Bathurst CJ at [1]; Beech-Jones J at [134]; Fagan J at [135]
Decision:
(1) Leave to bring the application for leave to appeal out of time granted.
(2) Leave to appeal granted.
(3) Appeal dismissed.
Catchwords:
CRIME – money laundering – dealing with money suspected of being proceeds of crime – money seized by police on suspicion of being proceeds of the sale of illicit drugs – conspiracy to avoid seized money being forfeited to the Crown
SENTENCING – appeal against sentence – co-offenders – disparity between sentences – whether applicant had a “justifiable sense of grievance” – where the same judge sentenced the co-offenders – where applicant knew the money was illegally obtained – where applicant used his skill and position as a solicitor in furtherance of criminal activity
SENTENCING – aggravating factors – abuse of position – where applicant used his skill and position as a solicitor in furtherance of criminal activity – where applicant breached his professional responsibilities as a solicitor – whether sentencing judge entitled to attribute a high level of responsibility to the applicant
SENTENCING – appeal against sentence – severity – sentence manifestly excessive – aggregate sentence – where applicant placed reliance on comparable cases – consideration of comparable cases
Michael Anthony Croke (Applicant) The Crown (Respondent)
Representation:
Counsel: D Dalton SC (Applicant) M Kumar (Crown) R J Grady (Commissioner of Police)
Solicitors: Kiki Kyriacou Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):
2015/266348
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.
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Details
AGLC
Croke v R [2021] NSWCCA 249
Case
[2021] NSWCCA 249
Decision Date
CaseChat Overview and Summary
The case of Croke v R involved a dispute between the applicant, a solicitor, and the Crown. The applicant was convicted of conspiring to avoid the forfeiture of money suspected to be proceeds of the sale of illicit drugs. The money had been seized by police and was intended to be forfeited to the Crown. The applicant appealed against his sentence, arguing that it was manifestly excessive and that there was a significant disparity between his sentence and that of his co-offenders. The central legal issues revolved around the sentencing considerations, including whether the sentencing judge was entitled to attribute a high level of responsibility to the applicant due to his professional position and the nature of his involvement in the crime.
The court examined whether the applicant's role as a solicitor constituted an abuse of position, warranting a more severe sentence. It considered the applicant's knowledge of the illegal origins of the money, his use of his professional skills in furtherance of criminal activity, and the breach of his professional responsibilities. The court also assessed whether the applicant had a justifiable sense of grievance concerning the disparity in sentencing between him and his co-offenders, and whether the sentence imposed was manifestly excessive in the aggregate.
In delivering the judgment, the court determined that the sentencing judge was justified in attributing a high level of responsibility to the applicant due to his professional position and the manner in which he facilitated the criminal activity. The court found that the sentencing disparity was not unreasonable, as the applicant had a significant role in the conspiracy. The appeal against the severity of the sentence was dismissed, as the court held that the sentence was appropriate given the circumstances. The court concluded that the applicant's sentence, while severe, was not manifestly excessive when considering the totality of his involvement in the criminal activity.
The final orders of the court affirmed the applicant's sentence, dismissing the appeal. The court upheld the sentencing considerations applied by the original sentencing judge, finding that the sentence was proportionate to the applicant's role and the nature of the offence. The appeal against sentence was thus unsuccessful.