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District Court 21 March 2022

R v Munn

[2022] NSWDC 264

Fraud & dishonesty
CRIME KNOWINGLY DEAL WITH PROCEEDS OF CRIME SENTENCING RELEVANT FACTORS ON SENTENCE GUILTY PLEA INVOLVED AFTER THE EVENT

Citation: R v Munn [2022] NSWDC 264
Court: District Court of New South Wales
Date: 21 March 2022
Judge: Haesler SC DCJ

Background

In early February 2021, four men robbed an opal dealer of gems valued at approximately $500,000. The offender in this matter was not involved in that robbery, but was subsequently entrusted with some of the stolen opals and tasked with finding buyers.

Over roughly two weeks, the offender took the opals to Victoria, contacted multiple potential purchasers, negotiated proposed sales (including at one point an exchange of opals for drugs), and reported regularly to his principal. Police, relying on a lawful telephone intercept, tracked his activities. He was arrested in Melbourne on 11 May 2021 and a quantity of opals was recovered. He initially denied the offences but entered a guilty plea in the Local Court.

The offender had a significant criminal history dating from childhood, spanning New South Wales, Victoria, and South Australia, with outstanding warrants in Queensland. His prior offending was primarily property damage. He was in his late twenties at the time of sentencing and had spent periods of his sentence in custody during the COVID-19 pandemic, including at least 60 days in isolation.

  • What was the appropriate head sentence for knowingly dealing with proceeds of crime under s 193B(2) of the Crimes Act 1900 (NSW)?
  • What weight should be given to the utilitarian value of an early guilty plea?
  • How should the offender's disadvantaged upbringing, history of childhood trauma, and subjective circumstances bear on sentence?
  • Did the conditions of custody during the COVID-19 pandemic warrant consideration as a mitigating factor?
  • Were special circumstances established justifying a non-standard ratio between the non-parole period and the balance of the sentence?

Decision

Haesler SC DCJ identified the offence as serious, noting the offender's active and deliberate engagement over a sustained period, the substantial value of the proceeds (a figure of $300,000 was mentioned in the dealings), the interstate nature of the conduct, and the planning and sophistication involved. His Honour applied the factors set out in Ramos v R [2018] NSWCCA 206 for assessing the gravity of dealings in proceeds of crime. While the offender played a subsidiary rather than primary role, he provided an essential function: converting stolen goods into cash or other commodities. Without such assistance, the original robbery would have had no commercial purpose.

The early guilty plea, indicated at Local Court level, attracted a 25% reduction from what would otherwise have been a sentence in the range of three and a half years. The offender's extensive and disadvantaged background, including childhood trauma, time in state care, and the lasting effects of abuse, was accepted as relevant mitigation consistent with the principles in Bugmy v The Queen (2013) 251 CLR 571. His Honour did not diminish the significance of those experiences, observing they helped explain, though did not excuse, the offender's trajectory into crime and drug use.

Conditions of custody during the COVID-19 pandemic, particularly the extended period in isolation and the impact on access to programs, visits, and employment, were taken into account as factors that increased the burden of the sentence. His Honour noted the offender had contracted COVID while in custody and had been housed in a facility not well suited to recovery from illness.

Special circumstances were found under the applicable sentencing principles, resulting in a longer than standard parole period relative to the non-parole period. His Honour identified several reasons for this finding, including the prospect that the offender would serve the parole period in Victoria, where his partner and support network were located, as well as the need for structured support to give him a genuine opportunity to address his drug dependence and establish a law-abiding life.

Orders Made

  • Conviction recorded for knowingly dealing with proceeds of crime (s 193B(2), Crimes Act 1900 (NSW)).
  • Total sentence of 2 years and 7 months imposed.
  • Non-parole (minimum) period of 1 year and 7 months, commencing 11 May 2021.
  • Eligible for consideration for release to parole on 10 December 2022.
  • Parole period of 1 year, with the sentence expiring on 10 December 2023.

Key Takeaways

  • Heavy penalties for dealing in proceeds of crime serve the dual purpose of just retribution and general deterrence, given that the conversion of stolen goods to cash is an integral step in making acquisitive crime profitable in the first place.
  • A 25% reduction in sentence was applied for a guilty plea indicated at the Local Court stage, reflecting its utilitarian value under established New South Wales sentencing principles.
  • Childhood trauma, abuse, and disadvantaged upbringing remain relevant mitigating factors in sentencing, even for an offender with an extensive prior record, consistent with the High Court's guidance in Bugmy v The Queen.
  • Custodial conditions materially worsened by the COVID-19 pandemic, including prolonged isolation and restricted access to rehabilitation programs, were treated as relevant to the overall assessment of the sentence's burden.
  • Special circumstances were established where the totality of the offender's background, the prospect of parole being served interstate, and the genuine availability of a support network pointed to a greater need for supervised rehabilitation during the parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193B(2)

Cases:
- Bugmy v The Queen (2013) 251 CLR 571; [2013] HCA 37
- Millwood v R [2012] NSWCCA 2
- Ramos v R [2018] NSWCCA 206