CDirector of Public Prosecutions v Kerekes
[2024] VCC 910
•18 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01772
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRIK KEREKES |
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JUDGE: | HER HONOUR JUDGE ELLIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 June 2024 |
DATE OF SENTENCE: | 18 June 2024 |
CASE MAY BE CITED AS: | CDPP v Kerekes |
MEDIUM NEUTRAL CITATION: | [2024] VCC 910 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Deal with money suspected of being proceeds of crime
Legislation Cited: Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic); Criminal Procedure Act 2009 (Vic); Criminal Code (Cth)
Cases Cited: R v Verdins [2007] VSCA 102; Palmisano v The Queen [2021] VSCA 124; Majeed v The Queen [2013] VSCA 40; Samarakoon v The Queen [2018] VSCA 119; Kim v The Queen [2016] VSCA 238; The Queen v Pham [2015] HCA 39;(2015) 256 CLR 550; R v BDP [2022] QCA 32
Sentence: 7 months imprisonment, to be released on a Recognizance Release Order for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Ms M. Cananzi | Solicitor for the Commonwealth Direction of Public Prosecutions |
For the Accused | Ms N. Menegas | Georgianni & Liang Lawyers |
HER HONOUR:
1Patrik Kerekes, on 17 May 2024, after receiving submissions, I granted your application for a sentence indication pursuant to s 207(1)(a) of the Criminal Procedure Act2009 (Vic). I indicated that upon a plea of guilty I would sentence you to a term of imprisonment to be released forthwith by way of a recognizance release order. You then pleaded guilty on arraignment.
2Mr Kerekes, you have now pleaded guilty to a single charge of dealing with property reasonably suspected of being proceeds of crime greater than $100,000, contrary to s 400.9(1) of the Criminal Code (Cth). The maximum penalty for this offence is three years' imprisonment or 180 penalty units, or both.
Circumstances of Offending
3The circumstances of your offending were set out in the summary of prosecution opening tendered on the plea as Exhibit A.
4At the time of the offending, you were living in Cheltenham with your wife, Huyen Vy Nguyen (Nguyen), who has been charged with similar offences.
5Between 21 April and 14 September 2022, you engaged in just under 30 banking transactions, namely cash deposits. In doing so, you dealt with a total of $254,971 cash. You were effectively acting as a 'money mule'.
6It was reasonable to suspect that the money was the proceeds of indictable crime given:
(a)the overall amount of money that you dealt with was grossly out of proportion with your income and expenditure;[1] and
(b)by regularly depositing amounts of less than $10,000, your conduct involved a number of transactions that were structured or arranged to avoid the reporting requirements to AUSTRAC.[2]
[1]Criminal Code (Cth) s 400.9(2)(c). Your reported income was $25,092 and $20,578 in 2020 and 2021 respectively.
[2]Criminal Code (Cth) s 400.9(2)(aa); Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 43. 'Threshold transaction' is defined by s 6 to include 'a transaction involving the transfer of physical currency where the total amount of physical currency transferred is not less than $10,000'.
21 April 2022
7Specifically, on 21 April 2022, you made a series of single cash deposits into various National Australia Bank ('NAB') branches around Melbourne. You deposited different amounts at each of these branches into an account with BSB No.082356 and an account number ending in 321, namely:
(a)at 1.42 pm, you attended a branch in Elsternwick where you deposited $8,500;
(b)at 2.44 pm, you attended a branch in Southland Shopping Centre where you deposited $8,950;
(c)at 3.39 pm, you attended a branch in Keysborough where you deposited $8,550.
22 April 2022
8On 22 April you made a further series of single cash deposits into that same bank account ending in 321 through various NAB branches around Melbourne. You attended branches in:
(a)Keysborough at 11.28 am where you deposited $8,150;
(b)Oakleigh at 1.46 pm where you deposited $8,850;
(c)Carlton at 3.47 pm where you deposited $8,500.
