Director of Public Prosecutions v Chen
[2015] VCC 1938
•18 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-00378
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIANG CHEN |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 December 2015 |
| DATE OF SENTENCE: | 18 December 2015 |
| CASE MAY BE CITED AS: | DPP v Chen |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1938 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr Y Hardijabrata | |
| For the Offender | Ms D McCann |
HIS HONOUR:
1Liang Chen, on 19 November 2015, a jury of 12 unanimously found you guilty of one charge of recklessly dealing with the proceeds of crime, being cash of $100,000 or more. This offence is contrary s.400.4, sub-s.(2) of the Criminal Code. The maximum penalty for this offence is 10 years' imprisonment or a penalty of 600 penalty units. The amount of money seized from you by the Australian Federal Police was $314,000. That money has been forfeited.
2Since the day of your arrest on 5 June 2014, you have spent two periods of time in custody for this offence. The total time that you have spent in custody to date is 312 days.
3I turn to the circumstances of your offence. The Australian Crime Commission and the Australian Federal Police ("AFP"), conducted an investigation into an alleged money laundering operation involving the movement of large sums of money from Australia to Hong Kong. The money was carried by couriers to Hong Kong as part of a much larger criminal enterprise.
4In the course of police investigations, surveillance commenced on your co-accused, Manus Fan. In particular, on 5 June 2014, the police and investigators followed the exchange of a Coles bag containing the money from Fan to unknown Asian males to Tik Nguyen Chan and then to you. The exchange from Chan to yourself took place in a carpark in Russell Street, Melbourne.
5In the days leading up to your meeting with Chan, there had been telephone and text message contact between you and Chan. On the day of your arrest there was phone and text communication between yourself and Chan shortly before your meeting. You then walked around the block and, ultimately, the exchange of money and your arrest in the carpark at Russell Street.
6At the time of your arrest, you were in a New South Wales registered Jeep vehicle. The Jeep was not registered in your name. You were seated in the driver's seat, the keys were in the ignition and the money - that is, $300,000, was packed in a backpack at your feet in the foot-well of the Jeep. The money had been transferred from the Coles bag to the backpack. One of the three packages of your money had your fingerprint on it. The three packages of money were shrink-wrapped into what I am describing as “bricks”. Each “brick” of money had 10 bundles of $10,000 in it. The “bricks” had 10 Ten - that is the number 10 and the word ten written on them. The balance of $14,000 found in your possession was in loose cash form.
7Ms McCann, on your behalf, submitted that your involvement was a relatively low level of criminality because
(a) this was a single transaction;
(b) your involvement was of short duration;
(c) you were only one of a number of couriers for the proceeds of crime in this whole investigation;
(d) there is no evidence to establish you knew the source of this money was from drug trafficking; and
(e) your only connection to this criminal activity was Chan, who she described is next up the chain.
She submitted your role was very limited and at the very periphery of the criminal organisation.
8I accept that, for the purposes of sentencing you, that you were the courier of these moneys and there is no evidence to prove that you were directly connected with the criminal activity that generated these proceeds of crime. Nevertheless, you, as a person, are regarded by those in the criminal activity who could be trusted to deliver and safeguard this substantial sum of money. You have fulfilled a very important link in the chain of the whole criminal enterprise. The aim of organised crime is to make substantial profits and your role was to deliver the profits. It was not in evidence in front of the jury which convicted you of this offence, but it was accepted by your counsel and the prosecution that, at the time of this offence, you were on bail for allegations of money laundering offences in New South Wales. Those New South Wales allegations are still to be finalised and you are to be treated as a person with no prior convictions. Nevertheless, the fact that you were on bail at the time of this offence dilutes any suggestion that you were not alert to the criminality of your offending in this case.
Your personal circumstances
9You are now 26-years-old, having celebrated your last birthday during this trial. You were 24-years-old at the time of the offence. You were born in Shanghai, China. When you were six to seven years old, your parents separated. You initially lived with your mother, and then moved to live with your father until you were 16 years of age. Your father still resides in Shanghai. Your mother now lives in Germany.
10In 2007, you came to Australia and lived with your grandparents. You also have support from your auntie, Ying O'Neill, who lives in Sydney and works as a banker.
11You completed your secondary education at George River College in Sydney. You commenced studying accountancy at Wollongong University and moved to Macquarie University. When you were arrested for this offence you ceased your studies there.
12In her reference, Ying O'Neill says you were rejected by your parents and says you were lonely. She says this is the reason you made poor decisions about your friends. It is submitted that you have become depressed while in custody, but no medical or psychological report was tendered to support this submission. You have no prior convictions. You have lived in Australia for eight years. You have had the benefit of a good education and you were studying accountancy at Macquarie University at the time of your arrest for this offence. You are clever and have some prospects of rehabilitation given your young age.
