CDirector of Public Prosecutions v Dao

[2023] VCC 762

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01769

THE DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
(CTH)
v
HUONG QUYNH DAO	Defence

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2023
DATE OF SENTENCE:	11 May 2023
CASE MAY BE CITED AS:	CDPP v Dao
MEDIUM NEUTRAL CITATION:	[2023] VCC 762

SENTENCE
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Subject:Dealing with money that was proceeds of crime contrary to section 400.4(2A) of the Criminal Code Act 1995 (Cth)

Catchwords:              Guilty plea –– above mid-range offending (charge 1) – small but integral cog– no criminal record – family hardship – risk of deportation –

Legislation Cited:      Criminal Code Act 1995 (Cth); Migration Act 1958 (Cth); Sentencing Act1991 (Vic); Crimes Act1914 (Cth)

Cases Cited:Samarakoon [2018] VSCA 119; Felix Harper (a pseudonym) v Director of Public Prosecutions (Cth) [2021] VSCA 173; Shi v The Queen (2014) 246 A Crim R 273; Harmeet Singh v R [2016] VSCA 163; R v Jiao (2015) 251 A Crim R 236; Ansari [2007] NSWCCA 204; Worboyes [2021] VSCA 169; R v Biba [2021] VSC 327; Hiu Mei Lam v R [2021] VSCA 241; R v Merrett, Piggott and Ferrari (2007) 14 VR 392; R v Pham (2015) 256 CLR 550; Hili v The Queen (2010) 242 CLR 520

Sentence: 3 years imprisonment to be released on a reconnaissance release order after serving 12 months. 10 days presentence detention

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Ms S. Holmes	Office of Public Prosecutions
For the Defence	Mr W. Barker	TQH Lawyers & Consultants

HIS HONOUR:

1Huong Quynh Dao ('Dao') you have pleaded guilty to:

(a)   One charge of conducting banking transactions to avoid reporting requirements relating to threshold transactions[1]; and

(b)   One charge of dealing with money, exceeding $100,000, being reckless as to the fact the money was proceeds of general crime[2].

[1] contrary to subsection 142 (1) of the anti-money laundering and counterterrorism financing act 2006 (Cth)

[2] contrary to subsection 400.4 (2A) of criminal code (Cth)

Circumstances of offending[3]

[3] Exhibit A: Summary of Prosecution Opening for Plea dated 19 July 2022.

2You worked for criminals who were laundering money in Australia.

3They used a money laundering method known as 'Cuckoo smurfing' which involves corrupt money remitters, operating in Australia and overseas, to target the legitimate bank accounts of people receiving money transfers in Australia, in order to make money generated by criminal activities appear to have come from a lawful source.

Charge 1

4Between 1 December 2019 and 4 May 2021 you made 784 cash deposits into a number of different banking accounts, totalling $2,127,930, at ATMs and bank branches in the Richmond/Kew area.

5Banks must report threshold transactions, which are cash transactions[4] of $10,000 or more, to the Australian Transaction Reports and Analysis Centre, AUSTRAC, which collects and analyses financial reports detect serious and organised crime.

[4] threshold transaction reports (TTRs)

6You made the deposits in amounts less than $10,000 to avoid the bank reporting obligation.

7Authorities became aware of your activities and, in the course of their investigations, police were watching you:

(a)   on 4 December 2020, when you made deposits, three times, at a bank branch at Collins Street, Melbourne and two ATMs at Richmond;

(b)   on 14 December 2020, when you made deposits at five ATMs and two bank branches in the Richmond/Kew area; and

(c)   on 18 December 202 when you made deposits at three ATMs and two bank branches in the Kew area.

8By your guilty plea, you admit you made the cash deposits for the purpose of avoiding reporting requirements relating to threshold banking transactions (Charge 1).

Charge 2

9Raymond Mather was known to police as a member of an international criminal syndicate led by his brother, Jamie, in Vietnam.

10Police were monitoring their communications on the encrypted AN0M platform.

11On 3 and 4 May 2021, Jamie Mather gave Raymond instructions to hand over $700,000 in cash to an Asian woman, who would identify herself with a five dollar note, at an address at Richmond.

12On 4 May 2021, police followed Raymond to the Richmond address where you met him.  Surveillance police saw you give him the five dollar note and receive a suitcase from him.

