Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd
[2022] FCA 665
•9 June 2022
FEDERAL COURT OF AUSTRALIA
Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd [2022] FCA 665
File number(s): VID 437 of 2021 Judgment of: ABRAHAM J Date of judgment: 9 June 2022 Catchwords: CRIMINAL LAW – sentencing – cartel conduct –corporate offender pleaded guilty to giving effect to cartel provisions – individual offenders pleaded guilty to being knowingly concerned in those contraventions – where companies ran money remittance businesses in Melbourne and Sydney Legislation: Competition and Consumer Act 2010 (Cth) ss 79(1), 79(1)(c), 79(1)(e), 44ZZRG, 44ZZRG(1), 44ZZRG(3)
Crimes Act1914 (Cth) ss 3E, 16A, 16A(1), 16A(2), 16C, 16C(1), 16C(2), 16F, 19AC(1), 19AC(4), 19B, 20(1)(b)
Cases cited:
Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516; (2016) 118 ACSR 124
Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) [2017] FCA 522
Bae v R [2020] NSWCCA 35
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
CDPP v Wallenius Wilhelmsen Ocean AS [2021] FCA 52; (2021) 386 ALR 98
Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 192 ALR 92
Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170; (2019) 137 ACSR 75
Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876; (2017) 254 FCR 235
Director of Public Prosecutions (Cth) v Ede [2014] NSWCCA 282
DPP (Cth) v Page [2006] VSCA 224
DPP (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546
Gajjar v R [2008] VSCA 268; (2008) 192 A Crim R 76
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Khalid v R [2020] NSWCCA 73; (2020) 102 NSWLR 160
Lusty v CRA20[2020] FCA 1737
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Matson v Attorney-General (Cth)[2021] FCA 161
R v Giourtalis [2013] NSWCCA 216
R v Jones [2004] VSCA 68
R v Nguyen and Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
R v Qutami[2001] NSWCCA 353; (2001) 127 A Crim R 369.
R v Smith(1987) 44 SASR 587
R v Wirth (1976) 14 SASR 296
Rogerson v The Queen [2020] VSCA 82
Scook v R [2008] WASCA 114; (2008) 185 A Crim R 164
The Queen v De Simoni (1981) 147 CLR 383
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202
Totaan v R [2022] NSWCCA 75
Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596
Weiningerv The Queen [2003] HCA 14; (2003) 212 CLR 629
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Division: General Division Registry: Victoria National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 282 Dates of submissions: 20 January, 1 February, 2 February, 27 April, 13 May 2022 Dates of hearing: 3, 4 February, 18 May 2022 Counsel for the Prosecutor: Mr N Robinson QC with Ms A Haban-Beer Solicitor for the Prosecutor: Commonwealth Director of Public Prosecutions Counsel for Vina Money Transfer Pty Ltd: Mr D Hallowes SC with Ms L Dubroja Solicitor for Vina Money Transfer Pty Ltd: LY Lawyers Counsel for Van Ngoc Le: Mr D Hallowes SC with Ms L Dubroja Solicitor for Van Ngoc Le: LY Lawyers Counsel for Tony Le: Mr D Sala Solicitor for Tony Le: LY Lawyers Counsel for Thi Huong Nguyen: Ms M Brown Solicitor for Thi Huong Nguyen: Haines and Polites Lawyers Counsel for Khai Van Tran: Mr M Page Solicitor for Khai Van Tran: Emma Turnbull Lawyers ORDERS
VID 437 OF 2021
BETWEEN: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor
AND: VINA MONEY TRANSFER PTY LTD
VAN NGOC LE
TONY LE
THI HUONG NGUYEN
KHAI VAN TRAN
Offenders
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
9 JUNE 2022
THE COURT ORDERS THAT:
1.Vina Money Transfer Pty Ltd is convicted of Charge 1 and Charge 5 of the indictment attached as Annexure A.
2.Vina Money Transfer Pty Ltd is fined the sum of $1,000,000.
3.Van Ngoc Le is convicted of Charge 2 and Charge 6 of the indictment attached as Annexure A.
4.Van Ngoc Le is sentenced to imprisonment, in relation to the first count, for 2 years and 1 month, and in relation to the second count, for 8 months. The second sentence is to commence after 1 year and 10 months of the first sentence, with the consequence that 3 months is to be served concurrently. The total sentence is 2 years and 6 months. Van Ngoc Le is to be released forthwith on a recognizance release order to be of good behaviour for a period of 3 years in the amount of $1000.
5.Tony Le is convicted of Charge 4 of the indictment attached as Annexure A.
6.Tony Le is sentenced to imprisonment for 9 months. He is to be released forthwith on a recognizance release order to be of good behaviour for a period of 1 year and 6 months in the amount of $500.
7.Khai Van Tran is convicted of Charge 3 of the indictment attached as Annexure A.
8.Khai Van Tran is sentenced to imprisonment for 1 year and 7 months. He is to be released forthwith on a recognizance release order to be of good behaviour for a period of 3 years in the amount of $1000.
9.Thi Huong Nguyen is convicted of Charge 1 and Charge 2 of the indictment attached as Annexure B.
10.Thi Huong Nguyen is sentenced to imprisonment, in relation to the first count, for 1 year and 10 months, and in relation to the second count, for 9 months. The second sentence is to commence after 1 year and 7 months of the first sentence, with the consequence that 3 months is to be served concurrently. The total sentence is 2 years and 4 months. Thi Huong Nguyen is to be released forthwith on a recognizance release order to be of good behaviour for a period of 3 years in the amount of $1000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
CONTENTS
Introduction
[1]
Factual overview
[14]
The competitors
[15]
Money remittance from Australia to Vietnam
[18]
Sacombank’s communications
[25]
Further facts for Vina Money and Ngoc Le
[37]
Exchange rate CAU
[39]
Fee discount CAU
[48]
Further facts for Tony Le
[55]
Further facts for Khai Tran
[60]
Further facts for Thi Huong Nguyen
[68]
Exchange rate CAU
[71]
Fee discount CAU
[79]
The investigation
[81]
Offence provisions
[84]
Evidence
[86]
Sentencing principles
[92]
Objective seriousness of the offending
[116]
Exchange rate CAU
[121]
Fee discount CAU
[124]
Cartel offending
[128]
Vina Money and Ngoc Le
[134]
The offending
[135]
Personal/subjective matters
[161]
Disposition
[185]
Tony Le
[205]
The offending
[205]
Personal/subjective matters
[211]
Disposition
[216]
Khai Tran
[230]
The offending
[230]
Personal/subjective matters
[233]
Disposition
[243]
Thi Huong Nguyen
[251]
The offending
[251]
Personal/subjective matters
[261]
Disposition
[266]
Parity
[273]
Final observation
[274]
Conclusion
[275]
REASONS FOR JUDGMENT
ABRAHAM J:
Vina Money Transfer Pty Ltd (Vina Money), Tin Vuong Pty Ltd trading as Hong Vina Fast Money Transfer (Hong Vina) and Eastern & Allied Pty Ltd trading as Hai Ha Money Transfer (Hai Ha) were, at the relevant times, money remittance businesses in Victoria and NSW that offered customers the service of transferring money from Australia to Vietnam. These businesses charged customers a fee for the provision of services. They also set an exchange rate for currency exchange between Australian Dollars (AUD) and Vietnamese Dong (VND).
Each business had multiple branches, and the stores were all in close proximity to each other. In Footscray, for example, the businesses were within 500 metres of one another. Exchange rates were displayed in the branches, visible through windows, and also on changeable street signage outside the branch. Because of this practice, customers were easily able to compare rates between businesses. The three businesses, Vina Money, Hong Vina and Hai Ha, entered into contracts, arrangements or understandings (CAUs), containing cartel provisions. They were, but for the relevant cartel provisions in the CAUs, likely to be in competition with each other. The CAUs contained a cartel provision, relating to charging customers a common exchange rate of AUD to VND (exchange rate CAU); and relating to the price for services, namely, ceasing or applying fee discounts on money remittances to Vietnam (fee discount CAU). These provisions were given effect to.
In that context, the offenders were charged with and have pleaded guilty to the following offences.
On 3 February 2022, Vina Money pleaded guilty to two offences contrary to the then s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth) (CCA), being the offences of giving effect to a cartel provision, namely, that relating to the exchange rate CAU with Hong Vina and Hai Ha, and that relating to the fee discount CAU with Hong Vina and Hai Ha. Giving effect to the cartel conduct in relation to the exchange rate CAU occurred between 12 January 2012 and 5 August 2016, and in relation to the fee discount CAU, on 20 February 2012 and on 30 March 2012. As a consequence, Vina Money falls to be sentenced for two offences.
On 3 February 2022, Van Ngoc Le (Ngoc Le), as director, employee or agent of Vina Money, pleaded guilty to two offences of being knowingly concerned in the contraventions by Vina Money, contrary to s 44ZZRG(1). The offence in relation to the exchange rate CAU occurred between 12 January 2012 and 5 August 2016, and in relation to the fee discount CAU, on 20 February 2012 and on 30 March 2012. As a consequence, Ngoc Le falls to be sentenced for two offences.
On 3 February 2022, Tony Le, as employee or agent of Vina Money, also pleaded guilty to the offence of being knowingly concerned in a contravention by Vina Money, being the exchange rate CAU, contrary to s 44ZZRG(1) of the CCA. This offence occurred between 20 December 2012 and 13 February 2014. Tony Le falls to be sentenced for a single offence.
On 3 February 2022, Khai Van Tran (Khai Tran), as director, employee or agent of Hong Vina, pleaded guilty to being knowingly concerned in the contraventions by Hong Vina in giving effect to a cartel provision, being the exchange rate CAU with Vina Money and Hai Ha, contrary to s 44ZZRG(1) of the CCA. This offence occurred between 12 January 2012 and 15 November 2014. Khai Tran falls to be sentenced for a single offence.
On 17 May 2022, Thi Huong Nguyen, as employee or agent of Hong Vina, pleaded guilty to two offences of being knowingly concerned in the contraventions by Hong Vina in giving effect to a cartel provision, being the exchange rate CAU with Vina Money and Hai Ha, and the fee discount CAU with Vina Money and Hai Ha. The offence in relation to the exchange rate CAU occurred between 12 January 2012 and 15 November 2014, and the offence in relation to the fee discount CAU occurred on 20 February 2012 and 30 March 2012. As a consequence, Thi Huong Nguyen falls to be sentenced for two offences.
