R v Powell - [1999] QCA 416

99.416

COURT OF APPEAL

de JERSEY CJ McPHERSON JA JONES J

CA No 173 of 1999
THE QUEEN
v.

RICKY GORDON POWELL

Appellant

BRISBANE
..DATE 04/10/99
041099 T6-7/HMH8 M/T COA239/99
THE CHIEF JUSTICE: The applicant pleaded guilty to money
laundering. That offence is provided for by section 90 of
the Crimes (Confiscation) Act. The offence occurred over a
period of nine months in 1994 and 1995. He was sentenced to
two years' imprisonment, suspended after 12 months for an
operational period of four years. He seeks leave to appeal.

At the time of the offence the applicant was 38 years old. He had a substantial criminal history but mainly comprising minor drug and street type offences. He had personality problems and health problems. He and his employer, one Sweeney, purchased a very large amount of a drug called Diphenhydramine which was used as an extender, as it is put, for amphetamines. The amount of the drug was 250 kilograms obtained in five separate deliveries or shipments, as they were called. They purchased the drug by using carefully fabricated aliases.

One shipment was spiked by the police prior to delivery and was later tracked down as the additive to amphetamines being traded in Western Australia. That led the police to Sweeney's otherwise legitimate business, a real estate agency in which the applicant worked. The applicant had been laundering substantial sums of drug money through the accounts of that business. The applicant was sentenced on the basis of personal involvement in $161,671.90 although much more money apparently went to Sweeney.

The Crown applied for pecuniary penalty and forfeiture
041099 T6-7/HMH8 M/T COA239/99
orders. When the applicant's willingness to pay a sum of
$90,000 lent to him by his brother was raised, the learned
sentencing Judge drew attention to section 98 of the Crimes
(Confiscation) Act which provides that in deciding the
matter of sentence the Court must not have regard to the
forfeiture of a defendant's property under a forfeiture
order made by the Court or to the circumstance that the
defendant has been or may be ordered to pay a pecuniary
penalty.

Warned by the learned Judge that payment, if made, may well not be a factor ameliorating sentence, the defence nevertheless did go on to pay the sum to the Crown, yet still subsequently maintained before Her Honour that having done that justified Her Honour's being lenient. Having received the payment, the Crown then formally withdrew its application for the order and Her Honour ultimately held that little weight should be attached to the payment. I respectfully agree with Her Honour's approach.

The defence paid the $90,000 in anticipation of a pecuniary penalty order. The payment being made, the Crown did not pursue its application for that order. Section 98 would deem irrelevant to the sentence an accused's being subject to a pecuniary penalty order. As Her Honour said, such orders constitute additional sanctions.

Just as an accused's being subject to a pecuniary penalty
order is deemed irrelevant by express…

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 Powell

Details

AGLC: R v Powell [1999] QCA 416
Case: [1999] QCA 416
Decision Date: 4/10/1999

CaseChat Overview and Summary

In the case of R v Powell, the appellant, Ricky Gordon Powell, appealed against his sentence for money laundering, which was deemed to be a serious offence warranting stern deterrence. The court had to decide whether the sentence imposed was manifestly excessive and whether there was a lack of parity between the sentences of the appellant and his co-offender, Sweeney. The court also had to determine whether the payment made by the defence, which was in reality a pecuniary penalty, should be considered when determining the sentence.

The court held that the sentence imposed on the appellant was reasonable and did not consider it to be manifestly excessive. The court also held that there was no lack of parity between the sentences of the appellant and Sweeney, as they were sentenced on different factual bases. The court further held that the payment made by the defence should not be considered when determining the sentence, as it was irrelevant under section 98 of the Crimes (Confiscation) Act.

The court also noted that the sentences imposed on other offenders for similar offences might not be representative, as money laundering activities often provide an essential service to the upper echelons of the illegal drug trade and the penalties should reflect the public concern for that activity. The court ultimately refused the application for leave to appeal against the sentence.

The final order was that the application was refused, and the sentence imposed on the appellant remained unchanged.

Orders