Court of Appeal (Vic)|2013-03-13|Before: Priest JA, Tate JA

Wong v The Queen [2013] VSCA 52 (13 March 2013)

The Queen v Wong (Unreported, County Court of Victoria, Judge Gullaci, 29 May 2012)

CRIMINAL LAW - Appeal against sentence - Appellant convicted on a total of nine counts - Five relating to dealing with money, being $100,000 or more, reasonably suspected of being proceeds of crime contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth), one of dealing with money, being less than $100,000, which was reasonably suspected to be the proceeds of crime contrary to s 400.9(1A) of the Criminal Code Act 1995 (Cth), one of one charge of possessing a false foreign travel document contrary to of the (Cth), one charge of possessing false documents, namely credit cards, contrary to of the (Vic) and one charge of possessing a thing to falsify documents contrary to of the (Vic) - Two grounds of appeal - Whether judge erred in making findings of fact about the role of appellant in the criminal enterprise and the benefit he stood to gain - Whether total effective Commonwealth sentences of four years nine months was manifestly excessive - Appeal dismissed

1 I have had the benefit of reading in draft the reasons of Priest JA. I agree that the appeal should be dismissed for the reasons given by his Honour.

2 For reasons that follow, in my opinion this appeal against sentence[1] should be dismissed.

3 On 23 May 2012 the appellant was arraigned in the County Court at Melbourne and pleaded guilty to an indictment containing five charges of dealing with money, being $100,000 or more, which was reasonably suspected of being the proceeds of crime (counts 1 to 5); one charge of dealing with money, being less than $100,000, which was reasonably suspected to be the proceeds of crime (count 6); one charge of possessing a false foreign travel document (count 7); one charge of possessing false documents, being credit cards (count 8); and one charge of possessing a thing to falsify documents (count 9). As will be seen from the Table below, counts 1 to 7 concern Commonwealth offences, and counts 8 and 9 concern State offences.

4 The sentencing judge said that he intended that the total effective term for the State offences would be 24 months' imprisonment, with 12 months to serve before becoming eligible for parole; and the total effective term for the Commonwealth offences would be four years and nine months' imprisonment, with a minimum of 36 months to be served before becoming eligible for parole. He structured orders for the commencement of sentences so as to effect a measure of cumulation between the sentences on the various charges. Those orders produced, in effect, a total effective

sentence for all matters of five (5) years and nine (9) months' imprisonment, with a minimum of four (4) years. The judge made a declaration under s 6AAA of the Sentencing Act 1991 that, but for the pleas of guilty, he would have imposed a total effective sentence of seven (7) years and six (6) months' imprisonment, with a non-parole period of five (5) years and six (6) months.

5 So that the sentencing orders might better be understood, I set out the Table below. It will be noted that counts 1 to 5 are 'rolled up' counts, the significance of which I will return to later.

Dealing with money, being $100,000 or more, reasonably suspected of being proceeds of crime [Criminal Code (Cth) s 400.9(1)]

**[**Rolled-up charge - 5 transactions totalling $1,365,400]

8 months after sentence on charge 4 commences **(**29 January 2014)

[Rolled-up charge - 4 transactions totalling $801,617.90]

16 months after sentence on charge 4 commences (29 September 2014)

**[**Rolled-up charge - 5 transactions totalling $1,292,310]

**[**Rolled-up charge - 5 transactions totalling $1,458,240]

Immediately after non-parole period (of 12 months) imposed on State offences (29 May 2013)

[Rolled-up charge - 8 transactions totalling $1,379,620**]**

32 months after sentence on charge 4 commences (29 January 2016)

Dealing with money, being less than $100,000, reasonably suspected of being proceeds of crime [Criminal Code (Cth) s 400.9(1A)] [Possession of $63,810 cash]

46 months after sentence on charge 4 commences (29 March 2017)

Possess a false foreign travel document (Hong Kong Passport) [Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) s 22(1)]

47 months after sentence on charge 4 commences (29 April 2017)

Possess false documents (credit cards) [Crimes Act 1958 (Vic) s 83A(5)]

Possess thing to falsify documents [Crimes Act 1958 (Vic) s 83A(5A)]

TES of 7 years 6 months with NPP of 5 years 6 months

6 Two grounds of appeal were pursued.[2] The first ground complained that the sentencing judge 'erred by making findings of fact in relation to the appellant's role in the enterprise and the benefit he stood to gain from the offending for which there was no evidence and which were not conceded on the plea'; and the second ground was that '[T]he sentences on Charges 1-5, and the total effective Commonwealth sentence are manifestly excessive and in breach of totality'.

