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Court of Criminal Appeal 8 November 2023

Cai v R

[2023] NSWCCA 270

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY WHERE CO OFFENDER RECEIVED HIGHER DISCOUNT

Citation: Cai v R [2023] NSWCCA 270
Court: NSW Court of Criminal Appeal
Date: 8 November 2023
Judges: Kirk JA; Wilson J; Fagan J

Background

The appellant was a collector and deliverer of cash within an organised money laundering network. Between December 2019 and March 2020, he collected and delivered approximately $28.8 million in cash across 33 days, operating at the direction of a more senior co-offender referred to as "the Coordinator." The appellant received a commission of around 0.5% of the cash handled, earning at least $104,395 in the first two months of 2020. He was arrested while in possession of $400,000 in cash intended for delivery.

The appellant pleaded guilty in the Local Court to one count of dealing in money intending it to become an instrument of crime, contrary to s 400.3(1) of the Criminal Code (Cth), which carries a maximum penalty of 25 years imprisonment. The sentencing judge allowed a 25% discount for the early guilty plea, resulting in a head sentence of 7 years and 6 months with a non-parole period of 4 years.

The Coordinator, who had a more senior role and whose offending spanned eight months involving nearly $60 million across two collectors, was sentenced approximately five weeks after the appellant. The Coordinator received a higher discount than the appellant, producing a final sentence that was closer to the appellant's than the objective differences in their offending might suggest. The appellant sought leave to appeal on two grounds: parity with the Coordinator's sentence, and manifest excess.

  • Whether the appellant had a justifiable sense of grievance when comparing his sentence to that of the Coordinator, whose final sentence was significantly reduced by a higher discount not available to the appellant.
  • Whether the sentence of 7 years and 6 months with a non-parole period of 4 years was manifestly excessive, having regard to the objective and subjective circumstances of the offending.

Decision

Ground 1: Parity

The Court found that parity analysis requires comparison of the starting points for each offender's sentence, not merely the final discounted outcomes. The Coordinator's offending was objectively more serious: he held a more senior role, recruited the appellant, directed two successive collectors, and his conduct extended over eight months and nearly $60 million. The starting point for the Coordinator's sentence appropriately reflected that greater criminality.

The convergence of the two final sentences was explained entirely by the Coordinator receiving a higher discount in circumstances that did not apply to the appellant. The Court held that no legitimate sense of grievance could arise from that comparison. Ground 1 was rejected.

Ground 2: Manifest Excess

The Court applied the principle from Dinsdale v The Queen (2000) 202 CLR 321 that manifest excess is a conclusion, not a finding dependent on identified error in the sentencing judge's reasoning. The appellant did not point to any specific feature of his offending or subjective circumstances that demonstrated a material discrepancy, nor did he identify any sentencing pattern for offences under the relevant provision that placed his sentence outside the range.

The Court assessed the sentence as a matter of impression against the totality of objective and subjective matters before the sentencing judge. It did not find the sentence manifestly unjust. Ground 2 was also rejected.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Parity challenges require a comparison of starting points, not final discounted sentences. Where a co-offender's lower final sentence results from a higher discount granted in circumstances unique to that person, the difference does not give rise to a legitimate grievance on the part of another offender.
  • The Court of Criminal Appeal confirmed that manifest excess is a conclusion reached by overall impression, and does not require the identification of a specific error in the sentencing judge's reasoning.
  • An appellant seeking to establish manifest excess is assisted by pointing to comparable sentencing patterns that show their sentence is an outlier. The absence of such comparators weighs against the ground succeeding.
  • In dismissing both grounds, the Court affirmed the sentence of 7 years and 6 months with a non-parole period of 4 years for a collector role in an informal value transfer scheme involving approximately $28.8 million over 33 days.
  • Where co-offenders occupy different levels in a criminal hierarchy, differences in the objective gravity of their respective offending are a legitimate basis for different sentencing starting points, independent of any discount considerations.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 400.3(1) (dealing in money intending it to become an instrument of crime; maximum penalty 25 years)
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 74 (providing a remittance service without registration)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 (manifest excess as a conclusion; role of appellate impression)