A copy of the indictment containing the charges relating to Vina Money, Ngoc Le, Tony Le and Khai Tran, dated 31 January 2022, is attached to these reasons as Annexure A.
A copy of the indictment containing the charges relating to Thi Huong Nguyen, dated 28 March 2022, is attached to these reasons as Annexure B.
In respect to the exchange rate CAU, by 11 January 2012, each of Vina Money, Hong Vina and Hai Ha, through their directors, servants or agents, had entered into the CAU. The CAU was to charge customers of all three businesses the same exchange rate for AUD to VND, with such common rate to be altered from time to time as agreed between the businesses. The Director does not allege that the cartel was contingent upon always applying a common exchange rate. Rather, due to timing issues, message delays, business pressures, and commercial dealings, the CAU was not universally applied. Despite that, the offenders gave effect to the CAU over a period of time, the length of which varies between the offenders.
In respect to the fee discount CAU, on 20 February 2012, Vina Money, Hong Vina, and Hai Ha, and on 30 March 2012, Vina Money, Hong Vina and Hai Ha, through their directors, servants or agents, entered into the CAU. The CAU was agreeing, in respect to customer fees for the provision of money remittance services across the Footscray stores of Vina Money and Hong Vina, on 20 February 2012, to cease applying discounts, and on 30 March 2012, to apply the same amount of discounts.
During the charged periods, the three businesses in the CAU occupied approximately two-thirds of the market in terms of the number of transactions remitting money from Australia to Vietnam. Between 1 December 2011 and 31 October 2016, this amounted to approximately $2.5 billion.
Factual overview
Each of these matters proceeded by way of a statement of facts. In relation to Khai Tran, Tony Le, and Thi Huong Nguyen, the facts were agreed, and in relation to Vina Money and Ngoc Le, the facts were not disputed. There is significant overlap between the statements of facts, but each additionally focuses on the conduct of the particular offender to whom it related. The statements of facts provide detail on the manner in which the offences were committed, including SMS, email, and telephone communications between the representatives of the three businesses, reflecting the giving effect to the CAUs. The documents are lengthy and it is unnecessary to repeat all that detail here. I have taken all those facts into account, in so far as they form the basis of the plea of a particular offender. The following is only an overview.
The competitors
Vina Money Pty Ltd was registered in August 2002, and in September 2002, it changed its name to Vina Money Transfer Pty Ltd. It was registered in New South Wales (NSW) in October 2006, and in Victoria in August 2012. During the relevant period, Vina Money owned branches in Cabramatta and Bankstown in Sydney, and Springvale and Footscray in Melbourne. The directors of Vina Money were, at various times, Ngoc Le, and his two sons, including Tony Le. Ngoc Le was appointed director and later secretary from 2 May 2011 until 31 October 2014, and reappointed to those roles on 3 November 2016. Tony Le was appointed director and secretary on 21 December 2016.
Tin Vuong Pty Ltd was registered on 3 June 2010, and on 13 September 2011, it registered the business name Hong Vina Fast Money Transfer. At various times during the relevant period, Hong Vina owned branches in Cabramatta in Sydney, and in Footscray in Melbourne. Khai Tran was director of Hong Vina, and his then-wife, Thi Huong Nguyen, was an employee or agent.
Eastern & Allied Pty Ltd was registered on 22 April 2008, and on 23 April 2008, it registered the business name Hai Ha Money Transfer. Hai Ha, during the relevant period, owned branches in Cabramatta, Bankstown, and Canley Heights in Sydney, and in Footscray and Sunshine in Melbourne. The director of Hai Ha during the relevant period was Dianne Phuong Nguyen (Phuong Dai). Phuong Dai is a prosecution witness in this case, and she and the company Hai Ha have been granted immunity from prosecution by the Commonwealth Director of Public Prosecutions. The conditions of immunity are, inter alia, that she assists the Australian Competition and Consumer Commission and the Commonwealth Director of Public Prosecutions, and that, if requested, she appears as a prosecution witness in any legal proceedings related to the matter. As a consequence, the various statements of facts are based on the practices adopted by Hai Ha, which, as the statements of facts reflect, were practices said to be essentially the same for Vina Money and Hong Vina.
Money remittance from Australia to Vietnam
There are three types of money remittance businesses that provide money remittance services from Australia to Vietnam: ‘independents’, local Australian banks, and multinationals.
Independents, as they are characterised, are privately owned businesses, serving their local cultural area. The competitive advantage for independents such as, at the relevant time, Vina Money, Hong Vina, and Hai Ha, is the cultural knowledge and awareness of their employees, including that they speak fluent Vietnamese, know the geographical areas of Vietnam, and are aware of events in Vietnam which may explain why money is being sent (for example, cultural events or natural disasters). Independents also generally offer significant cost savings on transactions. The exchange rates and transaction fees are generally more attractive than those offered by local Australian banks and multinationals. The independents compete with each other on exchange rates, fees, delivery time, geographical scope of delivery, customer service, and brand loyalty.
Local Australian banks that provide money remittance services include banks such as Commonwealth Bank of Australia and ANZ Bank. Money remittance services from Australia to Vietnam is a small subset of these banks’ wider operations.
Multinational money remittance businesses include those such as Western Union, MoneyGram, and Ria Financial Services.
The business of money remittance, as it related to the three independent businesses, involved transferring money belonging to a customer in Australia to a recipient located in Vietnam. Funds were delivered in AUD or VND, and where the latter was chosen, a currency conversion was required. The exchange rate from AUD to VND was set by the business at the start of each day, taking into account the wholesale rate, the market rate, and the retail rate of competitors. The business may have changed the rate during the course of the day.
Hai Ha branches and most of its agents displayed the AUD/VND exchange rate offered by Hai Ha on rate screens outside their locations, which were manually updated by staff when new rates were communicated. When a customer requested delivery of funds in VND, the exchange rate was applied to convert the funds from AUD to VND. The branch or agent applied the rate recorded in the Hai Ha Exchange Rate Schedule (subject to some exceptions referred to in the statement of facts). Service fees and transaction fees were charged to the customer. For example, Hai Ha would generally charge the customer a transaction fee which, in 2012, if a customer wished to transfer $100 AUD, was a fee of $4 AUD. The fee schedule for Hai Ha changed on 1 July 2016.
Once a transaction with a customer was completed, at least in the case of Hai Ha, funds were then transferred from Hai Ha’s bank account to the bank account of a company in Vietnam named Dong Tai, an independent business partner of Hai Ha that paid money out to recipients. Dong Tai held accounts in both AUD and VND, and those accounts were held at a large commercial bank in Vietnam named Sacombank SBR (Sacombank). When paying out money in VND, Dong Tai would convert AUD to VND using the wholesale rate offered by Sacombank. That wholesale rate would be approximated at the start of each day by Hai Ha applying a formula, which would in turn affect the rate Hai Ha offered to customers. Due to time differences between Australia and Vietnam, Sacombank did not commence trading until 12:00pm ADST or 11:00am AEST, so each day the Sacombank Wholesale Rate would not be known with certainty until that time. Where the wholesale rate offered by Sacombank was different to the rate offered by Hai Ha at the time of the customer’s transaction, profits or losses could occur on the transaction.
Sacombank’s communications
All three companies had relationships with Sacombank, which, as mentioned above, operated a large commercial bank in Vietnam, and set the wholesale rate for the exchange of AUD to VND.
The following five paragraphs are taken from the statements of facts in relation to Vina Money, Ngoc Le, Khai Tran and Thi Huong Nguyen (and therefore do not apply to Tony Le).
Sacombank first approached Vina Money and Hai Ha in March 2011, encouraging both businesses to agree on one exchange rate, and indicating that there was already some preparedness by Hong Vina to follow the rates offered by Vina Money. However, despite communications between representatives of Vina Money and Hai Ha, no agreement was reached.
Later in that same year, competition between the three businesses of Vina Money, Hong Vina, and Hai Ha intensified, as the businesses began operating branches in close proximity to one another. When a location became available next door to Hong Vina, Ngoc Le set up a branch of Vina Money there. That meant that all three businesses operating in Footscray were providing money remittance services from stores within 500 metres of one another. The communications between the businesses during this period which discussed the intensely competitive environment and the effects it was having on business profits are set out in the statement of facts.
It is inferred that Sacombank, in its capacity of making payments in Vietnam on behalf of all three businesses, observed the volatility of exchange rates being offered by the three businesses and as a result, on 2 December 2011, again approached the three businesses by email, further encouraging them to agree on one exchange rate instead of competing. The email stated:
For over the past 10 days, I have directly monitored the exchange rate volatility in Australia when transferring money to Vietnam, via the system of Vina, Hai Ha and Tin Vuong companies transferring [money] through Sacombank and SBR. I am frustrated as the EXCHANGE RATE differences among the companies are way too much, at times up to 300 points (21750/ 21930), especially at the company offices in 'Footray' - 'Mel' [sic].
Most recently, this morning, the exchange rate at the offices in 'Footray' [sic] is 30 points different among your companies (21750/21780), while the rate at the offices in 'Syned' [sic - 'Sydney'] is only 21600.
The email further stated:
If the situation continues like that at your companies in Australia, it leads to LOSSES only. We cannot do this - [we] can't let clients sending money to Vietnam benefit ‘unjustifiably/illegitimately’ [sic] due to the competition, among [your] 3 companies, in Exchange Rate, which is way too high compared to the current market in Vietnam.
Although Sacombank and SBR in VN [Vietnam] are only PAYER, I am really concerned about the too high Exchange Rate at [your] 3 Companies in Australia - you cannot get stuck in “a lose-lose situation” in Australia due to this Too High Exchange Rate.
…
I completely believe that, by doing this, each Company will not lose their clients, not suffer a loss, or get stuck in a lose-lose situation.
...
[I do] hope that you all reach a mutual agreement and start doing this RIGHT from this afternoon 02/12/2011 - applying one rate in 'Syned' [sic, Sydney] this afternoon, and also in Mel [sic, Melbourne] and other places.
In response, representatives of Vina Money, Hong Vina, and Hai Ha communicated, inter alia, by a series of emails, SMS messages, and telephone calls, seeking to agree to offer the same exchange rate and devising a process for communicating the agreed rate.
