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Court of Criminal Appeal 26 July 2023

R v FF

[2023] NSWCCA 186

Fraud & dishonesty

Citation: R v FF [2023] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 26 July 2023
Judges: Beech-Jones CJ at CL; Fagan J; R A Hulme AJ

Background

The respondent (identified by the pseudonym "FF" under a suppression order) pleaded guilty in the Local Court to two counts of recklessly dealing with the proceeds of crime and one count of dealing with property reasonably suspected of being proceeds of crime, with further similar offences taken into account on a Form 1. The total sum of proceeds involved across all offences exceeded $8.5 million. The offending occurred between mid-2020 and early 2021 and formed part of a large-scale drug trafficking syndicate's money laundering operation.

The respondent's role was significant. He retrieved large amounts of cash from co-offenders, deposited the money into bank accounts he had opened and controlled, converted the funds to cryptocurrency, and returned them to the syndicate. He also recruited other individuals (called "depositors") to assist him in making cash deposits at banks. Those depositors, along with other co-offenders, were sentenced before the respondent.

On 15 December 2022, the sentencing judge in the District Court imposed an aggregate sentence of 2 years and 6 months imprisonment, to be served by way of an intensive correction order (ICO) with conditions including supervision and 300 hours of community service. The NSW Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), contending the sentence was manifestly inadequate.

  • Whether the aggregate sentence of 30 months served by ICO was manifestly inadequate, having regard to the indicative sentences for individual offences, the degree of notional concurrency applied, and the sentences imposed on co-offenders.
  • Whether, if the sentence was manifestly inadequate, the Court should exercise its residual discretion not to intervene (for example, because of delay in listing the appeal or the respondent's post-sentence conduct).

Decision

Manifest inadequacy established

The Court found the sentence was manifestly inadequate to a significant degree. The indicative sentences for each individual offence were themselves unduly lenient. Beyond that, the aggregate sentence involved a very large and unjustified degree of notional concurrency, meaning the overall term failed to reflect the cumulative weight of the respondent's sustained and substantial offending.

The Court addressed the position of a co-offender known as HM, a depositor who had been sentenced to 42 months imprisonment with a 21-month non-parole period for lesser offending. The disparity, which saw a subordinate participant receive a higher undiscounted sentence than the respondent, was a notable feature of the case. However, the Court confirmed that the proper approach in a Crown appeal for manifest inadequacy is to treat a co-offender's sentence no differently to any other comparable sentence: it is not a legitimate basis to increase the respondent's sentence simply to restore parity with HM. The question remained whether the respondent's sentence was unreasonable or plainly unjust on its own terms.

The Court found, applying that standard, that a 30-month aggregate term for the laundering of over $8.5 million of drug proceeds over a sustained period was plainly insufficient. When comparing the respondent's role against co-offenders Zhong and Ly, the Court also found that higher indicative sentences for the respondent would not necessarily produce a parity problem with those co-offenders.

Residual discretion not exercised

The Court declined to exercise its residual discretion to refrain from resentencing. It acknowledged evidence of the respondent's genuine insight into his offending, employment, financial counselling, and compliance with the ICO conditions. These matters were accepted as reflecting credit on the respondent. However, the Court held that the original sentence constituted an affront to the administration of justice, and that the seriousness of large-scale money laundering of this kind left no room to withhold intervention. The delay in listing the appeal was not a significant factor in the Court's consideration.

Orders Made

  • Appeal allowed.
  • The sentence imposed in the District Court on 15 December 2022 was set aside.
  • An aggregate sentence of 4 years imprisonment imposed, commencing 21 April 2023 and expiring 20 April 2027.
  • Non-parole period of 2 years and 6 months set, with earliest parole eligibility on 20 October 2025.
  • Indicative individual sentences recorded:
  • Sequence 10 (s 193C offence): 26 months
  • Sequence 13 (s 193B offence): 28 months
  • Sequence 14 (s 193B offence): 29 months

Key Takeaways

  • A 30-month ICO aggregate for sustained large-scale money laundering involving over $8.5 million was found to be manifestly inadequate to a significant degree, where both the individual indicative sentences and the degree of notional concurrency were unjustifiably lenient.
  • Where the Crown appeals on manifest inadequacy grounds, the sentence of a co-offender is treated as a comparable sentence only: it does not independently justify increasing the respondent's sentence merely to achieve parity, as confirmed by the Court applying R v Weismantel [2016] NSWCCA 204.
  • Positive post-sentence conduct, including compliance with ICO conditions, genuine insight, and employment, will be taken into account but will not prevent resentencing where the original sentence amounts to an affront to the administration of justice.
  • Under the House v The King (1936) standard, the Crown must establish not only sentencing error but also negate any basis for the court to exercise its residual discretion not to intervene before resentencing will follow.
  • In resentencing, the Court backdated the new term to the date the respondent had been subject to the ICO, giving him credit for time already served under that order's supervisory conditions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 193B(3), 193C(1)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 44(2A), 53A(2)(b)
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

Cases
- House v The King (1936) 55 CLR 499
- CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107
- R v Weismantel [2016] NSWCCA 204
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- Bresnahan v R [2022] NSWCCA 288
- Ke v R [2021] NSWCCA 177
- R v Lembke [2020] NSWCCA 293
- R v Gu [2006] NSWCCA 104
- R v Doff [2005] NSWCCA 119
- Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
- JM v R [2014] NSWCCA 297
- R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451
- R v Zamagias [2002] NSWCCA 17
- Mandranis v The Queen [2021] NSWCCA 97; (2021) 289 A Crim R 260
- Lee v R [2020] NSWCCA 244
- Kelly v R [2017] NSWCCA 256