Tran v R

Court of Criminal Appeal (NSW)|2020-11-16|Before: Hoeben CJ, Price J, Fagan J

Solicitors: QV Law - Applicant Commonwealth Director of Public Prosecutions - Respondent File Number(s): 2017/008946 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 3 February 2020 Before: Huggett DCJ File Number(s): 2017/008946

Offence and sentence The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon her by her Honour Huggett DCJ on 3 December 2019 in the District Court at Sydney.

The applicant was sentenced after entering a plea of guilty to a single count of dealing with money intending that it would become an instrument of crime and where the value of the money was more than $100,000 contrary to s 400.4(1) of the Criminal Code (Cth).
The applicable maximum sentence for the offence is 20 years imprisonment and/or a fine of 1200 penalty units.
The facts on which the applicant was to be sentenced were agreed.
The applicant was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years. The sentence was to commence on 3 February 2020.

Factual background

Strike Force Bogami was a joint investigation conducted by the New South Wales Police Force Organised Crime Squad and the Australian Criminal Intelligence Commission (ACIC) into money laundering syndicates involved in the laundering of significant amounts of money on behalf of organised crime syndicates. As a part of the investigation, ACIC obtained Commonwealth intercept warrants for the mobile phone services used by David Redshaw to organise meeting persons linked to money laundering syndicates. Redshaw belonged to an organised crime syndicate which included Ryan Thomas Musgrove.
On 28 July 2016, (that being the date of the offence for which the applicant stood to be sentenced), she met with Musgrove at Yagoona. He handed her a black and white plastic bag before she returned to her residence in Bankstown. The applicant was later seen driving away from her home with a shoe box before returning to her residence without the shoe box. Shortly thereafter, Mr Nguyen (hereafter referred to as "Nguyen") left carrying a white plastic bag. He was subsequently stopped by police and his vehicle was searched. Police located a white plastic bag which contained a number of blue plastic bags each containing bundles of Australian currency in $50 and $100 notes totalling $91,370. Police also located a number of recent bank deposit receipts and hand written notes.
On the same day, police executed a search warrant at the applicant's residence in Bankstown. A black and white plastic bag consistent with that handed to her by Musgrove was located in her bedroom. Within that bag was a used and opened heat sealed bag with "200K" written on both sides. Throughout her residence, a quantity of Australian currency totalling $22,815 was located.
Between 23 May 2015 and 28 July 2016, the applicant received messages on her mobile telephone from a "J Chuot", a person believed to be located in Vietnam, relating to the deposit of large quantities of cash into local bank accounts. These instructions included details of account numbers, account names and the value of Australian currency to be deposited. Using telephone applications including Viber and WeChat, the applicant communicated with and instructed others including Nguyen, Hai B Toan, and Phuong Beo to make deposits into nominated accounts at various financial institutions. Once such deposits were made, the applicant sent photographs of the deposit slips back to J Chuot to confirm completion of the transactions.
A number of cash deposits, primarily in structured amounts (being amounts less than $10,000) were made into nominated bank accounts within one or two days of the applicant providing instructions to persons, including Nguyen.
Between 13 July 2016 and 5 August 2016, a total of $786,870 was deposited into various locally based financial institutions. During this same period, instructions relating to the deposit of a further $185,857 were provided to the applicant which she in turn provided to others. However, for each of the latter transactions particular evidence was not able to be obtained so that those deposits were described as being "unconfirmed".
The methodology used by the applicant and others involved in the transactions, the subject of the offence, is called "cuckoo smurfing" in money laundering terminology. "Cuckoo smurfing" involved the use of individuals, who are locally based, to carry out bank transactions including depositing cash in amounts under the applicable reporting threshold of $10,000. This is done in order to enable others based outside Australia to move cash into Australia without compliance with local regulations and laws. The individuals used to conduct such transactions are referred to as "smurfs".
An examination of the applicant's telephone revealed a number of communications between herself and J Chuot commencing on 23 May 2015, as well as communications between the applicant and Nguyen in July 2016. Further analysis of the applicant's phone showed that on 28 July 2016 she sent deposit instructions to a person by the name of Nha totalling $110,000.
On 28 August 2018, Nguyen provided a statement to police. Amongst other things, he said: 1. In 2016 he was recruited by the applicant to collect money from her and deposit it into Australian bank accounts for persons in Vietnam. 2. He was paid cash for his role. 3. The applicant provided him with instructions via Viber regarding the name of the bank, the name of the account holder, the BSB, account number and the amount to be deposited. 4. The applicant instructed him to keep cash deposits under $10,000 and not to make too many deposits at the one bank branch so as to avoid arousing suspicion. 5. He was instructed to provide a deposit receipt to the applicant by sending through a photograph of the slip once the transaction was complete.

