R v Templer
[1999] VSCA 216
•29 November 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL
Not Restricted
No. 171 of 1999
| THE QUEEN |
| v |
| PATRICK EDWARD TEMPLER |
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JUDGES: | BROOKING, PHILLIPS & BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 November 1999 | |
DATE OF JUDGMENT: | 29 November 1999 | |
MEDIA NEUTRAL CITATION: | [1999] VSCA 216 | |
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CRIMINAL LAW – Sentencing – Conspiracy to "money launder" proceeds of drug dealing – Offender terminating conspiracy before money changed hands – Whether sufficient weight given to offender's desisting – Two years' imprisonment (with one year minimum) upheld.
Crimes Act 1914 (Cth.) s.86, Proceeds of Crime Act 1987 (Cth.) s.81.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr J.R. Champion | P.C. Wood, Solicitor for D.P.P. |
For the Applicant | Mr O.P. Holdenson, Q.C. | Haines & Polites |
BROOKING, J.A.:
Mr Justice Phillips will deliver the first judgment.
PHILLIPS, J.A.:
The applicant, who was born on 14 October 1951, is now 48 years' old. On 28 July 1999 he was indicted in Melbourne before the County Court on one count of conspiracy to commit an offence against a law of the Commonwealth. There had been an earlier indictment containing three counts but that was not proceeded with. Upon its being filed, the second indictment was promptly amended. As amended the charge read as follows:
"That between the 20th day of March 1996 and the 26th day of March 1997 at Melbourne in the State of Victoria and at diverse other places Patrick Edward TEMPLER did contrary to subsection 86(1) of the Crimes Act 1914 conspire with Lawrence Edward McLean to commit an offence against a law of the Commonwealth, namely the offence of money laundering contrary to subsection 81(2) of the Proceeds of Crimes Act 1987."
The expression "money laundering" is given particular meaning in s.81(2) of the Proceeds of Crime Act; for according to s.81(3) -
"A person shall be taken to engage in money laundering if and only if
(a) the person engages directly or indirectly in a transaction that involves money or other property that is proceeds of crime or
(b) that person receives possesses conceals disposes of or brings into Australia any money or other property that is proceeds of crime and the person knows or ought reasonably to know that the money or other property is derived or realised directly or indirectly from some form of unlawful activity."
According to s.81(2) an individual who is guilty of money laundering may be punished upon conviction by a fine not exceeding $200,000 or imprisonment for a period not exceeding 20 years, or both. By s.86(1) of the Crimes Act the offence of conspiracy to commit such an offence attracts the like penalty.
To the one count in this second and amended indictment the applicant pleaded guilty on 29 July. He admitted the 12 previous convictions alleged against him. The first two were convictions in the Magistrates' Court in suburban Melbourne in 1972 for relatively minor offences of dishonesty. The next were nine convictions from three appearances in courts in Queensland during 1980 - one count of being in possession of a prohibited plant for sale, seven counts of receiving and one count of possessing an unlicensed firearm. All these convictions, both in 1972 and in 1980, brought only fines and none of them was regarded by the sentencing judge as of any particular significance for present purposes. It was the last of the previous convictions that was pertinent; for on 2 June 1987 the applicant had been convicted in the Supreme Court of Victoria of conspiracy to import a prohibited import, namely cannabis resin, and had been sentenced to 12 years' imprisonment, 9 years of which was to be served before he was eligible for parole. In the event, we were told, he was released from prison in 1992 or 1993.
On 29 July, the applicant was represented by senior counsel who made a substantial plea in mitigation on his behalf. As prosecuting counsel described it, the case against the applicant arose out of a much larger matter involving voluminous material, depending as it did upon a substantial surveillance operation conducted in respect of a number of persons only one of whom was McLean, the applicant's co-conspirator. A good deal of the surveillance material implicated the applicant and much of it was available on the plea. It is true that the proper interpretation of some of the telephone conversations that were recorded between the applicant and McLean was the subject of some difference of opinion between the prosecution and the defence and so on the plea the judge was given two summaries of facts, one by either side. In the end, however, if only by reason of the applicant's plea of guilty, the differences in interpretation of these recorded telephone conversations do not appear to have been of any significance in the sentencing process.
