H v The State of Western Australia
[2020] WASCA 211
•16 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: H -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 211
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 21 OCTOBER 2020
DELIVERED : 16 DECEMBER 2020
FILE NO/S: CACR 51 of 2020
BETWEEN: H
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STONE DCJ
File Number : IND XXXX of XXXX
Catchwords:
Criminal law - Appeal against sentence - Offence of property laundering under s 563A of the Criminal Code (WA) - Whether judge erred in finding as an aggravating circumstance that the appellant and his two co-offenders came to Western Australia with the intention of committing the offence - Whether judge erred in finding the appellant equally culpable with his two co-offenders
Legislation:
Criminal Code (WA) s 563A
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 7(1), s 8(1)
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | R Richter QC & P N Bevilacqua |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Bannerman Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Baker v The State of Western Australia [2020] WASCA 117
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cooper v The State of Western Australia [2020] WASCA 199
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Kabambi v The State of Western Australia [2019] WASCA 44
Khoury v The Queen [2011] NSWCCA 118; (2011) 209 A Crim R 509
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Ngo v The Queen [2017] WASCA 3
Tan v The State of Western Australia [2019] WASCA 112
Tepania v The Queen [2018] NSWCCA 247; (2018) 275 A Crim R 233
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
JUDGMENT OF THE COURT:
This is an appeal against sentence.
The appellant, X and L were jointly charged on an indictment filed in the District Court that between 15 December 2018 and 19 December 2018, at Perth and elsewhere, they each possessed money that was the proceeds of an offence contrary to s 563A(1)(b) of the Criminal Code (WA). This offence carries a statutory maximum penalty of 20 years' imprisonment.
On 27 March 2020, the appellant, X and L were convicted on their pleas of guilty of the offence in the indictment. The sentencing judge (Stone DCJ) imposed the following terms of immediate imprisonment:
•The appellant - 4 years 2 months
•L - 3 years 1 month
•X - 2 years 11 months
In each case, the sentence of immediate imprisonment was backdated to 18 December 2018 and a parole eligibility order was made.
The appellant appeals to this court on four grounds. Ground 1 alleges that his Honour erred in fact by finding the appellant was 'equally culpable' with his co‑offenders. Ground 2 alleges that the sentence imposed on the appellant infringed the parity principle because it failed to mark a material disparity with the sentences imposed on the co‑offenders. Ground 3 alleges that the sentencing judge erred in fact by finding the appellant came to Australia and then to Western Australia to commit an offence. Ground 4 alleges that the sentence imposed on the appellant was manifestly excessive. The question of leave to appeal on these grounds was referred to the hearing of the appeal.[1]
[1] Order Buss P, 16 June 2020.
For the following reasons, the appeal should be allowed and the appellant resentenced.
The facts
The prosecutor read in open court a statement of material facts dated 22 September 2019. These facts were accepted by the appellant and his co‑offenders. The sentencing judge adopted the statement of material facts and incorporated it, without repetition, into his sentencing remarks.[2] The sentencing judge also had before him the witness statements of X and L. The facts may be summarised as follows.
[2] ts 58.
At all material times, C was involved in a large‑scale money laundering syndicate.[3] At the time the appellant and the co‑offenders were sentenced, C had been charged with property laundering. Unlike the appellant and his co‑offenders, C pleaded not guilty and, as at 27 March 2020, he had not been dealt with.
[3] C was not dealt with by Stone DCJ.
On 3 September 2018, C and his partner, B, arrived in Perth on a flight from Singapore. They remained in Perth until 14 September 2018. While in Perth, C and B stayed at a hotel known as the 'Mantra on Hay', where they had stayed on previous trips to Perth. C and B were on familiar terms with a member of the hotel staff, G.[4]
[4] ts 23.
Sometime between 3 and 12 September 2018, B, on behalf of C, asked G if she would store some luggage containing children's clothing until their next trip to Perth. G agreed to this request.[5]
[5] ts 23.
On 13 September 2018, C and B brought four suitcases, two of which were wrapped in clingfilm, to G's home. C placed the suitcases in G's attic. Two of the suitcases, in fact, contained clothes. But unknown to G, the other two, being the cases wrapped in clingfilm, contained, in total, $2,027,892 in cash.[6]
[6] ts 23.
The suitcases remained in G's attic until December 2018, when C arranged for the money to be collected and transported out of Western Australia. The appellant and his co‑offenders were engaged for this purpose.[7]
[7] ts 23.
X was born in China and resided in Queensland. On 12 December 2018, the appellant and L arrived in Brisbane on a flight from Hong Kong on tourist visas.[8]
[8] ts 23.
On 14 December 2018, the appellant and his co‑offenders flew from Brisbane to Perth. Their arrival was recorded on CCTV at Perth Airport. The appellant and L each carried a black suitcase.[9]
[9] ts 24.
The appellant and his co‑offenders went together to Hertz Car Rental. At 12.40 pm, X rented a Toyota Corolla motor vehicle to be returned on 17 December 2018. A rental fee of $383 was paid by X on her credit card.[10]
[10] ts 24.
On 15 December 2018, the appellant and his co‑offenders went to Officeworks in Perth. There, the appellant and X purchased a Samsung mobile telephone. The telephone was handed to X, who paid for it in cash. A short time later, the appellant and his co‑offenders went to a JB Hi‑Fi store, where the appellant and X purchased a grey Nokia mobile telephone and a blue Nokia mobile telephone. The appellant paid for the two telephones in cash, which were then carried by X.[11]
[11] ts 24.
The blue Nokia mobile telephone was later seized by police, who downloaded from it a series of messages sent to and received from a Singaporean telephone number used by C between 6.15 pm and 10.07 pm on 15 December 2018. The messages referred to a meeting at the Intercontinental Hotel in Perth the next day. The user of the blue Nokia mobile telephone stated, 'We will wait in front of the hotel door. We don't want them to get into the CCTV'.[12]
[12] ts 24.
