CDirector of Public Prosecutions v Tan & Chin
[2024] VCC 1273
•16 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00209
CR-24-00306
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHEE ONN TAN |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 31 May 2024 | |
DATE OF SENTENCE: | 16 August 2024 | |
CASE MAY BE CITED AS: | CDPP v Tan & Chin | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1273 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Recklessly engaging in conduct on two or more occasions in relation to proceeds of general crime valued at or more than $1,000,000 – Tier 2 offence – Money laundering syndicate – Laundering through traditional banking and cryptocurrency.
Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 17A; Criminal Code 1995 (Cth), s 400.3(2B); Sentencing Act 1991, ss 6AAA, 18.
Sentence: Tan: 4 ½ years’ imprisonment with a non-parole period of 2 ½ years.
Chin: 2 years and 10 months’ imprisonment to be released after serving 22 months on a recognisance in the sum of $1,000 to be of good behaviour for a period of 2 years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr G. Buchhorn | Office of Public Prosecutions (Cth) |
| For Accused Tan | Ms S. Joosten | Nelson Brown Legal |
| For Accused Chin | Ms A. Liang (Plea) Ms M. Yousif (Sentence) | Giorgianni & Liang Lawyers |
HIS HONOUR:
Introduction
1Mr Tan and Ms Chin, you have each pleaded guilty on separate indictments to a single charge of recklessly engaging in conduct on two or more occasions in relation to proceeds of general crime valued at or more than $1,000,000, contrary to s 400.3(2B) of the Criminal Code (Cth).
2The maximum penalty for that offence is 12 years’ imprisonment or 720 penalty units, or both.
3It is alleged that both Mr Tan and Ms Chin participated in a broader money laundering syndicate to launder money which was the proceeds of general crime controlled by other associated criminal syndicate members, whose identities are unknown. On more than one occasion, each collected large amounts of cash from the alleged leader of the syndicate and deposited that money into various bank accounts in their names or in the names of others. In addition, Mr Tan also laundered funds through cryptocurrency.
4The offending period for Mr Tan was approximately five months between 13 August 2022 and 16 January 2023, during which he laundered a total of $5,155,792. Of that amount, $4,661,792 was laundered through Binance cryptocurrency conduct and $494,000 was laundered through traditional banking conduct. At the relevant time, Mr Tan, a Malaysian national, was aged 27 and residing in Australia on a temporary activity visa.
5The offending period for Ms Chin was approximately one month between 22 December 2022 and 19 January 2023, during which she laundered a total of $2,195,000 through traditional banking conduct. At the relevant time, Ms Chin, also a Malaysian national, was aged 31 and residing in Australia on a bridging visa.
Circumstances of the offending
6I have already briefly noted by way of introduction, the essence of the offending in which Mr Tan and Ms Chin were involved.
7The circumstances in which each of them committed the offence that they did is more fully set out in the amended typed Summary of Prosecution Opening for Plea,[1] which each defence counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes.
[1] Dated 29 April 2024 (exhibit A).
8I have been mindful that the prosecution opening is a wide ranging analysis of the nature and extent of the syndicate’s operations and sometimes makes reference to events, circumstances and even some people that neither Mr Tan nor Ms Chin had anything to do with. Thus, whilst the opening provides the necessary context in which to view an accused’s conduct, it is important to keep it in a proper perspective when considering the charge faced by and appropriate penalty for that accused, whether it be Mr Tan or Ms Chin. This court has therefore been astute to avoid sentencing either accused on any wider or different basis to that on which they have been indicted.
9I also note that the basis and explanation for the offending engaged in by each accused was, to some extent, discussed during the course of the plea hearing.
10To the extent that they are relevant, I have had regard to that opening and to those discussions when determining the appropriate sentence in each case.
11For present purposes, it is sufficient to provide the following outline of the offending.
12In September 2022, Victoria Police commenced an operation into this money laundering syndicate. As a result, each of you were identified as being a part of the syndicate’s operations.
13To the extent known, the other syndicate members and their alleged roles were as follows.
14Toung Choo (‘Choo’), a Malaysian national, was the syndicate’s leader. At the relevant time, he was residing in Australian on a bridging visa.
15Chee Kan (‘Kan’), a Malaysian national, was a close associate of Mr Choo. He too was residing in Australia on a bridging visa at the relevant time.
16Mr Choo’s brother, Huat Choo (‘Huat’), is also a Malaysian national and was residing in Australia on a student visa at the relevant time.
17Other individuals linked to the syndicate included Yu Kee (‘Kee’), known as ‘Justin’ and Max Chong (‘Chong’). Each of them was an associate of Choo’s and resided in Malaysia.
18The money laundering syndicate followed an established and repetitive pattern and operated on multiple days each week. An associated crime syndicate would first obtain cash through various illegal activities in Australia and then make contact with one of Choo’s associates in Malaysia, including Justin or Chong, for the purpose of laundering the cash they had obtained from their illegal activities. Justin or Chong would then make contact with Choo to confirm his willingness and ability to launder a specific amount of cash on behalf of the associated crime syndicate in exchange for a fee. If Choo was willing and able, Justin or Chong would then provide him with the following information:
·The total exact amount to be laundered;
·The date on which the cash would be delivered to Choo;
·The account details (believed to be cryptocurrency accounts controlled from overseas) into which the money would ultimately need to be transferred;
·The contact mobile number for the delivery person who would be responsible for delivering the cash to Choo on behalf of the associated crime syndicate; and
·A unique ‘token’, being a combination of numbers and letters derived from a photograph depicting the unique serial number of a bank note in the cash to be laundered, which Choo would need to give to the delivery person to authenticate their identity at the exchange.
19In due course, Choo would contact the delivery person and make arrangements for the delivery of the cash. The location would usually be a public place and most often occurred in Port Melbourne, near Choo’s residence.
20Depending on the instructions he had been given, including how quickly the cash needed to be laundered, Choo would then determine which member (or members) of the money laundering syndicate to involve, which bank and cryptocurrency accounts to use, and the specific amounts to be processed by each person.
21Choo would then contact the chosen members of the syndicate to confirm their willingness and ability to process the transactions in exchange for a fee. These members included Mr Tan and Ms Chin.
