CDirector of Public Prosecutions v Shi
[2022] VCC 938
•17 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-02555
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
ROLAND SHI
---
JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2022 | |
DATE OF SENTENCE: | 17 June 2022 | |
CASE MAY BE CITED AS: | CDPP v Shi | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 938 | |
REASONS FOR SENTENCE
---
Subject:Plea – sentencing
Catchwords: Deal with money or other property suspected of being proceeds of crime worth $100,000 or more - deal with money or other property suspected of being proceeds of crime worth less than $100,000 - possess controlled drug
Legislation Cited: Criminal Code (Cth)
Cases Cited:R v Ansari [2007] NSWCCA 204
Sentence: 3 months' imprisonment + 24-month Community Correction Order
---
APPEARANCES: | Counsel | Solicitors |
| For Commonwealth Director of Public Prosecutions | Ms Z. Hough | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr D. Dann QC | Amad Lawyers |
HIS HONOUR:
1Roland Shi, you have pleaded guilty to:
(i)one charge of dealing with money or other property reasonably suspected of being the proceeds of crime worth $100,000 or more, for which the maximum penalty is three years' imprisonment or 180 penalty units or both;
(ii)one charge of dealing with money or other property reasonably suspected of being the proceeds of crime worth less than $100,000, for which the maximum penalty is two years' imprisonment or 120 penalty units or both;
(iii)three charges of possessing a controlled drug, for each of which the maximum penalty is two years' imprisonment or a fine of 400 penalty units or both.
2You are presently 29 years of age, having been born in January 1993. You were aged 27 years when the offending occurred in March and July 2020.
3You have admitted a prior criminal history, although only of one offence for which you appeared at the Melbourne Magistrates' Court in February 2013 when you were aged 20, and that was dealt with by way of a diversion with no conviction resulting. I ignore that entirely for the purposes of sentencing you.
4The facts of the charges are set out in the prosecution opening for plea dated 28 April 2022, which became Exhibit A on the plea hearing. That document was read out during the plea hearing; the facts contained in it are not disputed.
5They may be summarised briefly as follows: On 4 March 2020 shortly after 2.00 pm, you were observed by officers of the Australian Criminal Intelligence Commission at a meeting with a co-offender named Zibin Cai at an agreed rendezvous at a street in Burwood. You were driving a black Toyota Hilux registered in your name. After conversing with Cai briefly you returned to your vehicle, he returned to his vehicle and the two of you drove in convoy to another street nearby.
6There, you removed a Calico bag from your vehicle and handed it to Cai. The bag was apparently heavy enough to require you to use both hands to carry it. Cai then drove away with the bag and entered a motel at Box Hill where he was arrested by officers of the Australian Federal Police a short time later. He was in possession of the same Calico bag that you had handed him a short time earlier.
7It was found to contain $395,510 in Australian currency and four mobile phones, one of which was a so-called Ciphr phone equipped with security features designed apparently to protect the user from being tracked and from the interception and inspection of communications to and from the phone. However, police did subsequently retrieve data from the Ciphr phone revealing a series of message communications between Cai, who was using the code name 'Wolverine', and you, who were using the identifier code 'Alpac168'. The messaging commenced on 3 March 2020 and concluded on 4 March 2020 soon after you had handed the Calico bag to Cai.
8I am satisfied beyond reasonable doubt that your final communication to Cai, 'Thanks, 400 passed', shows you had a belief that the bag contained $400,000. The messaging also revealed that both you and Cai had prior knowledge of and employed a means of ensuring that the cash was handed to the correct person. That involved reference in the messaging to a 'token' in the form of an image of an Australian $5 note, which was sent by Cai to you showing the serial number of the note. That note was later found in your possession when you were arrested on 9 July 2020. It is to be inferred that the note was passed to you by Cai when you handed the Calico bag to Cai on 4 March 2020.
9On 9 July 2020, police executed search warrants at your home and on your Hilux motor vehicle. The following items were seized in the course of searching both your home and that vehicle:
(a) a $5 Australian dollar note with the same serial number as that depicted in the image of the $5 note sent to you by Cai either late on 3 March 2020, or early on 4 March 2020 (found in your Hilux vehicle);
(b) five Mickey Mouse-shaped tablets found in a dresser drawer in your bedroom, which were found to contain .4 of a gram of MDMA and/or less than 1 gram of ketamine (Charge 3);
(c) a small Ziplock bag of white powder found in a dresser drawer in your bedroom which was found to contain .7 of a gram of cocaine (Charge 4);
(d) six Kingpen-branded cannabis oils found in the dresser drawer in your bedroom which were found to contain 3.09 grams of THC (Charge 5);
(e) $10,400 in Australian currency was found in a dresser drawer in your bedroom (Charge 2);
(f) a grey coloured cash-counting machine was located in the wardrobe of your bedroom;
(g) a white envelope containing information relating to the purchase of your Hilux motor vehicle was in the computer desk in your bedroom;
(h) three mobile phones were located on the computer desk in your bedroom, one of which was a Ciphr phone.
