New South Wales Court of Criminal Appeal CITATION : REGINA v. SNELL [1999] NSWCCA 26 revised - 10/03/99 FILE NUMBER(S) : CCA 60329 of 1998 HEARING DATE(S) : Friday 3 March 1999 JUDGMENT DATE : 5 March 1999 PARTIES : REGINA v. SNELL, Keith Hamilton JUDGMENT OF : Greg James J at 1; Grove J at 21; Dunford J at 22 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0710 LOWER COURT JUDICIAL OFFICER : Gibson, DCJ. COUNSEL : Crown: P. Hastings, QC./G. Tabuteau Applicant: A.F. Backman SOLICITORS : Crown: Commonwealth Director of Public Prosecutions Applicant: W.R. Goodman & Associates CATCHWORDS : Sentence - comparable culpability - parity - trial judge's findings - no error ACTS CITED : Crimes Act 1914 (Cth) - s.86(1) Proceeds of Crime Act 1987 (Cth) - s.81 Regina v. Kelly (1993) 30 NSWLR 64 Cranssen v. The King (1936) 55 CLR 509 Postiglione v. The Queen (1996-97) 189 CLR 295 CASES CITED: Regina v. Hodges (CCA unreported 20 August 1997) Regina v. WHS (CCA unreported 27 March 1995) Lowe v. Regina (1984) 154 CLR 606 DECISION : Appeal dismissed SNELL -13- IN THE COURT OF CRIMINAL APPEAL No. 60329 of 1998 CORAM: GROVE, J. DUNFORD, J. GREG JAMES, J. FRIDAY 5 MARCH 1999 REGINA v. KEITH HAMILTON SNELL JUDGMENT GREG JAMES, J: 1 Leave to appeal is sought against the severity of a sentence of imprisonment for four years with a non-parole period of two and a half years in respect of a conviction for conspiracy (s.86(1) of the Crimes Act (Cth) 1914) to breach s.81 of the Proceeds of Crime Act (Cth) 1987. The maximum penalty for this offence is 20 years imprisonment, a fine of $200,000 or both. 2 The offence is less technically referred to as money laundering. In this case what was being laundered were the proceeds of drug trafficking in illegally imported cannabis and cannabis resin. 3 The drug importation offences committed by the syndicate, which the applicant, as a member of the charged conspiracy, assisted, were punishable by a maximum penalty of life imprisonment. Other offences committed by the syndicate, including drug trafficking, were punishable by severe sentences. 4 The applicant, his wife Jeanie Tandoc Snell, one Francis Mervyn Irvine and others were not party to the drug importation and sales but were involved in a conspiracy to use $850,000 of the profits to purchase the Bunyip Inn Guest House at Berry. There was evidence the applicant admitted to police it was he who suggested the scheme to the principal of the drug syndicate, Lawrence Edward McLean, and further admitted that one of his objects in doing so was to establish an income for his wife, his children and friends giving them security in Australia, also that he prompted McLean to arrange for money for the purchase to be deposited in his wife's bank account. He denied all of these matters, however, in his evidence to the trial judge on plea, asserting McLean was making provision for him by providing an opportunity to earn income. A reading of his evidence suggests he is trying to distance himself from the purchasing arrangements. 5 The applicant pleaded guilty at committal and confirmed his plea in the District Court. The sentencing judge was provided with a statement of facts and a flow chart, the former originally admitted subject to objection, which objection does not appear to have been maintained. These dealt with the activities of the applicant and others, relevantly as will later be seen, the co-accused Irvine. He also received the applicant's record of interview, telephone intercept material and pre-sentence report relating to the applicant, a title search and certificate of business name. Other material relating to the circumstances of the various co-accused, particularly Irvine, was provided to his Honour but has not been reproduced and provided to us in the appeal book. Irvine's evidence that his role was limited to an auction bid and the subsequent negotiation resulting in the purchase was unchallenged and accepted by his Honour. Neither the prisoner nor Irvine gave evidence concerning the role of the other. 6 Notwithstanding the two matters in which it is submitted that his Honour fell into error, viz. by mistaking, by way of comparison with that of Irvine, the gravity and importance of the role of the applicant in the offence and by passing on the applicant a sentence which by comparison with that passed on Irvine was erroneously disparate, no other material, eg., as to the roles and the sentences passed on the other conspirators, has been provided. Although we were informed from the bar table at the hearing that non-custodial sentences had been imposed, both parties are content for this appeal to proceed on the material as it is. I have had regard to the references to the evidence below and its effect as the parties have set out those matters in their admirably precise and succinct submissions. 