Citation: Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191
Court: Court of Criminal Appeal (NSW)
Date: 5 August 2020
Judge(s): Fullerton J (principal judgment); Wilson J and Ierace J (agreeing)
Background
Three co-offenders sought leave to appeal sentences imposed in the District Court on 2 December 2019 for their roles in a money laundering syndicate operating across Sydney between December 2016 and October 2017. The syndicate's central activity was structuring cash deposits into bank accounts in amounts below $10,000 to avoid the mandatory reporting threshold under Commonwealth anti-money laundering legislation.
Two of the applicants (Ghazaoui and Hawchar) were each convicted of dealing with money of $100,000 or more intending it to become an instrument of crime, an offence carrying a maximum of 20 years' imprisonment. The third applicant (Betka) was convicted of the more serious joint offence of dealing with money of $1,000,000 or more, carrying a maximum of 25 years' imprisonment. All three had pleaded guilty in the Local Court in May 2017 and were committed to the District Court for sentence.
The sentencing judge applied a 20% discount for each applicant's guilty plea, plus additional discounts of 10% for Hawchar and Betka for their assistance to authorities. The applicants challenged both the size of the guilty plea discount and the consistency of their sentences compared to co-offenders sentenced in separate proceedings.
Legal Issues
- Whether the sentencing judge erred in assessing the utilitarian value of the guilty pleas, specifically by applying a 20% discount rather than 25%
- Whether each applicant's sentence offended parity principles when compared to the sentences of co-offenders
- Whether the sentencing judge failed to take Ghazaoui's good character into account
Decision
The Court of Criminal Appeal found that error was established on the guilty plea discount ground for all three applicants. The sentencing judge had applied a 20% discount for pleas entered at the earliest reasonable opportunity; however, the Court held that the correct discount in these circumstances was 25%, consistent with the principles established in R v Thomson; R v Houlton and subsequent authority. That error alone was sufficient to warrant resentencing.
On parity, the Court considered each applicant's position relative to co-offenders, including those sentenced separately by a different judge. The Crown's concession that the origin of the funds was unknown, and the absence of any allegation that the applicants knew the ultimate destination of the money, were relevant context. The sentencing judge had found that all three applicants knowingly participated in organised criminal activity and each performed an indispensable role, with Betka assessed at mid-to-high culpability given his volume of transactions (558 deposits totalling over $4 million personally) and his role in distributing funds to other syndicate members.
On Ghazaoui's good character ground, the judgment does not record this as ultimately determinative given the error already established on the plea discount issue.
Having identified error, the Court resentenced all three applicants. It applied a 25% discount for the utilitarian value of each plea, with an additional 5% for Betka's assistance and 10% for Hawchar's assistance, producing materially shorter sentences than those originally imposed.
Orders Made
- The sentences imposed on all three applicants in the District Court on 2 December 2019 were quashed.
- Ghazaoui: Imprisonment for 2 years and 3 months from 2 December 2019, with a recognizance release order of 1 year and 1 month (effective release date: 1 January 2021).
- Hawchar: Imprisonment for 2 years and 4 months from 2 December 2019, with a recognizance release order of 1 year and 2 months (effective release date: 1 February 2021).
- Betka: Imprisonment for 6 years from 19 December 2017, with a non-parole period of 3 years and 6 months expiring 18 June 2021, accounting for the sentence imposed by Harrison J on 20 February 2020 and the operation of ss 19AD and 19AG of the Crimes Act 1914 (Cth).
Key Takeaways
- A guilty plea entered at the earliest reasonable opportunity should attract a 25% discount for its utilitarian value, not 20%. Applying the lower figure constituted identifiable error warranting resentencing.
- Parity principles require that sentences for co-offenders be explicable by reference to their differing roles and culpability. Where co-offenders are sentenced in separate proceedings by different judges, a resulting disparity may still give rise to a justifiable sense of grievance.
- The difference in maximum penalties between the two charged offences (20 years versus 25 years) reflected the amount of money involved, not the depth of individual participation in the syndicate. The Court treated this statutory distinction as relevant to the structure of the sentences.
- Assistance to authorities is recognised as a separate mitigating factor, applied cumulatively with the guilty plea discount rather than subsumed within it.
- No error was established in the sentencing judge's overall characterisation of the applicants' roles in the syndicate, including the finding that Betka's culpability was at the mid-to-high level by reason of both his transaction volume and his distribution role.
Legislation and Cases Referenced
Legislation:
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 142
- Criminal Code Act 1995 (Cth), ss 400.3(1), 404.4(1)
- Crimes Act 1914 (Cth), ss 19AC, 19AD, 19AG
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57
- Bae v R [2020] NSWCCA 35
- Chuang v R; Chen v R [2020] NSWCCA 60
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102