CDirector of Public Prosecutions v Neo and Anor (Ruling No.1)

[2020] VCC 1515

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00828
CR 20-00829

THE QUEEN

v

CHIN LENG (ALLEN) NEO
ZHI KAI (KENNETH) NEO

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2020 (Sentencing Indication Hearing)
DATE OF RULING:	18 August 2020
CASE MAY BE CITED AS:	CDPP v Neo & Anor (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1515

REASONS FOR RULING NO.1
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr M. Keks	Commonwealth Director of Public Prosecutions
For Accused Chin Leng Neo	Dr T. Alexander	Wyndham Partners
For Accused Zhi Kai Neo	Mr R. Alexander	Richmond Legal

HIS HONOUR: 

1Yes, good morning all.  Mr Keks and Dr Alexander and
Mr Alexander.

2COUNSEL:  Good morning, Your Honour.

3HIS HONOUR:  Mr and Mr Neo together with relevant instructors, and I don't want to be rude by not going through them all.  But I should say, yes, Ms Forell and Mr Nisiforou.  Yes, does either party want to say any more in regard to this application?

4DR ALEXANDER:  Not from Mr Allen Neo, thank you, Your Honour.

5HIS HONOUR:  Thank you.

6MR ALEXANDER:  Neither from Mr Kenneth Neo, Your Honour.

7HIS HONOUR:  Yes, thank you.

8MR KEKS:  Not from the Crown, Your Honour.

9HIS HONOUR:  Thank you, Mr Keks.

10(RULING FOLLOWS)

HIS HONOUR: 

11This is an application by both Mr Allen and Mr Kenneth Neo, under s.207of the Criminal Procedure Act.  As I have just said, for the Crown in this matter, Mr Keks appeared, for Mr Allen Neo, Dr Alexander appeared and for Mr Kenneth Neo, Mr Ray Alexander appeared.  The matter was heard on 13 July 2020.

12In regard to the application, the prosecution tendered Exhibit A, a summary of prosecution opening for trial, Exhibit B, the Crown submissions in regard to the sentence indication hearing, and Exhibit C, the Crown table of comparative cases.

13On behalf of Mr Allen Neo was tendered the application for sentencing indication and the written submissions.  On his behalf, A2 was the medical references and A3 was 21 character or employment and/or business references.

14In regard to Mr Kenneth Neo was tendered the application for sentencing indication and the written submissions, together with the three character references identified and tendered as Exhibit K2.

15The application was consented to by the prosecutor pursuant to the provisions of s.208(2) of the Act.  Such consent was specifically given on the basis that it should not be recognised as being of consent to the application for a non-immediate gaol sentence.

16There was, the Court was advised, agreement between the prosecution and the defence that if I grant the application, then the matter would proceed with Charges 1 and 3 being removed from the indictment. There would subsequently then be a new indictment in which the current Charges 2 and 4 would be pleaded to.

17As to the circumstances of the offending, I have a unique understanding having sentenced Mr Ibrahim on 8 May last year.  There is of course a point to be made about that sentence being that Mr Ibrahim was before the Court on a more serious charge being a charge under s.141.1(3) of a Commonwealth officer receiving benefits as a bribe.  That as was indicated during this hearing over a six year period and brings with it by way of an indication of the seriousness with which Parliament views these offences, a 10 year maximum.  The benefits involved were identified by me in the sentencing remarks and in this hearing and involved a constellation of benefits.

18The immediate comparison with the Mr Ibrahim’s charge, of course if one is looking only at Charge 2 and 4 in this indictment, is of course the maximum provided by Parliament is one of five years.

19Insofar as this hearing, there was no issue from either counsel that such behaviour tended to influence a Commonwealth officer, nor that in looking at culpability, the Court is entitled to look at the consequences of such tendency to influence.

20Also, albeit the actual benefits were of a low order the offence, as put by both counsel, is committed irrespective of whether the benefits are received ultimately or not.

