Shi v R - [2014] NSWCCA 276

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Shi v R [2014] NSWCCA 276
Hearing dates: 13 October 2014
Decision date: 26 November 2014
Before: Leeming JA at [1]
Fullerton J at [2]
Bellew J at [3]
Decision:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The sentences imposed in the District Court of NSW are quashed.
4.In lieu thereof the applicant is sentenced as follows:
i. in respect of each of counts 1, 2 and 3, imprisonment for 1 year and 3 months commencing 12 December 2012 and expiring on 11 March 2014, such sentences to be served wholly concurrently;
ii. in respect of each of counts 4, 5 and 6, imprisonment for 1 year and 3 months to commence at the expiration of the sentences imposed in respect of counts 1,2 and 3, i.e. 12 March 2014 and to expire on 11 June 2015;
iii. in respect of counts 7 and 8, imprisonment for 1 year and 3 months to be served concurrently and to commence at the expiration of the sentences imposed in respect of counts 4, 5 and 6, i.e. 12 June 2015 and to expire on 11 September 2016;
iv. in respect of each of counts 9 and 10, imprisonment for 1 year and 3 months to be served concurrently, to commence on 12 June 2016 and to expire on 11 September 2017;
v. the sentence imposed in the Court below in respect of the offence against s. 400.9(1A) of the Criminal Code, namely imprisonment for 9 months commencing on 12 December 2012 and expiring on 11 September 2013, is confirmed;
vi. the overall sentence imposed is one of 4 years and 9 months imprisonment;
vii. a non-parole period of 2 years and 7 months imprisonment is imposed, commencing on 12 December 2012 and expiring on 11 July 2015.

Catchwords:
CRIMINAL LAW - sentencing - money laundering offences - where sentencing judge found that the applicant knew that the money was proceeds of crime - where applicant charged with an offence which alleged that it was reasonable to suspect that the money was proceeds of crime - whether findings of the sentencing judge breached principle in De Simoni - whether the circumstances which led to that finding were unfair to the applicant

CRIMINAL LAW - sentencing - money laundering offences - where sentencing judge assessed applicant's assistance as modest - where assistance resulted in the apprehension and prosecution of another offender and the recovery of a substantial amount of money - whether assessment of assistance correct - whether sentencing judge took into account irrelevant considerations in assessment
CRIMINAL LAW - sentencing - money laundering offences - where applicant pleaded guilty at the earliest available opportunity - where 25 per cent discount allowed - where applicant's assistance not given proper weight - error established - applicant resentenced
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Proceeds of Crime Act 2002 (Cth)
Cases Cited: Cameron v R [2002] HCA 6; (2002) 209 CLR 339
Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
Kentwell v R [2014] HCA 37
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Brown [2012] NSWCCA 199
R v Cartwright (1989) 17 NSWLR 243
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99
R v Li [2010] NSWCCA 125
R v PPB [1999] NSWCCA 360
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
Wong v R [2001] HCA 64; (2001) 207 CLR 584
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment
Parties: Si Shi - Applicant
Crown - Respondent
Representation: Counsel:
R Wilson - Applicant
R J Bromwich SC and T Muir - Respondent
Solicitors:
S O'Connor, Legal Aid New South Wales - Applicant
Commonwealth Director of Public Prosecutions - Respondent

File Number(s): 2012/128059003 2012/180082012
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-12-12 00:00:00

Before:

Judge Woods QC

Judgment

LEEMING JA: I agree with Bellew J.

FULLERTON J: I agree with Bellew J.

BELLEW J: Si Shi ("the applicant") pleaded guilty in the District Court to 10 offences contrary to s. 400.9(1) of the Criminal Code 1995 (Cth) ("the Code"). That section, which is considered more fully below, creates an offence of dealing with property which is reasonably suspected to be the proceeds of crime. It carries a maximum penalty of imprisonment for 3 years or 180 penalty units, or both.

The dates of the various offences, and the amounts with which the applicant dealt in each case, were as follows:

(i) 26 September 2011 - $772,450.00 (Count 1);

(ii) between 5 October 2011 and 7 October 2011 - $1,951,570.00 (Count 2);

(iii) 12 October 2011 - $532,950.00 (Count 3);

(iv) between 17 October 2011 and 21 October 2011 - $3,276,410.00 (Count 4);

(v) between 25 October 2011 and 28 October 2011 - $1,749,275.00 (Count 5);

(vi) between 31 October 2011 and 4 November 2011 - $5,134,865.00 (Count 6);

(vii) between 7 November 2011 and 11 November 2011 - $5,873,780.00 (Count 7);

(viii) between 14 November 2011 and 18 November 2011 - $6,907,125.00 (Count 8);

(ix) between 21 November 2011 and 25 November 2011 - $7,006, 245.00 (Count 9);

(x) between 28 November 2011 and 1 December 2011 - $2,660,505.00 (Count 10).

The applicant also pleaded guilty to a charge contrary to s. 400.9(1A) of the Code which creates an offence which is essentially identical to that created by s. 400.9(1) but which is committed where the relevant amount is less than $100,000.00. The maximum penalty for that offence is imprisonment for 2 years or 120 penalty units, or both. In the present case, that offence was committed on 8 December 2011, and the amount of money involved was $88,615.00.

The sentencing judge imposed the following sentences:

(i) in respect of each of counts 1, 2 and 3, imprisonment for 1 year and 6 months commencing on 12 December 2012 and expiring on 11 June 2014, such sentences to be served wholly concurrently;

(ii) in respect of each of counts 4, 5 and 6, imprisonment for 1 year and 6 months to be served concurrently to commence at the expiration of the sentences imposed in respect of counts 1,2 and 3 (i.e. 12 June 2014), and to expire on 11 December 2015;

(iii) in respect of counts 7 and 8, imprisonment for 1 year and 6 months to be served concurrently and to commence at the expiration of the sentences imposed in respect of counts 4,5 and 6 (i.e. 12 December 2015), and to expire on 11 June 2017;

(iv) in respect of each of counts 9 and 10, imprisonment for 1 year and 6 months to be served concurrently to commence on 12 December 2016 and to expire on 11 June 2018;

(v) in respect of the offence against 400.9(1A) imprisonment for 9 months commencing on 12 December 2012 and expiring on 11 September 2013.

The overall sentence imposed was one of 5 years and 6 months. His Honour imposed a non-parole period of 3 years. He also made an order pursuant to s. 48(2) of the Proceeds of Crime Act 2002 (Cth) for the forfeiture of a total of AUD$758,615.00.

The appellant now seeks leave to appeal against the sentences imposed on the grounds more fully set out below.

THE FACTS

The sentencing judge found the following facts, which are not in dispute (commencing at ROS 1):

"The offences relate to so called black money which was being generated somehow illegally in Sydney or Australia and was being funnelled out of Sydney via the Westpac Bank and a currency transfer company called Super Forex. Those institutions have not been charged as being wrongly involved in this matter but plainly there was some conspiracy involving certain persons in which very large sums of money were being generated in Australia, probably "black" money in the sense of it being money upon which its possessor wished to pay no tax. It may have had some other criminal provenance but I do not know about that.

It was being warehoused so to speak, in premises occupied by Mr Liu and handed over physically to this offender Ms Si Shi, who had the role in this enterprise of receiving the large sums of cash from Liu and causing it to be put into a Super Forex account in the Westpac Bank at the Haymarket Sydney. Both of these people, Shi and Liu, are not sophisticated and are not, as it were, the kingpins or big wheels of this very substantial financial conspiracy.

Each played a significant role without being told too much about it. Each had powerful reasons to suspect, at least, and in my view to realise, that the monies were unlawfully obtained and (in the case of Mr Liu) intended to be used in some illegality, even if merely to avoid the currency processes.

