Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Regina v Qian Lin [2014] NSWCCA 254
• Hearing dates: 13 October 2014
• Decision date: 10 November 2014
• Before: Leeming JA at [1]; Fullerton J at [3]; Bellew J at [17]

Decision

(1) The Crown appeal against sentence is upheld.

(2) The sentence imposed in respect of the charge contrary s. 400.4(1) of the Criminal Code 2005 (Cth) is quashed.

(3) In lieu thereof, the respondent is sentenced to 1 year and 3 months imprisonment to date from 4 April 2014 and to expire on 3 July 2015.

• Catchwords: APPEAL - Crown appeal against manifest inadequacy - money laundering - seriousness of offending evidenced in particular by large amount of money and repeated acts of the respondent - offending motivated by the prospect of financial gain - necessity to have proper regard to general deterrence - Crown appeal upheld - sentence manifestly inadequate - respondent re-sentenced
• Legislation Cited: Crimes Act 1914 (Cth); Crimes Act 1900 (NSW); Criminal Code 2005 (Cth)
• Cases Cited: Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638; Everett v R [1994] HCA 49; (1994) 181 CLR 295; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; Griffiths v R [1977] HCA 44; (1977) 137 CLR 293; Markarian v The Queen (2005) 228 CLR 357; R v Girard [2004] NSWCCA 170; R v Guo; R v Quian [2010] NSWCCA 170; (2010) 201 A Crim R 403; R v Holder and Johnston [1983] 3 NSWLR 245; R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370; R v Li (2010) 202 A Crim R 195; R v MD and ors [2005] NSWCCA 342; (2005) 156 A Crim R 372; R v Nguyen [2006] NSWCCA 369; (2006) 166 A Crim R 124; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23; R v X [2004] NSWCCA 93; R v Zerafa [2013] NSWCCA 222
• Category: Principal judgment
• Parties: Regina (Cth) - Appellant; Qian Lin - Respondent
• Representation: Counsel: R J Bromwich SC and T Muir - Appellant; J Stratton SC and A Webb - Respondent; Solicitors: Commonwealth Director of Public Prosecutions - Appellant; Hanby and Associates - Respondent
• File Number(s): 2012/300850015
• Publication restriction: Nil

Decision under appeal

• Date of Decision: 2013-12-06 00:00:00
• Before: Toner SC DCJ

Judgment

1 LEEMING JA: I agree with Bellew J, for the reasons that he gives, that the sentence imposed by the primary judge for the respondent's money laundering conviction was erroneously lenient. I also agree with his Honour that the appropriate sentence for the money laundering conviction is imprisonment for 1 year and 3 months. That sentence, for an offence whose maximum penalty is 20 years imprisonment, reflects a number of considerations favourable to the respondent, including the facts that this is a Crown appeal, the respondent's early plea, her family circumstances, the manner in which she was arrested, and her remorse and prospects of rehabilitation (which are excellent).

2 I respectfully disagree with Fullerton J, whose reasons I have also had the advantage of reading in draft, that this is an appropriate case for the exercise of the Court's residual discretion. I am conscious that the respondent will have served the majority (some seven ninths) of the period of imprisonment imposed for this conviction by the primary judge by the time this judgment is delivered. That is a matter which is to be given great weight where there have been significant delays in the appellate process: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [2] and [5]. But I do not consider that that can be decisive in the present case. There have been no significant delays, and the reason why the respondent has served most of the sentence imposed by the primary judge is that that sentence was manifestly inadequate. I consider that the respondent's family circumstances, which are very unfortunate, appropriately find reflection in the relatively lenient sentence imposed by this Court, not in the exercise of a discretion to leave in place a manifestly inadequate sentence.

3 FULLERTON J: I have had the advantage of reading the judgment of Bellew J and agree with his Honour that the sentence imposed by the sentencing judge was erroneously lenient. Subject to the exercise of the residual discretion, I also agree with the orders his Honour proposes by way of re-sentence and note, in particular, that his Honour imposed a sentence which was consistent with the restraint appropriate to re-sentence following a successful Crown appeal.

4 However, and not without some reservation, I have come to a different conclusion as to the ultimate disposition of the Crown appeal. In my view, this is an appropriate case in which to exercise the residual discretion and to dismiss the Crown appeal notwithstanding error (largely latent) having been made out.

5 The respondent's affidavit sworn 13 October 2014 was relied upon in the event of re-sentence and as providing grounds for the exercise of the residual discretion. Those grounds include the respondent's mental health, the impact of the respondent's incarceration on her children, the imminence of the respondent's release on parole and that the proposed order by way of re-sentence would extend the minimum period she is to be in custody by only six months.

