Director of Public Prosecutions (Cth) v Tan
[2020] VCC 1346
•27 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-20-00495; CR-20-00497
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| HUI TAN JORDAN LEE |
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| JUDGE: | HER HONOUR JUDGE HASSAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 August 2020 |
| DATE OF SENTENCE: | 27 August 2020 |
| CASE MAY BE CITED AS: | DPP (Cth) v Tan |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1346 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence — import tobacco products — deal with an instrument of crime, recklessly — convey tobacco products — plea of guilty— no prior convictions — early plea of guilty — prospect of deportation
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Customs Act 1901 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Barakat v DPP (Cth) [2020] VSCA 185; DPP (Cth) v Long [2017] VCC 1306; DPP (Cth) v Tung [2017] VCC 1435; DPP (Cth) v Zekry [2020] VCC 181; Hussein v The Queen [2016] VSCA 212; Kim v The Queen [2016] VSCA 238; Young v The Queen [2016] VSCA 149
Sentence:Total effective sentence of 3 years and 2 months imprisonment with a non-parole period of 2 years (Tan); 10 months imprisonment with immediate release on recognisance of $3000 and good behaviour of 18 months (Lee)
Section 6AAA declaration: total effective sentence of 5 years and 6 months imprisonment with non-parole period of 3 years and 10 months (Tan); 6 months imprisonment (Lee)
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr J Ellis | |
| For Offender Tan | Mr A Bayliss | MK Law |
| For Offender Lee | Mr I Crisp |
HER HONOUR:
1Hui Seng Tan, you have pleaded guilty to one count of dealing with money where there is a risk that the money would become an instrument of crime, and being reckless as to that fact, where the value of the money is $1 million or more. That carries a maximum penalty of 12 years’ imprisonment and/or a financial penalty of 720 penalty units. You also have been charged and have pleaded guilty to a count of importing tobacco products with the intention of defrauding the revenue. That carries a 10-year maximum penalty and/or a financial penalty of 1,000 penalty units or five times the revenue evaded on the day the offence was committed.
2Jordan Xing Hua Lee, you have pleaded guilty to one count of dealing with money where there is a risk that the money will become an instrument of crime, being reckless as to that fact, and where the value of the money is $100,000 or more. That carries a maximum penalty of 10 years and/or a financial penalty of 600 penalty units. You were also charged with one count of conveying tobacco products, knowing that the goods were imported with intent to defraud the revenue. That carries a maximum penalty of 10 years’ imprisonment or a financial penalty of 1,000 penalty units or five times the amount of duty owed on the day the offence was committed. You are also charged with one count of importing tobacco products with the intention of defrauding the revenue. Again, the maximum penalty is 10 years’ imprisonment or a financial penalty of 1,000 penalty units or five times the amount of duty owed on the day the offence was committed.
3Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’, which was an agreed summary of the circumstances of the offending. Briefly stated, they were as follows.
4Between at least 20 May 2019 and 24 July 2019, both of you, along with another co-accused, Chin Hong Soh, were involved in a large-scale criminal syndicate which operated a money laundering operation and a tobacco importation operation.
5During the course of the offending, you, Ms Tan, were residing outside of Australia until 5 July 2019. During your time outside of Australia, you were in regular contact with Mr Soh and Mr Lee via telephone, WhatsApp and WeChat, providing directions, instructions and guidance in relation to both the money laundering and the tobacco importation offences.
6On 5 July 2019, you, Ms Tan, travelled to Australia, and you took up a more hands-on role in the offending. Mr Lee, your role in the money laundering and tobacco importation was lower in the hierarchy than the others, operating more as a runner and receiver.
7As part of the investigation, the Australian Federal Police (‘AFP’) investigators obtained telephone intercept warrants for mobile phone services used by Soh, and later for you, Mr Lee. These telephone intercepts and captures of messages later seized demonstrated the highly organised and ongoing nature of the offending.
8It is the Crown case that the laundered money was ultimately passed on to third parties. You then transferred an equal balance overseas for other members of the syndicate operating as unauthorised money remitters. The remitted money is alleged by the Crown to be used to have funded further illegal operations.
9I turn now to the specifics of your offending, Ms Tan, and I begin with the charge of money laundering.
10You were involved in a series of three money laundering acts in July 2019 — the first on 2 July 2019. Text messages and messages on social media platforms disclosed that you were in contact with Soh, and with a third party, and that you organised for Soh to collect $200,000 from an address at Narre Warren. Soh advised you when he had attended at the address and had collected the cash.
