R v Wang; R v Roizman
[2013] NSWCCA 2
•01 February 2013
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: R v Wang; R v Roizman [2013] NSWCCA 2 Hearing dates: 6 September 2012 Decision date: 01 February 2013 Before: McClellan CJ at CL at [1]
McCallum J at [3]
Garling J at [118]Decision: Leave to appeal granted; appeal dismissed
Catchwords: CRIMINAL LAW - sentencing - money laundering - alleged disparity with sentences imposed on other offenders involved in different aspects of the same undertaking - alleged denial of procedural fairness - whether sentences manifestly excessive - whether principle in De Simoni breached - whether other matters properly taken into account Legislation Cited: Criminal Appeal Act 1912
Criminal Code 1995 (Cth)Cases Cited: Ansari v R [2007] NSWCCA 204; 173 A Crim R 112
Button v R [2010] NSWCCA 264
Chen v R [2009] NSWCCA 66
Hili v R; Jones v R [20120] HCA 45
Jimmy v R [2010] NSWCCA 60
Pantorno v R [1989] HCA 18; 166 CLR 466
Pham v R [2009] NSWCCA 25; 193 A Crim R 190
Re Minister for Immigration and Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
R v De Simoni [1981] HCA 31; 147 CLR 383
R v Guo; R v Quian [2010] NSWCCA 170
R v Hart (NSWCCA unreported, 26 July 1999)
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Ryan [2003] NSWCCA 202; 141 A Crim R 403
R v Van Dang Dran [2007] NSWDC 310
R v Wing Cheong Li; Wing Cheong Li v R [2010] NSW CCA 125; 202 A Crim R 195
Regina v Z [2006] NSWCCA 342; 167 A Crim R 436
Weir v R [2011] NSWCCA 123Category: Principal judgment Parties: Jian Ping Wang (Applicant)
Alexandre Roizman (Applicant)
Regina (Respondent)Representation: Counsel:
L Crowley (Crown)
P Boulton SC (Wang)
M Ramage QC (Roizman)
Solicitors:
Pillip Ryan Solicitors (Applicant - Wang)
Jeffreys Lawyers (Applicant - Roizman)
Commonwealkth Director of Public Prosecutions (Respondent)
File Number(s): 2007/11073 2007/11075 Publication restriction: None Decision under appeal
- Citation:
- [2010] NSWDC 170
- Date of Decision:
- 2010-08-05 00:00:00
- Before:
- King SC DCJ
- File Number(s):
- 2007/11073
2007/11075
Judgment
McCLELLAN CJ at CL: I agree with the orders proposed by McCallum J and in all but one respect with her reasons.
In my opinion the applicant Roizman was not denied procedural fairness. His Honour when sentencing was entitled to have regard to all of the relevant material in relation to Roizman's capacity in the English language and was not confined in the circumstances to the opinion of Dr Westmore. The record of interview was likely to be a reliable source for his Honour's opinion. I do not believe his Honour was bound to flag during the course of submissions that he may determine from his own observation of the applicant's capacity to speak English rather than prefer the opinion of Dr Westmore.
McCALLUM J: Jian Ping Wang and Alexandr Roizman seek leave to appeal against the sentences imposed on them after each was found guilty by a jury of an offence relating to dealing with the proceeds of crime. Wang was found guilty of an offence of dealing with the proceeds of crime to the value of $1 million or more being reckless as to whether the money was the proceeds of crime, contrary to s 400.3(2) of the Criminal Code 1995 (Cth). Roizman was convicted of aiding and abetting the commission of Wang's offence, contrary to s 11.2(1) and s 400.3(2) of the Code. The maximum penalty in each case was imprisonment for a period of 12 years and a fine of $79,200. Wang was sentenced to a term of imprisonment with a non-parole period of 6 years and 6 months and a balance of term of 3 years and 6 months, giving a total sentence of 10 years. Roizman was sentenced to a term of imprisonment with a non-parole period of 5 years and 6 months and a balance of term of 4 years, giving a total sentence of 9 years and 6 months.
Circumstances of the offences
The offences were committed as part of a sophisticated and carefully executed fraud perpetrated on the Commonwealth Superannuation Scheme. It is important to note, however, that the applicants did not participate in the fraud itself. On 24 December 2003, false banking directions were sent to the custodian of the funds of the scheme, JP Morgan, purportedly from the investment manager of the funds, State Street Global Advisors. With the assistance of an insider at JP Morgan, Mr Greg Bourchier, the false directions were purportedly verified by telephone, resulting in the transfer of AUD $150 million to four different bank accounts around the world, including the sum of HKD 175,624,839.38 sent to an account held with HSBC in the name of Hong Kong Power Limited. The fraudulent directions requested that the transfer to that account settle on 29 December 2003, evidently in anticipation of a lower risk of detection at that time of year.
The involvement of the applicants arose at the stage of laundering and retrieving the proceeds of the fraud. A number of people were involved in either the fraud itself or the intended laundering and retrieval of the money. The money that had been transferred to the Hong Kong Power account was made available on board a Macau-based casino boat named the "Omar III", to be used for playing baccarat. The applicants travelled from Australia to Hong Kong, boarding the Omar III on the evening of 29 December 2003. They exchanged the funds from the Hong Kong Power account for gambling chips whilst on board the boat. At the end of a night's gambling, they cashed in the chips. Receipts were issued to Roizman in the sum of AUD $16.7 million and another man involved in the laundering, Chan Wai Kong, in the sum of AUD $10.45 million. A total of AUD $3.43 million was lost as a result of the gambling.
On 30 December 2003, Roizman attempted to redeem the funds using the receipt issued at the casino. However, he was unable to do so, as the fraud had by then been detected and the funds frozen.
