HIS HONOUR: The prisoner Benny Zhong Cheng, is to be sentenced today in relation to a charge that he between 27 May 2012 and 17 July 2012 in the State of New South Wales did deal with money or other property intending that the money or other property will become an instrument of crime and at the time of the dealing the value of the money or other property, was $1,000,000 or more. This is an offence contrary to, "s 400.3(1)(b)(ii)" Criminal Code (Cth). The maximum penalty for this offence is 25 years imprisonment and or, a pecuniary penalty of 1,500 penalty units.
The prisoner was arraigned before me on 7 December 2015 and was tried before a jury with the jury returning a verdict of guilty on 9 December 2015. The Crown case against the prisoner was not the subject of any dispute in essence. Exhibit A in the trial is an agreed statement of facts, setting out the essential facts relied upon by the prosecution in order to prove the guilt of the accused and I do not propose to reiterate the detail of those agreed facts, the document being already an exhibit in the proceedings albeit in the trial but not the sentence proceedings.
I prepared a document for the benefit of the jury setting out the legal issues for it to consider. It is to be borne in mind in relation to this matter as the transcript of the trial would reveal, that the trial was run on a very narrobasis. Mr Barrow learned counsel for the accused at the trial conducted the case as did the learned Senior Counsel for the Crown in a most professional manner and at the end of the Crown case raised with the Court what could be called a "very interesting," issue for the Court to determine in order that the case could be left to the jury. I concluded contrary to the submissions of Mr Barrow that there was a prima facie case and the finding of guilt in the context of the way the trial had been run, having regard to the decision I published in respect of the matters raised by Mr Barrow, was a foregone conclusion.
The accused did not give evidence and essentially in the context of the earlier ruling I had given, as well as the evidence, did not contest before the jury either the law or the legal issues for the jury to decide. It is important to reflect upon what precisely the accused has been found guilty. I have read out the detail of the charge, it does not however fully describe the legal basis upon which the prisoner has been found guilty. In relation to the matter it is clear that the prosecution has proven the accused dealt with money intending that the money would become an instrument of crime and the value of the money was over $1,000,000.
Particularly however, in relation to the element for which the Crown relied and which was left to the jury that is that, "The money…could become an instrument of crime in relation to a Commonwealth offence." The relevant, "offence," as the matter was left to the jury required proof of the fact that the accused intentionally commenced to receive, "a designated service," from a, "reporting entity," that he, "recklessly used a false customer name and that the relevant remitting service or, "business," which gave effect to the remittance arrangement accepted instruction from the accused under an arrangement for the transfer of money to another person." This is the legal context in which the accused is to be sentenced and is to be clearly understood. I point out of course, from the outset that the sentencing of the prisoner is to be conducted pursuant to the relevant provisions of Pt 1B Crimes Act 1914, and some of those provisions, particularly s 16A of the Act I will specifically refer to later.
To summarise the essence of the Crown case against the prisoner, it was that between 28 May 2012 and 16 July 2012 the prisoner attended upon registered money remitters and reporting entities as provided for under the Anti-Money Laundering and Counter Terrorism Act 2006 (Cth). To summarise the situation, registered money remitters are authorised to transfer monies overseas to foreign bank accounts and other entities. The prisoner undertook eleven transactions at three different, "money remitters," at Eastwood, Ashfield and Haymarket. Those money remitters as the facts reveal, had responsibilities under relevant legislation to report particular cash transactions, such as the ones with which I am now concerned.
On each occasion the prisoner attended upon a particular money remitter he used false identification, that is he produced a New South Wales drivers licence with his photograph on it under the name Nick Wang, which gave a false date of birth for the prisoner and a false address. In total $1,098,066 in cash was as a result of each transaction, ultimately converted into Chinese currency and remitted to financial institutions overseas particularly in China. The cash remitted of course, has not been recovered.
There is no evidence before me upon which I could safely rely, as to where the cash came from in the sense of describing the source of the cash. There is no evidence that the source of the cash or its purpose in remitting is overseas was "terrorism related." Whether the cash came from drug transactions or commercial dealings or other activities, the Court is unable to say the evidence available to me upon which I can act with some confidence is simply not there.
The respective transactions were conducted on the following dates at the following places, involving the following amounts in Australian dollars. On 28 May 2012 the prisoner went to a remitter at Ashfield and transferred $100,000 in the manner I have described. On the same date he went to a remitter at Eastwood and transferred another $100,000. On 18 June 2012 he went to a remitter at Ashfield and transferred $78,266. On 19 June 2012 he went to Eastwood and transferred $159,800. On 29 June 2012, he went to Ashfield and at the office of a remitter transferred $100,000. He went to Haymarket on 29 June 2016(as said) and remitted $100,000 in Australian currency. He went to Ashfield again on 10 July and remitted $100,000. He went to Eastwood on 10 July 2012 and remitted $100,000. On 12 July he went to Ashfield and remitted $100,000. He went to Haymarket on 12 July 2012 and remitted $100,000 and finally on 16 July 2012, he remitted $60,000.
The brief summary of locations, amounts and dates shows on at least four occasions more than one transaction on the one day at a different remitter. It is clear from the evidence that at particular locations the officer of the remitter became familiar with the appearance of the prisoner, as the evidence revealed. Unbeknownst to the prisoner, he was at particular points of time, subject to surveillance from the Australian Federal Police.
As I would understand the evidence because of their interest in the man Gulun Zhang I will to refer later so far as the sentencing of him is concerned. He was characterised at his sentencing by his Honour Judge Toner, on 6 December 2013, as "Head of (a) syndicate involved in money laundering and false identity manufacturing." In relation to this prisoner it is important to note that when I consider the sentence to be imposed upon him and the sentence imposed upon his former wife, to whom I shall refer shortly, the prisoner before me is not charged with, nor said to be responsible for, the manufacture of "false identities."
It would appear, although it is a little unclear from the information of a contextual matter available to me, that the AFP to a lesser extent were interested in Quian Lin the prisoner's ex-wife. And it is clear from the evidence both from surveillance and other sources, including of course the agreed facts, that the prisoner over the period of time of the commission of the offences despite being divorced as I would understand it from his first wife, had a close association with her either from time to time living at her home where their children lived or alternatively being a regular visitor there. Their children were as I would understand it, teenagers at the time.
Quian Lin was sentenced by his Honour Judge Toner SC, to a term of imprisonment of nine months in respect of an offence contrary to the Criminal Code. She was convicted of an offence contrary to 400.4 of that Code. That is in summary, dealing with proceeds of crime worth $100,000 or more. The Crown appealed against the lenience or the inadequacy of the sentence imposed by his Honour Judge Toner. I have read the remarks of his Honour, of 4 April 2014, and I have also read the decision of the Court of Criminal Appeal delivered on 10 November 2014, DPP (Cth) v Quian Lin [2014] NSWCCA 254. I will come back to those remarks on sentence and their relationship to this sentencing exercise as well as the decision of the Court of Criminal Appeal which is to be frank, far more pertinent, shortly.