6 In the affidavit, she deposes to the fact that correctional staff have been concerned for her mental health and referred her for psychiatric assessment. She has since been treated for depression and has been prescribed both antipsychotic and antidepressant medication which is administered to her daily.

7 A report from a clinical psychologist, dated March 2014, was tendered on sentence. The psychologist reported that the respondent sought treatment after being placed on a psychiatric hold following expressed suicidal ideation after her arrest. She attended a total of 18 sessions with a clinical psychologist before her sentence proceedings. Although she was assessed as being motivated to seek support, she had difficulty engaging in the therapeutic interventions offered to her due to her low psychosocial functioning and acute levels of distress. Her prognosis was at that time assessed as guarded pending the diminishment of her acute stress state. The psychologist reported that the respondent's history and diagnosis would render her vulnerable to a further impairment in functioning if she does not receive ongoing therapeutic care in the custodial setting.

8 Whilst I do not doubt that she is in receipt of a level of care commensurate with the available resources administered by Justice Health, the administering of antipsychotic medication would seem to suggest a deterioration in her mental health, which carries with it a real risk that her ultimate readjustment in the community upon her eventual release to parole will be retarded. Whilst it is entirely a matter for the respondent as to whether she participates in any programs offered at the Emu Plains Correctional Centre, or whether she utilises the exercise periods which are provided to her, the fact that in her affidavit she has declined both would appear to me to be likely explained, to some extent, by her psychiatric condition.

9 At [66]-[73], Bellew J reviewed the evidence available to the sentencing judge bearing on the issue of hardship to the respondent's family in the event of her incarceration. At [66], part of the respondent's affidavit tendered on sentence was extracted. In that extract, she describes her son's mental condition, his reception into a special class at school, and his physical dependence on her.

10 The affidavit tendered on re-sentence provides additional insights into the respondent's family circumstances and, in particular, the way her primary school aged children have adjusted to her incarceration.

11 Although her daughter (now aged 13) and her son (now aged 11) are in the care of their father, with whom the respondent has reunited since her arrest and charge after having divorced him at some unspecified time in the past, she expresses an understandable concern at the level of care that he is able to give when his work as a truck driver has him leaving home at 3am and returning in the early evening. She is also concerned they are spending little time, other than school time, outside the home with no engagement in extracurricular activities. Her son, who has difficulties socialising with others because of his mental health problems, is a continuing source of particular worry for her. She describes her son as having changed from "a very positive boy to someone extremely negative".

12 Before she demanded her children not visit her in custody in fear that the negative impact on them would be detrimental and permanent, in her last visit with her daughter she was described by the respondent as being "void of any emotion, blocking everything out and keeping it inside. There was no expression from her as a young girl".

13 Finally, what cannot be overlooked is that the respondent's non-parole period as fixed by the sentencing judge was due to expire on 3 February 2015 and the re-sentencing order will extend that period by six months.

14 The respondent was found by the sentencing judge to be a woman with excellent prospects of rehabilitation with little or no risk of her coming into contact with the criminal justice system again. His Honour also accepted that her arrest and later incarceration was a matter of great humiliation for her and her family, and something that she will reflect upon in years to come. It was for these reasons, amongst others, that his Honour did not propose that the respondent be supervised upon her release.

15 I accept that these considerations, amongst others favourable to the respondent, were taken into account by Bellew J in the re-sentencing order his Honour proposes. However, I am compelled to the finding that the guidance afforded sentencing judges by allowing the appeal, and the importance of individual justice, are both preserved in this case by the exercise of the residual discretion in the respondent's favour.

16 The order I propose is:

1. The Crown appeal be dismissed.

17 BELLEW J: On 4 April 2014 Qian Lin ("the respondent") appeared for sentence before his Honour Judge Toner SC in the District Court, having previously pleaded guilty in the Local Court to the following offences:

(i) dealing with money in excess of $100,000.00 intending that it will become an instrument of crime, contrary to s. 400.4(1) of the Criminal Code 2005 (Cth) ("the money laundering offence");

(ii) possessing equipment for making false documents, contrary to s. 256(1) of the Crimes Act 1900 (NSW) ("the possession offence"); and

(iii) dealing with identification information facilitating the commission of forgery, contrary to s. 192J of the Crimes Act 1900 (NSW) ("the dealing offence").

18 The respondent was sentenced as follows:

(i) in respect of the money laundering offence, a fixed term of 9 months imprisonment to date from 4 April 2014 and to expire on 3 January 2015;

(ii) in respect of the possession offence, a non-parole period of 6 months commencing on 4 August 2014 to expire on 3 February 2015, with an additional term of 6 months to expire on 3 August 2015;

(iii) in respect of the dealing offence, a non-parole period of 6 months commencing on 4 August 2014 and expiring on 3 February 2015 with an additional term of 6 months imprisonment expiring on 3 August 2015.

