R v Vincent, Jamieson

District Court of NSW|2010-11-19

Background 5. A fraud was perpetrated on the Commonwealth Superannuation Scheme (CSS) on 24 December 2003. That superannuation scheme was established for employees of the Commonwealth Government and its instrumentalities. It involved false banking directions being sent to the custodian of a sub fund of the scheme. The custodian, JP Morgan Chase Bank was to deal with the CSS funds in accordance with strict protocols instituted by the fund managers. The CSS fund had numerous overseas investments. Dealing with that required trading in foreign currencies. 6. About the middle of 2003, criminals, by infiltrating into JP Morgan and Telstra, were able to forward fraudulent instructions to JP Morgan through a secure Telstra fax line and fraudulently call back twelve minutes after that initial faxed instruction to open up four accounts; one in Switzerland; one in Greece; and two in Hong Kong. Pursuant to these fraudulent instructions the transfer of $150 million was accomplished on a date, which seems to me to be 24 December 2003, at 1.37pm. 7. The funds were despatched to the four destinations in varying sums, in the case of each account in the sum of tens of millions of dollars. So far as is relevant to this case the Hong Kong Shanghai Banking Corp (HSBC) received $294.3 million Hong Kong, which on my estimate is somewhere between $50 and $100 million Australian of which between $20 and $22 million ($175.6 million Hong Kong) was placed in an account named as HK Power account, which is of relevance in this case. The balance of the money was put into another account, Lun Tun Travel account. 8. Some days after the transfer an inaccuracy in the description of one nominated account caused a query to be raised which led to JP Morgan discovering the fraud and freezing the funds. On the facts before me the precise date and time at which the funds were frozen is unclear but it would appear to be either late on the 26th or sometime on 27 December 2003. That would appear to leave open an inference to be drawn from Tony Vincent senior's calls early Boxing Day morning to which I shall come shortly. 9. Before the funds were frozen, those associated with the fraudulent activity had managed to appropriate nearly $20 million Hong Kong, or $3.416 million Australian. 10. It was not suggested that Jamieson Vincent was in any way associated with the planning or design of the conspiracy that affected the fraudulent transfer of the CSS funds to the four foreign destinations. However the offender's father, Tony Vincent, and one, Arkadi Drisner, were involved in the organisation of the conspiracy at a higher level. One Dallas Fitzgerald also appears to have played a far more prominent role in the early overt acts by which the conspiracy was advanced. The Role Of The Offender 11. The facts tendered by the Crown and not contested by the offender describe his role as "acting as a messenger" between Fitzgerald and Tony Vincent senior, especially during the period when Fitzgerald was in Hong Kong attempting to arrange access to the stolen funds in the HK Power account. The offence before the Court requires an assessment of the criminality of the conspiracy relating to the dealing with the money after it was the proceeds of crime. It should not be thought, however, that criminality occurs after the money was fraudulently transferred. The agreement of how to deal with the money after it was transferred was no doubt being progressed with arrangements being made prior to its transfer to the sham accounts. 12. To this end, on 1 July 2003 the offender travelled with Fitzgerald to The Netherlands where, with Fitzgerald, he met with Drisner. It is to be noted that none of the money was ultimately transferred to The Netherlands. Fitzgerald and the offender returned to Australia on 8 July 2003. 13. On 22 September 2003, with his father and Fitzgerald, the offender met with Drisner at Marrickville Golf Club. There was a second meeting of the four at Bondi the following day. On 24 September the offender and his father again met with Drisner at Bondi. There were also telephone contacts by the offender during this period, no doubt relating to his role in the meeting, four on 22 September; an initial contact with Drisner, although to what end is not made clear on the evidence before me; a later contact with Fitzgerald indicating he would pick Fitzgerald up, presumably for purpose of conveying him to the Marrickville meeting; another with Tony Vincent senior arranging to meet him at the Lady Jane Club after the Marrickville meeting, and finally another call with Fitzgerald regarding "the envelope" and "the paper", both of which needed to be given to Drisner. 14. On 23 September 2003 Drisner and the offender were in phone communication arranging the Bondi meeting with Fitzgerald. The following day Drisner made a phone contact with the offender wanting to speak to Fitzgerald. I take it that he was seeking Fitzgerald's phone number. I should note. Drisner had been in Australia nearly a week before any of these meetings were held. It is unclear whether any contact prior to the contacts I have referred to were made with Drisner. On the evidence before me. 15. What was discussed at the meetings is a matter for speculation. This offender's role at these meetings is even more speculative against the background that he was a messenger for Tony Fitzgerald. These would be matters, that is, his role at the meetings, would be matters the Crown must prove beyond reasonable doubt. 16. On 25 September Drisner departed for South Africa. In his luggage ASC located a number of documents including JP Morgan documentation and hand written notes in relation to overseas money movements. So far as I can ascertain, Drisner's possession of these documents is not a matter the Crown suggests Jamieson Vincent bears an responsibility for. It certainly has not linked "the envelope" and "the paper" to any of those documents. Nor on the evidence before me could I be satisfied Jamieson Vincent had any awareness of them. There is on the Crown case an accomplice within JP Morgan who is more likely to bear responsibility for them. Drisner's possession of these items does however point to his awareness of the role JP Morgan was playing as custodian of CSS funds and that his September visit to Australia was an overt act relating at very least to acquisition of the funds (not a matter this offender has been charged with) . 17. In those circumstances his dealing with the offender, Tony Vincent senior and Fitzgerald, bearing in mind the latter two's roles in the acquisition of the funds makes clear the offender must have well known that once transferred, any funds acquired would be the proceeds of crime, or at least he must have suspected as much. 18. As I noted when dealing with the background material the funds were transferred in the afternoon on Christmas Eve. Just after midnight on Boxing Day Jamieson Vincent called his father. In that call Tony Vincent senior asked "Did you see the guy" (para 16 of the facts). Jamieson Vincent replied inter alia "It wasn't fine when I went to see him. Yeah. He still hasn't heard anything". The Crown asserted, and the defence do not dispute, that call was a reference to Jamieson Vincent acting as a messenger between Fitzgerald and his father and to the lack of knowledge at that time as to the success or otherwise of the fraudulent acts against the CSS. 19. The inference I draw from the presentation of facts (para 16) is that by this time JP Morgan had discovered the error in the accounts descriptions and was directing the receiving banks to return the funds. 20. Just after midnight on 27 December 2003 Tony Vincent senior rang his son and asked "There's no word from that fella?". Jamieson Vincent replied "No good". Fitzgerald travelled to Hong Kong later the same day. Shortly before departing the offender met with him. Fitzgerald's purpose was to organise release of the funds held in the HK Power HSBC account in Hong Kong. At the Hong Kong airport Fitzgerald was met by Jaian Hua Chen and others to assist him. 21. The following day the offender spoke to his father by phone telling the father he had not heard anything from Fitzgerald. On 29 December (which was a Monday) the offender again spoke to his father indicating he still had heard nothing from Fitzgerald and that he did not have the number on him. Some time during that day Fitzgerald, with others, attended the HSBC bank but was refused access to the account. 22. Fitzgerald reported by phone to the offender at 12.48pm Sydney time that he was "standing outside waiting still"; that there was no "exciting news" and that it is "all kind of fucked". Jamieson responded he would call back when his father returned. Within six minutes the offender contacted Fitzgerald and the Crown recitation of facts continues: "On 29 December 2003 at 12.53pm Sydney time the offender reported by telephone to Fitzgerald. He told him that his father had not "heard anything" and that as soon as anything was known he would telephone him. Fitzgerald reported in turn that the money could not be accessed and that he was "locked into like a basement with a bunch of angry fucking Chinamen" and "I'm not going to be coming home pretty soon".

