Director of Public Prosecutions v Guan

[2016] VCC 471

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00076

THE QUEEN

v

WEN JIE GUAN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2016
DATE OF SENTENCE:	20 April 2016
CASE MAY BE CITED AS:	DPP v Guan
MEDIUM NEUTRAL CITATION:	[2016] VCC 471

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr Y. Hardjadibrata	Office of Public Prosecutions
For the Accused	Mr A. Sim	Michael J Gleeson & Associates Pty

HIS HONOUR:

1Wen Jie Guan, on 21 October 2015 you pleaded guilty to the following charges on the indictment. 

2Charge 1, dealing in the proceeds of crime, worth $100,000 or more.  This offence has a maximum penalty of 20 years' imprisonment. 

3Charge 2, dealing in the proceeds of crime, worth $100,000 or more.  This offence has a maximum penalty of 20 years' imprisonment.

4Each of these charges is a rolled up charge.  The following schedules, they are Schedules A and B, set out the dates and the amounts of the proceeds of crime that you have pleaded guilty to moving.

5Schedule A, which relates to Charge 1 sets out the dates and amounts that you were dealing in on those occasions: 

Date of dealing (on or about)	Amount ($)
1 April 2014	300,000
4 April 2014	300,000
14 April 2014	276,000
19 April 2014	428,600
1 May 2014	333,300

6Schedule B, which relates to Charge 2 sets out the dates and amounts that you were dealing in on those occasions:

Date of dealing (on or about)	Amount ($)
9 May 2014	500,000
16 May 2014	210,000
23 May 2014	500,000
27 May 2014	313,000
5 July 2014	310,000

7A full and detailed Prosecution Opening was tendered at the plea hearing on 15 April 2016.  This is Exhibit A.  I will not repeat it in full but it is attached as an exhibit to these reasons for sentence.

8The delay between the date of your plea of guilty and your plea hearing was caused by the uncertainty about the law concerning the utilitarian value of your plea of guilty.  An appeal decision was to be decided on that point.  A further delay was a result of forensic psychological reports that were to be obtained.  You have been on bail between the two dates, a period of almost six months.

CIRCUMSTANCES OF OFFENCES

9A summary of your offending is as follows.  In April 2014 an investigation commenced into the dealing in money suspected to be the proceeds of crime by members of a Hong Kong based criminal enterprise which operated in Melbourne.  The investigation revealed that Australian currency was being taken out of the country within checked luggage bag on commercial airline flights from Melbourne to Hong Kong.  The majority of the money observed or seized was packaged in a distinct manner.  The money was grouped in bundles totalling AUD $100,000.  Each AUD$100,000 bundle was packaged in transparent “Foodsaver” brand vacuum sealed bags, labelled “10 TEN” representing ten bundles of AUD $10,000.  Smaller packages were also observed with markings indicating the amount of money on each bag.

10It is alleged that the money conveyed out of the country in this manner was the proceeds of drug trafficking by a Hong Kong based criminal enterprise that operated in Melbourne.  Manus Fan, a co-accused, was part of the criminal enterprise.  Fan trafficked in commercial quantities of drugs for the enterprise by way of warehousing the drugs in a Carlton apartment and laundered the proceeds of the drug trafficking enterprise by using couriers to move the money out of the country.

11It is alleged that you, Wen Jie Guan, acted as an intermediary between Fan (or others on the last occasion in July 2014) and the couriers of the money by collecting the money and then providing it to the couriers, who then took the money offshore, or attempted to take the money offshore.

12On ten separate occasions between 1 April 2014 and 5 July 2014, you dealt with money totalling AUD $3,470,900 by receiving, possessing or disposing of the money.  Charge 1 is a rolled-up charge totalling $1,637,900 as set out in Schedule A referred to earlier.  Charge 2, is also a rolled-up charge totalling $1,833,000 as set out in Schedule B, referred to earlier.  

13It is alleged, and I accept, that the money is the proceeds of drug trafficking. With the exception of money seized on 27 May 2014 and 5 July 2014, the money was subsequently taken to Hong Kong, concealed in checked-in luggage by co-offenders Yuan Du, Hao Bei and Jin Yang.

14On 27 May 2014, cash totalling $313,000 was seized by the authorities from your co-offender, Chung Pan Cheung at the airport before the money left the country. On 5 July 2014 cash totalling $310,000 was seized by the authorities at the airport from Yuan Du before the money left the country.

15The role you played in this criminal activity is critical to the drug trafficking business.  You were a person the criminal enterprise trusted with vast sums of money.  Your role was subsidiary to Manus Fan but more senior than the couriers referred to above.

