CDirector of Public Prosecutions v Ha
[2023] VCC 892
•30 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02358
CR-21-02359
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| KEN HA |
| MAI TRINH LAI |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2023 | |
DATE OF SENTENCE: | 30 May 2023 | |
CASE MAY BE CITED AS: | CDPP v Ha and Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 892 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Guilty plea – Two co-offenders – one charged with dealing with money suspected to be proceeds of crime – one charged with aiding and abetting – excess of 1 million dollars in cash seized – summary offences involving possession of over 20,000 cigarettes
Legislation Cited: Criminal Code (Cth) s 400.9(1), s 11.2(1); Crimes Act (Cth) s 16A(2), s 17A(1), s 20(1)(b); Sentencing Act 1991 s 6AAA
Sentence: Accused Lai: 20 months to be released after 12 months upon entering recognisance in the amount of $2,000, for a period of 24 months. Accused Ha: 16 months to be released after 12 months upon entering recognisance in the amount of $2,000, for a period of 24 months
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms S. Holmes Dr D. Gang | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused Lai For the Accused Ha | Mr A. Jackson Mr B. Nibbs | Valos Black & Associates Valos Black & Associates |
HIS HONOUR:
1Mai Trinh Lai, you have pleaded guilty to dealing with money reasonably suspected to be the proceeds of crime, contrary to subsections 400.9(1) of the Criminal Code (Cth).
2Ken Ha, you have pleaded guilty to aiding and abetting Ms Lai in dealing with the same money reasonably suspected to be the proceeds of crime, again contrary to subsection 400.9(1), and 11.2(1) of the Criminal Code (Cth).
3The money the subject of these offences was found during the execution of a search warrant at your address at Cedar Drive, Maribyrnong, on 18 January 2021. The two of you lived together at that address. The warrant was executed by Federal Police. During the search, Federal Police officers found $1,083,277.65 in cash.
4When Federal Agents Wooding and Gilmore arrived at your address to execute the search warrant, they saw you, Ms Lai, placing boxes into a black sedan parked in front of the premises. You were carrying a small handbag. The officers got out of their vehicle and called out, asking to speak to you. You started walking back to the front door of the house. Agent Wooding observed you place your handbag out of sight in the front garden.
5The two agents then entered the house. Inside the house were five people, including you, Mr Ha, and other relatives, and a partner of one of those relatives.
6The search then took place over several hours, during which the money was located. The sites at which the money was found are set out in the table in the prosecution opening.
7During the search, $1,083,277.65 was seized in cash at the following locations:
Location Located by Description and Item Number Amount (AUD) Front yard – between hedge and fence Federal agent Mahoney Handbag discarded by LAI containing cash
(L-C-CED-002)
$10,067.65 Bedroom one – walk in robes, middle shelf on right-hand side Federal agent Gilmore Black Louis Vuitton branded bum bag containing cash
(L-C-CED-003)
$27,000 Bedroom one – walk in robes, middle shelf on right-hand side Federal agent Gilmore Louis Vuitton branded satchel bag containing cash
(L-C-CED-005)
$23,000 Bedroom one – walk in robes, middle shelf on right-hand side Federal agent Gilmore Louis Vuitton wallet containing cash and ID for HA
(L-C-CED-004)
$1400 Bedroom one – walk in robes Federal agent Leigh White Nike Vapormax shoebox containing cash
(L-C-CED-006)
$280,000 Bedroom one – walk in robes Federal agent Leigh Cash inside right hand side and internal pockets of black Kathmandu jacket
(L-C-CED-009)
$85,000 Bedroom one – tallboy next to bed, top pigeon hole on left hand side of tallboy Federal agent Chapman Orange LV box containing bundle of cash
(L-C-CED-011)
$100,000 Bedroom one – top drawer of desk Federal agent Gilmore Bundle of cash (L-C-CED-014) $520 Bedroom two – built in robes Federal agent Mercer Cash inside a black Louis Vuitton purse, which was inside a black Louis Vuitton handbag
(L-C-CED-012)
$22,565 Bedroom two – built in robes Federal agent Mercer Black Louis Vuitton purse containing bundles of cash
(L-C-CED-013)
$9920 Bedroom two – small safe on top of drawers. LAI provided federal agent Mahoney with access to this safe. Federal agent Cleeland Bundle of cash (L-C-CED-010) $8605 Lounge room – floor Federal agent Leigh Blue Aldi label shopping bag containing cash (L-C-CED-001) $500,100 Lounge room – on top of blue and white bag ABF Senior Investigator Michalke Bundle of $50 notes
(L-C-CED-007)
$5100 Jaguar car BIG377 parked in front of 29 Cedar Drive.
