Citation: R v Whittall [2019] NSWDC 606
Court: NSW District Court
Date: 20 September 2019
Judge: Judge W Hunt
Background
The offender was sentenced on two counts of dealing with property reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code 1995 (Cth). Across both counts, the offender had dealt with a total of $2,675,673 between 30 December 2008 and 23 December 2013. The dealings involved possessing and disposing of funds through a range of purchases, including a house, luxury cars, jewellery, travel, furnishings, a sandstone wall, and cash transfers via Western Union.
The reason two separate charges were laid was a legislative amendment that took effect on 19 March 2010, which raised the maximum penalty for the offence. The first count covered dealings of approximately $1.55 million under the old penalty regime (maximum two years imprisonment and/or an $8,500 fine). The second count covered dealings of approximately $1.18 million under the new regime (maximum three years and/or a $19,800 fine).
The agreed facts established that the total value of the dealings was disproportionate to the offender's income or any legitimate source of funds. The offender's partner also received money from him for use toward the house purchase and travel.
Legal Issues
- What was the objective seriousness of two proceeds-of-crime offences spanning five years and involving over $2.67 million?
- What discount, if any, was appropriate for the guilty plea, given two earlier trial dates had been vacated before the plea was entered?
- How should the court treat the offender's cooperation and assistance to law enforcement authorities, including whether to apply an identifiable s 16AC discount?
- What sentencing regime was appropriate for a federal offender under Part 1B of the Crimes Act 1914 (Cth), including the requirement under s 17A to prefer non-custodial sentences where appropriate?
- How should the two sentences be structured and accumulated?
Decision
Judge Hunt assessed the objective seriousness of both offences as falling just below the mid-range. The court noted that the offence under s 400.9(1) is one of absolute liability, meaning it is established as soon as there is a dealing and a reasonable suspicion attaches to the funds. It sits towards the lower end of money laundering offending, which also includes more serious offences involving recklessness or actual knowledge. The court also took into account that the dealings were conducted openly rather than in a clandestine manner.
On the guilty plea, the court applied a 20% discount following the approach endorsed in Xiao v R [2018] NSWCCA 4, which permits separate identification of a utilitarian discount and a discount for facilitating the administration of justice in federal matters. The offender's remorse, though not given in sworn evidence, was supported by a written statement from the offender, observations from his partner, and reports from a forensic psychiatrist.
The court declined to apply a separate identifiable discount for assistance to authorities under s 16AC, due to the logistical difficulties arising from the offender's ongoing willingness to cooperate. Instead, the cooperation was treated as a further indication of contrition, remorse, and prospects for rehabilitation.
The starting point before discount was 16 months on each count. The court partially accumulated the sentences, giving effect to the totality principle and acknowledging that but for the legislative amendment, the offender would have faced a single charge. Personal deterrence was treated as less pressing given the passage of time and the offender's personal circumstances, including bankruptcy and health issues. General deterrence, however, remained a significant factor given the difficulty in detecting money laundering offences.
Orders Made
- The offender was convicted on both counts.
- Count 1: 11 months imprisonment, commencing 20 September 2019 and expiring 19 August 2020.
- Count 2: 11 months imprisonment, commencing 20 March 2020 and expiring 19 February 2021 (partial accumulation, producing a total of 18 months).
- Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the offender was ordered to be released after serving six months, upon entering into a recognisance of $100 (without security) to be of good behaviour for 18 months.
- The practical effect: the offender serves six months in custody, with up to 12 months of further imprisonment available if the recognisance is breached within the 18-month good behaviour period.
Key Takeaways
- Under s 400.9(1) of the Criminal Code 1995 (Cth), the offence of dealing with suspected proceeds of crime carries absolute liability. Once a dealing occurs and a reasonable suspicion attaches to the funds, the offence is made out, regardless of the offender's knowledge or intent.
- The District Court confirmed, applying Xiao v R [2018] NSWCCA 4, that federal sentencing permits separate identification of a utilitarian guilty plea discount and a discount for facilitating the administration of justice, rather than treating them as a single undifferentiated reduction.
- Where an offender's assistance to authorities is ongoing, a court may decline to apply an identifiable s 16AC discount and instead treat the cooperation as evidence of contrition and rehabilitation, without prejudicing the offender's position.
- A legislative increase in the maximum penalty for an offence is itself a relevant sentencing factor, reflecting Parliament's view about the seriousness of the conduct. The court used the applicable maximum at the time of each set of dealings as the benchmark for each count.
- General deterrence carries particular weight in money laundering sentencing because such offences are difficult to detect. Personal deterrence may carry less weight where substantial time has elapsed and the offender's circumstances have changed significantly.
Legislation and Cases Referenced
Legislation:
- Criminal Code 1995 (Cth), s 400.9(1)
- Crimes Act 1914 (Cth), Part 1B; ss 16A, 16AC, 17A, 20(1)(b)
Cases:
- Xiao v R [2018] NSWCCA 4