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Court of Criminal Appeal 6 March 2020

Oliver v R

[2020] NSWCCA 26

Fraud & dishonesty
APPEAL SENTENCE APPEAL WHETHER FAILURE TO CONSIDER REMORSE WHERE DELAY BETWEEN ARREST AND SENTENCE WHETHER FAILURE TO CONSIDER DELAY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Oliver v R [2020] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 6 March 2020
Judge(s): Leeming JA, Johnson J, Harrison J (unanimous)

Background

The appellant was a woman who had been in a de facto relationship with a man employed as a baggage technician at Sydney Airport. Between January 2013 and April 2014, her partner used his airport access to intercept baggage from Qantas flights from Chile and remove commercial quantities of cocaine, receiving over $5.4 million for his role in an organised drug importation syndicate.

The appellant assisted her partner in laundering money generated by the syndicate. The pair used the funds for real estate purchases, construction of a house and pool, overseas holidays, and living expenses. She pleaded guilty to one count of dealing with the proceeds of crime worth $1 million or more under s 400.3(1) of the Criminal Code Act 1995 (Cth). The sentencing judge accepted that the appellant knew the money was proceeds of crime, but not that she knew it derived from cocaine importation.

In November 2018, the District Court sentenced the appellant to five years' imprisonment with a non-parole period of three years. She sought leave to appeal on four grounds, arguing the sentencing judge failed to consider remorse and delay, erred in assessing objective seriousness, and imposed a manifestly excessive sentence.

  • Whether the sentencing judge erred by failing to consider remorse under s 16A(2)(f) of the Crimes Act 1914 (Cth)
  • Whether the sentencing judge erred by failing to treat the four-year gap between arrest and sentencing as a mitigating factor
  • Whether the sentencing judge erred in characterising the offence as of "moderate seriousness" rather than low seriousness
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

Remorse (Ground 1): Harrison J found that the appellant had not demonstrated genuine remorse or contrition. The forensic psychologist's report described the appellant's words in terms that fell short of actual remorse, and the issue had not even been raised by her counsel at the sentencing hearing. The guilty plea had already attracted a discount, and the sentencing judge's failure to specifically link the plea to remorse did not constitute error.

Delay (Ground 2): The appellant was arrested in July 2014 but not sentenced until November 2018, a gap of over four years. The Court noted that the onus rests on the offender to establish delay as a mitigating factor on the balance of probabilities. The appellant had not given evidence about the personal impact of the delay, and the psychologist's report did not connect her diagnosed depression and anxiety to the length of the proceedings. The Court found this ground had not been made out.

Objective seriousness (Ground 3): The sentencing judge had not, in fact, found the offence to be "mid-range" but rather "moderate" in seriousness, rejecting the defence submission that it was of low seriousness. The Court noted that the principal differentiating factors for money laundering offences are the amount involved and the offender's state of mind. The appellant knowingly dealt with at least $1 million in crime proceeds, and the characterisation of the offence as moderate was open to the sentencing judge in the exercise of her discretion.

Manifest excess (Ground 4): The Court reaffirmed the high threshold for a finding of manifest excess: it is not enough to argue that another judge might have imposed a lesser sentence. The test requires that no judge exercising the relevant discretion could reasonably have imposed the sentence in question. Against a maximum of 25 years, a non-parole period of three years was not shown to meet that threshold, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An offender bears the onus of establishing delay as a mitigating sentencing factor on the balance of probabilities, and must adduce evidence connecting the delay to actual personal detriment, not merely assert it.
  • A forensic psychologist's report that uses the word "remorse" without the offender's own words reflecting genuine contrition does not, of itself, establish remorse as a mitigating factor.
  • Under s 400.3(1) of the Criminal Code Act 1995 (Cth), the principal differentiating factors for proceeds of crime offences are the amount of money involved and the offender's state of mind at the time.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that a manifest excess challenge requires proof that no judge could reasonably have imposed the sentence, not merely that the result was arguably too severe.
  • A guilty plea attracts a sentencing discount in the ordinary way; the sentencing court is not separately required to identify the plea as evidence of remorse unless remorse is affirmatively established.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 400.3(1)
- Crimes Act 1914 (Cth), s 16A(2)(f)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Ali v R [2010] NSWCCA 35
- Dickson v R [2016] NSWCCA 105
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Leighton v R [2010] NSWCA 280
- R v Blanco (1999) 106 A Crim R 203; [1999] NSWCCA 121
- R v Guo (2010) 201 A Crim R 403; [2010] NSWCCA 170
- R (Cth) v Milne (No 1) (2010) 260 FLR 166; [2010] NSWSC 932
- R v Wing Cheong Li (2010) 202 A Crim R 195; [2010] NSWCCA 125