R v Choi; R v Pereira
[2017] SASCFC 54
•23 May 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CHOI; R v PEREIRA
[2017] SASCFC 54
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Lovell)
23 May 2017
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS
The appellants pleaded guilty to the offence under s 400.9(1) of the Criminal Code (Cth) of dealing with money to a value greater than $100,000 in circumstances where it was reasonable to suspect that the money was the proceeds of crime. Mr Pereira was sentenced to 20 months imprisonment reduced by 30% in recognition of guilty plea, resulting in a head sentence of 14 months. Mr Choi was sentenced to 18 months imprisonment reduced by 33.33% in recognition of guilty plea, resulting in a head sentence of 12 months. Mr Pereira submitted there was a process error in taking into account the previous trips he had made to Australia and finding this was not the first time Mr Pereira had engaged in such conduct. The respondent submitted the comment by the sentencing judge that she was satisfied Mr Pereira had previously engaged in similar criminal conduct simply indicated that she rejected the plea in mitigation that this was the first occasion he had offended. Mr Choi submitted the disparity between his sentence and that imposed on Mr Pereira did not fairly or adequately reflect the differences in their circumstances. The respondent submitted there was no basis for a justifiable grievance on the grounds of parity.
Held, per Parker J (Stanley J and Lovell J agreeing), allowing both appeals:
1. The sentencing judge erred in taking into account the previous trips Mr Pereira had made to Australia. While the trips were grounds for suspicion, there was no evidence as to what he was doing on these earlier trips. Because of this process error Mr Pereira must be resentenced and Mr Choi must be resentenced to maintain parity.
2. Mr Pereira is sentenced to 11 months imprisonment commencing on 4 December 2016 and ordered to be released after 7 months upon entering into a recognisance in the amount of $100 to be of good behaviour for 12 months.
3. Mr Choi is sentenced to 8 months imprisonment commencing on 4 December 2016 and ordered to be released after 5 months upon entering into a recognisance in the amount of $100 to be of good behaviour for 12 months.
Criminal Code Act 1995 (Cth) s 400.9; Crimes Act 1914 (Cth) s 16A, s 17A; Proceeds of Crime Act 2002 (Cth) s 48; Criminal Law (Sentence Imposed) Act 1988 s 6; Judiciary Act 1903 (Cth) s 68; Criminal Law Sentencing Act 1988 s 10B, referred to.
R v De Simoni (1981) 147 CLR 383, discussed.
The Queen v Olbrich (1999) 199 CLR 270; R v Haydon (2001) 80 SASR 560; R v Kreutzer (2013) 118 SASR 211; R v Lobban (2001) 80 SASR 550; R v MacGowan (1986) 42 SASR 580; R v Perre (1986) 41 SASR 105; Tan & Ors v R (2011) 35 VR 109; Weininger v The Queen (2003) 212 CLR 629; Almada v R [2015] NSWCCA 19; Arsiotis v R [2015] NSWCCA 275; Kleindyk v R [2016] WACCA 123; R v Tran [2011] SASCFC 153, considered.
R v CHOI; R v PEREIRA
[2017] SASCFC 54Court of Criminal Appeal: Stanley, Parker and Lovell JJ
STANLEY J: I agree with the reasons of Parker J and the further reasons of Lovell J.
PARKER J: This is an application for permission to appeal against sentence and an appeal against sentence. On 28 April 2017 the Court made orders upholding the appeal and resentencing both appellants. These are the reasons for that decision.
The appellants had pleaded guilty to the offence under s 400.9(1) of the Criminal Code (Cth) of dealing with money to a value greater than $100,000 where it was reasonable to suspect that the money was the proceeds of crime. The maximum penalty is imprisonment for three years or 180 penalty units or both.
The judge had sentenced Pereira to imprisonment for fourteen months and ordered that he be released after nine months upon entering into a recognizance in the sum of $100 to be of good behaviour for twelve months. The sentence was backdated to 4 December 2016 when Pereira was taken into custody.
The judge sentenced Choi to imprisonment for twelve months and ordered that he be released after six months on entering into a recognizance in the sum of $100 to be of good behaviour for twelve months.
Background
Pereira and Choi are both Singaporean citizens. On 29 November 2016 Pereira purchased two return air fares from Singapore to Adelaide. The flights were scheduled to arrive in Adelaide on 2 December and the return was booked for 4 December 2016. On 1 December 2016 Pereira booked accommodation for two adults.
While Choi and Pereira were in the baggage check-in queue at Adelaide Airport on the morning of 4 December 2016 a dog used by the Australian Federal Police drew attention to Pereira’s suitcase. When first questioned Pereira stated that he was carrying meat and about $20,000 in Australian currency. He opened the bag to reveal a T-bone steak and a bundle of cash. The value of the cash was $270,450. He said that it was the proceeds of gambling. He also stated that he was travelling alone.
