R v FF

Case •

[2023] NSWCCA 186

•

26 July 2023

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v FF [2023] NSWCCA 186
Hearing dates: 30 June 2023
Date of orders: 26 July 2023
Decision date: 26 July 2023
Before: Beech-Jones CJ at CL at [1]
Fagan J at [89]
R A Hulme AJ at [90]
Decision:

(1)   Appeal allowed;

(2)   Set aside the sentence imposed on the respondent in the District Court on 15 December 2022;

(3)   In place thereof:

(a)   impose an aggregate sentence of 4 years imprisonment to commence on 21 April 2023 and expire on 20 April 2027;

(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act1999 (NSW) set a non-parole period of 2 years and 6 months;

(c)   specify that the earliest date the respondent will be eligible to be released on parole is 20 October 2025;

(d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the respondent that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:

Sequence 10 – section 193C of the Crimes Act 1900 (NSW) – 26 months

Sequence 13 – section 193B of the Crimes Act 1900 (NSW) – 28 months

Sequence 14 – section 193B of the Crimes Act 1900 (NSW) – 29 months

Catchwords:

CRIMES — appeals — Crown appeal against sentence — manifest inadequacy — proceeds of crime — syndicate involved in large-scale drug trafficking — where respondent received amounts of cash and deposited them into bank accounts he opened and controlled — total sum of proceeds of crime exceeded $8.5 million — respondent sentenced to 2 years and 6 months imprisonment to be served by way of ICO — whether sentence is manifestly inadequate — depositors were recruited to assist respondent and played a significantly lesser role — disparate undiscounted indicative sentences between respondent and HM (a depositor) — significance of disparity to Crown appeal — aggregate sentence involved a very large and unjustified degree of notional concurrency — sentence manifestly inadequate to a significant degree — whether Court should exercise its residual discretion not to intervene — offending constitutes very serious instances of large-scale money laundering — sentence imposed was an affront to administration of justice — appeal allowed — respondent resentenced

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes(Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:

Bresnahan v R [2022] NSWCCA 288

Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41

CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9

Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

JM v R [2014] NSWCCA 297

Ke v R [2021] NSWCCA 177

Kelly v R [2017] NSWCCA 256

Lee v R [2020] NSWCCA 244

Mandranis v The Queen [2021] NSWCCA 97; (2021) 289 A Crim R 260

Rv Doff [2005] NSWCCA 119; (2005) 54 ACSR 200

R v Gu [2006] NSWCCA 104

R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451

R v Lembke [2020] NSWCCA 293

R vWeismantel [2016] NSWCCA 204

R v Zamagias [2002] NSWCCA 17

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107

Category:Principal judgment
Parties: Rex (Appellant)
FF (Respondent)
Representation:

Counsel:
Ms S Lind (Appellant)
Mr A Chhabra; Mr J Fennel (Respondent)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Appellant)
Crimcorp Defence Lawyers (Respondent)
File Number(s): 2021/68430
Publication restriction: Orders made on 8 August 2023 under the Court Suppression and Non-publication Orders Act 2010 (NSW) requiring the respondent be identified in connection with the proceeding by way of a pseudonym
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
15 December 2022
Before:
Flannery SC DCJ
File Number(s):
2021/68430

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 15 December 2022, the respondent, FF, was sentenced to 2 years and 6 months (30 months) imprisonment to be served by way of an intensive correction order (“ICO”) following pleas of guilty to two counts of recklessly dealing with the proceeds of crime contrary to s 193B(3) of the Crimes Act 1900 (NSW) (the s 193B offences) and one count of dealing with property with a value in excess of $100,000 that is reasonably suspected of being the proceeds of crime contrary to former s 193C(1) of the Crimes Act (the s 193C offence). Attached as a “Form 1” to each of the s 193B(3) offences and the s 193C(1) offence was a further s 193B(3) offence and s 193C(1) offence respectively. The relevant conditions of the ICO comprised supervision of the respondent by a Community Corrections Officer and 300 hours of community service.

The s 193C(1) offence occurred over the period from 21 July 2020 to 29 January 2021 during which the respondent made large cash deposits into nine bank accounts he controlled. The total amount deposited the subject of this offence was just under $4.8 million.

The agreed facts record that “[f]rom at least 1 December 2020 to 22 February 2021” the respondent’s co-offender, Yi Zhong, was provided with large amounts of cash by a “criminal syndicate that was involved in large-scale drug trafficking” (the “Syndicate”). These funds would then be deposited into bank accounts, converted to cryptocurrency and returned to the Syndicate.

The s 193B offences were committed in circumstances where the respondent retrieved various amounts of cash from Zhong and another co-offender, Judy Ly, and deposited them into bank accounts he had opened and controlled. These amounts were converted to cryptocurrency and returned to the Syndicate. Several other depositors were “recruited to aid [the respondent] in making cash deposits at banks”. Zhong, Ly and the depositors were sentenced before the respondent. Relevantly, HM (a depositor) was sentenced to 3 years and 6 months (42 months) imprisonment with a non-parole period of 21 months for one s 193C(1) offence and one s 193B(3) offence.

The New South Wales Director of Public Prosecutions (the “DPP”) appealed the respondent’s sentence under s 5D of the Criminal Appeal Act 1912 (NSW) on the basis that it was manifestly inadequate.

The principal issues on appeal were:

1. whether the respondent’s sentence was manifestly inadequate having regard to the sentences imposed on his co-offenders, the indicative sentences and the overall aggregate sentence (the manifestly inadequate issue); and

2. if the respondent’s sentence was manifestly inadequate, whether the Court should exercise its residual discretion not to intervene (the residual discretion issue).

The Court held (per Beech-Jones CJ at CL, Fagan J and R A Hulme AJ agreeing), allowing the appeal and resentencing the respondent to 4 years imprisonment with a non-parole period of 2 years and 6 months commencing on 21 April 2023:

As to the manifestly inadequate issue

1. HM’s offences were far less serious than the respondent’s offences yet she received a higher undiscounted sentence. However, it is not a legitimate response to a perceived lack of parity between HM and the respondent’s sentences for this Court to increase the respondent’s sentence. In addressing a complaint of manifest inadequacy, the sentence imposed on a co-offender is treated no differently to how a comparable sentence is to be considered: [61]−[63] and [65] per Beech-Jones CJ at CL (Fagan J agreeing at [89]; R A Hulme AJ agreeing at [90]).

R v Weismantel [2016] NSWCCA 204, applied. R v Gu [2006] NSWCCA 104; R v Lembke [2020] NSWCCA 293, affirmed. Rv Doff [2005] NSWCCA 119; (2005) 54 ACSR 200, considered.

2. The respondent’s undiscounted indicative sentences were unduly lenient. Further, even if one was to accept that the indicative sentences were appropriate, the aggregate sentence involved a very large and unjustified degree of notional concurrency. Over a sustained period, the respondent played a significant role in the laundering of over $8.5 million of cash that either was, or was reasonably suspected to be, the proceeds of the sale of illegal drugs. An aggregate term of imprisonment of 2 years and 6 months (30 months) for such conduct was manifestly inadequate to a significant degree: [70]−[72] per Beech-Jones CJ at CL (Fagan J agreeing at [89]; R A Hulme AJ agreeing at [90]).