The offender then says to Fitzgerald "as soon as I find out or hear I'll call you, all right". (para 25) On 29 December 2003 at 1.16pm Sydney time the offender reported by telephone to Fitzgerald who told him that from enquiries he made "it doesn't look good". Fitzgerald asked as to whether there had been any delays in Sydney. The offender informed him that there had not been any such delays. Fitzgerald then reported to the offender on the difficulties he was having in Hong Kong in having funds released. (para 26)
On 29 December 2003 at 4.04pm the offender on the instructions of his father telephoned Fitzgerald and instructed him to "call 'it' off and come back to Sydney". He told Fitzgerald that he was sitting in the Lady Jane Club waiting on "this" and that he would call him "straight away" if he found out more about the funds transfer. (para 27)
On 29 December 2003 at 11.39pm (Sydney time) the offender confirmed with Fitzgerald by telephone that Fitzgerald should return to Sydney. Fitzgerald told Vincent that he would return on Wednesday 31 December 2003. Fitzgerald asked if there had been any further news and the offender told him that there had not been. Fitzgerald returned to Sydney on flight QF128 on 31 December 2003.
Most of the funds transferred had been frozen by the bank due to defects in the account name, dormancy of the accounts or on notification of a possible fraud. The amount of $3,416,000 odd was not recovered. That is money that I earlier referred to was not recovered. The balance of the money in the HK Power account was recovered.
The offender did not receive any funds or any other amount by way of remuneration for his involvement in the enterprise. He admits that he believed the funds were proceeds of crime. I am satisfied his belief was based on reasonable grounds and strongly held. I am also satisfied he understood at some level that those in Hong Kong would be dealing with the proceeds of crime and were also aware that they were seeking to deal with funds that had been fraudulently lodged in foreign accounts. I should indicate that I find as a fact that the capacity to deal with these funds expired when the accounts were frozen on the order of JP Morgan. Objective Criminality
This offence falls within that part of the Criminal Code Act 1995 prohibiting money laundering. It is not difficult to understand why money-laundering amounts to criminal conduct. Laundering money is about criminals giving themselves access to, in liquid currency, value or some part of its value of property that was earlier unlawfully acquired by criminals or their associates. It is in this way that unlawful transfer of wealth is accomplished. Such conduct ignores the rightful owner's interest in the property. In that sense the conduct is to be seen as an offence against property rights.
Money laundering is also engaged into frustrate the detection of criminal conduct against property. In that sense money laundering is an offence against the administration of criminal justice. Money laundering constitutes transfer of wealth without economic gain. In that sense it is a crime against the financial stability of a bank or a nation or an institution as the case may be.
To illustrate that point it is appropriate to recall Chen and his cohorts in this case had fraudulently acquired access to $150 million of CSS funds, the fruits of superannuation contribution by workers for their post employment life. It was the equivalent of fifty (as said- read 500) superannuation payouts of $300,000. No doubt Chen and others higher in the conspiracy to fraudulently acquire the $150million intended to launder all of this money.
Jamieson Vincent's role appears to be limited to funds deposited in only one or two HSBC accounts. I am satisfied the conspiracy to deal with the proceeds of crime ran in tandem with the conspiracy to transfer the funds. There is no doubt those transferring the funds were doing so in order to deal with them subsequent to their transfer. This offender's first proved involvement with any of the other conspirators appears to be at the beginning of July 2003 when he travelled with Fitzgerald to The Netherlands. Accepting his role as subservient to his father's and the trips to The Netherlands the precise connection it has to the conspiracy to deal with the proceeds of crime is unclear to say the least. None of the transferred funds was constituted proceeds of crime until after the transfer had been effected. I do not rule out his trip was an overt act connected to his intended role when the relevant funds were transferred in Hong Kong, it is just that I cannot identify what that role was. For me it is entirely speculative. Was it about educating him as to financial institutions and their procedures or looking after his father's interests, or communicating with his father. None of the details of his actual activities in The Netherlands is before me, nor is their nexus to his role in the conspiracy to deal with the HSBC account money.
The evidence is certainly relevant however to the offender's knowledge that the offence he was involved in was complex, well organised, international in scope, and apparently involved substantial funds. There is no evidence he knew of the specifics of sums transferred or fraudulently obtained in Hong Kong. Indeed the evidence does not disclose that he knew or realised any specific sums or any specific amount of proceeds of crimes that had actually been obtained in Hong Kong. The evidence does not disclose to me beyond reasonable doubt Jamieson Vincent realised $3.46 million had been successfully from the HSBC bank account. Nor does he, as I say, appear to play any role in that.
I should return to the overt acts undertaken in September 2003. The evidence does not establish that this offender exercised any authority at the meeting nor that he contributed anything to the planning or steps to be taken to advance the conspiracy to transfer the funds or the conspiracy to deal with the funds once transferred. The contacts appear to relate to facilitating the meeting by picking up a person to deliver him to the meeting or deliver concrete things such as items needed by one of the conspirators. It is difficult to draw an inference adverse the offender in respect of meetings with his father at Lady Jane's after the Marrickville meeting. From my past dealings with Mr Vincent I know the Lady Jane was a place where several members of the family could be found because it was a business belonging to, owned by one or more of the members of the family. I regard his role as a facilitator/messenger and gofer for his father.
That Drisner left for South Africa at the end of September visit with luggage items including JP Morgan documents and hand written notes does not increase this offender's criminality unless some nexus is made between the relevant documents and the hand written notes and him. There is no doubt Drisner's visit to Sydney was an overt act by him to advance the conspiracy to transfer the funds and develop or reveal plans as to dealing with the money once transferred. But none of that seems to be pointed towards this offender. The documents in Drisner's possession provide proof of his involvement but do not define the offender's role.