By 11 January 2012, these communications had culminated in the businesses reaching a CAU that the businesses would endeavour to offer a common exchange rate for AUD to VND to be altered from time to time as agreed between them. p
As explained above, Vina Money subsequently gave effect to the exchange rate CAU, with Ngoc Le, Khai Tran and Thi Huong Nguyen being knowingly concerned in giving effect to it, from at least 12 January 2012, and Tony Le from 20 December 2012, through an ongoing practice of communicating and offering the same exchange rate after that date.
With the exception of [27]-[31], the above details the nature of the business of money remittance, the three competitors, and the events that led up to the CAUs, as these matters are common to each statement of facts.
The summary below, which gives examples of the conduct of each offender, is based on the statement of facts tendered in relation to that offender. It is important to recall that each offender must be sentenced on the factual basis of the statement of facts tendered in their case.
Given the content of the statements of facts, it is also appropriate to record that an offender is to only to be sentenced for the conduct forming the basis of the offence for which the offender has pleaded guilty, and not any other conduct. An offender can only be sentenced for the conduct with which they are charged: The Queen v De Simoni (1981) 147 CLR 383. Each statement of facts refers to the circumstances in which the CAUs were made, in addition to evidence in respect to the giving effect to the CAUs and being knowingly concerned in that conduct. In that context, it is important to recognise that the offenders are not charged with, and not to be sentenced for, the offence of making a CAU, although the circumstances of the making are relevant, inter alia, to the knowledge of the offenders being knowingly concerned in giving effect to it. That is the basis articulated by the Director as to the relevance of this evidence.
Further facts for Vina Money and Ngoc Le
In addition to the summary of facts above, I add by way of overview the following.
From the earliest relevant time, Ngoc Le, as director and secretary of Vina Money, was responsible for managing and running the day-to-day operations of Vina Money at all of its branches. Ngoc Le’s sons, including Tony Le, were from time to time also engaged to do the same. In his role as director and secretary, Ngoc Le was responsible for setting the exchange rate offered to customers, and for deciding the amount of fees charged to customers. It is plain that Ngoc Le, by reason of his role in the business, was aware that Vina Money was in competition with both Hong Vina and Hai Ha.
Exchange rate CAU
As to the CAU to charge a common rate, as mentioned above, in response to the email from Sacombank on 2 December 2011, representatives of Vina Money, Hong Vina, and Hai Ha exchanged a series of emails, SMS messages, and telephone calls, seeking to agree to offer the same exchange rate and devising a process for communicating the agreed rate. Those representatives were Ngoc Le of Vina Money, Khai Tran of Hong Vina, and Phuong Dai of Hai Ha.
By 11 January 2012, Ngoc Le was communicating with the representatives of the other two businesses at various times on various days about what rate to apply, including whether to apply a higher or lower rate than the existing rate, when to apply a change to the rate, and the movement of exchange rates at competing businesses.
As a result of these communications, Ngoc Le, as director, employee or agent of Vina Money, directed Vina Money to apply a particular rate that was common to all three businesses on any given day at any given time.
From 12 January 2012 through to 5 August 2016, on a continual basis in a course of conduct, Ngoc Le gave effect to the exchange rate CAU by directing Vina Money to use the common exchange rate, and by passing information on exchange rates to the participants in the CAU. The evidence demonstrates ongoing discussions and agreements between the relevant participants, directed at the common purpose of giving effect to the exchange rate CAU on behalf of Vina Money (through Ngoc Le until 20 December 2012, then Tony Le until 13 February 2014, and back to Ngoc Le until 5 August 2016). The statement of facts provides illustrations that reflect the nature of the conduct and its frequency.
For example, in relation to the nature of the conduct in the period in which the exchange rate CAU was given effect to, on 10 October 2014, the following communication occurred between Ngoc Le and Phuong Dai:
Time From Message 7:56:27 Ngoc Le “Today, what rate do you offer, P. Dai?” 7:58:23 Phuong Dai “I offer 18,610” 8:00:20 Ngoc Le “Ok. However, tomorrow you should* offer sacombank rate as we only trade with [the] bank.” 17:16:11 Phuong Dai “Do you think today’s rate is okay?” 17:22:43 Ngoc Le “That’s ok p. Dai. However, the difference between scbank rate and market USD rate this morning was not high. Therefore, I suggest you offer rate on screen - .002* usd rate at scb and Aud/Usd rate -0.003 compared to the screen [rate], and the care to Campodia [sic, Cambodia] should be -0.0150. You should check [it] again.”
Sometimes it was as simple as, for example, what occurred on 28 June 2012, when Phuong Dai sent an SMS to Ngoc Le stating, “I have increased to 21,000”, to which Ngoc Le replied, “ok”.
There were also some further communications from Sacombank. For example, on 26 January 2015, in response to an email from Sacombank, which included Sacombank saying, after referring to the discrepancy in that morning’s rates between the businesses:
With such a big gap in your exchange rate, I have to sadly say that the real beneficiaries are the money senders. At the same time, your service fee is considerably affected. Now is also time for the start of the Lunar New Year period. I do hope that you all can find a "common voice" in order to bridge the exchange rate gap.
Ngoc Le responded:
Many a time, I talked to Thi Huong Nguyen and Phuong Dai in order to reach a common exchange rate, since we all want, as business people, to make benefits.
However, there has been no result, and it’s really difficult if this lasts for any longer.
Vina Money gave effect to and Ngoc Le knowingly gave effect to the exchange rate CAU from 12 January 2012 until 5 August 2016, with the communications after January 2015 primarily being between Phuong Dai and Ngoc Le. For example, on 31 July 2015, Ngoc Le sent the following SMS message to Phuong Dai:
There’s been no rate at Vietnam’s market. I suggest [we] should not match the market VND rate. [We] should follow the rate we can exchange with the bank. Please reconsider [this], and what about the fee adjustment?
Currently, there are only 2 companies left, yours and mine. Why don’t we adjust to a higher fee rate, as all the current fees rise?”
It is unnecessary to recite further examples of the substantial communications involving Vina Money and Ngoc Le giving effect to the CAU. Suffice to say those referred to above are fairly typical of the type of communications.
Fee discount CAU
Vina Money had a standard fee schedule that applied from 1 December 2011 to 30 June 2016, unless fee discounts were being applied. The alternative fee schedule that existed from 24 December 2011 to 18 February 2012 allowed fees to be discounted 50% from the standard fees. From 24 December 2011 to 21 January 2012, fees were discounted 50% for the majority of Vina Money’s transactions.
Hong Vina’s standard fee schedule was identical to Vina Money’s fee schedule from 1 December 2011 to 18 June 2016 in respect of transactions of $10,000 or less. From 14 November 2011 to 30 November 2011, fees were discounted 30% for the majority of Hong Vina’s transactions; from 1 December 2011 to 23 December 2011, fees were charged in full to the majority of Hong Vina’s transactions; and from 24 December 2011 to 21 January 2012, fees were discounted 50% for the majority of Hong Vina’s transactions.
There is an apparent discrepancy between the businesses from December 2011 to January 2012 as to the amount of discount applied to fees, and the consistency of their application.
It is inferred that such discrepancy and inconsistency in fee discounting practices across the three businesses led to the discussion about fees in January 2012 between Ngoc Le and Phuong Dai, at a café in Cabramatta. During the course of the meeting, they discussed whether the businesses should charge higher transaction fees, as the fees were currently low, had not changed for a long time, and money was not being made as a result. Ngoc Le said to Phuong Dai that if she agreed, he thought Hong Vina would probably agree as well, and “we should come up with the fees together”.
Following the meeting, from 1 February 2012, a series of SMS messages were exchanged between Ngoc Le, Thi Huong Nguyen, and Phuong Dai discussing the cessation of discounts to fees, and later between Ngoc Le and Thi Huong Nguyen, discussing an agreed rate of discount to be applied to fees in the Footscray branches, and when to apply those discounted fees.
On 20 February 2012, the date on which the first offence of the giving effect to the fee discount CAU occurred, a series of SMS messages were exchanged between Ngoc Le, Thi Huong Nguyen, and Phuong Dai, the result of which led all three businesses to stop discounting fees that same day. That day, Phuong Dai sent SMS messages to Thi Huong Nguyen and Ngoc Le noting that Hong Vina and Vina Money continued to discount fees despite what had been agreed. Ngoc Le said in response, “no more discounts from this morning”. Phuong Dai sent another message to Ngoc Le stating that his discount sign was still up, to which Ngoc Le replied he would have it “checked right now”. Ngoc Le, as director, employee or agent of Vina Money, as a result of these communications, directed Vina Money to return to its standard fee schedule and stop discounting fees at all its locations that same day.
In the lead up to 30 March 2012, the date representing the second offence of the rolled up count, Ngoc Le and Thi Huong Nguyen exchanged SMS messages discussing when to start reducing fees at the Footscray branches, and what that discount rate should be. On 25 March 2012, Ngoc Le requested by SMS message that Thi Huong Nguyen reduce fees at Hong Vina at the same rate as Vina Money, to which Thi Huong Nguyen agreed, asking how much the fee reduction would be. On the same day, Ngoc Le sent Thi Huong Nguyen the new reduced fee schedule to be applied “from tomorrow”. Ngoc Le, as director, employee or agent of Vina Money, as a result of these communications, directed Vina Money to apply the new reduced fee schedule, which discounted fees at 30% off the standard fees, in its Footscray branch from 29 March 2012 to 12 July 2012. Hong Vina applied the same fee discount in its Footscray branch from 30 March 2012 to 15 September 2012.
Further facts for Tony Le
In addition to the summary of facts above, I add by way of overview the following.
As explained above, following the entry into the exchange rate CAU, each of the companies through their servants or agents continued to give effect to it. However, on 20 December 2012, there was a change in the operation of Vina Money. On that day, Ngoc Le sent an SMS message to Phuong Dai saying he was going overseas and gave her Tony Le’s mobile number. Tony Le was then authorised by Ngoc Le to take control of, and was authorised to deal on behalf of, Vina Money. Ngoc Le intended for Tony Le to engage in furthering the CAU by giving effect to it. Tony Le did so from 22 December 2012.
During the relevant period, Tony Le and Phuong Dai exchanged SMS messages to notify each other and agree on exchange rates to offer to customers of Vina Money and Hai Ha. The offence period for Tony Le is from 20 December 2012 until 13 February 2014, the date of the last SMS communication involving him in respect to the exchange rate.