Soon after Pereira told the police that he had won the money gambling in a private house with some Asian men whom he had met near the casino. He claimed that he had brought SGD 7,500 into Australia.[1] He admitted to the police that he was travelling with Choi.
[1] The value of the Singapore dollar is a little less than that of the Australian dollar.
Pereira also told the police that he had come to Adelaide to watch a soccer match and to see a close friend but then decided not to see the friend. He maintained his story that he had won the money gambling. He had not counted the money but had estimated the value. He claimed that the meat was in his case so that he could eat it. On a previous visit to Adelaide he had taken a lot of meat back to Singapore. He denied that he was trying to mask the smell of the money with the meat.
The police retrieved Choi’s suitcase. They located $249,450 in the case and also a handwritten note with the words “500 allowance and 50 visa”. This note was bound together with a bundle of cash. Police also found a tray of lamb chops in the case.
Choi stated to the police that he was employed with a shipping company and earned about SGD 5,000 or SGD 6,000 per month. This was his first trip to Australia and he had brought with him SGD 50,000 that he had saved. He had brought the money as he intended to go to the casino. He claimed that he had met a Chinese man outside the casino who had invited him to gamble and drink at an apartment. He claimed that he had won about $200,000 by gambling and put the money in his case. Choi also told the police that he had bought the lamb chops because he wanted to cook them and they were fresher and cheaper than lamb in Singapore. He also claimed that while he had written the note found with the money he did not know how it came to be in his bag. He later admitted to police that his story about winning the money gambling was not true. He claimed that Pereira had told him that he had won some money previously and had asked him to accompany him to Australia to bring the money back. He said that Pereira had paid for the whole trip including the flights and visa and paid him $500 for his assistance.
Sentencing
The Commonwealth DPP submitted that both Choi and Pereira should be sentenced on the basis that they had travelled to Australia for the purpose of collecting money in circumstances where they must have suspected that it was the proceeds of a serious criminal offence or offences.
Neither Choi nor Pereira adhered to their initial claim that the money was the proceeds of gambling. The submission on behalf of Pereira was that he did not know how the money had been obtained in Australia and that he did not know that he was to collect this money until he was actually in Australia. He should be sentenced on the basis that he held a suspicion and not on the basis that he knew or believed that the money was the proceeds of crime.
I note that the offence under s 400.9(1) of the Criminal Code to which the appellants pleaded guilty occurs where it was reasonable to suspect that the money was the proceeds of crime. If a person knows or believes that money is the proceeds of crime that will give rise to more serious offences under other provisions of s 400.
The judge observed that Pereira had travelled to Australia on four separate occasions in the months preceding his arrest. On each occasion he had stayed for two nights. Choi had not previously travelled to Australia. Neither had a criminal record.
The judge noted that both Pereira and Choi had declined to provide any explanation as to how they came to possess such a large sum of money and had also declined to explain any of the surrounding circumstances. Nevertheless, they had pleaded guilty at the earliest available opportunity and were entitled to a significant discount on penalty.
Pereira was 34 years old. He had completed a diploma in casino management and a degree in casino management and hotel management. He had worked as a metal application specialist, a flight attendant and in hospitality and event management. He was married with children aged five years and one year. He earned between SGD 4,000 and SGD 18,000 monthly and his wife earned SGD 7,000 monthly. She was a successful business woman. In 2016 he had commenced doing some interior design work with his father-in-law and was also driving for Uber.
The judge noted that the combined income of Pereira and his wife appeared to be quite comfortable and there was no apparent reason why he would commit such a serious offence.
The judge stated that in light of Pereira’s four previous trips to Australia when he stayed for two nights each time the clear inference was that this was not the first time that he had committed such an offence. Her Honour also stated that there was no reason for her not to be satisfied beyond reasonable doubt of that fact. The consequence of this prior offending was that he could not expect leniency as might have been the case if this was the first such offence.
The judge rejected the submission that the money was not Pereira’s and that he had been asked to bring it to Singapore. She did so because he was not prepared to give evidence nor make any submission that the money did not belong to him. The money was in his possession and he had been coming back and forth to Australia for a number of months. He had organised the flights and paid for the hotel. While noting that Pereira had no prior convictions, because of the absence of any explanation for his offending, she could not be satisfied that he was a good candidate for rehabilitation.
The judge noted that Choi had an impressive personal background. He was 34 years old, had no prior convictions and had led a productive life. He was married with a child who was nearly two years old. He appeared to have been working consistently. When arrested he was working as a boarding officer for a maritime company earning between SGD 4,000 to SGD 5,000 per month. His wife also worked but the loss of his income had caused difficulties for the family. There was no evidence that he had been in Australia before nor any evidence that he had previously participated in this type of offending.