13Next day, police executed a search warrant at your home, where they found:

(a)   the suitcase which contained $696,880 in cash;

(b)   a money counter;

(c)   several mobile phones; and

(d)   an iPad.

14Your receipt of the cash constitutes your dealing with proceeds of general crime (Charge 2).

15By your guilty plea, you admit you were reckless as to the fact that the money was proceeds of general crime.

Arrest and interview

16Police arrested you.

17When they questioned you, you made full admissions to your offending.

18You said:

·someone would contact you to say they had a 'present', code for money, for you (55);

·different people brought cash to you (57 and 69);

·you counted it (72);

·someone in Vietnam sent you details of the account name and number and the deposit amount, usually by WhatsApp or Viber (82 and 89, 130);

·you did not know the account owners (61);

·you did not know the persons who supplied you money (101);

·you did not know where the money was from (50).

19You said, when you started making the cash deposits you did not know that they could be made at an ATM (137); the people in Vietnam told you that (138).

20You said the communications were 'one way' (96); others contacted you, you never contacted them (91).

21You admitted you were paid for your work (109).  You said you received some payment yourself by keeping 'a little bit' of the cash you were given (111) and received some as a 'credit' in Vietnam which you gave to your parents (123 and 124) and your sister (144) who live there.

22Police asked you what work you did.  You said you had part-time work at a factory and at a take away café (106 and 107).

23When police asked you how you became involved, you said you have a lot of friends in Vietnam (151) where cash is 'normal' (153).  You said, unlike in Australia, in Vietnam people use cash all the time (162).  You said they asked you if you would deposit cash for them here (153) and you agreed (154).

24You said, 'I know it’s break the rules but I don’t think it’s serious because in our country it’s normal'.

25When police asked you your understanding of money laundering you were not able to say (91).

26When they asked you whether you thought the money was legitimate you said, at times, you thought the money was 'not legit' (99).

27You admitted you received about $700,000 in cash the day before your arrest.

28You said:

·a man gave you a suitcase with the cash (213);

·you met him after someone else had contacted you by phone to tell you a present had arrived (217);

·you were told it was $700,000 (236);

·you had never met the man before (213);

·you counted the cash which was in suitcase; (228) and

·you were waiting for instructions as to where the money was to be deposited (251).

29You said it was not 700,000 it was '69 something' (233).

30When police suggested you should have been worried about having that much cash at home, you said you did not worry about the money.  You said, 'I worry … about my baby' (256 and 262).

31You gave police the password to access the phones and an iPad which were seized from your home (206) and you gave your fingerprints (280) when police asked for them.

Procedural chronology

32You were charged with State money laundering offences and bailed to appear at a filing hearing.

33On 1 July 2021 you were charged with Federal money laundering offences.

34Eventually, the court listed a committal on 30 August 2022.  You made a plea offer that day.

35On 29 September 2022, you pleaded guilty to the charges now on the indictment.

Criminal record

36You have no criminal record.

Personal circumstances

37You were born in October 1986 in Vietnam.  You were 33 when you started to offend.  You are now 36.

38Your counsel, Mr Barker, told me your parents and your sister remain in Vietnam.

39He described their circumstances as modest.

40He told me you completed Year 12 and went on to study a diploma of business administration.

41In 2007, you came to Australia on a student visa.  You studied English for six months and then started a Bachelor in Business.  After a year, you did a year of a Bachelor in Accounting.  Because your English was limited, you struggled in both courses.

42You then completed a Certificate III in Hospitality.

43In 2014 you married Tuan Tran.  With him, you have a daughter who is now aged eight and is in Grade 2 at school.  You have share the parenting with your husband.

44Mr Barker told me you have a good work history.  Since you arrived in Australia have worked at a bakery, a fruit stall, cafés and a warehouse.

45Until you were remanded in custody, after your arraignment on 1 May 2023, you were working three part-time jobs at a fast food store, a convenience store and Coles.

46

One of your employers, who is also a friend, wrote a reference for you.[5]  He met you when you worked at Roll'd, a Vietnamese street food franchise, at Melbourne Central, four years ago.  You were looking for more shifts, and he hired you to work at his café.  He described your as 'selfless and reliable', 'kind and

hard-working'.  He also described you as a great mother.  He said sometimes you brought your daughter to work and he could see, by your interactions with her, how much you loved her.

