Forsyth v The Queen
[2015] WASCA 36
•27 FEBRUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FORSYTH -v- THE QUEEN [2015] WASCA 36
CORAM: NEWNES JA
MAZZA JA
HEARD: 1 DECEMBER 2014
DELIVERED : 27 FEBRUARY 2015
FILE NO/S: CACR 150 of 2014
BETWEEN: ADAM TONY FORSYTH
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 189 of 2013
Catchwords:
Application for leave to appeal against sentence - Knowingly giving false or misleading evidence in an examination conducted by the Australian Crime Commission - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Australian Crime Commission Act 2002 (Cth), s 30(2), s 33(1)
Crimes Act 1914 (Cth), s 16A, s 19, s 20(1)(b)
Criminal Appeals Act 2004 (WA), s 27
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
Lam v The Queen [2014] WASCA 114
Mercanti v The Queen [2011] WASCA 120; (2011) 249 FLR 223; (2011) 210 A Crim R 213
Mousavi v The Queen [2014] WASCA 174
R v Abell [2007] QCA 448
R v Drever [2010] SASCFC 27
R v Hood [2007] NSWDC 157
R v Nash [2008] SASC 48; (2008) 100 SASR 109
R v Perry [2011] QCA 236
R v Rivkin [2004] NSWCCA 7
R v Rodd; Ex parte Attorney‑General (Qld) [2008] QCA 341
REASONS OF THE COURT: This is an application for leave to appeal against sentence.
The appellant pleaded guilty to six charges of knowingly giving false or misleading evidence in an examination conducted by the Australian Crime Commission (ACC), contrary to s 33(1) of the Australian Crime Commission Act 2002 (Cth) (the Act).
On 31 July 2014, after pleading guilty, the appellant was sentenced on each charge to 2 years' imprisonment with an order that he be released after 1 year upon giving a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $20,000 to be of good behaviour for the balance of the sentence. His Honour ordered that all of the sentences be served concurrently with each other. Thus the total effective sentence was 2 years' imprisonment with an order that he be released on recognisance after 12 months.
The sole proposed ground of appeal, as expressed in the appellant's case filed 20 October 2014, alleges that the individual sentences were manifestly excessive.
For the reasons which follow, the proposed ground of appeal has no reasonable prospect of succeeding. Accordingly, leave to appeal must be refused and the appeal dismissed: s 27 of the Criminal Appeals Act 2004 (WA).
The facts of the offending
There is no dispute as to the facts of the offences.
On 30 April 2009, the board of the ACC authorised the ACC to undertake a special investigation relating to federally relevant criminal activity within the meaning of s 4 of the Act. On 2 June 2010, the ACC board authorised the ACC to continue the special investigation until 30 June 2011.
In accordance with the relevant provisions of the Act, on 1 June 2010 a duly appointed examiner issued a summons to the appellant to secure his attendance at an examination of the ACC on 7 June 2011 in Perth.
On 2 June 2011, the appellant was personally served with the summons.
On 7 June 2011, the appellant appeared with counsel before the examiner. The examination was held in private. The appellant swore on oath to tell the truth. The appellant claimed and was given privilege against self‑incrimination in respect of all answers he was required to give. His obligation to tell the truth and the penalties under the Act for giving false or misleading evidence were explained to the appellant by the examiner. The appellant confirmed to the examiner that he understood what he had been told.
At the time the summons was issued and the examination was conducted, the ACC was in possession of information which indicated that the appellant had knowledge of, and was involved in, arranging for monies to be transferred or couriered to an account operated by Dr Jon Sainken in Hong Kong. At the time of the examination, the source and legitimacy of the monies transferred or couriered were not fully understood by the ACC.
In 2010, Dr Sainken owned an interest in a nightclub business in Subiaco. In late August 2010, the appellant and his wife discussed buying Sainken's interest in the nightclub business for somewhere between $1 million and $1.2 million. On 6 September 2010, the appellant met with Sainken. At 4.07 pm that day, the appellant telephoned his wife and told her that he had just met with Sainken and that he had 'got what he wanted'. It appears Sainken agreed to sell his interest in the business to Winter Holdings Pty Ltd, a company apparently controlled by the appellant's wife, for $950,000.
