Director of Public Prosecutions v Chen
[2014] VCC 1446
•22 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-13-02408
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAOSHUN CHEN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2014 | |
DATE OF SENTENCE: | 22 July 2014 | |
CASE MAY BE CITED AS: | DPP v Chen | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1446 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Commonwealth offences - Dealing with proceeds of crimes – Possess controlled drug – Possess counterfeit money
Cases Cited: DPP (Cth) v El Karhani (1990) 21 NSWLR 370
Sentence: Commonwealth sentencing - Total Effective Sentence 4 years’ imprisonment – Non-parole period 2 years’ imprisonment – Pre-sentence detention 504 days declared as having already been served – Sentencing Act 1991 s.6AAA declaration
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Brown | Commonwealth DPP |
| For the Accused | Mr K. Oldis | Valos Black |
HER HONOUR:
1 Daoshun Chen, you have pleaded guilty to each of the following Commonwealth offences:
Charge 1-Dealing in proceeds of crime worth $100,000 or more which has a maximum penalty of 20 years imprisonment.
Charge 2-Possess a controlled drug which has a maximum penalty of 2 years imprisonment.
Charge 3- Possess counterfeit money which has a maximum penalty of 10 years imprisonment.
The maximum penalties reflect the seriousness with which each of the offences is regarded by Parliament. In particular,
Charge 1 is regarded as a most serious offence.
2 In the course of an Australian Federal Police investigation into an organised methamphetamine syndicate operating out of Melbourne, you became a person of interest, as you were identified as communicating on the telephone with one of the alleged principal offenders, Liming Huang. The Crown asserted that it was Huang and a Ning Li who were the primary persons of interest from the outset of the investigation. Other persons of primary interest in the investigation were Wanghao Hong, and Min Yu.
3 A sixth person has since been arrested in relation to activities which were linked to this syndicate.
4 The Crown allege that the syndicate adopted a scattergun approach to deliveries of multiple consignments of methamphetamine from China to various residential addresses in the hope that at least some of these would get through without being discovered by authorities here. These addresses were provided by syndicate members to unknown connections in China, who supplied the drugs; then syndicate members in Australia arranged for collection and were involved in trafficking the imported drugs.
5 It is not alleged that you were involved in trafficking drugs yourself and while
you admit that you believed that the monies you dealt with were unlawfully obtained, you do not admit that you believed that the monies were related to drug trafficking. I shall return to this aspect a little later on in my sentencing remarks.
6 By way of background, I was told that police have intercepted at least 8 separate consignments of methamphetamine which have a total pure weight of 1,825.9 grams. The consignments had direct links to members of the syndicate, but none of these were directly linked to you and through your Counsel you disavow that you were in fact a member of the syndicate as opposed to an instrument used by it to launder money.
7 I was told that the scope of the syndicate’s activities extended beyond the eight consignments intercepted and that police statements from a number of Chinese students and telephone intercept material reveals that the syndicate was able to successfully import multiple packages undetected by law enforcement agencies.
8 In addition to the importation and trafficking of methamphetamine, syndicate members remitted large sums of cash to China using licensed money remitters being Global Forex, Xinying Pty Ltd trading as Anying and Western Union. The transactions ranged in value from $1,000 to $50,000.
9 It is the Crown case that you were responsible for transferring the funds overseas and that the money was proceeds of crime. You did not know to whom the money was to be transferred. The Crown also asserted that the transferred monies were the proceeds of drug trafficking. The Crown submitted that in all of the circumstances, the only reasonable inference was that you knew the money was related to drug trafficking. This was disputed by you and again I will return to this matter a little later on.
10 You were in regular phone contact with other members of the syndicate and
lived with co-accused, Min Yu.
11 On 19 February 2013, you telephoned co-accused Huang and asked when Huang was bringing something. The following exchange then took place: Huang said:
"Fuck. Xi Lau says he has no money. I had purposely gone there to buy some (indecipherable) my (indecipherable). To get it all settled. I do not want to keep money. Fuck. If keep some money, keep money, could be caught. Fuck". (Chuckle)
And then Huang was heard to chuckle. You replied:
"May be caught. May be caught."
