Cai v The King

[2023] NSWCCA 270

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Cai v R [2023] NSWCCA 270

Hearing dates:

27 October 2023

Date of orders:

8 November 2023

Decision date:

08 November 2023

Before:

Kirk JA; Wilson J; Fagan J

Decision:

1 Grant leave to appeal against sentence.

2 Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – applicant pleaded guilty to one count of dealing in money intending it to become an instrument of crime – parity – where co-offender received higher discount – where difference between starting point of sentences appropriate to differences in objective gravity of offending – applicant’s sentence not manifestly excessive

Legislation Cited:

Anti-Money Laundering and Counter-Terrorism

Criminal Code (Cth)

Financing Act 2006 (Cth)

Cases Cited:

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Category:

Principal judgment

Parties:

Rex (Crown)
Zibin Cai (Applicant)

Representation:

Counsel:
S Duggan (Crown)
B Dean (Commissioner of Police)
G Wendler (Applicant)

Solicitors:
Solicitor for Commonwealth DPP (Crown)
Crown Solicitors Office (Commissioner of Police)
Jeffreys Lawyers (Applicant)

File Number(s):

2020/365255

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

22 July 2022

Before:

Judge O’Rouke SC

File Number(s):

2020/365255

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was sentenced for one count of dealing in money intending that it become an instrument of crime in relation to a Commonwealth indictable offence, contrary to s 400.3(1) of the Criminal Code (Cth). He had pleaded guilty in the Local Court and was allowed a discount on sentence of 25%, resulting in a term of 7 years and 6 months with a non-parole period of 4 years. The grounds of appeal were (1) that the applicant had justifiable sense of grievance having regard to the sentence imposed upon a co-offender and (2) that the sentence imposed was manifestly excessive.

The Court held (Kirk JA, Wilson and Fagan JJ) granting leave to appeal against sentence but dismissing the appeal:

With respect to ground (1), a significant additional discount was allowed to the co-offender whereas no such additional discount was allowed to the applicant. Comparison of the sentences imposed on the two offenders had to be made by consideration of the starting points for each. When that was done, the comparison between starting points was seen to be appropriate. No legitimate sense of grievance could arise from comparison with the final outcome for the co-offender, having regard to his receipt of a higher discount in circumstances that did not apply to the applicant: at [12].

With respect to ground (2), the sentence imposed on the applicant was not manifestly excessive: at [15].

JUDGMENT

1. THE COURT: Zibin Cai applies for leave to appeal against a sentence imposed on him by her Honour Judge O’Rourke SC on 16 June 2022. The applicant pleaded guilty in the Local Court to a charge that between 19 December 2019 and 4 March 2020 he dealt in money intending that it become an instrument of crime in relation to a Commonwealth indictable offence, contrary to s 400.3(1) of the Criminal Code (Cth). The maximum penalty is 25 years imprisonment. Her Honour fixed a head sentence of 7 years and 6 months with a non-parole period of 4 years. The commencement date was 15 April 2022 to allow for approximately two months during which the applicant had been in custody. The sentence took account of a discount of 25% for the early plea of guilty.

2. The grounds of appeal are:

1   That the applicant has a justifiable sense of grievance having regard to both the head sentence and non-parole period imposed on [a co-offender] and therefore the applicant’s sentence is manifestly excessive.

2   That the sentence imposed upon the applicant was manifestly excessive as to its head sentence and non-parole period.

3. According to the Agreed Facts in the sentence proceedings, the co-offender (hereafter as “the Coordinator”) was involved with the applicant in an informal value transfer system scheme. Between 19 December 2019 and 4 March 2020 the Coordinator issued directions to the applicant for the latter to collect cash from various parties and to deliver it to other parties and/or make deposits into bank accounts. The applicant and the Coordinator are of similar age and both were about 39 years old during the period of the applicant’s offending. The applicant resided in Tasmania and travelled to Melbourne and Sydney periodically for the purpose of carrying out the cash collections and deliveries. The applicant was arrested on 4 March 2020, at which time he was in possession of $400,000 in cash that was the subject of an intended but uncompleted delivery. After the applicant’s arrest, from 4 March 2020 until 10 August 2020 the Coordinator continued in the money laundering activity and directed a replacement for the applicant, namely, Wuchan Wang, to fulfil the role of collecting cash and delivering or banking it.

4. The activities of the three offenders were part of a co-ordinated network through which a service was provided to organised criminal groups wishing to transfer funds. A person referred to as a Controller acted in a role superior to that of the Coordinator, arranging with organised criminal groups to provide them with a service of receiving cash in Australia and making available equivalent value in other jurisdictions, or otherwise transferring funds, for an agreed fee. The Coordinator acted at the direction of the Controller to arrange for people such as the applicant and, subsequently, Wuchan Wang to undertake physical collection of the cash from the organised criminal groups. The Coordinator instructed the applicant and, later, Wuchan Wang regarding the time and place at which the cash could be collected and the means of identification by which the collections could be made securely. The Coordinator also directed the applicant and Wuchan Wang either to deposit the whole or part of the cash obtained into nominated bank accounts or to deliver it to other nominated persons who would transmit it. Funds would be transferred to overseas jurisdictions by those who had operating control of bank accounts into which the cash was deposited.

5. The amount of cash collected and delivered by the applicant pursuant to this system between 19 December 2019 and 4 March 2020 was $28,831,745, distributed over 33 separate days. The amount subsequently collected and delivered by Wuchan Wang under the Coordinator’s direction between 10 March 2020 and 10 August 2020 was $30,954,820 over another 24 days. The Coordinator’s involvement was with respect to the combined total of $59,786,565 spread across eight months. Cash was collected in both Melbourne and Sydney under the Coordinator’s direction, in amounts that were commonly in excess of $1 million on a single day.