The background to Ms Shi is that she came to Australia with her husband in a relationship which broke down for reasons that are largely irrelevant here. She has a mother who was being cared for in China by another person who appears to be involved in this enterprise. This person, whom she described as an "aunty", appeared at first friendly to her and helpful and was very helpful to her mother in assisting that lady with medical treatments. It is plain this "aunty" person is a significant figure in this black money conspiracy. Ms Shi was asked or prevailed upon to perform the task of physically moving the money from one point to another and making deposits. The offender Shi was introduced to the principal of the Super Forex company by her husband, Mr Xi Qui Li in around May 2010.

The Super Forex people became concerned about the offender making large cash deposits at the Super Forex city branch and Mr Yang, the principal of Super Forex, told her the money should be more sensibly deposited into Super Forex's Westpac account. He liaised with her, advised her of the relevant exchange rate for the next day and got her instructions to send the money out of Australia. She told him she had a relative doing foreign exchange in Hong Kong and the relative has helped her mother. She said: "So I am helping them now. The money is from Hong Kong persons in Australia who need to get the money to Hong Kong."

The principal at Super Forex told her she was required to get identities and to be able to ascertain where the money was from, and that represented the Australian law. She told him:

"Don't worry, it is all from a legal business. I'm just helping a relative in Hong Kong."

The Super Forex company was no doubt attracted by the notion large sums of money that were passing through its hands and it was receiving commissions, but nonetheless it was also obviously troubled about the arrangements. Ms Shi became known to the staff at the Haymarket Westpac Bank as a person who deposited large sums of cash. She told different stories to the bank, sometimes that she was just dropping the cash off on behalf of Super Forex customers and on another occasion she told the manager she was an employee of Super Forex, and she led the Westpac staff to believe that.

In late November the manager of the branch quite reasonably became increasingly concerned about the size of the cash deposits being made by the offender. He interrogated her about her connection with Super Forex and she gave some fairly unsatisfactory answers. Mr Yang of Super Forex was contacted and he told her Ms Shi worked for his company as a marketing manager. In late November 2011 the managers of several of the Haymarket branches of Westpac met to discuss the problem of these deposits being made. Shi entered at that time and the bank managers discussed with her the dangers of moving such large sums of cash around, and suggested alternative arrangements, for example, the use of Armaguard. She became quite upset during the meeting and at one stage began to cry. She was interrogated about her relationship to Super Forex and on that occasion she said she was not an employee of Super Forex but a customer.

On the following Tuesday Percy Yang of Super Forex attended the 591 George Street Branch and informed the manager that Ms Shi would not come back to the branch as she had organised Chubb to collect the money from her customers. Examination of information downloaded from the offender's mobile phone shows text messages between Yang and the offender and the offender and various numbers in Hong Kong about the money being deposited. On all but two occasions the subject of a charge, Yang sent a text in English to the offender confirming the deposits received by Super Forex. These amounts correspond to the deposits shown on the Westpac Bank statement for Super Forex and there is no doubt the documents show the monies deposited were properly transmitted to Hong Kong to several accounts which are identified in exhibit SA.

From the evidence overall, it seems that the man Liu would meet with her for the purpose of handing over a bag of cash which he had previously been given by somebody else. He met her initially in Chinatown in a Honda car. Liu got into the car with a bag of money, she showed him a passport and he handed her the bag. Thereafter, usually near the Ultimo Library, he met her in the Chinatown area, usually in his car. Except for the first meeting in Chinatown, he handed the offender the bag containing cash and watched her count the money before they parted. He says that sometimes after she had finished counting the cash she made a phone call and was collected by a Chinese man with a scar on his face.

On 1 December 2011 the offender attended the Haymarket branch of Westpac Bank with a suitcase containing $670,000 in cash. She left it there to be counted but they told her they did not have sufficient staff. They obviously delayed. She insisted Hong Kong needed the transfer but the AFP at that stage was involved and that deposit was never made.

The total amount of monies involved in this exercise is very substantial, over thirty-five million Australian dollars. In exhibit SA there is set out a list of the particular deposits that were made: on 26 September 2011 a total of $772,000 plus (that is the offence which is sequence 1). Sequence 2 is a number of amounts, 262,000 plus, 766,000 plus, 922,000 plus and so on.

Sequence 4 involves something over two million dollars. Sequence 5, again almost two million. Sequence 6, the following amounts - 31 October 2011 1.2 million plus, together with 1.5 million plus, together with one million plus, together with 1.2 million plus and so on until the end of November when the balloon went up, so to speak. These are very substantial sums of money.

Leaving aside questions of the state of mind of the offender, her knowledge and her role, objectively, the unlawful movement of such sums of money is calculated to cause very serious economic and commercial damage to the Australian economy and to the interests of the Australian people.

Ms Shi gave evidence before me and explained her background, her life in China and her unfortunate marital problems. She wanted to save face and to repay obligations relating to her mother and the person called "aunty". She gave evidence that from time to time there would be telephone calls between her and the person aunty, obviously a principal, who complained there was short payment from time to time. She said she felt threatened by aunty and particularly she felt concerned her mother might be hurt or injured by the interests associated with the money.

Mr Liu gave evidence. He denied stealing any money himself but I do accept, since he was found in a house stuffed in a haphazard way full of bags of money and since he had a drug addiction and was a gambler, it is highly likely that he was living off some of the money, to the extent he thought he could get away with it. This may have provoked anger from the principals.

As to what the offender Ms Shi may have been getting out of it, it is very hard to say. She denies any gain or reward in any significant way, apart from the fact of being assisted in the care of her mother in China. I do accept she is a person who is at a low level in this enterprise, even though that level is an important level. I do not regard her as being a kingpin. It was argued on her behalf and I accept, she was a face pushed forward by those who are principals in this to perform a function where she would be identifying herself to the bank and identifying herself to Super Forex without disguise. If there was any trouble, she would be the "bunny" who would get caught. She was undoubtedly used by others involved. She had connections with those higher up the chain and those connections have not been explored in detail in these proceedings."

THE APPLICANT'S ROLE

In terms of the applicant's role in the enterprise, his Honour made the following finding (at ROS 8):

"The offender played a significant role in the overall conspiracy. Although she was used as a dispensable tool and her role was low level, what she did was important. Her task of liaison and depositing of the money was a vital ingredient of the overall enterprise. The overall sum is thirty-five million dollars plus. That alone is not a reflection of her criminality but it is something that I take into account. I have no doubt she was deliberately chosen by higher ups in China, Australia and in particular by the woman who befriended her mother and assisted that lady with medical bills".

THE APPLICANT'S SUBJECTIVE CASE

A report of Dr Katie Seidler, Clinical and Forensic Psychologist, was before the sentencing judge. The report noted that the applicant was born and raised in Guangzhou in Southern China. She was an only child and her parents separated when she was 12, after which she remained in the care of her mother. The applicant was educated to high school level and was employed in various capacities in China. She came to Australia in September 2009 to live with her husband who had earlier entered on a student visa. That marriage has since broken down.

At paragraph (48) of her report Dr Seidler said:

"...Ms Shi appears to be a vulnerable, unsophisticated and naïve young woman, who has poor self-esteem and prioritises others over herself. She has a strong sense of duty and is inherently prosocial. To this end, the present offences appear to be an aberration that occurred as a result of perceived obligation to a family friend who had assisted both her mother and aunt, in addition to the effect of naivety, social isolation and vulnerability".

The sentencing judge made reference to Ms Seidler's report (commencing at ROS 6) and concluded that the applicant was under "tremendous pressure" because of the charges. His Honour further noted (at ROS 7) that character references tendered on sentence indicated that the applicant's offending was out of character. He expressly accepted the observations of the author of one of those references who stated that the applicant had demonstrated "a deep and profound regret that she became involved."

I have dealt in more detail with other aspects of his Honour's findings when considering the individual grounds of appeal.

