Criminal law – Money laundering – Whether s.122 of the Confiscation Act 1997 (No. 108) creates one offence or two separate offences – Rolled up count - Representative or Giretti count – Sentence – Whether judge sentencing for one offence may take account of acts which constitute a separate offence – Mistake as to maximum sentence – Not immaterial – Sentence of three years' imprisonment for representative count of money laundering constituted by the sale of proceeds of thefts manifestly excessive.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr C.G. Hillman, S.C.
Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant/Applicant
Mr M.J. Croucher
Slades & Parsons
ORMISTON, J.A.:
I confess that I have found both this application and this appeal very hard to resolve. The seriousness of the appellant’s[1] offending has been matched only by the extravagance of her being charged with money laundering for merely selling her ill-gotten stolen gains. In the end I agree with the conclusion which Buchanan, J.A. has reached as to the application for leave to appeal out of time on the conviction on that count of money laundering, but I regret to say that I disagree with his conclusions as to the appeal against sentence, albeit that in the end the difference is small.
[1]For convenience’ sake I shall continue to call Ms Beary “the appellant”, as the conviction application was an afterthought, brought after a plea of guilty.
The interpretation of s.122 of the Confiscation Act1997[2] is by no means easy, but fortunately it has now been repealed, although I am by no means confident that the provision substituted for it in the more recent legislation is any easier to construe. It is difficult to analyse what was intended by the provisions of this section, and the related definition sections, if one goes beyond the language of the provisions themselves. I would have the gravest doubts that the legislature intended to be characterised as “money laundering” the mere sale by a thief of the stolen objects, even if sold on a systematic basis. What one might have thought was intended by the concept of money laundering was expressed only last month by the House of Lords in R. v. Montila[3] where their Lordships said:
“In its typical form money laundering occurs when criminals who profit from their criminal enterprises seek to bring their profits within the legitimate financial sector with a view to disguising their true origin. Their aim is to avoid prosecution for the offences that they committed and confiscation of the proceeds of their offences.”
What was there said, of course, related to provisions in other legislation, albeit that the concept of money laundering and the need…
Grounds of appeal
[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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Details
AGLC
R v Beary [2004] VSCA 229
Case
[2004] VSCA 229
Decision Date
CaseChat Overview and Summary
In the case of R v Beary, the defendant was charged with various offences including money laundering, which involved the sale of proceeds from thefts. The case came before the court to determine the interpretation of section 122 of the Confiscation Act 1997 (No. 108) and its implications on the charges brought against the defendant. The defendant argued that the section created two separate offences rather than one. The court also needed to determine whether the judge could take into account acts which constitute a separate offence when sentencing for one offence. Furthermore, the court had to consider the effect of a mistake regarding the maximum sentence for an offence and whether such a mistake could render the sentence invalid.
The court considered the legal issues and found that section 122 of the Confiscation Act 1997 (No. 108) created two separate offences, one being the representative count and the other being the Giretti count. The court found that the judge could take into account acts which constitute a separate offence when sentencing for one offence. However, the court held that a mistake as to the maximum sentence for an offence is not necessarily fatal to the sentence. The court also found that the sentence of three years' imprisonment for the representative count of money laundering constituted by the sale of proceeds of thefts was manifestly excessive.
In conclusion, the court found that the defendant was guilty of two separate offences under section 122 of the Confiscation Act 1997 (No. 108). The sentence of three years' imprisonment was quashed and the matter was remitted to the sentencing court for re-sentencing. The court did not find the mistake regarding the maximum sentence to be fatal and the defendant's conviction for the two separate offences was upheld.