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Court of Criminal Appeal 10 November 2014

Regina v Qian Lin

[2014] NSWCCA 254

Fraud & dishonesty
APPEAL MONEY LAUNDERING CROWN APPEAL UPHELD SENTENCE MANIFESTLY INADEQUATE RESPONDENT RE SENTENCED

Citation: Regina v Qian Lin [2014] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 10 November 2014
Judges: Leeming JA, Fullerton J, Bellew J

Background

The respondent pleaded guilty in the Local Court to three offences: dealing with money exceeding $100,000 intending it would become an instrument of crime (a federal money laundering offence carrying a maximum of 20 years imprisonment), possessing equipment for making false documents, and dealing with identification information to facilitate forgery. She appeared for sentence in the District Court in April 2014.

The sentencing judge imposed a fixed term of 9 months imprisonment for the money laundering offence, running from 4 April 2014 to 3 January 2015. The Crown appealed on the ground that the sentence for the money laundering offence was manifestly inadequate.

By the time the appeal was heard, the respondent had served most of the 9-month sentence. Evidence before the Court on re-sentence included a clinical psychologist's report, an affidavit addressing the respondent's deteriorating mental health in custody, and material concerning the impact of her incarceration on her two primary school-aged children.

  • Whether the sentence imposed for the money laundering offence was manifestly inadequate, warranting a Crown appeal
  • What weight should be given to mitigating factors including early plea, family hardship, mental health, remorse, and prospects of rehabilitation
  • Whether the Court should exercise its residual discretion to dismiss the Crown appeal despite finding error, given the respondent had nearly served the original sentence by the time of the appeal

Decision

The Court divided two to one on the question of the residual discretion, with the majority (Leeming JA and Bellew J) upholding the appeal and re-sentencing the respondent. All three judges agreed the original 9-month sentence for the money laundering offence was erroneously lenient, given the seriousness of the offending, the large sum involved, the repeated nature of the conduct, and the need for general deterrence.

Bellew J, with whom Leeming JA agreed, set out the reasoning on re-sentence in detail. The offending involved a significant amount of money and was motivated by financial gain. General deterrence was an important consideration in money laundering matters, and the original sentence failed to give it proper weight. The replacement sentence of 1 year and 3 months, while longer, still reflected considerable leniency having regard to the respondent's early plea, family circumstances, remorse, and excellent rehabilitation prospects.

Fullerton J dissented on disposition only. Her Honour accepted the sentence was inadequate but considered the combination of the respondent's deteriorating mental health in custody, the adverse impact on her children, and the fact that re-sentencing would extend her minimum custody period by only six months were sufficient grounds to exercise the residual discretion and dismiss the appeal. Leeming JA rejected that approach, noting there had been no significant delays in the appeal process and that the near-completion of the original sentence was a direct consequence of its manifest inadequacy rather than an independent reason to leave it undisturbed.

On the statutory requirement under the Crimes Act 1914 (Cth) to make a recognizance release order, Bellew J declined to do so pursuant to s 19AC(4), giving particular weight to the facts that the respondent had acted under another person's direction, had no prior criminal history, and presented no risk of reoffending.

Orders Made

  • The Crown appeal against sentence is upheld.
  • The sentence imposed for the charge under s 400.4(1) of the Criminal Code 1995 (Cth) is quashed.
  • In lieu thereof, the respondent is sentenced to 1 year and 3 months imprisonment, dated from 4 April 2014 and expiring on 3 July 2015.

Key Takeaways

  • A sentence for money laundering involving over $100,000, repeated conduct, and a financial motive must reflect general deterrence as a significant sentencing consideration, even where substantial personal mitigation exists.
  • The Court of Criminal Appeal confirmed that where a sentence is manifestly inadequate, the fact that the respondent has nearly served it before the appeal is decided does not, of itself, justify exercising the residual discretion to dismiss the Crown appeal.
  • Serious family hardship and deteriorating mental health in custody were accepted as genuine mitigating factors, but the majority held they found appropriate expression in a moderately lenient re-sentence rather than in declining to correct the error altogether.
  • Under s 19AC(4) of the Crimes Act 1914 (Cth), a court may decline to make a recognizance release order where it is satisfied, having regard to the nature of the offending and the offender's antecedents, that such an order is not appropriate, provided it records its reasons.
  • Fullerton J's dissent illustrates that the residual discretion to dismiss a successful Crown appeal remains available in principle where compelling personal circumstances make re-sentencing productive of significant additional hardship, though the majority here found those circumstances insufficient.

Legislation and Cases Referenced

Legislation
- Criminal Code 2005 (Cth), s 400.4(1)
- Crimes Act 1914 (Cth), including s 19AC
- Crimes Act 1900 (NSW), ss 192J, 256(1)

Cases
- Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638
- Everett v R [1994] HCA 49; (1994) 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Griffiths v R [1977] HCA 44; (1977) 137 CLR 293
- Markarian v The Queen (2005) 228 CLR 357
- R v Girard [2004] NSWCCA 170
- R v Guo; R v Quian [2010] NSWCCA 170; (2010) 201 A Crim R 403
- R v Holder and Johnston [1983] 3 NSWLR 245
- R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370
- R v Li (2010) 202 A Crim R 195
- R v MD and ors [2005] NSWCCA 342; (2005) 156 A Crim R 372
- R v Nguyen [2006] NSWCCA 369; (2006) 166 A Crim R 124
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
- R v X [2004] NSWCCA 93
- R v Zerafa [2013] NSWCCA 222