R v McRae

[2022] NSWDC 751

District Court

New South Wales

Medium Neutral Citation:

R v McRae [2022] NSWDC 751

Hearing dates:

13 April 2022

Decision date:

14 April 2022

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted of each count.

Special circumstances found – first time in custody, need for assistance to rehabilitate within community when she is released, in the interests of her (as yet unborn) child that she be released as soon as possible.

Indicative sentences of imprisonment:

003 – 2 years & 6 months

007 – 3 years

Aggregate sentence:

Sentenced to a term of imprisonment of 3 years and 6 months with a NPP of 1 year and 9 months to commence on 14 April 2022 and to expire on 13 January 2024 and a balance of term of 1 year and 9 months to commence on 14 January 2024 and to expire on 13 October 2025.

Catchwords:

CRIMINAL – sentence - recklessly deal with proceeds of crime - deal with property suspected of being the proceeds of crime – money-laundering by converting cash, the proceeds of crime, to Bitcoin and returning it in that form to clients – well‑organised, sophisticated means by which to launder significant quantities of money on a regular basis - objective seriousness of offences - role of offender in well‑established, organised, ongoing criminal group - subjective matters

Legislation Cited:

Crimes Act 1900

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCA 194

Category:

Sentence

Parties:

Regina
McRae, Hayley

Representation:

Counsel:
Def: Mr K Buckman

Solicitors:
ODPP: Mr B Ko
Def: Mr G Willis

File Number(s):

2021/00105336

JUDGMENT

1. Hayley McRae appears for sentence in respect of two offences. The first is recklessly deal with proceeds of crime in the amount of $188,000, contrary to s 193B(3) of the Crimes Act 1900; the maximum penalty provided is ten years' imprisonment. The second offence is deal with property suspected of being the proceeds of crime, $883,500, contrary to s 193C(1) of the Crimes Act; the maximum penalty provided is five years' imprisonment. There is no standard non‑parole period in relation to either of those offences.

2. She was committed for sentence on 20 January 2022 from the Downing Centre Local Court and is accordingly entitled to a 25% discount in relation to each of the offences for the utility of the plea.

3. The facts have been agreed. In order to understand the offender's role, it is necessary to refer to the overall criminal enterprise involving money laundering. When I have referred to the six odd pages of the statement of agreed facts, I will return to the specific matters in relation to the offender.

4. In 2020, police commenced an investigation into organised money laundering by Yi Zhong and other people. The police uncovered evidence of a well‑established, organised and ongoing criminal group directed by Zhong. The objective of the criminal group was to launder money from the proceeds of crime. Evidence established that Zhong routinely received vast amounts of Australian currency from various persons and methodically converted these amounts of cash into Bitcoin cryptocurrency before returning the Bitcoin cryptocurrency to those persons who had provided him with the cash.

DEALING WITH PROPERTY SUSPECTED OF BEING PROCEEDS OF CRIME IN DECEMBER 2020

(1) On Monday, 7 December 2020, Hayley McRae, Jake Ridleston, Jack Hope and Kailash Prasad flew on the same flight from Gold Coast to Sydney. These persons were recruited by Mesut Torun to make cash deposits at banks. About 8.47pm on the same day, they checked into the Rydges Hotel in Parramatta that Prasad had booked for three nights. Prasad handed a Mastercard to staff when checking in. At about 8.51pm on the same day, Torun met the group in the foyer of the Rydges Hotel at Parramatta.

(2) On 8 December 2020, the following cash deposits were made:

‑ Torun made four cash deposits ($19,900, $20,000, $27,600, and $30,000) at four separate bank branches into accounts for Pawn Hub Proprietary Limited (Torun registered this company on 17 July 2020 and he remains the sole director of this company), amounting to a total of $97,500.

‑ Ridleston made two cash deposits totalling $50,000 into his Oz Autos Propriety Limited accounts (Ridleston registered this company on 23 August 2020, and he remains the sole director of this company) by depositing $23,250 into the Bank of Queensland (BOQ) Parramatta branch and by depositing $26,750 into the Commonwealth Bank of Australia (CBA) Parramatta branch.

‑ Prasad made two cash deposits totalling $50,000 into accounts of Empire Auto Group Propriety Limited (Prasad had registered this company on 9 November 2020 and he was listed as the sole key principal for the company) by attending Parramatta and depositing $25,250 into a Heritage bank account and $24,750 into a BOQ account.

(3) A total of $197,500 was deposited by Torun, Prasad and Ridleston on 8 December 2020.

(4) About 11.11am on 9 December 2020, CCTV footage recorded Zhong entering the Rydges Hotel at Parramatta. CCTV from the hotel recorded people talking with Zhong in the foyer before they entered a room within the hotel. About three and a half minutes later, CCTV footage recorded Torun entering the Rydges Hotel, carrying a bag. Torun left the Rydges Hotel about 11.27am carrying a bag. Zhong left the Rydges Hotel at about 11.40am.

