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10
Court of Criminal Appeal 22 October 2009

Tsakonas v R

[2009] NSWCCA 258

Also reported as (2009) 197 A Crim R 581
Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW SENTENCE MONEY LAUNDERING ATTEMPT TO CORRUPT BANK OFFICIAL WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Tsakonas v R [2009] NSWCCA 258
Court: NSW Court of Criminal Appeal
Date: 22 October 2009
Judge(s): Tobias JA, Hoeben J, RA Hulme J

Background

The appellant pleaded guilty in the District Court to two offences: making a false statement with intent to obtain a financial advantage, and dealing with the proceeds of crime. The offending arose from a scheme to launder approximately $1.57 million that had been fraudulently credited to a bank account opened under a false identity at a Commonwealth Bank branch in Coffs Harbour.

The appellant's role included assisting with the fraudulent account application and, separately, attempting to recruit a Commonwealth Bank employee to wire the funds to a Thai bank account and erase the transaction trail. The bank employee declined, reported the scheme to management, and a stop was placed on the account. The appellant and his co-offender were arrested when they attended a branch to attempt a large withdrawal.

District Court Judge Armitage sentenced the appellant to 2 years (non-parole period of 18 months) for the false statement offence and 6 years (non-parole period of 4 years and 6 months) for the proceeds of crime offence, with both sentences commencing on 30 November 2007. The appellant sought leave to appeal on the grounds that the sentence was manifestly excessive and that the sentencing judge erred in declining to find special circumstances.

  • Whether the overall sentence was manifestly excessive, having regard to the objective seriousness of the offending and the applicable sentencing principles
  • Whether the sentencing judge erred in his treatment of the appellant's prior criminal record, which consisted largely of driving offences
  • Whether the sentencing judge erred in declining to make a finding of special circumstances, which would have allowed a reduction in the standard statutory ratio of non-parole period to head sentence

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. The Court accepted, through the judgment of RA Hulme J (with whom Tobias JA and Hoeben J agreed), that the objective seriousness of the offending was significant. The scheme involved a large sum of fraudulently obtained money, a deliberate attempt to corrupt a bank employee, and planning designed to render the transaction untraceable.

On the question of prior record, the Court considered the relevance of the appellant's driving convictions. While prior offences of a different character do not aggravate a current offence, they may still be relevant to the assessment of the offender's character and prospects of rehabilitation. The Court found no identifiable error in the sentencing judge's approach to this aspect.

On the special circumstances ground, the Court reiterated the principle that the mere presence of a circumstance capable of constituting "special circumstances" does not oblige a sentencing judge to depart from the statutory non-parole period proportion. Matters such as rehabilitation prospects and drug and alcohol treatment needs will typically have already been taken into account in fixing the head sentence, and double counting must be avoided. The Court found it was open to the sentencing judge to decline the special circumstances finding, given the appellant's age, his history of persistent offending, and the nature of the present offences.

Orders Made

  • Leave to appeal granted
  • The appeal is dismissed

Key Takeaways

  • A prior record consisting predominantly of driving offences does not directly aggravate unrelated serious criminal offending, but remains relevant to the sentencing court's assessment of an offender's character and rehabilitation prospects.
  • Under the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances is not compelled simply because a relevant circumstance exists; the circumstances must be sufficiently special to justify varying the statutory non-parole period proportion.
  • Double counting must be avoided: matters already reflected in a reduced head sentence are generally already embedded in the non-parole period and cannot be used again to justify a special circumstances finding.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing judge's assessment of rehabilitation prospects as "no better than moderate" was consistent with his decline to find special circumstances, notwithstanding evidence of partial completion of a drug program.
  • Attempted corruption of a bank employee to facilitate laundering of large-scale fraud proceeds was treated as a serious aggravating feature going to the objective gravity of the proceeds of crime offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BB(1), 193B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW)
- Confiscation of Proceeds of Crime Amendment Act 2005 (NSW)

Cases:
- R v Simpson (2001) 53 NSWLR 740
- Markarian v The Queen (2005) 228 CLR 357
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Ali v R [2008] NSWCCA 60
- Berg v R [2004] NSWCCA 300
- Fahs v R [2007] NSWCCA 26
- Licastro v R [2008] NSWCCA 131
- Murphy v Regina [2005] NSWCCA 412; 158 A Crim R 375
- Regina v Fidow [2004] NSWCCA 172
- Regina v Walker [2005] NSWCCA 109
- R v Bloomfield (1998) 44 NSWLR 734
- R v Oliver (1982) 7 A Crim R 174