THE GROUNDS OF APPEAL

Ground 1 - The sentencing judge erred by finding, and taking into account as an aggravating feature of the offences, that the applicant was aware that the money the subject of the offences was "unlawfully obtained" and/or criminally sourced.

The applicant's evidence

The applicant gave evidence on sentence. The sole reference in that evidence to her knowledge of the source of the money is to be found in the following passage (at T18 L42 - T19 L1):

Q All right, apart from Ms Jun and Mr Liu, her husband, did you have any knowledge of where the money originated from?

A INTERPRETER: I really had no idea.

Q When you gave evidence to his Honour about the involvement in transactions that are not charged and you became uncomfortable with the money what did you suspect about the money?

A INTERPRETER: I mean, Sister Ing told me, she said the money belonged to June's friends, all about very wealthy people, they either had company or factories here in Australia so I didn't doubt, I didn't try to guess the source.

The Crown did not challenge this evidence. In particular, the Crown did not put to the applicant that she knew that the money was the proceeds of crime.

At the conclusion of the evidence, and consistent with what the applicant had said, counsel then appearing for her made the following submission (at T48 L28-32):

"She suspected the money was tainted but nonetheless she carried out the instructions that she was given and those instructions that were given were initially culturally based, if I could put it that way..."

The Crown did not make any submission to the contrary regarding the applicant's suspicion. In particular, the Crown did not submit that his Honour should find that the applicant knew that the money was the proceeds of crime.

The findings of the sentencing judge

At ROS 2, the sentencing judge said the following:

"Both of these people, Shi and Liu, are not sophisticated and are not, as it were, the kingpins or big wheels of this very substantial financial conspiracy. Each played a significant role without being told too much about it. Each had powerful reasons to suspect at least, and in my view to realise, that the monies were unlawfully obtained and (in the case of Mr Liu) intended to be used in some illegality, even if merely to avoid the currency processes" (my emphasis).

His Honour then said (at ROS 5):

"Leaving aside questions of the state of mind of the offender, her knowledge and her role, objectively, the unlawful movement of such sums of money is calculated to cause very serious economic and commercial damage to the Australian economy and to the interests of the Australian people" (my emphasis).

Finally (at ROS 8 - 9) his Honour said:

"The offences are serious, albeit charged as reasonable suspicion rather than as based on a more blameworthy mental state. The statute in question is structured so as to permit different levels of punishment for different levels of mens rea, if I can use that term, meaning moral culpability. I have no doubt she was aware the money was criminally sourced and that it was contrary to the law of Australia for her to do what she did" (my emphasis).

Submissions of the applicant

Having regard to the relevant legislative scheme (which is discussed further below) it was submitted that if the applicant knew that the money was the proceeds of crime (as his Honour found was the case) she would be guilty of a far more serious offence than that with which she had been charged, and which required only that there be a reasonable suspicion that the money was the proceeds of crime. Counsel submitted that in these circumstances, the conclusion reached by the sentencing judge that the applicant knew that the money was the proceeds of crime was in breach of the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.

Counsel also submitted that it was apparent, from the multiplicity of references to the issue, that the sentencing judge treated, as an aggravating factor, what he found to have been the applicant's knowledge, and that this played a significant role on sentence.

Finally, counsel submitted that in any event, the conclusion that the applicant knew that the money was the proceeds of crime was not supported by the evidence.

Submissions of the Crown

The Crown emphasised that the sentencing judge had not, at any stage, expressed the view that a state of mind higher than suspicion was required in order to commit the offence, nor had he specifically stated that he regarded what he found to have been the applicant's state of mind as an aggravating factor. The Crown submitted that when his Honour's reasons were read as a whole, they reflected a proper appreciation of the provisions of s. 400.9(1).

Consideration

General provisions of the Code

Section 3.1 of the Code deals with elements of offences and is in the following terms:

3.1 Elements

(1) An offence consists of physical elements and fault elements.

(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.

(3) The law that creates the offence may provide different fault elements for different physical elements.

Section 4.1 prescribes the various physical elements in the following terms:

4.1 Physical elements

(1) A physical element of an offence may be:

(a) conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, occurs.

(2) ....

Division 5 of the Code (ss. 5.1 to 5.6) makes provision for the fault elements of:

(i) intention;

(ii) knowledge;

(iii) recklessness; and

(iv) negligence.

The regime of money laundering offences created by the Code

Part 10.2 (Division 400) of the Code, and in particular ss. 400.3 to 400.8, create a regime of offences of dealing in the proceeds of crime, such offences being generically described as "money laundering". Section 400.3 is in the following terms:

400.3 Dealing in proceeds of crime etc.--money or property worth $1,000,000 or more

(1) A person is guilty of an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is, and the person believes it to be, proceeds of crime; or

(ii) the person intends that the money or property will become an instrument of crime; and

(c) at the time of the dealing, the value of the money and other property is $1,000,000 or more.

Penalty: Imprisonment for 25 years, or 1500 penalty units, or both.

(2) A person is guilty of an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

(d) at the time of the dealing, the value of the money and other property is $1,000,000 or more.

Penalty: Imprisonment for 12 years, or 720 penalty units, or both.

(3) A person is guilty of an offence if:

(a) the person deals with money or other property; and

(b) either:

(i) the money or property is proceeds of crime; or

(ii) there is a risk that the money or property will become an instrument of crime; and

(c) the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

(d) at the time of the dealing, the value of the money and other property is $1,000,000 or more.

Penalty: Imprisonment for 5 years, or 300 penalty units, or both.

(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).

Note 1: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

Sections 400.4 to 400.8 are in essentially the same terms as s. 400.3 but apply (in descending order) to different values of money or property. In keeping with that circumstance, the maximum penalties for offences contrary to ss. 400.4 to 400.8 are less than that prescribed for 400.3.

Each of ss. 400.3 to 400.8 creates 3 separate offences. In terms of the severity of each of the 3 offences created in each case, the provisions are "cascading" in nature according to the amount of money involved as well as the state of mind of the offender.

Subsection (1) of each of ss. 400.3 to 400.8 creates an offence of dealing with money or other property in particular circumstances. The physical element of that offence in each case is conduct. That conduct (i.e. the dealing) constitutes an offence where the value of the money or property exceeds the nominated amount, and where:

(i) the money or other property is the proceeds of crime and the offender believes that to be the case (the applicable fault element being that of knowledge), or:

(ii) the offender intends that the money or property will become an instrument of crime (the applicable fault element being that of intention).

The offence with which the applicant was charged

Section 400.9, under which the applicant was charged, creates an entirely separate offence of dealing with property which is reasonably suspected of being the proceeds of crime:

400.9 Dealing with property reasonably suspected of being proceeds of crime etc.

(1) A person commits an offence if:

(a) the person deals with money or other property; and

(b) it is reasonable to suspect that the money or property is proceeds of crime; and

(c) at the time of the dealing, the value of the money and other property is $100,000 or more.

Penalty: Imprisonment for 3 years, or 180 penalty units, or both.

(1A) A person commits an offence if:

(a) the person deals with money or other property; and

(b) it is reasonable to suspect that the money or property is proceeds of crime; and

(c) at the time of the dealing, the value of the money and other property is less than $100,000.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

(2) Without limiting paragraph (1)(b) or (1A)(b), that paragraph is taken to be satisfied if:

(a) the conduct referred to in paragraph (1)(a) involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Financial Transaction Reports Act 1988 that would otherwise apply to the transactions; or

(aa) the conduct involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 that would otherwise apply to the transactions; or

(b) the conduct involves using one or more accounts held with ADIs in false names; or

(ba) the conduct amounts to an offence against section 139, 140 or 141 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 ; or

(c) the value of the money and property involved in the conduct is, in the opinion of the trier of fact, grossly out of proportion to the defendant's income and expenditure over a reasonable period within which the conduct occurs; or

(d) the conduct involves a significant cash transaction within the meaning of the Financial Transaction Reports Act 1988 , and the defendant:

(i) has contravened his or her obligations under that Act relating to reporting the transaction; or

(ii) has given false or misleading information in purported compliance with those obligations; or

(da) the conduct involves a threshold transaction (within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 ) and the defendant:

(i) has contravened the defendant's obligations under that Act relating to reporting the transaction; or

(ii) has given false or misleading information in purported compliance with those obligations; or

(e) the defendant:

(i) has stated that the conduct was engaged in on behalf of or at the request of another person; and

(ii) has not provided information enabling the other person to be identified and located.