19 The total sentence imposed was a non-parole period of 10 months, commencing on 4 April 2014 and expiring on 3 February 2015, with an additional term of 6 months imprisonment expiring on 3 August 2015.

20 On 5 May 2014 the Commonwealth Director of Public Prosecutions filed a notice of appeal against the sentence imposed for the money laundering offence, on the ground that the sentence was manifestly inadequate. The Director does not appeal in respect of the sentences imposed in respect of either of the remaining two offences.

THE FACTS

An overview

21 The respondent was a participant in two activities of a criminal syndicate. The first, to which the possession and dealing offences related, involved the manufacture, distribution and use of false identity documents such as driver licences, ATM cards and credit cards. In circumstances where the sentences imposed for this offending are not the subject of the present appeal, I make reference to it only for the sake of completeness.

22 The second activity in which the respondent was a participant was money laundering. The sentence imposed for that offending is the subject of the Crown appeal. The respondent, on four separate occasions, received significant amounts of cash and then arranged for it to be transferred to bank accounts operated in the People's Republic of China. The total amount transferred was $324,508.00, spread over four separate transactions as follows:

(i) $104,508.00 on 17 February 2012;

(ii) $100,000.00 on 29 June 2012;

(iii) $70,000.00 on 17 July 2012; and

(iv) $50,000.00 on 17 July 2012.

23 The respondent dealt with the money which was the subject of each of these transactions intending that it would become an instrument of crime. In other words, she intended to thwart the reporting requirements relating to the transfer of funds overseas. When arranging for the transfer of each amount the respondent produced, as a form of identification, a driver licence in the name of Cathy Lee. That was obviously not the respondent's real name, although the licence bore her photograph. The respondent also nominated a mobile telephone number 0405 989 364 as her contact number. That telephone service was subscribed in the name of "Jess Jones" whose date of birth was said to be 6 October 1960. No record of that person appeared on the databases of the Australian Electoral Commission, NSW Roads and Maritime Services, Australian Federal Police, NSW Police and the Department of Immigration and Border Protection.

24 On each occasion, the respondent's actions were carried out under the direction of Gulun Zhang ("Zhang"). On 6 December 2013 Zhang appeared for sentence before Judge Toner SC in respect of a number of charges, including a charge contrary to s. 400.4(1) of the Criminal Code 1995 involving overseas transfers totalling $770,000.00. In respect of that charge, he was sentenced to a non-parole period of 3 years and 6 months, with a balance of term of 2 years and 6 months.

The first transfer

25 On 17 February 2012 the respondent attended a business known as "The Professional Loan Centre" at Burwood. She completed documentation for an overseas transfer on which she recorded her name and address as follows:

Cathy Lee,

2/87 Broome Street

Maroubra NSW 2015.

26 The respondent nominated, as her contact number, the mobile telephone to which I have previously referred. She provided details of the bank account in China to which the money was to be transferred and handed over a sum of $104,508.00 in cash.

The second transfer

27 At about 9:00am on 29 June 2012 Zhang contacted the respondent. At about 9:53am the respondent and Zhang were observed in Eastwood standing by the open boot of Zhang's vehicle. They were then seen to walk to a business known as Anping Money Exchange where the respondent handed over a sum of $100,000.00. She again produced the driver's licence in the false name of Cathy Lee and nominated two bank accounts in China into which the money was to be transferred.

28 It later transpired that one of the account numbers nominated was incorrect. On 2 July 2012 Zhang sent the respondent a message nominating the correct account number. At about 5:03pm that day the respondent returned to the Anping Money Exchange. She again produced the licence in the name of Cathy Lee as a form of identification and provided the correct account number to effect the transfer.

The third and fourth transfers

29 On the morning of 17 July 2012 Zhang collected the respondent from her residence following which they drove to Quay Street, Haymarket. At about 10:59am, the respondent attended the business of Global Foreign Exchange. She again produced the licence in the name of Cathy Lee as identification. She completed the relevant documentation and handed over $70,000.00 in cash. At 11:17am she contacted Zhang and said:

"I have done it".

30 Zhang then drove the respondent to Ashfield. At about 11:35am the respondent attended APIG Remittance Services where she completed the necessary documentation and handed over a sum of $50,000.00 in cash requesting that it be transferred to a bank account in China. Once again, the respondent used the false licence in the name of Cathy Lee as a form of identification.

