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Court of Criminal Appeal 13 April 2017

Linggo v R

[2017] NSWCCA 67

Fraud & dishonesty
CRIMINAL LAW MONEY LAUNDERING AND COUNTER TERRORISM FINANCING ACT 2006 (CTH) TIMING OF THE PLEA STRENGTH OF THE CROWN CASE APPROPRIATE RANGE FOR DISCOUNT

Citation: Linggo v R [2017] NSWCCA 67
Court: Court of Criminal Appeal, NSW
Date: 13 April 2017
Judges: Beazley P; Walton J; R A Hulme J

Background

The appellant was found by Australian Federal Police in a Sydney hotel room counting over one million dollars in cash. He was charged with possessing money reasonably suspected to be the proceeds of crime (Criminal Code 1995 (Cth), s 400.9(1)) and causing another person to conduct transactions to avoid threshold reporting requirements (Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 142(1)).

The appellant pleaded guilty at the Local Court on 2 September 2015, approximately two months after his arrest. He was convicted and sentenced in the District Court in March 2016. The sentencing judge imposed a total effective term of imprisonment of three years and three months, with a direction that the appellant be released on recognizance after two years. The sentencing judge expressly stated that his intention was to impose an overall sentence of three years.

The appellant sought leave to appeal against sentence on four grounds, though two were pressed only conditionally. The two principal grounds were that the sentencing judge had given an inadequate discount for the guilty pleas, and that the judge had made a mathematical error resulting in a sentence three months longer than intended.

  • Whether the sentencing judge gave an inadequate discount for the appellant's guilty pleas under s 16A(2)(g) of the Crimes Act 1914 (Cth)
  • Whether the utilitarian value of a guilty plea is a relevant consideration when calculating a sentence discount for federal offences
  • Whether the strength of the Crown case is relevant only to contrition and remorse, or also to the degree of mitigation flowing from an early plea
  • Whether a discount under s 16A(2)(g) is conditional on an offender providing assistance to authorities
  • Whether the sentencing judge made a mathematical error resulting in a sentence three months longer than he intended

Decision

Ground 1: Inadequate discount for guilty plea

The sentencing judge allowed a reduction in sentence of between 4 and 10 per cent for the guilty pleas. The Court of Criminal Appeal found this range inadequate, holding that the judge had failed to pay appropriate regard to the extent to which the early guilty plea facilitated the course of justice. The Court also noted that using a range of percentages, rather than a single figure, is inadvisable because it introduces unsatisfactory uncertainty into the sentencing process.

The Court declined to resolve two contested questions of principle. First, it found it was not appropriate for a three-judge bench to determine whether the utilitarian value of a guilty plea (that is, the saving of court resources) should be taken into account when discounting sentences for federal offences, given a conflict in the authorities. Second, it was unnecessary to resolve whether the strength of the Crown case is relevant only to contrition and remorse or also to the degree of mitigation warranted by an early plea. The Court was clear, however, that a discount under s 16A(2)(g) does not depend on the offender having provided assistance to authorities; those are independent considerations.

Ground 4: Mathematical error

The Court found that the sentencing judge made a mathematical error. In constructing the two cumulative terms, the judge arrived at a total of three years and three months, despite expressly intending to impose an overall sentence of three years. The Court granted leave to appeal and allowed the appeal on this ground.

Resentencing

The Court determined that an appropriate discount for the guilty plea was 20 per cent. It maintained the sentence for count 1 unchanged and adjusted the sentence for count 2, resulting in an aggregate sentence of two years and nine months. The appellant was directed to be released on recognizance on 3 April 2017.

Orders Made

  • Leave to appeal against sentence granted; appeal allowed
  • Sentences imposed in the District Court on 7 March 2016 quashed
  • Count 1: imprisonment for 18 months commencing 30 June 2015, expiring 29 December 2016 (unchanged)
  • Count 2: imprisonment for 2 years and 2 months commencing 30 December 2015, expiring 28 February 2018
  • Appellant directed to be released on 3 April 2017 upon giving security without surety of $1,000 and entering into a recognizance to be of good behaviour until 28 February 2018

Key Takeaways

  • A mathematical error by a sentencing judge that produces a sentence longer than the judge expressly intended is a ground for appellate correction, and the Court of Criminal Appeal may adjust the sentence to reflect the judge's stated intention.
  • Under s 16A(2)(g) of the Crimes Act 1914 (Cth), a sentence discount for a guilty plea is not conditional on the offender having provided assistance to authorities; those are separate and independent considerations.
  • Using a range of percentages when quantifying a guilty plea discount is inadvisable, as the Court of Criminal Appeal confirmed it introduces uncertainty into the sentencing exercise.
  • Whether the utilitarian value of a guilty plea forms part of the discount for federal offences remains an unresolved question, with the Court declining to settle the conflict in authorities at a three-judge bench level.
  • A discount in the range of 4 to 10 per cent was found insufficient where an early guilty plea materially facilitated the course of justice; the Court substituted a 20 per cent discount in resentencing.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 400.9(1)
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 142(1)
- Crimes Act 1914 (Cth), ss 16A(2)(g), 19AC(1)
- Criminal Appeal Act 1912 (NSW)

Cases
- Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Tyler v The Queen; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247
- Lee v R [2012] NSWCCA 123
- Isaac v R [2012] NSWCCA 195
- C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81
- Gow v DPP (Cth) (2015) 298 FLR 397; [2015] NSWCCA 208
- R v Saleh [2015] NSWCCA 299
- Ellis v R [2015] NSWCCA 262
- Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
- DPP (Cth) v Thomas [2016] VSCA 237
- R v Harrington (2016) 11 ACTLR 215; [2016] ACTCA 10
- Pham v R [2010] NSWCCA 208
- R v Baleisuva [2004] NSWCCA 344