The Queen v Powell[1999] QCA 416

COURT OF APPEAL

de JERSEY CJ

McPHERSON JA

JONES J

CA No 173 of 1999

THE QUEEN

v.

RICKY GORDON POWELLAppellant

BRISBANE

DATE 04/10/99

JUDGMENT

THE CHIEF JUSTICE: The applicant pleaded guilty to money laundering. That offence is provided for by section 90 of the Crimes (Confiscation) Act.  The offence occurred over a period of nine months in 1994 and 1995. He was sentenced to two years' imprisonment, suspended after 12 months for an operational period of four years.  He seeks leave to appeal.

At the time of the offence the applicant was 38 years old. He had a substantial criminal history but mainly comprising minor drug and street type offences. He had personality problems and health problems. He and his employer, one Sweeney, purchased a very large amount of a drug called Diphenhydramine which was used as an extender, as it is put, for amphetamines. The amount of the drug was 250 kilograms obtained in five separate deliveries or shipments, as they were called. They purchased the drug by using carefully fabricated aliases. 

One shipment was spiked by the police prior to delivery and was later tracked down as the additive to amphetamines being traded in Western Australia. That led the police to Sweeney's otherwise legitimate business, a real estate agency in which the applicant worked. The applicant had been laundering substantial sums of drug money through the accounts of that business. The applicant was sentenced on the basis of personal involvement in $161,671.90 although much more money apparently went to Sweeney. 

The Crown applied for pecuniary penalty and forfeiture orders. When the applicant's willingness to pay a sum of $90,000 lent to him by his brother was raised, the learned sentencing Judge drew attention to section 98 of the Crimes (Confiscation) Act which provides that in deciding the matter of sentence the Court must not have regard to the forfeiture of a defendant's property under a forfeiture order made by the Court or to the circumstance that the defendant has been or may be ordered to pay a pecuniary penalty.

Warned by the learned Judge that payment, if made, may well not be a factor ameliorating sentence, the defence nevertheless did go on to pay the sum to the Crown, yet still subsequently maintained before Her Honour that having done that justified Her Honour's being lenient. Having received the payment, the Crown then formally withdrew its application for the order and Her Honour ultimately held that little weight should be attached to the payment. I respectfully agree with Her Honour's approach.

The defence paid the $90,000 in anticipation of a pecuniary penalty order. The payment being made, the Crown did not pursue its application for that order. Section 98 would deem irrelevant to the sentence an accused's being subject to a pecuniary penalty order. As Her Honour said, such orders constitute additional sanctions.

Just as an accused's being subject to a pecuniary penalty order is deemed irrelevant by express statutory provision, so necessarily, in my view, must the payment of a sum which is in reality a pecuniary penalty, although not paid pursuant to an order, the payment in fact then rendering a formal order unnecessary. There are also the terms of section 98 that the Court must not have regard to the circumstance that the defendant "may be ordered to pay a pecuniary penalty". But for this payment, the Crown would have pursued an order.

The applicant separately seeks to draw comfort now, in this Court, from the more yielding attitude to this aspect of the matter adopted by the Crown before Her Honour. The Crown position then was that the payment could have some relevance. But Her Honour had signalled a contrary view as likely and that occurred before the defence made the payment. In reality the defence took the chance and, to my mind, plainly cannot now complain.

The applicant contended that the sentence is manifestly excessive when one takes account of the circumstances favouring the applicant, his difficult family background, health problems, deficient personality, early plea of guilty, and in light of penalties for money laundering imposed by sentencing Judges sitting in the sentencing Court.  Reliance was placed, for example, on West and Allan. West was sentenced on 3 August 1998 and Allan earlier on 23 September 1997. They laundered more than a million dollars, the proceeds of dealing in amphetamines, laundering those amounts through the bank accounts of an accountancy firm. They were about 50 years old with no previous criminal history. 

Allan was the more active offender personally gaining about $140,000.  He was sentenced to three years' imprisonment. There were in his case substantial mitigating features. Absent those features, a much higher sentence would have been warranted. West benefited to the tune of about $38,000 and he was sentenced to two and a half years' imprisonment. That term was crafted from the platform of three years imposed on Allan.

The two year term imposed here does not sit uncomfortably with those sentences. But I wish to say that I am not to be taken as accepting the adequacy of the sentences imposed on West and Allan for what is, in truth, very serious offending warranting stern deterrence. In fact, I would go so far as to say that I consider the sentences imposed on West and Allan to have been inadequate.  As the matter was argued, the applicant mainly, as it seemed to me, complained of a claimed lack of parity between his sentence and that on a subsequent occasion imposed on his co-offender Sweeney.

The applicant chose to be sentenced in advance of Sweeney, who was then to go to trial later on. Sweeney was sentenced to two and a half years' imprisonment to be suspended, as with the applicant, after 12 months for an operational period of four years. The applicant points out that whereas he foreshadowed a plea of guilty as early as at his committal, Sweeney pleaded guilty only after a trial jury had been empanelled. Sweeney made no repayment, but that cannot be a point of relevant distinction for reasons already advanced.