22Choo would then provide the willing and able members with the necessary information relating to their collection of the cash from Choo, including the time and location of the cash transactions and the exact amount of cash to be laundered in each transaction.
23The cash would then be deposited at a bank via a bank teller or an ATM, or through Australia Post.
24The bank accounts into which the cash was deposited were either in the name of the respective member of the syndicate, another member of the syndicate or another person who had relinquished control of their bank account to the syndicate in exchange for a fee.
25Choo and other syndicate members would then transfer the deposited money from the various bank accounts into a Binance account controlled by a member of the syndicate. Binance is a cryptocurrency exchange platform.
26The deposited money would then be used to purchase US Dollar Tether (USDT) cryptocurrency on the Binance platform. The syndicate member who operated the relevant Binance account,[2] would then finally transfer the purchased USDT to a third-party cryptocurrency account believed to be controlled by one of Choo’s associates in Malaysia.
[2] Including Mr Tan on some occasions.
27The police investigation involved surveillance operations and intercepted phone calls and text messages. Under warrant, police obtained various bank statements relating to Choo and other syndicate members, including Mr Tan and Ms Chin.
Mr Tan’s offending conduct
28In relation to the offending conduct of Mr Tan, evidence determined that he had attended various banks and deposited large amounts of cash with bank tellers into accounts in his name and those in the names of Choo and other associates.
29As of January 2023, Mr Tan had six Australian bank accounts in his name.
30And, on 6 June 2022, Mr Tan opened a registered Binance account linked to his mobile phone number.
31During the relevant intercepted communications between Choo and Mr Tan, the following occurred:
·Choo asked Mr Tan if he was able to travel to collect large sums of cash in exchange for a “fee” or “remuneration”, including collecting $400,000 from Sydney and $1 million from Perth;
·Discussions regarding depositing large sums of cash, ranging from $9,900 to $100,000 into various bank accounts across different banks on behalf of different people;
·Discussions regarding preferring some banks over others because of “problems” such as “CCTV recording”;
·Discussions regarding cash deposit limits which could trigger a bank account being “frozen”, “blocked” or “closed” and taking steps to avoid that occurring;
·Discussions regarding other associates depositing sums of cash into other accounts and some problems faced by those persons in doing so;
·Discussions involving topping up Binance accounts with large sums of money; and
·On one occasion, Mr Tan told Choo that he could not “work” because his accounts had been “blocked” and that the most he could do was $10,000.
32It is not in dispute that the intercepted phone communications demonstrate that Choo discussed money laundering conduct with Mr Tan and other associates, and also confirmed that Mr Tan’s mobile phone was being used by Mr Tan himself.
33The cash deposits made by Mr Tan can be summarised as follows:
·Between 15 August 2022 and 1 December 2022, a total of $304,800 was deposited at the Commonwealth Bank branch in Port Melbourne, over four transactions;
·On 4 October 2022, $100,000 was deposited at the Commonwealth Bank branch on Collins Street, Melbourne, in one transaction;
·On 2 November 2022, $20,000 was deposited at the Commonwealth Bank branch at the Melbourne Central Shopping Centre, in one transaction; and
·Between 13 December 2022 and 12 January 2023, $69,200 was deposited at the Suncorp branch on Collins Street, Melbourne, over two transactions.
34Ms Du, I will ask you just to unmute. Is there a difficulty with what is occurring in respect of Mr Tan.
35INTERPRETER: Yes, sorry, Your Honour. I think Mr Tan is experiencing some tech difficulties, like, he has some issues with hearing me, but I can hear him perfectly. I hear you perfectly. I don't know, do I - - -
36HIS HONOUR: Sorry, just a moment. You can hear him perfectly.
37INTERPRETER: Yeah, I can.
38HIS HONOUR: But he's saying he can't hear you perfectly.
39INTERPRETER: Yeah, yeah.
40HIS HONOUR: Alright.
41INTERPRETER: I can hear you perfectly as well, no problem.
42HIS HONOUR: Can you just ask him how much difficulty he's having.
43INTERPRETER: Oh, he can hear me now.
44HIS HONOUR: Alright. Ms Joosten, are you content if I simply proceed.
45MS JOOSTEN: Yes, Your Honour.
46HIS HONOUR: Just mute yourself again, Ms Du, and we'll continue.
47INTERPRETER: Sure. Thank you.
48HIS HONOUR: I am at paragraph 34 now.
49Thus, Mr Tan’s use of traditional banking can be summarised as follows: he deposited a total of $494,000 into four different bank accounts via eight separate transactions which spanned the five month period between mid-August 2022 and mid-January 2023.
50In relation to Mr Tan’s involvement in the Binance platform, an analysis of his Binance account showed the following.
51In the period between 12 August 2022 and 23 January 2023, 132 cash deposits totalling approximately $4,660,742 were made into Mr Tan’s Binance account. Of that amount, $650,737 in USDT (valued at approximately AU$984,707) was deposited over 61 transactions while 3,676,035 in Australian dollar fiat currency was deposited over 71 transactions. I note that the prosecution case for the charge against Mr Tan does not rely on any of these deposits. Rather, insofar as Mr Tan’s Binance account is concerned, the prosecution case is confined to the withdrawals he made from that account, in the following circumstances.
52In the period between 13 August 2022 and 16 January 2023, Mr Tan withdrew $3,089,750 in USDT (valued at approximately AU$4,661,792) from his Binance account over 101 transactions. On each occasion, he used his own mobile phone number as part of the two-factor authentication process required to authorise the withdrawal of funds from that Binance account. On each occasion that money was deposited into the account, Mr Tan withdrew it shortly afterwards and then transferred it to a third-party cryptocurrency account.
Ms Chin’s offending conduct
53In relation to the offending conduct of Ms Chin, the evidence demonstrated that she attended various banks and deposited large amounts of cash with bank tellers into accounts in her name as well as into other accounts in the names of Choo and other associates.
54As of January 2023, Ms Chin held a total of 15 Australian bank accounts in her name.