Also on 15 December 2018, G received a telephone call from B, during which G spoke to both B and C. During this conversation, G was informed that relatives of C, who happened to be visiting Perth and who were staying at the Intercontinental Hotel, would collect the two clingfilm‑wrapped cases. G agreed to meet the purported relatives with the two suitcases at the Intercontinental Hotel. B sent G a telephone number on which to contact the relatives. G called the number, which was answered by X, who identified herself as Mary. They arranged to meet at the Intercontinental Hotel the following day.[13]
[13] ts 24.
On 16 December 2018, G was driven to the Intercontinental Hotel by her husband. The two clingfilm‑wrapped suitcases were in the car. The appellant, X and L were in the rented Toyota Corolla which was parked in the vicinity of the Intercontinental Hotel. A short time before meeting G, L and X got out of the Toyota Corolla, leaving the appellant behind. After the vehicle in which G was travelling reached its destination near the Intercontinental Hotel, L retrieved the two clingfilm‑wrapped suitcases from G's vehicle. X handed G a bag containing perfume which, she explained, was a gift from 'Michael' (Michael being the first given name of C). The perfume had been purchased earlier that morning by X with her credit card from a pharmacy.[14] After delivering the suitcases, G telephoned B. During this call, C thanked G.[15]
[14] ts 24 - 25.
[15] Statement of material facts [24]; AB 122.
X then drove the appellant and L to their accommodation in West Perth. This accommodation had been rented via Airbnb by the appellant and was paid for using X's credit card.[16] Once at the accommodation, the appellant and L carried the suitcases inside. L gave the appellant the password for the suitcases and the appellant opened them, revealing their contents. Each of the offenders was involved in counting the money in the two suitcases. The appellant and the two co‑offenders put the money they counted into three suitcases, one of which had been collected from G and the suitcases which had been carried by the appellant and L on their arrival on 14 December 2018.
[16] ts 25.
At about 6.00 pm on 17 December 2018, the Toyota Corolla was returned to Perth Airport by L and X. X then rented a Toyota Kluger to be returned in Melbourne on 19 December 2019. A rental fee of $2,927 was paid by X on her credit card.[17] Prior to the rental of the Toyota Kluger, L had decided that the suitcases containing the money would be driven from Perth to Melbourne.
[17] ts 25.
At approximately 11.50 am on 18 December 2018, the Toyota Kluger was stopped by police on the Great Eastern Highway near Coolgardie. At the time the vehicle was stopped, L was driving, X was in the front passenger seat and the appellant was in the rear seat. The vehicle was searched by police. In the rear cargo area officers found three suitcases, each containing large sums of Australian currency bundled together with elastic bands and sealed in Cryovac bags, each in blocks of about $100,000. Attached to each suitcase was an airline baggage tag. The first suitcase had an airline baggage tag in the name of L and contained two bags of money in cash and the grey Nokia mobile telephone purchased from JB Hi‑Fi. The second suitcase had an airline baggage tag in the name of the appellant. It contained three bags of money in cash and the blue Nokia mobile telephone purchased from JB Hi‑Fi. The telephone number for this device was subscribed to the appellant. The third suitcase bore an airline baggage tag in the name of C and recorded flight details from Singapore to Perth on 3 September 2018. This suitcase contained 13 bags of money in cash. Clothing had been placed on top of the money. Two fingerprints located on the handle of this suitcase were identified as belonging to the appellant.[18]
[18] ts 26.
Police also discovered that X and L were in possession of approximately $2,000 and $5,000 in cash, respectively.[19]
[19] ts 25.
The appellant and the co‑offenders were taken to the Kalgoorlie police station. L was not interviewed because of the unavailability of an interpreter. X and the appellant participated in electronic records of interview. Initially, X declined to comment on the collection of the money, but made admissions to travelling to Perth with the appellant and L and to hiring the Toyota Corolla and Toyota Kluger. The appellant declined to comment and otherwise made no admissions.[20]
[20] ts 26.
Later, on 2 January 2019, X voluntarily provided a statement to the police in which she provided the following information,[21] which was undisputed in the proceedings before the sentencing judge:
(a)After the purchase of the Nokia mobile telephones, L asked the appellant to put a SIM card in the blue Nokia mobile telephone.
(b)L received a call from 'Michael' on the blue Nokia mobile telephone. X spoke to the caller, who told her that he was in Singapore and wanted L to get his suitcases to him.
(c)X communicated with G by telephone and identified herself as Mary.
(d)The day after this call, the suitcases were collected from G. X claimed that she was unaware of their contents, but suspected 'it was something bad'.[22]
(e)L loaded the suitcases into the hire car. X drove to their accommodation where L and the appellant carried the suitcases inside.
(f)L gave the appellant the password for the suitcases, which the appellant opened. Each was full of money.
(g)X, L and the appellant were involved in counting the money inside the suitcases which totalled more than $2 million.
(h)It was L who decided to drive to Melbourne. L told X to throw out her suitcase. They then began packing the money into one of the suitcases collected from G. As not all of it would fit into that suitcase, some money was placed into the suitcases belonging to L and the appellant.
[21] Statement of material facts [42]; AB 124 - 125.
[22] AB 124.
The appellant's antecedents
The appellant was born in Hong Kong. He was 21 years of age when he committed the offence and 22 when he was sentenced. He has no prior criminal history. His parents, brother and girlfriend all reside in Hong Kong. The appellant attended high school in Malaysia. Since completing his schooling, he was employed by his mother at her clothing shop.[23]
[23] ts 61.
The pre‑sentence report and other material before his Honour revealed that the appellant had an unhappy childhood and was bullied at school.[24]
[24] ts 63.
At the time of the commission of the offence, the appellant was an addicted gambler. As will be seen, it was submitted by the appellant's counsel in his plea in mitigation that the appellant's offending was linked to his gambling addiction. It was submitted that the appellant agreed to come to Australia to perform 'a number of tasks' for loan sharks to whom he was indebted in the sum of approximately HK$50,000 (around AUD$10,000).[25]
[25] Offender's submissions on sentence [1a]; AB 127.
The appellant's arrival in Australia on 12 December 2018 was his second visit to this country in that year. In March 2018, he and L visited Australia for a period of about one month. It was not alleged that anything illegal occurred on this trip. According to defence counsel, the appellant's role at that time was to act as L's interpreter.[26]
[26] Offender's submissions on sentence [1b]; AB 127.
