Jeremy Cox (a pseudonym)[1] and v The Queen
[2016] VSCA 134
•10 June 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0030
| JEREMY COX (A PSEUDONYM)[1] | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym
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| JUDGES: | REDLICH, SANTAMARIA and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 May 2016 |
| DATE OF JUDGMENT: | 10 June 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 134 |
| JUDGMENT APPEALED FROM: | Director of Public Prosecutions (Cth) v [Jeremy Cox] (Unreported, County Court of Victoria, Judge Hannan, 15 February 2016). |
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CRIMINAL LAW – Sentence – Dealing with proceeds of crime whilst being reckless as to the money being the proceeds of crime – Sentenced to 16 months’ imprisonment suspended after eight months on an eight month recognisance release order – Co-offender pleaded guilty to same offence – Co-offender sentenced to two years and ten months’ imprisonment suspended after one year and five months on a recognisance release order for one year and five months – Parity – Whether judge erred in failing to reflect in applicant’s sentence the difference in criminality of applicant’s conduct in comparison to co-offender’s conduct and additional mitigating factors applying to the applicant – Majeed v The Queen [2013] VSCA 40 – Anthony v The Queen [2016] VSCA 22.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | Mr D Sewell | Mr M Pedley, Solicitor for Public Prosecutions (Cth) |
REDLICH JA
SANTAMARIA JA
BEACH JA:
Overview
On 12 February 2016, the applicant[2] (now aged 50), pleaded guilty to one charge of recklessly dealing with the proceeds of crime being $1 million or more in contravention of s 444.3(2) of the Criminal Code1995 (Cth) (‘the Criminal Code’). Following a plea hearing the same day, the applicant was sentenced on 15 February 2016 as follows:
[2]Director of Public Prosecutions (Cth) v [Jeremy Cox] (Unreported, County Court of Victoria, Judge Hannan, 15 February 2016) (‘Sentence’).
| Charge on Indictment | Offence | Maximum | Sentence | |
| 1 | Dealing with money the proceeds of crime in a sum exceeding $1 million whilst being reckless as to the money being the proceeds of crime contrary to section 400.3(2) of the Criminal Code (Cth) 1995. | 12 years | 16 months’ imprisonment to be released on an 8 month recognisance release order after 8 months | |
| Total Effective Sentence: | 16 months’ imprisonment to be released on an 8 month recognisance release order after 8 months | |||
| Pre-sentence Detention Declared: | 5 days | |||
| 6AAA Statement: | 21 months’ imprisonment with release on recognisance after 11 months | |||
| s16AC reduction (Crimes Act 1914 (Cth)) | 20% for past cooperation and 30% for the promise of future cooperation | |||
| Other orders: Forfeiture. | ||||
The applicant’s co-offender pleaded guilty to one charge of recklessly dealing with the proceeds of crime being $1 million or more and was sentenced on 14 August 2015, by the same judge, as follows:
| Charge on Indictment | Offence | Maximum | Sentence | |
| 1 | Dealing with money the proceeds of crime in a sum exceeding $1 million whilst being reckless as to the money being the proceeds of crime contrary to section 400.3(2) of the Criminal Code (Cth) 1995. | 12 years | 2 years and 10 months’ imprisonment to be released on a 1 year and 5 month recognisance release order after 1 year and 5 months | |
| Total Effective Sentence: | 2 years and 10 months’ imprisonment to be released on a 1 year and 5 month recognisance release order after 1 year and 5 months | |||
| Pre-sentence Detention Declared: | 2 days | |||
| 6AAA Statement: | 3 years and 10 months’ imprisonment with a non-parole period of 2 years 6 months | |||
| s16AC reduction (Crimes Act 1914 (Cth)) | 20% for past cooperation and 30 % for the promise of future cooperation | |||
| Other orders: Forfeiture. | ||||
Ground of Appeal
The applicant seeks leave to appeal on the ground that the sentencing judge erred in failing to reflect in the sentence imposed on the applicant the substantial difference in the criminality of his conduct as compared to the conduct of his co‑offender and the substantial additional mitigating factors applying to the applicant.