Bresnahan v R [2022] NSWCCA 288; Ke v R [2021] NSWCCA 177, distinguished. House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107; Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; JM v R [2014] NSWCCA 297; 246 A Crim R 528; Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41, considered.

3. The s 193B(3) offences committed by the respondent were far more serious (and included similar offences on a Form 1) than those of Ly. Although Zhong had a more senior role in the money laundering operation, the difference in his undiscounted indicative sentences for the s 193B(1) offences (54.5, 48 and 60 months) compared to the respondent’s (39 and 42 months) is such that it cannot be said that indicating higher sentences for the respondent would necessarily result in a lack of parity: [74]−[75] per Beech-Jones CJ at CL (Fagan J agreeing at [89]; R A Hulme AJ agreeing at [90]).

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited.

As to the residual discretion issue

4. The delay in the listing of the appeal does not have any significant bearing on the exercise of the Court’s residual discretion. Evidence of the respondent’s insight into his offending, employment, financial counselling and performance of his community service obligations is consistent with the sentencing judge’s findings and are otherwise to his credit. Nevertheless, his offences constitute very serious instances of large-scale money laundering. The sentence that was imposed on him was an affront to the administration of justice. This Court should not exercise its residual discretion not to intervene: [80]−[82] per Beech-Jones CJ at CL (Fagan J agreeing at [89]; R A Hulme AJ agreeing at [90]).

CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9, applied.

JUDGMENT

  1. BEECH-JONES CJ at CL: This is an appeal by the New South Wales Director of Public Prosecutions (the “DPP”) under s 5D of the Criminal Appeal Act 1912 (NSW) on the basis that the sentence imposed on the respondent for “money laundering” was manifestly inadequate.

  2. The respondent to this appeal, FF,[1] pleaded guilty in the Local Court to three offences. Two of the offences involved dealing with the proceeds of crime while being reckless as to whether it was the proceeds of crime contrary to s 193B(3) of the Crimes Act 1900 (NSW). The other offence involved dealing with property with a value in excess of $100,000 that is reasonably suspected of being the proceeds of crime contrary to former s 193C(1) of the Crimes Act. At the time of his sentencing similar offences were taken into account on a notice filed by the prosecutor under s 32(1) of the Crimes(Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”; i.e. a “Form 1”). The total sum the subject of all of these offences exceeded $8.5 million.

    1. On 8 August 2023, the Court made an order under s 7 of the Court Suppression and Non‑publication Orders Act 2010 (NSW) which, inter alia, required the respondent be identified in connection with the proceedings by a pseudonym.

  3. The respondent adhered to his pleas in the District Court. On 15 December 2022, the sentencing judge, Flannery SC DCJ, imposed an aggregate sentence of 2 years and 6 months (30 months) to be served by way of an intensive correction order (“ICO”). The relevant conditions of the ICO comprised supervision of the respondent by a Community Corrections Officer and the performance of 300 hours of community service.

  4. To succeed in an appeal under s 5D, the DPP must demonstrate error of the kind identified in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 per Dixon, Evatt and McTiernan JJ (“House”; see also CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [54] per Kiefel, Bell and Keane JJ; “CMB”). The form of error relied on by the DPP in this case is that the aggregate sentence was manifestly inadequate; that is, that it was “unreasonable or plainly unjust” (House at 505 per Dixon, Evatt and McTiernan JJ). Further, even if error is established, to justify resentencing an offender the DPP must also “negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised” (CMB at [34] per French CJ and Gageler J and at [56] per Kiefel, Bell and Keane JJ, quoting R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 at [12]).

  5. For reasons that follow, I accept the DPP’s submission that the aggregate sentence was manifestly inadequate. I also accept the DPP has established that the residual discretion not to intervene should not be exercised. I propose that the respondent be resentenced to a term of imprisonment of 4 years. As that period exceeds 3 years, no question arises as to whether it should be served by way of an ICO (Sentencing Act, s 68).

The Sentences and Offences

  1. Section 193B of the Crimes Act establishes three offences which answer the colloquial description “money laundering”. Section 193B(1) provides that it is an offence to deal with the “proceeds of crime” knowing that it is such proceeds and intending to conceal that it is such proceeds. Section 193B(2) provides that it is an offence to deal with the proceeds of crime knowing that it is such proceeds. Section 193B(3) provides that it is an offence to deal with the proceeds of crime and be “reckless as to whether it is proceeds of crime”. The maximum penalty for these offences is imprisonment for 20 years, 15 years and 10 years respectively. There are no standard non-parole periods prescribed for these offences. Section 193A defines “proceeds of crime” to mean “any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence” (which is also defined). In this case, the cash the subject of the offences under s 193B was the proceeds of dealing in prohibited drugs.

  2. It is an element of the offences under s 193B that the property the subject of the relevant dealings is the proceeds of crime. Where that cannot be established, s 193C provides for a series of offences for dealing with property in respect of which “there are reasonable grounds to suspect is the proceeds of crime”. As at the time of the subject offences, s 193C(1) provided that it was an offence to deal with such property if the value of the property was $100,000 or more. Section 193C(2) provided that it was an offence to deal with such property with a value of less than $100,000. The maximum penalty for those two offences was imprisonment for 5 years and 3 years respectively. Again, there is no standard non-parole period for these offences. (With effect from 18 October 2022, s 193C was amended but the amendments do not affect this appeal: Crimes Amendment (Money Laundering) Act 2022 (NSW)).

  3. As noted, the respondent received an aggregate sentence. Section 53A(2)(b) of the Sentencing Act obliges a sentencing judge who imposes such a sentence to indicate to the offender the sentencing that would have been imposed had separate sentences been imposed instead of an aggregate sentence. The sentencing judge complied with that obligation in this case

  4. The following table sets out the offences to which the respondent pleaded guilty or requested be taken into account on a Form 1, the maximum penalty for each offence, the sentence indicated for each offence by her Honour pursuant to s 53A(2)(b) of the Sentencing Act along with the undiscounted indicative sentence for each offence (i.e. prior to the 45% discount allowed by the sentencing judge for the respondent’s pleas of guilty and assistance):

Offence

Maximum penalty

Discounted indicative sentence

Undiscounted indicative sentence

(1) s 193C(1): Deal with property suspected to be proceeds of crime between 21 July 2020 and 29 January 2021 ($4,799,707.70) (sequence 10)

5 years

imprisonment

20 months

3 years (36 months)

(2) Form 1 to s 193C(1) offence

s 193C(1): Deal with property suspected to be proceeds of crime on 9 March 2021 ($498,850) (sequence 11)

5 years imprisonment

N/A

N/A

(3) s 193B(3): Recklessly deal with proceeds of crime between 1 and 4 February 2021 ($990,000) (sequence 13)