11As stated, you arrived in Australia on 5 July 2019.
12On 19 July 2019, telephone intercept material disclosed conversations between you and Lee and Soh, in which you discussed an exchange of $200,000 which would occur the following day.
13At approximately 5pm on 20 July 2019, Soh received a text message from a third party advising him to make a collection at an address in Narre Warren. You and Soh then travelled to Narre Warren and collected $200,000 in cash.
14Located on Soh’s phone following his arrest, in the ‘deleted files’ portion, was a photograph of a large amount of Australian currency dated 8:30pm on 20 July 2019. The collecting of the $200,000 on 20 July 2019 is the second laundering of money in this series of acts.
15Finally, on 23 July 2019, you and Soh had a conversation on WeChat where you provided Soh details of a meeting to collect money in Sunbury the next day.
16On 24 July 2019 at 5:50am, CCTV footage showed you and Soh leaving Soh’s apartment. At 6:45am, you and Soh attended at a Hertz Rent a Car at Tullamarine Airport and hired a silver Toyota Corolla. At 7:45am, a silver Toyota Corolla was seen parking at the rear of the Bunnings Sunbury car park. At 8am, a blue Volkswagen Amarok entered the car park and stopped behind the Corolla. You exited the Corolla and approached the Amarok. The Amarok turned around and stopped, again behind the Corolla, and you removed a black bag from the rear door of the Amarok. You then placed the black bag in the Corolla. CCTV footage showed you and Soh returning to Soh’s apartment at approximately 9:15am.
17Throughout the day on 24 July 2019, telephone intercept material recorded Soh attempting to move AUD1.2 million to various people. At approximately 3pm, Soh was arrested by the AFP and participated in a record of interview. AFP executed a search warrant at Soh’s apartment and located a number of items, including approximately AUD1.18 million, other foreign currency, and a number of ledger books. The collection of the AUD1.2 million on 24 July 2019 is the third laundering of money in this series of acts committed by you.
18I turn now to the importation offence. This offence is charged on the basis that you were involved in the organisation and importation of two consignments of tobacco cigarettes between May and July 2019.
19In December 2018, Soh hired a storage unit at Storage King in Deer Park.
20On 22 May 2019, Smart Logistics Australia, an international freight forwarding and customs brokerage agent, received documents relating to the importation of a container (‘consignment 1’), from the East International Logistics Company. Later that day, telephone intercept material recorded a conversation between you and Soh. You confirmed that Soh could access the storeroom and you discussed the number of cigarettes you were expecting.
21On 26 May 2019, you and Soh spoke on the phone. Soh asked you when you expected the consignment to arrive. You told him that even if the consignment was unpacked and checked, the cigarettes would not be found because they were hidden.
22On 30 May 2019, consignment 1 arrived in Australia.
23On 3 June 2019, you and Soh spoke on the phone. Soh asked you when consignment 1 would arrive and you told him it was with Customs. You discussed that 2,800 cartons should be safe from Customs. You also discussed avoiding detection of Customs and setting up a person to take responsibility for the cigarettes if you were caught.
24On 4 June 2019, you and Soh spoke about the arrival of consignment 1 and you provided instructions to Soh about what he should do upon its arrival. In this conversation, you stated that the importation of cigarettes is only about the dodging of tax, so Customs should not be interested.
25The activity report for the storage unit hired by Soh at Deer Park shows it was accessed by keypad entry at 11:48am on 5 June 2019. The unit was entered and accessed in total nine times between 11:48am and 12:22pm that day. Mobile phone data places both Lee and Soh’s mobile phones in the vicinity of the Storage King unit between 11:30am and 12:30pm on 5 June 2019.
26It is the Crown case that the cigarettes secreted inside consignment 1 were delivered to the Storage King and received by Soh and Lee on 5 June 2019.
27On 6 June 2019, telephone intercept material recorded a conversation between you and Soh regarding plans for the cigarettes and confirming that Soh will count the cartons to make sure there are 2,800. Over the next two weeks, there were various telephone intercept calls of Soh attempting to sell the cigarettes in large quantities.
28Consignment 1 was not intercepted by investigators and hence the amount of duty evaded cannot be precisely calculated.
29On 18 June 2019, a second storage unit was hired at Storage King in Deer Park.