PERSONAL CIRCUMSTANCES

16You were born in China in 1986.  You are 29 years old.  At the time of your offending you were 27 years old.  When you were 11 years old you moved to Australia with your parents.  Your parents moved back to China.  You remained in Australia and lived with your paternal grandparents.  When you were 18 years old your parents returned to Australia and you then lived with them.

17You formed a strong relationship with your paternal grandfather.  He died in 2008 when you were 22 years old.  You have a difficult relationship with your own father due to the cultural gap between what is expected in China and what is expected of a young man in Australia and the generation gap between the two of you. 

18You were educated to Year 11 and did not complete your VCE.  In the latter years of your high school days you commenced mixing with “the wrong people”, as you have described them to Mr Leardi, the psychologist.

19You were convicted at the County Court of Melbourne for the offence of affray on 18 July 2006.  You were released on a two year good behaviour bond for that charge.

20After leaving school you commenced working as a waiter.  You subsequently worked in factory type and storeman employment for approximately four years.  You then worked in a service station for a much longer period.  In latter times you commenced a TAFE course for a business diploma but put that study on hold due to your mother's mental health issues. 

21In January 2016 you married Lai Ming Lam.  Your wife is in Australia on a spousal visa.  Your Relationship Certificate is dated April 2015.  Your marriage occurred between your plea to these charges in October last year and the plea hearing in April this year.  You lived with your wife and parents until Friday last week when you were remanded in custody.  Your parents are divorced but live under the same roof.  Your father has a spinal condition.  Your mother has a mental health condition of depression.  It was put on your behalf that you acted as their carer.

22You have been examined by Mr Robert Leardi, a clinical psychologist.  He prepared a report dated 25 March 2016.  It was Exhibit 2 on the plea.  Mr Leardi notes that you had previously suffered depression in 2006 in the context of a relationship breakdown.  Mr Leardi was unable to provide an opinion of your mental health status as at the time of your offending due to the lack of what he described as “collateral information”.  Mr Leardi does, however, diagnose you as currently suffering from a major depressive disorder with a generalised anxiety disorder.  In his opinion your symptoms are exacerbated by your current legal predicament and the uncertainty surrounding it. That is understandable. 

23You have been on bail for these offences from the time of your arrest until your plea hearing on Friday, 15 April 2016.  On my calculation you have served six days pre-sentence detention.

SENTENCING CONSIDERATIONS

24The most significant consideration when sentencing a Federal offender, is s.17A of the Crimes Act (Cth), which provides that:

"A court shall not pass a sentence of imprisonment on any person unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case".

25A term of imprisonment is the only appropriate sentence for each of your offences. Section 16A of the Crimes Act sets out a non-exhaustive list of factors a court is to take into consideration when sentencing a Federal offender such as yourself. 

26There are many factors I must take into account when sentencing you which are set out in s.16A of the Crimes Act.  These factors include: 

(a) the nature and circumstances of your offences;

(b) if the offence forms part of a course of conduct consisting of a series of criminal acts, in this case the rolled up charges;

(c) any injury, loss or damage resulting from the offence, in this case the drug offending;

(d) the degree to which a person has shown contrition for the offences.  In your case the remorse set out in Mr Leardi's report;

(e) that you have pleaded guilty to the offences; 

(f) the deterrent effect that any sentence or order under consideration may have on the person, that is specific deterrence;

(g) the deterrent effect that any sentence or order under consideration may have on other persons, that is general deterrence;

(h) the need to ensure that you are adequately punished for the offending. 

(i) your character, antecedents, age, means, physical and mental condition of you, the offender.

(j) the prospects of your rehabilitation; and

(k) the probable effect that any sentence or order under consideration would have on your family or dependents.

27A further consideration in sentencing you is the prospect of deportation after you have served your sentence of imprisonment.  I also take into account current sentencing practices.  The cases on sentencing for money laundering are distinguishable from one another as they are from your offending and at best provide a guide to current sentencing practices. 

28The offences of dealing in the proceeds of crime worth $100,000 or more is serious offending.  The maximum penalty of 20 years' imprisonment set down by Parliament reflects the seriousness of the offence. In your case there are two separate charges encompassing a total of ten rolled up occasions of offending over a period between 1 April 2014 to 5 July 2015, the day of your arrest.  The total sum of money dealt with by you in the money laundering operation was $3,470,900.  I accept that these moneys were the proceeds of drug trafficking.  Indeed, your counsel conceded the money was the proceeds of drug trafficking.  I am not satisfied beyond reasonable doubt that at the time of your offending that you knew or believed that the money you were laundering was from drug trafficking.  Nevertheless the amounts of the money over a confined period of three months is extensive and indicative of the seriousness of your offending.  I accept that you are a subsidiary to Manus Fan on the “pecking order”, for this criminal enterprise because you contact him when your courier, co-accused Cheung, is arrested at Tullamarine Airport on 27 May 2014.  You are the person who counts, packages and delivers the money to the co-accused couriers, including Jin Yang, Hao Bei, Yuan Du and Chung Cheung.

