HIS HONOUR: There are three men for sentence today. Their names are Yuk Nan Chak, Michael Angelo Man and Shan Chiu Yeung. The three men were effectively in a manner I will describe shortly, involved in a criminal enterprise or a series of criminal enterprises which occurred between 8 June 2016 and 20 June 2016 when they were each arrested. Their roles in relation to the enterprise or enterprises were different and it is quite clear on the facts that the totality of the criminality of Mr Chak is greater than that of Mr Man and Mr Yeung.
As I will point out the evidence satisfies me that the three men had a connection with each other, that if it did not commence before they came to Australia, although it is the case that Mr Man and Mr Chak travelled to Australia together, it was a relationship set in place by others before they arrived in Australia.
Mr Chak is for sentence in relation to seven offences of dealing with property reasonably suspected of being the proceeds of crime in that period between 8 June 2016 and 20 June 2016.
These are offences contrary to section 400.9(1) Criminal Code Act 1995 (Cth). Each of the offences carries a maximum penalty of three years imprisonment and/or a fine of $32,400. The prisoner is as I understand it a citizen of Hong Kong and will, I would assume, be deported on the expiration of his sentence for the crimes that he has pleaded guilty to.
In respect of the seven offences to which he has pleaded guilty the first offence in time occurring between 8 June 2016 and 13 June 2016 involved him dealing with $1,500,000. He committed an offence on or about 14 June 2016 in which he dealt with $800,000. He committed another offence on 15 June 2016 in which he dealt with $300,000. He committed an offence on 16 June 2016 in which he dealt with $500,000. He committed another offence on 17 June in which he dealt with $800,000. He committed another offence between 17 June 2016 and 18 June 2016 where he dealt with $300,000 and on 20 June 2016 he dealt with $500,000. All those sums of money "reasonably suspected of being proceeds of crime".
Mr Man has what could be called "common" charges to the accused for example sequence 1, an offence of reasonably suspecting that he was dealing with proceeds of crime committed on or about 9 June which involved $500,000 of the $1,500,000 that relates to Mr Chak's first offence in time. Each of Mr Man's offences are charged under the same provisions that relate to Mr Chak. Likewise I hasten to say Mr Yeung's charges. Although one charge of the two that he has is an offence of aiding and abetting, counselling or procuring Mr Chak to deal with five hundred thousand reasonably suspected of being proceeds of crime.
In any event Mr Man committed his four offences on 9 June 2016 as I pointed out the second offence in time was on or about 14 June 2016 in which he dealt with $500,000 in the manner charged. On 16 June 2016 he dealt with $500,000 and on 20 June 2016 he dealt with 500,000.
The offences relating to Mr Yeung include an offence of aiding and abetting on 17 June 2016 Mr Chak to deal with $500,000 reasonably suspected of being the proceeds of crime and on 20 June 2016 dealing with $600,110 reasonably suspected of being the proceeds of crime.
There are two other offenders who are connected to this matter who I have stood over to next Friday, Ms Engelina and Mr Hermawam who were arrested on or about 17 June 2016 in circumstances I need not detail at this particular point of time.
Each of these offenders were arrested on 20 June as I said and have been in custody since that date. Their period of time in custody will be obviously taken into account and I have structured the sentences accordingly.
In relation to Mr Chak it is said that he dealt with a total of $4,700,000. In relation to Mr Man he dealt with $2,000,000. In relation to Mr Yeung he dealt with $1,100,110. The sums involving Man and Yeung are sums that relate to the sums in the possession of Mr Chak or dealt with by Mr Chak at various times by and large. There is something of an anomaly in the sum of $600,110 that was dealt with by Mr Yeung on 20 June, which I will deal with when I come back to detail of the facts.
In relation to each of the offenders I have accorded them a discount of 25% to represent the facilitation of the course of justice by their pleas of guilty.
The facts of the matter are, if I could illustrate it by reference to Mr Chak, that only a very small amount of the $4,700,000 which he admits dealing with has been seized by police. The police operation leading to the charges was very much driven by telephone intercept material and surveillance. Although there were various statements made and references within those telephone intercepts which permit a reasonable contention to be drawn as to the sums of money Mr Chak was talking about and what was going to happen to those sums of money, his pleas of guilty have greatly aided the prosecution in this matter. The prosecution may have had difficulties establishing his guilt in relation to some or many of the charges brought against him without the plea of guilty. The same can be said by and large in relation to of Mr Man and Mr Yeung and as I understand it the three men pleaded at the Local Court I am prepared to accept they pleaded guilty at the first reasonable opportunity and thus they will be accorded that discount.
In considering this matter I point out from the outset that I was invited to read a number of authorities for comparative sentencing purposes and for considering the principles to be applied in an offence of this type. The particular authority which was probably of the greatest assistance was the decision of Shi v R [2014] NSWCCA 276, particularly in the judgment for the Court of Justice Bellew which I will quote at an appropriate time.
The facts of the matter as was discussed earlier were initially presented to me in an "Executive Statement" of facts and a "Detailed Statement of Facts" which left me somewhat confused as to precisely what was alleged against each of the accused. In fact to make sense of the Detailed Statement of Facts given that the "Executive Summary" was not a "full" executive summary. I had to in reality, consider the way in which the matter had been put to me by the learned Crown Prosecutor in his treatment of the evidence in his written submissions. I am now favoured with an Amended Statement of Facts or particularly, "Executive Summary" from I which I will now quote:
"Mr Yeung came to Australia on 10 May 2016. Mr Chak with Mr Man" (I have seen a photograph of the two of them going through the immigration control area of the Sydney Airport on that date) came together from Hong Kong on 26 May. Each of the three accused indicated that they were travelling to Australia for a holiday and they were provided with visitor visas for a three months duration. Their activities apparently came to the attention of an investigating authority attached to the AFP and the three men were the subject of close surveillance and telephone intercepts which led to their arrest on 20 June."
The other two accused as I mentioned were arrested on 17 June 2016 after Mr Chak had handed over to one of them at least $500,000. The woman Ms Engelina was actually in possession of a further $40,000 which gives rise to another allegation which will be later dealt with on a Form.
To quote from the statement of facts:
"A notable feature of the offending was the use of "token" system to facilitate the exchange of money. By this system a note of currency is given by the party that collects the unlawfully obtained money for it to be laundered to the party that is handling handing that money over. The money is only exchanged once the serial number on the note has been sighted, once sighted the collector hands the token to the other party handing the money over. The token is retained by that party as a receipt to verify that the transaction had taken place and to prevent further disputes."
