Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2020/00072903
[2]
Introduction
Thi My Phuong Hoang was presented today upon an indictment alleging an offence contrary to s 400.9(1) Criminal Code Commonwealth that she, between about 28 February 2020 and about 29 February 2020, in Sydney in the State of New South Wales and elsewhere, did deal with money it being reasonable to suspect that the money was the proceeds of crime, and at the time of the dealing the value of the money was $100,000 or more.
[3]
The Circumstances of the Plea
The matter was set for trial this week but concluded ultimately with a plea of guilty to the charge after his Honour Judge Gartelmann SC determined a pre-trial issue arising from the challenge to the search of the offender and the motor vehicle in which she had travelled and a suitcase. His Honour ruled in favour of the admissibility of the evidence harvested during that search and thereupon, today, the accused, now the offender, pleaded guilty.
The proceedings were first listed for trial on 19 July 2021 but were vacated due to the COVID-19 pandemic. The trial was again listed to start on 14 March 2022, with pre-trial argument upon the admissibility of the evidence of the search. His Honour, Judge Gartelmann SC, determined that question on 18 March 2022.
In those circumstances, against a trial that was expected to continue for five to seven days with the need to call five witnesses, the Crown concedes that there is some utility in the plea entered but also submits that the pre-trial issue having been resolved in favour of the Crown, the case for the prosecution was left in a very strong state, and that the Court would conclude that the plea of guilty could be accepted to some extent as recognition of what was the inevitable outcome of the proceedings rather than entirely a demonstration of genuine remorse and acceptance of responsibility and a willingness to facilitate the course of justice.
The circumstances are not so simply resolved because it is not to be overlooked that when she was arrested the offender participated in an interview with police officers in which she made several admissions that reflected acknowledgement of at least a measure of her wrongdoing.
Of course, if there was a question over the legality of the search that led to the discovery of the money the subject of this charge she was perfectly entitled to pursue that argument and she bears no added burden from having exercised that opportunity, but it does impact upon those matters to which the Crown has pointed in the balancing exercise one must undertake and the synthesis of information before the Court.
I accept the Crown's submission, but as I have said, not overlooking that she did make the admissions that are summarised in the facts.
[4]
Pre-Sentence Restrictions
The offender has spent no time in custody for this offence. She has been on bail however since her arrest and although subject to conditions including reporting conditions for part of the time, the bail conditions were not so onerous as to impact greatly upon the punishment that the Court must consider is appropriate in this case.
[5]
The Circumstances of the Offence
She has no prior antecedent criminal record. She was born in 1983 and is approaching her 39th birthday.
The amount of money that was the subject of the charge was $261,445.
The circumstances of the offence are as follow. In the early hours of Friday 28 February 2020 the offender and a person named Lin and the offender's daughter (this was in fact the daughter of Pham whom they met at the end of the journey) travelled by motor vehicle from Melbourne to New South Wales. About 1.25pm on Saturday 29 February 2020 they arrived at the Star Casino in Pyrmont. Lin was driving, the offender was a passenger. At the casino both the offender and Lin were met by the offender's partner, Felix Pham. Lin removed his black suitcase and the offender's red suitcase from the boot of the vehicle. The offender, the child, Lin, and Pham then all entered the casino foyer. Pham was in possession of the offender's red suitcase at that point.
Police who had arrived at the scene intercepted the group in the lobby of the Grand Hotel within the casino complex. They subsequently detained Lin and the offender. I am told that Pham was released and allowed to leave.
A Commonwealth search warrant was executed on Lin, on the car, and on the suitcases, and in the red suitcase, which was that of the offender, they found cash amounting to $261,455 in clear plastic sealed bags located in the zipper compartment on one side of it. There were various items of women's clothing located within the other half.
