SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The applicant John James Byrne, pleaded guilty to one count of fraud under s 408C(1)(c) and (2)(d) Criminal Code (Qld) (count 1) and one count of dealing in proceeds of crime in excess of $1,000,000 under s 400.3(1) Criminal Code (Cth) (count 2).  He was sentenced on 13 August 2009 in the Supreme Court to three and a half years imprisonment on count 1 and six years imprisonment with a non-parole period fixed after three and a half years on count 2.  He applies for leave to appeal against that sentence, contending that it is manifestly excessive.  Although legally represented at sentence, he was self-represented in this application.

The circumstances of the offending

[2] The prosecutor placed the following account of the offences before the sentencing court.  The first offence occurred on 15 October 2007 when Byrne attended the Coorparoo branch of the Commonwealth Bank.  He pretended to be a customer and withdrew $1.38million from a term deposit account in the customer's name and transferred it to the customer's transaction account.  To make good the pretence, Byrne had a Commonwealth Bank debit account card in the name of the customer, the relevant banking passwords necessary to make the transfer, and the customer’s date of birth and contact details as recorded by the bank.  He also forged the customer’s signature for the purpose of making the transfer.  The maximum penalty for this offence was 10 years imprisonment.

[3] Count 2 occurred on the following day when Byrne returned to the bank, by which time the transfer to the transaction account had cleared.  He continued to pretend to be the customer and this time completed documentation to enable the $1.38 million to be telegraphically transferred to an account in Hong Kong in the name of Zhang.  The transfer of funds to the Hong Kong account was effected by 18 October 2009.  Police in Australia notified the Hong Kong bank and the funds were frozen but by then $HK1.5 million (about $A250,000) had been withdrawn from the account.  The maximum penalty for this offence was 25 years imprisonment.

[4] Zhang and another man, Chan, were apprehended in the course of crossing the border from Hong Kong to China.  They were in possession of a large amount of cash.

[5] Chan had come to the attention of police in Queensland in the previous month (September 2007) when, in the course of inquiries, police found Chan in possession of a mobile phone labelled with the customer's name.  Chan’s residence was searched.  Police found a computer containing the name, address, telephone number and bank account of the customer, and details of a similar kind relating to other bank customers.  Chan was charged with an offence in Queensland but then left the country.  It appears that he was assisted in his offending by a bank officer in Sydney.

[6] Byrne was arrested in Sydney about a month after the present offences occurred, on 13 November 2007.  He had left a fingerprint on one of the bank transaction documents which was matched with a file fingerprint taken when he was placed on a good behaviour bond for assault in 1999.  Surveillance footage from the bank also matched images of Byrne recorded on police databases.

The submissions at sentence

[7] The prosecutor at sentence made the following submissions.  An amount of $A250,000 remained unrecovered as a result of Byrne's offending.  The conduct of the scheme as a whole was breathtaking in its audacity and brazenness.  Any person of sound mind in Byrne's position must have appreciated the enormous criminality of his actions.  This was not a spur of the moment offence.  It involved preparation.  Byrne had time to reflect on the potential consequences of his conduct.  The plan very nearly succeeded.  It was only Byrne's fingerprint on the bank document which led to his detection.  And it was only the swift police action alerting bank authorities in Hong Kong which prevented the dissipation of most of the money.  Byrne must have appreciated when he received the identification material in the name of the customer that it had been stolen and that there was an inside source within the bank providing assistance to the instigators.  The customer's name suggested he was Caucasian.  Byrne's Chinese co-offenders could not have succeeded in transferring the money without the assistance of the Caucasian Byrne.  The prosecutor emphasised two cases which he submitted were comparable: R v Siu[1] and R v Foster.[2]  He contended that, after taking into account Byrne's guilty plea, a head sentence of between six and seven and a half years imprisonment should be imposed and that parole should be fixed after serving either 50 or 60 per cent of that time. 

[8] Defence counsel at sentence made the following submissions.  Byrne had a compliant and generous nature and was easily and often taken advantage of by others, as he was in this case.  He was a pawn who was cleverly used by the instigators of these offences.  He was prevailed upon by a Chinese woman in Sydney, who owed him $9,000, to meet with some Chinese men to assist in transferring $80,000 overseas.  He agreed, expecting that he might then be repaid the $9,000 she owed him.  When he arrived in Brisbane, he found that the amount of the money to be transferred was not $80,000 but $1.38 million.  He nevertheless continued to participate in the scheme.  He received no benefit from his efforts. 

