Truong v The Queen [2016] VSCA 228

Court of Appeal (Vic)|2016-09-21|Before: Priest JA

DPP v Minh Phat Truong (Unreported, County Court of Victoria, Judge Coish, 15 March 2016)

CRIMINAL LAW - Sentence - Appeal - Money laundering - Applicant sentenced to a total effective sentence of 8 years and 6 months' imprisonment with a non-parole period of 6 years - Whether disparity with sentence on co-offender - Whether sentence manifestly excessive - Appeal allowed - Resentenced to a total effective sentence of 6 years with a non-parole period of 4 years.

1 During February 2016, the applicant stood trial in the County Court on a Commonwealth indictment containing six 'money laundering' charges. The jury found him guilty of four charges of dealing in the proceeds of crime (charges 3, 4, 5 and 6), but acquitted him of two further charges (charges 1 and 2).

2 On 15 March 2016, the trial judge sentenced the applicant to a total effective sentence of eight years and six months' imprisonment,[1] upon which the judge fixed a non-parole period of six years.

3 The details of the charges, convictions and sentences may conveniently be set out in tabular form:

Dealing with proceeds of crime on 3 January 2012, contrary to s 400.5(1) of the Criminal Code (Cth) ($50,000 or more)

Dealing with proceeds of crime on 9 January 2012, contrary to s 400.4(1) of the Criminal Code (Cth) ($100,000 or more)

Dealing with proceeds of crime on 28 March 2012, contrary to s 400.5(1) of the Criminal Code (Cth) ($50,000 or more)[2]

Dealing with proceeds of crime between 29 March and 1 April 2012, contrary to s 400.4(1) of the Criminal Code (Cth) ($100,000 or more)[3]

Dealing with proceeds of crime on 15 May 2012, contrary to s 400.4(1) of the Criminal Code (Cth) ($100,000 or more)

Dealing with proceeds of crime on 27 May 2012, contrary to s 400.4(1) of the Criminal Code (Cth) ($100,000 or more)

4 The applicant seeks leave to appeal against the sentence on two grounds:[4]

There an unjustifiable disparity between the applicant's sentence and that imposed on his co-offender, Mr Moo.
The total effective sentence and non-parole period are manifestly excessive.

5 For the reasons that follow, leave to appeal should be granted, the appeal allowed and the applicant resentenced. I would make orders in the manner later set out, so as to sentence the applicant to be imprisoned for six years, and would fix a non-parole period of four years.

6 Suky Lieu, the applicant's cousin, was a Melbourne-based drug trafficker and principal of a substantial drug trafficking operation.[5] The offences of which the applicant was found guilty involved the applicant assisting Lieu, between 27 March 2012 and 27 May 2012, to remit the proceeds of Lieu's drug trafficking overseas. In total, the applicant assisted Lieu in transferring the sum of $696,500 to Hong Kong on Lieu's behalf. The drugs for the operation were supplied through Lieu's business partners who operated from Hong Kong.

7 The applicant assisted Lieu by arranging money transfers authorised by Crown Casino through Whye Wah Moo. He also recruited his brother-in-law, Wei Bin ('Kevin') Zhang into the scheme. Zhang, a Hong Kong-based company director, agreed to provide the Bank of China account details to which the money was transferred, and to receive and withdraw the money remitted to those accounts by Moo. This enabled the proceeds of the drug trafficking operation to be passed on to Lieu's partners in Hong Kong. In effect, the money being remitted constituted the proceeds of past drug sales and also funded future drug supply and trafficking.

8 In his reasons for sentence, the trial judge described the applicant's offending in greater detail as follows:

These offences were committed between 28 March 2012 and 27 May 2012. At that time [the applicant] conducted an Asian grocery and fruit and vegetable business in Box Hill.

