AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 1 February 2013

R v Wang; R v Roizman

[2013] NSWCCA 2

Fraud & dishonesty
CRIMINAL LAW SENTENCING MONEY LAUNDERING ALLEGED DENIAL OF PROCEDURAL FAIRNESS WHETHER SENTENCES MANIFESTLY EXCESSIVE WHETHER PRINCIPLE IN DE SIMONI BREACHED

Citation: R v Wang; R v Roizman [2013] NSWCCA 2
Court: Court of Criminal Appeal, New South Wales
Date: 1 February 2013
Judge(s): McClellan CJ at CL; McCallum J; Garling J

Background

Two offenders, referred to here as the principal appellant and the aiding-and-abetting appellant, sought leave to appeal against sentences imposed following jury convictions for dealing with the proceeds of crime. Both offences arose under the Commonwealth Criminal Code 1995 and carried a maximum penalty of 12 years' imprisonment and a fine. The principal appellant received a total sentence of 10 years (non-parole period of 6 years and 6 months); the aiding-and-abetting appellant received 9 years and 6 months (non-parole period of 5 years and 6 months).

The offending formed part of a large-scale fraud on the Commonwealth Superannuation Scheme. On Christmas Eve 2003, fraudulent banking directions caused the transfer of approximately AUD $150 million out of the scheme. Neither appellant participated in the fraud itself. Their involvement was at the laundering stage: they travelled from Australia to Hong Kong, boarded a Macau-based casino boat, and used funds from a fraudulently funded account to play baccarat over several hours. Receipts totalling approximately AUD $27 million were issued in their names at the end of the night. They lost approximately AUD $3.43 million in the course of the gambling.

The following day, the aiding-and-abetting appellant attempted to redeem one of those receipts but could not, because the fraud had by then been detected and the funds frozen. Both appellants denied guilt at trial and showed no remorse.

  • Whether the sentences were in unjustifiable disparity with those imposed on co-offenders involved in other aspects of the same criminal undertaking
  • Whether the aiding-and-abetting appellant was denied procedural fairness at sentencing (specifically, whether the judge was required to flag that he might rely on his own assessment of the appellant's English proficiency rather than the expert opinion of a psychiatrist)
  • Whether the sentences were manifestly excessive
  • Whether the sentencing judge breached the principle in R v De Simoni (1981) 147 CLR 383 by taking into account conduct that constituted a more serious offence than the one charged
  • Whether certain other matters were properly taken into account in sentencing

Decision

Disparity with co-offenders: The Court examined the sentences imposed on a number of co-offenders, including participants in the underlying fraud, a man described as a "lowly player" messenger, and one offender ("X") who was convicted of the more serious conspiracy offence but received a shorter sentence. The Court found that X's more lenient sentence was explicable by his youth (aged 22 at the time), his very good prospects of rehabilitation, and the sentencing judge's finding that his culpability was limited to the amount in the specific account rather than the full $150 million. The Court was not satisfied that either appellant had a justifiable sense of grievance in relation to any co-offender's sentence.

Procedural fairness: McCallum J found, at [78], that there had been a denial of procedural fairness to the aiding-and-abetting appellant because the sentencing judge had drawn on his own assessment of the appellant's English proficiency, derived from the record of interview, without putting that assessment to the parties. Both McClellan CJ and Garling J disagreed with this conclusion. The majority held that a sentencing judge is not required to alert parties that he or she may prefer personal observation over expert evidence, and that the record of interview was a reliable and available source for the judge's assessment. Despite the disagreement on this point, all three judges agreed the orders should be the same: the denial of procedural fairness, even if established, did not affect the outcome.

Manifest excess and De Simoni: The Court rejected the contention that the sentences were manifestly excessive, accepting the sentencing judge's characterisation of these as very serious instances of the offence. The Court also found no breach of the De Simoni principle. Although the judge noted the broader criminal enterprise, he was careful to confine sentencing to what the appellants actually did, and made clear they were being sentenced for the laundering conduct and not the underlying fraud.

Overall: Leave to appeal was granted in each case but the appeals were dismissed.

Orders Made

  • Leave to appeal granted in each appeal
  • Appeals dismissed

Key Takeaways

  • A sentencing judge is not required to alert counsel that the judge may draw on personal observation of an offender (such as from a police interview) rather than accept expert evidence on a matter such as English language proficiency; the majority of the Court of Criminal Appeal held that such a step does not constitute a denial of procedural fairness.
  • When considering disparity with co-offenders, the court examines whether the applicant has a justifiable sense of grievance in light of the specific circumstances distinguishing each offender's role, culpability, age, and prospects of rehabilitation, rather than conducting a simple comparison of sentences.
  • The De Simoni principle requires that offenders be sentenced for what they did, not for a more serious offence disclosed by the surrounding circumstances; references to a broader criminal enterprise are permissible only to contextualise the offending, not to increase the sentence beyond what the proven conduct warrants.
  • Participation in the laundering stage of a large-scale fraud, even where the offender took no part in the underlying fraud itself, can attract a very high level of moral culpability where the laundering was a necessary component of completing the criminal enterprise.
  • In dismissing both appeals, the Court confirmed that the absence of remorse, continued denial of guilt, and prior convictions are legitimate factors reducing the sentence discount an offender might otherwise receive.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Criminal Code 1995 (Cth), ss 11.2(1), 11.5(1), 400.3(1), 400.3(2)

Cases:
- R v De Simoni [1981] HCA 31; 147 CLR 383
- Ansari v R [2007] NSWCCA 204; 173 A Crim R 112
- Button v R [2010] NSWCCA 264
- Chen v R [2009] NSWCCA 66
- Hili v R; Jones v R [2012] HCA 45
- Jimmy v R [2010] NSWCCA 60
- Pantorno v R [1989] HCA 18; 166 CLR 466
- Pham v R [2009] NSWCCA 25; 193 A Crim R 190
- Re Minister for Immigration and Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
- R v Guo; R v Quian [2010] NSWCCA 170
- R v Hart (NSWCCA, unreported, 26 July 1999)
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Ryan [2003] NSWCCA 202; 141 A Crim R 403
- R v Van Dang Dran [2007] NSWDC 310
- R v Wing Cheong Li; Wing Cheong Li v R [2010] NSWCCA 125; 202 A Crim R 195
- Regina v Z [2006] NSWCCA 342; 167 A Crim R 436
- Weir v R [2011] NSWCCA 123