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Court of Criminal Appeal 17 May 2011

NGUYEN v REGINA

[2011] NSWCCA 111

Fraud & dishonesty
CRIMINAL LAW APPEAL ON SENTENCE WHETHER APPLICANT RECKLESS TO THAT FACT WHETHER BREACH OF DE SIMONI PRINCIPLE

Citation: Nguyen v Regina [2011] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 17 May 2011
Judges: Allsop P, Hoeben J, Hall J

Background

The applicant was the manager and compliance officer of an international money transfer business operating from premises in Cabramatta and Bankstown. Between November 2007 and January 2008, she handled nearly $1.95 million in cash destined for transfer to Vietnam. The transfers were structured to avoid reporting obligations under Commonwealth legislation, with funds split into amounts below $10,000, customer identities left unverified, and false names used on transfer instructions.

The applicant pleaded guilty to dealing with money where a risk existed that it would become an instrument of crime, while being reckless as to that risk, contrary to s 400.3(2) of the Criminal Code Act 1995 (Cth). The transaction total exceeded the $1 million threshold required to enliven that provision. She was sentenced to five years and six months imprisonment, with a non-parole period of three years and six months.

The applicant sought leave to appeal her sentence on several grounds, arguing errors in the sentencing judge's reasoning.

  • Whether the sentencing judge breached the principle in R v De Simoni (1981) 147 CLR 383 by effectively sentencing the applicant for the more serious intention-based offence under s 400.3(1), rather than the recklessness-based offence under s 400.3(2) for which she was convicted
  • Whether the sentencing judge erred in assessing objective seriousness by taking into account the 234 individual transactions, given that those transactions together constituted the single charged offence
  • Whether the sentencing judge's reference to "ongoing persistent criminal conduct" when considering personal deterrence amounted to impermissible double counting

Decision

On the De Simoni ground, Hall J rejected the argument that the sentencing judge had impermissibly sentenced the applicant as though she had been convicted of the intention offence. The Criminal Code Act itself provides that proof of intention can establish recklessness. The sentencing judge's findings about the applicant's knowledge and conduct were consistent with sentencing for the recklessness offence, and no breach of the De Simoni principle was made out.

On the objective seriousness ground, Hall J held that the multiple individual transactions were properly considered in assessing the gravity of the single charged offence. The 234 transactions, each involving deliberate structuring to avoid reporting thresholds, bore directly on the seriousness of the overall course of dealing. This was consistent with sentencing for a single omnibus offence that encompassed multiple underlying acts.

On the double counting ground, Hall J found no error. The sentencing judge had first assessed the objective criminality of the offence, and only then referred to the persistent nature of the conduct as a basis for imposing a strong subjective deterrent. That use of the repetitive conduct fell within the recognised sentencing purpose of specific deterrence under s 3A of the Crimes (Sentencing Procedure) Act 1999, and did not involve counting the same factor twice in aggravation.

Allsop P expressed a reservation about the resolution of a tension between R v Huang and Cicciarello v R concerning the multiple-transactions issue, declining to resolve it finally. However, his Honour concluded that even if some error had occurred on that ground, resentencing would produce no lesser term, given that the repetition of offences remained relevant to personal deterrence in any event. Hoeben J agreed with Hall J without reservation.

Orders Made

  • Extension of time to apply for leave to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge does not breach the De Simoni principle merely by making findings about an offender's knowledge or intent that would also satisfy the elements of a more serious offence, where those findings are consistent with the offence actually charged.
  • Under s 400.3(2) of the Criminal Code Act 1995 (Cth), the individual transactions that together constitute a single charged course of dealing may properly inform the assessment of objective seriousness, even though they are also the component acts of the offence itself.
  • A sentencing judge's reference to persistent or repetitive offending does not automatically constitute double counting; where that reference is directed to personal deterrence after objective seriousness has already been assessed, it reflects a distinct and permissible sentencing purpose.
  • Allsop P left unresolved a tension between R v Huang and Cicciarello v R on how multiple transactions within an omnibus offence should be treated, noting only that any error on that issue would not have produced a lesser sentence in the circumstances.
  • Even where an appellate court identifies a possible error in sentencing reasoning, resentencing will not be ordered if the same outcome would result when all legitimate factors are properly weighed.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 400.3(1), 400.3(2), 5.4
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth)
- Financial Transaction Reports Act 1988 (Cth)

Cases:
- R v De Simoni (1981) 147 CLR 383
- R v Huang and Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370
- Cicciarello v R [2009] NSWCCA 272
- R v Tadrosse (2005) 65 NSWLR 740