Director of Public Prosecutions v John Anile
[2020] VCC 82
•11 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01750
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JOHN ANILE |
---
JUDGE: | His Honour Judge O’Connell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 & 24 October 2019 | |
DATE OF SENTENCE: | 11 February 2020 | |
CASE MAY BE CITED AS: | DPP v John Anile | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 82 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Money laundering; Plea of guilty following successful conviction appeal; $400,000 cash derived from the commission of a serious offence; Status as solicitor as aggravating factor; Serious example of offence; Moral culpability assessed as high; General deterrence; Late plea but of significant utilitarian value; Previous good character with considerable contribution to the community; Loss of profession, reputation and livelihood; Principle of double jeopardy.
Legislation Cited: Confiscation Act 1997; Sentencing Act 1991.
Cases Cited:R v Lustig [2004] VSC 483; R v Ferguson [2006] VSCA 183; Majeed v The Queen [2013] VSCA 40; R v Van Loi Nguyen [2010] NSWCCA 226; DPP v Bulfin [1998] 4 VR 114; Stalio v The Queen (2012) 46 VR 426; R v Phillips [2012] VSCA 140; Bui v DPP (Cth) (2012) 244 CLR 638.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | D. Hannan | Office of Public Prosecutions |
| For the Defendant | D. Brustman QC with J. Mortley | May Monagle Lawyers |
HIS HONOUR:
Introduction
1 John Anile, you have pleaded guilty to one charge that between 9 August 1994 and 9 August 1995 you engaged in money laundering, by engaging in a transaction being the purchase of the property at Lot 197 Kororoit Creek Road, Williamstown that involved $400,000 in cash which you knew or believed, was derived or realised as a result of the commission of a serious offence.
2 The offence is punishable by maximum term of imprisonment of 10 years.
3 The essence of your offending involved the payment of $400,000 in cash, provided by a person known as Pasquale ‘Percy’ Lanciana, that was paid ‘under the table’ to the vendors for the purchase of the land at Kororoit Creek Road (‘KCR’) which was the subject of this charge.
4 In the time leading up to the commission of this offence, you had formed a close friendship with Mr Lanciana and became partners with him in the purchase and proposed development. You hoped to gain a significant profit from doing so. At the time the $400,000 in cash was paid to the vendors you knew or believed that cash was derived from the commission of a serious offence.
Summary of offending – the purchase of KCR
5 Mr Hannan, who appeared on behalf of the prosecution, relied upon a summary of prosecution opening for plea which detailed the circumstances associated with your offending. That summary was accepted by Mr Brustman QC who appeared on your behalf with Mr Mortley. The factual basis for sentence that I will now set out is based on that summary.
6 In 1994, you were a registered, practising solicitor and the director of John Anile Pty Ltd. You operated your own firm out of an address at 102 Ferguson Street, Williamstown. You were also the director and shareholder of a company known as Anile Residential Pty Ltd.
7 The KCR property was a vacant block of land owned by Michael and Loukis Georgiou through a company known as Larnaca Holdings Pty Ltd in which they were equal partners.
8 On 9 August 1994, you signed a contract of sale of real estate for the purchase of the KCR property. The purchase price was $555,000 which comprised of a deposit of $5000 and the balance of $550,000 which was to be due and payable on 9 August 1995, or earlier by agreement.
9 In negotiating the purchase, you offered the Georgiou brothers a $400,000 cash payment in addition to the stated purchase price on the contract. The property was to be settled within 12 months during which the hidden cash payment was to be paid in instalments. That hidden cash payment was designed to launder the $400,000 to be provided by Mr Lanciana.
10 At your previous trial of these allegations in 2017, the Georgiou brothers gave evidence that a number of instalments were paid in cash and that as each cash payment was received, the purchase price was correspondingly reduced until $550,000 was owed.
11 About 11 months after the contract was signed, you settled the purchase of the property. On that same day, 4 July 1995, a conveyancing clerk in your employ, Lyndall Weir, submitted, on your instructions, a property enquiry application form relating to the KCR property to the relevant authorities. The sale price recorded on that form was $950,000.
12 On 5 July 1995, a plan of subdivision of the land was authorised by a representative of the Hobsons Bay Council. You then sold some lots of the plan to facilitate the payment to Larnaca Pty Ltd of the sale price of $555,000. On 18 July 1995, the plan of subdivision was registered with the Land Titles Office.
