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Court of Criminal Appeal 25 February 2015

Almada v R

[2015] NSWCCA 19

Fraud & dishonesty
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE MONEY LAUNDERING OFFENCE NO ERROR ESTABLISHED CRIMINAL LAW APPEAL

Citation: Almada v R [2015] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 25 February 2015
Judges: Hoeben CJ at CL, Harrison J, R A Hulme J (judgment by R A Hulme J, others agreeing)

Background

The appellant was one of nine persons who attempted to board a flight from Sydney to Dhaka, Bangladesh on 1 August 2012, carrying cash concealed in designer shoe bags placed in their luggage. A co-offender named Islam had arranged the scheme and physically loaded the bags. When Customs searched the group, the appellant's suitcase contained $210,200 in cash. He told officers he was unaware of the contents, explaining he had not asked questions because he trusted his friend Islam.

The appellant was sentenced in the Sydney District Court in August 2014 for dealing with money exceeding $100,000 reasonably suspected of being proceeds of crime, an offence under s 400.9(1) of the Criminal Code 1995 (Cth), which carries a maximum of three years imprisonment. A further offence of attempting to move more than $10,000 out of Australia without reporting it was taken into account on sentence. The judge imposed 18 months imprisonment, with release after 9 months on a recognizance to be of good behaviour for 3 years, with 12 months supervision and a condition directed at drug rehabilitation.

The appellant sought leave to appeal against the sentence on two grounds: that the sentencing judge had wrongly assessed his objective criminality relative to a co-offender, and that the finding his prospects of rehabilitation were "guarded at best" was erroneous. He also argued the sentence was manifestly excessive.

  • Whether the sentencing judge erred in placing the appellant at a higher level of objective criminality than co-offender Chan.
  • Whether the judge erred in assessing the appellant's rehabilitation prospects as "guarded at best," on the basis that his conduct revealed a propensity to involve himself in such offending.
  • Whether the overall sentence of 18 months (with release at 9 months) was manifestly excessive.

Decision

On the first ground, R A Hulme J held that the appellant was bound by a concession made by senior counsel at the sentencing hearing. At that hearing, counsel had accepted that Chan's role was "at the lower end of the range" and that the two could be distinguished. Counsel on appeal sought to characterise those exchanges as mere "cross-communication," but the court rejected that characterisation, treating the concession as unequivocal. Following the principle in Zreika v R, the court held the contrary argument could not be raised on appeal, and in any event the Crown's reasons for distinguishing the two roles were well-founded.

On the second ground, the court accepted that a single criminal event does not ordinarily demonstrate a "propensity" in the same way that repeated offending might. However, the judge's overall assessment of rehabilitation prospects was held to be open on the facts as a whole. Those facts included the appellant's longstanding drug problem (he had used methamphetamine on the day of the offence), his denial that his drug use was a problem, and his prior criminal record. The error in reasoning, to the extent it existed, was not such that the assessment itself could not be sustained.

On manifest excess, the court acknowledged that reasonable minds might differ about the severity of the sentence, but declined to characterise it as manifestly excessive. The court emphasised the established importance of general deterrence in money laundering offences, while accepting the appellant's submission that deterrence weighs more heavily in cases involving extended offending. The aggravating feature that the appellant was subject to a good behaviour bond at the time of the offence, and his drug-related circumstances, further supported the sentence imposed.

Orders Made

  • Leave to appeal against sentence allowed.
  • Appeal dismissed.

Key Takeaways

  • A concession made by counsel at first instance binds the party on appeal; where senior counsel unequivocally accepted a factual distinction between co-offenders at sentencing, the appellant could not reopen that question before the Court of Criminal Appeal.
  • General deterrence carries significant weight in sentencing for money laundering offences, a principle repeatedly affirmed by the Court of Criminal Appeal, though its relative importance is greater where offending has been sustained over time rather than on a single occasion.
  • An assessment of rehabilitation prospects as "guarded" can be sustained even where it rests partly on imprecise reasoning, provided the overall conclusion was open on the totality of the subjective evidence before the sentencing court.
  • Being on conditional liberty (such as a good behaviour bond) at the time of an offence is an aggravating factor under the relevant sentencing framework, and its presence here provided further support for the sentence.
  • In dismissing the appeal, the court confirmed that acknowledging a sentence is at the higher end of what might reasonably be imposed is not sufficient to establish manifest excess; the sentence must be clearly and not merely arguably excessive.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 400.9(1)
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 53(1)(a)(ii)
- Crimes Act 1914 (Cth), s 20(1)(b)

Cases:
- Zreika v R [2012] NSWCCA 44
- R v Ansari [2007] NSWCCA 204; 70 NSWLR 89
- R v Li [2010] NSWCCA 125; 202 A Crim R 195
- R v Huang; R v Siu [2007] NSWCCA 259; 174 A Crim R 370
- R v Guo [2010] NSWCCA 170; 201 A Crim R 403
- R v Ly [2014] NSWCCA 78
- Shi v R [2014] NSWCCA 276
- Van Haltren v R [2008] 191 A Crim R 53
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Wong v The Queen [2001] HCA 64; 207 CLR 584