R v Lim

FACTS

1. Turning to factual matters.
2. When the hearing in these sentence proceedings commenced there was a dispute essentially about the number of transactions which the offender carried out. This was, of course, a very relevant matter on sentence given that it affected the quantum of funds for which the offender would be criminally liable under the sequence 2 and sequence 5 offences. There was no dispute I should add in relation to the facts of the sequence 3 and sequence 6 offences. However, in relation to the dispute to which I have just referred, and after the tender of a large volume of material and submissions over two days, the parties came to an agreed position such that the factual and evidentiary material which had previously been tendered, and about which I was to be asked to reach conclusions of fact, was withdrawn. The agreed position reached by the parties is now set out in an agreed statement of facts, dated 5 April 2023. The relevant facts are as follows:
3. Between 24 September 2020 and 15 September 2021 the offender dealt with money to the value of slightly less than $4,000,000 which was reasonably suspected to be proceeds of crime. The offender's actions involved him depositing cash over a period of about two years, using two bank accounts purporting to be those of Soon Ming Cheah and Goh Choon Hock. Through the use of these accounts and electronic bank cards linked to them, deposits were made into various other third-party bank accounts. Specifically, a bankcard would be used at an ATM where cash would be deposited. However, instead of the funds being deposited into the Cheah or Hock accounts, they would actually be deposited into a third-party account, using a feature available through the ATM.
4. Turning then to the specific facts of each of the offences. Starting with sequence 6 which is the State offence.
5. On 24 December 2020 the offender went to Storage King at Homebush and signed a rental agreement over storage unit 207, using the false name Tan Soon Lee, who was said to have been born on 18 January 1990, to live in Mascot, to have a mobile phone number ending in 158 and to use the email address Soonlee10102020@gmail.com. The offender produced a drivers licence matching this identity and a copy was made by a Storage King staff member. Later enquiries by Australian Federal Police, however, revealed that the driver's licence was fraudulent and an analysis of two mobile phones associated with the offender revealed that the Soonlee email address was accessible on both of those devices.
6. The sequence 6 offence involves the obtaining of the Storage King rental agreement, using a knowingly false document, that being the New South Wales drivers licence, with the intention of inducing a person to accept it as genuine.
7. Turning then to the sequence 5 offence facts.
8. It was on 24 September 2020 that the offender commenced making deposits of Australian currency into various unknown bank accounts, using the Cheah bank card at various ATMs. The identity, Soon Ming Cheah, actually corresponded with a Malaysian national. Between 24 September 2020 and 11 February 2021 the offender used the Cheah card to make deposits at various ATMs to the total value of $2,944,871. The amount of each deposit varied from as much as $10,000 to as little as $50, and the deposits were made at various locations across the Greater Sydney area.
9. Turning then to the sequence 2 offence facts.
10. On 24 April 2021 the offender commenced making deposits of cash into various unknown bank accounts, using Commonwealth Bank ATMs at various locations across Greater Sydney, using the Goh Choon Hock bankcard. The name Goh Choon Hock is associated with a Malaysian national. These deposits ranged from $10 to $10,000, but over the agreed period of offending, which extended to 15 September 2021, the total deposits amounted to $1,000,000.
11. The agreed facts then go on to refer to other relevant matters, and also to the circumstances of the sequence 3 offence, to which I will come in a moment.
12. On 3 September 2021 police surveillance detected the offender attending with five other males at unit 188 at Storage King, Homebush. The offender arrived in an Aramex branded van, which belonged to him, and was seen to enter unit 188 and retrieve some boxes, alongside a male with blonde streaks in his hair. Enquiries by police revealed that unit 188 had been rented using a driver's licence in the name Hong Jie Lee, which featured an image of an Asian male with blonde streaks in his hair. A copy of that same image was subsequently found on the offender's Samsung phone. Also the name Tan Soon Lee, to which I made reference when I was discussing the rental of unit 207 in the same complex, was listed as a secondary contact for unit 188 at Storage King. At the relevant time unit 188 contained 45 boxes of "Molasses tobacco" weighing 269 kilograms.
13. This brings me to the facts which relate to the sequence 3 offence.
14. On the afternoon of 15 September 2021 the offender was seen to leave his home in Burwood carrying a black satchel bag. A few minutes later, just after 3.30pm, he was arrested while attempting to deposit cash into a Commonwealth Bank ATM at Burwood. At the time, he was in possession of the Hock CBA card as well as a Samsung mobile phone and $11,100 in Australian cash. When questioned at the location he said that the cash was savings from a previous job at Aramex, and that the Samsung phone was his, but that the Hock card did not belong to him. The offender voluntarily provided police access to his Samsung phone and identified a "WeChat" conversation between himself and a person by the name Fei.
15. Also on the phone, police found several photos of tobacco products. Most notably an image of loose tobacco in a blue bag, and a clear vacuum sealed bag containing a brown leafy substance. When this latter image was shown to the offender he denied it was tobacco and said it was tea. When shown an image from the phone depicting a carton of Marlboro brand blue cigarettes with Chinese writing, the offender agreed that they were cigarettes.
16. After arresting the offender, police searched his Aramex van, and in the glovebox they found $60,000 of Australian notes in $100 denominations. This $60,000 plus the $11,100 found on the offender, are the funds to which the sequence 3 offence relates.
17. Police also searched the offender's home at Burwood where they found another two mobile phones. One being an Oppo brand and the other a HUAWEI, as well as a CBA bankcard in the name of Boh Alan, and another one in the name of Zi Yu Cheng.
18. The offender participated in an interview, in which he told police that the money found on his person was $10,000 which belonged to him, and had come from salary payments. He said that the three mobile phones belonged to him and were for work purposes. The offender also told police that he had received $100,000 from a person unknown to him which he was to deposit into third party accounts at ATMs under the direction of Fei, and that of this $100,000, he had already deposited $40,000. The offender told police that he did not know where the money came from, that he had been carrying out these types of deposits for about two months, and that he is paid a commission of several hundred for depositing the cash.
19. After being shown an image of himself at Storage King on 3 September 2021 which showed him assisting two others in loading boxes into his van, the offender said he did not know what was in the boxes and claimed he did not have access to the Storage King unit and never went inside. He also claimed that he had no involvement in arranging the rental of the Storage King unit, made no payments for it, and that he acted only as a courier of the boxes, for which he received payment in the form of two cartons of cigarettes.
20. Police carried out a Cellebrite analysis of the offender's three mobile phones. On the Samsung phone they found WeChat conversations between the offender and Fei about the logistics of importing tobacco products, using code names such as "White Marl" from China, South Korea and other countries. The WeChat conversations also referred to various cash deposits at ATMs in Sydney, investigations by Customs, and the need to move unnamed goods from a warehouse in Sydney "just to be safe". The chats also referred to other members of the tobacco importation syndicate and other couriers in that syndicate, to whom the offender described himself as the "money handler" for Fei.
21. The chats also included directions by the offender to couriers about opening Post Office boxes and leasing storage units, and in which the offender said he would reimburse couriers for costs associated with travel, Post Office boxes and storage facilities, as well as discussions about false identification documents. The Samsung phone also contained chats referring to Fei, the offender and four others as the "Sydney Squad" as well as photographs of ATM deposits sent to Fei by the offender and photographs of foreign tobacco products. The HUAWEI phone contained photographs of various identification documents, including passports, drivers licences and bankcards of foreign nationals. On the Oppo brand phone police found numerous photographs of tobacco products, ATM receipts and receipts for freight services and storage facilities. It is also an agreed fact, however, that the phones were periodically wiped by the offender. Those are the facts on which the offender is to be sentenced.

