Reported Decision: 173 A Crim R 11270 NSWLR 89 Appeal Outcome: Special leave granted by High Court - 2 October 2009 [s287/2009] [s288/2009]Heard 2-3 December 2009 Judgment reservedAppeals dismissed by the High Court 26 May 2010 [2010] HCA 18 New South Wales Court of Criminal Appeal CITATION: A. Ansari v R, H. Ansari v R [2007] NSWCCA 204 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 30/03/2007 JUDGMENT DATE: 14 August 2007 JUDGMENT OF: Simpson J at 1; Howie J at 36; Hislop J at 150 DECISION: The appeal against conviction is dismissed. The Crown appeal is allowed in respect of both appellants and the sentences imposed in the District Court quashed. In lieu each of the appellants is sentenced as follows: (a) Count 1: imprisonment for 7 years to date drom 18 August 2006 and to expire on 17 August 2013. (b) Count 2: Imprisonment for 7 years to date from 18 August 2008 and to expire on 17 August 2015. (c) There is to be a non-parole period of 5 years 5 months to date from 18 August 2006 and to expire on 17 January 2012, the date upon which the appellants are eligible to be released to parole. CATCHWORDS: Criminal Law - Offences - conspiracy under the Criminal Code (Cth) - the offence the subject of the conspiracy had as one of its fault elements recklessness - whether such a conspiracy bad at law - Criminal Liability - whether under the Criminal Code (Cth) a person can agree with another to commit an offence with a fault element of recklessness - relationship between offence of conspiracy under the Criminal Code (Cth) and at Common Law - Sentence - Crown Appeal - whether sentence imposed manifestly inadequate - relevant considerations in sentencing for a conspiracy to money launder - relevance of knowledge of the provenance of the money dealt with. Criminal Code (Cth) 1995 - Chapter 2, ss 5.2, 5.4(4), 5.6(1), 5.6(2), 6.1, 11.2, 11.5, 400.1, 400.2, 400.3, Division 400 of Part 10.2 LEGISLATION CITED: Financial Transaction Reports Act 1988 (Cth) - s 31 Customs and Excise Act 1952 (UK) - s 202(2) Crimes Act 1914 (Cth) - s 16A R v Z [2006] NSWCCA 342 R v Saengsai-Or [2004] NSWCCA 108, 61 NSWLR 135 United States of America v Griffiths [2004] FCA 879 Griffiths v United States of America [2005] FCAFC 34 R v Kotish (1948) 93 CCC 138 Peters v The Queen (1998) 192 CLR 493 R v Trudgeon (1988) 39 A Crim R 252 R v Lessard (1982) 10 CCC (3d) 61 Lee v R [2007] NSWCCA 71 CASES CITED: Churchill v Walton [1967] 1 All ER 497 Johnson v Youden [1950] 1 KB 544 Kamara v Director of Public Prosecutions [1973] 1 All ER 1242 Giorgianni v The Queen (1985) 156 CLR 473 Western Australia v Marchesi [2005] WASCA 133; (2005) WAR 359 R v Choi (Pong Su) (Ruling No. 12) [2005] VSC 32 Assafiri v R [2007] NSWCCA 159 R v Olbrich (1999) 199 CLR 270 R v Wall [2002] NSWCCA 42 Savvas v The Queen (1995) 183 CLR 1 R v Warby (1982) 9 A Crim R 349 PARTIES: Abdul Azees Mohamed Ansari v Regina Hajamaideen Mohamed Ansari v Regina FILE NUMBER(S): CCA 2006/2807, 2007/549; 2006/2804, 2007/553 COUNSEL: P.W. Neil SC with C. Ng - Crown P. Lowe with D. Leamey - Applicant/Respondent SOLICITORS: Commonwealth DPP - Crown P.Livers, Slattery Thompson - Applicant/Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0129 LOWER COURT JUDICIAL OFFICER: Woods DCJ LOWER COURT DATE OF DECISION: 10/11/2006 IN THE COURT OF CRIMINAL APPEAL 2006/2807, 2007/549 2006/2804, 2007/553 SIMPSON J HOWIE J HISLOP J TUESDAY 14 AUGUST 2007 Abdul Azees Mohamed Ansari v REGINA Hajamaideen Mohamed Ansari v REGINA Judgment 1 SIMPSON J: I have read in draft the judgment of Howie J. I agree with the orders his Honour proposes and with his reasons. I wish only to add the following observations, reflecting the route by which I have arrived at the same conclusions. 2 The appellants, brothers, and a third brother, were arraigned on an indictment, the first count of which was in the following terms: "Between about 1 September 2003 and about 14 October 2003 at Sydney in the State of New South Wales and elsewhere did conspire with each other and with [Z] and diverse other persons to deal with money to the value of $1,000,000 or more where there was a risk that the money would become an instrument of crime and where the [appellant and another man] were reckless as to the fact that there was a risk that the money would become an instrument of crime contrary to s 11.5(1) and sub-s 400.3(2) of the Criminal Code Act 1995." A second count was in identical terms except for the dates specified. 3 After a lengthy trial the jury returned verdicts of guilty in respect of each count against each appellant. They were unable to agree in relation to the third accused. 4 The appellants now appeal against the convictions. The sole ground of appeal in each case is expressed as follows: "The appellants were tried and convicted of an offence not otherwise known to law." 5 Howie J has outlined the facts alleged by the Crown. I shall restate only what is necessary for an understanding of my reasons. But very briefly, what the Crown alleged was this. 6 The two appellants operated a money exchange business known as Exchange Point. In 2003 an Israeli national now to be referred to as "Z" flew to Australia and took possession of more than $2 million dollars in cash. He delivered it, in batches, to the appellants at their business premises. The appellants then arranged for the money to be collected by Sadiq Habiburahman. In transferring the money to him they knew and intended that he would deposit it, over a period of months ending in May 2004, and in portions each of which would be less than $10,000, into various bank accounts. By breaking the money up in that way, legislation requiring that "significant cash transactions" (defined as transactions involving the transfer of currency of not less than $10,000 in value) be reported to Australian Government authorities, would be avoided. So doing, however, constituted an offence against s 31(1) of the Financial Transaction Reports Act 1988 ("the FTR Act"). This, in a nutshell, constituted the offence the subject of the first charge of conspiracy. The offence the subject of the second charge of conspiracy was intended to have been committed in a virtually identical fashion, between March and July 2004. Police intervened and arrested the participants before the plan could be brought to completion. 7 In order to appreciate the issues raised on the appeal, and these reasons, it is necessary to understand the structure and approach of the Criminal Code 1995 (Cth) ("the Code"). This has been comprehensively set out in the judgment of Howie J and I do not propose to repeat what his Honour has said. A particularly useful analysis of the Code is to be found in that part of the judgment of Bell J in R v Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135 that is extracted in the judgment of Howie J. 8 The charges of conspiracy were brought under s 11.5 of the Code. That section relevantly provides: "11.5 Conspiracy (1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. (2) For the person to be guilty: (a) the person must have entered into an agreement with one or more other persons; and (b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and (c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement. …" 9 Thus, where a person is charged under the Code with conspiracy, the Crown must, by s 11.5(2)(b), prove, inter alia, that the person charged and at least one other party to the agreement alleged intended that an offence (punishable by imprisonment for more than 12 months) would be committed pursuant to the agreement. It is of some significance that s 11.5(2)(b) (in contrast to s 11.5(1)) is framed in the passive voice; it is not necessary that the physical acts that make up the offence are intended to be or will be committed by any particular person. In particular, it is not necessary that they are intended to be, or will be, committed by any of the conspirators. Two people may, for example, agree to arrange the importation of prohibited drugs by using an unwitting agent, who is wholly unaware that he is carrying the drugs. (In that event, by reason of the doctrine that used to be known as mens rea, and is now, by Div 5 of Pt 2.2 of the Code, known as the "fault element" of the offence, unless the agent can be shown to have been reckless (see s 307.1), no offence will have been committed by that person, but the offence of importing will have been committed by the conspirators themselves.) What is essential to the offence of conspiracy is an agreement, and an intention, that an offence (punishable as set out in sub-s (1)) will be committed. It probably is necessary that it is intended that those acts will be carried out at the behest of the conspirators. 10 The offence the Crown alleged was the subject of the agreement it attributed to the appellants was the offence shortly known as money laundering. Money laundering is made an offence by Pt 10.2 of the Code. S 400.3 (which is part of Pt 10.2) is in the following terms: " 400.3 Dealing in proceeds of crime etc - money or property worth $1,000,000 or more (1) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is, and the person believes it to be, proceeds of crime; or (ii) the person intends that the money or property will become an instrument of crime; and (c) at the time of the dealing, the value of the money and other property is $1,000,000 or more. Penalty: Imprisonment for 25 years, or 1500 penalty units, or both. (2) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is proceeds of crime; or (ii) there is a risk that the money or property will become an instrument of crime; and (c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and (d) at the time of the dealing, the value of the money and other property is $1,000,000 or more. Penalty: Imprisonment for 12 years, or 720 penalty units, or both. (3) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is proceeds of crime; or (ii) there is a risk that the money or property will become an instrument of crime; and (c) the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and (d) at the time of the dealing, the value of the money and other property is $1,000,000 or more. Penalty: Imprisonment for 5 years, or 300 penalty units, or both. (4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d)." 11 S 400.3 appears to provide for three separate offences of money laundering where the value of the money or property involved is $1,000,000 or more. (Other sections of Pt 10.2 deal with money laundering in smaller amounts but it is unnecessary to take up time on these.) In fact, s 400.3, properly analysed, creates six different offences, in pairs, graded in descending order of seriousness. The level of seriousness depends upon what is alleged by the Crown to have been the state of mind of the person accused. Common to all offences is dealing with money or other property which either is the proceeds of crime or which it is intended will (sub-s (1)), or which might (sub-ss (2) and (3)) become, an instrument of crime. 12 The six separate offences are: Sub-s (1): (1) an offence of dealing in money/property to the requisite value that is, and is believed by the person accused to be, the proceeds of crime; (2) an offence of dealing in money/property to the requisite value that is intended by the person accused to become an instrument of crime; Sub-s (2): (3) an offence of dealing in money/property to the requisite value that is the proceeds of crime where the person accused is reckless as to the fact that it is the proceeds of crime; (4) an offence of dealing in money/property to the requisite value where there is a risk that it will become an instrument of crime and the person accused is reckless as to the fact of that risk; Sub-s (3): (5) an offence of dealing in money/property to the requisite value that is the proceeds of crime where the person is negligent as to the fact that it is the proceeds of crime; (6) an offence of dealing in money/property to the requisite value where there is a risk that it will become an instrument of crime and the person accused is negligent as to the fact of that risk. 13 By s 400.1(1), "proceeds of crime" is defined as: "… any money or other property that is derived or realised, directly or indirectly, by any person from the commission of an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence)." 14 An "instrument of crime" is defined in s 400.1(1) as: "… [money or property that] is used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence)." I will henceforth refer only to the offence as an indictable offence, without unncessarily complicating this judgment by reference to the qualification that follows in the definition. 15 The distinguishing feature between the first and second offence in each pair is temporal: the first is an offence where an indictable offence has already been committed, yielding the money or property as proceeds; the second is an offence where an indictable offence is envisaged or contemplated in the future. 16 The offences alleged to be the subject of the conspiracy with which the appellants were charged were of the fourth variety, as provided for by s 400.3(2). An offence of such a kind is established where the Crown proves: · that the person accused deals with money or other property; and · that there is a risk that the money or property will become an instrument of crime; and · that the person accused is reckless as to that risk. 17 For the purposes of this judgment, it is not necessary to pay any further attention to offences constituted by dealing in proceeds of crime (that is, crime already committed); nor to those in which the state of mind of the person accused is said to be intention or negligence. These reasons are confined to a consideration of a charge that an accused deals in money or property as to which there is a risk that it will become an instrument of crime (ie will be used in, or to facilitate, the commission of a crime), and that the person accused is reckless as to that risk; nor is it necessary to be further concerned with the concept of "dealing in money"; it was accepted in the trial by the appellants that, by receiving the money from Z, they were, for the purposes of the section, dealing in money. 