[5] Exhibit 2, letter, dated 26 April 2023, of Tony Heng

47You have spoken to him openly about your offending.  He wrote you are remorseful, and that you are very worried about the consequences of your imprisonment for your family.

Defence submissions

48Mr Barker acknowledged the large sums of money you deposited, $2.127 million (Charge 1) and dealt with, nearly $700,000 (Charge 2), are an important indicator of the seriousness of your offending.

49He submitted, considering it was not your money, you knew very little about it, you followed instructions as to the deposit amounts and the accounts into which the monies were paid and, because you were handling the money, you were the one most exposed to detection, your role was the lowest in the money-laundering operation.

50He told me you were paid modest amounts which you spent on living expenses.

51He also told me you met your husband in Australia and obtained permanent residency in 2017.  Your daughter has grown up in Australia and you regard Australia as your home.

52You are worried, because you are not an Australian citizen, that you will be deported following your sentence.

53In comprehensive written[6] and oral submissions, Mr Barker relied on the following factors in mitigation of penalty:

(a)   your guilty plea for its high utilitarian value with the additional Worboyes discount;

(b)   your prior good character;

(c)   your remorse shown by your:

(i)admissions to police after your arrest;

(ii)your early guilty plea; and

(iii)your expressions of remorse to your friend;

[6] Exhibit 1: Defence Submissions on Sentencing dated 30 April 2023.

(d)   the risk of your deportation for the additional anxiety it will cause you and the potential for loss of the opportunity to remain in Australia; and

(e)   your anxiety over the separation from your daughter and husband which will make prison harder for you.

54He submitted you have good prospects for rehabilitation considering:

(a)   you are remorseful for this offending;

(b)   it is the only time you have offended;

(c)   you have raised a young daughter and are in a stable relationship with your husband who has supported you throughout these proceedings; and

(d)   you have a good work history.

55He submitted, if a period of imprisonment is to be imposed, the court should make a reconnaissance release order.

Prosecution submissions

56In thorough written[7] and oral submissions, the prosecutor, Ms Holmes, submitted your offending was objectively very serious considering:

(a)   the sum of cash you received on 4 May 2021 is nearly seven times the monetary threshold for the offence;

(b)   your use of a five dollar note, as an identifier, to keep both Raymond Mather and you anonymous in the transaction; and

(c)   the substantial number of cash deposits you made, 784, over 17 months, involving more than $2 million in cash.

[7] Exhibit C: Sentencing Submissions dated 5 August 2022.

57She submitted you were an important cog in the money-laundering machine.

58She submitted general deterrence is a significant sentencing consideration.

59She submitted the need for specific deterrence is less significant considering you are a first offender.

60She accepted your guilty plea was made early and attracts a discount for its utilitarian value made greater by Worboyes considerations.

61She also acknowledged prison will be harder for you because of your worry for your daughter and husband and your fear of the prospect of your deportation.

62She provided me with a helpful table of intermediate appellate decisions which indicate a range of sentences which have been imposed for offences contrary to s142 of the Anti-money Laundering and Counterterrorism Financing Act and s400.4 (2) of the Criminal Code.

63

She submitted a term of immediate imprisonment requiring the imposition of a

non-parole period is the only appropriate sentence.

Consideration

64Charge 1 is an offence contrary to s142 of the Anti-money Laundering and Counterterrorism Financing Act 2006.

65The vice is the structuring of cash transactions to avoid the threshold transactions reporting (TTR) obligations under the Financial Transaction Reports Act 1988 (Cth).

66Knowledge or belief the money was proceeds of crime is not an element of the offence.

67The maximum penalty is five years' imprisonment.  It is a guidepost to the seriousness of the offence.

68Charge 2[8] is an offence contrary to s400.4(2A) of the Criminal Code.  It is one of the money laundering offences under the Code.

[8] It is a new money laundering offence which relates to 'proceeds of general crime'. Unlike the 'proceeds of crime offences' there is no requirement to link money or other property to a kind of indictable offence.