The judge rejected Choi’s submission that he was hoping to gain only $500 from the offence. Due to his employment in Singapore and the lack of prior convictions there was no reason to think that he was in such need of $500 that he would take the substantial risk involved in this offending. Her Honour proffered an alternative explanation for the note by suggesting that the $500 was the allowance that he could spend in Australia but that was not the total gain he would receive as a result of the offending. She sentenced him on the basis that he would have obtained an advantage beyond the $500, whether it was a financial benefit or some other type of advantage.
Her Honour held that general deterrence had an important role to play in sentencing for such offences. She also stated that she had had regard to the comparative cases referred to by the prosecution. She sentenced both Pereira and Choi in accordance with Part 1B of the Crimes Act 1914 (Cth) and the requirements of s 16A and s 17A of that Act.
The judge stated that but for the plea of guilty she would have sentenced Pereira to a term of imprisonment of 20 months. She reduced that sentence to 14 months in recognition of his early guilty plea. She ordered that after he had served nine months he was to be released on a recognizance in the sum of $100 to be of good behaviour for twelve months. The sentence was backdated to 4 December 2016 when he was taken into custody.
Her Honour stated that but for the fact that Choi had pleaded guilty she would have imposed a term of imprisonment of 18 months. That was reduced to twelve months imprisonment on account of the early guilty plea. In light of his personal circumstances and the circumstances of the offending her Honour ordered that he was to be released after six months on a recognizance in the sum of $100 to be of good behaviour for twelve months. His sentence also commenced on 4 December 2016. Her Honour also ordered that the sum of $519,900 be forfeited to the Commonwealth under s 48(2) of the Proceeds of Crime Act 2002 (Cth).
Grounds of appeal
The appellants’ initial grounds of appeal were as follows:
1.The sentence imposed by the Learned Sentencing Judge was manifestly excessive in all the circumstances.
2. The Learned Sentencing Judge erred in finding beyond reasonable doubt:
2.1 That the $519,000 belonged to Pereira, and
2.2 That it was not the first occasion Pereira had engaged in such offending conduct, and
2.3That Choi would have obtained an advantage of beyond the $500 whether it was financial or another type of advantage.
3.That in making the beyond reasonable doubt findings at [2.1] and [2.2] above, the Learned Sentencing Judge breached the principle established in R v De Simoni (1981) 147 CLR 383.
4. That the Learned Sentencing Judge in making the beyond reasonable doubt findings at [2.1], [2.2] and [2.3] failed to afford Pereira and Choi procedural fairness and natural justice.
5.That the Learned Sentencing Judge failed to afford sufficient weight to Pereira and Choi’s early guilty pleas.
Ground 2.3 obviously relates only to Choi.
A judge granted permission to appeal on grounds 2, 3 and 4 and referred grounds 1 and 5 to this Court.
Both appellants abandoned ground 5. However, they submit that if they succeed on any of the other grounds, and are to be resentenced, a greater discount should be given for their early guilty pleas than that allowed by the judge.
The appellants also added a new ground 6 as an alternative to ground 2.1. Ground 6 is that the judge had erred in not finding on the balance of probabilities that the money did not belong to Pereira.
A further ground 7 was added, relating only to Choi. This ground is that the judge erred by failing to impose a sentence on Choi that reflected an appropriate disparity with the sentence imposed on Pereira.
The appellants’ submissions
The appellants’ complaint that they were sentenced on the basis that the money was owned by Pereira is said to involve three errors. First, they were denied procedural fairness because the judge failed to put them on notice that she might sentence them on this basis contrary to the principles stated by Martin J (with whom Mullighan and Bleby JJ agreed) in R v Lobban that where specific issue has not been joined between the prosecution and the defendant, the defendant must be put on notice that the submission advanced in mitigation might not be accepted by the judge.[2] The prosecution had alleged in its written submission that the appellant should be sentenced on the basis that the source of the money was unknown.
[2] (2001) 80 SASR 550 at [17]-[21].
The second error alleged by the appellants is that there was no evidentiary basis for the judge to find beyond reasonable doubt that the money was owned by Pereira. Because this fact tilted the sentencing balance towards a more severe sentence it was necessary for it to be proved beyond reasonable doubt.[3]
[3] R v Kreutzer (2013) 118 SASR 211 at [21].
The third contention by the appellants in relation to ownership of the money is that the judge erred in not finding on the balance of probabilities that the money was not owned by Pereira. He was a Singaporean who had only spent a few days in Australia. There was no evidence to support an inference that he had earned the money and the facts were inconsistent with him having found it. A finding that the money was not Pereira’s was necessary because of the elements of the offence for which he was being sentenced. As he was not reckless as to the money being the proceeds of crime, and did not believe that it was the proceeds of crime, then it could not be his.
