R v Nguyen - [2010] NSWCCA 226

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Van Loi Nguyen [2010] NSWCCA 226

FILE NUMBER(S):
2008/17480
2008/17481

HEARING DATE(S):
18/06/2010

JUDGMENT DATE:
12 October 2010

PARTIES:
Regina
Van Loi Nguyen

JUDGMENT OF:
Beazley JA Buddin J Barr AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/1177

LOWER COURT JUDICIAL OFFICER:
Toner DCJ

LOWER COURT DATE OF DECISION:
07/09/2009

COUNSEL:
P W Neil SC - Crown
P Boulten - Respondent

SOLICITORS:
Commonwealth Director of Public Prosecutions - Crown
Horowitz Bilinsky - Respondent

CATCHWORDS:
CRIMINAL LAW - Sentencing - money laundering

LEGISLATION CITED:
Criminal Code Act 1995 - ss 302.2(1), 400.2, 400.3(1),400.3(2), 400.4, 400.5, 400.6, 400.7, Part 10.2
Financial Transaction Reports Act 1988 - s 35(1)
Anti-Money Laundering and Counter Terrorism Financing Act 2006 - s 142
Interpretation Act 1987 (NSW) - s 34(1)
Crimes (Appeal and Review) Act 2001 - s 68A
Judiciary Act 1903 (Cth) - ss 68, 79, 80
Commonwealth Constitution - s 109
Crimes Act 1914 (Cth) - s 16A
Crimes (Sentencing Procedure) Act - s 59(1()

CATEGORY:
Principal judgment

CASES CITED:
Harrison v Melhem [2008] NSWCA 67
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Huang [2007] NSWCCA 259
R v Li [2010] NSWCCA 125
R v Byrne [2010] QCA 33
R v Trandy, Nguyen & Ors [2009] VSCA 321
R v Xin Liang, County Court of Victoria, 15/10/2009
R v Hang Than Huynh and Others, County Court of Victoria, 17/12/2009
Maldonado v R [2009] NSWCCA 189
R v Jimmy [2010] NSWCCA 60
R v Siu [2007] NSWCCA 259
R v Viana [2008] NSWCCA 188
R v Chen [2009] NSWCCA 66
R v George [2004] NSWCCA 247
R v JW [2010] NSWCCA 49
Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51
Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194

TEXTS CITED:

DECISION:
1. Allow the appeal and quash the sentence imposed on the second count.
2. Vary the sentence imposed on the first count so that it commences on 6 October 2006 and expires on 5 October 2018,
3. Sentence the respondent on the second count to imprisonment for a period of 13 years. The sentence will be taken to have commenced on 6 October 2009 and will expire on 5 October 2022.
4. Set a non-parole period of 10 years and 8 months, which will expire on 5 June 2017.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/17480
2008/17481
BEAZLEY JA
BUDDIN J
BARR AJ
TUESDAY 12 OCTOBER 2010