13 After the purchase of the land at KCR you acted for Mr Lanciana in criminal proceedings where he was charged with cultivating cannabis for which he was imprisoned.
14 On 9 April 1997, you ceased being a director of Anile Residential Pty Ltd and from that point on, no longer had any financial interest or involvement in the development at KCR.
Recorded conversations with Witness U
15
Sometime later, a person described as ‘Witness U’ for the purposes of these proceedings, became a partner with Mr Lanciana in the development of the property at KCR. In late 2012, Witness U was contacted by police who were investigating a number of serious offences including an allegation that
Mr Lanciana had participated in an armed robbery of an Armaguard van that took place in Richmond in 1994 where $2.32 million dollars was stolen.
16 Witness U agreed to covertly record conversations he had with you which took place at the Gravy Train Cafe in Yarraville. Lengthy extracts of those conversations were set out in the summary of prosecution opening. Some of the more pertinent comments you made were as follows.
17
In a conversation which took place on 30 January 2013 where you discuss
Mr Lanciana you told Witness U:
I knew everything. I know all about him. ... I mean, they’re things you don't talk about. I know where the money came from, I know the lot.
18 When discussing your purchase of KCR with Mr Lanciana you said:
I can tell you exactly what happened, I am happy to tell you. We paid $955,000, I won’t tell you where the money went because that is beyond my scope, but I do know when we bought the block we did a deal with two really nice Cypriot guys who owned the block in Doncaster. Anyway, $955,000 for the whole lot. We had a contract for $555,000 and then $400,000 cash which came from Percy. 400 cash. Let me put it this way, they did something that gave them a lot of cash, you can join the dots if you want. You join the dots I am not going to say, you join the dots.
So I went to Percy and said that at 955 it’s a fucking steal man. Not only did we do a deal for 955 and 400 cash we drove to Doncaster, we did the deal at a Real Estate Agency in Coburg, we drove the next day to the guy’s house, he followed us, he didn't come with us, he followed us, he had a bag full of cash. He gave me the cash, I walked into the house. The guy counted the cash and they signed the contract at 555,000. They signed the contract at 555 and the 555,000 was payable in 10 or 12 months. So we didn’t pay any real money at the time, just the cash.
19 You also said:
By the time we are ready to settle I have already done the sub-division, so we had borrowed the whole 555. In the mean time I had sold all the buildings anyway, so we didn’t have to worry about selling them we just had to build the fucking things…
20 During that same conversation, you also described how you say you were forced out of that development by Mr Lanciana. You said that Mr Lanciana did not work back then (referring to the 1990’s) and stated:
Come on [Witness U]. Use your imagination. I knew. I knew exactly what happened. I knew exactly where the money came from, and I don't care. Whatever you do, you do, you know. But that's what happened.
21 You also stated:
I have done heaps of things. Where did the money come from? I know exactly where the fucking money came from. I will never tell you where the money came from. You can put a gun to my head and I will never tell you. All I can tell you is that the $400,000 cash was a small proportion of it.
22 On 7 February 2013, you again met with Witness U at the Gravy Train Cafe. During that conversation, Witness U suggested to you that Mr Lanciana possibly obtained the $400,000 cash from what was called the Ascot Vale train robbery. In response, you indicated:
You don’t have to be a genius. They had a bunch of cash and they did not work. So unless they’ve got a money tree, it came from somewhere. I know where it came from, but I'm not going to talk about it.
23 You also said:
He wasn’t into drugs, whatever it was, whether it was stand-overs or robberies, whatever it was it wasn't drugs.
24 In that same conversation Witness U suggested to you that in purchasing KCR Mr Lanciana was only trying to clean his money, to which you replied:
Yeah, he cleaned up his money for a start. That’s number one, and number two, he took over the whole project, when I didn’t need him in the first place.
25 In a further conversation at the Gravy Train Café, which took place on 13 February 2013, Witness U discussed with you how Mr Lanciana managed to have $400,000. During the discussion, you stated:
Trust me, trust me. It did not come from a business venture.
26 When Witness U suggested that it may have been the train robbery, you responded ‘it wasn’t’.
27 During another conversation with Witness U on 7 March 2013, you referred to Mr Lanciana as ‘a fucking crook’ and a criminal.
