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14
Court of Criminal Appeal 6 April 2018

Huang v R

[2018] NSWCCA 57

Also reported as (2018) 96 NSWLR 743
Fraud & dishonesty
CRIMINAL LAW APPEAL SENTENCING

Citation: Huang v R [2018] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 6 April 2018
Judges: Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum J, Bellew J

Background

The appellant was convicted of dealing in proceeds of crime contrary to s 400.3(1) of the Criminal Code (Cth). Between March and May 2013, he converted over $3.2 million AUD into Chinese Yuan Renminbi or Hong Kong Dollars at Sydney money remitters, using false identities, and then transferred the funds offshore.

The principal charge related to six transactions totalling $1,349,000. A further nine offences involving $1,867,500 in transfers were taken into account at sentencing under s 16BA of the Crimes Act 1914 (Cth). Those additional offences involved using false identities to produce a driver licence and to commence receiving a designated financial service, contrary to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).

The appellant pleaded guilty on the day the matter was listed for trial and was sentenced to eight years' imprisonment with a non-parole period of five years. He appealed on three grounds: the treatment of the s 16BA offences at sentencing, the refusal to allow a discount for the utilitarian value of his guilty plea, and manifest excess.

  • Whether the sentencing judge erred in how he took into account the s 16BA offences, including whether he improperly imported an element of intention not forming part of those offences
  • Whether the utilitarian value of a guilty plea is a relevant sentencing consideration for a Commonwealth offence, and whether the sentencing judge erred in declining to apply such a discount
  • Whether the sentence of eight years' imprisonment was manifestly excessive

Decision

Ground 1: Treatment of the s 16BA offences

The Court unanimously held that the principle preventing punishment for uncharged offences (from R v De Simoni) only applies where a person is actually sentenced for conduct constituting an uncharged offence or aggravating circumstance. Taking s 16BA offences into account does not of itself engage that principle. The majority (Beazley P, Hoeben CJ at CL, and Bellew J) found no error in the sentencing judge's approach, including his reference to the appellant having used "the same method and with the same intention" when conducting the transfers subject to the s 16BA offences. McCallum J dissented on this point, finding that the sentencing judge had improperly imported an element of intention that was not part of the s 16BA offences when assessing their objective seriousness. Bathurst CJ concluded there was no error on the basis that the sentencing judge's ultimate finding of high objective criminality rested on the indictment offence alone.

Ground 2: Guilty plea discount for Commonwealth offences

The Court unanimously held, following Xiao v R [2018] NSWCCA 4, that the utilitarian value of a guilty plea is a relevant consideration when sentencing for a Commonwealth offence. The sentencing judge erred in declining to apply any discount. However, because the plea was entered on the date set down for trial, the discount was limited to 10 per cent. The Court drew guidance from R v Thomson; R v Houlton while cautioning against elevating that guideline to a fixed norm for federal offences, noting that s 16A of the Crimes Act 1914 (Cth) requires a sentence appropriate to all the circumstances of the particular offence.

Ground 3: Manifest excess

The Court found it unnecessary to determine this ground conclusively, given the appeal succeeded on ground 2. However, the Court indicated that, had it been required to decide the point, the sentence would not have been found manifestly excessive in light of the objective seriousness of the offending, the appellant's subjective circumstances, his rehabilitation prospects, and the importance of general deterrence.

Orders Made

• Resentence the applicant to a term of imprisonment for 5 years and 6 months with a non-parole period of 3 years and 8 months

Key Takeaways

  • The utilitarian value of a guilty plea is a relevant sentencing consideration for Commonwealth offences, and a failure to apply any discount for that utility constitutes error. The Court of Criminal Appeal confirmed this position following its earlier decision in Xiao v R [2018] NSWCCA 4.
  • Guidance from the Thomson/Houlton scale remains useful for quantifying a guilty plea discount in federal matters, but courts must not treat that scale as a fixed norm. Section 16A of the Crimes Act 1914 (Cth) requires the sentence to be appropriate to all individual circumstances of the particular offence.
  • A plea entered on the day the matter is set down for trial attracted only a 10 per cent discount for utilitarian value, reflecting the limited practical benefit to the administration of justice at that late stage.
  • The De Simoni principle, which prevents punishment for uncharged offences, is not engaged simply by the sentencing court taking into account s 16BA offences. That principle applies only where a court effectively sentences an offender for conduct constituting an uncharged offence or aggravating circumstance.
  • Where a majority and a minority of the Court differ on whether a sentencing judge improperly imported elements from the principal offence into the assessment of s 16BA offences, the point remains one requiring care: the nature and seriousness of s 16BA offences are relevant context, but attributing to them elements they do not contain risks appealable error.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 400.3(1)
- Crimes Act 1914 (Cth), ss 16A, 16BA, 19AB
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), ss 137, 140
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22
- Crimes (Appeal and Review) Act 2001 (NSW), s 64A

Cases:
- Xiao v R [2018] NSWCCA 4
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Nguyen v R (2016) 256 CLR 656; [2016] HCA 17
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1990 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Hart v Attorney-General for New South Wales [2016] NSWCCA 71
- Zhao v R [2016] NSWCCA 179
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Islam v R [2016] NSWCCA 233
- R v Huang; R v Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259