R v Z - [2006] NSWCCA 342

No judgment structure available for this case.

Reported Decision:
167 A Crim R 436

New South Wales

Court of Criminal Appeal

CITATION: Regina v Z [2006] NSWCCA 342

HEARING DATE(S): 2 March 2006

JUDGMENT DATE:
26 October 2006

JUDGMENT OF: Beazley JA at 1; Adams J at 102; Howie J at 136

DECISION: 1. Appeal allowed in part; 2. Set aside the sentence imposed by the trial judge in respect of Count 2 (the drug offence); 3. On Count 2 the respondent is sentenced to eight years imprisonment commencing on 28 June 2005 with a non-parole period of four years commencing from 28 June 2005 and expiring on 27 June 2009, the date upon which the respondent is eligible for release on parole.

CATCHWORDS: CRIMINAL LAW – money laundering – manifest inadequacy of sentence – importance of role as a facilitator – knowledge of seriousness of offence is a relevant factor – general deterrence - CRIMINAL LAW – importation of prohibited drug – manifest inadequacy of sentence – criminality – description of drug irrelevant to criminality – in circumstances, role of offender more important than time drugs in possession - JUDGE – reasoning process – necessary to understand remarks in totality - MENTAL ILLNESS – relevant to the sentencing process – to be weighed with all relevant factors – mathematical deductions from sentence inappropriate in a complex case - SENTENCING – concurrent sentences – appropriate where offences have common elements – inappropriate where offences are separate - SENTENCING – discount for assistance to authorities and plea of guilty – may be combined although not always appropriate to do so – focus is on totality - SENTENCING – discount for assistance to authorities – value of assistance – extent to which own involvement is honestly disclosed may be relevant

LEGISLATION CITED: Crimes Act 1914 (Cth) s 16A, 21E
Criminal Appeal Act 1912 (NSW) s 6(3)
Criminal Code 1995 (Cth) s 400.3(2)
Customs Act 1901 (Cth) s 233B

CASES CITED: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Channon v The Queen (1978) 33 FLR 433
Lauritsen v R (2000) 114 A Crim R 333; [2000] WASCA 203
Markarian v R (2005) 215 ALR 213; [2005] HCA 25
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v AEM [2002] NSWCCA 58
R v AMT [2005] NSWCCA 151
R v AMT [2005] NSWCCA 151
R v Anderson (1980) 2 A Crim R 379
R v Budiman (1998) 102 A Crim R 411
R v Cartwright (1989) 17 NSWLR 243
R v Chu [1998] NSWSC 568
R v El Hani [2004] NSWCCA 162
R v Engert (1995) 84 A Crim R 67
R v Fahda [1999] NSWCCA 267
R v Gallagher (1991) 23 NSWLR 220
R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540
R v Harb [2001] NSWCCA 249
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Israil [2002] NSWCCA 255
R v King (1985) 82 Cr App R 120
R v Klein (2001) 121 A Crim R 90; [2001] NSWCCA 120
R v Letteri (unreported, NSWCCA, 18 March 1992)
R v M [2005] NSWCCA 224
R v Mooney (unreported, VICCCA, 21 June 1978)
R v NP [2003] NSWCCA 195
R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381
R v Pang (1999) 105 A Crim R 474; [1999] NSWCCA 4
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Sukkar [2006] NSWCCA 92
R v Tae [2005] NSWCCA 29
R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Tsiaras [1996] 1 VR 398
R v Van Embden (2003) 140 A Crim R 403; [2003] NSWCCA 156
R v Wiskich (2000) 207 LSJS 431; [2000] SASC 64
R v Wright (1997) 93 A Crim R 48
Wong v R (2001) 207 CLR 584; [2001] HCA 64

PARTIES: Crown (Appellant)
Z (Respondent)

FILE NUMBER(S): CCA 2005/2455

COUNSEL: W Abraham QC (Appellant)
J Stratton SC (Respondent)

SOLICITORS: Commonwealth Director of Public Prosecutions (Appellant)
Legal Aid Commission (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0299

LOWER COURT JUDICIAL OFFICER: Graham DCJ

LOWER COURT DATE OF DECISION: 3 November 2005

- 41 -

CCA 2005/2455

BEAZLEY JA
ADAMS J
HOWIE J

26 October 2006

REGINA v Z

Headnote

Facts

The respondent, an Israeli national, travelled to Australia on 23 June 2004 for the purpose of assisting an international crime syndicate to transfer money, the proceeds of crime, out of Australia. Whilst in Australia, the respondent took delivery of 204,527 MDMA tablets weighing a total of 27.478kg and containing a pure quantity of MDMA of 16.86kg, being almost 33 times the prescribed commercial quantity. The respondent stated that he did not know what was delivered, only that it was either dangerous or illegal.

The respondent was arrested on 28 June 2004 and charged with an offence of conspiring to deal with money (the money laundering offence) and an offence of being in possession of not less than a commercial quantity of MDMA (the drug offence), pursuant to s 400.3(2) of the Criminal Code 1995 (Cth) and s 233B of the Customs Act 1901 (Cth) respectively. He pleaded guilty to both charges, and was sentenced on 3 November 2005 to 2 yrs fixed term of imprisonment for the money laundering offence and 5 yrs 2 mths imprisonment with a non-parole period of 2 yrs 7 mths for the drug offence, to be served concurrently.

The Crown appealed against sentence on the basis that it was manifestly inadequate on the following grounds:

Held per Beazley JA (Howie J agreeing):

Ground 1

(i) (Adams J agreeing on this point) The sentencing judge failed to have proper regard to the criminality of the offence. There was nothing in the evidence that suggested that the respondent did not have a full appreciation of the nature, extent and seriousness of the money laundering offence (and to a lesser extent the drug offence).

(ii) That MDMA is a mid-range drug is not a relevant consideration in assessing criminality. It is a description of the drug for the purposes of the legislative scheme.

R v Poon

R v Neale

(iii) The time in which an offender has possession of the prohibited import or goods may be less important than the role that the offender played in facilitating the transfer of the drugs or goods. This was such a case.

(iv) In all the circumstances, the sentence imposed on the drug offence was manifestly inadequate and the sentencing process miscarried.

(v) The respondent’s role as a facilitator in the money laundering was pivotal, and the trial judge erred in describing the respondent’s role as menial. In all the circumstances, the sentence imposed on the money laundering offence was manifestly inadequate and the sentencing process miscarried.

R v Klein

R v Budiman

(vi) In sentencing for more than one offence, a judge must fix an appropriate sentence for each before considering questions of accumulation, concurrence, and totality. Where there are two offences involving separate offending, concurrent sentences are usually inappropriate.

Pearce v The Queen

(vii) There was no evidence that the respondent’s mental condition resulted in his not understanding the seriousness of the offences. Having regard to the objective criminality and the need to make a strong statement, general deterrence should have been given considerable weight in respect of both offences.

R v Wiskich

(viii) (Adams J agreeing on this point) Courts should be wary of accepting psychiatric or psychological evidence in circumstances where the offender does not give evidence. However the sentencing judge had ample evidence to support his finding on the respondent’s mental state.

R v Qutami

R v Palu

(ix) Where mental illness does not constitute a defence, it remains relevant in the sentencing process. It may affect the emphasis placed on specific and general deterrence and the culpability of the offender, among other matters.

R v Israil

R v Tsiaras

R v Henry

Lauritsen v R

R v

Engert

Channon v The Queen

(x) If relevant, mental illness must be weighed with the complex interplay of all relevant factors involved in the sentencing process, in order to reach a conclusion as to the particular penalty that ought to be imposed.

R v Harb

R v Mooney

R v

Anderson

Markarian v R

R v Thomson and Houlton

R v Gallagher

Wong v R

(xi) (Adams J agreeing on this point) The trial judge erred in reducing the sentence by two years for mental illness. This was a complex case in which mathematical deductions were not appropriate.

(xii) A combined discount for assistance to the authorities and plea of guilty is often appropriate, however the test is whether, in all the circumstances, the sentence imposed is appropriate.

Thomson and Houlton

R v Van Embden

R v Cartwright

R

v Chu

R v Pang

R v Tae

(xiii) The combined effect of the discounts reinforces the miscarriage of sentencing discretion.

(xiv) When assessing the value of assistance to the authorities, it may be relevant to take into account the extent to which the offender honestly discloses their involvement in the crime. However this is not as significant a factor where the authorities have confirmed the value of the assistance.

(xv) The onerous conditions in which the respondent will serve his sentence, being in protective custody, warrant a discount for plea and assistance at the high end of the range.

R v Sukkar

(xvi) In accordance with principle, on re-sentence the appellate court should impose a sentence that is the lowest sentence that could have been imposed by the sentencing judge in the exercise of his sentencing discretion.

R v AEM

Held per Adams J (dissenting):

(xvii) Where there is a link reasonably thought to be present between the commission of the offence and the compromised psychological state of the offender so that the offender’s judgment about involvement is adversely affected, the psychological vulnerability is a relevant factor to be taken into account.

R v Wiskich

(xviii) It was open to the sentencing judge to conclude that the respondent suffered from a psychiatric condition and consequent impaired judgment. It was proper to therefore regard the respondent’s culpability as significantly reduced. However an offender’s psychiatric condition is but one of the factors relevant to culpability, and the resulting sentence is a matter of judgment, not calculation.

(xix) The sentencing judge’s conclusion as to the role of the respondent in the drug offence was open to him. Further, his Honour’s analysis of that role was correct.

(xx) In all the circumstances, in particular the respondent’s psychological state and circumstances of imprisonment, the sentence imposed (pre-discount) in relation to the drug offence was well within the discretionary range available.

(xxi) A global quantification of discounts is appropriate where other quantified discounts are to be given. The sentencing judge did not err in combining two discounts, as the method simplifies the mathematics and assists with transparency.

Thomson and Houlton

(xxii) The court should follow the approach to discounts as set out in R v NP. However that approach is inconsistent with Thomson (see (xxi) above) and is arbitrary and capricious. Where two discounts are given, they should not be applied successively. If the result is inappropriately lenient, an adjustment should be made and reasons stated.

R v NP

El Hani

(xxiii) Where quantification of the separate factors of an early plea and assistance to the authorities is practicable, it is desirable to separately indicate each factor.

El Hani

R v Gallagher

(xxiv) Given the substantial assistance given to the authorities by the respondent, the total discount was within sentencing discretion.

R v AMT

(xxv) In all the circumstances, the sentencing judge was not wrong to conclude the respondent’s role in the money laundering offence was menial.