(5) On 9 December 2020, the following deposits were made:

‑ Torun made four cash deposits ($29,850, $19,900, $19,900, and $28,850) at four separate bank branches into accounts for his Pawn Hub Proprietary Limited, amounting to a total of $98,500.

‑ Ridleston made three cash deposits ($26,240; $26,300 and $26,400) at three separate bank branches into accounts for Oz Autos Propriety Limited and himself, amounting to a total of $78,950.

‑ McRae made two cash deposits ($15,250 and $14,750) at two separate bank branches into accounts for Temptations Agency Proprietary Limited (McRae registered this company on 7 December 2020 and she remains the sole director of this company), amounting to a total of $30,000.

‑ Hope made two cash deposits ($14,250 and $15,750) at two separate bank branches into accounts for Car Jungle Propriety Limited (Hope registered this company on 7 December 2020 and he was listed as the sole key principal for the company), amounting to a total of $30,000.

‑ Prasad made two cash deposits ($26,750 and $24,700) at two separate bank branches into accounts for Empire Auto Group Propriety Limited, amounting to a total of $51,450.

(6) All the cash deposits were made into companies registered by each of the offenders, who were in each case the sole company director and shareholder of the company. All of the companies shared the identical postal address of 171/10 Albert Street, Broadbeach. This address is a mailing centre. Each bank account that received cash deposits made by the offender transferred a corresponding amount from the account a short time later. The funds were transferred to bank accounts controlled by Bitflow Proprietary Limited, a cryptocurrency dealer in Queensland.

(7) About 9am on 10 December 2020, highway patrol police stopped Zhong on Homebush Bay Drive, Sydney Olympic Park, for an unrelated matter. Police saw a black duffel bag on the back seat of Zhong's car. This bag was also recorded on body‑worn video. During a subsequent electronically‑recorded conversation with Judy Ly on 21 January 2021, Zhong referred to this incident when he said, "I told you, remember how I got pulled over because I had no rego? I, I had 200K in the car".

(8) Immediately after being stopped by police, Zhong drove to Anderson Park, Ryde. About 9.30am, police saw Torun enter Zhong's car for about three minutes and emerge carrying a black duffel bag; Zhong drove away. Torun put the bag in the boot and drove away.

(9) About 12.10pm, Torun (who was 47 years of age) attended the CBA at the Macquarie Centre, North Ryde, holding an identical duffel bag. Torun removed $25,00 from the duffel bag and deposited it into the CBA account for the Pawn Hub Propriety Limited. Immediately after Torun made the deposit into the Pawn Hub account, the funds were transferred out of the account. Torun also went to Parramatta and deposited a further $19,850 into an account for the Pawn Hub Proprietary Limited.

(10) Also on 10 December 2020, the following known cash deposits were made:

‑ Prasad (who was 32 years of age) made three cash deposits ($22,900, $24,400, and $24,850) at three separate bank branches into accounts for Empire Auto Group Proprietary Limited amounting to $72,150.

‑ McRae (who was 22 years of age) made two cash deposits ($17,250 and $18,550) at two separate bank branches, amounting to $35,800.

‑ Ridleston (who was 23 years of age) made two cash deposits ($26,300 and $25,750) at two separate bank branches into accounts for Oz Autos Proprietary Limited, amounting to $52,050.

‑ Hope (who was 46 years of age) made two cash deposits ($20,000 and $20,000) at two separate bank branches, amounting to $40,000.

(11) Each of these 11 cash deposits made on 10 December 2020 were all made into bank accounts linked to 171/10 Albert Street, Broadbeach. Once the cash was deposited into the various business accounts by an offender, the full amount of each deposit was invariably transferred out of the account on the same (or following) day. The cash was transferred into Bitflow‑controlled accounts and sent offshore where it was converted to cryptocurrency ‑ namely, Bitcoins. The Bitcoins were sent to a digital wallet controlled by Zhong.

(12) At 11.10am on Monday, 14 December 2020, police saw Zhong sitting in his black Lexus at Anderson Park, Ryde. About four minutes later, Torun approached Zhong and had a short conversation with him. Zhong and Torun walked to the door of Zhong's Lexus, where Zhong took out a small black duffel bag and handed it to Torun. Zhong drove away.

(13) Torun walked to his Toyota Camry and put the duffel bag in the boot. Police observed Torun drive directly to Coxs Road, Ryde, where he parked the Toyota. Torun retrieved the small black duffel bag from the boot and walked into the Bendigo Bank North Ryde branch carrying the bag. About 12pm, Torun removed $30,000 cash from the bag and deposited it into a Pawn Hub Proprietary Limited account. The funds were immediately transferred out of the account after Torun made the deposit. Police then saw Torun drive to the Macquarie Centre, North Ryde. Torun went to the BOQ where he removed $37,500 cash from his bag and deposited it into the Pawn Hub Proprietary Limited account. The funds were immediately transferred out of the account after Torun made the deposit.

(14) Also on 14 December 2020, Hope made three cash deposits of $26,000 each at three separate bank branches, amounting to $78,000.

(15) In December 2020:

‑ Torun made 40 cash deposits totalling $1,115,250 into bank accounts linked to him or co‑offenders.