7 A little needs to be said of the circumstances of the offending.

8 On 16 March 2011 the appellant arrived at Perth airport from Malaysia. He was holding a Malaysian passport, and his incoming passenger card stated that he worked in marketing, was in Australia on business and intended to stay four days. The appellant did not declare any excess currency.

9 The appellant flew from Perth to Melbourne on 19 March 2011 and took up residence in Box Hill North before moving to a house he leased in Mitcham from May 2011.

10 On 16 June 2011 the appellant's visitor's visa expired and he became an unlawful non-citizen.

11 Over a five month period from 16 June 2011 to 9 November 2011, the appellant made a series of 34 cash deposits with three international currency exchange companies located in Sydney and Melbourne. Each of the 34 transactions involved money reasonably suspected to be the proceeds of crime, which he deposited for the purpose of international transfer to China. Total deposits were made of $6,297,187.90 (counts 1 to 5).

12 Police arrested the appellant on 17 November 2011, after surveillance of him and two associates by Australian Federal Police members. In the backpack he carried at the time of his arrest was a variety of items, including a laptop computer, cash deposit receipts for 7 and 14 November and bundles of Australian currency totalling $63,810 (count 6). The laptop contained files with Microsoft Excel spreadsheets recording transactions between 2 and 14 November 2011, and containing headings including 'Balance', 'Commission' and 'Commission of Credit'.

13 After his arrest, the appellant was taken back to the house in Mitcham. During a search police discovered an office set up for the manufacture of counterfeit credit and debit cards. Police also found 973 completed counterfeit credit cards and thousands of incomplete and blank cards bearing banking and/or Visa and MasterCard logos, together with several other items including a Hong Kong passport in a false name with a photograph matching the appellant's appearance (counts 7 to 9).

14 After receiving legal advice, when interviewed at the premises by police, the appellant essentially made no comment, save that he admitted that he had some $60,000 cash in his backpack at the time of arrest and that he collected cash about twice a month.

15 To properly grasp the gravamen of the first ground of appeal, it is necessary to outline briefly the matters urged on the sentencing judge in mitigation of penalty by the appellant's counsel.

16 Thus, counsel relied upon the early pleas of guilty; a lack of prior convictions; the fact that the appellant received a modest commission of 0.5 per cent on each exchange ($6,000 per month, $30,000 overall); that the appellant was an 'employee', rather than the director of the scheme; that he had no knowledge of where the money came from; that the appellant was 'recruited' into the criminal venture in Macau, and succumbed because of large gambling debts; his air ticket and passport were arranged by others; the appellant's plea was valuable because the evidence linking him to each deposit was not clear cut; the possession of the credit cards and the materials to manufacture them substantially overlapped; there were strong prospects of rehabilitation, demonstrated by his assistance to prison authorities; the appellant would be isolated from family; and the sentence ought to reflect the principle of totality.

17 There were a number of important findings that the judge made. Thus he said he was satisfied beyond reasonable doubt of the following matters concerning the appellant:

(1) that you entered this country with the sole purpose of significant criminal conduct;

(2) that you played a significant and central role in the money laundering offences;

(3) that you were active in the period covering the 34 transactions in various parts of Australia;

(4) that your crucial role was carried out by you efficiently and effectively;

(5) that you were motivated by money that you expected to receive by way of commission and other benefits;

(6) I am not persuaded on the balance of probabilities that you were recruited as asserted by your counsel who specifically declined to call any evidence in support of his assertions;

(7) that you are well educated, intelligent, speak a number of languages and were well qualified to engage in the significant, sophisticated criminal conduct;

(8) that you were prepared to run the risk of detection because of the monetary rewards that you expected to receive.[3]

The judge also expressed satisfaction beyond reasonable doubt that the appellant was motivated by 'greed' and played a 'pivotal and crucial role' in the offending. He also referred to the appellant's further submission that he was only a junior employee and that he had only received a low commission of $30,000. Further, the judge said he was satisfied beyond reasonable doubt that the appellant 'received other benefits in addition to the commission however I am not able to determine the exact amount of moneys that you received or expected to receive for your criminal activity'.

