R v Eckl[2023] QSC 178

SUPREME COURT OF QUEENSLAND

REASONS

1. [1]
   The circumstances of this case are unique.
2. [2]
   Ms Rossmani (Rosse) Eckl is a 68-year-old woman. English is her second language. She was born in Penang in Malaysia. Her upbringing was rather difficult. As the eldest daughter she was obliged to take on many of the household responsibilities. She was subjected to some beatings from her mother. At aged 18, after finishing school in Malaysia, she moved to Australia. Ms Eckl describes the move as fleeing from her mother.^[1]
3. [3]
   Ms Eckl’s first job in Australia was as a cleaner. She was later employed in company name searching. Ms Eckl also undertook further study. She completed her senior high school years at Kelvin Grove State High School, and then a certificate in accounting at Ithaca TAFE, and later a Bachelor of Business and Accounting at QUT.
4. [4]
   Ms Eckl met her first husband in Darwin, and they married in 1975. They had a daughter, Linda. The relationship was marred by persistent stalking and other controlling behaviour.^[2]
5. [5]
   In 1978 or 1979 she met her current husband, Heinz Eckl. She abandoned her first marriage and moved with Mr Eckl and Linda to Brisbane. She and Mr Eckl married in 1988. Ms Eckl consistently worked and supported her family. She sent money back to her family in Malaysia. She consistently did accounting work as an employee of many companies in Brisbane. Throughout her thirties and forties Ms Eckl was employed at Citibank in property settlements. Ms Eckl told Ms Sarah Jones, a clinical psychologist ‘I was never scared of work. I worked hard.’^[3]
6. [6]
   More recently Ms Eckl has been employed in the accounting and legal assistant field. She is currently unemployed – which appears to be the first time she has not been in gainful appointment. I will return to Ms Eckl’s employment status in a moment.
7. [7]
   Ms Eckl currently lives in rented accommodation. She lives with and looks after her husband, who is now in his 80s. She also lives with and looks after her daughter, Linda, and Linda’s partner, Grant Packman. Ms Eckl has long provided financial and other types of support to all three members of her household.^[4] She cares for her husband who has heart problems, and she helps care for and cover expenses for Linda who has chronic back pain and is unable to work. She helps care and cook for her son-in-law who suffers from anxiety and panic attacks.
8. [8]
   As will be explained, the fact that Ms Eckl and her family now live in rented accommodation is of some significance. Ms Eckl and her husband lost their life savings by reason of a scam. The result is that they now live in rented accommodation.

Procedural History

9. [9]
   On 25 February 2022 an indictment was presented charging Ms Eckl with the following five counts:

Count One: Between about the 1st day of May 2019 and the 12th day of June 2019 at Brisbane City and elsewhere in the State of Queensland ROSSE ECKL dealt with money or property that was, and that ROSSE ECKL believed to be, proceeds of crime and at the time of the dealing, the value of the money was $100,000 or more.

Count Two: Between about the 30th day of September 2019 and the 11th day of October 2019 at Brisbane City and elsewhere in the State of Queensland, ROSSE ECKL dealt with money or property that was, and that ROSSE ECKL believed to be, proceeds of crime and the time of the dealing value of the money or property was $1 million or more.

Count Three: On the 4th day of December 2019 at Brisbane City or elsewhere in the State of Queensland, ROSSE ECKL dealt with money or property that was, and that ROSSE ECKL believed to be, proceeds of crime and at the time of the dealing the value of the money or property was $100,000 or more.

Count Four: On the 28th day of January 2020 at Brisbane City or elsewhere in the State of Queensland, ROSSE ECKL dealt with money or property that was, and that ROSSE ECKL believed to be, proceeds of crime and at the time of the dealing the value of the money or property was $1,000 or more.

Count Five: On or about 31st day of July 2020 at Brisbane City and elsewhere in the State of Queensland, ROSSE ECKL dealt with money or property that was, and that ROSSE ECKL believed to be, proceeds of crime and at the time of the dealing the value of the money or property was $50,000 or more.

10. [10]
    At the first review on 23 February 2022, Ms Eckl’s solicitors applied for and obtained leave to withdraw as the solicitors for Ms Eckl. At that review, and at every monthly review thereafter, Ms Eckl was self-represented.^[5] Ms Eckl was arraigned on 9 November 2022. She pleaded not guilty to all 5 counts.
11. [11]
    Ms Eckl attempted to obtain legal representation.^[6] She applied for legal aid on 1 April 2022, but that application was refused on the ‘means’ grounds. She sought reviews of that decision which were also refused.^[7] As Ms Eckl’s attempts to obtain legal representation were unsuccessful, she represented herself at the trial and she did so without any legal assistance and without even the assistance or support of a family member or friend.
12. [12]
    At the outset of the trial, I noticed that Ms Eckl did not have the lever arch files comprising the relevant bundles of evidence. When I asked her why she did not have those folders she explained that she had been unable to carry them on the bus to court. A spare copy was supplied by the Commonwealth Director of Public Prosecutions. However, the incident reinforced the overall impression that, at the trial, Ms Eckl was a fish out of water. I mention that because Ms Eckl has been diagnosed with an acute stress reaction to her court matters.^[8] The trial process has had a significant impact on Ms Eckl.   
13. [13]
    It is regrettable that a defendant, facing a complex Supreme Court trial of five money laundering charges, including some complicated financial evidence, was unable to obtain any legal or other assistance at all. Of course, an accused person does not have a right to representation in a criminal trial.^[9]
14. [14]
    The trial ran for seven days. At its conclusion, on 21 March 2023, the jury found Ms Eckl guilty of all five charges. Neither counsel for the Crown nor Ms Eckl were ready to proceed with sentencing. Subsequently, a sentencing hearing was held on 22 June 2023 and Ms Eckl’s bail was extended.
15. [15]
    There is an odd twist to Ms Eckl’s attempts to obtain legal representation. Even though she had been charged with serious offences, Ms Eckl’s employers continued to employ her. However, once she was found guilty, Ms Eckl’s employers suspended her employment.^[10] That had the consequence that Ms Eckl became eligible for legal aid. Ms Eckl was represented at the sentencing hearing by Mr C Tessmann, counsel instructed by Legal Aid Queensland. The Crown was represented both at the trial and the sentencing hearing by Mr P Bolster, instructed by the Commonwealth Director of Public Prosecutions.  

The Background to the Offences

16. [16]
    In 2010 Ms Eckl was the victim of a sophisticated financial scam. She and her husband lost $600,000 – their life savings.^[11] During the course of the trial the investigating police officer acknowledged that a home owned by Mr and Ms Eckl at The Gap was no longer the Eckl family’s residence.^[12] As they now rent, it seems likely that they lost the house they owned and lived in at The Gap. Shortly after her mother’s death, Ms Eckl recalls receiving regular telephone calls from a stranger who purported to be a Nigerian politician.^[13] He convinced her to transfer money to assist the ‘needy and poor’ people within his community. Initially, Ms Eckl transferred a few hundred dollars at a time, but the deposits later grew to be between $20,000 to $25,000 dollars each transaction, resulting in the eventual loss of $600,000.^[14] In 2015, Ms Eckl attended the police station in relation to a money laundering investigation involving different complainants than the ones who led to her eventual charge in 2020.^[15] During this police interview, Ms Eckl confided that she herself was a victim of a scam in 2010.
17. [17]
    The Crown’s submissions only mention this 2010 scam in passing. It is mentioned for the purpose of illustrating that Ms Eckl stood to gain from her participation in the offences:

Here, Ms Eckl’s stated motivation was to enable her to recover money she had lost in a previous scam where she was the victim. It must follow that Ms Eckl was involved for the purposes of her own gain, based on the scale and duration of her activities, her involvement in the set-up of the bank accounts and participation in layering of the funds, and the amounts of money involved.^[16]

18. [18]
    For reasons I will explain, I am not satisfied that is a fair characterisation of Ms Eckl’s motivations.

The Five Offences

19. [19]
    Each of the five offences followed a similar pattern. The offences are explained in some detail in the Crown’s submissions.