55In summary, the traditional banking engaged in by Ms Chin can be summarised as follows: in the approximately one month period between 22 December 2022 and 19 January 2023, Ms Chin attended eight different bank branches and made 48 deposits totalling $2,195,000.
56More particularly, those cash deposits occurred in the following circumstances:
·Between 22 December 2022 and 13 January 2023, $906,600 was deposited at the Suncorp branch on Collins Street, Melbourne, over 10 transactions;
·Between 28 December 2022 and 3 January 2023, $75,000 was deposited at the Bendigo Bank branch on Collins Street, Melbourne, over three transactions;
·Between 30 December 2022 and 9 January 2023, $140,400 was deposited at the Bendigo Bank branch in Clifton Hill, over five transactions;
·Between 4 January 2023 and 12 January 2023, $370,000 was deposited at the Commonwealth Bank branch on Collins Street, Melbourne, over seven transactions;
·Between 9 January 2023 and 12 January 2023, $90,000 was deposited at the Bendigo Bank branch on Clarendon Street, South Melbourne, over three transactions;
·On 12 January 2023, $30,000 was deposited at the Bendigo Bank branch on Whitehorse Road, Balwyn, in one transaction;
·On 12 January 2023, $120,000 was deposited at the NAB branch on Collins Street, Melbourne, over four transactions; and
·Between 12 January 2023 and 19 January 2023, $463,000 was deposited at the Bendigo Bank branch on Union Road, Surrey Hills, over 15 transactions.
Arrest and interview
Ms Chin
57On 25 January 2023, Ms Chin was arrested at her residence and later interviewed with the assistance of an interpreter. She told the police the following, inter alia:
·When she was first introduced to Choo through a neighbour in late November or December 2022, she was working as an Uber Eats delivery driver;
·She sold approximately six bank accounts to Choo in exchange for cash, including existing bank accounts and ones that Choo helped her open;
·After selling the bank accounts, she did not access them again;
·Choo told her the reason for buying the bank accounts was “to do the Binance”, namely investing in cryptocurrency;
·She did not consider the legality of selling the bank accounts to Choo as “many other people [had] already sold their accounts to him”;
·A week after selling her accounts to Choo, he asked her to help him deposit cash into different bank accounts;
·Choo would message her on WeChat asking her to meet him at a bank branch. At the branch, Choo would then give her cash, the details of the bank account into which he wanted the cash deposited and, if using an ATM, a bankcard. She would then deposit the cash into the nominated account with a bank teller, or if after 5:00pm, into an ATM;
·On some occasions, Choo’s brother Huat would be present and take some of the cash to deposit into other bank accounts;
·She would tell the bank teller that she was depositing the cash for her “boss” and would provide her driver's licence when doing so;
·She engaged in this conduct about three or four times per week in December 2022 and January 2023 and deposited between $30,000 and $150,000 at a time and up to $700,000 per week;
·She received $150 on each of the days that she deposited cash for Choo, which she then used to buy “everyday necessities”;
·She admitted to depositing approximately “3 million” in cash for Choo;
·She stated that she did not know and never asked Choo where the money was coming from, however, she “[did]n’t feel right” depositing the cash and believed it was “dodgy” because of the frequency of the deposits and the large amount of cash being deposited;
·She agreed that she was depicted in CCTV footage at bank branches when cash deposits were made; and
·She claimed that Choo had opened a Binance account in her name without her knowledge but when she discovered that fact, she did not ask him any questions about it.
Mr Tan
58By way of a pre-arranged appointment, Mr Tan attended at the Melbourne West Police Station on 14 February 2023, where he was arrested and then interviewed by police.
59With the assistance of an interpreter and in the presence of a legal representative, Mr Tan exercised his right to silence and made a ‘no comment’ record of interview.
Pre-sentence detention[3]
[3] The respective periods of pre-sentence detention were confirmed in a prosecution email to the court dated 16 August 2024.
60I note that in each of your cases, Mr Tan and Ms Chin, you were charged and remanded in custody after being arrested and then interviewed.
61In respect of Mr Tan, who has remained in custody for this matter since he was charged and remanded, the total period of pre-sentence detention is 549 days up to but not including today’s date.
62In respect of Ms Chin, who has also remained in custody for this matter since the date on which she was charged and remanded, the total period of pre-sentence detention is 569 days up to but not including today’s date.
63I will declare those respective periods of pre-sentence detention later in these sentencing reasons.
Resolution and guilty pleas
64In respect of each of Mr Tan and Ms Chin, I accept that their plea of guilty was entered before committal and at a very early stage of these proceedings given the complexity of the investigation and preparation of the prosecution brief and the fact that, as part of the plea negotiations, the prosecution agreed to withdraw a more serious charge than the one on which each accused is now indicted.
65By pleading guilty as and when they did, each accused has saved the community from the cost of a contested committal and a trial and spared the witnesses from having to give evidence. The utilitarian value of each plea is significant.
66Whilst I am prepared to accept that Mr Tan’s plea of guilty provides some basis for remorse, it must also be said that the prosecution case against him was strong. That fact, together with Mr Tan’s underdeveloped level of insight into and understanding of the nature and seriousness of his offending,[4] leads me to conclude that such remorse as he does have is quite limited.
[4] See for example, the report of Ms Carla Lechner (exhibit CT-2).
67By way of contrast, I am satisfied that Ms Chin is genuinely remorseful in respect of her offending conduct based on her admissions to police, her very early plea, and the observations of the psychologist, Ms Gina Cidoni,[5] regarding Ms Chin’s remorse, genuine acknowledgement of wrongdoing and desire to address the underlying issues relating to her offending.
[5] Her report is dated 16 May 2024 and was tendered as exhibit WC-2.
Status of other alleged offenders
68For the sake of completeness, I note that at the plea hearing for this matter the court was informed that a number of other alleged members of this money laundering syndicate have been charged by police. Whilst they are now before the courts, they have yet to be found guilty let alone sentenced for the offending in which they are alleged to have engaged. In such circumstances, no issues of parity arise for consideration.
No criminal history
69I note that Mr Tan has no prior or subsequent criminal convictions or findings of guilt and that he therefore falls to be sentenced as a first time offender.
70Ms Chin is in an identical situation as she too has no criminal history whatsoever.
