Citation: R v Tooth [2013] NSWDC 120
Court: District Court of New South Wales
Date: 11 February 2013
Judge(s): S Norrish QC DCJ
Background
The offender, William Richard Tooth, appeared for sentence after pleading guilty at the Local Court to dealing with the proceeds of crime, contrary to s 193B(3) of the Crimes Act 1900. The charge related to a single transaction on 22 July 2010 in which $1,102,384 was transferred into his bank account. The funds had been fraudulently taken from a Westpac Bank customer without her knowledge.
The offender was not the organiser of the scheme. Rather, the Crown alleged he acted under the instruction of others, disbursing the funds in several directions: over $550,000 to pay out a mortgage over a property belonging to his then partner, and further amounts moved to other accounts. His conduct was characterised as reckless, rather than intentional, as to whether the funds were proceeds of crime.
The sentencing also required consideration of parity with a co-offender, Bashrun Bothra, a Westpac Bank employee who had pleaded guilty to the more serious s 193B(1) offence of knowingly dealing with the same proceeds. Three other accused were at the time awaiting trial on related charges.
Legal Issues
- What was the appropriate starting-point sentence for the s 193B(3) offence before discounts?
- What discount was warranted for the utilitarian value of the guilty plea?
- What discount was warranted for past and future cooperation with authorities?
- Whether the aggregate discount could properly exceed the ordinary maximum of 25% for a plea alone, having regard to cooperation?
- Whether parity with the sentence imposed on Bothra required adjustment?
- Whether special circumstances existed to justify a non-parole period shorter than the statutory default ratio?
- Whether full-time custody was appropriate, or whether a suspended sentence was open?
Decision
His Honour set a starting-point sentence of four years and six months before any discounts. The offence was treated as serious, involving a large sum of money and a degree of participation in a broader criminal scheme, even accounting for the offender's recklessness rather than knowledge. The maximum penalty of ten years imprisonment reflected the gravity Parliament attached to this category of offending.
His Honour applied a combined discount of 55 percent. This comprised 25 percent for the utilitarian benefit of the guilty plea, 20 percent for past cooperation with police, and a further 10 percent for anticipated future cooperation in the trials of co-accused. The court was satisfied that cooperation of this kind warranted a discount beyond what the plea alone would attract, consistent with the sentencing principles applicable to informants and cooperating witnesses.
After applying the 55 percent discount, the sentence was reduced to two years and one week. His Honour made clear that even if the discounted sentence had fallen at or below two years, he would not have suspended the term, given the objective seriousness of the offending and the need for general deterrence. The non-parole period was fixed at twelve months, with His Honour finding special circumstances in the offender's need for supervision on release and the unusual nature of his custodial experience, particularly the likelihood of requiring protective custody.
His Honour raised, but was unable to resolve on the evidence, a concern about the offender's safety in custody given the alleged reputations of others involved in the broader criminal activity. This was noted as a matter for custodial authorities.
Orders Made
- Offender convicted of dealing with proceeds of crime contrary to s 193B(3) of the Crimes Act 1900
- Sentenced to a total term of two years and one week's imprisonment
- Non-parole period of twelve months, commencing 11 February 2013 and expiring 10 February 2014
- Balance of sentence of one year and one week, expiring 17 February 2015
- Directed to be released to parole at the conclusion of the non-parole period, subject to supervision by the Parole Authority and such conditions as it considers appropriate
Key Takeaways
- A combined discount for guilty plea and cooperation can substantially exceed the standard 25 percent utilitarian plea discount, where the cooperation is genuine, substantial, and extends to future testimony in co-accused trials.
- The District Court treated recklessness as to the proceeds-of-crime character of funds as a significant mitigating factor compared with the knowing and intentional conduct charged under s 193B(1), justifying a lower starting point and a reduced sentence relative to the co-offender Bothra.
- Full-time custody was imposed despite the total sentence being just over two years, confirming that the objective seriousness of proceeds-of-crime offending at this scale can preclude a non-custodial alternative regardless of the final term reached after discounting.
- Special circumstances were found to justify a non-parole period representing roughly half the total term, well below the statutory default of two-thirds, reflecting the offender's likely need for protective custody and the adjustment required to reintegration after an unusual custodial experience.
- Where a sentencing court is concerned about an offender's safety in custody due to the nature of co-offenders, it may raise that concern on the record, but absent evidence of the specific risk, the matter remains one for custodial authorities rather than a factor that can reduce the sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 93T, 192E(1)(b), 193B(1), 193B(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Ehrlich [2012] NSWCCA 38
- SZ v The Queen [2007] NSWCCA 19
- The Queen v OPA [2004] NSWCCA 464
- R v AMT [2005] NSWCCA 151
- R v Sukkar [2006] NSWCCA 92
- Lowe v The Queen (1987) 162 CLR 587
- Green v The Queen [2011] HCA 49
- R v Jimmy (2010) 77 NSWLR 540
- Wong v The Queen (2001) 207 CLR 584
- Pearce v The Queen (1998) 194 CLR 610
- R v JCE (2000) 120 A Crim R 18
- R v Zamagias [2002] NSWCCA 17
- R v Douar [2005] NSWCCA 455