Singh v R

1. [1]

   PAYNE JA: On 1 June 2017, the applicant was sentenced by Hanley SC DCJ in the District Court at Penrith following a plea of guilty to an indictment containing one count under s 142(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and two counts under s 400.9(1) of the Criminal Code (Cth).

2. [2]

   The applicant was sentenced to the following terms of imprisonment:

   1. (1)

      in relation to the first count, under s 142(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act, 15 months imprisonment to date from 29 May 2017; to be released on 28 May 2018 after serving 12 months upon entering into a recognisance;

   2. (2)

      in relation to the second count, under s 400.9(1) of the Criminal Code, 9 months imprisonment to date from 19 January 2018; to be released on 28 May 2018 after serving 4 months upon entering into a recognisance; and

   3. (3)

      in relation to the third count, under s 400.9(1) of the Criminal Code, 9 months imprisonment to date from 29 April 2018; to be released on 28 May 2018 after serving 1 month upon entering into a recognisance.

3. [3]

   Pursuant to s 19AC of the Crimes Act 1914 (Cth), the effect of the sentencing judge’s orders will be that the applicant will be released from prison upon entering a recognisance under each of those sentences on 28 May 2018.

Brief facts

1. [4]

   The sentencing judge made the following findings of fact which were not controversial on the appeal.

2. [5]

   In October 2014, the applicant and a man named Gurpreet Singh were working together as casual labourers for Master Bricklaying and Construction and had become friends. They would travel to and from work in the applicant’s car. The applicant approached Gurpreet Singh to assist him in making deposits on behalf of a man in Dubai, UAE, known as Jagmohan. Gurpreet Singh agreed. They then started making deposits on behalf of Jagmohan. The applicant would provide Gurpreet Singh with details of the accounts in which the moneys were to be deposited. This required forwarding the photo page he received from Jagmohan to Gurpreet Singh or the applicant writing down the details from his phone and giving them to Gurpreet Singh. The money was usually in bundles comprising $50 and $100 notes.

3. [6]

   On 13 November 2014, 2 December 2014 and 26 January 2015, the applicant collected cash from a man called Brett Pickavance at various locations in western Sydney. He did this at the instruction of Jagmohan. The applicant and Jagmohan would communicate regularly by mobile phone. The applicant would exchange tokens with Pickavance when they met. This was to enable each to identify the other and to engage in the transfer and also serve as a receipt for the transaction. Bank serial numbers were exchanged between Pickavance and the applicant shortly before their meetings. In such situations the banknote bearing the serial number was then usually handed over when they met.

4. [7]

   The meeting between the applicant and Pickavance on 26 January 2015 occurred at Plumpton. The applicant got into Pickavance’s motor vehicle for about 20 seconds and received a shoebox containing cash. On 26 January 2015 the applicant received text messages from Jagmohan which read:

5. [8]

   On 28 January 2015, the applicant was stopped by police whilst driving in Mount Druitt. Detective Senior Constable Malkoun asked the applicant if he had anything in the car. The applicant informed him that he had some money. He told the police he had $65,000 in a bag under the front seat. He told the police it was not his money but that he was bringing it to someone in Westfield’s car park who he did not know.

6. [9]

   The police seized $65,000 in seven bundles in plastic bags under the passenger seat, $20,000 in cash under the driver’s seat, 14 bank receipts in the applicant’s wallet for cash deposits totalling $90,570, seven deposits being made on 10 October 2014 and seven deposits being made on 28 October 2014, and two mobile telephones. The applicant was arrested and voluntarily participated in a record of interview in which he made numerous admissions.

7. [10]

   On 28 January 2015, the police executed a search warrant at the applicant’s residence where he resided with his uncle and his aunt. Police seized a shoebox the applicant had told them about in his record of interview. It contained $235,300 in cash. Some of the cash was in bundles. There were six bundles of $8,000 each and three bundles that contained $7,616, $7,300 and $5,000 respectively. Each bundle had a handwritten note attached to it with bank account details. In addition, police located 114 bank receipts for cash deposits totalling $679,448 made on dates between 14 November 2014 and 19 January 2015.

8. [11]

   In relation to count 1, between 10 October 2014 and 9 January 2015 the applicant made, or caused Gurpreet Singh to make, 76 structured cash deposits into various bank accounts totalling $531,075.