10 years imprisonment

22 months

3 years and
3 months (39 months)

(4) Form 1 to s 193B(3) offence

s 193B(3): Recklessly deal with proceeds of crime on 10 and 14 December 2020 ($267,500.00) (sequence 12)

10 years imprisonment

N/A

N/A

(5) s 193B(3): Recklessly deal with proceeds of crime between 8 and 12 February 2021 ($990,000) (sequence 14)

10 years imprisonment

23 months

3 years and
6 months (42 months)

(6) Form 1 to s 193B(3) offence

s 193B(3): Recklessly deal with proceeds of crime between 15 and 19 February 2021 ($990,000) (sequence 15)

10 years imprisonment

N/A

N/A

Facts of the Offending

  1. The following is taken from an agreed statement of facts that was placed before the sentencing judge.

  2. Those facts record that “[f]rom at least 1 December 2020 to 22 February 2021” the respondent’s co-offender, Yi Zhong, was provided with large amounts of cash by a “criminal syndicate that was involved in large-scale drug trafficking” (the “Syndicate”). Zhong’s function was to facilitate the conversion of the cash from drug trafficking into the virtual currency “Bitcoin” for return to Syndicate members. Zhong arranged for other persons to deposit the money into bank accounts that the Syndicate controlled or bank accounts the depositors controlled, who would then transfer it to Syndicate accounts.

  3. The agreed statement of facts record that once the cash was deposited, it was transferred out of the account on the same day into an account of a cryptocurrency dealer based in Queensland. This dealer then transferred “Bitcoins” to a digital wallet controlled by Zhong, who “then transferred the Bitcoins to digital wallets controlled by the Syndicate”.

Offence (1) – s 193C(1) – 21 July 2020 to 29 January 2021 ($4,799,707.70)

  1. The agreed facts record that from 21 July 2020 to 29 January 2021, the respondent deposited the following amounts into bank accounts that he opened at the relevant bank in the name the “Pawn Hub”:

“a.   ANZ – 21 July 2020 to 6 October 2020 – $543,600;

b.   Bendigo Bank – 30 July 2020 to 29 January 2021 – $745,300

c.   Bank of Queensland – 23 August 2020 to 27 January 2021 – $575,587.70

d.    CBA – 24 July 2020 to 29 January 2021 – $1,253,620

e.   CUA – 17 September 2020 to 19 November 2020 – $117,300

f.   Heritage – 24 September 2020 to 7 January 2021 – $119,050

g.   NAB – 4 August 2020 to 27 January 2021 – $581,300

h.   St George – 22 July 2020 to 16 October 2020 – $488,850

i.   Suncorp – 24 July 2020 to 6 October 2020 – $375,100”

  1. The agreed facts record that, after each deposit was made, these amounts were immediately transferred out of the relevant account, and that the respondent was the sole signatory to the account.

  2. Consistent with the terms of s 193C(1), all of the above amounts are to be treated as though the amounts were reasonably suspected of being the proceeds of crime. This is mostly consistent with [11] above in that the agreed facts specify that the earliest specific date that Zhong received funds definitely known to be the proceeds of drug dealing was 1 December 2020. All the dealings in cash by the respondent that predate that period are the subject of the s 193C(1) offence. Although some dealings the subject of that charge post-date 1 December 2020, it is not stated that the cash for those deposits was supplied by Zhong.

Offence (4) – Form 1 – s 193B(3) – 10 and 14 December 2020 ($267,500)

  1. The agreed facts record that on 7 December 2020, HM, Jake Riddleston, Jack Hope and Kailash Prasad (the “depositors”) arrived in Sydney on a flight from the Gold Coast. They were “recruited to aid [the respondent] in making cash deposits at banks” (emphasis added). Shortly after their flight, the respondent met the group at their hotel.

  2. On 9 December 2020, Zhong went to the hotel where the depositors were staying. The respondent arrived a few minutes later carrying a bag. Both the respondent and Zhong left the hotel shortly afterwards.

  3. On 10 December 2020, Zhong was stopped by the police while he was driving. In a conversation that was recorded later, Zhong stated that when he was stopped he had “200K” in the car. After Zhong was stopped, he resumed driving. Shortly afterwards, the respondent retrieved a bag from the car from which it can be inferred he received cash. During the course of that day, the respondent made two cash deposits into accounts in the name “Pawn Hub” totalling $45,750. On that same day, HM, Riddleston, Hope and Prasad made nine cash deposits totalling $200,000. Those funds were then dealt with in the manner described above (at [11]−[12]).

  4. On 14 December 2020, Zhong met the respondent and gave him “a small black duffel bag” which it can be inferred contained cash. The respondent made two deposits into accounts in the name of “Pawn Hub”. The total of the deposits was $67,500. Both amounts were immediately transferred out of the relevant accounts.

  5. The particulars to the first offence listed in the above table (i.e the s 193C(1) offence) allege that the respondent possessed $267,500. This amount appears to be the sum of the $200,000 deposited by HM, Riddleston, Hope and Prasad on 10 December 2020 and the sum of $67,500 deposited by the respondent on 14 December 2020. It appears to omit the $45,000 in cash the respondent deposited on 10 December 2020. Leaving that aside, it is implicit from the pleas that the respondent provided HM, Riddleston, Hope and Prasad with the cash they deposited.

Offence (3) – s 193B(3) – 1 to 4 February 2021 ($990,000)

  1. On 21 January 2021, Zhong was recorded recruiting Judy Ly to assist him in “money-laundering”. They agreed that he would “drop a million dollars” to her “every Monday” and that someone would collect “$330k” on each of Monday, Tuesday [and] Wednesday”. They agreed that the residual $10,000 would be split between her and Zhong.

  2. On 1 February 2021, Zhong drove to Ly’s home and left a duffle bag. On that day and the following two days, the respondent went to her unit and was provided with cash.

  3. On each of 2, 3 and 4 February 2021, the respondent, Riddleston, HM and another depositor, Bryson, made numerous large cash deposits into various bank accounts that were either controlled by them or the Syndicate. Riddleston, Hope and Bryson had flown from the Gold Coast on 2 February 2021. HM flew from the Gold Coast on 3 February 2021. They all returned to the Gold Coast on 5 February 2021. The total amount deposited by the group was $1,063,150. The amount of cash the subject of the offence ($990,000) appears to reflect the agreement made between Zhong and Ly on 21 January 2021 at [21].

Offence (5) – s 193B(3) – 8 to 12 February 2021 ($990,000)

  1. On 8 February 2021, Zhong delivered a black bag containing cash to Ly’s unit. Shortly afterwards, the respondent collected a quantity of cash from Ly.

  2. From 8 to 12 February 2021, the respondent made various cash deposits into “Pawn Hub” accounts in the sum of $424,900. [2] During that period, cash deposits were also made by Riddleston, Bryson, Prasad and, on one day, HM. The total amount deposited by the group, including the respondent, was $1,397,100. However, the amount of cash the subject of this offence is also $990,000, which again appears to reflect the agreement made between Zhong and Ly on 21 January 2021 noted above (at [21]).