Count 1

20. [20]
    Count 1 involved Tellus Holdings Ltd, an Australian company establishing geological waste depositories in Australia. One of Tellus’ contractors was GR Engineering. On 24 April 2019 Tellus received a letter via email purporting to be from GR Engineering. The letter was from a deceptively similar email domain name (gres-au.com versus the actual domain of gres.com.au). The letter requested that the bank account details that Tellus had recorded for GR Engineering be updated to a National Australia bank account. Tellus duly changed those bank details. The result was that a legitimate invoice from GR Engineering to Tellus for $205,866 was paid by Tellus into the false GR Engineering National Australia bank account on 1 May 2019.
21. [21]
    The National Australia bank account was an account that Ms Eckl had opened on 1 October 2018 in the name of H & R Eckl Pty Ltd. After receipt of the $205,866 and advising the National Australia Bank that she was reinstating the company, Ms Eckl effected transfers of the $205,866 in various ways, some to overseas accounts and some to other accounts that were operated by Ms Eckl, some to accounts operated by other people and some in cash and ATM withdrawals.
22. [22]
    When she was interviewed by the police Ms Eckl said that she distributed the money in accordance with the instructions of Mr Andy Morris.

Count 2

23. [23]
    Count 2 involves almost identical facts to Count 1. The complainant in this count was Eurotainer SA, a global leasing company based in France. Eurotainer is a client of Sydney based company, Omni Tanker Pty Ltd. In August and September 2019 Eurotainer received two invoices from Omni Tanker by email for the purchase of specialised ISO Tank containers, totalling $1,164,000. On 23 September 2019 Eurotainer received an email which purported to be from Luke Djukic, the Chief Technical Officer of Omni Tanker. Again, the correspondence was sent from a similar domain address, @ornitanker.com, instead of @omnitanker.com. The email requested that any outstanding invoices be paid to the business’ subsidiary bank account and provided details of a Bankwest account. On 30 September 2019 Eurotainer paid $1,164,000, the amount payable pursuant to the invoice, to the Bankwest account.
24. [24]
    The Bankwest bank account was held in the business name Orchid Tech Services. This business name was registered Ms Eckl’s name on 7 August 2019. The money left the Bankwest account in a variety of ways. Ms Eckl withdrew the sum of $16,000 through six ATM and branch withdrawals. She then split the balance across other accounts controlled by her, before paying money to 12 third party accounts across 21 separate transactions.
25. [25]
    When questioned by police on these transactions, she said that she was acting on instructions from ‘Kumar’.^[17] When a search warrant was exercised in August 2020, police located notes with the amounts of $1,163,900 and $250,000. When asked about the notes, Ms Eckl said that Mr Morris “asked [her] to do that”.

Count 3

26. [26]
    Count 3 involved Sir Moses Montefiore Jewish Home (SMMJH), a residential aged care facility in Sydney. On 29 November 2019 SMMJH received a Grant of Probate for Edith Faux, a resident of SMMJH who passed away on 28 July 2019. SMMJH held a refundable accommodation deposit (RAD) on behalf of Ms Faux which became payable to her estate on her demise. On the same day, SMMJH received an email from the domain [email protected] advising that they were the law firm acting on behalf of the estate of Ms Faux. A reply email was sent from SMMJH requesting the firm’s bank account details. Later that day, SMMJH received an email with bank account details in response. SMMJH responded advising that they could not pay the refundable accommodation deposit into details provided, as the account was not held in the name of the estate or the law firm acting on behalf of the estate. SMMJH received a further email from the domain name [email protected], requesting that the RAD be transferred into a Westpac account in the name of “Deustsch Miller Law Practice”.
27. [27]
    In fact, this account was not associated with the firm Deutsch Miller, but instead was an account held by Rosse Eckl trading as Orchid Tech Services. Ms Eckl was the sole signatory to this account.
28. [28]
    On 4 December 2019 SMMJH transferred the RAD of $911,529 into the Westpac account. Fortunately, once the parties became aware that the email enclosing the account details had been compromised, the banks were immediately notified. Ms Eckl’s account was blocked by the bank on 28 December 2019. On 2 January 2020 the amount of $911,509 was deposited back into SMMJH’s account. On the same day, Ms Eckl sent Mr Morris two text messages requesting he immediately call her as the money put into her account was reported as stolen. 

Count 4

29. [29]
    Count 4 again involved SMMJH. However, this time it was for incoming patient Maureen Malpas. Mr Aidan Malpas, Ms Maplas’s husband and the holder of a power of attorney for Ms Malpas, liaised with SMMJH in order to secure accommodation for Ms Malpas at the aged care facility. On 14 January 2020 Mr Malpas received an email from the domain name [email protected]. Mr Malpas understood this to be the email address of Shirley So, an employee of SMMJH. The email advised that the RAD of $850,000 was to be paid to a St George bank account. Mr Malpas was in the process of gathering funds for the RAD when he received an additional invoice of $2,673 for respite care. Mr Malpas collected this invoice in person from SMMJH. Mr Malpas paid the collected invoice to the St George bank account details provided on 14 January 2020. On 19 February 2020 Mr Malpas transferred the RAD of $850,000 to the same St George bank account. Mr Malpas telephoned Ms So shortly after transferring the money. During that telephone conversation Ms So said that SMMJH did not bank with St George. By that means they both discovered that the email enclosing the St George account details was fraudulent. Mr Malpas immediately returned to the Citigroup bank branch, and the transfer was stopped.
30. [30]
    The St George account was again held in the name of Rosse Eckl trading as Orchid Tech Services. On 18 March 2020 the amount of $2,663 was transferred out of Ms Eckl’s account and back into the Mr Malpas’s Citigroup account.

Count 5

31. [31]
    Count 5 involved Balco Australia. Balco Australia is a company that exports hay from growers in South Australia and Western Australia. Mr Stephen Kitschke was one of Balco’s hay growers. On 17 July 2020 Mr Andrew Lane, who at the time was the Chief Financial Officer of Balco, received an email from the domain [email protected] requesting that the bank details for SJ & VL Kitschke be updated. New bank account details for a Bank Australia account were provided. On Friday, 31 July 2020 Balco transferred the sum of $83,068 to the ‘updated’ bank account details. On the following Monday, Balco received a call from Mr Kitschke advising that he had not received payment. Mr Kitschke said he was not worried due to delays in banks transferring large deposits. However, by Wednesday of that week when the money had still not been received, police were notified. Again, this email was sent by a similar domain name, with Mr Kitchske’s actual email address being [email protected].
32. [32]
    The Bank Australia account was in the name of Rosse Eckl trading as My Family Investment. This business was also registered in Ms Eckl’s name.  On 13 August 2020 Balco received the exact amount transferred to the Bank Australia account into the company’s Rabobank bank account with the description “Deposit FRAUD REFUND”.
33. [33]
    Ms Eckl received the funds through her Bank Australia account on 31 July 2020, after she had been issued with a notice to appear on 20 July 2020 in relation to the other four counts. During the search warrant of Ms Eckl’s home on 19 August 2020, Ms Eckl told police that the Bank Australia account had been inactive since March 2019, but in the days leading up to the receipt of the funds, she regained access to the account by resetting her passwords. Ms Eckl again informed the police that this was on the instructions of Mr Andy Morris.

Sentencing Principles 

34. [34]
    Division 2 of Part 1B of the Crimes Act 1914 (Cth) is headed “General sentencing principles”. Section 16A provides:

16AMatters to which court to have regard when passing sentence etc.—federal offences

1. (1)
   In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

Note: Minimum penalties apply for certain offences—see sections 16AAA, 16AAB and 16AAC.

1. (2)
   In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

1. (a)
   the nature and circumstances of the offence;
2. (b)
   other offences (if any) that are required or permitted to be taken into account;
3. (c)
   if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
4. (d)
   the personal circumstances of any victim of the offence;
5. (e)
   any injury, loss or damage resulting from the offence;
6. (ea)
   if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim;
7. (f)
   the degree to which the person has shown contrition for the offence:

1. (i)
   by taking action to make reparation for any injury, loss or damage resulting from the offence; or
2. (ii)
   in any other manner;

1. (fa)
   the extent to which the person has failed to comply with:

1. (i)
   any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
2. (ii)
   any obligation under a law of the Commonwealth; or
3. (iii)
   any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;

about pre‑trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

1. (g)
   if the person has pleaded guilty to the charge in respect of the offence:

1. (i)
   that fact; and
2. (ii)
   the timing of the plea; and
3. (iii)
   the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;

1. (h)
   the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
2. (j)
   the deterrent effect that any sentence or order under consideration may have on the person;
3. (ja)
   the deterrent effect that any sentence or order under consideration may have on other persons;
4. (k)
   the need to ensure that the person is adequately punished for the offence;
5. (m)
   the character, antecedents, age, means and physical or mental condition of the person;
6. (ma)
   if the person’s standing in the community was used by the person to aid in the commission of the offence—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;
7. (n)
   the prospect of rehabilitation of the person;
8. (p)
   the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

35. [35]
    As s 16A(2) makes clear, that list of the factors to be taken into account is not intended to be exhaustive. It is necessary to carefully consider many of the factors in this case.
36. [36]
    Section 17A(1) of the Crimes Act 1914 (Cth) specifies what might be described as the last resort principle:

A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.      