Various activities concerned with the various charges reflect the use of this token system.
In relation to a common charge in one sense between Mr Chak and Mr Man, the first charge each of them is to be sentenced for, on the night of 8 June 2016 and in the morning of 9 June 2016 Mr Chak had a number of telephone conversations using a telephone service that was subscribed to Mr Yeung. I should point out in the other version of the detailed facts I was aware of the fact that Mr Yeung, after his arrival in Australia, apart from obtaining a local mobile phone service, purchased at least two cars paying modest sums of money for them. The offender had a conversation with a person or persons that are described throughout the statement of facts I have as 'UM' or 'unidentified male' and the two people spoke in code. Based on the evidence from the telephone intercepts reference in that conversation, where Mr Chak was told to pick up fifty at ten o'clock, was a reference to picking up $500,000. These code meanings were confirmed by later seizures of money, for example on 17 June when Mr Hermawam and Ms Engelina were arrested and also police activities on 20 June.
On 9 June at about 8.55am Mr Chak contacted an unidentified male and confirmed a drop of "fifty sets of newspapers at ten o'clock", which was a reference as I understand it to $500,000. On 9 June Mr Man went to a person who was a money remittance operator in Liverpool Street. That person apparently has been charged but still awaits trial. Man was carrying a white spotted shopping bag which contained $500,000. The Crown case is that Mr Chak either organised or permitted Man to have the money to deliver it. Mr Chak called an unidentified male and told him that Mr Man was looking for the money remitter and the transaction was confirmed. The money was apparently remitted by the money remitter to "unknown person or persons". Connected to the first charge relating to Mr Chak is a further sum of $1,000,000 which is identified by reference to the codes that were used by Mr Chak.
At about 2.07pm and again at 4.10pm Mr Chak called an unidentified male and made arrangements with him, speaking in a form of code, with advice to the accused as to a person that he was to meet. Mr Chak later rang back to advise that the money had been handed over. This money was not intercepted by police and what happened to it is unknown. The sum of money is said to be $1,000,000 as I said. During the same day 9 June 2016 discussions were had about the handing over of what is said to be $300,000 Australian, the following day and that gives rise to a later charge.
The facts refer to an event on 14 June 2016 in which Mr Chak dealt with $800,000 and Mr Man dealt with $500,000. On 14 June at 8.49 Mr Chak contacted again an unidentified male and arranged for the handover of $500,000 in the usual code at the office of the money remitter at about "11pm" (I think that should be 11am, but be that as it may), and a hand over of a further "thirty", being $300,000 at mid-day, or it could be midnight, at a location near Haymarket. The facts state that:
"At 11.01am on 14 June Mr Man went to the money remitter and delivered an amount of half a million dollars and Mr Chak had either organised or permitted Mr Man to have the money to deliver it. This money was never seized by police. Later that same day Mr Chak again contacted an unidentified man and said that it was all done, meaning that the earlier arranged exchange of money at "12pm" had been completed."
This is the occasion that it is said $300,000 was dealt with. This money was not seized by police and what happened to it is not known.
At 12.03pm on 14 June 2016 in a call to an unidentified man by Mr Chak, Mr Chak indicated that he had "forty", this was taken to be a reference to $400,000. The next day on 15 June 2016 at 10am Mr Chak using the service he had previously used confirmed with the unidentified man that a meeting would occur with a particular person and he would call the unidentified man when that was done. At 12.10pm on this day Mr Chak contacted an unidentified man and told him the handover was done and that Mr Chak confirmed that he had only "ten left", being a reference to $100,000. The inference is to be drawn in the context of it being said that there was $300,000 handed over, that Mr Chak himself personally handed over the money.
This is the sequence 3 offence relating to Mr Chak.
The sequence 4 offence relating to Mr Chak and the third offence relating to Mr Man occurred on 16 June 2016 where the two offenders were concerned with dealing with the same $500,000.
On 16 June in the morning Mr Chak rang the unidentified man and the unidentified man confirmed with Mr Chak that a drop of $500,000 was to take place at 11.30am. Mr Chak confirmed with this unknown person that he had "the receipt" ready and that he would go to the "office" just before 11am.
The reference to fifty in this conversation was a reference to $500,000. Mr Man delivered this sum of money to the money remitter just before 11am and later that day in the early afternoon Mr Chak confirmed the delivery with the unidentified man, the money was not seized by police, it is believed the money was remitted to an unknown person or persons.
The sequence 5 offence relating to Mr Chak of which he is solely charged concerns the offender dealing with $300,000, this was a matter where the offender Chak discussed with the unidentified man or an unidentified man the handing over of $300,000 and the offender the following day confirming the money had been handed over, this money was not seized.
On 17 June 2016 the offender Chak dealt with $500,000 and Mr Yeung aided and abetted him. This was the $500,000 as I understand it that was found in the possession of Mr Hermawam and with which Ms Engelina has a connection. The man Chak spoke to an unidentified man and Chak confirmed with that person that $500,000 would be handed over by him at Mascot Station that day. Mr Chak arrived at that station being driven by Mr Yeung. His aiding and abetting is the assistance provided to Mr Chak to deliver the money to Mr Hermawam and Ms Engelina. This was an occasion where the token system was used which I earlier identified. He handed over the money in a box and Mr Hermawam placed this money in the boot of a Subaru which Ms Engelina was driving. This exchange was observed by police and shortly afterwards police arrested Mr Hermawam and Ms Engelina and found, not only the $500,000 that had been handed over by Mr Chak but a further $40,000 in a bag belonging to Ms Engelina.
With regard to the matter sequence 6 in relation to Mr Chak this is an offence of dealing with $300,000 on 18 June, the same modus operandi was in place. Mr Chak contacted an unidentified man and confirmed the delivery by him, that is Mr Chak at 3pm of $300,000 apparently Mr Chak had been provided with a "token" for the purposes of the exchange, that is the serial number of a banknote.
Under police surveillance Mr Chak was seen to be driven in a car by Mr Man, Mr Chak left the car at the intersection of Ashfield and later confirmed by telephone that he had exchanged the money. The money was never seized by police and what happened to it is subsequently unknown.
