On 11 March 2020 the offender pleaded not guilty to one count on an Indictment as follows:
1. That she on or about 23 February 2019 at Bankstown in New South Wales, dealt with money or other property, it being reasonable to suspect that such money or other property was proceeds of crime and at the time of dealing the value of the money or property was $100,000.00 or more.
On 17 March 2020, the jury returned a verdict of guilty on that count. The matter was then stood over to 21 May 2020 for sentence hearing, and subsequently was adjourned to 2 July 2020.
The offence is pursuant to s 400.9(1) of the Criminal Code 1995 (Cth). The maximum penalty proscribed is a period of imprisonment for 3 years, or 180 penalty units, or both.
[2]
The sentence hearing
The sentence hearing took place on 2 July 2020. The Commonwealth Sentence Summary became Ex A on the sentence hearing. It included a Statement of Agreed Facts pursuant to s 191 of the Evidence Act 1995. A fair summary of facts to be derived from the jury verdict is as follows.
On 23 February 2019, the offender returned from Vietnam to Sydney on Flight JQ 62. She returned to her home at Unit 14/17-19 xx Avenue, Bankstown, where she lived as a tenant, at approximately 12.30pm that day.
The owner of the premises, Minh Kha Le, was not at home when she arrived. He returned home at approximately 1.45pm and parked his car in the garage and went upstairs into unit 14. Upon entering the unit he observed the offender standing over the coffee table in the living room where there was a light brown coloured box containing Australian currency. Mr Le observed $50 notes in the box as the notes were yellow. He went to the bathroom on the ground floor of the unit. He remained in the bathroom for between eight and 10 minutes, listening to music on his phone with earphones.
On emerging from the bathroom, and whilst he was in the laundry, Mr Le heard a noise at the rear of the premises. He saw from the kitchen window the offender in the backyard, adjacent to the fence adjoining unit 13's backyard. He thought she was doing something and went outside to ask her what was happening.
At the same time, he heard a loud noise at the front door. It was approximately 2pm when Australian Federal Police ("AFP") officers arrived at the unit to execute a search warrant. They were given entry to the vestibule of the premises by the owner of unit 13, Ms Elvins. After banging on the door of unit 14 for between 30 and 60 seconds and shouting, "Police, search warrant, open the door" several times, a ram was used to open the door.
When police entered the premises, the offender and Mr Le were walking back briskly into the premises through the back door.
Ms Elvins had been in her backyard shortly before the police officers arrived looking for her cat. After she gave them entry to the vestibule, she returned to the upstairs level of her premises and observed police officers looking over the fence from unit 14 at the cardboard box with money spilling out onto the ground. She told police that the cardboard box had not been there when she had been looking for her cat shortly before they arrived at the premises. She also told them she heard a thump, which could have been the cardboard box being thrown over the fence and landing in her courtyard.
Along with the cardboard box was a black Nike backpack and a Woolworths shopping bag in her backyard. The offender's left index fingerprint was located on the green handle of the Woolworths shopping bag.
By the jury verdict, the offender was in possession of the money in the box and Nike backpack which totalled $596,090.00. The offender intended to deal with the money and it could be inferred that it was the offender who threw the money over the fence into unit 13.
During the course of the search warrant, the AFP located and seized the following items from Unit 14:
1. Ripped pieces of paper found in a waste bin in bedroom two of the premises. When constructed, the pieces of paper produced the following:
1. Vina international money remittance receipt dated 31 January 2019 for the transfer of $5,000.00 AUD by Minh Kha Le to Phi Lan Nguyen in Vietnam.
2. Hai Ha international money remittance slip dated 31 January 2019 for the transfer of $5,000.00 AUD by Minh Kha Le to Le La Xuan in Vietnam.
1. A Louis Vuitton bag found on a TV stand in the living room. The bag contained Australian currency, namely, one (1) bundle of $50 AUD notes and two (2) bundles of $100 AUD notes (total $3,000.00 AUD). The bag also contained two (2) Westpac bank cards in the name of Minh Kha Le and two (2) ANZ bank cards in the name of Minh Kha Le.
2. An amount of Australian currency on Minh Kha Le's person located in his wallet (total $1,025.00 AUD).
Between 9 April 2019 and 23 April 2019, an AFP crime scene investigator forensically examined items seized from the rear courtyard of Unit 13.
The items examined were as follows:
1. Six (6) sealed plastic bags printed in part 'FOODSAVER'
2. One (1) white and green 'woolworths' shopping bag
3. Various denominations of Australian currency banknotes
4. A brown cardboard box
A sample of the Australian currency banknotes was taken for forensic examination (total $9,380.00 AUD). The notes selected for the sample were the top and bottom bank notes in each bundle. Following forensic analysis, the AFP took this currency to the Reserve Bank of Australia for destruction.