(xxvi) Having regard to the subjective features of the case, including the respondent’s psychiatric condition, circumstances of imprisonment, the fact that the conspiracy to launder did not come to fruition, and the role of the respondent, the sentence imposed in the money laundering offence was not lenient.

(xxvii) The imposition of completely concurrent sentences suggests that the sentencing judge considered the offences were a single course of criminal conduct. However, in this case there should have been partial accumulation.

CCA 2005/2455

BEAZLEY JA
ADAMS J
HOWIE J
26 October 2006

REGINA v Z

Judgment

1 BEAZLEY JA: The respondent is an Israeli national. He arrived in Australia on 23 June 2004, travelling at the behest of an international crime syndicate so as to facilitate the movement of a large amount of money which was the proceeds of crime out of Australia. Whilst in Australia, he also participated in a major drug offence by warehousing 16.86kg (pure weight) of MDMA (ecstasy tablets). The respondent was arrested on 28 June 2004 and was charged with the following offences:

(i) an offence contrary to s 400.3(2) of the Criminal Code 1995 (Cth) (the Criminal Code ) in that between 23 and 28 June 2004 he conspired with others to deal with money of the value of $1 million or more (the money laundering offence); and

Customs Act

2 The maximum penalty for the money laundering offence is a fine not exceeding $79,200 or imprisonment for 12 years or both.

3 A “commercial quantity” of the drug MDMA as prescribed by the Customs Act is 500 grams. The maximum penalty for this offence is life imprisonment or a fine not exceeding $825,000 or both.

Background facts

4 The respondent travelled to Australia on 23 June 2004 on a flight from Hong Kong. Almost immediately upon arrival he attended the premises of Exchange Point Proprietary Limited (Exchange Point), a currency exchange business and met with Anzees Ansari, one of the proprietors of the business. Since July 2003, Exchange Point had been the subject of an investigation into alleged money laundering activities by a number of State and Federal agencies, including the Australian Federal Police (AFP), the Australian Crime Commission, the New South Wales Police and the New South Wales Crime Commission. The money laundering activities of Exchange Point centred on the concept of recycling money within each respective country of origin without any physical remittance or carriage of money to a partner remittance group overseas having to take place.

5 The authorities lawfully obtained extensive telecommunication intercepts during the course of the investigation. The respondent’s conversation with Anzees Ansari at Exchange Point was intercepted through an installed listening device. It was apparent from the conversation that the respondent and the proprietor knew each other and had had prior dealings. The respondent subsequently admitted as much during the course of an induced statement. The respondent informed the proprietor that on this occasion an amount of $2 million or more was involved and that it would take longer and involved more steps than on a previous occasion. The sentencing judge did not make any finding as to the respondent’s role in the money laundering operation. The evidence established that he was to have cash delivered to or otherwise left for him and he was to take that cash to the currency exchange business Exchange Point. The cash was going to be provided to him over a period of some weeks and it would seem on-delivered to Exchange Point as and when he received it.

6 The respondent booked into the Swiss Grande Hotel, Bondi Beach, hired a Holden Commodore Motor Vehicle and, using a false name, leased a mobile phone. Over the succeeding days, telephone conversations between the respondent, the proprietors and others, including persons overseas were intercepted by the police.

7 A Belgian national by the name of Kauwenberghs had arrived in Australia from Hong Kong on 30 May 2004. From 24 June 2004, his mobile phone service, that he had arranged upon arrival in Australia using a false name, was also the subject of lawful police intercepts. The trial judge accepted that it was likely that the respondent first made contact with Kauwenberghs on 24 June 2004. Thereafter, between 24 and 28 June 2004, the respondent had a number of telephone conversations with persons overseas as well as Kauwenberghs arranging for the delivery to him of the MDMA tablets.

8 Kauwenberghs delivered the drugs to the respondent on two occasions. The first delivery was on 26 June 2004, when Kauwenberghs placed 20.8kg of MDMA tablets in the boot of the respondent’s hire car, which was parked in the car park of the respondent’s hotel. The second delivery occurred the following day, 27 June 2004, when Kauwenberghs placed a further 6.7kg of tablets in the boot of the hire car, which was still parked in the hotel car park. Intercepts of telephone conversations between the respondent and Kauwenberghs revealed that the respondent knew, and in fact directed Kauwenberghs to arrange for the collection of the drugs, which were buried on a beach at Tuggerah on the Central Coast, approximately an hour and a half’s drive from Sydney and also directed him to place the drugs in the boot of the vehicle. Thereafter, the respondent made arrangements for the delivery of the drugs to others.

9 Both the respondent and Kauwenberghs were kept under observation during this period. Kauwenberghs was arrested on 28 June 2004 at Sydney International Airport, shortly prior to his intended departure from Australia. Later that afternoon, police executed a search warrant on the respondent’s hire car and, in the boot of the vehicle, found a sports bag containing 24 large plastic packs and two smaller white bags. Forensic examination of the contents of the bags revealed that they contained 204,527 tablets, weighing a total of 27.478kg. The offender was arrested about three hours later. As a result of a search of the respondent's hotel room, $15,000.00 in cash was located. Subsequent analysis of the drugs revealed a pure quantity of MDMA of 16.86kg or almost 33 times the prescribed commercial quantity.

10 On 11 April 2005, the respondent provided an induced statement to police. In that statement, the respondent indicated that his involvement with money laundering activities had commenced in September 2003 when he visited his nephew in Romania. His nephew introduced him to a group of people including a person named Roni who offered to pay the respondent to go to Australia to move money for him from Australia. The respondent agreed. Roni and his associates were involved in a major European narcotics syndicate.

11 The respondent travelled to Australia for that purpose on 3 October 2003. On Roni's instructions, he arranged the delivery of over $2 million to Exchange Point. The respondent then spent some time sightseeing prior to returning to Israel on 14 October 2003.

12 The respondent remained in contact with his nephew and on subsequent trips to Romania was introduced to other people whom, it would seem, were involved with or connected to Roni. In May 2004, Roni again offered the respondent a trip to Australia to carry out a similar operation as he had the previous October. He was offered $10,000 to carry out the task. The respondent agreed.

13 The respondent stated that in the days after his arrival in Australia, on instructions from his nephew Yossi, he met Kauwenberghs and took delivery of the drugs. He said however that he did not know what Kauwenberghs had left in the boot of his car although he knew it was either dangerous or illegal.

Sentence imposed

14 The respondent pleaded guilty to the money laundering and drug charges in the Local Court in April 2005. He was sentenced by his Honour Judge Graham in the District Court on 3 November 2005 as follows:

“(i) the money laundering offence: 2 years fixed term of imprisonment to date from 28 June 2004, expiring on 27 June 2006.

At the time of sentencing, the respondent asked the sentencing judge to take into account on a Form 1, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), an offence of having in possession property, namely cash in the sum of $15,000, reasonably suspected to have been unlawfully obtained contrary to the provisions of s 527(1)(c) of the Crimes Act 1900 (NSW). This was the money found in the respondent’s hotel room.

The appeal

15 The Crown appeals against the sentence on the basis that it is not appropriate in all the circumstances of the offences: see s 16A Crimes Act 1914 (Cth), in that it is manifestly inadequate. In essence, the Crown contends that the sentence:

1. Failed to adequately reflect the criminality of the offending.

2. Failed to adequately reflect the element of general deterrence.

3. Placed undue weight on factors personal to the respondent including the respondent’s mental condition.

4. Placed undue weight on the respondent's assistance to the authorities and the plea of guilty.

I will refer to these as the grounds of appeal.

Ground 1: the criminality of the respondent’s offending

General

16 Graham DCJ considered that having regard to the objective seriousness of the drug offence, a substantial prison sentence was called for. His Honour noted that the maximum sentence was life in prison but that the respondent’s offence did not call "for anything near that level of punishment”. He said, however, that given the weight and street value of the drug, there should be "a very substantial punishment, so that the message would be loud and clear that involvement in even this way, in relation to drugs such as Ecstasy, will lead to very substantial penalties”. His Honour considered therefore that the starting point for the sentence would be 15 years imprisonment.

17 The Crown submitted that the trial judge’s starting point of the sentence imposed for the drug offence of 15 years was too low. It submitted further that his Honour erred in imposing a two year fixed term for the money laundering offence and ordering that that sentence be served concurrently.

18 The initial purpose in the respondent coming to Australia was in fulfilment of the conspiracy to deal with the money. That was a well orchestrated operation in which the respondent understood clearly the task he was to undertake. Of itself it was a serious offence. The evidence does not disclose the circumstances in which the respondent first became aware of, or agreed to participate in, the activities involved in the drug offences. It is apparent, however, from the telephone intercepts that the respondent engaged fully and willingly in that offence once he became involved.

19 It was submitted on behalf of the Crown that the respondent clearly knew what he was doing and had full knowledge of the illegality involved in both offences. The Crown submitted that his Honour failed to address this factor.

20 In my opinion the criticism of the sentencing judge’s remarks is well based. His Honour was rightly concerned with the respondent’s personal circumstances and the trauma induced by the suicide bombing. His Honour then appeared to link the respondent’s wrongdoing with the coincidence of having visited his nephew in Romania and being drawn into offending at his nephew’s request. In my opinion, that reasoning fails to have proper regard to what is meant by criminal culpability. Whilst it appears that the respondent was financially and emotionally vulnerable at that point in time, there was no suggestion in the evidence that he did not have a full appreciation of the nature, extent and seriousness of his offending. This comment of course is made in relation to the conspiracy to deal with money laundering offence. However, there is nothing in the transcript of the telephone intercepts that indicates that the respondent was surprised, concerned, or cajoled into committing the drug offence.

21 The Crown further submitted that the offender’s culpability should have been assessed more stringently than it was by his Honour for the following reasons: the respondent did not give evidence and there was no other evidence which explained his role in the offences and his reasons for it; his Honour rejected the case advanced on behalf of the respondent of his minimal role in the drug offence and there were significant admissions on this question in the psychological report prepared by Mr Taylor – in particular, Mr Taylor did not address the respondent’s knowledge or extent of participation in the drug offence; Mr Taylor speculated as to the reason why the respondent became involved in the offences and the speculation was not supported by evidence; and finally Mr Taylor’s evidence relating to the respondent’s appreciation of the gravity of his offences was unsatisfactory. It was a separate and distinct offence, involving separate criminality from the conspiracy to deal with money offences.

