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Court of Criminal Appeal 14 December 2012

Ihemeje v R

[2012] NSWCCA 269

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE NON

Citation: Ihemeje v R [2012] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 14 December 2012
Judges: McClellan CJ at CL, Hidden J, Adamson J

Background

The applicant was the proprietor of a Sydney foreign exchange business. A jury found him guilty on two counts of dealing with money or property that was the proceeds of crime, contrary to s 400.4(2) of the Criminal Code (Cth), following a trial in which nine other similar counts resulted in a hung jury. The two counts on which he was convicted involved the laundering of approximately $592,809 derived from fraudulent bank transfers orchestrated by identity crime syndicates.

On each occasion, the applicant received fraudulent funds transferred through accounts controlled by his associates, converted those funds into US dollars or euros, collected the cash in person, and then filed false AUSTRAC reports naming fictitious recipients. He had previously been audited by AUSTRAC and was aware of his reporting obligations.

The sentencing judge imposed an aggregate term of five years and seven months' imprisonment, with a non-parole period of three years and seven months. The applicant sought an extension of time and leave to appeal against sentence.

  • Whether the sentencing judge erred by commencing the non-parole period for the federal offences on a date after the commencement of the head sentences, resulting in a non-parole period that was effectively shorter than required under the Crimes Act 1914 (Cth).
  • Whether the sentencing judge impermissibly took into account offences on which the applicant was not convicted (the nine counts on which the jury was unable to reach a verdict).
  • Whether the sentencing judge made factual findings that were not open on the evidence.
  • Whether the overall sentences were manifestly excessive.

Decision

Non-parole period commencement: The Court identified an arithmetical error in the way the non-parole period had been fixed. The non-parole period commenced on 4 June 2010, one month after the head sentence commenced on 4 May 2010, but it should have commenced on the same date as the head sentence. The Court allowed the appeal on this narrow ground and adjusted the commencement date accordingly, reducing the effective non-parole period.

Use of uncharged or acquitted matters: The applicant argued that the sentencing judge had regard to the nine counts on which the jury failed to reach a verdict. The Court found no error on this ground. A sentencing court is entitled to have regard to the facts and circumstances surrounding the offences of conviction, and nothing in the sentencing remarks demonstrated that the judge used the unresolved counts as a basis for increasing the sentence.

Factual findings: The Court rejected the submission that the sentencing judge made findings unsupported by the evidence. The findings were consistent with, and reasonably open on, the evidence led at trial concerning the applicant's role and the circumstances of the offending.

Manifest excess: The Court was not persuaded that the sentences fell outside the proper range. Adamson J observed that money laundering sentencing authorities do not establish a fixed sentencing range because the offences comprehend a wide range of criminality. Her Honour noted that the applicant occupied a senior position in the scheme, was trusted with and handled large sums, took deliberate steps to conceal the transactions, and had been previously educated about his AUSTRAC obligations. General deterrence was also identified as a significant factor, given that offenders in the applicant's position face lower detection risk and receive comparatively higher rewards than those lower in the hierarchy.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Non-parole period adjusted to commence on 4 May 2010 and expire on 3 December 2013.
  • Sentences otherwise confirmed.

Key Takeaways

  • An arithmetical error in fixing the commencement date of a non-parole period for federal offences is a correctable legal error, even where the overall sentence is otherwise upheld.
  • A sentencing court does not err simply by referring to the circumstances surrounding an offence of conviction; the error arises only where it is demonstrated that uncharged or unproven matters were used to increase the sentence imposed.
  • Under s 400.4(2) of the Criminal Code (Cth), the wide range of criminality captured by money laundering offences means that sentencing decisions in comparable cases inform general principle rather than establishing a fixed sentencing range.
  • General deterrence carries significant weight in money laundering sentencing where an offender occupied a position of trust within the scheme, took active steps to conceal transactions, and stood to benefit more than lower-level participants while facing a lower risk of detection.
  • No error was established in the sentencing judge's factual findings where those findings were reasonably open on the trial evidence.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 400.4(2)
- Crimes Act 1914 (Cth)
- Financial Transaction Reports Act 1988 (Cth)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Cranshaw v R [2009] NSWCCA 80
- Du Randt v R [2008] NSWCCA 121
- Green v The Queen [2011] HCA 49; 244 CLR 462
- Horne v R [2011] NSWCCA 225
- R (Cth) v Nguyen; R (Cth) v Nguyen [2010] NSWCCA 331
- R v Edwards (1996) 90 A Crim R 510
- R v Guo; R v Qian [2010] NSWCCA 170
- R v Li [2010] NSWCCA 125; 202 A Crim R 195