Citation: R v Vincent, Jamieson [2010] NSWDC 302
Court: District Court of New South Wales
Date: 19 November 2010
Judge(s): Nicholson SC DCJ
Background
In December 2003, a large-scale fraud was perpetrated on the Commonwealth Superannuation Scheme. Criminals infiltrated JP Morgan Chase Bank and Telstra to issue fraudulent instructions, causing approximately $150 million to be transferred to four offshore accounts in Switzerland, Greece, and Hong Kong. Before the fraud was detected and funds frozen, roughly $3.4 million Australian had been extracted.
The offender, Jamieson Vincent, played a limited role in the conspiracy. He was not involved in designing or executing the original fraud. Rather, he acted as a messenger between co-conspirators, attending meetings in Australia and travelling to the Netherlands, during the period when others were attempting to arrange access to funds held in the Hong Kong account.
Vincent pleaded guilty to conspiring to deal with the proceeds of crime in an amount of $1 million or more, contrary to Commonwealth law. The conspiracy was alleged to have occurred between June 2003 and February 2004, a period ending just weeks before he entered custody on unrelated drug supply offences. The prosecution was not commenced until December 2007, despite the New South Wales Crime Commission being aware of his involvement from early 2004.
Legal Issues
- What was the appropriate sentence for a Commonwealth offence of conspiring to deal in proceeds of crime, where the offender's role was minor?
- How should the sentencing court distinguish between acts in furtherance of the underlying fraud and acts directed at obtaining the proceeds of that fraud?
- What weight should be given to significant delay in prosecution, particularly where the charged conduct pre-dated a period of prior custody already served?
- How should the offender's serious and likely terminal illness affect the sentence?
- Did the sentences imposed on co-offenders, who faced charges of a different nature and carrying different maximum penalties, give rise to a justifiable sense of grievance warranting a parity adjustment?
Decision
The court accepted that Vincent's role in the conspiracy was minor. He acted as a messenger rather than as an architect or principal actor. The court drew a careful distinction between conduct in furtherance of the original fraudulent transfer and conduct directed at dealing with the proceeds after the crime, noting that the conspiracy to deal with the money was being organised before the transfer actually occurred.
The court identified several mitigating factors of significant weight. Vincent was 41 years old with an extensive criminal history, but had developed a serious illness for which survival beyond five years was considered unlikely. The court also found that prisoners in custody face systemic difficulties accessing timely health treatment, which added to the hardship the sentence would impose.
The delay in prosecution was treated as a substantial mitigating factor. Vincent had already served five years on unrelated drug offences, with his non-parole period expiring before this prosecution commenced. The conduct underlying the present charge predated that custody, yet authorities had known of his involvement since early 2004. The court found this delay unjust in its practical effect.
On the question of parity, the court found that co-offenders had been charged with offences of a different nature, attracting different maximum penalties, as a result of prosecutorial discretion. This created difficulty in achieving true parity. The court nonetheless found that Vincent had a justifiable sense of grievance in comparison to his co-offenders and took this into account in moderating the sentence.
Orders Made
- Convicted of conspiring to deal with proceeds of crime (between 1 June 2003 and 1 February 2004).
- Overall sentence of three years imprisonment, commencing 19 November 2010 and expiring 18 November 2013.
- Released on a recognizance release order on 18 July 2012 (after approximately 20 months, with a balance of 16 months remaining), in the sum of $10.00.
Key Takeaways
- A minor, messenger-level role in a large-scale proceeds-of-crime conspiracy remains a significant mitigating factor, even where the underlying fraud involved a very substantial sum.
- The court drew a clear distinction between acts in furtherance of the principal offence and acts directed at obtaining or dealing with the proceeds of crime, treating these as analytically separate for sentencing purposes.
- Substantial unexplained prosecutorial delay, particularly where the offending pre-dated a completed period of prior custody, can significantly reduce an appropriate sentence for a Commonwealth offence.
- Where a serious and likely terminal illness makes the prison environment particularly burdensome, and where systemic barriers to health treatment for prisoners in custody are a foreseeable risk, those circumstances can constitute additional grounds for mitigation.
- A justifiable sense of grievance on parity grounds can arise even where co-offenders were charged under different provisions carrying different maximum penalties, provided the overall sentencing outcome is disproportionate when assessed against the relative culpability of the offenders concerned.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth)
- Crimes Act 1914 (Cth)
Cases:
- Mark John Doyle (1996) 84 A Crim R 287
- De Simone v The Queen (1981) 147 CLR 383
- Ansari v The Queen (2007) 70 NSWLR 89
- Chen v The Queen [2009] NSWCCA 66
- R v Dragan Jokovic [2010] NSWDC 155
- R v Todd [1982] 2 NSWLR 517
- Mills v The Queen [1988] HCA 70
- Sopher (1993) 70 A Crim R 570