Personal circumstances
71I will now briefly outline the personal circumstances of each of the accused, commencing with those of Mr Tan.
Mr Tan
72Mr Tan, I note that you were born in April 1995. You are now aged 29 and were 27 at the time of your offending.
73You are an only child who was born and raised in Kuala Lumper, Malaysia. You do not know your father as he left your mother before you were born. You had limited contact with your mother who was often absent and has since passed away. Against that family background, you were effectively raised by your maternal grandparents with whom you still have a positive relationship. They continue to support you and remain in contact with your current partner, Ms Chew.
74You were raised in poor circumstances but treated very well by your grandparents, aunts and uncles. From age 10, you worked in their small restaurant after school.
75Although you felt somewhat socially isolated and found studying difficult, you managed to complete Year 11 and then obtain a certificate in Information Technology.
76On your account, you lost money to a cousin who ‘scammed’ you in relation to a proposed business opportunity. This led to a falling out with your grandfather,[6] and to you leaving the restaurant and working in a number of administrative and sales jobs over the next four years before coming to Australia in 2019, by which time you had accumulated debts.
[6] The two men have since reconciled.
77You travelled to this country at the suggestion of and with the financial backing of an aunt who lived in Singapore. You arrived on a tourist visa which was later converted to a student visa. You ultimately completed a business diploma in 2022. Whilst you were studying, you attempted to support yourself by working part-time as an Uber Eats delivery driver, however both you and your partner struggled financially during the Covid-19 period. I also note that you aspired to obtain a certificate to hold a license to run a brothel and to that end, were about to commence a three-month internship, when you were arrested and remanded for this offending.
78You met your now partner Ms Chew, who you refer to as your wife, via an online Chinese chat group, shortly after arriving in Australia. The two of you commenced to live together shortly afterwards. You have no children. She remains supportive of you and has visited you regularly while you have been held on remand.
79As a result of the Covid-19 pandemic and your inability to travel back home to Malaysia, you remained on a temporary visa in Australia which was linked to that emergency event. Whilst that event is no longer operative, the fact is that you are now in custody. Ms Chew is currently on a student visa and is awaiting the outcome of any future attempt to deport you before deciding on whether she will continue to pursue those studies in Australia.
80When you were assessed by the clinical psychologist, Ms Carla Lechner, on 17 April this year,[7] you told her that you are hoping you will not be deported at the completion of your sentence as, for you, Australia provides greater freedom and better employment opportunities.
[7] Her report is dated May 1, 2024 (exhibit CT-1).
81Whilst you were experiencing some symptoms of distress and depression reactive to your current environment and the shame associated with being imprisoned, you do not suffer from a diagnosed mental condition. Notwithstanding that, I accept Ms Lechner’s opinion that you would still likely benefit from psychological support.
82Whilst I have grave doubts about the veracity of the explanation you provided to Ms Lechner as to how you came to be involved in this offending, I am at least prepared to accept that your desire to make ‘easy money’ while facing financial difficulties, along with your relative immaturity and naivety, made you a fairly easy target for those who recruited you.
83As your counsel explained by reference to a number of course certificates[8] and a Local Prisoner Plan,[9] since being remanded in custody, you have used your time productively through further education, including vocational training and English classes.
[8] Tendered collectively as exhibit CT-4.
[9] Tendered as exhibit CT-5.
84Finally, I note that you have no history of drug or alcohol use, Mr Tan.
Ms Chin
85I will now outline your personal circumstances, Ms Chin.
86You were born in November 1991. You are now aged 33 and were 31 at the time of your offending.
87You were born and raised in Malaysia by your Chinese parents. You consider your childhood to have been unhappy. Your parents were very strict and did not allow you to go out or have friends. They also engaged in regular arguments which you found upsetting.
88Your father died approximately three years ago.
89Your mother continues to live in Malaysia and has re-partnered. Your relationship with her is somewhat strained, in part because of her disapproval of your sexual orientation.
90You have two younger brothers, one of whom lives in Singapore and the other with your mother in Malaysia.
91After failing Year 11, you worked for 18 months in phone sales and then in a luggage shop. At the age of 20, you then travelled to Singapore where you worked as a cook for five years and in an export company for 12 months. After returning to Malaysia, you sold tools before travelling to Australia on a tourist visa in June 2018.
92In July 2018, you applied for a protection visa based on the persecution that you would suffer back in Malaysia on account of your homosexuality which is still considered a crime in that country and punishable by imprisonment. There has been a significant delay in the processing of that application which is yet to be determined. In the meantime, you have been granted a bridging visa whilst your application remains under review.
93While in Australia, you have worked on farms, in a noodle shop and in a sushi shop. You also worked in an Asian Grocery for more than 12 months. At the time of your arrest, you were working as a delivery driver for Uber Eats. You found this work confronting on occasions.
94Whilst being held on remand, you have worked in the kitchen daily.
95You are married to a woman named Ms Au, who you met in Malaysia in 2011. She travelled to Australia soon after you did and continues to support you. She is on a temporary visa and works as a dental assistant while also studying childcare.
96You were assessed by the psychologist Gina Cidoni on 7 May this year.[10]
[10] Her report is dated 16 May 2024 and was tendered as exhibit WC-2.
97In Ms Cidoni’s opinion, you have a Major Depressive Disorder and a Generalised Anxiety Disorder, as well as some unhelpful traits linked to Borderline Personality Disorder. At the time of her assessment, you were taking the anti-depressant Sertraline but had not engaged in any counselling or therapy sessions, either before or during your time in prison. In her opinion, your mental health remains a significant concern and you are susceptible to manipulation.
98You told the psychologist and your counsel that you were introduced to the syndicate through a former neighbour whom you trusted and that you needed the money to help pay bills.
99To Ms Cidoni’s observation, you demonstrated insight into your actions and showed remorse. You also exhibited a genuine acknowledgement of wrongdoing and a desire to address underlying issues.
100She assessed your risk of re-offending as low and considered that your prospects for rehabilitation would be improved in the event that you received therapeutic interventions tailored to address your mental health needs.
