T T v The Queen

[2012] VSCA 27

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 1008
TT	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 February 2012
DATE OF JUDGMENT:	24 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 27
JUDGMENT APPEALED FROM:	R v [TT] (Unreported, County Court of Victoria, Judge Wood, 17 December 2009)

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CRIMINAL LAW – Sentence – Reckless dealing with proceeds of crime contrary to s 400.3(2) of the Criminal Code Act 1995 – Parity with sentence of co-offender re-sentenced by this Court – Forfeiture of property – Re-sentenced to four years six months’ imprisonment with non-parole period of two years and six months – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G A Georgiou	Valos Black
For the Crown	Mr D D Gurvich	Director of Public Prosecutions (Cth)

REDLICH JA:

1. The appellant pleaded guilty in the County Court to a count that between 6 December 2005 and 6 October 2006 at divers places, he did, contrary to sub‑s.400.3(2) of the Criminal Code Act 1995 (Cth) receive, possess or dispose of money being the proceeds of crime, being reckless as to the fact that the money was proceeds of crime and at the time of the dealing, the value of the money was $1 million or more.

1. He was sentenced by Judge Wood in the County Court on 17 December 2009 to five years' imprisonment and a non‑parole period of three years was fixed.

1. At the same time as he was sentenced, numerous other co‑offenders were also sentenced to varying terms of imprisonment, some of them much more substantial than the sentence imposed on the applicant and, in the case of others, slightly less substantial sentences were imposed.

1. Many of his co‑offenders appealed to the Court of Appeal and were successful in their appeals, this Court handing down a judgment in the case of the co‑offenders on 20 December 2011.  One of those co‑offenders, TAN, who had appealed and was successful, was described by Judge Wood in his reasons for sentence as a co‑offender who should have a sentence in parity with that imposed on the appellant.  TAN had therefore received a sentence of five years’ imprisonment with a non-parole period of three years.

1. As the co‑offender, TAN, had his sentence reduced on appeal to four years and nine months with a non‑parole period of two years and six months, it was contended by the appellant that, applying the principle of parity, the appellant's sentence should be accordingly reduced.

1. Counsel for the Commonwealth Director conceded that, in light of the sentencing remarks of the sentencing judge and in view of the decision of this Court last year, we should accede to the appellant's submission in that regard.

1. In addition, it emerged that since sentence, two properties which have been the subject of restraining orders and in which the appellant had an interest, had been forfeited to the Commonwealth.  It was agreed between the parties that when a calculation was made of the interest which the appellant had had in those two properties, this Court should proceed on the basis that the appellant lost the sum of $41,000 as a consequence of those forfeiture orders, the Crown conceding that such property was not the proceeds of any unlawful activity.

1. Accordingly, it was conceded by the respondent that we should also take that matter into account for the purpose of re‑sentencing the appellant.  

1. Leave to appeal having already been granted, I would allow the appeal.  In light of the concessions made by the respondent, the sentencing discretion must be reopened and the appellant re‑sentenced.  It is unnecessary, in my view, to restate the facts of the case.  They are not in dispute and are fully set out in the judgment of Judge Wood.  The general circumstances of the appellant's offending are also essayed in the judgment of this Court in December last year, although the precise conduct of the appellant was not, of course, the subject of particular consideration.

1. Having heard Mr Georgiou for the appellant by way of a brief exposition of the appellant's personal circumstances, and having regard to the detailed findings made by the sentencing judge concerning the appellant's subjective circumstances, I would re‑sentence the appellant to four years and six months' imprisonment.  I would fix a non‑parole period of two years and six months' imprisonment.

1. The orders of the Court would include a declaration that the appellant has already served 815 days by way of imprisonment in relation to this offence, so that the appellant has approximately another 100 days to serve before he would be eligible for parole.

WEINBERG JA:

1. I agree.