37. [37]
    Of course, the starting point in considering what sentence to impose is s 16A(1) of the Crimes Act 1914 (Cth) which insists that: “… a court must impose a sentence … that is of a severity appropriate in all the circumstances of the offence.”^[18]

Maximum Penalties

38. [38]
    The maximum penalties for these offences are considerable, reflecting the community’s view that money-laundering is a serious offence. In respect of count one and three, pursuant to section 400.4 of the Criminal Code Act 1995 (Commonwealth) the maximum penalty is 20 years imprisonment or 1200 penalty units, or both. In respect of the most serious offence, count 2, the maximum penalty is 25 years imprisonment or 1500 penalty units, or both. In respect of count 4 the maximum penalty is five years imprisonment or 300 penalty units or both. For count 5 the maximum penalty is 15 years imprisonment or 900 penalty units, or both.

Circumstances

39. [39]
    The circumstances of the offending were explored in some detail during the course of the trial. As can be seen from the description of the five offences above, Ms Eckl received five sums of money acquired by the actions of scammers and, in respect of two sums (counts one and two), distributed that money in accordance with directions from the scammers. It can be assumed that Mr Morris was either the scammer, or one of the scammers. The same applies to Kumar.
40. [40]
    At the trial, the Crown did not allege that Ms Eckl participated in the scam or even that she knew that it was happening at the time. Her role was limited to receipt of the money^[19] and, in two of the five cases, distribution of the money to various bank accounts controlled by her in order to pay the money to third parties.^[20] Thus, she participated in the laundering of the money by the receipt into her bank accounts of five sums and by distribution of two of those sums.
41. [41]
    The circumstances raise two controversies. The first involves the nature of Ms Eckl’s participation in the scam. The Crown’s submissions included these paragraphs:

The various movements of cash enabled the defendant to receive, and, in the case of counts 1 and 2, distribute the money received to those who engineered the fraud. This was facilitated by a complicated, yet highly organised series of transactions which is known as “layering” through other accounts controlled by the defendant.

In the case of the first and second offences (“Tellus” and “Eurotainer”), namely counts 1 and 2 on the indictment, her distribution of the funds involved systematic transfer into and out of various bank accounts, all controlled by her. The result of this process led to the vast bulk of the funds ending up subject to transfers to multiple third parties, most of which were offshore and associated with Malaysian entities. In addition, there were a number of cash withdrawals, which took place at either bank branches or through ATM transaction by means of cards in the possession and control of the defendant.^[21] 

42. [42]
    The impression created by those submissions is that Ms Eckl was an active participant in the scam. It is true that Ms Eckl lent her bank accounts to the scammers’ cause. She also distributed the money the subject of counts 1 and 2. The evidence^[22] is that she did that pursuant to the instructions of Mr Morris or Kumar.  
43. [43]
    The second controversy involves the issue of whether Ms Eckl received a financial benefit from the scam. With one minor exception which I will come to, there is no satisfactory evidence that Ms Eckl received a personal benefit from the scam.^[23] Her motive for receiving the money, and in two cases distributing the money, was that Mr Morris had promised that he would assist her in recovering money that had been scammed from her 2010.
44. [44]
    However, the Crown’s sentencing submissions were that Ms Eckl in fact received a benefit. After making the submission quoted in paragraph 16 above, the Crown submissions continued:

Whilst the precise quantum of Ms Eckl’s financial benefit is not known, the defendant obtained at least $80,000 in cash withdrawals. The financial benefit to the defendant should nevertheless be regarded as an aggravating factor.^[24]

45. [45]
    Thus, the Crown written submission is that the court should infer that Ms Eckl benefitted to the extent of up to $80,000. The submission was pursued at the sentencing hearing.^[25] However, the evidence that might be said to support that submission is rather thin. It is true that there were cash withdrawals, both from branches and from ATMs. However, in evidence tendered by the Crown, Ms Eckl explained to police that she withdrew money and handed the cash to others she met in accordance with Mr Morris’ instructions. Normally, the court would be sceptical about that type of evidence. However, the police evidence did not establish that in fact Ms Eckl took ultimate possession of the cash. There is no evidence that she had cash on the premises when the police executed the search warrant. She was not found to have engaged in any relevant purchases after the cash withdrawals. As defence counsel put it in his submissions, Ms Eckl did not engage in this conduct to lead an ‘extravagant lifestyle’.^[26] As the Crown conceded at trial, there is no evidence she used any of the money herself.^[27] And, at the relevant time there was evidence of Ms Eckl’s financial situation being such that she raised money via Cash Converters.^[28]
46. [46]
    And so, there is no satisfactory evidence that Ms Eckl benefitted from the various transactions.
47. [47]
    There is one exception. During the course of receiving instructions from Mr Morris or Kumar, Ms Eckl said that she was suffering from an acute dental health issue and that she did not have the money to pay for a dentist. She was told she could extract $300, and a further $1000 from the funds in order to pay for a dentist.^[29] She readily admitted that she did so.
48. [48]
    That exception is illuminating. Only when she was expressly given permission did Ms Eckl take a benefit for herself. She otherwise followed her instructions. Ms Eckl was not one of the scammers. It was not her criminal enterprise. Her role was to follow the instructions of others, including providing the facility of her bank accounts.        
49. [49]
    The fact that Ms Eckl received little or nothing from the scam is all the more surprising given the amount of money that was laundered. Count 1 involved the receipt of $205,866 which Ms Eckl then distributed in accordance with her instructions. Count 2 involved $1.164 million which Ms Eckl distributed in amounts of as much as $250,000.
50. [50]
    That she earned little or nothing from scams of those proportions rather illustrates three points relevant to sentencing. The first is that, whilst she was the instrument used by the scammers, she was not one of the people who profited from the enterprise. The second is to reinforce an impression I gained at trial that Ms Eckl’s personal traits include a willingness to assist others – an aspect I will return to shortly. The third is that Ms Eckl had a blind and almost certainly irrational belief that the scammers would honour their promise to help her recover the money that she had lost. As Detective Robertson frankly acknowledged during the trial, there was a tone of desperation to Ms Eckl’s communications with the scammers.^[30]

Nature of the Offences and the Amounts involved

51. [51]
    Money laundering on the scale involved here is of significance. The Crown referred me to R v Huang and Siu.^[31] Two passages from that case are particularly relevant. In the following passage the court acknowledges the significance of the amount of money involved:

The amount of money involved is clearly a highly significant matter because the legislation uses it as the principal means of dividing the offences into categories and it is the primary identifier of what is the maximum penalty for an offence. The only difference between an offence falling within s 400.3(a), and carrying a maximum penalty of 25 years, and an offence falling within s 400.4(a), and carrying a maximum penalty of 20 years, is the amount of money or the value of the property with which the offender dealt.^[32]

52. [52]
    The court went on to explain that:

We are of the opinion that in the case of each of the respondents his criminality fell generally within the midrange of offending covered by the relevant sections. Money laundering on the scale in which both respondents were involved should be considered as serious criminal activity that is at the very heart of organised, professional crime syndicates. It warrants severe punishment not the least in order to reflect general deterrence of a very significant degree. When the activity is engaged in for profit, over a significant period of time and with a large number of transactions, the prior good character of the offender is of less significance than might otherwise be the case.^[33]

53. [53]
    As explained, the sums involved here were very significant, and Ms Eckl’s role facilitated serious and organised criminal activity. The jury’s finding was that Ms Eckl knew that the money she dealt with was the proceeds of crime. That said, to properly consider this aspect of ‘profit’ and ‘prior good character’ discussed in R v Huang and Siu, it is necessary to more closely examine Ms Eckl’s role.