    2. Agreed facts at [41] say $335,150 but total of [42], [44], [47], [49] and [51] is $424,900.

Offence (6) – Form 1 – s 193B(3) – 15 to 19 February 2021 ($990,000)

  1. On 15 February 2021, Zhong delivered another large black bag containing $1 million in cash to Ly’s unit. Ly exited her unit afterwards and it can be inferred she handed over cash to the respondent. Physical surveillance and CCTV footage recorded them meeting on the morning of 16 February 2021, from which it can also be inferred that further cash was handed over.

  2. From 15 to 19 February 2021, the respondent made various cash deposits into “Pawn Hub” accounts in the total amount of $376,450. [3] During that time, further cash deposits were made by Bryson and another depositor, George Nicolaou, who had both flown to Sydney from Brisbane on 15 February 2021. The total amount deposited by the respondent, Bryson and Nicolaou was $1,018,080. The amount of cash the subject of this offence is also $990,000, which again appears to reflect the agreement made between Zhong and Ly on 21 January 2021.

    3. Agreed facts at [57].

  3. On 22 February 2021, Zhong was arrested while attempting to make a delivery of cash to Ly. He was found in possession of $999,860 in cash in vacuum-sealed bags. The cash was compared to cash previously used by police in other investigations. It was determined that eleven $50 notes had previously been used in other police investigations to buy prohibited drugs under controlled operations.

Offence (2) – Form 1 – s 193C(1) – 9 March 2021 ($498,850)

  1. The agreed facts record that after Zhong’s arrest, there were no further cash deposits into any Syndicate bank accounts until 9 March 2021.

  2. On 9 March 2021, Riddleston and Bryson arrived in Sydney and arranged to meet the respondent at a hotel. The respondent was seen on CCTV entering the hotel carrying a black backpack. The respondent distributed funds to Riddleston and Bryson to deposit into various bank accounts. On the same day, Riddleston, Bryson, Prasad and the respondent made various cash deposits totalling $498,850. The respondent made deposits totalling $149,250 in his own right.

  3. On 10 March 2021, the respondent was arrested and his home was searched. He was interviewed by police. He admitted that the “Pawn Hub” was a company he set up but claimed he did so “to learn to sell and buy cars”. He claimed that he collected money for car sales and deposited it into his accounts, which totalled “roughly… half a million”.

Sentencing of Other Offenders

  1. On 14 April 2022, HM was sentenced by a different judge in the District Court to an aggregate term of imprisonment for 42 months with a non-parole period of 21 months for one offence under s 193C(1) and one offence under s 193B(3). The s 193C(1) offence related to her conduct in December 2020 in flying to Sydney and depositing $65,800 in cash into a bank account associated with her and then depositing $817,700 into such accounts in January 2021. The undiscounted indicative sentence for this offence was 48 months. The offence under s 193B(3) related to her making cash deposits totalling $188,000 on 3 and 4 February 2021 via the arrangements involving Zhong, Ly and the Respondent. The undiscounted sentence for this offence was 40 months.

  2. At the time she was sentenced, HM was 24 years old. She committed the offences when she was 22 years old and had no prior criminal convictions. His Honour accepted that she had strong family support but did not accept she was remorseful. She was pregnant when sentenced and found to be a low risk of reoffending. There was a finding of special circumstances which resulted in the non-parole period being reduced by 50%.

  3. An appeal against HM’s sentence to this Court on grounds that included manifest excess was dismissed on 22 March 2023 (case reference redacted). No complaint of a lack of parity between HM’s sentence and that imposed on any co-offender was raised in that appeal.

  4. On 2 September 2022, her Honour Judge Flannery SC sentenced Zhong to an aggregate sentence of 5 years and 1 month (61 months) imprisonment with a non-parole period of 3 years (36 months) for one offence under s 193C(1), three offences under s 193B(1) and one offence of supplying a large commercial quantity of a prohibited drug (namely 864 grams of methylamphetamine). Zhong received a discount of 45% on account of his pleas of guilty and assistance.

  5. Zhong’s offence under s 193C(1) was referable to the period from July 2020 to August 2020 during which he arranged for the conversion of $1,472,000 in cash into Bitcoins. The undiscounted indicative sentence for that offence was 30 months. Each of the three offences under s 193B(1) involved an amount of $1 million and corresponded with amounts supplied to Ly at the commencement of a different week in February 2021. One of the s 193B(1) offences had two Form 1 offences under s 193B(1) attached which involved dealing in cash to a total of $267,500. Allowing for rounding, the undiscounted indicative sentence for this offence was 54 months. The second offence under s 193C(1) had no Form 1 offence attached. The undiscounted indicative sentence for this offence was just over 48 months. The third offence under s 193B(1) had two Form 1 offences attached, being one offence under s 193B(1) involving $999,860 and one offence under s 193C(1) for $7,000. The undiscounted indicative sentence for this offence was 60 months. (The undiscounted indicative sentence for the supply offence was just over 72 months with a non-parole period of just under 44 months.)

  6. In sentencing Zhong, her Honour described him as “a mid-level operator, employed by a drug syndicate for the specific task of laundering money [who] received a relatively modest reward for his activities”. Zhong had a criminal record for drug supply and dishonesty offences that was found not to “entitle him to leniency”. Zhong also had a history of drug addiction. He was found to be remorseful, insightful into his offending and have reasonable prospects of rehabilitation.

  7. On the same day (i.e. 2 September 2022) Judge Flannery SC sentenced Nicolaou to imprisonment for 18 months to be served by way of ICO, which included a condition requiring him to perform 200 hours of community service, for one offence under s 193B(3).

  8. On 25 November 2022, Judge Flannery SC sentenced Ly to an aggregate sentence of 3 years (36 months) imprisonment to be served by way of an ICO, including a condition that she perform 250 hours of community service, for two offences under s 198B(3). Her Honour found Ly was entitled to a 25% discount for the utilitarian value of her pleas of guilty. Ly’s first offence under s 193B(3) concerned her receipt from Zhong of $2 million in two tranches of $1 million on 1 and 8 February 2021, and subsequent provision of that cash less $10,000 to the respondent as per the agreement between herself and Zhong described above (at [21]). Attached to this offence on a Form 1 was one offence of attempting to commit an offence under s 193B(1) which related to the funds found in Zhong’s possession when he was arrested. The undiscounted indicative sentence for this offence was 40 months. The second offence under s 193B concerned Ly’s receipt of $1 million from Zhong and subsequent provision of a quantity of that cash to the respondent over the period of 15 to 17 February 2021. The undiscounted indicative for this offence was 28 months.

  9. Ly was 26 years old at the time of sentencing. She had no criminal record. She was found to be “vulnerable” at the time of her offending, remorseful and have good prospects of not reoffending.

