Singh v The Queen
[2016] VSCA 163
•15 July 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0061
| HARMEET SINGH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY, KYROU and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 June 2016 |
| DATE OF JUDGMENT: | 15 July 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 163 |
| JUDGMENT APPEALED FROM: | DPP v Singh [2016] VCC 446 (Judge Sexton) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of dealing with money valued at $100,000 or more which was reasonably suspected of being proceeds of crime contrary to Criminal Code (Cth) s 400.9(1) – Elements of offence – Whether accused must intend to deal with money valued at $100,000 or more – Whether the reasonable suspicion that the money was proceeds of crime must be contemporaneous with the dealing – Whether evidence of a subsequent transaction admissible – Meaning and scope of partial defence in s 400.10 of Code – Application for leave to appeal granted and appeal allowed – Conviction set aside – Conviction for offence against s 400.9(1A) of Code substituted.
CRIMINAL LAW – Application for leave to appeal against sentence – Applicant sentenced to 14 months’ imprisonment, to be released on a recognizance release order after serving 9 months – Applicant resentenced to 10 months’ imprisonment, to be released on a recognizance release order after serving 6 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr K McDonald | GPZ Legal |
| For the Respondent | Mr J Gullaci | Commonwealth Director of Public Prosecutions |
ASHLEY JA
KYROU JA
FERGUSON JA:
Introduction and summary
On 11 December 2015, following a five day trial in the County Court, the applicant (now aged 37) was convicted of one charge of dealing with money valued at $100,000 or more which was reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code (Cth) (‘Code’).[1] The maximum penalty for that offence is 3 years’ imprisonment or a fine of $30,600 or both.
[1]The Code is set out in the schedule to the Criminal Code Act 1995 (Cth).
Following a plea on 19 February 2016, the appellant was sentenced on 16 March 2016 to 14 months’ imprisonment with a direction that, after serving 9 months, he be released on a recognizance release order.[2] That order required the applicant to give security of $1,000 and to comply with the condition that he be of good behaviour for 2 years.
[2]DPP v Singh [2016] VCC 446 (‘Reasons’).
The applicant seeks leave to appeal against conviction on four grounds. Those grounds seek to impugn: two rulings made by the judge as to the elements of the offence; a ruling on the admissibility of certain evidence; and a ruling on what the prosecution had to prove once the applicant had discharged the evidential burden under the partial defence in s 400.10 of the Code.
The applicant also seeks leave to appeal against sentence on three grounds. Those grounds are: that the sentence was manifestly excessive; that the judge misapplied the principle of parity; and that the judge failed to give sufficient weight to the applicant’s early offer to plead guilty to the lesser offence under s 400.9(1A) of the Code.
For reasons that follow, we have concluded: that the application for leave to appeal against conviction should be granted; that the appeal should be allowed; that the conviction should be set aside; that a conviction for an offence against s 400.9(1A) of the Code should be substituted; and that the applicant should be resentenced as set out at [136] below.
Circumstances of offending
On more than one occasion prior to 19 October 2013, the applicant had collected money on behalf of his friend, Sunil Jain, who was in India.
On 8 October 2013, at Mr Jain’s request, the applicant acquired and activated a new Alcatel mobile telephone using incorrect personal details. Mr Jain told the applicant that he would receive a call on the new telephone from someone who would deliver money to him. Mr Jain said that the person who would call him would seek to identify him by checking the serial number of a particular $5 note held by the applicant. The applicant had given that serial number to Mr Jain.
On 19 October 2013, the applicant received a number of calls on the Alcatel phone from a man named Onix Mendoza. The applicant and Mr Mendoza arranged to meet at Barkly Street, Ringwood later that day. The applicant had not had any prior contact with Mr Mendoza. Mr Mendoza was an American citizen who had arrived in Australia on 25 August 2013.
The calls were subject to telephone intercept warrants on Mr Mendoza’s phone.
Mr Mendoza arrived first at the designated meeting place. The applicant was driving a white van owned by Mr Jain and he parked it behind the car that Mr Mendoza had said that he would be driving. The meeting was subject to video surveillance.
The video evidence shows Mr Mendoza walking from his car to the van and then speaking to the applicant through the open passenger window. Mr Mendoza checked and retained a $5 note that the applicant had produced and he then returned to his car. Mr Mendoza collected a small suitcase, returned to the van, opened the passenger door and placed the suitcase in the front passenger side of the vehicle.
The van immediately departed. Not more than seven minutes later, the applicant was arrested when he drove the van into the driveway of his home. At some point after leaving Mr Mendoza and before he was arrested, the applicant looked in the suitcase and saw that it contained a large amount of cash.
The police searched the van and found the suitcase wedged between the front passenger seat and the footwell of the vehicle. They also found the Alcatel phone which the applicant had broken. Later, it was determined that the suitcase contained $500,100 in cash. We will refer to the delivery of this money by Mr Mendoza to the applicant as the ‘Mendoza/Singh transaction’ and to the money as the ‘Mendoza/Singh money’.
On the day of his arrest, the applicant was interviewed by police with the assistance of an interpreter in the Punjabi language. The applicant denied that the money was from a crime and said that Mr Jain had contacted him and made the arrangements. He said that he had collected money for Mr Jain previously, but only in amounts of $20,000 to $60,000, and that he was expecting a similar amount on 19 October 2013. He said that he thought that the money was to do with a Forex exchange account Mr Jain operated.
On 27 October 2013, the police arrested Mr Mendoza after he was followed and observed delivering a backpack to a man named Giovanni Benisi. Mr Benisi is an Italian citizen who had entered Australia two days previously on 25 October 2013. Mr Benisi was also arrested after receiving the backpack from Mr Mendoza. The backpack was found to contain $509,450 in cash. We will refer to the delivery of this money by Mr Mendoza to Mr Benisi as the ‘Mendoza/Benisi transaction’ and to the money as the ‘Mendoza/Benisi money’. The cash was packaged similarly to, and included similar quantities and denominations of Australian currency as, the Mendoza/Singh transaction.
On his arrest, Mr Mendoza was found in possession of a Blackberry mobile phone. When the phone was later examined it was found to contain an image of a $5 note. The prosecution alleged that this was an image of the $5 note that the applicant handed to Mr Mendoza on 19 October 2013 to verify that he was the person to whom the money was to be delivered.
Offence of dealing with property reasonably suspected of being proceeds of crime
Section 400.9(1) of the Code establishes the offence of dealing with money or other property reasonably suspected of being proceeds of crime where the value of the money or property is $100,000 or more. Where, as in the present case, money is involved, the offence is often colloquially referred to as money laundering.
Section 400.9 of the Code relevantly provides:
400.9Dealing 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.
…
(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.
Note: A defendant bears a legal burden in relation to the matter in subsection (5) (see section 13.4).
Section 400.2 of the Code defines the phrase ‘deals with money or other property’. Paragraph (a) of the definition relevantly provides that ‘[a] person deals with money or other property if the person does any of the following: … receives, possesses, conceals or disposes of money or other property’.
Section 5.6(1) of the Code provides that, if the law creating an 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. It is common ground that, by virtue of s 5.6(1), the fault element for the physical element in s 400.9(1)(a) — dealing with money or other property — is intention, that is, intention to deal with the money or other property.
Section 6.2(2) of the Code provides as follows:
6.2 Absolute liability
…
(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.