OBJECTIVE SERIOUSNESS

1. In relation to the State offence and its objective seriousness I make the following findings:
2. That offence, which is the sequence 6 offence, involved conduct on a single day where the offender used a false drivers' licence, which he knew to be false, intending to induce Storage King staff to accept it as genuine so as to facilitate his rental of a storage unit. In carrying out this transaction I am satisfied that the offender was acting as part of a syndicate and that he, at the very least, suspected that his actions were aimed at facilitating the workings of a criminal group involved in activities such as the illegal importation and sale of tobacco. I regard this offence as being below the mid-range, but not in the low range of objective seriousness.
3. In dealing with the various Commonwealth offences, of course, I am required to consider, insofar as they are relevant, the various paragraphs of s 16A of the Crimes Act 1914.
4. Paragraph (a) of that subsection refers to the nature and circumstances of the offence. In assessing the nature and circumstances and seriousness of the Commonwealth offences I note the many observations by Australian Courts as to the serious nature of money laundering offences. The New South Wales Court of Criminal Appeal in R v Jiao [2015] NSWCCA 95 at para 30, said that: "Money laundering offences are regarded as very serious offences in respect of which the need for general deterrence is of particular significance".
5. The Court in that case also commented at paras 33 and 34 as follows: "Care is required to be taken so as not to breach the principles in the Queen v De Simoni [1981] HCA 31; 147 CLR 383 at 389. In imposing sentence the court is entitled to consider all the conduct of the offender, including that which would aggravate the offence, but is not permitted to take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. At the same time care is required to avoid a type of reverse De Simoni error by taking into account on sentence for a s 400.9 offence the absence of features which would have rendered the offender liable to conviction for another money laundering offence punishable by a greater penalty".
6. The monetary value of the suspected proceeds of crime is, of course, an extremely important consideration in assessing the seriousness of an offence and has, in fact, been described as "paramount". See the Jiao decision at para 66.
7. In Kim and Fang v The Queen [2016] VSCA 238 the Victorian Court of Appeal at para 61 set out a number of principles which have emerged from the authorities and which I summarise as follows:
8. Firstly, where does the offence sit in the scheme of offences in Division 400 of the Code?
9. Secondly, what exactly did the offender do in carrying out the offence? This includes consideration not only of the offender's actions, but the period of time over which the offence occurred, the number of transactions, the amount of money and the offender's position in the arrangements, which includes the level of trust and authority involved.
10. Thirdly, weight needs to be given to the fact that a person who launders money is usually an important cog in the wheel of organised crime, which means that general deterrence and severe punishment are ordinarily of significant weight.
11. Fourthly, the amount of money involved is a highly significant matter which is the primary identifier of the maximum penalty.
12. Fifthly, as a general rule a larger number of transactions involving smaller amounts of money will be more serious than a single isolated transaction involving a larger amount.
13. Sixthly, it is ordinarily relevant to consider how the money is proceeds of crime, and the extent of the offender's belief or knowledge as to how it is proceeds of crime.
14. Seventhly, however, it is a distraction to consider what sentence the offender might have received if charged with another offence, such as the predicate offence which generated the proceeds of crime.
15. Keeping those principles in mind, I turn to consider each of the three Commonwealth offences in terms of their seriousness.
16. The sequence 5 offence under s 400.9(1) involves dealing in money which it was reasonable to suspect was proceeds of crime to the value of $100,000 or more. The total amount dealt with by the offender under this offence is agreed to have been $2,944,871, which extended over a period of about five and a half months from 24 September 2020 to 11 February 2021. The amount of money was, therefore, 29 times the threshold amount for this type of offence. The exact number of transactions is not set out in the agreed facts. However, the facts do indicate that between those dates a "large volume of deposits" were made, ranging from $50 to $10,000. Taking a conservative approach, this means on my calculations that there must have been more than 290 such deposits which were carried out at a variety of ATMs across the Greater Sydney area. I am satisfied that the offending involved some planning and organisation in selecting and regularly attending ATMs in different locations, which was obviously to reduce suspicion and avoid detection, as was the offender's actions in ensuring that all transactions did not exceed the reportable amount of $10,000. It is also obvious that the offender was afforded a high degree of trust, given the total amount of the deposits, his description of himself as the "money handler" for Fei, and the fact that when arrested he was in possession of $71,100 cash.
