Tsakonas v R

[2009] NSWCCA 258

Reported Decision: 197 A Crim R 581

New South Wales

Court of Criminal Appeal

CITATION:	Tsakonas v R [2009] NSWCCA 258
HEARING DATE(S):	2 September 2009
JUDGMENT DATE:	22 October 2009
JUDGMENT OF:	Tobias JA at 1; Hoeben J at 2; RA Hulme J at 3
DECISION:	Leave to appeal is granted. The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW - sentence - money laundering - attempt to conceal large proceeds of fraud - attempt to corrupt bank official - treatment of prior record of driving offences - whether sentence manifestly excessive - whether error in not finding special circumstances
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Confiscation of Proceeds of Crime Amendment Act 2005 Confiscation of Proceeds of Crime Act 1989
CATEGORY:	Principal judgment
CASES CITED:	Ali v R [2008] NSWCCA 60 Berg v R [2004] NSWCCA 300 Cf R v Bloomfield (1998) 44 NSWLR 734 Fahs v R [2007] NSWCCA 26 Licastro v R [2008] NSWCCA 131 Markarian v The Queen (2005) 228 CLR 357 Murphy v Regina [2005] NSWCCA 412; 158 A Crim R 375 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Oliver (1982) 7 A Crim R 174 R v Simpson (2001) 53 NSWCCA 534; (2001) 53 NSWLR 740 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Regina v Fidow [2004] NSWCCA 172 Regina v Walker [2005] NSWCCA 109 Veen v The Queen (No2) (1988) 164 CLR 465
PARTIES:	Dennis TSAKONAS Regina
FILE NUMBER(S):	CCA 2008/6293
COUNSEL:	S Odgers SC (Applicant) P Leask ( Respondent)
SOLICITORS:	Peter Katsoolis Lawyers Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11/0374
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ
LOWER COURT DATE OF DECISION:	15 August 2008

2008/6293

TOBIAS JA
HOEBEN J
R A HULME J

22 October 2009

Dennis TSAKONAS v Regina

Judgment

1 TOBIAS JA: I agree with R A Hulme J.

2 HOEBEN J: I agree with R A Hulme J.

3 R A HULME J: The applicant was sentenced for two offences in the District Court on the 15 August 2008 to which he had pleaded guilty. His Honour Judge Armitage imposed a sentence of 2 years with a non-parole period of 18 months for an offence of making a false statement with intent to obtain a financial advantage (s 178BB(1) Crimes Act 1900 - maximum penalty imprisonment for 5 years) and a sentence of 6 years with a non-parole period of 4 years 6 months for an offence of dealing with the proceeds of crime (s 193B(1) Crimes Act - maximum penalty imprisonment for 20 years). He ordered that both sentences commence on 30 November 2007.

4 The judge took into account, at the applicant’s request, offences of possessing a prohibited drug and goods in custody in sentencing for the second of those offences.

Facts

5 An agreed statement of facts prepared by a DPP solicitor was tendered to the judge. It leaves a number of questions unanswered. The judge raised his concern about the adequacy of the document. By agreement the DPP solicitor then tendered the statement of Mr Raymond Rayos who will be mentioned shortly. That was an incomplete solution to the problems the judge had identified.

6 In relation to the first offence, on 5 November 2007 a bank account was opened fraudulently at the Coffs Harbour branch of the Commonwealth Bank in a false name. A drivers licence, Medicare card, and two credit/debit cards, all in the false name, were provided as the means of identification. A co-offender, Klaus Grunert, admitted to having paid $1600 to obtain those false documents.

7 On 16 November 2007 the account was credited with $1,570,000 from Australia Mortgage Securities Pty Limited.

8 Grunert was to be paid $200,000 by a person named “Daniel” for transferring the $1,570,000 to a bank account in Thailand. The applicant was aware of this and assisted (in an undisclosed way) in making the application for the fraudulent bank account.

9 In relation to the second offence, on 25 November 2007 a Commonwealth Bank employee, Raymund Rayos was contacted via a message over an online dating website by the offender who was using the name “Dion”. Mr Rayos said that they arranged to meet later that day for casual sex. Mr Rayos had not informed the applicant that he worked at the Commonwealth Bank in the online messages but he did mention it at the subsequent meeting. He also mentioned that his work was involved in international transfers. The applicant told him that he was involved in finance as well. (There was no suggestion that the applicant had deliberately sought out Mr Rayos to involve him in the scheme. It appears, rather, to have been a matter of chance).

