R v Harris

[2015] VCC 1232

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00890

THE QUEEN

v

NATHAN DANIEL HARRIS

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JUDGE:	HER HONOUR JUDGE S. DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2015
DATE OF SENTENCE:	2 September 2015
CASE MAY BE CITED AS:	R v Harris
MEDIUM NEUTRAL CITATION:	[2015] VCC 1232

REASONS FOR SENTENCE
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Subject: Criminal law – plea - sentence
Catchwords: Dealing in money reasonably suspected to be proceeds of crime to the value of $100,000 or more – s. 491 of the Criminal Code 1995 (Cth)
Sentence: Six months imprisonment with a release forthwith on recognisance with conditions and to the sum of $2500.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms K Piechutowska	CDPP
For the Offender	Ms B Franjic

HER HONOUR:

1Nathan Daniel Harris, you have pleaded guilty to one charge of dealing in money reasonably suspected to be proceeds of crime to the value of $100,000 or more, contrary to s.491 of the Criminal Code 1995 (Cth).

2The penalties for this offence are a term of imprisonment for up to three years or a fine of 180 penalty units, that is, $30,600, or both. 

3The circumstances of your offending were set out in full in the summary of prosecution opening which was tendered as Exhibit 1 and was accepted by your counsel and I sentence you on the facts contained in it.  Those facts may be briefly summarised as follows. 

4Between February and October 2014 you conducted 32 international money transfers to three overseas entities, two of which were located at the same address in the Netherlands and a third which was located in Germany.  Fourteen of the transactions involved sums of $9,000. 

5On three days, (20 June, 29 September and 20 October 2014), large sums of money were transferred in multiple transactions in a single day, namely $25,000, $45,000 and $27,000 respectively. 

6Records held with the Australian Taxation Office show that you declared a taxable income of $16,274 for the financial year ending 30 June 2014.  This income was derived mainly from Centrelink benefits, (Youth Allowance and Newstart Allowance) in the amount of $11,703, as well as from employment in the amount of $4,571. 

7Your Commonwealth Bank account statements show that you rarely had more than $1,000 in your account at any time during the period of the offending. 

8The value of money you transferred overseas vastly exceeded your income and expenditure over this period, giving rise to the suspicion that the money you transferred was the proceeds of crime. 

9All but one of the international money transfers conducted by you were for sums less than $10,000 each, structured so as to avoid the reporting requirements under s.43 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).

10The total amount involved was $265,992.85.  You received a relatively small financial benefit for your involvement.  The Crown suggested that this was in the order of $5,000.  Your instruction to your counsel was that you were being paid $100 per transaction, that is, a total of some $3,000. 

11On 19 November 2014, you participated in an interview with the Australian Federal Police, at which you made no comment in relation to all the allegations put to you.  You were charged and bailed to appear at the Melbourne Magistrates' Court. 

12On 21 May 2015, at a contested committal, following evidence by a witness which made it clear that you were undertaking the transfers at the behest of another person, Mr Avignon-Green, you entered a plea of guilty to the charge on the new indictment.  You were released on bail until the plea hearing.  You spent no time in custody. 

13I turn to your personal circumstances.  You were 22 at the time of offending and are now 23 years old.  You have no prior convictions.  You are the only child of a relationship between your parents, which ended when you were three years old.  Your mother suffers from a mental illness. 

14Between the ages of three and five you moved around a lot with your parents.  When you were five years old, your mother asked your father's parents to take over caring for you.  You lived with them for a year until your father took over your care, but with their continued support. 

15You were and remain an avid cricketer, spending much of your time training, playing and participating in the activities of a number of cricket and football clubs.  You have been involved in programs which train junior cricketers and which go out to schools. 

16You completed VCE in 2009.  You then completed a number of courses in fitness, sport and recreation, cricket coaching and umpiring, sports training and responsible service of alcohol. 

17You were unable to play sport in 2014 for medical reasons but remained an active member of your club, attending training and games. 

18During high school you worked in a supermarket.  After leaving school you worked as a packer, factory hand and barman.  You had trouble finding permanent full time work in the last two years and were unemployed for 12 months until July this year, where you obtained a full time job as a storeman and assistant warehouse manager.  You love the work and the people and hope to progress inside the company. 

19You have never had any mental health issues, used illicit drugs or smoked.  You drink socially only. 

20You have a special bond with your paternal grandmother, who wrote a letter to the court which was tendered as Exhibit A and gave evidence on your behalf.  Her evidence is to the effect that you have always been a polite, sensitive, emotional person who lives and breathes for cricket, has never taken drugs or smoked or been in trouble.  You are a devoted grandson and visited her daily when she was unconscious after heart surgery. 

21She said that at least $1,900 of the $2,600 found in your apartment was money she and the family gave you for your 21st and 22nd birthdays.  She promised you that if you doubled this money she would help you buy a car. 