17. Although the offender told police that he did not know where the money came from, I am satisfied beyond reasonable doubt that he at least suspected the funds were associated with some form of criminal syndicate involved in activities such as the illegal importation and sale of contraband tobacco. This conclusion is supported by the fact that the offender was linked to both storage units, messages on his phone referring to importations, Customs, moving goods and recruiting couriers for tobacco, as well as the various lies that he told police upon his arrest. I am also satisfied, based on all of these matters, that the offender held a relatively senior role in the money laundering enterprise and acquired at least some monetary benefit. In my view, this offence is comfortably within the mid-range of objective seriousness.
18. The sequence 2 offence is one under s 400.9(AB), involving dealing in money which it was reasonable to suspect was proceeds of crime, being $1,000,000 or more. For this offence the agreed amount is $1,000,000, which places it at the minimum monetary threshold for an offence under this subsection. The offence involved the offender using the Hock bank card over a period of almost five months, between 24 April 2021 and 15 September 2021, to make cash deposits at various ATMs around the Greater Sydney area. Again, the facts do not disclose the number of transactions, but do refer to a "large volume of deposits" ranging from $10 to $10,000. Taking a conservative approach, there must, therefore, have been at least 100 transactions. The offending clearly involved some degree of planning and organisation. And the fact that none of the deposits exceeded $10,000 and were made at various locations indicates an intention to act in a way to avoid detection. I am also satisfied, for reasons I have set out in considering the sequence 5 offence, that the offender held a relatively senior and trusted position and acquired some financial benefit. I am further satisfied, again for the reasons set out in my consideration of the sequence 5 offence, that the offender at least suspected that the funds were associated with some form of criminal syndicate involved in activities such as the illegal importation and sale of contraband tobacco. I regard this offence as being slightly below the mid‑range of objective seriousness.
19. The sequence 3 offence, which is under s 400.9(1A) involved an amount of $71,100, which is in the upper range for such an offence in terms of the monetary value. This offence occurred on a single day, but was no doubt part of the ongoing arrangements for transactions in which the offender had been involved for some time. I have no doubt that the cash located on the offender's person and in his van was intended to be deposited by him either that day or shortly after that day. As I have already observed, the offender was in a trusted and relatively senior position, acquired a financial benefit, and at least suspected that the funds were associated with some form of criminal syndicate involved in activities such as the illegal importation and sale of contraband tobacco. In my opinion this is an offence that lies slightly below the mid-range of objective seriousness.
20. In making the findings that I have in connection with each of the offences, that the offender at least suspected that the funds that are the subject of the offences before the Court were associated with some form of criminal syndicate involved in activities such as the illegal importation and sale of contraband tobacco, I remain very conscious of the fact that the offender is being sentenced for offences based on "reasonable suspicion" as to the source of those funds. He is not to be sentenced, and I do not approach his sentence, on the basis that he is or may be guilty of any of the more serious offences set out in Division 400 of the Criminal Code.
21. Paragraph (c) of s 16A(2) refers to whether the offending involves a course of conduct. As the Crown submitted, the sequence 2 and sequence 5 offences continued over a considerable period of time. And the sequence 3 offence was committed as part of that continuing course of conduct. While this is relevant and indicates that the conduct making up these offences was not isolated, I have taken care not to double-count this aspect, given that I have already taken into account in assessing the Commonwealth offences, and in particular the sequence 5 and 2 offences, the periods of time over which those offences occurred and the fact that they involved multiple transactions.
22. Paragraph (e) of s 16A(2) refers to any injury, loss or damage resulting from the offences. It is not possible to identify any specific loss or damage resulting from the Commonwealth offences. However, I am conscious of the fact that money laundering offences can usually be regarded as causing harm to the society generally by reason of their capacity to avoid appropriate taxation laws, and also by reason of their capacity to facilitate other criminal activity.