10 The applicant and Mr Rayos met for lunch two days later when the applicant broached the possibility of Mr Rayos assisting with the transfer of $1.5 million to Thailand. The following day the applicant attended Mr Rayos’ home and discussed the proposed transaction, indicating that the source of the transfer would be a Wizard Home Loans account and that $1.52 million would be credited. (In fact, the transfer of that sum to the account had already occurred. It seems that Australian Mortgage Securities was in the business of servicing loans originating from Wizard Home Loans, amongst others). The applicant told Mr Rayos that another male and his sister would be travelling overseas to collect the money and that they would return to Australia under false identities. The applicant promised to set Mr Rayos up financially and obtain for him a new identity and a new job. The applicant claimed to Mr Rayos that he knew people who were able to assist in that respect.

11 On 29 November 2007 the applicant again attended Mr Rayos’ home and reiterated the plan to transfer the funds. Mr Rayos’ proposed role was to wire the $1.5 million to a Thai bank account and then erase the money trail. He was to be paid $10,000 for doing so.

12 On 30 November 2007 Mr Rayos received an email at work from a person identified as “DT” (the statement of facts does not say so but presumably this was the applicant). The email contained the name of the co-offender, Mr Klaus Grunert, and the details of a bank account in Thailand. Mr Rayos decided not to participate in the scheme and reported the proposed transaction to his manager. A “stop” was placed on the account.

13 The applicant and the co-offender Grunert went to the Campsie branch of the Commonwealth Bank later that day and attempted to withdraw a sum of money from the account. The amount they attempted to withdraw is not disclosed in the statement of facts but it is described as “a large sum”. Police were notified and two constables attended. The two men were approached and told that there had been an accusation that they were attempting to withdraw money from a fraudulent account. Grunert replied, “I just forgot my password and came in here to fix it up”. The applicant added, “Yeah, he forgot it and the reminder questions and we’re just here to get it reset”. The pair were asked to produce identification. Grunert produced identification both in his own name and in the name of Timothy Brent Potts, the false name used to set up the fraudulent account. They were placed under arrest. The officers searched and found upon Grunert various documents in the name of Timothy Brent Potts as well as an airline ticket to Bangkok in his correct name. They found on the applicant $1030 (Form 1 – goods in custody) and 1.25 grams of methylamphetamine (Form 1 – possess prohibited drug). He also had two passport size photographs of the co-offender Grunert which were the same as that on the drivers licence in the name of Timothy Potts that was found in the possession of Grunert.

14 Police examined the SMS log on Mr Rayos’ mobile phone. They recovered a number of text messages passing between Mr Rayos and the applicant on 26, 28, 29 and 30 November 2007. A message sent by the applicant to Mr Rayos on 26 November read “Hey, you feel like making 10k today?”. On the 28 November Mr Rayos sent a message, “I can’t do it, sorry”. The applicant replied, “Don’t say that. Why. I have committed with the others. I will pop over tonight.” There was a series of messages that passed between the two on the 29 November in which details of how the transaction would be processed were discussed. These messages indicated that the applicant was advising and assisting Mr Rayos in devising a technique that would render the transaction untraceable. On 30 November there were further messages about how the transaction would proceed but it culminated with Mr Rayos telling the applicant, “Plan won’t work”. The applicant immediately replied, “Are you playing games. You tell me one thing and now tell me this. Are you serious. Will deal with you later”.

15 Whilst the statement of agreed facts is silent on the subject, the matter proceeded in this Court, and before the sentencing judge, upon the basis that the source of the $1.5 million had been a fraud. There was no indication of the details of the fraud and whether it was constituted by a single offence or multiple offences.

Subjective features

16 The applicant was born in 1971 and so at the time of the offence he was aged 36. He had what the judge described as “a very extensive record for driving offences”. That was no understatement because between 2000 and 2008 the applicant was convicted for 23 offences, 21 of which were for driving matters. The non-driving offences were relatively minor summary offences. The driving offences included four offences of driving whilst disqualified and one offence of driving whilst suspended. On the last occasion he was before a court he was imprisoned for 12 months and 18 months respectively for two offences of driving whilst disqualified. Execution of these sentences was suspended upon the applicant entering into a bond pursuant to s 12 Crimes (Sentencing Procedure) Act 1999.

17 A report by Mr Anthony Diment, psychologist, was before the sentencing judge. The judge noted from that report that the applicant is divorced and has two sons who he sees regularly. He was educated to tertiary level, obtaining a Bachelor in Business Studies and a Masters in Business Administration. He first worked as a paralegal clerk at a large firm of solicitors for about a year, then became a private investigator, and then ultimately established his own company.

18 The applicant’s father died in 1998 after a long illness. The applicant assumed a role of closely assisting his father with his treatment and on the advice of a doctor he withheld details of the severity of his father’s condition from the rest of the family. He became quite depressed. He was working long hours and he started using drugs including cocaine and amphetamine. It was said that he became irritable and reckless and in this context committed many driving offences. His divorce was a culmination of problems associated with his drug addiction.

