Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nguyen v R [2012] NSWCCA 152 Hearing dates: 10 July 2012 Decision date: 18 July 2012 Before: HOEBEN JA; at [1] LATHAM J; at [63] GARLING J; at [64] Decision: Leave to appeal is granted. The appeal is dismissed. Catchwords: CRIMINAL LAW - sentence appeal - offence contrary to s 400.3(2) Criminal Code Act 1995 (Cth) of dealing with $1 million or more, being reckless as to the risk that the money will become an instrument of crime - whether sentence manifestly excessive - $9.9 million dealt with in 23 days - assessment of objective seriousness of offence - extent to which suspicion as to source of funds relevant - relevance of covert features of offence - use of strong subjective case - use of statistics. Legislation Cited: Criminal Code Act 1995 (Cth) - s 400.3(2) Cases Cited: A Ansari v R, H Ansari v R [2007] NSWCCA 204; 70 NSWLR 89 House v King [1936] HCA 40; 55 CLR 499 R v Van Loi Nguyen [2010] NSWCCA 226; 204 A Crim R 246 Regina v Narongchai Saengsai-Or [2004] NSWCCA 108; 147 A Crim R 172 Category: Principal judgment Parties: Thi Thom Dao Nguyen - Applicant Commonwealth - Respondent Crown Representation: Counsel: Mr P Boulten - Applicant Mr CB Craigie SC/Mr S Buchen - Respondent Crown Solicitors: Ly Lawyers - Applicant Commonwealth Director of Public Prosecutions - Respondent Crown File Number(s): 2010/67373 Decision under appeal Date of Decision: 2011-03-04 00:00:00 Before: King SC DCJ File Number(s): 2010/67373 JUDGMEnt 1HOEBEN JA: Offence and sentence On 11 August 2010 the applicant pleaded guilty in the Local Court to an offence contrary to s 400.3(2) of the Criminal Code Act 1995 (Cth) of dealing with $1 million or more, being reckless to the risk that the money will become an instrument of crime. The applicant was committed for sentence in the District Court. The maximum penalty for the offence is 12 years imprisonment and/or a fine not exceeding $79,200. 2On 4 March 2011 his Honour Judge King SC sentenced the applicant to a total term of imprisonment of 7 years with a non-parole period of 4 years and 6 months. The sentence was backdated to commence on 16 March 2010, to take account of pre-sentence custody that was solely referable to the subject offence. The applicant's non-parole period expires on 15 September 2014. 3The applicant seeks leave to appeal against this sentence upon a single ground of appeal - that the sentence was manifestly excessive. The applicant originally argued that five aspects of the sentencing remarks involved discrete error. At the hearing of this matter, the applicant advised that she no longer relied upon paragraph (c). 4The four remaining areas of alleged error were as follows: The sentencing judge (a) erred in relation to the assessment of the objective seriousness of the offence. (b) erred in relation to taking into account any suspicion as to the source of the funds and the attendant risk the money would be used as an instrument of crime. (d) erred in relation to the assessment of the covert nature of the offence in the context of her other legitimate dealings. (e) erred in failing to have proper regard to the subjective circumstances of the applicant. These asserted errors were not the subject of individual grounds of appeal, but were relied upon to support the ground of appeal of manifest excess. Background 5The factual basis for the sentence was derived from a lengthy Statement of Facts (126 paragraphs). The applicant accepted the contents of the Statement of Facts without objection. His Honour effectively incorporated the Statement of Facts into his sentencing remarks. They are to be found at pp 1 - 35 of his Remarks on Sentence. 6The Statement of Facts established that the applicant dealt with substantial amounts of cash on six discrete occasions, in the period between 24 February and 16 March 2010 (23 days). The cash amounts dealt with on each of the six occasions were as follows: First transaction - 24 February 2010 - $2,500,000. Second transaction - 27 February 2010 - $1,300,000. Third transaction - 28 February 2010 - $1,800,000. Fourth transaction - 1 March 2010 - $1,800,000. Fifth transaction - 8 March 2010 - $1,400,000. Sixth transaction - 16 March 2010 - $1,100,000. The total amount dealt with by the applicant was $9.9 million. 7The offence in the indictment related to this total course of conduct, notwithstanding that each of the six discrete episodes could have been made the subject of an individual charge under s 400.3(2) of the Criminal Code Act 1995 (Cth). 