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6
Court of Criminal Appeal 17 March 2009

Chen v R

[2009] NSWCCA 66

Fraud & dishonesty
CRIMINAL LAW SENTENCING MONEY LAUNDERING WHETHER BREACH OF DE SIMONI PRINCIPLE RELEVANCE OF ASSISTANCE OF NO VALUE.

Citation: Chen v R [2009] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 17 March 2009
Judge(s): Beazley JA, Blanch J, Howie J (Howie J delivering the leading judgment)

Background

The appellant pleaded guilty in the Local Court to conspiring to deal with money valued at $1 million or more, knowing it was the proceeds of crime and being reckless as to that fact, contrary to ss 11.5(1) and 400.3(2) of the Criminal Code (Cth). The charge arose from a large-scale fraud in which approximately $150 million was stolen from the Commonwealth Superannuation Scheme and transferred to overseas accounts, including one in Hong Kong.

The appellant's role was to source a suitable Hong Kong bank account for use in laundering over $20 million of the stolen funds. He made arrangements through associates, travelled to Hong Kong, and met with one of the principal fraudsters, handing over account details. The fraud was ultimately detected before the funds were released, meaning no money actually passed through the account he had facilitated.

Marien DCJ sentenced the appellant in the District Court to six years' imprisonment with a non-parole period of three years and seven months. The appellant sought leave to appeal on multiple grounds, including totality of sentencing, breach of the De Simoni principle, and the treatment of his cooperation with authorities.

  • Whether the sentencing judge erred in making the sentence cumulative on a prior, unrelated sentence, in breach of the totality principle
  • Whether the sentencing judge breached the De Simoni principle by taking into account conduct more serious than the offence charged
  • Whether the sentencing judge incorrectly treated the appellant's assistance to authorities as an aggravating factor, or failed to give it appropriate mitigating weight
  • Whether the overall sentence was manifestly excessive given the appellant's role and subjective circumstances

Decision

On the totality ground, the Court held that the sentencing judge committed no error. The prior offences (relating to identity theft) were committed approximately 12 months before the money laundering conspiracy and were entirely unrelated. Making the sentences cumulative was appropriate in those circumstances, and there was no basis to find a failure to apply the totality principle.

On the De Simoni ground, the Court found no breach. The De Simoni principle prohibits a sentencing court from taking into account circumstances of aggravation that would have warranted a conviction for a more serious offence. The appellant argued the judge had impermissibly relied on his awareness that a "large sum of money" was involved. The Court rejected this, finding that awareness of the scale of the funds fell squarely within the facts of the offence charged and did not constitute conduct relevant only to a more serious offence.

Regarding the assistance ground, the Court confirmed that where an offender's cooperation with authorities has been of no practical value, it carries little or no mitigating weight. The judge's treatment of the appellant's assistance was consistent with this principle and disclosed no error.

On manifest excess, the Court found the sentence was within the sentencing judge's discretion. The offence was well above the mid-range of seriousness. The Court reaffirmed that money laundering offences, particularly those involving large sums and mid-level organisational roles, warrant severe sentences, regardless of whether the funds were ultimately accessed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under the De Simoni principle, a sentencing court does not err by taking into account an offender's awareness of the scale of funds involved in a money laundering conspiracy, provided that awareness relates to the offence actually charged rather than to a more serious uncharged offence.
  • Where an offender's cooperation with investigators has produced no practical value, it attracts little or no mitigating weight at sentencing.
  • In money laundering offences under the Criminal Code (Cth), the amount of money is the primary legislative marker distinguishing offence categories and corresponding maximum penalties, making it a highly significant sentencing consideration.
  • Sentences imposed for separate, unrelated criminal conduct may properly be made cumulative without breaching the totality principle, particularly where the offences are distinct in character and separated in time.
  • The Court of Criminal Appeal confirmed that mid-level participation in a large-scale money laundering conspiracy warrants a severe sentence, and the failure of the scheme to result in actual financial loss does not substantially diminish the gravity of the offending.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.5(1), 400.3(1), 400.3(2)

Cases
- De Simoni v The Queen (1981) 147 CLR 383
- Ansari v R [2007] NSWCCA 204
- R v Huang and Siu [2007] NSWCCA 259
- R v Olbrich (1999) 199 CLR 270
- Assafiri v R [2007] NSWCCA 159