(4) Absolute liability applies to paragraphs (1)(b) and (c) and (1A)(b) and (c).

(5) This section does not apply if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity.

An offence contrary to s. 400.9 requires proof of three elements, namely that:

(i) the offender deals with money or other property;

(ii) it is reasonable to suspect that the money or other property is the proceeds of crime; and

(iii) at the time of the dealing, the money and other property is $100,000.00 or more.

As to each of these elements:

(i) the first, namely that of dealing, is a physical element, namely conduct (s. 4.1(1)(a));

(ii) the second and third are each physical elements, namely circumstances in which the relevant conduct occurs (s. 4.1(1((c)).

Section 400.9 does not specify fault elements for any of the three physical elements. In these circumstances, s. 5.6 provides as follows:

5.6 Offences that do not specify fault elements

(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

The result of the application of s. 5.6 to the offence created by s. 400.9 is that:

(i) intention is the fault element for the physical element of conduct, namely the dealing in s. 400.9(1)(a);

(ii) recklessness is the fault element for each of the two circumstances in ss. 400.9(1)(b) and (c).

As to intention, s. 5.2(1) provides:

5.2 Intention

(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) ...

(3) ...

As to recklessness, s. 5.4(1) provides:

5.4 Recklessness

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) ...

(3) ...

(4) ...

Division 6 deals with cases in which fault elements are not required. Section 6.2 makes provision for absolute liability in the following terms:

Absolute liability

(1)...

(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.

(3) The existence of absolute liability does not make any other defence unavailable.

Because of the combined operation of s. 6.2(2)(a) and s. 400.9(4), absolute liability applies to:

(i) the requirement imposed by s. 400.9(1)(b), namely that there be a reasonable suspicion that the money and other property is the proceeds of crime; and

(ii) the requirement imposed by s. 400.9(1)(c), namely that at the time of the dealing, the value of the money and other property is $100,000.00 or more.

As a result, and unlike an offence contrary to s. 400.3(1), an offence contrary to s. 400.9(1) does not require proof of any knowledge or belief as to the money or other property being the proceeds of crime.

Conclusion

The sentencing judge effectively found that the applicant knew that the money was the proceeds of crime. As set out above, ss. 400.3 to 400.8 of the Code create offences of (inter alia) intentionally dealing in the proceeds of crime of a specified value, in circumstances where either:

(i) the money or property is the proceeds of crime and the offender believes that to be the case; or

(ii) the offender intends that the money or other property will become an instrument of crime

Section 400.9(1) creates a completely different offence. It requires proof that the offender has dealt with money or other property of a value of more than $100,000.00 where it is reasonable to suspect that the money or property is the proceeds of crime. As I have noted, absolute liability applies to the element of reasonable suspicion.

The structure of Division 400 of the Code is such that the offence created by s. 400.9(1) falls at the lowest of the scale. The offence does not require proof of any subjective criminality at all. Although the sentencing judge acknowledged that the charge required proof of a reasonable suspicion, he found that the applicant had a far more blameworthy state of mind, namely that she knew that the money was the proceeds of crime. The effect of doing so was to find that the applicant had exhibited subjective criminality which was not an element of the offence with which she was charged. Moreover, when his Honour's sentencing remarks are read as a whole, it becomes apparent that he regarded the applicant's knowledge as a factor which aggravated her offending.

If the applicant in fact knew or believed that the money was the proceeds of crime, then in light of the amount involved she would have been liable to prosecution for an offence contrary to s. 400.3(1) of the Code. That is a substantially more serious offence than that created by s. 400.9 and carries a commensurately greater maximum penalty. Section 400.9(1) does not require a belief on the part of an offender that the money is the proceeds of crime. It requires only that there be a reasonable suspicion (to which absolute liability applies) that this is the case.

In R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Gibbs CJ (with whom Mason and Murphy JJ agreed) observed (at 389) that the general principle that the sentence imposed on an offender should take into account all of the circumstances of the offence is subject to a more fundamental and important principle, namely that no person should be punished for an offence of which he or she has not been convicted. Although such observations were made in the context of the provisions of the Criminal Code (WA) which required that circumstances of aggravation be pleaded, the stated principle is one of general application.

In my view, in the circumstances of the present case, the conclusions of the sentencing judge that the applicant knew that the money was the proceeds of crime amounted to a breach of that principle. The commission of more serious offences within Division 400 required proof of the state of mind which his Honour found the applicant to have had. The commission of an offence contrary to s. 400.9(1) did not. The result of his Honour's conclusions was to punish the applicant for a far more serious offence than that with which she was charged. The multiplicity of references to the applicant's state of mind make it clear that his Honour regarded it as an aggravating factor on sentence.

Further, his Honour did not precisely identify the evidence which led him to conclude that the applicant knew that the money was the proceeds of crime. His Honour's findings that the applicant was unsophisticated, and had performed her role "without being told too much about it", ran contrary to his conclusion as to her level of knowledge. Although his Honour found that the applicant had "powerful reasons to suspect ... and ... to realise that the monies were unlawfully obtained" those reasons were not precisely identified. The evidence given by the applicant as to her state of knowledge (to which his Honour did not refer) was also directly contrary to the conclusion his Honour reached. In these circumstances there is considerable force in the submission of counsel for the applicant that such conclusion was largely unsupported by the evidence.

Finally, and as I have noted, the applicant's evidence as to her knowledge of the source of the money was not the subject of cross-examination. Counsel then appearing for her made a submission consistent with both that evidence, and the requirement imposed by s. 400.9(1)(b). The Crown did not argue to the contrary. Nothing said by his Honour in the course of the sentence proceedings gave any indication that he did not accept that submission, much less that he was contemplating reaching a conclusion that the applicant knew that the money was the proceeds of crime. The applicant was not provided with any opportunity to address the issue. A combination of these various circumstances had the tendency to create an element of unfairness towards the applicant.

For all of these reasons, this ground is made out.

Ground 2 - The sentencing judge erred in his assessment of the seriousness of each individual offence

The findings of the sentencing judge

His Honour found (at ROS 7) that in all of the circumstances nothing other than a sentence of full time custody of a substantial kind would serve to satisfy relevant sentencing objectives. He then observed (at ROS 8):

"As I said before, the Courts recognise, as parliament has done, that the shifting of black money in this fashion poses very grave dangers for commerce and government in Australia. It is important that sentences of imprisonment be imposed so people who may be tempted to engage in such behaviour may be deterred. I take into account her alienation geographically from her mother and the fact imprisonment will be particularly onerous for the reasons that she is perhaps inadequate in English and she will not be able to receive visits from those from her homeland."

The sentencing judge also found (at ROS 8) that the role played by the applicant was significant. In particular he said:

"Although she was used as a dispensable tool and her role was low level, what she did was important. Her task of liaison and depositing of the money was a vital ingredient of the overall enterprise. The overall sum is thirty-five million dollars plus. That alone is not a reflection of her criminality but it is something that I take into account. I have no doubt she was deliberately chosen by higher ups in China, Australia and in particular by the woman who befriended her mother and assisted that lady with medical bills."

Submissions of the applicant

Counsel for the applicant relied upon two principal matters in support of this ground.