12 On 23 February 2013, you telephoned co-accused Huang and referred to, “that remittance of money”. You asked whether Huang's house “has any more” or whether “you did not bring back?” When Huang said he had nothing left, you replied “whenever I need it, you accidentally don’t have it. Whenever I don’t need it, you just have it”. Huang then replied “fuck. I am telling you. Previously, I had kept three granules, kept three granules for you. If I do have, how come I don’t give it to you, fuck?”
Money transfers
13 You transferred $191,282 in 11 separate transactions between 28 January 2011 and 24 September 2012. As was pointed out by your counsel Mr Oldis, these all occurred some time before the telephone conversations although you were found with a large sum of money on the day of your arrest which you also believed were proceeds of crime.
14 Details of the transfers were found in transaction records kept by licensed money remitting services. In order to transfer money internationally using these services, a customer must first register an account using
government-issued photo identification. Once the account has been registered, the customer must provide the money remitter with details of the recipient including the beneficiary’s name, bank, bank account, country of destination, and the amount of funds to be transferred. The customer has to present photo identification for every transaction and is required to sign a receipt issued by the money remitter to confirm the transaction. Mr Oldis accepted that this was the policy of licensed remitters but said that it did not mean that this was always followed. The learned prosecutor referred me to committal evidence where each of the witnesses from the relevant institutions said that this was the unerring practice of their company in remitting money. This has relevance to the strength of the Crown case against you and the extent to which your plea facilitated justice in respect of Charge 1.
15 The transactions conducted by you were set out in a table showing the following remittances:
| Number | Date | Amount |
| 1 | 28/01/2011 | $7,050.00 |
| 2 | 26/02/2011 | $4,982.00 |
| 3 | 3/03/2011 | $7,800.00 |
| 4 | 11/04/2011 | $9,500.00 |
| 5 | 6/05/2011 | $9,500.00 |
| 6 | 30/09/2011 | $15,955.60 |
| 7 | 22/03/2012 | $50,000.00 |
| 8 | 18/07/2012 | $30,000.00 |
| 9 | 28/08/2012 | $14,523.20 |
| 10 | 17/09/2012 | $22,187.30 |
| 11 | 24/09/2012 | $19,783.90 |
| TOTAL | $191,282 |
16 The “dealing” for which I sentence you comprises this conduct, namely:
(a) Transferring $191,282 overseas in the 11 separate transactions
to which I have just referred, between 28 January 2011 and24 September 2012; and also;
(b) Possessing $55,900 on 5 March 2013.
Arrest and search warrant
17 On 5 March 2013, the AFP executed search warrants at a number of properties associated with the syndicate. One such warrant was executed
at 101/32 La Scala Avenue Maribyrnong, which was where you and
Min Yu lived. You, Min Yu, and Huang were present at the time the warrant was executed. Police found the following items in your bedroom:
(a) $55,900 cash;
(b) $3,000 of counterfeit Australian $50 notes, in a bundle of $2,600 and a bundle of $400;
(c) Approximately one gram of methamphetamine in a small clip seal bag, found in the top drawer of the bedside table;
(d) A Chinese passport in your name, along with other personal items belonging to you.
18 The bulk of the counterfeit money ($2,600) was found in the top drawer of the bedside table in your bedroom and the remaining $400 was found in the third drawer. The bulk of the cash was found in a tin underneath your bed and the remaining sum ($500) was in a box on the floor of the bedroom. Your fingerprints were found on the box and on some of the notes themselves.
Counterfeit currency
19 Analysis of the counterfeit currency seized from your bedroom indicated that the notes had been printed using toner printing, instead of the standard printing method; the polymer used in their production differed to legitimate banknotes; and the vignette of the Southern Cross had been simulated by
spraying white ink through a stencil. Whilst these discrepancies (and others) indicated the banknotes were not legitimate, the banknotes were sophisticated examples of counterfeit currency. Police instruct that the serial numbers on the counterfeit notes had been uttered 761 times across the country.
20 You were committed on 12 December 2013 following a contested committal hearing, however, it is accepted by the Crown that you were willing to plead at an earlier stage to charges in relation to dealing with proceeds of crime and Charges 2 and 3 which are on the current indictment.