23. Paragraph (f) of s 16A(2) refers to contrition. In relation to contrition there is a Sentencing Assessment Report from October 2022, which was prepared in the context only of the New South Wales offence. In that document the author noted that the offender said he had been stupid and had acted impulsively due to his need for money in committing the New South Wales offence. In my view, this amounts to some evidence of contrition and insight in relation to that State offence. There is limited evidence in relation to any contrition for the Commonwealth offences. However, given the comments to which I have just referred from the Sentencing Assessment Report, as well as the offender's pleas of guilty and the very positive reports about his behaviour and attitude in custody, I infer that there is some level of contrition and insight in relation to all of the offences before the Court.
24. Paragraph (g) of s 16A(2) refers to the circumstance of a plea of guilty. The offender entered pleas of guilty to the Commonwealth offences in the Local Court, and, of course, also in relation to the State offence. I have already said that he is entitled to a 25% discount in relation to the State offence. In relation to his pleas of guilty on the Commonwealth offences he is entitled to consideration for the utilitarian value of those pleas, and also consideration for the extent to which the pleas indicate a subjective acceptance of responsibility, contrition and/or willingness to facilitate the course of justice. I have already taken into account his pleas of guilty as supporting some degree of contrition and acceptance of responsibility.
25. As to the utilitarian value of the guilty pleas, it was argued by the Crown that this has been eroded somewhat by the factual dispute, to which I referred when commencing these remarks. However, I do not accept this argument, given that ultimately there was no factual dispute for the Court to determine. Rather, and after discussions between the parties over a two day period, the prosecution and defence arrived at an agreed position, which is set out in the agreed facts. In those circumstances it would be inappropriate to diminish the utilitarian value of the offender's pleas of guilty to the Commonwealth matters.
26. While there is no set discount for utilitarian value of a plea of guilty in Commonwealth matters, in my view, it is appropriate to allow a discount of 25%.
27. Paragraph (j) and para (ja) of s 16A(2) of the Crimes Act 1914 refer respectively to the deterrent effect upon the person and the deterrent effect on others of a sentence. Clearly, personal and general deterrence are of considerable importance in matters of this kind, and are matters to which I have given appropriate weight.
28. Paragraph (k) of s 16A(2) refers to the need to ensure the person is adequately punished. I have also, as in any sentencing exercise, had regard to the need for adequate punishment.
29. Paragraph (m) of s 16A(2) refers to the character, antecedents, age, means and physical or mental condition of the person. In this regard I make the following findings:
30. The offender was born in Malaysia and is now nearly 34 years of age. There is no suggestion that he was exposed to domestic violence, alcohol or drugs in his childhood, which appears to have been fairly normal and materially relatively comfortable. The offender married in 2016 and the offender's wife gave birth to a son that same year. The offender was at that time working and earning sufficient income to invest in some real estate. However, this eventually led to him borrowing money from "loan sharks" by whom he was threatened. It was around this time in April 2018 that the offender moved to Melbourne. In Melbourne the offender worked in an Uber Eats form of business, before moving to Sydney in July 2020, where he initially did similar work before working for a delivery company called Aramex.
31. Since being in custody the offender has engaged in useful work, which involves a "hygiene role" in which he cleans office areas and COVID isolation areas and cells and other holding areas, which at times might be contaminated with blood, urine and faeces. Case note reports from Corrective Services refer to him being an enthusiastic and highly valued and trusted worker. He has also, while in custody, engaged in various training courses for which he has received certificates of attainment. Custody, however, has been challenging for him, in that he has limited English, which makes it difficult to socialise, and he has had no visitors.
32. I also take into account that the period of custody for the offender which commenced on 15 September 2021 has been during some of the more difficult aspects of the COVID pandemic, with the limitations and restrictions and lockdowns that the pandemic has involved for many persons in the custodial environment.
33. Paragraph (n) of s 16A(2) of the Crimes Act 1914 refers to prospects of rehabilitation. Given the positive findings I have made in relation to contrition and the offender's excellent work record since being in custody, I am satisfied that his prospects of rehabilitation are reasonably positive.

