R v Amani
[2020] NZHC 3260
•9 December 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-004-3382
[2020] NZHC 3260
THE QUEEN v
RON JUNIOR AMANI
Hearing: 9 December 2020 Appearances:
E Smith for Crown
M Pecotic for Defendant
Judgment:
9 December 2020
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Auckland
R v AMANI [2020] NZHC 3260 [9 December 2020]
[1] Mr Amani, you appear for sentence today having pleaded guilty to a charge of money laundering.1 I have not yet entered a conviction because your counsel indicated at the time of your plea that you would be applying for discharge without conviction. You have now filed an application for discharge without conviction and filed two affidavits in support of that. This morning I also heard you cross-examined on aspects of your affidavits that the Crown did not accept.
[2] It is necessary for me to deal with the application for discharge without conviction before moving on to consider any sentence that should be imposed on you if the application is unsuccessful.
Application for discharge without conviction: relevant principles
[3] An application for discharge without conviction is governed by s 106 of the Act, which relevantly provides as follows:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
…
[4] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[5] When determining an application under s 106 the Court is required to consider three issues.2 It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating
1 Crimes Act 1961, s 243(2): Maximum penalty 7 years imprisonment.
2 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] to [17].
factors of the offending itself. Factors personal to the offender may also be relevant.3 Next, the Court must identify the direct and indirect consequences of a conviction being entered. Thirdly, it must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory criteria have been met.
The gravity of the offending
[6] The first issue the Court is required to determine is the overall gravity of the offending. As I have already observed, this takes into account not only the aggravating and mitigating facts of the offending but also relevant factors personal to the defendant. This requires me to set out the facts on which you fall to be sentenced. It also involves me making certain findings of facts where issues are disputed.
[7] The basis for your plea is a summary of facts dated 1 September 2020. This records that on 1 April 2019 a person called Tyson Daniels was arrested and charged with several charges, including money laundering. He was then released on bail. By that stage the police had seized two luxury motor vehicles they had found in Mr Daniels’ possession.
[8] On 10 May 2019 you went to a motor vehicle dealership in Auckland and purchased a 2019 Mercedes Benz E Class motor vehicle for the sum of $215,000. You did that on Mr Daniels’ behalf. It was never intended that you would ever own or pay for the vehicle yourself.
[9] You went to the dealership and signed a document headed “Vehicle Offer and Sale Agreement”. You also provided your Australian driver’s licence by way of identification. You gave the motor vehicle dealer an address in South Auckland as well as your cellphone number and email address.
[10] Some time later the dealership called and advised you the car was ready to pick up. By that stage it had been paid for in full by means of three direct credits to the
3 Z (CA)447/2012 v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]
NZCA 255 at [35].
motor vehicle dealer’s bank account. It is common ground that you did not provide those funds and that they were organised by Mr Daniels. Mr Daniels has now pleaded guilty to a charge of money laundering in relation to this vehicle. In doing so, he acknowledged that the funds used to purchase the vehicle were the proceeds of criminal offending. By your plea you also recognise that this was the case. You have, however, entered your guilty plea on the basis that you were reckless as to whether or not this was the case, rather than on the basis that you knew the funds were derived from criminal offending. You uplifted the vehicle and delivered it to Mr Daniels. He was then seen driving the vehicle in the greater Auckland area.
[11] The police began to look for the vehicle and on 31 May 2019 they located it back at the dealership, where it had been returned for repairs. They then restrained the vehicle under the restraint provisions of the Criminal Proceeds (Recovery) Act 2009. Not surprisingly, the police began investigating the circumstances in which you had purchased the vehicle. On 7 June 2019 a detective called you to discuss the purchase of the vehicle. In order to contact you he used the cellphone number you had provided on the written agreement to purchase the vehicle.
[12] You now say you did not receive this call and that some other person must have received it. I do not accept that this was the case. First, it was your cellphone number and you confirmed in answer to a question from me that you still had that number as at the date the detective made the call. Secondly, the detective called the same number on 19 June 2019. You acknowledge you received the call on that date. The record kept by the detective of the conversation on 7 June 2019 was to the effect that you responded to questions in an aggressive manner. You also told the detective the vehicle was yours and that you had paid for it yourself. That factual finding is one that ought to be factored into any assessment of your culpability.
[13] The police then made enquiries at the address you had given on the written agreement to purchase the vehicle. They found you did not reside at that address and were not known to the occupants. You now say you intended to give your aunt’s address, and that she lived on the street referred to in the agreement for sale and purchase. You say, however, that you gave the motor vehicle dealer the wrong number
in error. I am prepared to give you the benefit of the doubt on that issue because you gave the dealer your correct cellphone number and it would appear your email address.
