Citation: Reed v R [2023] NSWDC 331
Court: District Court of NSW
Date: 27 July 2023
Judge: Bennett SC DCJ
Background
The appellant had been charged in the Local Court at Sutherland with two offences: dealing with proceeds of crime under s 193C(2) Crimes Act 1900, and having in her custody approximately $31,498 that may reasonably be suspected of being stolen or otherwise unlawfully obtained, contrary to s 527C(1)(a) Crimes Act 1900. Police located the money in her handbag. At the time of the encounter, the appellant appeared to be significantly affected by cocaine and made statements to police that the money was "drug money," though she later retracted this at the substantive hearing.
The Magistrate dismissed the proceeds of crime charge but convicted the appellant on the goods in custody charge, imposing a two-year community corrections order. The appellant appealed both the conviction and the sentence to the District Court.
Legal Issues
- Whether the Magistrate erred in convicting the appellant of having custody of money reasonably suspected of being stolen or otherwise unlawfully obtained under s 527C(1)(a)
- Whether the appellant discharged her burden of proving, on the balance of probabilities, that she had no reasonable grounds to suspect the money was unlawfully obtained
- Whether the Magistrate's reasoning disclosed legal, factual, or discretionary error sufficient to enliven the District Court's independent assessment of the evidence
- Whether the sentence imposed by the Magistrate was appropriate given the appellant's personal circumstances
Decision
Conviction Appeal
Bennett SC DCJ found that the Magistrate's ex tempore reasons were ambiguous and imprecise in a way that disclosed scope for legal, factual, or discretionary error, warranting the District Court's own independent assessment of the evidence (at [41]). The court proceeded to evaluate all material before the Magistrate, including the appellant's own evidence on both the voir dire and substantive hearing.
The appellant's account at the substantive hearing was that the money had come from her boyfriend's business. The court found this explanation was undermined by her own admission that she had no involvement in the business finances and no financial control in it whatsoever (at [63]). Her statements to police that the money was "drug money" were admitted into evidence, and although she later said those statements were inaccurate, the court was not persuaded her alternative explanation was credible (at [60]-[65]). The court was satisfied beyond reasonable doubt that the money found in the appellant's custody may reasonably be suspected of being stolen or otherwise unlawfully obtained, and that the appellant had failed to discharge her burden of proving, on the balance of probabilities, that she had no reasonable grounds to suspect this (at [64]-[65]). The conviction appeal was dismissed (at [66]).
Sentence Appeal
The court allowed the sentence appeal. Bennett SC DCJ noted the appellant had no relevant prior convictions, was working toward qualifications as a veterinary nurse, and was otherwise of good character (at [71]-[72]). The court confirmed the finding of guilt but declined to proceed to a formal conviction, substituting the community corrections order with a good behaviour agreement for 18 months under s 10(1)(b) Crimes (Sentencing Procedure) Act 1999 (at [73]).
Orders Made
- The appeal from conviction is dismissed.
- The appeal from sentence is allowed.
- The finding of guilt is confirmed but no conviction is recorded; the appellant is to be of good behaviour for 18 months pursuant to s 10(1)(b) Crimes (Sentencing Procedure) Act 1999 in conjunction with s 9 of the Act.
Key Takeaways
- Under s 527C(1)(a) Crimes Act 1900, the prosecution must prove that the money in the defendant's custody may reasonably be suspected of being stolen or otherwise unlawfully obtained, assessed objectively by the court at the time of hearing, not limited to evidence available at the time of arrest (at [17]).
- The suspicion required by s 527C(1)(a) must be determined by objective criteria applied by the court, not by reference to the subjective beliefs of police at the time of the arrest (at [15]).
- Where ambiguity or imprecision in a Magistrate's ex tempore reasons discloses scope for legal, factual, or discretionary error, the District Court on appeal is required to undertake its own independent assessment of the evidence (at [41]).
- Once the prosecution establishes the elements of the offence, the defendant bears the burden of proving on the balance of probabilities that she had no reasonable grounds to suspect the money was unlawfully obtained; a recantation of earlier admissions, where otherwise uncorroborated, may be insufficient to discharge that burden (at [18], [64]-[65]).
- Good character, absence of relevant prior convictions, and positive rehabilitation prospects can support a sentencing outcome under s 10(1)(b) Crimes (Sentencing Procedure) Act 1999, avoiding a formal conviction even where a finding of guilt is confirmed (at [72]-[73]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes Appeal and Review Act 2001
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985
- Evidence Act 1995
- Law Enforcement Powers and Responsibilities Act 2002
- Supreme Court Act 1970
Cases
- Cleary v Hammond [1987] 1 NSWLR 111
- Dyason v Butterworth [2015] NSWCA 52
- Ex Parte Patmoy; re Jack (1944) 44 SR (NSW) 351
- Grant v R [1981] 147 CLR 503
- Hakem v Johnson NSW Supreme Court per Wood J on 15 October 1993 unreported
- in Anderson v Judges of the District Court of NSW (1992) 27 NSWLR 701
- Kelly v The Queen (2004) 218 CLR 216
- Lunney v DPP [2021] NSWCA 186
- Purdon v Dittmar [1972] 1 NSWLR 94
- R v Abbrederis (1981) 1 NSWLR 530
- R v Dittmar [1973] 1 NSWLR 722