8On each of the six occasions the applicant dealt primarily with one or both of two individuals, Huong Ly Duong (Ly) and Khac Cuong Duong (Cuong) prior to delivery of the cash. The applicant at times communicated with Ly and Cuong using mobile telephone services subscribed in the names of innocent third parties and changed mobile phones regularly during the relevant period. She communicated in coded language, designed to conceal the large amounts being collected and dealt with. The applicant's role included counting the cash amounts. On each occasion, she then participated in a subsequent dealing or dealings with the cash, which included depositing funds into a nominated bank account, or disposing of the funds to nominated individuals. On at least one occasion, the applicant was required to maintain possession of large amounts of cash until it could be safely disposed of. 9The applicant participated in this conduct while acting as the Sydney representative of a Melbourne based remittance agency. In March 2009 the applicant had entered into an agreement with Xuan Nhuong Nguyen (Xuan) to act as the Sydney based representative for Xuan Nhuong Pty Limited, a Melbourne based provider of alternative remittance services registered with Australian Transaction Reports and Analysis Centre (Austrac). Pursuant to that arrangement, when relevant circumstances arose, she advised other syndicate members to take measures designed to avoid unwanted attention, such as dealing in smaller amounts on multiple occasions or depositing cash in different banks or at different branches. The applicant also participated in a system of "off the book" record keeping, which involved faxed confirmation of orders and disposal of funds on plain paper and the avoidance of receipt book entry keeping. 10The applicant was remunerated through commission payments that were admitted to range from 0.7 percent to 2.7 percent of the amounts dealt with. It was admitted that $40,000 in cash found in the applicant's home during a police search was derived from the applicant's commission from a number of transactions. 11The applicant was arrested on 16 March 2010 and remained in custody until she was sentenced. After her arrest, she participated in a record of interview in which she denied ever having been to Cuong's premises, giving a person named 'Jennifer' any money that day and said that the largest amount she had ever been given was $36,500. On 28 July 2010 and 4 August 2010, subsequent to the bulk of the brief being served, the applicant participated in two records of interview with the AFP. During those interviews, the applicant outlined her involvement in the remitting syndicate and her dealings with Cuong, Ly and Xuan. The applicant further detailed her role as the "representative" of Xuan Nhuong Pty Limited. 12As the "representative" of Xuan Nhuong Pty Limited, the applicant would take possession of quantities of cash which would be transferred to recipients in Australia, Vietnam and other countries. The applicant would then fax confirmation of the order to Xuan Nhuong Pty Limited using a receipt book provided by Xuan, before banking that cash into designated bank accounts or handing possession of that money to other representatives of Xuan Nhuong Pty Limited. The applicant acted as the "representative" of Xuan Nhuong Pty Limited from her home premises in Marrickville, NSW and from the business premises of the VN International Travel Agency, located in Illawarra Road, Marrickville. 13In that record of interview, the applicant stated that she never inquired of Cuong as to the source of the money. She told him Xuan's instructions were that she could not accept anything if she knew that the money involved drugs or was for the purpose of weapons, or anything to do with terrorism. Cuong told her they were old customers of his and not involved in anything like that. 14In this record of interview, the applicant initially stated that Xuan told her those doing business wanted to avoid the Tax Office and they did take them on, but not to take on those dealing with drugs. When asked further questions about this, the applicant recanted this information to an extent and said Xuan never told her this directly. In her record of interview conducted 4 August 2010 the applicant stated that she did not understand how Xuan operated his business. Proceedings before King SC DCJ 15King SC DCJ made the following findings and observations in respect of the objective circumstances of the offence. (a) The offence was a "very serious example of its type". (b) The applicant was an "active participant" in an illegal enterprise who was involved in "aspects of the planning, counting and organising" of money transfers. (c) The applicant was a "trusted member" of the scheme, acting with "some autonomy". (d) The applicant performed "an essential role" in the disposal of the money. (e) The offence reflected a "serious ongoing course of criminal conduct" as distinct from "a one off error of judgment". (f) The applicant engaged in the conduct "for financial reward" that was "substantial". (g) The applicant's participation in the offence was "motivated by greed". (h) Over a period of 23 days, the applicant received $9.9 million which was almost ten times the threshold amount prescribed by the offence provision. (i) The offending ceased on 16 March 2010 with the applicant's arrest, although his Honour expressly declined to draw any inference that the offending would have continued after that date. (j) The applicant's use of a mobile telephone number, subscribed in the name of another, communicating in cryptic or coded language and keeping limited written documentation were examples of "a course of conduct designed to conceal the offending behaviour from any investigating authorities". (k) The combination of these matters pointed to "objectively a very serious offence". (l) The "offence itself was part of a course of conduct consisting of a series of acts, each of similar conduct, each in excess of the threshold of $1 million". 