By sentencing them on the basis that the money was owned by Pereira, they were sentenced for a more serious offence than that for which they had pleaded guilty contrary to the principle in R v De Simoni.[4]
[4] (1981) 147 CLR 383.
The appellants emphasize that the offence to which they had pleaded guilty was inconsistent with the money being owned by Pereira. Section 400.9(1) of the Criminal Code applied where money was reasonably suspected of being the proceeds of crime. A mere suspicion that the money was the proceeds of crime was inconsistent with the money being Pereira’s. If he owned the money, he would know its source and believe, rather than suspect, that it was the proceeds of crime. If the appellants’ state of mind went beyond suspicion so that they were either reckless about the money being the proceeds of crime or actually believed that to be the case then they would have committed more serious offences under s 400.4 of the Criminal Code.
The appellants observe that the prosecution had not submitted that Pereira had committed similar offences during any of his earlier trips to Australia. He had told the police that he had relations and a school friend in Adelaide. He had stayed with this friend on a previous visit to Adelaide. The judge’s questions and comments during sentencing submissions failed to put the appellants on notice that she may make a finding that Pereira had previously committed similar offences. There was no evidentiary basis to support such a finding beyond reasonable doubt. His four recent trips, even when combined with the circumstances of his arrest, did not prove prior offences beyond reasonable doubt. The finding by the judge was mere speculation without a sufficient evidentiary basis. Pereira had been sentenced for offences that he had not been charged with or convicted contrary to the principle in R v De Simoni.
Choi submits that the judge failed to put him on notice that she was intending to sentence him on the basis that he was to receive a financial or other benefit worth considerably more than $500. There was no evidentiary basis for such a finding beyond reasonable doubt. Choi’s claim that he was only to receive $500 had a factual basis, ie the note in his suitcase and his statement to the police that he had been paid $500 by Pereira for his assistance. The prosecution had accepted the truth of that statement.
The appellants submit that the sentences imposed on each of them were manifestly excessive. They had pleaded guilty at the earliest available opportunity, being ten days after their arrest, and neither had any prior convictions. While the sum of money involved was large, that was only one of the matters to be considered in sentencing. In view of the maximum penalty of three years, the circumstances of their offending and their personal circumstances the sentences were plainly unreasonable and unjust.
Choi also submitted that the disparity between his sentence and that of Pereira did not fairly or adequately reflect the differences in their circumstances and left him with a justifiable sense of grievance.[5] His conduct and that of Pereira were substantially different. Pereira had arranged the trip and booked and paid for the flights and accommodation. He had also collected the money, divided it, given half to Choi and instructed him how to wrap it. Pereira had paid Choi for his assistance. While the benefit Pereira would receive was unknown, it could be assumed to be greater than that received by Choi. The latter was only a courier and the money was clearly not his. He had co-operated with the police in his second interview. It was his first trip to Australia, his first offence and an isolated offence.
[5] R v MacGowan (1986) 42 SASR 580.
Choi’s final submission was that if the errors in the sentencing process had only affected Pereira and not him, his sentence must be reviewed because of the parity requirement.[6]
[6] Tan & Ors v R (2011) 35 VR 109 at [120]-[121].
The respondent’s submissions
The respondent submits that the judge had merely rejected the submission by Pereira that the money did not belong to him. Her Honour did not make a positive finding beyond reasonable doubt that the money was his. She was not bound to accept his assertion that the money was not his. Her Honour’s rejection of that assertion was properly founded upon the observation that there was no reason why she should not find that the money was his because he was found in possession of the money, he had been travelling back and forth to Australia and staying for two days each time, had organized the flights for himself and Choi and paid for their accommodation.
In the respondent’s submission the judge had not found the ownership of the money to be an aggravating feature of the offence by Pereira. Her Honour was simply indicating that she did not accept the assertion from the bar table that Pereira did not own the money. Rejection of a mitigating fact is not a finding of the opposite fact.[7]
[7] Weininger v The Queen (2003) 212 CLR 629 at [24]; R v Kreutzer [2013] SASCFC 130, Kourakis CJ at [32].
The submission by Pereira that he did not own the money and had merely been asked to bring it to Singapore was a fact that would operate in his favour. Thus, it was necessary for him to establish that fact on the balance of probabilities.[8] Because there was evidence that indicated that he might own the money, the judge was not bound to find on the balance of probabilities that the money was not his. The facts that might indicate ownership were booking and paying for the airfares with his own credit card, booking the accommodation, possession of the cash and arranging for Choi to help. Additionally, Choi had told the police that the money belonged to Pereira. When sentencing, the court is not bound by the rules of evidence and may inform itself as it thinks fit without regard to technicalities and legal forms.[9]
[8] The Queen v Olbrich (1999) 199 CLR 270 at [27].