The evidence before the sentencing judge

31 The respondent swore an affidavit which was tendered in her case before the sentencing judge and in which she set out (inter alia) her involvement in the entirety of her offending. The contents of that affidavit were not the subject of any real challenge by the Crown in cross-examination. In addition to some testimonial material, two medical reports were also tendered in the respondent's case. The first was that of Dr Olav Nielssen dated 21 November 2013, who diagnosed the respondent as suffering from an adjustment disorder with anxiety and depression. He found that this disorder was triggered by the cumulative stress of being charged, along with what he referred to as the associated "protracted legal proceedings". The second was that of Ms Danielle Hopkins, Clinical Psychologist, with whom the respondent had undergone 16 sessions of therapy following her arrest. According to Ms Hopkins, the respondent met the criteria for a diagnosis of major depression.

THE REASONS OF THE SENTENCING JUDGE

32 His Honour concluded (and it was not in dispute) that the respondent was entitled to a discount of 25 per cent on account of her early pleas of guilty. He noted that the respondent was 43 years of age and was an Australian citizen, having arrived from the People's Republic of China in 1998. He also noted that the respondent had two children, that she was divorced from the children's father and that she was a person of no prior convictions. His Honour also found that the respondent's offending was "a matter of great humiliation for her and her family".

33 I have dealt with specific aspects of his Honour's findings in my consideration of the submissions of the parties.

SUBMISSIONS OF THE PARTIES

Submissions of the Crown

34 The Crown submitted that the sentence was one of "extreme and impermissible leniency". In doing so, the Crown did not rely upon any specific error(s) on the part of the sentencing judge, but pointed to:

(i) the prescribed maximum penalty;

(ii) the objective seriousness of the offending;

(iii) the need for general deterrence;

(iv) a comparison of the sentence imposed upon the respondent with sentences imposed in other cases of similar offending; and

(v) the manner in which his Honour dealt with the issue of the hardship upon the respondent's family as a consequence of her incarceration.

35 The Crown pointed to the maximum penalty as an indicator of the seriousness with which the Parliament viewed the offence of money laundering. The Crown submitted that viewed against that maximum penalty, the sentence imposed upon the respondent was consistent only with minor offending and/or exceptional subjective circumstances, neither of which was a feature of the present case.

36 In terms of the objective gravity of the offending, the Crown stressed that money laundering was a serious criminal activity and emphasised, in the case of the respondent's offending:

(i) her role;

(ii) her belief that the money laundering was for the purposes of tax evasion;

(iii) the substantial amount of money involved and the consequent loss to the revenue;

(iv) the number of transactions, and the period over which they were carried out; and

(v) the degree of planning involved.

37 The Crown also submitted that general deterrence was of particular importance in sentencing for offending of this kind. It was submitted that although his Honour had referred to principles of general deterrence, the sentence did not reflect such principles having been given any real weight.

38 The Crown further submitted that it was relevant to compare the sentence imposed on the respondent with those imposed in other cases of similar offending. Whilst acknowledging the limitations placed upon comparative exercises of that kind, the Crown submitted that such comparison provided a further indicator of the manifest inadequacy of the sentence imposed.

39 Finally, the Crown submitted that the evidence of hardship to the respondent's family as a consequence of her imprisonment was sparse, and that there was no basis for any finding that such hardship was exceptional. The Crown acknowledged that the sentencing judge made no such finding, but submitted that it was evident that his Honour had placed significant emphasis on this factor. It was suggested that this provided a possible explanation for the imposition of what was said to be a manifestly inadequate sentence.

Submissions of the respondent

40 Whilst senior counsel for the respondent, in both written and oral submissions, expressly conceded that the sentence imposed was lenient, he submitted that it was not manifestly inadequate. He pointed, in particular, to the fact that the criminality of the respondent was considerably less than that of Zhang and submitted that taking all matters into account, the offending was properly regarded as falling close to the bottom of the range of objective seriousness. It was submitted that on any view, the respondent was subservient to Zhang and that this had been properly reflected in the sentence which was imposed.

41 Senior counsel conceded the importance of general deterrence. However, he submitted that it was clear from the remarks on sentence that his Honour was aware of that importance, and that he took it into account when sentencing the respondent.

42 To the extent that the Crown relied upon sentences imposed in other cases of similar offending, senior counsel cautioned against the use of such material for comparative purposes. He emphasised the need to concentrate upon the respondent's offending.

43 Finally, in terms of the Crown's reliance upon the manner in which his Honour dealt with the question of hardship to the respondent's family, senior counsel submitted that the sentencing judge was clearly entitled to give that factor appropriate weight and that no error was demonstrated. In doing so, he emphasised that the Crown did not assert that his Honour had erroneously found that the hardship was exceptional.