19 Mr Diment described the applicant as personable and practical but impulsive and suspicious of others as well. He also described him as strongly conservative with traditional beliefs and attitudes. Mr Diment thought the applicant to be intense and driven, possessing an above average intelligence. The applicant told Mr Diment that he deeply regretted the manner in which he offended. He had reflected upon his life and current situation and his main aim was to live a “normal life away from the madness of what he was doing”. The applicant told Mr Diment that when he committed the offences he was under the influence of the drug known as “Ice”. Mr Diment’s opinion was that the applicant would benefit from drug and alcohol counselling tailored to relapse prevention. He regarded the applicant as being at low risk of re-offending.

20 Unlike the applicant himself, his older brother, Mr George Tsakanos, gave evidence. He said that he was aware that the applicant had become involved with drugs although he made an attempt to hide this. He was also aware of the applicant’s numerous convictions for traffic matters. On a number of occasions the applicant had given his brother’s name when stopped by police. The brother’s evidence was to the effect that the applicant had since changed. He described him as looking better in his appearance and having a better outlook. The judge stated that he was impressed with this evidence and accepted it.

21 The applicant suffered a heart attack in May 2008 whilst in custody. He experienced severe chest pains at Parramatta Gaol and was taken to Westmead Hospital. It was found that a right coronary artery was almost blocked. A stent was inserted and he remained in hospital for four days.

22 The author of a Pre Sentence Report recorded that the applicant said that he engaged in reckless behaviour in the past because he did not care if he lived or died. The probation and parole officer had been told by the applicant’s brother that the applicant had experienced difficulty in coping with the responsibilities resulting from his father’s illness and subsequent death, as well as the effects of that upon his marriage. It was recorded that the applicant had commenced participating in a SMART drug and alcohol program at the Parramatta Correctional Centre but had not been able to complete it because of his transfer to another correctional centre. The judge quoted from the Pre Sentence Report as follows:

“Mr Tsakanos presents as an intelligent and articulate individual who is obviously proud of his previous achievements and acknowledges the detrimental effects of his lifestyle choices on these factors and his wider network. The offender admits to a significant drug use history and it is of concern that Mr Tsakanos will return to the employment circumstances under which he found it necessary to resort to his substance abuse. He freely discussed the details of his offences and openly admitted to his responsibility for their commission. He is now eager to see the finalisation of this matter.”

23 The judge discounted the sentence he imposed by 25% on account of the applicant’s plea of guilty which the judge said was entered at the first available opportunity.

24 The judge then remarked that he was not “particularly impressed” with the applicant’s expressions of contrition. He explained, “All I have is Mr Diment’s account of what the offender told him. I have not heard from the offender himself”. The judge regarded the applicant’s prospects of rehabilitation as “no better than moderate only”. He referred to this being dependent upon the ability of the applicant to remain drug free once released back into the community. He was also of the view that Mr Diment had been unduly optimistic in saying that there was a low risk of re-offending.

Assessment of objective seriousness of offence

25 The judge noted that the offences committed by the offender were “of a very serious nature”. He described the fraudulent scheme as being carefully thought through. He referred to the promise made by the applicant to set Mr Rayos up financially. He stated that the fact that the matter concerned a large sum of money was an important aspect of the matter. After referring to the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act, and in particular to the requirement that adequate punishment be imposed and that there be both general and personal deterrence, the judge said:

“Aggravating factors are that the offences were carefully planned, the offender was on bail when he committed them and he does have convictions for many other offences. He does not have a conviction for any offence similar to those the subject of these proceedings. However, it could not be said that prior to the commission of these offences he was a person of good character. He clearly was not.”

26 The judge was informed by the representative of the Crown that the Commonwealth Bank had lost in the vicinity of $48,000 as a result of the scheme. The judge did not refer to it but in the statement of Mr Rayos there was a claim that the applicant had told him that he was the person who had made the withdrawals.

27 The judge gave specific attention to the role played by the applicant in the context of dealing with a submission concerning parity of sentencing. He noted that the evidence, comprising the agreed statement of facts and a statement of Mr Rayos, was silent in a number of respects as to the precise role played by the applicant. The judge felt unable to make a definitive finding as to the extent of the applicant’s involvement or as to the amount of money he expected to receive as a result. However, he did say that it was abundantly plain that the applicant was with Mr Grunert at the Campsie branch of the bank on the 30 November 2007 attempting to withdraw a very large amount of money from the fraudulent account. He also concluded from the text messages that passed between the applicant and Mr Rayos that the applicant was involved and had a keen interest in the negotiations with Mr Rayos in the latter part of November 2007. The judge went on to say:

“On the evidence before me I am left in no doubt that whatever the financial reward to himself was to be, this offender was not merely involved in some minor way in dealing with a very large amount of money in a fraudulently obtained bank account, knowing that it was the proceeds of crime, and intending to conceal that it was the proceeds of crime, but was very heavily involved in that enterprise. Further, I am left in no doubt that whatever the precise amount may have been, this offender had expectations of receiving a substantial reward.”