Section 400.10 of the Code provides a partial defence to a charge under s 400.9(1). Section 400.10 is particularly relevant to Ground 4 of the application for leave to appeal against conviction and is set out at [68] below. As s 400.10 is also of some relevance to Ground 1 of that application, we set out part of it below:
400.10 Mistake of fact as to the value of money or property
(1) A person is not criminally responsible for an offence against section … 400.9 in relation to money or property if:
(a) at or before the time of dealing with the money or property, the person considered what was the value of the money or property, and was under a mistaken but reasonable belief about that value; and
(b) had the value been what the person believed it to be, the person’s conduct would have constituted another offence against this Division for which the maximum penalty, in penalty units, is less than the maximum penalty, in penalty units, for the offence charged. …
Issues in dispute and rulings made by the judge at the aborted trial
The indictment contained a single charge that the applicant ‘on the 19th day of October 2013 dealt with money, it being reasonable to suspect that such money was proceeds of crime and at the time of dealing the value of the money was $100,000 or more.’
The applicant was the subject of two trials before the same judge for the offence against s 400.9(1) of the Code. The first trial commenced on 25 May 2015 and the jury was discharged without verdict on 3 June 2015 for reasons which are not presently relevant. The second trial commenced on 7 December 2015 and the jury delivered its verdict on 11 December 2015.
At the second trial, the prosecution relied on the applicant’s act of receiving the Mendoza/Singh money as well as the act of possessing that money as the dealing with money for the purposes of s 400.9(1)(a) of the Code. Defence counsel did not seek a ruling requiring the prosecution to elect between the two acts of dealing.
In conducting his defence, the applicant relied heavily on his belief at the time he received the suitcase that it contained less than $100,000.
At both trials, the prosecution conceded before the jury that: the applicant had considered the value of the Mendoza/Singh money before he received it; he believed that it did not exceed $60,000; and that belief continued after he received the suitcase and during his possession of it until the time he looked inside it. The prosecution case was that, after that time, the applicant knew that there was more than $100,000 in the suitcase and he was thus knowingly in possession of money valued at more than $100,000.[3]
[3]Reasons [6].
At the second trial, the applicant relied on the defence in s 400.9(5) of the Code, namely, that he had no reasonable grounds for suspecting that the money was derived from some form of unlawful activity. By finding the applicant guilty of the offence against s 400.9(1), the jury rejected this defence as well as the partial defence in s 400.10.
In the course of the first trial, the judge made four rulings which were applied at both trials.[4] Each ruling is the subject of a ground of appeal in the application for leave to appeal against conviction and will be discussed under the relevant ground.
[4]These rulings were reflected in the judge’s charge to the jury on the fourth day of the second trial on 10 December 2015. Transcript of Proceedings, DPP v Singh (County Court of Victoria, 14–00506, Judge Sexton, 10 December 2015).
We will now address the proposed grounds in the application for leave to appeal against conviction.
Ground 1: Whether s 400.9(1)(c) of the Code requires proof of intention
Ground 1 is that ‘[t]he learned judge erred in concluding that the [prosecution] did not need to prove that the applicant specifically intended to deal with money to the value of more than $100,000’.
On 27 May 2015, the judge ruled that the prosecution did not have to prove that the applicant specifically intended to deal with money to the value of $100,000 or more.[5] The judge stated that this was because: none of the authorities to which she had been taken suggested that there was such a requirement; such a requirement would be inconsistent with the absolute liability which applies to the third element; the partial defence in s 400.10 of the Code provides specifically for a belief about the value of the money; and the defence in s 400.9(5) provides specifically for a lack of knowledge or belief about the source of the money being unlawful.[6]
[5]Transcript of Proceedings, DPP v Singh (County Court of Victoria, 14–00506, Judge Sexton, 27 May 2015) 173, 175.
[6]Transcript of Proceedings, DPP v Singh (County Court of Victoria, 14–00506, Judge Sexton, 27 May 2015) 173.
In his written case, the applicant submitted that, as he had discharged the evidential burden of raising the existence of a mistaken but reasonable belief that the suitcase contained less than $100,000, there was a legal burden on the prosecution to prove that he intended to deal with an amount of $100,000 or more.
In support of this submission, the applicant relied on the following statement of Coghlan JA (with whom Redlich JA and Williams AJA agreed) in Luong v Director of Public Prosecutions (Cth):[7]
[I]f the prosecution has charged an accused with trafficking a border controlled drug in a commercial quantity and absolute liability is applied to the commercial quantity, an accused can raise the defence that he only intended to traffick in a marketable quantity. It will then be a question for the jury to assess on the prosecution’s evidence what the accused believed was the true quantity of the border controlled substance intended to be trafficked.[8]
[7](2013) 279 FLR 453 (‘Luong’).
[8]Luong (2013) 279 FLR 453, 464 [55].
In his oral submissions, the applicant conceded that the mistaken but reasonable belief provisions in s 400.10 of the Code do not arise for consideration unless and until the elements of the offence in s 400.9(1) are established by the prosecution. He also conceded that the fact that s 400.9(4) provides that the elements in paras (b) and (c) of s 400.9(1) constitute absolute liability provisions leaves no room for importing a requirement that an accused have any specific intention with regard to those elements.
Notwithstanding these concessions, the applicant did not formally abandon Ground 1. He maintained that the interaction between ss 400.9(1) and 400.10 of the Code meant that, as he had discharged the evidential burden of establishing that, both before and during part of the time that he dealt with the Mendoza/Singh money, he had a mistaken but reasonable belief that its value was less than $100,000, the prosecution had a legal burden of proving beyond reasonable doubt that he intended to deal with money to the value of $100,000 or more.
In our opinion, Ground 1 cannot succeed.
Sections 400.9(1) and (4) and s 6.2(2) of the Code have the effect that the physical elements in paras (b) and (c) of s 400.9(1) do not have any fault element. In the case of s 400.9(1)(c), the prosecution must prove beyond reasonable doubt that at the time that an accused dealt with money or other property, its value was $100,000 or more. There is no requirement for the prosecution to prove that, at that time, the accused knew that the value of the money or other property was $100,000 or more.
The above conclusion does not affect the operation of the partial defence in s 400.10 of the Code. That partial defence does not become relevant unless the prosecution establishes each of the elements in s 400.9(1). Where the partial defence applies, an accused is not guilty of an offence under s 400.9(1) but may be found guilty of an offence under s 400.9(1A). However, that does not mean that the meaning and scope of the provisions of s 400.9(1) are altered by the provisions of s 400.10 where that section applies. Where s 400.10 applies, s 400.9(1) ceases to apply and may be displaced by s 400.9(1A).
The statement of Coghlan JA in Luong upon which the applicant relied dealt with the interrelationship between s 307.5(1) of the Code — which establishes the offence of possessing a commercial quantity of an unlawfully imported border controlled drug — and s 313.4 — which contains a partial defence where an accused was under a mistaken belief that the quantity of the drug was less than a commercial quantity. Coghlan JA’s statement is not inconsistent with our analysis at [39] above and [96] below about the interrelationship between ss 400.9(1) and 400.10. Accordingly, that statement does not assist the applicant.
Ground 2: Whether s 400.9(1)(b) of the Code requires contemporaneity
Ground 2 is that ‘[t]he learned judge erred in finding that the [prosecution] need not prove that the reasonable suspicion was a suspicion that was contemporaneous to the time of dealing with the money’.
On 27 May 2015, the judge ruled that s 400.9(1)(b) of the Code does not require the prosecution to prove that the suspicion that the money is proceeds of crime was contemporaneous with the accused’s dealing with the money.[9] She relied upon Director of Public Prosecutions v Pastras[10] for this conclusion. She also relied on the text of s 400.9(1), stating that, if the legislature had intended the assessment of reasonable suspicion in s 400.9(1)(b) to be made as at the time of dealing, it would have said so, as it did for the third element in s 400.9(1)(c).[11]
[9]Transcript of Proceedings, DPP v Singh (County Court of Victoria, 14–00506, Judge Sexton, 27 May 2015) 177.
