R v BDP

[2022] QCA 32

[2022] QCA 32

COURT OF APPEAL

FRASER JA
MULLINS JA
DAVIS J

R

v

BDP  Applicant

BRISBANE

JUDGMENT

1. FRASER JA:  So the orders of the Court are:

   1.   Application for leave to appeal is granted.

   2.   Appeal allowed.

   3.   The sentence imposed by the sentencing judge on 1 February 2022 is varied by ordering that the recognisance release order takes effect “forthwith” in lieu of “after serving four months of the term of imprisonment.”

   I will ask Justice Mullins to deliver the first reasons.

2. MULLINS JA: The applicant pleaded guilty to one count of dealing with property reasonably suspected of being proceeds of crime etc charged pursuant to s 400.9(1) of the Criminal Code (Cth) that was committed between 1 November 2011 and 21 November 2017 where at the time of the dealing the value of the money or property was $100,000 or more. The maximum penalty for an offence against s 400.9(1) is imprisonment for three years, or 180 penalty units, or both. The applicant was sentenced on 1 February 2022 by the learned sentencing judge to imprisonment for two years with a recognisance order that he be released after serving four months of the term of imprisonment upon giving security by recognisance in the sum of $400 conditioned on the applicant being of good behaviour for a period of three years. The ground relied on for the application is that the sentence is manifestly excessive.

   Circumstances of the offending

3. Over the period of six years, deposits in total of $902,500 in cash in 174 transactions (of which all but two were under $10,000) were made by the applicant, his wife, associated entities and unknown sources into accounts controlled by an identified person.  Many deposits were made at short intervals at the same or different branches.  The single charge based on multiple transactions was brought in reliance on s 400.12 of the Code that permits the combining of several contraventions against a provision of Division 400 in a single charge.  Financial analysis determined that the money was ultimately transferred to various entities for the benefit of the applicant and his wife, principally by providing funds related to the acquisition of real estate.

   The applicant’s antecedents

4. The applicant was aged between 26 years and 32 years during the period in which he committed the offence.  He had a relevant prior criminal history in that he was convicted in the Supreme Court in 2008 for possession of dangerous drugs and supplying dangerous drugs committed in 2006 for which he was sentenced to imprisonment for two years and six months with a parole release date fixed after he had served four months.  He was dealt with for less serious possessions of dangerous drugs in the Magistrates Court in February 2013 and March 2021.

   Sentencing remarks

5. After the sentencing judge summarised the facts of the offending, the sentencing remarks included the following.

6. The applicant, by his guilty plea, accepted that he was responsible for each of the 174 cash deposits, irrespective of whether he was the person who made the deposit.  The period of the offending was protracted and the amount involved was significant.  There was a significant level of planning and organisation involved in the offending.  The offending fell “at the higher end” for this offence, because of the applicant’s role in it, the acts he performed, the level of organisation to it, the period of time over which he was engaged in it and the total value involved.  General deterrence was of particular significance.  The guilty plea was early.  The applicant had cooperated with authorities extensively, including in the context of the proceeds of crime proceeding, and his substantial cooperation was taken into account.  The effect of the delay between arrest and sentence meant that it was a long time for the applicant to have the proceedings outstanding and it enabled the court to see (and accept) the applicant had reasonable prospects in terms of his rehabilitation.

7. Part of the offending was committed whilst the applicant was on probation for 12 months imposed in February 2013 for the possession of drugs committed on 12 January 2013.  The applicant was on bail for the subject offence when he committed the possession of drugs that was dealt with in the Magistrates Court in March 2021.  The applicant relied on a report from a psychologist dated 25 January 2022 for the purpose of the history provided by the applicant about his personal circumstances.  These included that the applicant was educated to grade 10.  He initially worked in a manufacturing business and had operated several small businesses.  After his arrest, the applicant worked as a labourer in construction and operated another business.  He and his wife have young children.  The psychologist’s opinion that the applicant was at a low risk of reoffending was not convincing, as his reasons were not addressed in detail.  Hardship to the applicant’s family resulting from his imprisonment could not be allowed to overwhelm other sentencing considerations.  Balancing all the relevant considerations, the sentencing judge was satisfied, that a term of imprisonment was the only appropriate sentence for the reasons set out earlier in the sentencing remarks that focused on the nature of the offending and the applicant’s role in it and also taking into account all the mitigating factors referred to by the sentencing judge.

8. At the sentencing hearing, the prosecution had provided an affidavit of a police officer that dealt with assistance provided by the applicant between 2017 and 2020 in providing information in relation to significant criminal offending or potential offending by eight persons in which the applicant himself was not involved. In restricted sentencing remarks for the purpose of s 13B of the Penalties and Sentences Act 1992 (Qld), the sentencing judge accepted that this cooperation was significant and warranted a reduction in the sentence, but considered that an actual custody component was still required. But for the cooperation, the sentencing judge would have sentenced the applicant to two and one-half years’ imprisonment and required him to serve a period of eight months before being released on a recognisance release order.

   Was the sentence manifestly excessive?

9. The real issue on this application is whether the highly significant cooperation by the applicant with the police over a substantial period of three years or so after his arrest on the subject offence made the sentence manifestly excessive to the extent that it required him to serve actual custody for four months of a sentence of two years’ imprisonment.

10. Because of the nature of the applicant’s cooperation, it is not appropriate to provide specific details in these reasons.  The affidavit of the police officer did note in relation to certain information that was provided by the applicant concerning two of the persons that almost identical information had been provided to the relevant authority from another law enforcement agency.  The applicant also provided other information in relation to those two persons that was not referred to as a duplicate of information held by law enforcement agencies.  Some information provided by the applicant against the various persons was used to initiate investigations into serious criminal activity, other information provided intelligence which corroborated an investigation, some information was described by the police officer as unlikely to have been obtained from the use of conventional policing methods alone, and importantly the applicant provided information about a potential murder that police verified was accurate and the police were able, as a result, to alleviate the risk to the potential victim.

11. A sentencing judge must sentence for the offence to which the offender pleaded guilty.  The applicant was prosecuted for a money laundering offence that was at the less serious end of the hierarchy of offences provided for in division 400 of part 10.2 of the Code. This is reflected by the maximum penalty for an offence against s 400.9(1).

12. In the circumstances of all the relevant factors to the sentencing of the applicant pursuant to s 16A(2) of the Crimes Act 1914 (Cth), for the sentencing judge to have concluded some actual custody of four months was required to be served by the applicant has resulted in a sentencing outcome that is unreasonable. The sentencing of the applicant for the offence against s 400.9(1) of the Code when the applicant had provided such significant cooperation with the authorities after his arrest and before the sentencing could only have resulted in the conclusion that the sentence should be structured to avoid an actual custodial component.  The applicant has succeeded in showing that the sentence imposed on him was manifestly excessive.

13. FRASER JA:  I agree.

14. DAVIS J:  I agree.

15. FRASER JA:  The orders as pronounced.