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Court of Criminal Appeal 10 December 2021

Lami v R

[2021] NSWCCA 295

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Lami v R [2021] NSWCCA 295
Court: Court of Criminal Appeal, NSW
Date: 10 December 2021
Judge(s): Macfarlan JA, Rothman J, Dhanji J (judgment delivered by Dhanji J)

Background

The appellant was a single mother of three, receiving Centrelink payments as her sole income, with limited English proficiency. A family friend approached her to act as a "front person" for a fraudulent childcare benefits scheme, offering her $80,000 to purchase her ex-husband's share of a family home in Iran. She was appointed director of a front company and sole signatory to its bank accounts, through which she facilitated banking transactions totalling over $4 million across two days in July 2017.

The appellant pleaded guilty to one count of dealing with money or property that was proceeds of crime, being reckless as to that fact, where the value of the property was $1,000,000 or more, contrary to s 400.3(2) of the Criminal Code (Cth). The maximum penalty for the offence is 12 years imprisonment. She was sentenced in the District Court to 4 years imprisonment, with a non-parole period of 2 years.

The appellant sought leave to appeal against that sentence in the Court of Criminal Appeal, arguing the sentencing judge had wrongly assessed the objective seriousness of the offence and had placed undue weight on general deterrence.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offending by failing to give appropriate weight to mitigating circumstances, specifically the appellant's limited role, her personal circumstances, and the fact that most of the funds were recovered.
  • Whether the sentencing judge erred by giving "undue and overwhelming" weight to general deterrence, which the appellant argued distorted the objective seriousness assessment.

Decision

Ground 1: Objective seriousness

Dhanji J held that the sentencing judge correctly identified and assessed the relevant factors. The judge had acknowledged the appellant's role as a "front person" acting under direction, her personal vulnerabilities, the brevity of her active involvement, and the substantial recovery of funds. The sentencing judge nonetheless found the offence remained objectively serious, given the large sums involved and the nature of the conduct.

Dhanji J noted that the task of the Court of Criminal Appeal is not simply to substitute its own view of the appropriate weight to be given to individual factors; it must identify a specific error in the exercise of the sentencing discretion, consistent with the principles in House v The King (1936) 55 CLR 499. Where an appellant can point to nothing more than the result itself as evidence that a factor received too little weight, and the result falls within the available range, the appeal ground cannot succeed. The sentence here was described as "stern" but not outside the legitimate bounds of the sentencing judge's discretion.

Ground 2: General deterrence

Dhanji J rejected the framing of this ground. The proper sentencing process requires a court first to assess objective seriousness, and then to weigh all relevant sentencing purposes, including general deterrence, through an intuitive synthesis. General deterrence does not inform, and the sentencing judge did not suggest it informed, the determination of objective gravity. The ground was therefore analytically unsustainable as framed. To the extent it sought to agitate the weight given to general deterrence separately, it failed for the same reasons as Ground 1: nothing demonstrated undue weight other than the result, and the result was not outside the available range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the standard for appellate intervention in sentencing remains that established in House v The King: an appellant must identify a specific error in the exercise of the discretion, not merely assert that different weight should have been given to a particular factor.
  • Where an appellant can point to nothing beyond the outcome itself as evidence that a sentencing factor was weighted incorrectly, and the sentence falls within the available range, an appeal against sentence will not succeed.
  • General deterrence is a purpose of sentencing to be weighed during the intuitive synthesis, not a factor that informs or distorts the prior assessment of objective seriousness; conflating these two steps does not disclose a legal error.
  • Personal mitigating circumstances, including a subordinate role, financial vulnerability, limited English, and significant recovery of funds, can reduce objective seriousness without necessarily taking the offending out of the serious range, particularly where large sums are involved.
  • Under s 400.3(4) of the Criminal Code (Cth), absolute liability attaches to the value of the property dealt with; an offender's subjective belief about the amounts involved does not affect the threshold element of the offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(2), 16A(2)(ja)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code (Cth), ss 400.3(2), 400.3(4)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Greentree v R [2018] NSWCCA 227
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mulato v R [2006] NSWCCA 282
- R v Bonett [2009] NSWCCA 135
- R v Viana [2008] NSWCCA 188