Oliver v R [2020] NSWCCA 26

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Oliver v R [2020] NSWCCA 26 Hearing dates: 26 February 2020 Date of orders: 06 March 2020 Decision date: 06 March 2020 Before: Leeming JA at [1] Johnson J at [2] Harrison J at [3] Decision: (1) Grant leave to appeal. (2) Appeal dismissed. Catchwords: APPEAL – sentence appeal – whether failure to consider remorse – where delay between arrest and sentence – whether failure to consider delay – whether error in finding of objective seriousness – where challenge to sentencing discretion – whether sentence manifestly excessive – whether no judge could reasonably have imposed the sentence Legislation Cited: Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code Act 1995 (Cth) Cases Cited: Ali v R [2010] NSWCCA 35 Dickson v R [2016] NSWCCA 105 Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 Leighton v R [2010] NSWCA 280 R v Blanco (1999) 106 A Crim R 203; [1999] NSWCCA 121 R v Guo (2010) 201 A Crim R 403; [2010] NSWCCA 170 R (Cth) v Milne (No 1) (2010) 260 FLR 166; [2010] NSWSC 932 R v Wing Cheong Li (2010) 202 A Crim R 195; [2010] NSWCCA 125 Category: Principal judgment Parties: Siobhan Anne Oliver (Applicant) Crown (Respondent) Representation: Counsel: T Edwards (Applicant) S Duggan (Respondent)

Solicitors: Just Defence Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2014/216502 Publication restriction: Nil Decision under appeal Court or tribunal: District Court at Sydney Jurisdiction: Criminal Date of Decision: 05 November 2018 Before: Sweeney DCJ File Number(s): 2014/216502

Judgment 1. LEEMING JA: I agree with Harrison J. 2. JOHNSON J: I agree with Harrison J. 3. HARRISON J: Siobhan Oliver pleaded guilty on 24 July 2018 to one count of dealing with the proceeds of crime worth $1 million or more contrary to s 400.3(1) of the Criminal Code Act 1995 (Cth). She was sentenced on 5 November 2018 by Sweeney DCJ to a term of imprisonment of 5 years commencing on that day with a non-parole period of 3 years expiring on 4 November 2021. The offence carries a maximum penalty of 25 years imprisonment. 4. Ms Oliver now seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the severity of the sentence upon the following grounds: 1. The Court failed to consider the issue of remorse pursuant to s 16A(2)(f) of the Crimes Act 1914 (Cth). 2. The Court failed to consider the issue of delay. 3. The Court erred in finding that the offence was in the mid-range in objective seriousness. 4. The sentence was manifestly excessive. 1. Ms Oliver was sentenced upon the basis of extensive agreed facts. It is unnecessary to recite those facts here in full. For presently relevant purposes they can be summarised as follows. 2. Ms Oliver was, at the time of the events giving rise to the charge, in a de facto relationship of marriage with Anthony Robert Parker. They resided together at premises in Bradbury. Ms Oliver and Mr Parker had been in that relationship for about two years when she was arrested. Mr Parker was employed as a baggage technician at Sydney Airport. Ms Oliver was employed as a recruitment consultant until she was retrenched in May 2014. 3. Between 1 January 2013 and 13 April 2014, Mr Parker engaged in an organised commercial activity concerned with the repeated importation of border controlled drugs into Australia. Mr Parker used his position of trust within the aviation environment to facilitate this activity. Specifically, he intercepted oversize baggage from Qantas flights from Chile and removed commercial quantities of cocaine which he provided to other members of the criminal syndicate. 4. Mr Parker received in excess of $5,400,000 for his role in this enterprise. That much money was discovered in a concealed location in the home that he shared with Ms Oliver. Mr Parker was also involved in laundering money generated by the syndicate. Ms Oliver assisted him to do so. 5. Ms Oliver and Mr Parker used some of the money generated by the criminal activities for the purchase of real estate, the construction of a large house and pool, overseas vacations and living expenses. The agreed facts refer to the fact that the Crown conceded that it could not prove beyond reasonable doubt that Ms Oliver knew there was more than $5 million concealed in the house. However, Ms Oliver was a party to an agreement to conceal the true nature of the money which was, and which she knew to be, the proceeds of crime in an amount of not less than $1 million. 6. The sentencing judge proceeded upon the basis that Ms Oliver was aware that the money was the proceeds of crime but not that she knew it came from the importation of cocaine.