THE RELEVANT PRINCIPLES

44 The right of appeal by the Crown against a sentence which is said to be manifestly inadequate is an exceptional one. It must be exercised with restraint, in order to allow the Court to lay down sentencing principles: Griffiths v R [1977] HCA 44; (1977) 137 CLR 293; Everett v R [1994] HCA 49; (1994) 181 CLR 295; R v MD and ors [2005] NSWCCA 342; (2005) 156 A Crim R 372. In Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 French CJ, Crennan and Kiefel JJ put the matter in this way (at [1] and [36], citations omitted):

[1] The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions ("Crown appeals") under s 5D of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act") is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the "residual discretion".

....

[36] A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion."

CONSIDERATION

The maximum penalty

45 The maximum penalty for the money laundering offence is 20 years imprisonment. That is an indication of the seriousness with which the Parliament regards offending of this nature, and it acts as a sentencing yardstick. In Markarian v The Queen (2005) 228 CLR 357 Gleeson CJ, Gummow, Hayne and Callinan JJ said at [31]:

"...careful attention to maximum penalties will almost always be required, firstly because the legislature has legislated for them, secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."

46 In the present case his Honour was obviously aware of the maximum penalty, having made specific reference to it (at ROS 1). However in my view, there is considerable merit in the Crown's submission that when assessed against the available maximum penalty, the sentence imposed is one which is consistent only with either relatively minor offending, and/or exceptional subjective circumstances. For the reasons more fully developed below, the respondent's offending was not minor and her subjective circumstances were not exceptional. Although it would not be open to conclude, by reference to the maximum penalty alone, that the sentence is manifestly inadequate, a combination of that factor and a number of others leads me to that conclusion.

The objective seriousness of the offending

47 His Honour made a number of findings which were relevant to an assessment of the objective seriousness of the respondent's offending. In particular, in relation to the circumstances in which the respondent came to be involved his Honour found as follows (at ROS 23);

"Her participation in all of these crimes was because she was effectively persuaded to participate by Mr Zhang..." (my emphasis).

48 In her affidavit (at para. (38) and following) the respondent set out the circumstances in which she came to be involved in the offending:

"38. In 2012, Zhang told me that some friends of his would like to transfer some money to China and asked if I would like to make some commission. Before that, he would always tell me about people making money like this. He told me that people made money by transferring money. He told me I might make $500.00 per $100,000.00 transferred.

39. The first time he asked me, I refused because he wanted me to use the false ID and I knew this was illegal.

40. Two days later I was curious and asked him about the money transfer. He told me that someone else had transferred the money for him and had got a commission of almost $2,000.00. This influenced me and the next time he asked again I agreed."

49 That evidence does not support a conclusion that the respondent was "effectively persuaded" by Zhang to become involved. On the respondent's own evidence she approached Zhang (albeit after declining his initial request). She was influenced by the prospect of earning money. It is sadly ironic that the respondent ultimately earned the relatively small sum of $1,500.00 as a consequence of her actions.

50 His Honour also found as follows (at ROS 24):

"She believed that the money was not going to leave Australia and further she believed that it was simply as a result of tax avoidance schemes that these monies needed to be laundered. The basis of her belief comes from what she says she was told by Zhang. Again, I have my suspicions in relation to what her beliefs might be but my beliefs do not extent (sic) beyond that, namely mere suspicion, and thus I cannot conclude anything other than what she has in fact said."

51 The only evidence which touched upon this issue was the respondent's affidavit. In para. (41) the respondent said:

"I thought that maybe (sic) the money was obtained from tax evasion. Zhang always told me that the money actually never leaves Australia" (my emphasis).

52 However, in para. (46) the respondent said:

"When I transferred the money I was told that the money was being sent to China to invest in real estate" (my emphasis).

53 These statements cannot be reconciled. They were not the subject of cross-examination and his Honour made no reference to them. The first statement is consistent with his Honour's finding but the second is completely to the contrary.

54 The sentencing judge did not reach a specific conclusion about the level of objective seriousness of the respondent's offending. However, the sentence imposed is consistent with a conclusion on the part of the sentencing judge that it fell at, or at least very much towards, the lower end of the scale. If that was his Honour's conclusion, it is one with which I am unable to agree.