28
On 9 March 2013, you were recorded telling Witness U in relation to
Mr Lanciana that:
Of course, he was doing shit that was illegal. Of course, he was.
29 You also discussed how an associate of Mr Lanciana’s was able to wash cash through his purchase of one of the lots at KCR. You said:
… So he actually washed a whole bunch of cash, sold it and pulled the money out of that. In those days you could negotiate the cash. Today you couldn’t…
30 In another recorded conversation with Witness U at the Gravy Train Cafe on 1 May 2013, you stated:
Before [Lanciana] got involved with me and [KCR], l don’t reckon he had any money. He got his money just before we bought [KCR] which l can’t remember now was about 93 or something like that, but before then he had no money. He got his money, in a lump, a big amount of money. I think it was around 92. He got his money in one big hit.
31 In a further conversation of 14 June 2013, you made the following comments to Witness U regarding the origin of the $400,000 that was used to purchase KCR:
· [The money] does not show up anywhere... it will never show up... it can't show up;
· l’ll tell you why it can’t show up, because that $400,000 never existed;
· that $400,000 went to the vendor;
· the contract when we bought that property was for $550,000;
· the real money, $550,000 came from the bank;
· it's the other money that wasn’t real;
· it will never show up anywhere;
· the place that it will show up is if; I turn up and say it, which is never going to happen; Percy turns up and says it, which is never going to happen. If the vendor says l took $400,000 cash, you reckon the vendors going to say it;
· nobody knows this, only you know it because I told you;
· you don’t have to be a genius to work it out;
· of course, [Lanciana] stole it, of course he stole it;
· where did [Lanciana] steal it from, l’m not going to tell you;
· of course, he stole it. You're right, he did not win tattslotto. Of course, he stole it;
· it does not show up anywhere... it can’t... it will never show up;
· [Lanciana] could never bring that up [where the $400,000 came from];
· if [Lanciana] knew that I told you just about the money, he'd probably put a bullet in my head, and I haven’t even told you where it came from;
· if l told you where it came from, and if I went to the cops and told them where it came from, [Lanciana] would go to jail for 25 years;
· but I would never do that. Never in a million years would I do that;
· so if l was to say of course it was illegal, where can he get that? [alleged to be a reference to the amount of money] Drugs? He's not smart enough to do that. Theft?;
· you [Witness U] work it out which one you think it is.
32 You also used an analogy when explaining to Witness U the $400,000 paid to the vendors of KCR:
Person A breaks into a shop overnight and steals $1000 from the cash register. Person A wants to buy a phone from Person B for $1000. Person A gives Person B a cheque for $500 and the rest [$500] in cash.
33 On 31 July and 1 August 2013, investigators executed search warrants at, among other places, your business address where documents relating to KCR were seized.
34 In a subsequent conversation with Witness U on 13 August 2013, you said that you had denied to police that you had laundered money through KCR and that you had denied that cash had been paid as part of the KCR purchase.
35 Also on 13 August 2013, police discovered the property enquiry application form where the sale price was recorded by Lyndall Weir as $950,000. Ms Weir made a statement on 21 August 2013.
36 When you again spoke to Witness U on 26 August 2013, he told you that he had just been spoken to by police in relation to the KCR project. In that conversation, your account changed. You told him the property was not purchased with dirty money, there was no cash involved, that you did not tell Witness U earlier in the year that cash was paid to the vendors and if Witness U’s recollection of the previous conversation was that it was money laundering, it is incorrect. You said:
I’m telling you now whatever conversation you thought you heard with me, it wasn’t. I’m telling you. I said to you we paid three or $400 less than what I thought it was worth, nothing else.
37 On 18 March 2014, you were arrested and charged in relation to this matter. When interviewed by police you made no comment as to the allegations.
Evidence at trial
38 As I will explain shortly you were tried in respect of this charge in 2017 and there gave evidence and denied any wrongdoing. In your testimony you said you had practised as a solicitor for 35 years and that you were an expert in property matters. You had also been involved in the development of at least half a dozen properties. You said that Mr Lanciana was a close friend at that time and that it was Lanciana who had identified the KCR property. You said the cash amount contributed by Mr Lanciana was $200,000. You said you understood that some of the money had come from the sale of rare comic books and the rest had been borrowed.