For an example of Tony Le’s communications to Phuong Dai about the rate to apply to Vina Money transactions, on 4 February 2013, the following SMS message communication occurred:
Time From Message 7:52:49 Phuong Dai “21,620” 8:18:01 Tony Le “I will tell my offices to go down to 21620” 8:18:23 Phuong Dai “Please tell them ASAP or I will need to go up” 8:19:39 Tony Le “I’m telling them now”
And on 18 February 2013:
Time From Message 12:26:51 Phuong Dai “I want to drop to 21,400. If I can get Hong Vina to, you happy to drop as well?” 12:30:39 Tony Le “Yeah that's fine. I was originally going to do 400. Just let me know asap and make sure we all drop right away. I don't want Hong to keep it at 500 when I've gone down to 400 so she can get customers” 12:31:06 Phuong Dai “I agree. I’ll call HV now.” 12:53:58 Phuong Dai “Can’t get ahold of her. Will call you when I do.” 12:54:21 Tony Le “Ok”
Further facts for Khai Tran
In addition to the summary of facts above, I add by way of overview the following.
From the earliest relevant time, Khai Tran, as director and secretary of Hong Vina, was responsible for managing and running the day-to-day operations of Hong Vina at all of its branches. In his role as director and secretary, Khai Tran, with his former wife Thi Huong Nguyen, employee of Hong Vina, was responsible for setting the exchange rate offered to customers, and for deciding the amount of fees charged to customers. It is plain that Khai Tran, by reason of his role in the business, was aware that Hong Vina was in competition with both Vina Money and Hai Ha.
In response to the email from Sacombank on 2 December 2011 which is recited above at [29] and [30], in the early hours of 3 December 2011, Khai Tran emailed Sacombank (although initially, it was incorrectly sent only to Phuong Dai of Hai Ha) as follows:
HI TRUNG, I AM REALLY GRATEFUL TO YOU PERSONALLY AND SACOM BANK IN GENERAL, FOR HAVING TRIED TO STAND UP TO HELP [OUR] 3 COMPANIES FIND A GOOD PATH TO WORK TOGETHER. TO BE HONEST, IF [WE] KEEP COMPETING LIKE THIS, IT JUST WASTES OUR HARD WORK. I REALLY HOPE THAT, AFTER THIS EMAIL, ALL 3 COMPANIES CAN FIND TOGETHER A BRIGHTER PATHWAY. AS FOR HONG VINA, [WE] ALWAYS WISH [OUR] CLIENTS TO BE HAPPY WHEN [THEY] COME, AND SATISFIED WHEN [THEY] LEAVE. HOWEVER, THERE WILL NOT BE COMPETITION NOR GIVE OURSELVES TROUBLE IN TERMS OF PRICES [sic – exchange rates]
TIN VUONG P/L..
The communications between Khai Tran and the representatives of the other two businesses thereafter were extensive and frequent. I refer to the table in the relevant statement of facts that sets out details from SMS messages between 14 December 2011 and 7 January 2012 showing the date of the message, time of the message, and rate agreed between the three businesses, with Khai Tran being listed in the table whenever he sent or received a message.
By 11 January 2012, Khai Tran was communicating with the representatives of the other two businesses at various times on various days about what rate to apply, including whether to apply a higher or lower rate than the existing rate, when to apply a change to the rate, and the movement of exchange rates at competing businesses. By a series of SMS and e-mail communications between agents of each of the three companies, by 11 January 2012, each company had made the exchange rate CAU.
The CAU was made by the words and actions of Khai Tran together with Thi Huong Nguyen, as servant or agent of Hong Vina, and servants or agents of Vina Money and Hai Ha. It was the common purpose of Khai Tran, and each company and their co-accused employees or agents, to give effect to the exchange rate CAU.
On a continual basis thereafter, as a course of conduct, to give effect to the provisions of the CAU, Vina Money, Hong Vina and Hai Ha made arrangements or arrived at understandings with each other about exchange rates to be quoted or otherwise communicated to customers and/or potential customers for the supply of their services. The giving effect to was by Khai Tran directing Hong Vina to use the common exchange rate and through the passing of information as to exchange rates and agreements as to common exchange rates thereto between him and Thi Huong Nguyen (as employee or agent of Hong Vina) each of Ngoc Le and Tony Le (as director, employee or agent of Vina Money) and Phuong Dai of Hai Ha. The evidence demonstrates ongoing discussions and agreements directed to the common purpose of Khai Tran giving effect to the CAU. Khai Tran knowingly gave effect by exchanging information as to the rates and what the adjusted rate ought to be, and then directing, encouraging or otherwise causing Hong Vina to apply the agreed exchange rate.
Hong Vina did not operate for the entire period during which Vina Money gave effect to the exchange rate CAU with Hai Ha. While it remained registered, it effectively ceased involvement in the cartel on 15 November 2014. Khai Tran knowingly gave effect to the exchange rate CAU from 12 January 2012 until 15 November 2014.
Further facts for Thi Huong Nguyen
In addition to the summary of facts above, I add by way of overview the following.
Thi Huong Nguyen is the former wife of Khai Tran. At all relevant times she was an employee of Hong Vina, and she and Khai Tran operated the Hong Vina business together. She was responsible, with Khai Tran, for setting the exchange rate offered to customers, and for deciding the amount of fees charged to customers. It is plain that Thi Huong Nguyen, by reason of her role in the business, was aware that Hong Vina was in competition with both Vina Money and Hai Ha.
The telephone communications between Khai Tran and Thi Huong Nguyen were lawfully intercepted pursuant to warrant.
Exchange rate CAU
As mentioned above, in the period of giving effect to the exchange rate CAU, on a continual basis, in a course of conduct, to give effect to the provisions of the CAU, Vina Money, Hong Vina and Hai Ha made arrangements or arrived at understandings with each other about exchange rates to be quoted or otherwise communicated to customers and/or potential customers for the supply of their services.
Thi Huong Nguyen did so as an employee or agent of Hong Vina. The evidence demonstrates ongoing discussions and agreements directed to the common purpose of Thi Huong Nguyen giving effect to the exchange rate CAU until November 2014.
For example, on 21 January 2012, there was a telephone call between Thi Huong Nguyen and Phuong Dai. During the telephone conversation, Thi Huong Nguyen stated that the rate of 21,680 was too high. Thi Huong Nguyen said to Phuong Dai that she had had a conversation with Ngoc Le, during which she and Ngoc Le agreed on dropping the rate. At the end of the conversation, Phuong Dai confirmed that she would also bring Hai Ha’s rate down, in line with the agreement reached between Thi Huong Nguyen and Ngoc Le.
Both Thi Huong Nguyen and Phuong Dai expressed concern in the conversation about whether Ngoc Le was implementing the 2011 understanding. During the conversation Thi Huong Nguyen said:
“And why on earth we should give them at such a high rate over here on Saturday … we can talk to each other when doing business so that we can make a bit of profit … why should we let er keep doing at higher rate so other people will profit? You know what I'm saying?”
On 11 February 2012, Phuong Dai received an SMS from Khai Tran and Thi Huong Nguyen’s daughter, Olivia Tran, providing her father’s Vietnamese telephone number to which Phuong Dai replied, “Thanks”. On 13 February 2012, Phuong Dai called Olivia Tran regarding the number she had been provided, which appeared to be missing a digit. In response, Olivia Tran provided Phuong Dai with Thi Huong Nguyen’s Vietnamese number. From that point, Phuong Dai sent and received SMS messages from the telephone number recorded by Phuong Dai as being that of Thi Huong Nguyen. The parties continued to exchange SMS messages and to match exchange rates until Phuong Dai took maternity leave from 21 February 2012. From 15 April 2012 to 16 January 2013, Khai Tran was overseas. While Phuong Dai was on maternity leave, Thi Huong Nguyen called her on 30 May 2012 and 2 June 2012, expressing concern about the level of exchange rates.
For a further example of communications between Thi Huong Nguyen, Ngoc Le and Phuong Dai, on 16 July 2012, at 1:58 pm, Phuong Dai sent an SMS to Thi Huong Nguyen and Ngoc Le stating that she was cutting Hai Ha’s rate to 21,230. Phuong Dai did not receive a response to her SMS message from either Thi Huong Nguyen or Ngoc Le. Hai Ha’s rate was increased from 21,230 to 21,270 at 2:21 pm. The following communication then occurred:
Time From Message 14:47 Phuong Dai “Nobody cuts [rate]. I’ll keep it.” 14:50 Phuong Dai “I cut [rate] from the beginning when you informed [me]”
Again, the acts undertaken to give effect to the exchange rate CAU are detailed in the agreed statement of facts, and it is unnecessary to recite all of them here. Suffice to say I have taken them into account.
As noted above, Hong Vina did not operate for the entire period during which Vina Money gave effect to the exchange rate CAU with Hai Ha. Thi Huong Nguyen knowingly gave effect to the exchange rate CAU from 12 January 2012 until 15 November 2014.
Fee discount CAU
A summary of facts relating to the lead up to giving effect to the fee discount CAU, including facts which relate to Thi Huong Nguyen, is set out above at [48] to [52], when considering the case in respect to Vina Money and Ngoc Le.
Those facts that relate to the rolled up count are at [53] for the first limb and [54] for the second limb.
The investigation
In 2014, the Australian Criminal Intelligence Commission (formerly the Australian Crime Commission), lawfully intercepted telecommunications of Thi Huong Nguyen and Khai Tran in relation to an unrelated investigation. Analysis of those communications identified that between December 2011 and July 2012 both were in regular communication, via telephone conversations and SMS, with Ngoc Le and Phuong Dai.
The communications revealed that the businesses were notifying each other of exchange rates to be charged to customers, in VND, and discussing transaction fees.
In June 2014, the Australian Crime Commission referred this matter to the Australian Federal Police (AFP) and Australian Competition and Consumer Commission for investigation. As a result of that referral, the AFP and Australian Competition and Consumer Commission commenced an investigation into suspected cartel conduct that was contrary to provisions in the CCA. . On 28 October 2016, the AFP, with the assistance of the Commission, executed search warrants at the business premises of Hong Vina, Vina Money and Hai Ha, and the residential premises of Khai Tran, Thi Huong Nguyen, Ngoc Le, Tony Le and Phuong Dai, pursuant to s 3E of the Crimes Act1914 (Cth).
