Majeed v The Queen
[2013] VSCA 40
•7 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0168
| MOHAMED THOUFEEQ ABDUL MAJEED | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE JA, KAYE and LASRY AJJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 27 February 2013 |
| DATE OF JUDGMENT | 7 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 40 |
| JUDGMENT APPEALED FROM | The Queen v Majeed (Unreported, County Court of Victoria, Judge Montgomery, 11 April 2012) |
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CRIMINAL LAW − Sentencing − Appeal − Money laundering − Guilty plea − Dealing with money, of the value of $1,000,000 or more, being the proceeds of crime, and being reckless that the money was the proceeds of crime − Appellant performing role of ‘middle management’ in sophisticated money laundering scheme − Twelve transactions totalling $5.2 million over five year period – No previous convictions − Appellant’s family overseas − Appellant isolated in jail − Whether sentence of 7 years’ imprisonment with 5 years non‑parole period manifestly excessive − Appeal dismissed − Criminal Code1995 (Cth) s 400.3(2).
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr P F Tehan QC | C Marshall & Associates |
| For the Respondent | Mr D D Gurvich | Office of Public Prosecutions (Cth) |
NEAVE JA:
For the reasons given by Kaye AJA, I agree that the appeal against sentence should be dismissed.
KAYE AJA:
On 30 March 2012, the appellant pleaded guilty in the County Court to one charge of dealing with money that was the proceeds of crime, being reckless as to the fact that the money was the proceeds of crime, pursuant to s 400.3(2) of the Commonwealth Criminal Code. After hearing the plea made on his behalf in mitigation of sentence, the County Court judge sentenced the appellant to 7 years’ imprisonment with a non-parole period of 5 years. His Honour declared, pursuant to s 18(4) of the Sentencing Act 1991 (Vic), that the period of time, that the appellant had already spent in custody, was 584 days. Pursuant to s 6AAA of the Sentencing Act, his Honour declared that, but for the plea of guilty, he would have sentenced the appellant to a period of 9 years’ imprisonment with a minimum non-parole period of 7 years.
The appellant appeals, by leave, against the sentence on the basis that it is manifestly excessive.
The appellant’s offending
The charge, to which the appellant pleaded guilty, was that between 1 March 2008 and 7 August 2008 he dealt with money, of the value of $1,000,000 or more, being the proceeds of crime, and being reckless as to the fact that that money was the proceeds of crime.
The criminal conduct, alleged against the appellant by the prosecution, was that the money, dealt with by the appellant, was the proceeds of trafficking of the illicit drug MDMA, also known as ‘Ecstasy’, by an organised criminal syndicate
under the leadership of Pasquale Barbaro. The Barbaro syndicate had taken delivery of large quantities of tablets containing a commercial quantity of MDMA in Melbourne in February, March and May 2008. In total, approximately 1,200,000 tablets were received by that syndicate at that time. The Barbaro syndicate then distributed commercial quantities of those tablets to wholesale customers in Victoria, New South Wales, Tasmania, Western Australia and the Australian Capital Territory. Upon receipt of payments for the tablets from the wholesale customers, it became necessary for the syndicate to expeditiously and securely remit substantial repayments to the suppliers of the narcotics who were situated in Europe.
Clearly, the clandestine transfer of the millions of dollars owing by the Barbaro syndicate to the European suppliers could not be safely achieved by conventional international funded transfer methods. As a result, a method, referred to as ‘cuckoo smurfing’, was employed. In essence, the technique involved the exploitation, by the money launderers, of the fact that there are a number of persons in Australia, often temporarily, from other countries, and to whom their friends and relatives send money from overseas for innocent purposes. At all times the persons sending the money from overseas, and the persons in Australia, to whom the money is sent, are innocent, and ignorant, of the money laundering system which is being used.
