R v Pan

Background

1. The statement of statement of facts state that Zhang Pan (the offender) is a Chinese National who arrived in Australia in 2006. The offender entered Australia with a Student Visa. In 2012 he was granted a Temporary Skilled Work visa. In 2013 the offender was granted a Residence Business Skills visa which he still holds.
2. In 2009 the offender registered Winmax Pty Ltd as Director and remained so until the company was deregistered in 2017. In 2016, the offender did not receive any income from Winmax.
3. The offender was registered for income tax in 2006 and has lodged no tax returns since that time.
4. At all relevant times, the offender lived at unit 702, at Rider Boulevard in Rhodes, NSW (the premises). The premises are owned by the offender's father Xiao Feng Pan.

The offence

1. In April 2016 the Australian Federal Police (AFP) commenced an investigation of the offender. On 26 October 2016 the AFP executed a search warrant at the premises.
2. The offender was arrested and cautioned in relation to another offence. Seven (7) Australian $50 notes were located in a Louis Vuitton wallet in drawers on the right side of the offender's bedroom.
3. Also contained in the wallet were three (3) expired bank cards in the offender's name and a passport sized photo of the offender.
4. The offender had a recorded conversation with the police and confirmed that the notes were counterfeit as he had used a machine to examine the notes.
5. He further stated that the notes were given to him in a poker game at least a year before but could not remember from whom. He further stated that he did not report this to police as he did not want to cause trouble.
6. Following this, a single Australian $50 note was located inside a silver box in drawers on the left side of the offender's bedroom.
7. During the search a number of items were seized, including a digital money counter.

Forensic analysis

1. A counterfeit scientist of the Reserve Bank of Australia analysed the eight (8) $50 notes seized during the search warrant. Seven (7) of the notes were confirmed to be counterfeit banknotes being six (6) of those referred to at paragraph 9 and the one (1) in paragraph 13.

Recorded interview

1. Between 26 and 27 October 2016 the offender participated in a recorded interview with police. The Offender told police that he 'won the counterfeit money from someone' and that he last played poker at the start of the year two or three times.
2. With respect to his financial position in 2016, the offender stated that his source of income was from poker only and that he had not received money from Winmax that year.
3. With respect to the money counting machine, the offender stated that he counts money when he brings cash home.

Criminal History

1. Mr Pan, for all intents and purposes, has no criminal history in New South Wales. It is of no significance, in my opinion, in this sentence.

Sentencing Assessment Report

1. Tab 4 of Exhibit 1 is a Sentencing Assessment Report (SAR) authored by Gavin Johns, Community Corrections Officer, dated 22 July 2019. It notes that Mr Pan lives in an apartment in Rhodes owned by his parents, who live in China but are currently in Australia to support him through the court sentencing process. Mr Pan told Mr Johns that he is currently not engaged in formal employment but considers himself a professional poker player.
2. The SAR notes that Mr Pan has a minimal criminal history and denied that any of his behaviours were anti-social.
3. Mr Pan failed to acknowledge any of his behaviours were of a criminal nature. His explanation for having counterfeit money at his house was that it was to be expected in the gaming industry for some associates to 'swindle' by playing with counterfeit money. He indicated that the counterfeit money was from his winnings during poker games at the casino and he did not believe that he had committed a criminal offence. He said that he pursued gambling for financial gain and he believed that it was his legal business.
4. The offender believes that his professional poker gaming has been impacted, as his bail conditions have restricted him from frequenting establishments with gaming facilities. Although Mr Pan did not perceive his gambling to be an issue, he indicated his willingness to undertake interventions, but only to measure the effect that playing poker is having on his lifestyle. Should it be required, Mr Pan is willing undertake community service work and can work on weekdays.
5. Mr Pan has been assessed as at a low risk of reoffending according to the Level of Service Inventory - Revised (LSI-R).
6. Community Corrections has assessed Mr Pan as suitable to undertake community service work, and they can provide up to 20 hours of work per month.
7. I note here that I have been greatly assisted by the able submissions of the parties, both in writing and orally today.

Material tendered on sentence

1. The Crown submits that the maximum penalty is a yardstick and a basis for comparison between this case and the worst case. The Crown accepts that the offence is at the low end of the range of objective seriousness and I agree and so find. I note that had the offence been brought in the Local Court, the maximum penalty would have been two years imprisonment.
2. As to adequate punishment, specific deterrence and general deterrence, the Crown submits that counterfeit money undermines confidence in the integrity of Australian currency, which ordinary people rely on to conduct day-to-day transactions. So much is evident, although I note in this case the offender kept the counterfeit notes out of circulation.
3. As to whether the offender has demonstrated contrition and his plea of guilty, the Crown says that the value of the offender's plea was restricted as it was entered on the first day of trial and a conviction was inevitable. Whist it is true that the plea was entered on the first day of trial, I allow a discount of 5% for the utilitarian value of his plea in the context of the trial he faced.
4. The Crown submits that the offender has shown no remorse (see the SAR). In my opinion the offender has shown little remorse or insight into his offending behaviour. So much is apparent from his statement to the Community Corrections officer.
5. Taking into account the SAR, which has been admitted without objection, I find that there is a low risk of the offender re-offending.
6. Taking into account the authorities to which my attention has been drawn, I find that a 'prospect' of deportation is not a mitigating factor in sentencing.
7. I accept that consistency in sentencing is an important principle, but I note that statistics and comparable cases are blunt instruments. The case to which the Crown referred me, R v Gittani [2002] NSWCCA 139, is distinguishable on a plethora of bases, and I do not give it much weight. That case involved 91 counterfeit notes, the defendant pleaded not guilty, and he originally denied that the notes were counterfeit.
8. Mr Glissan QC, who appeared on behalf of Mr Pan, submits that when the counterfeit currency was found, he made full admissions to the police. No suggestion is put otherwise. He submits that the gravamen of the offence lies in the failure of the offender to report or surrender the currency. However Mr Glissan says that no 'overt criminal conduct is established'.
9. Mr Glissan says that although the plea of guilty was not entered until trial, by reason of the admissions made at the outset, the offender should not be regarded as having entered a late plea, and should be afforded the maximum discount available. I reject this submission. By reason of his admissions and the nature of the charge, the offender ought to have entered a plea of guilty well in advance of the trial if he expected to be entitled to the maximum discount.
10. The thrust of Mr Glissan's written submissions is that the matter should be dealt with pursuant to section 19B of the Crimes Act 1914 (Cth) (the Crimes Act); ie that the charge is proved, but the court should not proceed to conviction.
11. Mr Glissan relies on Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [10]. He notes that under section 19B, I must first identify and consider factors which are alternative rather than cumulative. In support of those factors it is submitted that the offender will be subject to adverse consequences if a conviction is recorded, that Mr Pan has a minimal criminal record, and that the SAR discloses that there is no need for rehabilitation or supervision.
12. Mr Glissan next submits that the present offence is 'trivial' within the meaning of s 19B(1)(b)(ii), both as to quantum and criminality. He says there is no likelihood of recidivism and little point in imposing any penalty beyond that he has already experienced in standing trial over several weeks at great emotional and economic cost.