On 20 June 2016 Mr Chak and Mr Man together further dealt with the sum of $500,000 in the context of Mr Chak organising for Mr Man to deliver to the money remitter the sum of $500,000 on 19 June 2016. Mr Chak confirmed these arrangements with the unidentified man as occurring the following day. Mr Yeung was observed by police in North Bexley receiving a bag from another person in a street. This bag was later seized by police and found to contain $600,110 thus the particulars in relation to the deal with a sum of money suspected of being proceeds of a crime.
Mr Yeung was arrested at 10.45am, the offender Man was observed by police carrying a blue bag, going to the money remitter. He was arrested there. The bag contained a further $500,000. The Crown case alleges that Mr Chak organised or permitted Man to have the money which was carried to the money remitter.
Mr Chak was arrested as well and the three men were interviewed. In relation to the interviews these three men gave, that is Mr Chak, Mr Man and Mr Yeung, for reasons which I will outline in a moment very little of what they said was true. For example Mr Chak stated that he was not involved in money laundering, that he had come from Hong Kong with Mr Man to travel, he said he was a carpenter by trade, he claimed he was travelling on the day of his arrest with Mr Man to get a discounted airfare to Thailand, he was not keeping watch for police or anything like that, just watching out for parking inspectors. He claimed that he did not notice that Mr Man was carrying the blue cooler bag that he had in his possession when arrested or had carried to the money remitter carrying $500,000. He claimed that he did not know Mr Yeung very well. He was a friend of a friend and he could not remember what he was doing on previous days and had nothing to do with handing Mr Hermawam anything. He also denied dropping off $300,000 on 18 June. This summary of his interview reflects a number of things that are clearly untrue by reference to his plea, the statement of facts and some other representations he has made out of Court to others.
Mr Man was reluctant to provide information. He claimed he was here on holidays, he said he was sightseeing and running short of money and claimed that he was more or less recruited here in Australia. He claimed that he was paid $500 to move the bag he was carrying on 20 June 2016 because he needed some money. He claimed that he had only done one other delivery, claimed that he had never been to the money remitter before 20 June 2016 and so it goes on. All these representations in his interview are untrue. He understated the number of times that he had visited the money remitter, he claimed that he did not think there was anything illegal in the bag.
Mr Yeung also claimed to be here in Australia and was in Sydney "having fun". He claimed that he had self-funded his trip to Australia. That he only intended to stay here for a month. He claimed that he bought a car for $6,000 at a second-hand car dealership. He said largely in Sydney he was just having a good time, going to the beach and other things. He claimed no memory of events on 17 June 2016 and claimed that he did not know Mr Man.
In relation to the two offenders Mr Chak and Mr Man they have no prior criminal convictions as far as I am aware, Mr Yeung had two convictions, one I was advised of at the sentence proceedings on the last occasion, the other I was advised of earlier this afternoon.
Mr Yeung was convicted in 2006 of importing a thing into Australia with the intention of dishonestly obtaining or dealing in personal financial information contrary to section 480.6 of the Criminal Code, of the Commonwealth. He was sentenced in the Local Court to a term of 12 months imprisonment to be released after serving six months upon entering into a recognisance to be of good behaviour for six months on his release. I am now informed today that he has a further conviction in the District Court of New South Wales. This is recorded as occurring on 27 March 2009. He appeared before Judge Berman SC and he was convicted of "possess property reasonably suspected of being proceeds of crime". He was convicted. He was sentenced to 18 months imprisonment pursuant to section 20 (1)(b) Crimes Act (Cth) 1914. He was ordered to be released after serving 12 months on entering a recognisance to be of good behaviour for a period of six months. I will need to further digest that conviction to be able to pronounce a sentence for him.
Each of the offenders did not give evidence before me. Each of the offenders produced a bundle of material that was not objected to by the Crown. Learned Senior Counsel appearing for Mr Chak at one point of his oral submissions made the claim that the material within the defence bundle was "unchallenged". Well with respect to that proposition, even though the Crown did not object to the material, it does not necessarily mean that the material is "unchallenged". In any event it is a matter where the court is required to make factual determinations in due course, taking into account the attitude of the parties. If something is asserted that is not the subject the test of cross-examination it can be seen as hearsay evidence, unable to be verified by independent sources, then one is required to approach the evidence with care. The offender has written a letter to the Court expressing an apology and stating that he has a wife and daughter, that he is a carpenter by trade but that he had to pay for an operation on his mother's eyes to remove cataracts in 2015 and another operation in 2016. He asserts:
"A person who knew of my financial troubles told me there was an opportunity to do some work that might help solve part of my financial problems and this would involve me going to Australia to do some work for no more than three months. I was not told precisely what I had to do. I saw it as a chance which would help to repay my medical expenses debt as soon as possible."
He went on to say:
"After arrival in Australia I realised that I needed to listen to instructions given to me over the phone and then to collect sums of cash and deliver them to remittance companies or persons as directed, although no one ever told me about it, I now suspect the money might be evading tax."
There is very little of that that could be accepted so far as the claim that he was unaware prior to coming to Australia of the reason for his presence in Australia. I do not accept it and I will explain why later on. It stands at odds with respect with the reality of the situation that on his own account he came to Australia in financial difficulty. Not, as he claimed in his interviews to police, that he was here as a tourist. He says in his statement to me that he did not tell the police the truth when he was arrested and he reflected upon the difficulties of being in custody and the difficulties of being separated from his wife and daughter and the hardships that they undergo whilst he is in custody here. He also speaks about the suffering of his mother.
I have some documents from a hospital in Hong Kong which confirms in part the treatment provided to his mother. But I note in relation to the detail of that that his mother's admission to hospital occurs after he was arrested here in Australia. I have a document from his wife asking for leniency for her husband and she speaks of his diligence at work, the way in which he was community minded, providing support for the "Save the Children Fund" and also donating to "Doctors without Frontiers" I take that to be the French organisation, 'Medicine Sans Frontieres'. She speaks of the strain upon her whilst he is away and makes comments about the circumstances of his offending which I cannot really place much weight upon. With regard to the circumstances of his mother she confirms the financial difficulties relating to her treatment and she speaks about the fact that he has expressed remorse to her.
I have a reference from the gaol indicating that he is a positive person in custody and he has been employed at the gaol for some period of time since July 2016 I was provided with some very limited statistics which are not of a great deal of assistance because of their limited information about the character of the matters that are dealt with the very small number of cases that are reflected in the statistics and the like.