Ground 1 1. Ms Oliver did not give evidence at the sentencing hearing. She relied upon a psychological report prepared by Mr Bradley Jones, a forensic psychologist, dated 8 October 2018. Part of that report is as follows: "8. When spoken to in relation to her offending behaviour, Ms Oliver admitted her offending and indicated the agreed statement of facts is a relatively accurate summary of her offending. Ms Oliver indicated that she was very trusting of her partner, Anthony Parker, and wanted to believe his explanations about how he came to have such a large amount of money. She had concerns about his access to money but each time she would voice her curiosity, Anthony would explain the money from his compensation payout or having restored various cars or working as a tow truck driver. She admitted being naïve, in that she did not question Anthony any further. 9. With respect to her feeling regarding the offending behaviour, Ms Oliver expressed her remorse stating, 'It's so bad. I don't know what to say. I wish I challenged Anthony harder or pushed him to prove to me the money was from where he said. I never knew about the money in our house and I wanted to believe what Anthony told me. My life has been about finding someone I could trust not to hurt me and I thought Anthony was that person'." 1. It was submitted on Ms Oliver's behalf in this Court that "on the balance of probabilities [she has] demonstrated contrition". Her counsel relied upon this material in Mr Jones' report to support that contention. 2. In my opinion, Ms Oliver demonstrated neither contrition nor remorse and her Honour did not err in failing to refer to it. It is not submitted that the issue was raised on her behalf at the sentencing proceedings. It is apparent from the transcript that Mr Korn of counsel who appeared for Ms Oliver in the sentencing proceedings did not even refer to the issue. It is perhaps unsurprising that Ms Oliver was not called in those circumstances to give evidence about it. Mr Jones' somewhat hopeful reference to "remorse" in his report is followed by a quote from Ms Oliver in which she says nothing of the kind. Ms Oliver received a discount for her plea of guilty. The fact that her Honour did not in terms refer to the fact that a plea may be evidence of remorse, or that it was evidence of remorse in this case, does not amount to error. 3. This ground of appeal is not made out.

Ground 2 1. Ms Oliver was arrested and charged on 23 July 2014 but not sentenced until 5 November 2018. She was on bail throughout that period. 2. Mr Jones' report referred to the delay and its effect upon Ms Oliver in these terms: "Over the past four years, as a result of current criminal proceedings, her alcohol intake has increased to drinking daily four vodka and soda drinks. When probed in this regard, Ms Oliver indicated that the alcohol helps her cope with her depression and anxiety regarding her and [Mr Parker's] future." 1. Mr Jones diagnosed Ms Oliver to be suffering from a persistent depressive disorder with anxious distress and alcohol use disorder, both of moderate severity. He did not in terms or by implication relate these conditions to the effect of delay in the resolution of the criminal proceedings. More particularly, Ms Oliver did not give evidence about the effect, if any, upon her that resulted from having to wait for four years to be tried or sentenced. If Ms Oliver was suffering unduly from having to endure a state of uncertain suspense for this long, it was not apparently of such significance that she either felt the need to draw it to the attention of her psychologist or elaborate upon it for the benefit of the sentencing judge. This is significant having regard to the fact that Ms Oliver bears the onus on the balance of probabilities of establishing delay as a mitigating factor if she wishes to rely upon it: R v Blanco (1999) 106 A Crim R 303; [1999] NSWCCA 121 at [16]; Leighton v R [2010] NSWCA 280 at [23]-[29]. 2. There is no doubt that Ms Oliver suffered from anxiety and depression in anticipation of her sentence. She submitted that this became evident on the initial sentence date on 12 October 2018 when she was described as dry retching, being "visibly, physically almost unable to speak" and "not well enough physically, mentally or emotionally to take part in [the] proceedings". She sought and was granted an adjournment on "compassionate grounds". Ms Oliver submitted that delay should have been specifically considered by her Honour as a mitigating factor. 3. Somewhat inconsistently, Ms Oliver also submitted that the delay should have been considered in determining her prospects of rehabilitation. That is because Ms Oliver spent the whole of her period of four years and four months on bail without reoffending and without failing to comply with her bail conditions. 4. In my view, Ms Oliver has not demonstrated that the period between her arrest and her sentencing amounted to delay in the sense being discussed. It would have been helpful, and in my opinion essential, having regard to the state of the evidence about her mental condition and its possible causes, that Ms Oliver either gave evidence of the intolerable nature of her predicament, if that is what it was, as she awaited sentence, or made it clear to her psychologist that her complaints were at least in some identifiable way related to or caused by delay in the disposition of her case. It does not seem to me that the onus that Ms Oliver bears has been discharged.