The remaining overt acts relied upon to define the offender's role occur between Boxing Day and 11.39pm 29 December. As overt acts constituting criminal conduct even though it would seem that some time on Boxing Day JP Morgan directed the funds to be returned.
From that point when JP Morgan made the direction all overt acts, assuming that they were still part of a conspiracy and not a frustrated event, and I have done that, but all overt acts were a futility so far as furtherance of the conspiracy was concerned.
There are three aspects of criminal conduct that contribute to criminality associated with that conduct. The intention, the acts themselves and the consequences of those acts. When criminal acts are capable of leading to greater criminal consequence the criminality arising from an offender's participation must be the greater.
In this case the offender's activities from time of JP Morgan seeking to retrieve the money were never going to release more funds for his co-conspirators dealing with them. In that sense, and perhaps fortunately for him, his acts from 27 to 29 December, that is, the acts whilst criminal result in no further consequence or no further harm being done to JP Morgan or CSS. While $150 million Australian was fraudulently transferred, on the material before me once the money had been transferred and had become the proceeds of crime, the offender's involvement appears confined to accessing or at least to aiding Fitzgerald to access and deal with the funds lodged in HK Power HSBC account, a sum that I have estimated to be no more than $22million Australian.
It is likely those in charge of the conspiracy would seek to milk as quickly as possible each of the four accounts where fraudulent monies had been transferred and to put them in other accounts so that it would be difficult to follow the trail. This offender in those circumstances was playing his part in a very polished and sophisticated organisation. His messages to and from his father in that sense had some importance. Within that organisation this offender's role appears to be tied in with and supportive of his father's involvement. The proceeds of crime successfully accessed was $3.46 million. He was of course involved in overt acts with his co-conspirator Fitzgerald who was seeking to deal with the balance of the HK Power account which now as down to about no more than $19 Australian.
It does not appear from the evidence before me that he played any part in facilitating access to the proceeds for those who actually acquired $3.46 million. There is no evidence before me suggesting he even was aware access to the $3.46 million had been achieved. As I earlier noted there is no evidence of any financial gain being made by the offender or on my understanding by his father. The offender's role as messenger is best epitomised in the last two calls made to Fitzgerald passing on the instructions of his father, calling it off and advising Fitzgerald to return to Sydney. This offender is a lowly player. The Legislation- An Insight Into Criminality
Section 400.3 of the Criminal Code Act 1995 makes provision for penalties for those who deal in the proceeds of crime where the value is a million or more. Within that group of offences there are three penalty levels: 400.3(1) Twenty-five years where the dealing is by an offender who believes the money to be the proceeds of crime: 400.3(2) Twelve years when the dealing is by an offender who is reckless as to the fact that money is the proceeds of crime: and 400.3(3) Five years when the dealing by the offender who is negligent as to the fact the money is the proceeds of crime.
Instructively s 400.4 makes provision for penalties for money laundering where the sum involved is $100,000 or more. The penalties for belief are twenty years; with recklessness ten years; with negligence four years. These penalties continue to cascade downward through varying sections where the maximums for s 400.7 are five years, two years, and twelve months for dealing with the proceeds of crime where the value of the money is $1000 or more.
Any analysis of those scales of penalties highlights the legislatures intention of gearing punishment to the state of knowledge rather than the quantum of funds. Where the state of knowledge is more certain, ie belief rather than recklessness, the penalty doubles and where it deals with negligence the penalty can become as little as a fifth. However quantum of money may increase from 100,000 to a million the maximum penalty for recklessness in dealing with those two the difference is only two years, that is, ten years for one and twelve years for the other. Hence my observation that the quantum of money is not the significant factor.
While the quantum of money is clearly not be ignored the more significant measure of criminality suggested by chapter 10 in the Criminal Code Act 1995 relates to the mind set of those who deal with the proceeds of crime. The quality of recklessness then is an important factor in determining the objective criminality. If actual knowledge is at the upper end of recklessness and something less than negligence is at the lower end of recklessness then I would classify the quality of the offender's recklessness as somewhere between the two levels. He certainly lacked detailed knowledge but had good reason to believe Fitzgerald was seeking access to the funds that were the proceeds of crime.
The offender's role in this conspiracy was not one where he was elevated to personally dealing with any of the proceeds of crime or attempting to deal with any of the proceeds of crime. There is little doubt that those who were intending to deal with the proceeds of crime or attempting to deal with the proceeds of crime had actual knowledge that they were dealing with the proceeds of crime. As I said a moment ago recklessness does not exclude actual knowledge, even so a distinction must be maintained between the less serious offence involving recklessness and the more serious offence involving belief. De Simone v The Queen (1981) 147 CLR 383, Ansari v The Queen (2007) 70 NSWLR 89 and Chen v The Queen [2009] NSWCCA 66. In my findings of fact I indicated I was satisfied that at some level the offender had good reason to believe Fitzgerald was seeking access to funds that were the proceeds of crime.
Thus is in respect of the last essential element of the offence needed to be proved there are two competing tensions. The first is his level of awareness, that is, the mindset of Fitzgerald's attempts to deal with the proceeds of crime would constitute a reasonable level of insight. On the other hand he was not personally dealing with the proceeds of crime and was remote both in distance and responsibility within the conspiracy for the other conspirators so dealing. The Offender's Role
The Crown argued the evidence established the offender played a crucial role in planning, preparation, and execution of the offence. It relied upon his trip to The Netherlands with Fitzgerald but there was no evidence as to what transpired on the trip. Likewise the offender's meetings in September 2003, again his role in these meetings were not exposed in evidence. The supporting evidence regarding the September activities hardly suggested a crucial role in planning preparation and execution. Nor do the contents of post Christmas telephone calls reveal anything which suggests planning, preparation, or execution.