30On 2 July 2019, Masters Logistics, an international freight forwarding and customs brokerage company, were contacted to facilitate the importation of a second consignment (‘consignment 2’).
31Between 3 and 4 July, messages were exchanged between you, Lee and Soh in which you discussed plans to obtain the ABN of a company known as Pen City: The Pen Professionals, which could be used in connection with consignment 2. The owner of Pen City was contacted by AFP investigators and the owner confirmed that the business was in fact not involved in consignment 2.
32On 6 July 2019, you and Soh had a telephone conversation in which Soh advised you that he had received an invoice for over $300 which needed to be paid. You told Soh to forward it to you so you could organise to have it paid. In a further conversation between you and Soh, recorded later in the day, you discussed making payments to the logistics company and from what account the payment should originate.
33On 11 July 2019, CCTV footage from Storage King at Deer Park shows you, Lee and Soh at the storage unit between 4:15pm and 5:40pm.
34On 18 July 2019, Australian Border Force officers seized and examined consignment 2. The consignment was X-rayed and then deconstructed. Inside were what appeared to be stationery sets but concealed in the box were two cartons of Esse Lights and 26 loose packets of Esse Lights. The approximate total number of cigarettes was 182,592. The Customs duty evaded on the cigarettes is $108,100. Neither you, Ms Tan, Mr Lee or Mr Soh had permission to import the tobacco under the Customs Act 1901 (Cth).
35You were arrested on 25 July 2019 and made some admissions to collecting money and delivering it to third parties, but you denied the offending.
36I turn now to you, Mr Lee. I begin with your money laundering offending.
37On 4 June 2019, telephone intercept material recorded a conversation between Soh and a third party. The conversation detailed instructions about the collection of $410,000 in the suburb of Hallam. At 12:20pm, you, with Soh, travelled together from the Melbourne CBD to Hallam. Soh was later seen returning to his apartment with a black backpack containing $400,000. In travelling with Soh to Hallam, collecting the money and returning, you were in joint possession of that money until Soh took it with him back to his apartment.
38Turning to your tobacco importation offending, the facts of your involvement are as follows.
39In relation to consignment 1, your name was listed as the contact person with Smart Logistics Australia.
40On 29 May 2019, telephone intercept material captured a conversation between you and Soh in which you discussed the arrival of consignment 1.
41On 31 May 2019, you and Soh were recorded further discussing the arrival of consignment 1. Soh advised you that the logistics company would contact you shortly.
42On 4 June 2019, you received a phone call from a logistics company in relation to consignment 1. Later, on 4 June 2019, you called Soh and told him that the logistics company would be delivering consignment 1 between 11am and 1pm the next day. You also discussed leaving the consignment untouched for a few days in case there were ‘ghosts’, meaning Customs officers watching the consignment.
43On 5 July 2019, you attended at the storage unit at Deer Park and met with Soh. Consignment 1 was delivered, and you and Soh unpacked it in the storage unit.
44In respect of consignment 2, on 26 June 2019, you and Soh spoke on the telephone and discussed the arrival of consignment 2. Soh instructed you that he would be the one to unpack the cigarettes when they arrived.
45On 3 July 2019, and again on 5 July 2019, you communicated with Master Logistics, who were dealing with the importation of consignment 2. In accordance with Soh’s instructions, you provided Master Logistics with an email address and the ABN for the business Pen City: The Pen Professionals, which, as has been described, was not involved with the importation of consignment 2 but had had its business details used by the syndicate without its knowledge or consent.
46On 11 July 2019, CCTV footage from the storage unit at Deer Park shows you, Soh and Tan at the storage unit between 4:15pm and 5:40pm.
47On 20 June 2019 at 3pm, telephone intercept material recorded a conversation between you and Soh in which you discuss that you have rented a car in order to deliver 470, or 470–500 ‘ones’. Soh says he ‘will come with you’.
48The activity report for the storage unit at Deer Park shows it was accessed at 5:37pm on 20 June 2019. CCTV footage from the storage unit on 20 June 2019 shows a red sedan entering Storage King at 5:39pm driven by you and Soh. The footage shows you and Soh loading a number of boxes into the vehicle. Footage shows the vehicle returning and being loaded a second time at 6:50pm. These boxes contained a significant number of cigarettes imported in consignment 1. Your actions on 20 June 2019 are the factual basis of charge 3, which is the charge of conveying tobacco products.
49You were arrested on 3 October 2019. You participated in a record of interview. You denied sending the messages to the logistics company. You admitted to receiving the consignments and placing them in storage but you denied that you knew what was inside them.