55 In R v Li (2010) 202 A Crim R 195 Barr AJ (with whom Allsop P, Basten JA, McClellan CJ at CL and Simpson J agreed) recognised that offending of this nature comprehends a wide range of criminality and that accordingly, there will be an appreciable variation in the length of sentences imposed. However, his Honour cited a number of factors which he regarded as relevant to an assessment of the objective seriousness of such offending. In particular, he said (at [41])

"It seems to me, without undervaluing the importance of the principal differentiating factors - minimum value of money or property and state of mind - that each case will have other variables that bear on sentence. Perhaps the most important will be an exact appreciation of what the offender did, what acts he performed and with what authority and over what period of time. The total value of money or property involved will be important, and whether the money or property belonged to the offender or to another. The degree of planning or deceit that led to the commission of the offence and whether actual loss resulted, and the extent of such loss, will be important. Just as there is a distinction between recklessness and belief, the precise nature of proved belief may vary so as to affect the sentence. There will be a range of possible strengths of belief, rising to certain knowledge, as in Maldonado."

56 I am unable to accept the submission advanced by senior counsel for the respondent that the application of these factors to the respondent's offending leads to the conclusion that such offending was at the lower end of the scale. On the contrary, a consideration of the factors identified by Barr AJ demonstrates the objective seriousness of the respondent's offending, and the manifest inadequacy of the sentence imposed.

57 Firstly, the amount of money which was the subject of the four transfers was significant. That significance can be gauged by (inter alia) the fact that the section under which the respondent was charged creates an offence of dealing in property worth $100,000.00 or more. The total transferred by the respondent was more than three times that amount.

58 Secondly, the actions of the respondent in effecting the transfers were repeated and not isolated.

59 Thirdly, as Barr AJ pointed out, perhaps the most important consideration will centre upon an exact appreciation of what an offender did, what acts he or she performed and with what authority he or she performed them. In these respects, there are a number of relevant considerations.

60 To begin with, His Honour described the respondent (at ROS 23) as "a runner so to speak". This was consistent with the Crown's use, in its written submissions on sentence, of the term "runner" to describe the respondent's role. The use of such a term to describe the respondent's role must not obscure what she actually did: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [19] per Gleeson CJ, Hayne, Gaudron and Callinan JJ. On four separate occasions the respondent:

(i) liaised with Zhang;

(ii) attended money transfer businesses;

(iii) produced large amounts of cash for transfer;

(iv) completed the necessary documentation to facilitate the transfer being made; and

(v) produced false identification.

61 That role was a significant one. Without someone to perform it, the conduct of Zhang's money laundering business would have been made more difficult. There is no doubt that in performing that role the respondent was acting under Zhang's direction and control. There is also no doubt that Zhang was responsible for the vast majority of the planning that must necessarily have taken place prior to each transfer being made. Equally, the respondent made herself available to accede to Zhang's requests. In doing so she:

(a) was motivated by the prospect of financial gain;

(b) was, at the very least, suspicious that the money was the result of tax evasion; and

(c) knew that the presentation of false identification was illegal.

62 The acts of the respondent, the knowledge with which she committed them, the amount of money involved, and the importance of the role that she played, are all factors which support the conclusion that the objective seriousness of her offending fell at a substantially higher level than that submitted by senior counsel on her behalf. As such, it warranted a substantially greater sentence.

General deterrence

63 Money laundering is a serious criminal activity. It is one which finds a position at the heart of organised and professional crime syndicates. It warrants severe punishment for a variety of reasons, not the least of which is to reflect general deterrence: see R v Huang; R v Siu [2007] NSWCCA 259 at [36]; (2007) 174 A Crim R 370; R v Guo; R v Quian [2010] NSWCCA 170; (2010) 201 A Crim R 403 at [91].

64 In the present case his Honour said the following regarding general deterrence (at ROS 25):

"It has been said frequently and properly in my humble view that deterrence, both general and specific, play an important role in the sentencing process, together with components to simply punish for the crimes committed."

65 Senior counsel for the respondent submitted that this passage made it clear that his Honour was aware of the importance of general deterrence, and that he took that matter into account. I accept that his Honour was obviously aware of its importance. However, there is something of a displacement between the stated need for general deterrence, and the sentence which his Honour ultimately imposed. In my view, the only available conclusion is that although his Honour made reference to general deterrence, it was given little weight.

The issue of hardship to the respondent's family

66 In paras. (50) and (51) of her affidavit the respondent said:

"In Year 4, my son had developed mental problems. He had been in the special class. His condition was not so serious so we didn't get government support. But at that time, there was a vacancy in the special class which was run by the Department of Education, so my son went into the class until an eligible student came in. He then had to move back to the mainstream class. He had also attended speech therapy in the last couple of years and he also attended a child psychologist at North Shore Community Health Centre when he was in Year 1.

