CDirector of Public Prosecutions v Seo
[2024] VCC 1306
•14 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00127
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WOOSEOK SEO |
---
JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July 2024 | |
DATE OF SENTENCE: | 14 August 2024 | |
CASE MAY BE CITED AS: | CDPP v SEO | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1306 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Engage in conduct in relation to money that is proceeds of general crime-value greater than $100,000; deal with money reasonably suspected of being proceeds of indictable crime- value greater than $100,000; Student Visa (subclass 500); Deportation-extra-curial punishment-modest mitigatory weight; 154 transactions-4 month period; plea of guilty; contrition;
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic).
Cases Cited:Kim v The Queen [2016] VSCA 238; R vHuang [2007] NSWCCA 259;
Majeed v The Queen [2013] VSCA 40; R v Pham (2015) 256
CLR 550; Van Eeden v The Queen [2012] NSWCCA 18; CDPP v
Dao [2023] VCC 762; R v Yi-Hua Jiao [2015] NSWCCA 95; Nguyen v
The Queen [2019] NSWCCA 44; R v BDP [2022] QCA 32; Singh v The
Queen [2018] NSWCCA 60; Guden v The Queen (2010) 28 VR 288; R
v BDP [2022] QCA 32.
Sentence: Total Effective Sentence is 2 years and 6 months. 1 year and 2 months to be served before entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of two years.
---
APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr Sprague | Commonwealth Director of Public Prosecutions |
| For the Accused | Dr Gang | Prolink Partners |
HIS HONOUR:
Introduction
1Woosoek SEO, you have pleaded guilty to the following offences:
(a) One charge of engage in conduct in relation to money that is proceeds of general crime, where the value of the money is $100,000 or more, contrary to subsection 400.4(2B) of the Criminal Code Act 1995 (Cth) (‘Criminal Code’), which carries a maximum penalty of 10 years’ imprisonment; and
(b) One charge of deal with money reasonably suspected of being proceeds of indictable crime, where the value of the money is $100,000 or more, contrary to subsection 400.9(1) of the Criminal Code, which carries a maximum penalty of 3 years’ imprisonment.
2You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 4 July 2024, which I note is an agreed document.[1]
[1] Exhibit P1.
Summary of Offending
Charge 2
3On the 16 March 2023 at approximately 6pm, you attended Melbourne Airport at Terminal 4. You were carrying a black carry on bag which you placed on the x-ray belt and proceeded through the screening process. Security Officer Marikana Naumovska was operating the x-ray machine and noticed the bag contained cash.
4Officer Naumovska rejected the bag and advised her colleague, Carina Zerella, as Ms Zerella was overseeing the examination of rejected baggage and personal items.
5You were present when Ms Zerella opened the bag and when asked what was inside the bag, you replied: ‘money’.
6Inside were two plastic shopping bags with bundles of Australian currency. Ms Zerella’s Supervisor, Amir Adam attended the screening point and asked you if it was your bag, you replied ‘yes’.
7You were then led into a private room where your bag was searched and inside the bag was a large amount of cash. When asked about the value of the money, you replied that it was $300,000 and that you were travelling to Sydney to purchase a house.
8The Security screening staff allowed you to leave the room and proceed to the Departure Gates. The staff notified the Australian Federal Police (‘AFP’), who then located you outside Terminal 3, Gate E8 at approximately 6.40pm.
9You were led to a private area, were cautioned and asked to open your bag. The AFP observed a large amount of cash, predominantly of $50 notes in bundles, inside shopping bags and garbage bags.
10The AFP then conducted a digital record of interview at 7.24pm, where you answered ‘no comment’ after obtaining legal advice.
11The money was seized by the AFP, and the reconciled funds totalled $372,410.00.
12You advised the AFP that you were a student. Your ATO records showed that you had no declared income except for $1.60 in interest in 2019.
13It is reasonable to suspect that the money was proceeds of indictable crime having regards to:
(a) The amount of $372,410.00 is grossly out of proportion with your income and expenditure; and
(b) The unconventional nature of attempting to transport this amount of money in a carry-on bag.
Charge 1
14The investigation of Charge 2 and your corresponding bank statements, led to the filing of Charge 1.
15Between 11 November 2022 and 15 March 2023, you received cash deposits and bank transfers totalling $855,840.00. Overall, across 154 transactions you transferred $803,495.00 to other bank accounts.
16You transferred a total of:
(a) $499,800.00 to your brother in law, Jun LEE;
(b) $61,600.00 to your sister, Sunyoung SEO;
(c) $40,695.00 to a bank account held in your name; and
(d) $201,400.00 to unknown bank account(s).
