Director of Public Prosecutions (Cth ) v TAN
[2023] VCC 263
•23 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00929
| DIRECTOR OF PUBLIC PROSECUTIONS (Cth) |
| v |
| Shaowei TAN |
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JUDGE: | Dalziel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2023 | |
DATE OF SENTENCE: | 23 February 2023 | |
CASE MAY BE CITED AS: | DPP (Cth ) v TAN | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 263 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Proceeds of crime
Legislation Cited: Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth)
Cases Cited:De Lorenzo v DPP (Cth) [2017] VSCA 270; DPP v Toan Huynh [2019] VCC 127, DPP v Roland Shi [2023] VCC 989; DPP v Lebdeh [2018] VCC 1913; DPP v Taiba [2018] VCC 1560
Sentence: Convicted and sentenced to a total effective sentence of 10 months’ imprisonment with, release on recognisance after serving 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G. Krutsch | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P. Morrissey Mr J. Anderson | Lim & Tng Lawyers |
HER HONOUR:
1Shaowei TAN you have pleaded guilty to dealing with money reasonably suspected of being proceeds of crime, being $140,990.
2In addition, you have agreed that one further charge of the same type be taken into account in sentence pursuant to s16BA of the Crimes Act 1914 (Cth).
Charge one
3On 9 July 2020, police executed a search warrant at your home in Burwood. On searching the property, they located $170,990 in cash. This was stored in various places on the property:
(a) A backpack with $150,000 was found in a wardrobe of your bedroom. This money was in $50 denominations, held together by elastic bands. $100,000 of the cash was in two large bundles of $50,000 each in a separate white plastic shopping bag within the backpack. The remaining $50,000 was in five smaller $10,000 bundles, which were loose in the backpack;
(b) In a bedside table beside your bed $5,000 was found, in $50 denominations; and
(c) A black bag with $15,990 was found in black purse in your bedroom. This was in notes of various denominations.
4Also found at your home was a cash counting machine and a notebook with handwritten notes. The notes showed several written names and figures of up to $1,780,482. A black sports bag and a plastic bag with 100K written on it were also located in your car.
5You explained to the police that $30,000 of the cash found in your home had been given to you by a friend named Otto Sun, to look after. The $30,000 is not included in the charged amount, so that you are charged with possessing cash in the sum of $140,990, by possessing that money in circumstances where it is reasonable to suspect that the money was the proceeds of crime.
6The prosecution alleged two bases upon which this money was reasonably suspected of being the proceeds of crime. The first was that the money was grossly out of proportion to your income. In 2018 your declared taxable income was $558, and your wife's taxable income was $4,308. In 2019 your taxable income declared was $7.00 and your wife’s taxable income was $9,220. In 2020, you were unemployed.
7Furthermore, the prosecution rely on the circumstances surrounding your possession of this cash, as a whole, including: the value of the cash in Charge 1; the period over which the transactions in the s16BA offence occurred; the absence of a legitimate source of income for the cash in Charge 1 or the funds deposited in the s16BA offending; the implausibility of your statements to the police; and the way in which you dealt with quantities of cash, whether at the casino or otherwise.
Section 16BA Crimes Act 1914 (Cth)
8It is alleged that between 12 July 2019 and 17 June 2020 you dealt with property, namely $773,632 in bank funds. This was by way of 164 transactions involving cash deposits and electronic transfers into six bank accounts which you held. An annexure to the opening sets out details of these deposits.
9The prosecution submit, and you accept, that it is reasonable to suspect that this money deposited into the accounts was the proceeds of crime. The first basis is that the money was grossly out of proportion to your income. The second is that it is the suspicion is reasonable in view of all the surrounding circumstances.
10The prosecution also point to conversations on the WeChat application on your mobile phone. They provide examples of you dealing with the transfer of large sums of money:
(a) Between 17 and 30 January 2020 you had conversations with another person on WeChat negotiating exchange rates for the transfer of “100,000”, to occur at the casino;
(b) Between 19 and 22 January 2020 a conversation between you and an unknown person over WeChat provided evidence of you using the casino and exchanging currency;
(c) On 21 January 2020, at around midnight, you said in a message ‘the account number will be given to you tonight or tomorrow’ an attachment sent by you the next day provided a list of bank accounts in China;
(d) Between 29 and 30 January 2020 you had conversations on WeChat with a person believed to be Otto Sun and another unknown person. You discussed whether the handover of “4W” (suspected to be AUD $40,000) from the unknown person to Sun. During that chat you provided your email and the unknown person sent a receipt from Alipay showing a successful transfer of CNY189, 600. A minute later, you responded to that message replying received.
