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District Court 2 August 2019

R v Pan

[2019] NSWDC 407

Fraud & dishonesty
CRIMINAL SENTENCING POSSESS COUNTERFEIT MONEY LIMITED REMORSE CONVICTION

Citation: R v Pan [2019] NSWDC 407
Court: District Court of New South Wales
Date: 2 August 2019
Judge: Weinstein SC DCJ

Background

The offender, a Chinese national resident in Australia since 2006, appeared for sentencing after pleading guilty to one count of possessing counterfeit money, contrary to section 9(1)(a) of the Crimes (Currency) Act 1981 (Cth). The charge arose from a search of his Rhodes apartment by the Australian Federal Police on 26 October 2016, during which seven counterfeit $50 notes were found in a Louis Vuitton wallet and a further counterfeit note was located in a silver box in his bedroom. A digital money counter was also seized.

When spoken to by police, the offender confirmed the notes were counterfeit, stating he had verified them with a machine. He said the notes had come to him as winnings during a poker game at least a year earlier, and that he had not reported them because he did not want to cause trouble.

The guilty plea was entered on the first day of a trial that was also dealing with other charges, of which the offender was ultimately acquitted. The sentencing proceeded on the basis of an agreed statement of facts, a Sentencing Assessment Report (SAR) prepared by Community Corrections, and written and oral submissions from both parties.

  • Whether the court should decline to record a conviction and instead deal with the matter under section 19B of the Crimes Act 1914 (Cth)
  • What discount, if any, applied to the late guilty plea
  • Whether a prospect of deportation operated as a mitigating factor
  • The role of general and personal deterrence given the offender's lack of insight into his offending
  • The appropriate sentence, having regard to the objective seriousness of the offence and the offender's personal circumstances

Decision

Weinstein SC DCJ found the offence fell at the low end of the range of objective seriousness. The eight counterfeit notes had a face value of $400 and were kept out of circulation, which the court acknowledged. The maximum penalty for the offence is 600 penalty units or 10 years imprisonment, and the judge used that as a yardstick for comparison with the worst case of its kind.

The defence submitted the matter should be finalised without a conviction under section 19B of the Crimes Act 1914 (Cth). The court rejected that course. The judge was not satisfied that the discretion to dismiss without conviction was properly enlivened on the facts, and instead determined that section 20 of the same Act (a conditional release order with a conviction recorded) was the appropriate disposition.

The defence also argued the offender's early admissions to police should be treated as equivalent to an early guilty plea, attracting the maximum available discount. The court rejected that submission, holding that admissions at the time of arrest do not substitute for a timely plea of guilty. A discount of only 5% was allowed for the utilitarian value of the plea, given it was entered on the first day of trial when a conviction was described as inevitable.

The court found the offender showed little remorse or insight. The SAR recorded that he did not accept the criminality of his conduct, attributing possession of counterfeit notes to the ordinary risks of gambling. The prospect of deportation was expressly held not to be a mitigating factor in sentencing, consistent with the authorities cited. The comparable case of R v Gittani was distinguished on multiple grounds, including the far greater number of notes involved and that defendant's denial of their counterfeit nature.

Orders Made

  • The offender was convicted of possessing counterfeit money on or about 26 October 2016, contrary to section 9(1)(a) of the Crimes (Currency) Act 1981 (Cth)
  • A conditional release order was made under section 20 of the Crimes Act 1914 (Cth) for a term of two years
  • The offender was released on his own recognizance in the amount of $1
  • Conditions: the offender must be of good behaviour and must appear before the court if called upon during the term of the order

Key Takeaways

  • A plea of guilty entered on the first day of trial attracted only a 5% discount for utilitarian value; the District Court rejected the proposition that early admissions to police could substitute for a timely formal plea.
  • The prospect of deportation was held not to be a mitigating factor in sentencing under the applicable Commonwealth framework, consistent with existing authority.
  • Where an offender fails to acknowledge the criminality of their conduct even by the time of sentencing, the court treated personal deterrence as having some, albeit limited, role to play.
  • Under s 19B of the Crimes Act 1914 (Cth), a court may deal with a proved charge without recording a conviction, but the District Court declined to exercise that discretion here, finding section 20 (conviction with a conditional release order) more appropriate.
  • Comparable sentencing decisions are treated as blunt instruments; the court gave little weight to R v Gittani because of significant factual differences, including the volume of notes and the defendant's conduct in that case.

Legislation and Cases Referenced

Legislation
- Crimes (Currency) Act 1981 (Cth), s 9(1)(a)
- Crimes Act 1914 (Cth), Part 1B, ss 16A, 17A, 19B, 20

Cases
- Commissioner of Taxation v Baffsky [2001] NSWCCA 332
- R v Gittani [2002] NSWCCA 139