Offence provisions
As referred to above, the offence to which Vina Money has pleaded guilty is giving effect to a CAU that contained a cartel provision contrary to s 44ZZRG(1) of the CCA. I note that s 44ZZRG was amended in 2017 and replaced with s 45AG. Given the dates of the offending it is s 44ZZRG which is the relevant offence provision. Section 44ZZRG(1) (as then in force) is as follows:
44ZZRG Giving effect to a cartel provision
Offence
(1) A corporation commits an offence if:
(a)a contract, arrangement or understanding contains a cartel provision; and
(b)the corporation gives effect to the cartel provision.
…
(2) The fault element for paragraph (1)(a) is knowledge or belief.
As apparent from the terms of the provision, it concerns corporations that contravene a cartel offence provision. The offence to which Ngoc Le, Khai Tran, Tony Le and Thi Huong Nguyen have pleaded guilty is being knowingly concerned in the contravention of a cartel offence provision, namely s 44ZZRG(1) of the CCA, contrary to s 79(1)(c) of the CCA. Section 79(1) is as follows:
79 Offences against section 44ZZRF or 44ZZRG
(1) A person who:
(aa) attempts to contravene; or
(a) aids, abets, counsels or procures a person to contravene; or
(b) induces, or attempts to induce, a person (whether by threats or promises or otherwise) to contravene; or
(c) is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of; or
(d) conspires with others to contravene;
a cartel offence provision is taken to have contravened that provision and is punishable:
(e) in a case where:
(i) the provision is a cartel offence provision; and
(ii) the person is not a body corporate;
by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both; or
(f) in any other case—accordingly.
Evidence
As noted above at [14], the Director tendered a statement of facts in respect to each matter, and each matter proceeded on its particular factual statement. In addition, the Director tendered material in each matter comprising, inter alia, portions of the transcript from the committal proceedings, and a statement of Matthew Weiner (AFP Digital Forensics) with attachments.
In respect to Ngoc Le, four character references were tendered:
(1)Evan Bekiaris dated 13 December 2021;
(2)Hung Ly dated 15 December 2021;
(3)Thi Nhu Quynh Ho dated 17 December 2021; and
(4)Bao Lac Le dated 31 December 2021.
A report dated 28 January 2022 from Kris North, a psychologist, was also tendered. I note the offender did not give evidence. I will return to these matters of evidence below.
In respect to Tony Le, six character references were tendered:
(1)Evan Bekiaris dated 13 December 2021;
(2)Hung Ly dated 15 December 2021;
(3)Vuong Nguyen dated 14 January 2022.
(4)Andy Tran dated 17 January 2022;
(5)Thien Cat Tien Bui dated 18 January 2022; and
(6)Richard Nguyen dated 19 January 2022.
Two character witnesses were called to give evidence: Thien Cat Tien Bui and Vuong Nguyen.
No evidence was tendered by Khai Tran or Thi Huong Nguyen.
Sentencing principles
The offenders fall to be sentenced in accordance with Pt 1B of the Crimes Act, which requires that the sentence imposed by the court be of a “severity appropriate in all the circumstances of the offence”: s 16A(1) of the Crimes Act.
In determining the sentence to be passed, in addition to any other matters, the Court must take into account the matters set out in s 16A(2) as far as they are relevant and known to the Court. This list relevantly includes: the nature and circumstances of the offence: s 16A(2)(a); if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character, that course of conduct: s 16A(2)(c); any injury, loss or damage resulting from the offence: s 16A(2)(e); the degree to which the person has shown contrition for the offence: s 16A(2)(f); if the person has pleaded guilty to the charge in respect of the offence, that fact, the timing of the plea, and the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g); the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences: s 16A(2)(h); the deterrent effect that any sentence or order under consideration may have on the offender: s 16A(2)(j) (specific deterrence); the deterrent effect that any sentence or order under consideration may have on other persons: s 16A(2)(ja) (general deterrence); the need to ensure that the person is adequately punished for the offence: s 16A(2)(k); the character, antecedents, age, means and physical and mental condition of the person: s 16A(2)(m); if the person’s standing in the community was used by the person to aid in the commission of the offence, that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates: s 16A(2)(ma); the prospects of rehabilitation of the person: s 16A(2)(n); and the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents: s 16A(2)(p).
It is important to recall that in sentencing, a court may not take into account facts adverse to the interests of the offender unless those facts are established beyond reasonable doubt. For facts in favour of the offender, it is enough that those facts are proved on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. As to the latter, the onus is on the offender to establish those mitigating factors. That said, as noted above, s 16A requires that those matters be taken into account so far as they are “relevant and known to the court”. That is not to be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted: Weiningerv The Queen [2003] HCA 14; (2003) 212 CLR 629 at [21]-[22].
The sentencing process involves the judge weighing all the relevant circumstances and making a judgment as to what is the appropriate sentence. It involves the balancing of many different and conflicting features: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [75]. This has been described as a process of “instinctive synthesis”, namely, as described by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51], “the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”.
I will refer to further sentencing principles relevant to the s 16A factors when addressing the submissions advanced in respect to each offender. However, given each of the offenders who fall to be sentenced pleaded guilty, it is appropriate to refer in more detail to the effect of that on the sentencing process.
The court is required to take into account not only the fact of the plea of guilty, but also its timing and the degree to which the timing resulted in any benefit to the community or any victim of, or witness to, the offence: s 16A(2)(g). This requires the court to take into account the utilitarian effect of the plea, in addition to any subjective significance that may flow from it (for example, as a reflection of remorse or contrition, or a willingness to facilitate the course of justice). The utilitarian value involves an objective assessment to be undertaken. On the other hand, if an offender has demonstrated contrition involving facilitating the course of justice as evidenced by the plea, this is a subjective factor and involves an enquiry as to the attitude of the offender and an assessment of contrition. It may be taken into account in the offender’s favour: s 16A(2)(f), see Bae v R [2020] NSWCCA 35 at [55]-[57]; Khalid v R [2020] NSWCCA 73; (2020) 102 NSWLR 160 at [88]. Although there is no requirement in the Crimes Act to specify or quantify the reduction given for the guilty plea, it has become the practice in some states to do so (NSW, for example, but cf Victoria). It follows, though, that the failure to do so is not an error. This topic of specifying the reduction was only addressed in the sentencing hearing for Thi Huong Nguyen. The Director recognised that there was a difference in practice between NSW and Victoria, and did not urge that a percentage discount must be given. It was accepted that it was not an error to specify a discount. Following the introduction of s 16A(2)(g), its operation was considered by Johnson J in Bae (with whom Bell P and Walton J agreed), concluding at [57]:
The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender.
The approach described in Bae has repeatedly been applied.
The advantage of specifying the reduction for the utilitarian value of the plea is that it recognises the degree of discount for the step taken, and provides, inter alia, guidance to others as to the possible impact of a plea of guilty on the sentencing process. It also provides transparency in the sentencing process, as it is (with assistance to law enforcement authorities) the only aspect of the sentencing process where a discount is given. Other factors, both mitigatory and otherwise, are weighed in the instinctive synthesis sentencing process.
There is a dearth of authority on sentencing in respect to contraventions of the criminal cartel provisions in the CCA, with only the cases of Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876; (2017) 254 FCR 235 (NYK); Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170; (2019) 137 ACSR 75 (K-Line); and CDPP v Wallenius Wilhelmsen Ocean AS [2021] FCA 52; (2021) 386 ALR 98 (WWO) (all interrelated matters concerning CAUs in a shipping context), which specifically address the nature of these types of offences.
Before considering the cases in respect to each offender, it is appropriate to make some general observations about the nature of cartel offences.
First, as Wigney J observed in WWO at [170]:
It is trite to observe that cartel conduct generally involves anti-competitive conduct of a very serious nature that should be emphatically condemned and deterred by the imposition of appropriately stern penalties. Prior to 2009, cartel conduct attracted only civil penalties. The fact that cartel conduct was criminalised in 2009 no doubt reflects the fact that Parliament regarded it sufficiently serious as to attract “opprobrium and societal condemnation in a way that the imposition of a civil penalty cannot”: CDPP v NYK at [215]-[216], also at [1] which reproduces the Minister’s Second Reading Speech; CDPP v K-Line at [275], [278].
Second, aligned with that observation, the maximum penalty for a company for a contravention of s 44ZZRG, is calculated by reference to s 44ZZRG(3), which states as follows:
Penalty
(3)An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:
(a) $10,000,000;
(b) if the court can determine the total value of the benefits that:
(i) have been obtained by one or more persons; and
(ii) are reasonably attributable to the commission of the offence;
3 times that total value;
(c)if the court cannot determine the total value of those benefits—10% of the corporation’s annual turnover during the 12‑month period ending at the end of the month in which the corporation committed, or began committing, the offence.
The provision is rather unusual in that it provides for alternative maximum penalties, based on either benefits obtained or annual turnover: NYK at [210]. In respect to the latter, the maximum penalty varies depending on the amount of annual turnover.
In relation to Vina Money, s 44ZZRG(3)(b) does not apply, because the “total value of the benefits” cannot be determined due to difficulties in calculating the advantages obtained by Vina Money reasonably attributable to the commission of the offence. It is accepted that the annual turnover of Vina Money during the 12-month period ending at the end of the month in which it committed or began committing each offence was less than $100 million, and accordingly, the maximum fine is that contained in s 44ZZRG(3)(a): $10,000,000.
The maximum penalty for the individual offenders, in this case Ngoc Le, Khai Tran, Tony Le and Thi Huong Nguyen, is that in s 79(1): a term of imprisonment not exceeding 10 years, or a fine not exceeding 2,000 penalty units (equating to $220,000), or both: s 79(1)(e).
In this regard, in Markarian, the plurality observed at [31]:
…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
Third, in NYK at [220] and later in K-Line at [279]-[281] and WWO at [174]-[175], Wigney J recognised that some guidance as to relevant sentencing factors can be gained from civil penalty cases in respect to cartel conduct. In those cases he referred to the convenient summary of the principles in Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516; (2016) 118 ACSR 124 (ANZ) at [86]-[89]:
[86]In general terms, the factors that may be relevant when fixing a pecuniary penalty may conveniently be categorised according to whether they relate to the objective nature and serious [sic] of the offending conduct, or concern the particular circumstances of the contravenor in question (what sentencing judges commonly refer to as the offender’s “subjectives” or the “subjective circumstances”).
[87]The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the contravenor is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.
[88]The factors that concern the particular circumstances of the contravenor (where the contravenor is a corporation) generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.
