Ramos v R

[2018] NSWCCA 206

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Ramos v R [2018] NSWCCA 206

Hearing dates:

7 September 2018

Date of orders:

26 September 2018

Decision date:

26 September 2018

Before:

Ward CJ in Eq at [1];
Bellew J at [2];
Beech-Jones J at [3]

Decision:

(1) Leave to appeal against the sentence imposed by the District Court on 23 September 2016 for an offence under s 193B(2) of the Crimes Act 1900 be granted;

 

(2)   The appeal be allowed;

 

(3)   In lieu thereof, the appellant be sentenced to a term of imprisonment of 13 months commencing 22 February 2015 and expiring 21 March 2016 with a non-parole period of 9 months commencing 22 February 2015 and expiring 21 November 2015;

(4) Pursuant to s 7(1A) of the Criminal Appeal Act 1912 the sentence imposed on 23 September 2016 for an offence under s 307.8(1) of the Criminal Code (Cth) be varied so that that sentence of imprisonment for 6 years will commence on 22 November 2015 and expire on 21 November 2021 and the non-parole period of 4 years will expire on 21 November 2019.

Catchwords:

SENTENCING – dealing with Proceeds of Crimes – Crimes Act – s 193B(2) – possession of $12,900 – admission one-third derived from drug sales – finding offence “above the middle of any scale constructed for such offences” – little known about offence – finding not open – error – sentencing discretion re-exercised

Legislation Cited:

Crimes Act 1900 (NSW), s 193B
Criminal Appeal Act 1912 (NSW), s 7
Criminal Code 1995 (Cth), s 307.8
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases Cited:

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Burns v R [2010] NSWCCA 279
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mulato v R [2006] NSWCCA 282
Pearce v R (1998) 194 CLR 610; [1998] HCA 57
R v Campbell [2014] NSWCCA 102
Smaragdis v R [2010] NSWCCA 276

Category:

Principal judgment

Parties:

Cristian Mosso Ramos (Applicant)
Regina (Crown)

Representation:

Counsel:
T Quilter (Applicant)
L Crowley (Crown)

  Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

2015/55175

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 September 2016

Before:

McLoughlin DCJ

File Number(s):

2015/55175

Judgment

1. WARD CJ in EQ: I agree with Beech-Jones J.

2. BELLEW J: I agree with Beech-Jones J.

3. BEECH-JONES J: This is an application for leave to appeal against a sentence of imprisonment imposed by the District Court for the offence of dealing with proceeds of crime knowing that it was the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW). At the time the applicant received that sentence he was also sentenced for a serious drug offence.

4. On 10 June 2016, the applicant was arraigned in the District Court on an indictment that charged him with two offences. He pleaded guilty to both. The first count on the indictment charged that on or about 22 February 2015 at Bungwahl the applicant possessed a commercial quantity of a border controlled drug which was reasonably suspected of having been unlawfully imported, namely, methylenedioxymethamphetamine (MDMA) contrary to s 307.8(1) of the Criminal Code 1995 (Cth) (the “first offence”). The maximum penalty for that offence was life imprisonment and a fine of $1,250,000.00.

5. The second count on the indictment charged that on or about 22 February 2015 the applicant dealt with the proceeds of crime, namely $12,900.00, knowing that it was the proceeds of crime contrary to s 193B(2) of the Crimes Act. The maximum penalty for that offence was 15 years’ imprisonment.

6. On 23 September 2016, the applicant was sentenced. For the first offence he was sentenced to 6 years’ imprisonment commencing on 22 September 2016 with a non-parole period of 4 years commencing on 22 September 2016 and expiring on 21 September 2020. For the second offence, the applicant was sentenced to 3 years’ imprisonment commencing on 22 February 2015 and expiring on 21 February 2018 with a non-parole period of 19 months commencing on 22 February 2015 and expiring on 21 September 2016.

7. The backdating of the sentence for count 2 reflected a period of pre-sentence custody served by the applicant. The two non-parole periods for the offence were made wholly cumulative on each other but the head sentences overlapped. The net effect of the two sentences is that the applicant was sentenced to a total of 7 years and 7 months’ imprisonment with an effective non-parole period of 5 years and 7 months.

