Regina v Johnson Au - [2001] NSWCCA 468

CITATION: Regina v Johnson AU [2001] NSWCCA 468

FILE NUMBER(S): CCA 60502/01

HEARING DATE(S): 19 November 2001

JUDGMENT DATE:
19 November 2001

PARTIES :

Regina
Johnson Au

JUDGMENT OF: Spigelman CJ at 1; Sully J at 2; Greg James J at 27

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0526

LOWER COURT JUDICIAL
OFFICER : Freeman DCJ

COUNSEL : M. Allnutt - Crown
M. Ramage QC/C. Dowd - Appellant

SOLICITORS: Commonwealth DPP - Crown
Geoffrey Edwards & Co. - Appellant

LEGISLATION CITED: Financial Transaction Reports Act 1988
Commonwealth Crimes Act

CASES CITED:
Thomson and Houlton (1999-2000) 49 NSWLR 382
R v Carter, unreported, NSWCCA 27 June 2001
Wong & Leung v The Queen [2001] HCA 64

DECISION: Leave to appeal granted; Appeal upheld; Sentence quashed and substituted with sentence of 12 months' imprisonment with direction that applicant be released after 7 months, entering into recognisance himself in the sum of $500 to be of good behaviour for 5 months; Non parole period to expire on 28 February 2002.

60502/01

SPIGELMAN CJ
SULLY J
GREG JAMES J

Monday 19 November 2001

REGINA v JOHNSON AU

JUDGMENT

1 SPIGELMAN CJ: I invite Justice Sully to give the first judgment.

2 SULLY J: This is an application for leave to appeal against sentence. The applicant, Mr Au, pleaded guilty, before his Honour Judge Freeman in the Sydney District Court, to a charge of having breached the Financial Transaction Reports Act 1988 s 31(1). The maximum penalty for any such breach is imprisonment for five years, with or without a substantial fine.

3 Judge Freeman sentenced the applicant to imprisonment for fourteen months and ordered that he be released after having served nine months upon his entering a recognisance to himself for the sum of $500 to be of good behaviour for five months. The non-parole period thus set expires on 30 April 2002.

4 The relevant facts can be, for present purposes, shortly stated. They are that the applicant executed eight transfers of funds over the period from 18 November to 31 December in amounts ranging from $7000 to $8500. The amounts thus remitted were remitted to two particular accounts in China. Four of the remittances took place over the space of three days and on 19 November the prisoner transmitted $8000 from the St George Bank in Market Street in the city and later that same day the same amount from another bank in Chatswood.

5 His Honour found, in my respectful opinion correctly, that it was a reasonable inference that the dominant purpose of the remittances was to avoid the reporting requirements of the Act. His Honour found that there was an aggravating element, namely, that the offence was committed whilst the prisoner was on parole. That finding was undoubtedly open to his Honour on the material before him; and I agree that it was, as his Honour regarded it, an aggravating element.

6 His Honour found that the applicant was aware, at the very least, of what…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Regina v Johnson Au

Details

AGLC: Regina v Johnson Au [2001] NSWCCA 468
Case: [2001] NSWCCA 468
Decision Date: 19 November 2001

CaseChat Overview and Summary

In the case of Regina v Johnson Au, the appellant, Johnson Au, was convicted of breaching the Financial Transaction Reports Act 1988 and subsequently sentenced by Judge Freeman in the Sydney District Court to a term of fourteen months imprisonment, with a non-parole period of nine months. The appeal before the Court was against the sentence imposed, with the applicant seeking leave to appeal on the grounds that the sentencing judge had erred in his assessment of the facts and in the calculation of the sentence. The Court was required to decide whether the sentence imposed was appropriate in the circumstances, and if not, what the appropriate sentence should be.

The Court found that the sentencing judge had made an error in his assessment of the facts, specifically in not accepting the applicant's claim that he had been influenced by another prisoner, Chiu Lin, to make the remittances. The Court noted that this error went to the underpinning of the judge's process of reasoning on the relevant facts and thus justified intervention by the Court. The Court also found that the sentencing judge had erred in the calculation of the sentence, by making deductions for the absence of remissions before considering the plea of guilty. The Court considered that the demonstrated error in the assessment of the facts warranted a reduction in the sentence imposed. The Court found that a sentence of twelve months imprisonment, with a non-parole period of seven months, was appropriate.

The Court granted leave to appeal, upheld the appeal, quashed the sentence imposed by the District Court and substituted a sentence of twelve months imprisonment, with a non-parole period of seven months. The Court directed that the applicant be released after seven months upon his entering into a recognisance himself in the sum of $500 to be of good behaviour for five months. The non-parole period would expire on 28 February 2002. The Court found that the sentence imposed by the District Court was not appropriate in the circumstances and that a reduced sentence was warranted.

Orders