Citation: Nguyen v R [2019] NSWCCA 44
Court: NSW Court of Criminal Appeal
Date: 13 March 2019
Judges: Leeming JA (primary reasons); Harrison J and Davies J (agreeing)
Background
The appellant pleaded guilty to one count of dealing with money reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code (Cth). The offence related to events on 30 January 2015, when the appellant collected approximately $745,050 in cash from an unknown man in Drummoyne and transported it to a contact in Surry Hills, for which she was to be paid $2,000. Police had been intercepting her mobile phone since December 2014 as part of a joint money laundering investigation.
The intercepted calls established that the appellant coordinated the transaction with multiple associates in Australia and Vietnam, confirmed the amount and timing, and took steps to conceal her involvement, including using a secondary phone. She was apprehended outside the Surry Hills delivery address still carrying the two bags of cash.
The sentencing judge imposed a total term of 14 months imprisonment, with the appellant to be released after 9 months on a recognisance to be of good behaviour for the balance. She sought leave to appeal against that sentence, filing her application more than five months after the sentence was imposed and after she had already served more than half of the non-parole period.
Legal Issues
- Whether the sentencing judge failed to give proper weight to the utilitarian value of the guilty plea
- Whether the sentencing judge erred in assessing the objective seriousness of the offending
- Whether the sentence was manifestly excessive
Decision
On the question of the guilty plea, the Court found no error in the sentencing judge's approach. The sentencing judge had explicitly acknowledged the utilitarian benefit of the plea in his reasons, and the discount applied was not shown to be inadequate.
On objective seriousness, the Court rejected the submission that the judge had misdirected himself. The amount of cash involved, approximately $745,000, was more than seven times the $100,000 threshold required to establish the offence under s 400.9(1). The appellant's level of coordination, her use of a secondary phone to avoid detection, and her facilitation of a matching transaction in Vietnam all supported a finding of significant criminal involvement.
The Court also rejected the manifestly excessive ground. A total sentence of 14 months with nine months to serve represented less than half the maximum term and only one quarter of the maximum in terms of actual custody. The Court noted that the maximum penalty had been increased from two to three years in 2010, reflecting a legislative recognition of the seriousness of money laundering offences.
The Court also addressed a subsidiary submission that the sentencing judge had failed to consider alternatives to full-time imprisonment, including a recognisance release order or an intensive correction order. Reading the sentencing judge's reasons as a whole, the Court found that those alternatives had in fact been considered and rejected.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence of 14 months with nine months in custody was not manifestly excessive for a money courier handling more than $745,000 in suspected proceeds of crime, even for an offender with a guilty plea and mixed subjective circumstances.
- The amount of money involved relative to the statutory threshold is a relevant indicator of objective seriousness under s 400.9(1) of the Criminal Code (Cth). Here, the sum was more than seven times the $100,000 minimum required to constitute the offence.
- A sentencing judge's reasons need not separately and expressly address every alternative mode of serving a sentence if those alternatives can be seen to have been considered and rejected on a fair reading of the reasons overall.
- Under s 400.9(1), the legislature's 2010 increase of the maximum penalty from two to three years signals an elevated assessment of the seriousness of money laundering offences, and sentencing courts may treat that increase as a relevant contextual factor.
- No error was established in the utilitarian discount applied for the guilty plea where the sentencing judge had expressly acknowledged the plea's value in his reasons.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), s 400.9(1)
- Crimes Act 1914 (Cth), ss 16A, 16AC
- Criminal Appeal Act 1912 (NSW), s 5
Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
- EF v R [2015] NSWCCA 36
- R v Bugeja [2001] NSWCCA 196