Since his arrest on 18 December 2018, the appellant has engaged in rehabilitative programs while in custody.[27] A number of letters were provided to the sentencing judge which spoke well of the appellant.[28]
[27] ts 62.
[28] ts 61.
The appellant's submissions to the sentencing judge
In written submissions filed on behalf of the appellant prior to the sentencing proceedings on 27 March 2020,[29] it was submitted that his Honour should make particular findings of fact for the purposes of sentencing, including:
[29] Offender's submissions on sentence; AB 126 - 135.
(a)In 2017, the appellant borrowed money from loan sharks in order to gamble. He became indebted to the loan sharks for around HK$50,000 (approximately AUD$10,000). The loan sharks told the appellant that if he performed a number of tasks for them, including coming to Australia with L, the money he owed would be forgiven. The appellant feared the repercussions if he did not agree to what the loan sharks asked. Other than the forgiveness of the debt, the appellant was not paid for his role in the offence he committed.
(b)At the time the appellant arrived in Australia with L in December 2018, he still owed the loan sharks about AUD$2,000. He did not know the purpose of the trip before he arrived in Australia. The appellant's primary role was to act as L's interpreter and also to perform 'other menial roles at L's instruction such as buying food and cigarettes and booking accommodation'.[30]
(c)The appellant first met X in Brisbane just prior to their travel to Perth.
(d)While in Perth:
(i)L selected a number of mobile telephones to purchase and provided the appellant with the money to pay for them.
(ii)The appellant acted as L's interpreter in shops as L's English was limited.
(iii)The appellant did not have any contact with G, nor did he play any role in making any arrangements for the suitcases stored by G to be delivered.
(iv)On the day the suitcases were collected, the appellant drove to the Intercontinental Hotel and waited in the car while L and X collected the suitcases containing the money from G.
(v)Until the suitcases that had been collected from G were opened, the appellant did not realise that they would contain money. Once the suitcases were opened, the appellant assisted in counting the money and became aware of the approximate total sum of money that had been collected.
(vi)Although the appellant did not know the source of the money, he accepted that it must have been the proceeds of a crime. Because of his involvement in illegal gambling in Hong Kong, he believed the money may have been the proceeds of illegal gambling.
[30] Offender's submissions on sentence [7]; AB 127.
As to the roles of the offenders, the written submissions filed on behalf of the appellant contended, in substance, that:
(a)C was involved in a large‑scale money laundering syndicate and organised the storage of the suitcases containing money at G's home and (along with B) arranged for the suitcases to be delivered to the appellant, L and X.[31]
[31] Offender's submissions on sentence [8]; AB 129.
(b)L's role included:[32]
[32] Offender's submissions on sentence [10]; AB 129 - 130.
(i)directing X and the appellant to purchase the mobile telephones;
(ii)speaking with C regarding the collection of the suitcases;
(iii)deciding what role he, X and the appellant would play at the meeting to collect the suitcases;
(iv)physically collecting the suitcases along with X;
(v)receiving a telephone call which revealed the password to unlock the suitcases;
(vi)counting the money in the suitcases;
(vii)deciding that he, X and the appellant would drive to Melbourne with the money;
(viii)directing X to swap the original hire car with a larger car and accompanying X to the airport to effect the swap;
(ix)directing the appellant and X as to how to repackage the money for the trip to Melbourne; and
(x)taking turns with X when driving the Toyota Kluger from Perth towards Kalgoorlie.
It was also contended, on behalf of the appellant, that L was likely aware that the suitcases contained money.
As to X's role, it was contended on behalf of the appellant that text messages downloaded from her mobile telephone revealed that she was aware that the purpose of the trip was to collect a large amount of money. It was submitted that X:[33]
(a)hired and paid for the Toyota Corolla and later the Toyota Kluger;
(b)paid for, at L's direction, the Samsung telephone at Officeworks and later took possession of the two Nokia mobile telephones that were purchased from JB Hi‑Fi;
(c)paid for the offenders' accommodation in Perth;
(d)at L's request, communicated with C and G;
(e)along with L, met with G outside the Intercontinental Hotel, collected the suitcases and gave G the perfume;
(f)assisted in counting the money in the suitcases; and
(g)took turns, along with L, in driving the Toyota Kluger between Perth and Kalgoorlie.
[33] Offender's submissions on sentence [11]; AB 131 - 132.
As to the appellant's role, it was acknowledged that:[34]
[34] Offender's submissions on sentence [12]; AB 132 - 133.
(a)he, along with L, travelled from Hong Kong to Brisbane, and then travelled with L and X from Brisbane to Perth;
(b)he performed general menial tasks for L, including acting as his interpreter;
(c)at L's request, he paid in cash for the two Nokia mobile telephones;
(d)he gave X his details for the accommodation that was booked in his name;
(e)at L's direction, he put the SIM card into the blue Nokia mobile telephone;
(f)he waited in the car at the Intercontinental Hotel while L and X collected the suitcases;
(g)he helped carry the suitcases to the apartment being occupied by him and his co‑offenders;
(h)he opened the suitcases using the password provided by L;
(i)he helped count the money in the suitcases; and
(j)he travelled in the Toyota Kluger from Perth towards Melbourne.
It was submitted on behalf of the appellant that he was the least culpable of the three offenders for seven reasons which were expressed in these terms:[35]
(a)He came to Australia at L's request and followed L's instructions whilst he was here.
(b)His role was limited to acting as L's interpreter, which included assisting him in shops, and fulfilling menial tasks such as booking accommodation, buying food and cigarettes. This is confirmed by X's statement which says, 'L would always get [the appellant] to do things for him. L would always ask [the appellant] to buy food, buy cigarettes, just do odd jobs like that'.
(c)L made even the small decisions, such as what type of car to hire, where to stay in Perth and what types of mobile phones to buy.
(d)L was also the main person who liaised with others about the collection of the suitcases.
(e)L decided who out of [the appellant] and X would perform which role in the collection of the suitcases.