[89]The size of the contravening corporation does not of itself justify a higher penalty than might otherwise be imposed: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 at 559-561 [89]-[92]. The size of the corporation may, however, be particularly relevant in determining the size of the pecuniary penalty that would operate as an effective deterrent. The sum required to achieve that object will generally be larger where the company has vast resources: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265; 215 ALR 301 at 309 [39]; Australian Competition and Consumer Commission v Apple Pty Limited [2012] FCA 646 at [38].
Although there are differences between the civil process and the criminal process, the factors referred to in ANZ are not surprising, and are really matters of common sense, given the nature of cartel offences. Having recited in WWO the above passage, Wigney J went on to observe at [175]:
Many of the relevant factors or considerations that have been noted in the civil penalty context have been replicated, to varying degrees, in the list of mandatory considerations found in s 16A(2) of the Crimes Act. It is also important to emphasise that those factors or considerations should not be treated as a “rigid catalogue or checklist” to be applied in each case: see CDPP v NYK at [220]; CDPP v K-Line at [281]. It ultimately remains a matter for the Court to consider the nature and objective seriousness of the offending conduct by assessing all of the relevant facts and considerations…
Fourth, the nature of cartel offences are such that general deterrence is of particular importance; indeed, ordinarily, it is a weighty or primary sentencing consideration.
In NYK, Wigney J correctly said at [273]-[274]:
[273]First, as has already been noted, cartel conduct is notoriously difficult to detect, investigate and prosecute. It often involves large and sophisticated corporate offenders who can deploy their considerable resources and position to minimise the risk of detection. It is generally accepted that general deterrence is a weighty consideration in sentencing for offences which are difficult to detect and investigate: see for example R v Curtis (No 3) [2016] NSWSC 866 at [51]-[53]; R v Hannes [2000] NSWCCA 503; 158 FLR 359 at [394]; R v Rivkin [2004] NSWCCA 7; 184 FLR 365 at [423]. The importance of general deterrence has also been accepted in imposing penalties for anti-competitive conduct in the civil penalty context: ABB Transmission at [16]; Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (No 5) [1998] FCA 310; J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365; 172 ALR 532 at [157].
[274]Second, cartel conduct is an essentially economic or commercial crime that generally involves the offender weighing up whether the benefit or profit from the conduct is likely to outweigh the risks of detection and penalisation. Sentences imposed for such offences should be set so that others who may engage in such a weighing exercise will come to appreciate that the risks are likely to outweigh the benefits: that the likely penalty will be such that it could not be regarded as an acceptable cost of doing business. This consideration has also been accepted in the civil penalty context: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 at [62]-[63]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [65]-[66]; Australian Competition and Consumer Commission v Visa Inc [2015] FCA 1020; 339 ALR 413 at [114].
As general deterrence is a paramount sentencing consideration, factors personal to the offender such as good character and other mitigatory factors are necessarily afforded less weight than they otherwise might be: Gajjar v R [2008] VSCA 268; (2008) 192 A Crim R 76 at [27] and [28]; DPP (Cth) v Page [2006] VSCA 224 at [37]; DPP (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546 at [193]; R v Nguyen and Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72].
Fifth, the nature of cartel offending is such that it may not be possible to ascertain or quantify the consequence on the market. Nonetheless, as Wigney J observed in WWO at [242]:
It would be wrong, however, to approach this offence as if it were a victimless offence, simply because no specific individual or quantified loss can be identified. The cartel offence in s 44ZZRG(1) is part of a suite of provisions in the CCA that are designed to protect the integrity of Australia’s markets and economic system: see also s 2 of the CCA. Australia’s economy, like other free-market economies, is based on the philosophy that private enterprise and competition will foster productivity, efficiencies and innovation for the greater good of the economy and the community generally. Cartel conduct, like other anti-competitive behaviour, is inimical to, destructive of and may lead to a loss of public confidence in, Australia’s markets and economic system. That is so even where the conduct, as here, is eventually uncovered and punished.
Finally, I observe that there are no comparative sentencing cases within the meaning of the concept described in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [53]-[54] and The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [28]-[29]. This is the first occasion on which individuals, rather than corporations, fall to be sentenced for this type of offending. The shipping cartel cases of NYK, K-Line and WWO involve only corporations and have features which do not apply in this case, as I discuss below at [130]. That said, the nature of this type of offending bears similarities to features often present in other white collar crime, for example, the difficulties in detection, the complexity of the investigation, and the financial advantage sought to be gained. Principles relevant to those topics may, depending on the circumstances, be equally applicable to this type of offending. So much is reflected in the observations in NYK and later cases.
In the context of the above, I turn to the question of the objective gravity of the offending conduct.
Objective seriousness of the offending
It is appropriate at the outset to make some general observations about the objective gravity of the offending.
An overview of the facts, based on the statement of facts relevant to each offender is given above and, as previously explained, I have taken into account, in relation to each offender, the entirety of the statement of facts relevant to that offender. The sentences imposed in relation to each offender is based on the respective statement of facts.
The Director submitted that in relation to each offender, the objective seriousness of the offending in this case is properly to be characterised in the low to moderate range of offending. The offenders also commended that conclusion, although some simply referred to it as lower-level offending. The submissions made are addressed in more detail below when considering the individual cases.
Suffice to say at this stage, having considered the submissions and evidence relevant to each offender, and having taken into account the relevant principles, I am satisfied that the offences in each case are properly characterised in that manner. The offending is also properly described, in respect to each case, as serious. Of course, the role or extent of the conduct of the individual offenders varies, and is addressed below. Regardless, the conduct in each instance is serious.
I accept the Director’s submission made in relation to each offender (based on the evidence relevant to that offender), that the offending – in giving effect to the CAU, or being knowingly concerned in giving effect to the CAU – was committed for financial gain.
Exchange rate CAU
Each of the offenders pleaded guilty to conduct in relation to giving effect to the exchange rate CAU.
The purpose or consequence of the exchange rate CAU was for the three competitors to maintain market share. As described above, although they are small independent companies by comparison to the other avenues for money remittance, by volume they had between them two-thirds of the market share, which is a substantial share of the market. The maintenance of that share was critical to the success of their businesses (in a competitive market) because the profit they made was from the fees on the transactions and not from the exchange rate variants. The competitors, therefore, made their money based on the volume of customers and transactions that ensued. During the period of intense competition, customers were going from one business to another looking for the best return. A company offering greater value for the AUD for VND would take business from its competitors. That no doubt adversely impacted on the financial position of the business. The CAU meant there was no reason for customers to shop between these three competitors for a better return, because the rate of exchange between the three competitors would remain the same. The businesses would not lose business to its competitors on account of that competitor fixing a better exchange rate. The consequence was that by giving effect to the CAU the three competitors maintained their market share. By giving effect to the CAU the companies continued to benefit from their share of the market and did not risk losing customers to a competitor. This was of economic benefit to the businesses. As the Director submitted, the significance or importance of this explains why the CAU continued to be given effect to for so long. There was plainly a financial motive.
I accept the Director’s submission that an offence contrary to s 44ZZRG(1) is capable of being characterised as an ongoing offence. The Director described the offending as a course of conduct, as do the statements of fact. That said, any one act is sufficient to give effect to a CAU and to constitute an offence. Only one act is needed to commit the offence, and so an offence is committed each time a corporation engages in conduct which gives effect to a cartel provision: NYK at [205]. Plainly, here, very many acts are referred to in the statement of facts, varying between each offender. Those acts, and the periods of time over which they were undertaken, necessarily impacts the seriousness of the offending. Although the CAU was not applied in every instance, the implementation of the CAU was deliberate and involved repeated conduct. I accept that there was at least a degree of sophistication, planning and cooperation involved in the offending.
Fee discount CAU
Vina Money, Ngoc Le and Thi Huong Nguyen also pleaded guilty to the fee discount CAU.
Offering fee discounts on transactions to customers was a way to attract customers to a business and away from competitors. It follows that by giving effect to a CAU between competitors which agreed to either cease applying discounts to customer fees for the provision of services or to apply the same amount of discounts, cuts out any competitive advantage. Again, giving effect to that CAU could only be for a financial benefit.
These are rolled-up counts. A “rolled-up” count is one in which more than one contravention of the relevant offence provision, or more than one episode of criminality, is particularised as part of the charge. Such a procedure has been adopted in some cases where there is a guilty plea, and where there is consent of the offender’s counsel, for otherwise the counts would be regarded as duplicitous: R v Jones [2004] VSCA 68 at [13]; NYK at [206]-[207]. The maximum penalty for the offence remains the same as if it were a single offence. However, the objective criminality of the offence is greater for the offender than if there was only one count: Jones at [13]; NYK at [207].
That said, it is important to consider the actions of each individual offender in being knowingly concerned with giving effect to the particular CAU, or in respect to Vina Money, giving effect to the CAUs, and when considering the case against each I address specific submissions advanced by each of the offenders as to the seriousness of this offending.
Cartel offending
In that context, before addressing the individual cases it is appropriate to make some observations pertinent to submissions made by each offender.
It may be readily accepted that Vina Money and the other businesses, in giving effect to the CAUs, are in a different position to those corporations involved in the CAU considered in NYK, WWO and K-Line. Nonetheless, the nature of the evil is the same, in that the conduct is anti-competitive, affecting customers. Moreover, although the businesses involved in giving effect to the cartel conduct were known as ‘independents’ and were smaller corporate entities than the other market participants in money remittance services (such as banks and multinational corporations), the independents occupied approximately two-thirds of the market share. This reflects on the impact of the conduct on the market.
Although the independents were smaller companies and therefore some of the observations from NYK and the other cases of WWO and K-Line would not have resonance, for example, observations about the commercial size, complexity of the arrangement and the offenders being sophisticated corporate offenders who could deploy their considerable resources and position to minimise the risk of detection, nonetheless, plainly, the observations about the operational object of the cartel being to advance company interests do apply. That is why, for example, the exchange rate CAU was given effect to for such a long period. Therefore, the discussion as to nature and purpose of the harm referred to in those cases applies here, although at a lower scale.
Observations made of the difficulties in detecting offences of this nature must also apply. Although it was suggested that this conduct was not covert, in that there are recorded conversations, it is apparent that the investigation that detected this offending appears to have stemmed from lawfully intercepted communications between Thi Huong Nguyen and Khai Tran, unrelated to this offending. Clearly, such conduct remains difficult to detect.
General deterrence in imposing sentences for cartel offences, as explained in NYK and the other cases, remains significant.
Having considered the objective gravity of the offending conduct generally, I turn to the case in respect to each offender.