In brief terms, the system works in the following way. An innocent party overseas, with a legitimate reason to transfer money to Australia (for example, an expatriate worker or the family of an international student studying in Australia) provides cash to an overseas money remitter, and informs that remitter of the name of the intended beneficiary in Australia, and the bank account into which the payment is to be made in Australia. The overseas money remitter, on receipt of the money and the bank details, delivers the details of the deposit, including the bank account details, to his Australian representative. The Australian representative of the money remitter meets with a representative of a drug trafficking syndicate, and collects a large sum of cash from that person, that cash being the proceeds of the drug trafficking. Having received the relevant instructions from the money remitter overseas, the Australian representative then deposits, to the nominated account, an amount matching that which was intended to be paid by the innocent party overseas. Once a successful deposit is made, the overseas money remitter is notified, and the cash received by the money remitter overseas becomes available for collection by the syndicate who supplied the drugs to the Australian drug trafficking syndicate. In that way, the Australian drug trafficking syndicate is able to pay its supplier, without any funds being transferred from Australia to overseas.
In the present case, that technique was adopted by the Barbaro syndicate. On twelve occasions between 5 March and 24 July 2008, Barbaro, his associate Sharon Ropa, and others, handed over money to members of a money laundering syndicate, which consisted of (among others) the appellant, Tanesh Dias and Mohammad Nazeer. In that syndicate, the appellant was the Australian representative of the international money remitter, and it was the appellant who dealt with Barbaro and Ropa, as representatives of the drug trafficking syndicate. The twelve cash payments, entrusted by the Barbaro syndicate to the money laundering syndicate, varied in amounts, from $149,800 to $1,000,000. The total sum delivered, in the twelve collections of cash, was $5,265,320.
The role of the appellant was to liaise with Barbaro, Ropa and others, and to arrange for Dias to collect money from members of the drug trafficking syndicate. Thus, he would receive instructions about the pick up of cash in Melbourne, and he would liaise with Dias concerning the collection of that cash. He would contact Dias to confirm that the cash had been collected, and then provide Dias with details of which bank accounts the money should be deposited into, and the sum of cash that should be deposited into each account. The appellant, Dias and Nazeer would then deposit the cash into bank accounts in Australia in accordance with the appellant’s instructions. Dias and Nazeer would fax the information to the appellant, confirming that the deposits had been made. The appellant would then send the details of those deposits to his overseas contacts. That enabled the overseas contacts to arrange for an equivalent sum of cash to be released, and to be transferred in cash by a courier to the drug trafficking syndicate in Europe, to whom the Barbaro syndicate owed the cash.
The members of the money laundering syndicate were each paid a commission fee for the deposits made by them. The appellant received commissions totalling $28,000 from his involvement in the money laundering syndicate. The sentencing judge described the appellant’s role, in that syndicate, as one akin to ‘middle management’. The appellant does not take issue with that description on appeal.
The appellant’s background and circumstances
The appellant was born in Tamil Nadu, a province in the south of India, on 27 January 1973. After leaving school, he worked in some different capacities. In his mid twenties, he conducted a small business, importing food items from Singapore. However, that business failed. A couple of years later, he married at the age of 29 years. In doing so, he contravened the wishes of his family, who had intended that he have an arranged marriage, from which he would receive a dowry. Having married in May 2002, his wife and he travelled to Singapore on a tourist visa. One year later, in 2003, he obtained a tourist visa to visit Australia. Shortly after their arrival, the appellant’s wife had their first child.
Although he was on a tourist visa, the appellant obtained employment, first in a car wash, and then working as a courier. After a dispute with his employer, he lost his employment as a courier. It was at about that time that he was first approached by a friend, who induced him to become involved in depositing monies on commission. From there, he progressed to becoming involved in the money laundering activities, which I have described.
In June 2008, the appellant left Australia, presumably because his visa had been revoked or had expired. By then his wife and two children had already left. The appellant and his family returned to India. Two years later they paid a visit to Singapore. The appellant was arrested there on 5 September 2010. An application was made by the prosecution to extradite the appellant to Australia to face a charge, under s 400.3(1) of the Criminal Code, of dealing with money, which he believed to be the proceeds of crime. The appellant resisted the extradition proceedings. Ultimately, the application for his extradition succeeded, and the appellant was brought to Australia on 24 March 2011. By then, he had spent 200 days in custody in Singapore. That period of incarceration was taken into account by the sentencing judge in his declaration as to the pre-sentence detention served by the appellant.
The appellant first made an offer to plead guilty on 27 January 2012. That offer was to plead guilty to an offence contrary to s 400.3(3), that he dealt with money which was the proceeds of crime, being negligent as to the fact that the money was the proceeds of crime. Subsequently, after further discussion with the Crown, the appellant agreed to plead guilty to the charge on which he was sentenced.
