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Court of Criminal Appeal 19 November 2001

Regina v Johnson AU

[2001] NSWCCA 468

Fraud & dishonesty

Citation: Regina v Johnson AU [2001] NSWCCA 468
Court: New South Wales Court of Criminal Appeal
Date: 19 November 2001
Judge(s): Spigelman CJ, Sully J, Greg James J

Background

The appellant pleaded guilty in the Sydney District Court to a single charge of breaching section 31(1) of the Financial Transaction Reports Act 1988 (Cth), which carries a maximum penalty of five years' imprisonment. The offence involved eight overseas fund transfers totalling amounts between $7,000 and $8,500 each, remitted to two accounts in China over a six-week period. The sentencing judge found that the dominant purpose of the transfers was to avoid the Act's mandatory reporting requirements.

At sentencing, the appellant claimed he had been influenced by a fellow prisoner named Chiu Lin to carry out the transfers on that person's behalf. The District Court rejected this account, finding it doubtful whether Chiu Lin existed at all and making findings distinctly adverse to the appellant's credit. The appellant was sentenced to 14 months' imprisonment with release after nine months.

On appeal, new information emerged confirming that a prisoner named Chiu Lin did in fact exist and had been held in the same wing of the Remand Centre as the appellant at the relevant time. This materially undermined the factual foundation of the sentencing judge's adverse findings.

  • Whether the sentence should be disturbed because the sentencing judge's adverse credibility findings were based on factually incorrect information
  • Whether the sentencing judge failed to consider non-custodial sentencing alternatives
  • Whether the judge erred in the sequencing of deductions under section 16G of the Commonwealth Crimes Act (applying the one-third remissions adjustment before other deductions)
  • Whether insufficient discount was given for the early guilty plea, the strength of the Crown's case, and the appellant's cooperation with authorities

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal primarily on the basis that the sentencing judge's key factual findings were now established to be mistaken. Sully J, with whom Spigelman CJ and Greg James J agreed, held that the confirmation of Chiu Lin's existence and his co-location with the appellant in custody fundamentally altered the objective picture of the offending. This did not reflect any error by the sentencing judge, who had appropriately decided the matter on the material before him at the time.

On the other grounds, Sully J rejected the argument that the sentencing judge failed to consider non-custodial alternatives, finding a fair reading of the remarks on sentence disclosed adequate consideration. The proposed sequencing error in applying section 16G was also rejected as unsound in law and unsupported by authority. The grounds relating to the guilty plea discount and cooperation were not, in isolation, sufficient to justify appellate intervention.

Spigelman CJ added brief remarks noting that the Thomson and Houlton approach to quantifying a guilty plea discount, while developed in the State context, had been applied as a guide for Commonwealth offences. His Honour reserved the question of whether the High Court's decision in Wong & Leung v The Queen affected that line of authority, finding it unnecessary to resolve that issue in the present case.

Taking all the demonstrated changes in objective criminality into account, the Court reduced the sentence by two months, both in the head sentence and in the custodial period.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Original sentence quashed
  • Substituted sentence of 12 months' imprisonment, with the appellant to be released after 7 months upon entering into a recognisance in the sum of $500 to be of good behaviour for 5 months
  • Non-parole period to expire on 28 February 2002

Key Takeaways

  • New factual information emerging after sentence that demonstrates a sentencing judge's findings were mistaken can, of itself, justify appellate intervention and resentencing, even where the original judge made no error on the material available at the time.
  • A sentencing judge dealing with Commonwealth offences under the Financial Transaction Reports Act 1988 is not required to produce a procedural checklist expressly marking off each possible sentencing alternative in order to demonstrate adequate consideration of non-custodial options.
  • Under section 16G of the Commonwealth Crimes Act, there is no legal requirement to apply all other sentencing deductions before making the one-third adjustment for the absence of remissions; the Court rejected that sequencing argument as unsound.
  • Offences involving deliberate circumvention of financial transaction reporting requirements attract a significant general deterrence component, as the sentencing judge's remarks, endorsed by the Court of Criminal Appeal, made clear.
  • The Court of Criminal Appeal left open, without deciding, whether the High Court's decision in Wong & Leung v The Queen [2001] HCA 64 affects the application of the Thomson and Houlton guilty plea discount framework to Commonwealth offences in New South Wales.

Legislation and Cases Referenced

Legislation
- Financial Transaction Reports Act 1988 (Cth), s 31(1)
- Commonwealth Crimes Act, s 16G

Cases
- Thomson and Houlton (1999-2000) 49 NSWLR 382
- R v Carter, unreported, NSWCCA, 27 June 2001
- Wong & Leung v The Queen [2001] HCA 64