[9] Section 6 of the Criminal Law (Sentence Imposed) Act 1988 (SA) which is applied to a Federal offender being sentenced in South Australia by virtue of s 68 of the Judiciary Act 1903 (Cth) and s 16A of the Crimes Act 1914 (Cth) and see also Weininger v The Queen (2003) 212 CLR 69 at [21].
The respondent also relies on the many lies told to the police by Pereira when he was first spoken to and later in the recorded interview. He had lied about the value of money, said he was travelling alone and had won the money gambling. He had also lied by stating that he had met Choi by chance when he discovered that they were travelling to Australia at the same time and had arranged to go to the soccer together. He had also falsely denied buying Choi’s ticket when in fact he had purchased it with his own credit card. He had also falsely stated that he had come to Adelaide to visit his friend but then found that he was away. In fact he had no contact details for the friend nor his address.
The respondent submitted that because of the clear propensity for Pereira to lie and his unwillingness to provide any details about the offending the judge was entitled to approach his contentions with a high degree of scepticism.
The respondent also submitted that the nature of the offence did not require the judge to find on the balance of probabilities that it was not his money. Her Honour was entitled to reject the submission put in mitigation.
The respondent submits that there was no breach of the principle in R v De Simoni. That was because the judge did not positively find that Pereira owned the money. Her Honour simply had not accepted his claim that it was not his money. Alternatively, if the judge had in fact found that the money belonged to Pereira, that did not indicate that he was sentenced for a more serious offence. The hierarchy of offences under Division 400 of the Criminal Code is not based upon ownership of the money but on the level of knowledge that the defendant has as to whether the money is the proceeds of crime. Knowledge or recklessness gives rise to a more serious offence. Her Honour clearly stated that she was sentencing on the basis that the appellants suspected that the money was the proceeds of crime.
A further submission by the respondent was that even if the judge had sentenced on the basis that the money belonged to Pereira that did not indicate that he was being sentenced on the basis of recklessness or knowledge that the money was the proceeds of crime. The money could have belonged to Pereira without him having anything more than a mere suspicion that it may be the proceeds of crime.
The respondent submits that the comment by the judge that she was satisfied that Pereira had engaged previously in similar criminal conduct was simply a rejection of the plea in mitigation that this was the first occasion he had offended. [10] The evidence entitled the judge to reject that submission.
[10] Weininger v The Queen (2013) 212 CLR 629.
The judge needed only to be satisfied on the balance of probabilities to reject the matters put in mitigation on behalf of Pereira. The respondent submits that the judge’s comment that she had reached a finding beyond reasonable doubt should, when considered in the context of her remarks as a whole, not be taken to mean that she had found the aggravating feature to be proven.
The respondent also submits that the facts entitled the judge to reject Choi’s claim that he was only to receive $500 and payment of his visa fee. Due to his income, good job, lack of prior convictions and family circumstances it was inherently unlikely that he would commit such an offence for a reward of only $500.
The respondent further submits that there was no denial of procedural fairness. Both appellants had made it quite clear from early in the sentencing process that they were not going to disclose any information about the circumstances of the offences. The position would be different if the defendant did not take the opportunity to call evidence on a point because they thought a submission was going to be accepted.[11]
[11] R v Lobban (2001) 80 SASR 550 at 554; R v Haydon (2001) 80 SASR 560 at [31]-[34]; R v Perre (1986) 41 SASR 105.
The respondent also submits that the remarks made by the judge during sentencing submissions made it clear, in a broad sense, that in the absence of evidence or a better explanation as to how the offending occurred, she was not inclined to accept the appellant’s submission about the facts. It was not necessary for the judge to detail every matter she was not willing to accept. Moreover, the judge had made it quite clear during sentencing submissions that she may reject Choi’s assertion that he was only to receive $500.
The respondent also submits that the sentences were not manifestly excessive. While the appellants were not required to explain why they had come to Australia to take some $520,000 back to Singapore, the judge correctly concluded that their decision not to offer any explanation was relevant to the assessment of their rehabilitation prospects. The offence was serious and general deterrence an important consideration because those who generate large amounts of money from serious crimes rely on persons such as the appellants to move the money out of Australia.
The respondent submits that the schedule tendered during the sentencing submissions did not establish a clear range of appropriate sentences. The broad scope of the money laundering offences under Division 400 of the Criminal Code would always produce an appreciable variation in sentences. The sentences were not plainly unreasonable or unjust. Permission to appeal should be refused.