11The prosecution also point to analysis of your mobile phone which contained images of bank transactions demonstrating your knowledge and involvement in the movement of money which could not have been related to your income.
12Between 12 February and 8 July 2020 SMS receipts were found on your Huawei mobile phone sent from a Chinese phone number. These messages referred to the transfer of Yuan currency to Chinese bank accounts and provide further evidence that you were dealing with monies that were clearly out of proportion to your income levels.
Record of Interview
13When you were interviewed, you told the police in respect to the money found in your house on the day of the search, that $5000 in the bedside drawer belonged to your wife, $15,990 was cash, which you “usually used”. Regarding the $100,000 you gave, the explanation to which I have already referred that is that you withdrew $100,000 from your bank account in two lots of $50,000 so you could gamble. You explained that the money was obtained from the sale of two properties. The remaining cash you said you brought back from China. The prosecution put forward a number of reasons why this explanation could not be true.
14You told the police that you visit the casino two or three times per week, and that you did not buy chips at the casino, but rather purchased chips from people you knew instead of waiting in line for the cashier. You said you did not know the real names of these people, there were about four of them and they were not your friends. You said you knew them from seeing them at the casino or in the karaoke bar. You told the police that you spent a few $1000 a month the casino and always lost when playing there. You said you had never thought about whether the chips came from criminal activity. You accepted you were unemployed, and said you lent cash to friends when you were asked.
15As to your explanation to the offending on the plea hearing, it was submitted that you were acting as an unlicensed, money remittance service between approximately June 2019 and to July 2020. This involved transferring money back and forth between Australia and China in a hawala money transfer system. I was told that you made some return on the transfers, generally between 0.2% and 0.4% of the money transferred.
16Mr Morrissey told me that you had used unlicensed money remittance services yourself in the past, and that the attraction of this system to you and other members of your community was that it sidestepped difficulties in transferring money outside of China. It was submitted that because of the difficulty in taking money out of China and the common use of unlicensed money remittance services in your community you believed that the behaviour was normal. You did not perceive your conduct as criminal at the time, and you did not question the source of the money.
17It was submitted that you did not subjectively appreciate that what you were doing would constitute an offence under Commonwealth law aimed at preventing money laundering. You did not consider that you were or might be facilitating money laundering.
18Mr Morrissey submitted that you now accept that your action carried the risk of facilitating money laundering.
19Both the prosecution and your counsel were careful to remind me that the offence to which you pleaded guilty does not involve any element that you were negligent, reckless, or intended to deal in the proceeds of crime. The gravamen of the offence is the objective assessment that the money is reasonably suspected of being the proceeds of crime. By your plea and based upon the information put forward in the opening by the prosecution I will sentence you on the basis that it is reasonable to suspect that the money which you were dealing with was the proceeds of crime. Furthermore I will take into account the argument put forward by your counsel, that is, that you did not have any suspicion at the time that the money was the proceeds of crime.
Criminal History
20You have one prior court appearance in 2013 for driving offences, which is irrelevant to this proceeding.
Personal circumstances
21You are now 36 years old. You were born in Shandong Prefecture, northeast China in October 1986. You were raised in Weihai, a city of approximately 2.8 million people. Your parents ran a machinery and equipment plant. You attended a private school. Your family was well off in the sense that their financial circumstances were above average, but they were not wealthy. Your parents are both still alive and living in China, they are now semi-retired.
22You came to Australia in 2005 to study. You did foundational courses, then started but did not complete, a Bachelor of Mechanical Engineering at RMIT. You completed a diploma in cooking, concluding your studies in 2009.
23In 2006, you met your first wife, whom you married in 2011. You and your first wife divorced in 2012. Her parents owned a café on Swanston St, Melbourne, where you worked between 2007 and 2012 as a manager. That work ended when the relationship with your first wife ended. In 2012, you obtained permanent residency in Australia.
24You met your current wife, Ms Yang, in 2015 and you married in that year. She is a Chinese citizen, who also came to Australia to study. She completed a Masters degree in accounting, and presently works for a real estate company. She works full time Monday to Friday and presently earns $60,000 per annum.
25You and Ms Yang have two children, your daughter is 6 and your son is 5. Both children attend Carey Grammar School.
26Both you and Ms Yang are now permanent residents. Both of your children were born in Australia and are Australian citizens.
27Ms Yang comes from a well off Chinese family. Much of your family’s lifestyle has been funded by her parents, from China. You and your wife have significant property assets in your own names and in the name of two companies of which your wife is a sole director and shareholder. Your family home in Burwood is in your name., having been purchased in December 2016. Ms Yang owns a unit in Southbank purchased in 2011 and the family company owns another property in Box Hill North.