[10](2005) 11 VR 449 (‘Pastras’).
[11]Transcript of Proceedings, DPP v Singh (County Court of Victoria, 14–00506, Judge Sexton, 27 May 2015) 177.
Pastras concerned a charge under s 123 of the Confiscation Act 1997 which made it an offence for a person to receive, possess, conceal, dispose of or bring into Victoria any money or other property that may reasonably be suspected of being proceeds of crime. The Director of Public Prosecutions appealed to the Trial Division against a decision of a magistrate which dismissed a charge under s 123 on the basis that the prosecution had failed to prove an alleged element of the offence, namely, that the arresting police officers had a reasonable suspicion that the money found on the accused when he was searched was proceeds of crime.
Bongiorno J allowed the appeal on the basis that the suspicion of the police officers was irrelevant and that it was for the tribunal of fact to be satisfied beyond reasonable doubt of each element of the offence, including that the money may reasonably be suspected of being proceeds of crime. He held that, for a charge under s 123 of the Confiscation Act1997, it was not necessary that there be contemporaneity between the possession of the money or other property and the reasonable suspicion that it may be the proceeds of crime.[12] He relevantly stated:
There is nothing in [s 123] which implies the necessity for any contemporaneity between the required suspicion and any of [the physical acts of the offence]. Indeed, it would be difficult, if not impossible, to apply a notion of contemporaneity between the required suspicion and some, at least, of the actions prohibited by the section. Finally, there would appear to be no warrant for incorporating into the section a requirement that the police informant (or any other investigating police officer) have the necessary reasonable suspicion. The police officer’s suspicion is irrelevant. It is not an element of the offence. So much appears clear from the use of the modal verb ‘may’ qualifying the past participle of the verb ‘suspect’. It is for the tribunal of fact trying the charge to consider whether the property in question may be suspected of being the proceeds of crime.
…
The question of whether there was evidence upon which a tribunal of fact could find that the money may be suspected of being the proceeds of crime depends upon inferences being drawn from the evidence before the court. There was evidence that Pastras was in possession of a large sum of money, that it was secreted on his body, that he had been unemployed for a year or so and was in receipt of sickness benefits, that he had no other assets, had not recently sold anything and that he was at the home of a known drug dealer who, on some occasions at least, did business on credit. Might not those facts lead one to a conclusion that the money may be suspected as being the proceeds of crime?[13]
[12]Pastras (2005) 11 VR 449, 456 [27].
[13]Pastras (2005) 11 VR 449, 455 [23], 456 [31].
In deciding that s 123 of the Confiscation Act 1997 did not require contemporaneity, Bongiorno J followed the reasoning of the Court of Criminal Appeal of New South Wales in R v Buckett[14] and the Court of Criminal Appeal of South Australia in R v Zotti.[15] Both of those cases concerned s 82 of the Proceeds of Crime Act 1987 (Cth), the predecessor of s 400.9 of the Code. Bongiorno J declined to follow Rinaldi v Watts[16] in which Kellam J stated in obiter that, for the purposes of s 123, the suspicion that the property in the accused’s possession is a proceed of crime must exist at the same time as the possession of such property.[17] Bongiorno J noted that Kellam J was not referred to the cases of Buckett and Zotti.
[14](1995) 132 ALR 669, 675–6 (‘Buckett’).
[15](2002) 82 SASR 554, 561 [40], 572 [127]–[128] (‘Zotti’).
[16](2003) 138 A Crim R 456 (‘Rinaldi’).
[17]Rinaldi (2003) 138 A Crim R 456, 461 [28].
In oral argument, the applicant accepted that the judge was bound to prefer Pastras to Rinaldi because Pastras was decided later in time and had declined to follow Rinaldi. Nevertheless, the applicant maintained that Pastras was wrong on the question of contemporaneity and that this Court has an opportunity to determine the matter definitively. He submitted that, in circumstances where s 400.9(1)(b) of the Code sets out an element of absolute liability and is silent on the question of contemporaneity, this Court should construe it as requiring contemporaneity so as to prevent the provision from operating unfairly.
The applicant also accepted that s 400.9(1)(b) of the Code sets out an objective or impersonal physical element which depends on objective facts rather than the subjective knowledge of an accused. However, he submitted that, in deciding whether it is reasonable to suspect that the money is proceeds of crime, a jury can only consider facts which were objectively known at the time of the dealing with the money by the accused. According to the applicant, facts which become known subsequent to the dealing are not relevant, and thus inadmissible, on the question of reasonable suspicion.
The Crown conceded that, although Bongiorno J in Pastras held that contemporaneity was not required, all of the non-contemporaneous evidence upon which he relied preceded the accused’s possession of the money. The Crown also conceded that it was not aware of any case in which post-dealing evidence was held to be admissible on the question of reasonable suspicion. Notwithstanding the absence of such authority, the Crown submitted that, as a matter of principle, both incriminatory and exculpatory pre and post-dealing evidence was admissible on the question of reasonable suspicion.
In oral argument, the Crown accepted that an example of exculpatory post-dealing evidence would be the production by the person who gave the money to the accused of evidence which indicated that the money which was initially suspected of being proceeds of crime was earned legitimately. The Crown contended that if such evidence came to light, the prosecution would be obliged to adduce it. The Crown accepted that an example of incriminatory post-dealing evidence would be evidence from a bank which indicated that the bank notes in an accused’s possession matched the serial numbers of bank notes that had been stolen from the bank.
The Crown submitted that it was consistent with the absolute liability nature of the element in s 400.9(1)(b) of the Code that any evidence supporting or negativing the reasonableness of the suspicion was admissible irrespective of whether it pre-dated or post-dated the dealing with the money in question. The Crown accepted that, depending on its magnitude, a lack of temporal proximity between the evidence and the dealing in question may affect the probative value of that evidence or may be unfairly prejudicial to the accused. In such cases, so it was said, the powers to exclude the evidence pursuant to provisions such as ss 135 and 137 of the Evidence Act 2008 could be enlivened.
In our opinion, the judge was correct in following Pastras and in finding that s 400.9(1)(b) of the Code does not require that there be contemporaneity between an accused’s dealing with money and the reasonable suspicion that the money is proceeds of crime.
The effect of ss 400.9(4) and 6.2(2) of the Code is that the second element of the offence — that it is reasonable to suspect that the money is proceeds of crime — is not concerned with an accused’s knowledge or belief.[18] Rather, it is an objective or impersonal element. This must mean that the question whether the prosecution has established the element is to be determined by the jury on the basis of all of the evidence that is available and admissible at trial, irrespective of whether the evidence existed or was known at the time of the dealing with the money or came to light after that time.
[18]Shi v The Queen [2014] NSWCCA 276 [42].
The applicant’s submission that only facts known at the time of the dealing are admissible begs the question of whose knowledge of the facts is relevant. The applicant conceded that it is not an accused’s knowledge of the facts as this would be contrary to the objective and impersonal nature of the element in s 400.9(1)(b). The knowledge of the investigating police officers cannot be the test, as this was rejected in Pastras. As Bongiorno J said in that case, the question of whether the element is satisfied is a matter for a jury or other tribunal of fact.