Gulun Zhang was sentenced on 6 December 2012 in respect of an offence committed by him, again contrary to s 400.4 Criminal Code. He was sentenced to a total term of imprisonment of six years with a non-parole period of three and a half years. As with Ms Lin there were other charges, including I hasten to say, an offence to which he admitted his guilt of "participating in a criminal group," as it is generally described under State law. The criminal group including Lin and the prisoner. For that offence as I understand the sentence imposed by his Honour, his Honour at first instance in the matter of Zhang, that decision of his Honour not being the subject of any appeal, sentenced Mr Zhang to five years six months imprisonment.
That sentence was partly accumulative as I would understand, upon the sentence imposed in relation to a Commonwealth matter. In any event the structure of the sentence was such that the combination of the two offences led to a total sentence of 8 years imprisonment as I can best calculate it, with a non-parole period of something in the order of four years nine months.
Mr Zhang also was sentenced for a number of other offences which sentences, as I can best understand his Honour's orders, were generally concurrent with the principal sentences to which I have referred. I point out in relation to Mr Zhang, firstly by reference to the finding made by his Honour that I earlier quoted from the judgment, the extent of charges brought against Mr Zhang and the role that he played in a practical sense, in respect of what could be called the, "common offending," that is the offence under the relevant chapter of the Criminal Code; although Mr Zhang pleaded guilty to an offence with a lesser maximum penalty his criminality and responsibility is considerably greater than that, which I can conclude beyond reasonable doubt in relation to this particular prisoner.
I pause for a moment to emphasise the fact that I am aware of the fact that Mr Zhang pleaded guilty to a less serious offence than that to which this prisoner has pleaded not guilty. Likewise in relation to Ms Lin, she pleaded guilty in relation to common offending to an offence contrary to s 400.4 that is the offence within the scheme of Division 400 as it is described in the Act that is less serious than the offence to which this prisoner pleaded not guilty. It is concerned in that particular offence with dealing in proceeds of crime to a value of $100,000 or more up to as I would understand it, $999,999.
It has to be pointed out in comparing the situation of this prisoner with Mr Zhang, there is something of a tension between the case that was conducted before me by both parties and the basis upon which Mr Zhang was sentenced. In reading the remarks on sentence in relation to Mr Zhang, it is the case that the facts in relation to him state that he directed the prisoner with whom I am now concerned on only two occasions in respect of transactions with which the current prisoner is concerned.
In that regard, I point out as it is relevant to the fact finding that I am required to undertake in this particular matter, the prisoner in his case filed an affidavit in which he set out matters relating to his subjective circumstances, the circumstances of his former wife, his family and particularly, in relation to his offending. Mr Cheng in fact gave evidence that the affidavit was correct and was available in respect of his evidence for cross-examination.
It is important that I just read onto the record, what Mr Cheng said in his affidavit. He said he met Gulun Zhang as a flatmate in 1994 and they became, "quite close friends." He said, Mr Zhang in fact introduced him to Ms Lin the prisoner's ex-wife. Zhang regularly came to his ex-wife's house at Myra Avenue Ryde, where police conducted searches in July 2012 and then later in the year at which on the later occasion, I would understand they arrested the prisoner and during which searches, the precise details are not important, the false identification used by the prisoner to perform the remittance of money to China had been used. He said that:
"One day when I was there (at his ex-wife's place) he (Zhang) asked me to help him transfer some money to one of his friends. I initially hesitated and felt uneasy about his request. Mr Zhang told me he would provide a fake drivers licence and there would be no problem. Later he paid me between $500 and $1,000 each time that I transmitted cash on his behalf. I felt pressure from him and I felt I could not refuse his request as I considered him to be a close friend. During this time I was considering starting a transport business and I needed extra money to upgrade my truck licence, (sic). All together I think I was paid no more than $10,000. I now see that my conduct was a huge mistake. At the time I failed to really consider how serious my conduct was and I was unaware of the potential criminal consequences of my behaviour. My behaviour has caused huge problems especially for my children. In the future I will never behave in this way."
It is clear from that affidavit, that the prisoner was asserting that all the transactions with which he was concerned were at the direction of Mr Zhang. I point out again the finding made by Judge Toner based on the evidence available to him that Zhang was the "head of a syndicate," involved in money laundering.
The essential evidence given by the prisoner in the affidavit was not challenged here in this Court. The learned Crown cross-examined the prisoner about other matters, which I have taken into account, some inconsistencies for example between his account of the hardship upon his children and their contact with their mother and the mother's assertions in a hearsay form in the course of psychiatric or psychological assessment.
It is in these circumstances that bearing in mind other evidence available from the agreed facts, I am satisfied beyond reasonable doubt notwithstanding the basis upon which Mr Zhang was sentenced in relation to what could be called a "common" area of criminal conduct that the prisoner acted at the direction of Zhang. Yet, Zhang was sentenced as having directed this prisoner on two occasions and other people involved in other transactions on other occasions leading ultimately to him being charged contrary to the lesser provision under s 400.4 of committing an offence between 23 July 2012 and 18 July 2012, involving dealing with money…"namely $770,000 that he intended would become an instrument of crime and at the time of the dealing the value of the money or property was $100,000 or more."
Now I appreciate of course, there are many things that can happen in the course of the prosecution of a matter and negotiations can occur between different parties sometimes leading to agreement as for the character of the charges or the facts to be presented to a Court, which may seem at odds with one another. This is such a case. The Court is constantly concerned about offenders being dealt with at different times by different judges. I appreciate of course, Mr Zhang and Ms Lin were dealt with by the same judge and I appreciate of course, they pleaded guilty.
This accused went to trial and thus he was somewhat separated from the co accused. I point out in passing in relation to another aspect of the matter that is the hardship to the prisoner's ex-wife and the children, but the separation of Ms Lin has worked to the advantage, in my view, of the prisoner's family because Ms Lin has served her term of imprisonment and is now at large in the community whilst the prisoner's litigation was being resolved by the courts.
I am not suggesting for a moment this is an engineered situation, or there is anything inherently wrong with it or that there has been any deception imposed upon the courts. But the truth is, the different appearances of the two prisoners have resulted in the fact, in my view inevitable, that if both persons were to serve terms of imprisonment they were both not imprisoned at the same time which would have left their children to the care of others.
I cannot make any other comment about the matter beyond what I have observed and I am not in any way suggesting any wrong doing on anyone's part. But it seems clear to me, based upon the surrounding circumstances of Mr Zhang's offending and to a lesser extent Ms Lin's offending, that their substantial involvement in identity fraud and other offending points very heavily towards the fact that they were involved in a more substantial and widespread way in criminal offending generally than this prisoner was. The fact that he appears only in relation to one charge highlights to my mind the involvement of the prisoner in the transactions with which I am concerned and that is all. I note of course, the prisoner has not been charged under State law with being involved in a "criminal group," as was Mr Zhang.