28The Box Hill North property is being developed with three townhouses, but is currently restrained by the AFP and so construction was halted in December 2021.
29You and your wife developed a property on Mountain Highway Bayswater which was developed into two properties, one of which sold in April 2020 for $800,000 and the other in December 2019 for $798,000. Mr Morrissey told me that the funds for these developments came from Ms Yang's parents.
30Prior to the COVID-19 travel restrictions you and your wife would travel to China two or three times a year to visit family. Neither you nor your wife have any family in Australia aside from your children.
31I was told that now that your wife is working full time you are the primary carer for the children. You cook, take them to their extra curricular activities including swimming, dancing, martial arts, and tutoring. I was told that you devote yourself to this and have limited your other social activities to ensure that you are there to care for and drive around the children as needed.
32At the time of the offending, both you and your wife were not working. You had a number of property assets but limited income. Since then, both you and your wife have found work, as I have noted, your wife is working Monday to Friday utilising her accounting degree. You work for 20 hours on the weekend at a gym, I was told that you take home $510 weekly from this job.
33I was told you were going to have some medical investigations for a potential issue with your bowel. On the material before me there is no evidence that this is a serious condition, nor that it would impact on a term of imprisonment.
References
34Your wife provided a letter to the court in which she described your care for the family, and her concerns for your family if you are sentenced to a term of imprisonment, and the problems that will arise from your absence from the home during any time of imprisonment. She notes her concern also about you losing your visa and being deported if a sentence over 12 months is imposed. She writes that you appear to be genuinely remorseful, and of your efforts to be positive in the face of potentially going to prison.
35Manuel Pappos met you through his role as School Business Manager at Alphington Grammar School. You assisted him in making connections in China, including accompanying him on visits to schools in China, to form sister-school relationships. He says he was very fortunate to have your assistance and that you contributed significantly to the school having an excellent international student program. He has come to know you personally, over the years, and speaks highly of your integrity and honesty. He says you take full responsibility for your actions, but are stressed and anxious about the proceedings and potential outcome. You are regretful and worried about the consequences of your actions on your family.
36Your employer also provided a reference. He has known you for many years. He praises you as a diligent employee, with good business sense, and integrity in your dealings with customers and your work. You told him of these charges, and appeared to Mr Ren as genuinely remorseful, disappointed in yourself and taking personal responsibility for your own actions.
37Your parents also wrote to the court. They expressed their surprise at your offending, as they had taught you what is right and what is wrong and they always encouraged you to lead an honest and hard-working life. They say that they consider criminal offending out of character for you, that you are regretful for what you have done, and for the stress and worry you have caused them.
Gravity of the offending
38It was submitted by both the prosecution and your counsel that the principle consideration in determining the objective gravity of your offending is the value of money with which you had in your possession. The prosecutor noted that the Courts tend to consider that offending consisting of a large number of smaller transactions is more serious than a single transaction of a larger amount.[1]
[1]Prosecution submission [7] citing Kim v The Queen [2016] VSCA 238, [61(5)]
39It was submitted by defence counsel that the amount of cash in your possession at the time of the search of your house was not significantly above the threshold of $100,000. He noted that whilst since the date of the offence to which you had pleaded guilty the Commonwealth Criminal Code has been amended to include offences with higher maximum penalties for possession of property or money exceeding thresholds of $1,000,000, and $10,000,000. At the time of your offending those offences had not been created, so that the offence to which you had pleaded guilty could have encompassed a vast range of money from $100,000 to presumably many millions of dollars.
40Thus, your counsel submitted, Charge 1 was at the lower end of the range, in terms of the value of money. Mr Morrissey also conceded that the included offending occurred over the course of nearly a year, included a large number of transactions, and a much greater amount of money, so that taken together your offending conduct falls more in the mid-range of gravity.
41I take into account the following factors in assessing the gravity of Charge 1:
(a) The amount of cash in your possession was above the $100,000 threshold, but not significantly so;
(b) There is no evidence that you were part of a larger organisation, that you were directing others or that you were yourself a subordinate. The charge is established by your possession of the cash, and that the circumstances show that the cash was reasonably suspected of being the proceeds of crime; and
(c) Charge 1 occurred in the context of the many deposits to bank accounts you controlled, over the preceding year, totalling $773,632. This means that your possession of the cash on 9 July 2020 was not something which is to be treated as an isolated “one-off” occurrence. I do not treat that context as aggravating Charge 1, but rather as eliminating what might otherwise be a factor in mitigation.