9. [12]

   At the time the applicant made the structured deposits or caused them to be made it was reasonable to suspect they were the proceeds of crime. He had reasonable grounds for suspecting that the money was derived or realised directly or indirectly from some form of unlawful activity.

10. [13]

    On 2 December 2014, the applicant, Pickavance and Gurpreet Singh had a telephone conversation that was lawfully recorded. The applicant mentioned a token as the means by which they would identify each other and carry out the transaction. On 2 December 2014, the applicant and Jagmohan had a further conversation that was lawfully recorded. During the conversation the applicant indicated to Jagmohan that he was well aware that depositing money in the various banks required certain matters to be taken into account. He indicated that he wished to have branches close by and preferred the Commonwealth Bank. He referred to other banks such as the ANZ being far flung and with lots of customers that required them to wait up to 20 minutes.

11. [14]

    On 4 December 2014, the applicant and Jagmohan had a further conversation. Again in that conversation the applicant demonstrated an awareness that the banks would on occasion ask for identification even if the money was “fix or six”. He referred to banks such as Westpac that may require that. He indicated that he had no problem in dealing with the Commonwealth Bank but the NAB was troublesome. He was asked by Jagmohan, “How many tokens are you left with?”. He told Jagmohan he had two of Jagmohan’s tokens from the past. He was told that they would be dispatched again. CCTV footage shows the applicant and Gurpreet Singh making deposits at multiple banks around the same areas on 14, 15 and 16 January 2015.

12. [15]

    On the dates that the applicant and Gurpreet Singh made deposits they would attend multiple banks in the same area. They would deposit at the same or different banks. The applicant and Gurpreet Singh would often each fill out the deposit slips for the money they deposited at the bank where they made the deposits. After the transactions were complete Gurpreet would give or send the receipts to the applicant who would in turn report back to Jagmohan. The applicant paid Gurpreet Singh about $100 to $200 each day that Gurpreet Singh made the deposits.

13. [16]

    In relation to count 2, between 10 October 2014 and 19 January 2015 the applicant possessed a total of $238,943 reasonably suspected of being the proceeds of crime. That money was money identified through receipts located in the applicant’s wallet and in the seized shoebox that was deposited in Australian bank accounts but in an unstructured way; that is, these deposits were not part of two or more deposits in the same account in amounts of less than $10,000. These funds are separate to the funds that are the subject of counts 1 and 3.

14. [17]

    In relation to count 3, on 28 January 2015, the applicant possessed a total of $320,300 reasonably suspected of being the proceeds of crime. That was comprised of $235,300 in cash in the seized shoebox plus the $85,000 in the applicant’s car. These funds are separate to the funds the subject of counts 1 and 2.

15. [18]

    The applicant agreed to all the money found on his person, in his car and at his home being forfeited. On 14 May 2015, the Supreme Court made consent orders about the forfeiture of these moneys. On 23 September 2015, whilst the matter was still in the Local Court, the applicant offered to plead guilty to certain charges. The Crown rejected that offer. On 30 September 2016, the Crown indicated it would accept a plea of guilty to a charge under s 142(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act in lieu of the committal charge under s 400.4(1) of the Criminal Code. The applicant advised the Crown that he would plead guilty to that charge. On 4 October 2016, that plea was entered in the District Court. On 23 October 2015, the applicant also pleaded guilty to two charges under s 400.9(1) of the Criminal Code.

16. [19]

    Gurpreet Singh has not been charged. Brett Pickavance has been charged with offences relating to his dealings with the applicant but at the time the applicant was sentenced those charges had not been finalised.

Application for leave to appeal

1. [20]

   On 29 November 2017, the applicant filed an application for leave to appeal. The grounds of that application were identified in the written submissions filed on the applicant’s behalf on 4 December 2017 as being:

   1. (1)

      the sentencing judge erred in devaluing the contrition of the applicant by focusing on the plea of guilty of the applicant, which was a separate factor under s 16A(2)(g) of the Crimes Act;

   2. (2)

      the sentencing judge erred in failing to properly reduce the sentence of the applicant to reflect the value of the applicant’s cooperation: s 16A(2)(h); and

   3. (3)

      the sentencing judge erred in failing to state what sentence he would have imposed but for the reduction for cooperation: s 16AC.