28 The judge said that he bore in mind in making that finding that the first offence involved the applicant concurring in the making of the application for the bank account which he knew to be false and he did that with the intent of obtaining a large amount of money, that is $200,000, for the man Grunert. He said that he also bore in mind the evidence of the applicant offering to set up Mr Rayos financially and to also get him a new job and new identity. The judge regarded it as absurd to accept that such a promise would be made by a man who himself was not playing a major role in the enterprise and who himself was not expecting a very substantial reward.

Sentencing of co-offender

29 The co-offender, Klaus Dieter Grunert, was sentenced in the Local Court for six offences, being make false statement to obtain a financial advantage, obtain money by deception and four offences of having a false instrument with intent to use it. He was sentenced to a total term of 2 years imprisonment with a non-parole period of 18 months. He was also sentenced to a concurrent term of 6 months imprisonment for an offence of goods in custody involving his possession of $1000 in cash.

30 A submission was made on the applicant’s behalf to the sentencing judge that a question of parity arose. The prosecutor opposed that submission. He noted that the co-offender had been dealt with in the Local Court where the maximum penalty that could be imposed for each offence was imprisonment for 2 years, whereas if dealt with on indictment the maximum penalties would have been imprisonment for 5 years and 10 years. The prosecutor also pointed to the fact that Grunert was not charged with any offence comparable to the second charge in the indictment presented against the applicant. The judge accepted the prosecutor’s submissions. He held that insofar as the submissions on behalf of the applicant related to the second charge they were without merit. The applicant now raises no issue as to parity.

Grounds of appeal

31 The applicant proposed three grounds of appeal:

Ground 1 - The sentencing judge erred in holding that the applicant’s criminal record was an aggravating factor.

Ground 2 – The sentence imposed in respect of the proceeds of crime offence was manifestly excessive.

Ground 3 – The sentencing judge erred in declining to find “special circumstances”.

Ground 1 – aggravating factor of criminal record

32 In relation to ground 1 the applicant drew attention to the judge’s reference to “aggravating factors”, the relevant portion being:

Aggravating factors are that the offences were carefully planned, the offender was on bail when he committed them and he does have convictions for many other offences. He does not have a conviction for any offence similar to those the subject of these proceedings

33 It was submitted that the judge erred in treating the prior convictions as one of the aggravating factors. Mr Odgers SC contended that the prior convictions were not such as would attract the principles in Veen v The Queen (No 2) (1988) 164 CLR 465 and did not indicate that a more severe sentence was warranted under the principles discussed in R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566.

34 It would seem that the judge was influenced in saying what he did by the submissions made to him by the experienced solicitor who appeared for the applicant in the court below. There was this exchange:

[SOLICITOR]: Your Honour, in relation to the s 21A criteria, does your Honour wish me to deal with that situation?

HIS HONOUR: Yes, yes.

[SOLICITOR]: Just in relation to the aggravating factors, Mr Tsakanos has previous convictions but they’re not convictions of this nature or like a fraud situation.

35 What the judge said was essentially a recitation of that submission without any explanation for how it was that he regarded the previous convictions as being an aggravating factor.

36 In relation to the permissible consideration of previous convictions as an “aggravating factor” per s 21A(2)(d), Johnson J observed in Regina v Walker [2005] NSWCCA 109:

[27] Section 21A(4) of that Act provides that the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. It has been held that the effect of s 21A(2)(d) and (4) is to require the court to apply the common law principles in Veen v The Queen (No. 2) (1988) 164 CLR 465 with respect to the use of a prior criminal record on sentence: R v Johnson [2004] NSWCCA 76 at paragraphs 32-37; R v Wickham [2004] NSWCCA 193 at paragraph 24. In R v Shankley [2003] NSWCCA 253, Howie J expressed the principle in Veen (No. 2) as follows (paragraph 31):

“The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that ‘retribution, deterrence and protection of society may indicate a more severe sentence is warranted’.”

37 In R v McNaughton (supra) it was held that the principle of proportionality requires the upper boundary of a proportionate sentence be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions. Prior convictions are pertinent to where, within the boundary set by the objective circumstances, a sentence should lie. Relevant to this are considerations of whether the prior convictions demonstrate an attitude of disobedience of the law and whether they warrant increased weight to be given to retribution, personal deterrence and the protection of society. (See Spigelman CJ at [24] and [26]).