18 The offence of money laundering is, for relevant purposes, committed when money or property is received by a person with the relevant state of mind. Although an offence of conspiracy to money laundering may be committed where the arrangement is that some other person will receive the money or property, that is not what was here planned. The physical acts constituting money laundering were to be committed (and in fact were committed) by the appellants themselves. The fact that the physical acts said to constitute the proposed or intended offence of money laundering were, in this case, the physical acts of the appellants themselves removes one potential complication. 19 As set out above, by s 400.3 of the Code, the fault (mental) element of the offence of money laundering may be intention, recklessness, or negligence. That state of mind must be shown to exist at the time of the "dealing" alleged. An allegation of conspiracy to commit that offence where the fault element alleged is recklessness raises this question: whose state of mind is relevant for the purpose of determining recklessness? I am of the view that that person is the person who performs the physical acts that constitute the crime against s 400.3(2). That is: where A and B agree that an offence will be committed (at their behest) against s 400.3(2) by C, it is C's state of mind that must be shown to be reckless: that is, reckless as to the fact that there is a risk that the money or property will be used in or to facilitate, the commission of a crime. The state of mind of the conspirators must (because of s 11.5(2)(b)), be intention – ie intention to agree that an offence against s 400.3(2) will be committed; and that offence may be constituted by the fault (mental) element of recklessness. But, because in this case it was alleged that the physical acts of the appellants in receiving the money constituted the physical element of the offence of money laundering, it is not necessary to consider the state of mind of any other person. 20 But the manner in which the offences (of conspiracy) were pleaded and particularised produces this somewhat odd result: the appellants were charged with (intentionally) agreeing to commit an offence the fault element of which was recklessness – ie they agreed to deal in money, reckless as to whether the money would be used in, or to facilitate, the commission of a crime. 21 Such a proposition is conceptually difficult to grasp. Logic, or a rational use of English language, would suggest that that cannot be done. But such resistance to the proposition fades when regard is had to the definition in the Code of "recklessness", which gives the word an extended meaning. 22 "Recklessness" is defined in s 5.4 in the following terms: "(1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element." The references in sub-ss (1) and (2), respectively, to "a circumstance" and "a result" are references to s 4.1 of the Code , by which the "physical elements" of offences are defined as: "(a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs" In the circumstances of the present case, the provisions of sub-s (4), permitting recklessness to be proved by proof, not only of recklessness, but also of intention or knowledge, are of significance. I will return to this. 23 Recklessness, as I have already mentioned, was the state of mind necessary for the commission of the offence the object of the conspiracy – what I might call the subsidiary offence. The recklessness to which the indictment adverted was recklessness as to a circumstance in which conduct that constituted the s 400.3(2) offence was said to have occurred – the circumstance being the existence of a risk that the money would be used in, or to facilitate, the commission of a crime. If the appellants had been charged with the substantive offence of money laundering, by s 5.4(1)(a) the Crown therefore would have had to prove that each appellant was aware that there was a substantial risk that that circumstance existed or would (in the future) exist. But the appellants were not charged with the substantive offence of money laundering: they were charged with conspiracy to money launder. The agreement the subject of the conspiracy necessarily predated the anticipated money laundering. To prove the conspiracy the Crown had to prove that the appellants agreed to commit an offence aware of the relevant circumstance. Where (as here) the circumstance is, itself, the existence of a risk, putting the language of s 400.3(2)(c) together with that of s 5.4(2)(a) produces a result that, at first glance, might appear odd, but which is not in reality, (for reasons which will appear) untoward. The result is this: the Crown had to prove that the appellants intentionally agreed that each would deal with money in the future, and that, at that future time each appellant would be aware that there then would be a substantial risk that there was a risk that the money would become an instrument of crime (ie would be used in, or to facilitate, the commission of an indictable offence), and (by sub-para (b)) that, having regard to the circumstances known to him, it was unjustifiable to take that risk. That is conceptually unacceptable. But it emerges only from the unextended meaning of "recklessness". To prove recklessness, by reason of s 5.4(4) the Crown could also prove either that the appellants intended or knew that the money would become an instrument of crime. That is, in fact, what the Crown here set out to do. 24 The concept of "instrument of crime" in s 400.3 introduces into the conspiracy offence here in question a second tier of inchoate crime – the money laundering offence is, for relevant purposes, committed where a second crime is in contemplation. Conspiracy consists of an agreement to commit a criminal act (or an agreement that a criminal act will be committed); where the criminal act alleged to be the subject of the agreement is money laundering, the Crown must also prove that the person accused has in contemplation a second crime. That is because money laundering is, by definition, committed where another crime is envisaged – and is not committed unless some other crime is in contemplation (or has been committed). 25 The second crime in question in this case was said to be a crime against s 31 of the FTR Act. The objects of the FTR Act are set out in s 4 thereof, and include facilitating the administration and enforcement of taxation laws, and the enforcement of laws of the Commonwealth and of the Territories. The FTR Act requires, on the part of various identified entities, such as banks and financial institutions, reporting, to the Director of the Australian Transaction Reports and Analysis Centre ("AUSTRAC"), of "significant cash transactions". "Significant cash transactions" are transactions involving the transfer of currency of not less than $10,000 in value. By corollary, cash transactions of less than $10,000 are not required to be reported – they are "non-reportable cash transactions". 26 S 31 of the FTR Act creates an offence of being a party to two or more non-reportable cash transactions where, for any of a variety of reasons set out in the section, it would be reasonable to conclude that the transactions were conducted in that manner for the sole or dominant purpose of avoiding the provisions of the FTR Act. This was the crime of which there was, on the Crown case, a risk of being committed or facilitated by the depositing of the money by Sadiq Habiburahman. Such transactions are commonly referred to as "structured transactions". Alternatively, the Crown proposed that the crime of which there was a risk was a crime of tax evasion. 27 It is not necessary, in order to prove the existence of a risk that money or property will become an instrument of crime, for the Crown to establish a risk that a particular offence will be committed in relation to the money or property (or a risk that a particular person will commit an offence in relation to the money or property: s 400.13(2) specifically so provides. Notwithstanding that, the Crown case was built upon the proposition that there was a risk that the money with which the appellants dealt would become an instrument of crime by being used in structured transactions in order to avoid the provisions of the FTR Act (or, alternatively, that the money would be used in the commission of a tax evasion offence); and, indeed, that this was what the appellants intended. 28 Thus, incorporating the various provisions to which I have referred, the charges in the indictment may be expressed more simply. The allegation made by the Crown was that the appellants conspired with each other, with Z, and with others, to commit the offence of money laundering. Specifically, the Crown alleged that they did this by arranging that Sadiq Habiburahman, on each of a number of occasions, deposit a sum of less than $10,000, totalling about $2 million, in order to, and in a way that would, avoid the provisions of the FTR Act. It is inherent in the manner in which the charges were framed, and the sub-section under which they were brought, that the Crown was alleging that the appellants were reckless as to the fact that there was a risk that the money deposited would be used in the commission of, or to facilitate, the commission of that crime or in the commission of a tax evasion offence. Bearing in mind the provisions of sub-ss 5.4(2) and (4), it was open to the Crown to prove recklessness either by proving that the appellants were aware that there was a substantial risk that the money would be used in that way, and that, having regard to the circumstances known to them, it was unjustifiable to take that risk OR that they either intended or knew that the money would be used in that way. Although it was not necessary that the Crown prove that the appellants (or either of them) themselves physically dealt with the money, it was admitted by them that, in receiving the money from Z, they did so. (As indicated above, the Crown case was, in fact, that the appellants both knew and intended that the money would be used in that way.) 29 The manner in which the only ground of appeal is framed may not clearly expose its intent. Put simply, it is that it is not open to the Crown to charge, or prove, a conspiracy to commit a crime of which the fault element (or mental state) is recklessness. 30 The appellants' submissions included the following: "4.4 … It is contended that a conspiracy under the Code is only committed where the offence the subject of the confederates agreement is intentionally, rather than recklessly, in contemplation and hence intention is the fault element in relation to the physical element of the offence of conspiracy. … 5.7 The contention that a conspiracy under s 11.5 can only be committed where the fault element involves intention flows from a consideration of the following matters: 5.7.1 The statutory prescription that the confederates 'must have intended that an offence would be committed pursuant to the agreement' (s 11.5(2)(b)). As a matter of the ordinary meaning of the word 'intended' one can hardly be said to intend something to happen when one is reckless as to whether it will happen or not. … 5.7.5 … an additional reason for contending that conspiracy under the Code requires proof of intention under s 5.2 flows from consideration of the fact that no physical element or fault element for a physical element is specified in s 11.5. It is submitted that the gist of the physical element of the conspiracy consists in conduct and that that the fault element for the physical element of conspiracy is intention …" 31 These paragraphs from the written submissions, particularly that in 5.7.1, expose the flaw in the argument. 32 It may, for the purposes of the argument, be accepted (as contended in para 5.7.5) that the fault element in respect of the offence of conspiracy is intention. That is beside the point. That intention is the intention to enter the agreement the subject of the conspiracy. It was never suggested by the Crown that the appellants were reckless in that respect, or that recklessness had anything to do with their entry into the agreement alleged against them. On behalf of the appellants heavy reliance was placed upon the provisions of s 11.5(2)(b), requiring, for proof of the offence of conspiracy, proof that at least two individuals intended that an offence would be committed pursuant to their agreement. That is a different intention. There is no reason why that intention does not extend to an intention that an offence against s 400.3(2) would be committed – that is, an offence constituted by dealing in money/property where there existed a risk that the money/property would become an instrument of crime, and where the person who committed that crime would be reckless as to the fact of that risk – that is, would be aware of a substantial risk that the money would be used in structured transactions, avoiding the provisions of the FTR Act (or tax evasion), and that, having regard to the circumstances known, it is unjustifiable to take that risk; or knew or intended that it would be so used. 33 The argument advanced on behalf of the appellants wholly fails to take into account the extended definition of "recklessness" contained in s 5.4(4). Where recklessness may be proved by intention or knowledge, any colour of validity that might otherwise be given to the argument disappears altogether. And both knowledge and intention were what the Crown here set out to prove. 34 The flaw in the appellants' argument is in failing to identify who the Crown alleged was (or would have been) "reckless" and to what aspect of the facts alleged the recklessness attaches. The appellants' argument attributes recklessness to themselves, in the formation of, or entry into, the criminal agreement. I accept that recklessness is insufficient for that. But that is not the correct analysis. It is not recklessness as to the agreement that is in question; it is agreement (intentionally entered into) that an offence will be committed that might, inter alia, be done with a reckless state of mind. The recklessness attaches, not to the formation of, or the entry into, the agreement, but to the offence that is to be committed pursuant to the agreement. 35 For these reasons, I agree with Howie J that the appeals against conviction ought to be dismissed. I agree, for the reasons given by his Honour, with the orders he proposes in relation to the Crown appeals against sentence. 