Citation: Islam v R [2016] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 28 October 2016
Judges: Johnson J (with R A Hulme J and Davies J agreeing)
Background
The appellant had pleaded guilty in the Local Court to two money laundering offences under the Criminal Code 1995 (Cth) and was committed to the District Court for sentence. The charges arose from events on 1 August 2012 at Sydney International Airport, when the appellant and co-offenders attempted to carry over AUD $1 million in cash concealed in designer shoe bags inside checked luggage, bound for Bangladesh. The cash had been distributed by the appellant into the suitcases of his father, two co-offenders, and his own luggage, with each traveller falsely declaring on their outgoing passenger cards that they were not carrying more than $10,000.
Count 1 involved dealing with money reasonably suspected of being proceeds of crime to the value of $100,000 or more (maximum three years' imprisonment). Count 2 involved dealing with money valued at $1 million or more intending it to become an instrument of crime (maximum 25 years' imprisonment). A further offence of attempting to move physical currency out of Australia without a report was taken into account on sentence for Count 2.
The District Court sentenced the appellant to a total effective term of six years, with a non-parole period of four years. The appellant sought leave to appeal on three grounds.
Legal Issues
- Whether the sentencing judge erred in characterising the Count 2 offending, specifically in the approach taken to the "instrument of crime" element of the offence under s 400.3(1) of the Criminal Code 1995 (Cth)
- Whether the sentencing judge erred by applying a presumptive non-parole period when setting the non-parole period for a federal offence
- Whether the sentencing judge erred by giving no weight to the appellant's contrition on the basis that it was not supported by sworn evidence
Decision
Ground 1: Instrument of crime characterisation. The Court found that the sentencing judge had erred in his characterisation of how the money was intended to be used as an instrument of crime. This error affected the assessment of the objective gravity of the Count 2 offence and constituted a sentencing error warranting intervention.
Ground 2: Presumptive non-parole period. The Court accepted that the sentencing judge had impermissibly applied a presumptive non-parole period when fixing the federal sentence. Federal sentencing under the Crimes Act 1914 (Cth) does not operate with the same presumptive non-parole period framework applicable to NSW offences under the Crimes (Sentencing Procedure) Act 1999 (NSW). This was a further error.
Ground 3: Contrition. The Court found no error in the sentencing judge's treatment of contrition. The judge had declined to give weight to expressed contrition because it was not supported by sworn evidence, and the Court held this approach was open and did not constitute error.
Resentencing. Having established error on the first two grounds, the Court turned to whether a lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912. The Court noted these were serious examples of money laundering offending. The appellant's criminality was assessed as greater than that of his co-offenders, partly reflecting his central organising role and his prior criminal history. Nonetheless, a lesser sentence was warranted, and the Court resentenced accordingly.
Orders Made
- Leave to appeal against sentence granted
- Appeal allowed; sentences imposed on 8 August 2014 quashed
- Count 1: imprisonment for nine months commencing 25 July 2014
- Count 2 (taking into account the s 53(1) offence under s 16BA Crimes Act 1914 (Cth)): imprisonment for four years and nine months commencing 25 January 2015 and expiring 24 October 2019
- Single non-parole period of three years and six months commencing 25 July 2014 and expiring 24 January 2018 (approximately 62% of the total head sentence)
Key Takeaways
- Applying a presumptive non-parole period framework applicable to NSW state offences to a federal offence constitutes a sentencing error; federal sentencing must follow the distinct regime under the Crimes Act 1914 (Cth).
- A sentencing court's characterisation of the "instrument of crime" element in a s 400.3(1) Criminal Code 1995 (Cth) offence directly affects the assessment of objective gravity, and an error in that characterisation is a correctable error on appeal.
- No error arises from a sentencing judge declining to give weight to expressions of contrition that are not supported by sworn evidence.
- In dismissing the contrition ground while upholding the other two, the Court of Criminal Appeal confirmed that not every ground raised in a sentence appeal will succeed even where error is established elsewhere.
- Where sentencing error is found, the Court of Criminal Appeal will still assess whether a lesser sentence is actually warranted, having regard to the full picture of the offending, the offender's relative culpability compared to co-offenders, and prior criminal history.
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), ss 400.3(1), 400.9(1)
- Crimes Act 1914 (Cth), ss 16BA, 19AB
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 53(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Proceeds of Crime Act 2002 (Cth)
- Crimes Act 1900 (NSW)
Cases
- Alvares v R [2011] NSWCCA 33
- Bugmy v The Queen [1990] HCA 18
- Deakin v The Queen [1984] HCA 31
- Hili v The Queen [2010] HCA 45
- Kentwell v The Queen [2014] HCA 37
- McMahon v R [2011] NSWCCA 147
- Milne v The Queen [2014] HCA 4
- Mun v R [2015] NSWCCA 234
- Power v The Queen [1974] HCA 26
- R v Ansari [2007] NSWCCA 204
- R v Guo; R v Qian [2010] NSWCCA 170
- R v Huang; R v Siu [2007] NSWCCA 259
- R v Palu [2002] NSWCCA 381
- R v Qutami [2001] NSWCCA 353
- Stock v R [2011] NSWCCA 49