(f)In comparison to X, [the appellant] had no direct contact with the people who were delivering the suitcases - X spoke to C and G on the telephone and together with L collected the suitcases from G. X also sent and received the messages referred to at paragraph 11(a) and appeared to know the purpose of her trip to Perth.
(g)[The appellant] was unaware until the suitcases were opened that they contained money, and was unaware of its origin and destination.
[35] Offender's submissions on sentence [14]; AB 133 - 134.
In further written submissions made on behalf of the appellant,[36] it was submitted that a statement given by L to police dated 27 December 2019 generally supported the appellant's position that:
(a)L was the most senior or trusted of the three offenders.
(b)Unlike X, the appellant had no direct contact with C and G.
(c)The appellant agreed to come to Perth as a way of extinguishing the debt he owed to the loan sharks.
[36] Offender's submissions on sentence; AB 149 - 151.
X
At the time of the offence, X was 24 years of age. She was 25 when she was sentenced. X has no criminal record. X was born in China and came to Australia when she was 12 years of age.[37] Her father and brother reside in Queensland and her mother resides in China. After completing year 12, she began study for a Bachelor of Science, but did not complete her degree. She has worked in various fast‑food outlets, most recently in a managerial position.[38]
[37] ts 59.
[38] ts 60.
After her arrest, X cooperated with authorities and gave a written statement to the police, making full admissions as to her involvement in the offence and gave an undertaking to the prosecution to give evidence at C's trial.[39]
[39] ts 60.
According to the statement given to police by X on 2 January 2019,[40] she was contacted by L in mid‑November 2018 and asked if she would go to Perth in December. At the time, she owed L $1,500. They agreed that if X went to Perth to help L the debt would be 'wiped'.
[40] AB 353 - 389.
In the statement, X said, in essence, she:
(a)Booked and paid for the flights from Brisbane to Perth.
(b)Travelled to Perth with L and the appellant.
(c)Hired and paid for the Toyota Corolla.
(d)Paid the deposit on the accommodation the appellant had booked on Airbnb.
(e)Paid for the Samsung mobile telephone purchased at Officeworks.
(f)Took possession of the Nokia mobile telephones purchased at JB Hi‑Fi.
(g)Acted as L's translator in a telephone conversation he had with 'Michael' who, according to X, referred to a woman dropping off suitcases and that he (Michael) wanted L to get them to Singapore.
(h)Sent a text message at about 5.00 pm on 15 December 2018 to 'Michael', using the blue Nokia mobile telephone, inquiring about what was going on with the suitcases. On the same day, between 5.30 pm and 6.30 pm, X received a telephone call from a woman (G). L told her to use the name 'Mary'.
(i)Received a telephone call on 16 December 2018 on the blue Nokia mobile telephone from a woman (G) making arrangements for the delivery of the suitcases to the Intercontinental Hotel.
(j)Along with L, met G in front of the Intercontinental Hotel and gave G some perfume. X tried to move the suitcases, but they were too heavy, so L wheeled both of the suitcases back to the Toyota Corolla.
(k)Drove the Toyota Corolla back to the accommodation being occupied by her and the co‑offenders.
(l)Helped count the money in the suitcases, completed the paperwork at the Perth Airport for the hire of the Toyota Kluger and paid approximately $3,000 for its hire.
(m)Shared the driving of the Toyota Kluger from Perth until she and the co‑offenders were arrested.
L
At the time of the commission of the offence, L was 33 years of age. He was 34 when he was sentenced. L was born in China and moved to Hong Kong in 1996. He has no prior criminal record. L completed primary school in Hong Kong and since then has worked as a delivery worker.[41]
[41] ts 63.
After L's arrest he agreed to provide police with a detailed statement as to his involvement and he gave an undertaking to provide future cooperation to assist in the prosecution of C.[42]
[42] ts 63.
In his statement, L said:[43]
[43] AB 189 - 199.
(a)An acquaintance of his in Hong Kong named F asked him if he wanted to earn extra money by going to Perth to collect money from one person and give it to another.
(b)F told him that this involved 'just a minor offence, something like tax evasion'.
(c)Eventually, L agreed to help F.
(d)F told him that he would hire two people to assist him, being X and the appellant.
(e)F gave him HK$50,000 for expenses for his trip and he was to be paid HK$3,000 after he had accomplished the task.
(f)He and the appellant flew from Hong Kong to Brisbane to meet with X and, after spending two days in Brisbane, all three of them flew to Perth.
(g)While in Perth, L received messages and calls from F who told him to monitor X and the appellant.
(h)A Singaporean called 'Michael' gave instructions about collecting 'the cash' in Perth.
(i)Instructions were given to L from 'Michael' via X to meet a couple in Perth and give them perfume in exchange for two cases of money.
(j)The exchange took place at a hotel in the Perth city centre.
(k)The suitcases were brought back to their accommodation. Once the suitcases were opened, he observed that there was 'lots of airtight plastic packets of Australian money mostly in $50 notes' which he, X and the appellant counted.
(l)While the money was being counted, F called him and X to obtain information as to how much money was in these suitcases.
(m)F told L that he (F) was not concerned about the appellant because 'he [the appellant] dare not betray F because F had something over him and had information about him'.
(n)F asked L if he would assist in delivering the money to a friend of F's in Melbourne. L understood that F had also asked the same of X and the appellant.
(o)All three offenders agreed to drive the cases of money to Melbourne.
The sentencing proceedings
The sentencing judge heard oral submissions from counsel for X first. Counsel for X submitted that, apart from X's cooperation, there was not much to distinguish between X and the appellant, to which his Honour responded:[44]
Well, it seems to me on the face of it, subject to what counsel have to say, that there's very little that distinguished between all three of them other than age and undertakings. At the end of the day each was a courier.
[44] ts 33.
Counsel for X responded by submitting that L was 'the senior courier', a proposition which the sentencing judge said, in effect, he did not accept.[45]
[45] ts 33 - 34.
