intends will become an instrument of crime. The offence here was dealing with the money intending it to become an instrument of crime. It carries a maximum sentence of 20 years imprisonment.
In sentencing for that count, her Honour’s starting point was 7 years. After discounting that term by 25% for the plea of guilty and 10% for protection, the term was reduced to a little over 4 years and 8 months. Her Honour rounded this down to 4 ½ years. The non-parole period of 2 years and 9 months is roughly 60% of that sentence, a proportion within the range which is customary for Commonwealth offences.
As I have said, on 28 March 2008 the applicant was in possession of an undeclared sum of $126,500 in cash as he and his family were about to leave Sydney for India. The money was concealed by being distributed among two of the family’s travel bags and the clothing of the applicant’s wife and children. The money was not his. He had been given it by Hanif for delivery to an associate of that gentleman in India. As I have also said, his reward for carrying out this task was to be $10,000.
He knew that the money was the product of Hanif’s illegal activities, although he did not know how it was to be used in India. Because he was aware that the money was the product of the criminal conduct in which he himself had been involved, and for that reason had been entrusted with its delivery by Hanif, her Honour described his role as “slightly more than a simple courier”. Her Honour also noted that the amount involved was just over the threshold of $100,000. She assessed the offence as falling “in the low range, although not in the lowest range …”.
Mr Stratton’s submission was that the starting point of 7 years was excessive, given the amount of money involved. In support of that argument, he referred to a number of decisions of this Court.
In Du Randt v R [2008] NSWCCA 121, the applicant had been dealt with for an offence under s 400.4(2) of the Code of dealing with money in excess of $100,000 which was the proceeds of crime, being reckless to the fact that it was the proceeds of crime. That offence carries a maximum sentence of 10 years imprisonment. The applicant was a courier, and the amount involved was $250,000. Her appeal was allowed on the basis that inadequate weight had been given to her mental health as a factor relevant to sentence, and the Court imposed a sentence of 2 ½ years, with release on recognizance after 1 ½ years.
The next three cases involved offences under s 400.3(2) of the Code of dealing with money to the value of $1,000,000 or more that was the proceeds of crime, being reckless as to the risk that that money was the proceeds of crime or that it could become an instrument of crime. That offence carries a maximum sentence of 12 years imprisonment.
R v Viana [2008] NSWCCA 188 was a Crown appeal against a sentence of 4 ½ years with a non-parole period of 2 years and 11 months. The respondent had dealt over a period with money totalling about $5,000,000. It was the proceeds of the supply of cocaine, but there was no evidence that he knew its precise source. He was found to be more than a mere courier, but was acting at the behest of his father and did not personally benefit from the enterprise. He was an American citizen, who not only pleaded guilty but agreed to his extradition from the United States to face the charge in this country. The Crown appeal was dismissed, the Court noting that the sentence was lenient but in the circumstances was at the lowest end of the appropriate range available.
R v Z [2006] NSWCCA 342, 167 A Crim R 436 was also a Crown appeal. The respondent had been sentenced to imprisonment for 5 years and 2 months, with a non-parole period 2 years and 7 months, for possessing a prohibited import, being a quantity of ecstasy tablets. For the money laundering offence he had been sentenced to a concurrent fixed term of imprisonment for 2 years. The amount involved in that offence was about $2,000,000. It is unnecessary to examine the issues which arose in the case. It is sufficient to say that the Crown appeal was allowed and the Court increased the sentence for the drug offence. The fixed term for the money laundering offence was not disturbed. Delivering the leading judgment, Beazley JA said that that offence would have attracted a head sentence of 7 years imprisonment, but noted that any fixed term would be arrived at by reference to the non-parole period which that sentence would normally carry and that, in the case at hand, that period itself would require significant reduction because of the respondent’s plea of guilty and assistance to the authorities: [94] – [97].