Ms Eckl’s Role

54. [54]
    I accept the Crown’s submission that a critical consideration is to determine what Ms Eckl actually did in participating in the offence, including the time period involved, her level of authority, her subjective state of mind, the amount of money involved, and the planning and secrecy involved.^[34]
55. [55]
    The Crown referred to Ansari v R where Howie J said:

It is likely that an offender before the court for sentencing for an offence within the Division will be a person facilitating the laundering of the money or actually involved in that process, rather than the owner of the money or the beneficiary of the laundering. The prosecution may not be able to show that the offender knew of the source of the money or its ultimate destination. In Assafiri v R [2007] NSWCCA 159 an analogy was drawn between money laundering offences and drug importations in that both types of offences usually reveal a hierarchy of persons involved in the conduct who have different roles to play and different gains to be made from the commission of the crime. The most important consideration in sentencing an offender for an offence under this Division will be to consider what the offender did, because there may be little or no evidence before the court as to the organisation behind the offence, the source of the funds or the ultimate use to made of them: see R v Olbrich (1999) 199 CLR 270 at [19]. [emphasis added]

56. [56]
    For present purposes, it is important to note the Crown’s submission that Ms Eckl’s role was “multifaceted, deliberate, premeditated and trusted, forming an essential part of organised criminal activity.” I reject that characterisation of Ms Eckl’s role. A proper characterisation of Ms Eckl’s role is that she provided access to bank accounts which facilitated the criminal enterprise, and she made the numerous transfers of money she was instructed to make. She did what she was told. She did it in the naïve hope that the scammers would assist her to recover the money she had lost.
57. [57]
    The Crown’s characterisation of Ms Eckl’s role continued:

In particular, Ms Eckl received lump sum deposits of money, derived from various online hacker scams, kept in constant communication with the hackers, layered and distributed the money, as directed, across multiple bank accounts, which she opened for the sole purpose of dealing with the proceeds of crime, she set up companies to disguise the offending, she personally made deposits and withdrawals of cash and arranged international money orders, and then effected bulk transfers to overseas accounts (counts 1 and 2).

The scale and planning of Ms Eckl’s activities, the amounts of money entrusted to her, and her possession of the various bank cards, demonstrate a high degree of responsibility and understanding within the money laundering syndicate.^[35]

58. [58]
    That is not a fair submission. It is a broad smear not anchored to the evidence. For example, the “constant communication” the Crown refers largely comprised either instructions to Ms Eckl or her seeking assistance to recover the money she had lost. The Crown do not identify any communication or conduct that showed that Ms Eckl held any position of responsibility within the money laundering enterprise. The Crown do not point to any evidence that suggests Ms Eckl had a planning role or that she participated in the deceit that was at the heart of each of the scams. And it is something of an overstatement to say that Ms Eckl opened multiple bank accounts for the sole purpose of dealing with the proceeds of crime. Existing accounts were used although it may be that some were opened on instructions. For count 1, for example, the National Australia bank account was an account that Ms Eckl had opened on 1 October 2018, quite some time before the events the subject of the offences. She opened the account in the name of H & R Eckl Pty Ltd for the purposes of her own proposed business.
59. [59]
    There is another factor that is relevant here. Why would Ms Eckl, a woman with no criminal history, assist criminals engaged in this email scam? The explanation, or at least part of the explanation, is contained in the expert report of Ms Sara Jones:

The culmination of her early life familial and culturally normative abuse, and religious expectations of her role in the family (and also the expectation to place others needs first and acquiesce to others), likely contributed towards the formation of negative thought processes that likely diminished her self-worth, and encouraged the formation of behaviours in which she appeared unable to assert her needs to others, and was more vulnerable to the manipulation of other(s) also, especially if she was to believe the other was in need of support. This pattern of cognitive biases, combined with the propensity to be easily manipulated by others, and in the context of limited assertiveness skills, that she was the victim of the initial financial scam of the Mr Green, the ‘Nigerian Politician’ who used emotional manipulation to fleece money from her. It appeared be that immediately after this that she was contacted by Mr Morris’ associate at the Irish Bank, that she was later the victim of further manipulation. This indicated that she was further insightless at the time of Mr Morris’ motivation, and therefore did not question his legitimacy in depth, and she continued with the offending. At the time of the offending, Ms Eckl likely met criteria for an Other Specified Personality Disorder, with Cluster C traits. Ms Eckl’s offending behaviour also appears to have occurred in context of her heightened emotional distress (due to ongoing guilt and bereavement over the death of her mother, and the want to have her money returned to her), and in context of her underlying propensity to be easily misled by others.^[36]

60. [60]
    Ms Jones’ reference to “Other Specified Personality Disorder, with Cluster C traits” is a reference to a disorder categorised by DSM-V as symptoms characteristic of a personality disorder that causes clinically significant distress or impairment in social, occupational or other important areas of functioning.^[37]
61. [61]
    The factors discussed above are some of the features that make this case unique. Ms Eckl’s participation by providing the use of her bank accounts in order to receive money, and by executing transfers, was an essential component in the criminal enterprise. But there is a strange element of passivity to Ms Eckl’s conduct, especially having regard to the absence of a profit motive – discussed below.  

Financial Gain?

62. [62]
    As explained, except for the dental expenses, Ms Eckl did not profit from her involvement in the money laundering.
63. [63]
    There is insufficient basis for the court to infer that Ms Eckl took any of the cash. The Crown’s evidence does not establish such an inference.
64. [64]
    The Crown alleged that, because Ms Eckl’s motivation was to obtain assistance to recover the money she had lost in the 2010 scam, she was involved for the purposes of her own gain.^[38] Ms Eckl had lost what can be fairly described as the family’s life savings. Such a motivation, where the objective is to recover what has been lost, is certainly a monetary motivation. But it is different from a situation where a person participates in a criminal enterprise for the purposes of earning a profit. The motivation here can be contrasted with the description given to the offender’s conduct in R v Columbus where Keane JA described the offender as engaging in a “dishonest pursuit of easy money inspired by greed, rather than a response to financial pressure or real need.”^[39]
65. [65]
    Having regard to those considerations of Ms Eckl’s role and the absence of any substantive financial gain, the court declines the Crown’s invitation to place a lower reliance on Ms Eckl’s prior good character. Simpson, Howie and Hislop JJ’s remarks in R v Huang and Siu were said in a context in which the respondents were prepared to engage in the conduct to obtain profit from the criminal enterprise. Ms Eckl’s conduct, although involving numerous transactions over the course of just over a year, was not of the same character.

Antecedents

66. [66]
    Ms Eckl has no criminal history. She has resided in Australia since 1975. She has an unblemished record. This incident appears to be an aberration in an otherwise law-abiding existence in the community.
67. [67]
    More than that, as the personal references confirm, Ms Eckl provides financial and other care and support for her family. She has done that for a lengthy period of time. The court ought not ignore the significant benefit of Ms Eckl’s role as a carer and financial supporter of her family.
68. [68]
    I am conscious that one of the factors to be considered in arriving at a sentence is the probable effect that any sentence under consideration would have on any of the person’s family or dependants.^[40] For a long time, commencing with R v Sinclair,^[41] a 1990 decision of the Full Court of the Supreme Court of Western Australia, Australian trial and intermediate courts have accepted that the probable effect of a sentence on dependants is relevant only in exceptional cases. As counsel for the Crown described it, such an approach involves reading s 16A(2)(p) as if it were preceded by the qualifying words “in an exceptional case”.^[42]  The Queensland Court of Appeal took a similar approach in R v Huston, Fox & Henke; ex parte Director of Public Prosecutions (Cth).^[43]
69. [69]
    Last year, however, in Totaan v R,^[44] the New South Wales Court of Criminal Appeal decided that the line of cases commencing with R v Sinclair were plainly wrong. The Court decided that it was not necessary for an offender to establish that the circumstances of hardship must rise to the level of ‘exceptional’ and that s 16A(2)(p) should be applied according to its terms. Totaan has now been followed by the Victorian Court of Appeal in Mohamed v R.^[45]
70. [70]
    In my view the logic of Totaan v R is compelling.^[46] The words of s 16A(2)(p), when read with the chapeau, require the sentencing court to take into account the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants. Those words do not include any limitation to exceptional circumstances. There is also the practical problem identified in R v Constant:

