Director of Public Prosecutions v Chen

[2022] VCC 2341

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised

Not Restricted

Suitable for Publication

CR-22-00261

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAN CHEN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2022
DATE OF SENTENCE:	4 November 2022
CASE MAY BE CITED AS:	DPP v Chen
MEDIUM NEUTRAL CITATION:	[2022] VCC 2341

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:          Sentence – Plea of guilty – Negligently deal with proceeds of crime – Co-accused not yet dealt with – Engaged by others to collect money – No criminal history – Delay – Sentence imposed on basis of having dealt with money collected in circumstances involving falling short of standard of care a reasonable person would have exercised in circumstances where risk involved  property being proceeds of crime - Not sentenced on more serious state of mind such as knowledge or recklessness

Legislation:Sentencing Act 1991 (Vic)

Sentence: Convicted and sentenced to Community Corrections order of 2 years’ duration with conditions of supervision and 150 hours of unpaid community work – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Dickens	Solicitor for Public Prosecutions
For the Accused	Mr J. Portelli	J2 Legal

HER HONOUR:

1Nan Chen, you have pleaded guilty to one charge of negligently dealing with proceeds of crime which has a maximum penalty of five years' imprisonment.  The maximum penalty reflects the seriousness with which Parliament regards this offence and is something that I have to take into account in sentencing you.

2I sentence you on the basis of the prosecution opening in this matter.  However, in essence, you were engaged by others to collect $250,000 which had been concealed in a van in a secret compartment but which had been removed by a co‑offender and placed within the back of the van for you to collect and deliver to another or others.  The co-offenders involved in this matter had been dealing with each other using ANØM devices, these enabled encrypted communications using customised mobile handsets.

3The handsets looked like normal mobile phones but they did not allow for telephone calls as a rule, nor did they allow for anything other than end-to-end encrypted communications as between users.  The Australian Federal Police and US Federal Bureau of Investigations were able to access these communications which resulted in the detection of the offending in which you were involved.

4However, you did not have the specialised handset - rather, you were instructed by intermediaries as to what you were to do.

5Between 19 and 20 May 2021, a person by the name of H Topal directed a
co-offender, Arslan, to commence planning and coordination in relation to the exchange of $250,000 AUD cash to be collected from a Toyota van which had a purpose-built sophisticated compartment inside.  Arslan travelled to Sydney to collect the van.  At 1.39 am on 20 May 2021, H Topal directed Arslan to park the van at his job worksite, remove the $250,000 from the hidden compartment and place it in a shopping bag on the shelving in the back of the vehicle.

6Arslan drove the van to his worksite and parked it nearby.

7At 11.05 am, a co-offender, Kaskin, directed Arslan to place an Australian $5 note on the package and photograph the currency serial number on the back then send it to Kaskin.  The serial number was referred to as a token to identify that a transaction had been completed.

8At 1.41 pm, Arslan advised of the location of the van and H Topal instructed Kaskin in the ANØM chat group to 'Pass $250' to an alternate criminal syndicate coordinator.

9At 1.42 pm, Arslan removed the plastic bag containing the $250,000 from the concealed compartment and put it on the shelving at the back of the van.  He then placed the $5 note with a particular serial number on top of the bag then photographed this.  The photo was provided to Kaskin and H Topal as a token.  Arslan then notified all parties as to the appearance of the bag to facilitate its collection.

10At 2.10 pm, you drove your wife's car to where the van was parked, then took a photo of this to an intermediary who sent it to Kaskin confirming that you had the right location and van.

11At 2.14 pm, Kaskin confirmed your arrival then confirmed with you that the van had yellow registration plates, instructing Arslan to initiate the remote unlocking of the van so you could access the money.

12You approached the van and opening the sliding door then photographed the serial number of the token, sending this to an intermediary who then sent it to Kaskin confirming that you had collected the shopping bag containing the money.

13You then removed the bag with the money in it and left the area.

14Subsequently, police intercepted your car in Preston and on searching the vehicle, they found the plastic bag which in turn contained three vacuum sealed bags with cash in them, totalling the $250,000 Australian Dollars.  They also found a satchel containing about $5,000 cash.  However, the second sum was not part of the offending.  Also, they found two telecommunication devices.

15Police accessed one of your phones and identified a series of conversations in Mandarin.  The conversations included photographs of the white Toyota HiAce van with the New South Wales registration plates and also had short audio voice recordings.  Police photographed and video recorded these conversations.

