R v Ly

Case [2014] NSWCCA 78 15 May 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Ly [2014] NSWCCA 78
Hearing dates: 4 December 2013
Decision date: 15 May 2014
Before: Leeming JA; Hall J; Schmidt J
Decision:
(1) Appeal allowed.
(2) The sentence of imprisonment in respect of the offence pursuant to s 400.4(1) of the Criminal Code 1995 (Cth) imposed by the District Court with effect from 2 November 2012 be set aside.
(3) The respondent be re-sentenced to a term of imprisonment of 8 years to commence on 2 November 2012 and to expire on 1 November 2020, with a non-parole period of 4 years 6 months to commence with effect from 2 November 2012 and to expire on 1 May 2017.

Catchwords: CRIMINAL LAW - Crown appeal against sentence - federal offender - offender convicted by jury of dealing with proceeds of crime in excess of $100,000 contrary to s 400.4(1) of Criminal Code Act 1995 (Cth) - offender falsely caused Australian Taxation Office to pay refunds of 21 taxpayers totalling $357,568 into accounts controlled by offender - offender used funds to support extravagant lifestyle - sentence imposed at trial of 3 years 6 months with a non-parole period of 2 years 4 months - consideration of operation of federal money laundering offences - comparison with comparable cases - virtually no mitigating circumstances - application of Elias v The Queen [2013] HCA 31; 248 CLR 483 - sentence manifestly inadequate - offender resentenced to imprisonment for 8 years with a non-parole period of 4 years 6 months
Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 53
Crimes Act 1914 (Cth), ss 16A, 17A, 21B
Criminal Appeal Act 1912 (NSW), s 5D
Criminal Code Act 1995 (Cth), s 11, 134, 400
Financial Transaction Reports Act 1988 (Cth), s 31
Cases Cited: Barbaro v The Queen [2014] HCA 2
Bugmy v The Queen [2013] HCA 27; (2013) 302 ALR 192
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Elias v The Queen; Issa v The Queen [2013] HCA 31; (2013) 87 ALJR 895
Escambi v The Crown [2010] NSWCCA 159
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v The King (1936) 55 CLR 499
Ihemeje v R [2012] NSWCCA 269
Jimmy v R [2010] NSWCCA 60; 269 ALR 115
Lowndes v R [1999] HCA 29; 195 CLR 665
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
R v Ansari [2007] NSWCCA 204; 70 NSWLR 89
R v Foster [2008] QCA 90; 183 A Crim R 437
R v Huang; R v Siu [2007] NSWCCA 259; 174 A Crim R 370
R v Li [2010] NSWCCA 125; 202 A Crim R 195

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ly

Details

AGLC: R v Ly [2014] NSWCCA 78
Case: [2014] NSWCCA 78
Decision Date: 15 May 2014

CaseChat Overview and Summary

The respondent was convicted by a jury of dealing with the proceeds of crime in excess of $100,000, in contravention of section 400.4(1) of the Criminal Code Act 1995 (Cth). The offender had falsely induced the Australian Taxation Office to pay refunds of 21 taxpayers, totalling $357,568, into accounts controlled by the offender. These funds were then used to support an extravagant lifestyle. At the trial, a sentence of 3 years and 6 months was imposed, with a non-parole period of 2 years and 4 months. The Crown appealed against the sentence as manifestly inadequate. The court was required to determine whether the sentence imposed was manifestly inadequate in light of the gravity of the offence and the need to deter and rehabilitate the offender. This required consideration of the operation of the federal money laundering offences and a comparison with similar cases. The court was also required to consider the principles set out in Elias v The Queen [2013] HCA 31; 248 CLR 483.

The court found that the sentence imposed was manifestly inadequate. The court noted that the offender had committed a serious offence that had a significant impact on the victims and the community. The offender had used the funds to support an extravagant lifestyle, demonstrating a disregard for the harm caused to the victims. The court found that there were virtually no mitigating circumstances. The court noted that the offender had no prior criminal history and had shown some remorse, but these factors were not sufficient to justify the sentence imposed. The court also considered the need to deter and rehabilitate the offender, and found that a sentence of 8 years with a non-parole period of 4 years and 6 months was appropriate. This sentence reflected the gravity of the offence and the need to protect the community.

The court resentenced the offender to imprisonment for 8 years, with a non-parole period of 4 years and 6 months. The court noted that this sentence was consistent with sentences imposed in similar cases and reflected the need to deter and rehabilitate the offender. The court also noted that the sentence would provide sufficient punishment for the offence and would protect the community from further offending by the offender. The offender was given credit for time served, which amounted to 1 year and 9 months. The offender will now serve a further 6 years and 9 months in prison.

Orders