17You engaged in conduct which concealed and disguised the money’s source and movement through the following actions:
(a) You made frequent cash deposits in predominately $9,000 or $8,800 amounts. These amounts were below the $10,000 reportable threshold;
(b) You made cash deposits into your bank account at various Sydney ATMs and occasionally Melbourne ATMs;
(c) You transferred money predominately in $9,000, $8,800 or $4,850 amounts, which is again, below the $10,000 reportable threshold;
(d) You usually transferred the money on the day it was received, or the day after it was received; and
(e) The amounts received and transferred were grossly out of proportion with your income and expenditure.
Personal Circumstances
18You were 29 at the time of the offending and are now 31. You are a South Korean national.
19Money was a stress factor for your family whilst you were growing up. During high school, your parents divorced. Your father worked overseas and your mother moved back to your hometown, leaving you and your sister in Seoul. Seoul had high living costs, your parents were unable to provide financial support so you had to work hard to get by.[2] You recall that your father told you growing up to ‘earn money honestly’.[3]
[2] Reflection Letter (‘Exhibit D4’).
[3] See ibid.
20You were a talented musician growing up, even getting into a musical performance faculty at Busan Arts College, however you noticed that you were at a financial disadvantage compared to your peers. You had to work part time jobs and take out high interest student loans in order to pay for your university fees. After one semester, you decided to complete your mandatory military service. You looked into training for a special troops police unit but could not earn enough money to attend the training school.
21Your counsel told the court that when your older sister decided she wanted to travel to Australia, you followed her. It was your first time leaving South Korea, and a large reason for your decision was because you felt uncertain about your future prospects because you could not do several courses of study that you had wanted to do.
22You arrived in Australia in 2018 on a working holiday visa and undertook different jobs such as being a cleaner and a tiler in Sydney and Brisbane. In 2019, you changed to a student visa. You were granted a Student Visa (subclass 500) on 14 December 2022, which expires on 9 December 2026.
23You studied sports, specifically jiu jitsu but after realising that you needed to expand your English Language skills, you attended language school for a year and a half.
24After the COVID-19 outbreak in 2020, you worked on a farm for a year, before returning to Sydney. Two months after returning, you were arrested for these offences.
25You currently live in Auburn, New South Wales with one housemate. Since being released on bail, you worked for approximately six months in 2023 until January 2024, when you were made redundant. You were not reemployed until June 2024. Since being on bail, you have been able to support yourself with your own earnings, through family support and through loans from friends which have been paid back.
26You are currently attending Centennial College, undertaking a Diploma of Management and Leadership.
27You suffer from significant back and neck pain, which is attributed to your work history and jiu jitsu. Heekyun YOO, your Traditional Chinese Medical Practitioner, certified that you have attended their clinic six times regarding your meniscus cartilage damage in both knees. You experience knee pain and have limited walking capacity. You have received acupuncture, ultra-sound and TENS (Transcutaneous Electrical Nerve Stimulation) treatment between 24th November 2021 and 3rd January 2022 to improve the symptoms.[4]
[4] Chee-U Acupuncture Traditional Chinese Medicine Medical Certificate 1 by Heekyun Yoo dated 3 August 2024 (‘Medical Report 1’).
28Heekyun YOO also certified that you have attended their clinic eleven times regarding the disk disease on the cervical and lumbar areas of your spine, with symptoms of severe numbness, tingling pains and limited range of spinal motions. You received acupuncture, cupping, TENS and Tui-na (Spinal Correction) treatment between 8th December 2022 and 2nd May 2023 to improve the symptoms.[5]
[5] Chee-U Acupuncture Traditional Chinese Medicine Medical Certificate 2 by Heekyun Yoo dated 3 August 2024 (‘Medical Report 2’).
29You have experienced the recurrence of these spinal symptoms and have been receiving further treatment since 26th July 2024.
30You state the cost of healthcare in Australia means that you are not able to access services and you have been going to the gym four to five times a weeks for rehabilitation exercises.
31You do not have a criminal history in Australia.
Sentencing Considerations
32Charges 1 and 2 are ‘federal offences’. The court is guided in sentencing you by the regime set out in the Crimes Act 1914 (Cth) (‘Crimes Act’). In sentencing you, I must impose a sentence that is of a severity that is appropriate in all the circumstances of this case.[6]
[6] Crimes Act 1914 (Cth) s 16A(1) (‘Crimes Act‘).
33I take into account the matters set out in Part 1B of the Crimes Act. In particular, I have had regard to s 16A(2) which sets out a non-exhaustive list of factors that must be taken into account as far as they are relevant and known to the court.
