Director of Public Prosecutions (NSW) v Koh

[2015] NSWLC 24

Local Court

New South Wales

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v Koh [2015] NSWLC 24
Decision date:	27 October 2015
Jurisdiction:	Criminal
Before:	Judge Henson CM
Decision:	See [30]
Catchwords:	CRIMINAL LAW – deal with property the proceeds of crime – sentence – assistance to authorities – offender a foreign national – relevance to sentencing of possible deportation – need for deterrence – suspended sentence inappropriate
Legislation Cited:	Crimes Act 1900, s 193C(1) Crimes (Sentencing Procedure) Act 1999, s 23 Criminal Procedure Act 1986, s 258
Cases Cited:	Chi Sun Tsui v R (1985) 1 NSWLR 308 R v Borkowski (2009) 195 A Crim R 1 R v Cartwright (1989) 17 NSWLR 243 R v Holland [2011] NSWCCA 65 R v M [2005] NSWCCA 224 R v Taylor [2000] NSWCCA 442 R v Zamagias [2002] NSWCCA 17
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) Yan Wei Koh (defendant)
Representation:	Counsel: Mr L Ang (duty barrister, for the defendant)   Solicitors: Ms J Dewhurst (for the DPP)
File Number(s):	2015/142399

Judgment

1. The defendant is before the court to be sentenced on two charges of Dealing with Property suspected of being the Proceeds of Crime. Each charge is brought pursuant to section 193C (1) of the Crimes Act 1900. The maximum penalty for each offence is imprisonment for two years or a penalty of $5500 or both. Each offence is a Table 2 offence for the purpose of section 258 of the Criminal Procedure Act 1986. The charges are to be dealt with summarily before the Local Court. The defendant entered a plea of guilty to each charge on 13 October 2015.

2. The facts are somewhat convoluted. They have a sense of being less than the full narrative. Nonetheless for the purpose of this sentencing exercise the Court will endeavour to reduce them to a simpler account.

3. The defendant is a Singapore national. The facts assert he arrived in Australia on 27 April 2015. It is clear he did so in order to facilitate criminal conduct within New South Wales. He signed the usual declaration to the effect that he did not have more than $10,000 in Australian dollar value on his person. That assertion may or may not have been true.

4. Within 8 days of arrival he deposited $299,650 in cash in a so called "safe keeping account" at Star City Casino. This type of account is essentially a safety deposit box secured within the casino. The following day he deposited $703,000 in cash into the same safety deposit box. Although not clear as to when and in what manner records at the Casino indicated some gambling activity on the part of the defendant and withdrawal of a significant portion of cash by him. Police were contacted, presumably by the Casino, and they attended the Casino on 7 May 2015 at 3.00 p.m.

5. The defendant was residing in a hotel next door to the Casino. Within half an hour police attended his hotel room. The defendant told police that the $700,000 deposit came from his Aunt Jin Xiu Sun in Newcastle, was the proceeds of a brothel business and was intended to be given to her ex-husband living in China. He said that in February/March 2015 he had been asked by his "aunt" to come and pick up luggage containing the money and put it into safekeeping. He asserted that he attended his aunt's premises, she was not home, he entered the premises through an unlocked back door, found a suitcase in his aunt's bedroom, and took a suitcase he found and left. He said he did not look inside the suitcase.

6. He says that after depositing the contents of the suitcase, $703,000, he subsequently transferred $100,000 to his uncle in China using a money remitter in Chinatown. The defendant gave no explanation for the source of the $299,650. It is implicit in the plea that he knew the cash money was the proceeds of criminal activity. He gave police permission to obtaining the remaining moneys in the safety deposit at Star City Casino. Police removed $600,230 in cash. There is no explanation in the facts for the movement of over $400,000. Police recovered a receipt for the removal of $200,000 on 6 May. In excess of $200,000 appears to be unaccounted for to any plausible detail.

7. Subsequent inquiries by police establish that the "uncle" in China does not exist. Contact with the purported source of the $703,000 and her partner, a Gordon Bennett establish that the defendant visited their premises in Newcastle on 28 and 29 March 2015. These are dates that pre-date his arrival in Australia. It is assumed, subject to evidence to the contrary, that where the statement of facts says March it means April. The essence of inquiries of Mr Bennett and Ms Sun establish the defendant is not related to Ms Sun. She denied being the source of $703,000. Whether that is true in fact is unknown.

8. In the course of sentencing proceedings a lengthy affidavit under the hand of a Police Officer Cook was tendered to the Court. The basis of the tender is section 23 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). This provision deals with the imposition of a lesser sentence for an offender who provides assistance to authorities.

9. Without disclosing greater detail of the contents of the affidavit it discloses that on the basis of information provided by the defendant some $1.59 million in tainted money has been confiscated and two persons charged with money laundering type offences. The affidavit also asserts the defendant actively participated in controlled conduct on behalf of police that led to the arrest and prosecution of the two persons charged. It is not known to this court whether either or both of the persons in question have been convicted of any offence. I will return to the vexed issue of assistance to authorities shortly.

