Citation: R v Croke [2020] NSWDC 460
Court: District Court of New South Wales
Date: 16 July 2020
Judge(s): H. L. Syme DCJ
Background
In August 2011, police stopped a man in the foyer of a Sydney hotel and found over $700,000 in cash in a bag he was carrying. The money was part of the proceeds of illicit drug sales in Australia, and had been placed with him for safekeeping by an American national named Owen Hanson, who was involved in serious international drug trafficking, including connections to a Mexican cartel.
Hanson sought help recovering the seized cash and was introduced, through an intermediary named Craig Haeusler, to the offender, a practising Sydney solicitor. At their first meeting, Hanson told the solicitor the money came from illegal gambling. The solicitor replied that they would need "a better story than that."
What followed was a three-year joint criminal enterprise involving the fabrication of an elaborate false narrative, the manufacture of supporting documents, police interviews conducted on false premises, and ultimately Supreme Court proceedings seeking the return of the funds. The solicitor was convicted by jury of six offences and appeared for sentencing before the District Court.
Legal Issues
- What sentence was appropriate for six offences including two counts of doing an act with intent to pervert the course of justice (maximum 14 years each), three counts of doing an act with intent to obtain a financial advantage (maximum 5 years each), and one count of participating in a criminal group (maximum 5 years)?
- What weight should be given to the offender's age, health, prior good character, and the conditions of custody, including COVID-19 restrictions?
- Whether the offending was sufficiently serious to warrant full-time imprisonment rather than an intensive correction order (ICO), as imposed on a co-offender?
- How the offender's culpability compared to that of co-offenders and to comparable decided cases?
Decision
Objective seriousness and moral culpability
The court found the overall criminality to be high. The offending spanned nearly three years, was carefully planned at each stage, and involved the fabrication of a false story supported by manufactured documents, including a false statutory declaration given to police, a fictitious tax return, and a false affidavit sworn and relied upon in Supreme Court proceedings (at [35], [37], [38]). The offender gave direction and legal advice that guided and sustained the entire enterprise (at [44]). His misuse of his experience and standing as a solicitor over such an extended period substantially increased the objective seriousness of the conduct (at [55]).
Role in the conspiracy
The court rejected the submission that the offender's role was less significant than that of Haeusler or Hanson. The offender was one of the principals. He approved the recruitment of a third participant to pose as the legitimate Australian source of the funds (at [14]), coached that participant before his police interview, attended as his legal representative, and later performed the same role for Haeusler (at [17], [20]). He was aware from early in the scheme that Hanson was connected to serious international criminal activity, including a Mexican cartel (at [42]). Without his legal knowledge and participation, the enterprise could not have commenced or continued (at [44]).
General deterrence and denunciation
The court placed considerable weight on general deterrence and denunciation. It applied the principle from R v Purtell that the 14-year maximum for perverting the course of justice reflects the importance of protecting the integrity of the criminal justice system (at [56]). A solicitor who uses privileged access to police and courts to perpetuate dishonesty commits a serious assault on the administration of justice in New South Wales (at [63]). The court noted that the offender shows no remorse and does not admit the offences, which limits any finding of genuine rehabilitative prospect based on insight (at [79]).
Personal circumstances and comparable cases
The court accepted that the offender, aged 70, has poor health including prostate cancer requiring surgery, and that custody would be more burdensome for him than for a younger person in good health. Some weight was also given to the additional isolation imposed by COVID-19 restrictions across the custodial estate at the time of sentencing (at [76], [77]). The court found special circumstances warranting a longer parole period. The court distinguished the co-offender McManus, who pleaded guilty at an early stage, gave evidence for the Crown, had a lesser role, and received an ICO. An ICO was not appropriate for the present offender. Comparison with R v Hart and Einfeld v Regina assisted as guideposts, but the present offending was more planned, more prolonged, and more complex than either (at [80]-[82]).
Orders Made
- The offender was sentenced to an aggregate term of imprisonment of 5 years and 9 months, commencing 5 May 2020 and expiring 4 February 2026.
- Non-parole period of 3 years and 9 months.
- First eligible for parole on 4 February 2024.
Key Takeaways
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A solicitor who uses legal knowledge and privileged access to courts and police to orchestrate a multi-year conspiracy to recover proceeds of crime will be regarded as having a very high degree of moral culpability, with the professional role treated as a significant aggravating circumstance rather than a mitigating one (at [55], [63]).
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The District Court confirmed that general deterrence is a weighty sentencing consideration for offences of perverting the course of justice, particularly where the offender is a legal practitioner who acted with full awareness of what was required of them as an officer of the court (at [56]-[57]).
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Comparison with sentences imposed on co-offenders who pleaded guilty and gave evidence for the prosecution carries limited weight where the offender before the court was a principal organiser, showed no remorse, and contested the proceedings throughout (at [78]-[79]).
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COVID-19 conditions within the custodial system, which at the time of sentencing prevented contact visits and imposed additional isolation on all prisoners, were recognised as a factor warranting modest amelioration of the sentence (at [76]).
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Where a criminal enterprise depends upon the expertise and active direction of one participant, that participant's culpability is not diminished simply because others within the group performed equally important but different roles (at [44], [86]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing and Procedure) Act
Cases
- R v Purtell (2001) 120 A Crim R 317
- R v Chapman (Unrep, 21/5/98, NSWCCA)
- R v Pangallo (1991) 56 A Crim R 441
- Hart v Attorney-General For New South Wales [2016] NSWCCA 71
- Einfeld v Regina [2010] NSWCCA 87