34I will address each of the relevant paragraphs in s 16A(2) in turn.
Nature and Circumstances of the Offence & Offence committed as a course of conduct – s 16A(2)(a) & (c).
35The anti-money laundering offences created by sections 400.2B – 400.8 of the Criminal Code create a hierarchy of offences based on the amount of money involved and the state of mind of the offender. There are three tiers of offence with the most serious tier (tier 1) reserved for circumstances in which the accused believes the money to be proceeds of crime. The least serious tier of offences (tier 3) are absolute liability offences. The highest maximum penalty is life imprisonment and is reserved for a tier 1 offence concerning $10,000,000 or more.
36Charge 1 is an offence against s. 400.4(2B) which is a tier 2 offence where the mental element is recklessness. The section is concerned with offences where the amount involved exceeds $100,000 but is less than $1,000,000.
37The maximum penalty is imprisonment for 10 years and/or a fine of 600 penalty units.
38Section 400.9 of the Criminal Code provides for a different offence, punishable by a maximum penalty of 3 years’ imprisonment, where a person deals with money where it is reasonable to suspect it is the proceeds of crime. No mental element is specified.
39The following considerations will inform the objective seriousness of offences committed against the anti-money laundering provisions in Division 400 of the Criminal Code:
(a) The precise circumstances of what the offender did;
(b) The degree of authority reposed in the offender;
(c) Whether the offender was the author or instigator of the money laundering arrangement;
(d) The period of time over which the offence was committed;
(e) The number of transactions involved; and
(f) The amount involved in the offending.[7]
[7] See Kim v The Queen [2016] VSCA 238, 23-4 [61] (and the authorities there cited).
40Applying those considerations to Charge 1, I consider it to be a mid-range example of the offence. The offending involved more than 8 times the threshold of $100,000. Had the amount been $1,000,000 or more, the maximum penalty would have been 12 years’ imprisonment.
41The offending involved 154 transactions over a period of 4 months. A larger number of transactions involving small amounts of money will attract a higher penalty than a single transaction of a larger amount.[8]
[8] R vHuang [2007] NSWCCA 259 [35].
42There was clearly some planning involved as the individual amounts were below the $10,000 reportable threshold.
43As against those considerations, there is no suggestion that you were the author or instigator of the arrangement. Your direct financial gain was relatively modest, being a little over $40,000.
44Charge 2 is a low to mid-range example of the offence created by s 400.9. The amount of $372,410 is 3.7 times the threshold value of $100,000. Unlike Charge 1, this was one-off offending.
Specific & General Deterrence – ss 16A(2)(j) & (ja)
45The authorities make clear that general deterrence is an important consideration in sentencing for this type of offending. As the Court of Appeal has explained, money laundering ‘should be considered as serious criminal activity that is at the heart of organised, professional crime syndicates’.[9] A person who launders money ‘is an important cog in the wheel of organised crime’.[10] Such conduct ‘warrants severe punishment not the least in order to reflect general deterrence of a very significant degree.[11]
[9] Ibid [36].
[10] Majeed v The Queen [2013] VSCA 40, 12 [39].
[11] See Ibid.
46Specific deterrence also has a role to play in your case although, I accept your counsel’s submissions that your lack of prior convictions and the remorse you have demonstrated for your offending suggest that you are not likely to re-offend.
Matters in Mitigation
Contrition and Plea – s 16A(2)(f) and (g)
47You pleaded guilty at an early stage at the Magistrates’ Court. Your guilty plea saves witnesses the inconvenience and stress of giving evidence at your trial; saves the court’s scarce resources; and represents your acceptance of responsibility for your offending.
48I accept that you are genuinely contrite. In a ‘reflection letter’ addressed to court, you explain that you are ashamed of yourself and have learned many lessons.[12]
[12] Exhibit D4.
49A close friend, Chandeul Yang, informs the court that each time you meet, you show remorse and regret.[13]
[13] Character Reference Letter from Chandeul Yang (Exhibit D2).
Matters of Personal & Probable Effect of Any Sentence on Family or Dependents – s 16A(2)(m) & (p)
50You are now 31 years of age and were 29 at the date of the offending. While not a youthful offender, you have much of your life ahead of you. It is therefore necessary to impose a sentence that promotes your rehabilitation.
51Your counsel placed considerable reliance on the likelihood that you will be deported back to South Korea as you are not an Australian citizen. Dr Gang submitted on your behalf that you had hoped to remain in Australia at least until the expiry of your current visa which is December 2026.[14]
[14] Prollink Partners, ‘Outline of Defence Submissions on Sentence’, Submission in CDPP v Seo, Wooseok, CR-24-00127, 17 July 2024, 5 [22] (‘Defence Submissions’).