The plea
In his plea in mitigation and sentence, counsel for the appellant relied on the following mitigating factors:
• The fact that the appellant had no previous convictions;
• The plea of guilty, and the utilitarian value of the plea;•The appellant is isolated in jail. He is cut off from his young family, who are living in India. He is Muslim, and there are no other Tamil speaking Muslims in the same jail in which he is held;
•The appellant will suffer some hardship in prison, being cut off from his family, and being apprehensive as to their well being in India;
•The appellant had indicated to the police that he was willing to give evidence against Nazeer. He was interviewed, but the informant took the view that he was not being frank. Counsel for the appellant on the plea relied, not only on the appellant’s offer of cooperation to the
police, but on the fact that, as a result of making that offer, the appellant will be exposed to danger while in prison.
At the commencement of the sentencing submissions, counsel for the prosecution had submitted to the judge that the appropriate maximum sentence should be in the range of six and a half years to eight and a half years, and the non‑parole period should be between four years and nine months, and six and one‑half years. In the course of his plea, defence counsel submitted that he was ‘… seeking to push your Honour to the bottom of the Crown range’.
Sentencing judge’s reasons for sentence
The sentencing judge accepted that the appellant’s plea, after extradition, was made at a reasonable time. His Honour stated that he would give the appellant an appropriate discount for its utilitarian benefit and as an indication of his remorse. His Honour noted the appellant’s offer of cooperation with the authorities, but stated that, in its context, his cooperation would not be a ‘substantial’ factor in sentencing. His Honour also noted the conditions, in which the appellant had been held in Singapore.
Having reviewed the appellant’s background, his Honour stated:
General deterrence is the major sentencing consideration in these types of cases. Your role in the money laundering operation was integral to its success. You controlled two other persons, you were not a minor participant. The large amounts of money made in the drug trade necessitate money laundering so that the profits can be seen to be legitimate. It is estimated by your counsel that you made approximately $27,000 to $28,000. In my view, you were in a middle management type role.
Because you have an otherwise good character, I am told your imprisonment in two different countries has had a profound effect upon you, thus I have concluded that specific deterrence has a lesser role to play. You have a family in India and have an otherwise gainful and legitimate work background. Your prospects of rehabilitation would appear to be hopeful. In addition to all those matters, I have particularly taken into account your plea of guilty, your effort to cooperate, your background and your otherwise good character.
Having made those remarks, the judge imposed the sentence, to which I have earlier referred.
Ground of appeal
As I have already stated, the sole ground of appeal is that the sentence is, in all the circumstances, manifestly excessive.
Submissions
In support of that ground, counsel for the appellant pointed out that the sentence of 7 years’ imprisonment is, in the circumstances of the case, manifestly excessive, particularly given that the maximum penalty for the offence, to which the appellant pleaded guilty, was 12 years. Counsel relied on a number of circumstances, including the fact that the appellant had no prior convictions, he had pleaded guilty at the first reasonable opportunity after extradition, and he had offered to assist the authorities in the prosecution of a co-offender. Although the appellant was not at the lowest rung of the offending hierarchy, neither was he at the highest end of it. The appellant was not a hardened criminal. Rather, he had lost his business in India, and he lacked any financial support from his family, because of his choice of wife. When he came to Australia, he tried to support his family by legitimate means. However, his capacity to support his family was compromised by his immigration status. Thus, his offending should be construed in the context of a person who is not an habitual criminal, but, rather, someone who had become involved in crime out of financial necessity. The appellant last saw his family in Singapore. The appellant is alone in Australia in custody, and he is apprehensive about the welfare of his family. In that respect, counsel relied on the report of the psychologist, Mr Bilyk, which had been tendered on the plea, and which indicated that the appellant suffered from moderate levels of depression and a severe level of anxiety.
In his written submissions, counsel also referred to the sentence imposed on Dias, which had been provided to the sentencing judge. It was suggested that the judge may have been impermissibly influenced by Dias’ sentence. In that respect, the submissions referred to the principle, stated by the New South Wales Court of Criminal Appeal in R v El Hassan,[1] namely, that the principle of parity should not be used to increase a sentence on one of two co-offenders. Rather, the principle of parity is only relevant to ensure that the offender, being sentenced, does not have a justifiable sense of grievance, because of a lower sentence imposed on a co-offender.[2] However, on appeal, counsel for the appellant did not rely on that submission, as he conceded that there was no basis upon which to suggest that the judge had been incorrectly influenced by the sentence imposed on Dias.