39 You claimed the $200,000 was for additional services associated with the land development and that ‘Special Condition 10’ in the contract was designed to cover the cash paid for the additional services. You said that you were forced out of the development as a result of threats and intimidation from Mr Lanciana, and that Witness U had taken over your share.
40 As to the recorded admissions you made to Witness U, you said you were ‘bullshitting’ and that you were going to ‘drop the hammer’ on Witness U and get your revenge because, in your mind, Witness U had stolen your part in the development.
Procedural history
41 In order to better understand the factual basis for the sentence to be imposed, it is necessary to set out the procedural history of this matter.
42 As I have indicated, you were first charged with this offence on 18 March 2014. There was a contested committal in February and April 2015. The matter proceeded to trial, which commenced on 9 May 2016. After preliminary argument, an interlocutory appeal and an unsuccessful appeal to the High Court, the trial recommenced on 8 May 2017.
43 On 16 June 2017, you were convicted of both this offence and an additional charge of obtaining financial advantage by deception arising out of the same circumstances. On that day, you were remanded in custody. After a plea in mitigation, his Honour Judge Coish sentenced you on 30 June 2017 to a total effective sentence of five years’ imprisonment with a non-parole period of three years in respect of both offences.
44
You appealed your conviction successfully and on 21 August 2018 the Court of Appeal ordered that you be retried. You were again released on bail. Your retrial was to commence on 15 July 2019, however, on 19 July 2019, you were
re-arraigned in respect of a new Indictment containing just the one charge of money laundering, to which you pleaded guilty. Your plea in mitigation proceeded on 21 October 2019.
45 You spent 432 days in custody before being released pending your re-trial.
46 It follows that it is almost 26 years since the commission of the offence and that this proceeding is now into its sixth year. I will deal with the significance of that history when considering the submissions of the parties.
Additional charge – Obtaining a financial advantage by deception
47 At your first trial, you were convicted of an additional offence of obtaining financial advantage by deception. It was alleged that you falsely represented the purchase price of KCR at $555,000. In consequence, the stamp duty payable was $15,871. Had the true purchase price of $955,000 been declared, then the stamp duty payable would have been $30,759. The financial advantage therefore alleged to have been obtained was $14,888.
48 You were sentenced to 6 months’ imprisonment in respect of that charge, however, that sentence was ordered to be served wholly concurrently with the sentence imposed for money laundering. Although the factual basis for sentence has not changed, I must take into account the fact that this additional charge did not form part of your plea Indictment and you are not to be punished in respect of it.
Personal history
49 Turning to your personal history, you were born in Genoa in Italy on 17 December 1958. You were 35 – 36 years of age during the timeframe of the offending. You are now 61. You have no prior convictions.
50 You have been married to your wife Adele since 1989 and there are two children of that relationship, one of whom works as a journalist and the other as a property manager. Your wife has been, and remains, very supportive of you.
51 You also have two children from a previous marriage.
52 You immigrated to this country with your parents, two elder siblings and younger brother in 1961. Your father worked as a green grocer selling produce door to door. As a young child, you used to get up with him at four in the morning to attend Footscray Market and assist with deliveries. Over time, your family was able to save enough for a deposit on a modest home in Altona North, which is where you grew up.
53 You attended Altona North Primary and Altona North High School. Although you had relatively limited opportunities, you clearly made the most of them. When you started your schooling you spoke no English but quickly became fluent and excelled academically. You were one of only two students from your senior year who went onto university.
54 You graduated from Monash University in Economics and Law in 1982 and completed your articles with the firm Read & Read, who were then located in Collins Street. In 1985, you established your own practice in Millers Road in Altona North. You maintained that practice successfully until your original conviction in June 2017.
55 In 1986, you established a free legal service which was attached to the Altona Citizens Advice Bureau and you worked in that service pro bono two nights each week for four years. That service later became the Western Suburbs Legal Service. Although you stopped volunteering at that service, you nevertheless devoted about a quarter of your private practice over the next 25 years or so to providing free advice to those who could not afford it. I should say that I regard that as a considerable contribution to the community which will be taken into account very much in your favour.
56 Now, all that you have built over your professional career, has been lost – your practice, your reputation and your assets. You have been subject to a great deal of adverse publicity which I accept you have felt acutely. Your counsel submitted that those matters in and of themselves constitute substantial punishment for your offending separate from, but additional to, any sentence which must now be imposed.