REGINA v VAN LOI NGUYEN

Judgment

BEAZLEY JA: I agree with Barr AJ.
BUDDIN J: I agree with Barr AJ
BARR AJ: This is a Crown appeal against sentences imposed upon the respondent Van Loi Nguyen in the District Court. The respondent was taken into custody on 6 October 2006 and pleaded guilty in the Local Court on 4 November 2008. He was committed to the District Court for sentence. There he was re-arraigned and pleaded guilty. On 7 September 2009 he was sentenced by Toner SC DCJ as follows -
1. For the offence that between 11 August and 3 September 2006 at Sydney and elsewhere in New South Wales he conspired with Ding Tran Pham, Duc Ming Dang and Van Tho Nguyen to traffic in a commercial quantity of a controlled drug, namely heroin, imprisonment for 12 years commencing on 6 October 2008 and expiring on 5 October 2020; and
2. For the offence that between 9 December 2005 and about 3 October 2006 at Sydney and elsewhere in New South Wales he conspired with Yu Pham Trang and others to deal with money that was the proceeds of crime, believing the money to be the proceeds of crime, the value of which was $1 million or more, imprisonment for 10 years commencing on 6 October 2006 and expiring on 5 October 2016.
The total effective head sentence was 14 years. His Honour set a non-parole period of 9 years and 3 months, expiring on 5 January 2016.
The first count was laid under s 302.2(1) of the Criminal Code Act 1995 (Commonwealth) (the Code) and attracted a maximum custodial sentence of imprisonment for life. The second count was laid under s 400.3(1) of the Code and attracted a maximum custodial sentence of imprisonment for 25 years.
In its notice of appeal filed on 6 October 2009 the Crown appealed against both sentences. However, before the commencement of the hearing of the appeal it abandoned the appeal against the heroin trafficking sentence.
It is unnecessary to deal with the facts underlying the first charge, therefore, save to say that between the dates particularised a number of conversations took place between the respondent and the three others named in the charge, the effect of which was that sums of $600,000, $360,000 and $300,000 were deposited into bank accounts as payment for heroin to be supplied by the respondent. On 20 August 2006 heroin weighing 2.8 kilograms was delivered and on 3 September 2006 a further consignment of similar weight was delivered.
Between 9 December 2005 and 29 September 2006 the respondent and a number of people acting on his behalf made a large number of deposits of cash into accounts at a company specialising in the transfer of money to places interstate and overseas. Altogether those amounts totalled about $15 million. The Long Thanh Money Transfer Company (LTMTC) had offices at Footscray and St Albans in Victoria and at Bankstown and Cabramatta in New South Wales. On each occasion of deposit the respondent or someone acting on his behalf would go to the LTMTC branch selected for the purpose and deposit cash. On each occasion the depositor would instruct the agency to whom and in what country to effect the desired transfer. Sometimes it was directed to recipients overseas, sometimes to an interstate branch of LTMTC or to other persons in Australia, who by arrangement would send on the money to other destinations.
The elements of the offence were that the money dealt with had a value of $1 million or more, that it was the proceeds of crime and that the respondent believed that it was the proceeds of crime. The Crown accepted before the sentencing judge that it could not establish the criminal conduct the source of the funds dealt with.
The respondent was the senior person at the Bankstown branch of LTMTC. Although the sentencing judge considered that the evidence did not establish that the respondent was the sole principal, his Honour was satisfied that he managed and directed a very big and intricately planned criminal organisation.
His Honour was not satisfied that the money dealt with was beneficially the respondent’s but considered that he received a commission on the transactions. The evidence did not establish how much that was.