16His Honour made the following findings and observations in relation to the applicant's subjective circumstances. (a) At the time of sentence, the applicant was a 53 year old widow with a number of adult children. (b) The applicant emigrated from Vietnam in 1978 to New Zealand, spending two years on route in a refugee camp in Malaysia. (c) The applicant migrated to Australia in about 1985 with her husband and children. (d) The applicant was a hard worker who sent money to Vietnam to assist relatives and the impoverished. (e) The applicant established a number of businesses with her late husband. At the time of the offence, she was running a travel agency business. (f) The applicant cared for her husband during a six year period of terminal illness, until his death in about 2003. (g) The applicant enjoyed strong family support. (h) The applicant was entitled to be regarded as a person of prior good character, who had made "regular and significant contributions" through charitable and voluntary work to community and church organisations. (i) The applicant made a "genuine" offer of assistance to the authorities, which, despite being of "no value" (on account of the depth of evidence collected by investigators), it was nevertheless "relevant to the question of remorse and contrition" and would have a modest effect on the sentence. (j) Although the discount for the plea of guilty was not quantified, the applicant's early plea resulted in an entitlement to "a significant discount within the appropriate range, but also allowing that the plea to some degree was motivated by a recognition of the inevitable". (k) The applicant demonstrated genuine remorse for the offence and had reasonable prospects of rehabilitation. (l) During her husband's illness, and after his death, the applicant continued running the business and looking after the children, together with some help from relatives. The applicant continued working in the travel agency until the time of her arrest. 17The applicant did not give evidence in the sentence proceedings, but evidence was given by her younger brother, Hai Ngoc Dao. His Honour's favourable findings in relation to the applicant's subjective case were based on his evidence. 18The applicant had been very active in the Catholic Church in both Australia and in Vietnam. A number of references were provided by Catholic Priests, both in Australia and in Vietnam. Amongst her charitable works, had been assistance provided to many poor students by supporting them so they could have the opportunity to finish their studies. 19Despite the applicant's strong subjective case, his Honour held that general deterrence was "a significant factor" to be taken into account in the sentencing exercise, having regard to the difficulty of detecting an offence of this nature, particularly in circumstances "where the offender's reputation of honesty in the community and not having committed any offences is ... a factor relied on by the syndicate as part of the endeavour to avoid detection". 20His Honour found that the applicant was an active participant in an enterprise which had both a legitimate purpose of money transfer and an illegal purpose of moving cash funds into and/or out of Australia. He found that the applicant deliberately took no details of the person supplying the money and kept no official records of the transaction, despite knowing that she was required to do so and in fact doing so in respect of legitimate funds. He found that clearly suspecting that there was a suspicious source of the money, the applicant chose not to make any inquiries and to simply proceed to deal with the money, being reckless to the risk that the money would become an instrument of crime. His Honour said: "The court accepts that in relation to an offence of this nature, particularly taking into account the difficulty of detection and bringing offenders to justice, in circumstances where the offender's reputation of honesty in the community and not having committed any previous offences is in fact a factor relied on by the syndicate as part of the endeavour to avoid detection. In those circumstances, general deterrence is a significant factor to be taken into account. The sentence imposed must be of such a severity that it will act to deter others minded to engage in such conduct and signal to them that the potential financial rewards to be gained from such activities will be neutralised by the risk of severe punishment." (ROS 46.5 - .8) Ground of appeal and submissions Ground of Appeal - The sentencing judge erred in imposing a non-parole period and overall term that were manifestly excessive. (a) Error in relation to the assessment of the objective seriousness of the offence. 