26 April 2022
9On 26 April you made a further series of single cash deposits into the same bank account ending in 321 through various NAB branches around Melbourne:
(a)Southland Shopping Centre at 10.22 am where you deposited $9,000;
(b)Mentone at 10.54 am where you deposited $8,950;
(c)Keysborough at 11.24 am where you deposited $9,000;
(d)Dandenong at 12.04 pm where you deposited $8,850;
(e)Oakleigh at 1.46 pm where you deposited $8,400.
10CCTV footage from the relevant NAB branches depicts you wearing a green
T-shirt with a gorilla motif and writing, along with a satchel with a white strap.[3][3]EI–77 CCTV stills; EI–193 Data Review Spreadsheet; EI–194 Statement of Mitchell.
27 April 2022
11On 27 April, you made a further series of single cash deposits into the same bank account through various NAB branches:
(a)Southland Shopping Centre at 10.22 am where you deposited $7,980;
(b)Dandenong at 11.16 am where you deposited $7,700;
(c)Chadstone Shopping Centre at 11.52 am where you attended a branch where you deposited $9,300; and again at 1 pm where you made further single cash deposit of $8,300.
12CCTV captured you wearing a navy blue puffer vest and a satchel with a white strap.[4]
[4]EI–77 CCTV stills; EI–193 Data Review Spreadsheet; EI–194 Statement of Mitchell.
28 April 2022
13On 28 April 22, you made a further series of single cash deposits into the same bank account ending in 321 through various NAB branches around Melbourne:
(a)Southland Shopping Centre at 9.48 am where you deposited $8,500;
(b)Bentleigh at 10.23 am where you deposited $9,050;
(c)Middle Brighton at 10.52 am where you deposited $9,200;
(d)South Melbourne at 12.07 pm where you deposited $9,000.
14On 28 April 22, there were further single cash deposits into the same bank account. However, this time you did this through various NAB branches around the Australian Capital Territory ('ACT'):
(a)at 1.41 pm, you attended a branch in Woden in the ACT where you deposited $8,500;
(b)at 3.08 pm, you attended a branch in Belconnen Mall in the ACT depositing $9,250.
15You then returned to Melbourne.
3 May 2022
16On 3 May you made a further series of single cash deposits into the same bank account, namely, 321:
(a)Keysborough at 10.37 am, a deposit of $7,950;
(b)Chadstone at 1.58 pm where you deposited $8,850.
14 September 2022
17There was a break and then on 14 September 2022 you made a further series of single cash deposits into a new bank account ending in 778, but with the same BSB as the 321 account, namely:
(a)Kew at 1.30 pm, a deposit of $9,200;
(b)Camberwell at 2.14 pm, a deposit $9,150.
18On that same day, at 2.47 pm, you attended a branch in Chadstone where you deposited $9,467 into the first of two bank accounts, being an account ending in 321.
19You then made three more deposits into a second bank account ending in 778:
(a)at Oakleigh at 3.14 pm where you deposited $8,712;
(b)Southland at 3.55 pm where you deposited $9,662.
20Subsequent investigation revealed that the two accounts are 'Business Everyday Accounts' held with the NAB by 'Stanley & Bros Global Pty Ltd'. (Stanley).[5]
[5]EI–76 NAB records; EI–79 NAB records.
21Stanley is a Sydney-based company owned entirely by Quang Minh Le (Le). He was also a director, along with Anthony Kearney (Kearney). Kearney and Le are the authorised signatories to both accounts. The principal business of Stanley is unclear. It has been reported to be principally takeaway food retailing. However, it has also been reported that the company provides financial services to customers. You are not a signatory to either account, nor were you involved in the Stanley business.
Your Arrest
22On 11 October 2022, Australian Federal Police members executed a search warrant at your residence in Cheltenham. Police members located and seized a number of items in the course of a search:
(a)a cash counting machine;
(b)bank deposit slips and a cash deposit bag;
(c)a laptop computer containing a spreadsheet detailing deposit activity;
(d)a mobile phone belonging to Nguyen;
(e)approximately $6,000 in cash;
(f)a black and white Converse brand satchel;
(g)a greet shirt with Gorilla motif and writing;
(h)a navy blue puffer vest;
(i)a NAB statement of account balances dated 21 April 2022 for two accounts held by Stanley & Bros Pty Ltd;[6]
(j)an unused Westpac and NAB deposit bags.