The prisoner did not give evidence at his trial and as I said earlier, his defence to the charge brought against him was narrow, legal and sensibly arguable. I note in relation to the matter that he pleaded guilty at the Local Court to a number of other charges as I understand it concerned with the same criminal conduct. The Crown would not accept, in effect, the pleas of guilty to those matters as discharging its obligation to prosecute him. Hence he was committed for trial in relation to the current charge as I would understand it with the matters to which he pleaded guilty being placed on a certificate. Those matters are to be withdrawn and dismissed on the sentencing of him today.
The progress of the matter from the Local Court as is set out in the submissions of learned counsel for the prisoner and was in fact raised with me in the absence of the jury during the trial, to my mind, highlight a matter about which there was no, as I would understand it, specific contrary submission by the Crown. Although, that having been said, it is not determinative of the approach I take.
I am of the view, having regard to what I understand of the course of events in the Local Court and the way in which the trial was conducted before me that there has been a facilitation of justice by the prisoner. By pleading guilty to the indictable matters as I would understand them to be, to which he pleaded in the Local Court, the prisoner sought to offer a solution to the matter, if I could use that expression in a neutral way which would have permitted his committal for sentence.
I must confess, having regard to what I would have thought the prosecution would have understood the role of Mr Zhang, it would have been without any criticism of the Commonwealth Director of Public Prosecutions, open to the Director to have proceeded on that basis. That having been said, the Crown was within its rights to prosecute the accused as it did, there was a legal basis for so doing. The trial as I said, was conducted in an economic fashion, the legal issues that arose were although within a very narrow band somewhat complex and certainly the arguments put by learned counsel for the prisoner were, to use the expression I used earlier, "arguable."
That I found against the prisoner's submissions does not detract from the fact that there was matter that needed to be resolved by the Court. Perhaps it may be resolved in another place in another way, but at the moment the matter proceeds on the basis of the correctness of my earlier decision. I have concluded thus that the facilitation of the course of justice is one that warrants a discount upon the otherwise appropriate sentence.
I am aware of the fact that without having to cite authority that it is appropriate in New South Wales at least in the sentencing for Commonwealth offenders to give a discount for the facilitation of the course of justice, having regard to a range of matters. Some of which might be thought to be common to the issues that were discussed by the Court of Criminal Appeal in New South Wales in the guideline judgment of Thomson and Houlton in 1999. But of course, the issue there was consideration of the, "utilitarian value of the plea of guilty," which is a different concept to the one with which I am concerned. I have concluded having regard to the course of the matter, the steps the prisoner took, that I have earlier outlined and other matters that I should accord the prisoner a discount of 20% upon the otherwise appropriate sentence for facilitating the course of justice.
With regard to the assertions of the prisoner in relation to the facts of the matter, bearing in mind the opportunity that the Crown had to cross-examine him upon those key matters, I have concluded that what he asserts as I have earlier pointed out is not inconsistent with the agreed facts, is supported by other direct evidence and that there are features of the sentencing of the other offenders, particularly the other offences that they committed, to support the conclusion I have reached.
With regard to the sentencing of those other offenders, if I have not already pointed it out, I am aware of the fact that those offenders each received a discount of 25% upon the otherwise appropriate sentence for facilitating the course of justice. With regard to Ms Lin apart from the crime contrary to s 400.4 Criminal Code involving $324,508 she was convicted of possessing equipment to make false documentation, contrary to a particular provision of the Crimes Act (NSW) with a maximum penalty of ten years imprisonment. She was also charged with, "dealing with identification information to facilitate the commission of an indictable offence," again contrary to a provision under the Crimes Act (NSW) which also carried a maximum penalty of ten years imprisonment.
With regard to Mr Zhang, apart from the offences that I have earlier identified for which he was sentenced, other crimes that he admitted his guilt to include an offence contrary to s 145.2 Criminal Code of knowing that documents were false documents being false Commonwealth documents, he had them in his possession with the intention that another person would use them dishonestly to accept them as genuine. An offence carrying a maximum penalty of ten years imprisonment. An offence contrary to s 400.9 of the Criminal Code of dealing with property reasonably suspected of being the proceeds of crime, that carries a maximum penalty of two years imprisonment.
An offence contrary to s 93T(4A) Crimes Act (NSW) of participating in a criminal group to which I have already referred. An offence contrary to s 256 Crimes Act that is on 25 July 2012 having in his possession equipment for the making of false documents, knowing that the equipment was so designed or adapted and with the intention to commit the offence of forgery, which carried a maximum penalty of ten years. An offence contrary to s 255 Crimes Act 1900, of having in his possession false documents knowing them to be false with the intention that he would induce some person to accept them as genuine, carrying a maximum penalty of ten years. They were I hasten to say, fraudulent credit cards. An offence contrary to s 192K Crimes Act (NSW) of possessing identification information with the intention of committing or facilitating the commission of an indictable offence.
It is clear, as the Crown pointed out, that it is required of me notwithstanding the fact that the common criminality for the two other people involves an offence with a lesser maximum penalty, that there are issues of parity and disparity to consider. In that regard, of course there are a number of issues at stake and a general principle way, as the High Court in 1984 determined in the decision of Lowe v R, the purpose of the sentencing exercise is to ensure that people involved in common criminality do not harbour as a result of the sentencing process a "justifiable sentence of grievance."
Putting the matter perhaps in more specific terms however, by reference to more recent authority, in the late 1990s in the High Court judgment of Postiglione, Dawson and Gaudron JJ referred to parity of sentencing as an artefact of the concept of "equal justice." In the more recent decision of R v Jimmy [2010] NSWCCA 60, one of the, as I would understand it, comparative cases to which the Crown referred me but for a different purpose, the three judges of the Court of Criminal Appeal Campbell JA, Howie and Rothman JJ discussed parity of sentencing amongst many other issues. To my mind, the summation of the situation by Rothman J was one that put the matter in a "nutshell," so to speak. He identified equal justice as an aspect of Aristotelian principles of equality, if I might paraphrase his more eloquent words, he expressed it as "alike shall be treated alike and the unalike shall be treated unalike to the extent of their un-alikeness upon rational or reasonable grounds".
In relation to Ms Lin, I cite the judgment of the Court of Criminal Appeal particularly the judgment of Bellew J, as setting out the essence of the basis upon which she was sentenced. He described her, as the trial judge had described her, as a "runner" although he emphasised the point that that did not necessarily, in accordance with Commonwealth legislation, describe precisely what she did. I am mindful of the fact that she was charged, as I have said several times, with a less serious charge than this prisoner. She was involved in fewer transactions.