‑ Hope made 19 cash deposits totalling $447,070 into bank accounts linked to him or co‑offenders.

‑ McRae made four cash deposits totalling $65,800 into bank accounts linked to her.

‑ Prasad made seven cash deposits totalling $173,600 into bank accounts linked to him.

‑ Ridleston made nine cash deposits totalling $223,000 into bank accounts linked to him.

DEALING WITH PROPERTY SUSPECTED OF BEING PROCEEDS OF CRIME IN JANUARY 2021

BRYSON: DEAL WITH PROPERTY ($600,700) SUSPECTED OF BEING PROCEEDS OF CRIME IN JANUARY 2021

(16) From 11 January 2020 to 29 January 2021, Bryson made 16 cash separate cash deposits into the various bank accounts linked to him or co‑offenders. The total amount of cash deposited during this period was $600,700. On each occasion the offender made the cash deposits, the balance was immediately transferred out of that account.

McRAE: DEAL WITH PROPERTY ($817,700) SUSPECTED OF BEING PROCEEDS OF CRIME IN JANUARY 2021

(17) From 11 January 2020 to 29 January 2021, McRae made 24 separate cash deposits into the various bank accounts of Temptations Agency or Empire Auto Group as follows:

• ANZ 12 to 29 January 2021, $129,900;

• Westpac 11 to 28 January 2021, $141,150;

• NAB 11 to 25 January 2021, $174,750;

• CBA/BankWest 11 to 28 January 2021, $263,700;

• Bendigo 13 January 2021, $30,000;

• Suncorp 19 January 2021, $48,200;

• Credit Union 12 January 2021, $30,000.

The total amount of cash McRae deposited during this period was $817,700. On each occasion that McRae made the cash deposits, the balance was immediately transferred out of the account.

(18) The total amount of cash McRae deposited in December 2020 and January 2021 was $883,500.

RIDLESTON: DEAL WITH PROPERTY ($1,179,550) SUSPECTED OF BEING PROCEEDS ON CRIME IN JANUARY 2021

(19) From 5 to 29 January 2021, Ridleston made 33 separate cash deposits into the various bank accounts of Oz Autos, Empire Auto Group and Tod Diamonds as follows:

• ANZ - 6 to 27 January 2021, $278,300;

• Bendigo Bank - 5 to 20 January 2021, $241,950;

• BOQ - 6 to 28 January 2021, $168,700;

• CBA - 8 to 29 January 2021, $116,850;

• NAB - 5 to 28 January 2021, $244,950;

• Suncorp - 19 to 25 January 2021, $128,800.

The total amount of cash Ridleston deposited during this period was $1,179,550. On each occasion the cash deposits were made, the balance was immediately transferred out of that account.

DEALING WITH PROCEEDS OF CRIME IN FEBRUARY 2021

(20) About 10.19pm on 21 January 2021, a surveillance device in Zhong's home recorded a 40‑minute conversation of Zhong recruiting Ly to assist him in money laundering.

"Zhong: Judy...I got, I got, I got an offer to you.

Ly: What?

Zhong: A job.

Ly: What job? How much?

Zhong: It's very safe but...it's not much but...

Ly: How much?

Zhong: $2,000 a week every week until the end of the year.

Ly: And for what?

Zhong: All you, all you have to do is...not too risky...I will drop a million dollars to you every Monday.

Ly: A million dollars?

Zhong: A million dollars. Someone will come to your house on Monday, Tuesday, Wednesday to pick up.

Ly: Pick up what?

Zhong: The money, 330K each, each day.

Ly: 330K?

Zhong: Each day, that's it.

Ly: Who’s this guy but is he, is he like, is he someone you know?

Zhong: He's someone I know. So we do Bitcoins."

(21) Zhong and Ly are then recorded discussing:

‑ Zhong picks up the money every week at 6am on Monday and will drop it off to Ly before 9.

‑ After giving away three lots of 330K, Ly takes 2,000 out for herself and gives 8,000 to Zhong.

‑ Zhong picks up their money and Zhong gives them his Bitcoins and he puts the money into. [sic]

‑ The person coming to Ly's house is Bitcoin and Lebo.

‑ The person waits for Zhong on the street and when Zhong sees his car, he just walks up to him and gives him the money.

‑ They always come in the morning because Zhong gets his Bitcoin in the afternoon.

‑ Ly has to take 1,000 out for every 100,000 because that is the profit.

‑ When Zhong was giving the Bitcoin guy 198,000 every day, the Bitcoin guy would give him 186,000 in Bitcoins (around 3pm).

‑ Zhong charges them 7% and he makes 1% on top.

(22) About 5.03am on Monday, 1 February 2021, CCTV at Ly's unit complex in Homebush Road, Strathfield, recorded Zhong's Lexus entering the carpark. Zhong was recorded taking a large dark duffel bag from the boot of his car and carrying it to the lift. The duffel bag contained $1 million. Zhong then entered the lift with the duffel bag. About six minutes later he was recorded leaving the lift without the duffel bag. Zhong entered his car and drove away at 5.18am.