It follows from the above analysis that, provided that evidence is relevant to the issue of whether it is reasonable to suspect that the money with which an accused dealt is proceeds of crime, it is capable of being admissible irrespective of whether it pre-dated or post-dated the dealing in question. Of course, particular evidence may be inadmissible due to the operation of an exclusionary rule of evidence or it may be excluded by the court in the exercise of the powers in ss 135 or 137 of the Evidence Act2008.
For the above reasons, Ground 2 cannot be made out.
Ground 3: Admissibility of evidence of the Mendoza/Benisi transaction
Ground 3 is that ‘[t]he learned judge erred in permitting the admission of evidence of the Mendoza/Benisi transaction’.
At the first trial, a question arose as to whether evidence of the Mendoza/Benisi transaction was admissible on the issue of whether the Mendoza/Singh money that had been delivered to the applicant eight days earlier was reasonably suspected of being proceeds of crime. On 27 May 2015, the judge ruled that the evidence was relevant to this issue and thus admissible. That ruling was in the following terms:
[T]he second delivery … took place eight days later with the same delivery person, Mr Mendoza delivering to a third man. Mr Singh was not in any way involved with that second delivery. It seems to me that if the jury accept that second delivery of Mr Mendoza was made – and the circumstances relating to that delivery – that evidence could rationally affect the assessment of the probability that it is reasonable to suspect that the money delivered to Mr Singh on 19 October 2013 is proceeds of crime. The evidence is, therefore, admissible. Its probative value is high as to that second element.
I have weighed the probative value against the potential for unfair prejudice. The jury will be directed, clearly, as to the reason why they have heard evidence about the second delivery, that it only goes to the reasonable suspicion as to the money in the first delivery on 19 October 2013 being proceeds of crime and it will be clear, on the evidence, that the second delivery had nothing to do with Mr Singh. In those circumstances, I am satisfied that no unfair prejudice will arise. Therefore, it is not necessary for the court to refuse to admit the evidence under s 137 or 135 [of the Evidence Act 2008] and I do not propose to limit the evidence under s 136.[19]
[19]Transcript of Proceedings, DPP v Singh (County Court of Victoria, 14–00506, Judge Sexton, 27 May 2015) 178–9.
The parties’ submissions on Ground 3 overlapped to some extent with their submissions on Ground 2.
The applicant submitted that, as the Mendoza/Benisi transaction was not contemporaneous with the applicant’s dealing with the Mendoza/Singh money, evidence concerning it was not admissible. The applicant also submitted that the fact that the Mendoza/Benisi transaction took place was not relevant to the question of whether it is reasonable to suspect that the Mendoza/Singh money is proceeds of crime, as that transaction occurred at a different time, was between individuals other than the applicant and involved a different amount of money.
The applicant contended that the evidence of the Mendoza/Benisi transaction was in the nature of coincidence or tendency evidence and should have been excluded by the judge on that basis. However, the applicant did not seek to impugn the judge’s finding that the evidence should not be excluded under ss 135 or 137 of the Evidence Act 2008 and that the use to be made of it should not be limited under s 136 of that Act. Further, the applicant has not made any complaint about the warning that the judge gave to the jury about how they could use the evidence.
The Crown submitted that the fact that the Mendoza/Benisi transaction was not contemporaneous with the applicant’s dealing with the Mendoza/Singh money did not affect the admissibility of evidence concerning it. The Crown contended that the fact that eight days after the applicant’s dealing, the person who delivered the money to him also delivered a similar amount of money to another person in a backpack could rationally affect the assessment of the probability that it is reasonable to suspect that the money with which the applicant dealt was proceeds of crime.
According to the Crown, the evidence of the Mendoza/Benisi transaction was not tendency evidence, as it was not admitted for the purpose of proving that the applicant had a tendency to act in a particular way or to have a particular state of mind. The Crown also contended that evidence of the Mendoza/Benisi transaction was not coincidence evidence because it was not admitted for the purpose of proving that the applicant did a particular act or had a particular state of mind, as s 400.9(1)(b) dealt with the objective and impersonal question of whether it is reasonable to suspect that the money with which the applicant dealt was proceeds of crime.
Having regard to our conclusion on the contemporaneity issue raised by Ground 2, we agree with the Crown’s submission that the fact that the Mendoza/Benisi transaction occurred after the applicant ceased dealing with the Mendoza/Singh money does not mean that evidence of that transaction is inadmissible.
We also agree with the Crown’s submission that evidence of the Mendoza/Benisi transaction did not constitute either tendency or coincidence evidence which was inadmissible under ss 97, 98 or 101 of the Evidence Act 2008. There was, however, a risk that the jury might use reasoning that was analogous to coincidence reasoning. The jury may have reasoned that, insofar as they had any doubt about whether the Mendoza/Singh transaction involved proceeds of crime, that doubt could be put aside because the fact that there was another transaction soon afterwards which involved a similar amount and a common individual (Mr Mendoza) rendered it improbable that both transactions were legitimate. This type of reasoning had the potential to cause unfair prejudice to the applicant. However, the applicant has not sought leave to appeal against the judge’s findings under ss 135, 136 or 137 of the Evidence Act 2008.
In the absence of any exclusionary rule applying to the evidence of the Mendoza/Benisi transaction, its admissibility depended on whether it satisfied the definition of ‘relevant evidence’ in s 55 of the Evidence Act 2008. That section defines ‘relevant evidence’ as ‘evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.’ In this context, the issue at trial was whether it was reasonable to suspect that the Mendoza/Singh money was proceeds of crime. In our opinion, there can be little doubt that the evidence of the Mendoza/Benisi transaction could rationally affect the assessment of the probability of it being reasonable to suspect that the Mendoza/Singh money was proceeds of crime.[20] This is because the similarities between the two transactions rendered it very likely that they both involved money that was proceeds of crime. Those similarities included: a common supplier (Mr Mendoza); amounts of money that were nearly identical; similarities in the notes used and the way that they were packaged; the use of a suitcase and a backpack; and the fact that the transactions occurred outdoors in public places rather than at business premises.
[20]Later events may be probative in relation to earlier events: Stevens v The Queen [2007] NSWCCA 252 [40], [52]; R v Gregory [2009] VSC 509 [80]–[86].
For the above reasons, Ground 3 must be rejected.
Ground 4: Phrase ‘at or before’ in s 400.10 of the Code
Ground 4 is that ‘[t]he learned judge erred in ruling that the [prosecution] could rely on either “at the time of” or “during the time of dealing” when seeking to prove the [a]pplicant’s belief as to the value of the money.’
As stated at [22] above, s 400.10 of the Code provides a partial defence to a charge under s 400.9(1). Section 400.10 relevantly provides:
400.10 Mistake of fact as to the value of money or property
(1) A person is not criminally responsible for an offence against section 400.3, 400.4, 400.5, 400.6, 400.7 or 400.9 in relation to money or property if:
(a) at or before the time of dealing with the money or property, the person considered what was the value of the money or property, and was under a mistaken but reasonable belief about that value; and
(b) had the value been what the person believed it to be, the person’s conduct would have constituted another offence against this Division for which the maximum penalty, in penalty units, is less than the maximum penalty, in penalty units, for the offence charged.
Example:Assume that a person deals with money or property that is the proceeds of crime. While the person believes it to be proceeds of crime, he or she is under a mistaken but reasonable belief that it is worth $90,000 when it is in fact worth $120,000.
That belief is a defence to an offence against subsection 400.4(1) (which deals with money or property of a value of $100,000 or more). However, the person would commit an offence against subsection 400.5(1) (which deals with money or property of a value of $10,000 or more). Section 400.14 allows for an alternative verdict of guilty of an offence against subsection 400.5(1).
Note:A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3)).