22 His Honour's reasoning in relation to the role that the respondent played in the drug offence was as follows:

"In one sense, the offender's connection with the possession of the drugs was somewhat tangential or marginal. He had possession of the drugs over a fairly short period of time, a matter of a couple of days at most. His entry into possession was unexpected in the sense that that was not the reason he came to Australia; … A fair proportion of the period of time during which he was in possession of the drugs was because they were in a car which he had hired and, thus, while within his dominion and control, were not under his actual physical control in the sense that he had them with him at all times. Those are appropriate factors to be taken into account in assessing the overall criminality involved in this matter … By warehousing the drugs, that is by arranging for their receipt and disposal, and warehousing during that period between delivery and further passing on, the offender was playing a significant role in the movement of drugs reasonably suspected of being prohibited imports. He was not, however, a person who could be regarded as being at the upper echelons of the organisation."

23 It should also be noted that his Honour made reference to this being a mid range drug. However, this is not a relevant consideration in the sentencing process. Rather, it is a description of the drug for the purposes of the legislative scheme: see R v Poon (2003) 56 NSWLR 284 per Ipp JA at 289-290; followed by R v Neale (2004) 148 A Crim R 493 at 510-511. It is not clear whether his Honour treated the respondent’s criminality as less serious because this was a mid range drug, although it is possible that he did so because the comment otherwise had no relevance to this part of the sentencing process.

24 The Crown submitted that although his Honour had correctly found that the appellant played a significant role in the movement and warehousing of the drugs he failed to give appropriate weight to his role because of what his Honour described as his "tangential or marginal connection". It was further submitted that his Honour failed to give recognition to the approach that the Court has consistently said should be taken to couriers and other intermediaries in serious crimes such as was involved in the drug charge: see R v Klein (2001) 121 A Crim R 90; [2001] NSWCCA 120; R v Budiman (1998) 102 A Crim R 411.

25 On one reading of the Remarks on Sentence, his Honour does minimise the respondent’s criminality. This is apparent, not only from his comment that the respondent's role was "somewhat tangential or marginal", but also from the manner in which his Honour dealt with the time during which the appellant was in physical possession of the drugs. In my opinion, the time in which an offender has possession of the prohibited import or goods is, or at least may be, less important than the role that the offender played in facilitating the transfer of the drugs or goods. This was a case where the respondent's role in facilitating the transfer was far more significant than the actual time in which he had possession of the drugs.

26 On the other hand, there was his Honour's acceptance that the respondent's role was significant. This comment appears to have been connected to the fact that what was involved was a very large quantity of drugs, almost 17kg of mid range drugs with an estimated street value in excess of $8 million.

27 Care must be taken when considering a sentencing judge's Remarks on Sentence not to overanalyse the reasoning process. This is particularly so when it is apparent that the sentencing judge is revealing a reasoning process as part of a continuum of thought. His Honour's reasons are, in my opinion, of that character. Accordingly, it is necessary to understand the remarks in their totality rather than pointing to isolated words, or phrases, or passages, that may appear to be inconsistent with other passages. The essential task at the end of the day is to determine whether the sentencing process miscarried either because of some specific error or more relevantly when considering a ground such as the present, because the sentence imposed was either manifestly excessive in the case of an appeal by an offender, or manifestly inadequate in the case of a Crown appeal.

28 In my opinion, the sentence imposed upon the respondent in respect of the drug offence was inadequate. The statutorily defined commercial quantity of the drug is 500 grams. The quantity of drugs involved here was nearly 33 times that much. The respondent was a willing participant in the criminal activity involved in warehousing the drugs. It is apparent from the telephone intercepts that he was knowledgeable as to what was involved, and compliant with instructions. The maximum penalty for the offence is life imprisonment. A commencing point of 15 years was manifestly inadequate. There is then the separate question of the impact that the various reductions and discounts that his Honour applied to the sentence, to which I will turn shortly.

29 The Crown further complains that the sentence imposed on the money laundering charge was also manifestly inadequate.

30 The Crown points to the role that the respondent played in the process describing it as critical, notwithstanding that the respondent was acting at all times on instructions. I agree that that is an accurate description of the role that the respondent played in the money laundering offence. It was also apparent from the content of the intercepted conversation when the respondent attended at Exchange Point on the day he arrived in Australia that this was not the first of such offences that had been committed by the respondent in Australia. The respondent also made an admission to that effect in his induced statement. There did not appear to be any dispute before his Honour that the respondent’s admission could be used in the sentencing process as evidence that this was not the first time that the respondent had committed some such offence. These factors are sufficient of themselves in my opinion to demonstrate that the sentence was manifestly inadequate.

31 His Honour dealt with the money laundering offence in brief terms stating at 46, that:

menial role

32 As I understand his Honour's remarks, his Honour made the same deductions from this sentence as he did from the sentence imposed in respect of the drug offence. That appears to be the meaning of his words: "without going through the mathematics of it again". That was an available approach to the sentence, particularly where, as in this case, the assistance given related to both offences. It is an approach that should be adopted by this Court in its re-sentencing. It was an error, however, to downplay the respondent’s role. In my opinion, a person who engages in activities such as were revealed from the telecommunications intercepts cannot be described as a menial player. Rather, his role as a facilitator of the transactions was pivotal. Having regard to the amount involved, and the intricacy of the operation, it is apparent that the respondent was a well trusted intermediary. I have already referred above to the authorities that deal with the approach that is taken by the courts towards such offenders.

33 If I am correct in thinking that his Honour applied the same discounts to the sentence imposed in respect of this offence, then the commencing sentence was five years. In my opinion, such sentence does not reflect the respondent’s criminality and the role that the respondent’s psychiatric condition played in his offending does not compel any other conclusion.

34 The principal submission that was made on behalf of the respondent under this ground was that the money laundering offence was very much a part of the same course of conduct as the drug offence and that the Crown had acknowledged as much in the submissions Graham DCJ. The respondent contended that given that what was involved was a single course of offending there was no error in his Honour having made the sentences concurrent. In this regard, reliance was placed upon the statement in R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540 where Simpson J said at (7):

"Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion, to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrent sentences) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong."

35 In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, McHugh, Hayne and Callinan JJ dealt with the approach required when an offender was being sentenced for more than one offence. Their Honours pointed out at [40] that it is wrong to punish an offender twice when the elements of the two offences are common. That said however, their Honours pointed out at [45] that “a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and thence consider questions of accumulation or concurrence, as well … as questions of totality”.

36 In Pearce, their Honours considered that it was likely for there to have been error in making the sentences in that case wholly concurrent “in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count”. In that case, the offender had been charged with two offences, one of inflicting grievous bodily harm and one of breaking and entering a dwelling house and of inflicting grievous bodily harm. The offences arose out of a single incident. The Court held that the trial judge had erred in imposing concurrent sentences.

37 In this case, having regard to the order in which his Honour sentenced the respondent, the question of whether the sentences were appropriately made concurrent arises in relation to the sentence imposed for the drug offence.

38 Although the Crown, in its written submissions to the trial judge acknowledged that the offences before the court formed part of the same course of conduct in did so in the sense “that the offender appears to have arrived in Australia with the intention of facilitating the money laundering exercise and in the course of so doing was to assist in the warehousing and distribution of a large quantity of MDMA” (emphasis added). Notwithstanding the Crown’s ‘acknowledgement’ I am of the opinion that the offences were not part of the same offending notwithstanding the overlap in the time at which they were committed and the commonality of some at least of the personalities involved. The nature of each offence is entirely different; the respondent agreed to participate in each at different times; neither offence, of its nature, has any connection with the other; nor was there any evidence in this case that there was an actual connection between the two. Although his Honour imposed concurrent sentences, it is apparent from his Remarks on Sentence that his Honour treated them as separate offences. Indeed, even the Crown in the ‘acknowledgement’ to which I have referred did not submit otherwise than that there were separate and distinct offences. The Crown’s acknowledgement related to the contemporaneity of the offending. There was no indication in the submissions on the sentence hearing that the respondent contended otherwise and there is nothing in the evidence to support the contention now made on behalf of the respondent. I should only add that in oral submissions before the Court the Crown’s position was that there was separate offending (appeal transcript 9).

39 Given that there were two offences involved separate offending, his Honour failed appropriately to give effect to the principles in Pearce. For those reasons I am of the opinion that his Honour erred in making the sentences concurrent. Even if the offending could be characterised as a single course of offending that would not dispense with the requirement to sentence separately for each offence: see R v AEM [2002] NSWCCA 58.

40 It is convenient to next deal with Ground 3.

Ground 3:

Factors personal to the respondent: the respondent's mental condition

41 The respondent has a diagnosed condition of post traumatic stress disorder (PTSD) and associated depressive condition as a result of being involved in an horrific suicide bomb incident in Israel in January 2003. The respondent's condition is at best not assisted, and at worse aggravated, by his isolation from his family in Israel, his poor English skills and by being on protection. His conditions on protection are particularly onerous. As is usually the case, by being on protection he does not have easy access to jail resources. He must be escorted everywhere and personnel resources are such that escorts for protection purposes are given low priority so that he sometimes has to wait for lengthy periods to go anywhere. This restricts his mobility within the jail so that he is often unable to undertake simple activities such as going to the oval, accessing the library, or going for a haircut. His emotional state has deteriorated considerably in the 12 months prior to sentence.

42 It appears that the respondent was initially placed on protection because he had undertaken military service in Israel. Graham DCJ noted that that "made him something of a target for other prison inmates who might regard service in that respect as warranting extra-curial punishment". His Honour accepted that the need for protection would also be necessary having regard to the respondent’s offer to give evidence in accordance with the material in the Crown brief.

43 There was an issue on the sentencing hearing as to the causative role that the respondent's mental condition has had in his offending. The respondent's case was that his judgment had been seriously impaired by his condition and that this had led to his offending.

44 Both the respondent and the Crown called expert evidence on this issue. Graham DCJ preferred the evidence of Mr Taylor, psychologist, called on behalf of the respondent to that of Dr Wilcox, psychiatrist, who had assessed the respondent on behalf of the Crown. His Honour concluded that the respondents offending was brought about by his impaired judgment and that that impairment was the manifestation of the symptoms of his psychiatric conditions of PTSD and associated depression. His Honour found that it followed from that finding that it was more likely that the respondent’s contention as to his role in the organisation, namely that he was a person who had been able to be used by the organisation and that he was not seriously involved at an organisational level, was likely to be correct. His Honour considered that this view was supported by the fact that the respondent was clearly dependent upon the organisation for financial support during his stay in Australia. His Honour found that the respondent’s role in warehousing the drugs, that is by arranging both for their receipt and disposal, was such that he was playing a significant role in the movement of the drugs. He found however that the respondent was not a person in the upper echelons of the organisation, but rather was subject to instructions from others.

