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District Court 13 December 2019

R v Wu

[2019] NSWDC 908

Fraud & dishonesty
CRIME COMMONWEALTH SENTENCE POSSESS FOREIGN TRAVEL DOCUMENTS POSSESS PROCEEDS OF CRIME TOTALITY OF CRIMINALITY

Citation: R v Wu [2019] NSWDC 908
Court: District Court of New South Wales
Date: 13 December 2019
Judge: Norrish QC DCJ

Background

The offender, a man born in January 1984, pleaded guilty in the Local Court to three Commonwealth offences and was committed to the District Court for sentence. The offending occurred between October 2018 and mid-February 2019. Four additional offences were placed on a s 16BA schedule (equivalent to a Form 1) to be taken into account on sentencing.

The principal conduct involved importing tobacco products into Australia on five separate occasions using false names and parcel lockers, with the intent to defraud the Commonwealth revenue. When the offender flew into Australia on 12 February 2019, authorities found two false Chinese passports in his luggage. A search warrant executed at his home three days later located $10,000 in cash, giving rise to a possessing proceeds of crime charge.

The Crown described the offender as a principal importer who accumulated modest quantities of tobacco on each occasion for on-sale in Australia. The $10,000 in cash represented part of the profit generated from that activity.

  • What sentence was appropriate for three Commonwealth offences, taking into account four further offences on a s 16BA Form?
  • How should the principle of totality of criminality apply where multiple offences arose from a single course of conduct?
  • What weight should be given to the plea of guilty, cooperation with investigators, and prior good character?
  • Was it appropriate to impose pecuniary penalties in addition to imprisonment?

Decision

Norrish QC DCJ found that the tobacco importation offences, both those for sentence and those on the Form, constituted a course of conduct with an identical modus operandi across the relevant period. His Honour treated the Form 1 matters as bearing on the principal importation offence (sequence 4), rather than spreading them across multiple principal offences, to allow a more workable sentencing calculation.

On totality, his Honour drew on the approach of Street CJ in R v Holder, as adopted by the High Court in Mill v The Queen, and Hall J's survey of principles in R v XX. The court determined that the sentences should be structured as a partially cumulative arrangement, but calibrated so the total did not exceed what was just and appropriate for the overall criminality.

The offender received a 25 percent discount on sentence for his plea of guilty, entered at the first reasonable opportunity, and for admissions made to investigators. His Honour accepted that the offender was of prior good character and that this was relevant to the sentencing exercise. Pecuniary penalties were not imposed, given the term of imprisonment being served and the offender's lack of means.

The court concluded that a total sentence of two years' imprisonment, with a minimum term of 12 months, was appropriate. The partially concurrent structure of the three individual sentences produced that total, with the offender to be released on a recognisance after serving 12 months.

Orders Made

  • Sequence 1 (importation offence): Convicted; sentenced to 6 months' imprisonment, commencing 15 February 2019 and expiring 14 August 2019.
  • Sequence 2 (passport offence): Convicted; sentenced to 9 months' imprisonment, commencing 15 April 2019 and expiring 14 January 2020.
  • Sequence 4 (importation offence, taking into account sequences 3, 5, 6, and 7 on the s 16BA Form): Convicted; sentenced to 1 year and 6 months' imprisonment, commencing 15 August 2019 and expiring 14 February 2021.
  • Release directed at expiration of 12 months (14 February 2020) on a recognisance under s 20 of the Crimes Act 1914 (Cth) to be of good behaviour for 18 months and to appear for sentence if called upon.
  • Supervision by NSW Community Correction Service for 12 months from release.
  • Forfeiture of $10,000 pursuant to s 48 of the Proceeds of Crime Act 2002 (Cth).

Key Takeaways

  • Where multiple Commonwealth offences arise from the same modus operandi over a defined period, a sentencing court may treat them as a course of conduct and apply totality principles to avoid a crushing aggregate sentence.
  • Under s 16BA of the Crimes Act 1914 (Cth), Form matters may be taken into account on one principal offence rather than spread across several, to assist accurate sentencing calculation.
  • A 25 percent discount on sentence was available for a plea of guilty entered at the first reasonable opportunity, combined with admissions made to investigators.
  • Pecuniary penalties were not imposed where the offender was serving a term of imprisonment and lacked the means to satisfy them.
  • Prior good character remained a relevant mitigating factor, even in the context of deliberate, financially motivated Commonwealth offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), including ss 16A, 16BA, 20 and Pt 1B
- Customs Act 1901 (Cth)
- Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 22
- Proceeds of Crime Act 2002 (Cth), s 48

Cases
- Ali v R [2011] NSWCCA 60
- Attorney General's Application (No 1) [2002] 56 NSWLR 147
- Hili v R [2011] HCA 45
- Holland v R [2011] NSWCCA 65
- Johnson v R (2004) 78 ALJR 616
- Jones v R (2010) 242 CLR 520
- Mill v R (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Gow [2015] NSWCCA 208
- R v Holder [1983] 3 NSWLR 245
- R v Saleh [2015] NSWCCA 299
- R v XX (2009) 195 A Crim R 38
- Samardali v R [2018] WASCA 220
- Young v R [2016] VSCA 149
- Zhang v R [2017] SASCFC 5