50Section 16A(2) of the Crimes Act 1914 (Cth) requires that I must take into account a number of different matters, if they are relevant and known to me, in arriving at your sentences. I take into account the following matters which were raised at your plea hearing.
51I begin with you, Ms Tan.
52You were born on 25 October 1994 and you are therefore presently 25, nearly 26 years of age. You were 24 at the time of your offending. You are not a young offender within the meaning of the Sentencing Act 1991 (Vic), but you were still a young person.
53In outlining your personal circumstances, I refer to the report of Mr Bernard Healey, clinical psychologist, with whom you met on 14 July 2020, and who prepared a psychological report tendered upon your plea.
54You were born in Malaysia into a family of six siblings. Your family suffered financially because your father had a gambling problem. From an early age, you worked and attempted to help your father and your family financially. You were injured in a motor vehicle accident when you were 17 years old, but you have not suffered any ongoing health or psychological problems as a result. Indeed, Mr Healey states that you suffer no mental or psychological impairment or disturbance and no intellectual impairment. You have never abused drugs or alcohol.
55You were educated to the equivalent of year 11 in Malaysia. Thereafter, you worked in Singapore, before coming to Australia in 2015, when you were 21 years old, to study English for three years.
56You are unmarried and have no children. You have no criminal history and are otherwise of good character.
57In my view, there is nothing in your background, nor in your personal circumstances, that explains in any way why a reasonably well-educated young woman without criminal antecedents would involve herself in serious criminal activity. The only explanation must be financial gain or, put more bluntly, greed. You told Mr Healey, at least in respect of the tobacco importation, that you did not appreciate that the evasion of import duty was serious criminal conduct. You told him you had given little thought to your money laundering involvement.
58You have pleaded guilty to the charges on the indictment. It is accepted by the Crown that your plea is an early one. Your plea is of utilitarian value, in that it has saved the witnesses and the community the cost of a trial. Its utilitarian benefit is of heightened value in the present situation of extreme stress upon the administration of criminal justice in this State caused by the COVID-19 pandemic. I also accept that your plea is indicative of remorse on your part. You also wrote a letter to the Court, which was tendered upon your plea, in which you stated that you have had time to reflect in gaol and that you now understand the wrongfulness of your conduct. You say, ‘I now sincerely regret what I did. I understand that what I did was very wrong. It brought harm to the community and also brought shame to my family’. I accept that this is a sincere expression of remorse on your part. The Crown accepts that you have demonstrated contrition for your offending by way of your plea of guilty.
59You have been in custody since your arrest on 25 July 2019. You have used your time productively, and a number of statements of results and certificates for courses that you have undertaken in custody were tendered on your plea.
60This is your first time in custody, and it is made more onerous in the current lockdown conditions necessitated by the COVID-19 pandemic. You have no family in this country and in the difficult conditions in which you find yourself you must keenly feel the separation from your family. You do speak English, but it is not your first language, and this must also contribute to your isolation in custody. You are not an Australian citizen and most likely will be deported upon the completion of your sentence. I imagine it will be a relief to you to return to Malaysia. However, I take into account that to some extent the likelihood of your deportation, in conjunction with your isolation in custody, creates additional hardship for you during your time in custody.
61I turn now to your personal circumstances and background, Mr Lee.
62You were born on 10 February 1997. You are presently 23 years of age and were 22 years of age when you committed these offences.
63In outlining your background and personal circumstances, I refer to the reports of Mr Bernard Healey dated 25 November 2019 and 10 July 2020. You met and spoke with Mr Healey on both these occasions, and the reports he prepared were tendered upon your plea. Like your co-accused Ms Tan, you are Malaysian, and again, like Ms Tan, your family experienced some financial difficulty when you were growing up. You worked part-time to help your family financially from around the age of 11.
64You suffered childhood asthma and were involved in a workplace accident at the age of 14 and a motor vehicle accident at the age of 16. You have not, however, suffered any ongoing health difficulties as a result.
65You told Mr Healey that your education suffered because you had to work from an early age. You told him you failed the equivalent of year 12 in Malaysia. However, notwithstanding this setback, you came to Australia on a student visa in March 2018 and attended college and studied English. You were progressing in your studies until you foolishly involved yourself in the criminal activity for which you now fall to be sentenced.