Character evidence
57 At your previous trial, a number of people gave evidence as to your good character. Each of those witnesses were aware that you had been charged with money laundering. Mr Brustman adopted aspects of that evidence in support of this plea in mitigation.
58 Mr Aaron Schwartz, barrister, gave evidence at trial that he had been briefed over a number of years by you and that you had an excellent reputation for honesty, integrity and truthfulness in his experience of you.[1]
[1] TT p 1141, 5 June 2017.
59 Mr Peter Russo, solicitor, had attended university with you and once you both began to practice you would often see each other. He deposed that you were a highly regarded and successful solicitor.[2]
[2] TT p 1148, 5 June 2017.
60 Mr John Papazisis is an accountant who had known you since you attended Altona North high school together. He had acted as your accountant since 1994. He gave evidence that you were a respected member of the local community with a reputation for honesty and integrity.[3]
[3]TT p 1199, 5 June 2017.
61 Mr Paul Kapkan was called to give evidence at trial. He had known you as a friend, mentor and someone who had acted for him in business and matrimonial matters. He said your general reputation for honesty and integrity was impeccable. He also spoke highly of your generosity.[4]
[4] TT p 1401, 13 June 2017.
62 Mr Greg Highwood, who was a journalist and then Chief Executive Officer of Fairfax Media, gave evidence that he had known you for about four years through your daughter’s relationship with his son. He considered you to be a man of strong character and a good human being who had contributed to the local community.[5]
[5] TT p 1405, 13 June 2017.
63 Ms Katherine Legge, journalist and author, gave evidence that she had known you for about four or five years, also through the relationship her son had with your daughter. She has never had cause to question your honesty or integrity.[6]
[6] TT p 1411, 13 June 2017.
64 On this plea hearing, Mr Jamie Singh, barrister, provided a reference of 17 October 2019 which he supported with impressive oral evidence. He met you at university almost 40 years ago. Over those years you have enjoyed a successful professional relationship and a good friendship. You were a person who he described as prepared to go the extra mile for your clients, sometimes at personal cost. The services you provided as a solicitor were highly sought after and extremely well regarded. He confirmed that you also devoted a section of your practice to disadvantaged clients, particularly elderly members of the Italian community, whom you would assist pro bono.
65 These proceedings, to Mr Singh’s observation, have taken a very heavy personal toll on you and those closest to you. You relinquished the family home and as he put it you ‘have been to hell and back’. Your experience in jail was frightening and traumatic. You presently live a humble existence and understand that you will not practice again.
Health concerns
66 Your health in many respects is precarious. You have significant coronary artery disease. In May/June 2017 you underwent a procedure to have an artery stent inserted to deal with a number of heart problems you experienced during your trial.
67
In a report of 25 September 2019 your current General Practitioner,
Dr Elizabeth Nguyen, states:
The conditions that we have been treating include ischaemic heart disease, type II diabetes melitus, dyslipidaemia, chronic kidney disease, gastro-oesophageal reflux disease and mental health issues on the background of significant social stressors.
He presented at his first consultation with severe symptoms of anxiety as per the DSM-5 Diagnostic Criteria. He described the events leading to his incarceration in prison for 14 months and the adjustment he and his family have had to make after this transition during our consultation. He told me the psychological impact this had on his mental health, as detailed by John in his description of personal circumstances.
68 You have been treated with antidepressants and psychological therapy, and you have responded positively to that treatment. There is a very real fear, however, that your mental health will regress if you were to be imprisoned again.
69 In a further report of 15 October 2019, Dr Nguyen summarises the more recent treatment you have received in respect of a very painful condition, shingles, for which you were hospitalised between 5 and 11 October 2019. Even with the current analgesia regime, you experience significant ongoing pain and require continuing medical care to manage your shingles and extensive medications.
Defence submissions
70 Mr Brustman submitted that having regard to the chequered history of this matter, you should not be further incarcerated. No good purpose, he argued, would be served by making you go back to prison.
71 He relied on your plea of guilty which he said had facilitated the course of justice by avoiding what was likely to be a protracted and complex trial. If the last trial is any indication, that must be a significant matter. It was further suggested that the plea was ‘indicative of remorse’.