On 10 September 2010, the appellant sent a text message to Sainken and asked to whom the cheque should be made payable. Sainken advised him it should be made payable to White Dee Pty Ltd, which was the company through which Sainken held his share of the business.
On or about 10 September 2010, $300,000 was withdrawn from an account held by the appellant's wife and a cheque in that sum was later banked by Sainken. On 23 September 2010, $400,000 was transferred to the appellant's bank account from his parents in New Zealand. These funds were used to purchase a bank cheque which was later paid to Sainken.
On 2 October 2010, the appellant arrived at the house of Mr Sergey Plyukhin. The appellant handed Plyukhin a parcel containing approximately $150,000 in Australian bank notes and a piece of paper on which was written the details of a Barclays Bank account Sainken had given the appellant into which the cash was to be deposited. A short time later, an airline ticket was purchased for Plyukhin to travel to Hong Kong, using the appellant's credit card. Later on 2 October 2010, the appellant told a man named Fernando that Plyukhin was taking the cash to Hong Kong for him. Later still that day, the appellant told Plyukhin not to declare the money to customs officials and that if he was caught with the money:
… just give them your name and address and tell them to speak to my lawyers - I've travelled to Sydney with 150 to 200,000 and had it in a bag which was x-rayed in front of me and they haven't said anything - stay strong and try not to think about it.
On 3 October 2010, Plyukhin flew to Hong Kong via Singapore.
On 4 October 2010, Plyukhin went looking for a bank into which he could deposit the cash. He was unsuccessful. He then contacted the appellant, who told him that he would make inquiries. The appellant telephoned the Hong Kong office of LGT Bank with whom the appellant held an account in the name of a Panamanian registered company, Matriarch Holdings Inc. The appellant also made calls to Fernando, who told him that his cousin 'Lasantha' would be able to assist.
At approximately 6.30 pm on 4 October 2010, the appellant sent Plyukhin a text message instructing him to telephone a 'Mr Jans' and 'tell him you are Lasantha's friend and you have money to drop off today'.
Plyukhin apparently called the number he had been given by the appellant. He then received a text message:
Gcc exchange, no 233 a hankow centre, 5‑15 hankow road, tst, hk.
At 10.04 am on 5 October 2010, the appellant called Sainken and told him that 'everything should be right if you check it'.
On 6 October 2010, Sainken received a payment advice from GCC Global Exchange Hong Kong for a deposit of USD $149,444.49.
On that day, Plyukhin returned to Perth Airport, where customs officers found documentary evidence which confirmed that he had arranged for the deposit of the money that he had couriered to Hong Kong into an account controlled by Sainken.
Later, on 14 October 2010, Sainken telephoned the appellant and stated that his 'people over there' needed an invoice, and asked the appellant for the name of his entity. The appellant told Sainken that the name of the entity was the 'Matriarch Trust'.
Later still, Sainken received notification from his bank that Matriarch Holdings had transferred sums of USD$43,335 (on 22 December 2010) and USD$41,500 (on 28 January 2011).
Against this background, at the examination on 7 June 2011, the appellant was asked questions about the payment of monies to Sainken and, in particular, the payment of monies to Sainken overseas. In broad terms, the appellant denied any involvement or knowledge of such payments. The six offences relate to the following questions and answers:
Count 1
Question:
Do you have any knowledge of any overseas transaction being involved in the paying of monies to Sainken in relation to Winter Holdings purchasing … [t]he interest in the business?
Answer:
No, I don't, no.
Count 2
Question:
Specifically in September of last year, September two thousand and ten (2010), did you make any arrangements with any person or any bank or any financial institution to have monies transferred to the [sic] Sainken's accounts?
Answer:
No.
Count 3
Question:
Have you ever had any direct or indirect role whatsoever in arranging for any monies to be transferred into any account operated by Jon Sainken?
Answer:
Not that I, no. ... no.
Count 4
Question:
Okay. Do you have any knowledge directly or indirectly in relation to an amount of about a hundred and fifty thousand dollars ($150,000) that was deposited for the benefit of Saintco on or about the sixth of October two thousand and ten (6/10/2010)?