Findings on sentence

The sentencing judge found that the applicant's role in the offending was not that of a low level syndicate member performing menial tasks closest to the risk of detection. She played an integral role in the offending commencing on 23 May 2015 when she began communicating with J Chuot. Her Honour accepted that the main transactions which were the basis of the offence took place over a period of approximately two weeks, between 13 July 2016 and 5 August 2016.
Her Honour found that during the period of the offending, the applicant engaged in the following conduct: She communicated with J Chuot regarding the transactions, at times providing regular advice and updates, e.g. informing J Chuot "this bank does not have much so it will be safe for me to do it in 2-3 days" and "transfers with large $ will be done the next day otherwise they will be suspected". Her Honour found that the applicant also communicated with a number of locally based participants in the scheme, including Nguyen, and assumed responsibility for making arrangements for them to perform essential tasks, i.e. collecting money intended to be an instrument of crime and providing instructions regarding the way the money was to be structured and deposited thereby taking possession of copies of deposit slips as confirmation that such deposits had been made.
Her Honour found that the applicant's role was subordinate to that of J Chuot who had a more substantial and senior role involving significant decision making and directions. Her Honour was not persuaded that the applicant's role was on a par with that of Nguyen but was well satisfied on the evidence, that the applicant's role was greater, in that he was just one of the persons to whom she provided transaction instructions.
Her Honour accepted that Nguyen knew, at least in general terms, what was going on and that on occasions he acted with a degree of autonomy and provided what could be interpreted as advice or instructions to the applicant. That occurred within a context whereby he, as one of the persons who physically attended the bank and carried out transactions, was acting on the applicant's instructions. He did so in circumstances where she had been involved in the offending for a longer period than he had been. Her Honour found that the evidence revealed that the applicant was the person in contact with those higher up in the enterprise which Nguyen was not.
Her Honour expressed the intention of sentencing the applicant on the basis that her role was subordinate to that of J Chuot but more substantial than that of Nguyen.
Her Honour assessed the objective gravity of the applicant's offending. In doing so her Honour had regard to s 16A(1) of the Crimes Act 1914 (Cth) which requires that a sentencing judge ensure that the sentence ultimately imposed was of a severity appropriate in all the circumstances of the offence. Her Honour noted that the maximum penalty of 20 years was a significant yardstick. Her Honour noted that the reason for such a heavy maximum penalty was because conduct of the type before the Court was vital to the success of some criminal enterprises. These involved the moving of the proceeds of crime to third parties offshore and/or assisting criminal enterprises by making their detection more difficult.
Her Honour regarded the applicant's role in the offence and the nature and extent of her participation as important considerations in assessing the objective gravity of the offending. Her Honour was satisfied that the applicant was a party to an organised criminal enterprise which involved a level of planning and premeditation. Her Honour reached that conclusion although she accepted that she was unable, on the evidence before her, to determine the full nature and extent of the enterprise.
Her Honour was nevertheless, satisfied that the applicant was aware that the methodology with which she was involved was intended to disguise the source of monies in order to move such monies in contravention of anti-money laundering regulations and laws in Australia. Her Honour particularly noted that the amount involved in the offending was at the very least in excess of $750,000 which was well above the threshold of $100,000. Her Honour further noted that the applicant was motivated by financial gain and had admitted in her affidavit that she received $600 and that her co-offender, Nguyen, had received $400, for each transaction with which they were involved. Her Honour had particular regard to the fact that this was not an isolated criminal act but rather a course of criminal conduct which took place over some 15 months and involved her willingly dealing with money intending that it be an instrument of crime. That having been said, her Honour accepted that the most significant steps in the offending were restricted to only several weeks in and about July 2016. Her Honour regarded the offending as serious.
Her Honour summarised the applicant's subjective case. She was born in Vietnam in May 1991 and was aged 28 at the time of sentence. She arrived in Australia on a student visa in 2008 when she was aged 17 to study English which she did for a year. She worked fulltime until she became pregnant with her first son. The applicant became a permanent resident in 2014. Her father and brother reside in Vietnam and her mother and her uncle reside in Sydney.
The applicant married in 2009 when she was aged 18 but they divorced in 2014. Later in 2014, she married her present husband and lived and studied in Melbourne for a period of time before moving to Sydney in 2015.
In 2018 her husband was arrested in relation to his apparent involvement in drug supply and drug cultivation offences. There was no suggestion in the evidence that the applicant was a party to her husband's offending. The applicant reported being under financial strain at the time of the offending but was adamant that the offending was not financially motivated. After her arrest, the applicant reported becoming overwhelmed with worry, anxiety and stress, was having trouble sleeping and was frequently experiencing nightmares. After her arrest, she received treatment from a psychologist who diagnosed a mixed anxiety-depressive disorder characterised by depression, low self esteem, anxiety and PTSD.
The applicant relies upon a single ground of appeal:

