SUPREME COURT OF QUEENSLAND 

[1]  WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Keane JA and I agree with all that he has said therein.  I would, however, add a further observation.

[2] Crimes using the internet, particularly where there is an international element, are particularly hard to detect and prosecute successfully.  Such crimes have the potential for inflicting serious financial harm on innocent citizens.  In consequence when it comes to sentencing such an offender the aspect of deterrence assumes greater importance.  That to my mind is a very relevant consideration when one is considering whether or not the sentence under review was manifestly excessive.

[3] I agree with the order proposed by Keane JA.

[4]  KEANE JA:  On 22 June 2007, the applicant pleaded guilty to one count of dealing in proceeds of crime worth $10,000 or more contrary to s 400.6 of the Criminal Code (Cth), and one count of using a telecommunications network with intent to commit a serious offence contrary to s 474.14(1) of the Criminal Code (Cth).  The maximum penalty for each offence was 10 years imprisonment. 

[5] On 27 September 2007, the applicant was sentenced to concurrent terms of 15 months imprisonment in respect of each of these offences, with a release order after five months on a recognisance in the amount of $25,000 for four years.  This sentence was reduced under s 21E of the Crimes Act 1914 (Cth) for the applicant's cooperation with the authorities.  Were it not for that cooperation he would have been sentenced to two years imprisonment with release after eight months on a four year good behaviour bond of $30,000. 

[6] The applicant seeks leave to appeal against his sentence on the grounds that the learned sentencing judge:

(a) failed to give sufficient weight to the matters in mitigation of penalty by requiring that the applicant serve a period of actual imprisonment; and

(b) failed to comply with the requirements of s 21E of the Crimes Act 1914 (Cth).

[7] I will discuss the arguments advanced by the applicant in support of these grounds after first setting out the circumstances of the offences, the applicant's personal circumstances and the circumstances in which he was sentenced.

The circumstances of the offences

[8] The offence the subject of the first count took place between 19 December 2005 and 19 January 2006.  The offence the subject of the second count took place between 19 December 2005 and 15 March 2006. 

[9] The applicant was involved in an unlawful internet-based activity known as "muling".  This activity enables the beneficiaries of unlawful transactions to obtain the financial benefit of those transactions.  He and his partner M made contact online with a company which agreed to transfer to the bank accounts of the applicant and his partner sums of unlawfully obtained money.  The applicant withdrew the cash, kept a commission of about five per cent and sent the balance to an address in Singapore. 

[10]  So far as the applicant was concerned, he received a total of $38,427.12 into his accounts.  The banks recovered $19,644.12, the balance having been withdrawn and disposed of by the applicant.

[11]  The applicant and M were interviewed by police on 15 March 2006.  They said that the moneys deposited in their accounts had been placed there in connection with their employment.  The applicant insisted that he only became aware that the transfers to his accounts had been made illegally on 19 January 2006 when informed of the fact by the Heritage Building Society. 

[12]  An examination of a laptop computer seized at the applicant's house showed that, between 20 January 2006 and 15 March 2006, the applicant was sending e-mails looking for further work as a mule.  The applicant tried to suggest that these e-mails were actually sent by a cousin whose name he declined to provide. 

[13]  In April 2006 the applicant declined to participate in a record of interview with police, but subsequently changed his mind and provided police with a statement.  The applicant's original motivation for seeking work as a mule was, he said, to obtain extra cash for Christmas. 

[14]  On 15 December 2006, the applicant was committed to trial after a preliminary hearing with cross-examination of witnesses.

[15]  In March 2007, the applicant contacted the Commonwealth Director of Public Prosecutions ("CDPP") and volunteered to provide information in relation to the offending by him and M.  He informed police of the details of their offending and that M continued her involvement in the scheme after his participation ceased.  He told police that M recruited other mules to the scheme.  He also told police that M had been receiving benefits from Centrelink to which she was not entitled.  He has offered to provide evidence in proceedings against M.

[16]  In July 2007, he was attacked and robbed.  He was sentenced on the basis that this attack was an act of retaliation as a result of the applicant's cooperation with the authorities.

[17]  The police assessed the applicant's assistance in relation to the prosecution of M as being of "medium value".  The evidence offered by the applicant will increase the prospect of a successful prosecution of M.

The applicant's personal circumstances

[18]  The applicant was 27 years old at the time the offences were committed.  He was 29 years old at the date of sentence.  He is the father of a child with M.  He does not have custody of the child.

[19]  The applicant has no record of previous criminal activity.  He has a good educational and work history.  At the time of the commission of the offences he was employed as a corrective services officer at the Arthur Gorrie Correctional Centre.

The sentence

[20]  At sentence, the CDPP submitted that, pursuant to s 21E of the Crimes Act, the applicant was entitled to a discount of 40 per cent by reason of the assistance offered by the applicant in relation to the prosecution of M.  The CDPP submitted that the risk to the personal safety of the applicant as a result of his cooperation with the authorities was "a real concern".  The CDPP submitted that, taking into account the applicant's plea of guilty and other mitigating factors, the starting point for the sentence should be two years imprisonment with release on recognisance after eight months.  The sentence proposed by the CDPP, taking into account the s 21E discount, was 15 months imprisonment with release on recognisance after serving five months in actual custody. 

[21]  The sentence imposed by the learned sentencing judge reflected his Honour's acceptance of the CDPP's submissions.

[22]  The learned sentencing judge heard submissions in relation to sentence from both the CDPP and counsel for the applicant in relation to the applicant's cooperation with the authorities in closed court and then proceeded to pronounce in closed court the sentence which would have been imposed but for the applicant's cooperation with the authorities.  His Honour then proceeded to hear the balance of the submissions in mitigation made by counsel for the applicant before pronouncing the operative sentence.