DETERMINATION

1. Coming then to my determination of the appropriate sentences.
2. Starting with the New South Wales offence which is the sequence 6 offence, to be dealt with on a s 166 certificate. As I have said, I am bound by the jurisdictional limit of two years imprisonment. In relation to that offence I am not satisfied that it crosses the s 5 threshold set out in the Crimes (Sentencing Procedure) Act 1999. Having regard to the penalties that I will be imposing in regard to the Commonwealth matters I deal with that State matter under s 10A of the Crimes (Sentencing Procedure) Act. I convict the offender, but impose no other penalty.
3. In relation to the Commonwealth offences I intend to impose an aggregate sentence. It is therefore necessary for me to set out the indicative sentences, those being the sentences that I would have imposed if I had not been imposing an aggregate sentence. Each of the indicative sentences, which I will announce in a moment, have been reduced by the discount of 25% by reason of the utilitarian value of the plea of guilty.
4. For the sequence 2 offence the indicative sentence is 16 months imprisonment.
5. For the sequence 3 offence the indicative sentence is eight months imprisonment.
6. For the sequence 5 offence 14 months' imprisonment.

TOTALITY

1. In determining the aggregate sentence, of course, I have had regard to the principle of totality given that I am sentencing for more than one offence. In my view, there is a need for some notional accumulation among the three offences given that although each of them involve a course of similar conduct they also represent discrete criminal acts carried out at different times.
2. I impose an aggregate head sentence of two years, nine months' imprisonment. That will date from 15 September 2021, being the date upon which the offender was taken into custody. That head sentence, therefore, will expire on 14 June 2024. I order that the offender be released after serving one year, nine months on a self-recognisance in the amount of $100 without security. He will, therefore, be eligible for release, after entering into that recognisance, on 14 June 2023.
3. So, Mr Lim, just to explain that once more. I have sentenced you to what is called a head sentence of two years, nine months, dating from when you went into custody and that sentence will expire on 14 June next year. But I have ordered that you be released on a recognisance, which is a type of bond, after serving one year, nine months, which will be 14 June this year.
4. Now, you may well be taken into custody upon your release, or before your release, by Immigration Authorities, that's not a matter about which I have any authority.
5. Mr Crown, Ms Su, anything to raise about any of those orders?
6. BALDEO: No, that's suitable.
7. SU: No, your Honour.

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