– in driver's side footwell. LAI provided written consent for the vehicle to be searched.
ABF Senior Investigator Paola Clear toiletries bag containing bundle of cash wrapped in brown paper
(L-C-CED-015)
$10,000 8Police also found a cash-counting machine in the lounge room, 18 mobile phones, and 22,969 cigarettes in various branded cigarette cartons. On your phone, Ms Lai, text messages were found which indicated sales of cigarettes on two occasions. The quantum of these sales is not part of the prosecution case.
9The possession of these cigarettes is the subject of related summary offences for you, Ms Lai, and for you, Mr Ha, namely Charge 4. Your liability, Mr Ha, for that offence, as with the proceeds of crime offence, is on the basis you aided and abetted the offence. The text messages are the basis of Summary Charge 5 relating to the sale of the cigarettes.
10Ms Lai, you were taken to the Footscray Police Station that evening, and a record of interview was conducted. You told police that the handbag which was found in the garden bed was yours. You said you put it down because someone called out to you and you were scared. You said you did not know how much money was in the handbag, but it was over $1000. You otherwise gave 'no comment' answers in relation to other amounts of money found in the house.
11Police asked you what you did for a living and you said you were your mother's carer and you had been doing that for two years.
12Mr Ha, you were also interviewed that evening. You admitted you lived in the house and slept in the same room as Ms Lai. You said you did not work because of back pain, and you have not worked since the early nineties. You made a no comment interview in relation to the money and cigarettes located.
13DNA analysis linked both of you to the bags containing the cash.
14ATO records show that you, Mr Ha, were in receipt of Social Security benefits from March 2011 until March 2021.
15ATO records show that you, Ms Lai, did not lodge income tax returns between 2013 and 2021, and that in that period you received carer payments from Social Security and parenting payments.
16The black 2014 Jaguar sedan was registered to you, Ms Lai.
17The prosecution case against you, Ms Lai, relied on all the circumstances, including the quantum and the locations of the money, the cash-counting machine and the possession of multiple mobile phones which found the inference it was reasonable to suspect the money in your possession was the proceeds of crime.
18You, Mr Ha, are charged on the basis that you assisted and encouraged Ms Lai to possess the cash in the premises by allowing for and providing safe storage of the money.
19You were both granted bail for these offences, however, I remanded you both in custody yesterday, so there is one day of pre-sentence detention to be declared.
20In sentencing the two of you for these offences, I must have regard to the factors listed in s 16A(2) of the Crimes Act (Cth) which is a non-exhaustive list of sentencing factors. Section 17A(1) provides that I must not impose a sentence of imprisonment unless no other sentence is appropriate.
21You, Ms Lai, entered your guilty plea on the date this matter was listed for trial in December last year. You, Mr Ha, conducted further negotiations and resolved your matter on 16 December last year, a week or so after the trials had been vacated. The matters were before me because I was in the general list at that time.
22The time at which the pleas were entered was late, and that does reduce the utilitarian value of the pleas, but it was not likely the trial would have been reached in December and had you maintained your pleas of not guilty it is probable a further trial date would have been allocated, and you would have taken up a trial slot in this court. That has been avoided by the decision you made last year to resolve these matters.
23You have spared the prosecution and the court the time and resources required for a trial. The utilitarian value of the pleas is heightened in the current environment where this court still faces a backlog of trials having regard to the disruption to the court's operations during the pandemic. I apply the principles from the case of Worboyes in relation to your plea of guilty. Given the lateness of the pleas no submission was made that your pleas indicate any significant remorse. I accept the prosecution submission that the pleas reflected the strength of the prosecution case.
Criminal history
Mai Lai
24Ms Lai, you have one relevant prior conviction. On 6 February 2012 you were sentenced to one year and seven months, 16 months of which was suspended, for three charges of recklessly dealing in the proceeds of crime. Mr Jackson told me that had something to do I think with stolen handbags or handbags that were the proceeds of crime, but I do not have a police summary available in relation to that offence. It must have been reasonably significant to attract the sentence it did.