Circumstances of the Offending
In 2013, police began investigating the principal offenders in the related offending, being controlling and harbouring a workforce of unlawful non-citizens whose labour was hired to legitimate agricultural businesses in another state. The workers were paid well below minimum wage, although it was not suggested that this was a fact of which the applicant was aware.
The applicant was involved in assisting his co-offender, a member of the syndicate, to ‘launder’ the money and transport the cash interstate to the principal offenders.
The applicant’s plea was on the basis of his recklessness as to the origins of the money. He was paid between $1000 and $2000 per week (out of which he covered his own travel expense) to travel interstate on a weekly basis, usually carrying between $100,000 and $200,000 cash. This offending spanned a period of 16 months.
Arrest and Committal
On 20 April 2014, the applicant was intercepted by police. At the time, he was carrying just under $200,000 in cash. He was interviewed. He did not give police a true account of the nature of the money. He was released.
On 3 May 2014, the applicant was arrested. He spent five days in custody before being bailed.
In June 2014, the applicant indicated a willingness to plead guilty. On 23 October 2015, at a committal mention, the applicant entered a guilty plea and was committed for plea in the County Court.
Plea Hearing
Defence Submissions relevant to disposition
Although defence counsel did not take issue with the Crown contention that a term of imprisonment was appropriate, it was submitted that the term need not be immediately servable. In other words, it was submitted, a proper exercise of the sentencing judge’s discretion could be for an immediate recognisance release order.
Prosecution Submissions relevant to disposition
The sentence imposed upon the co-offender was two years and ten months, with one year and five months to serve. The Crown accepted that the level of criminality of the applicant was less than that of the co-offender. The Crown accepted that the level of discount for assistance would be roughly the same as between the applicant and the co-offender.
Sentencing Remarks
The sentencing judge said that the applicant was initially unaware of the precise nature of the enterprise and was not privy to the full details of the predicate offence. He pleaded guilty on the basis of recklessness. She found that the applicant’s recklessness was at the high end of the scale.
The sentencing judge said that the ability to convert illegal gains into apparently legitimate funds is central to many criminal enterprises. The applicant had assisted in something that is serious from a community perspective.
The sentencing judge said that the applicant was paid effectively a wage and did not share in the profits but the sums involved were large. The applicant transported between $100,000 and $200,000 per week.
The sentencing judge said that the offending by its nature is difficult to detect and prosecute. The applicant had no prior convictions and apart from the instant offending was a man of good character. He had come to Australia from overseas in the 1980s. The sentencing judge described him (until he had participated in this offending) as ‘a shining success story about what hard work and determination can achieve’.
The sentencing judge noted the applicant’s personal history.
The co-offender was a friend of the applicant’s mother. At the time he became involved in the criminal enterprise, the applicant was under pressure to support his family, although that was not an excuse. This was not a momentary lapse rather it was sustained offending.
The judge said that the applicant has significant family and community support, including from his brother and a business associate who both gave evidence on the plea.
At the time of sentence, the applicant was living at his sister’s home with his wife and daughter. He was in the process of conducting an export business transaction (which required his involvement) at the time. The sentencing judge noted that the applicant had entered this contract knowing that he was involved in criminal proceedings that would likely result in his incarceration.
The sentencing judge said that the applicant’s prospects of rehabilitation were excellent. She took into account the applicant’s indication of intention to plead guilty and its timing. She accepted that the plea was indicative of remorse and that it was more than recognition of the inevitable.
The sentencing judge said that the applicant’s prior assistance to authorities as well as his undertaking for future assistance were significant matters; they were also demonstrative of remorse and positive for rehabilitation. There was no proper basis for drawing a distinction between the value of the applicant’s assistance as compared with that of his co-offender. As with the co‑offender, the sentencing judge noted a real and tangible public interest in this type of cooperation and that was to be reflected in an appropriate sentencing discount.
In accordance with s 16AC of the Crimes Act 1914 (Cth) (‘the Crimes Act’), the sentencing judge reduced the sentence she would otherwise have imposed by 30 percent, as a result of the applicant’s agreed future cooperation. She reduced the sentence she would otherwise have imposed by 20 percent, as a result of the applicant’s past cooperation. In total, the sentencing judge reduced the applicant’s sentence by 50 percent in recognition of his cooperation.