The sentencing process resulted in a miscarriage of justice because the applicant has been left with a justifiable sense of grievance due to the disparity between her sentence and the sentence imposed upon co-offender Quy Thanh Nguyen

The applicant had previously relied upon a second ground of appeal, i.e. that her sentence was manifestly excessive but that ground was abandoned when the matter came on for hearing.
By way of further background, Nguyen was charged as follows:

Dealing with money suspected proceeds of crime ($254,770) (a maximum of 3 years' imprisonment and/or 80 penalty units).
Conduct transactions to avoid threshold reporting ($234,910) (a maximum of 5 years' imprisonment and/or 300 penalty units).
Dealing with money suspected of being proceeds of crime ($91,370) (a maximum 2 years' imprisonment and/or 120 penalty units).

Nguyen received a sentence of 3 years' imprisonment to be served entirely in the community by an Intensive Corrections Order.
The applicant submitted that the effect of that sentence is that she has a prison term, having been incarcerated for at least two years, and that her co-offender does not have to spend a single day in prison. The applicant submitted that the basis for her complaint is that although there were differences in the charges and the role of the offenders, they did not justify such a marked disparity where one person was to spend at least two years in prison and the other person effectively had suffered no prison time at all.
The applicant particularly relied upon the decision of Why v R [2017] NSWCCA 101 where Walton J (with whom Hoeben CJ at CL and R A Hulme J agreed) summarised the relevant principles: "43 The principles for the application of the parity principle were summarised by Garling J (with whom Macfarlan JA and R S Hulme J agreed) in Rees v R [2012] NSWCCA 47 at [50]: (1) The parity principle is an aspect of equal justice, which requires that there be consistency in punishment. Unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice: […]; (2) Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: […]; (3) Hence, the discrepancy required to be identified between sentences is one which is not merely an arguable one, but one which is 'marked', or 'clearly unjustifiable', or 'manifest ... such as to engender a justifiable sense of grievance' or else it '[appears] that justice has not been done': […]; (4) The elimination of an 'unjustified' discrepancy is a matter of importance not just to the individual concerned, but to the administration of justice in the community more generally. This Court is therefore concerned not with whether an appellant actually feels a sense of grievance, that is, a subjective test, but rather whether, examined objectively, the sense of grievance is a justifiable one, namely that a reasonable mind looking over all of what happened would see that a grievance was justified. In other words, the matter is considered objectively: […]. (5) In determining whether there has been a discrepancy of a kind sufficient to give rise to a justifiable sense of grievance, a court: (i) must consider not just the head sentence, but all components of the sentence including the non-parole period and the total effective period that both offenders will serve: […]; (ii) must also consider all of the facts and circumstances applicable to both individuals involved, including the objective seriousness of the offence, in order to identify whether a differential sentence was justified; […]; (iii) ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: […].[references omitted.]"
The applicant submitted that consistent with the decision of Why v R, this Court should conclude that when the effective period spent in custody by one co-accused is zero days compared with a sentence of at least 2 years, a breach of the parity principle is involved.
The applicant submitted that there were factual issues that indicated that her sense of grievance was justified. She referred to telephone intercepts where it was apparent that advice was being given to her by Nguyen. The applicant submitted that Nguyen had knowledge of the criminality of what was being done and that both he and the applicant were involved in what they both knew was a criminal enterprise.
The applicant conceded that there were differences between Nguyen and her, including the charges and maximum penalties, but submitted that on the totality of the facts before the Court, the applicant should have been given a sentence more lenient than that which she received and which did not involve such a long period of incarceration.