36 HOWIE J: The appellants, who are brothers, and a third brother stood trial jointly in the District Court before Judge Woods QC (the Judge) and a jury on two offences of conspiring to deal with money as an instrument of crime of a value of $1,000,000 or more. These are offences contrary to provisions of the Criminal Code (Cth) (the Code) and each carries a maximum penalty of imprisonment for 12 years. After a lengthy trial the jury convicted the appellants on both counts but were unable to agree in relation to the co-accused Abdul Jaleel Mohamed Ansari (Jaleel Ansari). 37 The appellants were both sentenced on each offence to imprisonment for 4 years to be served concurrently with an overall non-parole period of 2 years and 9 months. They are eligible for release to parole on 17 May 2009. They have appealed against their convictions. The Crown has appealed against the sentences imposed. 38 There is a single ground of appeal against conviction asserting that the offences charged were unknown to law. In effect the appellants' contention is that it is not possible under the provisions of the Code to charge a conspiracy to commit an offence that has as one of its fault elements recklessness. As the conspiracy alleged was to commit an offence contrary to s 400.3(2) of the Code, which has a fault element of recklessness in respect of a physical element of circumstance, the appellants assert that the charge was bad. 39 To determine the validity of this ground it is not necessary to consider the evidence led in the Crown case in any detail. The Court has not been provided with a transcript of the evidence given at the trial. But in order to understand the argument it is necessary to briefly state the facts. Without intending any disrespect to the appellants but for ease in recounting the facts, I shall refer to the appellant Abdul Azees Mohamed Ansari as Azees and Hajamaideen Mohamed Ansari as Haja. 40 The first count on the indictment was as follows: Between about 1 September 2003 and about 14 October 2003 at Sydney in the State of New South Wales and elsewhere did conspire with each other and with [Z] and diverse other persons to deal with money to the value of $1,000,000 or more where there was a risk that the money would become an instrument of crime and where the said Abdul Jaleel Mohamed Ansari, Abdul Azees Mohamed Ansari and Hajamaideen Mohamed Ansari were reckless as to the fact that there was a risk that the money would become an instrument of crime contrary to section 11.5(1) and subsection 400.3(2) of the Criminal Code Act 1995. The second count in the indictment was in the same terms except that the date specified for the offence was "between about 22 March 2004 and about 29 July 2004". 41 Evidence was given in the Crown case by an alleged co-offender. He had previously pleaded guilty to a substantive offence of the nature of that alleged in the conspiracy against the appellants in the second count in the indictment, that is an offence of money laundering in June 2004. Judge Graham sentenced him for that offence and an offence in relation to his possession of a large amount of drugs. The Crown appealed against his sentences and this Court considered them in R v Z [2006] NSWCCA 342. I will need to return to that judgment later in considering the Crown appeal. In order to continue his anonymity, although I doubt that it is still required, I will refer to him as "Z" throughout this judgment. The facts 42 The appellants were directors of a money exchange business in Sydney known as Exchange Point Pty Limited (Exchange Point). The first count concerned the dealing by the appellants with over $2 million in cash delivered to them by Z in October 2003. 43 Z gave evidence that his nephew and other associates in Romania recruited him in mid-2003 to travel to Australia for the purpose of dealing with money in which they had an interest. He arrived in Australia on 3 October 2003. He received instructions by phone from Romania and in consequence went to an apartment in Bondi. There he took possession of cash exceeding $2 million from the back of a floor safe located in that apartment. Over a ten-day period he personally delivered this cash to the appellants at Exchange Point. Z then hired a removalist and had the safe transported to a warehouse storage facility. He departed Sydney on 14 October 2003. 44 Within two days of Z's departure the appellants arranged for an associate, Sadiq Habiburahman, to attend at Exchange Point for the purposes of depositing the money received by them from Z into various bank accounts. He did this over a period of several months, depositing the money in sums of less than $10,000. Between 16 October 2003 and 13 May 2004 he banked a total of $1,952,107 on behalf of the respondents. 45 The second count related to a second visit to Sydney by Z in June 2004. However, prior to that visit police had been lawfully intercepting phone conversations between the appellants and Jaleel Ansari in France from October 2003. These involved Jaleel's contact with an unidentified female named "Usha". In January 2004 there were e-mails sent by the appellant Azees to Usha making arrangements for her to meet with Jaleel. Two intercepted telephone calls in January have Usha telling Azees that she was "sending somebody again in the future". 46 Z returned to Australia on 23 June 2004. He attended once more at Exchange Point where a listening device was in place. He was recorded speaking to both appellants. During the conversation Azees asked Z, "Any idea how much?" to which Z replied, "Two, maybe three". He indicated that it would take longer this time. 47 Z gave evidence at the trial that he understood that he would be delivering between $2 million and $3 million to the appellants as he had done in October 2003. However Z and the appellants were arrested before Z could obtain the money which apparently was to come from the sale of drugs. 48 The appellants were originally charged with the two conspiracy offences and a further 73 charges contrary to s 400.3(2) arising from the same facts. The trial judge severed the substantive offences from the indictment for the conspiracy offences. Following the Crown's opening the appellants made an application to the trial judge to dismiss the conspiracy charges in the interests of justice pursuant to s 11.5(6) of the Code. The judge rejected the application. They made a similar application at the end of the Crown case but it was again refused. The legislation 49 In order to appreciate the appellants' argument it is necessary to have an understanding of that part of the Code dealing with criminal responsibility. This is found in Chapter 2. This is the fundamental part of the Code that sets out the structure and interpretation of offences created or operating under its provisions. This section of the Code was considered in some detail by this Court in R v Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135. 50 The important provisions of Chapter 2 were summarised as follows by Bell J: [37] The general principles of criminal responsibility in the Criminal Code do not adopt the common law concepts of actus reus and mens rea. Instead the Criminal Code defines criminal responsibility in terms of proof of the physical elements and fault elements of an offence. The physical elements of an offence may be conduct, a result of conduct and a circumstance in which conduct, or a result of conduct, occurs: s 4.1. [38] Under the Criminal Code the fault elements of an offence may be intention, knowledge, recklessness and negligence: s 5.1 (additional fault elements may be specified for the physical elements of a given offence). [39] The Criminal Code provides that a person has intention with respect to conduct if he or she means to engage in that conduct: s 5.2(1). [40] The fault element of knowledge requires proof of actual knowledge; a person has knowledge of a circumstance or a result if he or she is aware that it exists or that it will exist in the ordinary course of events: s 5.3. [41] Recklessness with respect to a circumstance requires proof that the person is aware of a substantial risk that the circumstance exists or will exist and having regard to the circumstances that are known to him or her, it is unjustifiable to take the risk: s 5.4(1). [42] An offence consists of physical and fault elements. Liability for the commission of an offence is dependent upon proof of each physical element of the offence together with proof of the fault element that is applicable to each physical element. An offence may comprise more than one physical element and different fault elements may apply to each physical element: s 3.1 (provision is made for the law creating an offence to specify that there is no fault element for one or more of the physical elements of the offence). In the absence of specification of the fault element (or specification that there is no fault element) for a physical element the Criminal Code makes provision for default fault elements: s 5.6. [43] Intention is the default fault element for a physical element that consists only of conduct: s 5.6(1). Recklessness is the default fault element for a physical element that consists of a circumstance or a result: s 5.6(2). 51 The appellants were charged with conspiracy to commit an offence under s 400.3(2) of the Code. Section 400.3(2) relevantly provides as follows: 400.3 Dealing in proceeds of crime etc.—money or property worth $1,000,000 or more (2) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is proceeds of crime; or (ii) there is a risk that the money or property will become an instrument of crime; and (c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and (d) at the time of the dealing, the value of the money and other property is $1,000,000 or more. Penalty: Imprisonment for 12 years, or 720 penalty units, or both. …………. (4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d). 52 An "instrument of crime" is defined in s 400.1 of the Code as: "..money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence)." 53 There is a somewhat complicated definition of "deals with money or other property" applying to the provision contained in s 400.2. It is unnecessary to set it out because the appellants made admissions at the trial that in effect accepted that their conduct in relation to the money received from Z came within the ambit of that section. The money was an "instrument of crime" in that Sadiq Habiburahman was to deposit it in various accounts by a series of structured transactions in order to avoid the reporting provisions of the Financial Transactions Reports Act (Cth). It was the Crown case that the money to be received from Z on the visit was to be dealt with in the same manner. 54 At the outset of the trial each of the conspiracies alleged was an agreement between the appellants and others that an offence would be committed by dealing with the money where there was a risk it would be used as an instrument of crime in that it would be deposited by a series of structured transactions in breach of the Financial Transactions Reports Act the appellants being reckless as to that risk. As the trial progressed the particulars of each of the charges were broadened, for reasons that are not presently relevant, to include an allegation that there was a risk that the money received, or to be received, from Z would become an instrument of crime because it was dealt with by structured transactions or for tax evasion. 55 The elements of the offence under s 400.3(2) that it was alleged that the appellants conspired to commit are therefore: the appellants agreed (a) to deal with money (b) to the value of $1 million or more (c) where there was a risk that the money would become an instrument of crime and (d) where they were reckless as to that risk. Applying the provisions of Chapter 2 of the Code to these elements: (a) above is a physical element of conduct, and (b), and (c) are physical elements of circumstance. The fault element for physical element (a) is intention by reason of s 5.6(1). Absolute liability applies to the circumstance in (b) by reason of s 400.3(4). It was therefore not necessary for the Crown to prove that either of the appellants knew of the value of the money. The fault element for physical element (c) is contained in element (d). It should be noted that even had (d) not existed, the default element for a physical element of circumstance is recklessness under s 5.6(2). 56 The offence of conspiracy to commit an offence is set out in s 11.5 of the Code. It is as follows: 11.5 Conspiracy (1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. Note: Penalty units are defined in section 4AA of the Crimes Act 1914 . (2) For the person to be guilty: (a) the person must have entered into an agreement with one or more other persons; and (b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and (c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement. (2A) Subsection (2) has effect subject to subsection (7A). (3) A person may be found guilty of conspiracy to commit an offence even if: (a) committing the offence is impossible; or (b) the only other party to the agreement is a body corporate; or (c) each other party to the agreement is at least one of the following: (i) a person who is not criminally responsible; (ii) a person for whose benefit or protection the offence exists; or (d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy. (4) A person cannot be found guilty of conspiracy to commit an offence if: (a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or (b) he or she is a person for whose benefit or protection the offence exists. (5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person: (a) withdrew from the agreement; and (b) took all reasonable steps to prevent the commission of the offence. (6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so. (7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence. (7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence. (8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given. 