In addition to the two summaries I have mentioned, the sentencing judge had also the witness statement dated 27 July 1999 of one Chris Ng, an architect and property developer with whom the applicant was involved. This statement was tendered on behalf of the applicant who also called three witnesses to testify to his stable family relationship, his attempts to rehabilitate himself since his release from prison and his concern for his children's welfare. Those three were a real estate agent who had known the applicant for some 35 years, the deputy headmaster of a large school who had known the applicant for more than 30 years, and a school teacher and university lecturer who had known the applicant for years and who had become stepfather to the applicant's children by his first marriage. A fourth witness called by the applicant was the informant. He gave evidence of how the applicant had been originally charged with being knowingly engaged in the importation of cannabis - a charge no longer persisted in. When asked about the applicant's co-operation with the investigation, the informant said that the applicant "certainly has not hindered the investigation".
As will be seen in a moment when I recount the facts giving rise to this case, it was the applicant himself who, upon learning that he was under surveillance in August 1996, desisted from the conspiracy upon which he had embarked and as a result no money actually changed hands. Relying upon this and the other evidence led on the plea to support the applicant's attempts at rehabilitation since his release from prison, applicant's counsel, while conceding that this was "an exceedingly serious offence", submitted that the penalty should be only a fine or - perhaps more realistically - that any term of imprisonment should be wholly suspended. However, the sentencing judge after considering all of the circumstances of the offending and the personal circumstances of the offender, sentenced the applicant to a term of 2 years' imprisonment directing that he serve 12 months before being released on a recognizance of $1,000 to be of good behaviour for a period of two years. It is from that sentence that the applicant now seeks leave to appeal.
Before going to the grounds on which that leave is sought, I say something more about the facts out of which this case arises and in what follows I draw essentially upon the remarks of the sentencing judge.
In early March 1996, the applicant was approached by Chris Ng, an architect of his acquaintance, in relation to a property at 118 Franklin Street, Melbourne. Ng approached the applicant, who was a builder and developer, with a view to the latter's investing in the development of the property. The applicant showed some interest and indicated to Ng that he would be able to provide funds, from himself and other parties of his acquaintance, to the tune of $1.2 million. The applicant instructed Ng to make an offer and, following negotiations, a contract to purchase the property for $1,255,000 was concluded. On 27 March 1996 the contract was entered into by Richmond Hill Development Pty. Ltd., a company of which the applicant was himself a director, and it was the applicant who signed the contract on its behalf. The contract called for a 10 per cent deposit and of that $6,000 was paid on 27 March and the balance within seven days. Of the total deposit, some $70,000 was provided by another investor, the applicant providing the rest. The contract of sale contained a nominee clause and provided for settlement in six months.
Meanwhile, the applicant had been in contact with McLean, who was heavily involved in the importation of cannabis. On the plea, applicant's counsel described it as "one of the largest, if not the largest, importation of cannabis into Australia in the late nineties", and it was the target, it seems, of "Operation Niacin" in the course of which both McLean and the applicant were arrested. McLean, it appears, had been under investigation since 1995 and it was in the course of that investigation that attention was drawn to the applicant because of his contacts with McLean. The first established contact between these two was in December 1995. Between 13 December 1995 and 11 April 1996 McLean rang the applicant's mobile phone on no less than 25 occasions and, in the course of the police surveillance, the applicant was seen in the company of McLean on four occasions in April 1996. On 10 April 1996, McLean was seen inspecting the property at 118 Franklin Street in the applicant's presence. McLean's half brother attested to other meetings which took place between McLean and the applicant. Telephone conversations between the applicant and McLean were taped-recorded on ten occasions between 8 June 1996 and 8 March 1997. It was in the course of this continuing contact between the applicant and McLean that arrangements were made between them for McLean to provide some of the funds to complete the purchase under the contract already mentioned.