(2) A person may be regarded as having considered what the value of the money or property was if:
(a) he or she had considered, on a previous occasion, what the value of the money or property was in the circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
Section 400.10(1) of the Code imposes an evidential burden on an accused in relation to the matters there set out. Once that burden is discharged, s 13.1(2) has the effect that the prosecution bears a legal burden of disproving the matters set out in s 400.10(1). In the present case, the prosecution conceded that the applicant had discharged the evidential burden.
Section 400.14 of the Code provides that in circumstances such as those set out in s 400.10, a jury may find an accused not guilty of the offence charged but guilty of another offence with a lower maximum penalty.
On 1 June 2015, the judge made the following ruling on the phrase ‘at or before the time of dealing with the money’ in s 400.10(1)(a) of the Code:
‘At or before the time of dealing’, in my view, contemplates continuing conduct. ‘Dealing’ is an ongoing concept, and, for example, the legislation does not say ‘dealt with’, which might relate to a finite time.
…
‘The time of dealing’ is therefore not necessarily one point in time. In my view, in this case it begins with receiving money, and continues throughout the possession of the money in the suitcase, and ends with the interception by the police. It is clear that this is a matter of certainly less than seven minutes, and possibly as little as three or four minutes. But construing the time of dealing in this way means that ‘at or before’ can be a consideration before the time of dealing, or during the time of dealing.
…
[I]t seems to me that [s 400.10 of the Code] must be construed as to a belief held, or not held, during the course of the conduct of dealing, and the subjective belief is to be considered as at the state of the accused’s knowledge from before, to right up until completion of, the offence.
The legislation, in my view, could not have contemplated that a lesser alternative was to apply where, at some point, the accused believed the value was greater than $100,000, or again, to put it more precisely, where the prosecution has excluded the reasonable possibility that the accused did have a mistaken belief that the value was less [than] $100,000, or excluded the possibility that the belief was mistaken but reasonable, or excluded the possibility that the belief was to a value less than $100,000.
…
It will be clear from what I have already said that I am of the view that the prosecution can rely on ‘during’ the period of the time of dealing, because it is a continuing offence …[21]
[21]Transcript of Proceedings, DPP v Singh (County Court of Victoria, 14–00506, Judge Sexton, 1 June 2015), 360–2.
The judge agreed with a submission by the prosecution that, for the purposes of s 400.10 of the Code, the prosecution need not elect between ‘at’ and ‘before’ the time of dealing because, under the definition of ‘deals with money’ in s 400.2, ‘dealing’ relates to a continuing period of conduct. The judge stated that the prosecution can rely on an accused’s continuing conduct in seeking to discharge its legal burden of disproving the matters in s 400.10.[22]
[22]Transcript of Proceedings, DPP v Singh (County Court of Victoria, 14–00506, Judge Sexton, 1 June 2015), 363–4.
The applicant did not seek to impugn the judge’s finding that the phrase ‘dealing with the money’ in s 400.10(1)(a) of the Code can involve a continuous course of conduct rather than a single act at a fixed point in time — which, to be clear, is not the same as saying (as the judge did) that there is a ‘continuing offence’. However, he submitted that the judge’s construction of the phrase ‘at or before’ was wrong because it did not give the word ‘or’ a disjunctive meaning and thus deprived him of the opportunity of coming within the lesser offence in s 400.9(1A) of the Code.
The applicant contended that, had ‘or’ been given a disjunctive meaning, the requirements of s 400.10(1) of the Code would have been satisfied in his case because before his dealing with the Mendoza/Singh money — which commenced with his receipt of the money and continued with his initial possession of it — he had considered the value of the money and was under a mistaken but reasonable belief that its value was less than $100,000. According to the applicant, the fact that towards the end of the period of his dealing with the money — namely, the brief period of his possession after he looked in the suitcase — he discovered that the amount might exceed $100,000 did not change the fact that before that time of his dealing, he had considered the value of the money and was under a mistaken but reasonable belief that its value was under $100,000.
The applicant accepted that it would be anomalous if s 400.10 of the Code could be satisfied where a person who had a mistaken but reasonable belief that the value of the money which he or she was about to receive was less than $100,000 continued to possess the money for many weeks after learning that its value exceeded $100,000. According to the applicant, no such anomaly arose in his case because he had possession of the Mendoza/Singh money for only a few moments after he discovered that its value might exceed $100,000. He contended that the judge’s interpretation of the phrase ‘at or before’ produced unfairness in his case because his arrest a few moments after he made the above discovery deprived him of the opportunity to consider his position and take practical steps to cease dealing with the money.
In supplementary written submissions, the applicant contended that, as s 400.10 of the Code contains one of the few defences available to the absolute liability offence under s 400.9(1), any ambiguity in the meaning of s 400.10 should be resolved in favour of an accused.[23]
[23]The applicant relied upon Beckwith v The Queen (1976) 135 CLR 569, 576.
The applicant submitted that the judge erred in concluding that it was not necessary for the prosecution to elect between ‘at the time of dealing’ and ‘before the time of dealing’ for the purposes of s 400.10 of the Code.
Although it was not part of his written case, the applicant submitted that the difficulties in the present case arose because the prosecution did not particularise in the indictment the time at which the applicant dealt with the money, whether it was when he received it or possessed it and, if the latter, upon what stage of possession the prosecution relied. The applicant suggested that the prosecution should have specified the precise time so that the applicability of the partial defence of mistaken but reasonable belief could be assessed as at that time. The applicant conceded that this issue was not raised at trial.
The Crown submitted that the judge correctly interpreted the phrases ‘at or before’ and ‘dealing with the money’ in s 400.10(1)(a) of the Code.
The Crown’s primary submission was that the phrase ‘at or before’ in s 400.10(1)(a) of the Code is a composite expression and therefore if the prosecution is able to disprove that an accused had a mistaken but reasonable belief that the money with which he or she dealt had a value of less than $100,000 at any time during that dealing, then s 400.10 could not apply. In supplementary written submissions, the Crown clarified that the word ‘at’ was intended to give precedence to the accused’s knowledge ‘at … the time of dealing with the money’ over any belief he or she had ‘before the time of dealing with the money’.
The Crown contended that the words ‘or before’ were deliberately used to limit the application of s 400.10 of the Code to the scenario where a belief before the time of dealing was not displaced by any evidence of an absence of such belief at any time during the dealing. According to the Crown, it would be a perverse interpretation of s 400.10 to allow a mistaken belief prior to the time of dealing to displace actual knowledge obtained at the time of dealing. Such an interpretation was said to be contrary to the purpose or object of the Code.
By way of ‘fall back’ position, the Crown submitted that, if that is the correct interpretation of s 400.10 of the Code, the fact that the relevant belief was not held at a subsequent time would be capable of casting doubt on whether such a belief was genuinely held at the earlier time. According to the Crown, while a jury may consider a mistaken belief held by an accused before the dealing, its assessment of whether that belief is reasonably held must include consideration of the facts known to the accused at the time of dealing.
In relation to the applicant’s submission that the prosecution should have been required to elect between ‘at the time of dealing’ and ‘before the time of dealing’ for the purposes of s 400.10 of the Code, the Crown submitted that it is not possible for the prosecution to do so because the prosecution may not know in advance how an accused would seek to invoke the partial defence in s 400.10.
Both parties agreed that there are no relevant authorities on the issues of construction of s 400.10 of the Code that have been raised in the present application.
Ordinarily, the word ‘or’ is given a disjunctive meaning.[24] However, the text, context and purpose of the statutory provision in which the word appears may indicate that it is to be given a conjunctive meaning (as in ‘and’) or a hybrid of disjunctive and conjunctive (as in ‘and/or’).[25] The text, context and purpose may also indicate that the word ‘or’ is not intended to govern the meaning of the phrase in which the word appears and that the phrase is to be given a composite meaning.