21The applicant submitted that her offending should have been assessed as falling towards the lower end of the scale. This was because it was clear from the Statement of Facts that whereas the applicant may have had some suspicions as to the source of the cash, there was no evidence that the cash was likely to be used for a criminal purpose. On the contrary, in most cases the cash was paid into a bank account. 22The Court's attention was drawn to the telephone intercepts relating to the first transaction on 24 February 2010. The applicant submitted that it was clear from that telephone intercept that she was very naive in relation to the use of the code and was clearly very surprised when she learned how much money was involved (ROS 3.7). 23The interpretation which the applicant wished the Court to make of the initial telephone intercept of the conversation between her and Ly, was a somewhat benign one. I am prepared to infer that the applicant was relatively inexperienced in dealing with such a large sum of money, but otherwise the telephone intercept indicates a clear willingness on the part of the applicant to participate in the illegal transaction. 24His Honour's finding that the offence was objectively "very serious", was well open on the evidence. Significantly, the applicant's counsel in the sentence proceedings conceded that the offence was serious and that a significant sentence was warranted. 25The combination of the following circumstances provided a more than adequate factual basis for his Honour's conclusion that the applicant's offence was a "very serious example of its type". The very large amounts of cash involved. The serial nature of the offending. The applicant's "essential role" in the enterprise. The applicant's efforts to conceal her conduct and the conduct of others involved in the syndicate. The applicant's motivation of greed. 26No error in his Honour's assessment of the objective seriousness of the circumstances of the offending has been made out. (b) Error in taking into account suspicion as to the source of the funds and the risk the money would be used as an instrument of crime. 27The applicant submitted that the offence under s 400.3(2)(b) of which she was convicted, contemplated recklessness as to the funds being used as an instrument of crime. The applicant submitted that in relation to the risk that the funds would be used as an instrument of crime, there was no evidence to that effect. The applicant submitted that it was not open to his Honour to use his assessment of the "suspicious" nature of the source of the funds to inform his assessment of the level of recklessness on her part in relation to the risk of the money becoming an instrument of crime. 28The applicant submitted that on many occasions the money was deposited into a bank. This was an unusual step to take if there was a high level of recklessness on her part as to the risk of the money becoming an instrument of crime. The applicant submitted that the amount of money did not of itself inform the assessment of how reckless she was in relation to the risk that the money would become an instrument of crime. 29The applicant relied upon the following extract from Regina v Narongchai Saengsai-Or [2004] NSWCCA 108; 147 A Crim R 172 where Bell J said: "70 Recklessness with respect to a circumstance under the Criminal Code invites consideration of (i) the accused's awareness of a substantial risk that the circumstance exists, and (ii) having regard to the known circumstances whether it was unjustifiable to take the risk. The latter consideration does not involve a question of fact. It requires that the jury make a moral or value judgment concerning the accused's advertent disregard of the risk." 30In summary, the applicant submitted, that a proper assessment of the objective seriousness of the offence was that "the accused's awareness of a substantial risk" and "the accused's advertent disregard of the risk" in this case was towards the lower end of the scale. 31In the course of submissions in this Court, the applicant conceded that there was a logical connection between the before and after risks associated with the receipt of large sums of cash where not only was no explanation given as to its source, but the whole transaction was dealt with in such a way that proper record keeping was not maintained. In those circumstances, suspicion as to the source of the money was capable of informing the concept of recklessness as to the money's ultimate destination and use. Such a suspicion about the source of the funds can still be relevant to establish recklessness as to the fact that there was a risk that the money would become an instrument of crime. 