10During the search of the premises and the black Hilux, you were also cautioned, and you made some statements to the police during the period of the search. You told police that you were the owner of the Ziplock bag of white powder, the five Mickey Mouse tablets and the six Kingpen-branded cannabis oils found in your bedroom drawer. You told police that you were the owner of the $10,400 in cash, stating that you had earned it through employment as an electrician, but were unable to provide any documentation of receipt of the cash. You indicated that you were the owner of the Hilux but declined to comment on the $5 note with the serial number identical to that which was the subject of the transmitted image sent to you by Cai on 3 or 4 March 2020. You declined to comment regarding the cash-counting machine in your bedroom wardrobe and were apparently unable to provide the PIN for the silver and black Samsung phone and the Ciphr phone that were found in your bedroom.
11On 21 July 2021 you participated in a formal record of interview but provided no comment to answers concerning the offending.
12I am satisfied beyond reasonable doubt that your coded communications with ‘Wolverine’, that is Cai, through the medium of his Ciphr phone, your possession of a Ciphr phone and your prior knowledge of and use of the $5 note as an identifying 'token' to facilitate the transfer of the money to the intended recipient indicates a level of pre-planning and a degree of sophistication in the execution of your role as courier in what you must obviously have realised was a wider criminal enterprise.
13I do not sentence you on the basis that you had knowledge that the money the subject of either of Charges 1 and 2 was the proceeds of crime, or that you were reckless or even negligent as to that fact. As your counsel has pointed out, the requisite test for the commission of the offences to which you pleaded guilty is an objective one. Nor is there any evidence to suggest that you had any knowledge or belief as to the nature of the criminality involved in any wider criminal enterprise associated with the task that you were performing. But I am satisfied beyond reasonable that you knew that your conduct in relation to both Charges 1 and 2 was unlawful and, in that knowledge, you fulfilled your role for financial reward.
14The role of a courier of cash in such an enterprise is clearly to protect other more culpable offenders and prospective beneficiaries from identification. The role necessarily exposes the courier to greater risks of detection. It is to be expected that persons without previous criminal convictions may be selected to act as couriers to reduce the risks of detection and loss of the proceeds of crime or the money to which the offence relates.
15Turning to matters personal to you, you are now aged 29 years of age and you were aged 27 at the time of the offending. To all intents and purposes you have no prior convictions and you come to this Court as a person of past good character.
16I have been provided by your counsel with an outline of submissions dated 25 May 2022, which is Exhibit 1, and a number of letters from persons who know you well and speak of your many good personal qualities, your engagement in martial arts, your expressions of remorse and your steps toward rehabilitation. Those letters are collectively Exhibit 2.
17I have also been provided with a report from Mr Newton, psychologist, dated 16 May 2022 which was marked as Exhibit 3 on the plea. That report provides useful information about your family and educational background, your history of drug and alcohol abuse, and your employment history. I note that you told Mr Newton that the commission of these offences arose out of a period of financial strain caused by a combination of expensive indulgence in illicit drugs and a downturn in employment arising from the Covid pandemic.
18It is not suggested that you have any mental disorders capable of engaging any of the Verdins principles.
19At paragraph 32 of Mr Newton's report, he said this:
“By way of background, Mr Shi told me that his offending had arisen out of a period of significant financial strain. He explained that his drug use had already placed substantial strains upon his financial situation. These problems became more intense when the COVID-19 pandemic resulted in a downturn in his employment. Mr Shi stated that he had become increasingly resentful of the financial strains he was under so that when the ‘opportunity’ to participate in the offending arose, he had chosen to do so notwithstanding his misgivings”.
20In the following paragraph, Mr Newton goes on to say this:
“When asked for his response to the offending, Mr Shi said:
I don't ever want to have this trouble again. It was the wrong thing to do. I was mixed up in the wrong crowd. Hindsight is always 20/20, at the time I was just focused on the job. I know I shouldn’t have done it and I regret it 100%. I feel I have learnt through it. Like it's what life had in store for me. I know what I was assisting with is really serious. It's not the man I want to be'.”