The arguably significant difference between the two cases concerns the basis on which the two offenders were sentenced. Her Honour sentenced this applicant on a basis agreed by counsel that his role was "the comparatively minor one." In other words, as I interpret that, that the applicant's role was less than Sweeney's. Accordingly, the applicant contends, he should have been the beneficiary of more marked differentiation in their terms and, in particular, not left in the position where both terms were suspended at the same point, that is, after 12 months.

Whether or not that be arguable, the significant point for the present is that Sweeney was not sentenced on the basis that he played a substantially greater role than the applicant. The learned Judge who sentenced Sweeney, a different Judge, was told that the concession made by the prosecutor at the sentencing of the applicant, that his was the comparatively minor role, "was quite wrongly said ... it should never have been said". Sweeney was sentenced on the basis that he and the applicant bore similar responsibility. Since they were sentenced in that way no true consideration of parity can, in my view, arise. I note what was said in Postiglione (1997) 71 Australian Law Journal Reports 875 at 858 per Dawson and Gaudron Justices:

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that if there are relevant differences due allowance should be made for them."

Equal justice, I repeat, requires that like should be treated alike. That is regrettably not the situation here. This is not a situation of comparing like with like because of the different factual bases upon which these offenders were sentenced. Each of these offenders fell to be sentenced on the facts put before the Judge in his case, a point which assumed significance in a somewhat comparable situation in Noffke, Court of Appeal 16 of 1999, see pages 8 to 9 of the joint judgment of McPherson and Pincus Justices of Appeal.

Of course it would, in principle, have been highly desirable that these two offenders be dealt with together. Doing so would have avoided the arguable problem which has arisen here, but it is not clear that that was practicable. Sweeney was entitled to plead guilty, of course, and that at once separated his disposition from that of his co-offender who pleaded guilty. During the applicant's sentencing the issue of separation was raised. Sweeney's trial was then some time off;  the applicant was not to be a witness at Sweeney's trial. Counsel for the applicant urged Her Honour to deal with the applicant as soon as possible. Her Honour was right to proceed then, but the factual position put before her, by agreement, on which she sentenced the applicant obviously could not bind the Judge sentencing Sweeney on the subsequent occasion. That a different factual scenario applied then is unfortunate but it does effectively exclude the parity consideration which the applicant now seeks to agitate in that the two offenders were not sentenced against the same factual matrix.

Mr Kimmins referred to five points of suggested distinction between the positions of the applicant and Sweeney. The first was that the applicant was held responsible for $161,000 directly, Sweeney a substantially larger sum, the sum of $233,000.  For my own part I do not consider that difference of any real significance. These matters are not to be determined on some sort of arithmetic basis. The second point was that there was a lot of drug money going to Sweeney, none suggested as having gone to the applicant. Third, the applicant came from a disadvantaged background, and fourth, he had medical problems. The fifth point was that the applicant made repayment whereas Sweeney did not. As I have suggested, however, that cannot be relevant.

Mr Kimmins also pointed out that the applicant's plea of guilty was foreshadowed much earlier than in the case of Sweeney.  That is right. That apparently explained why Sweeney was given six months more with relation to the head sentence. But in relation to that, I observe that the sum of money directly related to the applicant as being the amount for which he had personal responsibility, as it was put before Her Honour, was not agreed upon between the applicant and the Crown until the day of sentencing. The other point I wish to make is that the applicant had a past criminal history whereas Sweeney had none.

Looking at the matter broadly, I cannot see any significant unfairness in the treatment of the applicant, even frankly if it were to be regarded as a position of roughly equal culpability with Sweeney. The analysis I have gone through also leads me to the conclusion that the applicant did not deserve an earlier suspension than at the 12 months point which Her Honour applied. 

I consider the sentence imposed on the applicant to have been reasonable. It sits, to my mind, comfortably with West and Allan, even allowing for the points of distinction to which Mr Kimmins referred and accepting, for the moment anyway, that those sentences were appropriate. It properly reflects the applicant's degree of criminality and the relevant mitigating features. The learned Judge rightly ignored or virtually ignored the payment of the sum of $90,000 and finally, as I have endeavoured to explain, a parity issue does not in that sense arise here in view of the Court's approach to the two instances of sentencing. I would, for those reasons, refuse the application.

McPHERSON JA: I agree.

JONES J: I agree, and I would add only for my part that I would not accept any suggestion that the penalties imposed in the separate sentences of Allan and West should be regarded as representative. Money laundering activities often provide an essential service to the upper echelons of the illegal drug trade and the penalties should reflect the public concern for that activity. I agree with the reasons of the Chief Justice.

THE CHIEF JUSTICE: The application is refused.