Schembri v R - [2010] NSWCCA 149

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Schembri v Regina [2010] NSWCCA 149

FILE NUMBER(S):
2007/14872

HEARING DATE(S):
7 July 2010

JUDGMENT DATE:
14 July 2010

PARTIES:
Victoria Frances Schembri (Applicant)
Regina (Respondent)

JUDGMENT OF:
Beazley JA Kirby J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/11/0929

LOWER COURT JUDICIAL OFFICER:
Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION:
1 May 2009

COUNSEL:
T Jones (Applicant)
N Adams (Crown)

SOLICITORS:
Vizzone Ruggero & Associates (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW – sentence – money laundering offence charged additionally to principal offence – no additional criminality – sentence should be concurrent not cumulative
CRIMINAL LAW – sentence – money laundering offence charged additionally to principal offence – no additional criminality – inappropriateness of more than one charge

LEGISLATION CITED:
Criminal Code Act 1995 (Cth)

CATEGORY:
Principal judgment

CASES CITED:
Nahlous v R [2010] NSWCCA 58
Thorn v R [2009] NSWCCA 294

TEXTS CITED:

DECISION:
1. Leave to appeal granted;
2. Appeal allowed;
3. Quash the sentence imposed with respect to count 17 and, by way of re-sentence, impose a sentence of 2 years imprisonment to start on 20 October 2012 and conclude on 19 October 2014;
4. Quash the non-parole period specified by the sentencing judge and set a non-parole period of 3 years and 5 months to conclude on 19 March 2012.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/14872
BEAZLEY JA
KIRBY J
JOHNSON J
14 July 2010

Victoria Frances Schembri v Regina

Judgment

THE COURT: On 20 October 2008, the applicant was found guilty by a jury of 9 counts of obtain a financial advantage by deception (the Criminal Code Act 1995 (Cth), s 134.2(1)); 6 counts of attempt to obtain a financial advantage by deception (the Criminal Code Act, ss 11.1 and 134.2(1)); and 1 count of deal with proceeds of crime (count 17 of the indictment) being $100,000 or more (the Criminal Code Act, s 400.4(1)).
All offences except count 17 related to the lodging of business activity statements with the Australian Taxation Office which claimed false Goods and Services Tax refunds. Count 17 related to using the proceeds of the funds obtained as a result of the first 9 counts.
The maximum penalty for an offence under s 134.2(1) is 10 years imprisonment.
The maximum penalty for an offence under s 400.4(1) is 20 years imprisonment or 1,200 penalty units ($132,000), or both.
On 1 May 2009, Ainsley-Wallace DCJ sentenced the applicant to an aggregate term of imprisonment of 7 years from 20 October 2008 to 19 October 2015, with a non-parole period of 4 years from 20 October 2008 to 19 October 2012.
The applicant sought leave to appeal against sentence on the following grounds:
Ground 1:           the sentencing judge erred in determining that general deterrence was a factor in determining the sentence or alternatively gave undue weight to the principles of general deterrence;
Ground 2:           the sentencing judge erred in failing to find special circumstances;
Ground 3:           the sentencing judge erred in imposing a sentence for count 17 that was not wholly concurrent with counts 1 to 15.
At the commencement of the hearing of the application for leave to appeal, counsel for the applicant informed the Court that grounds 1 and 2 were abandoned.
The Crown had already indicated in its written submissions dated 28 June 2010, that it conceded ground 3. The Crown accepted that this would involve a reduction in both the total sentence and the non-parole period. The Crown also accepted that in any re-sentence exercise, it was appropriate for the Court to maintain the ratio between the head sentence and the non-parole period as had been ordered by the trial judge.
The Court considered that the Crown had properly conceded ground 3 and that the sentence on count 17 should be quashed and the appellant re-sentenced in respect of that count so that it ended on the same date as the last sentence otherwise imposed by her Honour. The non-parole period correspondingly needed adjustment. Accordingly, the Court made orders at the conclusion of the appeal to that effect. Those orders are formalised below.
Notwithstanding that ground 3 was conceded by the Crown, it is appropriate that we say something about it.
Count 17 charged the applicant with a money laundering offence which arose out of the same facts as the other offences with which she was charged. There have been at least three cases before the Court in the last year where the Court has criticised the prosecution practice of charging offenders in this way. To the credit of the Crown Prosecutor in this case, he brought those cases to our attention and made the concession to which we have referred.
The problem was adverted to in Thorn v R [2009] NSWCCA 294, when Howie J pointed out that money laundering offences were intended by the legislature to be directed at activity where persons were intimately involved in dealing in money that was the result of some other person’s criminal activity, so as to hide its source.
Shortly after Thorn, this Court delivered its decision in Nahlous v R [2010] NSWCCA 58. In that case, the applicant had pleaded guilty in the Local Court to six offences contrary to the provisions of the Copyright Act 1968 (Cth) (the decoder offences) concerning the sale of, or offering to sell, unauthorised decoders. The relevant provisions of that Act were ss 135ASB(1) and 135ASC(1). The applicant also pleaded guilty to an offence contrary to the CriminalCode Act, s 400.6(1). That section is concerned with dealing in the proceeds of crime. The decoder offences each carried a maximum penalty of imprisonment for 5 years. The offence of dealing in the proceeds of crime carried a maximum penalty of imprisonment for 10 years. The applicant, on a plea of guilty, was sentenced to various terms of imprisonment of 3 to 6 years, to be served by way of periodic detention, on the copyright offences. Relevantly for present purposes, however, on the money laundering offence, he was sentenced to 20 months imprisonment.
The Court (McClellan CJ at CL, Howie and Rothman JJ) referred first to Thorn and noted, at [14], that there was a basis in that case for the money laundering charge:
“… because it captured criminality of the applicant’s co-offender, who had never been charged and yet was involved in a joint criminal enterprise with the applicant.”
The Court then stated, importantly, at [17]:
“We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty.”
Those remarks apply in this case to count 17. However, it is important to re-emphasise this Court’s disapproval of such prosecutorial action. The Crown Prosecutor informed the Court that he has brought this issue to the attention of the Commonwealth Director of Public Prosecutions. We note that the charges in this case were laid and the trial conducted and sentences passed well before the decisions to which we have referred were given. Nonetheless, the matter is of such importance that we consider a copy of these remarks should be brought to the attention of the Commonwealth Director of Public Prosecutions.
We confirm the orders of the Court as follows:
1. Leave to appeal granted;
2. Appeal allowed;
3.Quash the sentence imposed with respect to count 17 and, by way of re-sentence, impose a sentence of 2 years imprisonment to start on 20 October 2012 and conclude on 19 October 2014;
Quash the non-parole period specified by the sentencing judge and set a non-parole period of 3 years and 5 months to conclude on 19 March 2012.

LAST UPDATED:
14 July 2010