In his oral submissions, senior counsel for the appellant submitted to the sentencing judge that the appellant, essentially, acted under the direction of L.[46] Consistent with his written submissions, senior counsel contended that the appellant was the least culpable of the three offenders, but if his Honour was not prepared to accept this, his Honour, at least, ought to distinguish between L's role on the one hand, and that of X and the appellant on the other.[47] The sentencing judge said that he was 'struggling' to accept this submission.[48]
[46] ts 41, 43.
[47] ts 43.
[48] ts 44.
Counsel for L submitted that L 'was effectively on an equal footing to [the appellant] and [X] …'.[49]
[49] ts 47.
In its written submissions, the State took no issue with the submission advanced on behalf of the appellant that he subjectively believed that the money in the suitcases may have been the proceeds of illegal gambling. Nor did the State take issue with the proposition that the appellant may not have initially appreciated that the purpose of travelling to Perth was to transport illicitly‑derived money. However, the State submitted that the appellant could not have been under the illusion when he travelled to Perth that the trip was for anything other than 'a nefarious purpose', and that he could not have been 'completely oblivious to the possibility that it might entail unlawful activities'.[50] The State also accepted that the appellant and X were each less culpable than L, and that X was more culpable than the appellant.[51]
[50] State's written sentencing submissions [12], [16]; AB 138 - 139.
[51] State's written sentencing submissions [59], [61]; AB 146.
The State submitted that, apart from issues of cooperation with the police, parity did not require any material distinction between the sentences imposed on X and the appellant, but did justify a difference in the length of the term to be imposed on L in order to reflect his (L's) greater role in the criminal enterprise.[52]
[52] State's written sentencing submissions [62]; AB 146.
In the prosecutor's oral submissions, which were made after the sentencing judge heard from defence counsel for the appellant, L and X, and after the statements made by his Honour referred to at [44] and [46] above, the prosecutor said that the State agreed with the submissions made by senior counsel for the appellant that the acts done by the appellant 'were lesser in nature and number' than either L or X.[53] The prosecutor added that the acts performed by X and L were 'more significant than the acts performed by [the appellant]'.[54]
[53] ts 53.
[54] ts 54.
The sentencing remarks
After dealing with the facts of the offending, his Honour identified the following aggravating factors:[55]
(1)The offence was committed in company.
(2)The offenders came from 'overseas and interstate to commit the offence in this State' (emphasis added).
(3)The money in the suitcases was the proceeds of a 'large‑scale money laundering syndicate and, on the available evidence, orchestrated from overseas'.
(4)The amount of money involved in the offence, over $2 million, was a significant sum derived 'from an unknown offence or unknown offences'.
(5)The offender's actions 'were deliberate'.
(6)As the money was in cash, it was 'more difficult to track or identify those involved in the … offence or offences committed to obtain it'.
(7)The offender's actions were persistent.
(8)The offender's motivation was 'commercial gain'. In the appellant's case, his Honour accepted that he owed money to loan sharks and that he committed the offence as a means of clearing his debt.
[55] ts 58 - 59.
The second aggravating factor is challenged in ground 3.
His Honour identified a number of mitigating factors with respect to each offender. With respect to X, the mitigating factors identified were:[56]
(a)Her plea of guilty made before she was committed to the District Court.
(b)Her remorse.
(c)The cooperation she gave to the police, including the giving of a written statement and an undertaking to give evidence at the trial of C.
(d)Her youth.
(e)The steps she had taken to rehabilitate herself in prison.
(f)Her prior good character.
[56] ts 60 - 61.
With respect to the appellant, his Honour identified the following mitigating factors:[57]
(a)His plea of guilty which was entered before he was committed to the District Court.
(b)His remorse as demonstrated by his plea of guilty and the contents of a letter the appellant sent to the sentencing judge.
(c)His youth.
(d)The steps he had taken to rehabilitate himself in prison.
(e)His prior good conduct.
[57] ts 62.
His Honour noted the contents of the pre‑sentence report concerning the appellant and, in particular, that his offending behaviour was linked to his gambling addiction. His Honour observed that the appellant had taken steps in custody to address this and other personal issues.
As to L, his Honour found the following mitigating circumstances:[58]
(a)He had no prior criminal record.
(b)His plea of guilty before committal to the District Court.
(c)His remorse.
(d)His cooperation with authorities and his offer of future cooperation to assist the prosecution of C.
[58] ts 63.
In relation to all of the offenders, his Honour noted that each would suffer hardship as a result of being imprisoned in Western Australia, away from family. However, his Honour said that this matter attracted little mitigatory weight because each of the offenders had made a deliberate decision to commit the offence in this State.[59]
[59] ts 61, 62, 63, 64.
As to the roles played by each of the offenders, his Honour said that he had listened carefully to the submissions of defence counsel and the prosecutor and that he had carefully examined the prosecution brief. His Honour found that, 'On all of the available evidence, I am satisfied that you were equally culpable'.[60] This finding is challenged by ground 1. His Honour's reasoning was expressed as follows:[61]
In this case the offending is aggravated by the factors to which I have referred. I accept you did not know the ultimate destination of the money but it appears to be much higher up in the syndicate. I accept you did not know the source of the offence or offences committed to obtain the money. This reduces your moral culpability somewhat but not your legal responsibility. However, little weight attaches to that for the reasons stated in Tan at paragraph 53 and I don't need to elaborate on that.
I turn now to your role. I've listened carefully to the submissions of the defence counsel and the State on the question of the role of each of you. I have carefully examined the prosecution brief.
It seems to me that on all the available evidence each of you took significant steps to deal with the money and each of you played an active role in that.
Each of you played an essential role in my view in obtaining the money and transporting it, although you were recruited by others who may have been members of the syndicate.
In your case, [X], you were recruited by [L], but claimed [L] gave you and [the appellant] instructions. You spoke directly to [C] on the phone. In your case, [appellant], you were recruited by a friend. That's what you claim.
In your case, [L], you were recruited by [F] to keep an eye on [X] and [the appellant], but looking at what each of you did then individually and in combination it seemed to me that each of you were in effect a courier for the syndicate and on all of the available evidence I am satisfied that you were equally culpable.
You were couriers for reward. What distinguishes you is the level of cooperation with the authorities and your age. There's clearly a need in this case for specific deterrence and there's an overwhelming need for general deterrence.
