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Court of Criminal Appeal 11 August 2008

R v Viana

[2008] NSWCCA 188

Fraud & dishonesty
CRIMINAL LAW SENTENCE CROWN APPEAL FEDERAL OFFENCE MONEY LAUNDERING SENTENCE NOT MANIFESTLY INADEQUATE

Citation: R v Viana [2008] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 11 August 2008
Judge(s): Spigelman CJ, Simpson J, Price J

Background

The respondent pleaded guilty in the District Court at Penrith to a federal money laundering offence under s 400.3(2) of the Criminal Code (Cth). The offence involved dealing with money that was the proceeds of crime, being reckless as to that fact, where the amount exceeded $1,000,000. The maximum penalty for the offence was 12 years imprisonment.

The respondent had travelled to Australia to assist in collecting approximately $5,050,000 in cash, which represented payment owed to a Colombian national for the supply of 300 kilograms of cocaine imported into Australia. The respondent's role involved receiving the cash, storing it at a rented Roseville apartment, and coordinating its repatriation to Colombia. He remained involved in directing the handling and handover of the money even after departing Australia on 6 February 2005.

On 8 February 2008, District Court Judge English sentenced the respondent to imprisonment for 4 years and 6 months, commencing 7 December 2005, with a non-parole period of 2 years and 11 months expiring 6 November 2008. The Crown appealed on the single ground that the sentence was manifestly inadequate.

  • Whether the sentence imposed by the District Court was manifestly inadequate for a federal money laundering offence involving proceeds of over $1,000,000.
  • Whether the sentencing judge made any identifiable error in her approach to the sentencing task.
  • Whether the non-parole period adequately reflected the seriousness of the offending and the need for general deterrence.

Decision

Price J (with whom Spigelman CJ and Simpson J agreed) dismissed the Crown's appeal. The Court reaffirmed the well-established principle that considerable restraint is exercised before intervening in a sentencing judge's orders on a Crown appeal, and that intervention requires either identifiable or manifest error in the exercise of the sentencing discretion.

The Court found no identifiable error in the sentencing judge's approach. The non-parole period of 2 years and 11 months represented approximately 64 per cent of the head sentence, which fell within the usual range for federal offences of between 60 and 66 per cent.

Price J acknowledged that, in his opinion, the sentence was lenient. However, he was not persuaded that the starting point of the sentence or the non-parole period was outside an appropriate range. The sentence sat at the lower end of the appropriate range, but remained within the sentencing judge's discretion.

The Crown's own written submissions conceded that none of the comparative money laundering sentencing decisions were sufficiently similar to permit a clear conclusion about an established sentencing range. That concession further undermined the Crown's ability to demonstrate manifest inadequacy.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown's appeal, the Court of Criminal Appeal confirmed that a sentence at the lower end of the appropriate range is not, without more, manifestly inadequate.
  • A Crown appeal against sentence requires demonstration of identifiable or manifest error; the appellate court does not re-exercise the sentencing discretion afresh.
  • Where comparable sentencing decisions are insufficiently similar to establish a clear sentencing range, the Crown faces a heightened difficulty in proving manifest inadequacy.
  • For federal offences, a non-parole period representing between 60 and 66 per cent of the head sentence falls within the usual range.
  • Involvement in laundering proceeds of a large-scale drug importation, including coordinating cash storage and repatriation from overseas, attracted a sentence of 4 years and 6 months imprisonment under s 400.3(2) of the Criminal Code (Cth), with the sentencing outcome upheld on Crown appeal.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 400.3(1), 400.3(2), 400.3(3), 400.3(1)(b)(i), 400.4(2), 400.5(2)
- Crimes Act 1914 (Cth), s 16A(2)(m)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A

Cases:
- Ansari v The Queen (2007) 173 A Crim R 112
- Du Randt v The Queen [2008] NSWCCA 121
- The Queen v De Simoni (1981) 147 CLR 383
- R v Barrentos [1999] NSWCCA 1
- R v Huang, R v Siu (2007) 174 A Crim R 370
- R v Leroy (1984) 2 NSWLR 441
- R v Z [2006] NSWCCA 342
- Regina v Wall [2002] NSWCCA 42