The State v Edward Bae (2019) N8029

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 20 September 2019
• Citation: (2019) N8029
• Docket Number: CR FC (35) OF 2019
• Court: National Court
• Year: 2019
• Judgement Number: N8029

Full Title: CR FC (35) OF 2019; The State v Edward Bae (2019) N8029

National Court: Berrigan, J

Judgment Delivered: 20 September 2019

N8029

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR FC (35) OF 2019

THE STATE

V

EDWARD BAE

Waigani: Berrigan, J

2019: 4, 6 June, 10 July and 20 September

CRIMINAL LAW – Practice and procedure – Sentence – Part VIA of the Criminal Code - Money laundering – S. 508B of the Criminal Code – “Criminal property” – Stand alone charge of money laundering – Nature of offence – Sentencing considerations.

The offender, an employee of Westpac Bank (PNG) Limited, transferred monies in the sum of K72,380.30 from two of the bank’s income accounts to his brother-in-law’s bank account without supporting documentation or approval. He then withdrew the monies from the account or spent them via eftpos using his brother-in-law’s bank card, which he was in possession of without the latter’s knowledge.

The indictment contained a standalone count of money laundering contrary to s.508B(1) of the Criminal Code, to which he pleaded guilty.

The State submitted that the sentence should be determined applying the same considerations outlined in Wellington Belawa v The State [1988-89] PNGLR 496 for dishonesty offences.

Held

(1) In order to establish the offence of money laundering contrary to s. 508B(1) of the Criminal Code, the State must prove that an accused dealt with “criminal property”, that is property, in whole or in part and whether directly or indirectly, derived from, obtained or used in connection with, past or completed criminal conduct, such that an offence has already been “constituted” or committed: s. 508A read together with s. 508F(a)(i)(ii) and (b)(i)(ii) of the Criminal Code.

(2) The State may prove criminal property by one of three ways: a) by establishing the particular criminal conduct, or the underlying or predicate offence, from which the property derived; b) by proving the “general type or types of criminal conduct from which the property derived”; or c) by proving “that the circumstances in which the property is handled are such as to give rise to the inference that it can only be derived from criminal conduct”: ss.508A read with 508F(a)(i)(ii) and (b)(i)(ii) of the Criminal Code.

(3) It was permissible for the State to proceed on a standalone money laundering charge, that is without charging the criminal conduct from which the criminal property derived: s.508F(a)(i)(ii) and (b)(i)(ii) of the Criminal Code.

(4) In this case the monies withdrawn from the offender’s brother-in-law’s account were criminal property, having derived from the offender’s past criminal conduct, namely the dishonest application to his own use of the monies to the account, i.e. misappropriation, contrary to s. 383A of the Criminal Code.

(5) In determining sentence on a money laundering charge, it is not the case that the sentence that would have been imposed for the underlying offence should automatically apply. Nor is money laundering an alternative for, or equivalent to, misappropriation or other dishonesty offence. Money laundering is a distinct and serious offence in its own right, which is intended to capture quite different conduct.

(6) In general terms, money laundering is the dealing with, or the processing of, monies or assets that are already the proceeds of criminal conduct so as to conceal their criminal origin and convert them into property which appears legitimate. The threat of money laundering to the economy and the community is recognised internationally. It undermines the integrity of financial systems, shields criminals from detection, protects their profits and provides the funds and incentive for future criminal conduct, which is ultimately detrimental to the community and society at large.

(7) The offence under s. 508B(1) of the Criminal Code is deliberately broad and designed to capture a wide range of conduct relating to money or other property arising from crime. Given its breadth the maximum penalty has been designed to accommodate a very broad range of offending behaviours. While that is necessarily the case with all maximum penalty provisions, the more general the provision the broader the range of offending conduct it will capture. In the circumstances sentencing in such cases will require a careful assessment of the objective seriousness of the offending under consideration: Thorn v R (2009) 198 A Crim R 135; Clarke v The Queen [2019] NTCCA 2 adopted.