10. The defendant comes before the Court as a Singapore national. His family remain in Singapore. He is currently detained in Australia on a criminal justice visa. He has no prior record in the Commonwealth. No details of any criminal record elsewhere have been placed before the Court. In that context he is to be sentenced as a first offender and is entitled to rely on previous good character to mitigate the severity of the sentence.

11. Little is known about the offender other than his nationality and the assertion that is expressed within the report of Mr Borenstein dated 7 October 2015. The personal information therein is as one might expect, largely provided by the offender himself. Within that report the defendant asserts that he is employed within the motor vehicle import business and that it was his "boss" who sent him to Australia to collect money and send it to China. He says his principle reason for being in Australia was to source the purchase of motor vehicles. There has been no evidence put before this Court to support this assertion. Given the defendant's conduct and intention to facilitate the laundering of a considerable amount of cash money the product of criminal activity within the community it is difficult and certainly unwise to accept that he came to Australia with any legitimate business activity in mind.

12. The plea of guilty entered by the defendant is to be regarded as a plea at close to the first available opportunity. Mindful of the fact that he could have indicated a plea to both charges when first charged in June 2015 and having regard to the principles of general application point 9 set out in the decision of R v Borkowski (2009) 195 A Crim R 1 at [32], there will be a minor adjustment to the commonly applied discount for a plea of guilty at the first available opportunity. The discount will be 22.5%.

13. The discount for assistance to authorities is more problematic. The affidavit from Officer Cook describes the defendant's willing involvement in controlled transactions. As indicated, the offender's role facilitated the arrest and charging of two persons and the confiscation of some $1.59 million dollars in moneys believed to be tainted. It is not known as at the date of sentencing what future role, if any the offender will need to play or is prepared to undertake in terms of prosecutions. Nonetheless where there is a "promise" of future assistance. Section 23(4) requires the court to quantify the discount in the exercise of its discretion. Apart from the statutory recognition set out in s 23 of the Sentencing Act the principles behind the adjustment of a sentence on the basis of assistance to authorities is well settled.

14. In R v Cartwright (1989) 17 NSWLR 243 at 252-253 the court observed:

It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information. In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest.

… The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true….

15. There is a reasonable inference to be drawn on the affidavit tendered in these proceedings that the information provided to the authorities is true. The confiscation of such a significant sum of money and the charging of two persons infers that but for the offenders willingness to assist these two arrests and the confiscation of a large sum of money would not have occurred. The Court is prepared, despite the unpredictability as to whether he will be needed to give evidence or is willing to give evidence, to give recognition to the purpose of s 23(4) by further discount to the sentence otherwise appropriate to each charge.

16. This does not mean that each sentence is to be reduced to the point where it becomes unreasonably disproportionate to the nature and circumstances of the offending or based on the inherent likelihood the offender will be deported and thereby becomes an outcome of convenience intended to facilitate deportation as opposed to reflecting the seriousness of the offending. What happens to the offender at the culmination of these proceedings is a matter for federal authorities. It is not determinative in the resolution of the charges before this Court.

17. In R v M [2005] NSWCCA 224 at [21]-[22] the approach in determining the level of discount is set out and noted. In R v Holland [2011] NSWCCA 65 at [42] the Court noted that the combined discount should not exceed 50% other than in exceptional circumstances. These proceedings do not fall within that categorisation. It is the view of the Court that the combined discount should not exceed 40%. The question is invariably posited- 40% of what. The resolution of this issue involves not just the quantification of the sentence but also the identification of the type of sentence the court considers commensurate with the objective seriousness of the conduct within the commission of the offence and those provisions of section 21A (2) and (3) of the Sentencing Act that aggravate or mitigate the conduct.

18. Mr Ang of counsel, who assisted the offender on sentence in the fine traditions of the Bar through the Duty Barrister scheme, urged the Court to deal with the charges on the basis of a suspended sentence. Mr Ang drew the court's attention to the particular subjective circumstances of the offender. He is currently at large within the community on a criminal justice visa. It is beyond speculation that he will be deported to Singapore in the not too distant future. The offender asserts his life and that of his family will be in jeopardy if the assistance he has provided becomes known to those who controlled his part in the money laundering enterprise. That may or may not be so.

19. The overall thrust of arguments in favour of the offender being dealt with by way of a suspended sentence suggests that the defendant be regarded as different from citizens of Australia on a basis that he will suffer the consequences of imprisonment more significantly than others because it will entail separation from his family as opposed to available access to a member of the wider community and that this in some way should be taken into account as justification for not imposing a sentence of full time imprisonment. I acknowledge that reality but do not accept it as a reason why there should be a differing approach on sentence to that taken in relation to ordinary members of the community.