8. The applicant seeks leave to appeal from only the sentence imposed in respect of the second offence. The only variation he seeks in respect of the sentence for the first offence is an adjustment of the commencement date so as to reflect any success he achieves in a reduction of the sentence for the second offence.

The Offences

9. Tendered before the sentencing judge was an Agreed Statement of Facts. The following is either taken from the Agreed Statement of Facts or was the subject of findings by the sentencing judge.

10. The applicant is a Dutch national who travelled to Australia on 19 December 2015 on a ninety-day tourist visa. As at February 2015, he was residing in Australia with his partner and her children at Bungwahl, midway between Newcastle and Port Macquarie.

11. On 19 February 2015, a package containing twelve bottles of red wine was delivered to the Bungwahl Liquor and General Store addressed to the applicant’s partner. The sender’s address was in the Netherlands. The owner of the general store took receipt of the parcel but mistakenly believing that the package was for the general store, he opened it, removed one bottle of wine and resealed the box with the other eleven bottles inside the package. Later than afternoon the applicant’s partner collected the package.

12. On the evening of 21 February 2015, the general store owner attended a family dinner at which the bottle of wine was consumed. One of the persons who attended became unwell, so much so that she began presenting with symptoms of an aggressive drug user and was conveyed to a local hospital. She was found to have overdosed on methylamphetamine. The general manager had also drunk the wine and was admitted to hospital. Testing revealed that he had been exposed to methylamphetamine.

13. On 22 February 2015, police attended the residence of the applicant’s partner in Bungwahl. Police searched the premises and found seven wine bottles. They then searched a bedroom and located a plastic resealable bag which contained $12,900 within a drawer of the bedside table. The applicant’s partner stated the wine bottles and currency belonged to the applicant. The applicant was spoken to and admitted that the wine bottles contained MDMA and that both the wine bottles and money belonged to him. He stated that he had ordered the wine bottles and had them delivered in his partner’s name. He admitted that about one third of the money that was located was “from the sale of drugs”. In relation to the remaining bottles, the applicant took police to a garage directly behind the residence and showed them four empty wine bottles and then later directed the police to a water tank at the rear of the house where they located four baking trays, three “Tupperware” containers and a small bowl. Each of the trays and containers contained a red crystal substance “in various stages of drying or recrystallisation”.

14. In an interview conducted after he was arrested the applicant repeated the admissions he had made to the police when the search warrant was executed. He said that he had ordered the wine and had placed his partner’s name on the package and tricked her to pick up the parcel for him. He again stated that “about a third of the money located in the bedside table was from the sale of drugs”.

15. A fingerprint examination conducted on one of the plastic containers containing the recrystallised substance yielded a print that matched the left middle finger and left right finger of the applicant. Forensic analysis of the liquid content of the wine bottles and the contents of the baking trays, confirmed that it contained MDMA. The total impure or bulk weight of the MDMA in the seven bottles and the plastic containers was 6.295 kilograms. The total pure weight of MDMA was 2.538 kilograms.

16. The applicant’s conduct in possessing the cash located at the premises constituted the basis for the second offence.

The Sentencing Judgment

17. After identifying the maximum custodial sentence for each offence, his Honour summarised the agreed facts. Beyond that, I note the following eight matters about the sentencing judgment.

18. First, his Honour addressed the seriousness of the offences. Ultimately, his Honour concluded that “both offences [are] a little above the middle of any scale constructed for such offences”. To the extent that this finding concerns the second offence it is the subject of a challenge by ground 1 of the appeal and is addressed below.

19. Second, in a number of places his Honour outlined the applicant’s personal circumstances. At the time of sentencing the applicant was a thirty-six year old Dutch national. His Honour noted that his parents came from the Cape Verde Islands and moved to the Netherlands in the 1970s. The applicant had grown up in Rotterdam and had reported a comfortable upbringing in a close family. At some stage he had been employed as a computer programmer in Holland. He met his partner online and he entered Australia in June 2014 on a three-month visa to see her. He returned in December 2014 and they commenced living together. As at the time of sentencing, his partner was said to be “supportive of him but … unsure of their future together”. The applicant was refused bail from the time of his arrest and at the time of sentencing was said to have been employed in the furniture unit at the correctional centre. His Honour stated that he took into account the “probable effect [of imprisonment] on his relationship and the probability that he will be deported upon the completion of the sentence”.