[The applicant is] the cousin of Suky Lieu. Suky Lieu was a Melbourne-based principal of an international drug importation, money laundering and drug trafficking syndicate. He was responsible for trafficking significant quantities of controlled drugs in Victoria and New South Wales. He was engaged in wholesale and street-level trafficking from at least 22 January 2012. Suky Lieu used and directed a network of subordinates and associates to carry out his drug trafficking business.

A significant part of Suky Lieu's drug business was coordinated and carried out in conjunction with Hong Kong-based members of a wider drug syndicate. By arrangements with his Hong Kong drug business partners, John and Sam Gor, Suky Lieu was able to access supplies of controlled drugs that were warehoused in Sydney by the Hong Kong connections.

As and when drugs were available in Sydney and required by Suky Lieu, Suky Lieu and John would make arrangements via telephone for their subordinates to meet in Sydney so the drugs could be handed over for intended transportation back to Melbourne and subsequent distribution and sale through Suky Lieu's network of subordinates and associates. The arrangements between John and Sam Gor and Suky Lieu were ongoing and involved the Hong Kong connections supplying Suky Lieu with drugs on consignment. Suky Lieu was then required to pay for the supplied drugs by remitting amounts of money that were derived from the proceeds of his drug trafficking back to his Hong Kong partners. This arrangement was cyclical in nature. When Suky Lieu was able to remit proceeds of his drug trafficking back to Hong Kong it would in turn enable the Hong Kong connections to release more drugs and make them available in Sydney for Suky Lieu's domestic drug trafficking business. In effect, the money being remitted was the proceeds of past drug sales and at the same time also the instrument of future drug supply and trafficking.

At the time of these money laundering offences Suky Lieu had an established drug trafficking business that had been operating for some time and which involved these drug supply and money remittance arrangements with the Hong Kong syndicate connections. [The applicant] assisted Suky Lieu to remit his drug proceeds from Australia to Hong Kong by enabling Suky Lieu to launder the money through the Crown Casino and to have it moved offshore via telegraphic transfers authorised by Crown Casino.

[The applicant] knew that Suky Lieu was a drug trafficker and that he had Hong Kong connections involved in his drug business. [The applicant] knew that Suky Lieu needed to remit drug proceeds back to John and [he] knew that this was part of their ongoing drug trafficking and supply business arrangements. ...

At the time of the offences [Whye Wah] Moo was a business associate of [the applicant's]. Moo had provided insurance and financial services to [him]. In that capacity [the applicant] first met Moo. Moo also occasionally worked at Crown Casino as an authorised representative of an Indonesian-based junket operator. In this capacity Moo was able to deposit money at the casino into the account of the junket operator. Moo could also request that the casino arrange for overseas telegraphic transfers of the funds that he deposited into the junket operator's account. Moo only worked at the casino when clients of the junket were present at the casino. [The applicant] knew of Moo's position as an authorised representative of the junket operator. [The applicant] knew that Moo could deposit money into the junket operator's account and could arrange for the telegraphic transfer of those funds to overseas bank accounts. [The applicant] also knew that Moo could only make such deposits and transfer requests when he was working at the casino because clients of the junket operator were in attendance.

[S]ome time in 2012 before the first offence [the applicant] approached Moo and asked if he would be willing and able to receive cash from [him] that could then be deposited into the junket operator's account at the casino and arranged to be transferred to overseas bank accounts nominated by [the applicant]. Moo agreed to do this for [him].

At the time that [the applicant] approached Moo with this proposal [the applicant] had already informed Suky Lieu of the possibility that Moo could move money offshore to Hong Kong for him through the facilities available to the junket operator at the casino. Around this time [the applicant] and Suky Lieu also arranged for [the applicant's] brother-in-law, Kevin Zhang, to be involved at the Hong Kong end of the transaction. Kevin Zhang was a director of a Hong Kong company. He was able to provide Bank of China account details for the various overseas telegraphic transfers and was also able to arrange to withdraw transferred funds in cash and then to meet with and pass the cash on to John or his associates in Hong Kong.

