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Court of Criminal Appeal 5 October 2018

Fung v R

[2018] NSWCCA 216

Fraud & dishonesty
CRIME APPEAL AGAINST SENTENCE SENTENCE OFFENCES ON A S 16BA DOCUMENT SPECIFIC DETERRENCE GENERAL DETERRENCE

Citation: Fung v R [2018] NSWCCA 216
Court: NSW Court of Criminal Appeal
Date: 5 October 2018
Judge(s): White JA; Price J; Wilson J

Background

The applicant pleaded guilty in the Local Court to dealing with money exceeding $1,000,000 with the intention it would become an instrument of crime, contrary to s 400.3(1) of the Criminal Code 1995 (Cth). He was part of a sophisticated money laundering syndicate that deposited structured cash amounts of less than $10,000 into bank accounts opened in false names, before transferring bulk funds offshore to Hong Kong accounts.

The applicant personally made 72 cash deposits totalling $600,325 across seven days over five weeks. He also agreed, at sentencing, to have two further offences taken into account: possessing money reasonably suspected to be proceeds of crime, and possessing identification information relating to 11 persons intending to use it to commit an offence.

The District Court sentenced the applicant to six years and four months imprisonment with a non-parole period of four years and six months. The applicant sought leave to appeal on the sole ground that the sentencing judge failed to take into account the utilitarian value of his guilty plea when calculating the discount for that plea.

  • Whether the sentencing judge erred by failing to consider the utilitarian value of the guilty plea (that is, the practical benefit to the justice system of avoiding a trial) as a distinct consideration when allowing a discount for the plea.
  • Whether, if such error was established, a lesser sentence was nonetheless warranted on re-sentence.

Decision

Price J (with White JA and Wilson J agreeing) accepted that the sentencing judge had erred. The judge had treated remorse and the plea together without separately accounting for the utilitarian value of the guilty plea, which represents the benefit to the justice system from not requiring a contested hearing. This was an identifiable error that enlivened the Court's power to re-sentence.

Despite finding the error, Price J concluded that no lesser sentence than the one imposed should have been passed. The Court conducted a careful re-sentencing exercise, weighing the seriousness of the principal offence, the highly organised and sophisticated nature of the syndicate, the need for both specific and general deterrence, and the applicant's personal circumstances.

The Court placed the offending in the upper range of s 400.3(1) matters, noting that the syndicate involved false identities, structured deposits designed to evade financial reporting requirements, and the swift transfer of funds overseas. Both specific and general deterrence were found to carry significant weight in cases of this kind.

Comparing the outcome with recent guideline cases, including Xiao v R and Huang v R, the Court was satisfied the original sentence fell within an appropriate range. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the utilitarian value of a guilty plea (the benefit to the justice system from avoiding a trial) must be considered separately from remorse when a sentencing court applies a plea discount; conflating the two is a sentencing error.
  • In dismissing the appeal, the Court found that identifying a sentencing error does not automatically produce a different result: the question on re-sentence is whether a lesser sentence was warranted in light of all relevant factors.
  • Under s 400.3(1) of the Criminal Code, offending involving sophisticated syndicate structures, false identities, structured deposits to avoid financial reporting obligations, and large-scale offshore transfers places the conduct toward the upper range of seriousness.
  • Offences taken into account on a s 16BA document (the Commonwealth equivalent of a Form 1) can be considered for the purposes of personal deterrence and retribution, but their weight is more limited than if they formed the subject of separate charges.
  • Comparison with co-offender sentences remains a relevant consideration, but differences in the nature and extent of individual roles, including the number and value of transactions personally carried out, can justify different outcomes.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 372.2, 400.3, 400.9
- Crimes Act 1914 (Cth), ss 16A, 16BA

Cases:
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
- Huang v R [2018] NSWCCA 57
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Kim v The Queen; Fang v The Queen [2016] VSCA 238
- R v Van Lai Nguyen [2010] NSWCCA 226; (2010) 204 A Crim R 246
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146