Firstly, counsel submitted that at no point in his reasons did the sentencing judge make express reference to the maximum penalties applicable to the offences. This, it was submitted, supported a conclusion that the sentencing judge failed to properly consider the individual offending.

Secondly, counsel relied upon the fact that the same sentence was imposed for each of counts 1 to 10. It was submitted that the only relevant differences between the conduct and circumstances involved in each count were the amount of money and the number of transactions. Whilst acknowledging that the amount of money was an obviously significant factor, counsel submitted that there was no logical or principled basis for imposing exactly the same sentence in respect of each count. Counsel cited, as an example, the fact that count 3 involved a single transaction of just over half a million dollars, whilst count 9 involved 5 transactions totalling more than 7 million dollars. It was submitted that in these circumstances the sentencing judge had erred by making a "blanket assessment", rather than making an assessment of the individual criminality of the offences.

It was submitted that the combination of these factors gave rise to error. It was further submitted that such errors must necessarily have had a "flow on" effect upon the sentencing judge's assessment of the degree to which the sentences should be accumulated.

Submissions of the Crown

The Crown submitted that his Honour was necessarily aware of the applicable maximum penalties. The Crown pointed, in particular, to the fact that his Honour had the benefit of written submissions from the Crown setting out the relevant provisions. It was also submitted that his Honour's reference (at ROS 8) to the structure of the offences for money laundering reflected an appreciation of the fact that the Parliament had provided for different levels of punishment and therefore different maximum penalties. The Crown submitted that in all of these circumstances, any assertion that the sentencing judge was not aware of the maximum penalties lacked any proper foundation.

In terms of the complaint made by the applicant concerning the general approach of the sentencing judge, the Crown submitted that a similar complaint was rejected by this Court in R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99. It was submitted that the reasoning in Glynatsis applied with greater force to the present case, and that no error arose as a consequence of the manner in which the sentences were structured.

Consideration

His Honour did not make any reference to the maximum penalties for the offences in his remarks on sentence. However, the written submissions which were provided by the Crown to his Honour set out, on the very first page, the relevant statutory provisions, including the applicable maximum penalties. At ROS 1 the sentencing judge made reference to those provisions (albeit without specific reference to the maximum penalties). At ROS 8 he made reference to the scheme of offences created by those provisions. I am satisfied in these circumstances that his Honour was aware of the applicable maximum penalties, notwithstanding the fact that he did not expressly refer to them.

Further in my view, the applicant's complaint regarding the manner in which his Honour structured the sentences is not made out. In Glynatsis (which was a case of insider trading offences) it was argued that the approach of the sentencing judge in imposing identical sentences in respect of two counts was unsatisfactory because:

(i) the amount of the investment in respect of one count was 9 times the amount of investment in the other; and

(ii) the amount of gross profit yielded as a consequence of one count was 49 times that yielded in the other.

In dealing with this argument Hoeben CJ at CL (with whom Rothman and McCallum JJ agreed) said (at [63]:

"[63] The Crown's criticism of the sentencing judge's approach on this basis is misconceived. It involves an application of mathematical precision to what is a discretionary decision based on an intuitive synthesis of all the relevant factors to which his Honour referred. It is contrary to remarks in Pearce on which the Crown relied at [59] hereof. Given the similarity in the steps taken by the respondent in relation to each offence, it was well open to the sentencing judge to structure the sentences as he did.

[64] The Crown submitted that it was difficult to discern the basis upon which is Honour determined which sentences were to be concurrent and which were to be cumulative. Once again this was a discretionary exercise on the part of his Honour which was open to him because of the similar nature of the offending" (emphasis in original).

The observations in Pearce v R [1998] HCA 57; (1998) 194 CLR 610 to which Hoeben CJ at CL referred were in the following terms (at [46]-[48]):

"[46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

[47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

[48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences".

In the present case the offending was almost identical in each case. The principal (and arguably only) differentiating factor was the amount of money referable to each individual count. His Honour took into account all relevant factors. Whilst there was an obvious need to assess the criminality involved in the offending, the decision in Glynatsis makes it clear that where the offending is essentially the same in respect of each count, it is open to a sentencing judge to approach the matter as the sentencing judge did in this case.

The applicant relied, in support of this ground, on the decision in R v Brown [2012] NSWCCA 199. That case involved a Crown appeal against sentences imposed for multiple counts of buggery and homosexual intercourse with a male. Grove AJ (with whom Macfarlan JA and McCallum J agreed) emphasised (at [17]) the need for a sentencing judge to assess criminality for individual sentences. His Honour also observed (at [21]) that the remarks of the sentencing judge in that case made it difficult to determine how the criminality in respect of some counts was assessed as being identical to the criminality in others. Such difficulty had arisen, in part, as a consequence of the sentencing judge remarking that the offending in one particular count was of "real gravity", and in doing so inferring that the offending in other counts was of less seriousness.

In my view, the decision in Brown does not assist the applicant's position. It is limited to its own facts. In particular, in the present case the nature of the offending (leaving aside the differing amounts of money) did not vary between counts. The difficulties observed by Grove AJ in Brown (at [21]) simply do not arise.

For these reasons, ground 2 is not made out.

Ground 3 - The sentences, and in particular the overall effective sentence, infringe the principles of parity and/or proportionality when compared with the sentence imposed upon the co-offender Xuxiong Liu.

The sentence imposed upon Xuxiong Liu

Xuxiong Liu ("Liu") appeared for sentence before the sentencing judge at the same time as the applicant, having pleaded guilty to a charge contrary to s. 400.3(1) of the Code. The value of the property applicable to that offending was more than $5.8 million in cash. The maximum penalty was imprisonment for 25 years or 1500 penalty units. In sentencing Liu, his Honour took into account (in accordance with s. 16BA of the Crimes Act 1914 (Cth)) an offence of possessing a controlled drug, namely methylamphetamine, contrary to s. 308.1 of the Code, the prescribed maximum penalty for which was 2 years imprisonment or 400 penalty units.

Liu was sentenced to a term of 5½ years imprisonment with a non-parole period of 3 years, both to date from 12 December 2012. This was the same sentence as the overall effective sentence imposed on the applicant.

The findings of the sentencing judge

When the matters were before the sentencing judge, counsel then appearing for the applicant said (at T45 L5 and following):

"Can I say your Honour that as far as these proceedings are concerned, whilst they are joint proceedings it is obvious that they are joint only by virtue of convenience as opposed to any issue of parity because immediately your Honour would recognise that the allegation that has been pleaded to by Mr Liu is significantly different in makeup and in penalty to that of my client and indeed I understand that there are, I think there are four matters if I could refer to them in NSW terms, the 16A matters for which we, as Ms Shi's representatives do not have.

So the issue of parity can't loom large in these proceedings with respect but as a matter of, if I can say with respect your Honour, common sense, their respective roles in what appears to be a larger and wider standing criminal activity is important to hear together."

In respect of Liu's offending and his level of criminality, his Honour found (at ROS 10):

"In the case of Mr Liu there is one offence rather than a multiplicity of them. This is a case where the irrelevance in overall criminality of the number of separate offences charged is made clear. In this case, Mr Liu's role was brought to the attention of police by Ms Shi and I have made reference to that in remarking upon her willingness to assist. Police went to his house at Croydon Park and executed a search warrant. Exhibit SA sets out the extraordinary find that they made there, for example, five bundles of $50 notes

in a black grey backpack under the bed totalling $50,000; various bundles of currency in a brown box found under the bed totalling $10,000 plus; a black sports bag backpack containing sixty-nine bundles of Australian currency totalling $689,700; in the master bedroom again, for example, fifty bundles of Australian money in a blue cooler bag in the corner of a wardrobe totaling $499,950; another series of bundles of $499,000 plus a figure plainly

calculated to be less than $500,000; sixty-nine bundles of Australian currency in a white box on the floor of the ensuite bathroom totalling $689,050 and so on.