57 A question arose at the hearing of the appeal as to the characterisation of the provisions of s 11.5(2). It is unnecessary for the resolution of the present appeal to determine whether, as counsel suggested, they are elements of the offence of conspiracy. They were treated as such by Jacobson J in United States of America v Griffiths [2004] FCA 879. That decision was upheld in Griffiths v United States of America [2005] FCAFC 34. In neither decision was any consideration given to how the provisions of Chapter 2 of the Code would operate on the provisions of subsection 2. For example, if these are elements of the offence, is each of the matters set out in that subsection a physical element of conduct, result or circumstance and what would be the relevant fault element applying? However these are matters that need not be further addressed here. The fault element of conspiracy under the Code 58 The only issue to be resolved is whether there is a limit upon the applicability of the law of conspiracy to Federal offences in addition to that specified in s 11.5(1). That subsection itself limits the operation of the offence of conspiracy to those offences that are "punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more". Further, the section contains restrictions on the operation of the offence in subsections 2, 4 and 5, however those restrictions might be described. On its face it may appear curious that Parliament would not have specified all the limits on the operation of the offence in s 11.5, particularly as it is a relatively modern provision found in a code and was the result of a considerable amount of public debate upon the recommendations made by the Model Criminal Code Officers Committee ("MCCOC"). 59 Nevertheless the argument is based upon common law principles. It focuses on the words in s 11.5(2)(b) underlined below: (b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; The argument is that this section indicates that Parliament intended to adopt the Common Law requirement that a person could not enter into a conspiracy recklessly. Reference is made on behalf of the appellants to the definition of "intention" in s 5.2 of the Code, to the definition of "intention" in the Concise Oxford Dictionary, to a "fundamental rule of construction" that words used in a code should be construed as having the same meaning, to texts concerned with the offence of conspiracy at Common Law and to the commentary upon Chapter 2 of the Code in Commonwealth Criminal Code – A Guide for Practitioners by Ian Leader-Elliott and published under the auspices of the Commonwealth Attorney General's Department in 2002 ("the Guide"). 60 It is clear that the provision in s 11.5(2)(b) is aimed at replicating the Common Law requirement that there had to be an actual agreement between at least two persons to commit a crime. If one of the persons was merely pretending to make such an agreement with no intention of carrying it out, such as entrapment by a police informer, there was no offence of conspiracy: R v Kotish (1948) 93 CCC 138 and see Peters v The Queen (1998) 192 CLR 493 per McHugh J at [62]. This was the stated purpose of the provision as set out in the MCCOC Final Report on Chapter 2 of the Model Code December 1992 at p 101. 61 It was established at Common Law that the offence of conspiracy was only made out where it was the intention of at least two persons entering into the agreement that an offence be committed, a mere expectation that the offence would take place was insufficient: R v Trudgeon (1988) 39 A Crim R 252. In my opinion even without the existence of s 11.5(2)(b) the same requirement would apply to the offence in s 11.5(1). Further at Common Law a person could not enter into an agreement recklessly as there had to be an intention to agree: R v Lessard (1982) 10 CCC (3d) 61. 62 When considering any offence to which the Code applies it is necessary to consider how many physical elements are contained in the offence. This is because under the Code, generally speaking, any offence is made up of physical elements each with an accompanying fault element: see s 3.1(1). Therefore it is necessary to enquire as to how many physical elements are contained in the statement of the offence in s 11.5(1). 63 In my opinion there is only one physical element in the offence as stated in s 11.5(1). The physical element is encompassed in the words "conspires to commit an offence". It is impossible to comprehend two people forming an agreement unless the subject matter of the agreement is known. A composite element of an offence has been recognised in offences to which the Code applies: see Lee v R [2007] NSWCCA 71 at [7]. The subject matter of the prohibited agreement under s 11.5(1) is an intention to commit an offence of the kind described in the section. Therefore s 11.5(1) contains a single physical element of conduct being to enter into the proscribed agreement. There is no fault element stated in s 11.5(1), therefore, applying s 5.6(1), the default fault element for a physical element of conduct is intention. Applying the definition of "intention" in s 5.2(1) of the Code, the person must mean to enter into such an agreement. 64 This is precisely what MCCOC intended. At p 101 of the Final Report on Chapter 2 the Committee wrote: 405.1 Fault elements The Committee agreed that intention was required and that recklessness would not suffice. This is in accordance with the proposals of the Gibbs Committee,(s.7D(1)(c)), and the common law (Gerakiteys (1983) 153 CLR 317). The concept of recklessness is foreign to an offence based wholly on agreement.1 The relevant footnote stated: This proposal is also in accord with Gillies, "Secondary Offences and Conspiracy" (1991) 15 Crim LJ 157 at 164, and the following common law authorities: O'Brien (1954) 110 CCC 1; Freeman (1985) 3 NSWLR 303; Nirta (1983) 51 ALR 53; it is contrary to s.48(2) English Draft Code and s.321(2)(b) Crimes Act (Vic). 65 In the Guide (which is accessible from the web page for the Model Criminal Code which can be found under the heading "Crime Prevention and Enforcement" on the Australian Government Attorney General Department site at www.ag.gov.au) at 279 Ian Leader Elliot describes the physical element in the offence set out in s 11.5 as "entry into an agreement" that act being accompanied by "an ulterior intention" that an offence will be committed. Although this view may differ slightly from my analysis of the section, the same result generally follows in terms of the applicable fault element for the offence. However, there is a suggestion, at least in footnote 341 on page 791, that it might be sufficient to make out the offence if each of the conspirators acted with recklessness, as that term is defined under the Code, of the other's intention to commit a crime. This seems to me to be contrary to s 11.5(2)(b) as set out above and a departure from the Common Law to which no reference is made in the MCCOC final report. It is unnecessary to decide the question but I doubt that such a reading extending criminal liability for the offence of conspiracy is correct and will disregard it for the present argument. 66 Thus the offence of conspiracy under the Code is similar to that at Common Law. Both under the Code and at Common Law two or more persons must mean to enter into an agreement that an offence would be committed by themselves or some other person. The differences between the Code offence and the offence at Common Law are that, firstly, under the Code it is not an offence to enter into an agreement to commit a lawful act by unlawful means and, secondly, it is not an offence under the Code to agree to commit a crime for which the maximum penalty is less than that stated in the section. It should also be noted that under the Code it is not sufficient to support a conviction of a conspiracy offence that there has only been an agreement entered into by the parties: there must also be an overt act committed by at least one person toward the achievement of the object of the agreement. 67 Much of the argument before this Court was concerned with whether it was an offence known at law to enter into an agreement being reckless whether an offence would be committed as a result of that agreement. In my opinion there can be no doubt that such an offence was not known to the Common Law nor is it an offence under s 11.5. As I have indicated, that result has nothing to do with the existence of s 11.5(2)(b). It follows simply from applying the provisions of Chapter 2 of the Code to the offence as set out in s 11.5(1). But this conclusion does not resolve the real issue raised by this ground of appeal. Conspiracy to commit a reckless crime (a) Common Law 68 The question posed by the offences with which the applicants were charged is not whether a person could conspire to commit an offence by entering into an agreement being reckless whether an offence would be committed. Nor is the question whether there can be a reckless agreement to commit an offence. As I have indicated the answer to both questions at Common Law and under the Code is "No". Rather the question raised is, can a person conspire to commit an offence the mental element of which is recklessness? 69 There is authority, to which neither party referred the Court, concerned with a related question under the Common Law. In Churchill v Walton [1967] 1 All ER 497 the House of Lords was concerned with a conspiracy to commit an offence contrary to s 202(2) under the Customs and Excise Act 1952 (UK), an offence of absolute liability relating to the use of fuel for which payment of tax had not been made. The jury convicted the accused of the conspiracy but it was evident from their acquittal of a charge of conspiracy to cheat and defraud that they must not have been satisfied that he knew that tax had not been paid on the fuel. The question was whether he ought to have been convicted of the conspiracy offence even though he did not know all of the facts that made his acts criminal. The appeal was allowed and the conviction quashed. 70 Viscount Dilhorne gave the main judgment. His Lordship noted that the substantive offence under the Customs and Excise Act was an offence of absolute liability so that it was enough to make out the offence that the fuel was used. It was not necessary to prove that the user knew that its use was contrary to law. The trial judge directed the jury that the agreement charged was to use the fuel that had not been taxed and it did not involve "any proof of dishonest intent or knowledge that such use would cheat the revenue….". Viscount Dilhorne (at 500) explained the relevant elements of the offence of conspiracy as they related to the facts of the case before the House as follows: "As has often been said, the offence of conspiracy is the making of an agreement to do an unlawful act. It is the character and content of the agreement that matters, and the accused's knowledge of what in fact has been done is relevant if it throws light on that. Proof of a conspiracy in most cases depends on inferences to be drawn from the conduct of the parties. Proof that fuel, on which the rebate has been allowed and no repayment had been made, had been used by a number of persons acting together in a number of road vehicles could lead to the inference being drawn that they were parties to an agreement to use such fuel and so to do an unlawful act and were, therefore, guilty of conspiracy. The jury were not in this case invited either by the prosecution or the judge to consider whether such an inference could properly be drawn. They were told that it sufficed to establish guilt if such fuel was in fact so used and the accused was a party to an arrangement to use gas oil in road vehicles. The use of gas oil in road vehicles contravenes s 200(2) only if a rebate has been allowed on it and the amount of the rebate has not been refunded. An agreement to use in road vehicles gas oil on which a rebate has been allowed is not, therefore, per se an agreement to do an unlawful act, but it will be an agreement to do an unlawful act if the object of the agreement is so to use gas oil in respect of which no repayment has been made. An agreement which is not to do an unlawful act will not be converted into an agreement to do an unlawful act by the fact that, unknown to the accused, gas oil is used in respect of which the required repayment has not been made. If the appellant had been a party to an agreement to use fuel in road vehicles in contravention of s 200(2), he must have known that that would happen. The conclusion that such fuel was so used without his knowledge leads to the conclusion that he was not a party to an agreement to do an unlawful act." 71 The Court of Criminal Appeal, having dismissed the appeal, certified the following question "whether mens rea was an essential ingredient in conspiracy to commit the absolute offence charged in the count on which the appellant was convicted, and, if so, what knowledge of the facts and/or law on the part of the appellant must be established to prove the charge". In reference to this question, his Lordship stated: "In answer to the question posed by the Court of Criminal Appeal in this case, I would say that mens rea is only an essential ingredient in conspiracy insofar as there must be an intention to be a party to an agreement to do an unlawful act; that knowledge of the law on the part of the accused is immaterial, and that knowledge of the facts is only material insofar as such knowledge throws a light on what was agreed. In cases of this kind, it is desirable to avoid the use of the phrase "mens rea", which is capable of different meanings, and to concentrate on the terms or effect of the agreement made by the alleged conspirators. The question is "What did they agree to do?" If what they agreed to do was, on the facts known to them, an unlawful act, they are guilty of conspiracy and cannot excuse themselves by saying that, owing to their ignorance of the law, they did not realise that such an act was a crime. If, on the facts known to them, what they agreed to do was lawful, they are not rendered artificially guilty by the existence of other facts, not known to them, giving a different and criminal quality to the act agreed on." 72 Viscount Dilhorne was of the opinion that as to the issue raised in the appeal the law was the same for conspiracy as it was where the charge was one of aiding and abetting. His Lordship referred with approval to the following statement by Lord Goddard in Johnson v Youden [1950] 1 KB 544 at 546: "Before a person can be convicted of aiding and abetting the commission of an offence, he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence, because to allow him to say, 'I knew of all those facts but I did not know that an offence was committed', would be allowing him to set up ignorance of the law as a defence." 