Once the scheme for remittance of the funds was in place [the applicant] dealt with money on each of the occasions the subject of the four offences in the following way:

(1) [The applicant] and Suky spoke on the telephone and/or in face-to-face meetings to arrange for Suky to hand over cash to [him]. [The applicant] and Suky also spoke on the telephone about the amounts that Suky owed and had promised to send to his Hong Kong partners and whether he had been able to collect the money which was required to be remitted.

(2) After arranging a face-to-face meeting [the applicant] and Suky met and Suky handed over a bag containing bundles of cash to [him].

(3) Once [the applicant] had the cash [he] would count it and check the amount. [The applicant] contacted Moo and arranged to meet with him very shortly after receiving the cash from Suky in order to hand the cash onto Moo.

(4) [The applicant] usually provided the cash to Moo in the foyer of the Crown Casino or at [his] Asian grocery shop. [The applicant] provided Moo with the bank account details for the telegraphic transfer request.

(5) Once Moo had the cash on occasions he changed it into casino gaming chips first, he deposited it at the casino cashier cage area into the Ang Junket account and completed a telegraphic transfer request form for the money to be sent to the Bank of China account corresponding with the account details provided by [the applicant].

(6) After the telegraphic transfer request was approved Moo contacted [the applicant] to confirm the money had been deposited and sent.

(7) [The applicant] then contacted Suky and Kevin Zhang to inform them the money had been sent so that arrangements could be made for Kevin Zhang to attend the bank to collect the money and for John to meet with Kevin Zhang to receive the money.

(8) After the money was handed over by Kevin Zhang to John, Suky Lieu and [the applicant] would be informed by Kevin Zhang and/or John that the money had been received.

In total [the applicant] dealt with $696,500 and [he] received this money from Suky Lieu after meeting with him on five separate occasions. [The applicant] handed the money over to Moo on five occasions, the money was subsequently transferred by Moo in four telegraphic transfers through the Ang Junket account at Crown Casino as follows:

(1) 28 March 2012, $95,500 (Charge 3);

(2) 1 April 2012, $286,500 (Charge 4);

(3) 15 May 2012, $191,000 (Charge 5); and

(4) 27 May 2012, $110,000 (Charge 6). ...

9 The judge also was satisfied that the applicant engaged in the money laundering for financial reward; and, in light of telephone intercepts relied upon in the prosecution case, was satisfied beyond reasonable doubt that the applicant's commission was in the range of 5.5 to 6.5 per cent of the total amount dealt with on each occasion. (As a matter of arithmetic, the applicant's total commission must thus have fallen somewhere between a little over $38,000 and a little over $45,000.) Furthermore, the judge was satisfied beyond reasonable doubt that the applicant knew that the money was the proceeds of Suky Lieu's drug trafficking and that the remitted money would enable the cyclical drug business between Suky Lieu and his overseas Hong Kong-based connections to continue.

10 Before turning to the grounds of appeal, it is convenient to say something of the applicant's personal circumstances.

11 The applicant was born in Vietnam in 1964, in the midst of the Vietnam War. His was a large family. Whilst growing up he was constantly exposed to the effect of war. At age 14 years, he left Vietnam with his family, and spent eight or nine months in a Malaysian refugee camp, enduring very harsh conditions. He and his family migrated to Australia when he was aged 15 years.

12 After coming to Australia, the applicant completed Year 11 at school. He also undertook Year 12 at a TAFE, where he tried to complete an accounting course, but failed. From the age of 16, the applicant worked each Saturday and Sunday at the Victoria Markets. Later, from the age of 20 or 21, the applicant worked washing cars, before travelling to China where he met his wife. His wife migrated to Australia in 1989. That same year the applicant started to work for his brother in his brother's grocery shop in Springvale, being employed there from 1989 to 1994. In 1994, the applicant and his wife opened their own fruit and vegetable shop at Box Hill Shopping Centre, and ran the business for approximately twenty years. The applicant and his wife have five children born between 1990 and 2001, all of whom have been involved in the family business.