101The subpoenaed records from Justice Health suggest that you have found it difficult to cope with being in prison and your uncertain future with respect to your prospect of deportation. The records also confirm that you were recently diagnosed with diabetes.
Matters in mitigation
102I will now turn to consider the matters submitted in mitigation in relation to each accused, commencing with Mr Tan.
Mr Tan
103In light of your very early plea, Mr Tan, you are entitled to and will receive a significant discount in your sentence.
104I am satisfied that you have some remorse for what you did but it is limited.
105You are to be sentenced as a person of previous good character. Whilst this remains a relatively important matter in mitigation, it cannot be given full weight because such offences are often committed by people of otherwise good character and because of the need to give emphasis to general deterrence in the sentencing task.
106You have the continuing support of your current partner and family.
107You have an established work history, both here and back in Malaysia, and the ability to undertake further work related courses as well as study. In that context, I am fairly confident that you can again be a productive member of the community in which you live.
108As I have previously noted, I consider you to have good prospects of rehabilitation.
109As someone who has never had any previous experience with the criminal justice system, let alone with the adult custodial environment, I have no doubt that you have found and will continue to find the experience of being in gaol an onerous one. I also accept that the separation from your partner is a difficult situation for you and her to deal with. I have taken those matters into account when determining the appropriate sentence in your case.
110However, I find myself unable to give any mitigatory weight to the fact that you are concerned about the prospect of being deported given your history of being on successive short-term temporary visas, the last of which was limited to the time that the Covid-19 pandemic remained a relevantly defined ‘event’ or emergency. In such circumstances, you cannot be deemed to have a realistic expectation of remaining in this country following your release from custody nor any ‘lost opportunity’ of building a life for yourself here in Australia, and, any consideration of you somehow obtaining some other visa in the near future would involve impermissible speculation.
111Your counsel also sought to rely on delay as a relevant sentencing consideration in this case. In my view, however, whilst the period that has elapsed since you were charged is relevant to any assessment of the nature and weight to be given to your plea of guilty, it does not amount to a mitigatory matter in its own right as the delay cannot be considered inordinate in the particular circumstances of this case. Further, it cannot be said that you have successfully rehabilitated in the intervening period or that any ability on your part to rehabilitate has been impacted by that delay.
Ms Chin
112In light of your very early plea, Ms Chin, you too are entitled to and will receive a significant discount in your sentence.
113In your case, I am satisfied that you have demonstrated genuine remorse for what you did.
114You are to be sentenced as a person of previous good character, which is a matter of some significance, but the observations I made in relation to the weight to be given to this matter when dealing with Mr Tan’s case, have equal application to your case.
115You have the continuing support of your wife.
116You have a good work history, both here and in Malaysia, and will likely have little trouble securing further employment once you are released into the community.
117You have attempted to put your time in custody to good use. In addition to working in the kitchen, you have almost completed a diploma in retail.
118I consider your prospects of rehabilitation to be very good if not excellent. You have no prior criminal history, pleaded guilty at a very early stage, are remorseful, have insight, and are considered by Ms Cidoni to have a low risk of reoffending.
119You have had no previous experience with the criminal justice system or a prison environment. Whilst you have received visits from your wife and a cousin, you appear to be a somewhat isolated figure in gaol, no doubt in part due to the cultural and language barriers. I accept that the separation from your wife is a difficult situation for you and her to deal with. I have no doubt that for those and other reasons you have found and will continue to find the experience of being in gaol an onerous one. I have taken those matters into account when determining the appropriate sentence in your case.
120For the same reasons given when dealing with Mr Tan’s case, I am unable to accept that delay is a relevant sentencing consideration in your case.
121However, I have reached a different conclusion in relation to the issue of deportation in your case as compared to Mr Tan. In this context, I note that very shortly after travelling to this country in mid-2018, you lodged a substantive application for a protection visa on a basis that will no doubt need to be given serious consideration by the relevant authorities in any review process. On the other hand, there are no guarantees as the relevant statistics provided by your counsel demonstrate. In the end, I accept that you have a genuine concern and fear at the prospect of being deported back to Malaysia and that this will weigh heavily on your mind while you remain in prison and your application is under review. In such circumstances, I am prepared to take this matter into account when determining the appropriate sentence in your case.
Gravity of the offending
General considerations
122This court must also have regard to the gravity of the offending engaged in by Mr Tan and Ms Chin. That requires a separate consideration of the factors which are relevant in each accused’s case.
123It is appropriate to start by noting that the type of offence that you each committed attracts a relatively high maximum penalty, 12 years’ imprisonment, and so, must be considered intrinsically serious in nature.
124The important matters to consider when assessing the gravity of any particular instance of this type of offence include, but are not limited to, the value of the money or other property that is the proceeds of crime dealt with, whether the money or property is the proceeds of an indictable crime or general crime, the number of occasions on which money or property is dealt with; and the offender’s state of mind in relation to those dealings when engaged in the relevant conduct.
Value of the money
125For Mr Tan, the value of the money was very significant indeed; $494,000 by way of cash deposits and $4,661,792 by way of Binance account withdrawals which were then transferred to a third-party cryptocurrency account. The total amount of $5,155,792 represents just over five times the threshold amount for an offence under s 400.3(2B) and a little more than 50% of the threshold amount for the next most serious type of money laundering offence.
126For Ms Chin, the value of the money was significant. The cash deposits she made totalled $2,195,000, which represents more than double the threshold amount for an offence under s 400.3(2B) and nearly 22% of the threshold amount for the next most serious type of money laundering offence.
Number of occasions
127For Mr Tan, the number of occasions on which he dealt with the money was also very significant, particularly given the fact that under s 400.3(2B), two occasions are sufficient. In Mr Tan’s case, there were a total of 109 occasions; eight occasions on which he dealt with cash deposits and 101 occasions on which he withdrew money from the Binance account and then transferred it to a third-party cryptocurrency account.
128For Ms Chin, the number of occasions on which she dealt with the money was significant, namely 48 occasions on which she made cash deposits.