[24]DPP v Ali (2009) 23 VR 203, 215 [38]; Jennings v Pryce (1984) 30 NTR 39, 42.
[25]Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194–5; Ormerod v Blaslov (1989) 52 SASR 263, 269–70; Re The Minister for Works; ex parte Duffy (2002) 124 LGERA 22, 34–5 [22]–[23]; Victoria v Leck [2010] VSCA 76 [24]–[28].
Read alone, the text of the phrase ‘at or before the time of dealing with the money or property’ in s 400.10(1)(a) of the Code suggests that the word ‘or’ should be read disjunctively.
Of course, that phrase cannot be read in isolation. It must be read in the context of the Code as a whole, though remembering that whilst context can assist ‘in fixing the meaning of the statutory text’, it ‘cannot displace the meaning of the statutory text’.[26] Relevant contextual matters are: the elements of the offence in s 400.9(1); the definition of ‘deals with money or other property’ in s 400.2; and the use of the phrase ‘at or before’ in another section of the Code, namely, s 9.2(1)(a).
[26]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39].
Under s 400.9(1) of the Code, an accused commits an offence when each of the three elements of the offence are satisfied. For present purposes, the critical words are ‘deals with money or other property’ in para (a) and the words ‘at the time of the dealing’ in para (c).
As stated at [19] above, para (a) of s 400.2 of the Code provides that a person ‘deals with money or other property if the person does any of the following: … receives, possesses, conceals or disposes of money or other property’. Having regard to these components of the definition, the first element of the offence against s 400.9(1) is made out if an accused receives, possesses, conceals or disposes of money or other property. The third element of the offence is made out if, at the time of the dealing, the value of the money and other property is $100,000 or more.
Although s 400.9(1) of the Code establishes a single offence,[27] a person can commit that offence in different ways, namely, by committing one or more of the acts specified in the definition of ‘deals with’. In many cases, a person who receives money or other property will also possess the money or property for some time and may also conceal and dispose of it. In a colloquial sense, a person who receives, possesses, conceals and ultimately disposes of money or property may be said to engage in a continuous course of conduct. However, while the act of possession and concealment and possibly disposal may involve an act which may be continuing, the act of receiving is a single finite act at a particular point in time and does not involve a continuous course of conduct.[28]
[27]See Griffiths v Freeman [1970] 1 WLR 659, 662 and R v Nicklin [1977] 1 WLR 403, 407 in relation to the offence of handling under s 22 of the Theft Act 1968 (UK). See also R v Caldwell (2009) 22 VR 93, 101 [73] n 23.
[28]R v Smythe (1981) 72 Cr App R 8, 13.
Accordingly, where the act of receiving money or other property is relied upon as the physical act under para (a) of s 400.9(1) of the Code and the other two elements of the offence are satisfied, the offence is complete at the moment an accused receives the money or other property. If the accused retains possession of the money or property, the fact that the possession could also constitute an offence against s 400.9(1) does not alter the result that an offence has already been committed by virtue of the act of receiving the money or property.
This analysis informs the meaning of ‘at the time of the dealing’ in s 400.9(1)(c) of the Code. The value of the money or property for the purposes of that section must be determined as ‘at the time’ of the act constituting the dealing with the money or property. Where the dealing is constituted by the act of receiving money or other property, the value of the money or other property must be determined as at the time an accused receives it. The value of the money or other property during any subsequent possession is irrelevant to the commission of the offence where the act of receiving constitutes the dealing. It must follow that, for the purposes of an offence constituted by that act, the question of whether the partial defence in s 400.10(1) applies will depend on whether ‘at or before’ the time of receiving the money or property, the accused considered what was the value of the money or property and was under a mistaken but reasonable belief that it was less than $100,000.
As we have stated at [90] above, where the dealing in money or other property is constituted by possession, the dealing may involve a continuous course of conduct. In the case of property which fluctuates in value — such as gold — the value might be less than $100,000 at some times during the possession and might exceed $100,000 at other times during the possession. That could give rise to difficult questions as to the application of s 400.9(1) in a prosecution founded on possession, and as to the possible operation of the partial defence in s 400.10. But those questions do not have to be answered in order to dispose of the present matter.
In the light of the above observations, we consider that the phrase ‘at or before the time of dealing with the money or property’ in s 400.10(1)(a) of the Code — a phrase only found at one other place in the Code and a phrase which has not been construed in the present context nor, so far as our researches disclose the position, been judicially defined — should be treated as a composite expression meaning at any time up to and including the time of the act of dealing upon which the prosecution relies. Accordingly, where the act of dealing relied upon is receipt of money, an accused can discharge the evidential burden under s 400.10 if there is evidence that he or she had a mistaken but reasonable belief that the value of the money was less than $100,000 either before receiving the money or at the time of receiving the money or both. However, if, at the conclusion of all the evidence, it is established that the accused did not have such a belief at the time of receipt — when the offence is committed — the partial defence in s 400.10 will not be made out even though the accused held such a belief before that time.
The construction we have adopted is consistent with the use of the words ‘at or before’ in the phrase ‘at or before the time of the conduct constituting the physical element’ in s 9.2(1)(a) of the Code. In both ss 400.10(1)(a) and 9.2(1)(a), the words ‘at or before’ provide a temporal framework by reference to the act which constitutes the physical element of the relevant offence. Once that act is identified, the applicability of the relevant defence depends on the accused’s belief at or before the commission of that act in the manner set out at [94] above. In the case of an offence against s 400.9(1), the existence or otherwise of a mistaken but reasonable belief of the relevant kind at the time of the act of dealing upon which the prosecution relies is ultimately determinative of the applicability of the partial defence in s 400.10. Section 400.10(2) supports this conclusion.
The construction we have adopted is also consistent with the nature and purpose of s 400.10 of the Code. That section does not create an offence but rather provides a partial defence. Where an accused who is charged with an offence against s 400.9(1) discharges the evidential burden in relation to the matters set out in s 400.10(1), the jury must decide whether the prosecution has disproved those matters beyond reasonable doubt. If the jury decides that the prosecution has not done so, the accused cannot be found guilty of that offence but the jury may find him or her guilty of the offence against s 400.9(1A) which carries a lower maximum penalty. In respect of both the evidential and legal burdens, the timeframe which the words ‘at or before’ establish must be determined by reference to the time of commission of the act constituting the dealing with the money or property for the purposes of s 400.9(1)(a). What is relevant is whether an accused has a mistaken but reasonable belief about the value of the money or property during this timeframe. Any different belief as to that value after that timeframe cannot affect the applicability of the partial defence with respect to the act upon which the prosecution relies as the dealing.
It follows from the above analysis that we do not agree with the judge’s ruling that s 400.9(1) of the Code establishes a continuing offence and that the phrase ‘at or before the time of dealing’ in s 400.10(1)(a) requires consideration of whether an accused had the relevant mistaken but reasonable belief from before the first act of dealing was performed until the final act of dealing was completed.[29]
[29]See [71] above.