An assertion of exceptional circumstances contemplates a discernible norm — the routine or ordinary outcome — in relation to which the asserted circumstances may be compared and the question determined whether they do in fact answer the description of being exceptional. What is the norm and when is a departure from that norm exceptional?^[47] [footnotes omitted]

71. [71]
    Thus, the question is posed: ‘when does the effect of a sentence on dependants qualify as exceptional?’ Does exceptionalism depend on the number of dependants, or their age, or their vulnerability, or the degree of dependence, or a combination of those factors? A court exercising its sentencing discretion can assess those factors, but it is an invidious task to try to assess whether the plight of the dependants can be plotted as falling above or below a delineation of exceptional, and, taken into account only if above that notional line.  
72. [72]
    However, whatever my views, as a trial judge I am bound to follow the Queensland Court of Appeal decision in R v Huston, Fox & Henke; ex parte Director of Public Prosecutions (Cth). To be considered, the circumstances of hardship for Ms Eckl’s dependants must rise to the level of ‘exceptional’.
73. [73]
    The circumstances here meet that threshold. There is a significant dependence on Ms Eckl by the three members of her immediate family. That is a burden Ms Eckl has borne for some years. Mr Eckl’s letter explains how bleak his blight will be if his wife is incarcerated.^[48] Further, as explained in the next section, Ms Eckl’s family would experience significant hardship if she were placed in custody or deported.    

Visa cancellation - effect on sentence

74. [74]
    Although Ms Eckl has lived in Australia for her entire adult life, she is not an Australian citizen. If Ms Eckl is sentenced to more than 12 months imprisonment and is required to serve this sentence on a full-time basis, the Minister must cancel her visa.^[49] This would mean, on release from custody, Ms Eckl would be detained in immigration detention pending either an outcome for a revocation of cancellation decision, or her transfer back to Malaysia. I reject the submission made by the Crown that it is irrelevant to consider the risk of deportation in sentencing. Philippides JA in R v UE states:

74. [16]
    It is undoubtedly correct that, in an appropriate case, the prospect of deportation may be a relevant factor, personal to the offender, to be considered in mitigation of sentence. The prospect of deportation may affect the impact of a sentence of imprisonment, because it makes the period of incarceration more burdensome, and also because upon release, the fact of imprisonment will result in the offender being deprived of the opportunity of permanent residence in Australia. While the prospect of deportation may be a relevant mitigatory factor, the sentencing court cannot be asked to speculate about that prospect or as to the impact of deportation on the offender. Proof that deportation will in fact be a hardship for the particular offender will be required.^[50] [citations omitted].

75. [75]
    There is substantial evidence that Ms Eckl will be caused hardship if deported. Ms Eckl is 68 years of age. She has a shoulder injury as well as anxiety, depression and acute stress.^[51] Both her physical and psychiatric conditions would make time in custody or in immigration detention difficult. Ms Jones’ report provides that if a custodial sentence is imposed on Ms Eckl, she will require regular mental health supervision as her mental health is likely to decline. Mental health supervision is unlikely to be available in immigration detention, which would hinder Ms Eckl’s prospects of rehabilitation. As mentioned, she has spent her whole adult life in Australia and, if deported, would not be afforded the ability to spend her remaining years in Australia with her husband, daughter and son and law. Deportation would gravely affect Ms Eckl’s family. Mr Heinz Eckl explains this impact in a letter provided to the court:

We live in a share rented house with my daughter Linda and Grant. We are a close family unit. My wife is one of the main contributors. If that unit is torn apart we will not financially be able to keep our rented house. We depend on her, without her around, we will find it difficult and devastating. I have no other family in Australia except for my wife & Linda & Grant. I will be totally alone if my wife is not with me.

… I am not sure how long I will get to live. I love my wife very much & she is part of me, she is my carer and takes me to the hospital for my heart problems & I will be alone during my final years without her.^[52]

76. [76]
    As well as providing support to her husband, Ms Eckl cares and supports her daughter, Linda and son-in-law Grant by cooking meals for them and providing financial assistance.^[53]
77. [77]
    Ms Eckl has worked hard in Australia for her whole adult life and has a loving relationship with both her husband, daughter and son-in-law. Her mother and father have both passed away and the continuing family ties to Malaysia are with her sister.^[54] I am therefore satisfied that Ms Eckl and her family would experience hardship as a result of deportation and consider this to be a mitigating factor on the sentence.

Co-operation with Authorities 

78. [78]
    Whilst Ms Eckl pleaded not guilty, and there was a trial of all five counts with consequent waste of public resources, it must be acknowledged that Ms Eckl cooperated fully with police. That is plainly evident in the audiotapes of the execution of the search warrant in August 2020. Amongst other incidents of cooperation Ms Eckl supplied passwords to electronic devices, she explained the various banking records and she fully participated in interviews with police. She supplied information where necessary.

Prospects of rehabilitation and deterrence

79. [79]
    In relation to Ms Eckl’s prospects of rehabilitation, the Crown makes this submission:

Based on Ms Eckl’s continued offending despite warnings from police, it is submitted that the Court should be cautious about finding that she has good prospects of rehabilitation or that she is unlikely to re-offend. There is little insight on her part as to her involvement and the seriousness of her conduct.^[55]

80. [80]
    The warnings referred to in this submission are canvassed later in Mr Bolster’s submissions for the Crown and can be divided into two categories. The first category comprises warnings that are alleged to have occurred pre-offence in the police interview Ms Eckl attended in 2015. The second category comprises warnings received which intwine with the counts on the indictment.  
81. [81]
    Turning to the first category, the Crown’s reliance on the warning given in 2015 was a live issue in the trial. During the trial, the Crown admitted into evidence an interview between Ms Eckl and Detective Robertson. The Crown submitted that this interview proved the previous warnings police had given her in 2015 against engaging in money laundering. During an exchange I had with Detective Robertson in the trial, Detective Robertson conceded that she and Ms Eckl were at cross purposes when she put to Ms Eckl that she had previously engaged in money laundering in 2015. Mr Bolster and I had this exchange after Detective Robertson’s evidence:

HIS HONOUR: But – sorry – the two 2015 incidents really concern me because it does seem as if the police officers and Ms Eckl were at cross purposes. She was saying – as I apprehended, she was saying, “I have lost money. Money has – my money has gone overseas”. Whereas the officer seemed to be saying – suggesting that she was receiving money from overseas, and I don’t know that that – because we don’t have any direct evidence about 2015, I’m not sure I can resolve any of that, can I?

MR BOLSTER: No, at the moment your Honour can’t. I can tell your Honour that that will be a live issue if Ms Eckl gets into the witness box and there are issues that I want to pursue with her about that. [emphasis added]

82. [82]
    Ms Eckl did not give evidence so was not cross examined by Mr Bolster. It seems then, there is no evidence, or at least no sufficient evidence from which the court can conclude that Ms Eckl was actually given a warning or that she understood that she was being given a warning by police in 2015 in relation to money laundering. The highest it can sensibly be put is that there was no direct evidence about what happened in 2015, and, even taking into account the indirect evidence, there was a confused communication between the police and Ms Eckl in 2015.
83. [83]
    The second category of warnings comprise of a record of interview on 9 January 2020, before counts 4 and 5 were committed and police attendances at Ms Eckl’s residence on 13 July 2020 and 20 July 2020 prior to her committing count 5. I accept that the timing of these warnings was such that Ms Eckl should have been deterred from engaging in the latter counts on the indictment. However, I do not accept that these warnings suggest that Ms Eckl is at a high risk of re-offending or that she has low prospects of rehabilitation. There has been a significant amount of water that has passed under the bridge since those warnings in 2020. Ms Eckl has since undergone the criminal trial process, from which she was diagnosed with acute stress reaction. She has also since attended upon Ms Sara Jones, psychologist, who provided the court with a pre-sentencing report dated 4 May 2023. The pre-sentencing report, contrary to the Crown submissions, suggests that Ms Eckl is at low risk of re-offending. This report ought to be given considerable weight as it assesses Ms Eckl’s risk of re-offending at the time of sentencing in 2023, as opposed to in the midst of the criminal conduct engaged in by Ms Eckl in 2020.
84. [84]
    Ms Jones reports that rehabilitation would be more difficult within the confines of the prison environment and predicts a decline in Ms Eckl’s mental health if she were incarcerated.^[56]
85. [85]
    Both the Crown and Ms Eckl’s counsel concur that Ms Eckl should serve an actual term of imprisonment. The Crown insists that with protection of the community and general and specific deterrence as paramount sentencing considerations, actual imprisonment is the only outcome.
86. [86]
    However, I am not satisfied that this is the case. Ms Jones’ report suggests that Ms Eckl would benefit from structured therapy and being able to continue with pro-social aspects of her life.  It seems to me that the community would be better protected if Ms Eckl was afforded the opportunity to engage in rehabilitation. There is little utility in stinting Ms Eckl’s chances of rehabilitation by placing her in custody where her mental health will only deteriorate. Undoubtedly, money laundering is a serious offence which demands both general and specific deterrence. However, as I have explained, the stronger evidence suggests that Ms Eckl poses a low risk of re-offending. Further, it is misplaced to conclude that a wholly suspended sentence has no role as a general or specific deterrent.^[57]

Yardstick Authorities

87. [87]
    It is appropriate to undertake a broad survey of the cases that might provide a guide or yardsticks for the penalty to be imposed in this case.