22She said that you have told her on a number of occasions how sorry you are for your offending and for disappointing her.  She said that she understood from you that at first you did not realise that there was anything untoward about what you were asked to do, but then became suspicious and uncomfortable about what you were doing and stopped. 

23Your counsel submitted further references on your behalf.  There was a letter from a committee member of your cricket club dated 5 August 2015, who notes that you have played in two premierships since joining the club in 2012 and are a valued member of that club as a talented cricketer and outgoing personality.  He knows of your offending and says that the club intends to maintain a strong relationship with you in the future. 

24There was also a letter from your aunt, who says you are a very well-mannered, respectful young man, whose life revolves around family, cricket and football.  You visit your father weekly, are very attached to your grandmother and have a job which will give you a good chance of promotion.  She says that your offending is completely out of character and that you regret it sincerely and have been worrying about it since it occurred. 

25You also provided a copy of your employment contract with your current employer. 

26You provided a letter dated 10 August 2015 in which you express your heartfelt shame for your conduct, your commitment to sport and to a healthy lifestyle in spite of your early family difficulties, your pleasure at having full time employment and your concern at having let down those around you who care for you. 

27Your former girlfriend provided a letter to the court in which she outlined that you are an unselfish, supportive person, that your offending is very out of character for you and that you deeply regret your actions.  She says that you are loving your full time job. 

28In relation to the nature and circumstances of the offence, your counsel pointed to a number of matters which operate in your favour.  Your role was confined to remitting money and you exercised no control or authority.  You had no interest in the money you remitted.  Your offending did not involve personal association with the illegal drug trade or other illicit activity.  There was little planning or deceit in your offending and you made no effort to disguise your identity when making the transfers.  You only derived a small benefit from undertaking the transactions. 

29Matters relied on in mitigation on your behalf are as follows.  You are a youthful offender with no prior convictions and no pending matters.  Your plea of guilty follows a contested committal concerning, among other things, an allegation the summary that you had engaged another person to conduct the transaction on your behalf.  Under cross-examination that person admitted that this was not the case, but rather that he and you had undertaken the transaction at the behest of Mr Avignon-Green. 

30The Crown then withdrew the allegation and the matter resolved and you pleaded guilty to the amended indictment, which showed your willingness to facilitate the course of justice. 

31Your plea has significant utilitarian value, shows remorse and therefore warrants an appreciable discount.  Your remorse has also been demonstrated in your letter to the court. 

32Your counsel submitted that you have excellent prospects of rehabilitation given your lack of prior convictions and subsequent matters, your stable lifestyle, your strong and ongoing family support and your insight into your offending as indicated by your plea and your remorse. 

33Your counsel conceded that general deterrence in the principle sentencing consideration in your case and that your conduct must be denounced.  However, she submitted that there was no need for specific deterrence because you had realised in October 2014 that you must stop the offending conduct. 

34She submitted that in light of your youth, absence of prior convictions and good prospects of rehabilitation, all of the sentencing objectives can be met by the imposition of a wholly suspended sentence of imprisonment. 

35The Crown submitted that the offending represents a continuous and repetitive course of conduct, planned and deliberate and that you played a crucial role in facilitating the movements of proceeds of crime.  The Crown submitted that the offending was committed for financial gain and that your offending would have continued indefinitely if you had not been arrested. 

36In addition, you made no admissions when interviewed, nor provided any information concerning the persons providing or receiving the money. 

37It was also submitted that you have not demonstrated remorse and that specific deterrence is relevant because of the period of time and number of transactions involved. 

38It was submitted that a sentence of imprisonment is the only appropriate disposition, although the manner in which that was to be served was a matter for the court. 

39The Crown provided me with a table of comparable cases, conceding of course that each case turns on its facts and I have considered those. 

40General deterrence is a primary sentencing consideration in respect of money laundering offences.  It is critical to consider exactly what you did.  This has already been set out above. 

41I find that the amount involved was significant, over two and a half times the minimum statutory threshold for this offence. 

42Your offending was organised and planned, with attempts to divert suspicion by making transfers in a number of different banks and using non-account, cash-based transactions on many occasions. 

43You were driven around by Mr Avignon-Green, who supplied the money to the various banks to make the transfers. 

44There were 32 distinct transactions over an eight month period, some of which involved large sums of up to $45,000 in a day. 

45You offended for financial gain, albeit that the amount received was relatively modest. 

46I accept that your offending took place against the background of unemployment and financial strain.  I acknowledge that your prior good character must be given less weight as a mitigating factor in money laundering cases. 

47I am not persuaded, however, that specific deterrence is a relevant consideration in your case.  Your actions were serious but I consider that your offending is at the lower end of the scale in terms of offences of this nature. 

48Pursuant to s.16A of the Crimes Act 1914, I must impose a sentence that is of severity appropriate in all the circumstances of the offence. I have taken into account the matters relevant to your case, as are set out in s.16(A2) of that Act, that is, your plea of guilty, contrition and cooperation with law enforcement agencies.