32The comment by his Honour, upon which this challenge is based, needs to be read in context. "The offender performed an essential role in the disposal of the money. She deliberately took no details of the person supplying the money, and kept no official records of the transaction, despite knowing that she was required to do so, and in fact doing so in respect of legitimate funds. Clearly suspecting that there was a suspicious source of the money, she chose not to make any inquiries and to simply proceed with dealing with money, being reckless to the risk that the money would become an instrument of crime." (ROS 41.7) 33Properly understood in context, that comment was a reference to a factual detail that was apt to explain why the applicant "chose not to make any inquiries". In making this observation, his Honour did not form his own assessment of the "suspicious nature" of the source of the funds. Rather, his Honour was giving just another example of conduct engaged in by the applicant that made her suitable for the "essential role" she played in the criminal enterprise - conduct which included deliberately not taking details of the cash supplier, or keeping official records. 34Nor did his Honour err by noting that the applicant elected to "simply proceed with dealing with the money, being reckless to the risk that the money would become an instrument of crime". Those words were a shorthand description of the culpable conduct engaged in by the applicant, in respect of which the applicant played an "essential role". There is simply no basis in the text for the assumption that an assessment of the "suspicious" source of the funds (which was not in fact made) informed a further assessment of the level of recklessness. 35In the circumstances of this case, his Honour was entitled to find that the suspicions on the part of the applicant resulting from the extraordinary amounts of cash being delivered on a regular and frequent basis, were relevant to her appreciation of the substantial and unjustifiable risk that the money would become an instrument of crime. This is particularly so in circumstances where the applicant was being asked to engage in (and did engage in) clandestine conduct. The reference in the Statement of Facts to possible tax avoidance is consistent with that scenario. 36The evidence of clandestine activity by the applicant (i.e. the use of coded language, frequently changing phones, not keeping proper records, giving in excess of $1 million in cash to a courier to drive the money interstate etc) supports a strong inference of recklessness of the particularised kind on the applicant's part. It was also noted that the element of recklessness which the applicant accepted by her plea, necessarily incorporated the features of substantial and unjustifiable risk taking. 37It follows that this challenge to his Honour's analysis of the offence has not been made out. (d) Error in relation to the assessment of the covert nature of the offence in the context of the applicant's other legitimate business dealings. 38In reviewing the facts, specific reference was made by his Honour to faxes written in the Vietnamese language, as well as "cryptic" or "coded" language. The applicant submitted that to the extent that his Honour had regard to the use of the Vietnamese language as part of the deception, his Honour was in error. The applicant submitted that she could hardly be criticised for using her first language to communicate with another person of Vietnamese heritage. 39In relation to the "code", the applicant submitted that it could not be regarded as particularly sophisticated which placed it more towards the lower end of the scale of objective seriousness. 40The applicant was critical of the following observation by his Honour: "There is no evidence as to exactly how much the offender received by way of commission, with the exception of the reference to $40,000. However, it is clear that at least in respect of the transactions that totalled in money received from others $9.8 million, that it can be anticipated that the personal reward was a substantial one. She was otherwise conducting legitimate businesses, or at least a business." (ROS 42.5) 41The applicant submitted that this observation was open to the inference that the sentencing judge had formed the view that the applicant was either not otherwise genuinely conducting a business, or that the legitimate business interests were constructed so as to provide "cover" for the "money laundering". The applicant submitted that there was no basis for any impeachment of her legitimate business interests as having an illegal purpose, or one related to the offending conduct. She submitted that if such were his Honour's purpose: (a) It was inconsistent with the evidence. The applicant's brother, Mr Dao, gave a detailed account of the applicant's long history of a productive working life looking after her children and her husband. (b) It was not open to him to use this observation as relevant to the objective seriousness of the offence, or as part of his findings which affected the sentence. If he did so, he should have stated his finding clearly so that it could be properly assessed. 