16You were then arrested and the cash was seized.

17You were then interviewed with the help of a qualified Mandarin interpreter.

18You told police of your movements before being intercepted, saying that you had driven out of the Woolworths Preston car park and turned left to travel east along Murray Road.  You were unable to explain having the $250,000.  When asked by police how much there was in the plastic bag, you said you did not know and you did not know who the money belonged to.  When asked how the money got into your car, you said through the interpreter, 'Can I not answer this?'  Of course, it is your right not to answer questions put to you by police and it appears you understood that and exercised that right.

19On 25 October 2021, a certified Chinese language interpreter translated images and audio videos on your phone - or audio recordings on your phone, which assisted with the investigation of you.

20The other people to whom I have referred have been charged with relevant offences but as at the date of the plea hearing, nothing substantive had happened in relation to any of their matters.

21You were charged on summons on 9 November 2021 and the matter against you resolved at the committal mention stage.

22Mr Chen, I regard your offending as a fairly serious example of this offence.  Although you were not involved in a good deal of the communications as between more serious offenders, your involvement in this matter was an integral one.  Moreover, you were prepared to receive and follow through on instructions which revealed a fairly sophisticated operation even to the extent that you were involved and you showed that you were prepared to take these instructions which involved communications via an intermediary, taking photographs, sending those photographs to others including the taking of a photograph of the token.

23Your counsel told me that you are the operator of a small business which involved exports to China.  You and your family lived upstairs in the business premises and the business was suffering during the COVID pandemic.  You instructed your counsel that one of your regular customers offered you the opportunity to take part in a job which was described as being akin to Uber Eats.  You had previously been an Uber driver and apparently did not think much of such an offer as being suspicious even though you were offered $300 to $400 in payment, which is far more than an Uber driver would receive for the task you were given. 

24You also instructed your counsel that it was not until you were on your way to collect the money that you were told of the more elaborate plan, having previously been told that you had to collect some items from an individual.  You also told your counsel that you thought you were going to collect about $30,000 that day.

25Mr Portelli said that you should have twigged or realised that you were involved in something highly suspicious, indeed you should have, Mr Chen.  I sentence you on the basis of the offence you have pleaded guilty to which means that you dealt with the money that you collected in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised and such a high risk that the property was proceeds of crime that your conduct merits criminal punishment.  However, I do not and I have not sentenced you on a more serious state of mind such as knowledge or recklessness.

26Also, I do not sentence you on the basis that you knew that you were collecting such a significant sum of money, albeit that you were offered a fairly substantial payment for your services.  I understand that at the time you were struggling somewhat in your business which helped motivate you to become involved in the offending conduct, therefore, you were motivated by the promise of financial reward.  I note that you did not receive any payment as police arrested you before this could happen.

27In sentencing you, I take into account that you have no criminal history nor do you have any subsequent matters alleged against you.  I also factor in the limited role that you played and it was one which, although important, was fairly lowly compared with the other alleged co-offenders.

28I allow for a significant discount in the sentence that you would otherwise receive for pleading guilty at such an early stage, which has saved the witnesses the time and trouble of giving evidence and has saved the community the time and expense of contested proceedings.  Moreover, I allow for a palpable discount to be reflected in the sentence imposed as your preparedness to plead guilty has helped reduce the backlog in trials that the court has been and is facing due to the pandemic.

29I accept that you are embarrassed and regretful for your offending and that you have real and genuine remorse.  You have made it clear in your instructions to your counsel that you never intend to engage in criminal offending again.

30In your favour, I allow for the fact that there has been some delay in this matter reaching finality - although the delay is not inordinate given delays involved generally in the justice system at present, I accept that in the past 16 or so months you had the anxiety of the matter hanging over your head and that you have also used this time to demonstrate a solid road towards rehabilitation.

31I understand that you are presently also running a fruit and vegetable market at two different locations and that generally your business or businesses are doing much better.

32You have two young daughters and are very motivated to get your life back on track.  Both of your children are in your custody in circumstances where the mother of one of them and you have separated.  You are now with a new partner who is the mother of your second child.

33I was told that you do not suffer from any impairment of mental function, albeit that you have suffered a good deal of stress and anxiety associated with these proceedings.  You do not consume alcohol to excess and you do not use drugs.