13 On the plea hearing, Yemen Thai, who had met the applicant through her husband and known him for 25 years, gave evidence. She spoke of the applicant's good character, aptitude for hard work and dedication to his family.

14 Further, a bundle of character references was tendered. The applicant had made donations totalling $44,000 to the Salvation Army over the preceding seven years, as evidenced by a schedule of payments. The material tendered suggested that the applicant previously was of good character, and that the offending was out of character for the applicant. He had sold his business and had returned to leading a law-abiding life, now being involved in an import-export business.

15 It was significant that, prior to his conviction, the applicant had spent almost three years on bail (since 20 March 2013).

16 Counsel for the applicant also drew the sentencing judge's attention to the fact that, as a result of being convicted, the applicant's family home, together with another property owned by the applicant and his wife, was the subject of a restraining order and forfeiture application by the Commonwealth. The judge was urged to have regard to the fact that the applicant had lived in fear of losing his family home for the past three years.

17 The first ground relied upon by the applicant asserted that there is an unjustifiable disparity between the applicant's sentence and that imposed on his co-offender, Whye Wah Moo.

18 In his reasons for sentence, the judge purported to take into account the issue of parity. He said:

I have had regard to the sentence imposed on Moo of two years and three months' imprisonment with release upon recognizance after serving nine months. He pleaded guilty to one charge of recklessly dealing with money the proceeds of crime to the value of $100,000 or more. His sentence was reduced on account of his guilty plea and cooperation with authorities. But for these matters he would have been sentenced to five years and six months with a three-year non-parole period.

I have had regard to the principle of parity, but note the very different circumstances between your role and the offending of Moo.

19 Whye Wah Moo, whom the applicant was found to have recruited to assist in remitting money from the drug operation headed by Suky Lieu back to Hong Kong, pleaded guilty to one 'rolled-up' charge of dealing with money, the proceeds of crime, to the value of $100,000 or more, being reckless as to the fact that the money was the proceeds of crime.[6]

20 In very brief summary, between 29 March and 27 May 2012, Moo made four separate transfers of funds totalling $682,500 - being the same four transactions that founded the charges that the applicant was convicted of - from an ANZ Crown Casino account to two different Bank of China accounts in Hong Kong. Moo was able to do this in his capacity as a part-time employee at Crown Casino and as an authorised representative of the 'Ang Junket'. In that role, Moo was able to make cash or gaming chip deposits at the casino into the junket account and then arrange for those funds to be transferred to overseas bank accounts.

21 Moo was sentenced by a judge of the County Court to be imprisoned for two years and three months, and to be released on recognizance to be of good behaviour for two years after serving nine months of the sentence. The sentence Moo received was reduced pursuant to s 21E of the Crimes Act 1914 (Cth)[7] because of his agreement to co-operate with authorities in the prosecution of his co-offenders, including the applicant. Moo gave evidence at the trial of the applicant. The judge who sentenced Moo declared that, in the absence of the undertaking for future co-operation, the sentence imposed would have been five years and six months' imprisonment, with a non-parole period of three years.

22 The applicant accepted that the features that justified a more lenient sentence for Moo included:

• Moo pleaded guilty to a single 'rolled-up' charge (although it effectively embraced all of the applicant's criminality);

• the charge was the less serious offence of recklessly dealing with the proceeds of crime (with a lower maximum penalty); and

• he pleaded guilty and co-operated with authorities.

23 There were, however, as the applicant pointed out, significant aggravating features in Moo's case. Thus, he had breached the trust placed in him by his employer and Crown Casino, in that he was only able to perform his role because he was an authorised representative of a junket group. Furthermore, Moo was a financial planner, and had taken two courses concerned with money laundering legislation.

