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26
Court of Criminal Appeal 4 September 2007

R v Huang, R v Siu

[2007] NSWCCA 259

Also reported as (2007) 174 A Crim R 370
Fraud & dishonesty
CRIMINAL LAW SENTENCING CROWN APPEAL MONEY LAUNDERING

Citation: R v Huang, R v Siu [2007] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 4 September 2007
Judge(s): Simpson J, Howie J, Hislop J

Background

Two co-offenders were convicted of money laundering offences under Division 400 of the Commonwealth Criminal Code Act 1995. The first respondent conducted 335 individual banking transactions over approximately ten months in 2003, each involving a sum just below $10,000, moving a total of over $3 million to Hong Kong and China. He was paid approximately $30,000 in fees for his role as a "runner" for a principal. The second respondent engaged in similar conduct over a shorter period between May and July 2003, dealing with approximately $556,400.

Both respondents pleaded guilty and were sentenced in the District Court. The first respondent received a three-year term with release after one year and nine months, while the second received a sentence that the Crown also considered inadequate. The Crown appealed both sentences on the ground that they were manifestly inadequate.

The Court of Criminal Appeal heard the two appeals together, as they raised common questions about appropriate sentencing for this type of offending, and a third alleged co-offender was separately awaiting trial.

  • Whether the sentences imposed in the District Court were manifestly inadequate for offences of money laundering under the Criminal Code Act 1995 (Cth)
  • The appropriate weight to be given to subjective factors, including cooperation with authorities, guilty pleas, contrition, personal circumstances, and health
  • The correct approach to the non-parole period and the ratio between the minimum term and head sentence
  • The relevance of parity between co-offenders sentenced under different subsections of the Criminal Code carrying different maximum penalties

Decision

The Court of Criminal Appeal found that both District Court sentences were manifestly inadequate. In respect of the first respondent, the Court accepted that the sentencing judge had correctly identified the relevant subjective factors, including the respondent's exceptional cooperation with authorities, guilty plea, and contrition. However, the starting point and the resulting sentence failed to adequately reflect the objective seriousness of the offending, particularly the large sum involved, the extended duration, and the significant need for general deterrence.

The first respondent received discounts totalling approximately 54 per cent across the various subjective factors, which the Court of Criminal Appeal treated as very significant. Despite this, the Court resentenced him to five and a half years imprisonment with a non-parole period of three years and four months. This was a substantial increase on the District Court sentence, though the Court noted the resentenced term was still considerably reduced from what would have been appropriate had the matter been correctly approached at first instance.

For the second respondent, the Court similarly found the original sentence inadequate. The sentencing judge had applied a non-parole period that represented too low a proportion of the head sentence, having been influenced by personal circumstances, including the respondent's age, compromised health, isolation from family, and lack of English. The Court acknowledged these matters warranted some reduction in the usual non-parole ratio, but not to the degree allowed below. The second respondent was resentenced to five years with a non-parole period of two and a half years.

The Court addressed parity between the two respondents by noting that they were charged under different offences carrying different maximum penalties. The disparity in the overall discounts applied (54 per cent for the first respondent versus 35 per cent for the second) meant their effective head sentences were not dramatically different, though the second respondent's personal circumstances justified an earlier parole eligibility date.

Orders Made

In respect of Huang:
- Crown appeal allowed; sentence imposed by Charteris DCJ quashed
- Sentenced to imprisonment for 5.5 years from 18 December 2005, with a non-parole period of 3 years and 4 months expiring 17 April 2009

In respect of Siu:
- Crown appeal allowed; sentence imposed by Geraghty DCJ quashed
- Sentenced to imprisonment for 5 years from 9 March 2007, with a non-parole period of 2.5 years expiring 8 September 2009

Key Takeaways

  • Money laundering offences under Division 400 of the Criminal Code Act 1995 (Cth) attract significant weight on general deterrence, and sentencing courts must ensure that subjective discounts do not reduce a sentence to a level that fails to reflect the objective gravity of large-scale, sustained offending.
  • Exceptional cooperation with authorities can attract a discount above 25 per cent, but such discounts must be balanced against the need for sentences that retain genuine punitive and deterrent force.
  • Where co-offenders are sentenced under different subsections of the Criminal Code carrying different maximum penalties, parity concerns do not automatically require equivalent sentences; a proper assessment of each offender's criminality and circumstances should address any disparity.
  • Personal circumstances, such as health, age, family isolation, and language difficulties, may justify some adjustment to the non-parole ratio but will not always warrant departing substantially from the usual relationship between the minimum term and the head sentence.
  • In resentencing after a successful Crown appeal, the Court of Criminal Appeal noted that the resentenced terms remained below what would have been appropriate had the District Court correctly applied sentencing principles at first instance.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 400.3(1), 400.3(2), 400.4(1), Division 400 of Chapter 10
- Financial Transactions Reports Act 1988 (Cth), s 31(1)
- Crimes Act 1914 (Cth), s 20(1)(b)

Cases:
- R v Z [2006] NSWCCA 342
- R v Wall [2002] NSWCCA 42
- Ibbs v The Queen (1987) 163 CLR 447
- R v Hutton [2004] NSWCCA 60
- Ansari v R [2007] NSWCCA 204
- R v Assi [2006] NSWCCA 257
- R v MAK and MSK (2006) 167 A Crim R 159
- R v SZ [2007] NSWCCA 19