20. Ms Dewhurst for the Director has helpfully provided the Court with the decision in Chi Sun Tsui v R (1985) 1 NSWLR 308. The decision is authority for a number of principles but for the purpose of these proceedings, confirmation of the view that sentencing of an offender who may be deported is to be undertaken in a manner no different from that taken in respect of a citizen of Australia and that the relationship between immigration laws and the criminal justice system are two distinct environments where the issue of deportation can have no part to play in respect of sentencing for laws intended to protect the community.

21. Returning to subjective factors there are areas of vagueness in the offender's narrative that are not capable of resolution within these proceedings. Given the level of dishonesty associated with the offender's conduct it would be an unwise court that gave undue emphasis to what might be factual circumstances without better evidence being placed before it. Speculation on subjective issues postulated by the person who has the most to gain from their unexplored acceptance is problematic. This is particularly so when it is clear the defendant's version of his involvement is contradicted to an extent by other persons who may or may not have been engaged in the criminal enterprise.

22. It is important also not to lose sight of the fact that there was a significant degree of planning involved in the defendant's criminal conduct. This attracts a finding of aggravation by reason of s 21A(2)(n). Laundering of ill-gotten gains is serious criminal offending behaviour. The amount of money involved raises the objective seriousness of the conduct. General deterrence is of significant importance. The offender may be able to rely on his prior good character and a degree of accepted remorse and he may have reasonable prospects of rehabilitation however those mitigating factors together with the discount for the plea and assistance do not convince this court that it is appropriate to adopt at face value Mr Ang's suggestion that the offender be given a suspended sentence.

23. Counsel's submission is predicated on an acceptance that the offender's conduct passes beyond the point highlighted in s 5 of the Sentencing Act whereby there is no appropriate alternative than the imposition of a sentence of imprisonment. That threshold view is correct. The nature of the conduct, its capacity to facilitate and maintain criminal offending on a significant scale to the detriment of the community and the amount of money involved all point towards a sentence of condign punishment.

24. In ordinary circumstances the objective seriousness of the conduct and high level of moral culpability that must be found to exist when a foreign national travels to this country in order to carry out criminal activities to the potential benefit of other criminals and to the detriment of Australian law and the Australian community points towards a penalty towards the upper end of the available sentencing options. The maximum penalty in relation to each offence of 2 years imprisonment and/or a fine is the marker set by Parliament in terms of the objective seriousness of the individual offences. Absent the combined discount for the utilitarian value of the plea and assistance to authorities this Court would have been inclined to impose a sentence close to the statutory maximum.

25. Mindful however of the summary disposition of the offences a sentence for each after application of the discount of 40% must logically be significantly less, but not to the extent of being unreasonably disproportionate. Section 23(3) is a clear direction so far as this proposition is concerned.

26. The appropriate sentence for the offence involving the $703,000 would have been 20 months imprisonment before application of the discount. The appropriate sentence for the offence second in time involving $299,650 would have been 15 months. After application of the discount of 40% the head sentences become ones of 12 months and 9 months respectively. At this point in the 3 step process identified in R v Zamagias [2002] NSWCCA 17 I return to the suggestion the sentences should be suspended. To adopt this suggestion for no greater apparent reason than that the offender would be removed from Australia to return to his place origin and perhaps inspire others to take the risk seems to this Court to be a contrivance that would do little to assist in combating this type of activity within our national borders.

27. The nature of this type of offending and its prevalence highlight the need for general deterrence. The relationship between criminal offending behaviour that produces such significant sums of ill-gotten gains and the involvement of facilitators who knowingly engage in what may be described commonly as “money laundering”, particularly through licensed premises such as a Casino is a relationship and course of conduct that operates to the detriment of the whole community. General deterrence and particular deterrence are both to be pursued in the course of sentencing.

28. As was said by Wood J in R v Taylor [2000] NSWCCA 442 at [49]:

Suspended sentences provide little, if anything by way of general deterrence

29. They would certainly provide no deterrence to those involved in organised crime conducted on a transnational basis such as exhibited in these proceedings. The ability for persons to enter Australia from overseas, facilitate the washing of money through a casino and leave before the agencies of law enforcement are aware of their presence and conduct is such that the need for general deterrence is paramount. I decline to deal with these matters by way of a suspended sentence.

30. The defendant is convicted on each charge. On Sequence 2 and after application of the discount of 40% he is sentenced to imprisonment for a minimum period of 9 months with an additional period of 3 months, a total head sentence of 12 months. On Sequence 4 after application of the discount he is sentenced to a minimum period of 5 months and an additional period of 2 months, a total head sentence of 7 months. The relationship between the two offences in terms of time persuades the Court that the sentences should be served concurrently. Given the short parole period and the fact of the defendant's nationality I decline to order supervision on parole if released. Each sentence is to commence forthwith. The moneys seized are forfeited.

Judge G Henson, Chief Magistrate

Downing Centre Local Court

27 October 2015

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Decision last updated: 18 January 2016