51. My son was a little bit behind children of the same age. He still has a speech problem. Although he is 11 years old, he still falls asleep lying next to me and playing with my hair."

67 The report of Dr Nielssen which was before the sentencing judge contained the following reference under the heading "Other history" at page 4:

"Ms Lin said that she came to Australian in 1998 to marry a man of Chinese heritage who drive semi-trailers at that time. She said they have two children, now aged 12 and 10 who are both doing well at school. She said that she felt guilty at not being able to look after them because of her depressed and anxious state."

68 In the course of his remarks on sentence, his Honour said (at ROS 22):

"She has two children, one aged 13 and one aged 11. The oldest of her children, her daughter has had some developmental problems. She is divorced from their father but remains on good terms with him as I understand it...There is no doubt that the fact of this offender's incarceration will have an adverse impact on her children, each of whom are very close to her and each of whom are dependent. Who will look after the children while she is in custody is not at all clear from the material but I suspect it will be there father but none the less for the purposes of the Commonwealth legislation I take that factor into account in determining the proper sentence to be imposed in this case."

69 His Honour's reference to "the Commonwealth legislation" was a reference to s.16A(2)(p) of the Crimes Act 1914 (Cth) which is in the following terms:

"Matters to which court to have regard when passing sentence etc.--federal offences

16A (1) ...

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

...

(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

...."

70 The potential effect of the respondent's incarceration upon her children assumed little or no significance during the sentence proceedings. The respondent did not assert that the effect would be exceptional and the issue does not appear to have been the subject of any submission made on the respondent's behalf by counsel then appearing for her.

71 Before a circumstance falling within s. 16A(2)(p) can be given substantial weight, it must be exceptional: R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 per Spigelman CJ at [13]-[17]; R v Zerafa [2013] NSWCCA 222 per Hoeben CJ at CL (Latham J agreeing). Although senior counsel for the respondent placed emphasis upon the judgment of Beech-Jones J in Zerafa, his Honour was in dissent. The judgment of the majority reflects the current position of this Court.

72 What weight his Honour actually gave this factor remains unclear. There was, as he effectively acknowledged, little evidence as to the precise effect of the respondent's incarceration upon her family. It was open to his Honour to take the matter into account as part of the respondent's overall subjective case: R v Nguyen [2006] NSWCCA 369; (2006) 166 A Crim R 124 at [27] per James J, Hidden and Hislop JJ agreeing, citing R v X [2004] NSWCCA 93 and R v Girard [2004] NSWCCA 170. However, there was certainly no evidence to support the conclusion that effect of the respondent's incarceration upon her family was exceptional, such that it justified a substantial reduction in sentence.

73 The Crown suggested that the manner in which his Honour dealt with this issue may have played a part in his determination of sentence. Whilst not asserting a specific error, the Crown suggested that the sentence was consistent with too much weight having been given to the consequences of the respondent's incarceration upon her children. That is necessarily speculative. I am not able to conclude that any error arises from the manner in which his Honour dealt with this issue. In any event, and for the other reasons I have set out, I have come to the view that the sentence imposed is manifestly inadequate.

THE COURT'S RESIDUAL DISCRETION

74 Senior counsel for the respondent submitted that in the event that the conclusion was reached that the sentence imposed was manifestly inadequate, the Court should exercise its discretion and not intervene. In considering whether the discretion should be exercised, the Court is not to have regard to any element of double jeopardy involved in the respondent being sentenced again: Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638; Green (supra) at [24]-[26].

75 I am not able to accede to senior counsel's submission. There are no circumstances which support it. The manifest inadequacy of the sentence is such that this Court's intervention is warranted.

RE-SENTENCE

76 I have had regard to all of the material which was before the sentencing judge. The respondent has no criminal history and in my view presents little or no risk of re-offending. I have also had regard to the fact that the respondent is entitled to a discount of 25% on account of her early plea of guilty. I have also had regard to the contents of a further affidavit sworn by the respondent on 13 October 2014 which was read in the event that the Court came to re-sentence.

77 The respondent is currently employed in custody in a milk processing laboratory. Consistent with the diagnoses of Dr Nielssen and Ms Hopkins, she is being treated for depression and has been prescribed anti-depressant medication.

78 Although the respondent was divorced from her husband some time ago, she has now reconciled with him. He now resides with, and cares for, their two children. However as a consequence of his employment as a truck driver he is required to leave home at 3:00am each day and does not return until 6:00pm. As a consequence, the children (who are now aged 11 and 13) spend large amounts of time at home by themselves. The respondent has had limited contact with them since being taken into custody.

