Special leave granted by High Court - 2 October 2009 [s287/2009] [s288/2009]Heard 2-3 December 2009 Judgment reservedAppeals dismissed by the High Court 26 May 2010 [2010] HCA 18
New South Wales
Court of Criminal Appeal
CITATION:
A. Ansari v R, H. Ansari v R [2007] NSWCCA 204 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
30/03/2007
JUDGMENT DATE:
14 August 2007
JUDGMENT OF:
Simpson J at 1; Howie J at 36; Hislop J at 150
DECISION:
The appeal against conviction is dismissed. The Crown appeal is allowed in respect of both appellants and the sentences imposed in the District Court quashed. In lieu each of the appellants is sentenced as follows: (a) Count 1: imprisonment for 7 years to date drom 18 August 2006 and to expire on 17 August 2013. (b) Count 2: Imprisonment for 7 years to date from 18 August 2008 and to expire on 17 August 2015. (c) There is to be a non-parole period of 5 years 5 months to date from 18 August 2006 and to expire on 17 January 2012, the date upon which the appellants are eligible to be released to parole.
CATCHWORDS:
Criminal Law - Offences - conspiracy under the Criminal Code (Cth) - the offence the subject of the conspiracy had as one of its fault elements recklessness - whether such a conspiracy bad at law - Criminal Liability - whether under the Criminal Code (Cth) a person can agree with another to commit an offence with a fault element of recklessness - relationship between offence of conspiracy under the Criminal Code (Cth) and at Common Law - Sentence - Crown Appeal - whether sentence imposed manifestly inadequate - relevant considerations in sentencing for a conspiracy to money launder - relevance of knowledge of the provenance of the money dealt with.
LEGISLATION CITED:
Criminal Code (Cth) 1995 - Chapter 2, ss 5.2, 5.4(4), 5.6(1), 5.6(2), 6.1, 11.2, 11.5, 400.1, 400.2, 400.3, Division 400 of Part 10.2 Financial Transaction Reports Act 1988 (Cth) - s 31 Customs and Excise Act 1952 (UK) - s 202(2) Crimes Act 1914 (Cth) - s 16A
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Ansari [2007] NSWCCA 204
Case
[2007] NSWCCA 204
Decision Date
CaseChat Overview and Summary
The case of R v Ansari involved the defendant, Ansari, who was charged with conspiracy under the Criminal Code (Cth) related to a crime that included recklessness as one of its fault elements. The dispute centred on whether such a conspiracy could be established at law and whether a person could agree to commit an offence with a fault element of recklessness under the Criminal Code (Cth). The matter was heard in the relevant Australian court.
The court was required to decide several legal issues, including whether the offence of conspiracy as defined under the Criminal Code (Cth) could encompass an agreement to commit an offence with a fault element of recklessness. Another issue was the relationship between the offence of conspiracy under the Criminal Code (Cth) and the common law. The court also had to consider the adequacy of the sentence imposed on Ansari, particularly whether it was manifestly inadequate given the nature of the conspiracy to money launder.
In its reasoning, the court found that a conspiracy to commit an offence that includes recklessness as a fault element is indeed possible under the Criminal Code (Cth). The court clarified the relationship between statutory conspiracy and the common law, confirming that the statutory offence could extend to include agreements with a fault element of recklessness. Regarding the sentence, the court determined that the punishment imposed was not manifestly inadequate, taking into account the relevant considerations for sentencing in a conspiracy to money launder, including the defendant's knowledge of the money's provenance.
The final orders of the court upheld the conviction and sentence for Ansari, affirming the legal principles concerning conspiracy and the fault elements of offences under the Criminal Code (Cth).