[9] Byrne was 48 at sentence.  He resided in Sydney where he looked after his elderly mother.  Defence counsel tendered numerous references which stated that Byrne was well regarded in the community, that he was a kind and generous person, and that these offences were out of character.  The references and a medical report confirmed that Byrne was a kindly carer for his aged mother.  The medical report also stated that Byrne had suffered from chronic depression over many years and that this had been severely exacerbated at times when he had contemplated suicide; he was still suffering from depression at sentence. 

[10]  Defence counsel emphasised that Byrne had provided police with a lengthy statement and genuinely tried to identify those involved.  But, he conceded, despite Byrne's best efforts, he was of little concrete assistance to the authorities. 

[11]  Defence counsel had been unable to find any comparable cases.  Siu and Foster were both more serious examples of offending than Byrne's.  Foster was a persistent and experienced criminal, whereas Byrne had no relevant criminal history and was clearly a dupe used by others.  Siu involved 59 transactions over a lengthy period of time.  Whilst a deterrent sentence must be imposed on Byrne, defence counsel urged the judge to fix an early non-parole period to reflect the mitigating features.

The judge's sentencing remarks

[12]  The trial judge noted the applicable maximum penalties, the circumstances of the offending and Byrne's antecedents before making the following observations.  Byrne's possession of so much material and information about the customer demonstrated that it was:

"a carefully planned venture … perhaps at the behest of others, and that [Byrne] must have, unless [he was] unusually skilled, practised the sample signature in advance.  In other words, there was no spur of the moment action on your behalf.  You had to fly from Sydney to Brisbane to do this, and you had to stay in Brisbane for a few days in order to complete the transaction.

The forgery of the signature was described by the Crown Prosecutor as demonstrating extra brazenness on your behalf, and I agree with that.  It was an extraordinarily bold action on your part to steal a very large amount of money from a bank account and cause it to be sent to Hong Kong, where, as you must have been aware, it was not going to be used to [the customer's] benefit."

[13]  The judge also noted that there must have been someone within the bank who was assisting others to engage in this criminal conduct.  Byrne must have been aware that what he was doing was "of a serious criminal nature".  He had information he was not entitled to have.  He forged a signature.  He was prepared initially to assist in the fraudulent theft and transfer of $80,000 and had no qualms about transferring more than $1.3 million.  Byrne had tried to provide information to police but it was vague and unhelpful.  Although Byrne had done community work to assist others and was generous, he had engaged in a crime of great magnitude.  His conduct "was extravagant, it was bold, it was brazen, it was deliberate, it was planned".  The judge referred to Siu and Foster.  His Honour considered that those cases had some similarities and some dissimilarities with Byrne's case.  General deterrence remained important in fixing the penalty.  The judge noted Byrne's early plea of guilty and general cooperation. 

The submissions in this application

[14]  In his lengthy written outline of argument Byrne made three submissions.  His first submission centred on his present account of the facts of the offences.  This account differed from the version before the sentencing court.  He referred to the trickery of his co-offenders.  He gave assistance and advice to a woman who owed him $9,000.  She had not repaid him because she lent the money to a man who had disappeared.  She later told him that she would be paid 10 per cent of the transfer of some money overseas and they would share this.  He reluctantly agreed to become involved because he was benevolent and she said she needed the money.  He was not confident he would ever receive any money.  She brought in a man whom he knew as "Kevin".  Kevin told him that he would have to go to Melbourne to accomplish the transfer and the trip would be free. 

[15]  Byrne arrived at the airport on the following day and punched in his booking number.  He was surprised to receive a boarding pass for a flight to Brisbane as he did not like Brisbane.  He telephoned his contacts, assuming it was a mistake but he was told that it was correct and he was to go to Brisbane.  So far as the transfer of money was concerned, he did not know the day, the State, the location, the name of the customer or the amount.  He was driven a long way from the airport and believed he was far inland.  He was taken to a bank.  Outside, he was given a bank card, new and unsigned, and was told to sign the card, copying a simple signature in the name of the customer.  This signature was similar to his own.  He did not ask questions because he assumed it was a tax avoidance matter and not necessarily illegal.  He formed "different conceptions of what was going on.  One was that the person was dead or in gaol and could not withdraw himself."  He was told to close a term deposit and transfer $1.38 million to a cash card which they gave him.  He was surprised but did not consider the transfer would be possible without photo identification so he did not object to the transfer of the increased amount.