[14] You say you did not know how much Mr Daniels was purchasing the vehicle for. I do not accept that evidence. I have no doubt that any person in your position would be interested in the price being paid for a luxury motor vehicle that was being purchased on behalf of another person. The purchase price of $215,000 is plainly stated on the agreement just above your signature. I have no doubt that you knew exactly how much Mr Daniels was paying for the vehicle.
[15] You say Mr Daniels did not give you any reason why he wished you to purchase the vehicle on his behalf. You simply assumed it was because he did not have a current driver’s licence. You say you believed it was a legal requirement in New Zealand to produce a valid driver’s licence in order to be able to acquire a vehicle. I do not accept this explanation and I do not believe you genuinely held it when you purchased the vehicle on Mr Daniels’ behalf. Any reasonable person would know that the purchaser of a motor vehicle is not required to have a valid or current driver’s licence. You work in the motor trade yourself. You would have been well aware that any person can purchase a vehicle whether or not they hold a current driver’s licence.
[16] I take from your plea that you knew there was a prospect that the funds being used to purchase the vehicle came from criminal activity but you nevertheless assisted Mr Daniels to go ahead with the transaction notwithstanding your knowledge of that risk. In many ways this deals completely with the suggestion that you assisted him because you believed that he did not have a valid driver’s licence. I therefore sentence you on the basis that, although you did not know for certain that the funds being used to purchase the vehicle came from criminal offending, nevertheless you appreciated the prospect that that might be the case.
[17] The real culpability of your offending lies in the fact that it enabled Mr Daniels to convert ill-gotten gains into an apparently legitimate asset. The fact that you were prepared to stand in as purchaser placed a barrier between the motor vehicle dealer and Mr Daniels. It meant that nobody who investigated the transaction would see Mr Daniels’ name in relation to it. This was important at that time because Mr Daniels
had been arrested in April 2019 and would have been well aware the police were investigating his activities closely. The fact that he was prepared to use you just one month later obviously speaks volumes about his culpability. It is also inescapable, Mr Amani, that your assistance provided Mr Daniels with a means to deflect enquiries by the authorities when they were already on his trail.
[18] I take into account the fact that you entered your guilty plea at a relatively early stage. You were apparently the last defendant to be charged in this police operation and you entered your guilty plea on 3 September 2020. That was just a week or so before your trial was due to commence. I nevertheless proceed on the basis that you entered a relatively early guilty plea. In addition, you have no previous convictions in this country. You do, however, have other previous convictions in Australia. Some of these are historic and were sustained during your youth. Some were driving offences and are of little consequence for present purposes. Nevertheless, whilst an adult you sustained several convictions for offences involving both dishonesty and violence or potential violence. The latter include convictions for common assault, stalking or intimidation and being in custody of a knife in a public place. You have provided your explanation for these convictions, but the fact remains that you have convictions in Australia, and these must be factored into the equation to the extent they are relevant.
[19] Taking all of those factors into account, I have concluded the culpability of your offending can best be described as being in the region of low to moderate.
Direct and indirect consequences of conviction
[20] The next step in the process is to assess the direct or indirect consequences of a conviction. In this context you point to three principal consequences. The first is that you will lose your job if a conviction is entered. You rely on a letter from your employer dated 8 December 2020. This contains the following paragraph:
We have seen a major improvement in Rons work ethic however we are aware of Rons criminal proceedings before you and should Ron be convicted of his current charges, we will not be able to enrol him in further courses to advance his skills and he will indefinitely be terminated from his role with us.
[21] During cross-examination today you confirmed your understanding of the position in relation to your employment, namely that it will be terminated if you receive a conviction.
[22] The termination of any person’s employment is obviously a matter of concern to the Court. One of the principal ways in which citizens maintain pro-social lifestyles is by gaining and retaining meaningful employment. No Court wishes to see an offender lose his or her employment by virtue of offending, particularly when it is at the lower end of the criminal spectrum.
[23] In the present case, however, three factors persuade me there is real doubt regarding the issue of job loss if you are convicted. First, it is difficult to see why any employer would wish to dispense with your services based on the circumstances leading to your current conviction. You are employed as a car detailer. Your role is to strip back imported vehicles so they can be inspected by staff members of Vehicle Testing New Zealand. The purpose of these inspections is to ensure the vehicles comply with New Zealand road and safety standards. The letter from your employer makes it clear that you are a valued employee with many skills. It is difficult to see why your employer would wish to dispense with your services merely because of the present conviction.
[24] Secondly, this is not the first letter the Court has received from your employer. The pre-sentence report annexes a copy of another letter from your employer that the report writer says was received on 22 September 2020. This again attests to your value as an employee but contains no reference to any prospect that you might lose your job if you receive a conviction on the current charge. If that was truly a prospect, I would have expected your employer to place that at the forefront of the first letter tendered to the Court.