[60] ts 66.
[61] ts 65 - 66.
In the case of each offender, pursuant to s 9AA of the Sentencing Act 1995 (WA), his Honour reduced 'the head sentence' by 20%.[62]
[62] ts 66.
In the case of X and L, he reduced the sentence, after taking into account the other mitigating factors, by 30% for their future cooperation in the prosecution of C.[63]
[63] ts 66.
Appeals against sentence - general principles
The general principles applicable to appeals against sentence are well‑established and were recently stated by this court in Kabambi v The State of Western Australia,[64] as follows:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[64] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The parity principle
In Ngo v The Queen,[65] Buss P (Mazza JA agreeing) set out the legal principles applicable to the parity principle as follows:
[65] Ngo v The Queen [2017] WASCA 3 [36] ‑ [40].
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ), 613 (Mason J), 623 ‑ 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 ‑ 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P, McLure JA agreeing).
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a)the parity principle is based upon the norm of 'equality before the law' [28];
(b)equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c)equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].
It has often been said that it is desirable for co-offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. See Lowe (617, 622); Postiglione (320).
The grounds of appeal
It is convenient to deal at the outset with the allegations of express error. We will deal with ground 3 first and then ground 1.
Ground 3
As expressed in the appellant's case, ground 3 reads:
The sentencing judge erred in fact by finding the appellant 'came to Australia and to Western Australia to commit an offence'.
The ground of appeal in fact misquotes what his Honour said in his sentencing remarks. The sentencing judge referred to the second of the aggravating factors which applied to all three offenders, in these terms:[66]
Secondly, you came from overseas and interstate to commit the offence in this State. (emphasis added)
[66] ts 58.
As argued by senior counsel for the appellant, ground 3 seeks to impugn the finding of the sentencing judge as one of the aggravating factors that the appellant and his co‑offenders came to Western Australia with the intention of committing the offence of property laundering.[67]
[67] Appeal ts 13.
Senior counsel submitted that on the evidence before the sentencing judge, at its highest, his Honour may have held that the appellant came to Western Australia believing he would be engaging in 'something likely to be illegal', but it was only when the two suitcases were opened that the appellant actually became aware of their contents and that he was committing the offence with which he was ultimately charged.[68]
[68] Appeal ts 13.
It was said on behalf of the appellant that in these circumstances it was not open to his Honour to be satisfied beyond reasonable doubt that the appellant came to Western Australia to commit the offence of property laundering.
It was submitted on behalf of the respondent that the impugned finding should not be read literally, bearing in mind that it was made as part of extemporaneous sentencing remarks and that the finding should be understood to mean that the offenders came to Western Australia solely for the purpose of criminal activity.[69]
[69] Appeal ts 23.
Alternatively, counsel for the respondent submitted that, having regard to a combination of three factors, being:[70]
(1)a statement made by the appellant to the author of the pre‑sentence report to the effect that he came to Australia with the realisation that his activities would likely be illegal;
(2)that the appellant stood to gain financial benefit from his involvement in these activities; and
(3)that the appellant did not engage in any other activity while in Western Australia other than to obtain the suitcases packed with money;
it was open to his Honour to make the finding that he did.
Ground 3 - disposition
[70] Appeal ts 24.
As this court recently stated in Baker v The State of Western Australia,[71] an aggravating circumstance is a fact or other circumstance likely to result in a more severe sentence than would otherwise be the case. The prosecution must establish an aggravating circumstance beyond reasonable doubt.
[71] Baker v The State of Western Australia [2020] WASCA 117 [41].
We accept that it would be an aggravating factor for the purposes of sentence that the appellant entered Western Australia with the intention of committing the offence for which the appellant and his co‑offenders were charged. It would also be an aggravating factor if the appellant and his co‑offenders came to Western Australia knowing they would likely be engaging in illegal activity.
On our examination of the record of proceedings before the sentencing judge, at no time did the State contend that the appellant and his co‑offenders came to Western Australia with the intention of committing the offence of property laundering. However, the State clearly articulated a position that the appellant and his co‑offenders came to Western Australia for a nefarious purpose likely to involve illegal conduct and only discovered the precise nature of what they were required to do after they arrived in Western Australia.
The submissions made on behalf of the appellant in the sentencing proceedings were substantially to the same effect as those put by the State.
His Honour did not indicate in the course of either counsel's submissions that he was not prepared to accept the submissions made on this point.
In these circumstances, it was not open to the sentencing judge to be satisfied beyond reasonable doubt that the appellant and his co‑offenders entered Western Australia with the intention of committing the offence of property laundering. Thus, the finding, as literally expressed by his Honour, was erroneous. However, in our opinion, his Honour's use of the definite article before the word 'offence' in the impugned finding was, more likely than not, a slip of the tongue and that his Honour meant to use the indefinite article before the word 'offence'. Our reasons for this conclusion are as follows.
As counsel for the respondent pointed out, his Honour's sentencing remarks were delivered extemporaneously, which brings with it a heightened risk of some infelicitude of language. Moreover, in light of the parties' clear submissions summarised above, it is difficult to see how his Honour could have thought that the appellant and his co‑offenders entered Western Australia with the intention of committing the offence of property laundering as opposed to entering the State with the intention that they would likely be carrying out some kind of illegal activity.
Therefore, in our opinion, his Honour's finding should be understood as being a finding that the appellant and his co‑offenders entered Western Australia with the intention of committing an offence.
Even if his Honour's finding was not a slip of the tongue, we are not satisfied that it was a material error.
An express error that does not affect, or is incapable of affecting, the sentence imposed is not a material error and does not enliven this court's jurisdiction to resentence an offender: Cooper v The State of Western Australia.[72]
[72] Cooper v The State of Western Australia [2020] WASCA 199 [150].
In the present case, it is accepted that the appellant (and his co‑offenders) came to Western Australia knowing that it was likely that he would be involved in illegal activity of some kind. A finding to this effect would, as we have said, be an aggravating sentencing factor. Thus, whether the appellant came to Western Australia with the intention of committing the offence of property laundering or in the knowledge that he was likely to be undertaking illegal activity of some kind did not amount to a difference which affected or was capable of affecting the sentence imposed by his Honour.
