Citation: R v Mirceski [2020] NSWDC 220
Court: District Court of New South Wales
Date: 19 March 2020
Judge(s): M L Williams SC DCJ
Background
The offender, a 26-year-old telecommunications technician with no prior criminal history, pleaded guilty to one count of attempted dealing with money where there was a risk it would become an instrument of crime, contrary to s 400.42 of the Criminal Code 1995 (Cth). The offence carried a maximum penalty of ten years imprisonment or a fine.
The broader context involved an Australian Federal Police investigation into an international criminal syndicate responsible for importing 1.28 tonnes of cocaine into Australia. The offender had no knowledge of the drug importation. His involvement was limited to a single day in December 2017, during which he transported a bag containing $300,000 in cash for an arranged handover with an undercover operative, acting on instructions from an unknown person who had offered him $10,000.
The handover was ultimately aborted when a suspicious bystander was observed at the meeting location. The offender was not approached by police until May 2019, approximately 18 months after the incident. He attributed his involvement to a gambling disorder that had left him with significant debts, describing the payment offer as a way to alleviate his financial difficulties.
Legal Issues
- What sentence was appropriate for a first-time, young offender who pleaded guilty to an attempted money laundering offence in circumstances involving low moral culpability but significant objective seriousness?
- What discount, if any, should be applied to reflect the guilty plea, remorse, and willingness to facilitate the course of justice?
- Whether an intensive correction order (ICO) served in the community was appropriate in place of full-time custody, having regard to the offender's rehabilitation prospects and subjective circumstances.
Decision
The District Court accepted that, while the offence was objectively serious given the large sum involved ($300,000) and its connection to a major drug importation syndicate, the offender's moral culpability was relatively low. He was unaware of the drug trafficking background, his involvement lasted approximately five hours on a single occasion, and he acted out of financial desperation driven by a diagnosed gambling disorder.
The court applied a 25% discount to any term of imprisonment, consistent with the approach in Xiao v R (2018) 96 NSWLR 1 and subsequent cases. The court considered that the guilty plea, entered against a strong Crown case involving a controlled operation, reflected both remorse and a subjective willingness to facilitate the course of justice.
The offender's subjective case was regarded as strong. He had engaged with a clinical and forensic psychologist since shortly after his first contact with police, demonstrated genuine remorse across multiple contexts including to his employer and family, and was assessed as a low risk of reoffending. His continued treatment for gambling disorder and participation in the Salvation Army's Positive Lifestyle Program weighed in his favour.
Taking all matters into account, the court determined that a sentence served in the community by way of an intensive correction order was appropriate, rather than full-time imprisonment. The court emphasised the purposes of general and specific deterrence but concluded that, for this offender, rehabilitation and community-based supervision better served the relevant sentencing objectives.
Orders Made
- The offender was sentenced to a term of imprisonment to be served by way of an intensive correction order.
- Standard ICO conditions applied, including no further offending and supervision by Community Corrective Services for the duration of the order.
- Additional conditions imposed:
- Completion of 200 hours of community service work.
- Compliance with all reasonable directions of Community Corrective Services, including examination, assessment, therapy, treatment, counselling, and urinalysis.
- Acceptance of the continuing recommendations of Dr Mark Milic regarding rehabilitation and treatment.
Key Takeaways
- A conviction under s 400.42 of the Criminal Code 1995 (Cth) for attempted dealing with money as a potential instrument of crime does not require knowledge of the underlying criminal enterprise, but the offender's awareness (or lack thereof) of that enterprise remains relevant to assessing moral culpability.
- The District Court applied a 25% discount for the guilty plea, following Xiao v R, finding that the plea demonstrated both remorse and a willingness to facilitate justice, even where the Crown case was strong and arose from a controlled operation.
- Where a diagnosed gambling disorder provides the underlying motivation for offending, courts may treat it as a relevant subjective factor bearing on moral culpability and rehabilitation prospects, particularly where the offender has engaged in treatment.
- An intensive correction order remains available in cases involving large sums of money and connection to serious organised crime, provided the offender's subjective circumstances are sufficiently compelling and rehabilitation prospects are strong.
- Refusal to identify the person who recruited the offender did not operate as an aggravating factor; the court noted the offender had been advised of the sentencing benefit available for cooperating with authorities and understood the consequences of declining.
Legislation and Cases Referenced
Legislation:
- Criminal Code 1995 (Cth), s 400.42
- Crimes Act 1914 (Cth)
Cases:
- Xiao v R (2018) 96 NSWLR 1
- R v Ansari (2007) 70 NSWLR 89
- R v Guo; R v Qian (2010) 201 A Crim R 403; [2010] NSWCCA 170
- Du Randt [2008] NSWCCA 121
- Ihemeje v R [2012] NSWCCA 269
- Van Eeden v R [2012] NSWCCA 18