Solicitors:
Office of the Commonwealth Director of Public Prosecutions (Crown)
Goh Lawyers (Offender)
File Number(s): 2013/23304
[2]
Judgment
Yi-Hua Jiao was charged by the Commonwealth Director of Public Prosecutions with an offence against the Criminal Code 1995 (Cth). The charge was laid under s 400.9(1) of the Code. The charge is contained in an indictment which was filed in the District Court on 12 December 2013. The charge alleged that between 19 and 22 January 2013, in Sydney, Ms Jiao "dealt with money, it being reasonable to suspect that the money was proceeds of crime, and at the time of dealing the value of the money was $100,000 or more."
Ms Jiao was arraigned before me on 1 December 2014 on the presentation of that indictment by Mr B Neild, the Crown Prosecutor. She pleaded not guilty and accordingly there was a trial with a jury. The jury returned a verdict of guilty two days ago on 17 December 2014. I therefore now have to sentence Ms Jiao for this crime, which I convicted her of when the jury returned with its verdict.
It is first important for a judge to set out briefly what happened which constituted the crime, so that the judge can make an assessment of how serious an example of the crime this particular offence was. Ms Jiao holds two passports, one from Taiwan and one from New Zealand. She flew to Australia on 18 January 2013 and was staying at the Star Casino here in Sydney.
Two days later, on 20 January, she collected a bag of money from a man who has been identified as a Mr Nguyen. She did not know Mr Nguyen before collecting the money. There was an arrangement for them to be able to identify each other. It involved the serial number on an Australian $5 note. Once the identification was made, Ms Jiao accompanied Mr Nguyen into the casino car park. They then returned to the room in which she was staying in the hotel attached to the casino. There we understand that the bag was opened. It was a backpack covered with a plastic bag. Inside the backpack was money. The money was Australian currency. Ms Jiao then went down to the casino part of the building and handed the money in to be counted. The money amounted to over $620,000.
I heard evidence from a relatively senior member of the casino staff about the condition of the money. The bank notes were not in good condition, or at least many of them were not. They were in some way soiled and they were gritty. They were not wrapped in a way consistent with the way that a bank would wrap currency.
Ms Jiao then wanted to transfer the money to another account, but was not permitted to by the casino for its own reasons to do with its procedures. She was given instructions about what she could and could not do. She could bank it into an account in her own name.
The following day, which was a Monday, she withdrew about half the amount and took it to a nearby Commonwealth Bank. By this stage the casino staff had become suspicious about the funds and had alerted the Australian Federal Police. The police turned up at the Bank and arrested Ms Jiao. They interviewed her at length. She appeared to be cooperative and forthcoming with information. The result of the interview was the charge that I have referred to, which is that she dealt with money in circumstances where it was reasonable to suspect that the money was the proceeds of crime.
As I have said, that is an offence against s 400.9(1) of the Criminal Code (Cth). The Commonwealth Parliament has fixed a maximum of three years' imprisonment to that offence. The maximum used to be two years' imprisonment. But it seems to me from a footnote to that provision in one of the services, that the maximum was increased with effect from 19 March 2010.
It is important to note, as the New South Wales Court of Criminal Appeal confirmed in Shi v R [2014] NSWCCA 276, that there is no requirement to prove any knowledge or belief as to the money being the proceeds of crime: see [42] of the judgment of Bellew J, with whom Leeming JA and Fullerton J agreed.
It is also important to note that one of the issues before the jury in this case was the question of whether Ms Jiao had made out a defence to the charge under s 400.9(5) of the Criminal Code by proving that she had no reasonable grounds for suspecting that the money was derived or realised directly or indirectly from some form of unlawful activity. That issue was squarely put before the jury and it rejected that defence by the verdict which it returned.
I have been assisted in the sentence proceedings by Mr Neild and by Mr F Santisi of counsel, who appeared for Ms Jiao in the trial and in the sentence proceedings.
Mr Neild emphasised the importance of general deterrence in a case such as this. That emphasis is supported by Bellew J and the Court of Criminal Appeal in Shi because the Court had to resentence the offender in that case. His Honour said at [109] that "[m]oney laundering is a serious criminal activity." The offending, I might add, in that case was more persistent and serious. But in the same paragraph his Honour agreed with the sentencing judge in that case that "general deterrence is an important factor in the consideration of an appropriate sentence". I accept Mr Neild's submission.
I also accept the submission of Mr Neild that it was not a fleeting or transitory transaction. Mr Santisi argued that the behaviour was short‑lived. I do not agree with that. The behaviour occurred over a couple of days. I think it is fair to say that it is not as serious as behaviour which might occur over some weeks, but I think Mr Neild is right in characterising it as not fleeting or transitory.