2. [21]

   On the hearing of the appeal, ground 3 was withdrawn by counsel for the applicant. In oral submissions, counsel for the applicant addressed one matter only as arising under both proposed grounds of appeal, namely the submission that the sentencing judge failed sufficiently to have regard to the principles in R v Ellis (1986) 6 NSWLR 603. Nevertheless, as the written submissions made by the applicant were pressed it is convenient to address both grounds in full.

3. [22]

   The applicant’s written submissions provided as follows:

4. [23]

   In oral submissions counsel for the applicant disavowed any reliance on the decision of this Court in Xiao v R [2018] NSWCCA 4.

5. [24]

   There are essentially two points raised by the applicant under ground 1. The first relies upon what was submitted to be the structure of s 16A of the Crimes Act. This was explained most recently by this Court in Xiao. The second relies upon the alleged disclosure by the applicant of unknown guilt as described in Ellis. It was the second of these points which occupied a substantial part of the applicant’s oral address.

6. [25]

   The applicant’s first submission was that s 16A(2) of the Crimes Act required the sentencing judge to deal with contrition and remorse “and to distil what factors were relevant to the question of contrition without reference to the entering of the plea of guilty”. That submission must be rejected.

7. [26]

   In Xiao at [134] the Court said:

8. [27]

   The Court in Xiao further explained at [272]:

9. [28]

   Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary. This potential for overlap was lucidly explained by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220, a case that involved, inter alia, Commonwealth sentencing prior to the introduction of Part 1B of the Crimes Act, at 228 as follows:

10. [29]

    That passage was specifically approved by the plurality in Wong at [76] as applicable to the correct construction of s 16A where their Honours explained (after setting out the passage above from Gleeson CJ in Gallagher):

11. [30]

    It is simply not correct that a sentencing judge confronted with sentencing an offender who has committed a Commonwealth offence must “distil what factors were relevant to the question of contrition without reference to the entering of the plea of guilty”. That would make what is a difficult task a near impossible one. That approach would be antithetical to the general approach explained by the High Court in Wong and would also be inconsistent with this Court’s treatment of the question in Xiao.

12. [31]

    The applicant’s complaint about the sentencing judge’s treatment of s 16A(2)(f) fails for an additional reason. In dealing with the contrition and remorse of the applicant, which the sentencing judge did in allowing a reduction in the sentence otherwise to be imposed of 25 per cent, his Honour was not obliged to accept the report dated 18 December 2016 of the clinical psychologist Mr Borenstein, which (together with the applicant’s plea of guilty) was the only source of what the applicant submitted the sentencing judge failed to take into account. Whilst the Borenstein report was admissible, his Honour was entitled to exercise considerable caution in relying upon it in the absence of sworn evidence from the applicant: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59]. His Honour was entitled to give the applicant’s untested expressions of remorse contained in the Borenstein report little weight. No error has been shown by the mere fact that the sentencing judge failed specifically to advert to the contents of the Borenstein report when addressing contrition and remorse. It is clear that the sentencing judge fully took into account all the evidence in allowing a reduction in the sentence otherwise to be imposed of 25 per cent by reason of contrition and remorse.

13. [32]

    The second part of applicant’s complaint, a failure by the sentencing judge to give sufficient weight to what was submitted to be disclosure by the applicant of unknown guilt, should also be rejected.

14. [33]

    The disclosure of unknown guilt in Ellis was dramatic. As the Court said:

15. [34]

    This was not a case like Ellis where there was disclosure by the applicant of unknown guilt. No doubt for that reason counsel for the applicant made no mention at the sentencing hearing of Ellis or of any separate discount for disclosure by the applicant of unknown guilt.

16. [35]

    So far as it is disclosure of the applicant’s own guilt which is relied upon, it is noteworthy that the agreed facts reveal that the police had been lawfully recording conversations involving the applicant and his co-offenders as early as 2 December 2014, almost two months before he was arrested. The suggestion made by counsel for the applicant that the applicant’s disclosure of where he was living and of the fact substantial funds were being held at that address was significant should be rejected. The only sensible inference available based on those lawful recordings is that the applicant was under observation by the police prior to his arrest.