On 2 August 1996 the applicant received a warning (and it is not clear from whom) that the police had him under surveillance. On 3 August the applicant made particular note of cars and people around him and became convinced that the warning was correct and he resolved to separate himself from the project in Franklin Street. On 6 August he suggested to McLean that the project might be altogether too much for him (that is, the applicant) and this, it appears, was the first inkling given to McLean that the matter might not go ahead. Not long afterwards, the applicant told Ng that he was having trouble getting together the money which he had promised for the Franklin Street project and, by way of explanation, the applicant also told Ng that he believed he was under police investigation for something he had done in his past. It was also at about this time that the applicant resigned as a director of Franklin 118 Pty. Ltd., the company which had been nominated to purchase the property in question. Nonetheless, he remained one of the investors and in the end the contract was duly settled on 27 September 1996, the applicant and his associates investing a total sum (including the deposit) of $541,500.
Nothing, however, was provided by McLean, 6 August 1996 being regarded now as the date on or about which the applicant withdrew from the conspiracy to launder money. It was in August 1996 that the applicant approached other associates of his and obtained from them some of the money which went to make up the total of $541,500 already mentioned. In July 1997, Ng and other investors in the Franklin Street property paid out the applicant and his associates with a sum of $790,000, that being the amount of the original investment plus nearly $250,000 by way of profit.
It was common ground on the plea that at no time did McLean put any money into the project. On the plea, the judge expressed himself as satisfied that the applicant was "aware of McLean's substantial involvement in cannabis importation" and that, but for the applicant's withdrawal from the project, "McLean, by arrangement with [the applicant] would have invested a substantial sum in the Franklin Street project, thereby laundering moneys obtained from his drug activities." These findings are not now in contest. Though attacked in the applicant's notice of application in Ground 1, that ground was not now argued.
Only two of the grounds mentioned in the applicant's notice of application were argued. The first was that the sentencing judge erred in his interpretation of the law applicable when a participant in a conspiracy withdraws at a time when there have been only a few overt acts; and secondly, that there was disparity with the sentences passed on others involved in activities stemming from McLean.
Despite their apparent particularity, as argued both these grounds came to much the same thing: that is, that in all of the circumstances, including especially the matters specifically mentioned in the notice of the application, the sentences imposed were beyond the range reasonably open to the sentencing judge. Thus, it was contended that on the plea a number of substantial matters were relied upon in mitigation, including the applicant's plea of guilty and the significant consequences of that plea, the character and personal circumstances of the applicant subsequent to his release from prison, and that the object of the conspiracy was never carried into effect (in that no money ever changed hands), there being only a limited number of overt acts at the time of the applicant's desistance from the conspiracy. All of these things, counsel accepted, were considered by the learned sentencing judge but, when regard was had to the actual sentence imposed, it was clear, he submitted, that there was error in that the matters just mentioned were "simply not reflected in the actual sentence imposed". The judge must therefore have misconstrued "the content and duration and reality of the conspiracy", as His Honour described it in words taken from the High Court decision in Savvas v. R (1995) 183 C.L.R. 1 at 6. Further, it was said, when regard was had to the manner in which others involved with McLean had been dealt with "in respect of the same type of offence", the sentence was out of proportion to the applicant's criminal conduct and outside the range of sentences appropriate for an offence of that nature.
The matter of the sentences imposed upon others involved with McLean can be dealt with first. As for McLean himself, it appears that in November 1998 he pleaded guilty in New South Wales to various charges including conspiracy to import seven tonnes of cannabis into Australia and three counts of money laundering. On one count he was sentenced to 16 years' imprisonment with a non-parole period of 11 years, on another, to five years' imprisonment with a non-parole period of 3 years, on another to 3 months' imprisonment and on yet another count to 5 years' imprisonment with a non-parole period of 3 years. The respective subject of each of these counts is not vouchsafed in the material put before us and McLean has, it appears, sought leave to appeal against the severity of these sentences, an appeal which has not yet been determined. In December 1998 he pleaded guilty to a further 11 counts of money laundering, but these matters have been adjourned pending the resolution of the earlier appeal.