The money totalled on recount $5,829,130. Plainly, it was not derived from his income because his income tax return for various years showed roughly $20,000 in each case."

In terms of Liu's subjective case, the sentencing judge took into account the contents of a report of Olav Nielssen, Psychiatrist. His Honour found that it was "plain" that Liu had been a drug user and that whilst he did not appear to be mentally ill, he had acknowledged a history of substance abuse. His Honour also noted (at ROS 11) that there was no dispute that Liu had no prior criminal convictions, although he said (at ROS 11):

"...although his addiction to methamphetamine and his gambling makes it pretty clear that he was chosen by higher ups in this criminal conspiracy as a vulnerable person who could be used as a "storeman" (so to speak) while the money was moved

from point A to point B. He went voluntarily to police headquarters and when he spoke to police he conceded that the money was dubious. He said, "I think it should be tax evasion or something else." He denied that the money was from his own criminal activities. "The money is not mine when the time is up I

will give it to someone who they told me to give to who they tell me to give to, I don't know."

His Honour found (at ROS 12) that Liu's role was to "move" the money and that he was "plainly...not a kingpin" (at ROS 12). He also found that Liu was a "fairly disorganised character" and described his arrangement of keeping money in his house as one that was "on any view deeply stupid" (at ROS 12).

Importantly in terms of this ground, his Honour said the following (commencing at ROS 13):

"In terms of parity, both of these offenders have made some efforts to point the finger at the other one. As I said at the beginning of my remarks on sentence, it is not necessarily the case that criminality is measured in the number of charges much less in the quantity of money involved, nonetheless the amount of money being held at this man's house over $5 million is very substantial. The nature of the charge is different from that utilised against Ms Shi. For Liu it is a single charge of dealing with money to a certain value intending that the money would become an instrument of crime. There was a plea of guilty to that which acknowledges the criminality involved. I should add that in all stages of the proceedings where I have been involved both offenders have been represented by competent interpreters who have been able to assist them.

The role of Mr Liu was as a low level but important holder of very substantial quantities of money which no doubt were obtained as a result of tax evasion or some other criminal activity. His personal circumstances are, of course, different from those of Ms Shi and I accept that he was not au fait with the enterprise overall. Nonetheless, allowing a discount of twenty-five per cent for contrition and the plea of guilty and willingness to assist in the administration of justice, in my view the sentence I should impose on this man is the same as the sentence I impose on Ms Shi."

Submissions of the applicant

Counsel for the applicant submitted that although the applicant and Liu were charged with offences arising out of the same criminal enterprise, the offences themselves were quite different and were based on different facts. He submitted that whilst this created some practical difficulties, principles of parity nevertheless had application: Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 at [30].

Counsel pointed out that the subjective cases of the applicant on the one hand and Liu on the other were broadly similar, at least to the extent that each of them had no criminal history and had both pleaded guilty in the Local Court. However, he submitted that the relevant similarities ended at that point, following which there was a significant divergence which supported the conclusion that the sentences imposed upon the applicant infringed parity principles. In this respect, counsel for the applicant pointed, in particular, to:

(i) the respective ages of Liu and the applicant, and in particular the fact that Liu was almost 20 years older;

(ii) the fact that the offences charged against the applicant carried a maximum penalty of no more than 3 years imprisonment, whilst that charged against Liu carried a maximum penalty of 25 years;

(iii) the fact the Liu was aware that the money was proceeds of crime and intended it to be used as an instrument of crime; and

(iv) the fact that the assistance rendered by the applicant to the authorities had been assessed at a higher level than that of Liu.

It was further submitted that the significantly higher degree of moral culpability which was involved in the commission of an offence against s. 400.3(1) called for the imposition of a significantly longer sentence.

Submissions of the Crown

Counsel for the Crown submitted that on the applicant's own case, parity was not a relevant factor on sentence. It was submitted that even if parity principles did apply when the offending was different, the sentencing judge was entitled to form the view that the conduct relating to the multiple lesser offences committed by the applicant involved substantially the same overall criminality, and thus warranted the same outcome, as the conduct relating to the single, more serious offence committed by Liu. It was submitted that no error in the assessment had been demonstrated.

Consideration

The approach taken by counsel for the applicant on sentence as to parity (set out in [70] above) was obviously a considered one. Generally speaking, a party will be bound by counsel's conduct of proceedings at first instance (see Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[80] per Johnson J (McClellan CJ at CL and Rothman J agreeing). In any event, even if it is accepted that parity principles applied, his Honour's remarks on sentence do not disclose error in this respect.

In Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 the plurality (French CJ, Crennan and Kiefel JJ) said (at [28] and following):

"'Equal justice' embodies the norm expressed in the term 'equality before the law'. It is an aspect of the rule of law. ... It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. ... Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances".

In the course of these observations their Honours made reference to the decision in Wong v R [2001] HCA 64; (2001) 207 CLR 584 where Gaudron, Gummow and Hayne JJ had observed (at [65]):

"Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect" (emphasis in original)."

His Honour considered all of the relevant factors in each case. He recognised that there were some factors which were relevant in one case but not in the other. In the exercise of his sentencing discretion, and having taken into account all such factors, he concluded that identical sentences were appropriate. But for the assessment of the applicant's assistance (which is the subject of ground 4) the approach of the sentencing judge was consistent with the principles set out in Green and no error is disclosed.

It follows that this ground is not made out.

Ground 4 - The sentencing judge erred by failing to take into account, properly or at all, the degree to which the applicant had co-operated with Law Enforcement Agencies in the investigation of her offences, in particular, the offence of the co-offender Xuxiong Liu prior to sentencing.

The evidence before the sentencing judge

A letter from the Australian Federal Police (Exhibit SSB) was tendered before the sentencing judge. A copy of that letter was also provided to this Court on the hearing of the application for leave to appeal and I have read its contents. There is some confidentiality attaching to the contents of that letter. However it is clear that the applicant provided police with information, on the basis of which a search warrant was obtained and executed. Almost $6 million in cash was seized. An arrest and prosecution followed. There is no suggestion at all that the police were aware of this information before it was provided to them by the applicant.

The reasons of the sentencing judge

The sole reference by the sentencing judge to the applicant's assistance appears at ROS 7 in the following terms:

"I note some assistance in the administration of justice as claimed as per exhibit SSB but in my view that is a modest factor indeed. This sequence of events occurred over some months and if she felt frightened or worried it was always open to her to approach Australian authorities and to seek help and protection. I know that as a person who is not a native of Australia, as a migrant she might not understand fully how the legal system works here. Nonetheless there is an obligation upon people who live in Australia not to participate in criminal schemes such as this. I do not believe she was so naive she would have been unable to withdraw if she had seen fit to do so. She did not."

His Honour then said (at ROS 9):

"Each of the sentences imposed has been discounted by twenty-five per cent to acknowledge the pleas of guilty and to reflect contrition and willingness to assist in the administration of justice".

Submissions of the applicant

Counsel for the applicant advanced three submissions in support of this ground. Firstly, he submitted that the information which had been provided by the applicant:

(i) was reliable;

(ii) directly resulted in the seizure of a substantial amount of money; and

(iii) led to the arrest and conviction of another offender.

It was submitted that in these circumstances his Honour's assessment that the assistance was "modest indeed" understated the true position, and reflected error.

Secondly, counsel submitted that the fact (inter alia) that the applicant had not withdrawn from her criminal activities at an earlier point in time was irrelevant to an assessment of her assistance of that assistance. It was submitted that if the references of the sentencing judge to such matters were intended to support a conclusion that the applicant's assistance was modest, it followed that his Honour had taken into account one or more irrelevant considerations.