[1][2003] NSWCCA 139; 141 A Crim R 346.
[2]Ibid, 354–5 [47], 356 [55].
In response, counsel for the respondent referred to the fact that the quantity of money, dealt with by the appellant, was more than five times the amount of $1,000,000, which was prescribed as the minimum quantum for an offence under s 400.3 of the Criminal Code. The appellant’s offending involved a sustained course of conduct over a number of months. His role was a critical one; he was the receiver of instructions from the drug syndicate, and the ‘guiding hand’ directing the money launderers on the ground in Australia. He was involved in a substantial number of collections of money, and the deposits of those funds into nominated bank accounts. Thus, his offending was very serious. The sentencing judge correctly took into account that, in sentencing the appellant, the principle of general deterrence is a major consideration in money laundering offences.
Counsel for the respondent also submitted that the developing sentencing practice, in cases of money laundering, based on the intermediate level of knowledge of recklessness, demonstrated that sentences in excess of 50 percent of the maximum sentence are within the appropriate range, in the absence of substantial mitigating circumstances. It was submitted that, in this case, the sentencing judge gave appropriate weight to the mitigating circumstances in arriving at the appellant’s sentence.
Manifest excess
The principles, relating to the question whether a sentence is manifestly excessive, were conveniently stated by Batt JA in R v Monardo:[3]
It must be understood that sentencing is a discretionary exercise par excellence. Mandatory sentences apart, there is no single correct sentence. Rather, there is a range of sentences open to a sentencing judge in the exercise of a sound discretionary judgment. When it is contended that a sentence is manifestly excessive (or manifestly inadequate) the principle applicable is that it is basic that the appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a manner different from that in which the sentencing judge exercised his or her discretion.[4] As all other members of the High Court stated in Lowndes v The Queen, the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. For the appellate court to interfere the sentence must be ‘unreasonable or plainly unjust’. Now, manifest excessiveness, like manifest inadequacy, is a conclusion. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and it frequently does not admit of much amplification.[5]
[3][2005] VSCA 115, [28].
[4]Lowndes v The Queen (1999) 195 CLR 665, 671 [15].
[5]See also Dinsdale v R (2000) 202 CLR 321, 325 [6]; Carroll v R (2009) 254 ALR 379, 361 [7]–[8].
In Clarkson v R,[6] this Court stated:
[It] will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender.[7]
[6](2011) 212 A Crim R 72, [89].
[7]See also Kells v R [2013] VSCA 7, [2] (Tate JA).
The Criminal Code (Commonwealth) s 400
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.
Thus, the appellant pleaded guilty to, and was sentenced for, the offence of dealing with money which was the proceeds of crime in excess of $1,000,000 (in fact $5,200,000), in circumstances in which, first, he was aware of a substantial risk that those monies were the proceeds of crime, and, secondly, having regard to the circumstances known to the appellant, it was unjustifiable for him to take that risk.
In recent years, there has been an increasing number of money laundering cases, which have been the subject of appellate decision. However, overall, the number is still small. In two decisions of the Court of Criminal Appeal of New South Wales[8] in 2010, Barr AJA reviewed a number of sentences for money laundering, which had been imposed, or considered, both at first instance, and on appeal. The review covered some decisions of the Victorian County Court. In each case, his Honour observed:
The cases do not even begin to trace the limits of the range of proper sentencing discretion. They can do no more in my opinion than produce a broad indication of the developing sentencing practice.[9]
[8]R v Li [2010] NSWCCA 125; [2002] A Crim R 195; R v Nguyen [2010] NSWCCA 226; 204 A Crim R 246.
[9]R v Li, 204 [40]; R v Nguyen, 256 [58].
The previous decisions on sentencing for crimes of money laundering are of more assistance in identifying some of the principles which must be applied in the imposition of a sentence for that offence, and in considering whether such a sentence is, in all the circumstances, manifestly inadequate.
First, of course, it is necessary to consider just where the offence sits in the grading of the offences within the scheme provided by s 400 of the Code.