Answer:
No.
Count 5
Question:
Do you have any knowledge whatsoever as to why he [Sergey Plyukhin] may have travelled to Hong Kong at this time?
Answer:
No.
Count 6
Question:
I just want to clarify and that is, Customs records show us that Mr Plyukhin was in Hong Kong for a period of time and very early October last year. Is it your evidence today that you have no knowledge whatsoever as to him [Sergey Plyukhin] having been in Hong Kong?
Answer
Yes.
All of the appellant's answers were false and misleading. During the examination, the appellant was warned against giving false testimony and he was reminded about the penalties that applied in the event the testimony he gave was false.
The sentencing proceedings
The appellant entered his pleas of guilty on 22 May 2014 and a plea in mitigation was made on his behalf by senior counsel on 20 June 2014.
Senior counsel on behalf of the appellant conceded that when the appellant went to the examination, he anticipated that he would be asked about the $150,000 cash that Plyukhin had taken to Hong Kong, and the subsequent deposit of that sum into Sainken's account. It was further conceded that the appellant realised that he should not have sent the cash overseas and that he was aware that from the ACC's perspective, the matter was serious. The appellant knew that others, including his wife, had already been examined about the money. With this knowledge, the appellant, prior to giving evidence, decided that he would lie about the matter in the examination.
Senior counsel for the appellant submitted that the $150,000 cash came from a legitimate source, namely a loan to the appellant by Mr Jeff Fenech. The respondent challenged this assertion.
Senior counsel for the appellant also submitted that while the appellant appreciated the fact that he was on oath and that he was required to tell the truth but nevertheless knowingly gave false evidence, he was, at the time, suffering from a mental condition which reduced his culpability. Senior counsel tendered two reports from a consultant psychiatrist, Professor Shaun Hood, dated 29 July 2013 and 6 June 2014, as well as reports from the appellant's personal doctors, Dr Singh and Dr Jones. In very broad terms, the thrust of these reports was that the appellant, who had been a boxer for many years and whose last fight took place on 3 June 2011, four days before the examination, was brain injured and in a state of delirium at the time of the examination. As a result, the appellant was not aware of the importance of the proceedings on 7 June 2011, or the full consequences of his transgressions.
The respondent challenged senior counsel's submissions as to the appellant's mental state. The respondent tendered a report written by a neurologist, Associate Professor Brian Chambers. In broad terms, Professor Chambers' opinion was that while the appellant may well have early signs of chronic traumatic encephalopathy as a result of his boxing career, there was no evidence that the appellant was concussed at the time of the examination nor that he did not understand the implications of giving false or misleading evidence. The appellant also undertook a formal neuro‑psychological test, which was conducted by Ms Mandy Vidovich. While she could not rule out the possibility of a mild concussion following the bout on 3 June 2011, she thought that was unlikely.
The appellant's antecedents
The appellant was 30 years of age. He was 33 when he was sentenced. He is a married man with two children aged under 5 years. The appellant was a successful amateur, and later a professional, boxer. He represented Australia at the Athens Olympics in 2004. He fought 160 amateur and 10 professional bouts.
The appellant has prior convictions for assault occasioning bodily harm: one in New South Wales in 2010 and the other in Western Australia in 2012.
The learned sentencing judge was provided with a number of character references. Those references spoke of the appellant's qualities as a good friend, a caring and good father and indicated that, generally, he was an honest man. The references also spoke of the appellant's numerous charitable deeds. A letter written to the learned sentencing judge by the appellant's wife stated that the appellant was the primary carer for their children. This statement is to be understood as meaning that the appellant cared for the children while his wife was working.
The sentencing remarks
The learned sentencing judge found that:
(a)the appellant lied in detail and in volume, despite the fact that he was repeatedly warned about the consequences of doing so;
(b)he did not lie out of 'momentary panic' and that the lies were made 'after reflection and [were] deliberate';
(c)the lies were persistent; and
(d)the lies were 'carefully and doggedly advanced and maintained'.