Analysis of a latent fingerprint identified on the outside of the green handle of the 'woolworths' plastic bag located in the rear courtyard of the Unit 13 was identified as the left index fingerprint of the accused.
On 28 February 2019, AFP officers took the money found in the back courtyard of Unit 13 to Knightguard Protection Group for a cash count of the items. The items were counted as follows:
1. Four (4) bundles of $100 AUD currency located in the 'Nike' backpack contained $35,500.00 AUD.
2. Six (6) heat sealed bags of various Australian currency contained $551,210.00 AUD.
The total amount of money counted by Knightguard Protection Group was $586,710.00 AUD.
In addition to the money sent for forensic testing, the total amount of money seized from the rear courtyard of Unit 13 was $596,090.00 AUD.
It is reasonable to suspect that the total amount of money seized from the rear courtyard of Unit 13 is the proceeds of crime.
Exhibit A included NSW Police Force Criminal History which showed that in 2008 the offender was convicted of two offences that occurred on 18 December 2007 of sell/possess/import goods knowing registered trademark falsely applied (7 counts), for which she was fined $800, and possess infringing copy to offer for sale/hire for profit (7 counts), for which she was also fined $800. On 26 May 2010 the offender was convicted of two offences in the Local Court that occurred on 18 June 2009, of possess infringing copy of a work in the course of selling, for which she was fined on both counts.
Exhibit A also included a Sentencing Assessment Report under the hand of Ms R Botbol dated 15 May 2020. In it the author noted the offender had a long history of employment in the hospitality industry, but had lost her employment due to COVID-19. She had no prior criminal history and under the heading "Attitudes", claimed to have no knowledge of the offence and maintained her own version of events. She also claimed that she did not benefit financially from the offence.
The offender was assessed as "at a low risk or re-offending" and the author stated that due to that low risk, if a supervised order was made, Community Corrections would suspend the offender's supervision. She was assessed as suitable to undertake Community Service work.
The offender adduced no evidence on the sentence hearing.
[3]
The Crown submissions
The Crown relied on a thorough and detailed written outline of submissions, in which it set out well established general principles of sentencing for Commonwealth offences. It was submitted that s 400.9 is part of a hierarchy of proceeds of crime offences, known as "money laundering", and the offences were introduced to more accurately reflect the different levels of criminality and culpability involved in such conduct, according to the second reading speech. It was submitted that the offence should not be regarded as of little seriousness, simply because it fell towards the lower end of that hierarchy. Rather, money laundering offences, including s 400.9 offences, should be regarded as serious, because of the assistance they provide to other organised criminal activity, relying on R v Lin [2014] NSWCCA 254 at [63] and R v Jiao [2015] NSWCCA 95 at [27] - [32].
The Crown's written submissions referred to the factors to be taken into account pursuant to s 16A(2) of the Crimes Act 1914 (Cth). Having set out a summary of the facts, as outlined above, the Crown submitted that the jury must have found by its verdict that on 23 February 2019 the offender possessed money reasonably suspected to be proceeds of crime, until it was thrown over the neighbour's fence, shortly before the AFP entered the premises. The total amount of money was $596,090.00.
The Crown submitted that a critical consideration in sentencing for this offence was the determination of what the offender actually did in participating in the offence, including the time period involved, the level of their authority, their subjective state of mind, the value of the money and the degree of planning and secrecy involved. The Crown relied on Ansari v R [2007] NSWCCA 204 at [123], where Howie J referred to the most important consideration in sentencing for the offence was to consider what the offender did, "because there may be little or no evidence before the court as to the organisation behind the offence, the source of the funds or the ultimate use to be made of them." The Crown submitted that the offender played an essential and trusted role in organised criminal activity and therefore her offending should be regarded as serious. The amount of money possessed by her was substantially greater than the threshold amount of $100,000.00.
The Crown submitted that it was a common sense conclusion that the offender was acting for profit, notwithstanding there was no evidence of any specific remuneration to her. Her role in the overall money laundering enterprise placed her at a higher level of culpability than her co-offender, Minh Kha Le.
The Crown submitted there was no evidence of remorse or contrition to be taken into account pursuant to s 16A(2)(f). The Crown submitted further, pursuant to s 16A(2)(j), (ja) and (k), that punishment and deterrence should be the primary sentencing consideration for this offence. Money laundering of itself is difficult to detect, investigate and prosecute, and therefore general deterrence is a significant factor when sentencing for such offences (see R v Jiao, supra at [31]).