24 The respondent submitted that the disparity between the sentence imposed upon Moo, and the applicant's sentence, was justified having regard to the following considerations:

• Moo pleaded guilty to one rolled-up offence - albeit that the charge to which he pleaded guilty embraced the same four transactions as the applicant's offending - whereas the applicant was found guilty of four offences after trial;

• the maximum penalty for the offence to which Moo pleaded guilty was 10 years' imprisonment, whereas three of the charges of which the applicant was convicted attracted a maximum of 20 years' imprisonment;

• the fault elements of Moo's and the applicant's offences are different, in that Moo's involved recklessness and the applicant's involved belief;

• the applicant was the instigator of the scheme and had recruited Moo;

• the applicant knew the source and intended use of the money, and was aware of the nature and extent of Lieu's drug trafficking business;

• Moo co-operated with the authorities and provided assistance, but the applicant did not;

• Moo was found to be remorseful, but the applicant expressed no remorse; and

• whereas Moo was found to be unlikely to ever offend again and to have excellent prospects of rehabilitation, the applicant's prospects of rehabilitation were found to be 'reasonable' and no finding was made about the likelihood or otherwise of him reoffending.

25 Ultimately, although, as I have mentioned, the applicant conceded that some disparity between the sentences was justified, it was submitted that the degree of the disparity was not objectively justified by the differing circumstances identified. It was argued that the point is well illustrated by a comparison of the respective 'minimum terms' of the applicant and Moo. Thus, the six years' imprisonment that the applicant must serve before being eligible for parole is eight times longer than the nine months that Moo must serve before being eligible for release on recognizance.

26 Caution must be exercised in gauging parity (or, perhaps, disparity) in circumstances where the applicant and Moo faced a different number of charges under different sections of the Criminal Code providing different maximum penalties, and where Moo had pleaded guilty and received a reduction of sentence under s 21E for co-operating with authorities.[8] Nonetheless, there is, in my opinion, force in the applicant's submissions.

27 Clearly, some disparity - indeed, substantial disparity - was justified between the applicant's sentence and that imposed on Moo. But I think that when the circumstances of each case are properly balanced the applicant is correct to say that the disparity is simply too great. As will become clear, however, I am persuaded that the individual sentences imposed on the applicant are manifestly excessive, as is the degree of cumulation ordered, so that neither the total effective sentence nor the non-parole period can be permitted to stand. Thus, the issue of the claimed disparity is largely subsumed by the considerations relevant to the resolution of ground 4.

28 On charge 3, which related to the sum of $95,000, and which attracted a maximum penalty of 15 years' imprisonment, the judge imposed a sentence of four years' imprisonment. And on charge 4, involving $286,500; charge 5, involving $191,000; and charge 6, involving $110,000 - all of which attracted maximum penalties of 20 years imprisonment - the judge imposed sentences respectively of six years', five years and six months' and five years' imprisonment.

29 The applicant contends that the total effective sentence and non-parole period are simply too long, and suggests that the source of error is the manifestly excessive sentences imposed on each individual charge.

30 On the other hand, the respondent contends that, when regard is had to the maximum penalties prescribed for the offences, the relevant sentencing principles for offences of this nature and the statutory requirement to impose a sentence of a severity appropriate in all the circumstances, it cannot be concluded that the sentence is, in any aspect, manifestly excessive.

31 It was submitted that attempts to demonstrate manifest excess by resort to the comparison of sentences in cases said to be comparable is misconceived. The total amount of money dealt with in any particular case, although relevant, is not the sole factor - let alone the primary factor - that determines the objective seriousness of a money laundering offence under the Criminal Code (Cth). The respondent's counsel submitted that any attempt to demonstrate manifest excess in any particular case by comparing the sheer amounts of money involved in other cases is wrong in principle. Despite these submissions, however, counsel for the respondent spent a deal of time performing the very exercise that he had submitted the Court should eschew.

