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Court of Criminal Appeal 26 September 2018

Ramos v R

[2018] NSWCCA 206

DrugsFraud & dishonesty
SENTENCING DEALING WITH PROCEEDS OF CRIMES CRIMES ACT S 193B(2) POSSESSION OF $12,900 ADMISSION ONE

Citation: Ramos v R [2018] NSWCCA 206
Court: Court of Criminal Appeal, NSW
Date: 26 September 2018
Judges: Ward CJ in Eq, Bellew J, Beech-Jones J (all agreeing)

Background

The appellant, a Dutch national residing in NSW, pleaded guilty in the District Court to two offences arising from events on 22 February 2015. The first was possessing a commercial quantity of MDMA reasonably suspected of having been unlawfully imported. The second was dealing with the proceeds of crime, namely $12,900 in cash found at his Bungwahl residence, knowing it to be proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW).

The appellant had admitted to police that approximately one third of the cash came from drug sales. The agreed facts and forensic evidence established that MDMA, totalling over six kilograms in bulk weight, had been concealed in wine bottles imported from the Netherlands.

The District Court sentenced the appellant to six years' imprisonment for the drug offence and three years for the proceeds offence, with the non-parole periods running cumulatively. The appellant sought leave to appeal the sentence for the proceeds offence only, contending the sentencing judge had made a specific error in assessing its objective seriousness.

  • Whether the sentencing judge erred by finding that the proceeds of crime offence was "a little above the middle of any scale constructed for such offences."
  • Whether that finding was open on the available facts, given that the admitted drug-derived portion was approximately one third of $12,900.
  • If error was established, how the sentencing discretion should be re-exercised.

Decision

The Court of Criminal Appeal found that the sentencing judge's characterisation of the proceeds offence as sitting above the midpoint of the range was not open on the evidence. The maximum penalty for the offence was 15 years' imprisonment, and relatively little was known about the offending conduct beyond the admitted facts: the appellant possessed $12,900 in cash and conceded that only about one third of it derived from drug sales. The Court found that, assessed on those facts alone, the offence did not reach the level of seriousness the sentencing judge assigned to it.

The Court also declined to accept the Crown's submission on re-sentencing that all of the $12,900 should be inferred to have been derived from crime. No such submission had been put to the sentencing judge, and it had not been raised with the appellant during his evidence. Drawing that inference on appeal would have been procedurally unfair, and in any event it was not the only reasonable inference available on the facts.

The Court re-exercised the sentencing discretion. It maintained wholly cumulative non-parole periods for the two offences but allowed some concurrency between the head sentences. A finding of special circumstances was preserved, consistent with the original sentencing. The new sentence for the proceeds offence was substantially shorter than the original.

Orders Made

  • Leave to appeal against the sentence for the s 193B(2) offence granted.
  • Appeal allowed.
  • The appellant re-sentenced for the proceeds of crime offence to 13 months' imprisonment commencing 22 February 2015 and expiring 21 March 2016, with a non-parole period of 9 months expiring 21 November 2015.
  • The sentence for the drug offence varied so as to commence 22 November 2015 and expire 21 November 2021, with the non-parole period of 4 years expiring 21 November 2019.

Key Takeaways

  • A sentencing judge's finding that a proceeds of crime offence sits above the midpoint of seriousness must be grounded in the actual facts established. Where little is known about the offending and the admitted criminal proceeds represent only a fraction of the sum in question, such a finding may constitute appealable error.
  • Under s 193B(2) of the Crimes Act 1900 (NSW), the maximum penalty is 15 years' imprisonment. The Court of Criminal Appeal's re-sentencing to 13 months reflects how substantially the objective gravity of the offence was recalibrated once the error was identified.
  • Where a submission or inference was not raised before the sentencing court, the Court of Criminal Appeal will be reluctant to rely on it when re-sentencing on appeal, particularly where doing so would be productive of unfairness to the appellant.
  • Allowing concurrency between head sentences while maintaining cumulative non-parole periods is a mechanism available when re-sentencing across multiple counts with different commencement dates.
  • The Court's refusal to infer that the entirety of the cash was criminally derived illustrates the principle that inferences adverse to a defendant must be reasonably available on the evidence, not merely possible.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193B
- Criminal Appeal Act 1912 (NSW), s 7
- Criminal Code 1995 (Cth), s 307.8
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Burns v R [2010] NSWCCA 279
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mulato v R [2006] NSWCCA 282
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- R v Campbell [2014] NSWCCA 102
- Smaragdis v R [2010] NSWCCA 276