The Crown submitted that pursuant to s 16A(2)(m) the court would take into account that the offender is an Australian citizen and was 47 years of age at the time of the offending. She had a prior criminal history, the last offending in 2010 for possessing and infringing copyright for commerce, which resulted in a fine of $2,200.00. The offender should therefore not be treated as a first offender.
The Crown submitted that the offender has reasonable prospects of rehabilitation pursuant to s 16A(2)(n).
The Crown referred to a number of comparable cases to provide guidance as to the identification and application of relevant sentencing principles, and to discern a range of sentences for like offences. No particular case was directly comparable to the present offending.
The Crown submitted that the only appropriate penalty to impose in this case is an immediate term of imprisonment.
In his oral submissions, the Crown identified the key points in the Agreed Facts were that the jury accepted Mr Le's evidence on the following three matters:
1. Evidence that when Mr Le arrived, the offender was around the coffee table with the box and Le saw the $50 notes.
2. Le saw the offender outside the premises in the backyard just before the police entered and the offender throw the box over the fence into the neighbour's property.
3. The offender was seen by police rushing back into the premises with Le as the police entered.
The Crown rehearsed its written submissions with respect to the nature and circumstances of the offending, and in particular, the role of the offender and the amount of money seized by the police. It was submitted that general deterrence is a paramount consideration in money laundering offences.
The Crown further submitted that whilst the surrounding circumstances of the offending were unclear, the offender was to be sentenced in respect of possession only, including the circumstances of her throwing the money over the neighbour's fence. By comparison, the co-offender Le was sentenced following his plea of guilty in respect of the charge of concealment only.
With respect to principles of parity with the sentence imposed on Le, the Crown submitted that the offender here had a higher level of culpability and the offending was within the mid-range. She had been found guilty of possession which was a different charge under the same section of concealment. Mr Le also had the benefit of a 40% discount on sentence. There was also a significant difference in the nature and circumstances of the offending to be taken into account in respect of this offender.
The Crown did not dispute that the offender was a low risk of re-offending, however, the Crown noted that the author of the Sentencing Assessment Report had noted the absence of remorse.
In respect of her prior offending, the Crown noted that the offending was at a low level, attracting a fine in the Local Court, however, there could be no finding of good character. In an offence where general deterrence was important in the sentencing process, the Crown submitted that the good character of the offender diminished in importance as a mitigating factor. Further, in anticipation of the offender's submissions, the Crown submitted that considerations relating to COVID-19 and hardship in incarceration should not be given great weight in mitigation of sentence.
[4]
Submissions of the offender
The offender also relied on a written outline of submissions. It was submitted on her behalf that, having been assessed as a low risk of re-offending, specific deterrence should not loom large in the sentencing process. Further, little weight should be given to the offender's prior conviction in 2010 as it was a relatively minor offence and different in character from the offence with which she is now being convicted.
The offender took issue with the submission by the Crown that the offender's role in the overall money laundering enterprise placed her at a higher level of culpability than her co-accused, Minh Kha Le. Mr Le had entered a plea of guilty immediately prior to the offender's trial and had given evidence on behalf of the Crown, in accordance with a statement of Agreed Facts which placed his level of culpability as being considerably less than that of the offender. The Crown, however, did not lead any other evidence corroborative of Mr Le's version of events. It was submitted that the conviction of the offender did not mean the jury accepted all of Mr Le's evidence. It simply meant that the jury was satisfied that all of the elements of the offence had been made out against the offender. When addressing the jury, counsel for the offender had raised the possibility that the jury would disbelieve either Le or the offender or indeed, both of them. In those circumstances, the offender was entitled to have issues of parity considered, although she was not entitled to the discounts applied in Mr Le's case.
The offender's written submissions conceded that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") had been crossed, but submitted that the court would take into account the arduous conditions in which any sentence must be served due to COVID-19. Those hardships included lengthy periods of solitary confinement, a lack of access to the opportunity to do courses, and the absence of visitors. It was submitted that the practical difficulty in prison in being able to practise social distancing and enhanced hand hygiene was likely to lead to an enhanced risk of her contracting coronavirus.
In his oral submissions, learned counsel for the offender accepted the Crown's submissions with respect to the importance of general deterrence, the fact of no discount, and that there was no evidence of remorse and contrition.
Learned counsel rehearsed the written submissions concerning specific deterrence and the offender's good character.