49You are entitled, as I have said, to a discount for a plea of guilty, which was not made at the first available opportunity for reasons which have been outlined above. 

50I am satisfied on the material before me that you are genuinely remorseful.  I accept that you had become uncomfortable with your role and actions by October 2014 and had decided not to continue offending, albeit that your arrest came shortly thereafter. 

51I consider that you have good prospects for rehabilitation as you are a young man with no prior convictions, a supportive family and friends, a full time job and promising prospects. 

52I must manifest the community's denunciation of your conduct and generally impose a just punishment.  Your counsel submitted that I ought to impose a sentence involving a term of imprisonment which is wholly suspended.  The Crown did not disagree with this proposal. 

53Pursuant to s.17A of the Crimes Act 1915, I must not pass a sentence of imprisonment unless after having considered all other available sentences I am satisfied that no other sentence is appropriate in all the circumstances of the case.

54Weighing all the relevant considerations outlined above and bearing in mind that general deterrence is the paramount sentencing consideration, I consider that only a sentence of imprisonment properly reflects the gravity of your offending in all the circumstances.  However, in the circumstances of this case, I propose to release you immediately on a recognizance release order. 

55Would you please stand? On the sole charge of the indictment, you are convicted and sentenced to six months' imprisonment. I propose to release you forthwith, pursuant to s.21B of the Crimes Act 1914, upon your entering into a recognisance release order for the sum of $2,500 for a period of 12 months with the following conditions.

56Firstly, you must be of good behaviour for a period of 12 months.  Secondly, you are to be under the supervision of the Deputy Commissioner, Community Correctional Services or his or her nominee. 

57Can I ask counsel to identify the appropriate reporting centre? 

58MS FRANJIC:  My client's in Essendon, Your Honour, so I'm just not sure whether there's a Community Corrections in Moonee Ponds.  Perhaps if I could give that some thought. 

59HER HONOUR:  That is all right, well when it comes to the matter being - actually I will put Moonee Ponds in it and I will alter it by agreement once you give me the specifics. 

60MS FRANJIC:  Thank you, Your Honour. 

61HER HONOUR:  Is that all right?  And they are the only two conditions that I am proposing, are there any others that would be included?  No, all right.  So for the moment we will say Moonee Ponds but that will be subject to correction by counsel. 

62You are to report to the Moonee Ponds Community Corrections Centre by 4 pm on 4 September 2015 and you are to report to and receive visits from a Community Corrections officer or officers and you are to notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days of the change. 

63You are not to leave Victoria except with the permission of an officer at the specified Community Corrections Centre and finally, you are to obey all lawful instructions and directions of Community Corrections officers. 

64If you fail without reasonable excuse to comply with this order, it may be discharged or varied and you would be brought back to court to be re-sentenced.  There is a strong likelihood if that occurs that you will be sentenced to a term of immediate imprisonment.  You would also be required to pay the sum of $2,500 in the event of your returning to court in those circumstances. 

65You or an authorised person may apply to this court to vary or discharge this recognisance release order in accordance with s.20AA of the Crimes Act 1914.

66I will allow your counsel to approach to ask you, but have you discussed this with your client, the possibility of such an order being made?  I am just about to ask him if he consents. 

67MS FRANJIC:  I think some time ago, Your Honour. 

68HER HONOUR:  All right. 

69MS FRANJIC:  I'd appreciate a moment or two. 

70HER HONOUR:  All right.  Do you want to approach him in relation to that? 

71MS FRANJIC:  Thank you. 

72HER HONOUR:  Thank you. 

73MS FRANJIC:  Thank you, Your Honour. 

74HER HONOUR:  Mr Harris, do you consent to be subject to a recognisance release order in the terms that I have just explained? 

75OFFENDER:  Yes I do. 

76HER HONOUR: I formally sentence you in the manner just stated. Your sentence will commence on today's date. If required to make a declaration pursuant to s.6AAA of the Sentencing Act, I would state that the sentence I would impose would be that of six months' imprisonment to be served immediately.  Are there any other matters that I need to? 

77MS PIECHUTOWSKA:  If I may ‑ ‑ ‑

78HER HONOUR:  Yes. 

79MS PIECHUTOWSKA:  ‑ ‑ ‑ take a moment to draft the orders, Your Honour. 

80HER HONOUR:  Thank you.  Take a seat, Mr Harris, while we prepare the orders.  So I understand that the Community Corrections Centre will be Broadmeadows, is that correct? 

81MS FRANJIC:  Yes.  Perhaps if I could just quickly take some instructions. 

82HER HONOUR:  All right. 

83MS FRANJIC:  Thank you, Your Honour.  I did say Broadmeadows but Sunshine would be closer to Mr Harris' work. 

84HER HONOUR:  All right.  We will take that back, we will say Sunshine.  Thank you for your assistance. 

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