66Mr Healey found you to be of an IQ most likely in the above-average range. You have never abused drugs or alcohol. You have no criminal history and are otherwise of good character. Again, like Ms Tan, you told Mr Healey that you did not appreciate that what you were engaging in was serious criminal conduct.
67You were arrested on 3 October 2019 and were bailed on 4 October 2019. You have been on bail since this time.
68Mr Healey says that you were accompanied by a friend when you attended upon him. You are unmarried and have no children. It appears you have little support in the community and are experiencing anxiety and depression in the context of your isolation and your involvement in the criminal justice system.
69You are not an Australian citizen and will most likely be deported upon the completion of your sentence. I again imagine this will be a relief to you, but I do take into account that the uncertainty of your situation is a source of additional stress upon you.
70Once again, like Ms Tan, there is nothing in your background and circumstances that explains your involvement in the serious criminal activity except the lure of financial gain.
71You pleaded guilty at an early opportunity and it is accepted by the Crown that your plea has utilitarian value, heightened in the context of the COVID-19 pandemic, and that it is indicative of remorse on your part.
72I turn now to relevant legal principles to be applied.
73In respect of the tobacco importation and evasion of duty, some of the legal principles which emerge from the authorities are as follows.
74The maximum penalty was increased fivefold in 2012, from two years’ imprisonment to 10 years’ imprisonment. This increase reflects a clear legislative intent that deterrence be a critical factor in sentencing. Serious examples of the offending are considered sufficiently grave as to warrant a sentence of immediate or full-time imprisonment.
75The offence is effectively one against the revenue and accordingly any offending must be viewed in the context of taxation and similar offences, and guidance taken from sentences imposed in these matters. This offending is not victimless. The revenue must be protected to enable government to provide for the community. The principle of general deterrence is a particularly relevant sentencing consideration.
76In terms of the assessment of the seriousness of this offending, the relevant factors include the role of the offender, the amount of tax that was defrauded, and the scale of the enterprise. In assessing the role of the offender, it is important to identify whether the offender was a principal organiser of the criminal operation or merely acting on the instructions of others. Whether the offending was a single incident or a course of conduct is relevant and, if the latter, the period over which the offences were committed is also relevant. The quantity of tobacco imported and/or possessed and the amounts of duty defrauded or evaded is also relevant. Whether any of the lost revenue has been repaid is a further relevant consideration.
77In respect of the offence of money laundering, the sentencing principles which so far emerge from the authorities are conveniently set out in the case of Kim v The Queen, and they are as follows:
1. ‘The starting point is to consider where the offence sits in the scheme of offences provided for by div 400 of the Code.
2. ‘Attention must be focussed on the precise circumstances of what the offender did, including the actions which constituted the dealing for the purposes of the offence, the period of time over which the offence was committed, the number of transactions involved, the amount involved in the offending, and the role of the offender in the money laundering arrangement (including whether the offender was the author or instigator of that arrangement, and the degree of authority reposed in the offender in carrying it out).
3. ‘The person who launders money is an important cog in the wheel of organised crime and such conduct warrants severe punishment in which general deterrence is to be given significant weight.
4. ‘The amount of money involved is a highly significant matter and the primary identifier of the maximum penalty for any given offence.
5. ‘Generally speaking, a larger number of transactions involving small amounts of money will be more serious than a single transaction of a larger amount, which may be seen as an isolated offence.
6. ‘It is ordinarily relevant to consider how the money dealt with is proceeds of crime, and the extent of the offender’s belief as to, or knowledge of, how the money is proceeds of crime.’[1]
7. However, consideration of the offence which generates the proceeds of crime is a distraction from the sentencing task at hand, which is to sentence the offender for the offending against div 400 of the Code.[2]
[1][2016] VSCA 238, [61] (Redlich, Santamaria and McLeish JJA) (citations omitted).
[2] Ibid; Criminal Code Act 1995 (Cth) sch (‘Code’).
78Having outlined those general principles, I turn now to an assessment of the gravity of the offending in this case — beginning with you, Ms Tan.
79You involved yourself with a criminal syndicate in which you played an important role. I have no doubt you held a position of some considerable authority within the hierarchy of the syndicate. You directly coordinated the actions of Soh and Lee, first from abroad and then, from 5 July 2019, from Australia. You travelled to Australia for the sole purpose of committing further criminal activity and taking a more hands-on role in the offending, which is precisely what you did. In my view, your move to Australia to assume a closer supervisory role over the syndicate’s Australian operatives demonstrates your high status within the hierarchy of the syndicate. It is also clear that you yourself acted with a considerable degree of autonomy within the syndicate. Effectively, you were running, at least in part, its Australian-based operatives.