[6]BSB: 082356 | Account number: ending in 321; and BSB: 082356 | Account number: ending in 539.
23Analysis of the electronic devices seized revealed media files including:
(a)a video of Nguyen depositing a large amount of cash in an NAB deposit bag;
(b)multiple images of large amounts of Australian currency bundled with rubber bands, including large volumes of cash;
(c)images of numerous bank cash deposit slips and bank documents; and
(d)images of you and Nguyen together.
24Deposit slips corresponding to each of the cash deposits you made at the various branches were located at the house.
25On 14 October 2022 at about 11.54 am, police members arrested you at Melbourne International Airport as you attempted to board a Vietnam Airlines flight to Vietnam in the company of Nguyen.
26After your arrest, you made a no comment record of interview.
Procedural History
27You were charged on the same day as your arrest and proceedings commenced in the Magistrates' Court. You conducted a contested committal, and you were committed to stand trial in October 2023. The matter first came before me for a sentence indication on 12 March 2024 and upon the ultimate resolution of the matter the plea hearing took place on 11 June.
Pre-sentence Detention
28You have not served any time in custody in relation to this matter.
Sentences for Associated Offenders
29The prosecution has tendered a table which sets out the status of the matters of various people associated with Operation Avarus-Galetta. I have had regard to that table.
30Le has since been charged as the principal controller of the scheme with offences contrary to ss 141.1(1) and 400.3(2B) of the Criminal Code (Cth) in New South Wales. He pleaded guilty to those offences and was sentenced on 30 May this year to three years and three months' imprisonment with a
non-parole period of two years.31A number of the associated offenders still have proceedings outstanding. One of the offenders who has been sentenced is Kunlayaphat Silarat. She was sentenced in New South Wales on a charge pursuant to s 400.9(1) of the Code dealing with property reasonably suspected of being proceeds of crime, money worth $100,000 or more. Her offending is said to have taken place between 27 October and 13 November 2022 in which she made 18 cash deposits totalling $292,820. Ms Silarat pleaded guilty and was sentenced to seven months' imprisonment with immediate release into a two-year recognizance release order.
32Another associated offender, Pramote Dhitiporncajid, was sentenced to 18 months' imprisonment to be released forthwith entering into a two-year recognizance release order. He was charged pursuant to s 400.3(3B) of the Act for negligently dealing with proceeds of crime relating to 122 deposits totalling $1,619,605.
Sentencing Considerations
33As the charge before me is a Commonwealth offence, you fall to be sentenced in accordance with Part 1B of the Crimes Act1914 (Cth) ('the Act'). Sub-section 16A(1) of the Act requires the imposition of a sentence which is of a severity appropriate in all of the circumstances of the offence, bearing in mind the requirements in s 16(2)(k) that a person be adequately punished for the offending.
34Accordingly, I am required to have regard to a number of factors which are set out in s 16A(2) of that Act to the extent that they are relevant and known to the court, and I do so, as I will elaborate. One of these factors is your personal circumstances.[7]
[7]Crimes Act 1914 (Cth) s 16A(2)(m).
Personal Circumstances
35You were born in July 1994 in Bratislava, Slovakia. You are now 29 years old, and you are a Slovakian citizen. You arrived in Australia on 19 April 2019. You have no prior criminal history in Australia. Prior to your arrest you were working as a removalist.
36You enjoyed a stable upbringing, although there was some conflict within your family home between your parents. Your mother often drank to excess until your parents separated when you were 12 years old. After their separation, you had limited contact with your father, however, this relationship has recently improved. You enjoyed a close relationship with your mother and maternal grandfather, who you considered to be a father-figure.
37You report that your upbringing was strict with high expectations on you given that you are the eldest son in the family.
38Your grandfather passed away three years ago, at a time when international travel was prohibited due to the COVID-19 pandemic. Consequently, you were unable to say goodbye to your grandfather or to grieve with your family. You report experiencing feelings of isolation.
39You were also unable to travel to Slovakia to undertake your final exam in criminal law, which is required to complete your Master's degree. You hope to be able to complete this degree upon your eventual return home.