Vina Money and Ngoc Le
The same counsel represented both offenders, and to some degree there was overlap in the submissions (and often made without differentiating between the offenders). As a consequence, I propose to address the submissions together. I note that the position in relation to Vina Money was given comparatively less attention than that of Ngoc Le. One statement of facts related to both these offenders.
The offending
It is first appropriate to supplement the general observations made above as to the seriousness of the offending, addressing specific submissions made in relation to these offenders.
For Vina Money and Ngoc Le, it was submitted that the circumstances of the offending included the cartel agreement forming out of pressure from Sacombank; that it was an unsophisticated arrangement; and that Vina Money remained in competition with other local money transfer competitors and multinational money transfer organisations and banks.
The offenders acknowledged the almost five-year duration of the offending was a lengthy period of time, but submitted that in considering Ngoc Le’s role as director of Vina Money, those matters (referred to immediately above) were relevant to his moral culpability. In addition, it was submitted that he was negligent and careless in his engagement in the cartel, and that his engagement in the first place was in response to prompting by Sacombank. His engagement in the cartel was also explained by his lack of training in antitrust legislation. It was submitted that Ngoc Le did not organise or attempt to engage in the enforcement of the reached agreement (there were in fact multiple occasions where he acted against the agreement). It was acknowledged that Ngoc Le was the most senior employee of Vina Money, being its director. It was also submitted that Vina Money’s size and financial position is small in comparison to the corporations ordinarily prosecuted under s 44ZZRG.
It was submitted that the impact on third parties is indecipherable, in part, due to Vina Money remaining competitive with banks and other money transfer companies. There were periods where Vina Money disengaged with the cartel. It was submitted that the Court cannot be satisfied that the reached agreement caused a stabilisation of the market rate due to the inefficiency of the cartel and the presence of other competitors. The cartel agreement was not seeking for customers to remain allocated between Vina Money, Hong Vina and Hai Ha. Rather, the companies continued to compete against each other for the customers in the areas where their respective shops and agents were located. It was submitted that the benefit that was enjoyed by Vina Money was chiefly the continued partnership with Sacombank. This benefit was said to be of some significance as there were only two available Vietnamese banks for that kind of partnership. The other option would have negatively impacted Vina Money’s ability to transfer money in a timely manner and would likely have led to a reduction in customers. It was submitted that Vina Money’s fear of losing Sacombank’s partnership was during a time where de-banking was occurring and there was pressure by Sacombank for Vina Money to apply the wholesale rate or they would lose Sacombank’s services. The communication about the agreement could be uncovered easily due to the cartel members communicating by text message and email. The inefficiency of this agreement was in part due to Vina Money not always adhering to the agreement due to their desire to remain competitive.
The degree of Vina Money’s involvement in giving effect to and Ngoc Le’s involvement in being knowingly concerned in giving effect to the exchange rate CAU is readily apparent from the statement of facts. Their roles were critical to the implementation of the CAU.
The offenders’ submissions fail to properly recognise the purpose of knowingly giving effect to the exchange rate CAU, as described above.
As explained above, the consequence of Vina Money giving effect to and Ngoc Le being knowingly concerned in giving effect to the exchange rate CAU was that Vina Money continued to benefit from its share of the market and did not risk losing customers to other businesses.
The criminalisation of cartel conduct was directed to preventing arrangements between competitors that harm the market or reduce competition and thereby disadvantage customers. Here, the customers lost what had been their ability to shop around between these competitors for a better return in exchanging their money from AUD to VND. This CAU was given effect to by Vina Money and Ngoc Le for nearly five years, with the purpose of the participants maintaining their significant share of the market. It can readily be inferred from the statement of facts that Ngoc Le (and therefore Vina Money) was aware that the consequence of the CAU was disadvantageous to customers but advantageous to him and his business. It provided an economic benefit for each of the businesses, and relevantly for Vina Money and for Ngoc Le, as its director, employee or agent.
Although Vina Money and Ngoc Le acknowledged that the offences are serious, a number of submissions were advanced which tended to reflect otherwise.
The submission by Vina Money and Ngoc Le that they were still providing a competitive rate to customers, or that without these companies (Vina Money, Hong Vina and Hai Ha) the customers would need to deal with the banks or international remittance services, fails to recognise the nature and purpose of the exchange rate CAU and its consequences on competition between the businesses. The submission was that the conduct was not “designed to rip off customers” because the customers were “still doing better with the independents than they would have been doing if the independents went out of business and the customers had to go to the banks or the multinationals”, in which case “the customers would be worse off”. The submission attempts to minimise the seriousness of the conduct engaged in. It fails to recognise that the customers were denied the effects of competition between the businesses, which would have been financially advantageous to them. The rate the businesses provided (even if it was favourable to customers by comparison to the rates of banks and international money remittance services) was calculated so as to benefit the businesses, in this instance, Vina Money, and its director, Ngoc Le, and not the customers. As advanced, the submission tends to characterise the offending conduct as nonetheless advantageous to customers, as they were still in a better position dealing with these independents as opposed to dealing with other types of businesses for money remittance. The impression gained from at least some of the submissions is that the conduct was rather an altruistic act.
The next issue is the imposition of a recognizance release order. I note this conduct occurred before Khai Tran was dealt with on other charges. It was submitted that because of the timing of these charges, he has been in a constant state of suspense. No doubt had these charges been known and dealt with at the same time as the other offending for which he was sentenced, the sentence imposed there would have been more severe. Nonetheless, it can be accepted that as a consequence, although he was sentenced to imprisonment, he was released forthwith on a good behaviour bond. He has since successfully completed his release on a recognizance order without further offending. I take into account other matters favourable to him, as described above. As noted above, the seriousness of the offences and general deterrence are still relevant to this stage of the sentencing process. I am also conscious of the importance of parity in sentences imposed when dealing with co-offenders. Weighing the relevant matters, in the circumstances, I am persuaded that a recognizance release order should be made such that Khai Tran is released forthwith. The period of the recognizance is that he be of good behaviour for 3 years in the amount of $1000.
Thi Huong Nguyen
The offending
The nature and purpose of the exchange rate CAU, which was knowingly given effect to, is described above at [122]. Again, the conclusions as to the objective gravity of the offending at [118]-[120] and [122]-[123] equally apply. The nature and purpose of the fee discount CAU is described above at [125], and the conclusions at [118]-[120], [125]-[126] and [158] apply. It is not necessary to repeat those matters here.
The Director submitted that Thi Huong Nguyen’s role in this offending was more involved than that of Khai Tran, her ex-husband, and that her communications with Phuong Dai and Ngoc Le were extensive. The Director placed Thi Huong Nguyen’s offending at a level of offending commensurate with that of Ngoc Le, although the Director acknowledged that her involvement was for a significantly lesser period. Thi Huong Nguyen accepted that characterisation, and accepted that her involvement was more than that of Khai Tran. Having considered the agreed statement of facts in her case, that submission can be accepted. The Director submitted that the conduct necessarily involved a contract, agreement or understanding and regular cooperation over an extensive period with other market participants, the conduct affected customers of money remittance services, and is serious offending. For the reasons given, that can be accepted.
Further, for reasons previously given, there is a degree of sophistication, planning and cooperation involved in the offending. I accept the Director’s submission that it can be inferred that offending of this nature was committed solely for financial gain. Indeed, Thi Huong Nguyen accepted as much, and pointed to the passage in the statement of agreed facts, recited above at [72], as reflecting this. In submissions, Thi Huong Nguyen was forthright in accepting responsibility for her conduct.
Thi Huong Nguyen accepted that her conduct affected customers of money remittance services, but that the conduct constituting this offence should be assessed as an example of lower-level cartel conduct. She submitted that it is relevant to note that the initial approach by Sacombank in March 2011 did not immediately result in a CAU. This, however, is of no real significance, as she is not charged with making a CAU. That said, in submissions, Thi Huong Nguyen confined the relevance of this to the assessment of the prospects of her reoffending. I accepted that may be so, but it is of little weight in the context of the later conduct. It was also accepted by Thi Huong Nguyen that her conduct was deliberate and planned. It was submitted, however, that the facts establish she was taking or accepting the direction of others, in terms of setting the rates and fees. Further, it was submitted that she was not the instigator of either agreement, and was not present at the meeting between Ngoc Le and Phuong Dai in January 2012 during which the potential for an agreement on ceasing fee discounts was discussed.
Thi Huong Nguyen accepted that as the offences on the indictment are ‘rolled up’, the offending involves multiple acts of criminality and is a course of conduct offending. However, it was submitted that the nature of cartel conduct offences is that they are likely to occur over a period of time (rather than occurring as isolated or one-off instances) so this feature is likely to be present in the majority of cartel cases. It was said that it would be very difficult to imagine an example of a cartel offence that did not reflect this, as the way in which these offences are committed is that for there to be any real benefit to the agreement, the cartel has to exist for a longer period than a one-off instance. In that context it was submitted that to the extent that it is relevant, the period of time over which these offences were committed is highly relevant, but does not necessarily elevate this example of cartel conduct above and beyond a typical example of cartel behaviour. Although I accept that giving effect to a particular CAU may involve a course of conduct, I do not accept that it is difficult to envisage an agreement which, given its nature, is only given effect to on one occasion. Indeed, it can well be envisaged that such conduct can occur, and effect very significant ramifications. As accepted by Thi Huong Nguyen, this offence can be committed by one act of giving effect to a CAU. This simply reflects that assessing the seriousness of cartel conduct necessarily depends on the circumstances of the particular case.
The offending conduct occurred between 12 January 2012 and 15 November 2014, a shorter period than that of Vina Money and that of Ngoc Le. The period of time charged for the exchange rate CAU was almost three years. That is a significant period. The period of time charged for the fee discount CAU was more limited. That length of time over which the offending occurred necessarily impacts the seriousness of this offending.
Thi Huong Nguyen submitted that the CAU was not being given effect to every day or on every occasion, although she properly acknowledged that that is not mitigating, referring to NYK. In NYK it was observed at [231] that: “experience has shown that cheating between cartelists is a common feature of many cartels. Indeed, economic theory suggests that such conduct is economically rational. It is in the cartelist’s own self-interest to cheat on the cartel. They do not cheat for the benefit of the customer or consumer”.
It was also submitted that when assessing the potential detriment of the cartel conduct, it is relevant that consumers were able to use major banking institutions and registered money remittance services as an alternative to the independents. It was accepted the independents represented a substantial percentage of the market share (approximately two-thirds).