Drawing any inference adverse to the offender arising from his attendance at the meetings or trips to The Netherlands must be made beyond a reasonable doubt. I cannot make those findings. Even given as I have found, his father's more elevated role, the quality and extent - I cannot conclude beyond reasonable doubt the quality and extent of the nexus his father's interests and the offender's trip to The Netherlands had, although I am satisfied that there must have been some connection between them. While I do not question the Crown's sincerity in advancing its argument about the role of the accused I note that the particular cases the Crown relied upon for purposes of parity of sentence bar one relate to persons who played a lesser role in the conspiracy than the Crown carves out for the offender. As to that other case, I will come to it when I deal with parity.
The Crown submitted the enterprise the offender was engaged in resulted in successful transfer of $150 million. The enterprise he was charged with was a conspiracy to deal with the proceeds of crime. The section of criminal conduct in which the offence resides is to be found in ch 10 pt 10(2), Money Laundering. That is, an offence that occurs after a crime has been committed.
I have taken into account the offender's involvement with those involved in the fraudulent transfer of the $150 million but that is not the offence with which he has been charged. I quantify the injury loss and damage resulting from the conspiracy he was involved in at its height as $3.46 million. I have found there is a remoteness of the offender to this loss. Whilst I find this offender was a small player, indeed of all those who have been sentenced thus far, this offender's contribution to or involvement in the conspiracy seems less than any of the others.
Even so the full proceeds of the crime all conspirators involved in was $150 million. Fitzgerald's involvement appears to be confined to the HK Power account with the HSBC bank, i.e. something less than $22 million Australian and by the time Fitzgerald was arriving, something less than $19 million. I have already noted the evidence is silent as to this offender's knowledge of the amount of proceeds Fitzgerald was seeking access to. The sense I have gained from the evidence is that he was unaware of these proceeds of crime had been accessed.
An objective understanding of the mammoth scope of the entire enterprise, even when recognising the offender's small part in it, places his criminality nonetheless at a level where the only appropriate punishment is the most severe form of punishment known to the law, namely imprisonment. Subjective Matters
I reviewed Jamieson Vincent's subjective circumstances when I sentenced him in May 2006. It is not suggested my findings then were inaccurate or inappropriate. I have received an updated pre-sentence report, a report from Professor Phillip J Crowe, a consultant surgeon with a speciality in surgical oncology, and a personality profile report from Tim Watson-Munro. Background Family & Relationships
Born in April of 1969 he is now aged forty-one years. At the time of his offending he was then aged thirty-four. He is the third of five children. He has an older and young brother, both of whom I also sentenced to imprisonment for drug dealing. There is an older and younger sister. The older sister suffers an intellectual disability as well as epilepsy. His parents separated when he was eleven or twelve. The father remarried some ten or eleven years later. The boys resided with the father at Dulwich Hill. All have maintained contact with and fondness for the mother.
In 2000 as part of a strategy to overcome drug addiction, dealt with later in these remarks, he moved in with his mother. During his teenage years with his father, the paternal grandmother moved in. Even so the boys were often left alone to care for themselves. During these formative years a strong bond developed between the boys and their father. Jamieson Vincent received strong support from his father at a time when the son was struggling to overcome the drug addiction I have just referred to. Probation and Parole report that Vincent's loyalty towards his father was such during the period post 2000 that he was "willing to walk into hell for him". As events turned out he walked into the next worst place, prison. His father was also in the thick of the drug dealings that engulfed his sons. This offence is yet another instance of his being associated with his father in criminal activities in the period 2003-2004. The offender claimed to Probation and Parole he has now a more balanced relationship with his father but continues to have regular contact with him at time of writing the report in May 2010.
He had been involved in two serious de-facto relationships. From the first there is a twenty year-old child with whom he is in contact, as I understand it on a daily basis. Vincent told Mr Watson-Munro that during his last custodial sentence he learned of a six year old son from another relationship. He is reported to have contact with that child also, although the extent of that contact is not spelt out. Since release in February he is said to be living with his sixty-five year old mother and disabled sister for whom he shares caring duties with the mother. Education Skills & Employment
He left Marrickville High School aged sixteen during Year 10. He accepts he underachieved at school. He worked in a number of casual positions including his father's Burwood fruit shop. He was introduced by his father into the nightclub scene where he held casual positions including maintenance at Lady Jane's. In custody he worked the CSI Engineering workshop as a spray painter and leading hand. In the May of 2006 sentencing proceedings I had references from seniors at the CSI Engineering describing his work and interaction with others in the workplace in very positive terms. Probation and Parole report that for the eight months up to May he had been in full time employment. It is likely the employment is unskilled or semi-skilled. General Health
In May 2006 I noted he suffered from asthma which was adequately controlled by Ventolin and I noted the diagnosis of Hepatitis-C. I also noted at para 28 : "In late 2005 there was a real concern made upon a medical diagnosis of the possibility of melanoma. A superficial spreading malignant melanoma was, as events turned out, adequately excised. The prognosis from the doctors is now excellent with virtually 100 percent survival chances". So whilst still in custody he was referred by Dr Quinn of the Sydney Melanoma Unit to Professor Phillip Crowe, who includes in his specialities, surgical oncology. Dr Crowe notes on 7 June last: "Mr Jamieson first consulted me on 1 June 2007. He was referred to me by Dr Michael Quinn from the Sydney Melanoma Unit. He first presented with melanoma in November 2005 and approximately four months after that noticed a mass in his Axilla. A needle biopsy eventually was performed and this demonstrated spread to the lymph nodes under his left arm and he underwent removal of these lymph nodes on 15 June 2007.