In respect of the principle of parity, counsel submitted that there was no evidence that the offender's level of culpability was higher than that of Mr Le. That was based on the Statement of Agreed Facts between the Crown and Mr Le and the Crown did not lead any other evidence to corroborate those facts. For the reasons outlined in his written submissions, it was submitted that the court would accept that the only evidence of Le accepted by the jury were the three matters relied on by the Crown. There was no evidence of what had occurred prior to the police entering the premises, no evidence of the police intelligence which led to the execution of the search warrant, and no evidence of the offender being identified as a person with a greater role than Le prior to her arrest. It was submitted that there was no evidence of any objective basis that Le's plea of guilty to a concealing offence could be justified. There was no objective evidence other than his plea of guilty and no evidence of the Crown conducting what is known as a "Kneebone enquiry", referring to R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279. It was submitted there was an obligation on the Crown to conduct an assessment of the Crown witness's veracity if there were any grounds for concerns as to its truth.
With respect to Le's evidence, it was submitted that the court was not bound by the three matters relied on by the Crown as it was not necessarily the case that the jury found its conviction based on any of those three matters. Thus, it was submitted that it was not necessarily the case that the offender's role was greater than that of Le.
It was submitted further that the court would take into account that the offender had been in Vietnam prior to the day of her arrest. She did not bring the money with her through Customs and had been in the house for only an hour or so prior to the police search. Further, there was money found in the Louis Vuitton bag in the premises, together with other items which belonged to Mr Le.
Learned counsel rehearsed his submissions in respect of hardship in custody caused by the COVID-19 pandemic. This meant that the conditions of her incarceration would be harsher than usual, notwithstanding that the entirety of the prison population was suffering the same conditions. It was conceded that but for the coronavirus, the s 5 threshold had been crossed, but given the harshness of any term of imprisonment, the court should consider any sentence to be served by way of an Intensive Correction Order with the imposition of a community service order.
[5]
Crown submissions in reply
The Crown submitted in reply in respect of the greater moral culpability of the offender over Mr Le, was found in the issue of control of the money. Both were guilty of the same offence, however, in Le's case the offence was concealing the proceeds of crime, whereas the offender was found guilty of possession and therefore had a higher level of culpability.
[6]
Determination
In sentencing the offender for this Commonwealth offence, I must have regard to the matters set out in s 16A of the Crimes Act 1914 (Cth). Section 16A(1) requires the sentence to be imposed that is "of a severity appropriate in all of the circumstances of the offence".
I take into account the following relevant matters pursuant to s 16A(2).
[7]
(a) The nature and circumstances of the offending
Having regard to the facts to be derived from the jury verdict as set out above, the offender's criminal conduct of possession of $596,090.00 constituted serious offending. The amount of money itself was almost six times above the proscribed sum of $100,000.00. It was clearly proceeds of crime and whilst there was no evidence of the organisation behind the offence, the source of the funds or the ultimate use to be made of them, as is often the case in money laundering offences, it remains serious offending, even though the precise role of the offender cannot be determined. The possession of the money by the offender of itself bespeaks a role that she had in facilitating the laundering of money and was actually involved in that process. Whilst the possession may have been for a short period of time, I am satisfied that the offence constituted serious offending at the mid‑range for an offence pursuant to s 400.9(1) of the Criminal Code, although at the lower end of that mid-range.
[8]
(d) The personal circumstances of any victim of the offence
Money laundering offences are not victimless crimes. They lie at the heart of organised and professional crime syndicates and provide assistance to other organised criminal activity. They are also difficult to detect and involve expenditure of resources in investigation and prosecution for which all taxpayers of the Commonwealth of Australia contribute.
[9]
(f) The degree to which the person has shown contrition for the offence
As noted by the author of the Sentencing Assessment Report, the offender has not shown remorse or contrition for her offending.
[10]
(j), (ja) and (k) Specific deterrence, general deterrence and the need for adequate punishment
I accept the Crown's submission, as did counsel for the offender, that general deterrence is a paramount consideration in sentencing for money laundering offences. Here, there is no evidence before the court as to the source of the funds or the real role of the offender with regard to them. Rather, the offence relates to her possession of a large sum of money, almost six times greater than the threshold amount of $100,000.00. A clear inference to be drawn is that she was acting for profit and as noted by the author of the Sentencing Assessment Report, she has not acknowledged her criminal offending, claiming to have no knowledge of the offence and maintaining her innocence. For those reasons both general deterrence and specific deterrence are important in the sentencing process here. As set out above, money laundering offences are difficult to detect, investigate and prosecute, and I accept the Crown's submission that such offences must be regarded as serious because of the assistance they provide to other organised criminal activity.