Education
40You completed high school in Slovakia. You report being an average student who was the victim of bullying. You went on to complete a Bachelor of Laws at university.
41Since then you have almost completed your Master's degree which you have been undertaking online from Australia.
42Upon completing your Bachelor's degree you travelled to Thessaloniki, Greece. During that trip you were the victim of a robbery committed by three men against you. You report waking up in hospital where you had spent weeks being treated for numerous broken bones and a serious concussion. This attack has had a lasting impact upon you.
43You met your wife whilst at university. You were an exchange student
co-ordinator and Ms Nguyen was studying Slovak on exchange.44You married and later decided to move to Australia. You travelled to Australia on a student visa, as I have said, in April 2019. Your partner, Ms Nguyen, has an 11-year-old son to a previous relationship. You and your wife often send child support payments to your wife's son who resides with his father in Vietnam.
45You have previously held a temporary activity (subclass 408) visa related to COVID-19 which expired on 24 March this year. You have recently been granted a temporary stay visa.
46Prior to these proceedings you had planned to return to Slovakia with your wife.
Employment
47Since arriving in Australia, you have worked as a truck driver and removalist. You have done so both as an owner of your own company and as a
sub-contractor for others. On 31 May last year, you and your wife registered a new business, 'PVK Cleaning and Removals'. To commence this business, you purchased a truck with money loaned to you from your family in Slovakia. You drove the truck and handled the removalist side of the business while you did the cleaning.48You reportedly have a long history of volunteering and giving back to your community. Whilst studying in Slovakia you became the Managing Director of Vinculum Luris, a not-for-profit organisation involved in educating school students on real life skills, including finance and law.
49Since April 2023, you have been a regular and active volunteer for Drug Policy Australia. Utilising your previous qualifications in Digital Marketing, you successfully secured a position within the organisation, assisting with advertisements, events and other general tasks.
50You were previously attending at the office every Tuesday, often staying late. You now volunteer remotely for approximately eight hours a week. Mr Chipp, Managing Director of Drug Policy Australia wrote in a reference that you are 'reliable, punctual, committed', and you show empathy for those less fortunate.
51A number of character references were tendered on your behalf. Both your father and your sister speak of your good character. You are described as a hardworking individual known for your integrity and responsibility. You enjoy the support of your family who have instilled strong values in you, and whilst they are overseas, their support is significant. You have expressed deep sorrow and remorse for your conduct to them. I take these references into account and I accept that this conduct is out of character.
Mental Health
52You have reported a history of low mood and panic attacks following the attack in Greece. You were treated by a psychologist in Slovakia, and you were prescribed anti-depressants, although they caused you negative
side-effects, so you discontinued use. You have been unable to seek treatment in Australia, as you do not qualify for Medicare benefits.53You report that the proceedings before the court have caused you immense anxiety although I note that the onset of these symptoms pre-dates the offending and prosecution.
54According to psychologist Carla Lechner:
(a)you 'currently fulfil the criteria for major depressive disorder';
(b)you are 'likely to be severely psychologically distressed';
(c)your score on the BDI (Beck Depression Inventory) falls into the 'extreme' range, this being consistent with your presentation at interview and diagnosis of clinical depression;
(d)further testing, she says, 'indicated the presence of symptoms of both post-traumatic stress disorder and complex post-traumatic stress disorder'.
55Ms Lechner opines that you are cognitively capable of reflective and consequential thinking but your ability to see the bigger picture has been marked by your depressed and negative lens on the world and yourself. You appeared to Ms Lechner to have a high degree of emotional dependency on your wife and a desire to avoid her being displeased with you.
56Ms Lechner considers that you would struggle in a custodial setting on account of your mental health and that your symptoms would be aggravated in a prison environment. She would anticipate a deepening of your depression and an intensification of your PTSD symptoms in an inherently aggressive and threatening environment.
57To that end, your counsel submits that limbs 5 and 6 of the principles set out in R v Verdins[8] have application. I accept the submission that imprisonment would be more onerous for you and that there is a real risk that incarceration would have a significant adverse effect on your mental health.
[8] [2007] VSCA 102.