  10. Each of these offenders was sentenced on the basis of their own set of agreed facts. The principal difference between each of their agreed facts and those that concern the respondent is that the former states it was the respondent who recruited HM, Riddleston, Hope and Prasad to fly to Sydney to deposit the cash which was not asserted in the agreed facts concerning the respondent.

The Sentencing Judgment

  1. Her Honour summarised the agreed facts in terms not materially different to that set out above. Her Honour then referred to evidence given by the respondent at the sentencing hearing in which he explained that he had set up the bank accounts in the name “Pawn Hub” to assist a friend, “Johnny”, who operated “caryards and tinting companies”. He said that he deposited money at Johnny’s request. The respondent said that it was only just prior to making the last deposit (on 9 March 2021) that he became “worried” he was acting illegally because the person who provided him with cash did not show their face.

  2. Her Honour accepted the respondent’s account of how he became involved in money laundering (i.e. through “Johnny”), including that he did not set up the company “Pawn Hub” (although he knew it was a “dummy company”). Her Honour also accepted his denial that he recruited HM, Riddleston, Bryson and Nicolaou but instead found their recruitment was undertaken by “Johnny… for the purpose of aiding [the respondent] to deposit the money”. However, her Honour accepted that it followed from the respondent’s pleas of guilty that from 1 February 2021 he “foresaw the possibility that the money was proceeds of crime”.

  3. Otherwise, I note six matters about the sentencing judgment.

  4. First, her Honour assessed the objective seriousness of the respondent’s offending. Her Honour found that the s 193C offence (“Offence (1)” in the table at [9]) was a “serious example of such an offence having regard to the number of transactions, the period over which they occurred, the fact that they involved the [respondent attending] upon nine separate banks to make a large number of separate deposits and the overall amount” involved (i.e. over $4.8 million in cash). Her Honour made the same assessment in relation to the s 193B offences (“Offence (3)” and “Offence (5)” in the above table at [9]), noting the respondent’s role in collecting the other depositors from the airport, providing them with cash and his evidence that he received a fee of half a percent (i.e. 0.5%) of the money he deposited.

  5. Second, her Honour addressed the respondent’s subjective case. At the time of sentencing the respondent was 49 years of age. He was born in Turkey and came to Australia when he 13 years old. Her Honour (correctly) described his criminal history as “minor” which did not deprive him of leniency. He left school after Year 11 and had worked consistently since that time. At the time of his arrest, he was working as an “Uber driver”. When he was sentenced, the respondent was working as a courier. The respondent was married with two children aged 16 and 22 years old. His wife has restricted physical movement and needs assistance. A psychologist’s report described the respondent as “scor[ing] in the severe range for both depression and anxiety” since his arrest, as well as being remorseful and a low risk of re-offending The respondent provided the Court with a letter expressing his remorse. His wife provided a letter to the same effect and also described the assistance she received from him. The respondent’s sons and friends provided references to the effect that his offences were out of character.

  6. Her Honour found that the respondent had insight into his crimes, was remorseful and was at low risk of re-offending. Her Honour found that his family would experience hardship if he were imprisoned, a matter that was “take[n] into account as part of the general mix”.

  7. Third, her Honour found that the respondent was entitled to a discount of 25% on account of his pleas of guilty.

  8. Fourth, her Honour assessed the discount that would be afforded on account of the assistance the respondent had provided and would provide in the future. This included signing an induced statement, providing evidence in Court when required and assisting by identifying the principals of the Syndicate. Ultimately, her Honour assessed the total discount flowing from the respondent’s plea of guilty and provision of assistance to be 45%, which included separate discounts of 10% for past and future assistance. There was no challenge to this assessment on appeal.

  9. Fifth, her Honour addressed parity. Her Honour described the sentences imposed on the other offenders as noted above. Her Honour concluded that the respondent’s role “falls somewhere between that of [HM] and [Zhong]” but noted that “most of the charges [Zhong] faced involve greater maximum penalties”. Despite stating this, her Honour did not explain why a sentence was imposed on the respondent that was less than that imposed on HM.

  10. Sixth, it is self-evident that the aggregate sentence imposed involves a significant degree of notional concurrency for the three indicative sentences. Other than stating that regard had been had to “the purposes of sentencing and to the principles established in the authorities which bear upon the issue”, including general deterrence, there was no reference to considerations of totality by her Honour in the sentencing judgment.

The Objective Seriousness of the Offending

  1. As noted, the sentencing judge described each of the subject offences as “serious”. Not surprisingly, there was no challenge to those assessments. Her Honour’s assessment of the objective seriousness of the offences did not purport to place them within a range of offending for offences under ss 193B and 193C. Her Honour was not required to do so. If there is no obligation to do so with offences that carry a standard non-parole period (Sentencing Act, s 54B(6)), there cannot be any such obligation with offences that do not carry a standard non-parole period.

  2. That said, a description of the offences as “serious” left scope for argument in this Court as to precisely how serious the respondent’s offences were. The respondent submitted (correctly) that the agreed facts do not disclose any information about what the respondent knew about the cash the subject of the offence under s 193C(1) that was deposited prior to Zhong’s involvement from 1 December 2020. [4] However, the absence of material about the respondent’s belief of the source of the funds is reflected in the fact that his conduct was treated as an offence under s 193C(1) rather than under s 193B.

    4. Respondent’s submissions at [49].

  3. The respondent also submitted that it was “not possible to know whether his role was dispensable or indispensable while carrying out the conduct to which the offence related”, which I understand to mean that, at least prior to 1 December 2020, it is not known where the respondent was in the hierarchy of the money laundering operation he was part of. [5] That may be so, but it does not detract from the seriousness of his offending given the number of transactions, the amount deposited and the time frame over which they occurred. It was also submitted that the gravamen of the offence was the respondent’s dealing with the proceeds of crime in the form of his “mere” possession of cash rather than depositing funds into the bank. [6] An assessment of the respondent’s criminality is not confined to his “mere possession” of the cash. It extends to how he deployed that possession, namely, by depositing those funds in the bank to an account he had opened and controlled.

    5. Respondent’s submissions at [49].

    6. Respondent’s submissions at [50].

  4. In relation to the offences under s 193B, the respondent accepted that he “played a role that was ‘more involved’ than a depositor” noting that he collected “his co-offenders up from the airport”, transported them to the hotel and that his role was a necessary one. [7] These statements are correct but incomplete. The depositors played a significantly lesser role than the respondent. As noted, their function was to “assist” the respondent by carrying out the relatively mundane task of depositing the amounts of cash given to them by the respondent. The inference is overwhelming that they performed that task under his direction and control. Although Zhong played a greater role than the respondent, even his role was not crucial to the money laundering operation as money laundering involving the respondent resumed in March 2021 after Zhong’s arrest.