32 In their written cases, and during oral argument, counsel referred to a number of authorities, including Ansari,[9] Huang,[10] Foster,[11] Li,[12] Guo,[13] Nguyen,[14] TAN,[15] Majeed[16] and Lin.[17] I would add Jiao,[18] HAT[19] and Cox[20] to the list of cases dealing with sentences for money laundering.

33 As was pointed out by the court in Jiao:[21]

There are a number of general statements in the cases concerning money laundering offences and the mischief to which they are directed. Most of these cases concerned offences under s 400.3 or s 400.4 of the Criminal Code ...

Some general statements are contained in [Li] at 200-204 [16]-[42] (concerning ss 400.3 -400.7); [Guo] at 414-418 [84]-[91] (concerning s 400.4); [Majeed] at [34]-[40] (s.400.3); Shi v R [(2014) 246 A Crim R 273] at [43]-[50] (s 400.9 offences after the 2010 amendments); and Almada v R [2015] NSWCCA 19 at [34]-[37] (again an offence under s 400.9 after the 2010 amendments).

34 In Ansari - a case of conspiracy to commit the offence in s 400.3 of the Criminal Code (Cth) - Howie J observed:[22]

The offences within the Division, therefore, apply to a large range of activity in relation to money or other property to be used in connection with, or arising from, serious crime. Not only is there a very wide ambit in relation to the conduct caught by the offences but there is also a substantial range of criminal activity to which the money or property could relate, being limited in effect to an indictable offence of the Commonwealth or a State or Territory. The offences are not concerned only with the source of the money or property that is dealt with but also its ultimate use. The offences cover money obtained illegally or to be used for illegal purposes or dealt with in a manner that is illegal.

With offences that are so wide ranging in their scope it becomes somewhat difficult to imagine an offence falling within the worst category of its kind against which any particular offence can be measured. It might be thought that dealing with money that is to be used for the purposes of terrorism might be within the class of the most serious offences encompassed by the sections in the Division. But it is perhaps not so difficult to conceive of offences that will form the bulk of conduct falling within the scope of the Division that would come before the criminal courts. The most obvious will relate to money obtained as a result of drug activity and that is being dealt with in order to make it more difficult to track or identify as the proceeds of a particular crime. It may also be money that has been legitimately earned but is to be dealt with in such a way as to disguise its source in order, for example, to defraud the taxation office.

But frequently it will be impossible for the authorities to identify the origins of the funds or what is ultimately to be the use made of them, yet it can be shown that the manner of dealing with them was a breach of the law, such as to avoid the mandatory reporting conditions under the Financial Transactions Reporting Act. It may be the case that the persons dealing with the money do not know its source or ultimate destination and do not care provided they are being paid for rendering a service.

The legislation itself has attempted to structure offences to give some guidance as to the seriousness of the conduct by reference to the applicable maximum penalty for each offence. The scheme is that the greater the sum of money involved, the more serious the offence. But the legislation also takes into account the mental state of the offender, so that an offence involving the intentional dealing with proceeds of crime or instruments of crime is more serious than one where the state of mind is recklessness as to the criminal nature of the property. Therefore s 400.3(1), where the amount involved is more than a million dollars and where the offender believes that the property is the proceeds of crime or intends that it will become an instrument of crime, provides for the most serious of the money laundering offences carrying a maximum penalty of imprisonment for 25 years and/or 1500 penalty units.

35 Later, in Li - a case concerned with a charge under s 400.3(1) - Barr AJ (with whom Allsop P, Basten JA, McClellan CJ at CL and Simpson J concurred) surveyed a number of cases involving sentences for offending against ss 400.3(1) and (2), and ss 400.4(1) and (2), and expressed the view that the number of money laundering cases dealt with by appellate courts was small; that they 'do not even begin to trace the limits of the range of proper sentencing discretion; and that they can do no more 'than produce a broad indication of the developing sentencing practice'.[23] (In my view, those observations remain apposite.) His Honour then said:[24]