38 In the present case senior counsel for the applicant referred to the prior offences as being “almost all driving-related offences”. So much may be accepted but it does not follow that driving offences are excluded from a consideration of an offender’s previous convictions. Licastro v R [2008] NSWCCA 131 concerned a sentence imposed for an offence of knowingly taking part in the cultivation of a large commercial quantity of cannabis. A ground of appeal was that the sentencing judge erred in taking into consideration the applicant’s prior criminal convictions. It was contended that the judge’s regard to a history of traffic offences as indicative of a “disregard for the law” was erroneous. The history included six offences of driving whilst disqualified and three offences of driving with a cancelled licence. Simpson J (with whom McClellan CJ at CL and Hidden J agreed) said (at [26]:

These are no mere “traffic” offences; they amply demonstrate a disregard for the law.

39 In the present case the applicant’s record includes the four convictions for driving whilst disqualified and one for driving whilst suspended. Such offences, generally speaking, involve a deliberate decision by a person to drive knowing that they are subject to a legal prohibition against driving. It involves a conscious and deliberate decision to flout the law. In a case such as the present it would be open to view the record as indicating an attitude of disobedience of the law and to view the instant offences as manifesting a continuation of that attitude: see Veen v The Queen (No. 2) (supra) at 477.

40 At the hearing of the application it was submitted that a finding of a continuing attitude of disobedience on its own is not sufficient to engage the need for greater emphasis being placed upon personal deterrence, retribution and the protection of society. Attention was invited to the final sentence in the following passage in the judgment of Mason CJ, Brennan, Dawson and Toohey JJ in Veen (No. 2) at 477:

“The antecedent criminal history is relevant, however, to show whether the instance offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”

41 It was argued that in the present case that the previous offences did not “illuminate” the applicant’s “moral culpability”, nor showed a “dangerous propensity”, let alone a “need to impose condign punishment”.

42 It was also submitted that there was no call for increased emphasis upon personal deterrence thereby increasing the sentence to be imposed because the applicant had not previously been sentenced to full-time imprisonment. Senior counsel for the applicant argued that if an offender has previously been imprisoned but persisted in offending then it is clear that longer sentences are necessary for deterrence. However, when the person has not previously been imprisoned, one cannot know whether imprisonment will deter the person and so in that situation there is no reason to impose a longer sentence on account of personal deterrence.

43 No direct authority was cited in support of that proposition. In any event, it is contrary to the manner in which this Court has considered an offender’s prior convictions where they do not involve prior sentences of full-time imprisonment. In Fahs v R [2007] NSWCCA 26 a record involving a bond and a suspended sentence of imprisonment was regarded as relevant to the need for personal deterrence. In Berg v R [2004] NSWCCA 300, a case concerning aggravated dangerous driving causing death, a prior conviction for driving under the influence of liquor which brought the imposition of a community based order in Victoria was regarded as relevant in the Veen v The Queen (No 2) sense, meaning that personal deterrence had greater significance. In R v Way [2004] NSWCCA 131; 60 NSWLR 168, prior convictions resulting in bonds, probation, fines, community service orders and a suspended sentence were regarded as “falling within” s 21A(2)(d).

44 There may be a question as to whether the applicant’s deliberate flouting of the law on a number of previous occasions illuminated his moral culpability. The nature of some of the applicant’s past offending may well have called for increased emphasis upon personal deterrence. In the end, however, it is unnecessary to determine that issue because I am not persuaded that the judge did take the previous convictions into account as an aggravating factor, despite his reference to them as such. The other aggravating factors that he mentioned - careful planning and being on conditional liberty - were matters of substance which far outweighed any significance that the prior convictions may have had, particularly given the judge’s immediate qualification that there were none for any offences similar to those for which the applicant stood to be sentenced. The careful planning and conditional liberty factors were aggravating for obvious reasons and needed little or no explanation. The fact that the judge did not provide any explanation for the previous convictions being an aggravating factor, a matter that did require explanation if they were to be so regarded, leaves me with the clear impression that the judge was simply repeating the submission that had been made on behalf of the applicant without giving any real thought to whether the previous convictions did in fact operate in aggravation in the sense discussed in the authorities.