(23) At 10.34am on the same day, Judy Ly exited her unit complex carrying a brown Louis Vuitton handbag. Torun attended the location and was handed a smaller bag by Ly. Ly returned to her unit complex at 10.38am. Her movements were recorded by the CCTV camera.

(24) At 10.18am on Tuesday, 2 February 2021, CCTV footage recorded Ly as she exited her unit complex carrying a green Enviro bag. Torun attended the location and Ly handed the green bag containing cash to Torun. Ly was recorded returning to her unit complex empty‑handed at 10.22am.

(25) On 2 February 2021, Torun made four cash deposits ($39,950, $25,000, $19,900, and $39,850) totalling $124,700 at four separate banks into Pawn Hub Proprietary Limited accounts.

(26) On 2 February 2021, Hope, Ridleston and Bryson flew on the same flight from Gold Coast to Sydney. Ridleston made two cash deposits ($39,000 and $40,000) at two separate bank branches into accounts for Oz Autos Proprietary Limited totalling $79,000. Bryson made four cash deposits ($39,000 to Master Cars Proprietary Limited, $39,000 to Bo James Norman, $31,600 to Tod Diamonds Proprietary Limited, and $25,000 to Tod Diamonds Proprietary Limited) at four separate bank branches, totalling $134,600.

(27) On 2 February 2021, Torun, Ridleston and Bryson deposited a total of $338,300 into syndicate bank accounts.

(28) At 9.44am on Wednesday, 3 February 2021, CCTV footage again recorded Judy Ly as she exited the unit complex carrying a brown Louis Vuitton handbag. Torun attended the location and Ly handed an amount of cash to Torun. Ly returned to her unit complex at 9.56am.

(29) On 3 February 2021, Torun made three further cash deposits ($35,000, $25,000, and $39,500) totalling $99,500 at three separate banks into Pawn Hub Proprietary Limited bank accounts. Also on 3 February 2021:

‑ Ridleston made three cash deposits ($33,250, $36,850, and $32,500) at three separate bank branches into accounts for Oz Autos Proprietary Limited totalling $102,600.

‑ Bryson made two cash deposits ($50,500 and $15,000) into two separate bank accounts operated by the syndicate members totalling $65,500.

(30) On 3 February 2021, McRae flew from Gold Coast to Sydney. McRae made three cash deposits ($37,800, $34,700, and $15,500) totalling $88,000 at three separate banks, into the Temptation Agency accounts.

(31) On 4 February 2021, Torun made two further cash deposits ($34,500 and $34,900) totalling $69,400 at two separate banks into Pawn Hub Proprietary Limited accounts. Also on 4 February 2021:

‑ Bryson made three cash deposits ($34,900, $32,000, and $33,000) totalling $99,900 into Tod Diamonds Proprietary Limited accounts at three separate banks in Ashfield.

‑ McRae made three cash deposits ($35,200, $33,500, and $31,300) totalling $100,000 into the Temptations Agency accounts at three separate banks in Parramatta.

‑ Ridleston made three cash deposits ($33,600, $34,900, and $31,450) totalling $99,950 into his Oz Autos account at three separate banks.

(32) On 5 February 2021, McRae, Ridleston and Bryson flew on the same flight from Sydney to Gold Coast.

(33) From 9 December 2020 to 4 February 2021, McRae made 34 cash deposits totalling $1,071,500 into bank accounts at various banks and branches. The cash deposits ranged from $14,750 (on 9 December 2020) to $48,200 (on 19 January 2021).

(34) There is no evidence that McRae had any association with her co‑offenders after 5 February 2021.

ARRESTS:

ARREST OF ZHONG ON 22 FEBRUARY 2021

(35) At about 5.26am on Monday, 22 February 2021, Zhong drove to Ly's unit complex and parked his Lexus in the underground carpark. Police witnessed Zhong take a large black duffel bag and a black backpack out of the boot of the Lexus before walking to the lift. As Zhong was walking through the carpark, police stopped and arrested him. Police searched Zhong and found three mobile phones (two Apples and one Samsung) in his possession. Police cautioned Zhong.

(36) Police started a video recording before searching the two bags Zhong was carrying and finding five, large, clear, vacuum‑sealed plastic bags containing a total of $999,860 cash. The $999,860 cash was electronically scanned and photographed. The cash was compared to cash previously used by police in other investigations, and it was identified that 11 separate $50 notes had previously been used in other investigations to buy prohibited drugs under controlled operations.

(37) Police conveyed Zhong to Auburn Police Station where he was introduced to the custody manager and read his rights. Zhong participated in an electronically recorded interview, however he declined to make comment about the origin of the funds or how it is channelled through cryptocurrency. Zhong later consented to participating in a forensic procedure by way of a buccal swab.

ARREST OF TORUN AND LY ON 10 MARCH 2021

(38) About 7.10am on Wednesday, 10 March 2021, Torun was arrested and cautioned at his home at 28/5 Mockridge Avenue, Newington.