Crown Schedule Cases

88. [88]
    The Crown’s submissions included a schedule of six comparative appellate decisions. The first is Ansari v R.^[58] That case, like this, involved a defendant who pleaded not guilty but was convicted after a trial. The facts are described by Howie J (with whom Simpson and Hislop JJ agreed) in this way:

74. [42]
    The appellants were directors of a money exchange business in Sydney known as Exchange Point Pty Ltd (Exchange Point). The first count concerned the dealing by the appellants with over $2 million in cash delivered to them by Z in October 2003.
75. [43]
    Z gave evidence that his nephew and other associates in Romania recruited him in mid-2003 to travel to Australia for the purpose of dealing with money in which they had an interest. He arrived in Australia on 3 October 2003. He received instructions by phone from Romania and in consequence went to an apartment in Bondi. There he took possession of cash exceeding $2 million from the back of a floor safe located in that apartment. Over a ten-day period he personally delivered this cash to the appellants at Exchange Point. Z then hired a removalist and had the safe transported to a warehouse storage facility. He departed Sydney on 14 October 2003.
76. [44]
    Within two days of Z's departure the appellants arranged for an associate, Sadiq Habiburahman, to attend at Exchange Point for the purposes of depositing the money received by them from Z into various bank accounts. He did this over a period of several months, depositing the money in sums of less than $10,000. Between 16 October 2003 and 13 May 2004 he banked a total of $1,952,107 on behalf of the respondents.
77. [45]
    The second count related to a second visit to Sydney by Z in June 2004. However, prior to that visit police had been lawfully intercepting phone conversations between the appellants and Jaleel Ansari in France from October 2003. These involved Jaleel’s contact with an unidentified female named “Usha”. In January 2004 there were emails sent by the appellant Azees to Usha making arrangements for her to meet with Jaleel. Two intercepted telephone calls in January have Usha telling Azees that she was “sending somebody again in the future”.
78. [46]
    Z returned to Australia on 23 June 2004. He attended once more at Exchange Point where a listening device was in place. He was recorded speaking to both appellants. During the conversation Azees asked Z, “Any idea how much?” to which Z replied, “Two, maybe three”. He indicated that it would take longer this time.
79. [47]
    Z gave evidence at the trial that he understood that he would be delivering between $2 million and $3 million to the appellants as he had done in October 2003. However, Z and the appellants were arrested before Z could obtain the money which apparently was to come from the sale of drugs.^[59]

89. [89]
    The NSW Court of Criminal Appeal allowed the Crown appeal on sentence. The trial judge’s sentence of 4 years imprisonment was found to be manifestly inadequate, and the offenders were re-sentenced to 7 years with a non-parole period of 5 years and 5 months.
90. [90]
    Howie J summarised the culpability of the offenders:

1. [132]
   The Judge with respect correctly identified the appellants as principals in the scheme to launder the money they received, or were to receive, from Z. They were at the very heart of the conspiracies alleged. But more than that they were intelligent professionals who were engaged in an apparently legitimate finance business used as a cover for dealing with money reckless as to unlawful use to which it might be put, and no doubt relying upon their expertise and business connections to commit their offences. Regardless of what they knew about the source of the money or its ultimate destination, their conduct involved a substantial degree of criminality within the scope of the section. It was obvious that the offences were committed by the appellants for profit and apparently motivated by greed.^[60] [emphasis added].

91. [91]
    Those facts are a far cry from the facts here. Ms Eckl can hardly be described as a principal in the scheme or at the very heart of the conspiracies alleged. Nor could it be said that she was motivated by profit or greed.^[61]
92. [92]
    The second case relied on by the Crown is Betka v R; Ghazaoui v R; Hawchar v R.^[62] Ghazaoui and Hawchar were charged pursuant to s 404.4(1) of the Criminal Code Act 1995 (Cth) with dealing with money to the value of $100,000 or more intending that it would become an instrument of crime, by structuring cash deposited into various bank accounts across Sydney in amounts less than $10,000 to avoid the reporting requirements in the Anti-Money Laundering and Counter-Terrorism Financing Act on transactions of $10,000 or more.^[63] Betka was charged pursuant to s 400.3(1) of the Criminal Code with jointly committing the offence of dealing with money to the value of $1,000,000 or more with Ghazaoui and Hawchar and with three other co-offenders intending that the money dealt with by them would become an instrument of crime, by each of them structuring cash deposited into various bank accounts across Sydney in amounts less than $10,000 so as to avoid the same reporting requirements. 
93. [93]
    Betka, Ghazaoui and Hawchar and at sentence were aged 27, 29 and 30 respectively. The re-sentences imposed by the NSW Court of Criminal Appeal were:

    1. Betka - 6 years with a non-parole period of 3 years and 6 months;
    2. Ghazaoui – 2 years 3 months with a recognizance release order of one year and one month;
    3. Hawchar – 2 years 4 months with a recognizance release order of one year and two months.
94. [94]
    All received a 25% discount for the utilitarian value of each of the pleas of guilty. Betka received an additional 5% discount for his assistance to the authorities and Hawchar received an additional 10% discount for his assistance to the authorities. Ghazaoui had no criminal history and was regarded as having good rehabilitation prospects.
95. [95]
    All three appear to have been ‘principals’ in the criminal enterprise. I say that because Fullerton J explained that there was no challenge on the appeal to the sentencing judge’s finding that all three knowingly participated in organised criminal activity and that each performed an indispensable role in the overall criminal scheme, with the wider activities undertaken by other co-offenders, including their use of the leased premises to facilitate the objective of the criminal syndicate, providing the context in which that offending occurred.^[64] Again, that is different to the situation here.
96. [96]
    The third case relied on by the Crown is R v Columbus.^[65] In R v Columbus the defendant 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. In the District Court, the defendant 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. That 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. The defendant sought leave to appeal against his sentence. Leave was refused.
97. [97]
    Keane JA described the offending in this way:

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.

So far as the applicant was concerned, he received a total of $38,427 into his accounts. The banks recovered $19,644, the balance having been withdrawn and disposed of by the applicant.

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.

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 emails looking for further work as a mule. The applicant tried to suggest that these emails were actually sent by a cousin whose name he declined to provide.

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.^[66]

98. [98]
    Keane JA explained the offender’s motivations:

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.