Notwithstanding the gridlike structure of the subsections, their graded component parts and maximum sentences, they comprehend such a wide range of criminality that there is bound, I think, to be an appreciable variation in the length of sentences within and between them. It seems to me, without undervaluing the importance of the principal differentiating factors - minimum value of money or property and state of mind - that each case will have other variables that bear on sentence. Perhaps the most important will be an exact appreciation of what the offender did, what acts he performed and with what authority and over what period of time. The total value of money or property involved will be important, and whether the money or property belonged to the offender or to another. The degree of planning or deceit that led to the commission of the offence and whether actual loss resulted, and the extent of such loss, will be important. Just as there is a distinction between recklessness and belief, the precise nature of proved belief may vary so as to affect the sentence. There will be a range of possible strengths of belief, rising to certain knowledge ...

36 More recently, in Majeed - a case concerned with s 400.3 - this Court (Kaye AJA, Neave JA and Lasry AJA concurring) referred to a number of factors pertinent to sentencing in cases of money laundering:[25]

The previous decisions on sentencing for crimes of money laundering are of more assistance in identifying some of the principles which must be applied in the imposition of a sentence for that offence, and in considering whether such a sentence is, in all the circumstances, manifestly inadequate.

First, of course, it is necessary to consider just where the offence sits in the grading of the offences within the scheme provided by s 400 of the Code.

Secondly, the precise circumstances of the money laundering must be considered. Those circumstances include (inter alia) the role of the offender in the particular money laundering arrangement; whether the offender was the author or instigator of the arrangement; the degree of authority reposed in the offender in carrying out the arrangement; the precise actions of the offender which constituted the dealing for the purposes of the offence; the period of time over which the offence was committed; the number of transactions involved; and the amount involved in the offending.[26]

Thirdly, where possible, it is relevant to take into account the degree of the awareness or belief, which is the foundation of the relevant mental state alleged against the offender.[27]

Fourthly, money laundering, particularly of the nature and scale involved in this case, is vital to the functioning of organised criminal syndicates, and in particular drug trafficking syndicates. In such cases, it is a necessary part of the criminal activities of those syndicates, and the money launderer is an important cog in the wheel of organised crime.[28] Accordingly, the offence of money laundering, particularly of the type and dimension which was involved in this case, is an offence in respect which the principle of general deterrence is given significant weight. In R v Huang, R v Siu,[29] the New South Wales Court of Criminal Appeal, consisting of Simpson, Howie and Hislop JJ, stated:

Money laundering on the scale in which both respondents were involved should be considered as serious criminal activity that is at the very heart of organised, professional crime syndicates. It warrants severe punishment not the least in order to reflect general deterrence of a very significant degree. When the activity is engaged in for profit, over a significant period of time and with a large number of transactions, the good character of the offender is of less significance than might otherwise be the case.[30]

As has already been observed, the sentences which were under consideration in previous decisions are too few in number to provide anything but the broadest outline of the appropriate range of sentence in cases such as the present. However, with that limitation, the sentences, which were summarised in detail by Barr AJA in R v Nguyen,[31] and other sentencing decisions subsequent to that case, reflect the seriousness with which the courts regard offending against s 400.3 of the Code, particularly in cases in which large sums of money are dealt with by the offender on a systematic basis such as the present case. In a number of cases, the sentence imposed was in the order of one half of the prescribed maximum sentence. I should add, however, that in making that observation, I am conscious of the limited value, to the sentencing process, of a review of previous decisions, given the very wide variety of factors and considerations which affect the sentencing discretion in each individual case.[32]

37 I have, as I have said, concluded that the sentence is manifestly excessive. To express that conclusion is, of course, not to express the reasons for that conclusion.[33] It is enough to say that, having synthesised for myself all relevant factors (including the sentence imposed on Moo), and having borne steadily in mind the fetters applicable to any review of a discretionary judgment, I have come to the view that it was not reasonably open to the sentencing judge to arrive at the sentence which he did.