The learned sentencing judge's assessment of the nature and circumstances of the offences is conveniently summarised in the Crown's written submissions on the appeal. As there stated, the judge sentenced the applicants on the basis that each was responsible for providing the Hong Kong Power account details and putting at risk the whole of the funds transferred into the account (approximately AUD $30.58 million); that each dealt directly with the funds in his gambling, resulting in a loss of approximately AUD $3.43 million; and that in each case the offence involved a very substantial sum of money and the loss of a substantial part of that money.
The judge noted that the transfer of the funds into the Hong Kong Power account was the end-product of a sophisticated and carefully planned criminal enterprise, whilst acknowledging that the offenders were not themselves party to the actual fraud. His Honour noted, however, that without their participation as launderers, the fraud could not have been completed. His Honour inferred that, although any expected benefit was unknown, it must have been substantial. Acknowledging that the applicants were to be sentenced for what they did rather than how it might be described, the judge found that each played the substantial or primary role in respect of the laundering offence and that the moral culpability of each offender was high. His Honour described the offences as "a very serious instance of such an offence".
As to the roles and involvement of each offender, the judge made the following factual findings.
As to the applicant Wang, he was involved in obtaining the account details for the Hong Kong Power account (involving regular telephone contact with the applicant Roizman and another offender, Mr Dallas Fitzgerald) and making arrangements for boarding and gaming on the Omar III. He boarded the Omar III with a number of people including Roizman and played baccarat seated with Roizman over the course of eight or more hours using the funds that had been fraudulently transferred to the Hong Kong Power account.
He had meetings in Hong Kong including with Dallas Fitzgerald. At least one of those meetings was to discuss what had gone wrong after it became apparent that the funds had been frozen and were not able to be accessed. He met again with Dallas Fitzgerald upon his return from Hong Kong to discuss that issue. He lied about a number of matters when questioned by police upon his return to Australia. He knew the funds dealt with were the proceeds of crime.
As to the applicant Roizman, the judge rejected Roizman's version of events given at trial that a man named Sergei had invited him to Hong Kong and invited him to gamble with his money, threatening him upon his return to Australia to speak to no one. The judge found that Roizman had a clear idea of the amount of money involved in the trip, at least to the extent that he was aware of the amounts issued to him on the boat and the amount of the receipt issued at the conclusion of the gambling.
The judge found that Roizman was involved in obtaining the Hong Kong Power account details, having assisted Wang in that respect by consenting to be listed as the tenant on a property which was the address to which the account details had been faxed. After playing baccarat with Wang over the course of the night, Roizman was issued with a receipt in his name for HKD $95,924,000,000 (approximately AUD $16.7 million). He travelled to Macau where he attempted to redeem the funds recorded in the receipt but was unable to do so. He told a number of lies when interviewed by police and knew that the funds he was assisting Wang to deal with were the proceeds of crime.
Circumstances of the applicants
Wang had previous convictions including a conviction for making a false instrument, for which he was sentenced to imprisonment for a period of 3 years. The judge found that the prior convictions indicated a greater need for specific deterrence and deprived Wang of the degree of lenience to which he might otherwise have been entitled.
The applicant Roizman had a stronger subjective case, having been diagnosed in September 2002 with chronic myeloid leukaemia and depression following that diagnosis. Roizman had a subsequent conviction of an offence of obtaining a false passport which, although post-dating the offence, deprived him of a basis for claiming that he was of entirely good character. The detail of Roizman's medical condition is considered further below.
The judge found that neither applicant had shown contrition or remorse, since each continued to deny his guilt and that, in that circumstance, neither had any real prospect of rehabilitation.
Grounds of appeal relied upon by Wang
Grounds 1, 2 and 5 relied upon by Wang raise issues of disparity between the sentence passed on him and those passed on other offenders involved in the same undertaking. It is generally appropriate to deal with such a ground last, since it is brought on the premise that the sentence is otherwise appropriate: Pham v R [2009] NSWCCA 25 at [17] per Latham J; approved in Jimmy v R [2010] NSWCCA 60 at [251] per Campbell JA. Accordingly, I turn first to consider grounds 3 and 4.
Alleged denial of procedural fairness
Ground 3 is:
The applicant was denied procedural fairness in that the sentencing judge failed to warn those acting for him that he proposed to impose a sentence longer than that indicated during the proceedings on sentence.
The principles relevant to the consideration of that ground are not in dispute. It is well-established that an accused person is entitled to procedural fairness during criminal proceedings including, upon conviction, during the proceedings on sentence: Pantorno v R [1989] HCA 18; 166 CLR 466 at 473 to 474, [11] to [12] per Mason CJ and Brennan J; at 483, [12] per Deane, Toohey and Gaudren JJ; Weir v R [2011] NSWCCA 123 at [64].
The issue of what is required to be demonstrated in order to establish a denial of procedural fairness was considered by the High Court in a different context in Re Minister for Immigration and Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1. Relevantly for present purposes, it is clear that the applicant must demonstrate that he was deprived of an opportunity to advance submissions so as to result in unfairness in the procedural sense: see generally Lam at [29] to [34] per Gleeson CJ.
It is also clear that the content of the requirements of fairness may be affected by what is said or done during the proceedings: Lam at [34]. That is a critical consideration here. The premise of ground 3 is that the sentencing judge indicated during the proceedings on sentence that he would pass a sentence in the order of that passed on Chen. In my view, that premise is not established.
The applicant's argument on this ground may be summarised in the proposition that the Crown put forward the sentence imposed on Chen as the appropriate sentence to be imposed on Wang and that the judge did not foreshadow any inclination to view the matter otherwise. In my view, nothing in the submissions made on behalf of the Crown was such as to represent or concede that the exact same sentence should be imposed on each of the two men.
The first exchange relied upon by Wang occurred in the context of his application for bail following the jury's verdict of guilty. The Crown said in that context that the decision in Chen would be "a significant factor in establishing a tariff applicable to these two offenders". However, it is clear from the transcript that those remarks were made only to sustain the submission that a period of imprisonment was inevitable for both offenders, a consideration put forward as the Crown's basis for opposing bail (application book volume 1, page 21.21).