17. [36]

    The suggestion made by counsel for the applicant that there was any relevant disclosure of unknown offending by others should likewise be rejected. The only relevant disclosure was in relation to another man named “Singh”. That man was convicted in Victoria in September 2014, long before any “disclosure” was made by the applicant. The sentencing judge took that disclosure into account in favour of the applicant. That was an error, but an immaterial one, as the error was in the applicant’s favour. The “disclosure” by the applicant during the record of interview was not the disclosure of unknown guilt in any way resembling the principle identified in Ellis. The applicant’s Ellis complaint fails at this first hurdle.

18. [37]

    The sentencing judge took into account the limited disclosures made by the applicant about his own guilt referred to in paragraphs [9] and [10] above. As noted above, the sentencing judge also took into account the disclosure about the guilt of others, which was an error but one in the applicant’s favour. He was not required by 16A(2)(f), any other provision of Part 1B, or by any overarching Ellis principle of sentencing, to give a nominated percentage discount for the matters he correctly took into account. It has not been shown that he gave the limited disclosures made by the applicant insufficient weight.

19. [38]

    The sentencing judge took into account such evidence as there was of the applicant’s contrition and remorse. The sentencing judge specifically took into account the applicant’s conduct and his disclosures to the police. There was no need in the circumstances of this case for him to nominate a separate Ellis discount.

20. [39]

    Ground 1 should be dismissed.

21. [40]

    The applicant’s written submissions on ground 2 were as follows:

22. [41]

    The applicant in oral address submitted that the essence of this complaint was an alleged failure by the sentencing judge to apply the decision in Ellis and give an appropriate discount to the applicant for his identification of unknown criminality, in this case when considering the extent of cooperation with law enforcement in the investigation of the offence or other offences as required by s 16A(2)(h) of the Crimes Act.

23. [42]

    Counsel for the applicant accepted that at the sentencing hearing no submission was made on behalf of the applicant that the sentencing judge should apply the decision in Ellis. Nor was there any attempt before the sentencing judge to identify which matters revealed by the applicant were unknown to the authorities.

24. [43]

    In this Court, counsel for the applicant fell back on a claim that the applicant could have stayed mute and that, so he asserted, the authorities would not have known where he was living and thus could not have located the funds. This complaint should be rejected. As I have said, the agreed facts reveal that the police were lawfully recording conversations involving the applicant and his co-offenders as early as 2 December 2014. The only sensible inference available based on those lawful recordings is that the applicant was under observation by the police prior to his arrest.

25. [44]

    In any event, what the sentencing judge actually said about s 16A(2)(h), the statutory factor his Honour was required to consider, bears repeating:

26. [45]

    It is thus clear that the sentencing judge took into account, carefully and at some length, the applicant’s “initial assistance in identifying the location of various moneys the subject of the offences in his vehicle and in his home”. That, on the evidence, was all that his Honour was obliged to do.

27. [46]

    So far as complaint was made about the sentencing judge’s assessment of the value of the assistance provided in respect of Mandeep Singh of Victoria, otherwise known as Mani, that complaint must be rejected. As I have said, Mr Mandeep Singh was convicted on 25 September 2014, well prior to the applicant providing the information to the police about him. The fact that the sentencing judge took this into account as “significant” in the applicant’s favour as providing cooperation was an error, but one in the applicant’s favour.

28. [47]

    The overall discount allowed by the sentencing judge in respect of cooperation with law enforcement in the investigation of the offence or other offences of five per cent was consistent with the evidence before him that the assistance with respect to Mani and Jagmohan was of intelligence value only. The limited evidence of assistance given by the applicant in relation to the investigation of the offence was expressly taken into account by the sentencing judge. The only error demonstrated in relation to cooperation was one in favour of the applicant.

29. [48]

    Ground 2 should be rejected.

Conclusion and Orders

1. [49]

   For the foregoing reasons, the only error shown in the reasons given by the sentencing judge was one in favour of the applicant. No error has been shown in the sentence actually imposed. I would refuse leave to appeal against sentence.

2. [50]

   JOHNSON J: I agree with Payne JA.

3. [51]

   CAMPBELL J: I agree with Payne JA.