34In all of the relevant circumstances I assess your prospects of rehabilitation as being very good and I need place only minimal weight on specific deterrence.  However, I must place strong weight on general deterrence in a bid to deter others from offending as you have.  I need only place minimal weight on protection of the community.

35In sentencing you I have factored in matters concerning your background.

36Your counsel submitted that a Community Corrections Order would appropriately address all relevant sentencing considerations and referred me to one sentence of this court in support of current sentencing practice.

37Counsel for the prosecution submitted that a combined sentence involving imprisonment and a Community Corrections Order was appropriate and that a Community Corrections Order alone was outside the range.

38I have had regard to the sentence to which I have been referred as reflective in part of current sentencing practice but it is but one case.  I have had regard to current sentencing practice more generally in so far as I can, noting that it is but one sentencing consideration and certainly not a controlling one.

39In my view, although the offending is a serious example of this, or a fairly serious example of this offence, it is not necessary to impose a gaol term in order to give appropriate weight to all relevant sentencing considerations.

40I had you assessed for a Community Corrections Order and the extensive or extended assessment has now been conducted and the report has been received.  I heard counsel this morning in relation to submissions based on that report, the prosecution maintains its submission in relation to the sentence that you ought to undergo, as does your counsel on your behalf.

41The Community Corrections report deems you suitable for a
Community Corrections Order.  In all the circumstances I intend to place you on such an order, but I cannot do so unless you agree.  As I say it is not necessary to impose a gaol term in this matter in order to give appropriate weight to all relevant sentencing considerations in my view.  You must listen carefully to the proposed Community Corrections Order as I cannot place you on such an order unless you agree.  The only condition recommended in the report is for unpaid community work as you are deemed to be of low risk of reoffending and minimal intervention is recommended.  I accept this although I am of the view that you ought also to be under the supervision of a Community Corrections Officer for the duration of the order.

42Now, I know that you have a heavy workload but this is an important order for you to undertake and it must be given the priority it deserves.  Community Corrections will work with you in that regard, but I do not want to hear that you have breached the order because you have given priority to your businesses or other work.

43The Community Corrections Order would run for a period of two years.

44The conditions of the order would be; the mandatory terms that apply to all Community Correction Orders which are, you must not commit another offence for which you could be imprisoned during the time that the order is in force; you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011; You must report to, and receive visits from, the Secretary to the Department of Justice or his or her delegate); you must report to the Derrimut Justice Service Centre by telephone before 4 pm within two clear working days of today so that is by 4.00pm next Tuesday, before that time you will have to contact them by phone; you must let a community corrections officer know within two clear working days of you changing your address or job; you must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate); you must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).

45Now, the conditions that will apply in addition to the mandatory ones are:  you must be under supervision of a Community Corrections Officer for two years; and you must undergo 150 hours unpaid community work within the next two years.

46Having heard the proposed Community Corrections Order that I intend to impose, do you consent to the terms and conditions of the order?

47OFFENDER:  (Through Interpreter) Yes, I do.

48

HER HONOUR:  Yes, thank you.  I must tell you that if you do not comply with all of the requirements of this Community Corrections Order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charge in which case you may well be sentenced to a period of imprisonment.  I would regard a breach of the

Community Corrections Order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

49Do you understand this?

50OFFENDER:  Yes, I do.

51HER HONOUR:  Do you still consent to the making of the order?

52OFFENDER:  Yes, I do.

53HER HONOUR:  Therefore, in relation to the charge, you are convicted and sentenced to a Community Corrections Order in the terms and conditions that I have just explained.

54I will ask your counsel to help you with the signing of the order.

55If not for your plea of guilty I would have sentenced you to two years' imprisonment with a non-parole period of 16 months.

56I make the forfeiture order sought by the Crown which is not opposed by you.

57Is there anything further counsel before - - -

58COUNSEL:  No, Your Honour.

59HER HONOUR:  Yes.  Thank you.  Just print out that order.  Then I'll get you to assist your client Mr Portelli.  And of course, Mr Zheng will also help with the interpretation or translation.  All right I've signed that order, I really do not want to see you back in court please Mr Chen.  You need to behave yourself, all right?  Thank you anything further?

60COUNSEL:  No, Your Honour.

61HER HONOUR:  All right.  And thank you very much Mr Interpreter. We'll now adjourn.

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