99. [99]
    Ms Eckl’s criminal conduct was of a different character. She did not cynically pursue easy money.
100. [100]
     The fourth case relied on by the Crown is Huang v R.^[67] In that case the appellant pleaded guilty to one charge of dealing in proceeds of crime contrary to the Criminal Code (Cth), s 400.3(1). The plea was entered on the date the matter was set down for trial. The appellant was sentenced to 8 years imprisonment and to a non‐parole period of 5 years. The offence carries a maximum penalty of 25 years imprisonment. Pursuant to the Crimes Act 1914 (Cth), s 16BA, the sentencing judge took into account nine additional offences under the Anti‐Money Laundering and Counter‐Terrorism Financing Act 2006 (Cth) (the s 16BA offences). Four of those offences involved knowingly producing a driver’s licence in a false name contrary to s 137(1) of that Act. The maximum sentence for an offence under s 137(1) is 10 years imprisonment. The remaining five offences involved commencing to receive a designated service using a false customer name, contrary to s 140(1) of the Act. The maximum sentence under s 140(1) is 2 years imprisonment.^[68]
101. [101]
     On appeal the sentence was quashed and replaced by a sentence of 6 years 3 months with a non-parole period of 4 years 8 months.
102. [102]
     Again, the circumstances of this case are different. The sentencing judge summarised the conduct the subject of the count on the indictment as involving a total sum of $1,349,000 comprising six foreign currency transactions using false names and assumed identities; using the names and identities of others without their knowledge or consent; and in circumstances where the appellant had “prevailed on” others to assist by having them make large cash deposits into banks on his behalf. The sentencing judge was satisfied that the appellant had developed a system for the purpose of carrying out the unlawful transactions and that his conduct “was a product of forethought and planning”. His Honour considered that the appellant “was clearly motivated by financial gain”.^[69]
103. [103]
     The fifth case in the Crown’s schedule of comparative appellate decisions is R v Huang and Siu (a case discussed above).^[70] Mr Huang pleaded guilty to an indictment alleging that between 14 January 2003 and 4 November 2003 he dealt with money and intended that the money would become an instrument of crime, namely an offence against s 31(1) of the Financial Transactions Reports Act 1988 and at the time of the dealing the value of money was $1,000,000 or more, namely $3,088,311, contrary to subs 400.3(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for such an offence is imprisonment for 25 years and/or a fine of $165,000.^[71] Mr Huang conducted 335 banking transactions. Each involved a sum of less than $10,000. Each transaction was conducted at either a Commonwealth or Westpac Bank. The total amount of money conveyed to Hong Kong, and China generally, as a result of Huang’s activity was $3,088,311 achieved by those 335 bank transactions. The respondent’s motive was financial, as he received a fee for each transaction. These fees totalled approximately $30,000.^[72]
104. [104]
     Mr Huang’s co-offender, Mr Siu, pleaded guilty to a similar indictment alleging that between 6 May 2003 and 14 July 2003 at Sydney, he dealt with money and intended that the money become an instrument of crime, namely an offence against s 31(1) of the Financial Transaction Reports Act 1988 (Cth), and at the time of the dealing the value of the money was $100,000 or more, namely $556,400, contrary to subs 400.4(1) of the Criminal Code Act 1995. The penalty for this offence is imprisonment for twenty years and/or a fine not exceeding $132,000. Mr Siu conducted 59 structured transactions. He approached the Commonwealth and the Westpac Banks at various branches in and around Sydney, depositing amounts of just less than $10,000, ranging from $9,700 to $9,400. The total amount transmitted to Hong Kong bank accounts as a result of his conduct was $556,400. The motive was financial, as the respondent received a fee for each transaction. The total fee received was something less than $3,000.
105. [105]
     Simpson, Howie and Hislop JJ found that Mr Huang and Mr Siu were:

     1. well aware of the illegality of their conduct;^[73]
     2. prepared to become involved in serious criminal conduct for profit;^[74]
     3. not principals in that they did not own or have an interest in the money with which they dealt, but they were both involved in the principal’s illegal conduct to a very substantial degree;^[75]
     4. important and trusted participants in the criminal enterprise.^[76]
106. [106]
     Their Honours took the view that the starting sentence for each offender, before applying any discount, should have been 11 and 8 years. That compares with the original sentences which started at 6½ years and 4½ years. The NSW Court of Criminal Appeal quashed the original sentences and imposed:

     1. on Mr Huang a sentence of imprisonment for 5½ years with a non-parole period of 3 years 4 months;
     2. on Mr Siu sentenced to imprisonment for 5 years with a non-parole period of 2½ years.
107. [107]
     Again, it can be seen that the degree of involvement in the criminal enterprise and the objective of earning a profit are distinguishing features.
108. [108]
     The sixth and last case in the Crown’s schedule of comparative appellate decisions is Shi v R.^[77] The defendant pleaded guilty in the NSW District Court to 10 offences contrary to s 400.9(1) of the Criminal Code 1995 (Cth). That section creates an offence of dealing with property which is reasonably suspected to be the proceeds of crime.^[78] The amounts involved were considerable: $772,450 (Count 1); $1,951,570 (Count 2); $532,950 (Count 3); $3,276,410 (Count 4); $1,749,275 (Count 5); $5,134,865 (Count 6); $5,873,780 (Count 7); $6,907,125 (Count 8); $7,006,245 (Count 9); and $2,660,505 (Count 10). The maximum penalty for each of those counts was imprisonment for 3 years or 180 penalty units, or both.
109. [109]
     The defendant also pleaded guilty to a charge contrary to s 400.9(1A) of the Code which creates an offence which is essentially identical to that created by s 400.9(1) but which is committed where the relevant amount is less than $100,000 (namely $88,615). The maximum penalty for that offence was imprisonment for 2 years or 120 penalty units, or both.
110. [110]
     The sentencing judge imposed an overall sentence of 5 years and 6 months, with a non-parole period of 3 years. Ms Shi sought leave to appeal.
111. [111]
     The sentencing judge described the offences as relating to so called black money which was being generated somehow illegally in Sydney or Australia and was being funnelled out of Sydney via the Westpac Bank and a currency transfer company called Super Forex. Those institutions were not charged as being wrongly involved but plainly there was some conspiracy involving certain persons in which very large sums of money were being generated in Australia, probably black money in the sense of it being money upon which its possessor wished to pay no tax. It may have had some other criminal provenance.
112. [112]
     The money was ‘warehoused’ in premises occupied by a Mr Liu and handed over physically to Ms Shi, who had the role in the enterprise of receiving the large sums of cash from Mr Liu and causing it to be put into a Super Forex account in the Westpac Bank at the Haymarket Sydney. Both of these people, Ms Shi and Mr Liu, are not sophisticated and are not, as it were, the kingpins or ‘big wheels’ of the very substantial financial conspiracy.
113. [113]
     Each played a significant role without being told too much about it. Each had powerful reasons to suspect, at least, and to realise, that the monies were unlawfully obtained and (in the case of Mr Liu) intended to be used in some illegality, even if merely to avoid the currency processes. The sentencing judge described the role of Ms Shi in this way:

Ms Shi gave evidence before me and explained her background, her life in China and her unfortunate marital problems. She wanted to save face and to repay obligations relating to her mother and the person called “aunty”. She gave evidence that from time to time there would be telephone calls between her and the person aunty, obviously a principal, who complained there was short payment from time to time. She said she felt threatened by aunty and particularly she felt concerned her mother might be hurt or injured by the interests associated with the money…

As to what the offender Ms Shi may have been getting out of it, it is very hard to say. She denies any gain or reward in any significant way, apart from the fact of being assisted in the care of her mother in China. I do accept she is a person who is at a low level in this enterprise, even though that level is an important level. I do not regard her as being a kingpin. It was argued on her behalf and I accept, she was a face pushed forward by those who are principals in this to perform a function where she would be identifying herself to the bank and identifying herself to Super Forex without disguise. If there was any trouble, she would be the “bunny” who would get caught. She was undoubtedly used by others involved. She had connections with those higher up the chain and those connections have not been explored in detail in these proceedings.

114. [114]
     The sentencing judge reached this conclusion on Ms Shi’s role:

The offender played a significant role in the overall conspiracy. Although she was used as a dispensable tool and her role was low level, what she did was important. Her task of liaison and depositing of the money was a vital ingredient of the overall enterprise. The overall sum is thirty-five million dollars plus. That alone is not a reflection of her criminality but it is something that I take into account. I have no doubt she was deliberately chosen by higher ups in China, Australia and in particular by the woman who befriended her mother and assisted that lady with medical bills.

115. [115]
     In something of a rough parallel with this case, the expert evidence of a Clinical and Forensic Psychologist was that:

…Ms Shi appears to be a vulnerable, unsophisticated and naïve young woman, who has poor self-esteem and prioritises others over herself. She has a strong sense of duty and is inherently prosocial. To this end, the present offences appear to be an aberration that occurred as a result of perceived obligation to a family friend who had assisted both her mother and aunt, in addition to the effect of naivety, social isolation and vulnerability.

116. [116]
     The original sentence was 5 years and 9 months imprisonment with a non-parole period of 3 years was quashed and Ms Shi was re-sentenced to an overall sentence of 4 years and 9 months with a non-parole period of 2 years and 7 months.