72 As the procedural history set out above makes clear, there has been a significant delay from the time of the offending to charge, and from the time of charge to sentence, which should be taken into account in your favour.
73 It was of some significance, in measuring the sentence imposed after trial against the sentence to be imposed here, that you were not to be sentenced for the additional charge of obtaining a financial advantage by deception.
74 Importantly, the loss of your profession, your reputation and your livelihood constitute substantial punishment in itself.
75
It was, as I understand it, conceded to some modest extent that your status as a solicitor aggravated sentence. That was so because you did represent
Mr Lanciana as a solicitor in other matters, however, the conduct engaged in here could be committed without being authorised to practise as a solicitor. Your conduct, he argued, was incidental to a property development and not a product of the performance of legal services as a solicitor.
76 Having regard to your lack of prior convictions, your otherwise good character and the lesson learnt through the punishment you have already endured, it was submitted that your prospects for rehabilitation should be assessed as being excellent. Moreover, specific deterrence, given what you have been through, should assume little, if any, importance.
77 Reliance was placed by Mr Brustman on the decision of Whelan J (as he then was) in R v Lustig[7], where a 3 month suspended sentence was imposed on a solicitor for the laundering of $69,000.
[7] [2004] VSC 483, (‘Lustig’).
78 As in Lustig, a suspended term of imprisonment remains open in your case and it was submitted that was the appropriate disposition. Mr Brustman put it in the following way:
Whilst general deterrence looms large for offending of this nature, the circumstances raised above warrant that a term of imprisonment, not exceeding the amount of pre-sentence detention already served, in combination with a suspended sentence is the appropriate disposition.
Prosecution submissions
79 In response to these submissions, Mr Hannan, on behalf of the Crown, submitted that the circumstances of this offending, where funds from criminal activity were converted into what appeared to be legitimate profit from a commercial venture, represents the essence of the offence of money laundering. The offending was designed to both wash the money and to gain substantial enrichment from the property development.
80 It was submitted that as a solicitor you would have appreciated, more so than an ordinary person, the repercussions of dealing with proceeds of crime. Your status as a lawyer was an aggravating factor[8], even though the offence was not committed in the course of your legal practice. You negotiated the terms of the contract of sale and facilitated the use of the cash. With some experience of the criminal law, it was submitted that you must have been aware that you were engaging in serious criminal conduct and your moral culpability should therefore be assessed as high.
[8] See R v Fraser [2004] VSCA 147 at [29].
81 With respect to delay, it was submitted that the time between the offending and the laying of the charge is of some relevance but should be assessed in light of the fact that money laundering offences are difficult to detect. It was emphasised that this offending only came to light through the covertly recorded conversations with Witness U in 2013.
82 It was also put that the delay from charge until the present is entirely attributable to you because you contested the committal, you litigated an unsuccessful interlocutory appeal, you sought leave to appeal to the High Court against the interlocutory decision which was refused, you then contested the charge before a jury in this Court and you successfully appealed to the Court of Appeal before finally pleading guilty in July 2019, just as your re-trial was about to commence.
83
It was accepted, however, that your lack of prior convictions and your otherwise previous good character tend very much in your favour. The evidence of
Mr Singh, for example, was fully accepted.
84 You are also entitled, it was acknowledged, to the benefit of your plea of guilty, albeit that it was entered at a late stage. Nevertheless, this dealing involved what would be regarded now as a large sum of money and 26 years ago would have seemed even larger. General deterrence must be the predominant sentencing purpose. It was submitted that the time you had already served in custody was not sufficient to adequately address the need to deter others from like offending. Accordingly, a term of imprisonment with a fixed non-parole period should be imposed.
Consideration
85 In assessing these submissions, I have attempted to ascertain what previous authority or principles may provide guidance.
86 There is unfortunately very little by way of comparative authorities dealing with this legislation, or subsequent iterations, that might provide assistance as to principle or as to current sentencing practice. Lustig is one example, but as Whelan J said in his sentencing remarks, that was a somewhat unusual case that did not involve conscious or wilful dishonesty.