The respondent was just short of 35 years old when sentenced and had a wife and son living in Singapore. He had no relevant criminal history but beyond that there was little subjective evidence. Medical bills from a hospital in Singapore were tendered and his Honour was asked to conclude that the respondent’s motive had been to pay that hospital for his son’s treatment. His Honour was not satisfied about that and the only remaining available conclusion was that the offence was committed out of greed.
His Honour considered the prospects of rehabilitation but was unable to resolve that question in favour of the respondent. His Honour took the plea of guilty as some evidence of remorse.
His Honour observed that although the offences were not directly connected, there was a temporal relationship between them giving rise to the need for some degree of accumulation. In the same context his Honour had regard to the principles of totality of criminality.
His Honour observed that there had been a substantial delay between arrest and sentencing, and that the respondent had originally pleaded not guilty. His Honour specified a discount of 20 per cent for the pleas of guilty.
The Crown took no issue with any of his Honour’s findings. The only submission in this Court was that the sentence for the money laundering count was so low as to demonstrate error.
The Crown’s written submissions commenced by quoting a number of statements made by Ministers and others on the introduction into Parliament of the Bill for Div 400 (“Money Laundering”) of the Code. The Court was thus informed of what the Attorney General had said, what Dr Mal Washer had said, what the Minister for Revenue and Assistant Treasurer had said and what the Minister for Justice and Customs had said about the contents of the Bill. The Court was also informed what the Attorney General had said when introducing the Bill by which s 35.1 of the Financial Transaction Reports Act was being replaced by s 142 of the Anti-Money Laundering and Counter Terrorism Financing Act 2006.
It is unclear why the Crown took the Court to those speeches. It was not submitted that the meaning of the legislation was obscure or that any misunderstanding had arisen or was likely to arise in this matter.
In Harrison v Melhem [2008] NSWCA 67 it was held that neither s 34(1) of the Interpretation Act (NSW) nor the common law of statutory interpretation permits resort to a minister’s speech to guide the meaning of legislation beyond identifying its purpose. See the judgments of Spigelman CJ at [12] and of Mason P, with whom Beazley, Giles and Basten JJA agreed on this question, at [168]-[172].
In my opinion the same must apply to the Interpretation Act 1987 (Commonwealth) and to the interpretation of Commonwealth Statutes.
The general tenor of what the several Members of Parliament said makes clear how seriously they regarded the offences called money laundering, but one needs only to read the relevant sections of the Code to understand the view that Parliament took and takes of such matters.
Part 10.2 of the Code deals with offences called Money Laundering. It may be said for the purposes of these matters that a person deals with money who receives, possesses, conceals or disposes of it; subs 400.2. The respondent was charged under subs 400.3(1) which is as follows:
400.3 Dealing in proceeds of crime etc.—money or property worth $1,000,000 or more
(1) A person is guilty of an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds of crime; or
(ii) the person intends that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 25 years, or 1500 penalty units, or both.
Subs 400.3 creates a graduated series of offences, all concerned with money or property worth at least $1m, but varying in gravity according to the offender’s state of mind. So while subs .3(1) is concerned, relevantly, with the offender’s belief in the quality of the money or property, subs .3(2) is concerned with recklessness as to that quality and subs .3(3) with the offender’s negligence. Where the Crown proves the relevant belief, the maximum penalty is imprisonment for 25 years or 1,500 penalty units or both. For recklessness the maximum is imprisonment for 12 years or 720 penalty units or both. For negligence the maximum penalty is imprisonment for 5 years or 300 penalty units or both.
Subs 400.4 provides a similarly graduated series of offences concerning money or property worth $100,000 or more. Subs 400.5, 400.6 and 400.7 deal in like manner with offences concerning money or property to the value of $50,000 or more, $10,000 or more and $1,000 or more. The same sub-sections provide for a descending order of maximum penalties according to the offender’s state of mind.