69Money laundering offences, under the Code, are structured according to both the amount of money which is dealt with and the offender's state of mind[9].  Your crime, one of recklessness, is Tier 2 or mid-range, less serious than belief, more serious than negligence.[10]

[9] Kim, [56]

[10] Criminal Code Act 1995 (Cth), Division 400.

70The maximum penalty is 10 years' imprisonment.  Again, it is a guidepost to the seriousness of the offence.

71The applicable sentencing principles for money laundering crimes are set out in Kim & Fang v R[11] and Palmisano[12].

[11] [2016] VSCA 238, [61]

[12] [2021] VSCA 124, [24]

72To assess your culpability, it is important to examine what you did in the commission of your crimes.[13]  The value of the illicit funds is a predominant consideration.[14]

[13] Ansari [2007] NSWCCA 204, [123]-[124].

[14] Arjuna Samarakoon [2008] VSCA 119, [68]; R v Jiao (2015) 251 A Crim R 236, [66].

73The financial benefit you received is also a relevant factor.[15]

[15] Arjuna Samarakoon [2008] VSCA 119, [69] and [70].

74You worked as a 'cash mule' for criminals who used bank accounts of innocent people to move proceeds of general crime overseas without alerting the authorities.

75You deposited cash totalling $2.127 million, in 794 transactions, over a period of 17 months.  You made individual deposits in amounts less than $10,000 to avoid the threshold transaction reporting obligations.

76Considering the very large amount of money and the very considerable number of transactions, conducted over a lengthy period, I assess the objective seriousness of this crime to be above mid-range.

77The offending charged in Count 2 is additional criminality.

78On 4 May 2021 you collected nearly $700,000 and were waiting for instructions to conduct more structured transactions to launder illicit funds.

79While the sum involved was significant, nearly seven times the prescribed minimum for the offence, and there was a degree of sophistication as far as you used a token as an identifier, to conceal your own identity, considering it was a single transaction, and you knew nothing about the source of the money, I assess the objective seriousness of this crime to be below mid-range.

80You did your work under the direction of others, who arranged for cash to be delivered to you and gave you instructions as to the accounts to be used and the amounts to be deposited.  You knew little, if anything of them.  And you knew nothing about how the money was proceeds of crime.

81You were a 'cash mule'.  Your role was bottom rung in the enterprise.  It was nevertheless essential to the operation of the illegal scheme.

82As the Court of Appeal said in Kim, 'The person who launders money is an important cog in the wheel of organised crime and such conduct warrants severe punishment in which general deterrence is to be given significant weight.'[16]

[16] Kim, [61.6]

83I have read the transcript of police questioning of you.  I accept your answers were honest, and, to a degree, unworldly[17].

[17] I would infer a solicitor told you, before police questioning, you should exercise your right to silence. Initially, you did, but after a few questions, without pressure or coercion you gave voluntary confessional answers. You told police she were more worried about your daughter than the cash in the house

84Considering your responses to police, that you met Mather for the cash drop-off outside your apartment building, and your simple, law-abiding background I find it likely your thinking, when you committed these crimes, was relatively unsophisticated.

85I also accept, considering you were working part-time jobs, and your husband was also working,[18] and there is no evidence of any unjust enrichment, the payments you received were likely modest.

[18] record of interview, Q174

86Overall, I assess your moral culpability to be towards the lower-, rather than higher- end, notwithstanding the objective seriousness of your offending.

87By s16A of the Crimes Act1914 (Cth), I am required to impose a sentence that is of a severity that is appropriate in all the circumstances of your offending.

88A sentence of imprisonment is the only appropriate sentence in your case.

89I am sorry, I have just been notified that Ms Nguyen, the interpreter, has dropped off.  We will pause while we try to get her back.  Mr Barker, it appeared that Ms Dao had - I am sorry, Ms Nguyen is back.  All right.  Thank you.

90INTERPRETER:  Your Honour, there has been a - the power cut at my place and now is back on, that is why I was off the link for a good 10 minutes I guess.

91HIS HONOUR:  Were you?  All right.  About five minutes, my tipstaff, Mr Boswell, said.

92INTERPRETER:  And I tried to ask Ms Dao to signal to you but no one could see her.

93HIS HONOUR:  No.  All right.  Well, I will publish my - - -

94INTERPRETER:  Can I tell you where I stopped?

95HIS HONOUR:  I am sorry?