Ground 3 1. Despite the terms of this ground of appeal, her Honour's assessment was not that the offence was "mid-range in objective seriousness" but that it was "not of low seriousness, as was submitted on her behalf, but of moderate seriousness". Accepting that the determination of this question falls within the general discretion of the sentencing judge, Ms Oliver submitted among other things, that the amount of money involved in the offence was only just above the threshold of $1 million, she shared the money with Mr Parker and there were limited transactions that involved her. 2. However, when regard is had to her sentencing remarks it is apparent that her Honour considered these matters and others as well in coming to her conclusion. Her Honour's precise remarks were in these relevant terms: "Mr Korn submitted I should find Ms Oliver's offence only occurred because of her relationship with Mr Parker; that she was under his control and acting at his direction; and because of the opinion of the psychologist, Bradley Jones, that Ms Oliver's background and what Mr Jones described as a dependent personality made her more easily persuaded by Mr Parker to take part in the offending activity. The Crown submitted that it was not the Crown's position that I should find that Ms Oliver knew the money was the proceeds of drug importations but I should find she had "certain knowledge", to use Barr J's phase [sic] in Li, that the funds were the proceeds of crime in light of the number of transactions she engaged in, the period of time over which she did so, and the persistency in her conduct. The Crown cautioned against finding Ms Oliver's moral culpability was reduced by virtue of her personality as assessed by Mr Jones, given the caveat by Mr Jones in the Annexure 1 to his report that Ms Oliver's personality scale test results were of questionable validity for the reasons he stated there. I will return to that report. I proceed on that agreed basis that Ms Oliver did not know the money came from importing cocaine. I accept Mr Parker generated the money and owned the money, but the facts show Ms Oliver benefited from it by travelling, building a house, investigating the purchase of a beauty salon, and putting all her weekly salary into her superannuation fund. The conversation in the facts in which Ms Oliver asked Mr Parker if he had got money out for her to pay for hotel bookings showed Mr Parker shared the money with her relatively easily. Taking into account the way Ms Oliver benefited from the money, the amount of money, the number of transactions she engaged in with moneys, including obtaining the false letter from her brother to hide the true source of 100,000, which involved dishonesty beyond that in depositing cash into banks and TAB, and the period of 16 months over which Ms Oliver engaged in such conduct and transactions, I am satisfied beyond reasonable doubt that Ms Oliver well knew the money was the proceeds of crime. In assessing the objective seriousness of her offence, I take into account that the amount of money is just on the $1 million threshold, the period of offending, the number and type of transactions Ms Oliver engaged in with the money, which involved planning and deceit, that the money was Mr Parker's, although she liberally enjoyed the benefits of it, and that Mr Parker initiated the dealings in money and involved her in it, and she acted at his direction, but there was no evidence she did so reluctantly. I accept Ms Oliver became involved in the offending because of her relationship with Mr Parker. Bradley Jones, psychologist, expressed the opinion that because of Ms Oliver's childhood experience of violence from her father to her mother, her relationship history indicates dependency traits that are likely to have developed as a result of her relationship difficulties with her parents during her developmental stages. He said these dependency traits are likely to have become more apparent during her current relationship, making her vulnerable to manipulation. … I am prepared to accept that Ms Oliver was dependent and self-effacing in her relationship with Mr Parker to an extent, but to a lesser extent than it first appeared from the report. Therefore, while she was secondary to Mr Parker in her offending, her moral culpability is not greatly reduced by her dependent personality traits. I note from the material presented in the sentence proceedings that Mr Parker involved people other than Ms Oliver in money laundering activities but to a lesser extent than her, and she was trusted and relied on because of her relationship with Mr Parker. Taking all those matters into account, I assess her offence as not of low seriousness, as was submitted on Ms Oliver's behalf, but of moderate seriousness." 1. In Ali v R [2010] NSWCCA 35 at [33], Johnson J said the following: "33 This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R at [37], [46]-[47]." 1. Without intending to be critical, it was perhaps understandably not submitted on Ms Oliver's behalf that her Honour's finding that the offence was moderately serious was not open to her. Indeed, in my opinion, it was a finding entirely within a proper exercise of her Honour's discretion having regard to the evidence before her and the specific matters to which she referred. On one view, there may appear to be a tension between the sentence for the offence imposed by her Honour on the one hand and her assessment of the level of seriousness of the offence on the other hand. However, to the extent that there is any discord between those things, it favours Ms Oliver. 2. This ground of appeal is not made out.