The Court must begin its consideration by identifying any offence against subs 400.3(1) as very serious, as characterised by the applicable maximum penalty.
The Crown submitted on appeal, as it had before the sentencing judge, that although the case was not in the worst category of cases under subs 400.3(1) it was close to it. So much appeared, it was submitted, from the amount of money involved, the respondent’s state of mind, the period of time over which the individual deposits of cash were made and the respondent’s position of authority over the six or so other persons doing his bidding in a very big, intricately planned criminal organisation. It was submitted that the only feature favourable to the respondent on sentence was his plea of guilty, for which his Honour had correctly allowed a discount of 20 per cent. It followed that in order to reach the head sentence of 10 years his Honour must have begun with a head sentence of 12 years and 6 months. That was only 50 per cent of the maximum custodial sentence applicable, a point too low to reflect the high level of objective seriousness of the offence.
Mr Boulten, SC for the respondent reminded this Court that the sentencing judge was unable to identify the crime from which the money was derived. Mr Boulten accepted that the offence was a serious example of offences of its type, but submitted that it would be incorrect to say, as the Crown submitted, that the offence was in the worst category or close to it. It was, as the Crown told the sentencing judge, not a worst case but a very serious case.
Mr Boulten submitted that the sentencing judge was well experienced and had sentenced most of the respondent’s co-offenders. All had performed subordinate roles. However, only two of them were convicted under subs 400.3(1). Thuong Tran was sentenced by his Honour. He was involved in the transfer of $3.865 million over a 3-month period. After allowing for his plea of guilty, his Honour imposed a head sentence of 3 years 11 months.
The other co-offender convicted under subs 400.3(1) was sentenced by Sorby DCJ. Van Tho Nguyen pleaded guilty on the second day of his trial. He dealt with $3.6 million over four months. He performed a subsidiary role. Sorby DCJ set a non-parole period of 5 years after allowing for the plea of guilty. His Honour sentenced Nguyen at the same time for a serious drug offence, and, after applying the principle of totality, fashioned an overall sentence which partially accumulated the two terms and incorporated a single period for parole. It is therefore impossible to discern any head sentence his Honour would have imposed for the money laundering offence before allowing for the plea of guilty.
The remaining co-offenders were all dealt with for less serious offences. Five were sentenced under subs 400.3(2) as reckless. The amounts they dealt varied between just over $1 million to just under $5 million. Head sentences ranged between 3 years 11 months and 4 years 7 months after allowance for their pleas of guilty.
In imposing sentence Toner DCJ was concerned to observe proportionality between the sentences imposed on all offenders, notwithstanding that the co-offenders were to be sentenced for offences that attracted much lower maximum penalties. Mr Boulten submitted that his Honour had achieved proportionality and that that would be disturbed if this Court were to interfere. Reference was made to Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.
Mr Boulten submitted that for all or any of these reasons the Crown had failed to demonstrate that the sentence appealed against fell outside the proper range of his Honour’s sentencing discretion. Alternatively, it was submitted that the Court ought to dismiss the appeal in its discretion.
In support of their respective arguments, counsel cited a number of sentences imposed in unrelated cases under the money laundering provisions of the Code. They were as follows.
Subs 400.3(1) (minimum value $1 million; maximum custodial penalty 25 years)