There is no set discount for early guilty pleas when sentencing for Commonwealth offences. The appellants had no choice but to enter a guilty plea. They had been caught red-handed and the “I won the money gambling” explanation had little prospect of success. The reductions of 30% for Pereira and 33% for Choi were generous.
The respondent submits that there was a great degree of similarity in the conduct of the two appellants. On that basis there did not need to be a marked disparity between their sentences. There was no basis for a justifiable grievance on the part of Choi on parity grounds.
Consideration
The first issue is whether the judge did in fact sentence on the basis that Pereira owned the money. Her Honour stated:
It was put to me the money you had is not your money and you had been asked to bring this money to Singapore. There is no reason I should find it is not your money. You were not prepared to give evidence, nor make a submission beyond saying it does not belong to you. The money was in your possession, you have been coming back and forth to Australia for a number of months. You organised the flights, you paid for the hotel, and you and your co-defendant obviously got your heads together in relation to an explanation to be given in the event that you were stopped. You were both travelling together.
There is nothing in the sentencing remarks to indicate that the judge treated her observation that “there is no reason I should find it is not your money” as an aggravating factor. I accept the correctness of the respondent’s submission that the judge merely rejected the assertion by Pereira that the money did not belong to him without making a positive finding beyond reasonable doubt that the money was his. The rejection by the judge of the mitigating factor (ie that Pereira was a mere “mule” transporting someone else’s money) did not amount to a finding that he was the owner.[12]
[12] Weininger v The Queen (2003) 212 CLR 629 at [24].
The appellants have complained that the judge erred in making the finding beyond reasonable doubt that this was not the first occasion that Pereira had engaged in money smuggling.
While the earlier trips quite properly attract considerable suspicion, there was minimal evidence before the Court about those trips. The information was limited to date, place and duration. Nevertheless, the judge stated that there was a clear inference from the circumstances of this offending that it was not the first time Pereira had committed such an offence. Her Honour then stated that the consequence of this earlier offending was that he could not expect the leniency that he would have received if it had been his first offence of this type. If her Honour had not gone any further it could be accepted that she was only rejecting the plea in mitigation.
In R v Tran and Tran this Court held that uncharged acts may be taken into account for sentencing purposes to determine the context in which an offence was committed.[13] However, I consider that the finding made by the judge as to the purpose of the prior trips went beyond fixing the context.
[13] [2011] SASCFC 153 at [28]-[31].
Her Honour stated that “I can see no reason at all not to be satisfied beyond reasonable doubt that this was not the first occasion you had engaged in such conduct”.
The making of that finding went beyond what was required to fix the context and also beyond rejecting the plea in mitigation. It therefore leads to the conclusion that Pereira was sentenced on the basis that he had committed offences on the past trips. That was contrary to the principle in R v De Simoni that Pereira could not be punished for an offence for which he had not been convicted.[14]
[14] (1981) 147 CLR 383.
For that reason, I consider that the sentencing of Pereira was affected by a process error. That error affected the outcome. He must therefore be re-sentenced.
I turn to the contention by Choi that he was denied procedural fairness by not being put on notice by the judge that she may reject his claim that he was only to be paid $500. He points out that the prosecution had submitted that this was to be his reward. However, the judge expressly stated that the prosecution was unable to agree that he was only to be paid $500 because they would not know the true position. In my view the interchange between the judge and counsel was sufficient to put Choi on notice that the judge was not inclined to accept he was only to receive $500.
I also do not accept the contention by Choi that there was no evidentiary basis for the judge to find beyond reasonable doubt that he would have received an advantage beyond $500. The fact that he was only to receive minimal payment was a mitigating factor that Choi needed to establish on the balance of probabilities.[15] Choi relies upon the note found with the money and also his self-serving statement to police that Pereira was only to pay him $500. The observations made by the judge concerning Choi’s personal circumstances and the serious risk he was taking provided a proper factual foundation for her Honour not to be satisfied about the $500 payment.
[15] R v Olbrich (1999) 199 CLR 270 at 281.
I reject the submission that the sentences were manifestly excessive. While the maximum penalty provided for the offence was imprisonment for three years, the starting point for the head sentences prior to the discount for the early guilty pleas were respectively slightly more and slightly less than half the maximum available sentence. Given that the appellants were found in possession of over $500,000 that they suspected to be the proceeds of crime, those sentences were within the range reasonably available.