(39) About 7.12am on Wednesday, 10 March 2021, police arrested Judy Ly at her home at 32/235 Homebush Road, Strathfield.

ARREST OF BRYSON, RIDLESTON, McRAE, PRASAD AND NICOLAOU

(40) On 13 April 2021, police served future court attendance notices on Bryson and Ridleston.

(41) On 14 April 2021, police served a future court attendance notice on McRae.

(42) On 15 April 2021, police served future court attendance notices on Prasad and Nicolaou.

OBJECTIVE SERIOUSNESS

5. In respect of this offender and the offence of recklessly deal with the proceeds of crime in the amount of $188,000, this offence was committed in 2021 and by her plea, Ms McRae has admitted that she accepts that when she committed the physical elements of the offence, she foresaw the possibility that the money was the proceeds of crime. The offender specifically flew from the Gold Coast to Sydney to participate in the offence. The offence is a rolled‑up offence, occurring over two days and involving going to separate banks to make six separate deposits; the total amount being $188,000, which is not an insignificant quantity of cash. That was in relation to the s 193B(3) charge.

6. In respect of the offence of dealing with the property suspected of being proceeds of crime, $883,500, contrary to s 193C(1) the offender registered a dummy company on 7 December 2020 which was not involved in any real business, and she went to the effort of opening seven bank accounts at seven different banks into which to eventually deposit the money. She flew specifically from the Gold Coast to Sydney with three co‑offenders in December 2020 to participate in the offence. She stayed in the same hotel as the co‑offenders and would have known the co‑offenders were involved in the same activity she was participating in, in the circumstances revealed by the facts. This demonstrates a degree of planning to commit the offence; the offence being a rolled‑up charge that occurred over more than seven weeks and involved going to seven separate banks to make 28 separate deposits. Obviously, the effort to separate the deposits was done to try and conceal the overall larger amount that might attract the attention of authorities. The total amount of the property, $883,500 is 8.8 times the minimum for this type of offence and is a significant quantity of money. The offender transferred the funds to a cryptocurrency dealer in Queensland where it was then converted to cryptocurrency.

7. As can be seen from the overall facts relating to this offender and a number of associates, this was a well‑organised and sophisticated means by which to launder significant quantities of money on a regular basis. The offender was being brought to Sydney by air and accommodated in order to utilise the company that she had set up very recently before the first deposit, in order to open a number of bank accounts into which funds could be transferred. The depositing of significant sums of cash at different branches of the same bank or other banks at which she had accounts on the same day indicates, as a matter of common sense, that she must have appreciated that she was dealing with the proceeds of crime and was either being reckless as to what the proceeds came from, although common sense would allow most people to conclude that such sums of money as this being transferred by her and others on a regular basis is highly likely to be the proceeds of drug dealing rather than any other type of offence; nonetheless, being reckless as to it having been the proceeds of some crime. She dealt with the $188,000 and in respect of the $883,500, that can clearly be suspected of being the proceeds of crime relating to drugs because of the number of $50 notes found amongst monies seized that had been monies utilised in undercover operations to purchase drugs.

8. None of that, of course, means that the offender necessarily knew that the money she was dealing with came from a drug deal, but nonetheless, she must have had a strong suspicion in the circumstances of what she did ‑ being given large quantities of cash to deposit at a variety of branches on the same day and being transported to Sydney for that purpose ‑ that she was, in fact, dealing with money that, one way or another, was the proceeds of crime.

9. I note in respect of this matter that Peter Bryson, Judy Ly, George Nicolaou, Kailash Prasad, Jake Ridleston, Mesut Torun, and Yi Zhong have all been charged with offences arising out of this well‑established, organised and ongoing criminal group but have not yet come before the court for sentence. From the information before me, some are clearly intending to plead guilty, some are still considering their position and one at least appears to be intending to defend the matter at trial - that is Judy Ly. What they have done or might do is, of course, not relevant to the sentence to be imposed in respect of this offender. Dealing with the whole of the agreed statements of facts was to allow the conduct of this offender to be seen in the greater context of the overall scheme that was being operated, particularly by Mr Zhong.

10. In my view, each of the offences is a serious example of such an offence, particularly in the circumstances of the overall context.

SUBJECTIVE MATTERS

11. I note the offender is now 24 years of age and was 22 years of age at the time of the offending. I accept, in those circumstances, considering her age, that she ought not to be regarded as a fully mature individual, but she was significantly older than 18.

12. Her criminal history is before the Court and so that I do not have to refer to it again, I simply note she has never been previously convicted of any offence.

13. Also before the Court is a Sentencing Assessment Report under the hand of Marie Savins. When the offender was interviewed in respect of that report, she clearly sought to diminish her role and pretend that she had no knowledge as to what was going on, in effect. Those passages which clearly demonstrate that were not relied on eventually when the report came before me.