The offender and Lin were arrested following the search and both participated in interviews. The offender made the following admissions in hers: she had travelled from Victoria to Sydney with Lin, she had been given a backpack containing a large sum of money by an unknown male in the middle of the night before she was arrested, she did not know the name of the person who delivered the money, she was told by the unknown male to deliver the money to Pham, she had been unable to contact Pham as he was flying from Vietnam to Sydney at the time, she did not count the money in the backpack however was aware it contained over $300,000, she packed the money from the backpack into her red suitcase and took it with her to Sydney, she was meeting Pham at the Star Casino where they were going to stay for two nights before returning to Victoria by car, the red suitcase located by the police was hers, the money located in the red suitcase was the money she has been given by the unknown male, Pham was employed as an optometrist and she said she was unemployed, she acknowledged that the circumstances of the delivery of the money were strange, she took the money with her to Sydney as she was worried it would get lost and was too much money to leave at home.
Lin in his interview and a statement included representations that the suitcase and the money was not his, that he had picked up the offender and the child from Noble Park around 1.40pm, had driven them from Victoria to Sydney, and that the offender and he had shared the driving.
[6]
The Offender
She was 36 years at the time of the offending according to the facts. She is not an Australian citizen; she is from Singapore here on a student bridging visa.
There is little known of the offender beyond the fact that she has no criminal antecedents, at least in the Commonwealth of Australia including the State of New South Wales.
Material tendered in her case includes documents from her employer operating a nail studio in Victoria, confirming that as of 20 June 2021 the offender was working 32 hours per week at $21 per hour and was continuing. She commenced working full-time on 20 June 2021, apart from the time when the business was closed during lockdown because of the COVID-19 pandemic. She is a valued employee, hardworking and trustworthy. She is said to be quietly spoken and very popular with customers because of her skill, attention to detail, and good customer service.
There is information regarding her salary at $21 per hour. The income in the three periods covered varies according to the hours she worked. For 41 hours she earned a gross income of $861 plus superannuation contribution. For 50.5 hours she earned $1,060.50 plus superannuation contribution. For 43.5 hours she earned $913.50 plus superannuation contribution. From that gross salary her PAYG tax was extracted.
She is, according to this material, someone who earns a modest income. I am told that she has no debt and has no need to contribute any of that income to other persons, although there must be some additional cost beyond herself.
I mistakenly perceived that the child was hers, but during judgement I was corrected and informed that the child was Mr Pham's and the offender had no financial burden in respect of the child.
[7]
Submissions and Consideration
The parties helpfully provided written submissions which I found to be of great assistance, particularly in circumstances where I know little of the offender who has not given evidence in these proceedings. The Crown concedes that I am to decide the sentence that should be imposed in this matter without additional knowledge of the use to which the money was to be put and what was to become of it after delivery to Mr Pham at the casino in Sydney. I am not able to draw an inference that the casino was to be used for some purpose connected with the money, to perhaps launder it. Though one might suspect that to be the case I could not conclude to the requisite standard that was to be the ultimate use to which the money was to be put. Thus I am left to determine the matter upon the limited facts that are before me.
A point of contention that arose during the submissions was reference by the offender's counsel in paragraph [16] of her written submissions to the judgement of Bellew J in Shi v R [2014] NSWCCA 276, where it was said that his Honour spoke of money laundering offences contrary to this provision at the lowest end of the scale of seriousness.
The Crown wished to clarify and make sure it was understood that was not what Justice Bellew was necessarily advancing in his judgement and was not to be read as suggesting that by force of the provision creating the offence this misconduct fell at the lowest end of the scale of money laundering offences. As I understood what his Honour said, and as I took from the submissions that were provided in writing on behalf of the offender, his Honour was referring to the scale of offending according to the range of the provisions for money laundering offences, noting that an offence contrary to s 400.9(1) is toward the lower end of those examples of legislated misconduct.
As was made clear in the Crown submissions, the structure of legislation under the Commonwealth Code dealing with money laundering includes offences in which the offender knew the money was the proceeds of crime, which is not this case where the conduct must be assessed upon the grounds that it is objectively reasonable to suspect that the money dealt with by the offender was the proceeds of crime. Moreover, the legislature has drawn a distinction in s 400.9 between offences involving dealing with money or property to the value of $100,000 or more with a higher maximum penalty than for those offences involving money or property less than $100,000.