At the proceedings on sentence, the Crown submitted that "for the purpose of parity, the sentence imposed by her Honour (sic) Judge Marien in Jian Hua Chen ... is appropriate".
Counsel proceeded to identify points of comparison between the two offenders which might be taken into account in one direction or the other. In particular, he acknowledged that neither Wang nor Roizman had been involved in recruiting anybody, a factor differentiating Chen's role as being more serious. On the other hand, counsel noted that the fact that funds were actually lost could be taken into account "in the other direction".
I do not think anything in that exchange amounted to a concession by the Crown or a representation by the sentencing judge that, absent some indication to the contrary, Wang would receive the exact same sentence as Chen. His counsel had a full opportunity to respond to the propositions put by the Crown. He exercised that opportunity in the following exchange:
Spencer: Your Honour could I simply say this about Chen, and perhaps I should have said before.
His Honour: You'll need to be quick Mr Spencer.
Spencer: Chen is a principal, my client is not.
His Honour: Yes Mr Spencer.
Spencer: That's all there is to say Your Honour.
Those were submissions which his Honour was entitled to accept or reject, as he saw fit. I do not think there was any indication of the kind accepted in other cases (considered further below in the context of a similar ground relied upon by Roizman) that Wang would receive the same sentence as that passed on Chen. In my view, ground 3 is not made out.
Manifest excess
Ground 4 relied upon by Wang is that the sentence was manifestly excessive in all the circumstances. It was submitted that, with a maximum penalty of 12 years, a total term of imprisonment of 10 years was manifestly outside the appropriate range. Acknowledging the difficulty of making a comparative review of other sentencing decisions under s 400.3(2) of the Code, Wang submitted that more modest sentences were imposed in other cases involving a similarly significant amount of organization, planning and complexity, citing Ansari v R [2007] NSWCCA 204; 173 A Crim R 112; R v Van Dang Dran [2007] NSWDC 310; R v Wing Cheong Li; Wing Cheog Li v R [2010] NSWCCA 125; 202 A Crim R 195 and Regina v Z [2006] NSWCCA 342; 167 A Crim R 436.
The applicant submitted that the distinguishing feature in the present case is the amount of money involved. In my view, that submission overlooks the breathtaking brazenness of laundering such an enormous sum of money by gambling it over eight hours. Whilst I accept that the sentence imposed was a stern sentence, I am not persuaded that it did not fall within the proper sentencing discretion of the judge.
Grounds of appeal relied upon by the applicant Roizman
Roizman alleges disparity between his sentence and those imposed on others (grounds 2 and 2A in his appeal). Those grounds are addressed below, together with the disparity grounds relied upon by Wang.
Ground 1 relied upon by Roizman is:
that the sentence imposed was unduly harsh and severe.
The applicant sought to sustain that submission principally by reference to the JIRS statistics for principals under s 400.3(2), noting that there are no JIRS statistics for aiders and abetters. It was noted that the statistics show only ten persons dealt with under the section, of whom 80% were sentenced to imprisonment for 54 months or less, with only one person receiving a sentence in excess of 5 years. It was further noted that non-parole periods in the statistics range from 30 months to 7 years with 90% receiving a non-parole period of 36 months or less and only one person receiving a non-parole period of over 3 years.
I do not think that resort to the JIRS statistics establishes error in the present case. As noted on behalf of the Crown, it has been observed previously by this Court that the wide range of circumstances in which money laundering offences may be committed make comparisons with other cases virtually impossible and the sentences imposed in such cases of limited assistance: R v Wing Cheong Li; Wing Cheong Li v R at [40]-[41] per Barr AJ; Allsop P, Basten JA, McClellan CJ at CL and Simpson J agreeing at [1], [2], [3] and [6] respectively.
Probably the most comparable case for sentencing purposes is the decision involving the co-offender Chen considered below in the context of the parity grounds. Having regard to the matters there discussed, I do not think that decision establishes manifest excess in the sentence imposed on the applicant Roizman. It may be noted that, in Ansari v R at [130]-[148], allowing a Crown appeal, the Court expressed the view that a sentence of at least 9 years imprisonment would have been appropriate at first instance (in a case involving a significant sum but one which was substantially smaller than that involved in the present case and where there was no circumstance akin to the applicants' gambling or any resultant loss to others).
I am not persuaded that the sentence imposed on Roizman in the present case was outside the permissible range of the sentencing judge's discretion.
Ground 3 is:
that the sentencing judge erred in contravening the rule in De Simoni v R (1981) 147 CLR 383.
A similar ground was argued in the decision of this Court in Chen. The relevant offence in each case consists in dealing with money reckless as to whether the money was the proceeds of crime. As already noted, there is a more serious offence of dealing with the proceeds of crime believing the money to be the proceeds of crime, which carries a maximum penalty of 25 years imprisonment (s 400.3(1)).
In Chen, the sentencing judge found that the offender knew "right from the outset" that the enterprise involved dealing in illegally obtained money. It was submitted on that basis that his Honour had breached the principle arising from R v De Simoni [1981] HCA 31; 147 CLR 383 in that he took into account a fact that was relevant to an element of a more serious offence than that for the offender was being sentenced.
In considering that ground, Howie J said in Chen (at [23]):
But it is obvious that there is a more serious offence arising where a person dealing with money over $1 million believes that the money is the proceeds of crime, and such an offence carries a maximum penalty of 25 years imprisonment: see s 400.3(1). Even though recklessness of a circumstance as an element of an offence under the Code can be proved by actual knowledge of that circumstance, when sentencing for an offence under s 400.3(2) the distinction must be maintained between the less serious offence involving recklessness and the more serious offence involving belief, see Ansari at [131].