7 The Crown submissions referred to the applicant's role and the role of Irvine as asserted in the plea proceedings. It was as follows:- "In Mr. Keith Snell's case it's the Crown case that he encouraged Mr. McLean to use his money to acquire this hotel as a means in effect of parking money of Mr. McLean's, and at the same time of benefiting Mr. Snell himself in that Mr. Snell wished to have some provision made for accommodation and employment in Australia of his wife Jeanie Snell. Secondly, Mr. Keith Snell procured Mr. McLean to cause the funds to be transmitted from overseas through Jeanie Snell's bank accounts which was the conduit by which most of the purchase money was channelled to the acquisition. Next, he identified the Bunyip Inn itself as the particular appropriate hotel-type investment and encouraged Mr. Phillips, another man who was involved in this venture, to come from Melbourne to attend to examine the property, and lastly he introduced his wife to take part in the venture, a) by making her bank account as the conduit and, b) by undertaking to participate in the longer term in the management of the Bunyip Inn business. HIS HONOUR: Is he the manager or his wife? FAGAN: His wife. He proposed and she also proposed and agreed to live in the Bunyip Inn and to manage it. Now, in relation to Jeanie Snell, what I have said about Keith Snell foreshadows their overt acts in relation to her. She permitted her bank account to be used or bank accounts. She accepted the transfer into her name as a four-tenths proprietor of the real property on which the Bunyip Inn was established and she agreed to hold that property, in effect - the Crown says this is the effect of what was agreed - to hold it in trust for Mr. McLean who had provided the funds and she agreed to participate in the management of the property, again in trust and on behalf of Mr. McLean as provider of the money. Mr. Irvine's involvement was more limited of that of the other two. He agreed to attend the auction which was conducted in Sydney, the auction of the property. He agreed to bid on Mr. McLean's behalf and he did that, he attended and he bid, being instructed over the course of the auction by Mr. McLean. Also, thereafter, when the property had been passed in at $800,000 and he as the highest bird became the person with priority to negotiate with the vendors, he travelled with Mr. McLean to meet with the vendors, two ladies, to facilitate the negotiation of a purchase price at $50,000 above the highest bid, that is $850,000. And it is not asserted that he actually took part in the negotiations, but it was essential for him to attend to give authority as the highest bidder to give authority to the principal to pursue the negotiations. It is not alleged in relation to Mr. Irvine that he had ongoing involvement in the management of the asset. That is the summary of it. HIS HONOUR: It is alleged that they all had knowledge of the - and they had pleaded guilty to the fact that they knew the money was illegal money? FAGAN: Proceeds of unlawful activity, your Honour, yes." 8 In the statement of facts, the roles are relevantly set out:- "13. In mid-1996, it was learned that McLean, Keith Snell (aka Ken Snell), Jeanie Snell, Graham Charles Phillips, Cristin Joy Phillips and Francis Mervyn Irvine (aka Paco) had participated in arrangements for the purchase of the Bunyip Inn Guest House at Berry, on the New South Wales south coast. 14. Whilst all dealings in respect of the purchase of the Bunyip Inn were directed by McLean, Keith Snell was the person who first suggested to McLean the idea of obtaining a business venture and while reporting back to McLean about his inquiries, identified the Bunyip Inn as a business that the syndicate should purchase. 15. Keith Snell has previously, both in Australia and overseas, acted as a 'front' man for McLean to conceal his assets and launder money. This information was provided by Snell during a tape record of conversation with police on 16 April 1997. 16. Snell also informed police that it was he who first introduced Graham Phillips to McLean and said he had selected the Bunyip Inn for purchase from a newspaper article. This was also confirmed by Graham Phillips in a subsequent interview with police. 17. On 24 April 1996, police intercepted a telephone conversation between Irvine in which he told Ken Snell that McLean was sending him to Thailand and was covering the cost of the trip. Irvine also stated that McLean would sponsor Graham Phillips into Australia. Phillips and his wife Christine at that time were experiencing immigration problems with their then employer. 18. On 29 April 1996, Jeanie Snell was the beneficiary of an international transfer of $A139,313 into her Sydney bank account from Liu in the Philippines, at the direction of McLean. 19. On 2 May 1996, $321,986.41 was deposited to the joint bank account of Graham and Cristin Phillips at the National Australia Bank Victoria, account No. 3527636446040. 20. On 6 June 1996, Keith Snell contacted Graham Phillips by telephone and informed him that he had shown McLean the Bunyip Inn Guest House which had been advertised for sale. Snell indicated that McLean was very interested in the property and that he (Snell) had told McLean that it was the type of thing that Phillips was looking for. 21. When Phillips expressed concern that he was unsure where McLean stood on prices, Snell stated that McLean had told him that he would put in six or seven hundred thousand. 