Period of offending
129For Mr Tan, the period over which he engaged in the traditional banking conduct and the Binance cryptocurrency conduct was significant and overlapped. It is not overstating things to describe his conduct overall as being persistent and protracted. He engaged in each type of conduct over a period of approximately 5 months, although I note that the occasions on which he engaged in the Binance cryptocurrency conduct were far more frequent and numerous than the occasions on which he deposited cash in a bank account.
130For Ms Chin, the period was less but still noteworthy. In her case, she engaged in the traditional banking conduct over a period of a month and was prepared to continue engaging in such conduct, at least for a period, but for her arrest. Her conduct stands in stark contrast to an offender whose conduct is restricted to a short period, such as a couple of days.
State of mind
131In my view, there is little to be gained by seeking to make fine distinctions in relation to any differences in the state of mind as between Mr Tan and Ms Chin as it relates to the proceeds of crime issue.
132The prosecution have submitted that on the scale of what can amount to a reckless state of mind for the purpose of s 400.3(2B) offences, Mr Tan and Ms Chin should be viewed as having a high degree of recklessness but not intention or knowledge.
133I accept that submission, although I also allow for the fact that each accused’s state of mind may have developed over time as the number of occasions and the value of the money increased. So, whilst the degree of recklessness may not have been to a high degree at the very outset, it would not have taken very long for that to change.
134Of course, the value of money and the number of occasions are not the only matters that are relevant to an assessment of this issue. For example, the number of accounts and branches used by Ms Chin for the traditional banking conduct and the knowledge gained by Mr Tan when speaking to Mr Choo in the intercepted phone conversations are also relevant.
Source of the proceeds of crime
135In this case, it is simply not possible to ascertain the original source of the proceeds of crime with any particularity other than that it came from a general crime syndicate working in Australia which had relevant contacts in Malaysia for the purposes of arranging for the proceeds of such general crime to be laundered. As the charge against each of the accused states, the money was the proceeds of ‘general crime’.
Role
136Mr Tan’s role within this money laundering syndicate was significant in my view. As his offending conduct and conversations with Mr Choo demonstrate, he was a valued member of the syndicate who was trusted with information about some of the syndicate’s activities, such as the fact that there were others who were being tasked with depositing large amounts of cash and the methods being adopted to try and avoid bank accounts being frozen, blocked or closed. It is of some note also, that Mr Tan was given the responsibility of possessing large amounts of cash to bank but also of operating a Binance cryptocurrency account.
137Whilst not at the highest level of the syndicate’s hierarchy and whilst at a lower level than Mr Choo and the Malaysian based ‘Justin’ and ‘Max Chong’, he was certainly not at or towards the lowest level of the hierarchy.
138Whilst Ms Chin’s role was less and more confined than Mr Tan’s, it was still a valuable one for the money laundering syndicate. She too was trusted with large amounts of cash to bank on behalf of the syndicate. However, and in contrast to Mr Tan, there is no evidence to suggest that she had a broader picture of the syndicate beyond what her limited contact with Mr Choo and the traditional banking conduct in which she engaged, would have provided her.
Seriousness of Offending and Level of Moral culpability
139In my view, Mr Tan’s offending represents a very serious example of this type of offending. It falls in the upper part of the mid-range on the spectrum of seriousness for such offences. His level of moral culpability for that offending must be seen as being very high.
140He engaged in very serious criminality on numerous occasions over a significant period of time. His motive for doing so was to make money. And, on any view, he was well paid for his services. Even on a conservative calculation based on his account of the commission he was paid, he earnt approximately $40,000 in 5 months. The fact that he may have had some debts and been under some financial stress at the time may provide some context to the offending but nothing by way of an excuse or justification.
141In my view, Ms Chin’s offending represents a relatively serious example of this type of offence. It falls in the mid-range of seriousness on the spectrum of seriousness for such offences. Her level of moral culpability for the offending is to be properly viewed as significant but less than Mr Tan’s.
142Whilst offending over a much shorter period, Ms Chin’s activities still amounted to a course of conduct which was only curtailed because of her arrest. She managed to deposit 40% of the amount of money Mr Tan was involved with in just a fifth of the time. Her motivation for engaging in the prescribed conduct was also to make money, which she largely used for living expenses. Based on her account, she earnt a few thousand dollars over the course of a month.
Comparable cases
143As noted by the prosecution in their amended written submissions,[11] there are no known cases of intermediate appellate courts in Victoria, or in any other Australian jurisdiction, considering an offence charged under s 400.3(2B). That is perhaps due to the fact that this new offence has only been operative since 16 February 2021.
[11] Exhibit B.
144In this context, the prosecution sought to provide some guidance by reference to the sentences imposed in two cases for an offence under s 400.3(2A).[12] Whilst that type of offence is also a ‘tier 2’ offence and attracts the same maximum penalty, it is different as it deals with conduct involving a ‘single occasion’ whereas a s 400.3(2B) offence deals with conduct involving ‘two or more occasions’.
[12] Nguyen v The Queen [2023] NSWCCA 240 and R v Bui (Unreported, New South Wales District Court, 8 September 2022).
145In each of the cases referred to, the offender had collected and then stored a large amount of money in their home on behalf of others. Whilst each offender was involved with a significant amount of money,[13] the charged conduct related to a single date as opposed to a course of conduct involving multiple dates and occasions.
[13] $2,260,330 for Nguyen and $1,718,635 for Bui.
146Counsel for Mr Tan also sought to provide some guidance by providing a table of comparable cases in which sentences had been imposed for money laundering offences charged under either s 400.3(1) (a ‘knowingly’ offence) or s 400.3(2) (a ‘reckless’ offence), but which involved a significant amount of money and limited financial gain.[14]
[14] R v Eckl [2023] QSC 178; Lami v R [2021] NSWCCA 295; Cox (a pseudonym) v The Queen [2016] VSCA 134; Nguyen v The Queen [2012] NSWCCA 152; Nguyen v R [2011] NSWCCA 111; R v Huang [2007] NSWCCA 259
147I also note that counsel for Ms Chin sought to rely on that table on behalf of her client.
148Given the different nature of this type of charge as compared to the other types of charges dealt with in the cases to which the parties have referred me, and the different circumstances relating to the offending and the offenders in those cases as compared to those of Mr Tan and Ms Chin, I have found this exercise to be one of only very limited utility.