(8) The following matters may be relevant when considering the objective seriousness of a money laundering offence: a) the amount or value of the criminal property involved; b) the source of the criminal property dealt with or the seriousness of the criminal conduct from which the property derived; c) the period over which the offence was perpetrated and the number of transactions involved; d) the sophisticated nature of the offence and the extent of planning involved; e) the role of the offender, or the authority with which he acted; f) the nature of the dealing or the use to which the money was put, including the extent to which the offender personally benefited; g) the state of mind of the offender, or the extent to which he knew the property was criminal property; h) the extent to which the offender abused a position of power or trust; and i) the impact of the offence on the public and public confidence.

(9) A sentence for money laundering should normally reflect the need for general deterrence to a very significant degree because of the serious nature of, and the potential risks posed to the economy and society by, the offence.

(10) In this case the offence of money laundering was a highly technical breach of s. 508B of the Criminal Code. The offender was merely spending the money obtained by the misappropriation. He was doing nothing to hide the source or change the nature of the funds. He was simply “using” them and it is on this basis that his conduct is caught for the purposes of s. 508B of the Criminal Code, because the offence is drawn so widely.

(11) The underlying criminal conduct, however, from which the property was derived was serious. The offender was personally responsible for misappropriating the funds, and he was well aware of their source. He also personally benefited from those funds.

(12) In the circumstances the sentence imposed in this case should, despite the much greater maximum penalty available under s. 508B(1) of the Criminal Code, be proportionate to that which would have been imposed for the underlying offence of misappropriation had it been charged on the indictment. This is not to be seen as endorsing the approach taken by the State, namely proceeding with a technical breach of s.508B when it could have proceeded with the substantive charge of misappropriation, which would have reflected the nature and extent of the offender’s criminal conduct and provided an appropriate basis for sentence; nor to suggest that the State should have charged both misappropriation and money laundering in this case, given that the latter did not add to the offender’s overall culpability in any substantial way.

(13) Sentence of 4 years of imprisonment in hard labour imposed.

Cases Cited:

Papua New Guinea Cases

Goli Golu v The State [1979] PNGLR 653

The State v Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320

Wellington Belawa v The State [1988-89] PNGLR 496

Lawrence Simbe v The State [1994] PNGLR 38

The State v Ngasele (2003) SC731

State v Scholar Zuvania (2004) N2641

The State v Niso (No 2) (2005) N2930

Yalibakut v The State (2006) SC 890

The State v Daniel Duk (2009) N3924

The State v Tiensten (2014) N5563.

State v Sarry Moere, CR (FC) 153 of 2017, 6 November 2017, unreported

The State v Owen Yamboli, CR(FC) 253 of 2017, unreported

Roland Tom & Anor v The State (2019) SC1833

Overseas Cases

Scott v Metropolitan Police Commissioner [1975] AC819

R v Easton [1994] 1 Qd R 531

R v Huang (2007) 174 A Crim R 370

Thorn v R (2009) 198 A Crim R 135

Nahlous v The Queen [2010] NSWCCA 58

R v Li (2010) 202 A Crim R 195

R v Guo (2010) 201 A Crim R 403

R v Greaves [2011] 1 Cr. App. R. S.

R v Ansari (2007) 70 NSWLR 89

Clarke v The Queen [2019] NTCCA 2

References Cited

Sections 19, 383A, 508A, 508B, 508C, 508D, 508E, 508F, 508G of the Criminal Code.

Counsel

Ms L. Jack, for the State

Mr E. Sasingian, for the Accused

DECISION ON SENTENCE

20 September, 2019

1. BERRIGAN J: The offender pleaded guilty to one count of money laundering contrary to s. 508B(1) of the Criminal Code (Ch. 262) (the Criminal Code). Pursuant to s. 508B(1)(a) the penalty in the case of a natural person is a fine not exceeding K500,000 or imprisonment for a term not exceeding 25 years, or both.

2. The indictment alleged...