14. In the circumstances of what she did, it was ridiculous for her to claim that she was simply someone working in a personal assistant role and that she never suspected that she was involved in anything illegal. While those matters are not relied on, they are however relevant to the issue of remorse and contrition. A plea of guilty does not necessarily indicate remorse or contrition. As to her insight into the impact of the offending, it is said that she "appeared to be unable to ascertain the impact of her offending on others, although she identified the personal impact with the loss of her new job and rental property". She was assessed by the Community Corrections officer as being a low‑medium risk of re‑offending. In view of her age and lack of criminal record, and the fact that she has been detected committing these serious offences, my view is that she should properly be assessed as being a low risk of re‑offending rather than a low to medium risk.

15. In addition to that material, before the Court is a report from Mr Sam Borenstein, psychologist, dated 24 March 2022, a letter from Headspace, Southport, dated 29 March 2022, a letter from Headspace, Southport to Dr Wai dated 26 August 2019, a letter from Angela McColl dated 22 March 2022, a letter from the Court Advocacy Service to the offender dated 19 December 2019 and character references from Laura Smith, Clinton McRae, Mallory McRae, Julie Patterson, Geoffrey McDonald and Glen Wilkie. Much of that material is unsigned, but I accept that it was provided by the persons nominated. Subjective matters are drawn from that material.

16. I note that she also endeavoured to diminish her role in this offending by informing Mr Borenstein, psychologist, that it occurred because she had been working for a woman by the name of Zara and her husband, Jay, after responding to an advertisement on Facebook to work as a personal assistant, two people who are investing in Bitcoin, and she had worked for them for a period but then found it stressful and left their employment before later being approached by Zara and offered alternative work which involved travelling to Sydney and banking money for people who were investing in Bitcoin. She claims to Mr Borenstein that she was paid $300 per week and provided with accommodation and expenses. She also claimed that she did not know that she was a director of Temptations until after she had been arrested and that although she had opened various accounts, she had no knowledge of the money deposited, being the proceeds of crime. As I have previously said, it may well be the case that she did not have knowledge of the monies being deposited as being the proceeds of any particular crime, but in the circumstances of her involvement in the overall scheme, she must have at least been reckless as to whether the monies she was dealing with were the proceeds of crime.

17. As to her upbringing, when she was approximately two, her parents separated and divorced. Her father remarried and has a number of children from that marriage; the offender's mother entered a de facto relationship and as a result of that de facto relationship, the offender now has a nine-year-old half‑sister. Her father worked in lawn mowing, and her mother worked in a variety of jobs including retail. She has regular contact with her father and gets on well with her half‑siblings. She describes her childhood as good, her mother as being loving and attentive, although she did witness her mother being pushed or shoved on the odd occasion of some domestic violence incident, resulting in police involvement when she was ten. She attended four primary schools including Wideview, Narrabeen Lakes, Erina, and Berkley Vale. She attended the Erina High School for Year 7 and Banora Point for Years 8 to 12. She resided with her father for some nine months in Year 6, when her mother was expecting her fourth child. She did not particularly like school, regarding herself as a loner who did the bare minimum, however she had no behavioural problems and was not disciplined or suspended.

18. She worked at KFC from the age of 14 after school hours and on weekends, then at a children's indoor play centre when, aged 16, she began to work as a waitress at the Coffee Club and later, in pizza delivery, and in a gym creche and nannying on and off since the age of 14. When aged 16, she completed a diploma of childcare, and was apparently awarded a scholarship to travel to London and work with low-income families over a period of some three weeks, to undertake further training. She returned to Australia and commenced a traineeship in real estate but left after five months and returned to working as a nanny. When aged 19, she worked as a receptionist for a law firm, leaving that position after 14 months; she also worked a second job at the time in takeaway shops. For some two months prior to being charged in respect of this offending, she had obtained a job as a trainee co‑ordinator on the Gold Coast.

19. There is no family history of psychiatric or psychological disorder. She is clearly well regarded by those who have provided references and who personally know her. She describes her mental state leading up to the offending period as being "pretty desperate". She had been in a relationship which had ended after 18 months; that is not long before the offending period. She had previously been involved in a domestically‑violent relationship and it is opined that she suffered some PTSD as a result. She suffered from a degree of anxiety and depression from about the age of 15. She was not doing well when her most recent relationship ended. She was drinking alcohol and smoking marijuana, and felt down and alone, consuming approximately one bottle of wine per night, and smoking approximately 12 cones of marijuana a day, as well as taking the anti‑depressant, Zoloft, over a period of some 12 months. Her general practitioner at Tweed Heads had diagnosed her to be suffering from major depression and prescribed Zoloft. She said that she had stopped it around the time that all this happened because it made her feel like a zombie.

20. Although she smokes approximately 20 cigarettes a day, she does not gamble and had ceased using alcohol, cannabis, and tobacco because she had fallen pregnant approximately 14 weeks before Mr Borenstein's report of 24 March 2022. She is now approximately 17 weeks pregnant. There is no medical report before me which indicates that a doctor has determined that she is pregnant, although her presentation in Court is in accordance with such a fact. She has previously had three prior pregnancies: two ending in terminations and one in miscarriage. As to her current pregnancy, she said, "I want it and I'm happy to proceed. My parents know and they are supportive". She has been presently living at Murwillumbah with her mother and her half‑sister, aged nine, who I have referred to before. Unfortunately, the relationship that resulted in the pregnancy appears to have been relatively fleeting and she has no contact with the father of the child.