The Crown concedes, very fairly I might say, that the conduct upon which the offender engaged requires appropriate weight to be given to general deterrence and that from the nature and circumstances of the offending a conviction is warranted together with a sentence of imprisonment, but that in this case it was open to the Court within the exercise of its discretion to make an order that did not involve the offender being immediately incarcerated.
On behalf of the offender it is said that in this case it is appropriate to take that course and it is suggested that a period of nine months with a substantial fine could be specified as the term of imprisonment, but that the offender be released immediately upon entering a recognisance release order. Both have invited my attention to s 27(1)(b) Crimes Act 1914.
This being a Commonwealth offence I am bound to follow Part 1B Crimes Act 1914 with the governing principles enunciated in s 16A requiring a sentence of appropriate severity according to all the circumstances, specifically taking into account matters itemised in s 16A(2) to the extent that they are relevant and known to the Court, together with appropriate weight to be given to general deterrence in accordance with, for example, R v El-Karhani (1990) 21 NSWLR 370.
The Crown has reminded me of the general sentencing principles that have been developed by the appellate Courts for offences of this type. The Court needs to consider where the offence sits in the scheme of offences provided within the division where this offence is found in the criminal code. The value of the money is highly significant. General deterrence requires significant weight because it is said, accurately in my view, that money laundering and the role of the money launderer are important cogs in the wheel of organised crime. Organised crime is a business the purpose of which is to make money, the use of which can only be achieved with appropriate facilities for laundering it.
To facilitate those who have such nefarious purposes it is often the case that individuals such as this offender, without criminal antecedents, who would not be likely to attract suspicion, are used in these endeavours, and thus she has been, I would suggest, exploited to the extent that she was called upon to transport a significant amount of money between two States for delivery to the person Pham in Sydney.
Though she has, I would accept, been exploited in that fashion, because her willingness to do so the people who had other purposes in the use of this money would have been able to achieve their goals, but for the interdiction of the law enforcement officers.
Focussing upon the precise circumstances is required of the Court, including her actions which constituted the dealing, the time over which the offence was committed, her role in the matter. It is not entirely clear what reward, if any, she was to receive from this exercise. The period over which the offending occurred was limited but it involved travel over a significant distance between two States, between the capital cities in those States, and the amount of money is not insubstantial.
There was one transaction; she was at least suspicious of the source of the funds because of the "strange arrangement" to adopt what was said by her in the interview. I accept the money did not belong to her. I cannot say what precise loss or gain was likely to be achieved by those for whom she was acting. I have, according to her interview, her understanding that the money was to be given to Pham, her partner, for whatever purpose and whatever ultimate destination. One way or another, objectively this was money either sourced from or for use in organised criminal activity, the precise nature of which is simply not known.
The Crown acknowledges that the offending is serious but towards the lower end of the scale when one considers the indictable offences covering this type of activity, and the maximum penalty prescribed for this particular offence that is the yardstick amongst other things that the Court must bring to account when determining the appropriate punishment.
General deterrence is a relevant factor. As I noted a moment ago, the goal of laundering funds ultimately has as its purpose protection of the profits of a criminal enterprise; there have been various expressions of the nature of money laundering and the importance it has to organised and professional criminals. Disruption of money laundering is central to the disruption of organised criminals. It is though difficult to detect, investigate or prosecute. I agree with the observations made by the Crown in their submissions.
I have been reminded of various authorities speaking to this behaviour. I have considered the nature and circumstances of the offending. She had responsibility for the money once it came into her possession in a backpack from which she transferred it into her suitcase, and then its transportation in the motor vehicle to Sydney until it was relinquished to Mr Pham at the casino shortly before the intervention by the police.
The Crown submits, and I accept, that it must have been obvious to her that the money was the proceeds of or for some criminal activity whatever that might have been. The Crown concedes that there is little or no evidence as to the organisation behind the offence and the source of the funds or the ultimate use to be made of them. She is acknowledged to be a low-level courier, acting at the direction of an unknown person for the benefit of a third party, namely her partner, who was allowed to leave perhaps prematurely on the night of her arrest.