45 This is similar to the conclusion reached by Whealy J (with whom Studdert and Howie JJ agreed) in Murphy v Regina [2005] NSWCCA 412; 158 A Crim R 375, where the sentencing judge had said, “In terms of the aggravating features, the most relevant features seem to me to be the fact of the offender’s previous convictions and the fact that the offence was part of a planned or organised criminal activity”. It was contended that she had erred in the manner in which she took into account the prior criminal history. Whealy J said:

[16] I am satisfied however, that there is nothing in her Honour’s decision which indicates that a harsher penalty was imposed because of the applicant’s criminal record. Nor do I consider, when the decision is read fairly, that her Honour in fact took into account the criminal antecedents of the applicant as a factor aggravating the objective gravity of the offence.

[17] There were a complexity of issues that plainly arose for determination in this sentencing procedure. Although her Honour mentioned the matter, I am not persuaded that the applicant’s previous criminal record played any real or significant part in the sentencing process. I accept, as Mr Stratton SC argued, that her Honour mentioned the matter in the course of identifying features specifically referred to in s 21A. Beyond recording the fact, however, the matter was not discussed further, although other matters, both in aggravation and mitigation, were discussed. In those circumstances, I am not satisfied that the criminal record referred to by her Honour had any material impact in the present case on the sentence ( R v Atonio [2005] NSWCCA 200 at para 17).

46 I have reached the same conclusion for the same reasons. I would reject ground 1.

47 Before departing the matter, however, it is worth recalling the further observations of Johnson J in Regina v Walker (supra) at [32] that a passing reference to s 21A(2)(d) without making clear the precise manner in which the previous convictions are being taken into account is unsatisfactory and unenlightening.

Ground 2 – manifest excess

48 In support of the contention underlying this ground of appeal it was submitted that the starting point sentence of 8 years was “outside the appropriate range for this offender and this offence, absent the reduction for the plea of guilty”. It was submitted that the offence in s 193B(1) is an offence of a protean character, similar to that of manslaughter, where the circumstances that can give rise to the offence are so varied and the range of culpability so wide.

49 By reference to the second reading speech upon the introduction of s 193B into the Crimes Act it was submitted that the offence was targeted at those who engage in the criminal activity of laundering proceeds of crime as a business, for example those who knowingly deal in the proceeds of large scale drug enterprises or prostitution rings, attempting to hide those proceeds from law enforcement authorities. The proceeds of such criminal enterprises would be the product of what may be a large number of individual crimes. Contrast was drawn between that and the present offence which, it was submitted, should be characterised as an attempt to hide the proceeds of a single offence of fraud.

50 Examples were then given as to what might be regarded as relatively minor examples of an offence against s 193B(1). The examples were the hiding of $1000 fraudulently misappropriated from an employer, asking a friend to conceal a small amount of money which was the proceeds of a break and enter, and a husband asking his wife to hide a stolen car in the garage of their house. It was submitted that these offences would fall at the lower range of objective seriousness for an offence against s 193B(1) because they involved attempts to hide the proceeds of a single offence. I do not see how reference to these examples assists the applicant’s case. His offence was obviously a significantly more serious example in terms of both the seriousness of the crime the proceeds of which the applicant was dealing with and the steps taken by the applicant in doing so. The fact that the proceeds dealt with might be from a single offence is only one of a variety of circumstances that must be considered in the assessment of objective seriousness.

51 Mr Odgers submitted that if the applicant had been charged with the fraud he would have been exposed to a maximum penalty of imprisonment for 5 years. It was submitted that the 5 year maximum penalty for the “foundational” fraud offence was relevant because it showed the view of Parliament as to the relative seriousness of the worst case of such fraud. Thus it was submitted that it was “intuitively unjust” for a person who committed a “foundational” offence and attempted to hide its proceeds receiving a much longer sentence for the “ancillary” offence than for the “foundational” offence. It was submitted that such a result is not compelled by the higher maximum penalty for the “ancillary” offence, bearing in mind the analogy to the protean offence of manslaughter, and as a consequence, such a result should be regarded as constituting a manifestly excessive sentence.

52 A fundamental problem with this submission is the assertion that the proceeds the applicant dealt with were from a “single fraud offence”. They might have been the proceeds of a single fraudulent scheme, with a single victim, but the assumption that there was a single offence, and that it had prescribed for it a maximum penalty of five years, has no evidentiary basis. The evidence before the sentencing judge was not entirely clear but it would seem that the fraudulent scheme that produced the $1.52 million in proceeds involved the dishonest obtaining of funds advanced as a loan. It is virtually certain that to obtain loan funds in that order, multiple false oral and documentary representations would be required. They could involve offences against s 178BA and s 178BB, for which the maximum penalty is imprisonment for 5 years, as well as offences against s 300(1) and s 300(2), for which the maximum penalty is imprisonment for 10 years. The “intuitively unjust” submission has no merit in this case.