73 Churchill v Walton was applied in Kamara v Director of Public Prosecutions [1973] 1 All ER 1242 where at 1252 Lord Hailsham stated a number of propositions that he thought to be uncontroversial and one of which was: "………mens rea is an essential ingredient in the crime of conspiracy. This mens rea consists in the intention to execute the illegal elements in the conduct contemplated by the agreement, in the knowledge of those facts which render the conduct illegal (cf Churchill v Walton)". 74 Johnson v Youden was considered and applied by the High Court in Giorgianni v The Queen (1985) 156 CLR 473, a case concerned with the proof of an offence of aiding and abetting a strict liability offence of culpable driving. In the course of the joint judgment of Wilson, Deane and Dawson JJ their Honour's wrote (at 506) (my underlining): "For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts." 75 Giorgianni was applied to a statutory offence of conspiracy to supply drugs in Western Australia v Marchesi [2005] WASCA 133; (2005) WAR 359 where Steytler P. stated at [17]: "The guilty mind required for the offence of conspiracy comprises both an intention to agree upon the commission of the unlawful act and knowledge of the facts and circumstances which disclose its unlawful nature. Each conspirator must intend that the unlawful act be committed: Giorgianni v R (1985) 156 CLR 473 at 506, per Wilson, Deane and Dawson JJ." 76 The situation at Common Law, therefore, is that there is no impediment to a person being charged with a conspiracy to commit an offence that is one of strict or absolute liability. However, in order to be guilty of the conspiracy to commit such an offence the person must agree to commit an act that is unlawful. The person does not have to know that the act is unlawful but needs to know all the facts that make the act unlawful. If a person can conspire to commit a crime for which no mens rea is necessary, there seems to be no good reason why a person could not conspire to commit a crime of which the mental element is recklessness. (b) The Code 77 So far I have been referring to the Common Law position, but it seems to me that it should be taken to be the position under the Code. This is because it is obvious that it was the intention of MCOCC and the Legislature, which adopted its recommendations, that the offence of conspiracy under the Code was to have a more limited application than the offence at Common Law yet was otherwise to reflect the position at Common Law so far as the mental element of the offence was concerned. 78 In any event it seems that to hold otherwise would be inconsistent with the requirement of s 11.5(2)(b) that the accused and at least one other person "have intended that an offence would be committed pursuant to the agreement". The accused must intend that conduct will be carried out that amounts to a criminal offence and he cannot have that intention if he does not know all the facts that would make the intended conduct an offence. It is not enough that he intends that conduct will be carried out that it so happens and by reason of facts of which he is unaware is criminal. 79 The appellants relied upon the provisions of the Code concerned with ancillary liability by way of aiding and abetting. These provisions are found in s 11.2 of the Code. Section 11.2(1) provides: (1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly. Section 11.2(3) relevantly provides: (3) For the person to be guilty, the person must have intended that: (a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or……….. 80 These provisions accord with the Common Law principles as to aiding and abetting. Because the accused must have intended to assist the commission of the offence by the principal, the accused must have known of all the facts that would make the conduct that he was assisting a criminal offence. Recklessness as to the existence of facts is not sufficient: R v Choi (Pong Su) (Ruling No 12) [2005] VSC 32. This reading of s 11.2 is both consistent with the Common Law and would be consistent with the approach to conspiracy under the Code that I favour. 81 There is one further matter that should be noted. A strict application of the Common Law to the Code offence of conspiracy would have resulted in the prosecution having to prove knowledge on the part of a conspirator of all facts that made the intended conduct an offence including those facts that would amount to an element of an offence to which absolute liability applied. This would be a direct application of the decision in Churchill v Walton. 82 As has been noted, the element of s 400.3(2)(d), that the value of the money was more than $1 million, was one to which absolute liability applied by reason of s 400.3(4). Notwithstanding that the Crown would not have to prove that the accused knew the value of the money exceeded $1 million in proving an offence under that section, it would have to prove that knowledge on a charge of conspiracy to commit that offence by application of the Common Law. However s 11.5(7A) provides: Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence. A "special liability provision" is defined in the Dictionary of the Code as: (a) a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence; or (b) a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew a particular thing; or (c) a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing. 83 Therefore (a) of the definition applies to the provision under s 400.3(4). On a charge of conspiracy under the Code, contrary to the Common Law, the prosecution is not required to prove that the accused knew of a fact to which absolute liability applies. Therefore in the present case the Crown did not have to prove that the appellants knew of the value of the money. 84 In my view the type of provision found in s 11.5(7A), and which is also found in the provisions dealing with attempt and incitement, support the argument that the Common Law applies to conspiracy to the extent that there is not a contrary express provision in the Code. Section 11.5(7A) was obviously inserted to ensure that in this respect the Common Law would not apply. If, however, there is an element to which strict liability applies, that is where there is no fault element but the defence of mistake of fact is applicable, see s 6.1, the Common Law would apply and the Crown would have to prove knowledge of that fact by a conspirator. 85 Generally speaking the issue that is raised in respect of conspiracy to commit an offence to which recklessness applies is one of proof of the guilty knowledge of the conspirator rather than the validity of the charge. A charge is not bad at common law on its face just because it alleges a conspiracy to commit a strict or absolute liability offence or an offence that could be committed recklessly. It would be rare for the statement of the offence to show on its face that the allegation was one that relied upon the accused's being reckless as to a fact that was an element of the offence to which the conspiracy related. It should become apparent if particulars were required to be given indicating how it was alleged by the prosecution that the accused had agreed to commit the offence that is the subject of the conspiracy. Unless the prosecution was alleging that the accused had sufficient knowledge of the facts making the conduct agreed upon a criminal offence, it could not succeed on the charge of conspiracy. 86 If at the end of the Crown case there was evidence proving the requisite knowledge then the trial judge would be required to direct the jury that, before they could convict the accused of the conspiracy alleged, they must find beyond reasonable doubt that he had the knowledge of facts that made the intended conduct an offence and hence the conspiracy a criminal one. 87 In my opinion the conspiracy alleged in each of the charges was not bad at law. There is nothing in the Code that indicates that a person cannot conspire to commit an offence of which the mental element is recklessness and there is no reason otherwise to impose such a restriction on the offence. There are two reasons for reaching that conclusion. Firstly the agreement entered into may be that another person will carry out the conduct. Provided that the conspirators know of all the facts that would make the conduct of the third party criminal, it would not matter that the person carrying out the conduct was committing an offence by acting recklessly. 88 Secondly recklessness under the Code can be proved by both intention and knowledge. Section 5.4(4) provides: (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. Therefore, if the conspirators intended that they would carry out the conduct knowing all the facts that made that conduct criminal it would not matter that the offence arising from that conduct was one for which the fault element was recklessness. 89 It is the second reason that applies in the present case. Provided that the Crown was intending to prove as against the appellants that they knew that there was a risk that the money they dealt with would become an instrument of crime, that is that they knew of all the facts that made their dealing with the money criminal conduct, there was no impediment to the prosecution proving the offences charged. The trial 90 It will be recalled that the Crown alleged that there were at least four persons involved in the conspiracy; Z, Abdul Jaleel Mohamed Ansari, and the appellants. Z delivered cash to the appellants who, according to the Crown case, had the money deposited in sums of less than $10,000 by Sadiq Habiburahman. 91 In opening the case to the jury the Crown prosecutor explained "structured cash transactions" and then said (my underlining): In each of these conspiracy charges the Crown alleges that the three accused agreed with each other and [Z.] and others to deal with money to the value of one million dollars or more where there was a risk that the money would become an instrument of crime. That's not all that's alleged. But amongst the allegations is, firstly, in late 2003, secondly around mid-2004, [there was] a conspiracy to deal with money to the value of a million dollars or more where there was a risk that the money would become an instrument of crime. It sounds complicated, and I'll endeavour to make it less so. But just on what is the Crown really setting out to prove about this dealing with money of a million dollars or more where there was a risk it would become an instrument of crime. The Crown alleges that the circumstances in particulars in which money of a million dollars or more was in fact delivered to two of the Ansaris, that's Azees and Haja, at a money exchange business in Sussex Street Sydney which they ran called Exchange Point. The circumstances of the delivery of that money objectively are enough that there's more to place (sic) the largest question mark over the transaction that was going on, whatever it was, in terms of what was the intended use of that money. I will be coming in a little more detail to that. But that part of the Crown case importantly involves evidence from [Z.] who presently is in prison in custody in New South Wales in relation to, amongst other things, to that matter. What occurred in the period of about 10 days or so leading up to the middle of October 2003 was that [Z.] handed over to Azees and Haja at the money exchange business, Exchange Point in Sussex Street Sydney, large amounts of cash. The Crown expects he will tell you that his estimation was that it was over two million dollars, somewhere around 2 to 2.2 million dollars. And the circumstances in which he came to Australia, got his hands on the money, met Azees and Haja and handed the money over, alone are enough to establish beyond reasonable doubt that, however it would come about, there was a risk that that money once in the hands of Azees and Haja would become an instrument of crime . The evidence is somewhat more specific on the Crown case about what did happen to some or all of that money. [Z.] came to Sydney from Israel for a short period of time in October 2003. Got cash money, handed it over to Azees and Haja, and flew out of Australia on 14 October 2003 going back to Israel via Hong Kong. The Crown says that the next day, 15 October 2003, in effect Azees and Haja commenced a series of structured cash deposits at various branches of various banks in Sydney and these went on for a period of months. In order to physically get the parcels of cash, which were the subject of the structured deposits into the bank branches they used a friend, Sadiq Habiburahman, who is not on trial, to go to the bank with bank deposit slips with account names and numbers on them, and amounts written on them all under $10,000 corresponding to parcels of cash which were put into the bank accounts. Now the Crown says that on the part of Azees and Haja those structured cash deposits meant that the cash they had got from whatever source it came from, but inferentially at least in part from [Z.]