42Pursuant to s16BA(2) and s16A(2)(b) I also take into account, when sentencing you on Charge 1, the offending between 12 July 2019 and 17 June 2020, being the 164 deposits or credits into bank accounts you controlled, totalling $776,632. Those transactions fall within the same offence type as Charge 1, but constitute a much more serious instance of that offence. The quantum is significantly higher, and there are multiple transactions over the course of nearly a year.
43There is nothing to suggest that the explanation given by your counsel, that you were acting as an unlicenced money remitter, is untrue, but the corollary of this is that you were engaged in an ongoing business, from which you made money.
44In respect to that offending, the prosecutor submitted that most of the transactions were under the reportable threshold of $10,000. Only 10 transactions were above $10,000. On reviewing the table it does appear that on some days multiple deposits were made by the same person, for sums of $10,000 or less, but this did not occur often.[2]
[2]For example: Transactions 48, 49 and 50; 75 and 77; 124 and 124;
45The impact of the s16BA offence is that I an required to give:[3]
greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.
[3]Attorney-General’s Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1991 No. 1 of 2002, [2002] NSWCCA 518; (2002) 56 NSWLR 146, 159 [42]–[44].per Spigelman CJ cited in De Lorenzo v DPP (Cth) [2017] VSCA 270 at [36]
46Your counsel agreed that the reference to retribution in that passage is a reference to the requirement for adequate punishment, under s16A(2)(k).
47You are not being separately punished for the s16BA offending. Where, as in your matter, the scheduled offending is a serious instance of the offence this will result in a more severe sentence than would otherwise be imposed.
48The offence to which you have pleaded guilty does not involve proof that you understood at any level that your offending had the capacity to assist others who were laundering the proceeds of crime. Nevertheless, the harm that this offence addresses is naïve or thoughtless engagement in behaviour that does or has the capacity to facilitate money laundering and hence criminal activity.
Plea of Guilty, Degree of Cooperation with Authorities & Remorse
49When your home was being searched you pointed out the areas where the cash was to the police. You made some admissions when interviewed, although a number of statements by you at that time are refuted by the prosecution. Part of your explanation for your possession of the money, relating to the $30,000 given to you by Mr Sun, was accepted by the prosecution. You provided the police with the PIN for your mobile phones.
50Your home was searched on 9 July 2020. You were charged a week later and following a series of mention and listings in the Magistrates Court, a committal hearing was heard on the 5th of May 2021. You were committed for trial and the matter was listed for a trial in mid-2022. Not long before the commencement of the trial, but prior to a jury being empanelled the matter resolved with you pleading guilty to the charge on the indictment, and agreeing that the other offending should be taken into account pursuant to Section 16AB. You were arraigned on 19 September 2022 and the matter was booked in for a plea hearing on 7 February 2023.
51As this chronology shows, this was not an early plea of guilty however, you did plead guilty and this saved the community the cost and expense of running a trial. Your pleas of guilty have facilitated the administration of justice and, I accept, are an admission by you of your wrongdoing and a degree of remorse for that conduct.
52You matter was listed for trial, but resolved close to the commencement of the trial. The charges you originally faced were both pursuant to s400.9(1) of the Criminal Code. As I have said, the matter resolved with the quantum of Charge 1 reduced by the $30,000, and Charge 2 became the s16BA offence, with a somewhat reduced date range and particulars.
53Despite the lateness of your plea, you are still entitled to a discount in your sentence for the utilitarian benefits and for the facilitation of the administration of justice. The utilitarian benefits which flow are more mitigating in the context of the pandemic, and the effects of that upon the courts lists, which are still being felt.
54You also wrote a letter to the Court in which you express remorse and regret. You say that since your arrest you have reflected on your conduct and now understand that your actions had the capacity to aid the criminal activities of others, although you did not appreciate that at the time. You have resolved to be more careful in your business activities in future to ensure you obey the law. You write of having brought shame, disappointment and embarrassment to your family, as well as the emotional and psychological suffering on your wife. You are concerned for the consequences of your behaviour on your wife and children, and ask me to not impose a sentence that breaks up your family.
Family hardship
55Defence counsel relied on hardship to your family if you were incarcerated and if you were deported. I accept that the exceptional circumstances test applied under Victorian sentencing law does not apply to sentencing for a Commonwealth offence. I take into account that if you are imprisoned your children and wife will miss the care you provide to them. This mitigates your sentence to a small degree, as your family will not suffer significant financial hardship, and your children will still have the care of their mother if you are incarcerated.