87 In R v Ferguson[9], Kaye J (as he then was) sentenced a police officer who had pleaded not guilty to conspiring to trafficking heroin in not less than a commercial quantity and one charge of money laundering relating to the proceeds of the trafficking which involved not less than $630,000. A sentence of 12 years’ imprisonment was imposed on the conspiracy charge, and 5 years on the laundering charge, which was ordered to be served wholly concurrently with the first sentence. A non-parole period of 8 years was fixed. Although that sentence was upheld on appeal, it related to s 122 of the Confiscation Act 1997, a subsequent version of this offence, where the maximum penalty had increased to 20 years.
[9][2006] VSCA 183.
88 In my view, the different circumstances, the operation of the principle of totality and the different maximum penalty in that case greatly limit its utility in providing guidance in this instance.
89 I was referred to Majeed v The Queen[10] by the prosecutor, as to the principles that might generally apply in this case which have been distilled from cases dealing with Commonwealth Criminal Code offences relating to money laundering.
[10] [2013] VSCA 40, (‘Majeed’).
90 The Commonwealth scheme is structured to provide separate offences according to quantum and to the mental state of the offender. For those reasons, the authorities on that provision should be approached with some caution.
91 There is an extensive survey of such authorities, analysed by Barr AJA in R v Van Loi Nguyen[11]. However, it is evident that beyond the differences with respect to the legislation, many of the sentences referred to are also intermingled with sentences for the offending from which the proceeds of crime were derived and, as in Ferguson, totality operates to further limit the comparative utility of those decisions. There were, however, two statements of principle that can be derived from Majeed that seem apposite to this sentencing exercise.
[11] [2010] NSWCCA 226.
92 The first is the general proposition that money laundering is vital to organised crime syndicates and, as such, the money launderer is an important cog in the wheel of organised crime.[12] That circumstance requires that general deterrence must be given significant weight. I would add that the difficulty in detection, as Mr Hannan submitted here, also lends itself to emphasis on that sentencing purpose.
[12]Majeed at [39].
93 In my view, it follows from those considerations that general deterrence should operate as the predominant sentencing purpose in imposing sentence in your case. In addition, it will be necessary to mark the community’s denunciation of your conduct.
94 On the other hand given your lack of prior convictions and the drawn out nature of this case, which I accept has been punitive, it will not be necessary to emphasise specific deterrence.
95 The second principle directs attention to the precise circumstances of the money laundering so as to ascertain its gravity.
96 Those circumstances include, inter alia:
- the role of the offender in the particular money laundering arrangement;
- whether the offender was the author or instigator of the arrangement;
- the degree of authority reposed in the offender in carrying out the arrangement;
- the precise actions of the offender which constituted the dealing for the purposes of the offence;
- the period of time over which the offence was committed;
- the number of transactions involved; and
- the amount involved in the offending.[13]
[13]Ibid n 12 at [37].
97 Directing attention to the precise circumstances of your offending, I find that although your offending involved only one transaction, the payment of the cash by way of instalments over a period approaching one year means that the offence was effectively committed over a significant period of time. I also accept that the amount involved, $400,000, is, and was then even more so, a substantial amount of money.
98 Whilst it does not appear that you were the instigator of this transaction, I must nevertheless proceed on the basis that you played a very important role in the laundering of this money. In doing so, you hoped to gain a significant profit.
99 I assess your moral culpability for this offending as high. That culpability is well illuminated by the recorded statements you made to Witness U.
100 The tenor of those statements suggest a state of mind where you well understood that the money was derived from a serious crime. Despite what you said at your previous trial as to the truth of what you told Witness U, I am satisfied that from your perspective, there was no doubting that the cash was the proceeds of serious criminal activity.
101 I do not accept that because it may have been more common to deal in cash at the time of the commission of this offence, this offending is somehow less serious than if it were committed today. As a solicitor, you were naturally expected to be alert to, and avoid any dealings with respect to, the profits of criminal activity, whether through your work or even in a private capacity. As a legal practitioner, particularly one with some criminal law experience, you should have well understood how money laundering enables and encourages serious criminal activity. In other words, you should have known better.
102 It follows from those findings that I regard this as a serious example of the offence of engaging in money laundering, and that it is to some extent aggravated by your status as a solicitor. In committing this crime you failed the high standards that the community is entitled to expect of the legal profession.
103 I am conscious, however, that you have paid a heavy price for that failure. You came to this country as a young child with very limited opportunities, but you made the most of such opportunities as you did have through hard work and you excelled as the extensive character evidence confirms. Once you became successful, you did not forget where you came from. Your sense of social responsibility led you to give a great deal back to the community.