53 Section 193B of the Crimes Act is, relevantly, in the following terms:

“(1) A person who deals with proceeds of crime:

(a) knowing that it is proceeds of crime, and

(b) intending to conceal that it is proceeds of crime, is guilty of an offence.

Maximum penalty: imprisonment for 20 years.

(2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.

Maximum penalty: imprisonment for 15 years.


(3) A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.

Maximum penalty: imprisonment for 10 years.

54 It can be seen that the various maximum penalties provided for these offences vary according to the mental state of the offender. The present applicant was exposed to the highest of the penalties provided in the section because of his actual knowledge that he was dealing with the proceeds of crime and because his intention was to conceal that what he was dealing with was the proceeds of crime.

55 Section 193B was inserted into the Crimes Act by the Confiscation of Proceeds of Crime Amendment Act 2005. That Act repealed the offence of money laundering in s 73 of the Confiscation of Proceeds of Crime Act 1989. The former offence, although with different, albeit not dissimilar, elements, also provided a maximum penalty of imprisonment for 20 years. In the second reading speech (Confiscation of Proceeds of Crime Amendment Bill, New South Wales Parliamentary Debates, Legislative Assembly (Hansard) 21 September 2005) it was said:

(T)he amendments to the New South Wales anti-money laundering regime are part of this Government’s commitment to ensuring that those who engage in criminal activity as a business can effectively be dealt with under the law and do not profit from that activity.

56 The statutory maximum penalty of imprisonment for twenty years must be regarded as reflecting the legislative view of the seriousness of the conduct falling within s 193B: R v Oliver (1982) 7 A Crim R 174 at 177. The gradation of seriousness of the offences in s 193B bears upon the mental state of the offender and not upon the nature of the “foundational” crimes. That is not to say that the nature of those crimes is irrelevant. It is, however, just one of the various circumstances of the case that calls for consideration. Although the effect of what was said in the second reading speech was that the offence was targeted at those who engage in laundering proceeds of crime as a business, the section itself is not so restricted in its application. But even accepting that was the primary focus of the legislature, it does not follow that any activity that comes within the section that cannot be so described must fall towards the low end of the range of seriousness. In determining the objective seriousness of an offence, all of the circumstances of the individual offence, that is the physical acts, the consequences of the conduct and those factors that might impinge on the mens rea of the offender (see R v Way (supra) at [85]), must be considered and an assessment then made as to where the offence falls within the range of activity for which the section is intended to proscribe. Then, after consideration of all relevant factors, the maximum penalty provided for the offence remains as a yardstick: Markarian v The Queen (2005) 228 CLR 357 at [31].

57 In the present case it must be accepted that the crime or crimes that were the source of the proceeds the applicant was dealing with involved a single scheme. It was a scheme, however, of substantial gravity, involving as it did the fraudulent obtaining of $1.5M. The following findings by the sentencing judge have not been challenged:

- the fraudulent scheme was carefully thought through;

- the applicant was involved and had a keen interest in the negotiations with the bank employee through which it was sought to transfer the funds overseas;

- the applicant was “heavily involved” in the enterprise and that he played a “major role”; and,

- the applicant had expectations of receiving a substantial reward.

58 Another matter that bears upon an assessment of the objective seriousness of the offence, in my view, is that it involved the applicant seeking to corrupt a bank official with promises of a substantial reward in exchange for doing his bidding.

59 Other factors bearing upon the assessment of sentence included the fact that the applicant was on bail at the time of the offence, a significant aggravating factor, and, to contrary effect, he received the benefit of a 25% reduction of the sentence for his plea of guilty. The judge refrained from extending the benefit of any other mitigating factors and it is not contended that he erred in that respect.

60 Judicial Commission sentencing statistics indicate that only four offenders had been sentenced for the offence against s 73 in the period July 2001 to June 2008. Three received a full-time custodial sentence, two for three years and one for four years. The statistics indicate that for the new offence against s 193B(1) there have been three sentences imposed in the period October 2005 to June 2008. They were each a sentence of full-time imprisonment, being for terms of two years six months, four years and seven years. These statistics are for so few cases that they are of no utility: Cf R v Bloomfield (1998) 44 NSWLR 734 at 739E.