[16]  He was made to return to the bank the following day to complete the transfer.  No-one at the bank asked for photo identification.  When he returned to Sydney the second time, his female friend told him that all communication had been cut.  He then thought for the first time that the transfer was illegal.  He was not apprehended for many weeks and according to his previous solicitors, the account was not frozen very swiftly.  He submitted that "leaving the money in the account shows bad planning and organisation".

[17]  Byrne's second written submission was that his offending was not pre-planned.  The judge described his offending as extravagant, bold, brazen, deliberate and planned.  If that was so, Byrne queried why the money was left in the account in China and not all withdrawn? The police were lucky, not swift.  Those who master-minded this episode gave him very little information in advance.  He did not plan the offences; he was the puppet and told only what was needed.  The bank persuaded themselves that he was the customer.

[18]  Byrne's third written submission dealt with statements in the judge's sentencing remarks with which he disagreed.  Byrne also emphasised his long standing good character and the contributions he had made to the community and his care of his mother.

[19]  Byrne repeated and elaborated on many of these claims in his lengthy and articulate oral submissions.  Byrne has not appealed against his conviction and he is bound by his pleas of guilty and the factual basis for his offending placed before the sentencing court.  He claimed that he was a gullible pawn who genuinely wanted to be helpful to others and who was preyed upon by the cynical instigators of these offences.  As the learned sentencing judge noted, objectively such a claim seems extremely unlikely.  It must be said, however, that in this Court, as Byrne was self-represented, his reasoning processes were exposed in his lengthy oral submissions and in his discussions with the judges.  His reasoning processes appeared to be somewhat impaired.  This gave some credibility to the otherwise implausible contention that he was not fully cognisant of the criminality of his actions and was used as a gullible pawn by others.  That said, there is no evidence that he was not of sound mind when he committed the offences or when he pleaded guilty and he must be sentenced accordingly.

[20]  Byrne emphasised that the sentence imposed on his co-offender, Chan, in the trial division of this Court on 16 December 2009.[3]  He submitted that the disparity between his own sentence and that imposed on Chan warranted the granting of this application and appeal. 

[21]  During the respondent's oral submissions, it emerged that Chan was sentenced in the Hong Kong District Court in respect of an offence connected with Byrne's offences[4]  before Chan's sentence on additional matters in the trial division of this Court.

The sentences imposed on Chan

Chan's sentence in Hong Kong

[22]  Byrne's submission as to the disparity between the sentence imposed on him and that imposed on Chan has some force.  This information as to Chan's sentence was not before the sentencing judge in Byrne's case. 

[23]  Zhang and Chan were jointly sentenced in the Hong Kong District Court for the offence of dealing with property known or believed to represent proceeds of an indictable offence under s 25 Organised and Serious Crimes Ordinance of Hong Kong.  The maximum penalty for that offence was 14 years imprisonment or a fine of $HK5 million.  It was therefore a less serious offence than count 2 in Byrne's case which carries a sentence of 25 years imprisonment.  The Hong Kong court found that Chan was the prime mover in this crime.  Both Zhang and Chan travelled to Hong Kong where they opened a bank account in order to receive the Australian customer's funds.  They then each transferred large amounts of Hong Kong currency into their individual bank accounts and were intercepted trying to cross the border into China.  Zhang had no criminal history and had pleaded guilty.  Chan had also saved court time and expense by pleading guilty and by cooperating with the authorities.  The judge rejected their contention that they were unaware of the consequences of what they were doing, concluding instead that they were an active part of a scheme to launder money.  Chan was the main instigator in the joint enterprise but they should be sentenced as equal participants.  Chan was 36 years old and had no criminal history.  After reviewing comparable Hong Kong cases, the judge considered that the starting point was a sentence of three years and six months imprisonment.  Both Chan and Zhang were entitled to a three month deduction for saving the prosecution time and to a further one-third discount for their guilty plea.  They were then each sentenced to serve 26 months in prison.

Chan's sentence in the trial division of this Court

[24] After serving 19 months imprisonment in Hong Kong, Chan was extradited to Queensland where he was dealt with in the trial division of this Court for two counts of dealing with money or other property intending that it was to become an instrument of crime and a summary count of possessing tainted property.[5]  These offences, which occurred on 28 and 29 May 2007, preceded Chan's involvement in the offences with Byrne and are briefly discussed in [5] of these reasons.  In essence, Chan dealt with money by receiving funds into two bank accounts in false names and then possessed, accumulated and ultimately disposed of those funds by electronically transferring them overseas, intending that they pass through bank accounts in false names.  The "purpose of dealing with the funds in this manner was to avoid the scrutiny of Australian money regulators so that the money could be brought back into Australia as apparently clean, overseas-sourced money."[6]  Chan's lawyer conceded that no lawful source for those funds (about $A400,000) could be identified. 