I also accept Mr Neild's submission that the amount of money involved is well over the minimum for that offence of $100,000. It is over six times the minimum. That must be a factor which I take into account.
I take into account, objectively speaking, that the transactions as found by the jury were obviously done in circumstances where it was reasonable to suspect that the money was proceeds of crime. That follows from the condition of the bank notes and the use of the process of identification. I repeat I make that observation as an objective factor. I do not attribute to Ms Jiao any subjective intention insofar as I am sentencing her, I am talking about the transaction as such.
To my mind the offence does not fall at the lowest end of this kind of offending because of the amount involved and the fact that it was over a couple of days. On the other hand it is far from the most serious example of this crime and probably falls just within the middle of the range of seriousness for crimes such as this.
Mr Neild pointed out that in some cases offenders plead guilty and as a result the sentence which they receive is discounted. The discount will reflect the fact that the offenders have facilitated the course of justice and exhibited some contrition. Those submissions are not available to Ms Jiao. She is not being penalised for defending her case, it is simply that arguments available to other offenders are not available to her.
Mr Neild fairly acknowledged that Ms Jiao's prospects of rehabilitation must be good. This is her first offence. The police acknowledge that there is no record of any criminal behaviour on her part that they can find anywhere.
Mr Neild submitted that in the circumstances I can impose nothing less than a sentence of full‑time in custody. Indeed s 17A of the Crimes Act 1914 (Cth) provides that I "shall not pass a sentence of imprisonment" unless "after having considered all other available sentences" I am "satisfied that no other sentence is appropriate in all the circumstances of the case".
Mr Santisi argued that I need not impose a sentence of full‑time imprisonment. In his helpful written and oral submissions, he pointed out that his client is a foreign national of otherwise good character who will find full‑time custody difficult in Australia. She has no family here.
I accept that there was no victim as such, and there was no actual loss because the money was confiscated. Indeed it is the subject of separate proceedings. Although I have taken it into account in assessing where this lies objectively in the range of seriousness, it was, as Mr Santisi argued, relatively unsophisticated. I also accept that it is unlikely that Ms Jiao would reoffend.
Mr Neild took me to a schedule of comparative cases which became MFI 54. They are the matter of Shi, which I have already mentioned, along with Assafiri [2007] NSWCCA 159 and Cahyadi (2007) 168 A Crim R 41. I have received a good deal of assistance from those cases.
I also accept that it appears that Ms Jiao was cooperative in her interview with the police. I take into account her age and the fact that she has no previous convictions. However, what it seems to me is apparent from the authorities that I have referred to, is that the courts regard this kind of offending against s 400.9(1) as very serious. It seems that the Federal Parliament also regards it as serious. That is borne out by the fact that it saw fit to increase the maximum penalty a few years ago. Such a step by Parliament is consistent with courts being required to increase sentences which are imposed for that crime.
I note in the matter of Shi, where the maximum was three years, that the sentence imposed by the Court of Criminal Appeal was one of one year and three months. However that was after a plea of guilty and after taking into account more than the sentencing judge had - assistance given by the offender to the authorities. I acknowledge that the offending behaviour as set out at [109] of Bellew J's judgment was more serious than the offending in this case, but the sentences, for example, in respect of counts 1 and 2 (I should add one and three of the sentences were the same) were respective sums of money which were not far removed from the amount involved in this case.
I note that in the other two cases which I have referred to, the Court of Criminal Appeal imposed or agreed with sentences of full time custody when the maximum was two years' imprisonment. The relative amount involved in Cahyadi was less than the amount involved here. The same can be said for the amount in Assafiri.
Given the importance of general deterrence and despite the material put before me by Mr Santisi and the arguments presented, I do regard this as a case where I have no other option than to sentence Ms Jiao to a sentence of full time imprisonment. It is regrettable that for a person of her age and time in life she will have to go to gaol, but it seems to me that both Parliament and the Court of Criminal Appeal in New South Wales have made it clear, which I of course accept, that these kinds of crimes are regarded as serious and that general deterrence is an important factor.
I regard an appropriate sentence in all the circumstances, given the observations and findings which I have made, as being one of six months' imprisonment.
Ms Jiao, I sentence you to six months' imprisonment for the offence. It will commence today, 19 December 2014, and it will expire on 18 June 2015.
I direct that the exhibits in the trial be retained in the Court registry. In the event of no notice of appeal either against conviction or sentence being filed on or before Friday, 27 February 2015, I direct that the exhibits be returned to the parties who tendered them.
[3]
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Decision last updated: 14 September 2015