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Court of Criminal Appeal 12 October 2010

R v Van Loi Nguyen

[2010] NSWCCA 226

Also reported as (2010) 204 A Crim R 246
DrugsFraud & dishonesty
CRIMINAL LAW SENTENCING MONEY LAUNDERING

Citation: R v Van Loi Nguyen [2010] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 12 October 2010
Judges: Beazley JA, Buddin J, Barr AJ

Background

The respondent, a senior figure at the Bankstown branch of a money transfer business, pleaded guilty to two federal offences: conspiracy to traffic a commercial quantity of heroin, and conspiracy to deal with the proceeds of crime valued at $1 million or more. He was taken into custody in October 2006 and sentenced in the District Court in September 2009.

The money laundering offence involved the deposit of approximately $15 million in cash into accounts at the Long Thanh Money Transfer Company across offices in New South Wales and Victoria between December 2005 and September 2006. The funds were then transferred to recipients interstate and overseas. The Crown could not establish the precise criminal source of the funds, but the respondent was found to have managed and directed a large, intricately planned criminal organisation, receiving a commission on the transactions.

The sentencing judge imposed 12 years for the heroin trafficking count and 10 years for the money laundering count, producing an effective head sentence of 14 years, with a non-parole period of 9 years and 3 months. The Crown appealed both sentences but, before the hearing, abandoned its appeal against the drug trafficking sentence. Only the adequacy of the money laundering sentence remained in dispute.

  • Whether the sentence of 10 years for the money laundering offence under s 400.3(1) of the Criminal Code Act 1995 (Cth) was manifestly inadequate.
  • Whether the Court of Criminal Appeal was required to apply the "double jeopardy" principle when considering a Crown appeal against sentence, in light of s 68A of the Crimes (Appeal and Review) Act 2001 and its interaction with Commonwealth legislation.
  • What the appropriate sentence range was for large-scale money laundering of this character, having regard to comparable decisions.

Decision

The Court found the money laundering sentence of 10 years was manifestly inadequate. The offence involved dealing with approximately $15 million over a period of nearly a year, through an intricate and sophisticated operation directed by the respondent. The maximum penalty was 25 years' imprisonment, and the court considered the sentence imposed sat well below what the gravity of the conduct warranted.

On the double jeopardy question, the Court applied the reasoning in Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194, which had already held that s 68A of the Crimes (Appeal and Review) Act 2001 was not inconsistent with Commonwealth law and was not excluded from operation by the Judiciary Act 1903 (Cth). Accordingly, the Court was required to proceed without applying any residual double jeopardy discretion in favour of the respondent.

The Court noted that it retains an independent discretion not to interfere even where inadequacy is established, but declined to exercise that discretion here. The court determined it was appropriate to substitute a sentence towards the lower end of the available range. Taking a notional head sentence of slightly more than 16 years and applying the 20 per cent guilty plea discount already accepted by the sentencing judge, the Court substituted a sentence of 13 years on the money laundering count. To produce an effective head sentence of 16 years across both counts, the commencement date of the first count was also adjusted.

The Court noted the irrelevance of the ministerial speeches the Crown had placed before it. Because no ambiguity in the legislation had been identified, and no misunderstanding had arisen in the proceedings, there was no proper basis for resort to those extrinsic materials.

Orders Made

  • The appeal was allowed and the sentence on the second count (money laundering) was quashed.
  • The sentence on the first count (heroin trafficking conspiracy) was varied to commence on 6 October 2006 and expire on 5 October 2018.
  • The respondent was sentenced on the second count to 13 years' imprisonment, commencing 6 October 2009 and expiring 5 October 2022.
  • A non-parole period of 10 years and 8 months was set, expiring 5 June 2017.

Key Takeaways

  • A sentence of 10 years for laundering approximately $15 million under s 400.3(1) of the Criminal Code Act 1995 (Cth), carrying a maximum of 25 years, was held to be manifestly inadequate where the offender managed a large and sophisticated criminal operation over an extended period.
  • The Court of Criminal Appeal confirmed, following De La Rosa, that s 68A of the Crimes (Appeal and Review) Act 2001 operates without inconsistency with Commonwealth law, meaning the court is not required to apply a double jeopardy discount in Crown appeals against sentence.
  • Even where a double jeopardy discretion does not apply, the court retains an independent discretion to decline interference; however, that discretion was not exercised on the facts here.
  • Where a Crown appeal against sentence succeeds, the substituted sentence should fall towards the lower end of the available range, not at its upper reaches.
  • Ministerial second reading speeches are not properly before the court unless a genuine ambiguity in the legislation has been identified; their introduction in the absence of such ambiguity was noted as unnecessary.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 302.2(1), 400.2, 400.3(1), 400.3(2), 400.4, 400.5, 400.6, 400.7, Part 10.2
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes Act 1914 (Cth), s 16A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59(1)
- Judiciary Act 1903 (Cth), ss 68, 79, 80
- Commonwealth Constitution, s 109
- Interpretation Act 1987 (NSW), s 34(1)
- Financial Transaction Reports Act 1988 (Cth), s 35(1)
- Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth), s 142

Cases:
- Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194
- Harrison v Melhem [2008] NSWCA 67
- Postiglione v The Queen (1997) 189 CLR 295
- R v Huang [2007] NSWCCA 259
- R v Li [2010] NSWCCA 125
- R v Byrne [2010] QCA 33
- R v Trandy, Nguyen & Ors [2009] VSCA 321
- Maldonado v R [2009] NSWCCA 189
- R v Jimmy [2010] NSWCCA 60
- R v Siu [2007] NSWCCA 259
- R v Viana [2008] NSWCCA 188
- R v Chen [2009] NSWCCA 66
- R v George [2004] NSWCCA 247
- R v JW [2010] NSWCCA 49
- Kable v Director of Public Prosecutions (1996) 189 CLR 51