45 The Crown submits that there were significant limitations in the evidence as to the effect that the respondent’s mental state played in the offending. In particular it was submitted that the Court should be wary of accepting psychiatric or psychological evidence in circumstances where the offender does not give evidence, for the simple reason that the Court was then reliant upon an uncontested history given though a third person. The authorities support this submission: see R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58], [59] and [79]; R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381 at [40]. However, in this case, the Court had ample evidence from the respondent’s wife and brother as to the effect that the suicide bombing had had upon the respondent, how he had been unable to function properly either in his personal or business life as a result and the consequent financial difficulties that that had caused. In my opinion, his Honour was entitled to form the views he did on this question.

46 The Crown further contends that his Honour erred in determining that the respondent's mental condition justified a substantial reduction in sentence. In that regard, his Honour considered that "something in the order of 10 per cent to 15 per cent would be appropriate”. His Honour gave effect to this consideration by reducing the starting point of the sentence to 13 years, being a reduction that his Honour made "before considering the various other factors which are important to be taken into account in sentencing".

47 The Crown contended that there is no precedent for reducing the sentence in the manner that his Honour did. Counsel for the respondent conceded that this approach by his Honour was novel although not erroneous.

48 In circumstances where mental illness is not sufficient to constitute a defence, it remains a relevant consideration in the sentencing process. Typically, its relevance relates to the emphasis that will be given to deterrence: see R v Israil [2002] NSWCCA 255, in which Spigelman CJ noted at [18] and [22] that mental illness may mean that a court will place less emphasis on both specific and general deterrence. In R v Tsiaras [1996] 1 VR 398 at 400 the Victorian Court of Appeal said that “specific deterrence may be more difficult to achieve and is often not worth pursuing as such” where the offender is affected by a serious mental illness. In Israil, Spigelman CJ pointed out, however, that the relevance of mental illness in the sentencing process extends beyond the questions of general and specific deterrence. His Honour said at (23):

“To the extent that mental illness explains the offence … then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law.”

49 This principle has been recognised and explained in numerous appellate decisions of this and other Australian appellate courts. In R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 Wood CJ at CL said at [254], in a comment endorsed by the Chief Justice in Israil:

“… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make a reasoned or ordered judgment. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing.”

50 There are other matters that are relevant to the sentencing process when a person is affected by a mental illness. They include the level of danger that the offender presents to the community; questions of appropriate rehabilitation: see Lauritsen v R (2000) 114 A Crim R 333; [2000] WASCA 203 per Malcolm CJ at 48; and the fact that a custodial sentence may weigh more heavily on a mentally ill person: see Tsiaras at 400; Israil at [26].

51 In R v Harb [2001] NSWCCA 249, this Court was concerned with the extent to which the mental illness of the appellant, who had a diagnosed psychiatric condition of schizophrenia, should have played in the sentence imposed. The Crown submitted that in circumstances where the offender’s culpability in relation to the commission of an offence was reduced by reason of mental illness, the moderation in the sentencing exercise was limited to the giving of lesser weight to general deterrence. It was submitted that there ought not to be a reduction in the sentence as such. Smart AJ (Howie J and Matthews AJ agreeing) said at [36] that that submission stated the relevant principle too widely. His Honour accepted that in the case of mental illness, general deterrence was usually of little weight in the case of an offender suffering from a mental disorder because such offender was not an appropriate medium for making an example to others: see R v Wright (1997) 93 A Crim R 48 at 50-51. However, his Honour went on to explain that it was well established that the existence of a mental illness was not so confined and that such a condition had to be weighed with the complex interplay of factors that were involved in a sentencing process.

52 In R vEngert (1995) 84 A Crim R 67, Gleeson CJ pointed out that even where it was found that an offender’s mental illness was causally connected with the offence for which he was being sentenced, it did not automatically follow that the sentence would be reduced. His Honour pointed out the reverse proposition was also true, namely that the absence of a causal connection between a mental condition and the offence did not automatically result in the offender receiving a lesser sentence. His Honour demonstrated his point by indicating that it might be the case that in relation to a particular offender less weight ought to be given to general deterrence in respect of the offence in question but greater weight might need to be given to specific deterrence or the need to protect the public. Gleeson CJ reiterated these views in Wright.

53 A like approach to that stated by Gleeson CJ in Engert was stated in Channon v The Queen (1978) 33 FLR 433 where Brennan J said at 436-437:

“… factors which affect the sentence give differing significance to an offender’s psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe.”

54 As Smart AJ intimated in Harb, the consideration of the effect that ought to be given to mental illness in a particular case is not approached in the first instance by following a checklist of considerations such as weight to be given to particular deterrence. Rather, as was stated by Young CJ in R v Mooney (unreported, VICCCA, 21 June 1978):

“The question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate. Whether the offender’s responsibility for the offence should be regarded as having been reduced.”

R v

Anderson

55 This approach has been endorsed by this Court in a number of cases including R v Letteri (unreported, NSWCCA, 18 March 1992) per Badgery-Parker JA, Gleeson CJ and Sheller JA agreeing; Engert per Gleeson CJ; R v Fahda [1999] NSWCCA 267.

56 In Tsiaras, the Victorian Court of Appeal stated that serious psychiatric illness not amounting to insanity was relevant to sentencing in at least five ways: first, it might reduce the moral culpability of the offence, being a legally distinct consideration from the offender’s legal responsibility; secondly, it might be relevant to the sentence that ought to be imposed and the conditions under which it should be served; thirdly, often such an offender was not an appropriate vehicle for general deterrence, regardless of whether the illness played a part in the commission of the offence; fourthly specific deterrence likewise may need to be given less weight in a particular case; and fifthly a psychiatric illness may mean that a given sentence will weigh more heavily on a person than would be the case of a prisoner not so affected.

57 The Court said that in relation to the first of these factors, the mental illness:

“affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective”.

58 Graham DCJ found that the objective seriousness of the offence was such that a substantial prison sentence was called for. He considered that weight had to be given to general deterrence reflected in:

“very substantial punishment, so that the message [to the community] would be loud and clear that involvement in even this way, in relation to drugs such as Ecstasy, will lead to very substantial penalties”.

59 His Honour then dealt with the impact of the respondent’s post traumatic stress disorder on his offending. His Honour said (at 38):

“the culpability of the offender and, hence, the appropriateness of his case, for the purposes of general deterrence, is however diminished by the impairment of his capacity for judgment stemming from his post-traumatic stress disorder”.

60 His Honour noted that this was not a case where the offender was psychotic and delusional. Rather he considered that the respondent’s post-traumatic stress disorder diminished his capacity for judgment which, he said, should result in a diminution of sentence, somewhere in the midpoint of cases where a psychiatric condition would justify a substantial reduction in sentence. On that basis he considered that 15 per cent reduction would be an appropriate measure for that purpose.

61 The Crown submits that his Honour’s approach was flawed and that it was an error to reduce the sentence by a specific amount or percentage by reason of the respondent’s mental condition. It was submitted that a mathematical deduction of the type applied by his Honour was, guideline decisions aside, contrary to the proper approach to sentencing that recognised that the purposes of punishment included a range of objectives, some of which overlapped and some of which were conflicting, and all of which needed to be brought together in what has been described in this area of jurisprudence as an “instinctive synthesis”: see R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [55]; R v Gallagher (1991) 23 NSWLR 220 at 227; Wong v R (2001) 207 CLR 584; [2001] HCA 64.

62 In Markarian v R (2005) 215 ALR 213; [2005] HCA 25, the High Court was asked to declare that the instinctive synthesis approach to sentencing represented the law in Australia. The instinctive synthesis approach is used in contrast to what is described as a two-tier approach. In the latter approach the sentencing judge first determines the “starting point” of the sentence (the “first tier”) that it is considered ought to be imposed having regard to the objective circumstances of the case. The second step or “second tier” of the process involves the sentencing judge reducing the “hypothetical sentence incrementally or decrementally” by other, usually subjective, factors: per McHugh J at [51].

63 The Court refused to make such a general declaration of sentencing principle, holding that a universal rule could not be stated in those terms. Rather, Gleeson CJ, Gummow, Hayne and Callinan JJ in their joint judgment said that the current approach to be taken by sentencing courts was to weigh all relevant factors so as to reach the conclusion as to the particular penalty that ought to be imposed: see Wong at 611-612. Significantly for the purposes of this case, their Honours said at [39]:

Wong

sentencing courts may not add and subtract item by item

64 Their Honours accepted that there will be some cases in which an arithmetical approach is permissible particularly when to do so makes the reasoning of the sentencing judge transparent and accessible. However, they found that in the case they were considering, that was not an appropriate approach because of the number and complexity of considerations involved.

65 McHugh J restated his preference for the instinctive synthesis approach: see AB v The Queen (1999) 198 CLR 111; [1999] HCA 46. As he said at [65]:

all

66 McHugh J also discussed the circumstances in which it was appropriate to give a particular discount for some aspect relevant to the sentencing process. He said at [74] that the instinctive synthesis approach was not inconsistent with giving specific discounts for certain matters in the sentencing process:

“… provided that [the] discount relates to a purpose distinct from a sentencing purpose. The distinction between permissible and impermissible quantification of ‘discounts’ on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice.”

67 In his Honour’s view, the giving of the discounts was to be confined to “one – maybe two – factors” in a particular sentence that was also categorised other than a sentencing goal (at [74]).

68 Kirby J dissented in the appeal. He acknowledged however, at [133], that there was no single or correct sentence and also that sentencing was “not a mechanical, numerical, arithmetical or rigid activity in which one starts from the maximum fixed by Parliament and worked down in mathematical steps”. His Honour also recognised the multitude of factors that needed to be taken into account so that the evaluation of the appropriate sentence was necessarily imprecise and in respect of which judges could have differing views. His Honour found that in that case it was not an error of sentencing principle for the sentencing judge to proceed in one or more stages.