149In no way were any of those other cases truly comparable or on all fours with the cases relating to Mr Tan and Ms Chin. I did not understand any counsel who appeared in this matter to suggest otherwise.
Sentencing principles
Section 16A considerations
150I am obliged to have regard to, so far as they are relevant, the various matters set out in s 16A of the Crimes Act 1914 (Cth), and I do so. Any sentence that I impose on an accused must be one that is of a severity appropriate in all the circumstances that relate to that accused.
General Deterrence
151I must have regard to a number of sentencing principles when determining the appropriate sentence in each accused’s case.
152General deterrence is a very important sentencing consideration for offences of this type. Money laundering is an important part of organised criminal activity and is difficult to detect and costly and time consuming to investigate. When sentencing an offender for offending of this nature, a court must make it clear to other would- be offenders that if they commit such offences and are caught, the consequences for them will be severe. So, anyone in the community who is contemplating engaging in money laundering conduct must be left in no doubt that the likely consequences for them if caught will clearly outweigh any financial or other benefit they expect to receive by engaging in such serious criminal conduct.
Denunciation
153Denunciation is another significant sentencing consideration. On behalf of the community, this court must make clear that offending of this type is totally unacceptable.
Specific Deterrence and Protection of the Community
154Given the nature, seriousness and extent of the offending that Mr Tan and Ms Chin engaged in, specific deterrence is a relevant sentencing consideration.
155Whilst there is a need to specifically deter Mr Tan and Ms Chin from further offending, the weight to be accorded to this sentencing consideration, and indeed to that of community protection, is greater in respect of Mr Tan than for Ms Chin as his offending was more serious than hers and his level of remorse, insight and understanding of the seriousness of this type of criminal conduct is more limited than hers.
156In respect of each accused, I recognise the fact that they are of prior good character and I also allow for the fact that the experience of having to serve a custodial sentence will go some way towards discouraging them from behaving in any similar fashion in the future.
157In the end, whilst relevant, specific deterrence and protection of the community are of lesser significance in the sentencing calculus than general deterrence, denunciation and just punishment. In Mr Tan’s case, the weight to be accorded to those sentencing principles is somewhat greater than in Ms Chin’s case.
Just Punishment
158This court must impose a just punishment in respect of each accused.
159Individualised justice is what is required. The sentence to be imposed must take account of the specific criminal conduct alleged, the relevant sentencing principles to be applied, and the personal circumstances and mitigatory matters of the accused who is to be sentenced for that conduct.
160Having undertaken that exercise in relation to each accused separately, it is clear that in each case a significant punishment is warranted, albeit a more severe one for Mr Tan whose offending was clearly of a more serious nature than Ms Chin’s.
Prospects of Rehabilitation
161Another important consideration for this court is the age and prospects of rehabilitation of the offender to be sentenced.
162In Mr Tan’s case, doing the best that I can on the available material, I have concluded that his prospects are good. He was 27 years of age at the time he committed this offence. He is now 29 and falls to be sentenced as a first time offender with no criminal history. He has ongoing support from his partner, grandparents, aunt and a number of friends. He has done his best to put his time on remand to good use. He is capable of working and/or studying on his eventual release from custody. On the other hand, his offending was serious, protracted and engaged in for financial gain. Whilst he has pleaded guilty, he is yet to develop any real insight into the gravity of his criminal conduct and any remorse he has is limited.
163In Ms Chin’s case, I have ultimately concluded that her prospects are very good to excellent. She was 31 years of age at the time of her offending. She is now 32 and also falls to be sentenced as a first time offender with no criminal history. She enjoys ongoing support from her wife, has a strong work history and is capable of engaging in further work and/or study once released. Whilst her offending was serious, ongoing and only brought to an end by her arrest, she admitted to her involvement when interviewed and pleaded guilty at a very early stage. She has also demonstrated insight into her actions, acknowledged her wrongdoing and expressed a desire to address the underlying issues which contributed to her offending.[15] In her case, I am satisfied that she is genuinely remorseful.
[15] See report of Gina Cidoni at page 5 (Exhibit WC-2).
Sentencing submissions
164Counsel appearing for Mr Tan acknowledged that in his case the offending was such that the only disposition open to the court was the imposition of an immediate term of imprisonment. However, and by reference to her client’s personal circumstances, the matters in mitigation upon which he can rely, and the period of pre-sentence detention he has already served to date, counsel submitted that any such sentence should have the practical effect of allowing for his release from custody in the not too distant future. As counsel explained at the plea hearing, the court could achieve that result by either imposing a suitably framed recognisance release order or by the fixing of an appropriate non-parole period.
165Counsel appearing for Ms Chin also acknowledged that the only disposition open to the court in respect of her client’s offending was the imposition of an immediate term of imprisonment. As counsel went on to submit, however, the less serious nature of Ms Chin’s offending, at least by reference to Mr Tan’s, together with her personal circumstances and the relevant matters in mitigation, meant that a recognisance release order was both open and appropriate. And, taking into account the period of pre-sentence detention already served by Ms Chin, any such sentence ought result in her release from custody in the near future.
166For their part, the prosecution highlighted the serious aspects of the offending engaged in by Mr Tan and, in a separate analysis, referred to those relating to Ms Chin. Counsel appearing on behalf of the Commonwealth Director also sought to emphasise the importance of a number of sentencing principles when sentencing for this type of offence, including general deterrence, denunciation and just punishment. Ultimately, prosecuting counsel submitted that the only sentencing disposition open to the court in respect of each accused, was the imposition of an immediate term of imprisonment in the form of a head sentence with a non-parole period.
167In this context I note that a sentence of the type urged by the prosecution can only be imposed if the term of imprisonment imposed is at least 3 years in length.
Analysis
168In respect of each accused, I have had regard to the nature and extent of their offending, to their personal circumstances and matters in mitigation, as well as to the s 16A considerations (to the extent relevant) and the submissions made by counsel.
169Before determining the appropriate sentence in each case, I have borne in mind the statutory requirement in s 17A that a sentence of immediate imprisonment must not be imposed unless the court concludes that no other option than a sentence of imprisonment is appropriate in all the circumstances of the case.