Two Further Cases

117. [117]
     The Crown also referred the court to two additional cases, not listed in its schedule. Those cases were Islam v R^[79] and R v Byrne.^[80]
118. [118]
     In Islam v R there were two charges. Count 1 was dealing with money reasonably suspected of being the proceeds of crime to the value of $100,000.00 or more, contrary to s 400.9(1) of the Criminal Code 1995 (Cth). Count 2 was dealing with money to the value of $1 million or more intending that the money would become an instrument of crime, contrary to s 400.3(1) of the Code.^[81] Essentially, Mr Islam hid fours sums totalling $1,023,900 in his own checked luggage, and in the checked-in luggage of his father and two associates, for an overseas flight. Two of the three grounds of appeal succeeded and so the NSW Court of Criminal Appeal re-sentenced Mr Islam. In re-sentencing the court noted that Mr Islam played a pivotal role in the lead up to the s 400.3(b)(ii) offence, and in its implementation. He took possession of this large sum of money and organised the travel arrangements of the multiple persons who were to carry the money.^[82] There was an early plea of guilty, but Mr Islam had a criminal record. On count 1 Mr Islam was sentenced to imprisonment for nine months and on count 2 the sentence was imprisonment for four years and nine months.^[83] The court fixed a single non-parole period of three years and six months.
119. [119]
     In R v Byrne^[84] count 1 occurred when Mr Byrne attended the Coorparoo branch of the Commonwealth Bank. He pretended to be a customer and withdrew $1.38 million from a term deposit account in the customer’s name and transferred it to the customer’s transaction account. To make good the pretence, Mr 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.^[85] Count 2 occurred on the following day when Mr 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 Mr Zhang. 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.^[86]
120. [120]
     In her reasons, McMurdo P (with whom Keane JA and Douglas J agreed) said this:

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.

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.

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.^[87] [emphasis added]

121. [121]
     After weighing up the competing exacerbating and mitigating features, Her Honour decided that Mr Byrne should be sentenced to six years imprisonment with a non-parole period of 18 months.^[88]
122. [122]
     It can be seen that Byrne v R bears at least some similarities with this case, although there is an element of active brazenness that is not present here. 

Other Yardstick Cases

123. [123]
     The Crown’s schedule of comparative appellate decisions, and the two additional cases, were not intended to be an exhaustive list of the cases that may be used as yardsticks for the present case. There are others. In Nguyen v R,^[89] for example, the offender pleaded guilty to one offence under s 400.3(2). She was sentenced to 5 years 6 months imprisonment with a non-parole period of 3 years and 6 months. The circumstances of the offence involved 234 transfers of money to Vietnam, all in amounts under $10,000. The total value of the transfers was $1,948,014.26. The transfers occurred over a 2-month period. It was held by the New South Wales Court of Criminal Appeal that it was not only open but necessary for the sentencing judge, in evaluating the objective seriousness of the criminality, to take into account the fact that the offending involved 234 separate transactions totalling almost $2 million.
124. [124]
     Again, there is something of a contrast with this case. In Nguyen v R the offender was directly involved in the offending conduct, rather than, as here, a knowing recipient of money scammed by others.
125. [125]
     R v Wing Cheong Li^[90] provides a useful summary of sentences for offences under section 400.3 – at least up to 2010. There, Barr AJ, with whom Allsop P, Basten JA, McClellan CJ at CL and Simpson J agreed, stated:

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. Just as there is a distinction between recklessness and belief, the precise nature of proved belief may vary so as to affect the sentence. There will be a range of possible strengths of belief, rising to certain knowledge, as in Maldonado.^[91] [emphasis added]

126. [126]
     There are other cases, such as R v Nguyen,^[92] Lai v R,^[93] Chen v R,^[94] Nguyen v R,^[95]   Jimmy v R,^[96] Ihemeje v R,^[97] R v Ly,^[98] Truong v R,^[99] R v Foster^[100] and Kabir v R.^[101]
127. [127]
     That broad survey of the cases suggests Barr AJ (in R v Wing Cheong Li referred to above) was accurate in pointing to the wide range of criminality and the appreciable variation in the sentences. The only cases which have some similarity to the present case, at least as regards the defendant’s role, are Shi v R and Byrne v R. In the former Ms Shi was re-sentenced to an overall sentence of 4 years and 9 months with a non-parole period of 2 years and 7 months. In the latter Mr Byrne was sentenced to six years imprisonment with a non-parole period of 18 months.
128. [128]
     But there are limitations on using even those cases as guides.^[102] In both cases the offender’s role in the criminal enterprise was more active. Here Ms Eckl followed the instructions she was given. As guides, those two cases suggest that a lesser sentence should be imposed here.

Balancing the factors

129. [129]
     This is one of those cases where the factors relevant to the sentence pull in different directions.
130. [130]
     On the one hand there are these considerations:

     1. Counts 1 and 2 involved very significant losses for the companies involved as a result of serious criminal activity. Counts 3 and 5 also involved attempts by criminals to obtain further significant sums. The cascading nature of the money laundering legislation^[103] makes it clear that the value laundered is of central relevance;
     2. The maximum penalty for the most serious offence, count 2, is 25 years imprisonment or 1500 penalty units, or both. For counts 1 and 3 the maximum is 20 years imprisonment or 1200 penalty units, or both.
     3. The lengthy period of time over which the money was laundered, being approximately 14 months;
     4. The lack of a guilty plea.^[104]
131. [131]
     These factors must be weighed against these mitigating factors:

1. The unique circumstances of the case including the lack of deceit and planning by Ms Eckl, and her lack of authority in the criminal enterprise, and the rather passive role she played in following the instructions of the scammers;
2. The absence of any profit or benefit to Ms Eckl, and the absence of any intention to obtain a profit or benefit, except for a vague promise that those giving her instructions would assist her to recover the family’s savings lost in 2010;^[105]
3. Ms Eckl’s co-operation with police;
4. The likely effect of imprisonment and deportation on Ms Eckl and on Ms Eckl’s family who have been and continue to rely on her for care and financial support. The loss of care and support is likely to acutely affect Ms Eckl’s elderly husband, whom she cares for;
5. Ms Eckl’s present age (68) and the likely detrimental effects on Ms Eckl’s health;
6. The trial process has already affected Ms Eckl adversely;
7. The evidence that Ms Eckl suffered from a largely dysfunctional early life which has led to a personality disorder which gave her a propensity to be easily misled by others and therefore more susceptible to exploitation by the scammers; 
8. The absence of any criminal history;
9. Ms Eckl’s compliance with bail conditions for an extended period.

Orders

132. [132]
     Overall, in balancing the factors, and using the cases discussed as a rough guide, I consider that a head sentence in the region of 3 to 4 years is within the sentencing discretion. However, two further factors justify a head sentence at the lower end of that range and a non-custodial sentence.
133. [133]
     The first is that, as King CJ explained in R v Osenkowski^[106] there must always be a place for leniency where the judge forms the view that leniency at that particular stage of the offender’s life might lead to reform. Here, Ms Eckl is 68 years of age and the evidence of the expert clinical psychologist is that she presents with a low risk of re-offending and proper treatment of Ms Eckl’s personality disorder is likely to lead to pro-social development and continued support for her family.
134. [134]
     The second is what I have described above as the ‘last resort principle’ in s 17A(1) of the Crimes Act 1914 (Cth).  That section requires that the court not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. Here, particularly having regard to the nine mitigating factors set out above, I cannot be so satisfied. A suspended sentence is appropriate.       
135. [135]
     For those reasons, the orders will be:

     1. On count 1, Rossmani Eckl is sentenced to a term of 2 years imprisonment.
     2. On count 2, Rossmani Eckl is sentenced to a term of 3 years imprisonment.
     3. On count 3, Rossmani Eckl is sentenced to a term of 2 years imprisonment.
     4. On count 4, Rossmani Eckl is sentenced to a term of 12 months imprisonment.
     5. On count 5, Rossmani Eckl is sentenced to a term of 18 months imprisonment.
     6. Those sentences are to be served concurrently and it is ordered that Rossmani Eckl be released forthwith upon her giving security by recognisance in the sum of $1000, on the conditions that she be of good behaviour for a period of 5 years and that she will undertake any counselling recommended by Ms Sara Jones for a period of 2 years.^[107]