While we would grant leave to appeal on ground 3, the ground has not been made out.
Ground 1
Ground 1 reads:
The sentencing judge erred in fact by finding the appellant was 'equally culpable' with his co‑offenders.
It will be recalled that in his Honour's sentencing remarks he found that the appellant and his co‑offenders were each couriers for reward and that he was satisfied on all of the available evidence that each of them was 'equally culpable'.[73]
[73] ts 66.
It will also be recalled that in the sentencing proceedings defence counsel submitted that the appellant was the least culpable of the three offenders; alternatively, X and the appellant were less culpable than L. In response to these submissions, his Honour indicated that he did not accept them and that his preliminary view was that all three offenders were equally culpable. However, the prosecutor, in submissions made after the plea in mitigation by the appellant's senior counsel, accepted that the acts done by the appellant 'were lesser in nature and number than his co‑offenders'[74] and 'that the acts performed by X and L were more significant than the acts performed by [the appellant]'.[75] His Honour did not controvert these submissions.
[74] ts 53.
[75] ts 54.
In this court, senior counsel for the appellant, while accepting (as he must) that the appellant and his co‑offenders were each equally criminally responsible for the commission of the offence, drew attention to the respondent's submissions in the court below that the objective seriousness of the appellant's acts were lesser in nature and number than his co‑offenders, and submitted that his Honour should have made findings to this effect. It was further submitted that the appellant's moral culpability was less than his co‑offenders, having regard to, as senior counsel put it:[76]
Issues of coercion, the issue of what's to be the reward, the issue of whether there was a possibility of withdrawal from the joint enterprise, [and] the issue of whether there was a financial gain to be obtained.
[76] Appeal ts 15.
On behalf of the respondent, it was submitted that his Honour's finding that the appellant and his co‑offenders were 'equally culpable' meant no more than they were each equally criminally responsible.[77] Counsel for the respondent accepted that the sentencing judge made no findings about the moral culpability of the appellant and his co‑offenders.[78] Consistent with the position of the respondent at first instance, counsel for the respondent did not submit that the appellant's role in the commission of the offence was equal to that of his co‑offenders.
Observations about the term 'culpable'
[77] Appeal ts 19.
[78] Appeal ts 19.
Before dealing with the parties' submissions on ground 1, it is appropriate to make some brief observations about the assessment of an offender's culpability for the purposes of sentencing. These observations are by no means exhaustive.
A fundamental principle of sentencing in this State is that a sentence imposed on an offender must be commensurate with the seriousness of the offence: s 6(1) of the Sentencing Act. Section 6(2) provides that the seriousness of an offence must be determined by taking into account:
(a)the statutory penalty for the offence;
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;
(c)any aggravating factors; and
(d)any mitigating factors.
The word 'culpability' appears in s 7(1) and s 8(1) of the Sentencing Act. Section 7(1) states that aggravating factors are factors which, in the court's opinion, increase the culpability of the offender. Section 8(1) states that mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
The word 'culpability' is not defined in the Sentencing Act. 'Culpability', as it applies to sentencing, is a broad concept and involves an assessment of an offender's blameworthiness.[79]
[79] See M Bagaric, T Alexander and R Edney, Sentencing in Australia (8th ed) Lawbook Co [350.1700].
Any assessment of an offender's culpability includes an assessment of the objective gravity of an offence.[80]
[80] See Khoury v The Queen [2011] NSWCCA 118; (2011) 209 A Crim R 509 [71].
However, the assessment of an offender's culpability involves more than an assessment of the objective gravity of an offence. The concept of 'moral culpability', which was used by senior counsel for the appellant in his submissions to this court, as Johnson J (Payne JA & Simpson AJA agreeing) pointed out in Tepania v The Queen,[81] 'has been used (in a somewhat flexible way) as part of the general law of sentencing'. As his Honour observed,[82] the term is found in several decisions of the High Court, namely Veen v The Queen (No 2);[83] Muldrock v The Queen;[84] Munda v The State of Western Australia;[85] Bugmy v The Queen[86] and Filippou v The Queen.[87] These cases reveal that the term is usually used in the context of factors or circumstances personal to an offender which explain and mitigate what he or she has done. An assessment of an offender's culpability will usually involve an assessment of the objective gravity of the offence and his or her moral culpability.
The meaning of his Honour's finding that the appellant and his co‑offenders were 'equally culpable'
[81] Tepania v The Queen [2018] NSWCCA 247; (2018) 275 A Crim R 233 [113].
[82] Tepania [113] - [117].
[83] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476 ‑ 477.
[84] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [58].
[85] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [57].
[86] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [44].
[87] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [70].
The parties have differing understandings as to what his Honour's finding that the appellant and his co‑offenders were 'equally culpable' meant. If the respondent's contention that the term meant no more than that all three offenders were equally criminally responsible is correct, ground 1 would fail because such a proposition is uncontroversial and would be plainly correct. However, we do not accept that his Honour's finding was merely a statement that the appellant and his co‑offenders were equally criminally responsible.
In our opinion, his Honour's finding, when read in context, plainly refers to the role that each of the appellant and his co‑offenders played in the commission of the offence. This may be seen from the passage in his Honour's sentencing remarks which is reproduced at [58] of these reasons and, in particular, in the second paragraph of the quotation which begins with the sentence 'I now turn to your role'. What follows is a very brief and, with great respect to the sentencing judge, an incomplete description of the acts of X and L. There is no summary of the appellant's actions. At the conclusion of the summary, his Honour makes the finding 'I am satisfied that you were equally culpable', characterising the offenders as 'couriers for reward'. In context then, his Honour's finding that the appellant and his co‑offenders were 'equally culpable' amounts to a finding that each played an equal role in the commission of the offence.
His Honour's finding is erroneous
We are unable to accept that, on the evidence before his Honour and having regard to the submissions that were made by counsel for the State in the proceedings below, the appellant played an equal role with his co‑offenders in the commission of the offence. It is clear from the evidence before his Honour that the appellant, who was the youngest of the three offenders, performed the tasks which were allocated to him, essentially at L's direction, and which were designed to assist either L or X, or both. There is no evidence that the appellant made any decision of his own to commit any of the acts which constituted the offence.