69 In my opinion, Graham DCJ’s approach in reducing the sentence by two years for the effect of the respondent’s mental illness was contrary to the principles stated in the joint judgment in Markarian to which I have referred. This case was complex for a number of reasons, not the least of which was the extent to which the respondent’s mental illness impinged upon his culpability for the offence. But there were many other factors that required consideration, including the extent to which the respondent had attempted to minimise his own culpability, his conditions of imprisonment, and the objective seriousness of the offence. This was not one of those cases referred to in the joint judgment where mathematical deductions were appropriate. In my opinion for this reason alone his Honour erred. His Honour’s approach was also contrary to each of the approaches indicated by McHugh and Kirby JJ.

Ground 2: General deterrence

70 Further, to the extent to which his Honour purported to deal with the respondent’s mental illness as part of his consideration of the weight to be given to general deterrence in this particular case, I am also of the opinion that his Honour gave only lip service to the need for general deterrence and in fact appropriated that consideration inappropriately. In my opinion, there was nothing in the respondent’s mental condition that warranted his Honour’s approach. Although his Honour accepted that there was a causal relationship between the respondent’s mental condition and his offending, there was no evidence that the respondent thereby did not understand the seriousness of the offences in which he had agreed to participate. Having regard to the objective criminality involved and the need to make a strong statement to those who might be tempted to engage in similar offending general deterrence should have been given considerable weight in respect of both offences. As Martin J said in R v Wiskich (2000) 207 LSJS 431; [2000] SASC 64 at [62], in relation to the significance of a mental disorder to general deterrence:

“A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct … if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration …”

71 Further, his Honour failed, seemingly, to have regard to the need for specific deterrence given the objective criminality involved and the absence of evidence by the respondent of his role in the offences and his reasons for it. In this regard, the Crown pointed out that his Honour rejected the case advanced on behalf of the respondent of his minimal role in the drug offence; and there were significant omissions on this question in the psychological report prepared by Mr Taylor; in particular, Mr Taylor did not address the respondent’s knowledge or extent of participation in the drug offence; Mr Taylor speculated as to the reason why the respondent became involved in the offences and the speculation was not supported by evidence; and finally Mr Taylor’s evidence relating to the respondent’s appreciation of the gravity of his offences was unsatisfactory.

72 There is some merit in the Crown’s complaint. However, it is not necessary to engage in any detailed analysis of these complaints. I have reached the conclusion that his Honour’s approach in reducing the sentence by two years, approximately 13½ per cent, because of the respondent’s mental illness was itself an error of such nature as to warrant this Court to set aside the sentence.

Ground 4: Plea of guilty and assistance to the authorities

73 The respondent’s plea of guilty was not formally entered until April 2005, almost 12 months after his arrest, and many months after the Crown brief had been delivered. However, in the interim, the respondent’s legal representatives had indicated to the authorities that the respondent was prepared to provide assistance to them and the formalities involved in that process took some time. Accordingly, his Honour considered that the respondent should receive the benefit usually accorded when a plea was offered at the earliest practical opportunity and thus discounted the sentence that he otherwise would have imposed by 25 per cent: see Thomson and Houlton at 419.

74 The Crown does not complain about his Honour's finding in this regard or about the discount applied. Rather, the complaint relates to the additional discount of 35 per cent that his Honour gave for the assistance the respondent provided to authorities.

75 I have already referred to the fact that the respondent made an induced statement in which he not only made admissions about his own conduct but also provided information about other persons, both in Australia and overseas, involved in the money laundering offence. The respondent also signed a s 21E Notice (pursuant to s 21E of the Crimes Act 1914 (Cth)) in relation to evidence that he was prepared to give in court proceedings against the owners of Exchange Point. The AFP considered that the evidence he agreed to give was valuable and that without the respondent’s assistance it was unlikely that that evidence would otherwise have been available to the authorities. At the sentencing hearing the court was informed that the AFP considered that the respondent’s ongoing assistance was productive and valuable and of ongoing use to both Australian and overseas police investigations.

76 His Honour considered that the appropriate discount for the assistance was 35 per cent, on the basis that it was of the same order that justified the substantial discount that was afforded in the case of R v Van Embden (2003) 140 A Crim R 403; [2003] NSWCCA 156. In Van Embden, the offender had given substantial assistance to the authorities, most importantly, information implicating senior members of a Dutch narcotics syndicate. As a result of this information, convictions against other offenders in Holland were successful. The sentencing judge in that case added the discount for assistance directly on to the discount of 15 per cent given for the plea of guilty. The accused appealed in that case, and there was no discussion by this Court of the appropriateness of this aspect of the sentencing process, that is merely adding the two discounts to get a total discount, as happened in that case. I discuss this further below. The point for the moment is merely to explain how Graham DCJ reached the sentence that he ultimately imposed.

77 Having determined that 35 per cent was an appropriate discount for assistance, Graham DCJ then gave a combined discount of 60 per cent for assistance and the plea by adding the two discounts together.

78 The Crown accepted that the respondent was entitled to a reduction of the sentence that otherwise would have been appropriate having regard to the assistance that was provided to the authorities. It was contended however that the discount of 35 per cent, when added to the discount of 25 per cent for the plea of guilty, was excessive. It was submitted that although there was no "fixed tariff" for assistance to the authorities: see R v Cartwright (1989) 17 NSWLR 243, the discount customarily ranged from 20 per cent to 50 per cent inclusive of any reduction for a plea of guilty: see Gallagher at 230.

79 In Cartwright, Hunt and Badgery-Parker JJ, in a joint judgment (Mahoney JA relevantly agreeing) although stating that there was no fixed tariff for the discount to be applied for assistance to authorities, referred to English authority (R v King (1985) 82 Cr App R 120) indicating that in the United Kingdom, reductions in sentence of one half to two thirds had been applied for assistance given to the authorities. Their Honours then added at 256 “[w]e believe that there may well be some cases where less than one half discount would be appropriate”. Their Honours considered that whatever be the discount allowed in any particular case, it should be substantial, having regard to the public interest in encouraging offenders to provide assistance to authorities.

80 In Gallagher, Gleeson CJ said at 230, that where the sentencing judge considered it appropriate to give a specific discount for a particular matter relevant to the sentencing process it was:

"… essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by ‘tariffs’ derived from other and different cases, but, rather, one of a number of matters to be taken into account in the discretionary exercise that it must display due to sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice”.

81 Earlier, the Chief Justice had explained at 227-228:

"… it must often be the case that an offender's conduct in pleading guilty, his expressions of contribution, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of interrelated considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be logical."

82 Gallagher was decided before the guideline judgment of this Court in Thomson and Houlton relating to the discount that should be given in respect of a plea of guilty. Prior to Thomson and Houlton the tendency was for a single discount within a range of 20 per cent to 50 per cent to be given for a plea of guilty and the giving of assistance, see Cartwright; Rv Chu [1998] NSWSC 568; R v Pang (1999) 105 A Crim R 474; [1999] NSWCCA 4; R v Tae [2005] NSWCCA 29. In Thomson and Houlton itself the Court recognised that in cases involving assistance to the authorities a combined discount was often appropriate.

83 However, it is not essential that that course be taken. In Gallagher Gleeson CJ said that a sentencing judge was “entitled but not obliged to give a discrete quantifiable discount on the ground of assistance… provided it was otherwise possible and appropriate to do so”. In R v El Hani [2004] NSWCCA 162 Howie J (Simpson and Bell JJ agreeing), after referring to Thomson and Houlton, accepted that in the case before them it was "not necessarily inappropriate for the sentencing judge to indicate the discount for assistance as separate and distinct from the purely utilitarian value of the plea [of guilty]”: see R v NP [2003] NSWCCA 195. His Honour noted however that that circumstance was relatively rare. More significantly, his Honour considered that when a separate discount was specified for assistance the discount was to be applied to the balance of the sentence after the discount for the plea had been taken into account: see [70]. This was also the approach that was adopted in NP: see Hodgson JA at [30].

84 The guideline judgment in Thomson and Houlton did not impinge in any way upon the underlying rationale for the giving of a discount for assistance to the authorities. Nor did it have anything to say, as a matter of principle, as to whether there should be a single discount or whether there should be separate discounts for, relevantly for this case, the plea and for assistance. Whichever approach is adopted by the sentencing judge, it is necessary to ensure, as Gleeson CJ in observed in Gallagher at 232:

"… that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which support the principles set out above, it constitutes an affront to community standards".

85 This statement encapsulates the principle of totality that must be the end point of the overall sentencing process. As Simpson J observed in NP (at [49]-[50]):

“[49] The result of the rigorous application of what have become relatively standardised discounts (especially where a considerable discount for a plea of guilty is added to an even more considerable discount for significant assistance) can, on occasion, cause a sharp intake of breath, but that is the result of the application of correct and established legal principle. The result can appear to be disproportionate to the offence(s). Sentencing judges (as in this case) have to balance the need to impose proper punishment with the need to recognise the benefits to the criminal justice system gained by pleas of guilty and assistance to authorities. The correct balance is not always easy to achieve.

Crimes (Sentencing Procedure) Act 1999

86 It was submitted on behalf of the respondent that there was no error in his Honour allowing a discount of 35 per cent for assistance, resulting in a combined discount of 60 per cent for the assistance and the plea. Indeed, it was submitted that if anything, the discount allowed was less than might have been the case because of a misunderstanding by his Honour that it was unlikely that the respondent would in fact be called as a Crown witness. That misconception, as now properly acknowledged by the Crown, resulted from its own submissions to the trial judge.

87 It is apparent from the review of the case law that assistance to the authorities usually results in a substantial discount being given to the sentence than would otherwise be imposed. There have been cases where a combined discount of 60 per cent or more has been given by the sentencing judge: see R v AMT [2005] NSWCCA 151, where this Court commented that given the high level of assistance involved, the offender was entitled to a discount of in the order of 50 per cent for assistance. On re-sentence, the Court allowed a combined discount of 60 per cent for the assistance and for the plea (for which the Court accepted he was entitled to a discount in the order of 20 per cent). See also the comment by Howie J in El Hani at [72]. By contrast there have been cases involving high levels of assistance where the discount has been less. In R v M [2005] NSWCCA 224 a 50 per cent discount was considered appropriate in circumstances where, although the offender had not agreed to give evidence, he had worked “undercover and at significant personal risk” (at [27]).

88 It is apparent from a review of the authorities that the focus should not be so much upon the precise numerical value of the discount but rather upon the question whether, after all relevant matters have been taken into account, the sentence imposed is appropriate. I have already indicated that when regard is had to the seriousness of these offences and of the criminality of the offender it is apparent that in respect of each offence, viewed both individually as well as together, the total criminality involved was such that his Honours’ sentencing discretion miscarried. This is reinforced when consideration is given to the combined effect of the discounts applied by his Honour for the plea and for assistance.