Ken Ha
25
Mr Ha, you have a relevant criminal history. On 9 July 1999 you were sentenced to 16 years with a minimum non-parole period of 12 years after trial for being knowingly concerned in a drug importation. There was an appeal, and a retrial was granted. You were convicted again in November 2001 and received a sentence of 15 years and 3 months with a non-parole period of 11 years and
3 months. An appeal against that sentence was dismissed in 2005.
26In May 2014 you were convicted of trafficking drugs and knowingly dealing with proceeds of crime, and you received a sentence of five and a half years with a minimum of three years. Later in 2014 you were further convicted of dealing in suspected proceeds of crime and sentenced to six months concurrent with the sentence imposed in May 2014.
27This is clearly a relevant criminal record. You have a history of being involved in the distribution of drugs at a high level and you also have relevant prior convictions for dealing with the proceeds of crime.
28By way of explanation for the offending Mr Jackson argued on your behalf, Ms Lai, that you had significant issues with gambling and you borrowed money which you could not pay back. The people who had loaned you the money were demanding repayment. They offered an alternative to 'pay off' what was owed which was that items – boxes, bags (including Aldi bags) would be delivered to your home and you would maintain possession of them until others collected them. Mr Jackson, in his written submissions, also put forward the explanation that you were given the opportunity to sell cigarettes as well.
29The explanation about the money was put on instructions and was not the subject of evidence and therefore I am not able to make a finding as to whether it accurately reflects in whole or in part how the cash came to be at the house, but I have taken the view that in the context of a charge under s400.9(1) it does not matter.
30In this case there is no evidence about the origins of the money found in the various locations described at your house, but as pointed out in the prosecution submissions I must not sentence you for knowing the money was the proceeds of crime or being reckless or negligent as to origins of the money.
31
The provenance of the money is to be assessed objectively via a reasonable suspicion test. The amount that was located at your house was more than
10 times the $100,000 threshold for the offence, and that much money together with the other circumstantial facts set out in the prosecution opening (including your income), very clearly meets the reasonable suspicion test which along with your possession of the money is all that is required to prove the offence.
32In assessing the gravity of an offence under this section the amount of money found tends to be a key factor, and that is so in this case. This was a very large amount of cash found in multiple locations, including in a handbag, purses, a wallet, a toiletries bag, in your car and many other locations. Whilst the offence itself relates to the day the search warrant was executed, the context of the offence is that the possession must have occurred over some ongoing period. Indeed, it seems to me that is how the prosecution put the case and the explanation given on your behalf, Ms Lai, concedes as much. The length of time over which you had the money though is not clear and I draw no conclusions about that.
33However, having regard to the circumstances in which this money was found and the quantum located, I view this is a serious example of an offence under s 400.9(1) of the Criminal Code (Cth).
34An offence under this section is at the lower end of the s 400 money laundering offences and carries a relatively low maximum penalty of three years' imprisonment, but it remains a serious offence. For offending such as this involving such a large amount of cash reasonably suspected to have been derived from criminal activity, general deterrence is significant in deciding the appropriate sentence.
35In this case you both have relevant prior convictions as I have set out. Your prior convictions, Mr Ha, are considerably more serious than yours, Ms Lai, but you have both served periods of imprisonment for similar offending in the past. Given your criminal histories and the circumstances of the offence in each of your cases I view your moral culpability for the offending as significant. The prior convictions are also relevant to the need for specific deterrence - that is the need to deter the two of you from engaging in this type of criminality again. This is an important principle in this case. Your prior convictions are also relevant to the assessment for your prospects of rehabilitation.
36Although your prior convictions are more serious, Mr Ha, the prosecution case is that Ms Lai was the custodian of the money and that you assisted and encouraged the offending in that you knew of the presence of the money and allowed her to continue the offending. Given the way the case is put by the prosecution, and the submission made by the prosecution and your counsel, about how I should deal with this matter, I consider your culpability, Mr Ha, for the offending is lower than that of Ms Lai. I have not inferred that you knew the exact value of the money rather I infer you knew it was a large amount.
37In respect of the tobacco offences only financial penalties are available. The maximum fines are set out in the prosecution opening and were reiterated today by Dr Gang. The number of cigarettes found was quite large, however as regards the sales I have no idea what amounts were transacted, and therefore in fairness to you I take the view that this is a lower end example of that offence.
Personal Circumstances
Mai Lai
38You, Ms Lai, were born in February 1972 in Saigon as it then was.
39Your father worked in a factory. Your mother worked in a market selling clothes. You have one older brother – Kelvin Lai.