18 The appellant's counsel argued that there were several findings that the judge erred in reaching. Principally, it was argued that the judge should not have found that the appellant was motivated by greed; that he ought not to have rejected what was submitted to be the 'undisputed' or 'agreed' fact that the appellant was an 'employee' (the judge having remarked that he was 'not persuaded' that the appellant was 'recruited as asserted by [his] counsel'); and that there was no evidence that justified a finding that the appellant received benefits other than the commission. These errors, so it was argued, vitiated the exercise of the sentencing discretion in a number of ways, including that the judge took into account irrelevant considerations, or failed to take into account relevant considerations. None of these complaints is made out.

19 Sentencing remarks do not fall to be interpreted as if contained in a statute, a will or a deed.[4] Part of the difficulty attending the appellant's counsel's submissions is that she attempted to seize on discrete words and phrases in the judge's reasons - rather than construing the import of the reasons when read as a whole - and sought to mount semantic arguments as to the meaning of those words and phrases taken somewhat in isolation.

20 Thus, counsel sought to attack the judge's finding that the appellant was motivated by 'greed', since it had been put on the plea that the appellant was seeking to expiate gambling debts. This submission is without substance. On any view, the appellant earned $30,000 commission from his criminal venture. Even on the appellant's version, he was not motivated by altruism or self-sacrifice. The question of the appellant's motivation could only have borne on his moral culpability, and have been a feature going in mitigation. Significantly, other than making assertions about his motivation through his counsel at the Bar table, he called no evidence to back up his assertions.

21 Much the same might be said of the judge's remarks that he was 'not persuaded on the balance of probabilities that you were recruited as asserted by your counsel'. The appellant, through his counsel, had put to the sentencing judge, as a factor going in mitigation, that he had been 'recruited' into the criminal enterprise by reason of his gambling debts, and that he was a mere 'employee'. The judge did not find that the appellant had not been recruited, but that he was not satisfied that he had been recruited in the manner asserted by counsel; and he noted that counsel 'specifically declined to call any evidence in support of his assertions'. And as far as I can tell, from a fair reading of the judge's complete reasons, there is no rejection by the judge of the notion that the appellant was an employee (albeit he found that the appellant's role was 'crucial', because the step he performed in depositing the money was a crucial step). In the circumstances, I can detect no error in what the judge said with respect to this general subject-matter.

22 Put at the forefront of the submissions on the appeal on the first ground was the argument that there was no evidence from which the judge could infer that the appellant 'received other benefits in addition to the commission'. It is not conspicuously clear what the judge was referring to when he referred to 'other benefits'; although, in context, it seems to me that he may well have been referring to things such as airfares. In my opinion, the appellant has not demonstrated that the judge, when referring to 'other benefits', mistook the facts. But even if he did err, the error is not material.

23 None of the complaints of error made under the umbrella of ground 1 is made out. Ground 1 cannot be upheld.

Are the Commonwealth sentences manifestly excessive?

24 It will be noticed that the second ground of appeal is limited in its complaint of manifest excess to the sentences on counts 1 to 5, and to the total effective sentence. A 'breach of totality' is claimed.

25 As I understood one of the principal branches of the appellant's submissions, it was argued that the sentences of 20 months' imprisonment on counts 1 to 5, when the maximum penalty available on each count is three (3) years' imprisonment - that is, in excess of 50 per cent of the maximum penalty available - demonstrates that the sentencing judge's discretion must have miscarried. Another branch of the submissions made, as I understood it, was that there was unfairness to the appellant in the way the Indictment was structured - there could have been one count instead of five (the decision to lay five counts being described by counsel as 'arbitrary') - and that the structure of the Indictment was the font of, or contributed to, the manifestly excessive sentence. I cannot agree.