Secondly, the precise circumstances of the money laundering must be considered. Those circumstances include (inter alia) the role of the offender in the particular money laundering arrangement; whether the offender was the author or instigator of the arrangement; the degree of authority reposed in the offender in carrying out the arrangement; the precise actions of the offender which constituted the dealing for the purposes of the offence; the period of time over which the offence was committed; the number of transactions involved; and the amount involved in the offending.[10]
[10]See for example R v Li, 204 [41]; R v Huang, R v Siu [2007] NSWCCA 259, 174 A Crim R 370, [34]–[35]; Nguyen v R [2012] NSWCCA 152, [57].
Thirdly, where possible, it is relevant to take into account the degree of the awareness or belief, which is the foundation of the relevant mental state alleged against the offender.[11]
[11]R v Li, 204, [41].
Fourthly, money laundering, particularly of the nature and scale involved in this case, is vital to the functioning of organised criminal syndicates, and in particular drug trafficking syndicates. In such cases, it is a necessary part of the criminal activities of those syndicates, and the money launderer is an important cog in the wheel of organised crime.[12] Accordingly, the offence of money laundering, particularly of the type and dimension which was involved in this case, is an offence in respect which the principle of general deterrence is given significant weight. In R v Huang, R v Siu,[13] the New South Wales Court of Criminal Appeal, consisting of Simpson, Howie and Hislop JJ, stated:
Money laundering on the scale in which both respondents were involved should be considered as serious criminal activity that is at the very heart of organised, professional crime syndicates. It warrants severe punishment not the least in order to reflect general deterrence of a very significant degree. When the activity is engaged in for profit, over a significant period of time and with a large number of transactions, the good character of the offender is of less significance than might otherwise be the case.[14]
[12]Trandy v R [2009] VSCA 321, [96].
[13][2007] NSWCCA 259, 174 A Crim R 370, [36]; Trandy v R, [101].
[14][36]; See also Ansari v R [2007] NSWCCA 204, [136].
As has already been observed, the sentences which were under consideration in previous decisions are too few in number to provide anything but the broadest outline of the appropriate range of sentence in cases such as the present. However, with that limitation, the sentences, which were summarised in detail by Barr AJA in R v Nguyen,[15] and other sentencing decisions subsequent to that case, reflect the seriousness with which the courts regard offending against s 400.3 of the Code, particularly in cases in which large sums of money are dealt with by the offender on a systematic basis such as the present case. In a number of cases, the sentence imposed was in the order of one half of the prescribed maximum sentence. I should add, however, that in making that observation, I am conscious of the limited value, to the sentencing process, of a review of previous decisions, given the very wide variety of factors and considerations which affect the sentencing discretion in each individual case.[16]
[15][2010] NSWCCA 226.
[16]Hili v R; Jones v R (2010) 242 CLR 520, 537; Hudson v R [2010] VSCA 332, [20]; Hasan v R [2010] VSCA 352; 31 VR 28, 40–41 [52]–[53].
Conclusion
It must be acknowledged that the sentence, imposed on the appellant, was high, amounting to more than 50 percent of the maximum sentence prescribed for an offence against s 400.3(2). However, the offending by the appellant was particularly serious. It involved the dealing by him with large sums of money, in twelve separate transactions, over a five month period. The total amount of money, the subject of the money laundering, was more than five times the threshold for the offence under s 400.3. The appellant’s role in the transactions was central, and indeed critical. As I have already described it, he was the liaison contact for the overseas funds remitter. He was also the contact, for the money laundering syndicate, with the principals of the drug trafficking syndicate. It was the appellant who was responsible for ensuring that the large sums, entrusted to the money laundering syndicate, were correctly deposited into the relevant bank accounts as part of the ‘cuckoo smurfing’ scheme. As such, the appellant had a substantial organisational and supervisory role. It involved him assuming significant responsibility in the criminal hierarchy in which he became involved.