22. On 26 June 1996, McLean contacted Irvine and requested that he attend the auction in Sydney the next day for the Bunyip Inn. Irvine readily agreed to this. 23. On 27 June 1996, Irvine attended the auction sale of the Bunyip Inn and entered bids on the property, whilst taking instructions over the telephone from McLean, who was in Melbourne with Graham Phillips. The property was passed in at $800,000 but, following negotiations, it was sold for $850,000, in the name of Graham Phillips and the title of the property was registered in the names of Graham Phillips, Cristin Phillips and Jeanie Snell. 24. On 30 June 1997, in a telephone conversation between Cristin Phillips and McLean referring to the purchase, Phillips thanked McLean and described him as an 'angel'. In reply, McLean stated '...we're all a happy family'. 25. On 1 July 1996 a further $323,426 was again deposited to the joint bank account of Graham and Cristin Phillips at the National Australia Bank Victoria, account No. 3527636446040. 26. On 2 July 1996 in a conversation between McLean, Phillips and Irvine, McLean agreed to the purchase of the Bunyip Inn being in Phillips' name. 27. Also on 2 July 1996, in a conversation between Phillips and Snell, Phillips stated that they had to borrow about $120,000 to $150,000 and that 'he' (meaning McLean) wanted them to do that for appearance sake. 28. On 4 July 1996, Jeanie Snell, the wife of Keith Snell, in a conversation with her husband stated that McLean had informed her that the business would be divided into three between herself, Graham Phillips and his wife, Cristin. In that same conversation, Jeanie Snell stated that McLean had put $200,000 into her account and that she now had $300,000 plus in that account. The majority of the money was then transferred to the Bunyip Inn account at Berry, New South Wales. 29. On 6 July 1996, in a conversation between McLean and Graham Phillips, McLean stated that he had put close to $1 million into the Bunyip Inn and that the others should do pretty well from it. During that same conversation, McLean stated that he was sending another syndicate member to the Philippines to see John Liu and to transfer the money over to Graham Phillips. 30. On 16 July 1996, $149,934 was transferred to Jeanie Snell's account from the Philippines and on 25 July 1996, a further $59,762 was transferred to her account from the Philippines. In total with the $139,313 received into her account on 29 April 1996, Jeanie Snell had $349,009 transferred into her Sydney bank account from John Liu in the Philippines. 31. On 24 July 1996, $181,503 was transferred to the joint account of the Phillips', this time from Scotland. However, subsequent enquiries revealed that the money originated from the Philippines. This deposit as with the 2 May 1996 and 1 July 1996 deposits originated in the Philippines from funds arranged by McLean. 32. On 30 July 1996 police monitored a telephone conversation between Cristin Joy Phillips and McLean during which she thanked him for buying the Bunyip Inn. 33. On 26 August 1996 the final payment was made for the purchase of the Bunyip Inn. This final payment totalled $773,264.78, including $340,000 from Jeanie Snell and $383,264.78 from Graham and Cristin Phillips. The balance of $50,000 was the result of a personal loan taken out by Graham and Cristin Phillips. 34. On 18 October 1996, police monitored a conversation between Irvine and another person during which Irvine stated that he was aware of what 'McLean does'. 35. On 20 October 1996 Irvine was a party to a conversation with McLean, when McLean complained that the Bunyip Inn was successful when it was only meant to be a lifestyle and that they didn't even have to make money. McLean added that it was to get the `group' into the country and to '...give it a once through, through the was...', inferring that the Bunyip Inn would be used for laundering syndicate money. 36. Further on 24 October 1996, police monitored a conversation between Irvine and another person during which Irvine defended McLean's activities. 37. On 13 February 1997, Phillips delivered to McLean at his Manly apartment, which he shared with Irvine, a campervan. This campervan was to be used by McLean and others in the transportation of narcotics and had been purchased by McLean in Melbourne on 21 November 1996, using false particulars. Police monitored conversations between McLean and Irvine, in which McLean stated that he had put a 'lazy $1 million' into the Bunyip Inn. 38. It is alleged that the money provided for the purchase of the Bunyip Inn was the part of the proceeds of the January 1996 importation of cannabis earlier referred to." 9 Notwithstanding the matters appearing in paragraphs 14 and 16 above relevant to the applicant, the statement of facts continues:- "42. On 16 April 1997, Snell with knowledge that he was sought by police for questioning following the arrest of others associated with McLean, returned to Australia voluntarily. Snell told police that he felt compelled to return to Australia to answer for his actions and at the completion of which he would be returning to the Philippines to live with his wife and child of that union. 