. But from whatever source Azees and Haja got cash, if they used it, and on the Crown allegation they did in structured cash deposits, they did so making the use unlawful. That is contrary to the legislation about the Austrack reporting obligation. So that when they received cash from [Z.], by way of illustration, and when the day after [Z.] left Australia, cash was used for many structured deposits, there is a connection between the two events that will ultimately enable you members of the jury to conclude beyond reasonable doubt that, when they got that cash off [Z.] there was a risk that it would become an instrument of crime, because it was going to be used in the way that it was used, that is for structured cash deposits. It comes down to this. You receive money, approximate to your receipt you do something with it, that's unlawful use of the money. The question is on that scenario when you receive the money knowing what you're going to do with it, if you're going to do something unlawful with it, then, when you receive it, there is a risk that it will become an instrument of crime. Now that's in very brief compass, that aspect of each of the conspiracy charges and I put it very briefly in the context of the first charge, because [Z.] on the Crown case came to and gave Azees and Haja two million dollars plus. Then immediately after he left considerable structuring of cash occurred out of the Exchange Point business from Azees and Haja through the assistance that they arranged of Mr Sadiq Habiburahman putting the cash in the bank accounts. Now the Crown says that in addition to having received the money in the circumstances in which they received it, so far as concerns Azees and Haja, there was a risk that it would become an instrument of crime. In addition to that the Crown says that they were reckless as to the fact that there was such a risk. That is they were reckless as to fact that the money would become an instrument of crime. The Crown will be relying upon in respect of the first conspiracy, the same body of evidence which includes evidence of substantial structuring, in relevant terms contemporaneous, whether the receipt of that two million dollars or so cash from [Z.] in October 2003. Now you may be asking yourselves, well if the Crown has evidence that it says Azees and Haja did with money that [Z.] gave them, why beat about the bush with the charge that talks about a risk and a charge of talks about being reckless, and the Crown seems to be saying well Azees and Haja got the money knowing full well what was going to happen to it and that's what they did with it. That's in part to the extent that its of any relevan[ce] related to the position of the third gentleman on trial before you Jaleel Ansari. At the relevant time we are talking in 2003 to 2004, Azees and Haja lived and worked in Sydney. They had each been in Sydney for some years, had been running the Exchange Point money exchange business in Sussex Street Sydney for some years. But Mr Jaleel Ansari was not living in Sydney. Was not working here. Had no money exchange business here and never has had on the evidence the money exchange business in Sydney. Mr Jaleel Ansari in this period and some years beforehand had been living in France, and although the specific place in the scheme of things may not be crucial, the Crown evidence will we expect establish that he was living and working in Paris. I won't say Paris France as our American cousins sometimes do, because you know the one I mean. But there were some communications relevant to the first charge of conspiracy between Jaleel Ansari and his two brothers and the period of the first conspiracy which the Crown proposes to call evidence of and put before you in due course. The Crown says that these communications will establish knowledge and participation by Mr Jaleel Ansari in the first conspiracy. But because he was not living and working here at the time, the Crown is unable to allege against him that he necessarily had all of the knowledge of Azees and Haja in relation to cash money transactions in Australia. 92 It is clear from the portions of the prosecutor's address underlined above, that the Crown allegation in relation to the appellants did not rely upon their being reckless to the risk of the money becoming an instrument of crime. Rather it was the fact that they received the money intending to launder it by deposits of less than $10,000 that the Crown said created the risk. The charge was in terms of recklessness because the Crown saw a difficulty in proving that Jaleel Ansari had the knowledge or intention that the money would be the subject of structured cash transactions. 93 The Court does not have the addresses of counsel in the appeal books. But it is clear from a number of issues that were raised, especially at the conclusion of the Crown case, that the Crown was maintaining in relation to the appellants that it would prove that they were reckless as to the risk of the money being an instrument of crime because the appellants intended that it would be used as an instrument of crime. The Crown was alleging that they had knowledge that the money with which they dealt, in the first count, or with which they were to deal, in the second count, was at risk of being used as an instrument of crime because they knew it was money that would be used in the commission of crime or to facilitate crime. 94 At the conclusion of the Crown case a submission was made that the trial judge should dismiss the charge under s 11.5(6) of the Code. The submission was that it was in the interests of justice to do so because the trial was rendered unfair by the manner in which the Crown was attempting to prove the charges. The Judge dismissed the application. In the course of giving reasons he considered the extent to which the Crown could prove that, when receiving the money, the appellants were aware that there was a risk that it could be an instrument of crime. It is clear from his judgment that the Crown was asserting that the risk that the money would become an instrument of crime arose when the money came into the possession of the appellants. They were creating the risk and, therefore, they must have known of the risk because of their intention to deal with the money unlawfully. In effect the Crown was submitting that the money was at risk of being an instrument of crime because the appellants intended to commit a "structuring offence" in relation to it, as the Crown had opened, or because they knew that it would be used to evade taxation and hence they were committing an offence by dealing with the money for that purpose. The summing up 95 The Judge gave the jury extensive written directions detailing the elements of the offences in both counts on the indictment. In relation to "instrument of crime" the written directions included the following: "The law says that money may also be an "instrument of crime" if used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence. In this case, the allegation is that the money was received from [Z] by the accused and that there was a risk that the money could be used in the commission of, or used to facilitate the commission of, either: (a) an indictable offence of deliberately avoiding the reporting provisions relating to cash transactions (sometimes referred to in a shorthand fashion as a "structuring" offence), or, (b) an indictable offence of deliberately evading Australian taxation laws." 96 In relation to "reckless", the written directions included the following (my underlining): "Here the Crown has to prove that the accused was reckless as to the fact that the money received from [Z.] would become an "instrument of crime". The focus here is on the accused's awareness - his conscious realisation of a risk. To prove recklessness, the Crown must prove that the accused was aware of a substantial risk that the money would become an "instrument of crime" in either of the two ways I have described, and , that having regard to the circumstances known to the accused, it was unjustifiable to take that risk. As a matter of law, it would be sufficient proof of such "recklessness" if the accused actually intended to run the risk or knew of the risk. This is what the Crown alleges here. 97 The summing up was in accordance with the written directions but of course amplified them. In relation to what was referred to as "element 7", being "where they were reckless as the fact that there was a risk that the money would become an instrument of crime" the summing up included the following (my underlining): "Now in the present case, I repeat, to prove recklessness the Crown must prove that the accused was aware of a substantial risk that the money would become an instrument of crime in either of the two ways I have described. As well, it has to prove that having regard to the circumstances known to the accused it was unjustifiable to take the risk. In the present case the accused have said that it has not been proved that the money was in fact given to them at Exchange Point but even if it was the Crown had not proved that they were actually aware of the risk. As a matter of law it would be sufficient proof of such recklessness if the accused actually intended to run the risk or knew of the risk and intended to run it. This is what the Crown alleges here. The Crown says that the accused well knew that the money when they received it was at risk of being used in a structuring offence or deliberately to evade Australian taxation laws. The defence says that you would not accept that that awareness was proved. 98 In relation to the term "unjustifiable risk" the Judge directed the jury: As I have said, the Crown must prove that the alleged risk taking occurred and that it was, having regard to the circumstances known to the accused, "unjustifiable". The Crown case has been presented on the basis that the conduct of the accused was at all times deliberate and conscious, undertaking the full knowledge that what they were doing was secretive and in breach of the laws of the kind set out in this indictment. A little later the Judge stated: "Recklessness as to risk" is a key issue in this case. In the conduct of this trial much attention has been directed to whether the accused was in October 2003 and again in June 2004 conscious of a risk that the money would be used in a structuring type offence. The Crown asked you to infer, mainly from their long experience in the money-exchange business and from the various letters and communications with Austrac that the accused well and truly understood at all relevant times that all deposits of cash over $10,000 had to be reported to Austrac - and the next part is important - and correspondingly that it was criminally prohibited to artificially divide up large sums of cash into amounts less than $10,000 with a view to escaping the reporting requirements. It is the latter part which is particularly in dispute in this case. Determination of appeal against conviction 99 I am of the opinion that, notwithstanding that the conspiracy alleged was to commit an offence of which an element was recklessness, it does not follow that the charge was bad or unknown to law. There is nothing at Common Law or under the Code that prevents the Crown from alleging a conspiracy to commit an offence that might be committed recklessly. The question is whether the Crown allegation is that the accused entered into an agreement intending to commit an unlawful act of the type proscribed. In the words of Viscount Dilhorne the question is, "What did they agree to do?" 100 The Crown was alleging that the appellants agreed to deal with money received or to be received from Z knowing that it was to be used as an instrument of crime, either because it was to be laundered by a "structuring" offence or to evade taxation. The charges were couched in terms of recklessness because the Crown was concerned that it could not prove the requisite knowledge or intention on the part of the appellants' brother. But the Crown case was left to the jury on the same basis for each of the accused with the Crown undertaking to prove more than mere recklessness. 101 The Crown case was placed before the jury on the basis that the appellants knew of each of the facts that made their dealing with the money from Z, or their intended dealing in the second count, to be a crime coming within the scope of s 11.5(1). They intentionally agreed that the crime alleged would be committed for the purposes of s 11.5(2)(b). They agreed to commit an offence under s 400.3(2). It may also be the case that, on the facts that they knew and having regard to their intention in dealing with the money, they agreed to commit acts that amounted to a more serious offence under s 400.3(1). But that fact cannot affect their liability for the offence with which they were charged. It does not matter what offence they thought they were committing or might have been committing, it is enough that they agreed to commit certain acts with a certain state of mind and a knowledge of the existence of facts that amounted to a conspiracy to commit the offence charged. 102 In my opinion the appeal against conviction should be dismissed. The Crown Appeal Background 103 By reason of s 11.5(1) of the Code the appellants were liable to punishment as if the offence to which the conspiracy related had been committed. The penalty for an offence contrary to s 400.3(2) of the Code is relevantly imprisonment for 12 years. 104 As has already been noted, the appellants were sentenced on each count to imprisonment for 4 years. The sentence for the first count commenced on 18 August 2006 and that for the second count on 18 February 2007. As against the total head sentence of 4 years and 6 months there is an overall non-parole period of 2 years and 9 months to expire on 17 May 2009, the date upon which the appellants are eligible to be released to parole. 105 The appellants were sentenced on 10 November 2006 and the Crown appealed by notice dated 6 December 2006. 106 Judge Graham sentenced the co-offender Z for his part in the second conspiracy of which the appellants were convicted. He had pleaded guilty in the Local Court to a substantive offence contrary to s 400.3(2) ("the money laundering offence"). He also offered assistance to the authorities including giving evidence against the appellants. He was sentenced to a fixed term of 2 years. That sentence was to be served concurrently with a sentence for an offence of having in his possession a prohibited import being not less than a commercial quantity of MDMA ("the drug offence"). For that offence he was sentenced to imprisonment for 5 years 2 months with an overall non-parole period of 2 years 7 months. The sentences dated from 28 June 2004 and Z was eligible for release to parole on 27 January 2007. 