There was clearly considerably less sums of money involved in total and in individual instances, by and large, except for one transaction and, of course, she was involved for a lesser period of time. One aspect of her sentencing, as was picked up on the submissions of learned counsel for the accused, was that she was sentenced on the basis that she had a belief that the money that was "laundered," by her was in some way connected with some form of tax evasion.
In relation to the issue of the role of the prisoner and assessing particularly, in accordance with s 16A(2) of the Act, precisely what the prisoner did noting what Bellew J said about the role with Ms Lin and the assessment of the role of the prisoner, he pointed out that she had on four separate occasions liaised with Zhang, attended the money transfer businesses, produced large amounts of cash for transfer, completed the necessarily documentation to facilitate the transfers being made and produced false identification. He said, her role was a "significant one." He noted at [61] of the judgment of Lin:
"Without someone to perform it, the conduct of Zhang's money laundering business would have been made more difficult. There is no doubt that in performing the role the respondent was acting under Zhang's direction and control. There is also no doubt that Zhang was responsible for the vast majority of the planning that must necessarily have taken place prior to each transfer being made. Equally the respondent made herself available to accede to Zhang's requests. In doing so she:
(a) was motivated by the prospect of financial gain
(b) was the very least suspcious that the money was the result of tax evasion and,
(c) knew that the presentation of false identification was illegal."
Each of those findings are relevant to this prisoner, save for the fact that there is no evidence that the prisoner was, "suspicious that the money was as a result of tax evasion."
With regard to the outcome of her appeal, in the context of the Crown appeal, his Honour concluded:
"The acts of the respondent and the knowledge with which she committed them, the amount of money involved and the importance of the role that she played are all factors which support the conclusion that the objective seriousness of her offending fell at a substantially higher level than that submitted by senior counsel on her behalf."
Thus warranting a greater sentence. His Honour's assessment of the matter, as my assessment of the matter, must follow upon a judgment of the Court of Criminal Appeal in R v Li (2010) 202 A Crim R 195. That was a bench of five judges including the President of the Court of Appeal and the learned Chief Judge of the Common Law Division, as well as other senior judges. Acting Justice Barr giving the relevant judgment for the Court recognised that offending of this nature comprehends a wide range of criminality. Accordingly there will be an appreciable variation on the length of sentences imposed. He cited a number of factors which he regarded as relevant to the assessment of the objective seriousness of such offending.
Particularly he said at [41]:
"It seems to me without undervaluing the importance of the principle differentiating factors, minimum value of money or property and state of mind, that each case will have other variables and bear on sentence. Perhaps the most important will be an exact appreciation of what the offender did, what acts he performed and with what authority and over what period of time. The total value of money or property involved will be important and whether the money or property belonged to the offender or to another, the degree of planning or deceit that led to the commission of the offence and whether actual loss resulted and the extent of such loss will be important. Just as there is a distinction between recklessness and belief, the precise nature of proved belief may vary so as to affect the sentence. There will be a range of possible strengths of belief rising to certain knowledge as in ………..."
Those observations were adopted by Bellew J and the majority in the judgment of Lin, at [55].
I accept that the Crown cannot establish beyond reasonable doubt that on the part of the prisoner there was any, "degree of planning," other than the prisoner doing what was requested of him by Zhang. Particularly having regard to the findings made as to Zhang's role in an alleged "syndicate" of which the prisoner could not reasonably be described as a "member" other than for the reason that he performed acts at Zhang's direction.
In relation to this particular prisoner, it is important to bear in mind these matters, in the context of the maximum penalty of 25 years, the sum of money was, in a relative sense I hasten to say, slightly above the minimum that attracts the particular penalty of 25 years. I appreciate by reference, for example, to the comparative cases that the legislation contemplates offences above $1,000,000 which in theory could run to hundreds of million or even perhaps one day billions of dollars. Although I would hope not for the sake of the Commonwealth revenue.
That having been said, I hasten to point out that an offence committed of similar type involving a sum of money between $100,000 and $999,999 will attract a maximum penalty of 20 years imprisonment I take on board and recognise, as I obviously would, the significance of a maximum penalty in determining an appropriate sentence for any criminal activity. I bear in mind in the facts of this matter that there were eleven transfers, they were repeated and they were not "isolated."
I conclude as I have earlier indicated that the prisoner was, to use an expression that does not do justice to his role in one sense, a "runner," as was ultimately concluded in relation to the prisoner's ex-wife. The prisoner liaised with Zhang as did his ex-wife, he attended upon many transfer businesses. He on each occasion produced what could be called substantial sums of cash varying from $60,000 to over $150,000. He completed the relevant forms and documentation to facilitate the transfer. He obviously knew the money was being transferred to China and he produced what he clearly understood to be false identification.
He must have known of course, that his photograph appeared on a licence in another name with a different birth date and address. Of course, unlike his wife it could not be concluded that he was the person responsible for the manufacture of "false identification," generally and certainly not the particular false identification. I cannot conclude beyond reasonable doubt that this is the case, but it would seem that either Mr Zhang or the wife were responsible for producing that particular licence. He used this particular false identification on a number of occasions and it was in that context that he is to be sentenced.
This brings me to some matters that arise in relation to the prisoner's subjective case. Bearing in mind the material produced by the prisoner in the context of the facts found in relation to Ms Lin, on appeal, the facts found in relation to her circumstances have a bearing upon the matters with which I am not concerned. There is a presentence report in relation to the prisoner which sets out matters of background that are more ably covered in my view, in the affidavit of the prisoner.
The prisoner currently lives with his ex-wife who is as I said, has been released from gaol. He works full time as a full time B-double truck driver for Trojan Transport Services and has produced banking records showing his income. He earns between $900 and $1200 per week after tax which the appended documentation establishes. He has two children Elizabeth and Lachlan. Elizabeth is 14 years of age and Lachlan is 12 years of age, both attend Ryde Secondary College. Elizabeth is in year ten, Lachlan is in year seven.
The prisoner's family - that is his parents, were persons it would appear to have been, "purged," during China's Cultural Revolution in the mid‑1960s. That is, as I understand my Chinese history, when the 'Gang of Four", in the time when Mao Tse Tung lost control over the running of the government purged many people in the middle and upper classes of China. His parents when he was four were sent to a remote country area to do hard labour and undertake re-education process, I have actually been to China shortly after the Cultural Revolution had finished and met people who were purged by the Cultural Revolution, so I have some direct personal knowledge of these matters. They were intellectuals and university educated people performing menial tasks in Beijing as a result of the way they were treated.