21As I indicated to your counsel, that expression of remorse and other expressions of remorse that are evidenced in the various references that are provided the subject of Exhibit 2 on the plea also speak of your remorse. I am prepared to accept that you are remorseful, perhaps even ashamed of your conduct.
22Now, I drew your counsel's attention to a passage from the letter of Delanna Nguyen where the writer says on 5 March 2020:
“Roland had called me in an extremely sodden tone, a tone I had never heard before. It took a lot of courage for him to even begin to recite the events that happened leading up to the day before [meaning the day of the offence the subject of Charge 1]. He was deeply ashamed and mostly regretful that he found himself in a position that he and I would never think he would ever be in. Roland has always been an honourable and honest person to anyone he crossed paths with, and I think this trait is simply demonstrated by the fact he had pleaded guilty at the very beginning of this process”.
23I also pointed out that that sentiment is strained somewhat by the fact that you pleaded guilty to Charge 2, which occurred some weeks later on 9 July 2020 and involved a not inconsiderable sum of $10,400.
24Your counsel drew my attention to a number of matters of mitigation and to your background history. Your parents were born in Shanghai. You were born in Melbourne and raised in Ashburton. Your parents arrived in Australia in 1990, just two or three years prior to your birth.
25Your upbringing was difficult in many respects. Your father had a gambling problem and was violent towards all members of the family. Your parents separated when you were about four years of age, but subsequently reunited. No other family members have been in trouble with the law. You have a brother living in Tokyo, Japan and working as a translator.
26You were educated in schools in and around Melbourne to Year 12; you completed Year 12. By the time you got to Year 12 you had fallen in with a crowd who encouraged your use of illicit substances. Nevertheless, you were able to complete Year 12.
27You first worked at a call centre at Red Energy in Cremorne for 18 months, then at Origin Energy in the CBD for two years. Subsequent to that, you completed an apprenticeship as an electrician at a TAFE - a four-year course leading to your qualification as an electrician. You have worked as an electrician since that time.
28There was a downturn in your work as a result of the Covid lockdowns. Nevertheless, it seems to me that you have every prospect of continuing with a good work record. That is an encouraging sign for your further rehabilitation.
29You did plead guilty to these offences and indicated your plea of guilty at the earliest reasonable opportunity. There was no committal and there has been no trial. As your counsel rightly points out, I am required not just to give you credit for a plea of guilty, but to give you very significant greater credit for pleading guilty during the Covid pandemic. I note also that the prison regime is a tougher one than would be the case outside the confines of the COVID-19 period.
30I accept that you have shown remorse, albeit it seems to me subsequent to 9 July 2020. There has been a delay of two years since the offending, and you have not been in any trouble since.
31The letters of reference to which I have referred speak of your continuing rehabilitation. I accept that your prospects of rehabilitation are at least reasonable. I was urged by the prosecution to say that they were no better than guarded. I think there are some concerns about the degree to which you are susceptible to further drug abuse and the influence that that might have on the risk of your reoffending in some way or another. One hopes that you have learnt a considerable lesson from the detection of these offences. The drug offences are simply symptoms of the drug use that you were engaged in during the period of the commission of the offences the subject of Charges 1 and 2.
32In one of your letters of reference, from Mr Tommy Luong, he says on the second page:
“I've spoken to Roland on numerous occasions after his offence and I noticed that he understands his wrongdoing, the seriousness of his offences, and is deeply remorseful of his actions. I know he seriously regrets having committed these offences. I am confident that it was a momentary lapse in judgment and that he will not reoffend”.
33I cannot accept that this was a momentary lapse. You had adequate opportunity to consider and reconsider whether to become involved in Charge 1. You did it for reward. You had adequate time to reflect on your involvement in Charge 1 before 9 July 2020.
34The prosecution provided me with an outline of prosecution sentencing submissions, which is Exhibit B at the plea hearing. That is dated 27 May 2022. Counsel expanded on certain parts of those submissions. I am bound by the Commonwealth sentencing legislation to impose sentences that are of an appropriate severity in all the circumstances and which punish you adequately for your offending. There are a number of matters that are potentially mitigatory which I must also take into account, as well as other aspects of sentencing which might bear upon a more severe sentence, in particular, the need in a case such as this for general deterrence.
35In paragraph 5 of the prosecution sentencing submissions, the submissions read:
Section 400.9 is part of a hierarchy of offences referred to as “money laundering”, contained in Chapter 10 of the Criminal Code. The offences were introduced in 2002 to more accurately reflect the different levels of criminality and culpability involved in such conduct. It has been observed that all money laundering offences should be regarded as serious, because of the assistance they provide to other organised criminal activity.”