20. Third, the sentencing judge noted that a community corrections officer’s report referred to the difficulties the applicant had with the use of illegal drugs. Both that report and a report of a psychiatrist referred to him having received some drug counselling and suffering paranoia and depression associated initially with his drug usage and then later with his incarceration.

21. Fourth, the sentencing judge noted that a psychiatrist’s report had been tendered which referred to the applicant owing a substantial drug debt and the applicant was seeking to pay off the drug debt by his offending. To that end, the applicant gave evidence before the sentencing judge that he had come to Australia to basically “run away” from some drug dealers and that he was seeking to “clear my debt by doing this”. In cross-examination the Crown Prosecutor put to him that he did not mention any drug debt in his interviews with the police and that his evidence on this topic was made up. In an apparent reference to this aspect of his evidence, the sentencing judge stated “there is no real evidence as to the crime figures involved in the importation as to how the money was accumulated and what arrangements were made to repay the crime syndicate”. It appears that his Honour did not accept this aspect of the applicant’s explanation for the offence

22. Fifth, the sentencing judge allowed a 25 per cent discount in respect of both offences on account of the applicant’s plea.

23. Sixth, the sentencing judge accepted that by his plea, the applicant had shown contrition and that otherwise he had cooperated with the law enforcement agencies. His Honour found that the applicant was “capable of rehabilitation”.

24. Seventh, the sentencing judge said that having regard to the applicant’s “prospects of rehabilitation” and that it was his first time in prison, he would find “special circumstances”, a finding that engaged s 44(2) of the Crimes (Sentencing Procedure) Act 1999 for the second offence. This finding is reflected in the ratio the non-parole period for the second offence bears to the head sentence, namely 68.4 per cent.

25. Eighth, the better interpretation of the sentencing judgement is that in finding that the applicant was both “capable of rehabilitation” and had “prospects of rehabilitation”, his Honour found that the applicant had good prospects of rehabilitation.

Ground 1: Error in Assessment of Objective Seriousness

26. Ground 1 of the appeal contends that the sentencing judge “…erred in his assessment of the objective seriousness of the [second] offence … by (a) failing to provide reasons for his conclusion; and/or (b) arriving at a conclusion that was not open to him.”

27. The contents of the agreed statement of facts so far as they concern the second offence have been summarised above. Although the applicant only agreed that one third of the money seized was the proceeds of drug sales, his plea of guilty was an admission that the entire amount particularised was the proceeds of crime (ie $12,900.00) although, for two thirds of it, the underlying crime from which it was derived was not specified. Further the admission that one third was the proceeds of drug sales was not necessarily an admission that he sold the drugs.

28. When he gave evidence at the sentence hearing the applicant did not refer to how he came into possession of the funds the subject of the second offence. He was not cross examined on the topic. In submissions, his Counsel did not address the money laundering offence. The Crown provided the sentencing judge with detailed written submissions. However, other than referring to the bare facts surrounding the possession of the funds the subject of the second offence, the submissions were exclusively directed to the first offence. The Crown also provided a table of comparable cases which included two cases concerning s 193B(2) of the Crimes Act, Burns v R [2010] NSWCCA 279 (“Burns”) and Smaragdis v R [2010] NSWCCA 276 (“Smaragdis”). In Burns, an offender received $2350 cash from their own supply of drugs. A sentence of six months’ imprisonment was imposed that was wholly concurrent with a larger sentence for supplying cocaine. In Smaragdis, this Court imposed a fixed term sentence of six months’ imprisonment for the possession of $8032 from drug sales (at [6] and [55]). The sentence was made partially concurrent with a sentence for possession of a prohibited weapon (at [55]).

29. In these circumstances it is perhaps not surprising that his Honour did not devote much attention to any separate consideration of the second offence. Instead as the following passages from the sentencing judgment make clear, to the extent that his Honour referred to the second offence it was only as part of a reference to both offences compendiously:

“I accept that it is a well-established sentencing principle that persons who participate in the illicit drug trade at any level should expect and receive heavy penalties. Quite clearly, there was planning and organisation that was involved in the commission of these offences. The conduct of the offender was not impulsive, opportunistic, nor spontaneous. With the offender having arranged for the consignment to be collected, he took steps to extract the drugs from the liquid content through a drying process.”