Ground 4 1. In accordance with well-known authority, Ms Oliver submitted that her sentence was "plainly unjust". In addition to the matters already considered, she emphasised in this context the strength of her subjective circumstances. She had no record of prior offending. Her current offending was directly related to her relationship with Mr Parker. A reference from her manager spoke well of her work ethic and reliability. She was found to be of a low risk of reoffending and assessed as anxious and depressed which her Honour acknowledged "would make a custodial sentence more difficult for her". 2. Mr Jones indicated in his report that the violence towards her mother by her father to which Ms Oliver was exposed as a child was related to, or likely produced her inclination to, a passive relationship style with dependency traits. He considered that these traits are likely to have become more apparent during her relationship at the time of her offending, making her vulnerable to manipulation. Ms Oliver was in fact assessed as being "markedly dependent, docile, self-effacing, [and] ineffectual" and someone who "may also assume a passive role in relationships". Mr Jones noted that Ms Oliver "displays personality traits consistent with dependent personality, but below diagnostic threshold". Her Honour determined that Ms Oliver's "moral culpability is not greatly reduced by her dependent personality traits", implicitly suggesting that her Honour accepted that it was reduced to some extent. 3. As always in the assessment of a contention that a sentence is manifestly excessive, a successful challenge to the sentencing discretion requires the demonstration not simply that the sentencing judge should not properly have come to the particular result in question, an argumentative contention at best, but that he or she could not properly have done so. It is not sufficient that an applicant establish that some other judge, including in this Court, might arguably have come to a different result. The challenge to the sentencing discretion must establish that no judge, exercising the discretion reposed in him or her, could reasonably have imposed the sentence in question. 4. I am unable to conclude that Ms Oliver has demonstrated that it was not open to her Honour to sentence her to a non-parole period of 3 years for this offence. The maximum penalty is 25 years. It contemplates a range of conduct from making numerous transfers of funds overseas in amounts of less than $10,000 using false identities (Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60) to controlling the movement of over $63 million overseas, of which over $19 million was distributed to the offender or entities associated with him (Dickson v R [2016] NSWCCA 105). The money laundering offences necessarily apply to a large range of activities relating to money to be used in connection with, or arising out of, serious crime. At the Commonwealth level, such offences "constitute a 21st century response to antisocial and criminal conduct, commonly with international elements": R (Cth) v Milne (No 1) (2010) 260 FLR 166; [2010] NSWSC 932 at [164]. 5. The amount of the money or the value of the property as well as an offender's state of mind are the principal differentiating factors in determining the seriousness of these offences: see R v Guo (2010) 201 A Crim R 403; [2010] NSWCCA 170 at [87], [89]; R v Wing Cheong Li (2010) 202 A Crim R 195; [2010] NSWCCA 125 at [17]-[19], [41]. In the present case, Ms Oliver was aware that the money that she dealt with was the proceeds of crime, even if she did not know that it was generated from the importation of cocaine. The amount was not insignificant, even though it was only just above the threshold of $1 million that triggered the operation of the provision. 6. Ms Oliver has not demonstrated that the sentence was manifestly excessive or plainly unjust. 7. I would dismiss this ground of appeal.

Conclusion and orders 1. I consider that the following orders should be made: 1. Grant leave to appeal. 2. Dismiss the appeal.

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