In fact 48/49 lymph nodes showed metastatic melanoma. Because of the extensive disease he was discussed at our multi-disciplinary clinic and underwent a PET scan which showed no evidence of further disease. He then went on to receive radiotherapy to the axilla and the lymph nodes in the lower neck. No other treatment was prescribed for him as medical therapy such as chemotherapy which is not effective in melanoma. He had been subjected to regular monitoring at the radiotherapy clinic in the Department of Radiotherapy. There is no evidence of clinical recurrence of the disease to date."

Come back to Dr Crowe's report. On 7 June 2010 Dr Crowe prognosticated

"Mr Jamieson [Vincent] has very extensive metastatic disease however the fact that it has not recurred in the first three years after treatment is encouraging. However he has a 51% chance of still be alive at five years and a 27% chance of being alive at ten years based on prognosis data from the American Joint Committee on Cancer Melanoma database. Thus there is a high possibility that he will develop recurrent disease and a 49% chance that he will die from this disease within five years. Because his nodal disease was so extensive I would estimate that his risk of death from this disease would be higher than this quoted figure." 59. A fair reading of Professor Crowe's June 2010 report is that his opinion, based upon prognosis data from a reputable body and bearing in mind the extent of the cancer find is a worse than even chance that the offender will die from the disease within five years of June 2010. Since writing those remarks leave has been given to both parties to re-open their cases and tender further evidence. On 11 November last a further report from Dr Crowe was tendered. Relevantly it revises his opinion. I reproduce the whole of Professor Crowe's report. "1 September 2010, I saw Jamieson today in my rooms for further assessment of his previously treated melanoma. Physically he has no complaints and on examination there is no evidence of recurrent disease. However he does have lymphedema of his affected arm which is two centimetres larger in circumference.

He has asked me to elaborate on his prognosis which I have commented on in my recent letter on 7 June. In that letter I quoted statistics from the American Committee on Cancer Melanoma Database indicating that he had an almost 50% chance of dying from this disease within five years. This is based on data which includes all patients with melanoma that has spread to the lymph nodes. However Vincent has just about every lymph node in his axilla involved with melanoma. To have 48 positive lymph nodes is an indicator of extremely aggressive disease. I cannot recall anyone in my practice that has had such extensive disease and has been a long term survivor. Although, of course, this is possible, it is unlikely. I would thus estimate his likelihood of his dying from this disease in the next five years of closer to 90%. However if he did develop recurrence there are now some new treatments available but only at the moment on a clinical trials. If Jamieson's tumour did recur this would be his best option for improving his outcome.

The other consideration is his lymphedema. The main risk with this is a development of infection in the arm which requires rapid and aggressive treatment to prevent serious complications from the lymphedema.

With the above in mind I would be concerned if he was returned to gaol. He would certainly not have access to new treatments for melanoma and he may not be able to access rapid and adequate treatment for complications of lymphedema should they develop. In 2007 there was over a four month delay from the time he became aware of a mass in his left axilla to when he consulted me and subsequently underwent extensive surgery. This would have a significant impact on his long term prognosis." 60. The Crown tendered, in it's reopened case, a letter from Dr Stephen Hampton. It is not an expert report but rather gives a longitudinal history of the offender's dealing with Justice Health in respect of his melanoma cancer. That history insofar as Justice Health is concerned begins in June 2006. It should not be thought for one moment that is the beginning of the history of the melanoma. That is simply the first day a qualified medical practitioner saw him. Five months later the melanoma first minor surgery was done. Three months later excision was undertaken. Thirteen months later a qualified medical practitioner diagnosed an auxiliary lymph node. Fifty-four days later he is seen at the RPA melanoma clinic. Two and a half months later he is seen by Dr Crowe. By this time 48 of the 49 lymph nodes were involved. No evidence of disseminated disease was found. There were complications in June, November, January, February and March with two of these being treated at Prince of Wales. There was radiotherapy in September 2007. From 2007 until September 2010 there appears to have been no evidence of recurrence. 61. Mr Watson-Munro took a history from Mr Vincent of the offender's experiences in prison related to the discovery of the melanoma, its diagnosis and progress. He records periods of three months between discovering a lump whilst in the prison shower and transfer to the Long Bay Prison Hospital. This delay, he believes, may have been responsible for the extensive spread of the lymph nodes. He expressed concerns to Mr Watson-Munro about the management and regular assessment of his illness within the custodial environment. When eventually transferred to John Moroney Centre he noticed a lymph under his left arm. The prison doctor reassured him it was not insidious. He has been told by his specialist "it's the worst thing you can have...it is very aggressive melanoma." Dr Hampton's report suggests the offender may be understating some of the delays. 62. Dr Hampton made the following observations "In the case of Mr Vincent o Shorter waiting times would have been advantageous. o He was managed by specialist melanoma surgeons, oncologists and dermatologists as he would be in the community o He did suffer a recurrent infection in his axilla, a not uncommon adverse event. o He has had lymphedema, a common side effect of axillary surgery, and this was managed with advice from oncologists.

Justice Health is able to provide for care for melanoma. In this case longer than expected waiting times were unfortunate. Systems regarding waiting times for people with malignant diseases have now been examined at Justice Health and POW."