96INTERPRETER:  Can I tell you where I stopped before I - - -

97HIS HONOUR:  Yes, please.  Yes.

98INTERPRETER:  It is 75 - paragraph 75, Your Honour.

99HIS HONOUR:  All right.  All right.  I will backtrack.  I will start at 72.

100To assess your culpability, it is important to examine what you did in the commission of your crimes.[19]  The value of the illicit funds is a predominant consideration.[20]

[19] Ansari [2007] NSWCCA 204, [123]-[124].

[20] Arjuna Samarakoon [2008] VSCA 119, [68]; R v Jiao (2015) 251 A Crim R 236, [66].

101The financial benefit you received is also a relevant factor.[21]

[21] Arjuna Samarakoon [2008] VSCA 119, [69] and [70].

102You worked as a 'cash mule' for criminals who used bank accounts of innocent people to move proceeds of general crime overseas without alerting the authorities.

103You deposited cash, more than $2 million, in 794 transactions, over a period of 17 months.  You made individual deposits in amounts less than $10,000 to avoid the threshold transaction reporting obligations.

104Considering the very large amount of money and the very considerable number of transactions, conducted over a lengthy period, I assess the objective seriousness of this crime to be above mid-range.

105The offending charged in Count 2 is additional criminality.

106On 4 May 2021 you collected nearly $700,000 and were waiting for instructions to conduct more structured transactions to launder illicit funds.

107While the sum involved was significant, nearly seven times the prescribed minimum for the offence, and there was a degree of sophistication insofar as you used a token as an identifier, to conceal your own identity, considering it was a single transaction, and you knew nothing about the source of the money, I assess the objective seriousness of this crime to be below mid-range.

108You did your work under the direction of others, who arranged for the cash to be delivered to you and gave you instructions as to the accounts to be used and the amounts to be deposited.  You knew little, if anything of them.  And you knew nothing about how the money was proceeds of general crime.

109Your role was bottom rung in the enterprise.  It was nevertheless essential to the operation of the illegal scheme.

110As the Court of Appeal said in Kim, 'The person who launders money is an important cog in the wheel of organised crime and such conduct warrants severe punishment in which general deterrence is to be given significant weight.'[22]

[22] Kim, [61.6]

111I have read the transcript of police questioning of you.  I accept your answers were honest, and, to a degree, unworldly[23].

[23] I would infer a solicitor told you, before police questioning, you should exercise your right to silence. Initially, you did, but after a few questions, without pressure or coercion you gave voluntary confessional answers. You told police she were more worried about your daughter than the cash in the house

112Considering your responses to police, that you met Mather for the cash drop-off outside your apartment building, and your simple, law-abiding background I find it likely your thinking, when you committed these crimes, was relatively unsophisticated.

113I also accept, considering you were working part-time jobs, and your husband was also working,[24] and there is no evidence of any unjust enrichment, the payments you received were likely modest.

[24] record of interview, Q174

114Overall, I assess your moral culpability to be towards the lower-, rather than higher- end, notwithstanding the objective seriousness of your offending.

115By s16A of the Crimes Act1914 (Cth), I am required to impose a sentence that is of a severity that is appropriate in all the circumstances of your offending.

116A sentence of imprisonment is the only appropriate sentence in your case.

117

I am also required to have regard to the non-exhaustive list of matters set out in

sub-s16A(2) of the Crimes Act1914 (Cth) as far as they are relevant and known to the court.

118There are significant subjective factors which mitigate the sentence I should impose.

119Firstly, your guilty plea has high utilitarian value, because a trial has been avoided.  Your plea also attracts the Worboyes consideration.[25]

[25] Worboyes [2021] VSCA 169, [35] and [39].

120Secondly, I accept:

(a)   your cooperation with police;

(b)   your guilty plea, and its early timing; and

(c)   your expression of regret to your friend [26]

demonstrate you are genuinely remorseful.

[26] Tony Heng

121Thirdly, apart from this offending, you are otherwise of good prior character.

122Fourthly, I accept the prospect of your deportation will make prison harder for you and may result in you losing the opportunity to remain in Australia.[27]

[27] Guden v The Queen [2010] VSCA 196, [25] – [27]

123Fifthly, prison is also harder for you, and all prisoners, during the public health pandemic, due to quarantine requirements and restrictions on prison visits and programs with the risks of COVID-19 infection in a confined environment.[28]

[28] R v Biba [2021] VSC 327, [38].