Thirdly, counsel pointed to the conclusions of the sentencing judge that the sentence should be discounted by 25 per cent. He pointed out that the sentencing judge's reasons made no reference to any component of that discount being referable to the applicant's assistance, and made no reference to the s. 16A(2)(h) of the Crimes Act 1914 (Cth) which is in the following terms:

Matters to which court to have regard when passing sentence etc.--federal offences

...

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

....

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

..."

In these circumstances, counsel for the applicant submitted that on a reading of the sentencing judge's remarks as a whole, the 25 per cent discount should be read as reflecting only the applicant's plea of guilty. He submitted that in these circumstances, it followed that either:

(i) no discount for assistance had been applied at all; or

(ii) an incorrect test, taking into account irrelevant considerations, had been applied in determining what discount might be appropriate.

Submissions of the Crown

The Crown submitted that any suggestion that the applicant's assistance was not taken into account at all by the sentencing judge could not be sustained. In this regard, the Crown pointed, in particular, to his Honour's specific reference to Exhibit SSB. It was submitted that in these circumstances, it was obvious that his Honour was aware of the evidence relating to the issue of assistance.

Accepting this to be the case, the Crown submitted that the substance of this ground was really a complaint about the weight which had been given by the sentencing judge to the applicant's past assistance. It was submitted that questions of weight were a matter for the sentencing judge and that any assessment should be overturned by this Court only on the basis of a demonstrable error.

The Crown further submitted that on a fair reading of the sentencing remarks, it was apparent that his Honour had applied a combined discount of 25 per cent to reflect the applicant's plea of guilty, her contrition and her assistance. It was submitted that his Honour's assessment of the applicant's assistance as "modest" simply reflected the fact that such assistance was forthcoming on arrest, and was confined to details about another offender. It was submitted that his Honour's reference to other matters was simply a way of pointing out that the applicant could have assisted the authorities sooner than she did.

Consideration

The applicant's assistance led directly to the discovery of a large quantity of cash, and the arrest and prosecution of another offender. As I have pointed out, there is no suggestion that the police were previously aware of the information the applicant provided. In these circumstances, his Honour's conclusion that the applicant's assistance was "modest indeed" understated its significance, and was reflective of error.

Further, given the terms of his Honour's sentencing remarks, I am left to conclude that his assessment of the applicant's assistance as "modest" was based, at least in part, upon the fact that that applicant had:

(i) engaged in offending for several months;

(ii) failed to disclose that offending to the authorities; and

(iii) failed to withdraw from such offending at an earlier time.

Those considerations were not relevant to an assessment of the value of the applicant's assistance. Accepting that they were factors which led his Honour to conclude that such assistance was modest, it follows that such conclusion was infected by error.

I am also satisfied that the discount of 25 per cent which his Honour applied was referable only to the applicant's plea of guilty. I have come to that conclusion for two reasons. Firstly, it is one which is consistent with his Honour's assessment that the applicant's assistance was modest. Secondly, it is supported by the terms in which his Honour expressed the reasons for the discount. In particular, his Honour's reference to the applicant's "willingness to assist in the administration of justice" is generally consistent with the terminology adopted by the High Court when considering the effect of a plea of guilty in Cameron v R [2002] HCA 6; (2002) 209 CLR 339 at [14].

Accepting that the discount of 25 per cent was applied solely to reflect the plea of guilty, it follows that the applicant's assistance was given little or no weight in the sentencing process. That, in my view, reflects further error.

For all of these reasons, this ground is made out.

Ground 5 - The individual sentences and the overall effective sentence are manifestly excessive.

Submissions of the applicant

Counsel for the applicant emphasised a number of factors which, he submitted, rendered the overall effective sentence imposed manifestly excessive. In particular, he pointed to:

(i) the low level of the applicant's role;

(ii) the short period over which the transactions referrable to a particular count were carried out;

(iii) the fact that the applicant conducted such transactions in her own name;

(iv) the absence of any finding that the applicant had derived a gain from the transaction;

(v) the finding that the applicant had been recruited by a family friend, to whom she owed a debt of gratitude, and had been, in effect, "used" by that friend;

(vi) the finding that the applicant was naïve, and was a person who found it difficult to refuse a request for help from an elder;

(vii) the finding that there was a degree of non-exculpatory duress arising from the threats made by the family friend;

(viii) the applicant's age and prior good character;

(ix) the applicant's contrition and (by implication) be good prospects of rehabilitation and unlikelihood of reoffending;

(x) the pleas of guilty; and

(xi) the applicant's level of assistance to the authorities.

Counsel also pointed out that the nature of money laundering offences is such that they can be committed in a variety of ways, such that no particular sentencing range is able to be defined: R v Li [2010] NSWCCA 125 at [40]. It was submitted that in light of the maximum penalty of 3 years for each count, and despite the sums involved, the numerous factors in the applicant's favour were indicative of the manifest excess of the sentences imposed.

Submissions of the Crown

The Crown submitted that this was not a case of "low level" offending. In support of that submission, the Crown pointed, in particular, to the substantial amounts of money involved, along with the fact that the offending was sustained. It was submitted that in these circumstances, the overall head sentence of 5½ years was not excessive, let alone manifestly so.

It was further submitted that the applicant's complaint of manifest excess failed to recognise the discretion vested in the sentencing judge.

Consideration

For the reasons previously expressed, I have found that grounds 1 and 4 have been made out. Accordingly, the Court's power in s. 6(3) of the Criminal Appeal Act 1912 is enlivened. The function of this Court in those circumstances was explained by the High Court in Kentwell v R [2014] HCA 37 at [42]:

"... When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence".

The Court went on to say (at [43]):

"After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal".

Because error has been found in respect of Grounds 1 and 4, the applicant (notwithstanding the terms of Ground 5) does not have to establish, for the purposes of the exercise of the Court's function under s. 6(3) of the Criminal Appeal Act 1912, that the sentence imposed was manifestly excessive. As the judgment in Kentwell makes clear, it is the function of this Court to exercise the sentencing discretion afresh when, as in the present case, error is established.

RESENTENCING

In resentencing the applicant, I have had regard to the entirety of the evidence which was before the sentencing judge, as well as the submissions advanced in relation to Ground 5. I have also had regard to the contents of the affidavit of the applicant of 13 October 2014 which was read in the event that the Court came to consider the question of re-sentence.

Money laundering is a serious criminal activity. The applicant's offending is no exception. It involved the sustained movement, over a period of two months, of large sums of cash. Whilst the applicant was, on the evidence before the sentencing judge, obviously acting at the behest of others in carrying out the acts which constituted her offending, the role that she played was vital to the conduct of what was obviously a significant illegal enterprise which had, as its primary objective, the movement of large amounts of cash from Australia. As his Honour properly pointed out (at ROS 8) general deterrence is an important factor in the consideration of an appropriate sentence.

Whilst the sentencing judge made no reference to the issue of rehabilitation, the applicant's affidavit of 13 October 2014 sets out (at [6]) various courses which the applicant has completed since being taken into custody. The fact that the applicant has done so, and her expressed desire to enter into employment upon release, are factors which support a conclusion that her prospects of rehabilitation are favourable.

Leaving aside the absence of any reference to prospects of rehabilitation, and to a greater or lesser extent, the sentencing judge took into account the matters which are relied upon by counsel for the applicant in support of this ground (as set out at [101] above). To the extent that those matters incorporate findings made by the sentencing judge, no complaint is made about them. However, for the reasons I have previously expressed, the categorisation of the applicant's assistance as being "modest" was an error, as was the fact that such assistance was given little or no weight in the sentencing process. His Honour also erroneously elevated the appellant's subjective criminality by concluding that she knew that the money was the proceeds of crime.

In these circumstances I am satisfied that some other sentence is warranted in law. The applicant must be sentenced on the basis that she held a reasonable suspicion that the money was the proceeds of crime, not on the basis that she knew or believed this to be the case. That necessarily reduces the level of her moral culpability.