29The packages of money were in bricks of $100,000 with the words, "TEN", and the numbers, "10", written on them.  Further, you were recorded on a listening device with Fan at Unit 201, 466 Swanston Street, Carlton, referred to as the money counting house in Fan's trial, discussing three things.  You were discussing:

i)     finalising the figures, records and sending them;

ii)    the erasing of the records after you had sent them; and

iii)   the counting sheets.

30On 27 May 2014 at 10:08pm. This is the day of Cheung’s arrest. You were a trusted person by your criminal associates to handle, control and deliver large sums of money.  Your offending is objectively serious and extensive.  A term of imprisonment is the only appropriate sentence for your offending.  You are currently on a residential visa in Australia.  You are a Chinese citizen.  Both of your parents are Australian citizens since 2005 and 2006 respectively.  They originally came from China.  You married Lai Ming Lam, as I say, on 20 January 2016.  Your wife is in Australia on a partner visa at the moment.  Her visa status is based on your visa status.  The provisions of the Migration Act, and in particular, s.501(3A)(a)(i) and sub-s.(7)(c) are engaged if you are sentenced to a term of imprisonment exceeding 12 months, which would render your visa liable to mandatory cancelation. However, under s.501CA the Minister retains a discretion to revoke any decision made under s.501(3A) to cancel your visa. 

31The practical effect of the key provisions of the Migration Act, in its current form, is that the Minister must cancel the visa of a person sentenced to a term of imprisonment of 12 months or more.  The decision to cancel the visa stands unless the Minister later is satisfied that there is a reason why the original decision to cancel the visa should be revoked.  The task or burden of persuading the Minister to revoke the decision to cancel your visa will be upon you.

32I take into account when sentencing you to imprisonment that the prospect of deportation will make the burden of imprisonment more onerous on you.  I also take into account that the prospect of deportation might be an additional punishing consequence for you as your parents are now Australian citizens and your wife lives here in Australia.  I note that you married your wife in the period between the date of your arraignment, 21 October 2015, and the day of your plea, 15 April 2016.

33However, when balancing the seriousness of your offending with other sentencing considerations the prospect of deportation for you cannot result in an inadequate sentence for your offending here.  It cannot be assumed the Minister will not revoke the original decision to cancel your visa.

34It was submitted on your behalf that imprisonment which resulted in your deportation would result in hardship being caused to your mother in particular, your father and your wife.  The submissions relied on:

a)    a report of Joanna Zhu, clinical psychologist, dated 18 March 2016;

b)    a report of Dr Paul Ng, consultant psychiatrist, dated 13 April 2016;

c)    a report from the psychiatric registrar of Eastern Health dated 11 November 2015; and

d)     a report by Dr Peter Cheung, psychiatrist dated 29 July 2004.

35All of these reports were part of Exhibit 4 and related to the psychiatric state of your mother, Ms Xing Fen Huang.

36Upon your mother becoming aware of your offending and being on trial with the possibility of your deportation to China in October 2015, she overdosed on Paracetamol with the intent to suicide.  She was a voluntary patient in the psychiatric unit at Box Hill Hospital from 25 October 2015 for a period of three weeks.  Your mother is under the care of the psychiatrist, Dr Ng, and psychologist, Ms Zhu. Your mother also has the support of your wife for day to day domestic needs.  It was submitted that if you were deported she would relapse into a suicidal state.

37Whilst it was submitted your parents were divorced, they still live together with your wife at the one premise.  Your father suffers from neck pain with left sided radiculopathy.  His condition is set out in Exhibit 6.

38I have taken into account the health conditions of both your parents and I am not satisfied that they satisfy the exceptional circumstances test required to attract the exercise of mercy in sentencing in your case.  Your father is adequately treated for his neck complaint.  Your mother is under the care of a psychiatrist and a psychologist for the treatment of her mental health condition.  Both of your parents are assisted and cared for by your wife.  The triggering event of the deportation for your mother's mental health has not been finalised to the extent that you will certainly be deported to China at the expiration of your sentence.  That event, the deportation, is at this stage a speculation upon which the Minister may decide your case in a different manner.  It is also uncertain about the course your mother's health will now take as she is in the care of mental health professionals and to anticipate the worst case scenario is again speculation.

39You have pleaded guilty to a two charge indictment after Basha inquiry prior to the empanelment of a jury. Your co-accused, Du, gave evidence inculpating you in the money laundering offences.  A plea of guilty was indicated on your behalf.  Mr Sim frankly submitted that the plea to the two charges for the rolled up charges was entered for the purpose of being in the position to submit that imprisonment on one charge and a CCO on the other charge was an appropriate sentencing course.  Your plea is not at the earliest stage but it was entered into the record of the Court before a jury was empanelled.  Your plea facilitates the course of justice and it has utilitarian benefit for the cost of a trial and provides certainty of outcome for your admitted criminal conduct.