89 The Crown further submitted that his Honour erred in failing to take into account that such assistance that had been rendered by the respondent was undermined by the appellant's lack of frankness in relation to his role in both offences. In particular, he had maintained that he did not know that he was receiving drugs until they were located by the police in the boot of his car. Graham DCJ rejected the respondent’s assertion in this regard, finding that the respondent had some knowledge of the drugs and his role in relation to them by the afternoon of 24 June 2004. It may be relevant when assessing the value of the assistance that is provided to the authorities to take into account the extent to which a person is prepared to honestly disclose the extent of their own involvement in the crime: see El Hani. However, in this case, I am not satisfied that this is a fact that ranks very highly in the assessment of the value of the assistance. The assistance that he provided has been formally accepted as being of value by the AFP. The AFP has not sought to minimise its effect by virtue of any shortcomings in the respondent’s contention as to his own involvement.

90 Because this will be a matter where this Court will be required to re-sentence the offender, consideration needs to be given to whether it is appropriate to give a single discount for the plea and for assistance or whether the approach taken by the trial judge should be maintained. The approach most usually adopted by this Court is to give a combined discount. Presumably that is because it more readily gives effect to the principles of totality to which I have referred, although for the reasons discussed, the result should be the same, or at least substantially the same, whichever approach the Court takes. I should also add that a further reason why a combined discount in this case appears to be the preferable approach is that, as is apparent from his Honour's Remarks on Sentence, there was a significant interplay between the timing of the respondent’s plea and the provision of assistance to police.

91 Having said that, I would not have found error in this case merely because the sentencing judge applied a separate discount for the plea and for the assistance provided to the authorities. The error lay first in the discount, when treated additionally to the discount for the plea, being so high as to lay outside an appropriate discretionary range, and secondly in not applying the separate discount to the sentence after the discount for the plea had been taken into account. Interestingly, even if it had been established that it was appropriate to assess the discount for the assistance, and to apply it additionally to the discount given for the plea, the trial judge erred in failing to follow this Court's decision in El Hani to the effect that the separately assessed discount for assistance is to be applied to the balance of this sentence after the discounted plea has been taken into account. If that approach had been undertaken, the effective discount would have been 51 per cent (applying a discount of 25 per cent for the plea, the head sentence was reduced to 75 per cent of the sentence that otherwise would have been imposed; a reduction of that by 35 per cent for assistance would have reduced the head sentence to 49 per cent of that which otherwise should have been imposed).

92 In my opinion, given the importance and value of the information given to the authorities and given that the respondent is serving and will likely continue to serve his sentence under strict conditions of protection, the combined discount for the plea and assistance should be 50 per cent.

93 The result of the errors to which I have referred entitles this Court to re-sentence the offender. It will not do so unless some other sentence is warranted in law: see s 6(3) of the Criminal Appeal Act 1912 (NSW); R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [79]. In my opinion, for the reasons I have given, the sentence imposed by the trial judge in respect of the drug offence was inadequate and some other sentence is warranted. In reaching that view I am conscious that the trial judge purported to impose a sentence of 15 years for that offence. For my part, given his Honour’s erroneous approach in applying a discount for the appellant’s mental condition at the commencement of the sentencing process, the Court should proceed on the basis that the sentence imposed by his Honour was 13 years. I consider that that sentence was inadequate and some other sentence was warranted in law.

94 In relation to the money laundering offence I consider that a head sentence of imprisonment for seven years would be the appropriate sentence. That would in the normal course result in a non-parole period of about four years three months, on the basis of a 60 per cent non-parole period. In circumstances where there is no useful purpose in fixing a parole period, given the sentence to be imposed on the drug charge, a fixed term of four years three months would be appropriate, subject to a reduction for his plea and his assistance to authorities that I have discussed.

95 As I have said, I am of the opinion that the appropriate discount that should be applied for assistance and the plea is 50 per cent. I have already referred to the principles that apply in relation to a reduction for assistance and a plea and consider that it is appropriate for the respondent to receive a discount which is at the high end of the range. This case does not fall into the category of the case referred to by Howie J in R v Sukkar [2006] NSWCCA 92, where his Honour stated that:

"… discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than of the general prison population”.

96 The evidence in this case was that the conditions in which the respondent is serving his sentence are particularly onerous and are likely to remain so. I have reviewed those conditions at [41] and following. They do nor require repetition save to say that the appellant’s isolation is, in part at least, due to his assistance to the authorities. Because of his personal circumstances, including his mental state, the isolationist nature of his imprisonment will be unusually burdensome.

97 Allowing a discount of 50 per cent for the plea and the assistance, the fixed term I would impose in respect of the money laundering offence would therefore be two years one and a half months, or approximately six weeks more than the sentence imposed by the sentencing judge. Such a marginal difference does not warrant appellate interference. Accordingly, the appeal against sentence in respect of the money laundering offence should be dismissed.

Re-sentence in respect of the drug offence

98 The position is different in relation to the drug offence. In my opinion, some other sentence than that imposed by his Honour is warranted in law. In re-sentencing the respondent the Court is required to apply the principles relating to Crown appeals. Those principles are well known and have been formulated to protect an accused person from a form of double jeopardy where a sentencing judge has made an error and has imposed a sentence that is appellably inadequate. It is sufficient to state that on re-sentence, the appellate court should impose a sentence that is the lowest sentence that could have been imposed by the sentencing judge in the exercise of his sentencing discretion.

99 Applying that principle, I am of the opinion that the lowest sentence that could have been imposed by the sentencing judge for the drug offence is of 16 years imprisonment. In imposing this sentence, I have also taken into account that there is the offence on the Form 1 that is being dealt with. I would only add that I consider that the sentence ought only to be increased marginally to take account of the criminality in that offence. The period of 16 years is to be reduced to eight years by the discounts to which I have referred. The sentencing judge imposed a non-parole period of half of the sentence and that approach was not challenged.

100 The sentencing judge made the sentences concurrent. For the reasons I have explained at [34]-[39] I am of the opinion that his Honour erred in so doing. I consider that the sentence for the drug offence should be partially accumulated on the sentence for the money laundering offence by specifying a commencement date 12 months after the commencement of the latter offence.

101 Accordingly, I propose the following orders:

1. Appeal allowed in part;

2. Set aside the sentence imposed by the trial judge in respect of Count 2 (the drug offence);

102 ADAMS J: I have had the benefit of reading the judgment in draft of Beazley JA and thankfully adopt her Honour’s narrative of the facts. I respectfully agree with her Honour’s conclusion that, although the respondent was financially and emotionally vulnerable when he entered into the money laundering offence, he understood fully the nature, extent and seriousness of the crime and that the respondent was not surprised or cajoled into committing the offences.

103 I also respectfully agree with her Honour’s analysis of and conclusions about the evidence of psychological illness. I agree that the learned sentencing judge erred in assigning to this factor a specific percentage reduction from the starting point sentence. If an offender’s psychological condition results in his or her failing to fully appreciate the extent of the criminality involved in an offence, that is clearly a significant mitigating factor. However, where there is a link reasonably thought to be present between the commission of the offence and the compromised psychological state of the offender so that the offender’s judgment about involvement is adversely affected as, for example, where he or she is less able to resist pressures to commit the offence, then the presence of the psychological vulnerability is also relevant and should be taken into account. Of course, the extent to which it affects the culpability of the offender is very much a matter of fact and degree but I do not think that, merely because an offender is aware of the seriousness of the crime he or she commits, his or her psychological condition is immaterial or necessarily of slight significance. With respect, I would therefore not adopt the approach of Martin J in R v Wiskich (2000) 207 LSJS 431, to which Beazley JA makes reference.

104 The learned sentencing judge found that that the respondent suffered from post-traumatic stress disorder (PTSD). There was plainly an adequate evidentiary basis for this conclusion. His Honour concluded, after a thorough and careful analysis of the evidence, “on the balance of probabilities, that the offender has established that his involvement in these offences was brought about by his impairment of judgment and that impairment of judgment was the manifestation of symptoms of a psychiatric condition or conditions, namely post-traumatic disorder and associated depressive illness.” His Honour noted (dealing with prospects of rehabilitation) that the respondent’s “ experience of being drawn into these offences, his continuing treatment, will lead to a very substantial lessening of the risk that he might do this sort of thing again” and added that his “impaired judgment, no doubt, meant that he gave less consideration to the questions of right and wrong involved in these offences and…to the type of consequences that might follow from transgressing the criminal law”. It seems to me that, with respect, this conclusion was open to his Honour.

105 It was, therefore, proper that his Honour should regard the respondent’s culpability as significantly reduced by this feature. However, reducing the starting point sentence (of fifteen years) by a specific period, described by his Honour as “something of the order of 10 to 15 per cent”, giving a reduction of two years, was, with respect, a fundamentally mistaken approach. An offender’s psychiatric condition is but one of the factors that is relevant to the assessment of his culpability. It also relevant to personal and general deterrence. These factors are all inextricably enmeshed in the circumstances of the offence and the actions of the offender. It is, in principle, impossible in any realistic sense to assign a particular percentage or numerical significance to any one or a combination of these factors. They are inherently incommensurable. Of necessity, at the end of the process, a precise number of years is arrived at. This is a matter of judgment, not calculation.

106 Percentage discounts for early pleas and cooperation and assistance to law enforcement are altogether different and serve different purposes. Their function as an element of public policy necessitates separate identification and quantification wherever it is reasonably possible. Relative predictability is of the essence of their utility. Furthermore, given their purpose, the extent of the discount is inherently capable of being expressed in a precise number. It also follows that, where a discount is appropriate, it should be applied at the end of the process of setting the sentence, when all the other relevant objective and subjective features (including, of course, remorse and contrition) have been assimilated into a precise sentence: in principle, it is applied to a sentence which would otherwise be passed but for the rewarded conduct.

