R v Khan - [2018] NZHC 3065

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-10847

[2018] NZHC 3065

THE QUEEN

v

MOHAMMED NASEEM KHAN

Hearing: 23 November 2018

Appearances:

B R Northwood for the Crown D S Niven for the Defendant

Sentence:

23 November 2018

SENTENCING REMARKS OF PETERS J

Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: D S Niven, Auckland

R v KHAN [2018] NZHC 3065 [23 November 2018]

[1] Mr Khan, you are for sentence having pleaded guilty to seventeen charges of money laundering.1 The maximum penalty for the offending is seven years’ imprisonment.

[2] The offending took place between 22 December 2016 and 18 April 2017. The sum involved was approximately $330,000 and all of it derived from the supply of cocaine by two foreign nationals, Mr Ryszard Wilk and his son, Mr Ralph Wilk, between 6 September 2016 to 16 April 2017. I am familiar with the events giving rise to your offending. I recently sentenced Ralph Wilk and another defendant involved in the money laundering aspect of this enterprise, Mr Bryan Williams, and I also presided at the trial – or as much of a trial as there was – of Ms Tang, to whom I shall refer shortly.

[3] Mr Wilk and Mr Williams pleaded guilty to representative charges in respect of their offending whereas you have entered a plea to 17 individual charges. That makes no difference to the sentencing process today.

[4] You pleaded guilty to the offending on 11 October 2018 on the basis of an agreed summary of facts, and the day before you were to go to trial with Ms Tang.

[5] The gist of the agreed summary is that you became involved in this offending at the behest of a Mr Andy He, whom you met in 2016. You rented an apartment from Mr He, as I understand it you subsequently became flatmates and you then became what is described as the “marketing manager” for two of Mr He’s companies.

[6] The Crown acknowledges that at least up until April 2017 you acted under the direction of Mr He and you say even beyond that. That is not agreed by the Crown but the important point is that Mr He got you involved and, for the most part if not all of it, you were acting on his instructions.

[7] In his submissions to me for today Mr Niven, your counsel, has emphasised that you were not charged on the basis that you knew the funds you were arranging to transfer were the proceeds of crime but rather were reckless as to whether that was the

1 Crimes Act 1961, s 243

case. Mr Niven has also submitted that there is a clear distinction to be drawn between those who act recklessly and those who offend in the full knowledge of where the funds have come from, in this case the sale of cocaine. Mr Niven submits that needs to be reflected in sentencing…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Khan

Details

AGLC: R v Khan [2018] NZHC 3065
Case: [2018] NZHC 3065
Decision Date: 23 November 2018

CaseChat Overview and Summary

In this case, the defendant, Mohammed Naseem Khan, was sentenced for seventeen counts of money laundering. The court heard that Khan had been involved in laundering approximately $330,000, which was the proceeds of cocaine supply by Ryszard Wilk and his son, Ralph Wilk. Khan had pleaded guilty to the charges based on an agreed summary of facts, which stated that he had acted under the direction of Andy He, who was not present in court. The court had to determine the appropriate sentence, taking into account the severity of the offence, Khan's personal circumstances, and the fact that he had pleaded guilty.

The legal issues that the court had to decide included the starting point for sentencing, the personal factors that should be taken into account, and whether the sentence should be reduced for Khan's guilty plea. The court considered the amount of money involved, the duration and frequency of the offending, and the sophistication of the principal offending. The court also took into account Khan's age, his lack of prior convictions, and the fact that he had pleaded guilty. The court decided to impose a sentence of home detention, rather than imprisonment, as it was considered the least restrictive outcome appropriate in the circumstances.

The court's reasoning was based on the agreed summary of facts, which stated that Khan had acted under the direction of Andy He. However, the court found it difficult to accept that Khan had not known the source of the funds, as there was evidence of coded language in the text messages between Khan and the other defendants. The court also noted that Khan had a suitable home detention address and that the Crown had no objection to a sentence of home detention. The court imposed a sentence of 11 months' home detention, to be served concurrently on all charges, except for five charges which were discharged. The court also ordered Khan to serve his sentence at the address in respect of which the report had been conducted and on all standard conditions.

In conclusion, the court sentenced Khan to 11 months' home detention for his involvement in money laundering. The court took into account the severity of the offence, Khan's personal circumstances, and the fact that he had pleaded guilty. The court decided that a sentence of home detention was the least restrictive outcome appropriate in the circumstances, and that it would allow Khan to continue working in his business. The court also considered the evidence of coded language in the text messages between Khan and the other defendants, which suggested that Khan had at least suspected the source of the funds. The court's decision was based on a careful consideration of the legal issues and the evidence presented in the case.

Orders