It was also accepted that the Director is unable to quantify the exact extent of the consequences to the market or to individual victims, which reflects the ordinary state of affairs for cartel cases, and that the inability to quantify the loss or identify a particular victim does not necessarily mitigate the offending. Rather, the offences to which the offender has entered pleas of guilty focus on the damage sustained by the markets and economic system.
Thi Huong Nguyen, as with the other offenders, sought to highlight some differences between her and the offenders in NYK and the other shipping cases.
Personal/subjective matters
Thi Huong Nguyen submitted that she entered a plea of guilty at an early stage which was accepted by the Director. It was submitted that the plea of guilty has saved the community the expense of running what may have been a lengthy and complicated trial and is indicative of a willingness to facilitate the course of justice and an acceptance of responsibility. The Director submitted that Thi Huong Nguyen had flagged resolution of this matter at a reasonably early stage of proceedings, being post-committal, but prior to the listing of any trial date. The Director accepted that the plea of guilty, and the reasonably early timing of it, is significant and the utilitarian value is high in a case such as this. The Director observed that although this plea was entered after those of her co-accused, it was accepted that factors outside her control (namely, legal funding issues and change of counsel) would have contributed significantly to the delay in pleading guilty compared to her co-accused. I accept the plea was entered at a reasonably early stage, and although later than her co-accused. I accept that matters outside her control may have delayed the resolution of her matter.
I also accept and take into account that in addition to the plea of guilty, Thi Huong Nguyen made admissions to investigating officials when she was first questioned on the day of the execution of the search warrant on her home. I accept she did so in a forthright manner.
Thi Huong Nguyen submitted that specific deterrence should have moderate weight in this sentencing exercise given the passage of time since the offence commission dates, co-operation with investigating authorities and her pleas of guilty. Thi Huong Nguyen accepted that she had a prior criminal history and, accordingly, is unable to rely on prior good character. This history is one offence, said to have occurred in 2012. Little is known of this offence except that it related to failing to answer a question (or giving false and misleading information) in a compulsory examination conducted by the then Australian Crime Commission. I note also that after this offending, in October 2016, Thi Huong Nguyen was sentenced in the County Court for offences that focused on operating an unlicensed money remittance business, which was Hong Vina. The period of that offending is not entirely the same as the cartel offending, but there is said to be significant overlap. For those offences, Thi Huong Nguyen received a total effective sentence of 26 months imprisonment, to be released immediately on a recognizance release order to be of good behaviour for a period of 3 years. That bond was completed without further offending.
It was submitted that when Thi Huong Nguyen engaged in this conduct, she had limited awareness that it was against the law. It was submitted that this goes to the moral culpability of the offending. This submission was not challenged.
Thi Huong Nguyen outlined her personal circumstances. She rents, she receives unemployment benefits, and it was said that her financial state can only be described as parlous, in that the rent she pays on her home exceeds the amount of unemployment benefits she receives. Her three youngest children from the relationship with Khai Van Tran live with her, and two of those children are studying and one is working, however, the one who is working has not yet started to contribute to the rent. She often relies on loans or the goodwill of friends and family to meet essential expenses. Once her language proficiency increases, she hopes to be in a much better position to obtain gainful employment.
Disposition
The Director submitted, as with Ngoc Le and Khai Tran, that bearing in mind the maximum penalty, the importance of general deterrence, in particular, the need to deter those who may see possible penalty as a cost of doing business, the difficulty of detecting and proving cartel offences and the conduct of the defendant in committing the offences, that punishment and denunciation ought to be given appropriate weight. Objectively viewed, Thi Huong Nguyen’s criminality was low to moderate.
The Director submitted that, in the case of Thi Huong Nguyen, the objective gravity of the offending warrants in all the circumstances the imposition of an immediate custodial sentence. As with Ngoc Le and Khai Tran, I note that although the Director contended that that was the appropriate sentence, the Director accepted that it would not be an appellable error if a period of imprisonment was imposed but Thi Huong Nguyen was released on a recognizance release order without serving the sentence immediately. That is, that that outcome would be within the sentencing discretion open in the circumstances.
Thi Huong Nguyen accepted that a period of imprisonment was the appropriate sentence, but submitted that in the circumstances a recognizance release order could be made such that she serves no period of imprisonment immediately. In making the submission she pointed to the fact that any such order to be of good behaviour can be 5 years.
Thi Huong Nguyen is to be sentenced for two offences, one of which was an ongoing course of conduct involving very many acts of knowingly giving effect to the exchange rate CAU over nearly three years, and the other being a rolled-up count in respect to knowingly giving effect to the fee discount CAU. As previously made clear, Thi Huong Nguyen is not being sentenced for making a CAU.
I have made findings in relation to the relevant features above. Weighing these features and considerations, and having regard to the relevant sentencing principles, I determine that the appropriate sentence for each offence is a sentence of imprisonment. As with the other offenders, I have given significant weight to the plea of guilty, and I have given a 20 per cent discount for the utilitarian aspect of that plea (noting that it was entered at a later stage in the proceedings than the other offenders). I have taken the subjective features which I accept flow from this plea (remorse, contrition and willingness to facilitate the course of justice) into account in the instinctive synthesis process.
In respect to the offence of being knowingly concerned in giving effect to the exchange rate CAU, I impose a sentence of imprisonment for 1 year and 10 months. In respect to the offence of being knowingly concerned in giving effect to the fee discount CAU, I impose a sentence of imprisonment for 9 months. Given the overlap in the offending, 3 months of the sentence for the fee discount CAU will be served concurrently with the first sentence. That is, the sentence for the fee discount CAU will commence 1 year and 7 months after the commencement of the exchange rate CAU sentence. In the result, the total effective sentence is a term of imprisonment of 2 years 4 months.
As to the recognizance release order, as previously explained, the subjective features of the plea and other mitigatory factors are also relevant, as are factors such as the objective seriousness of the offences and general deterrence. Thi Huong Nguyen was the most forthright in the acceptance of responsibility for her conduct, and the purpose for which the conduct was undertaken. She also co-operated with the authorities by speaking frankly to them on those topics at the time the search warrant was executed. She has completed the recognizance release order in relation to sentence which was imposed on her in 2016, without any apparent incident. I also take into account the issue of parity. In all the circumstances, I am persuaded that the sentences of imprisonments should be imposed, but with an order that Thi Huong Nguyen be released forthwith, on a recognizance to be of good behaviour for a period of 3 years in the amount of $1000.
Parity
It is well-established that the common law requirements for a sentencing court to avoid unjustified disparity in the sentences imposed on co-offenders apply to the sentencing of federal offenders: see for example, Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462. In imposing the sentences, I have taken into account the issue of parity between the offenders. I have done so based on the roles as established by the statements of facts relevant to that offender. So for example, Thi Huong Nguyen’s sentence is less than that of Ngoc Le’s, on the basis, amongst other things, that although, while involved in the offending, the two offenders’ conduct may have been commensurate in terms of culpability, Ngoc Le’s offending is more serious for the reason that he committed the offence in respect to the exchange rate CAU for a further period of nearly two years. Khai Tran’s involvement was less than that of Thi Huong Nguyen. He also was only to be sentenced for one offence. Tony Le had the least involvement. The differences in the sentences reflect the different involvement of the offenders, and reflect their subjective circumstances (including the difference in the plea discount in respect to Thi Huong Nguyen).
Final observation
It is appropriate to return to an issue I have already noted above. It was apparent during the sentencing hearing that some submissions did not grapple with the seriousness of the offending. Some submissions failed to properly recognise that this conduct is charged as criminal conduct. They failed to recognise that in relation to most offenders, the conduct occurred over years, with Vina Money and Ngoc Le giving effect to the CAU for nearly 5 years. Vina Money and Ngoc Le, in particular, approached their submissions as if their conduct was a necessary part of business, and advantageous to customers. As explained above, the offence provisions protect against anti-competitive behaviour. Their significance is self-evident. Although the competitors involved in this conduct were not of the same type or size as those considered in NYK, WWO and K-Line, the vice the provisions are designed to protect is nonetheless present. This conduct was directed to financial benefit. Sight cannot be lost of the nature of the CAUs given effect to and the fact that despite the size of these businesses, between them, they occupied approximately two-thirds of the market in terms of the number of transactions remitting money between Australia and Vietnam. This is a significant portion of the market. As explained above, between 1 December 2011 and 31 October 2016, this amounted to approximately $2.5 billion. As previously discussed, the conduct of each of these offenders (which is to be assessed by reference to the relevant statements of facts) is properly characterised as serious conduct. To be of the severity appropriate in all the circumstances, any sentence to be imposed must reflect that.
Conclusion
A conviction is recorded in respect to each offender in relation to the offences to which they pleaded guilty.
The sentences I impose are as follows.
In relation to Vina Money, a fine of $1,000,000.
In relation to Ngoc Le, in relation to the exchange rate CAU a sentence of imprisonment of 2 years and 1 month. In relation to the fee discount CAU, a sentence of imprisonment of 8 months. That sentence is to commence after 1 years and 10 months of the sentence imposed for the exchange rate CAU, with the consequence that 3 months of the sentence be served concurrently. The total sentence is 2 years and 6 months. Ngoc Le is to be released forthwith on a recognizance release order to be of good behaviour for a period of 3 years in the amount of $1000.
In relation to Tony Le, a sentence of imprisonment for 9 months, to be released forthwith on a recognizance release order to be of good behaviour for a period of 1 year and 6 months in the amount of $500.
In relation to Khai Tran, a sentence of imprisonment for 1 year and 7 months, to be released forthwith on a recognizance release order to be of good behaviour for a period 3 years in the amount of $1000.
In relation to Thi Huong Nguyen, in relation to the exchange rate CAU a sentence of imprisonment of 1 year and 10 months. In relation to the fee discount CAU a sentence of imprisonment of 9 months. That sentence is to commence after 1 year and 7 months of the sentence imposed for the exchange rate CAU, with the consequence that 3 months of the sentence be served concurrently. The total sentence is 2 years and 4 months. Thi Huong Nguyen is to be released forthwith on a recognizance release order to be of good behaviour for a period of 3 years in the amount of $1000.
As required by s 16F of the Crimes Act, the sentences have been explained to the offenders.
I certify that the preceding two hundred and eighty-two (282) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. Associate:
Dated: 9 June 2022
Annexure A
Annexure B
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