The related case of R v Ansari [2007] NSWCCA 204, 70 NSWLR 89 was yet another Crown appeal. The two respondents had been found guilty at trial of two counts of conspiring to commit an offence under s 400.3(2). The first offence involved $2,000,000 and the second offence, it seems, would have involved a similar amount. Each had been sentenced to terms of imprisonment aggregating 4 ½ years with a non-parole period of 2 years and 9 months. The Crown appeal was allowed, and on each count the respondents were sentenced to imprisonment for 7 years. The sentences were accumulated by 2 years, so as to produce an aggregate term of 9 years. A non-parole period of 5 years and 5 months was fixed. The sentences were arrived at in the exercise of the restraint which was then required when re-sentencing in a successful Crown appeal. Howie J, with whom Simpson and Hislop JJ agreed, said that for each count a sentence of at least 9 years would have been appropriate at first instance: [148].
Mr Stratton also referred us to the sentence of Norrish DCJ in R v Van Dang Tran [2007] NSWDC 310, another case under s 400.3(2). In that case the amount involved totalled approximately $6,500,000. Norrish DCJ determined a starting point of imprisonment for 8 years which, after reductions for an early plea of guilty and a significant measure of assistance to the authorities, was reduced to 4 ½ years with a non-parole period of 2 ½ years.
Mr Stratton argued that from these cases it can be seen that the applicant’s sentence is manifestly excessive. He noted that all of them involved sums of money much larger than in the present case, yet those offenders were dealt with more leniently or, in practical terms, no more harshly than the applicant. The obvious difficulty with that argument is that each of those cases was dealing with a different offence from the applicant’s, an offence involving a less culpable mental state and carrying a significantly lower maximum sentence. There does not emerge from those cases a pattern of sentence against which the severity of the sentence in the present case could fairly be measured.
The Crown prosecutor referred us to the Crown appeals in R v Huang and Siu [2007] NSWCCA 259, 174 A Crim R 370. Huang had been dealt with for dealing with money, to the value of $1,000,000 or more, intending that it become an instrument of crime, an offence under s 400.3(1) of the Code which carries a maximum sentence of 25 years imprisonment. Siu’s offence was the same as the present applicant’s. In total, Huang had dealt with an amount in excess of $3,000,000, and Siu an amount in excess of $550,000. Lenient sentences had been imposed at first instance after substantial reductions for the respondents’ pleas of guilty and their assistance to authorities. The Crown appeals were allowed. Again, the Court exercised restraint in re-sentencing the respondents, and each of them retained the benefit of a substantial reduction of sentence for his plea of guilty and his assistance. In Huang’s case, the Court’s starting point was 11 years, although it was said that at first instance a starting point of between 12 and 14 years would have been appropriate. After discounting, a sentence of 5 ½ years with a non-parole period of 3 years and 4 months was imposed. In Siu’s case, the starting point was 8 years, the Court expressing the opinion that at first instance it should have been between 9 and 11 years. In his case, after discounting, a sentence of 5 years with a non-parole period of 2 ½ years was imposed.
The Crown prosecutor put forward HuangandSiu as a better case for comparison, and for determining the appropriate range of sentence in the present case. I would hesitate to use it in that way and, for that reason, I find it unnecessary to examine it more closely. The fact remains that I am not persuaded that her Honour’s starting point of 7 years in the present case was excessive.
True it is that the money the applicant carried was not much above the statutory threshold. Nevertheless, her Honour’s finding that he was more than a mere courier because of his involvement in the criminal activity that gave rise to the funds is significant. The sentence arrived at, after the discounts which her Honour determined, was within the boundaries of a proper exercise of discretion. Moreover, it is not to be forgotten that that sentence was accumulated upon the sentences for the other counts to the extent only of 1 year, yielding an aggregate sentence which was appropriate to reflect the whole of the applicant’s criminality.
Conclusion
I would grant leave to appeal but dismiss the appeal. After judgment was reserved, the applicant forwarded to the Registrar additional material concerning his co-operation with an Independent Commission Against Corruption inquiry. It is apparent that this relates to events occurring after the present sentences were passed, and could have been received only in the event of re-sentence. As I would dismiss the appeal, I do not find it necessary to evaluate that material.
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LAST UPDATED:
19 August 2010