Physical Health
58Physically, you continue to suffer from migraines, the onset of which you attribute to the attack in Greece. You have never been assessed for any traumatic brain injury.
59You have experienced significant stress since being charged with this offence. Your sister notes that you suffered from extreme weight loss, hair loss, and from her perspective, a decline in mental health.
Plea of Guilty
60I take into account your plea of guilty. Your plea was not at the earliest opportunity, coming after a contested committal and a sentence indication. However, the matter was never listed for trial, and I accept that there was a willingness to resolve the matter at an early stage once committed to trial.
61I accept that you have taken responsibility for your conduct, and in doing so you have saved the community the significant expense of a trial, and further, your plea demonstrates a willingness to facilitate the course of justice. I accept that your plea is of considerable utilitarian value. It is also some evidence of remorse.
Prospects of Rehabilitation
62You have no prior criminal history, nothing pending, and you are otherwise of good character. You have a consistent work history and have contributed to the community with volunteer work. You do not have issues with substance abuse, and you enjoy the support of your family. You have complied with strict bail conditions since October 2022, and importantly, as I have said, you have accepted responsibility for your offending and expressed your remorse to family and friends. Accordingly, I consider that your prospects of rehabilitation are extremely high.
Nature and Gravity of the Offending
63Pursuant to s 16A(2)(a), I must take into account the nature and circumstances of the offence. In doing this, I am required to assess your level of criminality.
64Offences against Division 400 of the Code are structured in order of seriousness. This offence sits towards the bottom of the structured series of offences, but this is not to say that the offence is not viewed seriously. Your state of mind as to the provenance of the money is not relevant being that this offence is one of absolute liability.
65I have had regard to the relevant factors identified in Palmisano v The Queen[9] as being relevant when considering offences under Division 400 of the Code.
[9] [2021] VSCA 124; and more generally Majeed v The Queen [2013] VSCA 40.
66The quantum here was significant. You fall to be sentenced for cash deposits of over $250,000. Your offending took place over five months during which you made 28 cash deposits, often multiple deposits in a single day. The offending was protracted and repeated, including deposits made interstate. There was a degree of planning and organisation. Your counsel points out that the offending, whilst it involved multiple deposits, in fact occurred on eight days during the timeframe.
67As the prosecution conceded, your role in the offending was different to that of Ms Nguyen and Mr Le. Ms Nguyen was in direct contact with accused Le, who held a position of authority. Nguyen collected cash from Le and made deposits at his direction in far larger quantities than you. There is no evidence of any communications or direct contact between you and Mr Le. Your counsel submitted on your behalf that you acted on the instruction of your wife and you told Ms Lechner that your wife said the money had been coming from her cousin who has an exchange company and that the money was being sent to her cousin for child support.
68Although you were following the direction of others, it is nonetheless a serious example of this offence. I accept that you were not the instigator of any arrangements, and whilst you were entrusted to facilitate large deposits of cash, the degree of authority reposed in you did not extent beyond that. You are not said to have sorted the cash into deposit bags and there is no evidence you collected cash from anyone other than your wife.
69You told Ms Lechner that you did not get anything out of it and there is no evidence of financial gain. Your counsel submits that given your emotional dependency on your wife and that you were acting on her instruction, your moral culpability is not high. I do not entirely accept that your moral culpability was not high, but I take this into account, and I do not think there is any issue about this from the prosecution's perspective, that you played a secondary role to your wife. I accept that within the relationship there was an emotional dependency in which you sought to avoid displeasing her.
70In Samarakoon v The Queen,[10] the court reiterated the importance of the value of the proceeds of crime when assessing the objective seriousness of the offence. Here we are talking about a not insubstantial amount of money. Money laundering is vital to the functioning of organised crime syndicates. In committing this offence, you have been an important cog in the wheel of organised crime.[11]
[10] [2018] VSCA 119.
[11]Kim v The Queen [2016] VSCA 238; Majeed v The Queen [2021] VSCA 124.
General and Specific Deterrence
71General deterrence assumes prominence in the sentencing exercise. This is prescribed in s 16A(2)(ja) of the Crimes Act1914 (Cth). Those who might be inclined to engage in this sort of offending must understand that it will attract considerable punishment, that whatever the motive, such motive is neutralised by the risk of the penalty to be imposed.