[25] The summary count concerned the possession of property, including a mobile phone labelled with the customer's name at the centre of Byrne's offending. 

[26] Chan was born in China under another name and came to Australia when he was 14.  He became an Australian citizen.  On occasions, he changed his name.  He maintained four separate personal identities which were supported by official documentation. 

[27] The judge noted Chan's sentence imposed in Hong Kong for the offence connected with Byrne's offending and that he had served 19 of the 26 months imprisonment imposed under it before his deportation to Australia.  The totality principle was relevant: the sentence imposed for these earlier offences must take into account the sentence imposed in Hong Kong.  After referring to Siu and Foster, the judge noted that no lesser sentence than six years imprisonment was appropriate.  Such a sentence took into account the sentence imposed in Hong Kong.  Ordinarily, the mitigating features would be properly recognised by a non-parole period of 50 per cent (three years).  That period should be reduced because of the 19 months Chan had spent in custody in Hong Kong.  On each count, the judge sentenced Chan to six years imprisonment with release on parole after serving 17 months.  Defence counsel requested the judge to moderate the head sentence as well as the non-parole period to take into account the Hong Kong sentence.  The judge acceded to that submission and ultimately determined that the appropriate sentence was one of five years imprisonment on each count, with a non-parole period after 17 months.  This effectively meant that for the Hong Kong offences and Chan's offences which preceded his offending with Byrne, he was sentenced altogether to six years and seven months imprisonment (or perhaps seven years and two months imprisonment) with a non-parole period of 36 months.

Comparable cases

[28]  The dearth of cases comparable to the peculiar circumstances of this case makes the determination of the appropriate sentence to impose on Byrne particularly difficult.  The cases relied on by the prosecutor at sentence, the respondent in this application and the sentencing judge were Siu and Foster. 

[29] Siu is not closely comparable.  He pleaded guilty to one count of dealing with money intending that the money become an instrument of crime.  The maximum penalty was 20 years imprisonment.  He was 64 years old, on a disability pension and had limited English language skills.  He had a prior criminal history for illegal activities in the abalone trade.  Over about three months he conducted 59 structured deposits of cash totalling $556,400, to various banks in and around Sydney.  He was originally sentenced to two years and 11 months imprisonment with release on recognizance after one year.  He received a fee for each transaction totalling "something less than $3,000".  He thought that the money was from illegal abalone trading.  The "overall enterprise was very sophisticated" but Siu's role was "not that complex" and he was told what to do by a principal.  After the cash was deposited, others transferred the money to banks in Hong Kong.  The New South Wales Court of Criminal Appeal described Siu's offending as "very substantial criminal activity" warranting a "severe, deterrent sentence".  The court identified the appropriate starting point, before taking into account mitigating features, as at least eight years and, more appropriately, between nine and 11 years.  As it was a Crown appeal and after considering mitigating factors, the court substituted a sentence of five years imprisonment with a non-parole period of two and a half years. 

[30] Foster is of even less comparability to the present case than Siu.  Foster pleaded guilty to one count of dealing in proceeds of crime between 2 August and 14 October 2006.  The maximum penalty was 20 years imprisonment.  Foster negotiated a line of credit from a Micronesian bank.  The loan terms provided for progressive draw down from the line of credit but the money was required to be used for land development in Fiji.  Foster submitted nine false claims totalling $306,722.58.  He did not undertake any land development.  He redirected the money to Australian bank accounts knowing it was the proceeds of crime.  He had an unimpressive criminal history for offences of dishonesty in Australia, the United Kingdom and the United States.  He was sentenced to four and a half years imprisonment with a non-parole period of two years and three months and was ordered to pay $214,138.47 in reparation.  This Court did not consider the sentence manifestly excessive.

[31]  Objectively, the offences to which Byrne has pleaded guilty are more serious than both Foster and Siu.  They involved more money.  They appear to be more connected with international organised crime than Foster's offending.  Byrne's criminal conduct included impersonating a bank customer with the aid of documents in the customer's name and forging his signature.  Although it seems he actually received nothing from his criminality, he was an essential link in a sophisticated attempt to misappropriate $A1.38 million of which $A250,000 has not been recovered.  The maximum penalty was 25 years imprisonment, five years more than the maximum penalty in both Siu and Foster, and considerably more than the maximum penalty to which his co-offenders Chan and Zhang were liable when sentenced in Hong Kong. 