43. Snell was interviewed and in a taped record of conversation, informed police that he had been associated with McLean for a number of years and that he was aware of McLean's narcotic activities. 44. Keith Snell informed police that the idea for a business to be purchased was McLean's and he agreed to it, so that his wife and friends in Australia would be accommodated and employed, as Snell himself spent the majority of his time in the Philippines. 45. Snell informed police that the interest in the purchase of the Bunyip Inn was started after a conversation had taken place between himself and Lawrence McLean. Later Snell had noticed an advertisement for the Bunyip Inn, and brought this to the notice of McLean and Graham Phillips. 46. Snell also informed police that he has never been involved in the sale or importation of narcotics, but earned a living as a consultant 'wheeling and dealing' mainly in the Philippines. As a result of the evidence collated during the investigation, police have no reason to disbelieve this statement of Keith Snell relating to his source and form of income. 47. Keith Snell when requested by police has attended for questioning on a number of occasions for a variety of matters and co-operated with investigating police on associated matters with McLean. However, no prosecutions will eventuate from the matters discussed. 48. Snell also admitted to police that he has previously assisted McLean in a similar business venture within Australia in 1984, when a travel agency was purchased in his name and used for the laundering of money from narcotic sales. Snell further informed police that previously McLean had used his (Snell's) particulars for interest held in overseas business. This information will assist police with other investigations." 10 The statement also refers to Irvine further:- "58. On 7 May 1997, Irvine, knowing that police sought him for interviewing relating to his association with McLean, returned to Australia from Thailand. Irvine was interviewed and in a taped record of conversation admitted to attending the auction for the Bunyip Inn on McLean's instructions. 59. However, contrary to telephone intercept evidence, Irvine claimed he had a belief that the money from McLean was a result of 'illegal girlie bars' in the Philippines. 60. Irvine informed police that he met McLean through Keith Snell, a matter that was corroborated by Snell in an interview with investigating police. After regaining contact with each other it was Snell who arranged for McLean to share an apartment and cost at Manly. No evidence was discovered during the investigation that Irvine was involved in any narcotic dealings. 61. Irvine prior to this investigation was not known on police indices in Australia or overseas, however, he was the ex de facto of Cristin Phillips, whom he had a relationship with in the Philippines some six years ago." 11 The applicant gave evidence. As I read his account it did not differ greatly on the issue of roles from the Crown's general contentions. 12 Despite the appellant's submissions, I do not gain from the material to which they have directed us any support for the proposition that his Honour's conclusion that the applicant's role in suggesting this investment were not open to him, particularly since the suggestion was made in the context of the applicant's admissions of acting in Century Travel, Macarthur Hotel and in respect of other properties and investments on behalf of McLean for personal reward as McLean's investment counsellor. 13 His Honour dealt with both the applicant and Irvine at one time. His findings as to the facts and comparable roles are contained in a passage of considerable brevity:- "The facts have been set out in the statement of facts tendered herein and I do not propose to elaborate on them other than to say that the prisoner Snell, with knowledge that one McLean was a drug dealer, put to McLean a suggestion that he invest money in the Bunyip Inn at Berry and subsequently he and his wife, the persons Phillips and Irvine entered into the agreement and the premises were purchased with the money supplied by McLean and put into various bank accounts. The part played by Irvine was a minor one in that he conducted some preliminary negotiations and bid for the man McLean but that played by the prisoner Snell was a much more important one as set out in the exhibits. It should be said, however, as I understand the evidence, that neither of them were involved in the importation of drugs into Australia." 