R v Helena Rule [2003] NSWCCA 97

New South Wales Court of Criminal Appeal

CITATION : R v Helena Rule [2003] NSWCCA 97 HEARING DATE(S) : 8 April 2003 JUDGMENT DATE : 8 April 2003

JUDGMENT OF : Sully J at 28; Levine J at 29; Buddin J at 1 DECISION : Leave to appeal granted. Appeal dismissed.

CATCHWORDS : Offences against Financial Transaction Reports Act - offender a practising chartered accountant and registered tax agent - woman knowingly concerned in husband's offences - favourable subjective circumstances - appeal against severity of sentence of full-time imprisonment dismissed. LEGISLATION CITED : Crimes Act (C'th) Financial Transaction Reports Act Leask v The Commonwealth (1996) 187 CLR 579 CASES CITED : R v Hung [2001] NSWCCA 233 R v Narayan & Anor [2002] NSWCCA 200 PARTIES : Helena Rule (Applicant) Commonwealth Crown (Respondent) FILE NUMBER(S) : CCA 60092/03 COUNSEL : P Byrne SC (Applicant) MM Cinque (Commonwealth Crown) SOLICITORS : Giddy & Crittenden (Applicant) Commonwealth DPP

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0349 FILE NUMBER(S) : LOWER COURT Latham DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60092/03

SULLY J LEVINE J BUDDIN J

TUESDAY 8 APRIL 2003 REGINA v HELENA RULE

Judgment 1 BUDDIN J: The applicant pleaded guilty in the District Court to an indictment containing two counts. The first count, which was in the following terms, alleged that she: Between about 20 March 2000 and 21 March 2000 was knowingly concerned in an offence against section 31 of the Financial Transaction Reports Act 1988 namely that Anthony Kendall Marles Hutton between about 20 March 2000 and 21 March 2000 at Sydney in the State of New South Wales, was a party to two or more non-reportable cash transactions as defined in the Financial Transaction Reports Act 1988 , and having regard to the manner and form in which those transactions were conducted, it would be reasonable to conclude that he conducted those transactions in that manner and form for the dominant purpose of ensuring that the currency involved in those transactions was transferred in a manner and form that would not give rise to a significant cash transaction as defined in the Financial Transaction Reports Act 1988. 2 The second count was in identical terms to the first count except that it alleged that the offences there in question had occurred on 6 and 7 April 2000. The applicant asked that a further offence, again of a similar nature, which had been committed on or about 3 December 1999, be taken into account pursuant to the provisions of s 16BA of the Crimes Act (C'th). Each of the offences upon the indictment carries a maximum penalty of five years' imprisonment and/or a pecuniary penalty of $33,000. 3 Having had regard to the provisions of s 16G of the Crimes Act (C'th) which was then in operation, Judge Latham sentenced the applicant on each count to a term of 12 months' imprisonment to date from 29 November 2002. Her Honour directed that the applicant be released after the expiration of 6 months by entering into a recognisance to be of good behaviour for a further period of 6 months. The effect of those orders is that the applicant will be released from custody on 28 May 2003. The applicant seeks leave to appeal against the severity of the sentences thus imposed upon her. 4 Her Honour found the following facts for the purposes of sentencing the applicant: The offences on indictment were committed in late March and early April 2000 respectively. They concern sixteen transfers of cash in amounts of less than $10,000 each to an Israeli bank account, that is, on 20 and 21 March 2000 and eleven transfers of cash in amounts of less than $10,000 each to another Israeli bank account that is on 6 and 7 April. All of these cash transfers were conducted by the prisoner's husband and all of them were into accounts operated by either George Segal or Ida Ronan both clients of the prisoner's accountancy practice. The total sum transferred in respect of all of these transactions was $427,393. The prisoner's husband used false names on each occasion, a matter of which the prisoner was aware according to the transcript of telephone intercepts provided as part of the Crown brief. The extent of her knowledge of these transactions is also evidenced by the telephone intercept transcripts, in particular, conversations with her husband wherein the number of transactions is discussed on a given day, how many transactions were outstanding and when the clients were to hand over the cash and in what quantity. The prisoner also maintained written records of transactions and forwarded those details to the clients. She physically collected moneys from the client which was the subject of transactions referred to in count two on the indictment. This was not criminality of a minor order for the purposes of these offences. True it is that the transactions themselves were confined to a number of days and true it is that there is no evidence to suggest that she was the architect or promoter of a service provided to these clients. But as a chartered accountant of twelve years standing her offending behaviour represents a premeditated flouting of the law. The prisoner appears to have been motivated by financial gain in that her husband took effectively a commission from the sums deposited which benefits himself and the prisoner. 5 With one minor exception those findings were not the subject of complaint. It was submitted however that the sentencing judge erred in finding that the persons Segal and Ronan were "both clients of the prisoner's accountancy practice". I discern no error in what her Honour said, especially as the statement of facts, to which no objection was taken, stated quite specifically, inter alia, that "amongst her clients were…George Segal and Ida Ronan". 6 The purpose of the Financial Transaction Reports Act is apparent from the statement of the Act's objects in s 4 which provides that: (1) The principal object of this Act is to facilitate the administration and enforcement of taxation laws. (2) A further object of this Act is to facilitate the administration and enforcement of laws of the Commonwealth and of the Territories (other than taxation laws). (3) Without prejudice to the effect of this Act by virtue of subsections (1) and (2), a further object of this Act is to make information collected for the purposes referred to in subsection (1) or (2) available to State authorities to facilitate the administration and enforcement of the laws of the States." 7 The Act makes provision for the monitoring of movements of large amounts of cash. Cash dealers are required by s 7 of the Act to report particulars of a "significant cash transaction", which is defined in s 3 to mean "a cash transaction involving the transfer of currency of not less than $10,000 in value". A "non-reportable cash transaction" is defined as a cash transaction (to which a cash dealer is a party) "that is not a significant cash transaction". Section 31 makes it an offence to conduct transactions so as to avoid the reporting requirements of the Act. Such transactions are sometimes referred to as "structuring" transactions. In respect of the two counts on the indictment there were in all 27 separate "structuring" transactions involving transfers of cash on the days nominated in the facts. On only 2 of those occasions was the sum transferred less than $9,000. On those 2 occasions the sums were $8975 and $8775 respectively. There were a further 19 such transactions in respect of the offence which was placed on the schedule. 8 In Leask v The Commonwealth (1996) 187 CLR 579 Dawson J stated that: [T]he mischief with which the Act was designed to deal is identified in the Second Reading Speech to the Cash Transaction Reports Bill as being "the underground cash economy, tax evasion and money laundering". It was intended to "give law enforcement agencies the ability to monitor the movement of large amounts of cash and thus to identify tax evaders and the recipients of proceeds of crime". (at 596-7) 9 In R v Narayan & Anor [2002] NSWCCA 200, Hodgson JA observed that: