Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ihemeje v R [2012] NSWCCA 269 Hearing dates: 28 September 2012 Decision date: 14 December 2012 Before: McClellan CJ at CL at [1] Hidden J at [2] Adamson J at [3] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Adjust the non-parole period fixed by Puckeridge DCJ to commence on 4 May 2010 and to expire on 3 December 2013. (4) Otherwise confirm the sentences imposed by Puckeridge DCJ. Catchwords: CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - offences of dealing with money or property the proceeds of crime - non-parole period in respect of federal offences - whether matters on which the applicant was not convicted were taken into account in sentencing - whether the sentencing judge made findings that were not open to him - matters taken into account in sentencing Legislation Cited: - Crimes Act 1914 (Cth) - Criminal Code (Cth) - Financial Transaction Reports Act 1988 (Cth) - Crimes Act 1900 - Crimes (Sentencing Procedure) Act 1999 Cases Cited: - Cranshaw v R [2009] NSWCCA 80 - Du Randt v R [2008] NSWCCA 121 - Green v The Queen [2011] HCA 49; 244 CLR 462 - Horne v R [2011] NSWCCA 225 - R (Cth) v Nguyen; R (Cth) v Nguyen [2010] NSWCCA 331 - R v Edwards (1996) 90 A Crim R 510 - R v Guo; R v Qian [2010] NSWCCA 170 - R v Li [2010] NSWCCA 125; 202 A Crim R 195 Category: Principal judgment Parties: Cyril Ihemeje (Applicant) Regina (Respondent) Representation: Counsel: M C Ramage QC (Appplicant) P McGuire (Respondent) Solicitors: Jeffreys Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2009/12016 Publication restriction: None Decision under appeal Date of Decision: 2010-05-06 00:00:00 Before: Puckeridge DCJ File Number(s): 2009/12016 Judgment 1McCLELLAN CJ at CL: I agree with Adamson J. 2HIDDEN J: I acre with Adamson J. 3ADAMSON J: The applicant applies for an extension of time for leave to appeal and for leave to appeal on sentence. 4The applicant stood trial on 22 March 2010 before Puckeridge DCJ and a jury in respect of an indictment with eleven counts which alleged that the applicant dealt with various amounts of money or property that was proceeds of crime and was reckless as to the fact that the money or property was proceeds of crime. 5The trial concluded on 6 May 2010. The jury returned a verdict of guilty to Counts 7 and 8. In respect of the other nine counts the jury was unable to reach a verdict. 6The two counts on which the applicant was found guilty involved the laundering of a total of $592,809 which had been obtained by frauds on the Commonwealth Bank of Australia ("CBA") and Westpac Banking Corporation ("WBC"). 7The maximum penalty for Counts 7 and 8 - offences under s 400.4(2) of the Criminal Code (Cth) - is 10 years imprisonment and/ or a fine of $66,000. The sentences 8On 26 August 2010 the applicant was sentenced to an aggregate term of imprisonment of 5 years and 7 months (commencing on 4 May 2010 and expiring on 3 December 2015), with a non-parole period of 3 years and 7 months (commencing on 4 June 2010 and expiring on 3 January 2014). The individual sentences are: "Count 7: 5 years imprisonment (commencing on 4 May 2010 and expiring on 3 May 2015) Count 8: 5 years 6 months imprisonment (commencing on 4 June 2010 and expiring on 3 December 2015)" The facts 9The applicant was the proprietor of CC Money Exchange, a foreign exchange business located in Sydney. The applicant received $592,908 in fraudulent funds which he converted into US or Euro currency and then handed back to the others involved in the fraud. To hide the true recipient of these funds the applicant filed AUSTRAC reports (in purported compliance with the statutory requirements) in which he provided false details of a non-existent recipient. 10The applicant was audited by AUSTRAC in February 2002 and also October 2006. There was also evidence that the AUSTRAC officers visited the applicant in September 2001. The AUSTRAC visit and audits were conducted with a view to informing the applicant of his obligations as a "cash dealer" under the Financial Transaction Reports Act 1988 (Cth) including the reporting of significant cash transactions, required for cash transactions over $10,000, and suspicious transactions. Count 7 11This count related to fraudulent funds transferred into a bank account called "Fredrick Okafor trading as City Electronic and Computer Services". The bank account was controlled by Fredrick Okafor, an associate of the applicant. 12The applicant assisted Mr Okafor to open the account on 9 June 2005 by vouching for him with respect to the St George Bank's 100 point identification check. On 11 August 2005 a St George Bank investigator, contacted the applicant to inform him of the bank's concerns about a suspect transaction involving $62,700 which had been transferred from Mr Okafor's bank account to the applicant's bank account in August 2005. From that date onwards the applicant was on notice with respect to any further dealings concerning Mr Okafor's bank account. 13At about 11.00 am on 6 March 2006, an unidentified male "runner" of Asian appearance, who was a member of an identity crime syndicate, attended the Burwood branch of the CBA. At this location the runner, purporting to be John Fung, approached CBA staff and requested a transfer of $280,000 from a CBA account in the name of Jogumo Pty Ltd into a St George Bank account in the name of Fredrick Okafor trading as City Electronic and Computer Services. The runner produced a counterfeit NSW driver's licence as identification for the transaction. The licence was in the name of the director of Jogumo Pty Ltd, John Fung, the legitimate authorised signatory to the account, but bore the image of the runner. CBA staff processed the transfer and the runner left the branch. 14Later that day, an amount of $280,000 was received into the St George Bank account in the name of Fredrick Okafor trading as City Electronic and Computer Services. 15Subsequently, but also on that day, an amount of $280,000 was transferred from the St George Bank account in the name of Fredrick Okafor trading as City Electronic and Computer Services into the applicant's WBC business account in the name of CC Money Exchange. 16The next day, on 7 March 2006, amounts of $135,869.56 and $135,254.63 were withdrawn from the applicant's WBC business account and deposited into the accounts of City Forex (Aust) Pty Ltd and American Express respectively. 17City Forex (Aust) Pty Ltd received an amount of $135,869.56 into its WBC account which, at the request of the applicant, it converted into US dollars. Later that day the applicant attended the Town Hall branch of City Forex (Aust) Pty Ltd and collected US$100,800 in cash. 18American Express received an amount of $135,254.63 into its bank account which, at the applicant's request, it converted into EURO currency, to be collected that same day in cash. Later that day the applicant attended an American Express office in Sydney and collected EUR€82,600 in cash. 19The applicant then filed a significant cash transaction report with AUSTRAC as required by statute. That report stated falsely that on 6 March 2006 he had paid an amount of $280,000, made up of EUR€82,600 and US$100,800, to a Henry Edward Havey. The report gave the following details for Henry Edward Havey, each of which was false as the evidence revealed that no person of such name exists: (a)date of birth: 18 March 1962; (b)address: a property in Granville, NSW; (c)identification produced: UK passport; and (d)occupation: director. Count 8 20Darren Mark Cranshaw was a "runner" employed in the identity crime syndicate of which Jonathan Marven was also a member. Mr Cranshaw and Mr Marven fraudulently transferred $315,000 from the bank account of a company in the name of Boomdell Pty Ltd. The money was transferred from the Boomdell account to a bank account controlled by Robert Chibwe, an associate of the applicant. 21At about 12.10 pm on 27 April 2006, Mr Cranshaw attended the Martin Place, Sydney branch of WBC where he completed a withdrawal and deposit slip for the amount of $315,000 to be transferred from an account in the name of Boomdell Pty Ltd to a WBC account in the name of Robert Chibwe trading as Auscam Investments. 22Mr Cranshaw presented false identification in the form of a counterfeit NSW driver's licence. The licence was in the name of William Sheridan, the legitimate authorised signatory to the Boomdell account, but bore the image of Mr Cranshaw. This transfer was processed by a teller and Mr Cranshaw left the branch. 23At about 12.15 pm on the same day, $315,000 was transferred into a WBC account in the name of Auscam Investments, which was controlled by Mr Chibwe. 24At about 1.24 pm on the same day, Mr Chibwe attended the Market and Clarence Street, Sydney branch of WBC. At this location, Mr Chibwe withdrew $270,270.27 from the Auscam Investments account and deposited these funds into the WBC account in the name of City Forex (Aust) Pty Ltd. 25At about 2.17 pm on the same day, Mr Chibwe attended the Surry Hills branch of WBC where he withdrew $42,538.70 from his Auscam Investments bank account and deposited these funds into the WBC account in the name of City Forex (Aust) Pty Ltd. He left the branch at about 2.30 pm. CCTV footage from the bank shows the applicant in the vicinity of the bank during the time that Mr Chibwe was at the branch conducting these transactions. 26Call charge records indicate that on that day, 27 April 2006, the applicant telephoned Mr Chibwe on six occasions between 9.08 am and 1.35 pm. 27On 27 April 2006, the applicant contacted City Forex (Aust) Pty Ltd and advised that an amount of money would be transferred into the City Forex (Aust) Pty Ltd bank account and that the he required the money to be converted into US and EURO currencies, to be collected in cash. 28On the same day, City Forex (Aust) Pty Ltd received an amount of $270,270.27 into its WBC account which was converted into US dollars and another amount of $42,539.70 which was converted into EURO currency. Later that day the applicant attended the Town Hall branch of City Forex (Aust) Pty Ltd and collected US$200,000 and EUR€25,000 in cash. 29The applicant filed a significant cash transaction report with AUSTRAC as required by statute which stated falsely that on 27 April 2006 he had paid out an amount of $312,808.97, made up of US$200,000 and EUR€25,000 to a Maxwell Howard. The report gave the following details for Maxwell Howard, each of which was false as the evidence revealed that no person of such name exists: (a)born: 22 April 1966; (b)address: a property in Parramatta, NSW; (c)identification produced: NSW Drivers Licence; and (d)occupation: builder. 30According to the evidence of Mr Marven, the applicant met with members of the identity crime syndicate later that same day, 27 April 2006, in a café in Sydney. The applicant handed to a syndicate member a paper bag containing 60% of the proceeds from the fraud in cash in US and EURO currency. The remaining 40% was retained by the applicant as his share of the proceeds of the crime. Grounds of appeal 31The applicant relies on five grounds of appeal which will be considered in turn. Ground 1: the sentencing process miscarried 32Section 19AB(1)(d) of the Crimes Act 1914 (Cth) provides that when sentencing a federal offender for two or more federal offences at the same sitting and the sentences in aggregate exceed three years, the court must fix a single non-parole period in respect of that sentence or those sentences. Since the non-parole period must apply for all the sentences it must commence from the date of the first sentence. 33The applicant contended, and the Crown accepted, that the sentencing judge did not correctly apply s 19AB(1)(d) in that his Honour stipulated that the non-parole period ought commence on 4 June 2010, which was the date on which the term for Count 8 commenced, rather than 4 May 2010, which was the date on which the term for Count 7 commenced. 34It is accepted by the parties that this Court ought adjust the non-parole period to commence on 4 May 2010 and to expire on 3 December 2013. This adjustment will be reflected in the orders of the Court set out below. Ground 2: the sentencing judge erred in taking into account matters on which the applicant had not been convicted 35As appears from the narrative set out above, the applicant was charged with 11 counts, but convicted of only two: Counts 7 and 8. The sentencing judge referred in the Remarks on Sentence to the evidence in the Crown case generally. However, in my view, a fair reading of these remarks demonstrates that his Honour was referring to the other counts only by way of overview. They are not referred to as aggravating circumstances or affecting the objective criminality of Counts 7 and 8. 36Any speculation that facts pertaining to the other counts was taken into account was, in my view, put to rest when the sentencing judge expressly eschewed reliance on any matters pertaining to counts other than Counts 7 and 8 in the following terms in the Remarks on Sentence: "That the jury were unable to agree on the other nine counts in the indictment is not a matter I consider to be taken into account in the objective criminality in respect of count seven and eight." 37Accordingly, in my view, this ground fails. Ground 3: the sentencing judge erred in sentencing on the basis of findings that were not open to him in respect to the charges the applicant was being sentenced on 38The provision of the Criminal Code (Cth) under which the applicant was charged and convicted was s 400.4(2), which relevantly provides: "400.4 Dealing in proceeds of crime etc. - money or property worth $100,000 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 $100,000 or more. Penalty: Imprisonment for 10 years, or 600 penalty units, or both." 39The applicant submitted that the following extracts from the Remarks on Sentence indicate that the sentencing judge failed to appreciate the requisite mental element for the offence and accordingly took into account facts that were inconsistent with the jury verdict: "That essential element of recklessness involved the jury in finding that the accused was consciously aware at the relevant time of each of the Counts 7 and 8 that the money referred to in each of those counts was the proceeds of crime." (ROS, 2) "On the finding of the jury as to recklessness the jury has found beyond reasonable doubt that the amounts, or that the prisoner was consciously aware as at 7 March 2006 that the money which was converted into Euros and American dollars was the proceeds of crime." (ROS, 5) "In my summing up the jury was directed that the onus on the Crown was to prove beyond reasonable doubt that the prisoner was consciously aware at the relevant time of the Counts 7 and 8 that the money referred to in each of those counts was the proceeds of crime." (ROS, 11) 40The Crown accepted that these passages did not correspond with the requisite fault element for the offences charged and in respect of which the applicant was convicted. Nonetheless it submitted that the sentencing judge may be taken to have properly directed the jury as to the requisite fault element for the offences, since no challenge was made to the convictions. The Crown, in substance, acknowledged that the identified passages contained some looseness of language which misstated the fault element, but submitted that, when taken as a whole, the Remarks on Sentence were redolent with references to recklessness and statements of the correct fault element which indicated that the sentencing judge appreciated the correct fault element, and applied it. 41The Crown instanced the following passages: "It is important to keep in mind that the offences which the jury have found the prisoner guilty are offences that the prisoner was reckless as to the fact that the money, or property, was proceeds of crime. In my summing up the jury was directed that the onus on the Crown was to prove beyond reasonable doubt the element of recklessness in each count." "The jury also had to be satisfied beyond reasonable doubt that the accused believed that there was a risk that was substantial that is a substantial risk that the money was the proceeds of crime and that having regard to the circumstances known to him at the time... that it was unjustifiable for the accused to deal with the money." 42The Crown also submitted that it ought not be inferred that the sentencing judge misapprehended the relevant legislative provision since the associated provisions do not use the words "conscious" or "aware". 43Section 400.4 provides for dealing in the proceeds of crime where the money or property is worth $100,000 or more. Section 400.4(1) requires the person to believe the money or property to be the proceeds of crime or that the person intend the money or property will become an instrument of crime. Section 400.4(2), of a breach of which the applicant was convicted, simply requires either the money or property to be the proceeds of crime or there to be a risk that it will become an instrument of crime and the person to be reckless as to these matters. Section 400.4(3) requires either the money or property to be the proceeds of crime or there to be a risk that it will become an instrument of crime and the person to be negligent as to the fact of these matters. 44Although it is regrettable that in the Remarks on Sentence the sentencing judge at times used language which did not correspond with the mental element for the offences with which the applicant had been convicted, it ought not be inferred that his Honour did not have in mind the correct provision, or the requisite mental element. That the sentencing had conducted the trial with a jury and directed the jury without error as to the elements of the offence is a powerful indication that the passages on which the applicant relies were no more than momentary slips such as can occur in the atmosphere of a busy courtroom. 45The Remarks on Sentence, unlike the summing up, are the oral reasons of the decision-maker, and ought be read as a whole. Where there is apparent inconsistency in the remarks care should be taken to ascertain whether the inconsistency is indicative of error in substance or mere laxity in expression. In my view, the passages identified by the applicant which are set out above fall into the latter category. 46Accordingly, in my view, this ground ought fail. Ground 4(a): the sentencing judge erred in his findings regarding respective roles and Ground 4(f) the sentencing judge erred in failing to apply the principles of parity 47The principles of parity apply not only where co-offenders are charged with the same offence but also where, as here, offenders are not charged with the same offence. However, in the latter case, as the High Court said in Green v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [30]-[32]: "... there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. ... The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders." 48These two grounds depend, in substance, on the respective roles of the participants in the offences of which the applicant was convicted. Other participants were charged, convicted and sentenced. The sentencing judge imposed a sentence which was, on its face, more severe with respect to the applicant than was imposed on other participants. Yet specific reference was made in the Remarks on Sentence to the role played by the other participants referable to the applicant. 49The applicant referred to the sentences imposed on Mr Marven, Mr Cranshaw and Mr Chibwe as being relevant to his own sentence. The respective sentences and material factors are set out in the table below. Offender/ relevant matters Offences Relevant sentence Applicant/ was tried and convicted. Two offences of dealing with the proceeds of crime: Criminal Code (Cth) s 440.4(2). On Count 7, 5 years imprisonment (4 May 2010 - 3 May 2015). On Count 8, 5 years 6 months imprisonment (4 June 2010 - 3 December 2015). Cumulative sentence of 5 years and 7 months with a non-parole period of 3 years and 7 months (4 May 2010 - 3 December 2015). Mr Marven/ pleaded guilty and gave evidence against applicant. 24 offences of using a false instrument with intent: Crimes Act 1900 s 300(2). One of the offences of obtaining money by deception related to the sum of $315,000, which concerned the same incident as the applicant's Count 8. On that offence and taking into account matters on a Form 1, Mr Cranshaw was sentenced to a total term of four years and a partially concurrent non-parole period of 2 years and 3 months imprisonment and a parole period of 1 year and 9 months. Two offences of having false instrument with intent to use same: Crimes Act 1900 s 302. Total aggregate head sentence of 6 years with a non-parole period of 4 years and 3 months. 26 offences of obtaining or attempting to obtain money by deception: Crimes Act 1900 s 178BA. One offence of knowingly dealing with the proceeds of crime: Crimes Act 1900 s 193B(2). One offence of possessing a false document: Criminal Code (Cth) s 145.2. Mr Cranshaw/ pleaded guilty. 37 offences of using a false instrument with intent: Crimes Act 1900 s 300(2). One of the offences of obtaining money by deception related to the sum of $360,000, which included the $315,000 relating to the applicant's Count 8. On that offence and taking into account matters on a Form 1, Cranshaw was sentenced to a 3-year term, comprising a non-parole period of 2 years imprisonment with a parole period of 1 year. One offence of having false instrument with intent to use same: Crimes Act 1900 s 302. Total aggregate head sentence of 3 years 10 months with a non-parole period of 2 years and 6 months. 23 offences of obtaining money by deception: Crimes Act 1900 s 178BA. Mr Chibwe/ was tried and convicted. One offence of dealing with the proceeds of crime: Criminal Code (Cth) s 440.4(2). This count related to his role in transferring funds from his bank account to the City Forex bank account at the direction of the applicant. This count corresponds to Count 8. Head sentence of 2 1/2 years to be released on recognisance after serving 1 1/2 years. 50In order to determine whether there has been any infringement of the principles of parity such as would require this Court's intervention, it is necessary to examine the findings made by the sentencing judge as to the role each played and the reliance placed by the sentencing judge on the Remarks on Sentence made by the sentencing judges of other participants. 51The sentencing judge described Mr Cranshaw as a "runner" and Mr Marven variously as an organiser of the runners, someone who "co-ordinated the runners" or "syndicate co-ordinator". 52This Court's decision in Cranshaw v R [2009] NSWCCA 80 (Cranshaw), an application for leave to appeal against sentence, which was allowed, was before the sentencing judge. In Cranshaw, this court summarised the respective roles of Mr Cranshaw and Mr Marven as follows. 53Mr Marven was found to be a "syndicate head" who would provide to Mr Cranshaw fake or counterfeit identity documents, a cheque, an account deposit slip and details of the account on a sheet. The information sheet would include the details of company accounts, including the company name, account numbers, address and account holders' names. A separate sheet of specimen signatures was also supplied. 54Generally speaking, Mr Cranshaw would enter a bank with a counterfeit NSW driver's licence bearing his photograph and the details of a legitimate account holder. The offender would then deposit a counterfeit cheque to confirm that the account was still operating and unobstructed. He would then prepare another counterfeit cheque to withdraw cash from the account. This Court reproduced the following remarks of the sentencing judge on Mr Cranshaw's role, at [21]: "The offender's role was to act as a runner to facilitate the actual contact with the bank. It is important to understand that he did not have anything to do with the actual production of the false identity documents, or the obtaining of personal information, with respect to the identities that were used. His role was to adopt the identity when the defrauding was attempted face to face at the bank. Much like a drug courier, he was to be the fall guy if things went wrong. In that role, he protected those in the syndicate who were principally responsible for perpetrating the frauds." 55The sentencing judge referred to the following remarks on sentence in respect of Mr Chibwe: "... though planned, that offender's [Mr Chibwe's] actions were not particularly sophisticated, in that he used his own name and personal details in effecting that planning and that spoke of his limited role in a wider enterprise." 56The sentencing judge contrasted the applicant's role with that of Mr Chibwe and observed: "There was less chance of the prisoner [the applicant] by his actions in changing the monies paid into his accounts in Euros and American dollars in the trail of money being followed. He did in fact have an active role and I accept that it was a significant role." 57As referred to above, Mr Marven gave evidence in the instant sentence hearing that in respect of the transaction the subject of Count 8, the applicant had had in his possession 100% of the proceeds of the transaction, in the order of $310,000, of which he handed over 60% and retained 40%, some $124,000, as his share of the proceeds of the crime. 58It can thus be seen that in the hierarchy of criminality, the applicant was higher up than Mr Marven, who was in turn higher up than Mr Cranshaw and Mr Chibwe. The applicant's risk of detection was markedly lower than that of the others and his material gain can be inferred to be substantially higher. 59The sentencing judge had regard to the sentences that had been imposed on Mr Marven and Mr Cranshaw when he sentenced Mr Chibwe and the applicant. The due proportion between the criminality of each offender having regard to the position of each in the hierarchy was considered by his Honour in the following terms: "It is submitted by the Crown that the [applicant's] role was higher than that of Chibwe, as on the findings of the jury the [Applicant] supervised or directed Chibwe. I consider that Chibwe's role was less significant as I have previously indicated. So far as Marven and Cranshaw and their sentences, I also consider that they are not matters in which the principles of parity should apply. Marven co-ordinated the runners as he has been found by the sentencing judge and Cranshaw was a runner." 60I consider that his Honour's reference to the principles of parity not applying ought be taken to be a reference to the differential in criminality of the relevant participants, since, as referred to above, it is accepted that the principles of parity are not confined to situations where different sentences are imposed for the same offence, but extend to different sentences on persons engaged in the same enterprise, although charged with different offences: Green at [30], per French CJ, Crennan and Kiefel JJ. 61The Crown relied on the following matters as increasing the objective seriousness of the applicant's conduct and distinguishing him from Mr Marven and Mr Cranshaw: (a)The applicant's filing of intentionally false returns with AUSTRAC in an attempt to avoid detection; (b)His supervisory role over others; and (c)His role in converting the proceeds of crime into foreign currency in an attempt to avoid detection. 62I accept that these were factors which had the effect for which the Crown contended. Two further significant matters distinguished the applicant from the other offenders under consideration: first, he alone withdrew cash and was responsible for its safe-keeping whereas others were responsible for the documentation relating to transfers; and secondly, his remuneration represented a very substantial proportion of the proceeds of the transaction. 63The applicant pointed to the fact that both Mr Cranshaw and Mr Marven were convicted of a significantly higher number of offences than was the applicant. I do not consider this matter of itself to be particularly germane since I consider that a comparison of their respective roles leads to the conclusion that Mr Marven and Mr Cranshaw were lower in the hierarchy than the applicant; the number of offences may simply be a reflection of the greater risk of detection. Furthermore, both received significant discounts on sentence by reference to their pleas of guilty and the assistance they provided. There is no evidence of their remuneration. 64I am not persuaded that the sentencing judge misapplied the principles of parity when determining the applicant's sentence in light of the sentences that had been imposed on Mr Marven, Mr Cranshaw and Mr Chibwe. The sentence imposed on the applicant paid, in my view, due regard to his level of criminality as revealed by his role, his responsibility and his remuneration. 65The applicant also relied on the principle of totality and referred to Horne v R [2011] NSWCCA 225 (Horne). The applicant submitted that Mr Horne's offences were similar to those of the applicant and that the applicant's sentence was too high, having regard to the sentence imposed on Mr Horne. 66The sentence imposed on Mr Horne was as follows. Offender/ relevant matters Offence Relevant Sentence Horne/ pleaded guilty Two offences of use false instrument with intent contrary to s 300(2) of Crimes Act 1900; also took into account 84 Form 1 offences of obtaining money by deception, using a false instrument or recklessly dealing with the proceeds of crime. 3 years 6 months term, with non-parole period of 2 years 4 months. Three offences of obtaining money by deception under 178BA of Crimes Act 1900. Fixed term of imprisonment of 12 months. One offence of making false instrument under s 300(1) of Crimes Act 1900. Fixed term of imprisonment of 15 months. One offence of participating in a criminal group under s 93T of the Crimes Act 1900. Fixed term of imprisonment of 12 months. Two offences of recklessly dealing with the proceeds of crime under s 193B(3) of the Crimes Act 1900. Fixed term of imprisonment of 12 months. One offence of using a forged Commonwealth document under s 145.1(5) of the Criminal Code (Cth); also took into account 17 offences under the Financial Transactions Reports Act 1988 (Cth). Fixed term of imprisonment of 2 years. Effective total head sentence of 4 years, 2 months and a non-parole period of 3 years. 67The sentencing judge in Horne relied on Cranshaw. This Court considered the proportionality between Horne's criminality and that of Cranshaw in Horne at [12]-[15], and said: "In Cranshaw the offender had been sentenced by another District Court judge for a large number of offences under s 178BA and s 300(2) of the Crimes Act . In Cranshaw the offender had been a "runner" for a criminal group and Judge Lakatos found that the facts in Cranshaw were "substantially similar, if not almost identical, to the prisoner's criminal offending here". Cranshaw also had not had any relevant prior criminal history and had had a significant drug problem. He also had entered early pleas of guilty and had provided substantial assistance. In Cranshaw the sentencing judge had held that he should adopt a starting point for the aggregate sentence of seven years and should allow a combined discount of 45 per cent for the early pleas of guilty and the assistance, thus arriving at a total head sentence of three years 10 months. In the present case the sentencing judge considered that the applicant's offending had been somewhat more serious than Cranshaw's offending. The applicant's offending had taken place over a longer period of time and had involved more money and the applicant, having moved to Queensland, had returned from Queensland and sought out a person higher in the group so that he could commence re-offending. Having regard to these differences in the two cases, the sentencing judge selected a starting point for the aggregate sentence of 7 1/2 years, and not 7 years. The sentencing judge then allowed the same combined discount of 45 per cent for the early pleas of guilty and the assistance, arriving at a rounded-off figure of four years two months for the total head sentence. His Honour then fixed a total non-parole period of 3 years." 68Given the sentencing judge's finding that the applicant's criminality was greater than that of Mr Cranshaw, I do not consider that there is any lack of proportionality between the sentences imposed on Mr Horne and Mr Cranshaw on the one hand and the applicant on the other. The sentence imposed on the applicant was undiscounted, since there had been neither plea nor assistance. To the extent to which there were fewer offences, I repeat the observations I have made above with respect to parity. Ground 4(b): failing to find hardship and/ or failing to consider the effects of hardship 69The applicant relied on the evidence that he and his wife have a son, Samuel, born on Christmas Day 2006, who has complex cardiac problems. The applicant's wife, who is Samuel's mother, suffers from hypotension. 70The sentencing judge said in the Remarks on Sentence: "I accept that the prisoner's wife will experience hardship as a result of any custodial sentence but do not consider that hardship should have any effect on the custodial sentence to be imposed in view of the seriousness of the crimes involved. The hardship which the prisoner has caused to his wife is a result of his own conduct." 71His Honour referred to R v Edwards (1996) 90 A Crim R 510 in support of the proposition that it is only in highly exceptional circumstances that a court should be much influenced by hardship and otherwise justified term of imprisonment would cause to third parties. I do not consider that any error has been demonstrated in his Honour's approach, which was open to him on the basis of authority and the evidence. Accordingly, in my view, this ground fails. Ground 4(c): failing to take into account prior good character and other favourable subjective circumstances 72Pursuant to s 16A(2)(m) of the Crimes Act 1914 (Cth), the Court must take into account the character, antecedents, age, means and physical and mental condition of the applicant in imposing a sentence. 73The sentencing judge rejected the Crown's submissions to the contrary and found the applicant to be a person of good character who had been a hard working member of the community who had given assistance to the Nigerian community of which he is a member. 74The applicant has not persuaded me that there is any basis for the suggestion that his Honour did not take into account his positive finding of good character when sentencing the applicant. Ground 4(d): failing to take into account matters under s 21A Crimes (Sentencing Procedure) Act 1999 75The applicant accepted that this Act did not apply since the relevant offences were Commonwealth offences. Nonetheless the applicant submitted that the sentencing judge failed to make findings that that the applicant was unlikely to re-offend and had good prospects of rehabilitation although such findings were open. Such matters are mandatory relevant considerations under s 16A(2)(n) of the Crimes Act 1914 (Cth). 76The difficulty for the applicant with respect to this ground is that the matters relied upon as ameliorating at the sentence hearing were confined to the applicant's good character, the hardship by reason of his son and the assistance he had given authorities regarding the assault on him in prison (referred to below). Mr Jeffreys, who appeared for him at the sentence hearing, did not make a positive submission about rehabilitation. This was hardly surprising in circumstances where the pre-sentence report, which was tendered by the applicant, contained the following passage: "The offender disagreed with the statement of facts pertaining to the offences. He stated that he performed the foreign exchanges after having followed the correct procedures and at the time, he was unaware of the fraudulent nature of the transactions and the individuals involved. Mr Ihemeje denied any involvement in the offences and maintains that he is innocent of all charges. The offender appeared to minimise his offending behaviour and laid blame on other parties involved." 77I do not consider that error has been shown. It is not for a sentencing judge to go through all factors listed in applicable legislation where no submissions have been made about them and the evidence does not support the proposition for which an applicant might later contend on appeal to this Court. In my view, this ground fails. Ground 4(e): failing to make allowance for assistance by the applicant in relation to assault or its effects on him 78This ground relates to two violent assaults perpetrated on the applicant while he was in custody. On the first occasion, 8 June 2010, the applicant reported the matter to prison officers. On the second occasion, 10 June 2010, the applicant lost consciousness as a result of the assault. When he regained consciousness he identified his assailant. 79The applicant was subsequently put in protective custody. 80In the Remarks on Sentence, the sentencing judge referred to the applicant's co-operation with prison authorities and the circumstance that he has been, and may in the future be, in protective custody. His Honour noted that the Crown accepted that these matters were to be taken into account in determining the head sentence. 81His Honour determined a non-parole period which was of the order of 64%. This is consistent with an appreciation that the period spent in custody was likely to be more onerous for the applicant by reason of the assaults and the assistance he had provided in identifying his assailants. 82I do not consider the applicant to have identified any respect in which his Honour's discretion to take these matters into account has miscarried. Accordingly, in my view, this ground fails. Ground 5: the sentences imposed were unduly harsh and severe 83The reasons I have set out above in relation to parity and proportionality are also relevant to this ground. I do not consider that the applicant has established that the sentence imposed on the applicant is manifestly excessive. Although it is higher than the sentences imposed on other offenders involved in the transaction that formed the subject of Count 8, this is in my view appropriate having regard to the applicant's greater criminality. 84The applicant referred this Court to Du Randt v R [2008] NSWCCA 121 and two unreported decisions of District Court judges. The Crown also drew the Court's attention to R (Cth) v Nguyen; R (Cth) v Nguyen [2010] NSWCCA 331 and R v Guo; R v Qian [2010] NSWCCA 170 (Guo and Qian). 85The facts of these cases were substantially different from the facts of the instant case and provided less helpful comparators than did the sentences imposed on Mr Marven, Mr Cranshaw and Mr Chibwe. For example in Guo and Qian, the relevant offences were committed when employers paid their workers in cash but did not withhold money for tax and superannuation. As reprehensible as such conduct undoubtedly is, it is not, in my view, in the same area of criminality as the instant case such as to make a comparison between the sentences imposed helpful. 86Sentencing decisions for money laundering offences may provide assistance by way of general sentencing principle for this class of offence, but do not, in my view, necessarily establish a range of sentence. As Barr AJ said in R v Li [2010] NSWCCA 125; 202 A Crim R 195 at [41]: "Notwithstanding the gridlike structure of the subsections, their graded component parts and maximum sentences, they comprehend such a wide range of criminality that there is bound, I think, to be an appreciable variation in the length of sentences within and between them. It seems to me, without undervaluing the importance of the principal differentiating factors - minimum value of money or property and state of mind - that each case will have other variables that bear on sentence. Perhaps the most important will be an exact appreciation of what the offender did, what acts he performed and with what authority and over what period of time. The total value of money or property involved will be important, and whether the money or property belonged to the offender or to another. The degree of planning or deceit that led to the commission of the offence and whether actual loss resulted, and the extent of such loss, will be important." 87It would, in my view, be at odds with the principle of general deterrence if the sentences for the perpetrators who run a lower risk of detection and whose rewards are relatively higher were not concomitantly higher than the sentences imposed on persons lower in the hierarchy and whose criminality is accordingly lesser. 88I am not persuaded that the sentences imposed on the applicant lie outside the proper range. Accordingly, in my view, this ground fails. Orders 89For the foregoing reasons, only the first ground of appeal has been made out. I would grant leave to appeal but allow the appeal, only to the extent to which it is necessary to make the adjustment to the commencement of the non-parole period. 90Accordingly, I propose the following orders: (1)Grant leave to appeal. (2)Allow the appeal. (3)Adjust the non-parole period fixed by Puckeridge DCJ to commence on 4 May 2010 and to expire on 3 December 2013. (4)Otherwise confirm the sentences imposed by Puckeridge DCJ. ********** 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: 14 December 2012