In R v Huang [2007] NSWCCA 259 there were 335 bank transactions each of less than $10,000. The funds were not the proceeds of crime but became instruments of crime and the mental element was the respondent’s intent that they should. The offender received a fee of $30,000 for dealing with the money. He was sentenced after pleading guilty and giving assistance to the authorities, and the Crown appealed against the sentence. This Court considered that an appropriate starting point before applying discounts would have been 12-14 years.
In R v Chen [2010] NSWCCA 224 the appellant was a co-offender of Huang. He was convicted after a trial. He provided bundles of cash to Huang and instructed him to transfer money to various accounts in Hong Kong. 333 such transactions were made over a period of 10 months. The total amount transmitted exceeded $3 million. The mental element was intent. The trial judge fixed a head sentence of 16 years and 6 months and a non-parole period of 10 years and 6 months.
In R v Li [2010] NSWCCA 125 the offender came to Australia by arrangement and over a few days collected cash worth about $2.6 million which had been left for him. He believed that the money was the proceeds of crime but the evidence did not establish whether he believed that it derived from any particular crime. The money was all transmitted overseas. It was not established that the money was beneficially the offender’s. It was unclear what, if any, reward the offender received. The head sentence of 12 years was left undisturbed on appeal.
In R v Byrne [2010] QCA 33 the appellant was convicted of fraud and of one count of money laundering. He obtained documents belonging to a customer of a bank and by using them and other confidential information and forging the customer’s signature he arranged the transfer of $1.38 m from the customer’s term deposit to another account. That was the fraud. On the following day, still pretending to be the customer, he secured the telegraphic transfer of the money to an account in another name in Hong Kong. The transfer was discovered and the funds were frozen, but not before $HK1.5 m, worth about $250,000, had been withdrawn. It does not appear from the judgment what the relevant state of mind was, but I would assume that it was belief, based upon the appellant’s knowledge of the fraud the previous day. On the money laundering count the sentencing judge imposed a head sentence of 6 years. That was left undisturbed on appeal but the parole period was reduced from 3 years 6 months to 1 year 6 months. The sentencing judge’s starting point for the head sentence does not appear from the judgment.
In R v Trandy, Nguyen & Ors [2009] VSCA 321 Trandy was convicted of two counts of money laundering. The first was dealing with an amount greater than $1 m which was intended to become an instrument of crime. The amount involved was $2 m. The second count was of conspiracy to deal with an amount greater than $1 m intended to become an instrument of crime. The agreed amount exceeded $5 m. The head sentences imposed at first instance were 6 and 7 years respectively after applying discounts for pleas of guilty and other matters. On the same two counts Nguyen was sentenced, again after discounts, to head sentences of 5 and 6 years. Those head sentences were held on appeal to be appropriate, but the judgment contains no expression of the starting point adopted for the purposes of those head sentences.
Counsel also drew the Court’s attention to sentences imposed in unrelated cases which had not been considered on appeal. In R v Xin Liang, County Court of Victoria 15 October 2009, the offender pleaded guilty to one count laid under s 400.3(1). At the same time he pleaded guilty to two serious drug offences which attracted maximum sentences of imprisonment for life and imprisonment for 25 years respectively. Judge Wood was satisfied that on eight occasions during May, June and July 2006 Liang dealt with money of a total value of $4.026 million knowing that it was the proceeds of crime. He provided such sums in cash to money remitting services for remittance overseas. Taking into account the plea of guilty, his honour imposed a head sentence of 7 years and 6 months. The starting point is impossible to discern because of the concurrence of the sentences imposed for the drug offences. His Honour imposed a total effective head sentence of 10 years but noted that but for the pleas of guilty the head sentence would have been 13 years.