    7. Respondent’s submissions at [52].

Manifest Inadequacy

  1. The sentence the subject of the appeal is a custodial sentence ordered to be served by way of an ICO. Leaving aside the particular circumstances addressed in Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260, it has been accepted that the imposition of an ICO follows a three-step process being: firstly, a determination that the threshold for the imposition of a custodial sentence in s 5 of the Sentencing Act has been satisfied; secondly, a determination of the length of the sentence without regard to the manner in which it is or may be served; and thirdly, a consideration of whether any alternative to full-time imprisonment should be utilised (Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107 at [30] per Gageler J, at [59] per Gordon, Edelman, Steward and Gleeson JJ and at [225] per Jagot J; “Stanley”; see R v Zamagias [2002] NSWCCA 17 at [25]).

  2. It follows that a complaint that a sentence ordered to be served by way of an ICO is manifestly inadequate will have to address the above process and, in respect of the third step, the reasons of the plurality in Stanley at [71]−[77] concerning the application of s 66 of the Sentencing Act. There may be scope for argument about whether that reasoning precludes, or at least affects, a contention that a sentence is manifestly inadequate simply because it involves the sentence being served by way of an ICO as opposed to full-time custody.

  3. It is not necessary to consider this further because the balance of these reasons is directed to the second step in the above process, namely, the assessment of the appropriate length of the sentence imposed. As I consider that the imposition on the respondent of any term of imprisonment of 3 years or less to be manifestly inadequate, it is not necessary to determine whether the fact the respondent’s sentence was ordered to be served by way of an ICO is an additional factor why it is manifestly inadequate.

  4. In Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81, with the agreement of Garling and Yehia JJ, I stated the following concerning a complaint that an aggregate sentence is manifestly inadequate (at [52]−[54]):

“A contention that a sentence is manifestly inadequate is in effect a complaint that the sentence is ‘unreasonable or plainly unjust’ within the meaning of the so-called fifth limb of the statement in House at 505. A finding to that effect is a ‘conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate’ (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]). The degree or extent of the elaboration ‘that is appropriate or possible will vary from case to case’ (ibid).

As noted, this is an appeal from an aggregate sentence. In Lee v R [2020] NSWCCA 244 at [32], I (with Payne JA and Fagan J agreeing) stated the following in relation to appellate review of an aggregate sentence on the ground of manifest excess:

‘… with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J agreed and cases cited thereat; “JM”). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; “Beale”). The “potentials for accumulation” of the various notional sentences can be examined to determine whether the “aggregate sentence represents a sound exercise of sentencing discretion” (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). The “principle”, or even ultimate, “focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved” (JM at [40]).”

With appropriate modification, these principles are equally applicable to a complaint of manifest inadequacy. These principles allow scope for argument that manifest excess or manifest inadequacy in relation to an aggregate sentence can be addressed by considering the individual indicative sentences (within the context of considering whether overall the aggregate sentence is manifestly inadequate). It follows from the above discussions that comparisons with other cases have utility in this respect. Nevertheless, the ultimate inquiry is the necessity to consider ‘whether the aggregate sentencing reflects the total criminality involved’ (see Aryal v R [2021] NSWCCA 2 at [50], quoting JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]; “JM”).”

  1. Within the confines of the above principles, the DPP made three principal submissions in support of its contention that the sentence imposed on the respondent was manifestly inadequate. First, while accepting that its overall complaint had to be with the aggregate sentence, the DPP submitted that each of the indicative sentences were inadequate. [8] Second, the DPP noted that the sentencing judge did not explain why the sentence imposed on the respondent was “shorter and more lenient” than that imposed on HM. [9] Third, the DPP submitted that overall, the aggregate sentence is unduly lenient and fails to properly reflect general deterrence. [10]

    8. Crown’s submissions at [71(a)].

    9. Crown’s submissions at [71(b)] and [88].

    10. Crown’s submissions at [71(c)].

HM’s Sentence

  1. It is convenient to address the second point at the outset. HM’s criminality and subjective case are outlined above (at [32]−[33]). Her offences were far less serious than the respondent’s offences. Although the respondent was not sentenced on the basis that he recruited HM and the other depositors, he was sentenced on the basis that they were recruited to “assist” him and not vice-versa. HM had a significantly lesser role in the money laundering operation and laundered significantly less money (being $1,071,500) than the respondent (being just over $8.5 million).

  2. In this Court, the respondent submitted that HM’s subjective case justified the differential treatment because the sentencing judge in her case did not accept that she had insight into her offending or was remorseful. [11] I disagree. Despite those findings, HM’s subjective case was at least as strong as the respondent’s case, if not stronger (see above at [33]). HM’s undiscounted indicative sentence for the s 193C(1) offence (involving $883,500) was 4 years (48 months) imprisonment whereas the respondent’s undiscounted indicative sentence for an offence under the same provision (involving $4.8 million) was 3 years (36 months) imprisonment. A similar disparate treatment exists between their undiscounted indicative sentences for the s 193B(3) offences, namely, 40 months for HM and 22 months and 23 months respectively for the respondent. In these circumstances, and regardless of how it came about, the imprisonment of HM and failure to imprison the respondent does not reflect well on the administration of justice.

    11. Respondent’s submissions at [57(b)].

  3. Nevertheless, the differential treatment between HM and the respondent is of limited relevance to a Crown appeal. Parity is an ameliorative principle which is directed to the existence of a legitimate sense of grievance on the part of an offender arising from an unjustified difference (or unjustified equivalence) between their sentence and that imposed on a co-offender. It is not concerned with addressing some grievance on the part of the prosecution about disparate treatment of offenders (Rv Doff [2005] NSWCCA 119; (2005) 54 ACSR 200 at [58(a)]). Thus, in a case such as this, it may have been open to HM to argue for leniency in this Court on the basis of a disparity between her sentence and that of the respondent, although that course was not taken. However, it is not a legitimate response to a perceived lack of parity between the respondent and HM’s sentences for this Court to increase the respondent’s sentence (R v Weismantel [2016] NSWCCA 204 at [9] per R A Hulme J).

  4. Thus, in R v Gu [2006] NSWCCA 104 at [36], Howie J (with whom Grove J Simpson JJ agreed) observed that “[t]his Court cannot increase a sentence at the behest of the Crown to achieve parity but the fact that the co-offender ended up serving a sentence of full time custody for what I believed to have been a lesser role in the offences indicated the inadequacy of the sentence imposed upon the respondent.” In R v Lembke [2020] NSWCCA 293, Wright J (with who McCallum JA and Garling J agreed) observed at [60]−[61]:

“The correct way in which a Crown may be able to engage this Court’s attention on appeal to a sentence which it submits is inadequate is to suggest that the sentence imposed on a co-offender provides an indication of the marked inadequacy of the sentence imposed on the respondent to the appeal. This was the way in which Howie J treated the matter in Gu.