“These crimes are, unfortunately, prevalent and, indeed, very serious, with this drug making a significant contribution to social mayhem and criminality in this country. I regard both offences as being a little above the middle of any scale constructed for both offences.”

“The first offence is one of utmost gravity. I am satisfied the offender became involved for financial reward and it is troubling that he did not mention the drug debt to police when first spoken to. The offender ordered the drugs online and, by such, plac[ed] himself a little up the scale in the hierarchial state. There is no real evidence as to the crime figures involved in the importation or as to how the money was accumulated and what arrangements were made to repay the crime syndicate. The offences must result in lengthy custodial sentences to satisfy the requirements for general and specific deterrence.”

30. As noted, the two complaints made in relation to this ground of appeal concern the absence of reasons to support the finding that the second offence was “a little above the middle of any scale constructed for both offences” and that finding was not open (Mulato v R [2006] NSWCCA 282 at [37]; “Mulato”).

31. In that regard, Counsel for the applicant referred to s 193B(2) of the Crimes Act which provides:

(2)   A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.

32. Section 193A defines “deal with”, “proceeds of crime” and “serious offence” as follows:

deal with includes:

(a)   receive, possess, conceal or dispose of, or

(b)   bring or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or

(c)   engage directly or indirectly in a transaction, including receiving or making a gift.

proceeds of crime means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence.

serious offence means:

(a)   an offence (including a common law offence) against the laws of New South Wales, being an offence that may be prosecuted on indictment, or

(a1)   an offence against a law of the Commonwealth that may be prosecuted on indictment, or

(b) the offence of supplying any restricted substance prescribed for the purposes of section 16 of the Poisons and Therapeutic Goods Act 1966 that arises under section 18A (1) of that Act, or

(c)   an offence committed outside New South Wales (including outside Australia) that would be an offence referred to in paragraph (a) or (b) if it had been committed in New South Wales.

33. Based on these provisions, counsel for the applicant identified at least five different factors that, in a given case, could affect an assessment of the objective seriousness of an offence under s 193B(2), namely, the manner of “deal[ing]” that lead to the offence, the level of planning and sophistication involved in such a dealing, the underlying criminal conduct from which the proceeds were derived, the amount or value of the proceeds of crime and any harm that may be occasioned from the offending. Counsel submitted that to make a proper assessment of the relative seriousness of an offence under s 193B(2), “it is necessary to be mindful of those features that are common to all such offences, but also the broad range of variable factors contemplated by the provision”.

34. In submitting that his Honour did not provide adequate reasons for the finding of the objective criminality of the second offence, Counsel for the applicant contended that his Honour did nothing “more than recite the facts and then state his conclusions”. However, it was accepted that his Honour’s observations about the planned nature of the offences and the absence of “how the money was accumulated” might have been referable to the second offence.

35. There was no doubt that it was incumbent upon his Honour to assess the objective seriousness of the second offence (R v Campbell [2014] NSWCCA 102 at [27] Simpson J with whom Hall J agreed) although it was not incumbent upon his Honour to identify where it lay on any scale of offences. It will often be the case with offences under s 193B that little will be known about the offending other than the mere possession of illicit funds and the bare fact that they are derived from illegal activity. In such cases and where a sentencing judge does not receive any submissions specifically directed to the offence, then it might be sufficient for a sentencing judge to merely state what is known about the offending and provide their best assessment of the criminality involved.

33. However, it is unnecessary to consider this further because I accept the second complaint made in relation to ground 1, namely, that it was not open to conclude that it was “a little above the middle of any scale constructed” for offences under s 193B(2) (Mulato id). All that was known in this case was that the applicant was found in possession of $12,900.00, one third of which from drug deals and the balance from some unspecified criminal activity. It was not known whether the applicant had been involved in the drug deals. There was nothing to suggest that the deals or other criminal activity was associated with the importation of MDMA the subject of the first offence. There was nothing in the circumstances of the location of the cash to suggest any great sophistication or planning was involved in the commission of the offence. The Crown submitted that the cash had been accumulated in the two-month period from when he arrived in December 2014 until his arrest in February 2015. However, there was no evidence to enable the identification of any time period over which the funds were accumulated. Otherwise, the amount involved was not insignificant but it is easy to envisage contraventions of s 193B(2) involving much larger amounts and far more sophisticated transactions.

