Regina v Johnson AU [2001] NSWCCA 468

New South Wales Court of Criminal Appeal

CITATION : Regina v Johnson AU [2001] NSWCCA 468 FILE NUMBER(S) : CCA 60502/01 HEARING DATE(S) : 19 November 2001 JUDGMENT DATE : 19 November 2001

PARTIES : Regina Johnson Au JUDGMENT OF : Spigelman CJ at 1; Sully J at 2; Greg James J at 27

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0526 LOWER COURT JUDICIAL Freeman DCJ OFFICER :

COUNSEL : M. Allnutt - Crown M. Ramage QC/C. Dowd - Appellant SOLICITORS : Commonwealth DPP - Crown Geoffrey Edwards & Co. - Appellant

LEGISLATION CITED : Financial Transaction Reports Act 1988 Commonwealth Crimes Act Thomson and Houlton (1999-2000) 49 NSWLR 382 CASES CITED: R v Carter, unreported, NSWCCA 27 June 2001 Wong & Leung v The Queen [2001] HCA 64 DECISION : Leave to appeal granted; Appeal upheld; Sentence quashed and substituted with sentence of 12 months' imprisonment with direction that applicant be released after 7 months, entering into recognisance himself in the sum of $500 to be of good behaviour for 5 months; Non parole period to expire on 28 February 2002.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60502/01 SPIGELMAN CJ SULLY J GREG JAMES J

Monday 19 November 2001 REGINA v JOHNSON AU

JUDGMENT 1 SPIGELMAN CJ: I invite Justice Sully to give the first judgment. 2 SULLY J: This is an application for leave to appeal against sentence. The applicant, Mr Au, pleaded guilty, before his Honour Judge Freeman in the Sydney District Court, to a charge of having breached the Financial Transaction Reports Act 1988 s 31(1). The maximum penalty for any such breach is imprisonment for five years, with or without a substantial fine. 3 Judge Freeman sentenced the applicant to imprisonment for fourteen months and ordered that he be released after having served nine months upon his entering a recognisance to himself for the sum of $500 to be of good behaviour for five months. The non-parole period thus set expires on 30 April 2002. 4 The relevant facts can be, for present purposes, shortly stated. They are that the applicant executed eight transfers of funds over the period from 18 November to 31 December in amounts ranging from $7000 to $8500. The amounts thus remitted were remitted to two particular accounts in China. Four of the remittances took place over the space of three days and on 19 November the prisoner transmitted $8000 from the St George Bank in Market Street in the city and later that same day the same amount from another bank in Chatswood. 5 His Honour found, in my respectful opinion correctly, that it was a reasonable inference that the dominant purpose of the remittances was to avoid the reporting requirements of the Act. His Honour found that there was an aggravating element, namely, that the offence was committed whilst the prisoner was on parole. That finding was undoubtedly open to his Honour on the material before him; and I agree that it was, as his Honour regarded it, an aggravating element. 6 His Honour found that the applicant was aware, at the very least, of what his Honour described as the suspicious nature of his acts; and that he was probably aware, at least in some sense, of their illegality. It was the fact that he had committed the offence whilst on parole. 7 His Honour expressed the view, with which I respectfully agree, that offences of the type here in question are offences which call for a significant degree of general deterrence because, as his Honour put it: "It is necessary not only to deter individuals from undermining the laws relating to tax avoidance and money laundering, but to publish the message that anyone, however naive they may be, is likewise susceptible to punishment for taking part in such attempts to avoid financial scrutiny." 8 His Honour's approach to the structuring of the sentence was to commence with a sentence of imprisonment for two years and then, in accordance with s 16G of the Commonwealth Crimes Act to deduct one-third in order to take account of the absence of remissions in New South Wales. That yielded a term of sixteen months, from which his Honour deducted two months in consideration of the applicant's plea of guilty, it having been offered at a very early stage in the proceedings, albeit, in the view of his Honour, in the face of what his Honour described as strong Crown evidence. 9 As I have said, his Honour then passed sentence in the term of fourteen months resulting from that calculation, setting a nine-month parole period and making ancillary orders to which I have earlier referred. 10 The applicant put before the sentencing Judge by way of explanation for what he had done, the proposition that he had been influenced by a man called Chiu Lin, a fellow prisoner, to make the remittances, in effect, on Chiu Lin's behalf.