I have a report from David Green psychologist, that report tells me that the offender has no mental illness or mental disability which is causally connected to his offending. So far as his circumstances in custody the offender is reported having difficulty coping with his incarceration. It is said that he "described symptoms of clinical depression", stating that he felt "very unhappy" which one could understand, but there is nothing in the report which reflects any mental condition relevant to the sentencing exercise.
The psychologist's report is more of a pre-sentence report and much of it is dependant of course upon the truthfulness of the offender. He notes that the offender made "unprompted statements of regret" when being interviewed. He notes the offender who is now, as I understand it 47 years of age, is a native of Hong Kong with a close relationship with his mother. He notes that his work as a carpenter has been on the basis of the information provided to him by the offender affected by economic forces beyond his control and the fact as he explained it in the history that he borrowed money to pay for his mother's surgery, he was unable to fully repay the loan and accepted a job offer in Sydney. It is quite clear with respect to that claim that I could not conclude that it was a job offer for him to come here to do carpentry work. There is no evidence that he was in any way concerned with such matters from the time of his arrival in Australia and his prompt, that is within a week of his arrival in Australia, involvement in this money laundering scheme speaks very loudly of the circumstances of the reason for his coming to Australia.
In relation to his background, relying upon the history given to the psychologist, I note that the offender is a member of a large family, seven children. Why the offender has been left with the financial obligation of paying for his mother's operation to the exclusion of other members of his family, I do not know. He has had an uneventful life in Hong Kong on his account, leaving school at 15 and undertaking an apprenticeship in carpentry before becoming a master carpenter.
There is nothing in the history of the offender that gives any indication as to the circumstance in which he would be involved, obviously with an organisation that is concerned with money laundering in Australia. I am prepared to accept at face value that he is a skilled tradesman and he has done work in that regard. But I do not believe in the history that he has provided to the psychologist, or in his letter to the Court, that the full story of his involvement in this affair has been revealed to the Court.
With regard to Mr Man, he likewise has written a letter of apology. He is a younger man, he is now aged 27 years. He has no siblings, he does not have a wife or children and he is a lorry driver in Hong Kong. He says that his mother is unaware that he is in custody in Australia. He has not told her because he did not want her to worry. He has been in contact with his "girlfriend" whilst in custody. He intends to marry when he is released from custody and return obviously to Hong Kong. He, as with the offender Chak, states that at the beginning of 2016 he was in financial difficulty. He needed money to pay for medical bills and he could not find anyone to borrow the money but he ended up borrowing the money from a financial institution and was unable to meet payments even though he was working very hard and that he was advised by the company to come to work in Australia, "so I could meet the repayments and pay the loan back". He claims that he was "threatened that something bad might happen if I didn't take this advice". There is a scintilla of a suggestion of non-exculpatory duress in this letter but in the context of it being unsworn, in the context of no other evidence from the offender in relation to the matter and in the way in which the case was conducted, bearing in mind there was no serious submission made that I could take non-exculpatory duress into account, it is not a relevant issue.
Having regard to Justice Johnston's remarks in the decision of Tiknius it would appear to me that the offender has not established on balance that non-exculpatory duress has any role to play in this particular matter. It seems as though on the facts available to me, in fact it is clearly established from those facts, that the offender was a willing associate of Mr Chak and willingly was able to do his bidding when requested. He speaks in his reference or letter to the Court of the reflection he has had whilst in custody and the effect upon him of being in custody. He had no skills in English when he arrived in Australia. But he now can undertake basic conversations. He has produced some material. One reference confirms employment as a delivery worker for a year between April 2015 and May 2016. He likewise has been industrious within the Corrective Services environment. I have a letter from his girlfriend confirming their relationship and the fact that his mother who suffers some ill health misses him and that he is sorry for his involvement in this offence.
I have in his case the most detailed psychology report of all the reports that have been tendered. With regard to that psychology report I have taken into account the history. He told the psychologist that the debt that he had in relation to surgery that was required in a private hospital was thirty thousand dollars Hong Kong. My memory is that it is approximately five or so Hong Kong dollars to the Australia dollar. He gave a history of borrowing money but they could not, that is he and his partner, pay back the money that was borrowed and thus he borrowed the money from a "loan shark syndicate". The money they borrowed was for the girlfriend to have surgery but they were unable to make repayments. He was approached by "the criminal syndicate" and given two options, either to make the repayments or do a job in Sydney for a month which involved delivering bags between places. He again reasserts the claim "for each delivery he would be offered $500". Given his debt and his interest payment as he claims in this history it sounds very unlikely to me that he would only be paid $500 Australia for each delivery. He was involved in four such deliveries. That would barely meet the interest that was being demanded of him from the money that was borrowed. It may have been of course if he did fall into the hands of loan sharks he was told that his entire debt would be forgiven. In which case the benefit for coming to Australia for working as he did would be far greater than $500 per delivery.
It is to be borne in mind in relation to this matter of course as it is to be borne in mind in relation to Mr Chak and Mr Yeung that in the various ways in which they claim financial difficulty, they were able to fly to Australia and they were able to sustain themselves in Australia with accommodation, with cars, access to mobile phones and presumably living expenses during this period of time.
The suggestion that one or two of them makes that they were required to finance themselves in Australia defies any common sense and certainly is quite at odds with the severe financial difficulties that they complain about as causing them to be recruited the way they were. In fact Mr Man is the man who claims that he had to organise his own accommodation and car hire. I cannot see how he could afford to pay for accommodation and car hire and living expenses, given what he claimed to be his financial circumstances.
He has an interesting background of Chinese and Pilipino origin, although he was born in Hong Kong and he is a Hong Kong national. He says that in Hong Kong he has not been involved in any criminal activities. His father died in 2008, his father and mother had no criminal history. I have had regard to the detail of the psychological assessment, there is no evidence of any history of psychiatric disability or disorder or psychological disability or disorder. He has never been to see mental health professionals in the past and the various tests that were undertaken by the psychologist which appear to be extensive failed to reveal any particular condition which is abnormal or severe or chronic. With regard to the testing of him, it was thought that he was not malingering. He has some high degree of 'self-deception enhancement' as it is described, which might mean promoting his own cause beyond reality.
So far as what I would regard as significant or relevant matters, symptoms of depression, anxiety and stress were within normal range. There is no evidence of any post-traumatic stress disorder. There is no evidence of alcohol problems, drug problems or the like. He is considered at low risk of reoffending. There is little evidence it is said of 'criminal tendencies' of 'antisocial personality' problems or 'conduct disorders'.