21. The domestically‑violent relationship was approximately two years ago, and she sought psychological counselling and treatment which is referred to in some of the material that I have previously listed. She had some seven sessions between 6 February 2020 and 11 September 2020 to assist her in that regard, with Angela McColl, an accredited mental health social worker. Apparently, her partner had engaged in physical and emotional violence towards her, resulting in her exhibiting trauma symptoms, exacerbating her anxiety, depression, and sleep disturbance. That the ex‑partner was violent was confirmed by her father, who indicates that the ex‑partner "exercised a high degree of coercive control", preventing her from contact with her parents and supervising her contact with others.

22. Between the ages of 16 and 19, she had developed an eating disorder, being bulimia/anorexia, but she has clearly gotten past that.

23. Mr Borenstein states that on his consultation with her, "she continues to suffer from severe symptoms of depression, moderate symptoms of anxiety and severe symptoms of stress". That is not to be unexpected in circumstances where she has a predisposition to anxiety and depression and where she has now been charged with two serious offences and is awaiting sentence. Mr Borenstein also opined that there was a differential diagnosis of borderline personality disorder, "yet to be confirmed". He states:

"Ms McRae was suffering a mental health impairment leading up to and during the offending period ‑ namely, a relapse into severe symptoms of depression and anxiety which dated back to when Ms McRae was aged 15. In my opinion, Ms McRae's mental health impairment led to a temporary and ongoing disturbance of thought, mood volition, perception, and memory, which would be regarded as significant for clinical diagnostic purposes and impacted negatively on her emotional wellbeing, judgment and behavioural choices."

24. I note that in my view, there is nothing contained in Mr Borenstein's report which goes to suggesting that her mental state was causative of her participation in these offences, nor relevant in the way suggested in De La Rosa. It is, however, still relevant to the sentence to be imposed.

25. There is an unsigned letter from Headspace of 29 March 2022 “to whom it may concern", indicating that she had attended psychology appointments on six occasions between 19 August 2019 and 2 April 2020.

26. There is a further letter, unsigned, from Catherine Cockburn, psychologist, to Dr Wai, dealing with those six sessions of treatment and indicating that she had been suffering from symptoms of stress and depression, and that they had, in those sessions, been building coping skills in those areas. It was proposed that there would be a further four more sessions; there is no information that any further sessions occurred.

27. There is also a document headed "Triage" which appear to be notes taken of current symptoms in February 2019.

28. A letter from the Community Legal Centre dated 19 December 2019, of which there is one page and nothing to indicate the author, but it relates only to providing information about services available.

29. There is a letter from Angela McColl of See Change Counselling of 22 March 2022 addressed to Mr Willis, the offender's legal representative; it simply refers to the fact that she had been referred for seven sessions in the past as a result of the domestic violence against her, being the seven sessions between 6 February 2020 and 11 September 2020.

30. The letter from Laura Lee Smith of 11 March 2022 indicates she has known the offender for ten years and is a friend of the family and that in her view, the offender is "well‑mannered and polite, she clearly loved her family and her siblings and was always happy and friendly". She has always had a good impression of the offender and has noticed that she demonstrates a caring and nurturing nature when dealing with her family. As to this offending, she says:

"I feel that Hayley has made some very poor choices that have led to where she finds herself today, but those choices were not made by someone who was emotionally strong and resilient; rather, choices made by someone who I feel has been manipulated and possibly coached into making these decisions."

31. The letter from the offender's father, Clinton McRae, indicates that despite his separation from the biological mother, he has always had a close relationship with his daughter and her older sister. He indicates that she did very well at high school, finishing at the top of Year 12 class in three out of five subjects. He also specifically refers to the coercive control exercised over her by her domestically violent ex‑boyfriend. He states:

"I think Hayley has a very level‑headed sense of what morals and values mean. I have seen her take on various nannying jobs and childcare roles and really enjoy her work with the seriousness required. She is always there for her younger siblings. I consider her to be reliable, honest, caring, and hard‑working. She is also trusting, however sometimes naive to the ways of the world. She has a gentle heart, a great sense of humour and an incredibly infectious laugh."

32. Her older sister, Mallory McRae, states, "Hayley is generous, caring, thoughtful, hard‑working, committed, an amazing sister and friend. She is the type of person that will go above and beyond for the people she loves and cares for and will make sure they are always okay first".

33. Julie Patterson, who is the offender's aunt, states, "Hayley has always been an honest and trustworthy person throughout her whole life and doesn't hesitate to put herself second to help others where they need it".

34. Geoffrey McDonald, in his reference of 11 March 2022 states that he has been a lifelong friend of the McRae’s and has watched Hayley grow up. "I always observed her to be a very reliable, empathetic, hard‑working and caring individual who is always looking to assist others where she can".

