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Court of Criminal Appeal 18 July 2012

Nguyen v R

[2012] NSWCCA 152

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE $9.9 MILLION DEALT WITH IN 23 DAYS RELEVANCE OF COVERT FEATURES OF OFFENCE USE OF STRONG SUBJECTIVE CASE

Citation: Nguyen v R [2012] NSWCCA 152
Court: Court of Criminal Appeal, New South Wales
Date: 18 July 2012
Judge(s): Hoeben JA; Latham J; Garling J

Background

The appellant was the Sydney-based representative of a Melbourne remittance agency. Over 23 days in early 2010, she handled approximately $9.9 million in cash across six transactions, communicating in coded language, using mobile phones registered to third parties, and maintaining off-the-books records to conceal the dealings from authorities.

She pleaded guilty in the Local Court to a single offence under s 400.3(2) of the Criminal Code Act 1995 (Cth): dealing with $1 million or more while being reckless as to the risk that the money would become an instrument of crime. The maximum penalty for this offence is 12 years imprisonment. The District Court sentenced her to 7 years imprisonment with a non-parole period of 4 years and 6 months.

The appellant sought leave to appeal on the ground that the sentence was manifestly excessive, pointing to four alleged sentencing errors by the District Court judge.

The Court of Criminal Appeal was asked to consider whether the sentence was manifestly excessive, by reference to four alleged errors in the sentencing remarks:

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence
  • Whether it was an error to take into account any suspicion the appellant may have had about the source of the funds and the risk they would become an instrument of crime
  • Whether the sentencing judge erred in treating the covert nature of the offending as an aggravating factor, given that the appellant also conducted legitimate dealings
  • Whether the sentencing judge failed to give proper weight to the appellant's subjective circumstances, including her personal background and strong subjective case

Decision

The Court rejected each of the four alleged errors and dismissed the appeal. Hoeben JA, with whom Latham J and Garling J agreed, found that the sentencing judge's assessment of objective seriousness was well supported by the facts. The $9.9 million dealt with in 23 days was nearly ten times the statutory threshold, the offending was serial and systematic rather than a single lapse in judgment, and the appellant played an essential, trusted, and partially autonomous role in the scheme.

On the question of suspicion as to the source of the funds, the Court found it was appropriate for the sentencing judge to consider the extent to which the appellant was aware of or suspected the nature of the money. The appellant had been told not to accept funds connected to drugs, weapons, or terrorism, and had been advised by her employer that clients wanted to avoid the Tax Office. These circumstances were properly relevant to the fault element of recklessness and the appellant's moral culpability.

The Court also rejected the argument about the covert features of the offence. The use of coded language, phones registered to third parties, and off-the-books records was conduct designed to evade detection, and it was open to the sentencing judge to treat this as an aggravating feature regardless of the appellant's parallel legitimate business activities.

Regarding subjective factors, the Court accepted that the appellant had a strong subjective case, including her plea of guilty and cooperation with investigators. However, the sentencing judge was found to have properly considered and weighed these matters. No individual error was established, and the sentence, taken as a whole, was within the appropriate range.

Orders Made

  • Leave to appeal granted
  • The appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sheer scale of cash dealt with, and its serial nature over a short period, are weighty factors in assessing the objective seriousness of a money-dealing offence under s 400.3(2) of the Criminal Code Act 1995 (Cth).
  • A suspect's partial awareness of the likely illegitimate character of funds, even falling short of actual knowledge, is relevant to the fault element of recklessness and to the overall assessment of moral culpability at sentencing.
  • Covert conduct designed to evade law enforcement, such as using coded language and phones registered to others, may properly be treated as aggravating even where the offender also carries on legitimate activities alongside the criminal ones.
  • No error was established merely because a strong subjective case was presented; the sentencing judge appropriately weighed subjective factors before arriving at a sentence the Court found to be within a proper sentencing discretion.
  • The Court noted that R v Van Loi Nguyen [2010] NSWCCA 226, which involved intention-based offences, had only limited relevance to the present case, where the fault element was recklessness rather than intention.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 400.3(2)

Cases:
- A Ansari v R, H Ansari v R [2007] NSWCCA 204; 70 NSWLR 89
- House v King [1936] HCA 40; 55 CLR 499
- R v Van Loi Nguyen [2010] NSWCCA 226; 204 A Crim R 246
- Regina v Narongchai Saengsai-Or [2004] NSWCCA 108; 147 A Crim R 172