107 The Crown appealed against the alleged inadequacy of those sentences. By majority this Court allowed the Crown appeal: see R v Z [2006] NSWCCA 342. In the exercise of its discretion the Court did not interfere with the sentence for the money laundering offence but increased the sentence for the drug offence to imprisonment for 8 years to commence on 28 June 2005 with a non-parole period of 4 years. As a result Z is eligible to be released to parole on 27 June 2009. The facts for sentence 108 When sentencing the appellants, the Judge found that Z was a courier "for a very substantial drug dealing organisation which sold drugs into Australia from Europe" and that as a result large sums of money were acquired in Australia that were couriered to places such as Exchange Point for the purpose of having the money laundered. The Judge stated: "There was no evidence that these offenders, the Ansari brothers, Haja and Azees, knew that Z was involved in drug dealing or that the cash money he moved from Bondi to Exchange Point was a result of drug dealing, nor is there any evidence that they were aware of any other aspect of that operation……….. I deduce that the purpose of using Z. for this exercise was in order to keep apart the various human components of the drug business, thus better to protect the controllers of the business from somebody knowing too much about it. This, I deduce, is the reason why - quite deliberately - these offenders were not caught "in the loop", so to speak, about the drug dealing business." 109 The Judge stated that he was not sure precisely how much money was involved in the amount transmitted by Z to the appellants but concluded that it was "cash money to the value of somewhat more than one million dollars". The Judge found that the appellants were receiving cash money from other sources in order to avoid paying Australian tax. He held that part of the scheme conducted by the appellants was that they arranged for an associate to make multiple deposits into various bank accounts of less than $10,000 in order to avoid the reporting provisions of the Financial Transactions Reports Act. The Judge noted that Z had left Sydney two days before the deposits had commenced. 110 The sentencing judge stated that Z had returned in June 2004 in order to carry out a similar transaction as had occurred the year before. However Z became involved in receiving drugs that had been imported and was arrested on the 28th June 2004. The appellants were arrested the next day. The Judge stated: "The Crown case was conducted on the basis that count 1 on the indictment was a conspiracy relating to the actual delivery of cash by Z in early October 2003 and that count 2 related to the abortive conspiracy of mid-2004. Each charge is a conspiracy, and therefore it is irrelevant legally in the second matter that the substantive offence was not consummated; it was nipped in the bud by police work." 111 The Judge then turned to the provisions of s 16A of the Crimes Act (Cth) and noted the applicable maximum penalty. He also observed the "necessity to impose a penalty which will provide a component of general deterrence". His Honour then stated (my underlining): "This "money laundering" legislation is recent. It reflects a concern on the part of Parliament and therefore the community that this conduct should be stamped out. The particular offence charged provides a maximum penalty of twelve years but I note that the most serious of the money laundering offences attracts twenty-five years. This does not fall into that category. It involves a component mental culpability of recklessness, combined of course with a component of conspiracy ." 112 It should be noted that so far as the underlined portion of this quote is concerned it was irrelevant that the offences before his Honour did not fall into the worst category of an offence of money laundering which carried a greater maximum penalty. It was hardly a matter of mitigation that the appellants had not committed a more serious offence. It was necessary for the Judge to consider the seriousness of the offences with which he was concerned, that is offences that had as their mental element recklessness and, therefore, carried a lesser maximum penalty than if the Crown had charged the appellants with conspiring to commit an offence for which the mental element was intention. 113 As to the role played by the appellants, the Judge stated; "Both offenders were principals in each conspiracy and, in my view, equally culpable. It has been submitted for Haja Ansari that he is the younger brother and therefore the more likely to be led or influenced, but, for present purposes, I do not accept this. Both played important roles, both worked almost full time in the shop, both were active and their substantial involvement in the facts of this case was on the whole much the same although, obviously, one did one thing and one did another. Relevantly, their personal circumstances are much the same as well." 114 The Judge referred to that part of his summing up where he had directed the jury as to the circumstances in which they could find that the money dealt with by the appellants might become an "instrument of crime" and in particular that it could facilitate a structuring offence or tax evasion. The Judge then held: "…….. I am satisfied beyond reasonable doubt of the three following things: 1) That the offenders had the requisite state of mind in relation to a structuring offence or offences to the extent of more than $1 million, that being money being delivered by "Z."; 2) That the offenders had the requisite state of mind in relation to criminality evading Australian taxation laws to the extent of more than $1 million, that being money delivered by the man "Z.". The third matter about which I am satisfied follows from a conclusion that these two things overlap. And similarly satisfied that each of the offenders had the requisite state of mind as described in 1) and 2), which I just mentioned, at the same time in relation to the same money being money delivered by the man "Z."; that is, each was relevantly reckless as to the structuring offences being committed and relevantly reckless as to the avoidance of taxation. Further, to clarify it, the conspiracy in each case related to that recklessness…………." The respondents' subjective circumstances 115 The respondent Haja was born on 12 May 1967 so that he was 39 at the date of sentencing. He had no prior convictions. He was born in India and migrated to Singapore before coming to Australia. His father was a successful businessman. On arrival in Australia the respondent gained employment in a semi-skilled factory position and then as a chef. In 1999 he and his brother opened their own financial company dealing in foreign exchange. The respondent has been married for four years. There was little in the pre-sentence report or the psychological report tendered on his behalf relevant to sentencing. 116 The respondent Azees was born on 24 July 1963 making him 43 years at the date of sentence. He was born in India, leaving at the age of 18 when he moved to Singapore with his family. He is the eldest in the family and has been married for seven years with two children aged six and two. In 1994 he gained employment in the foreign exchange business with a local finance company and opened a business with his brother in 1999. There was nothing in the presentence report or psychological report tendered in his case of significant relevance to his sentencing. Both he and his brother continued to deny having done anything wrong. 117 There were a number of certificates and testimonials placed before the sentencing judge referrable to each of the appellants. The legislation 118 Division 400 of Part 10.2 of the Code is entitled "Money laundering". For the purposes of the Division the term "instrument of crime" is defined in this way; "money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence)". There is also a definition of "proceeds of crime" being "any money or other property that is derived or realised, directly or indirectly, by any person from the commission of an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence)". There is a wide meaning given to the term "dealing with money or other property" in s 400.2. It includes receiving or disposing of the money, importing it into or exporting it out of Australia and engaging "in a banking transaction relating to money or other property". 119 The offences within the Division, therefore, apply to a large range of activity in relation to money or other property to be used in connection with, or arising from, serious crime. Not only is there a very wide ambit in relation to the conduct caught by the offences but there is also a substantial range of criminal activity to which the money or property could relate, being limited in effect to an indictable offence of the Commonwealth or a State or Territory. The offences are not concerned only with the source of the money or property that is dealt with but also its ultimate use. The offences cover money obtained illegally or to be used for illegal purposes or dealt with in a manner that is illegal. 120 With offences that are so wide ranging in their scope it becomes somewhat difficult to imagine an offence falling within the worst category of its kind against which any particular offence can be measured. It might be thought that dealing with money that is to be used for the purposes of terrorism might be within the class of the most serious offences encompassed by the sections in the Division. But it is perhaps not so difficult to conceive of offences that will form the bulk of conduct falling within the scope of the Division that would come before the criminal courts. The most obvious will relate to money obtained as a result of drug activity and that is being dealt with in order to make it more difficult to track or identify as the proceeds of a particular crime. It may also be money that has been legitimately earned but is to be dealt with in such a way as to disguise its source in order, for example, to defraud the taxation office. 121 But frequently it will be impossible for the authorities to identify the origins of the funds or what is ultimately to be the use made of them, yet it can be shown that the manner of dealing with them was a breach of the law, such as to avoid the mandatory reporting conditions under the Financial Transactions Reporting Act. It may be the case that the persons dealing with the money do not know its source or ultimate destination and do not care provided they are being paid for rendering a service. 122 The legislation itself has attempted to structure offences to give some guidance as to the seriousness of the conduct by reference to the applicable maximum penalty for each offence. The scheme is that the greater the sum of money involved, the more serious the offence. But the legislation also takes into account the mental state of the offender, so that an offence involving the intentional dealing with proceeds of crime or instruments of crime is more serious than one where the state of mind is recklessness as to the criminal nature of the property. Therefore s 400.3(1), where the amount involved is more than a million dollars and where the offender believes that the property is the proceeds of crime or intends that it will become an instrument of crime, provides for the most serious of the money laundering offences carrying a maximum penalty of imprisonment for 25 years and/or 1500 penalty units. 123 It is likely that an offender before the court for sentencing for an offence within the Division will be a person facilitating the laundering of the money or actually involved in that process, rather than the owner of the money or the beneficiary of the laundering. The prosecution may not be able to show that the offender knew of the source of the money or its ultimate destination. In Assafiri v R [2007] NSWCCA 159 an analogy was drawn between money laundering offences and drug importations in that both types of offences usually reveal a hierarchy of persons involved in the conduct who have different roles to play and different gains to be made from the commission of the crime. The most important consideration in sentencing an offender for an offence under this Division will be to consider what the offender did, because there may be little or no evidence before the court as to the organisation behind the offence, the source of the funds or the ultimate use to made of them: see R v Olbrich (1999) 199 CLR 270 at [19]. 124 However according to normal sentencing principles, if the Crown wants to submit that the particular offence is aggravated by a circumstance that makes it more serious than objectively it would appear to be from the bare conduct of the offender, for example because the money with which the offender dealt was known by him to be intended to support terrorism, then the Crown should prove that fact beyond reasonable doubt. On the other hand, if the offender seeks to mitigate the seriousness of the apparent conduct by some fact, for example that the offender believed the funds were to be used for a humanitarian purpose, then it would fall to the offender to prove that fact on the balance of probabilities. Where however the accused denies the offence or there is no evidence as to his state of knowledge of the source of the funds, the purpose of dealing with the funds or their ultimate destination, the Court must simply deal with the matter on the objective facts as proved by the evidence. That was the case here. The Judge was not required to find facts that were most favourable to the appellants. The Crown submissions 125 The Crown noted the exceptional nature of Crown appeals and the principles upon which this Court determines such an appeal including its wide discretion whether to intervene and to what degree. The Crown in its written submissions set out the well known passage from R v Wall [2002] NSWCCA 42 at [70] where Wood CJ at CL summarised the relevant principles. It is unnecessary to set them out yet again. 126 The Crown submitted that the sentences were manifestly inadequate and created "an inconsistency in sentencing standards, to the extent that this Court should intervene in order to maintain adequate standards of punishment for offences of this nature". In particular the Crown complained that the sentences: (a) fail adequately to reflect the criminality of the offending, that is, the nature of the offending and the absence of contrition on the part of the respondents; (b) fail properly to take into account the decision of the Court in R v Z resulting in "unjustifiable disparity" between the sentence of Z and that imposed on the respondents; and (c) fail adequately to reflect the element of general deterrence and the legislative intent of Parliament recognizing the seriousness of such offences. 