In R v Hang Than Huynh and Others, County Court of Victoria 17 December 2009, Judge Wood sentenced 7 offenders after pleas of guilty. The criminal activity giving rise to the charges involved the LTMTC, though there is no suggestion that there is any other connection between those cases and the present case. Hang Than Huynh had overriding control of the Footscray, St Albans and Cabramatta offices of the LTMTC. The company was owned by Huynh’s family, and her parents appear to have been the principals. She had the greatest criminal involvement of all 7 offenders. She was extensively involved in the dealing of the business and its clients. She determined rates for and selected the local repository of funds to be deposited for transfer overseas. She determined how much cash should be remitted from Australia. She directed Hue Thanh Tran to arrange deliveries of cash and determined rates, routes and agent destinations of cash forwarded by pilots of aircraft travelling between Vietnam and Hong Kong. She gave directions to other co-conspirators as well and directed staff members at the 3 branches at which she was controller. As a member of the Huynh family she derived a greater reward than Hui Thanh Tran or any other co-offender. In a 10-month period between December 2005 and October 2006 she was responsible for the remittance of $68 million. The sentencing judge started with a head sentence of 20 years’ imprisonment and reduced it for a plea of guilty and assistance to the authorities.
Hui Thanh Tran had overriding control of the Bankstown office of LTMTC. He was subject to the direction only of Hang Tran Huynh. He directed the employees. He dealt with the major criminal customers of the business. He received an agreed percentage of earned commission on his dealings and took an additional unrevealed percentage from selected clients. Over the same 10-month period he was responsible for the remittance of $57 million. His Honour’s starting point before discounting for a plea of guilty was 16 years’ imprisonment
Phat Ba Huynh managed the Melbourne remittance business from early June 2006. He involved himself with the criminal customers of the business and collaborated with persons in Vietnam and Sydney. He was under the supervision of and recruited by his sister Hang, the first-named offender. Altogether he was responsible for the transmission of $8-9 million. His Honour took a head sentence of 10 years and 6 months before discounting for a plea of guilty.
Subs 400.4(1) (minimum value $100,000; maximum custodial penalty 20 years)
In Maldonado v R [2009] NSWCCA 189 the offender appealed against sentences imposed for aiding and abetting the manufacture of a commercial quantity of cocaine, trafficking in a commercial quantity of cocaine and for two counts of dealing in the proceeds of crime, one in money to the value $600,000 and the other $150,000. The sentencing judge described the money laundering offences as “mid-range”. The offender was one of a group of men who arranged for the extraction of about 34 kilograms of cocaine from bags of imported fruit powder. The offender’s role included ensuring that rented factory premises were suitable for the job to be done, negotiating the rent and arranging for its payment. With others he transported necessary chemicals and supplied provisions to the men undertaking the extraction. He visited the factory a number of times, paid sums of money and took away a quantity of cocaine and the residue of the extraction process. He was a trusted deputy of the principal of the syndicate. He was integrally involved in all stages of the importation, manufacture and supply of the cocaine.
It appears that the principal concern before the sentencing judge was with the manufacturing and trafficking offences, since each attracted a maximum penalty of imprisonment for life. The distinction between the two money laundering offences does not appear from the judgment of the Court of Criminal Appeal, though the first of them may have arisen out of what the sentencing judge described as “a very significant sale of 6 kg of the drug”. Perhaps that sale was also the basis of the trafficking charge. The factual basis of the lesser money laundering count does not appear. Neither do the facts supporting an offence under s 400.5(1) which was taken into account in sentencing on the lesser money laundering count. The state of mind in each of the money laundering offences was intention; subs (1)(b)(ii).
The minimum money or property value under s 400.5(1) is $50,000. The maximum custodial penalty is 15 years.
The head sentences imposed at first instance were 10 years and 8 years. On appeal they were left undisturbed and only concurrency was changed. The dominating features on appeal appear to have been the sentences for the two drug counts.
In R v Jimmy [2010] NSWCCA 60 there was a single count. Twenty-seven times between 26 November 2003 and 11 February 2004 the appellant took money to a bank. On each occasion the sum was less than $10,000 so that the reporting provisions of the Financial Transaction Reports Act (Commonwealth) were avoided. Altogether more than $240,000 was remitted. The sentence at first instance resulted from a starting point of a head sentence of 7 years. The appeal was concerned with the offender’s claim to a legitimate sense of grievance by reference to sentence imposed on others, who were not strictly co-offenders. The appeal was dismissed.
In R v Siu [2007] NSWCCA 259, the offender, a co-accused of Huang, dealt in money to the value of $556,400 with intent that it should become an instrument of crime. The sentencing judge adopted a starting point for the head sentence of 4 years and 6 months. On a Crown appeal this Court held that the starting point should have been at least 8 years, and more appropriately between 9 and 11 years.
