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33
Court of Criminal Appeal 14 August 2007

A. Ansari v R, H. Ansari v R

[2007] NSWCCA 204

Also reported as (2007) 70 NSWLR 89 (2007) 173 A Crim R 112
Fraud & dishonesty
CRIMINAL LAW OFFENCES WHETHER SUCH A CONSPIRACY BAD AT LAW CRIMINAL LIABILITY SENTENCE CROWN APPEAL

Citation: A. Ansari v R, H. Ansari v R [2007] NSWCCA 204
Court: New South Wales Court of Criminal Appeal
Date: 14 August 2007
Judges: Simpson J, Howie J, Hislop J

Background

The two appellants were brothers who operated a money exchange business in Sydney. In 2003 and 2004, an Israeli national delivered batches of cash totalling over $2 million to the appellants' business premises. The appellants arranged for that money to be deposited into various bank accounts in amounts deliberately kept below $10,000, so as to avoid statutory reporting obligations for significant cash transactions under the Financial Transaction Reports Act 1988 (Cth). That structuring of deposits constituted an offence under that Act.

The appellants were charged on two counts of conspiracy under s 11.5 of the Criminal Code (Cth) to deal with money worth $1 million or more where there was a risk it would become an instrument of crime. Importantly, the fault element alleged against the appellants was recklessness, not intention. After a lengthy trial, the jury convicted both appellants on both counts.

The appellants challenged their convictions on the sole ground that the offence charged did not exist at law. The Crown also appealed, contending that the sentences imposed by the District Court were manifestly inadequate.

  • Whether a charge of conspiracy under the Criminal Code (Cth) can be validly laid where the underlying offence has recklessness (rather than intention) as one of its fault elements.
  • How the conspiracy provision in s 11.5 of the Criminal Code (Cth) operates in relation to fault elements, and how it relates to the common law of conspiracy.
  • Whether the sentences imposed in the District Court for conspiracy to money launder were manifestly inadequate.
  • What principles govern sentencing for conspiracy to money launder, including the relevance of a defendant's knowledge of the source of the funds.

Decision

Conviction appeal: validity of the conspiracy charges

The Court of Criminal Appeal dismissed the appeal against conviction. The appellants argued that because recklessness is not a form of intention, a conspiracy to commit an offence that has recklessness as a fault element is conceptually impossible and therefore not known to law. The Court rejected this argument. It held that under s 11.5(2)(b) of the Criminal Code (Cth), what must be proved is that the accused and at least one other party to the agreement intended that an offence would be committed pursuant to the agreement. The relevant inquiry focuses on the intent of the conspirators to bring about the commission of the underlying offence, not on whether every fault element of that offence is itself intention-based.

The Court examined the structure of Chapter 2 of the Criminal Code (Cth), which codifies fault elements including intention, knowledge, recklessness, and negligence. It concluded that the Code's scheme does not preclude a conspiracy charge where the target offence contains recklessness as a fault element, provided the agreement itself is intentional. The relationship between the Code's conspiracy provision and the common law was considered, and the Court found the Code provision is a complete and self-contained regime for conspiracy in the federal context.

Crown sentence appeal

The Court allowed the Crown appeal and quashed the sentences imposed in the District Court, finding them manifestly inadequate. The sentencing judge had erred in a number of respects, including in the treatment of the appellants' knowledge about the provenance of the money. The Court held that knowledge of the source or criminal origins of funds is a highly material factor in sentencing for money laundering conspiracy, and that general deterrence is a weighty consideration in such offences.

Because this was a Crown appeal, the principle of double jeopardy required the Court to impose sentences somewhat less severe than what would have been appropriate at first instance. The Court determined that sentences of 7 years for each count were appropriate, even though it considered sentences of at least 9 years would have been warranted at first instance.

Orders Made

  • The appeal against conviction is dismissed.
  • The Crown appeal is allowed in respect of both appellants; sentences imposed in the District Court are quashed.
  • Count 1: imprisonment for 7 years, commencing 18 August 2006 and expiring 17 August 2013.
  • Count 2: imprisonment for 7 years, commencing 18 August 2008 and expiring 17 August 2015.
  • Non-parole period of 5 years and 5 months, commencing 18 August 2006 and expiring 17 January 2012.

Key Takeaways

  • Under s 11.5 of the Criminal Code (Cth), a charge of conspiracy requires proof that the accused intended an offence would be committed pursuant to the agreement; it is not defeated simply because the target offence contains recklessness rather than intention as one of its fault elements.
  • The Court of Criminal Appeal confirmed that the Criminal Code (Cth) operates as a self-contained scheme for federal conspiracy offences, and its provisions must be construed within that codified framework rather than purely by reference to common law conspiracy principles.
  • In sentencing for conspiracy to money launder, a defendant's actual or constructive knowledge of the criminal origins of the money is a highly relevant aggravating consideration.
  • General deterrence carries significant weight in sentencing for money laundering conspiracy offences, given the policy behind the relevant provisions of Division 400 of the Criminal Code (Cth).
  • Where a Crown appeal succeeds on the ground of manifest inadequacy, the principle of double jeopardy operates to moderate the sentence the appellate court ultimately imposes below what would have been the appropriate starting point at first instance.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), Chapter 2, ss 5.2, 5.4(4), 5.6(1), 5.6(2), 6.1, 11.2, 11.5, 400.1, 400.2, 400.3, Division 400 of Part 10.2
- Financial Transaction Reports Act 1988 (Cth), s 31
- Crimes Act 1914 (Cth), s 16A
- Customs and Excise Act 1952 (UK), s 202(2)

Cases
- R v Z [2006] NSWCCA 342
- R v Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135
- United States of America v Griffiths [2004] FCA 879; Griffiths v United States of America [2005] FCAFC 34
- Peters v The Queen (1998) 192 CLR 493
- Churchill v Walton [1967] 1 All ER 497
- Johnson v Youden [1950] 1 KB 544
- Kamara v Director of Public Prosecutions [1973] 1 All ER 1242
- Giorgianni v The Queen (1985) 156 CLR 473
- Western Australia v Marchesi [2005] WASCA 133
- R v Choi (Pong Su) (Ruling No. 12) [2005] VSC 32
- Assafiri v R [2007] NSWCCA 159
- R v Olbrich (1999) 199 CLR 270
- Savvas v The Queen (1995) 183 CLR 1
- Lee v R [2007] NSWCCA 71

Note: The High Court subsequently granted special leave to appeal. The appeals were heard in December 2009 and dismissed on 26 May 2010: [2010] HCA 18.