Citation: Chen v R [2010] NSWCCA 224
Court: New South Wales Court of Criminal Appeal
Date: 8 October 2010
Judge(s): Basten JA; RS Hulme J; Schmidt J
Background
The appellant was convicted by a jury in the District Court of dealing with money valued at $1 million or more, intending that it become an instrument of crime. Specifically, the Crown alleged that between January and November 2003, the appellant provided bundles of cash to an associate, Mr Huang, directing him to conduct 333 international money transfers to Hong Kong bank accounts. Each transfer was structured to fall below $10,000, and the total amount transferred was $3,088,311.
The sentencing judge found that the appellant had structured the transfers to avoid the reporting requirements under the Financial Transaction Reports Act 1988 (Cth), thereby concealing the money from the Australian Taxation Office. The appellant was sentenced to 15 years, 6 months and 10 days imprisonment, with a non-parole period of 9 years, 6 months and 10 days.
On appeal, the appellant challenged both the conviction and the sentence. There were also procedural complications arising from a lengthy delay in filing the Notice of Appeal, which required extensions of time and, ultimately, a grant of leave by the Court of Criminal Appeal.
Legal Issues
- Whether the trial judge's warning and directions to the jury regarding the evidence of Mr Huang (an accomplice who gave evidence for the Crown) were adequate
- Whether the trial judge's directions impermissibly removed from the jury's consideration legitimate hypotheses consistent with innocence
- Whether the trial miscarried because the trial judge revealed his own opinion about the case and failed to give balanced directions
- Whether the sentence of 15 years, 6 months and 10 days was manifestly excessive
- Whether, applying the parity principle, the disparity between the appellant's sentence and Mr Huang's lesser sentence was unjustifiable
Decision
The Court rejected all three grounds of appeal against conviction. On the first ground, the Court considered whether the trial judge's accomplice warning in relation to Mr Huang's evidence was legally adequate. On the second ground, the Court examined whether the judge's directions impermissibly steered the jury away from innocent explanations for the appellant's conduct. The Court found no error in either respect. The third ground, concerning alleged imbalance in the judge's directions and the expression of a view about the case, was also dismissed.
On the sentence appeal, the Court examined the parity argument by comparing the appellant's sentence with that received by Mr Huang. The Court noted that Mr Huang's role was largely menial: he carried out the banking at the appellant's direction. By contrast, the appellant possessed the cash, directed where it was to be sent, and was the primary beneficiary of the scheme. The appellant also drove the offending, which was planned and repeated over more than nine months.
The Court concluded that the difference in criminality between the two offenders was substantial, and that a significantly higher sentence for the appellant was warranted. While the gap between Mr Huang's suggested range of 12 to 14 years and the appellant's 16 years and 6 months (the starting point before pre-sentence custody adjustments) was considerable, it did not constitute the kind of marked or unjustifiable disparity that would require intervention on parity grounds.
Measured against the statutory maximum of 25 years, the Court also found no basis for concluding the sentence was manifestly excessive on any other ground.
Orders Made
- Leave to appeal against conviction granted
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A conviction under s 400.3(1) of the Criminal Code Act 1995 (Cth) for dealing with money intended as an instrument of crime can be sustained where the evidence establishes that the accused directed the structuring of transfers to avoid reporting obligations, even where the physical banking was carried out by another person.
- Under the parity principle, a sentencing disparity between co-offenders does not require appellate intervention unless it is "marked." A difference of approximately 4 to 4.5 years between an organiser and a person playing a largely menial role was held not to meet that threshold.
- In dismissing the conviction appeal, the Court confirmed that accomplice warning directions and directions about hypotheses consistent with innocence must be assessed in the context of the whole summing-up, not in isolation.
- Procedural delays in perfecting an appeal can create significant difficulties: the appellant's solicitor provided no explanation for over 12 months of delay, and the Court addressed the procedural history in detail before considering the merits.
- No error was established in the trial judge's conduct of proceedings, including an alleged expression of opinion about the case, where that conduct did not, in the Court's view, deprive the appellant of a fair trial.
Legislation and Cases Referenced
Legislation:
- Financial Transaction Reports Act 1988 (Cth)
- Criminal Code Act 1995 (Cth), s 400.3(1)
- Criminal Appeal Rules (NSW), rr 3A, 3B, 23C
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(a)
Cases:
- Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50
- RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
- Postiglione v R (1996-1997) 189 CLR 295
- R v Huang [2007] NSWCCA 259; (2007) 174 A Crim R 370
- R v Zorad (1990) 19 NSWLR 91
- R v Ronen [2006] NSWCCA 123
- Taleb v R [2006] NSWCCA 119
- R v Adler [2002] NSWCCA 180
- B v The Queen (1992) 175 CLR 599
- Bourke v The Queen (1988) 62 ALJR 425