124Sixthly,  your anxiety, because of  your separation from your daughter and husband will make prison additionally difficult for you.

125Seventh, it is two years since you committed these crimes.  While the delay between your offending and sentencing is not excessive, you have suffered a natural anxiety in relation to your future, which is additional punishment.  You have also have substantially advanced your rehabilitation, which will now be interrupted by your incarceration which, to a degree, is an unfairness.[29]

[29] R v Merrett, Piggott and Ferrari (2007) 14 VR 392, [35]-[37].

126You are a first offender.  You have raised your daughter with a supportive husband.  You have a good work history.  Your response to your bail has been positive.  You have not reoffended and you continued to work several jobs.

127In my view, you have excellent prospects of rehabilitation.

128And, limited weight is to be attached to specific deterrence in your case.

129Parity is another relevant sentencing consideration.

130Your husband was also arrested in May 2021 and subsequently charged with money laundering offences.

131On 28 April 2023, at  Melbourne Magistrates' Court, he pleaded guilty to an offence contrary to s142(1) of the Anti-Money Laundering and Counterterrorism Financing Act 2006.

132He did similar unlawful work to yours.  On seven separate occasions, in 19 transactions, he made cash deposits, totalling $49,600, in amounts less than $10,000, to avoid AUSTRAC detection.  He was released on a good behaviour bond without conviction[30] which it is the least severe sentencing option available under the Crimes Act.

[30] S 19B, crimes act (Cth)

133His offending involved a significantly lower sum of money, deposited in a significantly fewer number of transactions, over a significantly shorter period, than yours.  Taking into account these differences, I nevertheless have had regard to the sentence imposed on him in consideration of the appropriate sentence for you.

134I have also had regard to the importance of consistency in sentencing[31] and to comparable cases[32] from intermediate appellate courts across the Commonwealth to obtain guidance as to the identification and application of relevant sentencing principles and to discern sentencing patterns and a range of sentences against which to examine your sentence.[33]

[31] R v Pham (2015) 256 CLR 550, [23], [26]; Hili v The Queen (2010) 242 CLR 520, [24]-[25].

[32] Including Exhibit C: Table of Comparative Cases.

[33] R v Pham (2015) 256 CLR 550, [26].

135Because you are to be sentenced for more than one offence, I must also have regard to the totality principle which requires me to impose a sentence commensurate with your total criminality.

136Ms Dao, by the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.

137Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

(a)   on Charge 1, you are sentenced two years and six months' imprisonment which is to commence today;

(b)   on Charge 2, you are sentenced to one year and six months' imprisonment which is to commence on 11 November 2024.

138Your total effective sentence is three years' imprisonment.

139I direct you serve a period imprisonment of 12 months from today, to expire on 11 May 2024, when you are to be released by recognizance in the sum of $1,000 to be of good behaviour for a period of two years.

140This means:

(a)   you will be required to serve your three-year sentence by:

(i)a period of imprisonment of one year; and

(ii)a period of two years in the community;

(b)   the sole condition is that you be of good behaviour for two years;

(c)   if you fail, without reasonable excuse, to fulfil this condition you will be liable to:

(i)to be fined for the breach; and

(ii)to be imprisoned for the two years which you would otherwise have served in the community.

141I declare you have already served 10 days of your sentence by way of presentence detention.

142While there is some artificiality in the process, I declare, under s6AAA of the Sentencing Act1991 (Vic), but for your plea of guilty, I would have imposed a total effective sentence of four years' imprisonment and fixed a minimum non-parole period of two years and six months.

143Now, Ms Holmes and Ms Malaviya, can you confirm for me that by making a commencement date of 11 November 2024 on Charge 2, that I have achieved a total effective sentence of three years?

144MS MALAVIYA:  I believe that is correct, Your Honour.

145HIS HONOUR:  Ms Holmes is there or not there?

146MS MALAVIYA:  She is there, I believe.

147MS HOLMES:  I am, Your Honour, and I can confirm that, with respect, in my view, the way that Your Honour has calculated the sentence achieves that purpose and what you have declared in relation to the details of the recognisance release order is correct.