Consideration

The principles applicable to the concept of parity were not in dispute. Complaints concerning a lack of parity of sentence between co-offenders are an application of the principle of equal justice, i.e. that like situations be treated alike and different situations differently. Mere disparity of sentence is not a ground for such a complaint and an objectively justifiable sense of grievance must be apparent. Differences in sentences can be properly grounded in different findings of fact. Such differences can also be based on different findings as to the character and antecedents of persons being sentenced.
In Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 608 [65] Gaudron, Gummow and Hayne JJ said: "65 To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. Publishing a table of predicted or intended outcomes masks the task of identifying what are relevant differences."
It is only where a discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that appellate intervention is required. Attention must be given to the facts and circumstances upon which a sentence was assessed and due allowance must be made for the differing cases of individual offenders.
The following remarks of the Court in Burrows v R [2017] NSWCCA 45 at [67] are apposite: "67 ... "This is a ground where there are considerable obstacles placed before the applicant in circumstances where the sentencing judge is fully aware of sentences imposed upon co-offenders, the reasons for those sentences, and in the remarks indicates why the judge is departing from the sentences imposed upon the others.""
The co-offender, Nguyen, was sentenced by Armitage ADCJ on 25 July 2019. He faced quite different charges to those faced by the applicant. He was sentenced to an aggregate sentence of 3 years to be served by way of an Intensive Corrections Order, including an obligation to complete 300 hours of community service.
Her Honour specifically dealt with the question of parity as follows: "I have assessed the offender's role as being greater than that of Mr Nguyen. Amongst other things, Mr Nguyen was sentenced (for considerably less serious charges) having regard to a 25% reduction to reflect the utilitarian value of his guilty pleas (which themselves were entered earlier than the present offender's guilty plea was entered) and 5% reduction for assistance and a finding of significant remorse. Having had regard to the principal of parity I am satisfied the starting point of the sentence in this case should be higher than that appropriate for Mr Nguyen." (Sentence judgment 22.2)
In addition to the matters specifically referred to by her Honour, there were a number of other relevant differences between the position of the applicant and that of Nguyen: 1. the applicant had a role subordinate to J Chuot who was not charged; 2. the applicant's role was greater than that of the co-offender, Nguyen, who was just one of the people to whom the applicant was providing instructions; 3. Nguyen knew in general terms what was going on, had some autonomy and on occasion advised the applicant but overall he was acting on her instructions; 4. the applicant had been involved in the offending conduct for a much longer period; 5. it was appropriate to sentence the applicant on the basis of her more substantial role in the criminal enterprise than Nguyen; and 6. the offending was financially motivated with the applicant to receive more from each transaction than Nguyen.
Apart from the above considerations, and those specifically referred to by her Honour, there were other differences which fully justified the disparity in sentences.
While there is no doubt that principles of parity can apply to co-offenders charged with different offences, the differences between the offences charged can be such that it could not be said that any sense of grievance over the different sentences is justified. This is one of those examples.
The applicant was sentenced for a single count carrying a maximum penalty of 20 years imprisonment. Nguyen was facing three counts, carrying maximum penalties of 3, 5 and 2 years respectively.
When the similarities of the offending by the applicant and Nguyen are compared with their differences, it is apparent that there is no real basis for the applicant having any legitimate sense of grievance when comparing her sentence to that of Nguyen.
In relation to similarities, both were entitled to be treated as of good character. Both were involved in the same scheme, although in different ways. Both were found to have a low risk of re-offending, both were financially motivated and both claimed to be under some financial pressure.
In relation to differences, the roles of the applicant and Nguyen were quite different. The applicant was involved in the offending for a longer period. The applicant's offending involved a much larger sum of money. The applicant was more senior within the scheme. The applicant recruited others, including Nguyen. The applicant was involved in directing several others, including Nguyen. Nguyen's plea was more timely than that of the applicant. Nguyen provided assistance to the authorities. Finally, it is hard to evaluate any remorse by the applicant given her denials of the required knowledge until as late as the time she obtained her sentence assistance report and psychologist's reports.
It follows from the above that any sense of grievance on the part of the applicant is not in the requisite sense a justifiable one.
The orders which I propose are as follows: 1. Leave to appeal against sentence is granted. 2. The appeal is dismissed.
PRICE J: I agree with Hoeben CJ at CL.
FAGAN J: I agree with the Chief Judge.

I certify that this and the 14 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law and of the Court. Morna Lynch Associate Date: 27 November 2020 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: 27 November 2020

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