However, it is understandable that the judge erred, as ss 400.9 and 400.10 of the Code are badly drafted and replete with internal inconsistencies and inconsistencies between the two provisions. The inconsistencies in s 400.9(1) include the use of the verb ‘deals’ in the phrase ‘deals with’ and the disjunctive ‘or’ in the phrase ‘money or other property’ in para (a) compared to the use of the noun ‘the dealing’ in the phrase ‘at the time of the dealing’ and the conjunctive ‘and’ in the phrase ‘the money and other property’ in para (c). Although s 400.10 is intended to provide a partial defence which is directed to the ‘value’ element of the offence under s 400.9, that element refers to ‘the value of the money and other property’ whereas s 400.10(1)(a) refers to ‘the value of the money or property’. Further, neither s 400.9 nor s 400.10 gives appropriate recognition to the fact that, under s 400.2, a person may deal with money or other property by committing a number of discrete acts either alone or in combination.
As s 400.9(1) of the Code establishes a single offence constituted by dealing with money or other property, an indictment can charge an accused with a single offence of dealing with money or property without specifying which component of the definition of ‘deals with’ in s 400.2 is said to constitute the physical element of that offence.[30] But if such an indictment were laid, the accused would be entitled to request particulars of the component of the definition upon which the prosecution relies and to require the prosecution to elect to base the charge on that component in order to avoid a latent duplicity of the type discussed in Trotter v The Queen.[31]In the absence of such an election, where, for example, there was evidence that the accused received as well as possessed the money or property, if the accused was found guilty, it would not be possible to determine whether all members of the jury based their verdict on receipt or possession or both or whether some of them based it on receipt whereas others based it on possession.
[30]See the cases cited at n 27 above in relation to the offence of handling under s 22 of the Theft Act 1968 (UK).
[31](1982) 7 A Crim R 8, 16–18.
An election by the prosecution between the components of the definition of ‘deals with’ in s 400.2 of the Code is necessary in order to enable a timeframe to be given to the phrase ‘at the time of the dealing’ in s 400.9(1) and the phrase ‘at or before the time of dealing’ in s 400.10(1)(a) in the manner discussed above.
In the present case, due to the unparticularised charge on the indictment and defence counsel’s failure to seek a ruling requiring the prosecution to elect between receipt and possession,[32] the case went to the jury on the basis that the dealing with which the applicant was charged commenced when he received the money and concluded when the police seized it.
[32]See [23] and [25] above.
The consequence of the manner in which the prosecution conducted the case was that all of the elements of an offence in s 400.9(1) of the Code were established when the applicant received the money. Once those elements were established, the only remaining question for the jury to determine was the applicability of the defences upon which the applicant relied. For the purposes of the partial defence in s 400.10, as the prosecution had conceded that the applicant had satisfied the evidential burden, the question for the jury was whether the prosecution had discharged the legal burden of establishing that at the time he received the money, he had not considered what the value of the money was and was not under a mistaken but reasonable belief that its value was less than $100,000. On the evidence, the only conclusions that were open to the jury were: that the prosecution had not discharged the legal burden; that s 400.10(1) was satisfied; and that the applicant was not guilty of an offence against s 400.9(1). The jury could then have found the applicant guilty of an offence against s 400.9(1A). We do not accept that it was open to the jury, in the circumstances, to convict the applicant of an offence against s 400.9(1) on the basis of a dealing by possession in respect of which the partial defence in s 400.10 could not be successfully maintained.
We should add this. The construction which we have adopted can be tested by reference to the various factual scenarios that may arise for consideration under s 400.10 of the Code. In a case such as the present where an accused receives money with a value exceeding $100,000 and retains possession of the money, those scenarios include the following:
(a)Before the accused received the money, he or she was under a mistaken but reasonable belief that its value was less than $100,000. That belief continued throughout the period of the accused’s possession of the money.
(b)Before the accused received the money, he or she believed that its value exceeded $100,000. That belief continued throughout the period of the accused’s possession of the money.
(c)The accused did not consider the value of the money at any time before receiving it or while the money was in his or her possession.
(d)Before the accused received the money, he or she was under a mistaken but reasonable belief that its value was less than $100,000. At the time the accused received the money, he or she learned that the value exceeded $100,000.
(e)Before the accused received the money, he or she did not consider its value but from the time of receipt until the time that possession ceased, he or she was under a continuing mistaken but reasonable belief that its value was less than $100,000.
(f)Before the accused received the money, he or she did not consider its value but from the time of receipt until the time that possession ceased, he or she knew that its value exceeded $100,000.
(g)Before the accused received the money, he or she was under a mistaken but reasonable belief that its value was less than $100,000. The accused continued to hold that belief when he or she received the money (when an offence under s 400.9(1) was complete) and for the initial period of possession of the money but at a later point in time during the period of possession, he or she learnt that its value exceeded $100,000. (This scenario reflects the applicant’s circumstances.)
In circumstances where, as in the present case, the prosecution relied on both the acts of receipt and possession, on the construction of s 400.10 that we have adopted, the partial defence in that section would be engaged in scenarios (a), (e) and (g).
It follows from what we have said that Ground 4 is made out.
During the hearing of the application for leave to appeal against conviction, the Bench invited the parties to make submissions on the appropriate disposition in the event that this Court upheld Ground 4. The applicant submitted that, in that event, this Court should allow the appeal, quash the conviction, substitute a conviction for an offence against s 400.9(1A) of the Code, and resentence him accordingly. The Crown submitted that, in that event, this Court should dismiss the appeal under s 276(2) of the Criminal Procedure Act 2009 (‘CP Act’) on the basis that there had not been any substantial miscarriage of justice. However, the Crown conceded that this Court would have power under s 277(1)(c) of the CP Act to set aside the conviction and substitute a conviction for an offence against s 400.9(1A).
We do not accept the Crown’s submission that the appeal should be dismissed on the basis that there has not been a substantial miscarriage of justice. The judge’s error deprived the applicant of the opportunity to be convicted of an offence carrying a substantially lower maximum penalty than the offence for which he was convicted and sentenced.
In accordance with s 277(1)(c) of the CP Act, the conviction will be set aside and a conviction for an offence against s 400.9(1A) will be substituted.
In the light of the above conclusion, the applicant must be resentenced.
The applicant submitted that, in the event that this Court finds that the sentencing discretion miscarried or that a conviction for an offence against s 400.9(1A) of the Code should be substituted, we should resentence him to a more lenient sentence than the sentence imposed by the judge. However, the applicant did not seek to rely on any material that was not before the judge at the time of sentence. The Crown submitted that if this Court’s power to resentence the applicant was enlivened, a different sentence should not be imposed.
Although it is not necessary for us to consider the proposed grounds of appeal in the application for leave to appeal against sentence, we will refer to one aspect of the judge’s sentencing remarks which the applicant sought to impugn in the context of Ground 2 dealing with parity.
Applicant’s personal circumstances
The applicant was born in India. His father died in a motor vehicle accident when he was 10 years old. The applicant moved to Australia in around 2006 or 2007 and holds a permanent resident visa which was granted in 2011. He married in 2009 and has one daughter who was born in May 2014.
At the time of the offence, the applicant was 35 years old and was working in Melbourne as a taxi driver. He had previously worked as a chef. He has a degree in political science.
The applicant had the continuing support of his wife and mother and of a man he knows from a Sikh temple. He had not committed any prior offences and had an offer to work as a chef upon his release from prison.
The judge accepted that as at the time of sentencing, the applicant suffered from depression, anxiety and also had diabetes.[33]
[33]Reasons [40].
On 21 March 2014, the applicant made an offer to plead guilty to the lesser offence under s 400.9(1A) of the Code. On 1 April 2014, the prosecution rejected that offer.
Sentencing considerations
The applicant’s role in the money laundering scheme was an important one and involved considerable planning on his part. That planning included telephone discussions with Mr Jain, the acquisition of a new mobile phone using incorrect personal details, telephone discussions with Mr Mendoza, driving Mr Jain’s van to the agreed meeting place, using a $5 note to verify his identity as the recipient of the money, and taking control of a suitcase containing a substantial amount of money. The amount of money the applicant believed was in the suitcase — between $20,000 and $60,000 — was not insignificant.