Roizman submitted that the sentence passed in the present case ignored those remarks and departed from sentencing on the basis of recklessness, taking into account elements of the more serious offence involving belief. Within that submission, it was acknowledged that the sentencing judge was well aware that Roizman had not been convicted of the more serious offence. However, it was submitted that the judge "nevertheless made a specific factual finding that the applicant was aiding and abetting Wang and knew that Wang was committing the offence. The sentencing judge also made a specific finding that the applicant did in fact know that the funds he was dealing with were the proceeds of crime."
It was on the strength of those findings that it was submitted the sentencing judge ignored the remarks in Chen.
It must be noted that the sentencing judge specifically referred to the remarks in Chen and faithfully recorded their tenor. His Honour said (ROS page 7) (dealing with the offender Wang):
However, the offender was not charged with the more serious offence provided by s 400.3(1) of the Criminal Code where it must be proved that the offender "believes" the money to be the proceeds of crime. In sentencing for this offence the Court must maintain the distinction between the more serious offence provided by s 400.3(1) and the less serious offence involved here, s 400.3(2), which requires proof of being "reckless" and has a maximum penalty provided of 12 years imprisonment: Ansari [2007] NSWCCA 204 at [131]; Chen [2009] NSWCCA 66 at [23].
In the face of those remarks, in my view the submission that his Honour ignored the principle there clearly stated is untenable. Ground 3 must be rejected.
Grounds 4 and 5 are:
4. That the sentencing judge erred in failing to distinguish the criminality of the offender from that of his principal.
5. That the sentencing judge erred in his assessment of the criminality of the applicant [Roizman].
The judge said (ROS page 10):
In relation to this matter, attaching a label to the role played by the offenders in respect of the offence each has been convicted of would not be a productive exercise. They should be sentenced for what they did rather than how it might be described: R v Olbrich (1999) 199 CLR 270. They played the substantial or primary role in respect of the offence. While each performed different acts, or participated in performing the same or similar acts, during the commission of the offence by them, and Roizman has been convicted on a charge of aiding and abetting Wang, the Court finds that there is no real utility in the circumstances in assessing their individual moral culpability as it is so alike as to not justify distinction. The moral culpability of each offender is high.
Roizman submitted that those remarks reveal that the judge ignored the distinction between principal and accessory. In my view it is plain that his Honour did not. He specifically referred to the fact that Roizman had been convicted on a charge of aiding and abetting but assessed the respective criminality of both applicants by determining what they actually did, concluding by reference to that yardstick that their individual moral culpability was indistinguishable. As submitted on behalf of the Crown, that was an appropriate and correct approach.
In order to determine whether the conclusion (that the individual moral culpability of the applicants was indistinguishable) was open to the sentencing judge, it is necessary to consider a series of individual points raised in Roizman's submissions in support of the contention under ground 5 that the judge overestimated Roizman's criminality.
First, it was submitted in paragraph 5(a) of the written submissions that the judge's overestimation of Roizman's criminality is revealed in his Honour's specific reference to the whole fraudulent undertaking involving $150 million, even though the Crown did not allege that either applicant was aware of the precise fraud or the total quantity of money involved.
It is clear that his Honour did not take that into account in assessing the criminality of the applicants. His Honour expressly noted that the applicants were not party to the overall fraud or to the transfer of funds into the Hong Kong Power account: see ROS at page 10.
Roizman further submitted at paragraph 5(b) of the written submissions that the judge wrongly rejected the proposition that Roizman was not aware of the actual sum involved and also wrongly rejected the proposition that there were probably more people laundering the money by gambling at the casino than just the two applicants. It is clear, however, that the judge gave proper regard to the limitations of the evidence on those issues. His Honour found (ROS page 8):
Roizman had a clear idea of the amount of money involved in his trip to Hong Kong, at least to the extent that he was aware of the amounts issued to him on the boat, that he gambled with, and that he had issued to him as a receipt.
The amount transferred into the Hong Kong Power account was approximately AUD $30 million. The balance left after the night of gambling was approximately AUD $27 million. The receipt issued to Roizman was in the sum of AUD $16.7 million. It is clear from his Honour's findings set out above that his Honour sentenced Roizman only on the basis of the amount issued in the receipt and whatever amount (unknown) was issued to Roizman in chips on the boat. The judge made no finding as to the number of persons recruited to launder the money by gambling on the boat. In any event, it is difficult to see how the involvement of others might lessen the culpability of the applicants, whose receipt of AUD $16.7 million at the conclusion of the night reveals on any analysis their having gambled with an extremely large sum.
Roizman further submitted at paragraph 5(ii) (presumably intended to be 5(c)) of the written submissions that it was not open to the judge to make the following finding, recorded at ROS page 10:
While the offenders were not party to the overall fraud and did not transfer any funds into the HK Power account they were responsible for providing the account details and putting at risk the whole of the funds transferred into the account, approximately AUD $30.58 million.
Allied to that was the further complaint at paragraph 5(c) of the written submissions as to the judge's finding (ROS page 8) that Roizman was involved in obtaining the account details in that he assisted his friend Wang by being listed as the tenant on the Pyrmont property to which the account details were faxed.
It was submitted that there was no evidence that Roizman was ever aware of the account details or that he provided them to anyone else. There is substance in that complaint. The Crown responded by noting that the judge found that Roizman was involved with obtaining the account details, since he assisted Wang by being listed as the tenant on the Pyrmont property to which the account details were faxed. In my view, that is a tenuous connection with Wang's conduct in obtaining the account details and it is does not answer the complaint of there being no evidence that Roizman provided the account details. Nonetheless, the sting of the conduct recorded in the judge's finding set out above was the fact that the fund was put at risk with a night of gambling.
Upon a consideration of the matters raised on behalf of Roizman, I am not persuaded that the sentencing judge failed to distinguish between the criminality of the two applicants or overestimated the criminality of Roizman's conduct. Whilst I accept that the judge has overstated Roizman's involvement in obtaining the account details, his Honour's findings were otherwise in accordance with the jury's verdict and open on the evidence. The acts for which Roizman was sentenced included travelling to Macau to board the Omar III, helping to gamble the Hong Kong Power funds, receiving the receipt in a substantial sum to enable the funds to be redeemed, returning to Macau and attempting to recover the laundered funds with the receipt.