[23]  The learned sentencing judge referred to the applicant's plea of guilty, his ultimate cooperation with the authorities despite his earlier lies, the real potential for threats to the applicant's safety in prison, the fact that he had no previous convictions and had otherwise led a blameless life.  Nevertheless, his Honour considered that a sentence involving actual imprisonment was called for.  In this regard his Honour expressly adverted to the need for general deterrence to discourage the participation of mules in the unlawful movement of money.

The applicant's arguments

[24]  The applicant submits that the learned sentencing judge focused too heavily upon considerations of general and personal deterrence, and gave too little weight to matters of mitigation personal to the applicant.  It is submitted on his behalf that a sentence of imprisonment with an immediate recognisance release order under s 19AC of the Crimes Act would have met the need for a deterrent sentence while also giving appropriate weight to the applicant's good record, his cooperation with the authorities, his evident remorse and prospects of rehabilitation, together with the risks to his personal safety to which he is exposed by reason of his cooperation with the authorities.

[25]  It is also submitted on the applicant's behalf that the learned sentencing judge failed to comply with s 21E(1)(a) of the Crimes Act in that his Honour pronounced sentence without having heard all submissions in mitigation of penalty.  It is submitted that the sentence which was ultimately pronounced was a sentence discounted only under s 21E for the applicant's cooperation against M, and without counsel for the applicant having had the opportunity to address the learned sentencing judge on matters of mitigation such as the applicant's personal circumstances and previous good record.

[26]  On the applicant's behalf, it is submitted that the sentence which should be imposed by this Court is a term of imprisonment of nine to 12 months with a recognisance release order from 6 November 2007.  At that time, the applicant had served almost seven weeks in actual custody.

Discussion

[27]  The most striking aspect of this case, in terms of the criminality of the applicant's conduct, is the circumstance that his offending involved such a casual and cynical descent into the dishonest pursuit of easy money inspired by greed, rather than a response to financial pressure or real need.  The applicant was instrumental in involving M in the offending.  The applicant persisted in his dishonesty.  His criminal activity was not the result of momentary weakness or error of judgment.  The learned sentencing judge was entitled to regard the applicant's cooperation with the authorities as a matter of cynical calculation on his part rather than as an indicator of genuine remorse and good prospects of rehabilitation.  To say this is not to deny that the applicant earned a substantial discount by virtue of his cooperation with the administration of justice, but that cooperation must be put into a proper perspective when considering the criminality of the applicant's conduct and the applicant's contention that the learned primary judge failed to give due weight to the matters of mitigation personal to the applicant.

[28]  On the applicant's behalf it is submitted that the "overall level of criminality of the applicant is comparable to" that of the offender in R v Gordeev[1] in which a sentence of nine months imprisonment with immediate release was imposed in respect of each of seven counts of recklessly dealing with the proceeds of crime of more than $1,000.  The offender in that case dealt with a greater amount than the applicant, but the maximum sentence for the offence there in question was only two years imprisonment and related to criminal behaviour which was reckless as opposed to the intentional misconduct of the applicant. 

[29]  The applicant also relies upon the decision in R v Orlov[2] where the offender was sentenced to 12 months imprisonment with release after six months.  The offender in that case opened bank accounts and provided details to a third party.  In this case the applicant was not merely a stooge for a third party.  The applicant actively sought out employment as a mule and effected the withdrawal and disposition of the unlawfully obtained funds.  After he was aware that his criminal activities had been detected, he persisted in seeking employment as a mule for organised criminals.

[30]  In my respectful opinion, it was open to the learned sentencing judge to impose a sentence involving a period of actual custody by reason of the need to ensure that those who make a deliberate choice to facilitate the unlawful movement of money on the internet as part of an organised criminal activity must understand that this choice will attract serious consequences.  General deterrence has an important role to play in preventing the kind of deliberate choice in which the applicant chose to indulge.  Where dishonest people are free to make a deliberate choice whether or not to engage in criminal activity for easy money, it is only the threat of actual imprisonment if they are caught which is likely to provide the necessary cost-benefit incentive to refrain from such activity.

[31]  As to the applicant's argument in relation to s 21E, the applicant's counsel at the hearing in relation to sentence clearly accepted that he had made the submissions which he wished to make on his client's behalf before the learned sentencing judge pronounced the "in camera" sentence.  Thereafter, the applicant's counsel emphasised to the learned sentencing judge matters of mitigation personal to the applicant.  

[32]  The oral submissions made on behalf of the applicant after the pronouncement of the "in camera" sentence was an elaboration of what had already been put before the court insofar as the matters of the applicant's age and previous good record and work history were concerned.  The fact that he was the father of a child had also been put before the learned sentencing judge before the "in camera" sentence was pronounced.  It cannot be said that the sentence imposed on the applicant in camera did not reflect all the matters personal to the applicant which might properly be taken into account in mitigation of his sentence.

[33]  It should also be borne in mind that the sentence pronounced in open court is the sentence which is the only subject of the application for leave to appeal.  His experienced counsel acquiesced in the course of proceedings which led to the imposition of that sentence.  It is impossible to accept that the applicant was disadvantaged in relation to that sentence by the course of proceedings.

Conclusion and orders

[34]  In my respectful opinion, the applicant has not demonstrated that his sentence was affected by error.

[35]  I would refuse the application for leave to appeal against sentence.

[36]  MUIR JA:  I agree with the reasons of Williams and Keane JJA and with the order proposed by Keane JA.