21I accept as between the Neo's themselves that R v Ball [2009] ACTSC 45, [42] is important. That is, the culpability of Kenneth must be lesser given Allen's:

a.Longer association with Mr Ibrahim

b.His influence over Kenneth as a father

c.His influence in the circumstances of this case as the head of the corporation or the business

d.The longer period of offending involved

22However, as pointed out by the Court in Ball, those discriminations do not mean that the deterrent response primary to sentencing in this matter is not still needed.

23It is clear that the Crown by the charges, that is two and four, and by [13](b) of its submissions, accepts the discrimination in culpability between father and son.

24The gravamen of this application concerns the father, Allen.  That is, if I granted this application by Allen, it would mean, as a matter of justice, if not parity, I would have to do so in regard to Kenneth. 

25I do not lose sight, as part of Mr Keks' submission, that providing corruption benefits to a Commonwealth official calls for a sentence which:

a.effects deterrence

b.recognises the objective seriousness of such behaviour

c.notes the period over which such behaviour occurred, recognise that Mr Ibrahim was in fact influenced.

26While there was no proof that the bio security of the country was threatened, the inspections clearly were done, to use a term, in a favourable manner.  Provision were made on at least five occasions of commercial in confidence information. I have no doubt albeit in part, the motivation of both of the Neo's was commercial advantage.  The benefit to be received for this criminality was clearly one that can be classified as financial.  All of those matters clearly have to be taken into account in this application.

27Coming then to the issue of parity, that is, parity as between the sentence of
Mr Ibrahim and the Neo's. As put to me by counsel, this is a complex matter. It is recognised that in dealing with the Neo's, I do not take into account, as I did with Mr Ibrahim, the provisions of s.16AC Crimes Act 1914.

28Also, as I have already pointed out, insofar as a plea to Counts 2 and 4, we see a significantly less serious charge in the sense of there being a significantly lesser maximum penalty prescribed by Parliament.

29Coming then to the submission on behalf of Mr Allen Neo presented by
Dr Alexander.  He relied upon the following:

a.Firstly, Mr Allen Neo's age.  He is now 62.  He comes before the Court without any priors.  It has always been the practice of this Court, where a person comes before a Court without any priors into the latter part of their lives, to exercise leniency if possible.

b.The second matter Dr Alexander spoke to was insofar as Mr Ibrahim this was, to use his phrase, 'a genuine relationship.'  That is, in regard to the aspects, for example, of him working for the company, this was not a situation where a Commonwealth official was simply paid ghost wages as a way of hiding corruption.  He did work for the company, whether it was morally correct to do so or not is another point.  The point was made that it appears that there was a genuine friendship between Mr Ibrahim and Mr Neo.

c.The third matter was Mr Neo senior's long history of successful business operation in Australia and his contribution to employment in this country.

d.The fourth matter was the reliance on the extensive character evidence and associated industry references, which I have detailed, indicating a person who has contributed not only to the community generally, but to individual employees, individual organisations such as schools, and is clearly held in high regard in the industry.

e.Five, as I have already remarked, that he has no priors.

f.Six, that he has made a substantial contribution by way of his business operations in Australia since he has been here.  His company is seen by all as a leader in the field or was. From 2003 to 2009, by hard work, not only did he increase turnover from approximately 2 million per year to a figure of 10 million but was employing some 15 staff. From all the references, clearly he was not only a good employer but an employer who worked very hard.

g.The seventh matter relied on was the guilty plea, and that there has been no need for a contested committal.  Further, at the time when the suggestion of a plea should be entered into if this application is granted, then it is not only utilitarian in the general sense, but utilitarian in the sense spoken of in Bourke [2020] VSC 130, [32].

h.The eighth matter relied on was the issue of Mr Allen Neo's health.  In analysing that, it seems to me that his prostate issue is no different probably to thousands of men in this community. Clearly it is a matter that, while inconvenient, could be treated while in gaol.

i.The final matter was Mr Neo’s prospects of rehabilitation.  I accept the proposition put, given his background and the manner in which he has conducted himself since being in Australia, that I should be confident that he as a person, once he gets over the circumstances of these charges, charges which are well known about in the industry, for which there's been some suffering endured, that he will effect appropriate rehabilitation.