40The family fled Vietnam in 1980 when you were eight years old travelling by boat to Indonesia where you spent some two years in a refugee camp.
41You arrived in Australia in 1983, originally settling in Tasmania before moving to Victoria in 1985.
42Your father died in 2019.
43Your mother, now aged 85 years old, lives with your brother who has a management job. The defence submissions state, and I accept, that due to her mental state and health, she cannot be left alone. Your mother did, however, attend the plea hearing yesterday to support you.
44You were educated to Year 11 at Debney Park High School, Flemington.
45After leaving school you were employed as a waitress at various restaurants in the central business district between the ages of 18 to 23 years old.
46You have had three significant relationships.
47You have a son, Danny, now 31 years old from the first of those relationships. From your next relationship you have a daughter, Joey, aged 22. That relationship was characterised by domestic violence from your partner towards you and your children. Neither Danny nor Joey have contact with their respective fathers. For the last 14 years you have been in a relationship with Mr Ha. You and Mr Ha have a daughter, Sylvia, aged 13 years. Your relationship continues. Joey and Sylvia have both been living with you and Mr Ha.
48Presently you are a carer for your mother. As I said, she lives with your brother (Kelvin) who works full time. I am told that every day he drops your mother off to you. You look after her, you take her to medical appointments and make sure she is safe and well.
49You acknowledge some excessive drinking and indicate you have continued to drink to deal with the stress of these proceedings.
50I am told that you also have a gambling problem which started with the 'pokies' and moved to the casino. Mr Jackson indicated in his submissions that after losing you borrowed money from others to continue your gambling habit.
Ken Ha
51Mr Ha, your personal circumstances are set out in a psychological report of Dr Mathew Barth dated 18 May 2023, which was tendered as an exhibit on the plea, and are included in the defence written plea submissions.
52You are 59 years old. You were born in Vietnam. I was told yesterday by
Mr Nibbs you are of Chinese background and Cantonese is your main language. You are the fifth oldest of six children. Your life was severely disrupted in your mid-teens by the Vietnam War and your family was forced to flee from their home. You lived in South Vietnam.53You told Dr Barth that you were forced to join the army in 1976 in the aftermath of the end of the war. You told him this involved being placed in a 're-education camp' where you worked long hours digging ditches.
54Your family subsequently fled Vietnam and you lived in a refugee camp in Malaysia for approximately 12 months. The family migrated to Australia in 1979 and settled in the eastern suburbs of Melbourne. The family had difficulties adjusting to life in Australia due to poor English skills and limited education. However, you have maintained positive relationships with your extended family.
55Your mother died from cancer approximately 10 years ago. Your father is still alive. but he is now very old and suffers from dementia. You still have regular contact with your siblings who continue to support you.
56Your education was severely disrupted by the war and you only attended three years of secondary school before the family left Vietnam. Your employment history has been sporadic. You worked in Chinese restaurants and established your own restaurant for a while, but it was not successful. You also for a time assisted with your sister's business in Canada. She imports clothes. After that you returned to Melbourne. You have not worked in any capacity since 1985 following a car accident that led to a back injury.
57You married a woman named Amy in 1985 and had two children with her, Jacqueline, who is now 35 years old and Nicholas, who is 32 years old. This marriage ended when you were sent to prison in the late 1990s in relation to a drug importation offence.
58Your relationship with Ms Lai commenced in 2007. As I said when dealing with
Ms Lai's personal circumstances, you and Ms Lai have a daughter named Sylvia who is 13 years old.59You told Dr Barth that you briefly tried heroin in prison in 1998 and after that used heroin a few times. You used methylamphetamines for some time in 2009, and according to the psychological report you used it irregularly at social events. It does not seem to me your drug use has anything to do with this case.
60You told Dr Barth your motivation for the offending was to 'enhance their financial situation'.
61Dr Barth said that you are exhibiting depressive and anxiety related symptoms of moderate intensity. This has been largely in response to your legal situation. You are very concerned about your daughter, Sylvia's, welfare. Dr Barth said your symptoms are not sufficiently severe to warrant the diagnosis of a psychological disorder.