80Your money laundering activity was over a relatively short period of time but was not a one-off occurrence, and a significant amount of money, $1.6 million, was involved. You have accepted the Crown assertion that the money was likely to be transferred abroad by unregistered remitters and would likely join resources available to an international criminal syndicate. Your offending was vital to the viability and ongoing operations of the criminal syndicate.
81In terms of your mental state, your plea of guilty acknowledges that you were reckless — that is, you were aware there was a substantial risk that the money you obtained would go on to be used in criminal activity.
82Your tobacco importation was another aspect of your activities in connection with the syndicate. Again, your role was one of control and supervision, indicative of your high status within the hierarchy of the syndicate.
83Consignment 1 was not intercepted, and so the duty evaded cannot be precisely stated. However, based on the evidence of approximately 2,800 cartons of cigarettes, a calculation of 560,000 cigarettes, an estimate of duty evaded of $457,940 was submitted by the Crown and was not disputed by you. The duty evaded on consignment 2 was $108,100.
84I regard your offending as a serious example of both offences and your moral culpability as high.
85Turning now to you, Mr Lee.
86Your role, as is accepted by the Crown, was collecting and receiving. In respect of the charge of money laundering, your involvement is confined to a single incident when you and Soh transported $400,000.
87In respect to the tobacco importation, you acted as a receiver of the goods and as a contact person for the consignments.
88In relation to the conveyancing offence, you met with Soh at the storage facility and helped him load and transport cigarettes to an unknown location.
89You were most certainly a lesser player in the scheme of things, but all criminal syndicates need people such as yourself, who are willing, in exchange for financial reward, to perform vital hands-on tasks such as you undertook, and which are the foundation upon which whole criminal structures rest. You should be in no doubt that you have involved yourself in and have facilitated serious criminal activity, even though your role places your offending at the lower end of the scale of seriousness.
90I was provided with comparator cases by all parties in order to assist in my consideration of current sentencing practices. I have read and have had regard to all these cases.
91Ms Tan relied upon the cases of Hussein v The Queen[3] and Young v The Queen[4] in respect of tobacco importation. In the case of Hussein v The Queen, the amount of revenue evaded was significantly higher, over $8 million, and Mr Hussein had two subsequent convictions and tobacco and drug paraphernalia offending. A sentence of two and a half years was reduced on appeal to release on a recognisance in the amount of $5,000 after an immediate term of imprisonment of 12 months.[5] In the case of Young v The Queen, the duty evaded was $3 million. Mr Young’s role in the offending was to receive the goods. He used his business for this purpose. On appeal, a sentence of 24 months’ imprisonment, released after 15 months on a recognisance of $100 and to be of good behaviour for two years in conjunction with a fine of $2,500, was upheld.[6] I was also referred to the case of Director of Public Prosecutions (Cth) v Long,[7] in which the sentence was 27 months’ imprisonment with 12 months to be served immediately before release on a recognisance of $2,000 to be of good behaviour for 24 months. In that case, the total revenue evaded was $700,000. The offender in that case operated as an independent, self-employed contractor.[8]
[3] [2016] VSCA 212.
[4] [2016] VSCA 149.
[5] [2016] VSCA 212.
[6] [2016] VSCA 149.
[7] [2017] VCC 1306.
[8] Ibid.
92These cases provided some assistance in considering what is an appropriate sentence for you, Ms Tan, on charge 1. I regard you to have played a more significant role than the offenders in each of these cases.
93Mr Lee relied, in respect of tobacco importation, upon the cases of Barakat v Director of Public Prosecutions (Cth),[9] Director of Public Prosecutions (Cth) v Zekry[10] and Director of Public Prosecutions (Cth) v Tung,[11] all of which dealt with lower-end offenders and in which either short terms of actual imprisonment or terms of imprisonment with an immediate release on recognisance release orders were imposed. Again, these cases have been of some assistance in considering what is an appropriate sentence for you, Mr Lee.
[9] [2020] VSCA 185.
[10] [2020] VCC 181.
[11] [2017] VCC 1435.
94I turn now to the submissions of the prosecution and defence counsel.
95On behalf of Ms Tan, it was submitted that given her prior good character and excellent prospects of rehabilitation, her plea of guilty and remorse, her youth, and the current onerous conditions of imprisonment, a period of imprisonment was warranted but time served or thereabouts would suffice.