In my view it was open to the judge to conclude that, notwithstanding some greater involvement on Wang's part in obtaining the account details and having more extensive communications with other co-offenders, Roizman's moral culpability was indistinguishable from Wang's and that the culpability of each was high. It is plain from the remarks on sentence that the principal factor contributing to that assessment was the laundering itself through a night of gambling with an extremely large fund. Ground 5 must be dismissed.
Ground 6 is:
that the sentencing judge erred in the way in which he dealt with Roizman's physical disability.
There was uncontested evidence that Roizman suffers from chronic myeloid or lymphocytic leukaemia. He was first diagnosed in September 2002. He was at the time of sentence and at the time of hearing the appeal waiting for a bone marrow transplant. The condition has no certain prognosis and is potentially fatal.
The judge considered the evidence on that issue and concluded (ROS at page 14):
Dr Brown makes no prognostication as to life expectancy. It is reasonable to expect that should a relapse occur which cannot be effectively treated that there would be serious consequences for the offender. However, it cannot be ignored that the offender committed the offence while fully cognizant of his illness.
Roizman submitted that his Honour was wrong to dismiss the effect of the condition on that basis. In so submitting, it was acknowledged that the judge observed (ROS page 17):
That is not to say that his state of health would not impact adversely on him while in custody nor that it is not a relevant consideration on sentence.
It was submitted, however, that those remarks were not reflected in the sentence imposed and that the important consideration was the ever-present risk that the offender's life would be untimely cut short.
However, as noted on behalf of the Crown, there was no evidence before the judge as to Roizman's life expectancy, nor any evidence to support a conclusion that there was a serious risk of imprisonment having a gravely adverse impact on his health.
The judge referred to the principles regarding the relevance of an offender's psychological and medical health outlined in the decision of this Court in R v Hart (NSWCCA unreported, 26 July 1999) where it was noted that such matters may increase the hardship of a sentence and be taken into account on that basis in determining the appropriate sentence, but that such consideration is limited by the need to maintain proper standards of punishment.
The judge's remarks on sentence reveal that his Honour gave consideration to those principles and considered the evidence as to the likely treatment Roizman would receive and the ultimate impact of those matters on the hardship of his sentence.
His Honour allowed a reduction in what was then regarded as the usual proportion between the non-parole period and the balance of term "to reflect the possibility that [Roizman's] health may make serving a term of imprisonment less comfortable than it might otherwise be" (ROS at pages 20-21).
I am unable to discern any error in his Honour's approach to that issue.
Grounds 7 and 8 are:
7. The sentencing judge failed to take into account the mental disability of the applicant.
8. The applicant was denied procedural fairness.
The procedural fairness point relates specifically to the judge's treatment of an aspect of the evidence of Dr Westmore, forensic psychiatrist. In his report dated 6 April 2010, Dr Westmore said:
This man will find incarceration a very difficult experience because of his age, his health problems and his poor English skills, which are causing him to become isolated within the prison population. His depression is also aggravating that particular problem.
In respect of that evidence, the judge said (ROS page 15):
To the extent that Dr Westmore referred to poor English skills I note that during the trial objection was taken to an electronically recorded interview with the offender being admitted in evidence. No interpreter was present or requested as the interview was conducted in English over approximately 75 minutes excluding breaks. I quote from the judgment dismissing the application:
The accused's ability to understand questions and respond in English supports a conclusion that the fact that an interpreter was not used did not in any way reflect the reliability of the admissions. His grammar may not have been perfect and he may on occasion have struggles with his English expression but this had no significant impact.
The Court does not accept that Dr Westmore has an accurate understanding of the offender's English skills.
Roizman submitted that, in light of a concession made by the Crown during the trial (that Roizman was not particularly familiar with English and required some concession and understanding that he may not have perfectly understood what he was being asked or the answers given) and further in light of the fact that the Crown did not contest Dr Westmore's assessment of Roizman's poor English skills and their likely contribution to the difficulties he would encounter during incarceration, the judge breached procedural fairness in refusing to accept Dr Westmore's understanding of Roizman's English skills without giving Roizman an opportunity to make submissions to the contrary.
As noted above in respect of the natural justice ground relied upon by Wang, the entitlement of an offender to procedural fairness during proceedings on sentence is well-established. The obligation may extend to putting an offender on notice if unchallenged evidence as to a matter in mitigation is not to be accepted: see R v Ryan [2003] NSWCCA 202; 141 A Crim 403 at [27] to [29] per Grove J; Ipp JA and Shaw J agreeing at [1] and [69] respectively.
In order to determine whether the applicant was deprived of an opportunity to advance submissions so as to result in unfairness in the present case, it is necessary to give careful attention to the way in which the issue unfolded in the present case. Before the trial commenced, the judge ruled on an application to exclude a record of interview between police and Roizman (application book volume 2, transcript of 9 February 2010 at T34.44). His Honour's reasons for admitting that material are not included in the application books. For present purposes, it is enough to note that, as revealed in his Honour's remarks on sentence, the record of interview was objected to on the basis that the interview was conducted without the benefit of an interpreter for Roizman and that his Honour was evidently not satisfied that this affected the reliability of the admissions made.
The proceedings on sentence were not heard until 30 July 2010, almost six months later. The evidence relied upon by Roizman included the report of Dr Westmore, set out above. The report was tendered by consent and was not the subject of any cross-examination by the Crown (transcript 30 July 2010 at page 18.40; application book volume 1 at page 35).
In submissions on sentence, counsel for Roizman read the passage of the report set out above and made the following submission:
As I said, I couldn't say it any better. It's a matter that your Honour can and will no doubt take into account in accordance with the sentencing. Thank you Your Honour.