42The applicant submitted that in relation to her "covert activities", his Honour failed to adequately take into account the public nature of the relationship between her and "Xuan" in Melbourne. As the agreed facts noted, there was a written agreement between them and a commission was specified. The advertisement for agents by Xuan was quite open and was clearly set out in a Vietnamese community newspaper. 43The applicant's criticism of his Honour's finding that her use of the Vietnamese language in communications was part of conduct designed to conceal the offence is made out. Vietnamese was the applicant's first language and there was nothing sinister in her using that language when speaking with other persons of Vietnamese origin. It is, however, a criticism which goes nowhere. 44Even without that finding, there was ample evidence of a conscious course of deception by the applicant in respect of this offence. Coded language was used. Mobile telephones subscribed in another person's name were used. Faxes without letterhead were sent by her to her Melbourne principal. The illegal transactions were not recorded in the books of account of her legitimate business. All these matters were relevant to an assessment of the objective seriousness of the offence. 45There is, however, no substance in the applicants other submissions under this heading. When read in context, his Honour was not impugning the legitimacy of the applicant's business. His Honour expressly accepted that the applicant was a hardworking person who had successfully run businesses before becoming involved in this offence and had continued to run a legitimate business at the time when the offence was being committed. 46The point which his Honour made was that one of the reasons why the applicant was used by the syndicate to engage in money laundering was because she was conducting a legitimate business which would serve to camouflage her illegal activity. 47It was in that context that his Honour had regard to the "public nature" of the agency arrangement between the applicant and Xuan. It was well open to his Honour to reason that the syndicate's deliberate use of the applicant's "reputation of honesty in the community" which included her legitimate business activities was intended to avoid detection. This, of course, was one of the factors which his Honour had to take into account when considering general deterrence. 48This area of complaint has not been made out. (e) Error in failing to have proper regard to the applicant's subjective circumstances. 49The applicant submitted that she had a very strong subjective case. She submitted that his Honour had not had proper regard to her subjective case, otherwise he would not have imposed such a heavy sentence. The matters which she stressed were the absence of prior convictions, her difficult personal circumstances before arriving in Australia, her care for her husband and children, and her charitable works for the community and her church. Although his Honour specifically found that she was remorseful and contrite, because of what she had said to her brother Dao, and because of her offers of assistance to the police, that finding was not reflected in the sentence. 50It cannot be said that his Honour failed to have proper regard for the applicant's subjective case. His Honour set out that case in considerable detail (ROS 36-39) and made findings favourable to the applicant. Accordingly, his Honour was fully aware of the strength of her subjective case. The relationship between an offender's subjective case and the sentence ultimately passed, is quintessentially a matter of discretion. No error of the House v King [1936] HCA 40; 55 CLR 499 kind has been made out. All that can be said is that the applicant believes that there is a disconnect between her subjective case and the sentence which was imposed. Such a belief and assertion are not indicative of error. 51The exercise of the sentencing discretion by his Honour required that he weigh these matters against the need for general deterrence and the serious objective circumstances of the offence. The approach adopted by his Honour and the sentence which he imposed were open to him and were well and truly within proper discretionary limits. 52This area of complaint has not been made out. Comparable sentences and statistics 53Although not raised as one of the four areas of complaint relied upon to establish that the sentence was manifestly excessive, the applicant placed before the Court some previous decisions involving offences contrary to s 400.3, with a view to indicating that the sentence imposed by his Honour was particularly severe. In doing so, the applicant conceded that the number of cases (fourteen) was insufficient to establish any particular trend. 