SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
RANKIN (A PSEUDONYM) v THE KING
[2024] SASCA 112
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Auxiliary Justice Hall)
10 September 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - PROCEEDS OF CRIME, MONEY LAUNDERING AND RELATED OFFENCES
The appellant sought permission to appeal against sentence.
The appellant was convicted following a trial by judge alone of 20 counts of money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced to a head sentence of six years’ imprisonment and a non-parole period of three years and six months.
The charges arose from the appellant’s central role in a scheme for the fraudulent ordering, procurement, and subsequent sale of new Apple iPhones between April and May 2020.
The appellant submitted that the sentence imposed by the trial judge was manifestly excessive having pointed to the following matters:
1.The appellant’s lack of prior offending and good character.
2.The appellant’s cooperation with authorities.
3.The appellant’s restitution before sentence.
4.The appellant’s letter of remorse.
5.The fact that the appellant has been assaulted and threatened whilst in custody pending sentence.
HELD (the Court) granting permission to appeal on the ground of manifest excess and dismissing the appeal:
1.Without pointing to any specific error, the appellant asserted that a number of matters were given inadequate weight. Arguments about weight will not usually assist an application for permission to appeal against sentence.
2.There was nothing in the points made about the appellant’s lack of prior offending and good character, or the restitution he made. These matters were taken into account. The challenge made to the 5 per cent reduction for cooperation was problematic where the sentencing judge made the reduction sought by the appellant.
3.Whilst it was relevant to consider whether an offender will serve a sentence of imprisonment in a manner that is harsher than other prisoners, it cannot be said that this was overlooked by the sentencing judge. It remained open to the Executive to appropriately manage prison security. It was perfectly open to the sentencing judge to view the appellant’s apology and remorse with scepticism where he had “lied almost from start to finish” in evidence at the trial.
4.As for manifest excess, it was appropriate for the sentencing judge to take into account the seriousness of the charged conduct by reference to a number of features involved in the offending, including:
1. The amount of money or property.
2. The period and number of transactions.
3. The degree of pre-meditation and sophistication.
4. The extent of any dishonesty, breach of trust or corruption, including whether it stopped only because of detection by the authorities.
5. The offender’s knowledge or belief about the origin or ownership of the money and property involved, together with who was to benefit from it.
6. The offender’s…
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- AGLC
- Rankin (a pseudonym) v The King [2024] SASCA 112
- Case
- [2024] SASCA 112
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge had erred in assessing the mitigating factors presented by the appellant, specifically regarding his lack of prior convictions, good character, cooperation with authorities, and restitution. The court was required to determine if these factors warranted a greater reduction in sentence than that already afforded by the sentencing judge, and ultimately, whether the imposed sentence was manifestly excessive.
The court reasoned that while the sentencing judge had properly considered the appellant's absence of prior convictions and good character, these factors offered limited scope for leniency given the nature of the offending. Regarding cooperation, the court noted that a 5% reduction had already been applied, and the appellant's information, while providing intelligence, did not yield immediate benefits and was inconsistent with trial findings. The court found no reason to believe the sentencing judge failed to give proper consideration to the value of this cooperation. Similarly, restitution had been taken into account as a mitigating factor. The court concluded that, after considering all the appellant's arguments, the sentence imposed was not unreasonable, unjust, or manifestly excessive. Permission to appeal was granted, but the appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Whilst the sentencing judge took into account the absence of prior convictions and the appellant’s prior good character, it was difficult to regard these as affording much scope for leniency in circumstances where the offending was far from isolated and the appellant’s dishonest conduct was central to the scheme’s success. Cooperation with the authorities Again, this was a matter specifically taken into account and a 5 per cent reduction was made. This challenge is, to say the least, problematic in a case where the sentencing judge made the reduction sought by the appellant. An offender’s cooperation will usually warrant some reduction in sentence.[18] Equally, however, the extent of any reduction will necessarily depend on upon its quality.[19] In broad terms, the appellant’s information identified others potentially involved with the appellant in the criminal scheme, as well as those with whom the appellant had had some contact and who were involved in various kinds of criminal activity. There was in this case no Golding letter,[20] and the cooperation was regarded as providing Police with intelligence but no immediate benefit. [18] R v Portolesi (1988) 48 SASR 217, 219-220 (King CJ); Samuels (a pseudonym) v The King [2024] SASCA 50, [9] (Livesey P). [19] Nannup v The State of Western Australia [2011] WASCA 257, [64] (Buss JA, with whom McLure P and Mazza JA agreed); Donnelly v The King (2022) 304 A Crim R 237, [111] (Doyle, Bleby and David JJA). [20] R v Golding (1980) 24 SASR 161; York v The Queen (2005) 225 CLR 466, [3] (Gleeson CJ). Whilst others were undoubtedly involved in the criminal scheme, the information provided by the appellant was inconsistent with the findings made by the trial judge that the appellant was responsible for approaching and corrupting Australia Post employees. In an important respect it omitted reference to the involvement of the appellant’s brother. Otherwise, the information supplied was vague concerning what appeared to be a range of low-level dishonesty offending. There is no reason to think that the sentencing judge failed to give proper consideration to the nature, extent and value of the appellant’s cooperation when determining the appropriate reduction.[21] [21] R v Salameh (1991) 55 A Crim R 384, 386; GZO v The Queen (2021) 138 SASR 256. The appellant abandoned his submission regarding s 37 of the Sentencing Act 2017 (SA), evidently because he did not meet the requirements of that provision. As has been recognised, s 37 supplements rather than replaces the common law concerning cooperation.[22] [22] O’Neill v The Queen [2020] SASCFC 78, [41] Nicholson J, with whom Stanley and Hughes JJ agreed). Making restitution Again, there is nothing in this point. The sentencing judge took restitution into account as a mitigating factor. Whilst the appellant tended to lump the payment of $20,000 together with the forfeiture of the amount of $65,435, it was necessary for the latter to be separately considered as “compelled restitution”.[23] Only the repayment of $20,000 was made without the threat of forfeiture.[24][23] Sentencing remarks, p3. [24] See, by way of example only, R v Nath (1994) 74 A Crim R 115. See also McNamara v The Queen (No 2) [2021] SASCFC 43, [25]-[29] (Nicholson, Livesey and Bleby JJ) and the extent of any personal sacrifice required of an offender making restitution. The expressions of remorse and contrition