The sentencing judge took into account the factors relevant to sentencing a Commonwealth offender as outlined in s 16A(2) of the Crimes Act. She said that general deterrence was of particular importance for offending of this kind, but that specific deterrence could be given less weight given matters personal to the applicant.
The sentencing judge said that the only disposition open was an immediately servable term of imprisonment.
Contentions of the applicant
In his written submissions, the applicant contended that his relative criminality was much less than that of his co-offender and that the substantial differences in their criminality had not been taken into account by the sentencing judge. In particular, he submitted that the co-offender had:
(a) set up two companies each with a dummy director for the purpose of receiving payments;
(b) employed an extensive networks of persons to cash cheques for her on commission;
(c) organised for the two companies receive dummy invoices to offset tax liability arising from income from labour hire; and
(d) personally benefitted at the rate of $2 per hour worked by each worker. The total benefit she received over the offending period was estimated by the prosecution to be over $900,000. The co-offender stated that on average her net return was $5,000 -$7,000 per week.
When she commenced the offending the co-offender was earning $1,000-$1,500 per week net from her existing legitimate business. She ‘had an intimate knowledge of the predicate offences’. Further, the co-offender misled the applicant when he initially came to work for her.
By contrast the applicant:
(e) was in a parlous financial situation when he commenced working for the co-offender and was initially deceived into beginning to do so. The benefit to the applicant was limited to a weekly wage;
(f) could rely on having made a substantial contribution to the Australian community by his work developing export markets overseas and his work for an annual New Year Festival.
Finally, the applicant submitted that imprisonment was likely to have a serious impact on the business established by the applicant, his wife and mother-in-law, amounting to an additional punishing consequence and adding to the burden of imprisonment for him.
In other respects the co-offender and the applicant were of a similar age and had experienced similar hardship before coming to Australia. Both were found to be entitled to the same level of discount for cooperation
In those circumstances the applicant submitted that the imposition on the applicant of a sentence which is effectively half that imposed on the co-offender fails to reflect properly the principle of equal punishment and gives rise to a justifiable sense of grievance on the part of the applicant.
In oral submissions, counsel for the applicant accepted that the preponderance of authority in this Court was to the effect that, where a sentence stood to be reduced by reason of parity, it should not be reduced to the level of that imposed upon a co-offender where the latter’s sentence was manifestly inadequate.[3] He referred to the Majeed v The Queen,[4] where, he said, that Kaye AJA (with whom Neave JA and Lasry AJA agreed) had set out the principles relevant to sentence in cases of contravention of s 400.3(2) of the Criminal Code. Given the definition of ‘recklessness’ in s 5.4, it was possible to be guilty of the offence of reckless dealing in the proceeds of crime with a mental state that would not satisfy the requirements of recklessness under the general law. He contended that there were several matters that conduced to a much lower sentence being imposed upon the applicant than that imposed upon the co-offender. The co-offender had a much greater executive role in the activities involved in the offending, other things apart, she had recruited the applicant. Second, her intimacy with the operation meant that her degree of recklessness in respect of its proceeds was significantly greater than that of the applicant. Finally, the co-offender did not have in her favour the matters that mitigated the sentence to be imposed on the applicant.
[3]See, eg, Abdou v The Queen [2015] VSCA 359 [59] (Redlich and Beach JJA and Beale AJA).
[4][2013] VSCA 40 [37], [42] (‘Majeed’).
Analysis
In Majeed, Kaye AJA (with whom Neave JA and Lasry AJA agreed) described the structure of s 400 of the Criminal Code. He said:
Section 400 of the Commonwealth Criminal Code provides for the offence of money laundering. It is structured to provide separate offences, according to the amount of money which is dealt with by the offender, and according to the mental state of the offender in respect of the fact that the money, the subject of the dealing, was the proceeds of crime. Section 400.3 is concerned with money laundering of amounts in excess of $1,000,000. The succeeding sections, ss 400.4, 400.5, 400.6 and 400.7 are, respectively, concerned with money laundering of amounts in excess of $100,000, in excess of $50,000, in excess of $10,000 and in excess of $1,000.