13You have an outstanding charge in New South Wales relating to possessing property reasonably suspected of being the proceeds of crime. As I said, in respect of that matter, you are still presumed innocent, but I do accept it will be a matter weighing on your mind at the present time.
Sentencing considerations
14Under the Crimes Act 1914, s.17(a) provides that a court shall not pass a sentence of imprisonment on any person for a Federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
15In short, imprisonment is a sentence of last resort. I am required to take the many factors set out in s.16A of the Crimes Act in determining the appropriate sentence in all the circumstances of this case. These matters include the principles of general deterrence, the nature and circumstances of the offence, including your moral culpability, the maximum applicable penalty. This is a single-incident offence. The fact of whether or not you have pleaded guilty. In this case you have run a trial. I also have to consider the degree to which you have cooperated with the law enforcement agencies. In this case there has not been any cooperation. I also have to consider the deterrent effect that any sentence or order under consideration will have on you directly, that is, specific deterrence. Further consideration is given to the need to ensure that you are adequately punished for the offence; your character, antecedents, age, means and physical and mental condition, and the probable effect of any sentence or order under consideration would have on you your family, or your dependents. I also have to have regard to your prospects of rehabilitation. As I have said before, prison is a last resort.
16Also, I have to take into account the risk of you being deported as a result of this sentence of imprisonment. In the case of the DPP v Wang [2015] VSCA 96, the fact that the risk of deportation now can be quantified with some certainty, means that the prospect of deportation will increase the burden of imprisonment upon you. I find this is a mitigatory factor in sentencing you.
17Ms McCann submitted that the principle of parity has direct relevance to your sentence when consideration is given to the sentences of your co-accused, Tik Wing Chan. Mr Chan was sentenced by a senior judge of this court to 281 days' imprisonment which was, in effect, the time served by Chan at the time of the sentence. There were two basic differences between you and Chan. The first is that Chan pleaded guilty to his charge, while you had run a trial to verdict. The second difference is that the maximum penalty for Mr Chan's offence was three years' imprisonment and the maximum penalty for your offence is 10 years' imprisonment. The principle of parity requires a consideration of equal punishment for equal criminality and offending. I have given consideration to the differences and similarities in the offending by yourself and Chan when fixing your sentence. I have taken those differences and similarities into account.
18The prosecution submitted the summary of the dispositions for your co-accused, Chiang, Chan, Bao and Du. Each of these offenders are distinguishable from your offending by your election to go to trial. I have had regard to those sentences, mindful that those cases are different from yours, and from one another.
19I have also considered the folder of authorities handed up to the court at the end of your plea hearing. In cases such as this, general deterrence is a primary sentencing consideration. The authorities of Wang Xiabi & Ors v R, R v Wang and R v Xiao, make this clear. Money laundering should be considered a serious activity, which is at the core of organised professional crime syndicates. It calls for severe punishment to reflect general deterrence to a significant degree. In your case, the amount of money and its packaging, that is, the sum of $314,000, is substantial. The fact that you have come from New South Wales to take custody of the money in a carpark in Melbourne dispels any idea this offence was opportunistic. You have offended for personal gain. While there was no direct evidence of what you were to receive for your part in this criminal activity, it is a matter of commonsense that you were in this for the money. That the $300,000 was all wrapped up and packed with the $14,000 in loose form, can only lead to this conclusion. I have decided the only appropriate sentence is a term of imprisonment.
20Would you stand please.
21On Charge 2, you are convicted and sentenced to 30 months' imprisonment. I direct that this sentence is to commence this day. I further direct that 20 months' of this sentence is to be served immediately, before being released by way of a $5,000 recognizance bond of good behaviour for a period of two years thereafter. I declare that you have been in custody for a period of 312 days to be reckoned as a period of imprisonment already served under this sentence which will be deducted administratively.
22Does that - under the sentencing law what I want to do is this. I am giving 30 months imprisonment as the sentence.
23MR HARDJADIBRATA: Yes.
24HIS HONOUR: Twenty months to serve. Recognizance, as I have to, under the 20A(b).
25MR HARDJADIBRATA: Yes.
26HIS HONOUR: But he is to get credit for the 312 days.
27MR HARDJADIBRATA: Yes.
28HIS HONOUR: Does that order cover that?
29MR HARDJADIBRATA: Yes, it does, Your Honour, and I think we have to fill out a recognizance ‑ ‑ ‑
30HIS HONOUR: A recognizance ‑ ‑ ‑
31MR HARDJADIBRATA: ‑ ‑ ‑ release order.
32HIS HONOUR: That's correct.
33MR HARDJADIBRATA: That has to ‑ ‑ ‑
34HIS HONOUR: Yes. And the prisoner has to sign it.
35MR HARDJADIBRATA: Yes.
36HIS HONOUR: Yes.
37MR HARDJADIBRATA: I think we've just forgotten the form.
38HIS HONOUR: I see. I've forgot my glasses, so I can't say much.