30Coming therefore to a consideration of the authorities, and submissions of Mr Keks, by each counsel on behalf of the Neo's, I have concluded that, I do accept the submissions put that a term of imprisonment under three years is appropriate, with an immediate recognisance release being provided. The effect thereof being that there would be no immediate imprisonment imposed, such of course is provisional upon appropriate pleas being made, and that there is no difference from what has been put to me in this application.

31As I have said, essentially this determination is all about the application of
Mr Allen Neo.  But given the determination in his favour, equally it seems to me there is no alternative but to make a similar determination, as to the application by his son.

32I might say that, certainly insofar as Mr Allen Neo, is concerned, I am considering the imposition, in addition to any such sentence indicated, of a fine. I will have to check where we are in regard to totality on those matters and I have not finally decided that matter, but I want that to be clear insofar as this sentence indication is concerned.

33I therefore grant both applications.

‑ ‑ ‑

34DR ALEXANDER:  Please the Court.  Thank you, Your Honour, for the granting application and for the indication.  On that basis, we've of course discussed the options that Your Honour might come back with and I have instructions that the matter would therefore resolve on the basis of the indication.

35HIS HONOUR:  Yes.  As I understand the position, Mr Keks, once the Commonwealth have considered its position, the next step if it was going to proceed on the basis that has been indicated to me, is that it'd be appropriate to list the matter for plea and sentence which I would effect on the same day.  That is, you'll have to draw up a further indictment and as I receive the matter, I would do the plea and the sentence on the same day.  If that's how counsel are envisaging it?

36MR KEKS:  Yes, Your Honour.  Indeed the Crown will withdraw the two bribery charges and file a fresh indictment containing the corrupting benefit charges on the basis that those pleas will be entered.  That can be dealt with when it's convenient to the Court.

37HIS HONOUR:  Well what we were contemplating was 17 September, which coincidentally I think is the end of the current lockdown period, and that will allow for the presence in Court of the Neo's on that day.  I think that's ‑ ‑ ‑

38MR KEKS:  That's suitable to the Crown, Your Honour.

39HIS HONOUR:  That's the date, Madam Associate, isn't it?

40ASSOCIATE:  Yes, Your Honour.

41HIS HONOUR:  All right.  Providing the restrictions aren't extended, we understand there'll be no issue with the Neo's in Court on that day, is that correct?

42ASSOCIATE:  That's correct, Your Honour.

43DR ALEXANDER:  Your Honour ‑ ‑ ‑

44HIS HONOUR:  All right.  Yes?

45DR ALEXANDER:  Sorry.  Apologise, Your Honour.  I have a trial in the Supreme Court commencing next week for a week.  It's then being adjourned until 17 and 18 September and then adjourned again for the final instalment.  Depending on what time the matter's listed, Your Honour, I'm happy to do both.  I have a junior in the other matter, but I wouldn't want to leave him alone too long.

46HIS HONOUR:  I'm happy to list it at 10 o'clock if it suits.

47DR ALEXANDER:  That would be fine, thank you, Your Honour.

48HIS HONOUR:  I don't normally sit simply because of the mechanics of how the Court runs.  I normally sit at 10.30.  But I'm happy if it assists you if we list the matter at 10, Dr Alexander.

49DR ALEXANDER:  I'd be indebted.  Thank you, Your Honour, and I'm content with that.

50HIS HONOUR:  Are they all the matters we need, Madam Associate?

51ASSOCIATE:  Yes, Your Honour.

52HIS HONOUR:  I thank everyone for their assistance and for their submissions.

53DR ALEXANDER:  Thank you, Your Honour.  Please the Court.

54HIS HONOUR:  Yes.  Well we'll adjourn the Court, Mr Tipstaff.

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