The prisoner lived with his grandparents during this period of time. The prisoner had a brother and sister born after he was born. He is now currently 51 years of age. The prisoner is a comparatively well-educated man. He obtained a Bachelor of Engineering from a tertiary institution in 1987, he worked as a control manager with a business near Hong Kong for a period of time and ultimately came to Australia in December 1989 on a student visa after the Tiananmen Square uprising or "massacre", as it is sometimes called, in that year.
When he arrived in Australia he studied English and undertook business studies and did menial jobs at night. He had no family in Australia. He gained a Diploma of Business from a business college in 1991 and his curriculum vitae and his evidence shows that between 1994 and 2011 he was continuously employed in various occupations which obviously reflects some degree of business acumen and intelligence on his part. He became an Australian citizen in 1997, he completed another Diploma in Marketing in 2002.
His wife and he as I earlier indicated were married in China, their marriage was reasonably happy to begin with, the two children were born in 2001 and 2003. But the prisoner and his wife separated in 2005 and in fact they both as I understand it, remarried other people, but those respective marriages were short lived. The prisoner and his ex-wife had regular contact because of their common interest in the children and after the prisoner's arrest in late 2012 he moved back into his ex-wife's home. He primarily has been the main financial source of support at least for his children, although I gather from the evidence available at the sentencing of the wife, and from material available to me in this sentencing exercise the wife, being divorced from the prisoner, has some income although it would appear to be social security income.
The house in which the prisoner and his wife were arrested by police, the address of which I referred to earlier, was purchased by the ex-wife in 2009. She owed something between 300 and 400 thousand dollars through a mortgage held by a bank. When his wife and he were charged their life was on "standstill" and for three years he has had regular attendances in Court with many delays not of his fault and he feels frustrated by the process. Saying, "I felt angry, depressed, hopeless and very tired."
He has not sought any treatment or medical assistance for himself. His wife however has had mental instability problems for a long time, it was not clear the extent of her psychiatric difficulties until really the time that she was dealt with in the Court of Criminal Appeal. I note from the judgment of Bellew J, that the issue of her mental health was not really a substantial feature of the initial sentencing of her. It was a matter taken into account by the Court of Criminal Appeal in resentencing her. Her mental health however, is a relevant matter in this sentencing exercise because of reliance by the accused upon the terms of s 16A(2)(p), "The probable effect that any sentence or order under consideration would have on any of the person's family or dependence."
The prisoner noted the hardships when his wife was in custody when he had to work and the children were under his care. His mother came from China as I would understand it, to look after the children. She was 73 years of age and had Parkinson's Disease and had problems with communication with the grandchildren because she could only speak I take it Mandarin and could not speak any English. The children had great disruption to their education which I bear in mind. The prisoner says in his evidence in his affidavit that the mental health of his wife has remained "a problem." She receives regular medication and injections for her depressive illness, largely in the form of anti-depressants.
He continues to care for the children, his wife has developed some physical problems with her back and leg. He is not entirely clear as to her financial circumstances. He is concerned that his wife's mental condition will deteriorate if he is in custody and that ultimately there will be no one to look after his children. There is also the fact that his mother would have difficulty coming back to Australia given her age and her Parkinson's Disease. He is concerned that his wife and children may become homeless given considerable household expenses and the fact that his income as I said earlier was the greater of the two incomes available to the family.
At the hearing of Ms Lin's appeal, as I said earlier, the issue of hardship to her family came into much sharper focus in the context of more detailed evidence about her mental health. It was clear on the sentencing of Ms Lin, particularly by the Court of Criminal Appeal, that it was accepted that she had substantial mental health problems. She was a regular attender upon a clinical psychologist, she had difficult engaging in therapeutic interventions, at the time of course, she was in custody and there were obvious stressors available then that do not arise in the wider community. She, by receiving anti-psychotic medication whilst in custody, had demonstrated a deterioration in her mental health. These are matters accepted on the hearing of the appeal.
Before me I have two particular documents that are relevant to the matter advanced on behalf of the prisoner. I have a psychological report available in relation to Ms Lin dated 22 February 2016. That sets out matters of history so far as treatment and other matters. The essence of the report for my purposes is the conclusion reached as to her current psychological functioning. When she was released from custody she reported difficulties with social and occupational functioning, she had fears about leaving her home due to, "shame." And she is low in mood, has difficulties with sleep and reduction and appetite.
I note I hasten to say, evidence of the fact that she is receiving regular medications by injection, or otherwise, from a local health service, including as I would understand an anti-depressant and anti-psychotic medication. It is said that her adjustment concerns following her release into the community have not abated since her release despite continued prescription of medication. She currently:
"Meets criteria for the diagnosis of adjustment disorder, with depressed mood according to diagnostic and statistical manual of mental disorders fifth edition, (DSM-5, 2013)."
The report also says:
"Given her vulnerability for severe mental health difficulties in the past, when she has become overwhelmed and not coping there is a concern that Ms Lin may further deteriorate if her husband is removed from the family home. Additionally the Lin children have been subjected to a tumultuous few years including the absence of their mother for 15 months and her significant poor mental health functioning prior to her sentence. Along with difficulties in adjusting to her return to the community."
The children have become more connected to their father and if he is sentenced to a term of imprisonment it will produce further "turbulence and instability in their lives."
The other report I have is again report from a psychologist relating to the condition of Lachlan. Lachlan has been diagnosed with autism. This is a matter that was taken into account I hasten to say, in the resentencing and the consideration of the appeal of Ms Lin. In that regard it was accepted as relevant to the determination of the appropriate sentence in her matter that the child had autism and this was a matter of substance to be taken into account by the Court. Her affidavit to the Court on resentencing on that occasion was quoted extensively in the judgment of Bellew J [66].
That Court had available to it a report from Dr Nielsson (sic), a very respected forensic psychiatrist, that reflected upon matters concerning her health. With regard to the report concerning Lachlan, that sets out a great deal of detail about the character of his condition. Dr Andrew Sheridan, who holds a Doctorate related to psychology said this:
"My overall clinical opinion (from his various assessments and clinical tests as well as history) is that Lachlan does meet DSM-5 criteria for a diagnosis of autism spectrum disorder (ASD). The (observational assessment) very clearly suggests that there are difficulties with social affecting communication but on the other hand it did not provide much evidence of restricted and repetitive behaviour. In some circumstances this would suggest that Lachlan would better suit a diagnosis of Social (pragmatic) Communication Disorder but in this case I felt that there was sufficient evidence of restrictive, restricted and repetitive behaviours from the questionnaire measures, parental descriptions and teacher descriptions.
Regarding diagnostic modifiers for the ASD diagnosis the severity is more likely at level 2 (requiring substantial support) and Lachlan does not have an overall intellectual impairment. Without further assessment of Lachlan's language skills it is difficult for me to say for certain whether there was a language impairment but from the early language delay and parental descriptions of expressive and written language problems I would say that it is likely in terms of DSM IV(sic) descriptions I would say that Lachlan presents in a similar way to a child with high functioning autism spectrum disorder."