54The applicant did, however, refer the Court to the judgment of Barr AJ in R v Van Loi Nguyen [2010] NSWCCA 226; 204 A Crim R 246 where his Honour identified various factors relevant to sentencing for offences of this kind. "59 A court imposing sentence for an offence under subs .3(1) must have regard first to the maximum sentence applicable, to the minimum value of money or property necessary to bring an offence into the sub-section and to the prescribed state of mind, namely the offender's belief that the money or property was the proceeds of crime. There will be other features, too, including the actual value of money or property dealt with and the proportion, if any, by which that value exceeds the minimum value qualifying for subs .3(1), as well as the period of time over which the transactions constituting the offence were carried out, the authority by which the offender carried out his part and precisely what the offender did and the manner in which the offender acted, which will include consideration of any practised deceit. The nature of the criminal source of money or property may be important. The Court will need to consider whether the money or property was beneficially the offender's or not and, if not, the value of any intended reward. It will be important to consider what part of the money was successfully dealt with and the value of any resulting loss to the community. The precise state of mind of the offender will be important. Just as subss .3(1), .3(2) and .3(3) vary according to a scale of increasingly serious states of mind, rising from negligence to recklessness to belief, so there may be degrees of belief, rising to certain knowledge, as in Maldonado. And there will be other considerations, case by case." 55The applicant submitted that by reference to the factors identified by Barr AJ, it was apparent that the sentence imposed by his Honour was excessive and beyond the boundaries of a proper exercise of the sentencing discretion. She submitted that while $9.9 million was an extremely large amount of money, that factor should not be allowed to dominate other relevant factors which needed to be taken into account. She submitted that it was apparent from his Honour's judgment that he did regard the amount of money involved as the dominant factor in reaching the sentence which he did, even though he did not expressly say so. 56By reference to the factors identified by Barr AJ, the applicant submitted that it was clear that her offending was towards the lower end of the range. The factors she particularly referred to were: (i) The offence only took place over 23 days. (ii) The money was primarily deposited into a bank, as distinct from being used in some self-evidently risky manner. (iii) The 23 days of offending conduct were in the context of decades of law-abiding behaviour. (iv) The business relationship with Xuan in Melbourne was not covert. 57Minds will differ as to how the factors identified by Barr AJ should be taken into account. It is true that the offence took place over only 23 days. On the other hand, the amount of money involved was very large indeed. All of the transactions (six) involved large sums. By pleading to the offence, the applicant accepted the element of recklessness as part of her state of mind. That was appropriate, given the large amount of money involved and her deliberate eschewing of any inquiry as to the ultimate use and destination of the money. The applicant's important part in the hierarchy of the syndicate and her motivation for the offending were all relevant. Rather than assisting the applicant's submission, the analysis of relevant factors identified by Barr AJ simply emphasises how thorough was his Honour's review of the facts. The factors referred to by Barr AJ were all factors which King DCJ took into account when arriving at the sentence. 58It should also be noted that R v Van Loi Nguyen involved offences of intention, rather than offences with a fault element of recklessness. This gives only limited importance to the observations of Barr AJ as to the state of mind of the accused. Accordingly, the comments of Barr AJ in that regard have to be modified to fit the circumstances of this case. 59In A Ansari v R, H Ansari v R [2007] NSWCCA 204; 70 NSWLR 89 Simpson J said in relation to "recklessness" as used in this offence: "34 ... 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 the 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." 60There is nothing in his Honour's analysis which is contrary to what was said by either Barr AJ or Simpson J in those cases. On the contrary, his Honour's approach and analysis is fully consistent with those observations. When regard is had to the actual conduct of the applicant, her essential role, the scale and serial nature of the offending and the applicable maximum penalty, the sentence imposed by his Honour was well within the exercise by him of a proper sentencing discretion and no error has been revealed. Conclusion 61It follows that the applicant has failed to establish by reference to the alleged areas of error, either individually or collectively, that the sentence was manifestly excessive. I am satisfied that the sentence was well within the appropriate range and that no lesser sentence is warranted in law. 62The orders which I propose are: (1) Leave to appeal is granted. (2) The appeal is dismissed. 63LATHAM J: I agree with Hoeben JA. 64GARLING J: I agree with Hoeben JA. ********** 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. Decision last updated: 18 July 2012