That was the conclusion of counsel's submissions. The judge did not respond to the submission, calling next on counsel for the applicant Wang (transcript 30 July 2010 at page 24; application book volume 1 at page 41).
The extent of Roizman's English skills was an important premise of Dr Westmore's opinion that Roizman would find incarceration "a very difficult experience". It seems likely that his Honour's rejection of that premise undermined the force of the opinion in his Honour's assessment. His Honour made no further reference in the remarks on sentence to the isolation within the prison population which Dr Westmore considered was being caused by Roizman's poor English skills, a factor Dr Westmore considered was aggravated by Roizman's depression.
As revealed by the remarks on sentence set out above, his Honour's reason for rejecting the premise accepted by Dr Westmore was the conclusion his Honour had reached, almost six months earlier, as to Roizman's ability to understand questions and respond in English during the record of interview. It cannot be said that the connection between the extent of Roizman's ability in the English language for the purpose of determining the reliability of admissions and, separately, for the purpose of enduring a term of imprisonment in an English speaking jail is so obvious that counsel ought to have anticipated his Honour's reflection on that issue. In my view, with great respect to the sentencing judge, his Honour's failure to flag his inclination to reject a critical and uncontested premise of Dr Westmore's opinion amounted to procedural unfairness.
It follows, in my view, that there was a denial of procedural fairness. However, it is necessary to consider its significance. In the present context, the principles at common law as to the appropriate remedy for a denial of procedural fairness stand under the umbrella of s 6(3) of the Criminal Appeal Act 1912. The applicant submitted that the denial of procedural fairness caused a "practical injustice" in that he lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urged, citing Lam at [36] and Button v R [2010] NSWCCA 264 at [18].
Button was a case in which the sentencing judge had given a clear indication of a view that the appropriate non-parole period would be 12 months. The Crown had not sought to address on that issue. Inexplicably, after reserving his decision, the judge passed sentence with a non-parole period of 18 months. Applying the remarks of Gleeson CJ in Lam at [35] and [37], the Court held that the applicant had demonstrated a "practical injustice" and that the applicant was entitled to receive the sentence that had been accepted by the judge and the parties as an appropriate sentence in all the circumstances: at [18] per Latham J; Simpson and Kirby JJ agreeing at [1] and [2] respectively; see also Weir v R [2011] NSWCCA 123 where a similar argument was accepted on the strength of similar reasoning: at [68] to [80] per Garling J; Macfarlan JA and Johnson J agreeing at [1] and [2] respectively.
It is not necessary for present purposes to decide whether the judgment of Gleeson CJ in Lam imposes a requirement on an applicant to demonstrate an unfair outcome (or "resulting unfairness": cf Weir at [74]). For my part, I have always understood the Chief Justice's remarks to be directed to the need to establish practical unfairness in the procedure itself. His Honour's description of procedural fairness as an essentially practical concept, the concern of which is to avoid practical injustice, emerged from the recognition that the mere departure from a representation does not in itself demonstrate unfairness. That is not to say that I would disagree with the result in either Button or Weir. In each case, it was clear that the applicant had been deprived of an opportunity to advance submissions so as to result in unfairness in the procedural sense.
However, those were both cases in which the procedural unfairness in question was a departure from a representation as to the appropriate sentence. The position is different where the departure from the requirements of procedural fairness is a failure to foreshadow the rejection of uncontested evidence, as occurred in the present case. The determinative question is whether, on the assumption that the evidence had been accepted, it is demonstrated that a less severe sentence is warranted in law: cf s 6(3) of the Criminal Appeal Act. If that were established, it might be appropriate for this Court either to invite submissions on the issue as to which submissions were not invited below or to remit the matter for re-sentence on that premise.
However, where it can confidently be concluded that, even accepting the evidence rejected below, no less severe sentence is warranted, I do not consider it appropriate for this Court to intervene, notwithstanding the denial of procedural fairness. In my view, that is the position in the present case.
Ground 9 is that the sentencing judge erred in his finding on rehabilitation.
The judge said (ROS page 17):
Both offenders maintain their innocence, despite the verdicts in the circumstances of a strong Crown case. There is no real prospect of rehabilitation in the absence of an acknowledgment of the offending behaviour.
It was submitted on behalf of Roizman that that statement was wrong both in fact and in law. Specifically, Roizman submitted that his lack of significant offending both before and since the offence at hand should have militated against such a dogmatic statement.
I do not think the judge intended the statement as a proposition of universal truth. The remarks on sentence must be read for what they are, namely, his Honour's reasons, based on all of the material before him, for passing the sentences in question. The real issue is whether it was open to the judge to find that there was no real prospect of rehabilitation on all of the evidence before him. Whilst different conclusions might have been reached on that issue, I am unable to conclude that the finding his Honour articulated was not open on all of the evidence.
Alleged disparity with sentences imposed upon other offenders
In the absence of particular error or manifest excess in the sentences imposed, it remains to consider the grounds based upon alleged disparity.
Grounds 1 and 2 relied upon by Wang, which may conveniently be considered together, relate to the learned sentencing judge's consideration of the sentence imposed on another offender involved in the same fraudulent undertaking, Jian Hua Chen. Those grounds are as follows:
Ground 1:
His Honour failed to properly assess the moral and criminal culpability of the offending of Mr Wang, in comparison to a related offence, Mr Jian Hua Chen.
Ground 2:
The applicant is left with a justifiable sense of grievance given the sentence that was passed on Mr Chen.
Chen was sentenced by Judge Marien SC after pleading guilty to conspiring with others (including the applicants) to commit an offence under s 400.3(2) of the Code, the section under which the applicants were charged. The maximum penalty he faced was accordingly 12 years imprisonment and a fine of $79,200, the same penalty as was faced by the applicants.