[25] Thirdly, I consider the wording used in the most recent letter to be instructive. I do not see why your employer would have bothered to include reference to the fact that it will be unable to enrol you in further courses to advance your skills if a conviction means that your job would be terminated.
[26] When you gave evidence this morning, and in answer to a question from me, you said your employer had provided the second letter at your request. I take this to have occurred because the Crown’s submissions referred to the fact that there was scanty material from your employer confirming you were at risk of losing your job if a conviction was entered. You obviously approached your employer and asked it to provide a further letter to deal with that issue. As I have said, I do not consider the prospect of you losing your job is a real risk in the present circumstances. I therefore put that potential consequence to one side.
[27] The second potential consequence your counsel relies on is the fact that a conviction in New Zealand for money laundering may prevent you from travelling overseas, and in particular to Australia where you have many contacts and relatives. As the Crown points out, however, this submission overlooks the fact that you already have several convictions in Australia. I am not sure that one further conviction in New Zealand is likely to alter the approach of the Australian authorities to you re-entering Australia in the future. There is in any event no evidence to support the existence of that risk.
[28] Finally, your counsel points out that the entry of a conviction will leave you with a stigma and this has been held to be an important consequence in other cases.4 I accept that this is so, and that the entry of a conviction for money laundering may well carry with it a stigma. It does not, however, overshadow the fact that you already have convictions in Australia and I do not consider the stigma it will produce is any different from that which any other person would suffer as a result of the entry of a conviction. It is, in other words, a natural and ordinary consequence in this case of the entry of a conviction.
[29] For these reasons I assess the likely consequences of the entry of a conviction in your case as being low. It follows that the direct and indirect consequences of a conviction are not out of all proportion to the overall gravity of the offending. I therefore decline the application for discharge under s 106 and enter a conviction of the money laundering charge.
4 R v Hende CA196/95, 18 September 1995.
Sentence: starting point
[30] It is now necessary for me to consider the sentence to be imposed on you. The Crown has provided two authorities that it says support a starting point of around two to two and a half years imprisonment.5 Your counsel submits a community-based sentence is the only realistic starting point.
[31] The aggravating factors of the offending that I have already identified persuade me that a starting point of imprisonment is appropriate but not at the level selected in the cases to which the Crown refers. I consider the aggravating features of your offending justify a starting point of around one year six months imprisonment.
Mitigating factors
[32] The only mitigating factor I would take into account in the circumstances of your case is that of your guilty plea. I accept that you should receive a full 25 per cent discount for this. I apply a discount of four and a half months. This brings the sentence down to one year six weeks imprisonment.
[33] In any case where the end sentence is under two years imprisonment the Court has the ability to impose the sentence of home detention, the lesser electronically monitored sentence of community detention and also community work. The recommendation contained in the pre-sentence report is that of home detention. The report writer was obviously not impressed by your presentation during the interview that took place before the report was prepared. The report writer has the following to say:
Mr Amani presented as self-entitled during the interview. He gave very minimal information about himself. He denied being a Comanchero member and I may be judging ‘a book by its cover’ but he looked like a Comanchero (designer clothing, big car). His partner is not working and he said he was a mechanic but when I contacted his employer they described a car detailer – this type of work will not pay for the gear he had.
[34] I do not place great weight on those comments because they may simply reflect the fact that the report writer did not strike up a good rapport with you. Nevertheless,
5 R v Khan [2018] NZHC 3065 at [18]; R v Henry [2015] NZHC 1306 at [19].
I do not detect in that passage any sense of understanding by you or insight into your current offending. I accept that a sentence of home detention would be too restrictive given the overall gravity of your offending. I do not, however, accept a sentence of community work would be appropriate. The aggravating factors I have identified mean that a sterner sentence is required because issues of deterrence, denunciation and the need to hold you accountable for your offending are to the forefront.
[35] I am anxious to ensure you retain your employment. I am therefore satisfied that the appropriate sentence in your case is one of community detention. This will enable you to continue working during the daytime but nevertheless be subject to electronically monitored detention during evening hours. In my view this strikes an appropriate balance having regard to both the need to impose a deterrent sentence and the need to provide for your ongoing rehabilitation.
Sentence
[36] On the charge of money laundering you are sentenced to six months community detention. The sentence will be served at the address referred to in the PAC report dated 23 September 2020. You will be required to be present at the address and be subject to an electronically monitored curfew between the hours of 7 pm and 7 am each day of the week. The first curfew period will commence on Thursday 10 December 2020 at 7 pm.
[37] I also impose the special conditions referred to in the report under the heading “Home Detention”. These are:
(a)You are not to communicate in any way or associate with your co- offenders or the Comanchero Motorcycle Club without the prior written approval of a probation officer.
(b)You are to comply with all aspects of the electronically monitored component of your sentence.
(c)You are to attend and complete an appropriate programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
[38]Stand down.
Lang J