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Court of Criminal Appeal 27 November 2020

Tran v R (Cth)

[2020] NSWCCA 310

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL APPEAL AGAINST SENTENCE DISMISSED.

Citation: Tran v R (Cth) [2020] NSWCCA 310
Court: NSW Court of Criminal Appeal
Date: 27 November 2020
Judges: Hoeben CJ at CL; Price J; Fagan J

Background

The appellant pleaded guilty in the District Court to a single count of dealing with money intending that it would become an instrument of crime, where the value of the money exceeded $100,000, contrary to s 400.4(1) of the Criminal Code (Cth). The maximum penalty for this offence is 20 years imprisonment. She was sentenced to four years imprisonment with a non-parole period of two years.

The offending involved a money laundering methodology known as "cuckoo smurfing." The appellant acted as an intermediary between an overseas controller (referred to in the judgment as J Chuot, believed to be based in Vietnam) and a number of locally based participants. She received instructions about depositing large quantities of cash into Australian bank accounts and passed those instructions to others, including a person referred to as Nguyen, directing them to make structured deposits under the $10,000 reporting threshold across multiple bank branches.

The appellant appealed against her sentence, arguing that it was disproportionate when compared to the more lenient sentence received by Nguyen, who had also participated in the scheme. She contended she had a justifiable sense of grievance arising from the sentencing disparity between them.

  • Whether the appellant had a justifiable sense of grievance, for the purposes of the parity principle, arising from the disparity between her sentence and the lesser sentence imposed on Nguyen
  • Whether the sentencing judge erred in assessing the differences in the roles, culpability, and circumstances of the appellant and Nguyen

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Hoeben CJ at CL (with whom Price J and Fagan J agreed) found that the sentencing judge had correctly characterised the appellant's role. She was not a low-level participant: she recruited others including Nguyen, directed several locally based participants, communicated with those higher in the syndicate hierarchy, and was involved in the offending over a longer period and across a larger sum of money.

The court examined the parity principle, which holds that co-offenders who are similarly situated should not receive sentences so different as to give rise to a justifiable sense of grievance. However, the principle requires a genuine comparison between like circumstances. The court found that the similarities between the appellant and Nguyen, including their good character, low risk of reoffending, and financial motivation, did not outweigh the substantial differences between them.

Those differences were numerous and significant. The appellant was charged with a single offence carrying a maximum of 20 years imprisonment; Nguyen faced three separate counts with maximum penalties of 3, 5, and 2 years respectively. Beyond the difference in charges, the appellant held a more senior role, recruited Nguyen, directed his conduct, was involved for a longer period, and dealt with a substantially larger amount of money. Nguyen also entered a more timely plea, provided assistance to authorities, and the appellant's remorse was difficult to assess given she denied the requisite knowledge until very late in the proceedings.

The court concluded that any sense of grievance felt by the appellant was not a justifiable one in the legal sense required by the parity principle, and no error in the sentencing exercise was established.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The parity principle requires that a co-offender's sense of grievance be justifiable in all the circumstances; similarities in background or general involvement do not alone establish a viable parity ground where the roles, charges, and circumstances differ materially.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that parity arguments can arise even where co-offenders are charged with different offences, but the differences between those offences may themselves defeat the argument.
  • A more timely guilty plea, cooperation with authorities, and a lower sentencing maximum are all factors that can legitimately account for a significant disparity in sentences between co-offenders.
  • The level of seniority within a criminal syndicate, including whether a participant recruited and directed others, is a substantial factor in assessing relative culpability for sentencing purposes.
  • Under s 400.4(1) of the Criminal Code (Cth), offending involving large-scale "cuckoo smurfing" operations, where a participant plays an integral coordinating role, will be assessed as considerably more serious than the conduct of those carrying out transactions at the direction of that coordinator.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 400.4(1)
- Crimes Act 1914 (Cth), s 16A(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Burrows v R [2017] NSWCCA 45
- Why v R [2017] NSWCCA 101
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64