Shi v R

Case [2014] NSWCCA 276 26 November 2014

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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]…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Shi v R

Details

AGLC: Shi v The Queen [2014] NSWCCA 276
Case: [2014] NSWCCA 276
Decision Date: 26 November 2014

CaseChat Overview and Summary

In the case of Shi v R, the applicant, who had been convicted of money laundering offences, appealed against the sentence imposed by the sentencing judge. The appeal focused on whether the sentencing judge's findings regarding the applicant's knowledge of the money being proceeds of crime breached the principle in De Simoni, and whether the circumstances leading to those findings were unfair. Additionally, the appeal questioned the assessment of the applicant's assistance in the prosecution of another offender and the subsequent recovery of a substantial amount of money, arguing that the assistance was not given proper weight.

The legal issues before the court included whether the sentencing judge's findings about the applicant's knowledge constituted an error of law and whether these findings were unfair. Furthermore, the court had to determine if the assessment of the applicant's assistance was correct and whether the sentencing judge took into account irrelevant considerations. The court also considered whether the applicant's early guilty plea should have resulted in a more substantial discount than the 25 per cent allowed.

The court found that the sentencing judge's findings regarding the applicant's knowledge did not breach the principle in De Simoni and were not unfair. However, the assessment of the applicant's assistance was deemed incorrect, as the sentencing judge had not given proper weight to the substantial assistance provided. Additionally, the court identified that irrelevant considerations had influenced the sentencing. Consequently, the court allowed the appeal, quashed the original sentence, and resentenced the applicant, ensuring that the assistance provided was properly taken into account. The applicant was resentenced with due regard to the assistance rendered, which included a more appropriate discount for the early guilty plea.

Orders