We have taken into account in favour of the applicant the family and community support he enjoyed, the fact that he had been offered employment as a chef and his work ethic. Like the judge, we consider the applicant’s prospects of rehabilitation are reasonable and that, while general deterrence is an important sentencing consideration, specific deterrence does not warrant much weight.
We have given appropriate weight to the applicant’s early offer to plead guilty to an offence against s 400.9(1A) of the Code.
In the light of the fact that we will be sentencing the applicant to a period of imprisonment of less than 12 months, it is not necessary for us to consider the prospect that the applicant might be deported.
We now deal with parity.
Mr Mendoza and Mr Benisi were remanded in custody upon their arrest.
Mr Mendoza pleaded guilty to two charges under s 400.9(1) of the Code, one in respect of the Mendoza/Singh transaction and one in respect of the Mendoza/Benisi transaction. On 21 March 2014, he was sentenced to 12 months’ imprisonment on each charge and to a total effective sentence of 14 months’ imprisonment, with a direction that, after serving 8 months, he be released on a recognizance release order.
Mr Benisi pleaded guilty to one charge under s 400.9(1) of the Code in respect of the Mendoza/Benisi transaction. On 21 March 2014, he was sentenced to 12 months’ imprisonment, with a direction that, after serving 6 months, he be released on a recognizance release order.
In applying the principle of parity, the judge identified the following similarities and differences between the applicant’s offending and personal circumstances and the offending and personal circumstances of Mr Mendoza and Mr Benisi:
I turn finally to consider parity between you and the co-offenders. The features that are the same are:
• the amount of money involved;
•that you were all aware that you were committing the crime of money laundering;
• you were all … involved in a level of planning before the delivery;
•the court recognised for all of you that you were suffering from depression which would make the burden of a prison sentence weigh more heavily on you;
• none of you have prior convictions;
•you all have a background of family financial difficulty in your childhood; and
•you and [Mr] Benisi had actual possession of the money for a similar amount of time on delivery before arrest.
The differences are:
•[Mr] Mendoza and [Mr] Benisi came to Australia specifically for the purpose of committing the crimes, while you were a permanent resident, living and working here;
•[Mr] Mendoza and [Mr] Benisi received the benefit of pleading guilty;
•[Mr] Mendoza was charged with two offences of money laundering;
•[Mr] Mendoza and [Mr] Benisi were aware of the larger amount of money involved in the offence, while you were not aware that it was over $100,000 until you received the suitcase and looked in it;
•[Mr] Mendoza and [Mr] Benisi have no or limited support while in custody;
•[Mr] Mendoza and [Mr] Benisi were found not to be entitled to have the risk of deportation considered, as it was speculative in [Mr] Mendoza’s case, and [Mr] Benisi wanted to return to Italy;
•you had been involved in money deliveries before; and
•because of the delay before your case was finalised, you had the opportunity to demonstrate some prospects of rehabilitation, but would be going into custody more than two years after the offence, whereas [Mr] Mendoza and [Mr] Benisi were in custody from the moment of their arrest.[34]
[34]Reasons [50]–[51].
Another difference between the three offenders is that Mr Benisi expected to receive about $25,000 for his role and Mr Mendoza expected to receive $10,000 plus expenses for his.
In the light of our decision to set aside the conviction and substitute a conviction for an offence against s 400.9(1A) of the Code, another important difference between the applicant on the one hand and Mr Mendoza and Mr Benisi on the other hand is that the latter offenders were convicted of an offence against s 400.9(1) which carries a substantially higher maximum penalty.
It will be noted that one of the differences that the judge relied upon was that the applicant ‘had been involved in money deliveries before’. The judge referred to this consideration again in the context of the applicant’s submission on the plea that his offending subsisted for less than seven minutes and was thus fleeting. In rejecting this submission, the judge stated:
I am satisfied that the evidence shows that your conduct in the offence was not fleeting and not restricted to the seven minutes or less that you were knowingly in possession of $500,100. I am satisfied that the [Alcatel] phone was activated and used solely for the delivery on 19 October, and that you had past involvement in the movement of money for [Mr] Jain, and on this occasion, were involved in the planning and execution of the collection of money. While this evidence can equally relate to dealing with an amount less than $100,000, the fact is that the jury found you guilty of dealing with the larger amount, and so I treat your conduct as referrable to that more serious offence.
I make it clear that I am not sentencing you for having committed a crime or crimes in the past when collecting money for [Mr] Jain. These previous transactions are properly relied on to rebut the submission made by your counsel, that your criminal conduct for the charge was limited and fleeting and also relevant to your character and antecedents to which I must have regard.[35]
[35]Reasons [19]–[20] (citations omitted).
The judge also said that she weighed the fact that the applicant had ‘not been convicted of a criminal offence before or since this crime, against the fact that [he] had engaged in money collection for [Mr Jain] in the past.’[36]
[36]Reasons [43].
The applicant highlighted the differences between his culpability and that of Mr Mendoza and Mr Benisi, as identified by the judge, and submitted that he had a more limited role and lower culpability. The applicant emphasised, in particular, that Mr Mendoza had committed two offences rather than one offence and had come to Australia specifically to commit those offences.
The applicant submitted that, in sentencing him, the judge impermissibly took into account the fact that he had taken delivery of money previously on behalf of Mr Jain. According to the applicant, as he had not been charged in relation to the previous deliveries and it had not been established that they involved money which was reasonably suspected of being proceeds of crime, the previous deliveries were irrelevant.
The Crown submitted that the judge had properly identified the similarities and differences between the offending and circumstances of the three individuals. The Crown emphasised that the most significant difference between the applicant and the other two offenders was that the latter had pleaded guilty and, accordingly, were entitled to an appropriate discount on their sentence, whereas the applicant had pleaded not guilty and was not entitled to such a discount. The Crown noted that the circumstances of the applicant and those of Mr Benisi were very similar.
The Crown contended that the judge was entitled to take into account the fact that the applicant had previously taken deliveries of money on behalf of Mr Jain for the purpose of rebutting the applicant’s contention that his offending in the present case was limited and fleeting.
In our opinion, the judge committed a specific error in taking into account adversely to the applicant the fact that he had previously taken deliveries of money on behalf of Mr Jain. Insofar as the money that the applicant received previously was not proceeds of crime, the previous deliveries were irrelevant to the exercise of the sentencing discretion. Insofar as the money was proceeds of crime, as the applicant was not charged with any offence in respect of those deliveries, he could not be punished for those deliveries nor could those deliveries be used as an aggravating circumstance in relation to the offence of which he was convicted.[37] Although the judge said that she was not punishing the applicant in respect of the prior deliveries, read as a whole, her observations on those deliveries indicate that she took them into account as part of the sentencing synthesis in a manner that was adverse to the applicant.
[37]R v De Simoni (1981) 147 CLR 383, 389.
In the light of the similarities and differences in the circumstances of the three individuals, we are of the opinion that the principle of parity requires that the applicant be sentenced more leniently than Mr Mendoza and not more severely than Mr Benisi.
Resentence
Having regard to the sentencing considerations discussed above and the maximum penalty of 2 years’ imprisonment or 120 penalty units or both for an offence against s 400.9(1A) of the Code, the applicant will be resentenced to 10 months’ imprisonment with a direction that, after serving 6 months, he be released on a recognizance release order containing the same terms as the order made by the judge.
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