The conclusion of the psychologist was that the offender had experienced a mild level of depression since his arrest, his incarceration potentially impacts on his mother's health, he claims pressures upon him both in respect of his girlfriend's financial difficulties or his financial difficulties arising from her medical problems and his "fear of harm" which caused him to engage in the current offence. The risk of recidivism is said to be 'low'.
Turning to Mr Yeung if I may, bearing in mind I am dealing with all three offenders at the present time, he writes a letter of apology, he states simply that he was hard up for money in Hong Kong and that he was asked by a friend if "I want to earn some money in Australia". He claims:
"I asked him the work type and he said it's easy only collecting and delivering money. I didn't know it may cause this serious problem. Now I feel regretful for my behaviour."
He misses his daughter and his mother and he hopes to be reunited with them soon. I have a reference from his brother that reflects upon the fact that their mother is disabled. She has had a stroke and suffers hypotension and serious diabetes and their mother is greatly affected by him being in custody. He said that the offender had a business that failed after the birth of his daughter and then struggled with financial problems. He was "a problem gambler". His failed business and gambling caused the offender's wife to want a divorce and they had not lived together for many years. His daughter who is apparently 14 years of age misses her father.
This offender was born in 1967 thus on my calculation he is now 50 years of age. I have a psychologist's report for him which is not particularly long from Dr Zhang. She reflected scores on some psychological testing of mild symptoms of depression, moderate symptoms of anxiety and mild symptoms of stress. The report contains some of the history I have already outlined noting that he has worked as a truck-driver. He has never been previously treated for any mental illness or mental disability there is no evidence of any disability or mental illness causally connected to the offending or impacting upon his judgment. The same with the other offenders. He reported that his detention did not have a significant impact on his mental health. Now that I know he has been in gaol twice before in Australia, he would be quite familiar with the system here, unlike his co-accused.
However his detention has had a significant on his family. I pause for a moment to reflect upon the fact that having previously been gaoled in Australia in 2006, 2009, his family thus would not be ignorant of the consequences of him being detained here in Australia. He is said to meet the "criteria" for a clinical diagnosis of 'gambling disorder', he has a "strong and persistent preoccupation with gambling" which is "to the detriment to his function in social, financial and legal domains" and he relies on others to provide money to pay debts incurred by gambling. He requires some ongoing psychological treatment to treat this gambling disorder, if it exists and I am prepared to accept that it is a matter that has impacted upon him over time, he obviously needs professional assistance.
In relation to this matter of his gambling and his explanation for involvement it somewhat seems strange, given the fact that one might have thought that the same people recruited all three accused, that one person claims that he fell into the hands of loan sharks who threatened him in some way to come to Australia to commit the crime and Mr Yeung claims that he was introduced to this scheme by some friend without any threats of harm to collect and deliver money. The accounts of the respective offenders just do not in any way appear consistent and as I said these accounts are entirely inconsistent with the version they gave to the police on the first opportunity they had to explain themselves.
In relation to this matter, as is always the case with the Crown representing the Commonwealth Director of Public Prosecutions, I have very extensive written submissions which are most helpful. There are particular matters I will refer to that I obviously will need to take into account, for example I am required to sentence each of the offenders in accordance with Part 1B of the Commonwealth Crimes Act and that requires on the part of the Court the Court to have regard to the terms of section 16A(1) that is imposing a sentence for each offence that is of a severity appropriate in all the circumstances of the offence. I am required in addition to take into account a range of other matters set out in s.16A(2) including the nature and circumstances of the offence, (just picking out relevant matters I hasten to say, not every matter under the sub-section), if the offence forms part of a course of conduct consisting of a series of criminal acts of same or similar character, the degree to which relevant offender has shown contrition for the offence, the fact that each of the offenders has pleaded guilty, the degree to which the person has cooperated with law enforcement agencies, the deterrent effect of any sentence may have on the offender and the deterrent affect that any sentence may have on other people, the need to ensure the offender is adequately punished, the character, antecedents, age, means and physical and mental conditions of the respective offenders, the prospects of rehabilitation, the probably effect that any sentence or order under consideration would have on any of the family or dependents, amongst perhaps other matters.
In relation to that last matter, although each of the offenders has family who are ill or have health problems, there has not been demonstrated anything of the character of exceptional circumstances or high levels of dependency which would warrant considering the interests of third parties as a mitigating factor in this sentencing exercise.
To return to one of the most important matters upon which the Crown's submissions have dwelt, the nature and circumstances of the offending, I have set out the facts in relation to the matter. My conclusions in relation to the role of the various parties are as follows:
Firstly, in relation to Mr Chak, it is clear that in respect to the offences with which I am concerned, he was directing operations in Australia or in Sydney under the direction and in consultation with an unknown person either in Australia or overseas. He was liaising with this unknown person to put into effect both the receipt and then the distribution of sums of money. He directed on occasions other people, such as Mr Man and Mr Yeung, or alternatively liaised with them. He was obviously entrusted at all levels to receive and distribute the money and give direction as to what was to be done with it. I accept the money, the subject of these charges was not his, nor was it Mr Man's or Mr Yeung's. They were effectively "employees" with different roles to play and it must be said that Mr Chak's role was more significant than that of Mr Man and Mr Yeung.
Mr Chak was subject to direction but he was also involved in consultation. There was obviously a system in place, but he well knew the system and he well knew how the money was to be "laundered". This does not mean of course that he necessarily knew the source of the money, but he knew what the sums were and he knew the scale of the operation in which he himself was involved. As I pointed out before he handled or directed the handling of $4,700,000. He obviously in the context of the common charges of the men worked closely with Mr Yeung and Mr Man. He must have known before coming to Australia about what he was required to do to have the express and implicit trust that was reposed in him to do the tasks involving substantial sums of money, or else have the assurance that Mr Man and Mr Yeung themselves were trustworthy.
As far as Mr Man and Mr Yeung were concerned they were delivery men but they were entrusted delivery men. They knew what they were delivering contrary to their false statements to police. They had provided to them by Mr Chak the trust to be able to act on his direction without supervision. They were also consulting with Mr Chak, although largely they took direction from him. Each of the offenders sought to portray themselves, as I said earlier, as being here in Australia for some other purpose, tourism and the like and being caught up in this affair without much knowledge of what was to happen. I do not accept that that can be possibly true and I accept beyond reasonable doubt that they had come here for the purpose for which they were arrested.