As was accepted in the sentencing hearing, the appellant had no contact with C or F. While it could not be said that the role played by the appellant was unimportant, given that he helped count and repackage the cash that C had left with G and he was involved in the journey to transport the money to Victoria, it was of a lesser magnitude than the role played by L or, indeed, by X. X, unlike the appellant, spoke to C and liaised with G over the collection of the suitcases at the Intercontinental Hotel. It cannot be overlooked that, at the sentencing hearing, the State accepted that the appellant's role was less than that of L and X. Although it is true that his Honour said, in the course of defence counsel's plea in mitigation on behalf of the appellant, that he did not accept that the appellant was the least culpable of the offenders and that he thought that they were all equally culpable, he did not controvert the State's submissions as to the appellant's role. For all of these reasons, his Honour erred in finding that the appellant was, with respect to the role that he played in the commission of the offence, 'equally culpable' with his co‑offenders.
There is a further reason why his Honour's finding as to the appellant's culpability was erroneous. As counsel for the respondent accepted, in essence, before this court, his Honour's finding as to the appellant's culpability did not take into account the appellant's moral culpability. In our opinion, his Honour's assessment of the appellant's culpability required that he take this matter into account. The appellant was, at the time he committed the offence, a youthful offender. He was only 21 years of age. He was indebted to loan sharks in Hong Kong for what was, having regard to his living standards at the time, a substantial sum of money, with no obvious prospects of repayment. He was, by reason of his age and situation, vulnerable to exploitation by those above him in this criminal syndicate. By comparison, neither L nor X were as vulnerable to exploitation as the appellant. We accept that the discharge of the debt to the loan sharks was a commercial benefit to the appellant, but the debt also made him, as we have said, vulnerable.
Senior counsel for the appellant raised as an issue, which he said reduced the appellant's moral culpability, that there was little or no possibility that the appellant could withdraw from the enterprise once the appellant became aware that he was involved in the laundering of a large quantity of cash.[88] We do not accept senior counsel's submission that this was a matter which reduced the appellant's moral culpability. This is because there was no evidence before the sentencing judge that the appellant sought to withdraw from the enterprise. Nor do we think that any issue of coercion was relevant to the appellant's moral culpability. In this regard, when the matter of duress was raised in the sentencing proceedings, senior counsel for the appellant informed the sentencing judge that any issue of duress was relevant only as an explanation for why the appellant had not agreed to assist the authorities.[89]
Ground 1 - conclusion
[88] Appeal ts 11 - 12.
[89] ts 48.
For the reasons set out above, ground 1 has been made out. The error made by the sentencing judge was plainly material. This court's discretion to resentence the appellant has been enlivened.
Grounds 2 and 4
Having regard to the outcome of ground 1, it is unnecessary to decide grounds 2 and 4. With respect to ground 4, which alleged that the sentence imposed upon the appellant was manifestly excessive, we observe that, in his oral submissions, senior counsel for the appellant did not press the ground.
Resentencing
This court has all the materials required to resentence the appellant.
It was not suggested by senior counsel for the appellant that on any resentencing by this court, a sentence other than immediate imprisonment was appropriate. Clearly, notwithstanding the mitigating factors, the objective seriousness of the offence committed by the appellant requires the imposition of an immediate term of imprisonment.
The maximum penalty for an offence of property laundering contrary to s 563A(1)(b) of the Criminal Code is, as we have said, 20 years' imprisonment. General deterrence is an important sentencing factor with respect to offences of this kind. As this court said in Tan v The State of Western Australia:[90]
The laundering of the proceeds of criminal activity is the lifeblood of organised crime. To state the obvious, the ultimate object of much of the criminal activity in which such organisations engage is to obtain money in a form in which it can be used without alerting the law enforcement authorities. The laundering of the proceeds of criminal activity is often the essential final step in achieving that object. This underscores the importance of general deterrence in sentencing for offences of this kind.
[90] Tan v The State of Western Australia [2019] WASCA 112 [50].
It is unnecessary to repeat the facts of the appellant's offending. The appellant and his co‑offenders came to Western Australia knowing that it was likely that they would be involved in illegal activity. Although the appellant was, in our opinion, the least culpable of the offenders, his role was, nevertheless, significant, particularly having regard to his role in counting the approximately $2 million in cash, repacking the suitcases, and transporting the money on the intended journey to Victoria. The appellant did not stand to obtain any actual payment for his services, but he was to benefit by the extinguishment of his debt to loan sharks in Hong Kong.
The principal mitigating factors were the appellant's plea of guilty, his youth and his prior good character.
The appellant's plea of guilty was not entered at the first reasonable opportunity. In our opinion, the appropriate reduction for the plea of guilty, having regard to s 9AA of the Sentencing Act, is 20%.
In resentencing the appellant, it is necessary to have regard to the parity principle, described at [62] of these reasons.
All other things being equal, having regard to the appellant's culpability and youth compared to that of his co‑offenders, the appellant should receive a sentence less than that of L and X, both of whom were more culpable and were older than the appellant. However, the circumstances of both L and X were different from the appellant because they each cooperated with law enforcement authorities, including by giving an undertaking to testify against C, which attracted a discount for each of them of 30%. The appellant did not have the advantage of this mitigating factor.
Having regard to all relevant sentencing considerations, including the application of the parity principle, in our opinion the appropriate sentence for the offence committed by the appellant is 3 years 6 months' immediate imprisonment. A parole eligibility order should be made and the sentence should be backdated to 18 December 2018.
Orders
The orders we would make are as follows:
(1)Leave to appeal is granted on grounds 1 and 3.
(2)Leave to appeal is refused on grounds 2 and 4.
(3)The appeal is allowed.
(4)The sentence imposed by Stone DCJ on 27 March 2020 is set aside.
(5)The appellant is resentenced to 3 years 6 months' immediate imprisonment with eligibility for parole backdated to 18 December 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Honourable Justice Mazza
16 DECEMBER 2020
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