36I note that the offences to which you have pleaded guilty under s400.9 are towards the bottom end of the hierarchy and do not require proof of a subjective knowledge, belief, or even negligence as to the fact that the money concerned is the proceeds of crime.
37The relevant sentencing principles for money laundering offences are set out in paragraph 6 of the prosecution submissions. The prosecution has drawn upon decisions of the Courts of Appeal in New South Wales and Victoria in the way they have set out those submissions as to the principles that need to be applied. And they are these:
“(a)The statutory scheme has a graduated series of offences varying in gravity depending on the value of the money or property and the offender’s state of mind.
“(b)The maximum penalty reflects the offender’s mental state concerning the source of the money for offences involving proceeds of crime, and what has to become of the money for offences involving instruments of crime.”
Again, I have been cautioned by your counsel, and quite rightly, that I have to be very careful about how I deal with the question of your state of mind given that the elements of the offence require only an objective test as to whether the sums of money involved is reasonably suspected of being the proceeds of crime.
“(c)The amount of money involved is a highly significant matter and the primary identifier of maximum penalty for an offence.
“(d)The number of transactions and the period over which they occur are significant in indicating the extent of criminality. Generally, multiple small transactions are more serious than a single large transaction as the latter may be seen as an isolated offence.”
So far as Charge 1 is concerned, that is quite separate in time from Charge 2, and I do not see them as being a series of offences. They are to be regarded therefore as separate, relatively isolated offences. Although the events of 3 and 4 March show that there was some degree of pre-planning and some degree of sophistication in the manner in which you were engaged to and carried out your role as a courier in this case.
“(e)Money laundering is a serious criminal activity warranting a severe punishment, in part to give effect to significant general deterrence.”
I regard that as being a significant factor in a case such as this.
“(f)The prior good character of an offender may be less significant where they have engaged in this conduct for profit over a significant period of time and for a large number of transactions.”
That does not apply to you. Although it is accepted by you that you engaged in this conduct, particularly in relation to Charge 1, for profit.
“(g)Knowledge of the illegality of the conduct increases the seriousness of the offending.”
38I was careful to point out that I am not sentencing you for any suggested knowledge of the underlying criminality which gave rise to the sum of almost $400,000. I am not sentencing you for belief as to that, or to recklessness in relation to that, or even negligence in relation to that. I am sentencing you purely for the offence that you have pleaded guilty to, namely the offence involving the objective assessment of being reasonably suspected of being the proceeds of crime, which does not involve you turning your mind to that particular question. However, I have also concluded beyond reasonable doubt that whatever your state of mind might have been in relation to the underlying offending, or whatever your state of knowledge might have been, if any, that you knew that what you were doing was wrong, you knew it was illegal, and you participated in it covertly after some pre-planning for profit.
39I have also had my attention drawn to the useful statement of Justice Howie in R v Ansari[1] and the references given in the documents. I am not going to read it out, but that too helps focus the mind on the process of sentencing in a case such as this.
[1][2007] NSWCCA 204
40Ultimately, the prosecution submission is that taking all factors into consideration, the only appropriate disposition, at least so far as Charge 1 is concerned, is a term of imprisonment, that that should involve a release upon a recognisance release order or that it is an appropriate exercise of the court's discretion to do so and, and this was underscored by oral submissions today, that a period of actual custody is required.
41Your counsel has argued to the contrary and quite rightly drawn my attention to a number of cases which are broadly comparable. No two cases are the same, obviously, and he acknowledges that. He has articulately pointed out to me that this is a case which is pretty much on the brink. I have had to think very long and hard as to whether I need to impose a term of immediate incarceration in your case. Given the amount of money involved and given the degree of forethought, pre-planning, albeit over a short period of time, and your opportunity to consider and reconsider whether to commit the offence the subject of Charge 1, I am driven to the conclusion that I need to impose a term of imprisonment, albeit a short one to fulfill the need for general deterrence.
42I have however, reduced that sentence from what I would otherwise regard as being an appropriate sentence as a result of the various matters in mitigation, not least of which that you pleaded guilty to these offences in these Covid times, and did so at an early stage. You have made some considerable progress in your rehabilitation and you have shown remorse albeit in more recent times. It is also necessary for me to punish you for the offences the subject of Charges 2, 3, 4 and 5, although I do not regard those offences as sufficiently serious to warrant a term of imprisonment. I am persuaded that I can properly deal with those by way of a community correction order.