He recommends a series of steps that might be taken. Which suggests, as he says, substantial measures being taken. But it must be fairly said that the child is not severely impaired so as not to be able to undertake regular or mainstream education. He is not so severely impaired as to be incapable of socialising or undertaking social activities. I appreciate autism is a severe disorder, although it varies in severity and I appreciate the analysis of the degree of severity reflected in the report of the psychologist. But of course, in assessing that matter, in conjunction with the condition of the wife, there are issues of degree always in considering the interests of third parties.
To come back to the judgment in Lin, the Court directly addressed the terms of s 16A(2)(p). It is convenient to quote from the judgment at [71]:
"Before a circumstance falling within (the provision) can be given substantial weight it must be exceptional (citing a number of authorities that I need not cite) reference was made."
Justice Bellew pointed out that that view of the law expressed in the judgments that he cited remained the current position of the Court of Criminal Appeal notwithstanding at a setting judgment by Beech-Jones J, in the decision of Zerafa [2013] NSWCCA 222. In the case of Ms Lin Bellew J noted this, at [72]:
"What weight his Honour actually gave to this factor remains unclear. There was, as he effectively acknowledged, little evidence as to the precise effect of the respondents incarceration upon a family. It was open to his Honour to take the matter into account as part of the respondent's overall subjective case R v Nguyen [2006] NSWCCA 369, per James J at [27] with whom the other judges agreed…However there was certainly no evidence to support the conclusion that effect of the respondent's incarceration upon a family was exceptional such that it justified a substantial reduction in sentence."
Their Honours concluded in the context of the material available to them that they could not detect error in the way in which the judge had dealt with the matter.
Of course the issue of what constitutes exceptional circumstances creates a great deal of difficulties for judges both on appeal and first instance. The words "exceptional circumstances" are rarely defined in any context in which they arise. In relation to the area of sentencing people to terms of full time imprisonment substantially involved in drug trafficking, except if where there are "exceptional circumstances," no attempt at definition has been undertaken. Recently the Court of Criminal Appeal in the decision of Polley v R [2015] NSWCCA 247, particularly at [37] - [41], went through a number of authorities of the Court of Criminal Appeal in relation to this matter. The particular cases discussed involved some specific identification of matters that were said to be exceptional but thought not to be "exceptional," for the purpose that they were relied upon.
In the decision of Elshani v R [2015] NSWCCA 254, brought to my attention by the counsel for the accused, there was discussion of this particular matter in the context of sentencing pursuant to Pt 1B Crimes Act (Cth). I particularly refer to [30] [35]. There the Court again declined to follow what had been the dissenting judgment of Beech-Jones J in Zerafa, citing the observation:
"The principle stated by the majority (in Zerafa) had now become too embedded for this Court to reconsider it."
I say in passing although I make no law whatsoever, I am bound by the decisions of my superiors so to speak. I have great deal of difficulty understanding with a penal statute or a statute in aid of a penal provision as how words can be read in which do not appear in the legislation. Why the word "exceptional," instead of the word "substantial," or "significant," if those words have any "substantial" difference. Be that as it may in the facts of that case, of Elshani it was noted at [36] the Court had concluded that;
"Psychological injury suffered…by each member of the applicant's family as a result of his incarceration is indeed exceptional within the meaning of the term at common law and thus is to be taken into account under s 16A(2)(p). It is substantially greater than the ordinary or expected sadness, anxiousness, or disappointment that would normally follow a separation of the present kind. Furthermore that each member of the family is adversely affected reduces the ordinary support usually provided by members of the family to each other. It follows that real significance should be accorded this factor when weighing the applicant's subjective significant circumstances."
I ultimately come to the conclusion notwithstanding the view the Court took of Ms Lin, that, as with the decision of Elshani, I should conclude ultimately that the prisoner has made out the requirement of s 16A(2) (p). To paraphrase the more eloquent words of the judgment of which I referred, the matters that I am considering in terms of hardship to the prisoner's wife and children arising out of the prisoner's incarceration, in the context of the vulnerability of the wife and the child Lachlan, is "greater than the ordinary or expected," hardship or other affects that would arise from a separation of this present kind.
I pause for a moment to point out of course, that part of the prisoner's wife's mental health issues I appreciate are in part contributed to by her imprisonment for crimes that she justly was imprisoned. It also, in this case, shows to me that the affect upon the family of the prisoner's imprisonment or the potential affect reduces the "ordinary support," that could be provided one for the other. One could not reasonably expect the children to provide much support for their mother. The mother's capacity to support her son particularly is greatly limited by the unavailability of the prisoner. To my mind, the effect of these matters arising from the evidence that I have identified upon the family through the prisoner's incarceration are matters of "real significance."
Having been concluded as a matter favourable to the prisoner it does not lead me to the conclusion as I have foreshadowed that the prisoner should not spend any time in custody. But the conclusion I have reached is that it is a matter relevant to a consideration of not only the total sentence to be imposed but also relevant to a consideration of affixing of the non-parole period. The way that it was argued before me, as I have understood the skilful submissions of Mr Barrow, was that it was a matter that would ultimately reduce the appropriate sentence to the point where the Court can consider an option other than full time custody. It is clear to me both by regard to the crime committed by the prisoner in the context of the matters I have to take into account even giving full value to all the favourable matters available to the prisoner, that I could not accede to the submission of counsel for the prisoner, in that ultimate regard.
I have other material of course, that touches upon what I could call, for want of a better description, the subjective case of the prisoner. I have a pre‑sentence report, from the New South Wales Department of Corrective Services through its Community Corrections Service. That report sets out matters of the history as I said earlier that there is better and in more detailed way set out in the affidavit of the prisoner, which is effectively not challenged in that regard. With regard to the report of the Community Correction Service I am aware of the fact that it reflects favourably upon the industry of the prisoner, in the course of his time in Australia. It notes in relation to his attitude to offending that he makes no excuses for offending.
He knew what he did was wrong. He believed he was pressured by his ex-wife and his other offender, although no issue of exculpatory - non exculpatory duress has been raised or argued before me. He did not blame those other people. He acknowledged that his behaviour was his own responsibility, he became upset when discussing the offence and was worried about his children. He is assessed at low risk of reoffending. He needs to address matters relating to family and relationships on his release from custody.
He was forthcoming and cooperative during the preparation of the interview and provided relevant verifying information. He was very self-contained and self-reliant so it was difficult to accurately assess his presentation. He was anxious, he was worried and he felt socially isolated. He had no free time whilst his wife was in custody with the responsibilities with work and his children, and his regret appeared to be genuine insofar as his behaviour was concerned.