72The sentence that I impose must reflect the significant punishment that is to be expected by people who participate in enterprises such as this, being an important part of organised crime.
73Moreover, the court denounces your conduct. You have no prior criminal history, but specific deterrence is not irrelevant given the repeated nature of the offending and the period over which you conducted these transactions.[12]
[12]Crimes Act 1914 (Cth) s 16A(2)(j).
Current Sentencing Practices
74I have had regard to sentences imposed in comparable cases. However, this is only one factor and not the controlling factor in the fixing of a just sentence. As the High Court set out in The Queen v Pham,[13] when sentencing for a Commonwealth offence, I must have regard to sentences that have been imposed in other states and territories.
[13] [2015] HCA 39;(2015) 256 CLR 550.
75Tables was tendered by the prosecution which summarised intermediate appellate sentences imposed for offences against s 400.9(1) of the Code where the quantum exceeded $100,000. The prosecution submits that the table of comparable sentences illustrates, but does not define, the possible range of sentences. They are said to be the yardsticks by which the court may examine the proposed sentence. I have considered the cases in the table, noting that, self-evidently, no two cases are identical.
76As the cases illustrate, offences involving a similar quantum usually attract a term of imprisonment. However, at least in one instance, an immediate gaol term was not required, having regard to all of the circumstances taken into consideration.[14]
[14] See R v BDP [2022] QCA 32.
Sentencing Submissions
77It is submitted on your behalf that you should be sentenced to a term of imprisonment but with immediate release on a recognizance release order; that such a sentence would operate as a punishment and would denounce your conduct whilst allowing you to continue your rehabilitation in the community.
78The prosecution submits that, having regard to the seriousness of the offending by reference not only to the overall quantum but also the number of transactions in which you were engaged over the period, that in all the circumstances, a term of immediate imprisonment is required, notwithstanding your prior good character, in order to adequately reflect the seriousness of the offending and meet the relevant sentencing principles.
79I have considered all of the relevant matters raised both on your behalf and by the prosecution. Pursuant to s 17A(1) of the Crimes Act 1914 (Cth), the court shall not pass a sentence of imprisonment for a federal offence unless, having considered all of the available sentences, it is satisfied that no other sentence is appropriate in the circumstances. In formulating an appropriate sentence, I have had regard to each of the matters discussed, the relevant provisions of s 16A(2), the maximum penalty and the need to impose a sentence that is just in all of the circumstances.[15] I have had regard to all relevant matters.
[15]Crimes Act 1914 (Cth) s 16A(k).
80Ultimately, I have come to a conclusion that whilst a term of imprisonment is warranted for this offending, having regard to all relevant matters including your plea of guilty, demonstrable remorse, your previous good character and your prospects of rehabilitation, that you should be placed on a recognizance release order, to be released forthwith. This would, in my view, meet the objective of sentencing. This means that you will not be sentenced to an immediate term of imprisonment.
Sentence
81On Charge 1, you are convicted and sentenced to seven months' imprisonment, to be released forthwith.
82You will be released upon a recognizance in the sum of $1,000 that you be of good behaviour for a period of two years from today's date.
83In a moment, you are going to be asked to sign some paperwork, which is the recognizance release order. I need to explain to you the effect of the sentence that I have imposed. It is not, in some ways, that dissimilar to a suspended sentence. The overall sentence is seven months' imprisonment, but you are to be released immediately. This period of seven months will be hanging over your head for the next two years. If, in that time, you were to commit a further offence punishable by imprisonment, you may well be required to serve the seven months in addition to whatever penalty you might receive on any further offending. The recognizance amount – that is, the $1,000 – is only potentially payable by you if you breach the terms of the recognizance – that is, if you re-offend in that two-year period.
84I understand that the prosecutor will have the recognizance release order prepared.
Section 6AAA
85I also indicate, pursuant to s 6AAA of the Sentencing Act1991 (Vic), that but for your plea of guilty, I would have sentenced you to 15 months' imprisonment, to be released on a recognizance after serving six months of that sentence.
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