107 So far as the facts of the respondent’s involvement are concerned, the learned sentencing judge’s reasons contain an extensive and detailed summary of the relevant telephone and physical surveillance evidence. His Honour then dealt with the respondent’s PTSD and concluded –

Jan de Groot van Emden

In relation to count 2, having regard to the objective seriousness of the offence, and leaving aside the reason for the role of and the involvement of the offender but taking into account what his role was in the organisation and what he actually did in the course of the offence, this is an offence which would require a substantial prison sentence. A sentence of life imprisonment is the maximum sentence. This is clearly not an offence which would call for anything near that level of punishment but, nonetheless, the involvement, even in the relatively limited way in which this offender was involved in the possession of some 16, almost 17 kilograms, of pure weight of Ecstasy, with that very substantial street value of over $8 million, would call for a very substantial punishment, so that the message would be loud and clear that involvement in even this way, in relation to drugs such as Ecstasy, will lead to very substantial penalties. That is necessary in order to sufficiently acknowledge the principles of general deterrence, which remain a significant aspect of sentencing for Commonwealth offences. Viewed in that light, the starting point, it seems to me, having regard to those considerations, would be a sentence of 15 years imprisonment…”

108 In my respectful opinion, this analysis is thorough and adequate. The learned trial judge deals with the crucial issues and his conclusion about the respondent’s position in the scheme was open. To fasten, as the Crown submission in this Court does, on the description of the respondent’s connection with the drugs as “somewhat tangential or marginal” is to significantly misstate the point that his Honour was, in my view, clearly making. The phrase “in one sense” introduces this description and the following (accurate) reference to the temporal and physical circumstances of the respondent’s connection with the drugs makes it clear that his Honour is contrasting this sense of connection with the significance of it in the scheme as demonstrated by the quantity of drugs involved and the importance that the respondent’s “warehousing” played in the supply. I do not accept that his Honour’s analysis of and conclusions about the significance of the respondent’s involvement were mistaken. As it happens, I think that his Honour was correct but, at all events, his findings were clearly open to him and this Court ought not to reject them.

109 Issue is taken with what the learned trial judge described as the “starting point” of fifteen years. As I read his Honour’s judgment, this was the appropriate sentence after taking all relevant considerations into account except for the respondent’s PTSD and its significance on culpability and manner in which it rendered more difficult the respondent’s dealing with his imprisonment, and the discounts for plea and assistance.

110 In De Groot van Emden (supra) the appellant was given at first instance, following his plea, a sentence of twelve years with a non-parole period of eight years for an attempt to obtain possession of 50.75kg (16.5kg pure) of MDMA. A discount of 50% had been allowed, so that the starting point was twenty-four years. The role of van Emden was very much more significant than was the respondent’s – he was the Australian organizer of the Dutch syndicate which had arranged to supply the drugs and his expected remuneration was between $150,000 and $200,000. Carruthers J (with whom in this respect the other members of the Court agreed) described him as “the Australian principal of the organization”. Although it is important to be very cautious about comparing individual cases, it is legitimate to consider them as part of the overall assessment of the range.

111 The statistics maintained by the Judicial Commission suggest that a twelve years head sentence (following plea) is very much in the middle of the range and a fifteen years sentence somewhat beyond the bell curve, distinctly in the minority of cases. These statistics must treated with caution for the obvious reason that cases vary widely but also because it is not known what proportion represent sentences where substantial discounts for assistance have been allowed. Nevertheless, the statistics do not suggest that the respondent’s sentence was unduly lenient. To the contrary, I think that they show that the sentence was well within the usual range.

112 Disregarding the mode by which the learned sentencing judge reached the starting point before discount – namely thirteen years – I am of the view that this sentence was well within the discretionary range available to his Honour. Moreover, I think that this is all the more clearly so when regard is had to his Honour’s findings about the respondent’s psychological state and the very adverse circumstances in which the respondent would need to serve his sentence as a result of his being in protection because of his military service in Israel.

113 I now move to the discounts. The respondent was given a discount of 25% for the utilitarian value of his plea and an additional 35% for assistance to the authorities, which was (properly) regarded as significant and included preparedness to give evidence and the likelihood that this will be necessary. It was submitted by the Crown in this Court that the reduction was excessive. The first criticism of the discount is that the learned sentencing judge added together two discounts. In my view this criticism is without merit. In R v Thomson and Houlton (2000) 49 NSWLR 383 at [160 (iii)] the guideline noted –

“Where other matters are regarded as appropriate to be quantified in a particular case, a single combined quantification will often be appropriate.”

quantified

114 In R v NP [2003] NSWCCA 195, having determined that the discount for assistance should be increased from 30% to 50%, Hodgson JA (with whom Simpson J agreed on this matter) said –

“[30] In my opinion this 50% should not be simply added to the other 20% to result in an overall discount of 70%. The 50% is meant as a discount to what the sentence would otherwise have been, but for this particular factor. By reason of the 20% utilitarian discount for the plea of guilty, the sentence is only 80% of the starting point, and the 50% discount for assistance results in the halving of this 80%, giving 40%. The total discount is 60%.

R v El Hani

115 However, I would with the greatest respect, express my doubts about its correctness. Firstly, I think it is inconsistent with the passage from the guideline judgment which I have set out above. Secondly, I think, with respect, it introduces a nicety of calculation that is both arbitrary, as not being based on arithmetical accident rather than principle, and capricious as the example set out below demonstrates. If the real problem and matter of principle is that the ultimate sentence is inappropriately lenient, then there should be a frank acknowledgment that this is so and the sentence adjusted to the minimum necessary to comply with the provisions of s23(3) of the Crimes (Sentencing Procedure) Act 1999 (an adjustment which does not require and should not reflect any formula of calculation). I note that this point was made by Simpson J in NP at [50].

116 The very purpose of quantified discounts is to encourage offenders to plead guilty and to assist the authorities to the extent that they are able. It is obvious that the knowledge that to do so will result in a distinct and significant benefit is a powerful incentive. Take the situation where an offender both pleads guilty and gives significant assistance. Assume the correct discounts are 25% for the plea and 50% for the assistance – the same as in NP. He gets an ultimate discount of 50%. Take his co-offender. He decides to go to trial and is convicted. He gives other and just as valuable assistance. He also gets a 50% discount. They both have the same discount, although one pleaded guilty. This does not strike me either rational or just. Of course, situations will rarely be as neat as this. Nevertheless, the problem and the capricious effect of the calculation is evident.

117 For these reasons, I would respectfully suggest that the appropriate rule should be that, where two discounts are given, they should not be applied successively so that one applies to the sentence reduced by the other. If the result is inappropriately lenient, then an adjustment should be made and the reason for it clearly stated. This is simpler, more transparent and leads to more consistent and coherent results.

118 In El Hani, Howie J said –

“[68] A situation where it might not be appropriate or possible to specify the discount is a case where the assistance cannot be identified as a discrete matter, distinguishable and quantifiable, without regard to other mitigating subjective factors. This will generally be so where the assistance follows a plea of guilty and is part of the process of remorse, reform and rehabilitation.”

R v Gallagher

Gallagher

119 Where quantification of the separate factors of an early plea and assistance to the authorities is practicable, there is a strong argument for separately indicating each factor. This will have the effect of maintaining the purpose of identifying the “reward” which offenders obtain for pleading guilty on the one hand and, on the other, assisting the authorities with information and, in some cases, giving evidence. It also has the advantage of transparency. I think that in most cases it will be relatively simple to separate these factors.

120 In this case, the evidence of assistance to the authorities was, as Beazley JA demonstrates, substantial. Contrary to the mistaken submission made by the Crown prosecutor below, it also included the likelihood that the respondent would give evidence. This latter consideration is extremely significant. The learned trial judge’s assessment of the 35% discount was, therefore, modest. In my view this Court should take the approach exemplified in R v AMT [2005] NSWCCA 151, where the Court agreed that the overall discount was too low. Grove J (with whom the other judges agreed) said –

“[17] Without suggesting that discounts should be the subject of simple addition, a reduction of forty per cent to a person who had a potential of receiving close to or twenty-five percent for the early plea of guilty and something up to fifty percent for assistance to authorities, does appear to reflect less than would be appropriate for the relevant matters.

…

[22] …I consider that the applicant’s complaints in relation to the inadequacy of the discounts have been made out. I consider that the situation ought to be met, adopting his Honour’s global approach, by a discount of sixty per cent rather than forty per cent.”

121 As it happened, the learned sentencing judge quantified the discounts when he gave the global figure. Especially when it is considered that – otherwise than was understood by his Honour – the respondent would need to give evidence, I am unable to see that the total discount was wrong or outside the relevant sentencing discretion. Nor, with respect, do I agree that the discounts should be successively applied in order to give a lesser ultimate discount than that thought appropriate by the learned sentencing judge. This is especially so when it is borne in mind that the Crown prosecutor below did not submit to his Honour that successive application was appropriate and did not bring to his Honour’s attention either NP or El Hani.

122 Accordingly, I am of the view that (subject to variation of the commencement date, which I discuss below) the Crown appeal from the sentence imposed on the drug charge should be dismissed.

123 This brings me to the money laundering offence. A company which had been registered as a currency exchange business since November 1998, Exchange Point Pty Limited (the company) was used as an instrument for large scale money laundering overseas and within Australia. The method used was to recycle money without the need for physical transfer of cash. The company was operated by three brothers, Azees, Haja and Jaleel Ansari. Jaleel usually resided in France. The three were in regular contact with people overseas who were associated with or managed money exchange outlets, mainly in Singapore. The overseas client would require the deposit of specified amounts into particular bank accounts. Corresponding amounts of cash would be deposited in a structured manner to avoid notice in the bank accounts within a day or two of the orders being placed. Between October 2003 and July 2004, many of these deposits were made by one Mohamed Sadiq Habiburahman, on behalf of the company. From August 2003, the Ansari brothers’ services were utilised by a European-based narcotics syndicate to facilitate the movement of proceeds of crime out of Australia.

124 In October 2003 the respondent came to Sydney at the behest of persons he met in Romania on an introduction by his nephew. In brief, he collected cash totalling about $2.2 million from an apartment in a Sydney suburb and delivered it to the company. He was paid about USD10,000. (For reasons that it is not necessary to detail the respondent is not charged with offences relating to this conduct.) The offence for which he is presently under sentence, comprising count 1, was committed in the following year. He was approached again by his nephew and asked to make another trip to Australia for the same purpose. He was told that he would have to go to Sydney and that money would be delivered to him over a period of four to six weeks and he was then to take it to the company’s premises. He was promised USD10,000, as before. He agreed.

125 On 23 June 2004 the respondent arrived in Australia and went straight to the company’s premises after booking into a cheap hotel in Bondi. Shortly after he became involved in the storage of the MDMA comprising the first count and he was arrested five days later, on 28 June 2004. He did not actually either collect or deliver any cash. No doubt it is for this reason that he was charged with conspiracy to deal with $1 million or more rather than a substantive offence. The maximum penalty for this offence is a fine not exceeding $79,200 or imprisonment for 12 years or both.