He produced a number of references from people that had worked with him and generally their observation of him was that he was a responsible person and that his conduct was relevantly "uncharacteristic" which I accept. He was regarded as hardworking and essentially family orientated, at least orientated towards his children. I have taken that into account. The prisoner had no prior criminal convictions and there is no mental health issue which can be pointed to either in mitigation or suggesting that he presents a danger to the community.
With regard to the submissions of the parties a number of matters that were raised in the submission, bearing in mind the oral submissions very much centred upon the issue of the hardship for parties to which I have already referred. The Crown's written submissions go through the provisions that the Court is required to have regard, as I fully understand. There will be no finding of special 'circumstances' or other findings consistent with sentencing someone under State legislation as occasionally occurs in other Courts.
I have already commented upon the nature of the circumstances of the offence pursuant to s 16A(2) of the Act in the significance and relevance of the maximum penalty. The consideration of the role of the prisoner of course, includes not only what he did but seeing what he did in the context of the responsibility of others having regard to the significance of "parity" principles. By reference to s 16A(2) although the Crown did not refer to all relevant provisions, there are no other offences required to be taken into account, and the offence does not form part of a "course of conduct." It includes a course of conduct, but it could not be said that this offence is one event in a series of events in suggesting a course of conduct beyond the scope of the offending.
There is no particular victim other than the Commonwealth of Australia perhaps, although the extent that the Commonwealth of Australia is denied revenue is not made known to me. Thus the measuring of the loss is impossible. Nobody has suffered any harm. In my view the prisoner has shown contrition for the offence through the evidence he gave in the Community Corrections report, s 16A(2)(f) there is no issue of reparation that arises.
In my view there has been a degree of, if I could call it, pre-trial cooperation with the Crown. I hasten to say I am very mindful of the fact that the prisoner when he was spoken to by police, gave an entirely false account to them in the electronic interview and denied any wrong doing but he gave evidence before me in the circumstances in which he found himself, that ultimately it was, "easier to say no," in other words to just to deny his involvement and given the situation in which he was in, given his prior good character one can understand that if not condoning it. He has cooperated with the trial process if not the law enforcement agencies.
As the Crown points out, personal deterrence is a relevant matter, having regard to s16A(2)(j), but given the uncharacteristic nature of the offending and the fact that I am satisfied that the prisoner will not offend again in the future and particularly to this scale, it is a matter that ultimately will be met by the imposition of full time custody. There of course, must be an element of general deterrence in this offending, again in keeping with the character of the criminality. I accept of course, in accordance with s 16A(k) the need to ensure that the person is adequately punished for the offence. I have dealt with the character and antecedents and other relevant personal aspects of the prisoner.
In accordance with s.16A(2) (m) I conclude that there are excellent prospects of rehabilitation for the prisoner. In that regard I note the correct submissions made by the Crown at paras 10 to 13 as to personal and general deterrence, paras 14 and 15 concerning adequate punishment and paras 16 to 18 in terms of the character and antecedents of the prisoner. Of course I have taken into account the Crown's submissions in relation to hardship to third parties.
With regard to setting the sentence I understand of course, that I must only impose a term of imprisonment if it is the only appropriate penalty that can be imposed and of course I am well aware of the technical requirements to fix a non-parole period for a term of imprisonment of more than three years or an order requiring release on reconnaissance if a term of imprisonment is three years or less. I believe all these matters have been adequately addressed in my remarks.
Likewise in fixing a minimum term I am fully aware of the decision of Hili v R; Jones v R [2010] HCA 45. In fixing the minimum term I am required to have regard to long standing authority from the High Court about the purpose of minimum terms such as in decisions such as Power v R [1974], and the Victorian appeal of R v Bugmy [1990] HCA 18 (from 1990 not the New South Wales appeal of Bugmy decided in 2013). With regard to Crown's submissions they provided me, as I said earlier, a schedule of cases. I brought to the Crown's attention an article in the Judicial Officers Bulletin from July 2014, an article of great learning from Basten and Johnson JJ in light of the decision of Barbaro v R (2014) 253 CLR 58. They stated the case establishes two principles which should guide sentences following "a plea of guilty." Here there is not a plea of guilty.
"The prosecutor's role at the sentencing hearing is to ensure the Court is informed of all the circumstances material to the determination of a proper sentence and an offender should not expect to derive comfort from any expression of opinion as to the appropriate sentence made by a prosecutor in the course of plea bargaining."
But their Honours went on to examine the more subtle aspects of Barbaro, which has led to some considerable misunderstanding as to the role of the Crown. They concluded that the point that they wished to make in their learned article was that contrary to some views:
"The primary consequence of Barbaro is to emphasise the importance of the prosecutor's role in providing real assistance to the sentencing judge which should demonstrate an available range for sentencing rather than simply stating the range without identifying the underlying assumptions and supporting material."
Their Honours affirmed, "the prosecutor's duty to draw to the Court's attention relevant sentencing principles," and, "what has been done in other (more or less) comparable cases." The result should be, their Honours observe, "To discourage conclusory and unhelpful submissions by the prosecutor." I do not for one moment dare to suggest that the submissions of the learned Crown have not been helpful. Quite the contrary. But I invited the Crown to assist me in relation to the comparative cases, of which there were in total nine, as to how they assisted me in sentencing this particular prisoner. I have read each of the cases as they have been provided to me and a summary appears in a schedule attached to the Crown's helpful submissions.
I received supplementary submissions which deal with general matters of principle arising out of Barbaro, Hili, and of course Wong v R [2001] HCA 64 a judgment in which the High Court in 2001 struck down a guideline judgment for sentencing in Commonwealth matters fixed by the New South Wales Court of Criminal Appeal.
The Crown indicated that its schedule had sought to provide comparable features, I have noted what the Crown has said and whilst I have had regard to those comparative judgments I state in a general way without having to go into great analysis that there are many, many differences between the circumstances of this prisoner and the character of the offending and the particular cases that have been identified as arising specifically under s 400.3 and/or 400.4 Criminal Code. In fact of the cases the Crown has provided me, for consideration in relation to the matter, as I note the for example from the table, there are three of the nine cases that simply deal with s 400.3.
The role of this prisoner and his knowledge of any particular "offence," or the character of any "offence," giving rise to the charge might be compared, if I might use the expression advisedly, "favourably" with a person for example such as Maldonado, who was involved in the manufacture of or aiding and abetting the manufacture of 34 kilograms of border controlled or prohibited drugs and money laundering activities related to drug supply. Or, perhaps the Ansari Brothers who were professional money dealers and I would have thought, remitters who clearly took advantage of their knowledge of the system which could not be said of the prisoner. In any event, I have had regard to those judgments.
I have referred through the course of my judgment to many matters that are raised in the written submissions of learned counsel for the prisoner. I do not believe there is a need to repeat matters arising from the submissions that I have already treated one way or the other. Counsel has raised issues such as the prisoner's good character and the way the trial was conducted, the hardship to third parties, parity issues, ultimately submitting that, bearing in mind the sentence imposed upon Ms Lin which he relies upon, I could conclude a sentence of imprisonment other than requiring full time custody.