61 The offence against s 193B(1) has not been the subject of consideration in this Court. Indeed, consideration of s 193B in any sense has only occurred in a single case. In Ali v R [2008] NSWCCA 60 the Court was concerned with an offence against s 193B(2). The offender had been sentenced to imprisonment for six years with a non-parole period of three years six months. He received concurrent shorter terms of imprisonment for three offences related to his possession of false identification documents and one offence of attempting to obtain credit by fraud. In sentencing for the s 193B(2) offence the judge took into account the offender’s guilt in respect of a further 10 offences which related to the possession of false identification documents. Ali was “heavily involved” in a scheme to obtain loans from financial institutions using false identity documents and he employed a number of “runners” to assist him. The proceeds of crime with which he dealt amounted to $490,000. In rejecting an assertion that the six year sentence was manifestly excessive, Latham J said:

[20] The applicant maintains that the sentence imposed on this charge was manifestly excessive. The fact that the Judge came to the sentencing exercise without the benefit of an established range of sentences for this offence does not assist the applicant's argument. When one has regard to the maximum penalty as an expression of the legislature's view of the gravity of such an offence and determines where this particular offence fell in that spectrum, a sentence of 6 years' imprisonment strikes me as entirely appropriate to the criminality inherent in this offence, even disregarding the offences on the Form One which were, themselves, serious. As the Judge correctly found, the applicant was, in a practical sense, in charge of a criminal operation bearing the hallmarks of significant and sophisticated planning and execution. Notwithstanding his plea, he demonstrated no contrition and continues to maintain he was unaware of the ramifications of his activities in the face of overwhelming evidence to the contrary.

62 The applicant sought to draw a distinction between Ali and the present case on the basis that, in essence, it had the hallmarks of graver criminality. However, the fact that it concerned an offence against a different subsection with a lesser maximum penalty reduces its utility. Moreover, as senior counsel candidly conceded, “one case provides little or no assistance in determining whether a sentence is manifestly excessive.”

63 The sentence imposed in the present case was severe but I am not persuaded that it was beyond the range available in the proper exercise of the judge’s discretion. I would reject ground 2.

Ground 3 – Error in not finding “special circumstances”

64 The judge was invited to make a finding of special circumstances but on a limited basis. The submission made to him was this:

It’s a matter where I’d ask your Honour to find special circumstances for these reasons. This is his first gaol sentence, and hopefully your Honour would find that he has reasonable prospects of rehabilitation, and that’s about it.

65 The judge accepted this but then said:

Nevertheless, having regard to the offender’s age, his persistent offending in relation to other matters and the nature of these present offences, this not a case in which I should find that special circumstances exist.

66 When earlier addressing the parity contention the applicant’s solicitor foreshadowed that he would be later submitting that a finding of special circumstances should be made and he referred to the applicant having “a clear drug history with this cocaine and ice in more recent times”. He did not explain what he meant by that.

67 In support of this ground it was submitted that the judge erred by not taking into account material before him that indicated that the applicant would benefit from counselling and supervision in relation to substance abuse relapse prevention. It was also submitted that he erred by having regard to what he referred to as the applicant’s persistent offending in relation to other matters as a factor militating against a finding of special circumstances. It was contended that, “If anything, his drug and driving history pointed to a conclusion that he would be assisted by a longer than usual additional term for foster rehabilitation”. Another matter that the judge took into account in finding that no special circumstances existed was “the nature of these present offences”. It was submitted that it was “difficult to see” how that factor pointed away from a finding of special circumstances.

68 In consideration of these submissions it is important to observe what was said by the Chief Justice in Regina v Fidow [2004] NSWCCA 172:

“[18] In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the ‘decision’ to be that the statutory proportion of one-third be “less”. ‘Double counting’ for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided. (See Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur.

…

[22] This research makes it necessary for this Court to state the obvious. Simply because there is present in a case a circumstance which is capable of constituting a “special circumstance” does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation.”

69 The judge referred in his sentencing remarks to the opinion of the psychologist that the applicant would benefit from drug and alcohol counselling tailored to relapse prevention. A little later he referred to the applicant having part completed the SMART drug and alcohol program at the Parramatta Correctional Centre. He then referred to the Pre Sentence Report, including mention of concern about the possibility of relapse into substance abuse. These were all matters relevant to the applicant’s rehabilitation prospects which the judge assessed as “no better than moderate only”. I would not conclude that he did not take these matters into account in the assessment of the overall sentence or that he overlooked these matters when he declined to find special circumstances.

70 The applicant’s age, his persistent offending in relation to other matters and the nature of the present offences that the judge specifically mentioned were all relevant matters. Age and maturity is relevant to the degree to which an offender might benefit from counselling and supervision. Persistent past offending is similarly relevant. As to the “nature of these present offences”, one of the matters which acted as an “ultimate constraint” upon the judge in fixing the length of the non-parole period was the requirement that it appropriately reflect the criminality involved in the offence: see R v Simpson (2001) 53 NSWCCA 534; (2001) 53 NSWLR 740 per Spigelman CJ at [63].

71 In my view it was open to the judge to decline to make a finding of special circumstances and I would reject ground 3.

Orders

72 I propose the following orders:

1. Leave to appeal is granted;
2. The appeal is dismissed.

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