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Court of Criminal Appeal 27 February 2012

Van Eeden v R

[2012] NSWCCA 18

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE IMPOSED WAS TOO SEVERE

Citation: Van Eeden v R [2012] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 27 February 2012
Judge(s): Basten JA, RS Hulme J, Schmidt J

Background

The applicant, a 54-year-old Dominican Republic resident, was arrested at Sydney International Airport in October 2009 while attempting to board a flight to Germany. He had falsely declared on an outgoing passenger card that he was not carrying $10,000 or more, before a search of his baggage revealed undeclared Australian banknotes with a total currency value exceeding $400,000.

He pleaded guilty on 1 November 2010 to dealing with money where there was a risk it would become an instrument of crime, being reckless as to that risk, under s 400.4(2) of the Criminal Code Act 1995 (Cth). The sentencing judge found he was a courier rather than a principal, but treated the offence as objectively serious. He was sentenced to 3 years and 1 month imprisonment, with a non-parole period of 1 year and 10 months.

The applicant sought leave to appeal against sentence on four grounds, arguing the sentencing judge had made errors in assessing his rehabilitation prospects, had speculated about the source of the money, had undervalued the hardship caused by his Criminal Justice Visa conditions, and had imposed a sentence that was manifestly excessive.

  • Whether the sentencing judge erred by finding the applicant's prospects of rehabilitation were neutral, rather than treating them as favourable
  • Whether the sentencing judge speculated impermissibly about the source of the money and thereby fell into error
  • Whether the sentencing judge gave insufficient weight to the hardship caused by the conditions of the applicant's Criminal Justice Visa (which had prevented him from working or receiving social security while on bail)
  • Whether the overall sentence was manifestly excessive having regard to both objective and subjective circumstances

Decision

Ground 1 (rehabilitation): Schmidt J found no error in the sentencing judge's neutral assessment of rehabilitation prospects. The applicant had not given evidence, the pre-sentence report did not support a positive finding, and the plea of guilty had already been taken into account separately as indicative of contrition.

Ground 2 (speculation about money source): The Court rejected this ground. The sentencing judge's comments about the source of the money were consistent with the elements of the offence itself, which required only that there be a risk the money would become an instrument of crime. No impermissible speculation had occurred.

Ground 3 (Criminal Justice Visa hardship): Schmidt J, relying on the established principle from R v Ferrer-Esis, held that an offender who travels to another country to commit a crime cannot make substantial complaint about being detained in that country's legal system as a direct consequence. Basten JA added that under s 16A(2)(p) of the Crimes Act 1914 (Cth), courts have long been constrained from giving "substantial" weight to the effects of incarceration on family and dependants absent exceptional circumstances, because the accepted sentencing range already incorporates such usual consequences. The applicant's circumstances did not rise to the level of exceptional.

Ground 4 (manifest excess): The Court found no error. The maximum penalty was 10 years imprisonment, the offence involved over $400,000, and both general and specific deterrence were rightly given weight. Schmidt J noted that in some respects the sentencing judge's approach may have been unduly favourable to the applicant. The sentence was not shown to be unreasonable or plainly unjust.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • Under s 16A(2)(p) of the Crimes Act 1914 (Cth), courts are restricted from giving "substantial" weight to the effect of a sentence on an offender's family or dependants unless exceptional circumstances exist, because the standard sentencing range for an offence is generally understood to incorporate the ordinary consequences of incarceration for families.
  • No error arises from a sentencing judge commenting on the source of money where such a comment is consistent with the elements of the charged offence, rather than going beyond the agreed facts.
  • A neutral finding on rehabilitation prospects is open to a sentencing judge where the offender has not given evidence and the supporting material does not positively establish favourable prospects, even where a guilty plea has been entered.
  • Applying R v Ferrer-Esis, an offender who travels to Australia specifically to commit an offence carries a reduced basis for complaint about the hardships of remaining in Australia, including onerous visa conditions, as a result of that offending.
  • Refusing leave on all grounds, the Court of Criminal Appeal confirmed that a sentence of just over three years for dealing in more than $400,000 at risk of becoming an instrument of crime, with the offender sentenced as a courier and given credit for an early plea, did not constitute manifest excess against a maximum of 10 years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including s 16A and s 16A(2)(p)
- Criminal Code Act 1995 (Cth), s 400.4(2)

Cases:
- Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Hinton [2002] NSWCCA 405; [2002] 134 A Crim R 286
- R v Matthews (1996) 130 FLR 230
- R v Ryan (2001) 206 CLR 267
- R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
- R v Vuni [2006] NSWCCA 171
- Thi Lan Nguyen v R [2009] NSWCCA 181