96On behalf of Mr Lee, it was submitted that it was open to the Court to sentence him to a term of imprisonment, but that an immediate release on a recognisance order was within range.
97The prosecution submitted, for Ms Tan, that a term of imprisonment consisting of a head sentence and a non-parole period was the only available sentencing disposition.
98In respect of Mr Lee, the prosecution submitted a period of immediate imprisonment was warranted but some portion of the sentence could be served upon a recognisance release order.
99The sentence I impose on each of you must give expression to the various sentencing principles. In sentencing each of you, I must have regard to a range of different factors. I must give effect to the principles both of general and specific deterrence — that is, I must deter others from behaving as you did, and I must deter you from repeating such behaviour. I must express the community’s denunciation of your conduct, but I must also, if possible, promote your rehabilitation. Both of you are youthful offenders of hitherto good character and I regard, in the case of each of you, that your prospects for rehabilitation are good.
100There is some application of the principle of specific deterrence in respect of each of you, given the ongoing nature of the offending.
101The primary sentencing considerations are general deterrence and denunciation. This kind of offending is prevalent and often difficult to detect. In respect of money laundering, the serious consequences of large sums of money ending up in the hands of criminal syndicates hardly needs elaboration. In respect of the evasion of import duty, it is a crime against the public purse. It deprives the government of the money it needs to fund vital public services and infrastructure. Its victim is the community at large.
102In respect of you, Ms Tan, I have concluded that the only appropriate sentence for you is a sentence of imprisonment consisting of a head sentence and a non-parole period.
103On charge 1, import tobacco products, you are convicted and sentenced to 15 months’ imprisonment.
104On charge 4, deal with an instrument of crime recklessly (money laundering), you are convicted and sentenced to two years and nine months’ imprisonment.
105I direct that the sentence on charge 4 commences today — that is, 27 August 2020 — and I direct that the sentence on charge 1 commences 23 months after the commencement of the sentence on charge 4.
106This will make a total effective sentence of three years and two months, or 38 months, and I direct that you serve a non-parole period of two years’ imprisonment.
107I declare that you have already served 399 days under this sentence and I direct that that fact be entered into the record.
108Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that but for your plea of guilty I would have sentenced you to a head sentence, or a total effective sentence, of five years and six months, and a non-parole period of three years and 10 months.
109Mr Lee, I turn to you now.
110On charge 1, import tobacco, you are convicted and sentenced to eight months’ imprisonment.
111On charge 2, you are convicted and sentenced to six months’ imprisonment.
112On charge 3, you are convicted and sentenced to four months’ imprisonment.
113I direct that the sentences on charges 1 and 3 are to commence today — that is, 27 August 2020. I direct that the sentence on charge 2 is to commence four months after the commencement of the sentences on charges 1 and 3.
114That will make a total effective sentence of 10 months.
115I direct you be released immediately upon you entering into a recognisance in the sum of $3,000 and to be of good behaviour for a period of 18 months.
116I declare that one day imprisonment has already been served under this sentence and I direct that that fact be entered into the record.
117Mr Lee, but for your plea of guilty I would have sentenced you to six months’ immediate imprisonment.
118Mr Lee, I need to explain to you the sentence that I have imposed upon you.
119I’ve imposed a sentence of imprisonment of 10 months but I have directed that you be released immediately on a recognisance order, and I need to explain to you the consequences of that order if you fail to comply with its conditions without a reasonable excuse.
120It’s really a conditional grant of freedom. It requires you to be of good behaviour for a period of 18 months. If you commit a further offence in breach of the recognisance to be of good behaviour during that 18 months then, unless you can show a reasonable excuse for committing a further offence, or further offences, you will be dealt with for that breach and re-sentenced. Do you understand? Mr Crisp will explain it to you.
121You may have to pay the $3,000, which I’ve made part of the order, and you may have to serve immediately any remaining term of imprisonment, which in your case will be the entirety of the 10 months, less one day, which I’ve imposed.
122I should also tell you that you, or an authorised person, may apply to the Court to vary or discharge the recognisance in accordance with s 20AA of the Crimes Act 1914 (Cth).
123So, Mr Lee, effectively you have 10 months hanging over you. You are to be of good behaviour for 18 months. In simple terms, if you’re not, you might find yourself re-sentenced to that term of imprisonment and forfeit the $3,000.
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