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District Court 14 April 2023

R v Lim

[2023] NSWDC 238

Fraud & dishonestyPublic order & justice offences
CRIME SENTENCE COMMONWEALTH AND STATE OFFENCES DEALING WITH PROCEEDS OF CRIME USING FALSE DOCUMENT

Citation: R v Lim [2023] NSWDC 238
Court: District Court of New South Wales
Date: 14 April 2023
Judge(s): Bourke SC DCJ

Background

The offender was sentenced for three Commonwealth offences of dealing in money reasonably suspected to be proceeds of crime, and one State offence of using a false document. The offending involved the offender depositing large sums of cash into various third-party bank accounts using bankcards held in the names of two Malaysian nationals, neither of which were his own identity.

Between September 2020 and September 2021, the offender conducted this activity at ATMs across Greater Sydney, exploiting a feature that allowed deposits made with one card to be redirected into unrelated accounts. The total amount dealt with across the relevant offences was just under $4 million. The offender was arrested on 15 September 2021 while attempting to make a further cash deposit, and was found in possession of a third-party bankcard and approximately $71,100 in cash.

The false document offence arose from a separate incident in December 2020, when the offender used a fraudulent New South Wales driver's licence in a false name to obtain a rental agreement for a storage unit at Storage King, Homebush. Police later linked the offender to a second storage unit at the same facility, which at the relevant time contained 269 kilograms of molasses tobacco.

  • What were the appropriate indicative sentences for each of the three Commonwealth proceeds-of-crime offences under the Commonwealth Criminal Code 1995?
  • How should the principle of totality apply when imposing an aggregate sentence across offences involving a similar course of conduct but discrete criminal acts?
  • What discount applied to each offence by reason of the offender's early guilty plea?
  • What was the appropriate sentence for the State false document offence, having regard to the penalties imposed for the Commonwealth matters?

Decision

The District Court determined the facts by reference to an agreed statement of facts reached after an initial two-day contested factual hearing. The parties had disputed the number of transactions attributable to the offender, which directly affected the quantum of funds underlying the sequence 2 and sequence 5 offences. That dispute was ultimately resolved by agreement, and the withdrawn evidentiary material was not relied upon.

His Honour found that the offender was entitled to a 25 per cent discount for his early guilty plea across all offences, reflecting the utilitarian value of those pleas. The indicative sentences for the Commonwealth offences, each adjusted for the plea discount, were: 16 months for the sequence 2 offence (dealing in $1,000,000 or more), 8 months for the sequence 3 offence (dealing in less than $100,000), and 14 months for the sequence 5 offence (dealing in $100,000 or more).

Applying the totality principle, his Honour considered that some notional accumulation was appropriate. Although the offences arose from a similar course of conduct, they represented discrete acts carried out at different times. An aggregate head sentence of two years and nine months was imposed, with the offender to be released after serving one year and nine months upon entering a self-recognisance.

For the State false document offence, his Honour convicted the offender but imposed no additional penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999, having regard to the Commonwealth sentences already imposed.

Orders Made

  • Aggregate head sentence of two years and nine months' imprisonment imposed for the three Commonwealth offences, dating from 15 September 2021 (date of custody), expiring 14 June 2024.
  • The offender to be released after serving one year and nine months (eligible from 14 June 2023) upon entering a self-recognisance of $100 without security.
  • For the State offence of using a false document (sequence 6): conviction recorded under section 10A of the Crimes (Sentencing Procedure) Act 1999, with no additional penalty imposed.

Key Takeaways

  • The District Court confirmed that where multiple proceeds-of-crime offences arise from a similar course of dealing but involve discrete criminal acts at different times, some degree of notional accumulation remains appropriate when determining an aggregate sentence under the totality principle.
  • An early guilty plea attracted a 25 per cent discount across both the Commonwealth and State offences, consistent with the utilitarian value recognised in sentencing for such pleas.
  • Where Commonwealth sentences are of sufficient weight, a court may deal with a related State offence by recording a conviction under section 10A of the Crimes (Sentencing Procedure) Act 1999 and imposing no further penalty.
  • Under Part 10.2 of the Commonwealth Criminal Code 1995, the tiered structure of proceeds-of-crime offences (distinguished by the quantum of funds involved) directly governs both the maximum penalty applicable and the indicative sentence set by the court.
  • Factual disputes at sentence about the quantum of funds dealt with are material to the level of offence charged and the sentence imposed, as the quantum determines which subsection of section 400.9 applies.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code 1995 (Cth), ss 400.9(1), 400.9(1A), 400.9(1AB)
- Crimes Act 1900 (NSW), s 254(b)(1)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Kim and Fang v The Queen [2016] VSCA 238
- R v Jiao [2015] NSWCCA 95