The judge sentencing Chen indicated that he proposed to discount the sentence by 25% to reflect the plea of guilty entered at the earliest opportunity. His Honour would have imposed a total sentence of 8 years imprisonment but, after the discount, passed a sentence of 6 years with a non-parole period of 3 years and 7 months. The proportion of the non-parole period to the total sentence reflected what was then considered to be at the lower end of the appropriate sentencing pattern (but now see the decision of the High Court in Hili v R; Jones v R [2010] HCA 45 at [36] to [44]). His Honour's reason for bringing the non-parole period in at the lower end of that "pattern" was that the sentence imposed for the offence at hand was to be accumulated upon another sentence imposed for offences committed subsequently but dealt with first.
An appeal by Chen against that sentence was dismissed by the Court of Criminal Appeal: Chen v R [2009] NSWCCA 66.
Chen was involved in attempting to recover the funds which had been transferred to another of the four accounts the subject of the fraudulent banking directions in respect of the Commonwealth Superannuation Scheme. The funds in that account were frozen before any part of them was accessed and accordingly there was no loss from that account, a distinction noted by Marien DCJ. His Honour noted that Chen was not involved in any way with the removal of the funds from the Hong Kong Power account or the gambling at a loss of those funds.
As acknowledged on behalf of the Crown, Chen had recruited others to assist him and, in that respect, his offending was more serious than that of Wang or Roizman. Conversely, however, their offending involved a greater sum of money; involved the gambling of the funds for the purpose of laundering them through the gaming board on the Omar III and in fact led to a substantial loss.
Their conduct was otherwise relatively comparable. It appears that the other account had been established at Chen's request, a point of distinction from the present applicants pointing to a greater role on Chen's part. Conversely, each had obtained the details for the relevant bank accounts; liaised with other offenders in passing on that information and travelled to Hong Kong to assist with the recovery of the funds.
In considering the sentence imposed on Chen, the learned sentencing judge in the present case said (ROS page 19):
His Honour Marien DCJ sentenced Jian Hua Chen for conspiracy to deal with money to the value of $1 million or more being proceeds of crime contrary to s 400.3(2) and s 11.5(1) of the Criminal Code. Although a conspiracy offence it is the same offence as the court is now concerned with and the maximum penalty available is the same. The penalty imposed was imprisonment for 6 years with a non-parole period of 3 years and 7 months. Chen entered a plea of guilty at the earliest opportunity and remorse was taken into account. His offence involved an entirely separate account in Hong Kong and all of the transferred funds were recovered. He was found to be occupying a "position at least at mid level" in the organisational hierarchy of the conspiracy relating to the Lun Tun trading company account.
Marien DCJ in the circumstances determined a starting point of 8 years. An appeal on sentence by Chen was dismissed. Having considered that sentence I am of the opinion the offence committed by each of these offenders is objectively very serious and in each case involves a high degree of moral culpability. This matter requires the imposition of a more significant sentence than indicated by Marien DCJ's starting point to reflect that and to provide an appropriate sentence.
In dismissing Chen's appeal against sentence, this Court endorsed the judge's finding that the offence was above the middle range of seriousness and proffered the view that it was "well above": at [34] per Howie J; Beazley JA and Blanch J agreeing at [1] and [2] respectively.
Wang submitted that the judge erred in assessing Wang's criminality as being higher than Chen's. I do not accept that submission. The two respects in which Chen's offending was more serious were that it was he who requested that the account be established whereas in the case of Wang, bank account details were provided to him; and secondly that Chen recruited others in the undertaking whereas Wang did not.
Conversely, however, Chen did not obtain access to any funds at any point, whereas Wang gambled (along with Roizman and another) the Hong Kong Power fund over a period of eight hours resulting in a loss in the order of AUD $3.5 million. It was open to the judge to regard that as a significant point of distinction, as his Honour evidently did. Further, as acknowledged in Wang's submissions, Chen had the benefit not only of a plea of guilty but of a finding of remorse.
As to the sum of money involved and the fact that the Hong Kong Power fund suffered a loss, Wang submitted that, since the judge did not find that Wang knew the extent of the money involved, the total amount should not have resulted in his offending being assessed at such a high level. In my view, that ignores the significance of the fact that, over a period of eight hours, three men including Wang racked up gambling losses in the order of millions. The simple proposition reflected in the finding of the sentencing judge is that the law pays regard to consequences. I am not persuaded that error is established in respect of the judge's assessment of the applicant's criminality compared with that of Chen's. In my view, it was open to his Honour to assess those matters as he did.
As to ground 2, no further issue was raised in the submissions beyond those considered in respect of ground 1 above. I am not persuaded that the difference between the sentences imposed on Wang and Chen is such as to give rise to a justifiable sense of grievance on the part of Wang.
Ground 5 relied upon by Wang (added by leave at the hearing of the appeal) is:
That the applicant is left with a justifiable sense of grievance given the sentence that was imposed on [a person referred to as X], Jamieson Vincent, Thomas Anthony Vincent, Gregory Bourchier, Ernest Hufnagl and Barry Osbourne.
It is convenient to consider that ground together with grounds 2 and 2A relied upon by Roizman, which are that the sentencing judge erred in distinguishing or rejecting comparative cases and that the sentencing judge erred in failing to achieve parity.
Those grounds must be approached bearing in mind the significant limitations on reducing a sentence on the basis of that of a co-offender sentenced for a different offence. Some of the limits were identified by Campbell JA in Jimmy v R [2010] NSWCCA 60 at [203] (Howie agreeing at [246]; Rothman J agreeing at [270]) as follows (citations omitted).
1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them: Howard; Wurramarbra; Formosa
2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy: Gibson; Howard; Formosa
3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low: Armstrong; Diamond; Rexhaj; Isamundar
4. There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant: Krakouer; Pham; Woodgate. See also R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at [127]-[134]. However Nguyen stands as one example where that result arose.
As to four of the co-offenders identified in ground 5, I do not see any substance in the complaint of disparity. Thomas Anthony Vincent pleaded guilty to an offence of dishonestly causing a loss to a Commonwealth entity contrary to s 135.1(3) of the Code, which carries a maximum penalty of 5 years imprisonment. He was sentenced to a term of imprisonment of 3 years with a recognizance release order to operate after 2 years.