Subs 400.3(2) (minimum value $1million; maximum custodial penalty 12 years)
The respondent in R v Viana [2008] NSWCCA 188 was a co-offender of Li (para [27] above). He pleaded guilty. The amount of money he dealt with was $5,050,000 and his state of mind was recklessness. The sentencing judge described his offence as mid-range and selected 6 years as a head sentence before discounting. The Crown’s principal contention on appeal was that the starting point and therefore the resulting sentence was manifestly inadequate. This Court was not satisfied that the starting point was outside an appropriate range of sentencing discretion.
In R v Ansari the two respondents were each charged with two charges of conspiring with the other respondent and with a man referred to as Z to deal with money to the value of $1 m or more where there was a risk that the money would become an instrument of crime and when each was reckless as to the fact of that risk. The respondents were directors of a money exchange business. In October 2003 Z, who was resident overseas, visited Sydney and delivered to the respondents cash exceeding $2 m in value. They arranged for an associate to deposit the money into various bank accounts and that was done over a period of several months, always in amounts of less than $10,000 to avoid reporting provisions.
In June 2004 Z visited Sydney again, intending to deliver to the respondents between $2 and $3 m which was to come from the sale of drugs. Z and the respondents made an arrangement as before, but they were all arrested before the plan could be put into effect.
Z was charged with conspiracy under s 400.3(2) for the arrangement of June 2004, but that was the only money laundering count. Z was also charged with having possession of a prohibited import, namely MDMA, being not less than the commercial quantity, reasonably suspected of having been imported into Australia. Z pleaded guilty and assisted the authorities. His subjective case was particularly strong because he had a substantial mental illness. The sentencing judge took into account in sentencing for possessing MDMA an offence for possessing cash to the value of $15,000 reasonably suspected of having been unlawfully obtained. Z was sentenced to a fixed term of 2 years on the money laundering count and to a longer term for the possession of the imported drug. On appeal, this Court considered that there should have been a starting head sentence of 7 years for the money laundering count but confined its interference to the possession count.
In the Crown appeal against the sentences imposed on the Ansari brothers this Court, relying on what the court had said in Z, substituted head sentences of 7 years for each of the offences for each respondent. Adjustments to the partial concurrency of the sentences are of no present interest.
In R v Chen [2009] NSWCCA 66 the appellant was convicted of conspiring to deal with money worth $1 m or more. The state of mind was recklessness. The sum of money the subject of the conspiracy was greater than $20 m but the fraud was discovered and no money was lost. On appeal the sentencing judge was held correctly to have started with a head sentence of 8 years before discounting.
Some of the co-offenders of Hang Thanh Huynh were sentenced by Judge Wood under subs 400.3(2). Tam Tran operated between December 2005 and October 2006. The amount with which he involved himself does not appear in the judgment. His state of mind was recklessness. The starting point before discount for a plea of guilty was 6 years and 6 months.
Thi Ba Ong Huynh was reckless between December 2005 and June 2006 about amounts of money exceeding $10 million. The starting head sentence before discount was 6 years and 6 months.
Thi Thu Nguyen was reckless about amounts exceeding $8 million between December 2005 and October 2006. The starting head sentence was 6 years and 6 months.
As I said in R v Li, I do not think that the number of money laundering cases dealt with so far by appellate courts is sufficient to begin to trace the limits of the proper range of sentencing discretion under subs 400.3(1). And when there are added the first instance sentences to which counsel drew this Court’s attention, the position is no different. Moreover, unless there are co-offenders, one may not look at the facts and result of a single case in order to show that the case under consideration is within or outside a proper range of sentencing discretion: R v George [2004] NSWCCA 247 per the Court at [48] – [49]. So although the cases referred to are of assistance, it is limited.
A court imposing sentence for an offence under subs .3(1) must have regard first to the maximum sentence applicable, to the minimum value of money or property necessary to bring an offence into the sub-section and to the prescribed state of mind, namely the offender’s belief that the money or property was the proceeds of crime. There will be other features, too, including the actual value of money or property dealt with and the proportion, if any, by which that value exceeds the minimum value qualifying for subs .3(1), as well as the period of time over which the transactions constituting the offence were carried out, the authority by which the offender carried out his part and precisely what the offender did and the manner in which the offender acted, which will include consideration of any practised deceit. The nature of the criminal source of money or property may be important. The Court will need to consider whether the money or property was beneficially the offender’s or not and, if not, the value of any intended reward. It will be important to consider what part of the money was successfully dealt with and the value of any resulting loss to the community. The precise state of mind of the offender will be important. Just as subss .3(1), .3(2) and .3(3) vary according to a scale of increasingly serious states of mind, rising from negligence to recklessness to belief, so there may be degrees of belief, rising to certain knowledge, as in Maldonado. And there will be other considerations, case by case.
