Citation: [2011] NSWDC 61
Court: District Court of New South Wales
Date: 08 April 2011
Judge: Haesler DCJ SC
Background
Police executed a search warrant at the offender's Bondi Junction flat in February 2007, discovering over $255,000 in cash, a money-counting machine, multiple mobile phones, two types of human growth hormone, and a small quantity of cannabis. The cash was packaged in rubber bands in counted amounts and concealed in shoe boxes. After investigation, the Director of Public Prosecutions accepted that $55,000 of the cash should not be the subject of the charge, leaving $200,250 as the relevant sum.
The offender was an associate of co-accused connected to Operation Schoale, a joint Crime Commission and NSW Police operation targeting cocaine importation and supply and the handling of large sums of cash. The offender lived in the same apartment complex as key co-accused, and his rent was paid by one of them, Ms Saliba. The Crown's case was that he was warehousing the cash on behalf of another co-accused.
The case took approximately four years to resolve. The offender was not considered a major player, and his matter was given lower priority than others arising from the operation. A fresh indictment was presented in January 2011, and the offender pleaded guilty to one count of dealing in the proceeds of crime, being reckless as to whether the funds were the proceeds of crime.
Legal Issues
- What sentence was appropriate for an offender who pleaded guilty, late, to proceeds of crime warehousing involving $200,250?
- What discount, if any, was justified for a late guilty plea given the particular circumstances of the delay?
- Whether a fully suspended sentence was appropriate given the objective seriousness of the offence and the offender's subjective circumstances.
- How to treat the additional offences (possession of cannabis and human growth hormone) listed on the Form 1.
Decision
Issue 1: Plea discount
His Honour acknowledged that the guilty plea was late and that, under the principles in R v Thomson and Houlton, the timing of a plea is the most significant factor in assessing its utilitarian value. However, the court accepted that the delay was not attributable to the offender, that he was not a priority in the broader operation, and that he had ultimately co-operated with proceedings. A 25 per cent reduction was applied to reflect those circumstances.
Issue 2: Objective seriousness
The court characterised the offender's role as that of a cash warehouser for a larger drug-related enterprise, drawing an analogy to a receiver in a property offence. While the sum of $200,250 was modest compared with amounts involved in related Operation Schoale proceedings, the court described it as still a significant sum, noting that the maximum penalty of ten years reflected the seriousness Parliament attached to such conduct. The offence was placed towards the lower end of the range for proceeds of crime dealing, and recklessness was treated as less culpable than knowledge, but a custodial response was still required.
Issue 3: Form 1 matters
The cannabis possession and human growth hormone offences were taken into account on a Form 1. The cannabis matter was treated as not particularly serious given the quantities involved. The court noted, however, that possession of human growth hormones is a serious matter with potential for individual and community harm.
Issue 4: Suspension of sentence
After determining that a sentence of one year and four months would have been appropriate without the plea, and reducing that by 25 per cent to arrive at twelve months, the court considered whether suspension was appropriate. The court acknowledged that imposing a fully suspended sentence was a significant step given the objective seriousness, but concluded that the offender's otherwise good character, four years of demonstrated law-abiding conduct, and real prospects of rehabilitation justified suspension. The community interest in not disrupting that rehabilitation was the determinative factor.
Orders Made
- Count 1 (dealing in proceeds of crime, reckless as to whether proceeds of crime): convicted; sentenced to 12 months imprisonment, suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999, with a 12-month good behaviour bond.
- Form 1 offences (cannabis possession, human growth hormone possession) taken into account in sentencing.
- Remaining matter on the section 166 certificate (goods suspected of being stolen): withdrawn and formally dismissed.
Key Takeaways
- A 25 per cent plea discount was available even for a late guilty plea where the delay was attributable primarily to the complexity and scale of a broader investigation rather than to the offender's own conduct or intransigence.
- Warehousing cash connected to drug-related crime, while placing an offender at the lower end of the proceeds of crime range, still carries sufficient objective seriousness to ordinarily require a custodial term.
- Under section 12 of the Crimes (Sentencing Procedure) Act 1999, a court may suspend a custodial sentence where strong subjective factors, including demonstrated rehabilitation over a lengthy delay and otherwise good character, outweigh the objective seriousness of the offence.
- Four years of bail compliance and law-abiding conduct following arrest were treated as meaningful evidence of rehabilitation, allowing the sentencing court to assess the offender as he stood at the date of sentence rather than at the time of the offence.
- Parity considerations arising from related Operation Schoale proceedings required careful attention, but each offender was sentenced on the specific agreed facts in that individual proceeding, not by direct comparison to co-accused facing distinct factual circumstances.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Peisley [2010] NSWDC 240
- R v Saliba [2010] NSWDC 277
- R v Tanya Youkhana [2011] NSWDC 63