40Your plea of guilty is also an indicator of your remorse.  You have told and expressed your remorse for your offending to Mr Robert Leardi, psychologist, in his report dated 25 March 2016.  That was Exhibit 2 in the plea.  I note that your distress and remorse is centred around the effect your incarceration and possible deportation will have on your immediate family.  I accept that your remorse is genuine.

41It was submitted on your behalf that your major depressive disorder and generalised anxiety disorder, as diagnosed by Mr Robert Leardi, are factors tending to ameliorate your sentence. In particular, it was submitted that consideration of specific deterrence should be moderated because of your mental state at the time of your sentence.  It is apparent from Mr Leardi's report that he cannot assess your mental state at the time of the offending.  Further, I accept that given your mental health diagnosis a sentence of imprisonment will weigh more heavily upon you than it would on a person of normal health.  I have considered and taken into account both of these factors in fixing your sentence.

42I have taken into account the sentence of your co-accused, Cheung, Chan, Bei, Du, Chen and Fan and apply the principles of parity in relation to sentencing you.  Each of your co-accused have different personal circumstances and levels of involvement in the criminal offending related to the money laundering.  Chen and Fan were found guilty after conducting a trial.  The other co-accused pleaded guilty and some of them undertook to give evidence against you, the co-accused.  You role or position in the chain of command was below Fan but above the other co-accused couriers.

43I assess your prospects of rehabilitation as fair to good.  Your one prior court appearance was for a charge of affray on 18 July 2006.  You were placed on a two year good behaviour bond.  You have no outstanding matters. You have good family support and an ability to work upon release from prison. 

44I have taken into account the totality principle in sentencing you so as to ensure your sentence of imprisonment is not a crushing one.  The two charges on the indictment will reflect ten rolled up occasions of offending over a period of three months.  I note that there was a hiatus between 27 May 2014 and 5 July 2014.  That was the period when you were lying low after Cheung was arrested on 27 May 2014 and returning to your offending after Mr Fan was arrested.  The appropriate cumulation between the two charges will reflect the totality of your offending.

45General deterrence is of paramount importance when sentencing persons convicted of money laundering charges.  The common law principles of specific deterrence, denunciation and just punishment all call for a significant term of imprisonment for your offending.  Would you stand please?

46On Charge 1, you are convicted and sentenced to four years imprisonment commencing today, 20 April 2016.

47On Charge 2, you are convicted and sentenced to four years imprisonment commencing 20 April 2017. 

48That is a total effective sentence of five years' imprisonment . I fix a three year non-parole period. 

49I declare that you have served six days pre-sentence detention which will be deducted administratively from your sentence. 

50Mr Prosecutor, do I have to declare what is known in the state as a s.6AAA?

51MR HARDJADIBRATA:  Your Honour may but you're not required to but you may - - -

52HIS HONOUR:  Yes.

53MR HARDJADIBRATA:  It might be useful for - - -

54HIS HONOUR:  I will.  In that case - thank you. 

55For the record, but for your plea of guilty, Mr Guan, I would have sentenced you to seven years with a minimum of five years' imprisonment.  Is there anything else?

56MR HARDJADIBRATA:  No, Your Honour.

57HIS HONOUR:  Mr Sims?

58MR SIMM:  No, Your Honour.

59HIS HONOUR:  I think under s.17A I have to make some pronouncement about why imprisonment is the only - - -

60MR SIMM:  I think Your Honour's

61MR HARDJADIBRATA:  Your Honour's sufficiently - - -

62HIS HONOUR:  I've done all that?

63MR HARDJADIBRATA:  - - - done that, Your Honour.

64HIS HONOUR:  Yes thanks.  I just wanted to make sure. Thank you.

65MR HARDJADIBRATA:  Your Honour pleases.

66MR SIMM:  As the court pleases.

67HIS HONOUR:  You can remove the prisoner, thanks.  Just before you go,
Mr Guan, just like last time when you were put into custody originally I am just going to make the notation about your health condition.  That just goes on as a subsidiary part of the order.

68MR SIMM:  Thank you, Your Honour.

69MR HARDJADIBRATA:  As Your Honour pleases.

70HIS HONOUR:  Thank you.  Thanks very much, Madam Interpreter.

71INTERPETER:  Pleasure, Your Honour.

72HIS HONOUR:  Mr Prosecutor, Mr Sims, I'd just like to thank you for your assistance in this case.  It is always very difficult.

73MR HARDJADIBRATA:  Thank you, Your Honour.

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