Commonwealth sentencing provisions

1. The sentence to be imposed upon the offender is to be determined in accordance with Part 1B of the Crimes Act. In sentencing an offender, the court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 which provides procedural guidance on sentencing offenders who commit Commonwealth offences. In particular the court must have regard to the matters set out in Section 16A. It is not intended that Part 1B cover the field and is not intended to operate as a code.
2. Section 16A(1) of the Crimes Act states that: In determining the sentence to be passed, or the order to be made… A court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
3. The section 16A(1) sentencing obligation has been referred to by the Courts of Criminal Appeal in Australia as the 'primary obligation'. It is specifically set out in section 16A(1), before the non-exhaustive list set out in section 16A(2), and is reinforced in section 16A(2)(k), which requires the court to take into account the need to ensure that the offender is 'adequately punished for the offence'.
4. Section 16A(2) of the Crimes Act provides a non-exhaustive 'checklist' of the matters which the court must take into account if relevant and known to the court in the sentencing of federal offenders.
5. Section 16A(2) makes clear that this checklist is not a catalogue of considerations which is exclusive of other relevant considerations. Each consideration is in addition to any other matters which are relevant on the question of sentence. In determining the appropriate sentence, the court must also have regard to the nature and severity of any conditions that may be imposed on, or may apply to, the offender under that sentence: section 16A(3) of the Crimes Act.
6. Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment in respect of a federal offender, unless the court having considered all available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
7. In this matter, with respect to this offence, I am satisfied that a sentence of imprisonment is inappropriate in all of the circumstances. No submissions were put otherwise. Indeed, the real contest between the parties, as developed in oral submissions, is whether or not a conviction ought to be recorded.

The nature and circumstances of the offence - s 16A(2)(a)

1. The findings of fact upon which the matter proceeds to sentence must be available from the evidence produced on sentence. If there is conduct that would aggravate the offending and lead to a greater penalty, then that conduct must be proved beyond reasonable doubt. If there are circumstances that a sentencing judge proposes to take into account in favour of the offender, it is enough if those circumstances are proved on the balance of probabilities. If findings cannot be made to the requisite standard on a particular issue agitated by the Crown or the offender, then the court must proceed to sentence on the objective facts proved by the evidence.
2. In this case, the nature of the offending and the circumstances in which it was committed are set out in the Statement of Facts which was admitted without objection.

Plea of guilty - s 16A(2)(g)

1. I have already noted that I accept that there has been a plea of guilty which is of some utilitarian value, and I find that the offender is entitled to a discount of 5%.

Remorse - s 16A(2)(f)

1. The offender has demonstrated little insight into his offending behaviour: see the SAR, where the offender does not acknowledge the criminality of his actions, even in retrospect.

Rehabilitation - s 16A(2)(n)

1. I am satisfied that the offender has a low but not negligible risk of reoffending.

General and personal deterrence - ss 16A(2)(j) and (ja)

1. In my opinion, because the offender has no insight into the criminality of his behaviour, personal deterrence has some limited role to play. As Mr Pan acknowledged in his SAR, it is to expected in the gaming industry for some associates to 'swindle' by playing with counterfeit money. If Mr Pan continues to gamble, there is no reason to think that he would not come across further counterfeit currency. It is important for him to understand that keeping such currency is criminal behaviour and the importance of maintaining the integrity of the Australian currency.
2. As a matter of general deterrence, taking into account the matters set out above, in my opinion it has only a limited role to play.
3. I note finally that section 16A(2)(k) requires me to ensure that the offender is adequately punished for the offence. In my opinion, the matter is best dealt with pursuant to s 20 of the Crimes Act 1914.

ORDERS

1. I convict you of possessing counterfeit money on or about 26 October 2016, contrary to section 9(1)(a) of the Crimes (Currency) Act 1981 (Cth).
2. You are ordered to comply with a conditional release order pursuant to section 20 of the Crimes Act 1914 (Cth). The term of the order is two years.
3. You are released on your own recognizance in the amount of $1.
4. The conditions of the order are: 1. You will be of good behaviour; and 2. You must appear before the court if called upon to do so at any time during the term of the order.
5. If you fail to comply with these orders, further penalties may apply.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2019