I note that amongst other things, apart from what I have already found, Mr Chak and Mr Man came here together on 26 May and had common involvement with a course of criminal conduct within a fortnight of their arrival. Although Mr Yeung came earlier he bought on the Crown case at least two cars within a week although bought them relatively cheaply. A number of phone calls made by Mr Chak were made on a mobile service that had been subscribed to Mr Yeung. That is a local mobile service showing the fact that Mr Yeung was making some arrangements to assist Mr Chak in his endeavours.
The short period of time in which all the men became involved in substantial cash transactions, perhaps Mr Yeung a little later and certainly after Man and Chak shows, given the trust placed in them, the familiarity they must have had with the people that were directing these operations. As I have earlier pointed out each man produced material in their subjective case, referring to financial difficulties arising from the circumstances I have outlined. Their versions of recruitment are apparently inconsistent with one another. I have already dealt with the issue of non-exculpatory duress.
Their living circumstances and their debts and financial obligations in Hong Kong as claimed in the various reports that I have quoted, and in their apologies to the Court in some respect, very much puts to lie the claims they made in their electronic interviews of simply being tourists that were in some way caught up in something about which they knew nothing.
The facts of the matter are as I have pointed out, on their own account, they could not afford to come here as tourists, or stay here paying for their own expenses for the period of time that that occurred. It is entirely inconsistent with their family and financial circumstances that they should come here for any sort of holiday. The enterprise itself obviously required a degree of planning Mr Man points to himself organised crime syndicate, recruiting him and it is clear that each man to differing degrees perhaps obviously had to be intimately familiar with the way in which the relevant syndicate operated in order to participate. As I pointed out, they needed money to survive in Australia which on their account they did not have. It had to be provided to them by others.
I have already made the finding that I do not accept their versions of what they claim that they were "paid". On the other hand I cannot speculate as to what financial benefit they would receive, except that they were to receive some financial benefit.
In the context of dealing with the nature and circumstances of the offending the Crown went to great lengths in his very helpful submissions to persuade me that I should reach a conclusion that in the context of the decision in Shi and the decision of Jiao [2015] NSWCCA 95, that in the circumstances of the particular offending I should make some conclusion that would not offend 'De Simoni' principles that each of the accused had a subjective state of mind concerning the source of the money that was available. Reference is made to a West Australian decision which I need not cite, that a person can engage in conduct prescribed by the relevant section with which these men are charged "while subjectively holding the relevant suspicion" which would include some knowledge that the money was of a particular character as proceeds of crime. In that regard I note, as I mentioned earlier, the observations of Justice Bellew. He pointed out by reference to the structure of Division 400 of the Code that an offence brought under section 400.9(1) falls at the lowest of the scale. The offence does not require proof of any subjective criminality at all. One of the errors made by the sentencing Judge in Shi was to ascribe to the offender a state of mind that would have required the offender to be charged with a more serious offence and was in contradiction of what accorded with De Simoni ((1981) 147 CLR 383) principles that are set out at 389 of that judgment.
In relation to this aspect of the matter Justice Bellew noted in the sentencing of Mr Shi that the Judge in effect found that the applicant had exhibited subjective criminality which was not an element of the offence with which she was charged. When read as a whole the learned sentencing Judge at first instance had regard to the applicant's knowledge as a factor which aggravated her offending which ought to have been reflected in a more serious charge being brought. If the applicant in fact knew or believed that the money was the proceeds of crime then she would have been liable for prosecution for an offence contrary to perhaps section 400.3 of the Code a substantially more serious offence. His Honour went on to say that consistent with De Simoni principle it was the case that it was fundamental and important that no person should be punished for an offence for which he or she has not been convicted. Thus, in this matter I am not prepared to make the finding that the Crown has invited me to make about some subjective belief of the offender beyond that which is pleaded. In any event on the facts of this matter although obviously one would be highly suspicious of Mr Chak, Mr Man and Mr Yeung for various reasons, particularly Mr Chak's close connection with those that were directing him, I could not be satisfied beyond reasonable doubt on the matters sought to be litigated by the Crown in its arguments in the written submissions.
With regard to the Crown's written submissions if I could just briefly touch upon some matters that I have not already touched upon I believe I have effectively summarised precisely what the offenders did. The Crown submits that the offenders were to varying degrees of course, Mr Chak more so than Mr Yeung and Mr Man, involved in a course of conduct and that the plea of guilty is a fact to be taken into account. I have already dealt with the issue of discount. I have had regard to the expressions of regret of the offenders I am prepared to accept them on face value, although the issue of contrition is not a matter of great substance in this particular sentencing exercise. So far as their cooperation with law enforcement agencies are concerned their cooperation in terms of what they said in the course of their interviews was not great. No particular benefit flowed to law enforcement from the circumstances of their interviews.
Obviously there is a need for adequate punishment, personal deterrence, particularly more so in the case of Mr Yeung, given his criminal history and weight to be given to general deterrence although these matters are to be seen in the context of the available maximum penalty, having regard of course to the scheme of Division 400 of the Act, which the Crown kindly provided to me on the last occasion. Examination of the various offences that arise reflects the degrees of criminality that are reflected within the Division. For an offence under 400.3 the maximum penalty is 25 years imprisonment or 1,500 penalty units. As was pointed out the offences with which these offenders are charged with the exception of an offence under section 400.0(1A) are the least serious offences which can be charged in a range of offences.
With regard to the issue of duress and motivation for committing the offences I have already dealt with those matters in the course of dealing with the evidence. It should be fairly said that each of the offenders quite clearly were involved in these offences for financial reward. This was a matter I must say that Mr Ramage QC dealt with at some length in his written submissions. His submission seems to be directed towards the provisions of section 21A Crime (Sentencing Procedure) Act 1999 which has no relevance in this sentencing exercise being concerned with alleged breaches of State law. He is to be sentenced within, if I could call it, the confines of a sentencing exercise concerned with a maximum penalty of three years imprisonment for each of the offences to which the prisoner has pleaded guilty. It is to be borne in mind that as Mr Ramage has submitted, in his submissions to me on the issue of financial reward, one would expect came automatically or naturally with involvement in offending of this type. One would not have thought that anybody would be going around town taking half a million dollars to money remitters that he did not own or did not genuinely have a legal claim to without receiving some financial reward.