35. The final reference is from Glen Wilkie, who has known the offender for some ten years, being a neighbour of her father. He states:

"Hayley spent a lot of time at our place with her siblings. I grew fond of her and always found her to be very respectful, a happy young lady. Hayley had a very close relationship with her father, and was always polite and respectful to my wife, myself, and Clinton. Hayley was always caring and supportive of her brothers and sisters and is, in my opinion, a good role model for them."

36. I accept that the offender continues to enjoy a high degree of support from her family and will continue to enjoy a high degree of support from those who have provided character references attesting to her essentially good nature.

36. As to remorse and contrition, as I have previously said, a plea of guilty does not necessarily reflect remorse and contrition; particularly where the Crown case is a strong one, as in the circumstances of this matter. I have no doubt that the offender regrets her offending, but in my view, the fact that she endeavoured to mislead the Community Corrections officer as to her role in this matter and also, in my view, the psychologist, Mr Borenstein, is counter‑indicative in respect of remorse and contrition. She did not give evidence on sentence, so the Court is unable to assess whether she is in fact genuinely remorseful or contrite; the concern in that is that there is not a single reference in any of the material from those who have provided references which suggests that she has ever expressed any remorse or contrition to them. Indeed, even in Mr Borenstein's report, there is no suggestion that she has expressed remorse or contrition. In those circumstances, there is simply no acceptable evidence on which the Court could find that she is remorseful and contrite; although I have no doubt that she sincerely regrets what she has done because of the apparent consequences that she must inevitably fear.

37. This was overall, a very, very serious and sophisticated criminal group, in respect of which she played a significant role in assisting to launder money, being the proceeds of crime, at least in circumstances where she was reckless as to it being the proceeds of crime; even if she did not know the actual crime it related to. It is common in relation to matters such as this that those who would conduct criminal groups of this nature rely on finding persons who are otherwise of good character ‑ that is, do not have criminal records, are not seriously involved in the abuse of prohibited drugs, and accordingly, are unlikely to draw attention. Offences of this nature are, however, common, and extremely difficult to detect, because they are so well organised and rely on the use of persons who will not attract attention. Accordingly, there is a higher need for any sentence to reflect general deterrence.

38. In respect of this offender, I have already said that in my view, she is a low risk of re‑offending, particularly as she is now pregnant and intending to continue with the child. I note neither of the parties have put any information before me in relation to any difficulties that might occur if the offender is incarcerated while pregnant. I have no doubt it is not uncommon for offenders who are pregnant to give birth in custody, and that there is provision made by Corrective Services to assist them in relation to their pregnancy, the birth of the child and the bonding with the child thereafter, but nothing has been put before me as to the present circumstances or what is provided by Corrective Services. I am sympathetic to a woman who is pregnant going into gaol, but the offender elected to become pregnant during a time that was after she had been charged, and at a time when she must reasonably have expected, if not positively advised, that considering the nature of this offending, she was extremely at risk of having to serve an actual term of imprisonment despite her prior good character.

39. I am of the view, in relation to Ms McRae, that specific deterrence is not in the circumstances as important as it might otherwise be, but general deterrence must be reflected by the sentence to deter others from engaging in similar conduct which simply allows other forms of serious criminal conduct to continue in the community, such as offences involving large sums of cash money needing to be hidden or “washed”, as it is sometimes referred to.

40. It has caused me considerable concern in this matter but in my view, the s 5 threshold has clearly been passed in relation to each of the offences. I intend to proceed by way of an aggregate sentence, and accordingly, I am required to give an indicative sentence in relation to each of the two offences.

41. In relation to the offence of recklessly deal with the proceeds of crime, $188,000, contrary to s 193B(3), the indicative sentence is a sentence of imprisonment of two years and six months. In respect of the offence of deal with property suspected of being the proceeds of crime, $883,500, contrary to s 193C(1) the indicative is three years. There must be some accumulation, although the offending is largely a continuation of the same nature between the charges. In total, it is approximately $1 million of an overall scheme which involved many millions of dollars, according to the overall facts. The accumulation, however, will be modest.

42. I will impose a sentence of three years, six months. I will find special circumstances, particularly the fact that this is the offender's first period of time in custody, and she will need assistance to rehabilitate into the community when released, and also in particular because, if she continues with her pregnancy and delivers the child, I perceive that it will be in the child's interest for her to be released sooner than would otherwise be the case if the statutory relationship was maintained between the non‑parole period and the balance of term. Accordingly, I intend to reduce the non‑parole period to 50% of the overall term; that is one year, nine months. In specifying the indicative sentences, I have, of course, taken into account the 25% discount for the utility of the pleas.

43. The sentence, with the offender having spent no time in custody as a result of this offending, will commence today, 14 April 2022. The non‑parole period of one year, nine months will accordingly make her eligible for parole on 13 January 2024. The balance of term is one year, nine months. The total term will expire on 13 October 2025. That should allow that if she continues and gives birth to the child, for her to be released at a reasonable time to be able to re‑establish bonding contact with the child, if not already established while in custody.

**********

Decision last updated: 03 August 2023