52It was submitted on your behalf that the threat of deportation represents ‘extra-curial punishment by making any sentence more onerous’.[15]
[15] See Ibid.
53Mr Sprague, who appeared for the Commonwealth Director, submitted that limited weight should be given to this matter in your case as you planned to return to South Korea after your studies in any event.[16]
[16] Commonwealth Director of Public Prosecutions, ‘Prosecution Submissions on Sentence’, Submissions in CDPP v Seo, Wooseok, CR-24-00127, 18 July 2024, 8 [52] (‘Prosecution Submissions’).
54The authorities are clear. A court can take into account, in mitigation of sentence, the anxiety you will face about your future risk of deportation while in custody.[17]
[17] Guden v The Queen (2010) 28 VR 288, 9 [25]-[27].
55While your case is not one where deportation of an offender will deprive their family in Australia of a breadwinner, I still conclude that some modest mitigatory weight should be given to the uncertainty you will endure as a result of your incarceration.
56As noted, you suffer from back, neck and knee injuries for which you have been receiving treatment. I accept your counsel’s submission that this will make any period of incarceration more difficult for you than would be the case of a person without those injuries.[18] While this does not mean that the sentence I impose should automatically be moderated, I have taken it into account as part of your personal circumstances.
[18] Medical Report 1; Medical Report 2.
Prospects of Rehabilitation – s 16A(2)(n)
57Your lack of prior convictions, genuine remorse, plans for the future and supportive friends are positive considerations. I accept that, in light of these matters, you have good prospects of rehabilitation.
Comparable Sentences
58A court sentencing for a Commonwealth offence must have regard to national sentencing comparatives.[19] Decisions of intermediate appellate courts provide yardsticks which may illustrate but not define the possible range of available sentences.
[19] R v Pham (2015) 256 CLR 550.
59The prosecution referred the court to a number of money laundering cases which I accept are comparable.[20] I have considered each of these noting that the amounts involved ranged from $432,000 up to $902,000 and the periods of imprisonment to be served (under either a recognisance release order or a non-parole period) ranged from 9 months to 1 year and 10 months.
[20] Van Eeden v The Queen [2012] NSWCCA 18; CDPP v Dao [2023] VCC 762; R v Yi-Hua Jiao [2015] NSWCCA 95; Nguyen v The Queen [2019] NSWCCA 44; R v BDP [2022] QCA 32; and Singh v The Queen [2018] NSWCCA 60.
60The exception was the case of BDP in which the offender was released immediately on appeal in respect of a s 400.9 offence involving in excess of $900,000.[21] However, the offender in that case had provided significant cooperation to authorities leading to eight others being prosecuted.
[21] R v BDP [2022] QCA 32.
Submissions of the Parties
61The prosecution helpfully submitted that the appropriate sentence is one of imprisonment which should involve a period of immediate imprisonment to be served before release. Mr Sprague conceded that it is open to the court to release you on either parole or on a recognisance release order.[22]
[22] Prosecution Submissions (n 16) 1 [2].
62The prosecution submits that there should be some cumulation between the sentences for the two charges to reflect the separate and additional criminality involved while having regard to the principle of totality.
63Your counsel submitted that ‘it would be appropriate to impose a term of imprisonment of less than 12 months, to be released on a Recognisance Release Order after serving some months of imprisonment’.[23]
[23] Defence Submissions (n 13) [27]
Orders
64Taking into account the objective seriousness of your offending, and giving full weight to the various matters of mitigation discussed earlier in these reasons, I make the following orders:
(a) On Charge 1, engaging in conduct in relation to money that is proceeds of general crime, you are convicted and sentenced to imprisonment for 2 years and 6 months commencing on 14 August 2024;
(b) On Charge 2, dealing with money reasonably suspected of being proceeds of indictable crime, you are convicted and sentenced to 6 months’ imprisonment commencing on 13 November 2026.
(c) After cumulating 3 months of the sentence on Charge 2, the total effective sentence is therefore 2 years and 9 months.
65I make an order under s 20(1)(b)(i) of the Crimes Act 1914 that you be released after serving 1 year and 2 months upon entering into a recognisance in the sum of $2,000 to be of good behaviour for a period of two years;
66If you fail to comply with this condition without reasonable excuse you may be brought back before the court and the order may be revoked and you may be re-sentenced.
67I make the forfeiture order pursuant to s 48 of the Proceeds of Crime Act 2002 (CTH) noting it is not opposed.
68Finally, pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that, but for your pleas of guilty, I would have sentenced you to a total effective sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 4 months.
0
12
0