34. It follows from what I have stated that I do not consider his Honour was obliged to assess where the offending involved in the second offence lay on any spectrum of offences under s 193B(2). In fact, given the paucity of information it may be that it was not even possible to place the offence on some scale or spectrum of contravention of s 193B(2). What could be said was that the offending was serious given the amount involved and that at least one third of it was the product of drug dealing. However, his Honour went further and placed the offence “above the middle of any scale”. That conclusion was not supported by the amount that was seized, the circumstances of its seizure and the admission as to the source of one third of it. Given those matters, and that otherwise so little was known about the offending, I do not consider that finding was open to his Honour.

35. Accordingly, I would uphold ground 1 of the application. It follows that the sentencing discretion must be re-exercised afresh (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]; “Kentwell”).

Re-sentencing

39. In light of the finding in respect of ground 1, it is not necessary to consider ground 2 of the application which contended that the sentence for the second offence was manifestly excessive. However, certain aspects of the submissions made in support of that ground are relevant to the resentencing exercise.

40. I have canvassed the factors relevant to sentencing that emerge from the sentencing judgment. Leaving aside the finding of objective seriousness in relation to the second offence the applicant did not seek to revisit any of those findings.

41. In considering re-sentence, four further matters should be noted.

42. First, on this application affidavits from the applicant and his solicitor were read on the usual basis (see Betts v The Queen [2016] HCA 25; 258 CLR 420 at [2]; “Betts”). The affidavits confirm that the applicant has a good behaviour record while in custody and that he is highly valued as a skilled worker. This material reinforces the sentencing judge’s findings concerning rehabilitation.

43. Second, the applicant contended that some degree of concurrency between the sentences for the two offences was warranted “to ensure the sentence remained a just and appropriate measure of the total criminality”. This submission invites some scrutiny of the sentence for the first offence. Overall, I consider that sentence to be relatively lenient. Otherwise the criminality involved in the two offences was wholly distinct. In those circumstances, and consistent with Pearce v R [1998] HCA 57; 194 CLR 610, the proper course is to impose an appropriate sentence for the second offence and make the non-parole periods for the two offences wholly cumulative but allow some concurrency in the head sentences.

44. Third, for the reasons given by the sentencing judge, there should be a finding of special circumstances and the ratio of the non-parole period to the total sentence for the second offence should be approximately the same as that imposed by his Honour.

45. Fourth, in written submissions the Crown contended that if the Court moved to re‑sentence it should infer that all of the funds were derived or realised from the “commission of drug crimes”. In circumstances where no such submission was made to the sentencing judge and it was not put or even raised with the applicant in his evidence before the sentencing judge then it would be productive of unfairness for this Court to draw such an inference on appeal even if that was permissible which I doubt (see Betts at [2]). In any event that inference is not the only reasonable inference in the circumstances and I would not draw it.

46. I propose that for the second offence the applicant be re‑sentenced to a term of imprisonment of 13 months with a non-parole period of 9 months. This will necessitate a variation of the commencement date for the sentence for the first offence. In particular the sentence of 6 years should be adjusted so that it commences on 22 November 2015 and expires on 21 November 2021 and the non-parole period of 4 years expires on 21 November 2019. If that variation is made, the applicant would be first eligible for release on parole on that day.

Proposed Orders

47. Accordingly, I propose the following orders:

1. Leave to appeal against the sentence imposed by the District Court on 23 September 2016 for an offence under s 193B(2) of the Crimes Act 1900 be granted;

2. The appeal be allowed;

3. In lieu thereof, the appellant be sentenced to a term of imprisonment of 13 months commencing 22 February 2015 and expiring 21 March 2016 with a non-parole period of 9 months commencing 22 February 2015 and expiring 21 November 2015;

4. Pursuant to s 7(1A) of the Criminal Appeal Act 1912 the sentence imposed on 23 September 2016 for an offence under s 307.8(1) of the Criminal Code (Cth) be varied so that that sentence of imprisonment for 6 years will commence on 22 November 2015 and expire on 21 November 2021 and the non-parole period of 4 years will expire on 21 November 2019.

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Decision last updated: 26 September 2018