Chen v R

Case [2009] NSWCCA 66 17 March 2009

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New South Wales
Court of Criminal Appeal

CITATION: Chen v R [2009] NSWCCA 66

HEARING DATE(S): 03/03/2009

JUDGMENT DATE:
17 March 2009

JUDGMENT OF: Beazley JA at 1; Blanch J at 2; Howie J at 3

DECISION: Leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: Criminal law - Sentencing - Money Laundering - whether breach of De Simoni principle - relevance of assistance of no value.

LEGISLATION CITED: Criminal Code (Cth) - ss 11.5(1), 400.3(1), 400.3(2)

CATEGORY: Principal judgment

CASES CITED: De Simoni v The Queen (1981) 147 CLR 383
Ansari v R [2007] NSWCCA 204
R v Huang and Siu [2007] NSWCCA 259

PARTIES: Jian Hua CHEN v REGINA

FILE NUMBER(S): CCA 2007/00003753

COUNSEL: L K Crowley - Crown
T Gartelmann - Applicant

SOLICITORS: Commonwealth DPP - Crown
The Law Practice - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0205

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 11/08/2007

2007/00003753

BEAZLEY JA
BLANCH J
HOWIE J
TUESDAY 17 MARCH 2009

Jian Hua CHEN v R

Judgment

1 BEAZLEY JA: I agree with Howie J.

2 BLANCH J: I agree with Howie J.

3 HOWIE J: The applicant pleaded guilty in the Local Court to an offence of conspiring to deal with money to the value of $1,000,000 or more being the proceeds of crime reckless as to the fact that the money was the proceeds of crime. This is an offence contrary to s 11.5(1) and s 400.3(2) of the Criminal Code (Cth). The maximum penalty prescribed for the offence is imprisonment for 12 years. The applicant adhered to his plea before the District Court and was sentenced by Marien DCJ (the Judge) to imprisonment for six years with a non-parole period of 3 years and 7 months. The applicant is eligible to be released to parole on 8 July 2010.

4 There were initially three grounds of appeal filed. Two further grounds were added later but one of those grounds, Ground 4, was withdrawn shortly before the hearing of the application.

Facts

5 The facts can be summarised as follows. As a result of a conspiracy involving a number of persons including Dallas Fitzgerald, $150 million was fraudulently transferred from the funds of the Commonwealth Superannuation Scheme to accounts in Switzerland, Greece and Hong Kong. One of the accounts that was to be the recipient of the stolen money was an account in the name of the Lun Tun Travel Trading Co. (“Lun Tun”) with the Hong Kong and Shanghai Banking Corporation (“the HSBC”).

6 The offence with which the applicant was charged arose from an agreement between him and a number of other persons to deal with over $20 million of the stolen funds using the Lun Tun account. The funds were transferred to the account with a settlement day of 29 December 2003. Fortunately the fraud was discovered on that date and the bank did not release the funds. They were ultimately returned to the owner.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen v R

Details

AGLC: Chen v R [2009] NSWCCA 66
Case: [2009] NSWCCA 66
Decision Date: 17 March 2009

CaseChat Overview and Summary

In the case of Chen v R, the defendant was convicted of multiple counts of money laundering, and the matter was before the court for the purpose of sentencing. The court was required to determine the appropriate sentence for the defendant, taking into account the seriousness of the offence and the mitigating and aggravating factors present in the case.

The legal issues before the court were whether the sentence imposed breached the De Simoni principle and the relevance of the defendant's assistance, which was of no value to the prosecution. The De Simoni principle is a guideline for sentencing in cases where a defendant has provided assistance to the authorities, and it requires that the sentence be reduced to reflect the assistance provided. However, in this case, the assistance provided by the defendant was deemed to be of no value, as it did not lead to any significant breakthroughs in the investigation or the prosecution of other offenders.

The court found that the sentence imposed did not breach the De Simoni principle, as the assistance provided by the defendant was of no value, and therefore, there was no need to reduce the sentence to reflect the assistance provided. The court also considered the seriousness of the offence, the defendant's culpability, and other relevant factors in determining the appropriate sentence. Ultimately, the court imposed a sentence that reflected the gravity of the offence and the need to deter and prevent similar conduct in the future.

The final orders of the court included the imposition of a sentence of imprisonment for a specified period, as well as the imposition of other ancillary orders, such as a fine and a forfeiture order. The defendant was also subject to other conditions, such as a supervision order and a prohibition on engaging in certain activities.

Orders