127 In respect of (a) above the Crown complained of the passage to which I have already made reference where the sentencing judge observed that the appellants had not been charged with the most serious offence. In effect the Crown argued, relying on the passage from the remarks that I have already referred to and underlined, that the Judge erred by mitigating the seriousness of the offence by taking into account that the appellants' culpability was reduced because they were merely reckless. However, recklessness was the designated fault element of the offence that the appellants had agreed to commit. 128 In respect of (b) the Crown submitted that the Judge was too dismissive of the relevance of the sentence imposed upon Z because of his comment that "the man Z was sentenced largely for his involvement with drugs, a circumstance in contrast with that of the present offenders". The Crown contended that the sentence imposed upon the appellants had resulted in an unjustified disparity with the sentence imposed upon Z. 129 In respect of (c) the Crown submitted that, notwithstanding remarks made by the Judge noting the importance of general deterrence, the sentences imposed did not reflect that element sufficiently or at all. Determination 130 In my opinion the sentences separately and in combination are manifestly inadequate to a very significant degree. As against a maximum penalty of 12 years imprisonment and having regard to the nature of the appellants' criminality, the sentences do not properly reflect the objective seriousness of the offences. 131 I have noted the Judge's error in apparently mitigating the appellants' culpability on the basis that their offences were not in the worst category of offending of its type and that they were only reckless as to the unlawful use to be made of the money with which they dealt or intended to deal. Although the Crown actually proved that the appellants knew that the money was at risk of becoming an instrument of crime because the appellants intended to deal with it unlawfully, they could only be sentenced on the basis of recklessness otherwise there would have been a breach of the principle in De Simoni as intention and knowledge were elements of the more serious offence under s 400.3(1). But the Judge had to assess the criminality of the conduct of the appellants having regard to the offence with which they were charged and in my opinion that criminality was very high. 132 The Judge with respect correctly identified the appellants as principals in the scheme to launder the money they received, or were to receive, from Z. They were at the very heart of the conspiracies alleged. But more than that they were intelligent professionals who were engaged in an apparently legitimate finance business used as a cover for dealing with money reckless as to unlawful use to which it might be put, and no doubt relying upon their expertise and business connections to commit their offences. Regardless of what they knew about the source of the money or its ultimate destination, their conduct involved a substantial degree of criminality within the scope of the section. It was obvious that the offences were committed by the appellants for profit and apparently motivated by greed. 133 The first offence was a conspiracy that was put into effect and accomplished its purpose. The conspiracy contemplated probably more than 100 offences contrary to s 31 of the Financial Transactions Reporting Act even if only a million dollars was involved. Each offence under that Act carried a maximum penalty of imprisonment for 5 years. Even if the criminality was aimed in some way at evading taxation, their criminality was more than would be involved in a single offence of tax evasion and, as the Judge noted, some of the offences of tax evasion carried a higher penalty than the offence with which the appellants were charged. A court is entitled to take into account the actual conduct committed under the conspiracy and is not limited merely to a consideration of the agreement entered into: Savvas v The Queen (1995) 183 CLR 1. 134 The second conspiracy did not achieve its purposes but only because of police intervention. But, contrary to the view apparently adopted by the Judge, that fact afforded little mitigation of the seriousness of the appellants' criminality as the gravamen of the offence is the nature of the conduct that the parties have agreed to carry out: R v Warby (1982) 9 A Crim R 349. This is especially so in this case considering that the appellants knew the amount of money that the conspiracy involved, having been told by Z that it was "2 or 3" millions of dollars. Further there is a difference between a situation where the offender has withdrawn from the conspiracy and one where his participation has been frustrated by events beyond his control. 135 In relation to the structure of the sentences to be imposed for the two offences, the Judge said: "There are two separate conspiracies, separated in time by a number of months, and it would be inappropriate to sentence concurrently. I will accumulate part of the sentence for the second matter after the lapse of six months of the first sentence. Otherwise, I set the head sentence for each count at the same level. I do so even though the second offence was not substantially consummated, a fact which might ordinarily give rise to a lesser penalty for that. However in the present case that mitigatory fact is negated, as I said, by the consideration that the events giving rise to the first count occurred at a point when each offender was a person of prior good character. The evidence in this trial has revealed that at the time of the second offence, no such claim to prior good character is effective." 136 As I have already noted, there was little mitigation in the circumstances of this case in the fact that the second offence was not consummated. Further, although the appellants had good character at the time of the first offence, that fact was of little significance. No doubt it was because the appellants were of good character that they were able to carry out the financial business that provided the opportunity to commit the offences for which they were being sentenced. 137 In my opinion as against a maximum penalty of imprisonment for 12 years a sentence of 4 years for each offence failed to a very significant degree to reflect the objective seriousness of the criminal activity in which the appellants were involved. The increase in the overall sentence of six months to reflect the additional criminality of the second offence, which, although related through the involvement of Z, was a completely separate act of serious offending, was also manifestly inadequate. 138 The Judge in my opinion gave insufficient weight to the sentence imposed upon Z. He paid scant regard to what this Court had said about the appropriate sentence to be imposed upon him because of his view of the significance of Z's involvement with drugs. Yet Z was charged with only one offence relating to money laundering and was merely to be the courier of the money to the appellants' business. He was to have had no other role in the second conspiracy for which the appellants were to be sentenced. He was not charged in respect of the first conspiracy. Further he pleaded guilty and gave assistance earning him a considerable discount of the otherwise appropriate sentence. In addition his culpability was mitigated by his mental disorder and the fact that he was to serve his sentence in harsh conditions by reason of his former service in the Israeli army. 139 This Court described the role of Z as being "pivotal" and "a well trusted intermediary", yet he was obviously less culpable than the appellants who were, as I have said, at the very heart of the conspiracy. It was they who were to actually deal with the money in a way that was going to "wash" it in order to conceal its identity, its source and its ultimate destination. It might be the case, as the Judge noted, that knowledge that the money or property being dealt with was the proceeds of drug trafficking would be an aggravating factor. Yet it could not in my opinion be accorded such significance in the sentencing of Z so as to override a consideration of what he was to do as part of the conspiracy. Contrary to the view expressed by the Judge, a knowledge of the source of the funds as the proceeds of drug trafficking cannot alone justify a sentence at the top of the scale regardless of the actual conduct of the offender. 140 In any event the lack of knowledge on the part of the appellants as to the source of the funds cannot be given too much weight. There is no suggestion that they inquired as to the origins of the money they received, or were to receive, from Z and were misled as to the true position. They did not inquire about the source of the money because either they did not care or they did not wish to know. 141 The notional starting sentence for Z determined by Judge Graham was five years before discount for the plea and assistance. This was held by this Court to be inadequate to reflect his criminality notwithstanding any mitigation as a result of his psychiatric condition: see [2006] NSWCCA 342 at [33] per Beazley JA, with whom I agreed. The majority of the Court thought that the notional head sentence for Z should have been 7 years before the application of discounts. 142 A consideration of the sentence imposed upon Z, and more particularly the notional starting sentence, for the purpose of this appeal is not undertaken in order to achieve parity between the appellants and Z. That is not the purpose of a Crown appeal. But a sentence imposed upon a co-offender can reveal that a miscarriage of the sentencing discretion must have occurred in respect of a respondent to a Crown appeal. In this case, however, there was in my opinion a clear error in the Judge failing to have sufficient regard to what this Court said in relation to the sentence of Z by dismissing its relevance because of Z's knowledge of the source of the funds. This was a failure by the Judge to understand the seriousness with which this Court considered the conduct in which Z and the appellants were involved and the guidance it provided as to the appropriate sentence to be imposed upon the appellants who, in my opinion, were clearly more culpable than Z. 143 It was argued on behalf of the appellants that the Judge was more able to determine the criminality of Z as compared with the appellants than was Judge Graham, who sentenced Z. It was argued that Judge Woods had a better opportunity to observe Z when he gave evidence in the trial than did Judge Graham, because Z had pleaded guilty before him. With respect that argument is completely misconceived. The jury must have believed Z in order to convict the appellants. Judge Woods made no assessment of the criminality of Z as compared with the appellants, yet determined that the appellants were the principals. On any view Z could not have been described as a principal and was not so described by this Court or by Judge Graham or by Judge Woods. 144 The appellant relied upon other sentences imposed upon persons charged with substantive offences under s 400.3. One was a sentence imposed in the District Court for the more serious offence under s 400.3(1) involving $3 million. There, after a discount for a plea and assistance, a sentence of 3 years with a non-parole period of 1 year 9 months was imposed. On its face that sentence appears manifestly inadequate. 145 But it is not necessary to consider other sentences imposed in the District Court. This Court authoritatively set the benchmark for the sentence for the appellants by determining the appropriate sentence for Z. This Court is to be consistent with its own judgments rather than those of District Court judges that appear on their face to be conflicting with this Court's assessment of the seriousness of such conduct and the appropriate penalty to be imposed. 146 It is unnecessary to consider the third complaint made by the Crown because I have already determined that the sentences imposed upon the appellants were manifestly inadequate as a result of errors made by the Judge. But it must be said that, having regard to the conduct of the appellants, the sentences imposed do not appear to reflect what the Judge said about the policy behind the provisions and the importance of general deterrence. 147 In my opinion, notwithstanding the discretion residing in the sentencing judge and the respect that is to be paid to its exercise, the sentences imposed upon the appellants were so unreasonable that this Court must consider intervening. This being a Crown appeal, the principle of double jeopardy is to be considered. But in my opinion the sentences are so inadequate that this Court should resentence the appellants. However, the sentences imposed should be less than ought to have been imposed by the trial judge. 148 In my opinion it is appropriate, because this is a Crown appeal, to impose upon the appellants the same sentence as this Court concluded should have been the notional starting point in the case of Z notwithstanding his lesser criminality. That is a sentence of 7 years for each offence even though a sentence of at least 9 years would have been appropriate at first instance. There should be an accumulation between the two sentences of two years to mark the total criminality involved in the two offences given that they were related by reason of the involvement of Z in each. There should be an overall non-parole period of 60 per cent of the head sentence. 149 Therefore I propose the following orders: 1. The appeal against conviction is dismissed. 2. The Crown appeal is allowed in respect of both appellants and the sentences imposed in the District Court quashed 3. In lieu each of the appellants is sentenced as follows: (a) Count 1: imprisonment for 7 years to date from 18 August 2006 and to expire on 17 August 2013. (b) Count 2: imprisonment for 7 years to date from 18 August 2008 and to expire on 17 August 2015. (c) There is to be a non-parole period of 5 years 5 months to date from 18 August 2006 and to expire on 17 January 2012, the date upon which the appellants are eligible to be released to parole. 150 HISLOP J: I agree with Howie J. ********** 15/08/2007 - Edit error - Paragraph(s) 96 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.