I note that he does not report anything having been done as a result of that examination. 63. The offender complains about the gaol system's capacity to respond appropriately and speedily to serious medical illness is not an isolated incident, see R v Dragan Jokovic [2010] NSWDC 155. I am satisfied the stress arising from his fear of a recurrence of the cancer is real and reasonable. I am satisfied the stress will be exacerbated by incarceration and will have a significant and deleterious impact upon the quality of his custody time. His custody will be the more arduous because of his fears about response time to developing symptomatology even in the absence of any recurrence of symptoms and potentially unbearable if there is a recurrence of symptoms and the not unusual slow acceptance of complaint by nursing or other medical staff. 64. On the last occasion I sentenced him it was on the basis of virtually 100% survival chances, but he did survive at least the non-parole period. I note that as events now turn out that 100% survival chances is now replaced by a 90% risk of non survival. That is a far more gloomy assessment. Mental Heath Issues 65. Mr Watson-Munro appears to diagnose him as having chronic adjustment disorder arising from the remitted cancer, the daily burdens of knowing he could be terminally ill this time with an aggressive form of cancer, continuing themes of depression, anxiety, fractured self esteem, strong feelings of remorse and prospects of dying in a prison environment. Drugs & Alcohol 66. Jamieson Vincent appears to be a drug addict who is in long term remission. He commenced marijuana use as a teenager followed by heroin addiction. He attended two full time rehabilitation clinics with partial success but appears to have gone cold turkey in prison and at home with his mother. He appears to have maintained a drug free lifestyle since 1999-2000, that is since his early thirties. He has never found alcohol as a problem. For assessing rehabilitation he should be regarded as maintaining a drug free lifestyle. Criminal History 67. Jamieson Vincent has an extensive criminal history. But for the drug matters I sentenced him on all his prior offending has been dealt with in the Local Court. His records show traffic offences, street offences including assault police and resist arrest, goods in custody, possession of house breaking implements, stealing, break enter and steal, steal from person, supply commercial quantity of prohibited drugs. On my account he has been imprisoned on two prior occasions, 1996 and 2004 when he served the five year non-parole period. Attitude To Offence 68. Mr Watson-Munro claims the offender has strong feelings of remorse which he says is galvanised by a diagnosis of his potentially fatal condition. No doubt the offender's brittle grasp on life has caused him to reflect upon his past life choices. He pleaded on 8 March. The Crown describes the plea as "entered at a late stage" and only when the matter was ready to proceed to trial. The Crown argues the Crown case was strong. But for the telephone calls in December the Crown case on "conspire to deal with the proceeds of crime" was particularly weak. 69. What becomes apparent, as one looks through the sentences of other alleged co-offenders, is the variety of charges that have been laid against them. It appears as though the DPP has had to look through the Criminal Code Act 1995 to find appropriate charges to glove each of the conspiracies it alleges simply because the evidence is insufficient in respect of each offender to establish participation and overt acts that would support a focus on one single conspiracy. 70. Tony Vincent senior was charged with doing something with the intention of dishonestly causing loss to the CSS Board, while Bouchier, Huffnagel and Osbourne were charged with conspiring with Vincent senior and others of dishonestly causing loss to the Commonwealth Superannuation Board. Jaian Hua Chen, Wang and Roizman were charged with conspiracy with Thomas Vincent and others to deal with money. As a result of the December phone calls I regard the Crown case as solid but not overwhelmingly so particularly given that many of them occurred after the conspiracy was a futility. Nonetheless the value of the plea to the administration of justice is not without significance. The trials that have emerged from the criminal activities associated have taken a substantial time to complete. Resources, prosecution and defence have been expended, it may be there will be appeals against the trial processes. None of that will occur in this case. Further the community's expectation that those guilty of offending should be held accountable for it is satisfied in this case. 71. I have taken into the account the benefit to the administration of justice. If I was sentencing in a similar case in respect to state matters I would regard a discount of fifteen to seventeen and a half percent as appropriate. Delay 72. Delay is a matter that must be considered when determining the appropriate sentence for this matter. Indeed it was a theme of my opening remarks. For some reason the delay appears substantial. In May of 2006 the more serious offence before me was said to have occurred in June 2003. That matter was finalised roughly two years later, that is in 2008. This offence has some contemporaneity with the period of offending in 2003 yet it still progresses. In respect of the offence before the court the offender is first charged in December 2007 nearly four years after the Crime Commission had tapes of his participation. 73. Jaian Chen's matter was finalised in this court on 22 August 2007. Tony Vincent's matter was dealt with in May 2008. Bouchier, Huffnagel and Osbourne's matter was finalised after trial in December 2008. Tony Vincent was serving a ten year term of imprisonment when charged and dealt with. His sentence was allowed to run concurrently or partly concurrently with the sentence he was then serving. The impact of delay is twofold. Had he been charged in 2004/5 the matter would have been finalised whilst he was in custody. One could not rule out that the sentence imposed for his participation may have been either entirely or partly concurrent as happened in the case of Mr Tony Vincent senior where his was entirely concurrent; or it could have been partly concurrent. No-one can doubt that the sentencing judge would have had to consider totality which would have seen some reduction in any extension of prison time by comparison with a sentence which is not to be reduced by reason of parity on this occasion because it is an entirely separate and distinct sentence, see R v Todd [1982] 2 NSWLR 517 and Mills v The Queen [1988] HCA 70. 74. One would also have been able to argue a movement downwards from the 60% non-parole period usually expected in Commonwealth matters on account of the continuity of custody since February 2004. 75. Perhaps of more significance is the serious deterioration in Vincent's health prospects. Professor Crowe has now revised this offender's prospects of early death to a 90% chance of dying within the next five years, that is before his 46th birthday. Such a situation must also mean that his prospects of dying within two or three years are also seriously and sadly enhanced. I have yet to meet an offender in my career who did not view death in prison as tainted was stigma and shame. True there is a power to release from custody a terminally ill prisoner residing both, it seems to me, in the Commissioner and in the Governor. But this court does not operate on any undertaking in respect of these matters nor any guarantee that such a release would be forthcoming. It is not appropriate to speculate upon any merciful order of release. Discussions regarding applications for release by executive fiat or Commissioner's discretion have been known to have been determined on matters other than an offender's medical condition particularly political imperatives and election dates. Parity 76. I have already indicated persons associated with the CSS fraudulent funds transfer have appeared before court on three parts of the Criminal Code Act 1995. o One, doing something with intent to dishonestly cause loss to the CSS Board. that is at chapter 7. The Proper Administration of the Commonwealth offence, part 7(3) Fraudulent Conduct, maximum penalty five years. I think that was Mr Tony Vincent's charge yet he, it is agreed, is a far more senior person in terms of criminality than this offender. o Conspiracy to defraud is the second group, chapter 7. Again the Proper Administration of the Commonwealth Fraudulent Conduct. On that occasion maximum penalty ten years. o Conspiring to deal with money being the proceeds of crime, that is a chapter 10 offence, national infrastructure part 10(2) Money laundering, maximum penalty twelve years. Reckless dealing with money the proceeds of crime, It is a case of the person who was least involved has been charged with the offence that carries the greatest tariff. 77. One has to question the exercise of prosecution discretion and as I say, it seems to me, the discretion was more about finding an appropriate section of the Crimes Code to charge the offence with little regard to the relevance of the criminality exhibited by the offending conduct. This offender's role was substantially less than his fathers' in that he was always subservient to his father as best one can tell. 78. I shall shortly review her Honour Judge Tupman's remarks. I have received each of the remarks on sentence in respect of Wang, Roizman, Chen, Bouchier, Huffnagel, Osbourne, Tony Vincent senior. Reading these remarks has given me some insight into the role of Arkadi Drisner and Dallas Fitzgerald. 79. Jamieson Vincent's role in this conspiracy is minor by comparison to any of them that also makes parity a difficult concept because there is not a parity in performance of the criminal acts. Tony Vincent was given an overall sentence of three years with a recognisance release order of two years. Her Honour sets down his role in these terms. "As I have said the overall offence itself is a very serious example of an offence capable of being brought under this section because of a number of people involved, the time over which it was conducted and the very large sum of money which was intended to be transferred."