38 Apart from a largely irrelevant prior finding of guilt,[34] up until the commission of the present offences, the applicant has - as is evidenced by the character references tendered on the plea and the viva voce evidence of Yemen Thai - enjoyed positive good character. Despite his difficult early years, he has been a hard-working and dedicated family man. Over a seven year period from 2009, via the Salvation Army Child Sponsorship program, the applicant supported thirty children in the developing world to the tune of $44,700 (which, ironically, roughly equates to the applicant's 'commission' for his money laundering offences). The judge thought the applicant's prospects of rehabilitation to be 'reasonable', but, I must say, I would be more sanguine.

39 Of particular significance, in my view, is the three year delay in the prosecution being finalised. There is nothing to suggest that the applicant offended during that period. More importantly, perhaps, not only did the Damocletian sword of possible imprisonment hang over his head for that period, but he suffered the additional stress and worry accompanying the prospect of losing the family home. True it is that he could not call in aid a guilty plea, but it will be remembered that he was acquitted by jury verdict of two of the charges that he faced.

40 The applicant's offending cannot be said to be other than serious. He was part of the conduit via which Lieu was able to launder drug money, and, so it seems, introduced Moo and Kevin Zhang into the scheme. Moreover, the offences of which he was convicted carried 15 and 20 year maximum penalties, and had 'belief' as a common element.

41 As against those matters, the four transfers of money making up the individual offences were closely connected temporally. The first payment, charge 3, was 28 March 2012, and the last, charge 6, was two months later on 27 May 2012. Only three or four days intervened between the first and the second transfer, and less than a fortnight between the third and the fourth. Thus, although there were four individual transfers, the applicant's offending could properly be characterised as a continuing course of conduct of limited duration. Moreover, particularly when compared with the facts of many other cases, the total amount of money involved in the four transfers was relatively modest (though not insignificant), as was the applicant's 'commission'.

42 Balancing the circumstances of the applicant and of the offending, including the aggravating and mitigating features; and taking into account the needs of general deterrence, the statutory command in s 16A(1) of the Crimes Act 1914 (Cth) to impose a sentence that is of a 'severity appropriate in all the circumstances of the offence' and the various matters specified in s 16A(2); I would sentence the applicant to be imprisoned as follows:

43 I would make orders for the commencement of the individual sentences which will have the practical effect of making the sentence on charge 4 the 'base' sentence, and would seek to ensure that six months of the sentences on each of charges 3, 5 and 6 be served cumulatively with the sentence on charge 4, so as to produce a total effective sentence of six years' imprisonment. Despite the dictates of totality and the need to avoid double punishment, modest cumulation between the individual sentences is appropriate to reflect the four discrete instances of criminal conduct, notwithstanding their close connection. I pause to lament that achieving cumulation between sentences in Commonwealth cases is made unnecessarily cumbersome, confusing and prone to error, by the statutory scheme in s 19 of the Crimes Act 1914 (Cth). It is baffling that the scheme avoids simply picking up State provisions dealing with orders for cumulation.[35]

44 So as to achieve my intended purpose, I would order that the sentences on each charge commence on the following dates:

45 I would fix a period of four years before which the applicant is not to be

46 Finally, I would confirm all other ancillary orders made by the County Court.

47 I would grant the application for leave to appeal against sentence and allow the appeal. The applicant should be resentenced as set out above.

48 I have had the benefit of reading the reasons of Priest JA, and I agree with them.

[1] By virtue of ss 19(1) to (4) of the Crimes Act 1914 (Cth), cumulation between sentences of imprisonment for federal offences is achieved by differential orders for the commencement of sentences. In practical effect, the sentence on charge 4 was the 'base' sentence; and six months of the sentence of imprisonment on charge 3, and 12 months of the sentence on each of charges 5 and 6, were ordered to be served cumulatively.

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Judgment (78 paragraphs)

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