126 Taken into account on a Form 1 in respect of count 2 was an offence of possessing property reasonably suspected of having been unlawfully obtained. This related to an amount of $15,000, which was in his possession when he was arrested. It was not contended that this money was either the proceeds of the sale of the MDMA or cash obtained for delivery to the company.

127 At the sentencing proceedings, the Crown prosecutor’s written and oral submissions paid almost no attention to the significance of the money laundering offence. His written submission amounted to very little more than –

“The offender entered Australia to facilitate the laundering of money from the sale of MDMA. Whilst in Australia, he was also to facilitate the distribution of MDMA by warehousing it upon receipt…The Crown acknowledges that the offences before the court form part of the same course of conduct in that the offender appears to have arrived in Australia with the intention of facilitating the money laundering exercise and in the course of so doing was to assist in the warehousing and distribution of a large quantity of MDMA.”

128 In oral submissions the Crown prosecutor conceded, in effect, that it could not be proved that the respondent was aware of the drug transaction before he came to Australia and that the respondent’s role in relation to the drugs became evident to him after his arrival. It followed that he did not enter Australia in order to facilitate the laundering of money from the sale of the MDMA. The Crown case was, in the result, that (in addition to warehousing the drugs) the respondent’s role, as it developed, was to take the cash from the sale of the MDMA and deliver it to the Ansari brothers, who would then launder it.

129 It should be remembered that count 1 was a conspiracy. It is clear that the conspiracy was in existence before the respondent came to Australia. There was no evidence that the respondent agreed to do anything with the proceeds of drugs sales. Of course, a conspiracy can unfold. I doubt that the conspiracy charged comprehended the extension contended for by the Crown. The evidence that the respondent had agreed to transfer the proceeds of the MDMA sale is inferential and, to my mind, no more than suggestive. It may well be that he would have been prepared to do so, if asked. But there was no evidence that he was.

130 It is obvious from the above-quoted passage from the learned sentencing judge’s reasons for sentence that his Honour did not conclude that the conspiracy included any agreement by the respondent in relation to the proceeds of the MDMA. Nor did his Honour conclude that receiving the proceeds of the MDMA was part of the respondent’s dealing with the drugs. If he had done so, it would, of course, have rendered the respondent’s role in the drug transaction more serious. The quoted passage indicates his Honour’s conclusion about the character of the conspiracy, namely, “to engage in shady money dealings, which he anticipated had some connection with tax evasion or something of that sort, no doubt understanding that it was either criminal or likely to be criminal in this country”. The passage also makes it clear that his Honour rejected the submission that receiving the proceeds of sale the MDMA was part of the respondent’s role in relation to count 2. It is sufficient to say that I would not be prepared to hold that the learned sentencing judge was wrong so to find.

131 The learned sentencing judge described the respondent’s role in the money laundering arrangement as “menial”. In this Court the Crown prosecutor submitted that the respondent was trusted with a large quantity of drugs and to deal with over $1 million in cash. In this he was said to be entirely unsupervised. As to the first submission, I agree that the respondent was trusted. No doubt this was, in part, because he had been recruited by his nephew and because he had already successfully taken money to the company to be laundered. Having regard to his continuous contact with the other criminals involved in the enterprise, I would not accept that the respondent was “entirely unsupervised”. More importantly, the respondent was never given any money pursuant to the conspiracy. The extent to which he was to do whatever was necessary to fulfil his agreement is not known and whether or not he would have been supervised is similarly unknown. His previous deliveries were unsupervised to a significant degree but he was not charged with those acts. Those acts were little more than collection and delivery as instructed. This does not to my mind mean anything more than that he was a trusted “menial” agent. I would not, at all events, be prepared to conclude that the learned trial judge was wrong in respect of this fact.

132 If the character of the respondent’s involvement in the drug transaction had been held to include the receipt of the proceeds and its delivery to the company, then he cannot be additionally punished for the money laundering offence (although the overlap is not quite entire because the conspiracy predated his involvement in the drug transaction): Pearce v The Queen (1998) 194 CLR 610. It seems to me that the learned sentencing judge, by imposing a substantial sentence on the 1st count, did not consider that the respondent’s involvement in the 2nd count included the receipt and delivery of the proceeds. (I interpolate that, if his Honour had accepted that the two offences were connected in this way, a significantly higher sentence for count 2 may have been appropriate and, I think, would have been imposed.) It was thus appropriate that there should be an additional sentence for count 1. This having been determined, the next questions were the length of the sentence, whether the sentences should be accumulated and, if so, to what extent.

133 The maximum punishment for the 1st count was twelve years imprisonment plus a fine. A fixed term sentence of two years was imposed. Ignoring the question of special circumstances, this would imply a total sentence of two years and eight months. Accepting a discount of 60% for the early plea and assistance to the authorities, the learned trial judge must have arrived at a sentence, before discount, of six years and six months. Having regard to the subjective features of the case, including the respondent’s mental condition and the circumstances of his imprisonment, the fact that the conspiracy was not effected and the role to be played by the respondent, I do not, with respect consider that this sentence was by any means lenient, let alone appealably lenient.

134 I have set out above the view of the learned trial judge as to the respondent’s belief when he came to Australia about the source of the money he was to deliver to the company. His Honour did not find that the offender agreed to handling the proceeds of the MDMA transaction, as such, though it seems likely that he would may have done so, if asked. As I have said, events did not so transpire, the respondent having been arrested before the drug transaction was completed or any money delivered to be laundered. The learned trial judge did not elaborate on the connection between the two offences but the fact that his Honour imposed completely concurrent sentences for both counts suggests that he considered that the two offences were a single course of criminal conduct.

135 There was no submission below that the sentences should be cumulative. I think that the reason for this was simply that the Crown case was that counts 1 and 2 should be seen as part of the same course of conduct. The Crown prosecutor submitted in this Court that the sentences should have been accumulated. For the reasons given by Beazley JA, I agree that this submission should be accepted. I also agree with the accumulation proposed by her Honour.

136 HOWIE J: I agree with Beazley JA.

**********

Citations

R v Z [2006] NSWCCA 342

Most Recent Citation

Cases Citing This Decision

32

R v Burnes [2007] NSWSC 298

R v RB [2020] NSWDC 328

R v Chandler [2014] NSWDC 389

Cases Cited

38

Statutory Material Cited

4

R v Dang [2005] NSWCCA 430

R v Poon [2003] NSWCCA 42

R v Klein [2001] NSWCCA 120

Actions

Download as PDF Download as Word Document

CITATION:	Regina v Z [2006] NSWCCA 342
HEARING DATE(S):	2 March 2006
JUDGMENT DATE:	26 October 2006
JUDGMENT OF:	Beazley JA at 1; Adams J at 102; Howie J at 136
DECISION:	1. Appeal allowed in part; 2. Set aside the sentence imposed by the trial judge in respect of Count 2 (the drug offence); 3. On Count 2 the respondent is sentenced to eight years imprisonment commencing on 28 June 2005 with a non-parole period of four years commencing from 28 June 2005 and expiring on 27 June 2009, the date upon which the respondent is eligible for release on parole.
CATCHWORDS:	CRIMINAL LAW – money laundering – manifest inadequacy of sentence – importance of role as a facilitator – knowledge of seriousness of offence is a relevant factor – general deterrence - CRIMINAL LAW – importation of prohibited drug – manifest inadequacy of sentence – criminality – description of drug irrelevant to criminality – in circumstances, role of offender more important than time drugs in possession - JUDGE – reasoning process – necessary to understand remarks in totality - MENTAL ILLNESS – relevant to the sentencing process – to be weighed with all relevant factors – mathematical deductions from sentence inappropriate in a complex case - SENTENCING – concurrent sentences – appropriate where offences have common elements – inappropriate where offences are separate - SENTENCING – discount for assistance to authorities and plea of guilty – may be combined although not always appropriate to do so – focus is on totality - SENTENCING – discount for assistance to authorities – value of assistance – extent to which own involvement is honestly disclosed may be relevant
LEGISLATION CITED:	Crimes Act 1914 (Cth) s 16A, 21E Criminal Appeal Act 1912 (NSW) s 6(3) Criminal Code 1995 (Cth) s 400.3(2) Customs Act 1901 (Cth) s 233B
CASES CITED:	AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 Channon v The Queen (1978) 33 FLR 433 Lauritsen v R (2000) 114 A Crim R 333; [2000] WASCA 203 Markarian v R (2005) 215 ALR 213; [2005] HCA 25 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v AEM [2002] NSWCCA 58 R v AMT [2005] NSWCCA 151 R v AMT [2005] NSWCCA 151 R v Anderson (1980) 2 A Crim R 379 R v Budiman (1998) 102 A Crim R 411 R v Cartwright (1989) 17 NSWLR 243 R v Chu [1998] NSWSC 568 R v El Hani [2004] NSWCCA 162 R v Engert (1995) 84 A Crim R 67 R v Fahda [1999] NSWCCA 267 R v Gallagher (1991) 23 NSWLR 220 R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540 R v Harb [2001] NSWCCA 249 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Israil [2002] NSWCCA 255 R v King (1985) 82 Cr App R 120 R v Klein (2001) 121 A Crim R 90; [2001] NSWCCA 120 R v Letteri (unreported, NSWCCA, 18 March 1992) R v M [2005] NSWCCA 224 R v Mooney (unreported, VICCCA, 21 June 1978) R v NP [2003] NSWCCA 195 R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381 R v Pang (1999) 105 A Crim R 474; [1999] NSWCCA 4 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Sukkar [2006] NSWCCA 92 R v Tae [2005] NSWCCA 29 R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Tsiaras [1996] 1 VR 398 R v Van Embden (2003) 140 A Crim R 403; [2003] NSWCCA 156 R v Wiskich (2000) 207 LSJS 431; [2000] SASC 64 R v Wright (1997) 93 A Crim R 48 Wong v R (2001) 207 CLR 584; [2001] HCA 64
PARTIES:	Crown (Appellant) Z (Respondent)
FILE NUMBER(S):	CCA 2005/2455
COUNSEL:	W Abraham QC (Appellant) J Stratton SC (Respondent)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Appellant) Legal Aid Commission (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0299
LOWER COURT JUDICIAL OFFICER:	Graham DCJ
LOWER COURT DATE OF DECISION:	3 November 2005