I would add to that, and the knowledge that this offender had of the matters that were ongoing in the conspiracy. Continuing with her Honour's remarks, "The Crown has argued that this prisoner's involvement in the offence can be characterised or ought to be characterised as operating as Mr Drisner's right hand man in Australia. It seems to me that submission is made out on the evidence. What is missing however from the agreed facts is any actual understanding of what it was he did except by way of summary. As I have said I accept that his role involved him making his premises available for meetings of others, recruiting at least his son if not others, accepting messages from Drisner and passing them on, passing messages between others involved in the offence and he.

It was appropriate to refer to him as a right hand man or deputy. That does not preclude the possibility that there were others who were equally in the role of deputy in Australia...his role in this overall offence neither at the very top nor it seems to me at the very bottom. His role, it seems to me, is somewhere around the middle...It is a very serious example of an offence of its type. His involvement however is somewhat less than that because of the agreement between the parties to the sentence that he did not know the full extent of it. I further take into account the fact that he gained nothing. 80. Jamieson Vincent as I have said before played the role of messenger/gofer. Notwithstanding the difference in charges and the maximum penalties he would have a justifiable sense of grievance if his alleged co-conspirators received a lesser sentence than he. The Crown has sought to argue that when sentencing and having regard to parity I should equate this offender's role with one Jaian Hua Chen who was sentenced by Judge Marien SC on 22 August 2007. 81. Judge Marien found Chen involved in taking of a number of steps to open the Lun Tun Travel Trading account, that is the second HSBC Hong Kong account. His Honour noted "Chen opened the bank account at the request of Chen Chao." His Honour reviewed a number of acts related to the opening of the account, among the steps taken was meeting with Fitzgerald to hand him details of the account. Chen also arranged for two other co conspirators to travel with him from Sydney to Hong Kong to assist in dealing with the funds that were to be transferred to the account. Chen gave money to one of the men to collect the tickets. Chen travelled with these men to Hong Kong. Chen met Fitzgerald at Hong Kong airport, acted as interpreter for Fitzgerald in the meetings to agree to assist in movement of funds transfer in to Lun Tun account. Whilst in Hong Kong Chen met with co-conspirators discussing the arrival of the funds into the account. All of this was preparatory to the funds arriving from JP Morgan, $118 million Hong Kong was transferred into to the Lun Tun account established by Chen, $3.64 million was withdrawn from it. 82. There are two aspects of Chen's involvement to be noted. Firstly there is far more detail establishing his acts. Secondly his role is far above messenger/gofer. He was at least a middle order batsman in the team as far as Judge Marien was concerned. Although Howie J as a member of the CCA described Chen's role in a somewhat different detail to Judge Marien. There was no criticism of Judge Marien's findings. In dismissing Chen's appeal the Court of Criminal Appeal noted (Judge Marien) "Found the applicant played a significant role in the conspiracy and it included travelling to Hong Kong and recruiting other persons to assist him."

Elsewhere Howie J noted "His role in the conspiracy involved making arrangements for access to over $20 million in stolen funds" and Chen "was aware that the activities in which he was involved related to a very large sum of money." In the light of these findings to accept this offender's role as comparable to Chen's would constitute blatant appealable error. The Legislative Checklist 83. While I have not structured my remarks in the order set out in s 16(2) of the Crimes Act 1914 (Commonwealth) I have dealt with (a) the nature and circumstances of the offence, (c) the course of conduct constituting the offender's conduct, (d) the personal circumstances of the offender, (e) any injury loss of damage resulting from the offence. 84. In respect of this matter to what I have already said I note, there is no evidence the offender knew the identity or who had accessed the money (3.46 million) or who was seeking to access the money held in the HK Power account other than Fitzgerald. There is no evidence he knew of the existence of the Lun Tun Travel account. (f) the nature and extent of the offender's contrition. (g) the circumstances in which the offender was charged and pleaded to the charge. (h) the offender's cooperation with law enforcement has been to comply with the charging and prosecution process, he has done nothing more than this. 85. (j) s 16(1) and (j) make clear that the Federal Legislature requires punishment and personal deterrence to the emphasises in dealing with Commonwealth offending conduct. Frankly research seems to point to the proposition that deterrence is ephemeral, I have no evidence before me that enables me to answer with any confidence the issues raised in s 16A(2)(j). (k) I am satisfied the sentence I shall impose, for reasons I have given, constitutes the proper lawful punishment for the offence. (m) I have reviewed in detail the age, character, antecedents, physical and mental condition of the offender. I have little evidence of his means. (g) I am satisfied his prospects of rehabilitation are positive. When dealing with him in May 2006 I set out a number of positive rehabilitation factors. Many, although not all, of the factors will still apply. The offender's relationship with his partner is apparently no longer ongoing but he is supported by a permanent girlfriend. His post release plans did not materialise, that is his then post release plans did not materialise and his health prognosis is far grimmer than it was in 2006. Since his release there have been no further episodes of offending. (l) His family will not doubt worry as a consequence of his incarceration much more than has previously been the case because of his grim health prognosis. Apart from this there is no suggestion of any extraordinary third party crisis brought about by his incarceration. 86. I note s 16A(3) requires the court to have regard to the nature and severity of the conditions that may be imposed on or may apply to the offender under any sentencing order. No evidence has been led by either party in respect of this matter. From my experience I know he will be housed in a single sex gaol run by a paramilitary regime. His right to decision making will be severely curtailed in many aspects of his daily living. He will be classified shortly after his entry into prison. It is likely he will be housed in a cell one or two out. I have already referred to his past difficulties in obtaining medical attention within Justice Health. I have noted, given his prognosis, his imprisonment will be more arduous for him particularly should he self discover symptoms of recurrence of the cancer that are not appreciated by nursing staff who, in the custodial system, perform his first diagnostic screening. He should be able to receive and make limited contact with friends and relatives outside custody. Setting The Sentence 87. Of all the remarks on sentence I have read arising from the criminal roles associated with the transfer of 150 million and dealing with the proceeds of crime this offender reflects the least criminal conduct. Indeed in respect of the conspiracy charges laid against other offender, the only possible reference to this offender is as "divers other persons". I have dealt with the offender's objective criminality which is the primary determinant in assessing the appropriate penalty. 88. In this case there are two other significant secondary considerations, his health and the delay. In seeking to finalise the matter on the material before me proper analysis of the cause of the delay have not been possible but its consequence present as a mitigating feature in the light of the offender's health issues and now requirement for renewed incarceration. I note the Crown has fairly and usefully highlighted so far as his medical situation is concerned a passage from Sopher (1993) 70 A.Crim.R 570 that I have taken into account. "Health and age are relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example a person may have but a short period to live or need intense treatment which cannot be provided in gaol. There may be circumstances to where to keep a person in gaol will probably lead to his early death and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life. The Department of Corrective Services has the responsibility of providing for health care but there may be cases where what is required on a permanent basis extends beyond what it can provide and can be expected to provide. In almost all cases what the Department is able to provide will suffice. If gaol is significantly harder for person because of difficulties due to health and age this would be a relevant matter to take into account."