It seems to me that the important features of the present case are that the offender believed that the money he dealt with was the proceeds of crime (though one could not say anything about the strength of his belief or whether he believed that the proceeds derived from any particular criminal activity), that the money transmitted was about fifteen times greater than the minimum amount necessary for subs .3(1), that the transmissions took place frequently over a period of almost ten months and that the offender carried out a directing role in a well organised criminal organisation in which, for the most part, he procured those junior to him to effect the individual transactions. All the money was apparently successfully transmitted directly or indirectly out of Australia and was lost to the economy. The money was not beneficially the offender’s, but he received an unidentified sum as commission.
Although his Honour stated that he regarded the plea of guilty as some evidence of remorse, it was common ground on appeal that his Honour must have commenced with a head sentence of 12 years and 6 months and reduced it by the nominated 20% for the utilitarian value of the plea of guilty to produce the head sentence imposed.
The Crown submitted that the high level role performed by the respondent, the amount of money involved and the period of time over which he operated, given the fact that his motivation was greed, put the offender’s criminality very high in the range contemplated by subs .3(1), yet his Honour’ starting head sentence was only 50% of the maximum penalty. It was submitted that his Honour should have commenced with a figure of 80 or 90 per cent of the 25-year maximum.
It seems to me, having in mind the serious features of this case to which I have drawn attention, that this is a very serious case of its type and comes close to the worst category of cases. In my opinion his Honour ought to have selected a starting head sentence much higher than he did.
By s 68A Crimes (Appeal and Review) Act 2001 the discretion of this Court in a Crown appeal against sentence to impose a lesser sentence than it otherwise would or to dismiss the appeal because of what was referred to as “double jeopardy” was removed. See generally R v JW [2010] NSWCCA 49. The Court in R v JW did not deal with an offence against the law of the Commonwealth.
.
Mr Boulten submitted that s 68A had no effect on the Court’s discretion in this appeal since it was concerned with a Commonwealth offence. It was submitted that s 68A impermissibly impaired the exercise of judicial power contrary to the guarantees enshrined in Chapter III of the Commonwealth Constitution because it conferred on this Court exercising Commonwealth jurisdiction a duty which was repugnant to the judicial process in a fundamental degree. Reference was made to Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51 and other cases. Mr Boulten also submitted that s 68A was of no effect because it was not picked up by any relevant section of the Judiciary Act 1903 (Commonwealth).
In the meantime, a differently constituted bench of this Court has dealt with these questions. In Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194 the Court held unanimously that s 68A Crimes (Appeal and Review) Act 2001 was not, for the purposes of s 109 of the Commonwealth Constitution, inconsistent with s 16A of the Crimes Act 1914 (Commonwealth), as to which see the judgments of Allsop P at [1]-[33], Basten JA at [79], McClellan CJ at CL at [162], Simpson J at [273] and Barr AJ at [314], and by a majority that there is no inconsistency between s 68A and s 16A such as to exclude s 68A from the operation of s 68, s 79 or s 80 of the Judiciary Act 1903 (Commonwealth), as to which see the judgments of McClellan CJ at CL at [162]-[180], Simpson J at [274]-[282] and Barr AJ at [315], cf. Allsop P at [34]-[56] and Basten JA at [80]-[99]. Accordingly, this Court must deal with the appeal without applying any discretion that might have arisen because of “double jeopardy”.
Of course the Court has a discretion independent of that removed by s 68A not to interfere even when the Crown demonstrates that a sentence appealed from is inadequate. However, I do not consider that the exercise of that discretion is warranted in the present appeal. When the Court decides to interfere, it is appropriate to substitute a sentence which falls towards the lower end of the range of available sentences, and that is what I propose.
In my opinion this Court should quash the sentence appealed from and substitute a sentence of imprisonment for 13 years, produced by taking a head sentence of slightly more than 16 years and deducting from it 20 per cent in recognition of the plea of guilty. My intention is to produce an effective head sentence of 16 years for both counts. In order to achieve that it will be necessary under the provisions of s 59(1) Crimes (Sentencing Procedure) Act 1999 to vary the commencement and expiry dates of the sentence imposed on the first count, but not otherwise to disturb it. I propose the following orders -
1. Allow the appeal and quash the sentence imposed on the second count.
2. Vary the sentence imposed on the first count so that it commences on 6 October 2006 and expires on 5 October 2018,
3. Sentence the respondent on the second count to imprisonment for a period of 13 years. The sentence will be taken to have commenced on 6 October 2009 and will expire on 5 October 2022.
4. Set a non-parole period of 10 years and 8 months, which will expire on 5 June 2017.
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LAST UPDATED:
13 October 2010