39MR HARDJADIBRATA: Your Honour, we apologise. We'll just have to get that form from the office of the Commonwealth DPP. We apologise for the short delay.
40HIS HONOUR: Yes.
41MR HARDJADIBRATA: We'll get that and we'll complete it and have it signed.
42HIS HONOUR: Fine. Well, rather than - that'll take some 15 minutes or so, will it?
43MR HARDJADIBRATA: Yes.
44HIS HONOUR: I'll stand the matter down. Does that mean you have to take him back down to the cells?
45POLICE OFFICER: Sorry, Your Honour, we can leave him out the back.
46HIS HONOUR: Is that okay?
47POLICE OFFICER: Yes. That's fine.
48HIS HONOUR: Thank you. Thanks for that. Mr Chen, you'll just have to wait out the back here for 10 to 15 minutes. The Crown have to get some paperwork for you to sign. Thank you. Thanks Madam Interpreter, thanks for your assistance.
49(Short adjournment.)
50MR HARDJADIBRATA: Well perhaps the matter could be stood down until the document arrives Your Honour.
51HIS HONOUR: It's a hot day. They'll be coming slowly up the hill.
52(Short adjournment.)
53MR HARDJADIBRATA: If Your Honour pleases, the form has been filled out. The Recognizance has been filled out, should I say.
54HIS HONOUR: Yes.
55MR HARDJADIBRATA: And myself and my learned friend have checked it. Under the order, Your Honour is obliged to explain to the prisoner the purpose of the effect of the order.
56HIS HONOUR: Yes.
57MR HARDJADIBRATA: And the consequences that may follow if, without reasonable excuse, he fails to comply with the conditions of this order.
58HIS HONOUR: Yes.
59MR HARDJADIBRATA: Namely, he'll be brought back and resentenced.
60HIS HONOUR: Yes.
61MR HARDJADIBRATA: Although, in this case, as my learned friend may explain further to Your Honour, that might be moot because - -
62HIS HONOUR: Yes.
63MR HARDJADIBRATA: ‑ ‑ ‑ given his ‑ ‑ ‑
64HIS HONOUR: He'll go from the ‑ ‑ ‑
65MR HARDJADIBRATA: ‑ ‑ ‑ visa ‑ ‑ ‑
66HIS HONOUR: He'll go from the ‑ ‑ ‑
67MR HARDJADIBRATA: ‑ ‑ ‑ he'll go straight into ‑ ‑ ‑
68HIS HONOUR: He'll go from the prison, to the immigration detention centre ‑ ‑ ‑
69MR HARDJADIBRATA: Yes.
70HIS HONOUR: ‑ ‑ ‑ to the airport.
71MR HARDJADIBRATA: Yes. Indeed. So without further ado, if I could just hand up to Your Honour the Recognizance Release Order.
72HIS HONOUR: Yes. Mr Chen, as you know, I have sentenced you to 30 months' imprisonment, but you have to serve 20 of those months immediately. And from that time, you have already served 312 days of the 20 months.
73I am also placing you on a Recognizance Order to be of good behaviour for two years after that. The real effect of the order that I have made is that you will serve the 20 months imprisonment and the authorities will then move you from a prison to an Immigration Detention Centre based on your current VISA status, and the administrative actions happen thereafter which, in all likelihood will be your deportation to China. The effect of this order, though, is that if that does not happen, you have got to be of good behaviour for two years upon your release from prison. If you breach that recognizance of $5,000, you will be brought back here before me. Do you understand that?
74OFFENDER (Through Interpreter) Yes.
75HIS HONOUR: Thank you. Do I need to say any more than that?
76MR HARDJADIBRATA: No Your Honour, no.
77HIS HONOUR: Yes.
78MS MCCANN: Does Your Honour want me to go with your associate just to make sure it's understood?
79HIS HONOUR: Yes. I just see a discussion there, I just wonder if there's some difficulty?
80MR HARDJADIBRATA: No there isn't. We're just checking to see whether there is anything further that Your Honour needs to say. But we don't think there is.
81HIS HONOUR: Just say in respect of what?
82MR HARDJADIBRATA: Just in terms of explaining the consequences of the order. But in the circumstances, I think that Your Honour has explained sufficient details to the prisoner.
83HIS HONOUR: Yes. Do you agree with that Ms McCann?
84MS MCCANN: I've simply clarified - I don't know whether or not this is necessary, it's always necessary with my clients though - which is just to explain the sum of money that's attached to it, but I've explained that to him.
85HIS HONOUR: Yes.
86MS MCCANN: And if there are any further questions I can handle that, I think, probably.
87HIS HONOUR: Yes. Thanks. The money aspect will be the least of his problems, I think.
88MS MCCANN: It's always a question people ask, though, Your Honour.
89HIS HONOUR: Yes, of course it is. Yes, of course it is. Thank you. Thank you both. Have a good Christmas. Not for everyone, obviously.
90MR HARDJADIBRATA: As Your Honour pleases.
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