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District Court 18 November 2011

R v PERREAU

[2011] NSWDC 234

Fraud & dishonesty
CRIMINAL LAW SENTENCE DELAY

Citation: R v Perreau [2011] NSWDC 234
Court: District Court of New South Wales
Date: 18 November 2011
Judge: Berman SC DCJ

Background

The offender pleaded guilty to one count of disposing of money it was reasonable to suspect were the proceeds of crime, contrary to Commonwealth law. Between February 2003 and September 2004, he received cash on 85 separate occasions and deposited it into nominated bank accounts, sometimes using a false name. The total amount handled was approximately $3 million, for which he received an estimated $15,000 to $30,000 in commission.

The offender had been drawn into the scheme through a connection originating with a family member, and initially believed the transactions were legitimate. He gave evidence that he eventually became suspicious, and then confident, that the activity was not above board. Despite that realisation, he continued for a period before voluntarily ceasing the conduct approximately one month before police attended his premises in late 2004.

Although police searched his home in late 2004 and recovered meticulous records he and his wife had kept, he was not charged until five years later. During that interval, police returned his passport when he needed it for overseas travel, and he had begun to believe the matter might be behind him.

  • What sentence was appropriate for a single proceeds-of-crime offence given the offender's personal circumstances and culpability?
  • What weight should be given to the five-year delay between the initial police investigation and the laying of charges?
  • How should general deterrence be balanced against the mitigating effect of that delay?
  • What discount applied to the late guilty plea?

Decision

Berman SC DCJ found that the offender's moral culpability was moderate. He had initially acted in good faith, came to suspect and then appreciate the illegality, and yet continued for a time before voluntarily stopping. The use of a false name on deposit slips was explained as a personal security measure rather than an attempt to create a fraudulent identity. The court accepted that the offender was genuinely remorseful and that his distress about the impact on his family was sincere.

The court identified a five-year delay between the police investigation and charge as the dominant sentencing consideration, describing it as "the elephant in the room." That delay had caused prolonged stress, contributed to the deterioration of the offender's marriage (though the couple later reconciled before deteriorating again after charge), and had left the offender in sustained uncertainty. His Honour noted the irony in the Crown pressing general deterrence as a weighty consideration when the authorities had not treated the matter with apparent urgency for five years.

The delay also worked in the offender's favour in another respect: it allowed him to demonstrate over an extended period that the offending was genuinely isolated, and that he had not reoffended. The court noted that flexibility is appropriate at sentence where prosecution delay of this kind is present. His Honour observed that a period of actual imprisonment might have been warranted had sentencing occurred shortly after the offences, but that the combination of delay, genuine remorse, good character, and the significant collateral consequences, including likely loss of his financial services licence and employment, led to a different outcome.

The guilty plea was entered late and attracted a discount of approximately ten per cent, which the court characterised as modest. General deterrence retained some relevance but was substantially tempered by the delay. A suspended sentence of 12 months was imposed.

Orders Made

  • A sentence of 12 months imprisonment was imposed.
  • The sentence was suspended under s 20(1)(b) of the Commonwealth Crimes Act on condition that the offender provide self-security (without surety) in the sum of $1,000.
  • The resulting bond requires the offender to be of good behaviour for the period of the bond.
  • The offender must appear before the Court if called upon to do so at any time.
  • The offender must notify the Registrar of any change to his residential address.

Key Takeaways

  • A five-year delay between investigation and charge can be a dominant factor at sentencing, capable of substantially reducing the penalty that would otherwise have been imposed for a proceeds-of-crime offence.
  • Prolonged prosecutorial delay serves a dual mitigating function: it inflicts its own punishment through sustained anxiety and collateral consequences, and it provides an extended opportunity for the offender to demonstrate rehabilitation and absence of reoffending.
  • General deterrence, while relevant to proceeds-of-crime offending, carries reduced weight where the prosecution itself did not treat the matter urgently over many years.
  • Voluntary cessation of offending before detection, supported by contemporaneous records, was accepted as a genuine mitigating circumstance going to culpability.
  • Significant collateral consequences, including the near-certain loss of a financial services licence and employment, formed part of the sentencing calculus alongside the formal penalty.

Legislation and Cases Referenced

Legislation:
- Commonwealth Crimes Act (s 20(1)(b), under which the sentence was suspended)

Cases cited: No specific cases were identified in the judgment text or metadata.