While recognising the limitations of comparable sentence tables, my conclusion that the sentences were within the range reasonably available is supported by the table provided to the judge. I refer to the sentence imposed on appeal in Arsiotis v R by the New South Wales Court of Criminal Appeal of 18 months imprisonment with release on recognizance after ten months and 21 days.[16] The amount involved in that case was $990,050 with the potential financial benefit to the offender being 7.5% of that sum ie almost $75,000. In Almada v R the same Court dismissed an appeal against a sentence of 18 months imprisonment with release upon recognizance after nine months for an offender who attempted to smuggle $210,000 out of Australia.[17] In Kleindyk v R the Western Australian Court of Criminal Appeal dismissed an appeal against a sentence of imprisonment for one year and three months for a money trafficking offence involving $764,320.[18]
[16] [2015] NSWCCA 275.
[17] [2015] NSWCCA 19.
[18] [2016] WACCA 123.
I reject the submission by the appellants that they were not allowed sufficient discount for their early guilty pleas. The scale of discounts for guilty pleas under s 10B of the Criminal Law (Sentencing) Act 1988 (SA) does not apply to sentencing for Commonwealth offences. Instead, the Court has a general discretion under common law sentencing principles.
The appellants pleaded guilty at the earliest opportunity. Pereira was granted a discount of 30% which reduced his sentence from the starting point of 20 months to 14 months imprisonment. Choi received a discount of 33.3% and thereby had his sentence reduced from the starting point of 18 months imprisonment to 12 months imprisonment. Given that they were caught red-handed in the airport departure queue with suitcases containing some $250,000 each and meat, there was no realistic option available to them other than to enter a prompt guilty plea. In that light I consider that the discounts allowed by the judge did not involve any error. It is not to the point that they may have received a greater discount under the State statutory scheme.
I have found that the sentenced imposed on Pereira was greater than it might otherwise have been because of her Honour’s finding beyond reasonable doubt that he had committed similar offences on his earlier trips to Australia. For that reason it was necessary for him to be resentenced.
I would uphold the appeal on ground 2.2 and on ground 3 in so far as it refers to ground 2.2. I would dismiss the appeal on grounds 2.1, ground 2.3, ground 3 in so far as it refers to ground 2.1 and ground 4. I would refuse permission to appeal on grounds 1, 6 and 7. Ground 5 was abandoned.
On 28 April 2017 Pereira was resentenced by this Court to imprisonment for eleven months with an order that he be released after seven months on entering into a recognizance in the same terms as previously imposed.
Choi has submitted that he should also be resentenced so as to maintain parity with the sentence imposed on Pereira. That submission is plainly correct. The judge appropriately recognised that Choi had a substantially less significant role in their joint criminal enterprise. It was necessary to re-sentence Choi to maintain parity.
Choi was resentenced to imprisonment for eight months with an order that he be released after five months on a recognizance in the same terms as previously ordered.
LOVELL J:
Mr Pereira
I have had the advantage of reading the draft judgement of Parker J. I generally agree with his reasoning and the orders proposed. I wish to just add a few remarks about Appeal ground 3.
The appellant, Mr Pereira, submits that when sentencing him the judge took into account, as an aggravating feature, that he had committed this type of offence on previous occasions, when he had not been charged with any other offence, and the evidence did not support such a conclusion.
Factual background
The appellants appeared before the sentencing judge on 3 February 2017 for submissions. Prior to that date the prosecution had filed a “Prosecution Statement of Facts”. The statement sets out the factual basis alleged by the prosecution. The statement observes that Mr Pereira travelled from Singapore to Australia on four separate occasions prior to his arrest. It provides no further details. The prosecution also filed written submissions relating to sentence. No mention was made in those submissions of Mr Pereira’s previous travel. During the course of submissions the appellant took no issue with the content of either of those documents and the prosecution did not seek to rely on the “previous travel”.
In his submissions counsel for the appellant, Mr Edwardson QC, outlined the personal history of the appellant. It was submitted that he had been very “industrious since leaving school”. Lengthy submissions were made before the judge relating to the appellant’s work history and community work. Counsel submitted to the judge “he has no prior convictions as you have heard”.
The judge raised with Mr Edwardson QC the issue of the previous travel. Mr Edwardson QC submitted that there was no evidence that his attendance on earlier occasions had anything to do or was connected with the offending now before the court. The judge returned to the issue of the previous travel during the course of submissions relating to rehabilitation.
As mentioned the prosecution made no submissions as to how the judge should deal with the question of the previous travel.
Counsel did not make the submission that this offending should be seen as “one-off” but he did emphasise, appropriately, the appellant’s lack of antecedents and general good character. It could be inferred from the submissions that he was submitting that there had been no previous incursions into crime.
Sentencing Remarks
During the course of her sentencing remarks the judge stated:[19]
What is plain to me is that this is not the first time you have come to Australia for such a short period of time. The clear inference to be gleaned from the circumstances of this offending is that this is not the first time you have committed an offence such as this. The consequence of this is you cannot expect leniency, as you might have done had it been your first offence of this type (My underlining)
[19] Sentencing Remarks, 21 February 2017, page 4.