26 In some cases, the fact that a judge has imposed a sentence of more than 50 per cent of the maximum available penalty might invite scrutiny. That may particularly be so when Parliament has prescribed a comparatively high maximum penalty for a particular offence; or where the offending alleged is not a bad example of a particular species of offence. And in some cases that involve a course of criminal conduct - a 'criminal enterprise' as it was described in argument - it may be proper to lay a single count to embrace the whole of the offending, despite the fact that there may be discrete episodes going to make up the course conduct.[5] However, in my opinion there can be no legitimate criticism of the way in which the Indictment was structured in this case. Indeed, I think that the way in which counts 1 to 5 were laid worked to the positive advantage of the appellant, rather than to his detriment.

27 Going beyond a cursory examination, one is able to detect symmetry in the formulation of counts 1 to 5. First, in each count the amount of money dealt with hovers around a million dollars ($801,617.90, on count 2, being the least amount), the dollar amounts in counts 1, 3, 4 and 5 being very close.[6] Secondly, each count reflects a discrete number of transactions of approximately the same order.[7] Thirdly, the periods of days or weeks embraced by each count are roughly similar.[8] Fourthly, the counts relate to transactions that are geographically consonant.[9]

28 Each of counts 1 to 5 is a 'rolled up' count. Each involves a number of transactions. Each, absent the acquiescence of the appellant, would have been open to the criticism that it suffered from the vice of duplicity. Charles JA described the difference between a representative count and a rolled up count in R v Jones:[10]

... [Counsel for the applicant] submitted that where an offender is to be sentenced in respect of an offence which is representative of a number of offences, the sentencing judge is not entitled to impose a sentence in respect of other crimes, but may take such other crimes into account in determining whether or not the offence for which the offender is being sentenced is an isolated offence. He submitted that in sentencing on a rolled-up count the discretion is to be exercised in the same way as it is when a count is treated as a representative count. ...

I do not accept the submission that in sentencing on a rolled-up count the discretion is to be exercised in the same way as when a judge is sentencing on a representative count. It is of course correct that when sentencing on a representative offence the judge is not entitled to impose sentence in respect of other crimes. But in my view, a rolled-up count is entirely different from a representative count. In [counsel for the respondent's] written submissions for the Crown, it was submitted, I think correctly, that rolled-up counts are a collection of counts bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. [Counsel for the respondent] argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner. In the present case, for example, the filed-over presentment contained count 28, rolling up 24 discrete offences of theft which had appeared in separate counts on the original presentment. The use of rolled-up counts operates considerably to the advantage of an accused who intends to plead guilty. For in this case on the original presentment there were 24 counts of theft, for each of which the maximum sentence was ten years, providing a theoretical maximum sentence of 240 years. The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge, but may be thought by an appellant to give him a considerable benefit in return.

29 I am wholly unpersuaded that any one of the individual sentences on each of counts 1 to 5 is manifestly excessive. As I have endeavoured to explain, although the sentence imposed on each count represents a little over half of the maximum available penalty, the criminality embraced by each individual count was substantial. Very large sums of money were involved in the offending represented by each count, and each embraced a discrete number of transactions. Rather than work to the detriment of the appellant, the distillation of the offences into five counts, instead a much greater number, redounded very much to his benefit.

30 By the orders pronounced as to the commencement of sentences, a measure of cumulation was effected as between the sentences for the federal offences. In my opinion, such a measure of cumulation was proper to reflect the discrete nature of the counts, temporally and geographically. The effective cumulation as between the seven individual sentences for the Commonwealth offences - brought about by the orders made for the commencement of the individual sentences - did not, in my opinion, result in a manifestly excessive sentence.