Applicant's counsel placed no reliance at all upon the manner in which McLean himself was dealt with, and that is not perhaps surprising. Rather, in the course of the plea below reference was made to one Irving and one Snell. Both Irving and Snell were, it appears, involved with McLean in matters relating to or arising out of the importation of the cannabis, and in particular money laundering. Irving, it seems, was placed on a good behaviour bond but Snell was sentenced to a term of imprisonment of 4 years with a non-parole period of 2-and-a-half years. It further appears that Snell appealed against the sentence, pointing to the manner in which Irving had been dealt with; but this argument of apparent disparity was rejected by the Court of Criminal Appeal on the ground that the roles played by the two were quite different: R v Snell (C.C.A., 5 March 1999, unreported).
The facts in that case can be culled from the judgment of the Court of Criminal Appeal, a copy of which was handed up to us this morning. Every case, however, depends upon its own facts and Snell, it appears, was of prior good character. In this instance it is simply too difficult because of the differences involved to make any sensible comparison between the offending of the one and his personal circumstances and the offending of the other and his personal circumstances. The differences make it impossible to demonstrate by reference to the sentencing of Snell that the judge fell into error when sentencing the applicant, as counsel suggested to us he had. Although counsel sought to emphasise the point by referring in particular to the non-parole period fixed for the applicant, I do not think that that added anything significant to the argument. In short, relevant "disparity" was not established.
As for the other aspects of the argument put to us, it must be accepted that the applicant's plea of guilty did have significant consequences. On the indictment, more than 260 names appear and the informant when he was called to give evidence on the plea, estimated that some six months of time was saved by the applicant's plea. As for the applicant's character and his personal circumstances since his release from prison, this was the subject of the oral evidence already mentioned. The three witnesses who were called gave evidence of a stable family relationship and they gave evidence, too, of the applicant's apparent success in attempting to rehabilitate himself since leaving prison and also of his continuing concern for the welfare of his children, two from his first marriage and two from his second. By the same token, there can be no doubt that the matters canvassed were fully before the sentencing judge and there can be no doubt that His Honour took account of all of them.
The point which was developed more fully in oral argument this morning concerned the consequence of the applicant's withdrawal from the conspiracy. On the plea, applicant's counsel put this as an act of "nobility", the applicant withdrawing from the developmental project lest his continuing presence jeopardize it. The judge was not persuaded of this, preferring the submission of the prosecutor, that the applicant's desistence from the money laundering scheme arose simply from a fear of detection. It is true, as counsel emphasized on the plea, that no money changed hands: that was the result of the applicant's desisting from the scheme before money was due to change hands. The applicant learned that he was under surveillance and promptly severed his connection with McLean in relation at least to this project. He did not sever all connection with the project, although ultimately he resigned as the director of the company which was the purchaser. Obviously enough, and there is no need really for reference to reported cases to make the point, the applicant's desisting from the conspiracy and the fact that little was done pursuant thereto were relevant to the sentencing process, but it is not said (nor could it be said) that either was ignored. The conspiracy lasted for some four months, as Mr Holdenson pointed out; but, as His Honour found, but for the applicant's desistence the common design would have been put into effect.
In all the circumstances, the weight to be given to this aspect of desistence was essentially a matter for the sentencing judge and, notwithstanding the argument of counsel this morning, I am not persuaded that any error was demonstrated in that regard.
Essentially, as I said earlier, the arguments put come down to this: that when due weight is given to all of the matters which were properly considered by the sentencing judge there must have been error because the sentence was manifestly excessive. I reject the argument of manifest excess. It seems to me that the sentence imposed, given the gravity of the crime and the other circumstances of the offending, and giving due weight to the personal circumstances of the offender, including the prior convictions, the sentence imposed was well within range and no ground has been shown for this court's intervention.
I would dismiss the application.
BROOKING, J.A.:
I agree.
BUCHANAN, J.A.:
I also agree.
BROOKING, J.A.:
The order of the Court is that the application is dismissed.
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