104 In Bulfin[14], Charles JA cautioned that the prevalence of otherwise good character in white collar offenders may have a tendency to distract attention from the importance of general deterrence.[15] Whilst I am mindful of his Honour’s comments in that case, I take the view that you are nevertheless entitled to draw heavily on the very solid contribution you have made to the community over the whole of your professional life, in support of your plea for leniency.
[14]DPP v Bulfin [1998] 4 VR 114.
[15]Ibid at [131] - [132].
105 Your plea of guilty was certainly entered at a late stage in the proceedings but it must, in my view, nonetheless attract a substantial reduction in the sentence that would otherwise be imposed. I accept that any trial of these allegations would be complex and difficult. The last trial is an eloquent testament to that fact. The willingness to facilitate the course of justice through the plea in these circumstances merits tangible recognition.
106 As to Mr Brustman’s submission that your plea is indicative of remorse, I must say I cannot be affirmatively satisfied that it is.[16] Certainly the history of this matter before your plea of guilty suggests otherwise, but I do not dismiss the possibility that the lengthy process you have been through has led to a change in attitude. Ultimately, I have determined to treat the question of remorse in your case as neutral.
[16] See R v Phillips [2012] VSCA 140 at [69].
107 Whilst I accept that the delay in finalising these proceedings is largely derived from you contesting the charges, in my view, you are not to be punished for having pleaded not guilty. The fact that this charge has been hanging over your head for such a long period has, I accept, been punitive and will, consistent with authority, be taken into account in your favour.
108 As a consequence of the drawn out process associated with this charge, I am satisfied that you have learnt a very hard lesson. Bearing in mind the evidence as to your good character, particularly Mr Singh’s evidence, I am confident that you are unlikely to offend again and that your prospects for rehabilitation are therefore very good.
109 I am also conscious that you are not to be sentenced to a substantially higher sentence than an offender who committed this offence at around the same time, i.e. 25 or so years ago, simply because of the lapse of time.[17] That is particularly so given the maximum penalty has since increased. Unfortunately, there is very little that assists as to sentencing practice at the time, although the lesser 10 year maximum penalty applicable to you, does provide important guidance.
[17] See Stalio v The Queen (2012) 46 VR 426 at [54].
110 I have determined that I will also take into account the fact that you have already been imprisoned for this offence for what I regard as a reasonably substantial period, i.e. just on 14 and a half months (432 days). You struggled to cope with prison and the prospect of returning has understandably engendered distress and anxiety for you of the type encompassed by the principle of double jeopardy.[18] I accept that the potential for your mental health to deteriorate if you were to be imprisoned again is real.
[18] See Bui v DPP (Cth) (2012) 244 CLR 638 at [14].
111
Whilst the principle of double jeopardy is no longer able to be taken into account in the context of Crown appeals, I see no reason why it should not apply to your circumstances. The practical reality is that having to endure a further term of imprisonment for the same offending is harsh. It seems to me that the principle should operate in your favour so as to moderate the sentence that must be
re-imposed for this offending.
Conclusion
112 I have anxiously considered Mr Brustman’s cogent submission that in all of the circumstances you should not again be incarcerated and that the matter should now be dealt with by taking into account the time already spent in custody and suspending the balance of any further sentence imposed.
113 Ultimately, however, the primacy of general deterrence as a sentencing purpose in your case, and the high level of moral culpability associated with your offending, requires a sentence which, in my view, must involve the service of some further actual imprisonment.
114 That term will be limited by, amongst other matters, your plea of guilty, your previous contribution to the community, your precarious health and the principle of double jeopardy as I have determined it should apply to you.
Sentence
115 Taking all relevant matters into account you will be sentenced as follows:
116 On the one charge of engaging in money laundering you will be convicted and sentenced to be imprisoned for a period of 3 years and 8 months.
117 I will fix a non-parole period of 21 months.
118 I will declare pursuant to s 18 of the Sentencing Act 1991 that you have served 432 days of that sentence by way of pre-sentence detention and I will cause that declaration to be noted in the records of the Court.
119 I will further declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty you would have been sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years.
120 I will make the order for forfeiture sought.
- - -
8
0