148HIS HONOUR:  Thank you very much.  All right.  Now, your instructor will prepare that recognisance release order, is that right?

149MS MALAVIYA:  Yes, Your Honour.  I have an electronic copy.

150HIS HONOUR:  Very well.  All right.  Well, we can take Ms Dao's consent verbally to the recognisance.  Now, Ms Dao, do you understand that I have imposed a total effective sentence of three years' imprisonment upon you?

151OFFENDER:  (Through interpreter) Yes.

152HIS HONOUR:  And you are to serve 12 months of that sentence in prison when you will be released and you will serve the remaining two years in the community and you will be released by a recognisance which you enter into in the sum of $1,000.  You do not have to pay the $1,000 but the recognisance in effect is your promise to be of good behaviour for the period of two years from the time you are released from prison.

153So the single condition of your promise is that you be of good behaviour for two years from your release from prison.  If you fail, without reasonable excuse, to fulfill this condition, you will be liable to be fined for the breach of your promise and also you will be liable to be in prison for the two years which you would otherwise have served in the community; that is the balance of your three-year sentence.

154All right.  Now, ordinarily, Ms Dao, you would be asked to sign and acknowledgement that the effects of the recognisance have been explained to you and that you agree to be bound by the terms of the order, that is you will be of good behaviour for two years when you are released from prison and you will be provided with a copy of the order through your counsel or his instructor.

155All right.  Ms Dao, do you acknowledge that I have explained to you the effects of the order?

156OFFENDER:  Yes.

157HIS HONOUR:  And do you agree to be bound by the terms of that order?

158OFFENDER:  Yes, Your Honour.

159HIS HONOUR:  All right.  So I will take your verbal consent as sufficient for me now to make the order.  Ms Malaviya, have you had the opportunity to prepare that order?

160MS MALAVIYA:  Yes, I am just finalising it now, Your Honour.

161HIS HONOUR:  All right.  Thank you.  Well, when you have finalised it, I will read it and sign it.  Thank you.

162Are there any other matters, Ms Holmes, arising out of the remarks and the structure of the sentence?  She may or may not be there.

163MS MALAVIYA:  There are no more matters, Your Honour.  It is just the RRO.

164HIS HONOUR:  Thank you very much, Ms Malaviya.

165All right.  Mr Barker, the order is just being prepared and I will sign it.  Would you like the opportunity to speak in private with Ms Dao with Ms Nguyen's assistance if that is possible.  Is that possible, Mr Boswell?  We have got 10 minutes.

166MR BARKER:  Is Your Honour offering to do that once Your Honour has signed the - - -

167HIS HONOUR:  Off the Bench, yes.

168MR BARKER:  Yes, I would love to use that time.  I am grateful, Your Honour.

169HIS HONOUR:  All right.  Ms Dao, I will sign the order when it is prepared and then I will give you the opportunity to speak in private with Mr Barker with Ms Nguyen's assistance.

170MS HOLMES:  Your Honour, Ms Holmes here; sorry for my lack of response before, I had too many screens open, I was checking that recognisance release order and I could not find my way back here.  If I could just indicate to my instructor that the recognisance release order that I have checked is correct and can be sent and there was nothing arising from me in relation to Your Honour's sentencing remarks.

171HIS HONOUR:  Thank you very much, Ms Holmes.  And, Ms Malaviya, are you able to forward that to Mr Bennett, my associate.

172MS MALAVIYA:  Yes, I am just forwarding that to your associate now, Your Honour.

173HIS HONOUR:  Thank you.  When he has received it, he will print it off and I will sign it.

174Well, I will stand down so Mr Barker may speak with Ms Dao.  When I have received the order, Ms Malaviya, I will sign it.

175MS MALAVIYA:  I have just clicked 'send', Your Honour.

176HIS HONOUR:  All right.  Very well.  Thank you.

177All right.  Well, I will stand down now and I will sign the order in due course.  Thank you for your assistance, Ms Malaviya, and yours, Ms Holmes, and, Mr Barker, and yours, Ms Nguyen.

178MR BARKER:  If Your Honour pleases.

179INTERPRETER:  Yes.  Thank you, Your Honour.

180HIS HONOUR:  All right.  Adjourn the court please, Mr Boswell.

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