21 You were remanded in custody following your arrest and have now spent 504 days by way of presentence detention.
22 Mr Chen, on any view of things, your offending insofar as Charge 1 is concerned, is most serious. You were prepared to engage in laundering money in significant sums on 11 separate occasions, believing that each of these sums was derived from criminal activity. You were prepared to deal with $55,900 which was found in your possession, believing this to be proceeds of crime. Moreover, the total sum with which you dealt was nearly 2 and a half times the threshold sum for the relevant offence to be made out, this offence being the second most serious offence in the legislative scheme of money laundering offences. It is also relevant to the seriousness of your offending that you engaged in this criminal conduct over a period of about two years, albeit that there is a gap of approximately 6 months before the last remittance and the cash being found in your possession upon arrest. I must impose a punishment which is adequate in all of the circumstances. I also regard your possession of counterfeit money as a serious example of that offence.
23 In respect of your role and level of knowledge, I sentence you on the basis that you believed that the money that you were dealing with was proceeds of
crime; despite my strong suspicions, I do not sentence you on the basis that you knew or believed that the monies with which you were dealing were derived from a drug importation or trafficking enterprise or that you were a member of the syndicate. However, you were prepared to be used as an instrument to launder and deal with significant sums of illegally obtained money and to send this offshore, without any apparent concern for the illegality of what you were doing or as to the nature of the criminal activity that might be concerned in producing such large sums. While you were not a principal or medium level participant in the enterprise, you were certainly entrusted with large sums of money.
24 As was said in DPP (Cth) v El Karhani (1990) 21 NSWLR 370, and referred to by the learned prosecutor in her submissions: ‘Money laundering is vital to the functioning of organised crime syndicates, and in particular drug trafficking syndicates. In such cases, it is a necessary part of the criminal activities of those syndicates, and the money launderer is an important cog in the wheel of organised crime. Accordingly, the offence of money laundering is an offence in respect of which the principle of general deterrence is given significant weight."
25 These remarks have a good degree of relevance to your case. I give significant weight to general deterrence in a bid to deter others from offending as you have.
26 I do not accept that you simply engaged in such activity for occasionally little or no reward-this simply beggars belief especially in view of your limited ability to earn income legitimately, the significant risks that you took in acting illegally to assist others, and that you were able to pay rent for a lifestyle which, whilst not extravagant, was rather comfortable. In saying this, I have viewed the footage of your dwelling, a well furnished modern apartment, with pieces of recent technology such as a recent model of a computer and mobile
phone. You were able to pay for methamphetamine, which as I understand your counsel's submission, was a social habit of yours, and the learned prosecutor also said that intercept material revealed that you were able to fund regular social activities. While I do not speculate on how much you were earning, it seems to me that you were motivated to engage in such activity for reward which, no doubt, helped pay for your lifestyle- no doubt, it supplemented the modest income to which your Counsel referred which you derived from tearing out the insides of houses for renovations.
27 I take into account your background. You were born in a province of China where other members of your family still live. When you were 17 years old and in your final year of school where you were not progressing well, I was told that your family spent about $45,000 with a migration agent with a view to you coming to you coming to Australia. The plan was for you to study here, having obtained a student visa, but the family hope was for you to obtain residency then sponsor other family members to come here.
28 Despite this being the plan, your parents separated shortly before you arrived in Australia in June 2007. You first lived in Sydney when you arrived here, sharing with other students and working in restaurants, supermarkets and market gardens, apparently pursuing studies as well.
29 In 2008 you became aware of a change in Australia’s immigration policy which would prevent you from becoming an Australian resident. Also, you could not afford to continue your English course. You then travelled to Melbourne and shared numerous houses in the ensuing years with other students from China. You supported yourself with labouring jobs at building or renovation sites. You joined a large group of Chinese students who overstayed their student visas and worked for cash where you were paid for your work at about $12 an hour.
30 In 2013 you moved into a flat with Min Yu; I understand that Huang was at the
flat visiting when police arrived on 5 March last year.
31 You indicated your preparedness to plead guilty to Charges 2 and 3 before me from an early stage and you also indicated that you were prepared to plead guilty to a ‘dealing’ charge which was based on the money found in your room. You conducted a contested committal hearing in circumstances where you were facing another most serious charge but this did not proceed after committal and the dealing charge which you now face was then issued. In these circumstances you are entitled to a significant discount in the sentence you would otherwise receive. In pleading guilty you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of a trial. However, I allow for a discount as if you had not run a contested committal hearing in the circumstances of your facilitation of justice, and the history of this matter just referred to. In this regard, I have also factored in, to a limited extent, that you were deprived of an opportunity to give a record of interview as the Australian Federal Police took the view that they were not entitled to conduct one as too much time had passed. Whilst this deprived you of a chance to make full admissions from the outset, I cannot speculate as to whether this would have been your chosen course. Mr Oldis was not aware as to whether your legal representatives had ever approached authorities on your behalf to enable you to provide a record of interview.