79 During the hearing of the appeal the Court was informed that the respondent's husband has himself been charged with similar offending. He was apparently discharged at the conclusion of a committal hearing but an ex-officio indictment has been presented against him in the District Court. The Court was informed that it was anticipated that there would be one or more pre-trial applications and that taking all matters into account, it was not expected that any trial of the respondent's husband would take place before about October 2015. Whilst the Court was not informed of the precise details of the case brought against the respondent's husband, a custodial sentence would seem likely in the event that he is convicted. If it were the case that the respondent remained in custody beyond the commencement of any term of imprisonment of her husband, her children could potentially be left without a parent to care for them. No other person has been identified as being available to assume that responsibility. If that were the case, exceptional hardship would result. I am obviously not able to find that this will eventuate and accordingly, it is not open to me to give it substantial weight. However in my view it remains a matter which should be taken into account.

80 I have had regard to the sentences imposed in cases of similar offending to which the Court was referred, although I am necessarily mindful of the fact that sentencing is not a mathematical exercise, and that the circumstances of cases differ. I have also had regard to the sentence imposed upon Zhang for money laundering. The respondent's role was substantially less than that of Zhang, and was in fact carried out under his direction and control. Further the amount involved in the respondent's offending was less than that involved in that of Zhang. The sentence I propose takes into account all of these considerations.

81 I have also had regard to the respondent's unchallenged evidence, which was before the sentencing judge, of the extra curial punishment she has suffered. In particular, the publicity which surrounded the respondent's arrest (which was, of itself, significant) led directly to the termination of her employment. I have also taken into account the fact that the respondent has expressed considerable remorse for her offending. There is nothing to suggest that such expression is anything other than genuine.

82 I should note that in circumstances where the sentence which I propose has been determined in the context of a successful Crown appeal, it is substantially less than that which should have been imposed at first instance: R v Holder and Johnston [1983] 3 NSWLR 245 at 256. The sentence I propose will also have the effect of completely subsuming those imposed for the possession and dealing offences. This will result in the respondent remaining in custody during periods in which she would have otherwise have been eligible for parole in respect of those offences. However, that result is unavoidable in circumstances where the only sentence which was the subject of the Crown appeal was that imposed for the money laundering offence.

83 Finally, I note the provisions of s. 19AC of the Crimes Act 1914 (Cth) which are in the following terms:

19AC When court must fix a recognizance release order

(1) Subject to subsections (3) and (4), where:

(a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and

(b) the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and

(c) at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;

the court must make a recognizance release order in respect of that sentence or those sentences and must not fix a nonparole period.

(2) Subject to subsections (3) and (4), where:

(a) while a person is in prison and is serving or subject to a federal sentence, a further federal sentence is imposed on the person; and

(b) the result is that the person is to serve or to complete federal sentences the unserved portions of which do not exceed, in the aggregate, 3 years; and

(c) at the time the further federal sentence is imposed, the person is not already subject to a recognizance release order in respect of a federal sentence;

the court imposing the further sentence must make a recognizance release order in respect of all federal sentences to be served or completed by the person and must not fix a nonparole period.

(3) Where:

(a) the federal sentence or federal sentences referred to in paragraph (1)(b); or

(b) the unserved portions of the federal sentences referred to in paragraph (2)(b);

in the aggregate, do not exceed 6 months, the court is not required to make a recognizance release order.

(4) Where, but for this subsection, a court would be required by this section to make a recognizance release order in respect of a person, the court may decline to do so if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that such an order is not appropriate.

(5) Where the court decides that a recognizance release order is not appropriate, the court must:

(a) state its reasons for so deciding; and

(b) cause the reasons to be entered in the records of the court.

84 Section 19AC(2) applies to the present case. The unserved portion of the sentence I propose exceeds 6 months, such that s. 19AC(3)(b) has no application. It follows that subject to s. 19AC(4) the Court is required to make a recognizance release order. However I decline to do so pursuant to s. 19AC(4). Bearing in mind the requirements imposed by s. 19AC(5), I record the fact that in reaching the conclusion that no recognizance release order should be made I have had particular regard to the fact that the respondent's offending was under the control of Zhang, that she has no criminal antecedents and that she does not present any risk of re-offending.

ORDERS

85 I propose the following orders:

(1) The Crown appeal against sentence is upheld.

(2) The sentence imposed in respect of the charge contrary s. 400.4(1) of the Criminal Code 1995 (Cth) is quashed.

(3) In lieu thereof, the respondent is sentenced to 1 year and 3 months imprisonment to date from 4 April 2014 and to expire on 3 July 2015.

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Amendments

13 November 2014 - Renumbering
Amended paragraphs: 61, 85

Decision last updated: 10 November 2014