6. The Commonwealth indictable offence in relation to which it was intended by the applicant (and the Coordinator) that the money handled should become an instrument of crime was the offence of providing a remittance service without registration, contrary to s 74 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).

7. The applicant and the Coordinator had been friends for a number of years. They arrived in Australia from China in 2015 and 2009, respectively. The Coordinator invited the applicant to take part in the activities of the network as a collector and deliverer of cash. The sentencing judge was satisfied from the terms of intercepted phone conversations that the applicant was aware he was engaging in an illegal money-laundering business. He referred to it as “washing money”. He used encrypted cipher phone applications to communicate with the Coordinator. His role included counting the cash that he received, for which purpose he had a note counting machine that was in his possession when he was arrested. He maintained spreadsheets on which he recorded the cash collected and delivered and the commission earned. The applicant’s commission was about 0.5% of the cash handled. That amounted to at least $104,395 in the first two months of 2020. The learned judge accepted the following:

[The] applicant was not a principal of the organised and rather sophisticated money-laundering syndicate but was an entrusted member and was an indispensable link in the syndicate’s activities.

8. The applicant’s personal circumstances were unremarkable. He had acquired permanent resident status in Australia in 2019. He held a bachelor’s degree in accounting but had been working as a delivery driver while on bail before sentence. The applicant was married with two children. He said that at the time of the offending he was unemployed, in debt and struggling financially. The learned judge accepted that although his offending continued until he was arrested his plea was some evidence of contrition and remorse and that his risk of reoffending was low. Her Honour took into account his prior good character.

Ground 1 – parity with the sentence of the Coordinator

9. Her Honour Judge O’Rourke SC conducted sentence proceedings in relation to the Coordinator on 2 June 2022. The next day, 3 June 2022, she heard submissions and received evidence relevant to the sentencing of the applicant. When her Honour passed sentence on the applicant on 16 June 2022 she expressly referred to considerations of parity with co-offenders and clearly had in mind the entire objective and subjective circumstances relevant to both the applicant and the Coordinator. Sentence was passed on the Coordinator five weeks later, on 22 July 2022.

10. The Coordinator had a more senior role than the applicant in the criminal money laundering network. Moreover, he recruited the applicant. The Coordinator and the applicant were each separately charged with a single count under the same section but the particulars of the Coordinator’s offending were more extensive than the particulars retaining to the applicant. The Coordinator’s activities extended across eight months, involving a total of 57 transactions for a total of $59,786,565. His criminal conduct spanned the periods of two co-offenders acting in the role of Collectors, namely, the applicant and Wuchan Wang. The Coordinator’s criminality included that he had recruited Wuchan Wang to carry on the role of collecting and delivering cash as soon as the applicant was arrested.

11. Apart from the circumstance of the Coordinator being entitled to a greater discount, his subjective circumstances were just as unremarkable as those of the applicant. The learned judge was satisfied that the Coordinator showed genuine remorse, that he had good prospects of rehabilitation, that he was of prior good character, that he had a wife and children and that he had education and a work history. Her Honour made some allowance for evidence that the Coordinator had a severe gambling disorder and that his wife “has some mental health issues” and would be isolated during his incarceration.

12. For the purpose of making comparison between the sentences imposed on the offenders respectively, one must eliminate the discounts that were allowed. As mentioned, the applicant’s sentence was discounted by 25% for his plea. The Coordinator received a combined discount of 50%. Comparing the starting point sentences, that for the Coordinator was 14 years with a non-parole period of 8 years and for the applicant 10 years with a non-parole period of 7 years and 6 months. The ratios of the non-parole periods for the two men were 57% and 53% respectively. In our view the comparison between these starting point sentences is entirely appropriate to the relative objective gravity of the offending by each of the offenders respectively, taking into account also their individual subjective circumstances. The comparison of the discounted sentences is between 7 years with a non-parole period of 4 years for the Coordinator and 7 years and 6 months with a non-parole period of 4 years for the applicant. The two penalties come close to each other only because of the higher discount that was allowed to the Coordinator on account of circumstances that were not engaged with respect to the applicant.

13. The applicant could have no legitimate sense of grievance from comparison of the discounted sentence that he received relative to that received by the Coordinator. Leave to appeal will be granted but ground 1 is rejected.

Ground 2 – manifest excess

14. As was said by Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], manifest excess is a conclusion. Their Honours elaborated as follows:

[6] A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. ... A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

15. The applicant has not identified any particular circumstances of his offending, or subjective considerations affecting him, or any specific features of the learned judge’s Remarks on Sentence, that indicate demonstrable discord between his case on sentence and the outcome. The applicant has not purported to identify any pattern of sentencing of other offenders under the relevant section of the Criminal Code that would indicate that the penalty imposed upon him by her Honour is an outlier, or plainly unjust. This ground falls to be assessed as a matter of impression taking into account the totality of objective and subjective matters that were before the learned judge. We do not find the sentence to be manifestly unjust. Ground 2 must also be rejected.

Orders

16. The orders of the Court are:

1. Grant leave to appeal against sentence.

2. Dismiss the appeal.

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I certify the 16 preceding paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Fagan.

DATED: 8 November 2023

ASSOCIATE: Therese Armstrong

Decision last updated: 08 November 2023