The judge later said, “I can see no reason at all not to be satisfied beyond reasonable doubt that this was not the first occasion you had engaged in such conduct.”[20]
[20] Ibid.
The appellant submits that the Judge clearly made a finding beyond reasonable doubt that the appellant had committed this type of offence before. It was submitted that the judge treated those matters as an aggravating feature when the evidence did not support such a finding.
Respondent’s submissions
On appeal, Mr Barklay for the respondent, conceded that the evidence did not enable the judge to find beyond a reasonable doubt that he had committed offences on those other occasions. That concession was appropriate. Mr Barklay also conceded that the prosecution had made no submissions before the judge on that topic.
However he argued that the comments by the sentencing judge were similar to sentencing remarks that the High Court dealt with in Weininger v The Queen.[21]
[21] (2003) 212 CLR 629.
In Weininger the appellant had emphasised that he was a person who had not previously been convicted. He had asserted, out of court, that this was a “one-off thing” and this statement had been tendered to persuade the sentencing judge that he had not previously engaged in drug importation or money-laundering.
The plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) stated:[22]
“The issue tendered by the appellant was not to be resolved by choosing between satisfaction on the balance of probabilities that the appellant had not previously been engaged in drug importation and money laundering or being satisfied beyond reasonable doubt that he had.
The difference in standard of proof means that it is necessary to recognise the possibility that the sentencing judge may be persuaded of neither conclusion to the requisite standard. But more fundamentally than that, the relevant sentencing fact was what was known about the character and antecedents of the appellant (s 16A(2)(m)). That task was not to be performed by assigning a single label to the appellant’s character or antecedents as either “good” or “bad”. Rather, the question for the primary judge was, what was known about the appellant’s character and antecedents? What was known of those matters to be taken into account in a way that favoured the appellant, or in a way that did not? Importantly, did the case fall between these extremes? Was the state of the material before the primary judge such that the appellant’s character and antecedents worked neither in his favour nor against him?
The impugned passage of the primary judge’s sentencing remarks must be understood against that background. Her Honour spoke of the absence of prior convictions as “a matter which must receive some recognition”. She contrasted that with what she described as “the strong evidence” establishing his participation in cocaine importation before the commission of the offences for which he stood for sentence. From this she concluded that he could not be “treated as a first offender with the attendant leniency that that status usually attracts”.
Taken in isolation the reference to “first offender” may have been unfortunate. Divorced from its context it appears to suggest that the primary judge was treating the appellant as a person guilty of crimes with which he had not been charged. But set in its context it is evident that the primary judge was doing no more than expressing a conclusion that the absence of prior convictions did not, as ordinarily would be the case, demonstrate absence of prior criminal behaviour.
[22] Ibid 638-639, [26]-[29].
Having accepted that the evidence could not support a finding that the appellant had committed prior offences of a similar type, the respondent submitted that the sentencing judge in this matter was doing no more than expressing a view that the lack of prior convictions did not demonstrate an absence of prior criminal behaviour. The respondent pointed to the judge’s expression “you cannot expect leniency” as supporting that submission. It was submitted that the judge was simply conveying that she rejected the matter advanced by the appellant’s counsel in mitigation, at least by inference, that this was the first time Mr Pereira had offended.
Discussion
I am unable to accept that submission of the respondent. The judge in this matter has gone further than simply rejecting a matter in mitigation. As indicated earlier in these reasons the judge stated “this is not the first time you have committed an offence such as this. The consequence of this is you cannot expect leniency, as you might have done had been your first offence of this type.”[23] The expression “you cannot expect leniency” needs to be read in the context of the expressions immediately before and after the phrase mentioned.
[23] Sentencing Remarks, 21 February 2017, page 4.
The likely inference from this remark, in context, is that Mr Pereira had committed other offences such as this one. However any lack of clarity about the position was dispelled when the judge later said “I can see no reason at all not to be satisfied beyond reasonable doubt that this was not the first occasion you had engaged in such conduct.”[24]
[24] Ibid.
In Weininger the sentencing judge was in the position of not accepting a mitigating factor on the balance of probabilities but also unable to find the aggravating feature proved beyond reasonable doubt. It could not be said here that the judge had made a finding that the appellant’s character and antecedents “worked neither in his favour nor against him.”
The specific finding by the judge “beyond reasonable doubt”, makes it clear that she was making a finding that the appellant had committed this type of offending before and she was treating it as an aggravating feature of the case.
The respondent conceded that the evidence could not support such a finding. The judge was in error in making the finding and treating his previous travel as an aggravating feature of the case.
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