In addition, it is important to take into account the appellant’s level of knowledge of the criminal activity. Certainly, he was not sentenced on the basis that he knew or believed that the funds were the proceeds of crime. The appellant’s offending was based on the fact that he was aware of a ‘substantial risk’ that the monies, with which he was dealing, were the subject of crime, and, having regard to the circumstances known to him, it was unjustifiable for him to take that risk. In the circumstances of the case, it could only be concluded that the appellant had a very high level of awareness that there was a particularly substantial risk that the monies, with which he was dealing, were the proceeds of crime. In light of the amounts involved, the source of the funds, and the technique of laundering which was implemented (‘cuckoo smurfing’), only the most acute form of wilful blindness could have obstructed the appellant from actually knowing or believing that the sums involved were the proceeds of crime. Thus, within the framework of the offence under s 400.3(2), the appellant’s mental state would have been at the highest end of recklessness.
In this case, as in so many cases, the money laundering was a central aspect of, and indeed vital to, the functioning of, the criminal syndicate with whom the appellant was dealing. The type of criminal activity, about which the appellant was reckless, was not a one-off criminal act. Rather, given the source of the funds, the amounts involved, the number of the transactions, and the nature of the laundering involved, the conclusion is inevitable that the appellant was well aware that there was a particularly substantial risk that the funds, with which he was dealing, were the product of the activities of an ongoing, large scale, organised criminal syndicate, involved in drug trafficking.
In those circumstances, the trial judge was correct in giving priority to the principle of general deterrence. It is important, in cases such as this, that the sentence imposed be sufficient to constitute a clear and unequivocal message that those who choose to involve themselves in the type of activity, in which the appellant engaged, upon detection, will suffer long terms of imprisonment.
I acknowledge that there were, in this case, a number of mitigating circumstances. The trial judge correctly identified each of those circumstances. The plea of guilty by the accused was of important utility. I would expect that if the appellant had contested the charge against him, the trial might well have lasted for three or more weeks. In addition, the appellant’s offer of cooperation with the authorities, the fact that he had no previous convictions, and his difficult circumstances in prison, were mitigating circumstances, which were relevant to be taken into account in sentence. It is clear that the sentencing judge was aware of those circumstances, and his Honour expressly took them into account.
In determining whether the sentence was manifestly excessive, in the manner in which I have earlier described, it is not sufficient that other judges, including the judges sitting on appeal, might in the circumstances have imposed a lower sentence than that imposed by the sentencing judge. Rather, as I have earlier indicated, the sentence, under review, must be so wholly outside the range of an appropriate sentence as to be plainly unjust. While, as I have stated, I consider that the sentence imposed in this case was high, and probably higher than the sentence which others might impose, nevertheless I am not persuaded that the sentence was one which was not reasonably open to the sentencing judge. In particular, I am not so persuaded because of the nature and seriousness of the offending, and because of the importance of the principle of general deterrence in respect of the type of offending for which the appellant was sentenced.
Relevance of Sentence of Co-Offender Dias
For the purpose of completeness, I should refer, briefly, to one point which was raised by the appellant’s written submissions, but was not pursued in oral argument. In the written submissions, it was suggested that the sentencing judge might have been influenced by the sentence imposed on Dias by a different County Court judge, and the fact that Dias had been refused leave to appeal the sentence by a judge of this Court. Dias was sentenced, on 10 November 2010, to a term of 7 years’ imprisonment, with a non-parole period of 4 and a half years.
In the course of sentencing submissions in the present case, counsel for the prosecution provided to the sentencing judge a copy of the reasons for sentence for Dias, and a copy of the reasons of the judge of the Court of Appeal rejecting the Dias’s application for leave to appeal.
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,[17] 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.[18] 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.[19]
[17][2003] NSWCCA 139; 141 A Crim R 346.
[18]Ibid [47], 354–5.
[19]Ibid [55], 356.
In the present case, the sentencing judge did not refer to the sentence imposed on Dias, in his reasons for sentence. While the head sentence imposed on the appellant is identical to that imposed on Dias, and the non-parole period is six months longer than that stipulated for Dias, it would be a matter of conjecture, rather than appropriate inference, for this Court to act on the basis that the sentencing judge, in the present case, had been inappropriately influenced by the sentence imposed on Dias. Indeed, there is no separate ground of appeal, in the present case, to that effect.
For the above reasons, I have come to the conclusion that the appeal against sentence should be dismissed.
LASRY AJA:
I have had the advantage of reading in draft the reasons of Kaye AJA. I respectfully agree with his Honour’s analysis and with his conclusion that the appeal against sentence should be dismissed.
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