[11]
(m) The character, antecedents and age of the offender
The offender was born on 18 November 1972 and was 47 years of age at the time of the offence. She had been employed in the hospitality industry and had a prior criminal history, however, her last offending was in 2010, for which she was sentenced by way of a fine. It was relatively minor offending and substantially different in character from the serious offence for which she has now being convicted. The offender's otherwise good character, however, does not entitle her to leniency in sentencing for the current offence.
[12]
(n) The prospects of rehabilitation of the offender
I accept the opinion of the author of the Sentencing Assessment Report that the offender is a low risk of re-offending and therefore has good prospects of rehabilitation in the community.
I accept the Crown's submission that the jury verdict was consistent with the jury accepting the evidence of Mr Le in the three ways set out above, as being consistent with other evidence at the trial, including that of Ms Elvins and the police officers who executed the search warrant. The application of the parity principle requires that like cases be treated alike, but that material differences be taken into account so as to not result in a justifiable sense of grievance in a co-offender. I accept the Crown's submission here that the conviction of the offender of an offence pursuant to s 400.9(1) of the Criminal Code 1995 (Cth), for what was possession of a large sum of money, it being reasonable to suspect that that money was proceeds of crime, has a higher degree of culpability than the offence to which Mr Le pleaded guilty and was convicted, namely, concealing disposal of money reasonably suspected of being proceeds of crime pursuant to the same section. I do not accept the offender's submission that there was a failure by the Crown to test the veracity of Le's evidence prior to calling him as a witness, in accordance with R v Kneebone, supra. That case concerned the failure of the Crown to call a witness without a principled basis for doing so. By failing to adopt an appropriate course to enable proper consideration of any question of unreliability (a "Kneebone enquiry"), a miscarriage occurred. That was not the case here where the Crown called Mr Le, who was subject to cross‑examination by counsel for the accused.
Further, Mr Le had the benefit of a 40% total utilitarian discount in respect of his plea of guilty and assistance to authorities, so as to facilitate the course of justice. Mr Le also had a limited criminal history and significant subjective factors which demonstrated his remorse and his acceptance of responsibility for his criminal conduct. The objective seriousness of his offending fell below the mid-range of objective seriousness for an offence pursuant to s 400.9(1) of the Criminal Code 1995 and there was a finding that he had little risk of re‑offending. Notwithstanding those differential matters, I was satisfied pursuant to s 17A of the Crimes Act 1914 (Cth) that no other penalty other than a custodial sentence was appropriate in the circumstances for Mr Le.
I am also satisfied here, pursuant to s 17A of the Crimes Act 1914 (Cth) that no other penalty other than a custodial sentence would be appropriate in the circumstances for this offender, given the serious nature of the offending. I am not persuaded that the fact of COVID-19, and its impact upon those incarcerated, warrants the offender to serve her sentence in the community. This court is not in a position to make an evidence-based assessment of the risk of this offender of contracting coronavirus in a correctional facility and whether that risk is greater than that of a member of the general public. I accept that the COVID-19 pandemic is causing additional stress and concern for prisoners and their families. To date, no general sentencing principle has developed in the jurisprudence as to the impact of the COVID-19 pandemic on sentencing, however, the Court of Criminal Appeal has accepted that the steps taken by Corrective Services to minimise the risk to inmates have had significant negative impacts on their well-being - see Valentine v R [2020] NSWCCA 116 at [60] and [61].
I therefore do take into account the adverse conditions in which her sentence may be served, including the prospect of spending periods of time in solitary confinement, a lack of access to the opportunities for courses available to mainstream prisoners, and the lack of opportunity to receive prison visitors. These conditions apply to all of those in the prison population, for reasons of safety for the whole of that population, and I note that there have been no confirmed cases of coronavirus in any correctional facility to date. There is no medical evidence before me which places the offender at any greater risk to contract the coronavirus than any other person in the community.
I have taken those matters into account in setting a recognizance release period. I intend to impose a term of imprisonment of 1 year and 8 months, and to make a recognizance release order pursuant to s 19AC of the Crimes Act 1914 (Cth) for you to be released after 10 months without security.
[13]
Orders
I make the following orders:
1. You are convicted of the offence pursuant to s 400.9(1) of the Criminal Code 1995 (Cth), that on 23 February 2019 you did possess money reasonably suspected of being proceeds of crime, and at the time of dealing, the value of money was $100,000.00 or more.
2. I sentence you to a period of imprisonment of 1 year and 8 months from today.
3. I order a Recognizance Release Order for you to be released after 10 months from today, on 15 May 2021, without security, for a period of 10 months.
[14]
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Decision last updated: 17 July 2020