In re-sentencing the applicant I must also have regard to her assistance. In R v PPB [1999] NSWCCA 360 Kirby J (with whom Simpson J agreed) set out (at [29]) a number of the considerations relevant to discounts for assistance given to the authorities. Having made reference to the earlier decision of the Court in R v Cartwright (1989) 17 NSWLR 243, his Honour said (further citations omitted):

"The Court acknowledged that there was a clear public interest that offenders should be encouraged to supply information that will assist authorities to bring others to justice. The extent of the discount will depend, to a large extent, upon the willingness with which disclosures are made. If they are tailored to avoid uncomfortable subjects, the discount will plainly be less. It will rarely be substantial unless the offender discloses everything he knows. The discount is designed, amongst other things, to compensate the prisoner for the deprivations which will inevitably attend the need for him to be protected whilst in custody. The threat of reprisals, including after release, is a factor".

Whilst the level of any discount is not fixed, a combined discount for plea and assistance should not normally exceed 50 per cent and a discount of that amount should be reserved for exceptional cases: SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249. In the present case, there is no suggestion that the applicant's assistance was given unwillingly, nor is there any suggestion that it was tailored or less than full. Equally, there is no evidence that it has impacted adversely upon her conditions of custody. I have taken all of those factors into account and have concluded that the applicant's assistance in the present case warrants a discount of 5% in addition to that allowed for her plea of guilty.

In re-sentencing the applicant I have adopted the same ratio between the head sentence and the non-parole period as that which was adopted by the sentencing judge. I also note the provisions of s. 16F of the Crimes Act 1914 (Cth) which provides that where a court imposes a federal sentence on a person and fixes a non-parole period, it must explain or cause to be explained, in language likely to be readily understood by the person, the purpose and consequences of fixing that non-parole period. Having regard, in particular to the provisions of s. 16F(1)(a)-(d) I note the following:

(i) the service of the sentence that I propose will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community (the parole period) to complete service of the sentence (s. 16F(1)(a));

(ii) if a parole order is made, the order will be subject to conditions (s. 16F(1)(b));

(iii) the parole order may be amended or revoked (s. 16F(1)(c)); and

(iv) in the event that the applicant fails, without reasonable excuse, to fulfill any conditions which are imposed on a parole order, the consequences could include the applicant being returned to custody in order complete the balance of the term of imprisonment that I propose (s. 16F(1)(d)).

ORDERS

I propose the following orders:

(1) Leave to appeal is granted.

(2) The appeal allowed.

(3) The sentences imposed in the District Court of NSW are quashed.

(4) In lieu thereof the applicant is sentenced as follows:

(i) in respect of each of counts 1, 2 and 3, imprisonment for 1 year and 3 months commencing 12 December 2012 and expiring on 11 March 2014, such sentences to be served wholly concurrently;

(ii) in respect of each of counts 4, 5 and 6, imprisonment for 1 year and 3 months to commence at the expiration of the sentences imposed in respect of counts 1, 2 and 3, i.e. 12 March 2014 and to expire on 11 June 2015;

(iii) in respect of counts 7 and 8, imprisonment for 1 year and 3 months to be served concurrently and to commence at the expiration of the sentences imposed in respect of counts 4, 5 and 6, i.e. 12 June 2015 and to expire on 11 September 2016;

(iv) in respect of each of counts 9 and 10, imprisonment for 1 year and 3 months to be served concurrently, to commence on 12 June 2016 and to expire on 11 September 2017;

(v) the sentence imposed in respect of the offence against s. 400.9(1A) in the Court below, namely imprisonment for 9 months commencing on 12 December 2012 and expiring on 11 September 2013, is confirmed;

(vi) the overall sentence imposed is one of 4 years and 9 months;

(vii) a non-parole period of 2 years and 7 months imprisonment is imposed, commencing on 12 December 2012 and expiring on 11 July 2015.

**********

Decision last updated: 26 November 2014

Actions

Download as PDF Download as Word Document

Citations

Shi v The Queen [2014] NSWCCA 276

Most Recent Citation

Director of Public Prosecutions v Zhang [2021] VCC 416

Cases Citing This Decision

21

Pan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 55

R v Eckl [2023] QSC 178

R v Onley [2023] NSWSC 1008

Cases Cited

15

Statutory Material Cited

3

R v De Simoni [1981] HCA 31

R v Glynatsis [2013] NSWCCA 131

Medium Neutral Citation:	Shi v R [2014] NSWCCA 276
Hearing dates:	13 October 2014
Decision date:	26 November 2014
Before:	Leeming JA at [1] Fullerton J at [2] Bellew J at [3]
Decision:	1.Leave to appeal is granted. 2.The appeal is allowed. 3.The sentences imposed in the District Court of NSW are quashed. 4.In lieu thereof the applicant is sentenced as follows: i. in respect of each of counts 1, 2 and 3, imprisonment for 1 year and 3 months commencing 12 December 2012 and expiring on 11 March 2014, such sentences to be served wholly concurrently; ii. in respect of each of counts 4, 5 and 6, imprisonment for 1 year and 3 months to commence at the expiration of the sentences imposed in respect of counts 1,2 and 3, i.e. 12 March 2014 and to expire on 11 June 2015; iii. in respect of counts 7 and 8, imprisonment for 1 year and 3 months to be served concurrently and to commence at the expiration of the sentences imposed in respect of counts 4, 5 and 6, i.e. 12 June 2015 and to expire on 11 September 2016; iv. in respect of each of counts 9 and 10, imprisonment for 1 year and 3 months to be served concurrently, to commence on 12 June 2016 and to expire on 11 September 2017; v. the sentence imposed in the Court below in respect of the offence against s. 400.9(1A) of the Criminal Code, namely imprisonment for 9 months commencing on 12 December 2012 and expiring on 11 September 2013, is confirmed; vi. the overall sentence imposed is one of 4 years and 9 months imprisonment; vii. a non-parole period of 2 years and 7 months imprisonment is imposed, commencing on 12 December 2012 and expiring on 11 July 2015.
Catchwords:	CRIMINAL LAW - sentencing - money laundering offences - where sentencing judge found that the applicant knew that the money was proceeds of crime - where applicant charged with an offence which alleged that it was reasonable to suspect that the money was proceeds of crime - whether findings of the sentencing judge breached principle in De Simoni - whether the circumstances which led to that finding were unfair to the applicant CRIMINAL LAW - sentencing - money laundering offences - where sentencing judge assessed applicant's assistance as modest - where assistance resulted in the apprehension and prosecution of another offender and the recovery of a substantial amount of money - whether assessment of assistance correct - whether sentencing judge took into account irrelevant considerations in assessment CRIMINAL LAW - sentencing - money laundering offences - where applicant pleaded guilty at the earliest available opportunity - where 25 per cent discount allowed - where applicant's assistance not given proper weight - error established - applicant resentenced
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Proceeds of Crime Act 2002 (Cth)
Cases Cited:	Cameron v R [2002] HCA 6; (2002) 209 CLR 339 Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 Kentwell v R [2014] HCA 37 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 R v Brown [2012] NSWCCA 199 R v Cartwright (1989) 17 NSWLR 243 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99 R v Li [2010] NSWCCA 125 R v PPB [1999] NSWCCA 360 SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 Wong v R [2001] HCA 64; (2001) 207 CLR 584 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category:	Principal judgment
Parties:	Si Shi - Applicant Crown - Respondent
Representation:	Counsel: R Wilson - Applicant R J Bromwich SC and T Muir - Respondent Solicitors: S O'Connor, Legal Aid New South Wales - Applicant Commonwealth Director of Public Prosecutions - Respondent
File Number(s):	2012/128059003 2012/180082012
Publication restriction:	Nil
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2012-12-12 00:00:00 Before: Judge Woods QC