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Samarakoon v The Queen [2018] VSCA 199

appeal against sentence — dealing with money reasonably suspected of being proceeds of crime one count for less than $100,000 and one count for more than $100,000 offences contrary to ss 400.9(1A) and 400.9(1) of Commonwealth Criminal Code — attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity offence contrary to ss 11.1(1) and 134.2(1) of Commonwealth Criminal Code — original sentence imposed 3 years’ imprisonment with 3 year recognisance release order after 18 months — nature and circumstances of the offence — s 16A(2)(a) — objective seriousness — although important to assess precisely what offender did in commission of offence, structure and purpose of div 400 support proposition that value of proceeds of crime is paramount consideration in assessing objective seriousness of offence — sentencing judge correct in describing size of payment as most significant objective fact — ss 400.3 to 400.8 create a number of offences in which seriousness of offence depends on fault element involved and value of money — s 400.9 applies where person deals with money or property where it is reasonable to suspect that money proceeds of crime which is objective test — very little room for differentiation based on state of mind or knowledge of accused as to whether money proceeds of crime — if accused believed, or was reckless or negligent as to whether proceeds of crime, would constitute a different and more serious offence — sentencing judge’s assessment of gravity of offending accounted for quantum of money and that offender not simply facultative role but obtained the benefit of the funds — sentencing practice — consistency in sentencing important common law principle that sits within s 16A — regard to comparable cases from intermediate appellate courts across Commonwealth is important aspect of sentencing for federal offences — may provide guidance as to identification and application of relevant sentencing principles — may yield discernible sentencing patterns and possibly range of sentences against which to examine proposed or impugned sentence — failure to have regard to current sentencing practice cannot be established by a judge’s failure to mention them — can be reflected in identification or application of erroneous principle or because sentence shown to be manifestly inadequate or excessive — sentencing judge correct in having regard to intermediate appellate authorities to identify relevant sentencing principle — injury, loss or damage — s 16A(2)(e) — general deterrence — s 16A(2)(ja) — fraud not completed because false claim detected — no further conduct on offender’s part would have been required to complete fraud — no steps to undo wrongdoing indeed offender supplied false documents to substantiate claim — sentencing judge required to take into account that no loss resulted to Commonwealth by offender’s conduct — this to be balanced against fact offender attempted to defraud a large sum of money — dollar value of loss not to be given disproportionate emphasis at expense of general deterrence and denunciation considerations — sentence not wholly outside range of permissible sentences — appeal dismissed
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