His Honour did not accept that the $150,000 cash came from Mr Fenech. His Honour went on to say:
… once it is accepted that there is no explanation, certainly no sensible explanation for the source of the cash you paid your Russian associate to smuggle to Hong Kong, your desire to deceive the Crime Commission seems entirely rational (ts 139).
Although his Honour accepted that the appellant's boxing career had 'taken its toll' on the appellant, he was not satisfied on the balance of probabilities that, at the time of the examination, the appellant was suffering from a mental impairment or mental illness of the kind that either contributed in any way to his offending or that could be said to reduce his culpability for it (ts 138).
His Honour accepted the impressions of those people who provided references to the court. He stated that the appellant's 'limited criminal record' was of no moment and that the appellant was entitled to be treated as someone with good antecedents.
His Honour found that the consequences of the sentence he intended to impose would not affect the appellant's family 'beyond what might ordinarily be expected'.
His Honour noted the appellant's pleas of guilty. He regarded the pleas as having a utilitarian benefit, although the mitigation they provided was reduced because they were entered late in the proceedings.
His Honour considered that the appellant's offending was of a kind 'that strikes at and impairs' the task of the ACC to properly investigate and detect sophisticated and organised serious crimes. His Honour considered that the offences obstructed the commission in carrying out these important functions. Specifically, the appellant's false testimony 'prevented the [ACC] from establishing the facts about the matters they were investigating and effectively prevented the [ACC] from determining what underlay' the Hong Kong transaction. As to this, his Honour said:
To a far greater degree than other cases dealing with offending of this kind you have succeeded in frustrating the inquiry that was taking place. That is the measure of the objective criminality here that shows it to be a very serious course of offending of this kind (ts 142).
His Honour referred to the sentencing principles contained in s 16A of the Crimes Act. He considered that general deterrence was a matter to be given considerable weight so that people the subject of examination 'do not think they can lie or evade questions with impunity'.
His Honour considered that the offences effectively amounted to one transaction and made all of the sentences concurrent.
The appeal to this court
The appellant is self‑represented. The only ground of appeal reads as follows:
The sentence imposed was manifestly excessive having regard to the circumstances of the offending, the appellant's plea of guilty, the appellant's personal circumstances and sentencing standards.
It can be immediately seen that the appellant does not allege any express error on the part of the learned sentencing judge. The proposed ground alleges an implied error of the type referred to in House v The King (1936) 55 CLR 499, 504 ‑ 505. That is, that the sentences that were imposed were so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. As this court has observed on many occasions in the past, it is no easy matter to demonstrate an implied or inferred error. At the heart of the appellant's case is the allegation that the individual sentences that were imposed were excessive in terms of their length and the length of the term to be served before the appellant was eligible for release on recognisance.
In his submissions, the appellant emphasised his good antecedents and the impact that a sentence of imprisonment would have upon his family. The written submissions refer to a number of sentencing cases in respect of offenders convicted of offences contrary to s 33(1) of the Act and the analogous offence created by s 30(2) of the Act, which makes it an offence to refuse or fail to answer a question that is required to be answered by an examiner. Like s 33(1), this offence carries a maximum penalty of 5 years' imprisonment and a fine of $22,000. The appellant submits that the sentences imposed upon him were inconsistent with the outcomes in these cases. The cases referred to by the appellant were R v Perry [2011] QCA 236; R v Nash [2008] SASC 48; (2008) 100 SASR 109; R v Hood [2007] NSWDC 157; R v Rodd; Ex parte Attorney‑General (Qld) [2008] QCA 341; Mercanti v The Queen [2011] WASCA 120; (2011) 249 FLR 223; (2011) 210 A Crim R 213; R v Drever [2010] SASCFC 27 and R v Abell [2007] QCA 448. The last three cases concern offences committed under s 30(2) of the Act.
To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum penalty prescribed by law for the offence, the standards of sentences customarily observed with respect to that offence, the place that the criminal conduct occupies in the scale of seriousness of offences of the type under consideration and the personal circumstances of the offender.
We have already stated the maximum penalty for an offence contrary to s 33(1) of the Act.