The guilty plea is noted. The timing of the plea was not at the first opportunity. As I earlier noted, there is a question mark over the extent to which this demonstrates genuine and complete remorse and acceptance of responsibly and willingness to facilitate the course of justice, with the qualification, as I have said, that she did make admissions during the interview with the police in which she was not obliged to participate at all.
The Crown case relevant to the charge ultimately prosecuted I find was compelling in the circumstances. It would be disingenuous to suggest that she did not recognise the inevitability of what was going to follow this prosecution. She did cooperate with law enforcement by making full admissions acknowledged to be so by the Crown in their written submissions. Her age is noted.
I am reminded of what Justice Wilson said in Imbornone v R [2017] NSWCCA 144 when assessing evidence of representations attributed to an offender that might be led from third parties. This case was unusual in the sense that there is no third-party representation apart from the particulars of her income from her employment. There is no psychological assessment and no character references other than that which speaks of her value as an employee in the nail salon.
Rehabilitation is difficult to assess in the absence of knowing what motivated her to become involved in this. The fact that she has no criminal antecedents at this stage of her life carries with it the implication that her prospects of rehabilitation must have some weight, but it is difficult to assess those and in any event they should not be allowed to outweigh or overbear the other factors that inform the exercise in this case.
I have noted she has no pre-sentence custody. I have noted the comparative sentences that have been advanced by both the Crown and on behalf of the offender; ultimately the Crown, as I said, concedes that a custodial sentence is appropriate upon conviction but one that will involve no period of fulltime imprisonment.
The submissions made on behalf of the offender are not dissimilar to those by the Crown subject to a comment I made regarding paragraph [16]. Comparable cases were advanced in these submissions together with what was required upon the application of s 16A Crimes Act 1914. What was said of the nature and circumstances of the offence by the Crown are not dissimilar to what has been said on behalf of the offender.
Some matters that I should make comment upon are that there is no individual victim of this misconduct; there is no injury, loss or damage resulting from the offence that might be quantified; and the money was recovered by the police. However it should not be overlooked that but for the interdiction of the police the money would have gone to its ultimate intended purpose and although there is no actual injury, loss or damage that could be demonstrated in respect of this money the potential was there. Again though, it is unknown precisely what purpose the money was to achieve and it is not known precisely what the source of the money was.
Ultimately I agree with what has been said on behalf of the offender about the outcome in these proceedings. It is not usually the case that counsel might advance in such definitive terms what the order of the Court might be but this is a somewhat unusual case.
[8]
Conclusion
I intend to convict the offender. I consider that no order other than a sentence of imprisonment is appropriate. I have turned my mind to those questions. I am satisfied that it is appropriate to convict the offender, to impose a sentence of imprisonment, but to order her immediate release upon entering a recognizance release order, a condition of which will be to pay a pecuniary penalty. This is causing me some challenge I might say. I know little of her financial circumstances, or what asset base she might have. I am limited to three periods of income that she had as a technician in a nail salon. So lest I impose too great a penalty according to her capacity to comply with this order I intend to require her to pay $5,000.
[9]
Orders
Pursuant to s 20(1)(b) Crimes Act 1914, incorporating aspects of s 20(1)(a), noting that the order pursuant to s 20(1)(b) refers to security of the kind referred to in paragraph (a), I convict the offender of the offence to which she pleaded guilty before me earlier today.
I specify a period of imprisonment to which the offender is sentenced of 9 months but I order that she be released upon giving security herself in the sum of $5,000, to be of good behaviour for a period of 2 years.
I order that she pay a pecuniary penalty of $5,000 as a condition of the recognizance release order. I allow her 28 days to pay the pecuniary penalty.
I shall make the orders that the Crown seeks by way of short minutes pursuant to s 48(2) Proceeds of Crime Act 2002 (Cth) in respect of this conviction noting that the offence to which she has pleaded guilty and of which she has been convicted, that the sum of $261,445 seized from the offender on 29 February 2020 by the Australian Federal Police be forfeited to the Commonwealth. There is no order as to costs.
[10]
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Decision last updated: 07 June 2022