62In both of your cases I have taken into account the letters tendered from your children, namely from Mr Nicholas Ha and Jacqueline Ha in relation to you,
Mr Ha, and from Danny and Joey Lai in relation to you, Ms Lai. You both retain the love and support of your children who based on the references respect you as parents. Your children speak in the letters of the difficulties that you have had to overcome in your lives. It is clear from the references, and the number of people that attended court to support you, that your family lives are intact, and you have that community support when you are released from prison.63Both of you grew up in circumstances of deprivation in Vietnam and then in fleeing that country and coming to Australia as refugees. No doubt these experiences have contributed to the decisions you have made in your adult lives and your involvement in criminality to some extent. Your backgrounds are relevant contextually to my assessment of the offending and your moral culpability, and they are a moderating factor, albeit of relatively modest weight.
Impact on your daughter and Ms Lai's mother
64Your daughter, Sylvia, is just 13. For the period you are in custody others in your family will have look after her. Your incarceration will obviously be very disruptive to her life. She is a young teenager in her formative years and seeing both her parents sent to prison will be a disturbing and confusing experience for her. Additionally, Ms Lai, I accept that your mother suffers from ill health and requires care which you currently provide and that your absence will deprive her of that assistance and will throw the burden onto other members of the family. I have moderated the sentences to reflect the impact that your imprisonment will have on your daughter, Sylvia, and on Ms Lai's mother, and the burden it will cast on other family members. I also accept that for both of you the time you are in prison will weigh more heavily on you because of the impact it will have on your daughter and Ms Lai's mother.
Prospects of rehabilitation
65Ms Lai, you have a relevant prior conviction for which you received a prison sentence and you were the principal offender in this serious offending. On the other hand, you have family support and responsibilities and you only have one previous appearance. I asses your prospects of rehabilitation as reasonable.
66In your case Mr Ha, you have two previous substantial prison sentences for serious crimes and I take a guarded view of your prospects of rehabilitation.
Comparative cases
67I have read and had regard to the appellate sentencing decisions attached to the prosecution opening, which were briefly discussed on the plea hearing. The cases provide a guide to the appropriate range of sentences for s 400.9(1) offences of the Criminal Code (Cth), but of course there are relevant differences and my task is to impose a just and appropriate sentence having regard to the individual circumstances of your cases.
Submissions
68Both Mr Jackson for you, Ms Lai, and Mr Nibbs for you, Mr Ha, submitted that a community correction order or a sentence of imprisonment with immediate release on recognisance was an appropriate sentence for the offences, and adequately responded to principles of general and specific deterrence and adequate punishment. The prosecution submitted that immediate imprisonment is necessary to meet the requirements of general deterrence, specific deterrence and adequate punishment. As I indicated yesterday, I agree with the prosecution submission, having regard to all the factors I have attempted to outline in these remarks.
Sentence
69Ms Lai, on the charge of dealing with property reasonably suspected of being proceeds of crime, you are convicted and sentenced to 20 months' imprisonment. I order that you are to be released after 12 months, upon entering a recognisance release order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). The recognisance will be in the amount of $2,000 and will be for a period of 24 months.
70Mr Ha, on the charge of aiding and abetting dealing in property reasonably suspected of being proceeds of crime, you are convicted and sentenced to 16 months' imprisonment. I order that you are to be released after 10 months, upon entering a recognisance release order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). The recognisance will be in the amount of $2,000 and will be for a period of 24 months.
71In relation to Summary Charge 4, Ms Lai, you are convicted and fined $2,500. In relation to Summary Charge 5, you are convicted and fined $300.
72Mr Ha, for Summary Charge 4, you are convicted and fined $1,000.
73Section 6AAA, for you, Ms Lai, but for your plea of guilty I would have imposed a sentence of 27 months with a minimum of 19 months.
74For you, Mr Ha, I would have imposed a sentence of 20 months with a minimum of 15 months.
75I declare one day of pre-sentence detention is to be deducted from the sentence that I have imposed. Are there any other orders required?
76I should say to both of you, you are to be released, you, Ms Lai, after 12 months, you, Mr Ha, after 10 months.
77Pursuant to recognisance, if you reoffend or breach the recognisance the matter can be brought back before me and I have a range of options, one of which is to impose the balance of the period of imprisonment in this case, which in your case, Ms Lai, is eight months, that is the balance, and in your case, Mr Ha, it is six months.
78So we will prepare those recognisance release orders. Nothing else?
79DR GANG: Your Honour, my instructor has very helpfully prepared paper copies and they have been shared with my learned friends now and she has the digital copies on a USB stick to hand up.
80HIS HONOUR: Thank you. I will adjourn.
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