Each section is divided into three subsections, according to the offender’s mental state. Thus, subsection (1) deals with money laundering where the offender believes the money to be the proceeds of crime; subsection (2) is concerned with money laundering where the offender is reckless as to the fact that the money is the proceeds of crime; and subsection (3) is concerned with money laundering where the offender is negligent as to the fact that the money is the proceeds of crime.
In that way, s 400 grades the penalties for the relevant offence of money laundering, first, according to the amounts involved, and, secondly, according to the mental state of the offender.
As I stated, in the present case, the appellant pleaded guilty to an offence against s 400.3(2) of the Code. The relevant parts of that provision are as follows:
A person is guilty of an offence if:
(a) The person deals with money or other property; and
(b) ...
(i) the money or property is proceeds of crime; ... and
(c)The person is reckless as to the fact that the money or property is proceeds of crime ...; and
(d)At the time of the dealing, the value of the money and other property is $1,00,000 or more.
The maximum penalty prescribed for an offence under s 400.3(2) is 12 years’ imprisonment, or 720 penalty units.
Section 5.4 of the Code defines the concept of recklessness as follows:
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a)he or she is aware of a substantial risk that the result will occur; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.[5]
[5][2013] VSCA 40 [27]–[32].
In the present case, it was accepted that the applicant had dealt in moneys being the proceeds of crime in the vicinity of $12 million. He had done so over a period of approximately two years. The sentencing judge found that the applicant was aware that there was a substantial risk that the large amounts of cash that he was carrying were connected with criminal activity. Moreover, the judge had assessed the applicant’s involvement as increasing over time such that it could ‘only be described as at the high end of recklessness’. She found that the applicant was not an innocent dupe; on the contrary, his offending was ‘sustained’.
However, the applicant contends that, given the sentence imposed on his co-offender, he has a justifiable sense of grievance as his sentence, admittedly lower, does not properly reflect their relative degrees of criminality. In the circumstances, the sentence imposed upon the applicant may be considered lenient.[6]
[6]See Chen v The Queen [2009] NSWCCA 66; Majeed [2013] VSCA 40; Nguyen v The Queen [2012] NSWCCA 152; Nguyen v The Queen [2011] NSWCCA 111; R v Viana [2008] NSWCCA 188.
In Majeed, Kaye AJA said:
The principles, as to the relevance of a sentence imposed on a co-offender, were usefully stated by the New South Wales Court of Criminal Appeal in R v El Hassan, to which counsel referred. In essence, the principle of parity is only relevant where a sentence, imposed on an offender by a court, might be such as to engender a justifiable sense of grievance in the offender because a lower sentence had been imposed on a co-offender. Thus, the correct approach is to determine the appropriate sentence of the offender, and then to ensure that that sentence does not offend the principle of parity, in that it is disproportionate to a sentence imposed on a co-offender.[7]
[7][2013] VSCA 40 [49] (citations omitted).
The principles governingparity of sentencing between co-offenders were recently restated in Anthony v The Queen:[8]
The principles governing parity are well established. As has been said before, equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in a way in which he or she did. Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[9]
Thus, the issue is whether the difference in the sentences was reasonably open to the sentencing judge.
[8][2016] VSCA 22.
[9]Ibid [12]. The Court referred to Lowe v The Queen (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Hilder vThe Queen [2011] VSCA 192 [38]–[39]; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp vThe Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97 [24]–[25]; Collins v The Queen [2015] VSCA 106 [23].
In the present case, there were differences in the criminality of the applicant and his co-offender. The sentencing judge was well aware of those differences as she had herself sentenced the co-offender for money laundering on 14 August 2015. In its written sentencing submissions, the Crown accepted that the applicant’s criminality ‘is less than that of [the co-offender] by virtue of his subservient role within the organisation and his lesser, but still substantial, remuneration for his role in an illegal enterprise’. But, there can be no doubt that both were important and trusted participants in a sophisticated criminal enterprise.
It is not possible to conclude that the differences in sentences were not reasonably open to the sentencing judge. Accordingly, the application for leave to appeal must be refused.
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