There are differences in the criminality of this prisoner from Ms Lin. But there are of course other considerations such as the greater maximum penalty. There is in the background of this matter of course. The suggestion of the taking of advantage of the prisoner by his ex-wife, to some extent. But that having been said, even though I have quoted extensively from his affidavit, there are matters in his affidavit that remain unspoken. He felt some "pressure," from Mr Zhang. He has claimed that he felt there was some pressure of disadvantage or advantage being taken of him by his wife. But he does not articulate anything with clarity other than the fact that ultimately he was prepared to commit the offences for financial gain. Admittedly in the scale of things, relative modest financial gain which I have taken into account.
It should be borne in mind, of course, that he committed two such transactions on the first day. Any reservations he had about the matter, even allowing for his lack of clear knowledge of the source of the money and the like, must have been particularly short lived.
With regard to the issue of his conduct being "amateurish," it is fairly to be said, in the context of that submission by counsel for the accused, that the prisoner did not design the mechanism by which the money was to be transferred. It was not his money. And of course, most importantly, he was the person most exposed to detection because he was the person who could be recognised subsequently as the person who came into each of the remitter's premises. Notwithstanding the fact that he was carrying false identification.
I have taken all those matters into account, But ultimately, by reference to the final position of counsel for the prisoner, I cannot accede to the making of an order that would prevent the prisoner serving full time custody, giving full favour and weight to the favourable matters that emerge from the evidence.
Thus, for those reasons, I have concluded that I should impose a sentence that represents a sentence with a deduction of 20% to recognise the facilitation of the course of justice by the prisoner. I point out for the benefit of the parties I have rounded down the total sentence by half a month. My calculation would actually lead to a sentence involving months and some weeks which is inadvisable. Could you stand up please Mr Cheng, thank you.
In relation to the offence that you have been found guilty of you are convicted, you are sentenced to two years and nine months imprisonment. To commence today 18 March 2016. That will expire on 17 December 2018. I direct that you be released at the expiration of one year and three months that is on 11 May 2017 of your sentence. Upon you entering a recognisance pursuant to s 20(1)(b) yourself in the sum of $500 to be of good behaviour for a period of three years from this date and to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period.
A further condition of the recognisance is that you accept the supervision and guidance of an officer of the New South Wales Community Correctional Service, for that period of three years and obey all reasonable directions of that Service. You will be required to report to Community Corrections within seven days of your release. I will not make any other conditions of the recognisance, as to employment and residence, because they are matters about which I cannot make any future prediction.
Now with regard to the s 166 certificate matters they are - I made an error there I think in the judgment.
HIS HONOUR: Madam Crown there are notices of the committal - there are committal charges are there not that are to be withdrawn dismissed is that correct?
JAMSHIDI: They were dismissed, they were withdrawn and dismissed on the last occasion.
HIS HONOUR: Were they?
JAMSHIDI: However the one--
HIS HONOUR: There is the notice of the - and the s 166 certificate matters are they to be removed?
JAMSHIDI: They need to be remitted back to the Local Court and withdrawn there.
HIS HONOUR: Why can't they be withdrawn here?
JAMSHIDI: I understand that's what the procedure is.
HIS HONOUR: Well that is not the case. If it comes here under section - sit down please Mr Cheng - under 167 of the Criminal Procedure Act I have power to withdraw and dismiss matters on a certificate if the certificate is rightly before the Court. I would prefer to do that now rather than save you or someone else having to wander to Court and save the time of a magistrate.
JAMSHIDI: Yes your Honour, would you like me to hand up a copy of the s 166?
HIS HONOUR: I thought you handed it up last time?
JAMSHIDI: Did I, okay.
HIS HONOUR: Well we'll check, I've had the file here. But hand up the certificate and with regard to the s 166 certificate I take it you wouldn't have any objection to that Mr--
WATSON: No your Honour.
HIS HONOUR: --Watson, the matters on the s 166 certificate are withdrawn and dismissed.
I will amend my judgment. I made an error there. I refer to the s 166 certificate as being that as to which he pleaded guilty. But they came here by way of notice of committal. The certificate is exhibit 2 Madam Crown, you handed it up to me, and pursuant to s 167 of the Act I exercise the power to dismiss the charges. That is fine, could we have the Corrective Services officers up. Mr Cheng I need to just briefly explain the sentence I have imposed upon you. You will serve a minimum term of one year three months, subject to rights of appeal of the prosecution and yourself. You will be released on 11 May 2017. You will be subject to recognisance to be of good behaviour for the period of three years from that date and you will be required to be of good behaviour and to report to New South Wales Community Corrections and obey all reasonable directions of that Service during the term of that supervision.
HIS HONOUR: Do you understand?
OFFENDER: Yes your Honour.
HIS HONOUR: Right thank you, you can take a seat. Any other matters I need to explain to the accused madam Crown?
JAMSHIDI: No your Honour.
HIS HONOUR: Any other matters I need to deal with Mr Watson?
WATSON: No your Honour.
HIS HONOUR: Sorry to have kept you for so long. Yes thank you, gentlemen I have sentenced Mr Cheng - sit down Mr Cheng. The Corrective Officers have to take you in a moment - to two years nine months imprisonment with effectively a minimum term of one year three months dating from today. He will be released under Commonwealth legislation subject to his rights of appeal, and the rights of appeal of the Crown on 11 May 2017. That is the detail of the sentence I have imposed, all right. Mr Cheng will explain I do not think he has ever been in custody before I do not think he has ever been in gaol before.
He is a 50 odd year old man, he will not I would have thought, require any particular protection steps. But anyway that is a matter for you to liaise with him right. But he does not have any - your client does not have any particular medical conditions that the officers need to be advised of or anything like that Mr Watson? He may need to be seen by Justice Health of course, and he might need immediate some short term treatment. But there is no immediate acute problem that you need to know about at this point. Yes thank you Mr Cheng you are excused thank you.
Thank you Madam Crown. Thank you Mr Watson. Can I just mention one thing just for the record not that it matters. I required a transcript of the last proceedings when you appeared before me. It arrived today at about midday and I was in the middle of a trial. I haven't had a chance to read it at all, all right so I just let you know that a transcript has been taken out and it arrived ‑ I'm not criticising Reporting Services. They've got very limited resources but it arrived at a time when it was just - I had already completed the work I needed to do on judgment and I just didn't get an opportunity to read it. I was sitting in a trial until quarter past one. So unfortunately…. But it is there. Thank you.
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Decision last updated: 23 February 2017
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
CHENG, Benny Zhong
Legislation Cited (4)
Anti-Money Laundering and Counter Terrorism Act 2006(Cth)