The circumstances attending the passing of sentence on Vincent are so different from those of the applicant as to render sensible comparison impossible. The applicant submitted that Vincent "pleaded guilty to a much less serious charge than any of the other participants in the enterprise and the agreed facts cast him in a more favourable light than did the evidence in other related proceedings". The lesser seriousness of the charge contributes to the difficulty of comparison: cf Jimmy at [203(4)]. The contention that the agreed facts cast Vincent in a more favourable light than the evidence in other related proceedings is not a proper consideration in assessing a parity ground. As carefully explained in Jimmy, such a ground is no warrant for the court to recalibrate the impact of the charges and evidence preferred by the Crown or the facts admitted by a co-offender to sustain a plea: at [203] per Campbell JA; at [247] per Howie J; at [267] per Rothman J.
Any comparison of the sentence imposed upon the applicant Wang with that imposed upon Vincent is further complicated by the fact that Vincent was, at the time he was sentenced, serving a sentence of 10 years with a non-parole period of 6 years for supplying a commercial quantity of prohibited drugs. The sentence passed on him in respect of the fraud was entirely concurrent with the existing drug sentence. Whilst the applicant complains that Vincent served no extra time for his significant involvement in the enterprise, the difficulty is that the need to apply the principle of totality in that circumstance further undermines the efficacy of any sensible comparison between the two sentences.
Gregory Bourchier, Ernest Hufnagl and Barry Osbourne each stood trial on a charge of conspiring intentionally and dishonestly to cause a loss to a Commonwealth entity, contrary to s 11.5(1) and s 135.4(3) of the Code. The maximum penalty for that offence is 10 years. Osbourne and Hufnagl were each sentenced to a term of imprisonment for a period of 5 years with a non-parole period of 3 years. Bourchier was sentenced to a term of imprisonment for a period of 5 years with a non-parole period of 2.5 years.
All were sentenced on the basis that they played an important but relatively limited role in the conspiracy. They had, between them, facilitated the transition of the fraudulent banking instructions which resulted in the sum of $150 million being transferred out of the superannuation scheme fund. Bourchier, an employee of JP Morgan, provided a legitimate copy of the form of instructions used between State Street Global and JP Morgan to transfer funds overseas from the superannuation account, together with some notes in relation to possible legitimate sources of those funds. Osbourne, employed by Telstra as a line serviceman, was recruited by Hufnagl to access the telephone exchange with a view to manipulating the telephone lines so as to enable the fraudulent instructions to be sent as if from State Street Global (in fact that was ultimately unsuccessful and that is how the conspiracy was uncovered). Hufnagl was an associate of Vincent and had the necessary communications with Osbourne.
The sentence judge said "I accept that in each case their roles were instrumental to the success of the conspiracy, but to the extent that it is necessary to make these findings towards the bottom in terms of the overall hierarchy". That is to be contrasted with the finding made in respect of the applicants in the present appeal that each "played the substantial or primary role in respect of the offence" (ROS at page 10).
The judge considered their sentences and concluded that they were of no assistance in relation to the consideration of the sentences to be imposed on the applicants (ROS at page 19).
A closer comparator may be found in the sentence passed on Jamieson Vincent, who pleaded guilty to an offence of conspiracy to deal with money to the value of $1 million or more reckless as to whether it was the proceeds of crime contrary to s 400.3(2) of the Code, the section under which Wang and Roizman were charged. Jamieson Vincent accordingly faced the same maximum penalty of 12 years imprisonment. He was sentenced to 3 years imprisonment with a recognizance release order to operate after 20 months.
At the time he was sentenced by Nicholson DCJ in November 2010, Jamieson Vincent was serving a term of imprisonment of 8 years with a non-parole period of 5 years for two counts of supplying a commercial quantity of ecstasy. His involvement in the Commonwealth Superannuation Scheme conspiracy was limited to acting as a messenger in the attempts of the co-offenders to collect the funds from the Hong Kong Power account. He was described by the sentencing judge as "a lowly player".
Perhaps the co-offender who may be seen to have got off the most lightly by comparison with the applicants is the offender referred to in the proceedings as "X". He was convicted after trial of the more serious offence of conspiracy to deal with money to the value of $1 million or more believing it to be the proceeds of crime (as distinct from the reckless as to whether it was the proceeds of crime) contrary to s 11.5(1) and s 400.3(1) of the Criminal Code. That offence carries a maximum penalty of 25 years imprisonment. X was sentenced to a term of imprisonment of 4 years and 8 months with a non-parole period of 3 years. Allowing for a discount for assistance to authorities, the starting point for his sentence was 7 years.
A significant point of differentiation as that X was aged 22 years at the time of the offence. His youth was an important consideration. The sentencing judge found that he was "a young man acting very stupidly" and that he had very good prospects of rehabilitation (ROS page 10).
Further, X was sentenced on the basis that the amount of money which might have been obtained had the enterprise been successful was limited to the sum of money in the Hong Kong Power account of over $20 million rather than the whole sum of $150 million transferred out of the superannuation compensation scheme. It was submitted on behalf of the applicant Wang that X was involved in the whole scheme but that does not appear to have been the approach taken by the sentencing judge.
In all the circumstances, I am not satisfied that either applicant should have a justifiable sense of grievance in respect of any of the sentences passed on any of the co-offenders. It follows, in my view, that the appeals must be dismissed.
For those reasons, the orders I propose in each appeal are that leave to appeal be granted but that the appeal be dismissed.
GARLING J: I agree that leave to appeal ought to be granted, and the appeals dismissed as proposed by McCallum J.
I do not share her Honour's conclusion, expressed in [78], that there was a denial of procedural fairness to the applicant Roizman. However, this disagreement, does not affect my agreement with the orders which her Honour proposes.
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Decision last updated: 14 February 2013
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