R v Christensen[2006] QCA 197

SUPREME COURT OF QUEENSLAND

THE CHIEF JUSTICE:  The applicant who seeks leave to appeal against sentence pleaded guilty to the offence of money laundering and was on the 20th of March 2006 sentenced to 18 months' imprisonment suspended after six months for an operational period of three years. 

At the time of committing the offences the applicant was 26 years of age.  The period covered by the indictment is December 2003 to August 2004.  In November 2001, he had been sentenced for the possession of powder containing 165.637 grams of pure methylamphetamine, and trafficking in methylamphetamine.  He was then sentenced to three and a half years' imprisonment.  His co-offender in that trafficking operation was his brother Kim, who was on the same day sentenced to 10 years' imprisonment.  As evident from the reasons of the Court of Appeal, dismissing applications for leave to appeal against those sentences, the trafficking operation was of major proportion: over a four year period it generated profit of the order of $500,000.  The motivation was purely commercial.  Kim had enlisted the assistance of the applicant when Kim realised that he, Kim, was the subject of a police investigation.

Although a pecuniary penalty order was made against Kim in that amount of $500,000, a considerable part of that sum remained unaccounted for.  Kim concealed its whereabouts.  He set about disbursing the money from within prison by enlisting the support of others, including the present applicant. Kim thereby was able to deal with approximately $120,000. 

This applicant arranged for the disposal of the total of $27,000 of that sum.  He funnelled two lots of money, totalling $17,000 through an associate in Townsville to a co-offender Ashley, his brother-in-law, who applied the money together with other tainted money to the purchase of a Toyota Prado vehicle for Kim's ex-wife.  As a further development of the operation, Kim later told Ashley to report that vehicle stolen.  It was ultimately recovered by Ashley and sold at a loss.  In addition, the applicant paid $10,000 in cash to a law firm to fund a proposed application by Kim to the High Court for special leave to appeal against the trafficking sentence.

The total amount disbursed by this applicant was, as I have said, $27,000.  His offending commenced in February 2004.  Significantly, he had been released on home detention the preceding December.  In requiring the applicant to serve six months actual imprisonment the learned Judge recognised the significance of the applicants having committed this offence while on parole.  Whatever the pressure put on him by Kim and whatever the significance in the end of the applicant's motivation in relieving his mother, his behaviour was brazen in the overall context. 

Because of the operation of s 151 of the Corrective Services Act 2000 (Qld), the applicant's parole was automatically cancelled when he was sentenced on 20th March 2006.  The current term was imposed concurrently.  If the term imposed in March 2006 had been wholly suspended, as defence counsel had then sought, the applicant's parole would not have been automatically cancelled.  But it was no part of the role of the sentencing Judge in March to craft a sentence to avoid the operation of s 151.  It would have been quite wrong to do so.  It is said with some emphasis that the applicant was progressing well on parole, gainfully employed and supporting his son and his mother, that is, the applicant's mother.  On the other hand, the applicant was engaged in money laundering, even though he derived no financial benefit himself.  He knew the risk he ran as the sentencing Judge observed and must now take the consequence.

None of the cases to which Mr T Martin referred for the applicant, the Court of Appeal's decisions in Powell, 173 of 1999, and Gadaloff, 384 of 1998, and Justice Mackenzie's decisions in Dewar, 9th February 2000, and Scott, 14th May 1995, allowing for similarities and differences, casts any doubt on the reasonableness of the term imposed here. 

Mr Martin submitted that the sentence imposed was disproportionate to those imposed on the applicant's co-offenders in the money laundering operation. 

Kim was sentenced to 15 months imprisonment cumulative upon the 10 year term he was serving.  Kim was the leader and the Judge said that a three year term would have been warranted but the sentence to be imposed had to be moderated because of the substantial term already being served.  It is not possible to say the 18 months suspended after six imposed on the applicant was discordant with the treatment of Kim.

Ashley was sentenced to 12 months fully suspended.  His involvement was more substantial than the applicant's.  But Ashley had no presently significant prior criminal history.  Starkly different from the position of this applicant. 

The applicant's mother, Leila, was sentenced to nine months fully suspended.  She was 64 years of age when sentenced, again with no prior criminal history.  One McDonald, who had been enlisted by the applicant's mother, was sentenced to a fully suspended six month term.  He received a $500 benefit but on the other hand he had no relevant prior criminal history.

Brian Christiansen was sentenced to 12 months imprisonment fully suspended.  He dealt with more than double the amount with which the applicant was concerned but, again, Brian had no prior criminal history.  It is the particular feature that this applicant committed this serious offence while on parole, an offence which, in a sense, grew out of the very trafficking which had led to the sentence which resulted in the parole which, in my view, justified his being actually imprisoned.  There is nothing in the Judge's sentencing remarks to suggest that he approached his assessment of penalty in any rigid or inflexible way or that he fettered his sentencing discretion.  He apparently weighed the relevant circumstances.  But it is obvious that the applicant's commission of this type of offence, while on parole for the other, was highly significant and justified actual imprisonment notwithstanding the features on which Mr Martin relied, his performance otherwise while on home detention and the heavy pressure said to have been put on the applicant by his brother Kim. 

There is nothing manifestly excessive, or indeed excessive, in my view, in the treatment the applicant was given and there is, in addition, no reasonable ground for concluding that his treatment lacked parity, when put into the context of the sentences visited upon his co-offenders.  I would refuse the application for leave to appeal.

THE PRESIDENT:  I agree.  The applicant was sentenced to 18 months imprisonment suspended after six months with a three year operational period.  Because he was on post prison community based release at the time of committing the present offence he is required to serve the unserved balance of the sentence imposed in the Supreme Court on 1 November 2001, a period we are told of 14 months imprisonment.  The sentence he received in respect of this offence was ordered to be served concurrently with that sentence.  We are told that his present date for eligibility to apply for post prison community based release is now 20 September 2006 and his full-time discharge date 26 July 2007. 

The applicant pleaded guilty.  He only became involved in this offence through the very significant importuning of his co-offender and brother Kim Christensen.  The applicant received no financial benefit from his offending.

Despite his counsel's valiant attempt to persuade the Court otherwise, his position can be distinguished from that of his co-offenders who received fully suspended sentences, even though some of them also played a pivotal role in the offence and had a significant criminal history.  At the time he committed this offence he was, as I have stated, on post-prison community-based release, but that was for the very offence which had produced the profits the subject of this money laundering charge. 

Under s 250 of the Criminal Proceeds Confiscation Act 2002 (Qld) ("the Act") the maximum penalty for this offence is 20 years imprisonment.  The object of the Act is said to be to remove the financial gain and increase the financial loss associated with illegal activity.  Offences such as this are not generally easy to detect.  Particular and general deterrence are important aspects in determining the appropriate sentence for offences of this kind, especially when, as here, the offence is committed on parole.

Despite the mitigating circumstances referred to by the applicant's counsel, the applicant has not established in all these circumstances that the sentence imposed was manifestly excessive. 

KEANE JA:  I agree with the reasons of the Chief Justice and the President.  I would add that on the hearing of the appeal counsel for the applicant drew attention to the circumstance that the sentencing judge had accepted that the applicant had assisted in the laundering of $41,000.  This figure was erroneous but it was based upon what had been put to his Honour as common ground by the parties at the hearing below.  The error was not such as to suggest any excess in the sentence which was imposed by the trial judge and it does not constitute a ground on which this Court should set that sentence aside.  I agree with the order proposed by the Chief Justice.

THE CHIEF JUSTICE:  And I agree with what Justice Keane has just said on that point which I had intended covering and not said.  The application is refused.