56I accept that if you are incarcerated, you will be worried about your family.
Risk of Deportation
57You are a permanent resident of Australia, and by operation of the Migration Act if you are sentenced to a term of imprisonment of 12 months or more this will trigger cancellation of your visa, which you would need to challenge in order to remain in this country. Your wife is a permanent resident here and has employment here, and your children are Australian citizens. I was told that if you were deported, it was anticipated that your wife and children would remain in Australia, and that this is a great concern for you.
58This is a relevant concern but it would not be appropriate for me to tailor my sentence to avoid the operation of the Migration Act.
Custody Conditions
59In addition to your concern about the difficulties your wife and children would face if you were imprisoned, I take into account that you would be isolated in custody, and that the conditions of custody may be more onerous than usual, due to the lingering effects of the pandemic.
Prospects of Rehabilitation & Specific Deterrence
60I accept that you have good prospects of rehabilitation. It has been more than two and a half years since the search on your house. During that time you have found work, as has your wife and you appear to have devoted yourself to your family. Your parents’ and wife’s disappointment in you, the burden of worry you and your family have carried, and your absence from your family are all factors that should act as a real incentive to you to remain out of trouble.
61I accept that your family and friends are law abiding people who would discourage you from further offending.
62Specific deterrence is therefore of less significance in the sentencing matrix, but it nevertheless carries some weight. As noted by the prosecutor, you carried on the business captured by the s16BA offending for nearly a year. The sentence I will impose will add force and motivation to your expressed plan of ensuring that you do not commit offences in the future.
Current sentence in practise, comparative cases
63The prosecutor provided a chart of sentences imposed for this offence in other matters. The amount of money possessed in a number of those charges was significantly higher than Charge 1, some but not all involved s16BA offending to be taken into account, and there are, of course, differences in the circumstances of the offending and the offender.
64Your counsel referred me to four sentences of other judges of this court in which the sentences ranged from a 3 year community corrections order to 12 months imprisonment but with immediate release on a recognisance release order.[4] Review of those sentences confirms that in your case a term of imprisonment is appropriate. Whilst a CCO was imposed in the matter of Taiba, that was treated as an unusual case with exceptional circumstances. In the case of Shi, although the charge involved $400,000, the offender was sentenced as a courier, only. Furthermore he pleaded guilty at an early stage in the context of the pandemic.
[4]DPPv Toan HUYNH [2019] VCC 127, DPP v Roland SHI [2023] VCC 989; DPP v LEBDEH [2018] VCC 1913; DPP v TAIBA [2018] VCC 1560
65A significant point of difference between your case, and those noted by defence counsel, is that I will also be taking into account the s16AB offending.
Parsimony
66Your counsel urged me to impose a sentence that did not require you to enter custody. He accepted that it would be within range to impose a sentence of imprisonment, but submitted that if I did so, I should also make a recognisance release order that directs you to be released forthwith.
67The prosecutor submitted that in view of the gravity of your offending, including the s16BA offending, the only appropriate outcome was a term of imprisonment with at least some actual custody.
68The Crimes Act 1914 states that I should only impose a sentence of imprisonment if, having considered the other options available, I am satisfied that imprisonment is the only appropriate sentence in all the circumstances of the case.[5]
[5]Section 17A Crimes Act 1914 (Cth)
69I am satisfied that taking into account all the matters I have canvassed and which were raised in the plea hearing, that a sentence of imprisonment is the only appropriate disposition. Furthermore, I also consider that a portion of the sentence I impose upon you must be served in custody. Whilst I am mindful of the matters raised in mitigation, the gravity of your offending, the impact of the s16BA offending, the need for general deterrence, specific deterrence and adequate punishment all combine to require some term of actual incarceration.
70The sentence is:
71On charge 1 your are sentenced to 10 months’ imprisonment. Pursuant to s19AC(1) make a recognizance release order pursuant to which you will be released after serving 4 months of the prison sentence.
72The period of the recognizance will be 18 months, and you will be required to pay $5,000 if you breach the recognisance. You do not have to pay the sum of $5,000 immediately. You only need to pay if you were to breach the recognisance release order.
73Whilst you are subject to the recognisance release order, you must be of good behaviour for the period of that order, which was 18 months. If you breach the recognisance release order, in your case by committing any other offence, you can be charged or dealt with for breaching that and you can be fined up to $18,000 approximately for doing so. If you breach the order, it may be revoked and you could be resentenced for the offending for which I am sentencing you today. You can also apply to vary the recognisance release order but if that happened, then the terms of it could be varied in a number of ways.
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