See full judgment: Austlii.
The offender was sentenced following conviction for 2 counts of dealing with money or property that was and was believed to be proceeds of crime in excess of $100,000 contrary to s 400.4(1) of the Commonwealth Criminal Code, 1 count of dealing with money or property that was and was believed to be proceeds of crime in excess of $1 million contrary to s 400.3(1) of the Commonwealth Criminal Code, 1 count of dealing with money that was and was believed to be proceeds of crime in excess of $1,000 contrary to s 400.7(1) of the Commonwealth Criminal Code, and 1 count of dealing with money or property that was and was believed to be proceeds of crime in excess of $50,000 contrary to s 400.5(1) of the Commonwealth Criminal Code.
Nature and Circumstances: In each count, complainants received emails falsely claiming to be persons to whom the complainant was to send money, and each email provided false bank account details to redirect deposits. Offender received the 5 sums of money acquired by the actions of scammers and, in respect of 2 sums, distributed that money in accordance with directions from the scammers. There is no satisfactory evidence that offender benefitted from the various transactions with the exception of t $1,300 to pay for a dentist. Offender was not one of the scammers. It was not offender’s criminal enterprise. Offender’s role was to follow the instructions of others, including providing the facility bank accounts. Offender’s personal traits include a willingness to assist others and they held a blind and almost certainly irrational belief that the scammers would honour their promise to help to recover the money offender lost when they fell victim to a scam in 2010. The sums here were very significant and offender’s role facilitated serious and organised criminal activity.
Family Hardship: Offender provides financial and other care and support for their family and has done so for a lengthy period of time. Despite the decisions in Totaan v The Queen and R v Constant, the Court is bound to follow the QCA decision in R v Huston; Fox & Henke; ex parte CDPP: to be considered, the circumstances of hardship for offender must rise to the level of ‘exceptional’. The circumstances here meet that threshold. There is a significant dependance on offender by the 3 members of their immediate family.
Hardship to Offender: There is substantial evidence that offender will face hardship if deported. Offender is 68 years of age, has a shoulder injury as well as anxiety, depression and acute stress. Offender’s physical and psychiatric conditions would make time in custody or immigration detention difficult. Psychologist report provides that is a custodial sentence is imposed, offender will require regular mental health supervision, which is unlikely to be available in immigration detention, which would hinder their prospects of rehabilitation. Offender has spent their whole adult life in Australia and, if deported, would not be afforded the ability to spend their remaining years in Australia with their family.
Rehabilitation: Offender was warned by police not to launder money in 2020, prior to committing counts 4 and 5. The timing of these warnings was such that they should have been deterred from committing the latter counts. However, these warnings do not suggest that offender is at a high risk of re-offending or that they have poor prospects of rehabilitation. The pre-sentencing report suggests that offender is at a low risk of reoffending. Offender would benefit from structures therapy and being able to continue with pro-social aspects of their life. The community would be better protected if offender were afforded the opportunity to engage in rehabilitation and there is little utility in stinting their chances of rehabilitation by placing them in custody where their mental health will only deteriorate.
Orders: Offender sentenced to 3 years imprisonment to be released immediately upon recognizance of $1,000 to be of good behaviour for 5 years.