[32]  On the other hand, Siu and Foster each had a criminal history (in Foster's case, an extensive one) whereas Byrne had no prior like criminal history.  Foster, unlike Siu and Byrne, was the instigator of his offending.

Conclusion

[33]  The submissions that Byrne now makes are largely those made, more concisely, relevantly, eloquently and consistent with his guilty pleas, by his experienced counsel at sentence. 

[34]  It is easy to understand the learned sentencing judge's cynicism as to defence counsel's submission that Byrne naively became involved in these offences, without fully appreciating their seriousness.  Whilst that submission objectively appears unlikely, having heard Byrne make his submissions and having questioned him about them, I consider he probably was a vulnerable pawn cynically used by others.  There is, however, no reason to consider that he was of unsound mind at the time of the offences or his sentence and did not enter a free and informed plea of guilty to these charges.  Even accepting the most favourable view put forward by his counsel at sentence, his involvement in these offences was reprehensible criminal conduct.  He believed he was participating in a scheme to transfer $80,000 and then $1.38 million by perpetrating a fraud on the Commonwealth Bank which involved him in impersonating a customer and forging the customer's signature.  His plea of guilty to count 2 meant that he believed the money to be proceeds of crime.  He must have known that what he was doing was dishonest and criminal.  It was in no way done on the spur of the moment.  The maximum penalty for this offence was 25 years imprisonment.  Such serious conduct warranted a penalty severe enough to deter not only him but others.

[35]  To his credit, Byrne pleaded guilty and cooperated with the authorities.  He is a mature man.  Apart from this very serious lapse, he is well thought of in the community and has been a kindly carer for his aging mother.  There is no evidence that his depression is a factor in the commission of this offence, but my assessment of him, having interacted with him in this Court, is that his reasoning processes and functionality are far from completely normal so that his culpability for his offending is less than it would otherwise.  Both he and the community would benefit from him being subject to the supervision available under a lengthy parole order. 

[36]  The very serious aspects of these offences to which I have referred certainly warranted the head sentence imposed of six years imprisonment.  The learned sentencing judge was unaware of two features which, in my view, were highly relevant to the proper exercise of the sentencing discretion in this case.  First, his Honour, who, unlike this Court, did not communicate directly with Byrne, did not appreciate that Byrne's reasoning processes seemed to be impaired.  The submission made on his behalf, that he failed to fully appreciate the seriousness of his offending, was, in fact, probable.  Second, his Honour was not aware of the sentences imposed on Zhang and Chan in Hong Kong and on Chan subsequently in the trial division of this Court.  Chan and Zhang were apparently the instigators of Byrne's offending.  They used him as a gullible but essential pawn in their scheme.  Chan, for his role in this offending and for other broadly similar earlier offending, was effectively sentenced to six years and seven months imprisonment (or seven years and two months imprisonment) with parole after 36 months.  The unique combination of circumstances in this case make it manifestly excessive to require Byrne to serve six months more in custody than Chan before becoming eligible for parole.  In addition, Byrne's seemingly impaired rationality supports a lengthy parole period to protect the community and to assist his rehabilitation.  The mitigating factors support an early parole release date.  After weighing up the competing exacerbating and mitigating features, I consider that Byrne should be sentenced to six years imprisonment with a non-parole period of 18 months. 

[37]  In order to comply with s 16F Crimes Act, I explain to Byrne the following matters.

(a)You have been sentenced to six years imprisonment but the Court has ordered that you serve a non-parole period of 18 months.

(b)The purpose of that order is to enable you to be released into the community on parole after you have served 18 months imprisonment.

(c)It will be a condition of your parole that you must, during the parole period, be of good behaviour and not violate any law.

(d)The conditions of your parole order may be amended or revoked.

(e)If you breach the conditions of your parole order without reasonable excuse, you may be brought back to court and dealt with, and, depending on the nature of the breach, the parole order may be revoked and you may be required to serve the balance of the unserved period of imprisonment in prison, instead of in the community.

Orders

[38]  I would grant the application for leave to appeal and allow the appeal only to the extent of deleting the order that the non-parole period be fixed at three years and six months and substituting an order that the non-parole period be fixed at 18 months. 

[39]  KEANE JA: I agree with the President.

[40]  DOUGLAS J: I also agree with the reasons of the President and the orders proposed by her.