The purpose of examining comparable cases is to ensure broad consistency in sentencing. The guidance afforded by comparable cases is flexible rather than rigid. The fact that a sentence is within or outside the range of other sentences imposed for similar offending does not necessarily establish error in the exercise of the sentencing discretion in the particular case and does not fix the range of a sound exercise of a sentencing discretion. To expand upon this last point, when an appellate court dismisses an appeal against sentence or allows an appeal against sentence and re-sentences the offender, the court's decision does not, of itself, fix the upper or lower limit of the range.
In the end, what is required is a determination of whether the sentence imposed fell either within a proper exercise of the sentencing discretion by reference to its own facts and circumstances: R v Rivkin [2004] NSWCCA 7 [415] ‑ [417] (not included in the authorised report).
The cases referred to by the appellant do not assist him. Hood is a first instance decision of the District Court of New South Wales. Such decisions are of limited utility because consistency in federal sentencing is to be achieved through the work of intermediate courts of appeal: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56]. In Nash and Rodd, while the offenders in those cases had committed offences contrary to s 33(1) of the Act, the appeals concerned sentences imposed for State offences. In other words, the sentences imposed for the s 33(1) offences were not the subject of appeal in each case. In Mercanti, the issue was not the length of the sentence imposed for offences contrary to s 30 of the Act, but rather, whether the learned sentencing judge had complied with s 19 of the Crimes Act in ordering those sentences to be served cumulatively upon a State sentence.
Perry is but one case and does not establish the range of sentences customarily imposed. We note that Boddice J (with whom McMurdo P and Muir JA agreed) considered that the authorities establish 'the appropriate head sentence is in the order of 12 months' [51]. The authorities referred to by his Honour in the relevant footnote are nearly all first instance sentences. Of course, his Honour was not attempting to in any way prescribe the outer limit of the sentencing discretion for cases of this kind.
If there is anything that can be drawn from the cases cited by the appellant, it is the importance of general deterrence in the sentencing of those convicted of offences contrary to s 33(1) or s 30 of the Act. Private examinations under the Act are an important tool to the intelligence gathering exercise necessary for the proper fulfilment of the ACC's role. It is important that those who refuse to answer questions or who falsely answer questions during an examination are adequately punished to reinforce the importance of compliance with the requirement to truthfully answer questions during such examinations. Not to do so would undermine the power of the Commission and would result in the relevant powers becoming 'a toothless paper tiger': Drever [20] and Abell [33].
Each offence was serious because it involved a high level of criminality. The appellant went to the examination on 7 June 2011 believing that he would be examined about the $150,000 which Plyukhin took to Hong Kong and deposited in Sainken's account. The appellant appreciated that he should not have sent the money overseas. He knew that others had already attended for examination about the money. In the light of these factors, he made a deliberate choice to lie to the ACC. He was fully aware of the potential consequences of doing so.
Not only were the appellant's lies deliberate, but they were persistent. He continued to lie, even after the examiner told him he knew the appellant was not being forthright (ts 130).
The effect of the appellant's lies was to thwart the ACC's investigation into what underlay the Hong Kong transaction.
The impact of custodial sentences upon the appellant's family is unfortunate, but, in truth, is no more than would normally be expected. It is certainly not exceptional and, in the circumstances, cannot be mitigatory: Mousavi v The Queen [2014] WASCA 174 [27].
The pleas of guilty and the appellant's personal circumstances were factors favourable to the appellant. However, with respect to the latter, the mitigation to be afforded to this was reduced by the need for general deterrence.
Notwithstanding the matters favourable to the appellant, the offending in this case was, in our opinion, so serious that we do not think that it can be reasonably argued that the sentences of 2 years' imprisonment on each charge were unjust or unreasonable. Nor do we think that it is reasonably arguable that the period of imprisonment the appellant will have to serve before being released on a recognisance release order was unjust or unreasonable. Having regard to all of the circumstances of the case, it was an order of appropriate severity in all of the circumstances of the offence. See Hili and Lam v The Queen [2014] WASCA 114.
Conclusion and orders
As the ground of appeal does not have reasonable prospect of succeeding, leave to appeal must be refused, with the consequence that the appeal is to be taken to be dismissed: s 27 of the Criminal Appeals Act. The orders that we would make are:
1.Leave to appeal is refused.
2.The appeal is dismissed.
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