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R v Viana

R v Viana

Case [2008] NSWCCA 188 11 August 2008

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New South Wales
Court of Criminal Appeal

CITATION: R v Viana [2008] NSWCCA 188

HEARING DATE(S): 22 July 2008

JUDGMENT DATE:
11 August 2008

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Price J at 3

DECISION: Appeal dismissed.

CATCHWORDS: Criminal law - Sentence - Crown appeal - Federal offence - Money laundering - Sentence not manifestly inadequate

LEGISLATION CITED: Criminal Code (Cth) s 400.3(1), s 400.3(2), s 400.3(3),
s 400.3(1)(b)(i), s 400.4(2), s 400.5(2)
Crimes Act 1914 (Cth) s 16A(2)(m)
Crimes (Sentencing Procedure) Act 1999 s 54A

CATEGORY: Principal judgment

CASES CITED: Ansari v The Queen (2007) 173 A Crim R 112
Du Randt v The Queen [2008] NSWCCA 121
The Queen v De Simoni (1981) 147 CLR 383
R v Barrentos [1999] NSWCCA 1
R v Huang, R v Siu (2007) 174 A Crim R 370
R v Leroy (1984) 2 NSWLR 441
R v Z [2006] NSWCCA 342
Regina v Wall [2002] NSWCCA 42

PARTIES:
Regina
John Paul Viana

FILE NUMBER(S): CCA 2006/12673

COUNSEL: Mr D Staehli SC (Appellant)
Ms N Carroll (Respondent)

SOLICITORS: Commonwealth Director of Public Prosecutions (Applicant)
George Sten & Co (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 8 February 2008

2006/12673

SPIGELMAN CJ
SIMPSON J
PRICE J
11 August 2008

R v VIANA

Judgment

1 SPIGELMAN CJ: I agree with Price J.

2 SIMPSON J: I agree with Price J.

3 PRICE J: The Crown appeals against the sentence imposed upon the respondent John Paul Viana. The respondent pleaded guilty to an indictment which alleged that he, between 19 November 2004 and 6 February 2005 dealt with money that was proceeds of crime, being reckless as to the fact that the money was the proceeds of crime, and at the time of the dealing, the value of the money was more than $1,000,000. This was an offence of money laundering against s 400.3(2) of the Criminal Code (Cth) (the Criminal Code). The maximum penalty for such an offence is imprisonment for 12 years, or a $79,200 fine or both. Section 400.3(2) is found within Division 400 of the Criminal Code.

4 On 8 February 2008, the respondent was sentenced in the District Court at Penrith to imprisonment for 4 years 6 months commencing on 7 December 2005, with a non-parole period of 2 years 11 months and expiring on 6 November 2008.

5 The sole ground of appeal is that the sentence is said to be manifestly inadequate.

6 The principles relevant to Crown appeals against sentence are well established and are summarised in Regina v Wall [2002] NSWCCA 42 per Wood CJ at CL at [70]. Considerable restraint is exercised by this Court before intervening in the orders made by a sentencing Judge.

The offence

7 The facts of the offence were not in dispute and a statement of facts was handed to the sentencing Judge which her Honour adopted in her sentencing remarks.…

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 Viana

Details

AGLC: R v Viana [2008] NSWCCA 188
Case: [2008] NSWCCA 188
Decision Date: 11 August 2008

CaseChat Overview and Summary

The case of R v Viana involved the respondent, Viana, who was convicted of a federal offence related to money laundering. The Crown, dissatisfied with the sentence imposed on Viana, appealed to the court to determine whether the sentence was manifestly inadequate. The appeal was heard in the relevant appellate court.

The central legal issue for the court was to assess whether the sentence imposed on Viana for his involvement in money laundering was manifestly inadequate. The court had to consider the gravity of the offence, Viana's role, and the principles of sentencing. Furthermore, the court examined whether the sentence was proportionate to the offence and whether there were any mitigating or aggravating factors that should be considered.

The court, in its judgment, reviewed the principles of sentencing in relation to federal offences, particularly those involving money laundering. It examined the severity of the offence, Viana's role and culpability, and the need for the sentence to reflect the seriousness of the crime. The court concluded that the sentence imposed was not manifestly inadequate, taking into account the totality of the circumstances. The court found that the sentence was proportionate to the offence and appropriately reflected the seriousness of Viana's involvement in money laundering.

The court upheld the original sentence, finding that it was not manifestly inadequate. No further orders were made.

Orders