43Mr Shi, I am ready to pass sentence upon you. Would you please stand.
44For the offence the subject of Charge 1, you are convicted and sentenced to imprisonment for a period of three months. This sentence starts today.
45For the offences the subject of Charges 2-5 inclusive on the indictment, you are ordered with conviction to serve a community correction order for a period of two years.
46I cannot impose that sentence unless you consent to it, and I need therefore to read the proposed terms of the order to you so that you can determine whether you are prepared to consent to an order of that kind.
47The community correction order commences immediately upon your release from prison and ends two years from that date.
48The correction centre that you will attend is the Dandenong Community Correctional Services at 46-50 Walker Street Dandenong, and you must telephone there within two clear working days after the completion of your term of imprisonment. You must telephone there because due to the Covid pandemic you cannot at this stage attend in person.
49All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer during the period of the order;
· you perform 200 hours of unpaid community work as directed by the regional manager;
· you undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager.
· you undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager;
· you participate in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manager.
50I further order that 100 hours of treatment rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. In other words, you have the capacity to reduce the 200 hours of unpaid community work down to 100 hours if you complete satisfactorily the rehabilitation courses or hours in which you are required to participate.
51I believe that you have had the mandatory terms of a community correction order explained to you probably on more than one occasion, but I will just go through them again. The mandatory terms of the order are that:
(i)you must not commit another offence for which you could be imprisoned during the time that the order is enforced, that is for a period of two years after the completion of your sentence;
(ii)you must comply with the requirements of regulation 17 of the Sentencing Regulations, which essentially set out obligations as to your attendance at the Community Correctional Centre and things such as not attending drug or alcohol affected;
(iii)you must report to and receive visits from a community corrections officer;
(iv)you must report to the Community Corrections Centre, that is the Dandenong centre within two clear working days of the order starting, and as I have already indicated, that means within two clear working days after the completion of your term of imprisonment;
(v)you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
(vi)you must not leave Victoria without first getting permission to do so from a community corrections officer; and
(vii)you must obey all lawful instructions from and directions of a community corrections officer - such directions may be given orally or in writing.
52Do you understand all those conditions?
53OFFENDER: I understand, Your Honour.
54HIS HONOUR: Are you willing to abide by those conditions?
55OFFENDER: Yes, Your Honour.
56HIS HONOUR: If you are ill or if there are exceptional circumstances, the order may be suspended for a period of time. And if your circumstances materially alter, you may apply for a variation or cancellation of the order. In either case, you must notify the Dandenong Community Corrections Centre. I recommend that you get some legal advice and assistance if that situation arises.
57However, I must warn you that if you do breach any condition of this order, you will be brought back before this court, probably before me, and one of the options open to me (or another judge of this court) is to cancel the community correction order and resentence you for the original charges for which the order was made, that is Charges 2-5 inclusive. And I (or another judge of this court) may also deal with you for the breach of the order. That alone carries a maximum term of three months imprisonment. So, do you understand the consequences for breaching the community correction order?
58OFFENDER: Yes, Your Honour.
59HIS HONOUR: In that case, I will now ask you to sign the order and if your solicitor or counsel would perhaps accompany my Associate to the back of the court just to make sure that you fully understand what you are being asked to sign, and you can also check the terms of the order.
60Mr Shi, I indicate again that your term of three months’ imprisonment will begin today.
61I declare pursuant to s6AAA of the Sentencing Act 1991 Victoria, that but for your pleas of guilty the total effective sentence that would have been imposed is 12 months' imprisonment with a recognisance release order with your release after serving eight months' imprisonment.
62There might have been some ancillary orders, are there any?
63MS HOUGH: Yes, Your Honour, I understand there's a forfeiture order by consent.
64HIS HONOUR: Is the forfeiture order by consent?
65MR DANN: Yes, Your Honour, for money and the phone.
66HIS HONOUR: Have you got a copy for me to sign?
67MS HOUGH: For the money that is the subject of Charge 2 and the phone. It's been signed and I hand that up.
68HIS HONOUR: Yes, you can take a seat for the moment, Mr Shi.
69There seems to be a little confusion, at least on our part, as to whether the order is appropriate or properly drawn. Is this something that - it's not an order, no. Perhaps I can allow you to go away and consider the position and obviously communicate with Mr Dann and if agreement can be reached as to an appropriate order, then provided I am satisfied also that it is an appropriate order, I'll sign it. But I don't think it is in a form that is appropriate at the present time.
70MS HOUGH: Yes, Your Honour.
- - -
0