In respect of the submissions that were made by Mr Ramage QC for Mr Chak I have dealt with the issue of his role. It was submitted that Mr Chak's role was "no higher than Man and Yeung". I cannot accept that. It is quite clear on the facts that Mr Chak not only committed more offences but had a leading role in directing or consulting with Man and Yeung and the various references in the detailed statement of facts to the various conversations he had with an unnamed man or unnamed men, reflects upon the significance of his role. Again I do not believe that the money was his and certainly he was acting on instruction or with details being provided to him by others but he had a very trusted and significant position in the transactions with which I am concerned.
I take into account his limited English and the impact upon him of being in custody. A foreign national with no English language skills and no support in this country will find his sentence harsher than other prisoners and various authorities are referred to including, the decision of De La Rosa [2010] NSWCCA 194 and the decision of Nguyen [2009] NSWCCA 181. Also I note the effect upon his family of his presence here in Australia. Of course this is a necessary incident of his arrest and charging that he should be separated from his family.
There is no doubt that he, Mr Man and Mr Yeung were serving some form of organised crime "syndicate" but the character of the "syndicate" is not known to this Court nor the source of the money I cannot make any conclusion adverse to the three offenders that might be seen as a circumstance of "aggravation" touching upon or connected to the source of the money which was dealt with by each of the offenders.
In any event the scale of the sums of money reflects the degree of organisation that was involved.
Each of Mr Chak and Mr Man I am prepared to find have good prospects of rehabilitation. Again I am denied real evidence as to the character of their associations in Hong Kong. Mr Man has relative youth on his side. Each of these men have no prior convictions. For a man of Mr Chak's age that is a very substantial issue and I accept that Mr Chak has qualifications that may provide him with opportunities of employment, given his qualification as a master carpenter.
I have taken into account the statistics that have been provided, they provide limited assistance, Mr Ramage also supplied a summary from a Commonwealth Sentencing Data Base of sentences imposed upon pleas of not guilty for offences of this type, including multiple account but there are no details in that information to assist me as to the circumstances of the offenders, the sums of money and the like. In relation to that aspect of the matter I come back to the judgment of Shi. This case of course involved a woman from Shanghai dealing with, on my calculations something in the order of 35.9 million dollars. She appealed to the Court of Criminal Appeal and had her sentence reduced from over five years to something in the order of four years, nine months with an adjustment of a non-parole period on the basis that the learned sentencing Judge had failed to give her credit for her cooperation which does not apply here. So she had an extra 5% discount accorded to her and she also had the benefit of a finding that the sentencing Judge had made an error in his assessment of her criminality by taking into account a matter that was not pleaded or for which she had not been convicted. But the individual sentences imposed in respect of particular offences under this same section, although on a number of occasions involving much greater sums, of money have been of assistance.
The learned Crown also provided a schedule of cases relevant to each of the offenders which included Shi, another decision of Assafari from 2007 a decision of Almada 2015, a decision of the Court of Criminal Appeal and a decision of the Court of Criminal Appeal of Jiao to which I earlier referred upon which the Crown relied also for the purposes of the fact finding of the Court. I was provided with some other judgments for, what can be called, comparative purposes. Hua a decision of Berman J SC from 2013 which runs to a page and a half and a decision of Arsiotis [2015] NSWCCA 275. In relation to that particular judgment that offender was dealt with on a single count under the section which was in the sum of $990,000 for which the offender was to receive a benefit of $74,253. What happened however was that the sentencing Judge indicated that he was going to give the offender a discount of 25% upon a sentence of two years but ultimately only sentenced him to 20 months imprisonment which reflected a substantial mathematical error on his part. The error was accepted by the Crown and the offender was resentenced to a term of 18 months imprisonment. No comment was made other than in re-sentencing him under the same provision for that sum of money to a sentence of 18 months imprisonment as an appropriate sentence.
I have had regard to the various provisions I am required to otherwise consider under Commonwealth sentencing, under section 17A of course I can only impose a term of imprisonment in respect of a Federal offender after I have considered all other available sentences and I am satisfied no other sentence is appropriate. For sentences greater than three years in aggregate I can fix a single non-parole period, pursuant to section 19AB(1) Crimes Act (Cth) which I propose to do in the case of Mr Chak. In the case of Mr Man I propose to impose sentences which will permit him to be released on a recognisance, given the total sentence I impose upon him will be less than three years.
The Crown refers to the issue of totality of criminality and accumulation in the context of the terms of section 19(3) of the Commonwealth Crimes Act with regard to the issue of totality of criminality as it affects each of the offenders, I am mindful of the judgment of the High Court in Pearce (1994) 198 CLR 610, particularly at [45] in the judgment of the majority where it was held that in sentencing an offender for multiple offences I am required to fix an appropriate sentence for each offence and then turn my mind to the issue of concurrency, accumulation reflecting the totality of criminality. In considering the issue of totality of criminality of course I have regard to judgments such as the 1988 judgment of the High Court of Mill. With regard to the issue of appropriate accumulation in currency I note the principles summarised in the decision of Leacock v R [2017] NSWCCA 47, and also the subject of discussion in many other judgments including the 2000 judgment of Hammoud where Simpson J discussed the various principles to be considered. In relation to each of the offenders to reflect the totality of the criminality I propose some partial accumulation, the extent of that accumulation will reflect in part the totality of the criminality of the offenders.
One other guiding principle to be borne in mind is the need to ensure appropriate "parity" in the sentencing of the offenders, each of these offenders in their various ways have common offences. Mr Man has four offences common to or related to offences committed by Mr Chak. Mr Yeung has two such offences and of course parity of sentencing requires consideration of Aristotelian, principles of equality, I am required to treat a like and a like to the extent of their alikeness and the unalike to the extent of their unlikeness on rational and reasonable grounds to paraphrase the words of Rothman J in the decision of Jimmy from 2010.
I have taken into account all that has been put on behalf of Mr Chak by Mr Ramage and likewise in relation to Mr Lloyd representing Mr Yeung and Mr Man. His particular submissions, which were oral submissions, reflected upon the facts of the matter and the lesser criminality of Mr Man and Mr Yeung. His essential submission was that in respect of each of those men, all things taken into account, both objective and subjective I should impose sentences that would permit both men to be released on his words "immediately". He pointed to the fact that there was no evidence that either of his clients having any independent signs of wealth or trappings of wealth, or living a lifestyle in Australia that reflected a greater involvement in the sums of cash that were dealt with, than performing tasks at the direction of others, he fairly said that would appear to be the case. But as I said their roles were more significant than simply being delivery men as Mr Man and Mr Yeung had portrayed themselves to be.