31 From what I have already said, it might be discerned that I am also unconvinced that the principle of totality has been infringed. The totality principle applies when a court is sentencing an offender for a number of offences. After sentences have been arrived at for individual offences, the totality principle requires the sentencing judge to have regard to the aggregate sentence that should be imposed to reflect the totality of the criminal conduct.[11] A sentencing judge, having imposed proper individual sentences on each count, and having arrived at orders to effect concurrency or cumulation as between the individual sentences, must then stand back and examine the sentence to ensure that it reflects the overall criminality for which the offender is being sentenced. This may be achieved by ordering total or partial concurrency, or by lowering the individual sentences.[12] When that exercise is carried out in this case, it cannot be concluded that the total effective sentence and minimum term are inapt. Over an extended period of five months, the appellant made a significant number of individual cash deposits across Australia to international currency exchange companies, so as to transfer $6,297,187 overseas. He did so for monetary reward and his role was crucial. In my opinion, the total

effective sentence and minimum term are a proper reflection of the appellant's criminality.

32 One aspect of the sentencing orders has, however, given me pause. In the circumstances the judge would have, I think, been justified in imposing a shorter minimum term, so as to permit a greater disparity between the head sentence and the non-parole period. That said, however, while taking account of the mitigating features in this case urged by the appellant's counsel - including the early pleas of guilty, the appellant's lack of prior convictions, his prospects of rehabilitation and his assistance to the prison authorities - I cannot conclude that the individual sentences passed, or the total effective sentence, or the minimum term, are outside the bounds of the sound exercise of the sentencing discretion. Indeed, they are well within the range of sentences properly open in the proper exercise of discretion.

33 For the sake of completeness I should record the fact that there was no attack made on any of the orders made with respect to the sentences for breaches of Victorian law. That was realistic, since, in my opinion, they were unassailable.

35 Neither of the grounds of appeal having been upheld, the appeal must be dismissed.

36 I have also had the advantage of reading the reasons of Priest JA in draft form. I agree with his Honour's reasons.

[1] Leave to appeal was granted by a judge of this Court on 13 November 2012.

[2] A third, which attacked the orders for commencement of the individual sentences, was abandoned.

[4] R v Groom [1999] 2 VR 159, 160 [3] (Tadgell JA).

[5] A familiar example is trafficking in illicit drugs, where a single count of trafficking might be laid to embrace a series of discrete individual instances of trafficking: R v Giretti (1986) 24 A Crim R 112. Another example might be theft of a large number of small items or amounts, which are contained within a single count of theft: R v Coombs (Unreported, 3 Sept 1979, Vic, CCA).

[7] Five, four, five, five and eight transactions respectively for counts 1, 2, 3, 4 and 5.

[8] Count 1 - between 16 June 2011 and 28 June 2011;

Count 3 - between 2 September 2011 and 20 September 2011;

Count 4 - between 3 October 2011 and 20 October 2011; and

Count 5 - between 25 October 2011 and 9 November 2011.

[9] Count 1 - offence committed 'at Melbourne in Victoria and Sydney in New South Wales';

Count 2 - offence committed 'at Melbourne in Victoria and Sydney in New South Wales';

Count 4 - offence committed 'at Melbourne in Victoria and Sydney in New South Wales'; and

Count 5 - offence committed 'at Melbourne in Victoria and Perth in Western Australia'.

[10] [2004] VSCA 68, [12]-[13]. (Citations omitted; emphasis added). See also R v Beary [2004] VSCA 229; (2004) 11 VR 151, [11]-[14] (Callaway JA).

[11] Mill v The Queen (1988) 166 CLR 59, 62-3.

[12] I acknowledge that there are differing views as to whether there is any single correct approach. In my view, however, the correct approach is for the sentencing judge to pass appropriate individual sentences, and order total or partial concurrency. A court should, in my opinion, avoid imposing artificially inadequate sentences in order to accommodate totality: see R v Lomax [1998] 1 VR 551; DPP v Grabovac [1998] 1 VR 664.

Passports (Law Enforcement and Security) Act 2005

Wong v The Queen [2013] VSCA 52

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Wong v The Queen [2013] VSCA 52 (13 March 2013)

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