Citation: [2011] NSWDC 131
Court: District Court of New South Wales
Date: 15 July 2011
Judge: Judge Haesler SC
Background
The offender pleaded guilty to recklessly dealing with proceeds of crime under s 193B(3) of the Crimes Act 1900 (NSW). The charge arose from Operation Schoale, a joint New South Wales Crime Commission and NSW Police investigation into the importation and supply of cocaine.
The offender's role was limited and peripheral. A long-term school friend, described as a principal in the drug syndicate, asked the offender to help transport a large amount of cash from Queensland to New South Wales. The principal lacked bank accounts and credit cards, so the offender provided his credit card details to book flights and, the following day, hired a car in his own name for the return journey.
Police, who had been lawfully intercepting the principal's telephone calls and conducting surveillance, stopped the vehicle on Hexham Bridge near Newcastle. A search of the car revealed $814,000 in cash. The offender was arrested and later bailed.
Legal Issues
- What sentence was appropriate for an offender who played a limited, peripheral role in transporting proceeds of crime totalling $814,000?
- What weight should be given to the late guilty plea, the offender's personal circumstances, his prior criminal record, and his prospects for rehabilitation?
- Whether the sentence, though custodial in nature, could be suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
Decision
The seriousness of the offence: Judge Haesler found that, while the offence fell towards the lower end of the range for proceeds of crime matters, it remained serious. The ten-year maximum penalty reflected that seriousness. Recklessness, as the relevant mental element, is regarded as less culpable than knowingly dealing with proceeds of crime, but the scale of the funds involved still warranted a custodial sentence. The court noted that those who assist in moving proceeds of crime act, in effect, as accessories to the underlying serious offences.
The offender's role and culpability: The Crown accepted that the offender's role was confined to arranging transport of the cash over two days, and that his criminality fell below that of other Operation Schoale offenders already sentenced. Intercepted calls indicated some reluctance on the offender's part. The offender did not own or personally benefit from the money beyond a night out at an expensive Gold Coast hotel.
Plea discount and personal circumstances: The guilty plea came late but retained considerable utilitarian value because the Crown had difficulties with witnesses. The court applied a discount of more than ten per cent but less than fifteen per cent. The offender had a prior criminal record (precluding first-offender leniency, though not aggravating the sentence), had committed a minor drug possession offence on bail (of concern but not aggravating), had suffered serious back injuries, and had a wife and three children. His rehabilitation prospects were considered favourable.
Disposition: Taking into account the nature of the offence, the offender's antecedents, and his rehabilitation prospects, Judge Haesler concluded that a custodial sentence was required but that it could be suspended. The court assessed a starting point of eighteen months' imprisonment and, after applying the plea discount, imposed a sentence of fifteen months, suspended upon the offender entering a fifteen-month good behaviour bond.
Orders Made
- The offender was convicted and sentenced to fifteen months' imprisonment.
- Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, execution of the sentence was suspended on the offender entering a fifteen-month good behaviour bond from 15 July 2011, with conditions to: (a) appear before the court if called upon during the bond period; (b) be of good behaviour; and (c) notify the District Court Registrar of any change of address.
- Two charges of goods suspected of being stolen (on a s 166 certificate) were withdrawn and dismissed on the application of the Director of Public Prosecutions.
Key Takeaways
- A peripheral role in transporting proceeds of crime, confined to two days and limited practical acts, can still attract a custodial sentence where the funds involved are substantial (here, $814,000) and the offender has a prior criminal record.
- Under s 193B(3) of the Crimes Act 1900, recklessness as to whether funds are proceeds of crime is treated as less culpable than actual knowledge, but the scale of funds involved remains a significant factor in determining the appropriate sentence.
- A late guilty plea may still attract a discount of more than ten per cent where it retains genuine utilitarian value, such as where the Crown faces difficulties securing witnesses.
- The District Court confirmed that a custodial sentence can be suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 even where the offender has prior antecedents, provided rehabilitation prospects and other mitigating factors justify that course.
- Committing a further offence while on bail was treated as a matter of concern in assessing disposition, but did not automatically aggravate the sentence for the principal offence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Not stated