However, if the Crown approaches an appeal in that way, it needs to persuade this Court that the facts upon which the respondent to the appeal and the other co-offenders were sentenced were similar, what the comparable roles in the offences were, and why the sentence imposed on the respondent is (by reference to those features) inadequate.” (emphasis added)

  1. As I understand this passage, this approach does not afford the sentence imposed on a co-offender the status it would have in an appeal by an offender complaining about a lack of parity with a sentence imposed on a co-offender. With the latter, any marked and unjustified difference or equivalence between it and the sentence imposed on the appellant is of itself a basis for intervention. Instead, on a Crown appeal and at the point where the Crown is contending that the sentence is manifestly inadequate, the sentence imposed on a co-offender is treated no differently to how a comparable sentence is to be considered by this Court. Thus, the effect of the sentence of HM and the dismissal of an appeal against that sentence to this Court is to simply confirm that an aggregate sentence comprised of undiscounted indicative sentences which exceed those indicated for the respondent and which were imposed for the same types of offences but which are less objectively serious and which were committed by a much younger offender with an otherwise similar subjective case is not manifestly excessive. This advances the DPP’s complaint of manifest inadequacy in relation to both the respondent’s indicative and aggregate sentences to a point, but it does not establish the DPP’s ground of appeal or any other ground of appeal in its own right.

The Indicative Sentences

  1. In relation to the first of the DPP’s points, the judgment of this Court in [citation redacted] illustrates the approach taken to money laundering offences of the kind considered here, including offences under s 193C. In Bresnahan v R [2022] NSWCCA 288 at [35] (“Bresnahan”) Walton J, with whom I agreed (contra Yehia J), observed:

“The general principles for sentencing in relation to recklessly dealing with proceeds of crime offence include an acknowledgement that general deterrence must be reflected to a significant degree: see Green (a pseudonym) v R [2020] NSWCCA 358 at [53] (Walton J, with whom Meagher JA and Beech-Jones J, as his Honour then was, agreed); Kassis v R [2013] NSWCCA 298 at [18] (Blanch J, with whom Hoeben CJ at CL and Price J agreed); R v McGlone [2016] NSWDC 418 at [63] (King DCJ); R v Salameh [2017] NSWDC 138 at [136] (Mahony DCJ); R v Ogbeide [2021] NSWDC 750 at [32] (Williams DCJ). Proceeds of crime type charges by their nature tend to be difficult to detect, investigate and to prosecute. The offending in this case attracts significant general deterrence, and specific deterrence but to a lesser extent, because it involved multiple transactions over a long period of time to a value of over $1 million. In this case, there is a need to signal to others who might be disposed to recklessly dealing with proceeds of crime that severe penalties will be imposed.”

  1. In Bresnahan, the offender was found guilty of a single offence against s 193B(2). The offender’s company purchased and then sold more than $1 million in meat that had been stolen by an employee of a supplier. The offender was otherwise of good character and had made substantial reparation to the supplier. In this Court, he was sentenced to 22 months imprisonment. Both Walton J and I declined to order that the sentence be served by way of an ICO (Bresnahan at [4]−[5] and [44]). Yehia J would have so ordered (Bresnahan at [151]).

  2. Bresnahan predated the publication of reasons in Stanley. Nevertheless, given that the determination of the length of a custodial sentence is anterior to an assessment of whether to order that it be imposed by way of an ICO, the length of the sentence imposed in Bresnahan is of utility in evaluating this aspect of the DPP’s appeal. The s 193B offence committed in Bresnahan was far less serious than the s 193B offences committed by the respondent. In the respondent’s case, the proceeds of crime were derived from drug dealing as opposed to stolen meat. The dealing in this case involved the possession of large cash amounts which were deposited into numerous bank accounts as opposed to the sale of meat to consumers.

  3. Although the Court was referred to various decisions that have considered sentences imposed for offences under ss 193B and 193C, it suffices to only note those cases where this Court has imposed a sentence of imprisonment itself. Bresnahan is one such case. Another is Ke v R [2021] NSWCCA 177 (“Ke”). In Ke, this Court resentenced an offender to a term of 1 year and 10 months (22 months) imprisonment for one offence under s 193B(3) constituted by selling stolen baby powder formula overseas. The total amount that was the subject of the dealing is not entirely clear, but the Crown case statement asserted that between November 2017 and August 2018, $394,000 was deposited into the applicant’s partner’s bank account (at [107(5)]). Prior to a 25% discount for the applicant’s pleas of guilty, the sentence imposed would have been just over 2 years and 5 months (29 months) (at [346]−[348] per Bellew J with whom Adamson J agreed at [220]).

  4. The s 193C offence committed by the respondent was far worse than that committed by HM. The s 193B offences committed by the respondent were significantly worse than those committed in Ke. To arrive at a conclusion that the aggregate sentence was manifestly inadequate, it is not necessary to reach the same conclusion about the indicative sentences. Instead, at this point it suffices to state that, subject to considering the respondent’s argument about parity with the sentences imposed on Zhong and Ly, the sentences indicated for the respondent appear to be unduly lenient.

The Aggregate Sentence

  1. Even if one was to accept that the indicative sentences for the respondent’s offences were appropriate, the aggregate sentence involved a very large and unjustified degree of notional concurrency. The aggregate sentence imposed only exceeded the highest individual indicative sentence by seven months. However, as noted above, the ultimate inquiry in relation to this ground of appeal is “whether the aggregate sentencing reflects the total criminality involved” (JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40] per R A Hulme J with Hoeben CJ at CL and Adamson J agreeing). The approach to be adopted is reflected in the following oft-cited passage from the judgment of Howie J (with whom Adams and Price JJ agreed) in Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:

“[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality.” (emphasis added)

  1. In the end result, over a sustained period the respondent played a significant role in the laundering of over $8.5 million of cash that either was, or reasonably suspected to be, the proceeds of the sale of illegal drugs. For at least 3 months of that period, he was reckless as to whether the large sums involved were the proceeds of crime. His actions did not just include depositing individual cash payments but extended to setting up bank accounts and coordinating the depositors who had been recruited to assist him. Even allowing for the discount for his pleas and assistance, a term of imprisonment of 2 years and 6 months (30 months) for such conduct was manifestly inadequate to a significant degree.

Respondent’s Appeal to Parity

  1. The respondent submitted that if the appeal was allowed and the respondent resentenced, then the outcome of any resentencing is that he is likely to be left with a justifiable sense of grievance resulting from the sentences imposed on “his co-offenders, particularly Ly and Zhong”. [12] This contention appears to raise an issue more relevant to the exercise of the residual discretion and resentencing, rather than the disposition of the ground of appeal (see Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [37] per French CJ, Crennan and Kiefel JJ and at [106] per Bell J; “Green”). Nevertheless, I will address it at this point. To the extent that this submission refers to the sentence imposed on HM, then it has already been addressed. To the extent that it refers to Nicolaou (and a similar sentence said to have been imposed on Prasad), then their criminality was so far less than that of the respondent that their sentences do not bear upon any of those issues.

    12. Respondent’s submissions at [61].

  2. In relation to Ly, it suffices to state that, even though one of her offences under s 193B(3) involved $2 million compared to those concerning the respondent which involved $990,000, the latter were far more serious (and included similar offences on a Form 1). Ly’s involvement simply consisted of her receiving a weekly bag of cash from Zhong, which she subsequently handed onto the respondent, for which she was paid $10,000 for each $1 million instalment. The respondent’s involvement, on the other hand, consisted of him possessing and depositing a total of more than $3 million into various bank accounts he set up and controlled with the aid of several depositors who played a significantly lessor role and effectively operated under his control (see above at [54]−[55]).