14 His Honour, after dealing with other subjective matters, said:- "I also take into consideration his age, his assistance to the authorities, his prior good character, that he came back to this country after he found out the authorities wanted to question him, his plea of guilty, the fact that he was not involved in the drug side of McLean's operations and those other matters that I am required to by the Act as well as the submissions of his counsel. However, it cannot be emphasised too much that this is a serious criminal offence. Criminals who prey on society must be denied the opportunity of being able to benefit from their crimes, in this case the importation and selling of drugs, insofar as we are able to do that. It is perhaps similar to the situation with drug couriers in that people chosen to participate in these laundering exercises would be expected to be of good character. Those who are prepared to enter into these operations, as this prisoner was, for gain to himself and family must realise, as this prisoner must, that custodial sentences will be imposed." 15 It is apparent his Honour accepted so much of the statement of fact in the light of the record of interview as to hold that the applicant was an initiator and prime mover in the crime charged. His Honour's reference to "as set out in the exhibits" appears to be a finding that the matters relevant to the different roles as set out in the statement of facts and the flow chart and accepted by his Honour are confirmed by the record of interview and telephone intercept material. 16 Generally, it is only where a sentencing judge has proceeded on a material finding of fact not open to him on the evidence (Regina v. Kelly (1993) 30 NSWLR 64 at 66) or where the judge has, in some important matter, mistaken the facts (Cranssen v. The King (1936) 55 CLR 509) that this court will review, on an application for leave to appeal against sentence, the fact finding of the sentencing judge. It was held in Regina v. WHS (CCA, unreported 27 March 1995) by McInerney, J. that:- "The court's powers to intervene on a judge's finding of fact are carefully circumscribed. This court can only interfere if it is demonstrated there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself: R v. O'Donohue 34 A. Crim. R. 397 per Hunt, J. (as he then was); R v. Warfield (1994) 34 NSWLR 200 at 209." 17 The submission that his Honour should have found only some slight preliminary role of the applicant and that Irvine's involvement at the auction and after was, by comparison, more material is not made out. Not only does that not accord with my view of the effect of the evidence of the applicant, notwithstanding his apparent minimisation of his role, but more importantly it does not accord with evidence in the statement of facts, record of interview and telephone intercepts upon which it was open to the trial judge to come to the conclusion to which he did. I do not consider there was any error in his Honour's finding as to the applicant's role, nor do I find error in his appreciation of the respective roles of the applicant and of Irvine. Irvine was to be dealt with for what was shown to be his involvement in this offence, not for some generalised relationship with McLean. 18 On the parity question, it was the differing roles principally, although his Honour also adverted to subjective circumstances he viewed as more favourable to Irvine, that caused him to extend to Irvine the leniency of a recognisance. The leniency of that sentence, even if inappropriately lenient, might have supported in an appropriate case the second matter asserted as founding the appeal on the basis that there was such a degree of disparity in the impact of the different sentences as not to reflect the differing degrees of culpability. 19 Postiglioni v. The Queen (1996-97) 189 CLR 295; Regina v. Hodges (CCA, unreported 20 August 1997), are authority for the proposition that where the sentences are impermissibly disparate, ie., where the differences are not justified by the matters enunciated in Lowe v. Regina (1984) 154 CLR 606 (including the respective roles) to avoid a justified sense of grievance, a sentence should be adjusted even to an otherwise inappropriate leniency, but this, in my view, was not such a case. Accepting that that there were many features common to the two offenders, I do not accept that the differing roles as found by his Honour would allow a justified sense of grievance to the appellant. His sentence was not at all inappropriate to his finding of culpability. No sufficient basis is shown to reduce it because of the recognisance for Irvine. As Hodges (supra) shows, the resolution of parity questions requires more than a simple comparison of roles and results. There may be, as here appearing, a sound basis for the disparity. I do not consider that any sufficient basis has been shown to interfere with the sentence on the grounds argued. 20 I propose that leave to appeal be granted and the appeal dismissed. 21 GROVE, J: I would agree with the orders proposed by Greg James, J. for the reasons he has given. 22 DUNFORD, J: I also agree. 23 GROVE, J: The orders of the court will therefore be as proposed by Greg James, J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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