Thus I propose to sentence Mr Chak and Mr Man, but I propose to stand over Mr Yeung until Friday week.
I should point out in relation to Mr Chak's matters I have structured the sentences to reflect the chronology of the offending. Obviously when an offender commits a series of offences such "prior good character" as he has might be seen to be diminished incrementally as each offence, although relevantly undetected at the time, was committed. But I ultimately have concluded that Sequence 1, although it is the first offence in time involving the most substantial sum of money should reflect the most significant sentence to be imposed. I hasten to say of course the sums of money are a properly considered relevant consideration in determining an appropriate sentence in the context of the maximum penalty, as the judgment in Shi, to which I referred, reflects.
Mr Chak in relation to Sequence 2 you are convicted, you are sentenced to 15 months imprisonment to commence on 20 June 2016 expiring on 19 September 2017. In relation to sequence 3 you are convicted, you are sentenced to nine months imprisonment to commence on 20 June 2016 expiring on 19 March 2017. In relation to Sequence 4 you are convicted you are sentenced to 12 months imprisonment to commence on 20 June 2016 and expiring on 19 June 2017. In relation to Sequence 5 you are convicted you are sentenced to 18 months imprisonment to commence on 20 June 2016 and to expire on 19 December 2017. In relation to Sequence 6 you are convicted you are sentence to nine months imprisonment to commence on 20 March 2017 to expire on 19 December 2017. In relation to Sequence 7 you are convicted you are sentenced to 15 months imprisonment to commence on 20 June 2017 to expire on 19 September 2018. In relation to Sequence 1 you are convicted, you are sentenced to two years imprisonment to commence on 20 September 2017 expiring on 19 September 2019.
In respect of those sentences, which is an aggregate sentence of three years three months imprisonment. I fix a non-parole period of one year nine months to commence on 20 June 2016 to expire on 19 March 2018. You will be eligible for release to parole on 19 March 2018. You can take a seat thank you.
In relation to Mr Man if you could stand up please sir. In relation to Sequence 1 you are convicted, you are sentenced to 12 months imprisonment to date from 20 June 2016, that sentence will expire on 19 June 2017. In relation to Sequence 2 you are convicted, you are sentenced to 12 months imprisonment to date from 20 June 2016 expiring on 19 June 2017. In relation to Sequence 3 you are convicted, you are sentenced to nine months imprisonment to date from 20 December 2016 expiring on 19 September 2017. In respect of Sequence 5 you are convicted I sentence you to 12 months imprisonment without hard labour to commence on 20 June 2017 and to expire on 19 June 2018. I direct that you be released at the expiration of four months imprisonment expiring on 18 October 2017 on you entering a recognisance pursuant to section 19AC(2) Crimes Act 1914 yourself in the sum of $200 to be of good behaviour for a period of one year and six months from that date and to appear for sentence if called upon to do so at any time in respect of any breach within the said period. The total sentence imposed upon you on my calculation is two years imprisonment with a minimum term of 16 months.
Just take a seat thank you. You will be eligible for release on 19 October 2017. That will be in about three weeks' time, you may sit down thank you.
Right Mr Crown any technical matters?
JORDAN: Not so far as we are aware.
HIS HONOUR: I'll check the orders if there is any slip of the tongue or something I had them handwritten, my associate typed them up I noticed I made a couple of errors which I corrected on the run, hopefully my associate has fixed those up.
JORDAN: Would your Honour and your Honour's associate indulge us by emailing those.
HIS HONOUR: We'll have the orders emailed to you, can we do it tomorrow, my associate, I'll sign these orders now but my mother is 90 years of age and getting off a train from Newcastle at Central about ten past six and I have got to go and pick her up because nobody is there to pick her up.
JORDAN: And I have got an army cadet to pick up at seven.
HIS HONOUR: Right, we've all got to get away. If we can get your email address and the solicitor for Mr Chak's email address and the solicitor for Mr Man's email address, we will email the orders accordingly.
JORDAN: Thank you your Honour.
HIS HONOUR: Now Mr Interpreter could you tell Mr Chak that the total sentence I have imposed is three years three months and he will be eligible for release to parole in March next year. Could you tell Mr Man, subject to his rights of appeal and the Crown's rights of appeal that he will be released on a recognisance to be of good behaviour on 19 October 2017. Could you tell Mr Chak and Mr Man that they are required in the period of time that they are subject to sentence out of custody to be of good behaviour, that the authorities have power to revoke the recognisance in the case of Mr Man in the parole and in the case of Mr Chak. I have not ordered any supervision because it would be impossible to enforce that supervision in Hong Kong and of course each man when released will go into immigration detention and presumably I would expect without knowing the details of this be deported back to Hong Kong. They may find it very difficult to come back to Australia if they so wished.
Is there anything else I need to tell both offenders in relation to the terms of the orders I have made. I note that Bellew J went to great lengths to comply with the section when he pronounced on the judgment to explain the effect of the sentence in terms of the non-parole period and the like but I don't think there is anything else I can say is there Mr Crown?
JORDAN: It is our opinion your Honour has complied with the provision in the Crimes Act.
HIS HONOUR: Thank you anything else I should say thank you. Mr Yeung, you are excused Mr Chak and Mr Man I wish you well for your future, Mr Yeung you will have to come back here next Friday. I order that Mr Yeung is here at this court on Friday 29 September 2017 at 10am and I direct a section 77 order for him to be here on that day, he is remanded bail refused.
I should say in relation to Mr Yeung with this additional information if there is some further submission to be made to me about the matter once I have got Berman J's judgment I should be advised next Friday I suppose.
LLOYD: I'll liaise with the Crown your Honour about the content of that judgment. I don't have anything--
HIS HONOUR: Well I don't know anything about it so and I've asked for it so we'll see what we get next Monday. Mr Interpreter thank you so much, you have had a very difficult day, I appreciate that it is very hard your job and I probably didn't help you very much by speaking too quickly for that I apologise, thank you to the court officer for staying back. We'll adjourn.
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Decision last updated: 13 November 2017