I also have regard to Mark John Doyle (1996) 84 A.Crim.R 287, a case involving an offender called up for a breach of a CCA bond to be of good behaviour. At the time of the hearing of the callup the appellant was terminally ill with HIV/AIDS. The Court (Smart, Badgery, Parker, Simpson JJ) said inter alia, "Dr Malcolm reports that the prisoner's medical condition has deteriorated considerably in the intervening six months. He has previously been treated with the generally available anti retroviral drugs including...He is currently being treated with Zidovudine and two experimental and as yet unlicensed drugs available only under compassionate access programs through participating medical specialists. Not only is this treatment (although not yet approved for general use) essential in the treatment of a patient such as the prisoner whose condition has deteriorated while receiving generally available treatments but also his participation in the trial of those drugs represents a valuable contribution by him to research into medical treatment for HIV AIDS.

It is clear that the prisoner's condition is ultimately fatal and Dr Malcolm estimates his life expectancy to be somewhere between two and eighteen months with a likelihood of progressive deterioration in his health requiring admission to a specialised hospital unit at short notice from time to time. It is Dr Malcolm's opinion that incarceration would pose a major risk to his health and survival as well as denying to him access to the range of specialist options and investigational procedures that he is likely to require in the next six months. We accept the evidence of Dr Malcolm.

We are satisfied upon the evidence before us that treatment of the kind the prisoner is currently having and will continue to need could not be made available to him within the prison system. That circumstances mean that it would be inhumane in the extreme to return him to prison at this stage. To do so would be to deprive him of the opportunity which we are satisfied that he generally values to make some contribution during the short remainder of his life to the welfare of HIV/AIDS sufferers in the future."

I note that on that occasion the Court of Criminal Appeal, notwithstanding the seriousness of the offence and the breaches, did not return that prisoner to custody. The difference between that offence and this one is that that offender was suffering from a disease that was alive and operating at the time. Had this offender's cancer not been in remission I would have been very strongly tempted to have followed the same course but it seems to me that whilst the offender's situation is speculative because of the remission situation he cannot get the benefit of an outcome such as that. Nonetheless he is entitled to serious consideration on its account. I should note while this case is not yet reached the level of extremity of Doyle the prognosis of Professor Crowe could not be ignored.
Taking into account all of the matters I have referred to and bearing in mind the particular enormity of the original conspiracy a sentence of full time incarceration in the circumstances of this case will be a sentence of three years with a recognisance release order at the expiration of twenty months. Would you stand up please?
Jamieson Vincent you are convicted of the offence that you, "between 1 June 2003 and 1 February 2004 at Sydney, did conspire with Jaian Hua Chen, Dallas Fitzgerald, Thomas Anthony Vincent and divers other persons to deal with money to the value of a million or more, being the proceeds of crime, where the person or persons to deal with the money pursuant to the conspiracy would be reckless as to the fact that the money was the proceeds of crime." For that offence you are sentenced to an overall sentence of three years imprisonment. I order your release to recognisance in the sum of $10 at twenty months. I order your release on recognisance release ordered 18 July 2012. Is any other order required by me? Destroy the money? JAMES: There is no order sought in relation any proceeds, any money your Honour.

JAMES: Your Honour the recognisance order is a period therefore of sixteen months.

HIS HONOUR: Sixteen months, I said twenty but I'm happy to make it sixteen if that's what you want.

JAMES: No I'm sorry your Honour I wasn't clear, the balance.

HIS HONOUR: The balance of term is sixteen months yes but the overall sentence was three years.

JAMES: Yes your Honour. There's no further orders sought by the Crown your Honour.

JAMES: Your Honour there is just one matter that my informant brought to my attention while your Honour was making his remarks and that is that there is a non-disclosure order in relation to the prisoner's father that I understand is still current I think in relation to--

JAMES: I'm not aware of the basis your Honour but I've just been informed that there is a non-disclosure order. I would assume involving his name if nothing else.

HIS HONOUR: If there is a non-disclosure order any report of this case will not refer to him by his name and any disclosure of any reference made by me to his name in the course of these proceedings would be contrary to the order made presumably by Judge Tupman.

HIS HONOUR: It is my habit to invite those, before I remand them into custody, if you want to say goodbye to him one by one to say goodbye but it seems a bit crowded here. If there's any family members or girlfriend they may say goodbye and it will be one by one please. He is not yet remanded into custody.

HIS HONOUR: Yes now I remand you in custody thank you.

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.

CITATION: R v Vincent, Jamieson [2010] NSWDC 302

Mark John Doyle (1996) 84 A.Crim.R 287 De Simone v The Queen (1981) 147 CLR 383 Ansari v The Queen (2007) 70 NSWLR 89 CASES CITED: Chen v The Queen [2009] NSWCCA 66 R v Dragan Jokovic [2010] NSWDC 155 R v Todd [1982] 2 NSWLR 517 Mills v The Queen [1988] HCA 70 Sopher (1993) 70 A.Crim.R 570

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