170In Mr Tan’s case, I have ultimately concluded that the only appropriate sentence is a term of imprisonment of a length that will necessitate the fixing of a non-parole period.
171In Ms Chin’s case, whilst I have also concluded that the only appropriate sentence is a term of immediate imprisonment, I am satisfied that it is appropriate to impose a lesser term in the form of a recognisance release order. But, even allowing for the period of pre-sentence detention already served, the terms of that order will mean that Ms Chin will have to serve a further short period in custody before being released.
Sentence
172After separately considering, balancing and weighing the various sentencing considerations in each accused’s case, I have decided to impose the following sentences.
Mr Tan
173Mr Tan, in respect to Charge 1 on your indictment, recklessly engaging in conduct on two or more occasions in relation to proceeds of general crime valued at or more than $1,000,000, you are convicted and sentenced to a term of 4 ½ years’ imprisonment. I fix a non-parole period of 2 ½ years in respect of that head sentence.
174Pursuant to s 18 of the Sentencing Act 1991 (‘the Act’), I declare that you have served a total of 549 days pre-sentence detention, not including today’s date, in respect of today’s sentence. I order that such period is to be reckoned as already served under that sentence and that the declaration and its details be entered in the records of this court.
175Pursuant to s 6AAA of the Act, I indicate that but for your plea of guilty, you would have been sentenced to a term of 6 years’ imprisonment with a non-parole period of 4 years.
Ms Chin
176Ms Chin, in respect to Charge 1 on your indictment, recklessly engaging in conduct on two or more occasions in relation to proceeds of general crime valued at or more than $1,000,000, you are convicted and sentenced to a term of 2 years and 10 months’ imprisonment.
177Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), I direct that you be released in relation to the federal sentence imposed today after having served 22 months, upon giving security in the sum of $1000 on condition that you be of good behaviour for a period of 2 years and 10 months.
178Mr Buchhorn, do you need me to repeat any of those matters.
179MR BUCHHORN: I think I've – I've jotted those down, Your Honour.
180HIS HONOUR: A sentence of two years and ten months' imprisonment, released after having served 22 months, security of $1,000, to be of good behaviour for two years and ten months.
181MR BUCHHORN: Yes, that's what I've recorded. Thank you, Your Honour.
182HIS HONOUR: Ms Chin, at this stage, I will leave the Bench briefly so that the recognisance release order can be prepared by the prosecution and then checked by your counsel. Once that has been done, the prosecution will forward the proposed order to my associate electronically and a hard copy of the order will then be provided to your counsel and the prosecution.
183Ms Yousif, when I return to the Bench, I will address Ms Chin directly to explain the nature of her sentence and the consequences of any breach of it. To facilitate that process, I request that you speak to Ms Chin during that break, with the assistance of the interpreter, and, by reference to the copy of the proposed order, to ensure your client understands those matters in advance of me addressing her.
184MS YOUSIF: Yes, Your Honour.
185HIS HONOUR: Very well. I will now leave the Bench so that process can be undertaken.
186(Short adjournment)
187(Upon resuming)
188HIS HONOUR: Ms Yousif, have you checked the order and satisfied yourself that it accords with my stated intentions.
189MS YOUSIF: Yes, Your Honour.
190HIS HONOUR: And you have explained the relevant matters to your client and satisfied yourself she understands them.
191MS YOUSIF: I have, Your Honour.
192HIS HONOUR: Yes, thank you.
193Ms Chin, I am now required to explain to you the nature of your sentence and the consequences of any breach of it.
194Madam Interpreter, I can't see you on the screen. I will start that again.
195Ms Chin, I am now required to explain to you the nature of your sentence and the consequences of any breach of it. The sentence I have imposed on you is 2 years and 10 months’ imprisonment. You are required to serve 22 months of that sentence in custody, that is, in gaol. The 569 days you have already spent on remand for this matter will be deducted from that 22 month period and so count insofar as calculating your ultimate release date.
196So, once you have served that 22 months, you will then be released on the recognisance, that is, the promise to be of good behaviour for 2 years and 10 months. If you breach any of the conditions of that recognisance, you can be brought back to court and, in addition to forfeiting, that is, having to pay the recognisance amount of $1000, you may also be required to serve the balance of the sentence, namely 9 months, in custody. You should also understand that you or the prosecution can later apply to the court for the recognisance to be discharged or varied.
197Madam Interpreter, can you unmute for this purpose in relation to Ms Chin.
198Ms Chin, do you consent, that is, agree to the terms and conditions of this order and to be bound by them?
199MS CHIN: (Through interpreter) Yes, I will.
200HIS HONOUR: Thank you. You may now mute from your end, thank you Madam Interpreter.
201Very well, Ms Chin, I will take that as you providing your verbal consent to this order and that fact will be recorded on the order itself?
202Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served a total of 569 days pre-sentence detention, not including today’s date, in respect of today’s sentence. I order that such period is to be reckoned as already served under that sentence and that the declaration and its details will be entered in the records of this court.
203And, pursuant to s 6AAA, I indicate that but for your plea of guilty, you would have been sentenced to a term of 4 years’ imprisonment with a non-parole period of 2 ½ years.
Other matters
204Are there any matters that counsel need to raise at this stage in relation to either the sentences imposed or the sentencing reasons, commencing with you, Ms Joosten.
205MS JOOSTEN: No, Your Honour.
206MS YOUSIF: No, Your Honour.
207HIS HONOUR: Thank you. Mr Buchhorn?
208MR BUCHHORN: Your Honour, given the structure of Commonwealth or Federal sentences can vary, I just wanted to clarify that the court's intention is for the two orders – the two sentences that have been imposed commence on today's date.
209HIS HONOUR: Yes, I should have stated that. Yes, they do - - -
210MR BUCHHORN: That's the only matter to clarify.
211HIS HONOUR: Yes, thank you. That doesn't affect the situation in terms of the counting of the pre-sentence detention.
212MR BUCHHORN: As I understand it, no, it doesn't.
213HIS HONOUR: Yes, alright. Thank you, counsel, I will now stand down until 2.15 when the next matter is ready to proceed.
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