32 However, I do not accept that you pleaded guilty in the face of a weak case in respect of Charge 1. Whilst you may have been able to mount a defence and there may not have been CCTV footage or the like to substantiate that it was actually you who remitted the money on each alleged occasion, there were procedures in place which, according to the committal evidence, were complied with by the various institutions you used. In relation to the money found in your bedroom, you did admit that this was the proceeds of crime; however, in all of the circumstances, including the nature of your ‘legitimate
work’ and in view of the remittances, I do not regard the prosecution case in this respect to be weak either. I make some allowance in your favour on the basis that you may have had an arguable case in respect of the remitted money and the money found at the flat, but that you chose to take responsibility for your actions.
33 I make very limited allowance for hardship suffered by you in the face of the very real prospect of deportation. It may be that you lived in the hope that you would be able to stay on in Australia having obtained residency; however, this was never assured and certainly, you were only here for a year at the most before learning that you would be prevented from obtaining residency. Rather than return home, as you were supposed to do, you remained here illegally, earning black money, then engaged in serious criminal activity. In the circumstances, any hope of remaining here was a most fanciful one.
34 However, I take into account that you suffer hardship in being removed from your own family and are relatively isolated in custody, making time in gaol harder for you than for others not in your position. In making appropriate allowance I factor in that your associates are on remand with you but this may well change now that you are to be sentenced. I also factor in that this is your first period of incarceration which has been and will be a difficult experience for you. You have had to tell your mother that the money they raised in the hope of securing a future here has been for nothing, albeit that it would seem you knew you had little prospect of remaining here as at 2008.
35 You have no prior convictions, which is a matter that counts in your favour.
36 I have also taken into account your relative youth at the time of the offending and now.
In view of the absence of a criminal history and subsequent matters, your willingness to take responsibility for your criminal behaviour, your sense of shame for this offending, the salutary experience of gaol and family support to look to when you return home, I assess your prospects of rehabilitation as good; for the same reasons, I need only place minimal weight on specific deterrence.
37 Your Counsel submitted that although immediate gaol was the appropriate disposition, I ought sentence you to a non-parole period equal to the time you have already served. The learned prosecutor submitted that this was not sufficient to do justice to the weight required to be given to all relevant sentencing principles.
38 I was provided with some cases to assist me in applying relevant sentencing principles and current sentencing practice, although there is little guidance in this regard, and there were some qualitative differences between your case and the cases with which I was provided. However, I have considered these cases in sentencing you, bearing in mind their somewhat limited utility.
39 After attaching appropriate weight to all relevant sentencing principles I am of the view that a disposition involving a further period in custody before becoming eligible for release is warranted in your case.
40 Could you please stand up Mr Chen? You are convicted in respect of all the charges:
41 I sentence you as follows:
Charge 1 3 years 6 months imprisonment which is to commence today.
Charge 2 1 month imprisonment to commence today.
Charge 3 12 months imprisonment which is to commence 6 months before the expiration of the sentence on Charge 1.
42 This produces a total effective sentence of 4 years imprisonment and I direct that you serve 2 years imprisonment before becoming eligible for parole.
If not for your pleas of guilty I would have sentenced you to a total effective sentence of 6 years imprisonment with a non-parole period of 4 years.
43 I declare that you have already served 504 days by way of pre sentence detention which will be deducted from the sentence that I have just imposed.
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44 HER HONOUR: Could you just take a seat for a minute thank you.
Madam Prosecutor is there any difficulty with the sentence that I've imposed in the effect that I wanted to give to the sentence I've imposed?
45 MS BROWN: No Your Honour.
46 HER HONOUR: Thank you Madam. Mr Oldis, anything arising?
47 MR OLDIS: None that I can see Your Honour.
48 HER HONOUR: All right yes thank you. Yes could you please remove
Mr Chen? Thank you for your assistance Madam Interpreter. Thank you counsel. We'll now adjourn.
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