Citation: R v Moukhallaletti [2019] NSWDC 311
Court: District Court of New South Wales
Date: 5 July 2019
Judge(s): Weber SC DCJ
Background
The offender was convicted by jury on two counts of dealing with proceeds of crime under s 193B(1) of the Crimes Act 1900 (NSW). The first count related to $89,400 in cash used between October and November 2013 to purchase a luxury motor vehicle. The second count concerned $200,000 in cash laundered between November and December 2013 to fund the deposit on a neighbouring property.
In both counts, the offender used his brother-in-law as an intermediary. The brother-in-law deposited cash into personal bank accounts in increments designed not to trigger financial monitoring alerts, then transferred the funds to the offender's business account or directly to a car dealer. The brother-in-law retained a portion of the funds as payment for his involvement.
The offender had a significant prior criminal history, including previous convictions for drug trafficking and money laundering. At the time of sentencing he was in remand on other offences, making him eligible for release on parole on 17 January 2023.
Legal Issues
- What was the objective seriousness of each money laundering offence, given the absence of a standard non-parole period?
- What weight should be given to the offender's status as the primary organiser and beneficiary of the laundering scheme?
- How did the offender's prior criminal history, lack of demonstrated remorse, and current remand status bear on specific and general deterrence?
- How should the principles of totality, accumulation, and concurrency be applied to sentences that must be served alongside an existing custodial term?
- Whether "special circumstances" existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) justifying a departure from the standard ratio of non-parole period to head sentence?
Decision
The court assessed the objective seriousness of both offences as meaningful but not at the most serious end of the spectrum. The laundering lacked organisational sophistication, and the scheme involved only one intermediary. However, the total sum laundered across both counts was approximately $300,000, and the offender was the principal organiser and almost the entire financial beneficiary, with the brother-in-law retaining only about $15,000 in total.
The offender's prior history was a significant aggravating factor. He had previously been convicted of both drug trafficking and money laundering, making specific deterrence a weighty consideration. The court found no fresh evidence of remorse or rehabilitation, and no basis to conclude the offender was unlikely to reoffend. General deterrence was also a prominent consideration given the nature of the offending.
On accumulation and totality, the court applied the principles from Pearce v The Queen and Mill v The Queen. Both parties agreed that only partial accumulation on the existing sentence was appropriate to avoid a crushing or disproportionate outcome. The court structured the sentences to commence on 17 July 2022, with the effect that the offender's earliest parole eligibility across all matters would be extended by one year beyond his existing parole date, to 17 January 2024.
The court accepted that the interaction of totality, accumulation, and concurrence principles constituted "special circumstances" under s 44(2), justifying a non-parole period shorter than the standard statutory proportion. Both parties had agreed on this point.
Orders Made
- Count 1: Imprisonment for 2 years, with a non-parole period of 1 year. Sentence to commence 17 July 2022; non-parole period to expire 16 July 2023; head sentence to expire 16 July 2024.
- Count 2: Imprisonment for 3 years, with a non-parole period of 1 year and 6 months. Sentence to commence 17 July 2022; non-parole period to expire 16 January 2024; head sentence to expire 16 July 2025.
- Both sentences ordered to run concurrently with each other, and partially accumulated on the existing sentence.
Key Takeaways
- The District Court confirmed that assessing objective seriousness for offences under s 193B of the Crimes Act 1900 requires consideration of multiple factors: the manner of dealing, the level of planning and sophistication, the underlying criminal conduct, the value of the proceeds, and any harm occasioned.
- Being the primary organiser and near-total financial beneficiary of a laundering scheme is a significant aggravating factor in the assessment of objective seriousness, even where the scheme itself is not especially sophisticated.
- Where an offender has prior convictions for the same type of offending, both specific and general deterrence carry substantial weight at sentencing, and the absence of demonstrated remorse or evidence of rehabilitation limits the scope for leniency.
- Under the totality principle, partial accumulation of new sentences onto an existing custodial term is appropriate where full accumulation would produce a crushing or disproportionate overall sentence.
- The need to apply totality, accumulation, and concurrence principles together can itself constitute "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, warranting a non-parole period below the standard statutory proportion.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 193B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 47(2)(b)
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases
- Gore v R [2010] NSWCCA 330
- Johnson v The Queen (2004) 78 ALJR 616
- Majeed v R [2013] VSCA 40
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Ansari (2007) 70 NSWLR 89
- R v Guo (2010) 201 A Crim R 403
- R v Huang (2007) 174 A Crim R 370
- R v Li (2010) 202 A Crim R 195
- R v WC [2008] NSWCCA 268
- Ramos v R [2018] NSWCCA 206
- The Queen v Olbrich (1999) 199 CLR 270