  1. In relation to Zhong, although he had a more senior role in the money laundering operation and was charged with offences under s 193B(1), the difference in the undiscounted indicative sentences for those offences (54.5, 48 and 60 months) compared to the respondent’s (39 and 42 months) is such that it cannot be said that indicating higher sentences for the respondent would necessarily result in a lack of parity.

Conclusion

  1. I would uphold the DPP’s sole ground of appeal.

Residual Discretion

  1. As noted, the DPP bears the onus of persuading the Court that the residual discretion not to intervene ought not be exercised (CMB at [34] per French CJ and Gageler J and at [56] per Kiefel, Bell and Keane JJ ). One matter affecting the exercise of the discretion, namely the potential for a disparate sentence to be imposed if the respondent’s sentence was increased, has just been addressed.

  2. Another factor relevant to the exercise of the discretion is delay in the hearing of the appeal. The respondent was sentenced in December 2022. This appeal was heard on 30 June 2023 with reasons delivered in July 2023. Thus, by the time the appeal is determined, approximately six months of the period of his sentence will have passed. An affidavit from the respondent’s solicitor confirmed that as at 27 June 2023, the respondent had completed just over 144 hours of the community service obligation under his ICO with just over 155 hours remaining. [13]

    13. Affidavit of Khaled Dib affirmed on 30 June 2023.

  3. The DPP filed a Notice of Appeal on 12 January 2023, being the last day for the filing of an appeal under s 5D of the Criminal Appeal Act (Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(3)). The appeal was listed for a call over on 2 February 2023 when it was allocated a hearing date on 14 April 2023. In the meantime, the hearing date was adjourned as the respondent was unable to secure a grant of Legal Aid and could not afford his own legal representation. It was not until 1 June 2023 that the respondent advised the Registrar of this Court that he had received a grant of Legal Aid. Shortly afterwards he obtained legal representation and the matter was set down for hearing on 30 June 2023.

  4. In these circumstances, I do not consider that the delay in the listing of the appeal has any significant bearing on the exercise of the residual discretion. I accept that the respondent has completed some of his sentence, including his community service work. However, that can be accommodated by a partial backdating of any sentence imposed by this Court.

  5. An affidavit from the respondent affirmed on 27 June 2023 was read on appeal. It was relied on as being relevant to both the exercise of the Court’s discretion not to intervene as well as resentencing. In his affidavit, the respondent states that being sentenced “provided me with valuable insight into my behavioural patterns” and the need to change. This has led to him having in-depth discussions with his family about what led him to offend. He has been employed as a courier for almost a year. His employer has provided a strongly supportive reference. His current role involves him transporting blood, organs and materials for surgery which clearly involves a high degree of trust. The respondent states that he has been receiving financial counselling to assist him in managing his finances. The respondent also states that he has performed his community service obligation by assisting as a “volunteer” kitchen hand cooking for a community organisation helping the homeless. He works each Saturday from 7.00am to 2.30pm. The respondent states that he plans to continue with his volunteer work after he completes the community service obligation attached to his ICO.

  6. This evidence is consistent with the sentencing judge’s findings and are otherwise to his credit. Nevertheless, his offences constitute very serious instances of large-scale money laundering. The sentence that was imposed on him was an affront to the administration of justice. I am persuaded that this Court should not exercise the residual discretion not to intervene.

Resentencing

  1. In resentencing the respondent, I adopt the findings of the sentencing judge set out at [46]−[49]. As noted, the affidavit from the respondent confirms those findings. I accept that the incarceration of the respondent will cause him and his family hardship. I accept the sentencing judge’s assessment of the seriousness of the offences. I have supplemented that assessment (at [52]−[55] and [81]]).

  2. For the offence under s 193C(1) (“Offence (1)” in the above table at [9]), and prior to the discount of 45% for the respondent’s pleas and assistance, taking into account the offence on the Form 1 the appropriate sentence is 4 years (48 months) imprisonment. This is the same as the undiscounted indicative sentence imposed on HM for the same offence, even though she dealt with less cash over a shorter period. Allowing for the discount, this becomes a sentence of 2 years and 2 months (26 months).

  3. For the offences under s 193B(3) (“Offence (3)” and “Offence (4)” in the above table at [9]) and taking into account the offences on their respective Form 1s, I propose an undiscounted sentence of 50 months and 52 months respectively. These sentences border on being “erroneously lenient” but they arise from the application of the parity principle to the indicative sentences for Zhong (Green at [33] per French CJ, Crennan and Kiefel JJ). Even though one of Zhong’s undiscounted indicative sentences for the s 193B(1) offences was 48 months, unlike the respondent, no offences were attached to that offence on a Form 1. After allowance for the discount and rounding, the indicative sentences for the two offences under s 193B(3) are 28 months and 29 months respectively. The application of the parity principle as applied to Zhong also carries over into the application of the totality principle for the fixing of the aggregate sentence while having regard to the approach in Cahyadi at [27] per Howie J (with whom Adamson and Price JJ agreed) (see Kelly v R [2017] NSWCCA 256 at [30]).

  4. I propose that an aggregate sentence of 4 years (48 months) imprisonment be imposed. I would make a finding of special circumstances under s 44(2A) of the Sentencing Act on account of the sentencing judge’s findings concerning the respondent’s subjective case and it being his first time in custody. Accordingly, I propose that a non-parole of 2 years and 6 months (30 months) be fixed. At the risk of repetition, I reiterate that, were it not necessary to have regard to parity in relation to the sentence imposed on Zhong (and to a lesser extent Ly), this sentence would have been considerably longer.

  5. I also propose that the sentence be backdated to commence on 21 April 2023 to allow for the time spent by the respondent under the supervision of his ICO and performing his community service obligation.

Proposed Orders

  1. Accordingly, I propose the following orders:

  1. Appeal allowed;

  2. Set aside the sentence imposed on the respondent in the District Court on 15 December 2022;

  3. In place thereof:

    (a)   impose an aggregate sentence of 4 years imprisonment to commence on 21 April 2023 and expire on 20 April 2027;

    (b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) set a non-parole period of 2 years and 6 months;

    (c)   specify that the earliest date the respondent will be eligible to be released on parole is 20 October 2025;

    (d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the respondent that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:

    Sequence 10 – section 193C of the Crimes Act 1900 (NSW) – 26 months

    Sequence 13 – section 193B of the Crimes Act 1900 (NSW) – 28 months

    Sequence 14 – section 193B of the Crimes Act 1900 (NSW) – 29 months

    1. FAGAN J: I agree with the Chief Judge.

    2. R A HULME AJ: I agree with Beech-Jones CJ at CL.

**********

Endnotes

Amendments

21 August 2023 - On 8 August 2023 the Court made an order that the respondent be identified by a pseudonym.

Decision last updated: 21 August 2023

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