Director of Public Prosecutions v Jung
[2022] VCC 218
•28 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION CR-21-01560
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WONSEOB JUNG |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2022 | |
DATE OF SENTENCE: | 28 February 2022 | |
CASE MAY BE CITED AS: | DPP v Jung | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 218 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Deal with property being $100,000 or more reasonably suspected of being proceeds of crime – Bag containing $190,000 cash Encrypted phone – Failure to comply with an order under section 3LA of the Crimes Act 1914 (to provide passcode) – Offence taken into account in sentencing – Guilty plea – Good character – Very good prospects for rehabilitation
Legislation Cited: Criminal Code Act 1995 (Cth) s 400.9(2)(c); Crimes Act 1914 (Cth) ss 3LA, 16A, 16BA
Sentence: Imprisonment for a period of 1 year and 9 months with release on recognizance release order after serving nine months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Botros | Office of Public Prosecutions |
| For the Accused | Mr A. Malik | Adrian Dessi Legal |
HER HONOUR:
1 On 18 June 2020 police executed a search warrant at the home you,
Wonseob Jung, shared with your wife. They found in your car a brown paper bag stored in a backpack. It contained $190,000 in cash, all of it in $50 notes that were divided into 19 bundles. The bag also contained a digital note counter. If those bundles were of the same size that means there was $10,000 in each bundle of cash.
2 An additional $4,000 in cash was found in a separate pouch in a different part of your car. When police searched your house they found an encrypted mobile telephone on your bedside table.
3 When questioned by police, you advanced a number of implausible and contradictory explanations for how you came to be in possession of the money and the telephone.
4 You were cautioned and interviewed. You were asked about your income and you said you were working as an Uber driver. You said you had no other work at that time. You said that you were not doing much Uber driving because you had been blocked because Uber suspected your wife was the one doing the driving.
5 You said you filled your days helping your wife and doing cash jobs. You said you obtained temporary work such as pulling things out of containers or helping friends unloading or doing deliveries. You said you received $100 cash per job. You also said that you were involved in a vitamin marketing scheme. You said your wife worked as a hairdresser and that she was on a student visa and you were on a spouse visa.
6 You said you owed money to the Tax Office, had purchased your car, a Mercedes, for a relatively modest cash sum the previous year and had little in the way of assets. You told the police that you had previously owned or operated some Korean restaurants in conjunction with a Korean import company.
7 Apart from your wife’s visa status and yours, her work as a hairdresser, your previous involvement in owning and operating Korean restaurants and the debt owed to the Tax Office, it is unclear whether any of the rest of what you said was truthful.
8 Whether what you said was truthful or not, it is clear that you did not reveal legitimate sources of income which would explain how you could be in possession of $190,000 in cash.
9 When asked how you came to be in possession of that cash you gave, again, implausible and contradictory answers. You said you found the bag containing the money and the counting machine outside your house in the lane by the rubbish bins the night before.
10 You portrayed yourself as the powerless victim of gangsters who used to come to your restaurant. You asserted that they had, against your will, previously used your name, your car and your address to conduct illegal activities. Activities, you said, you had had no involvement in.
11 At times you appear to suggest that the gangsters had previously left money at your house. At other times you seemed to suggest that this was the first time they had done so. At times you appear to convey the impression that you had had no warning that this money would be delivered to your house. At other times you said you had received a phone call the day before telling you that there was a parcel outside that you had to collect. At times you seemed to suggest that you had discovered the money by chance when you went to put the rubbish out. At other times that you went to look in the bin because that was where parcels or a parcel had been left for you in the past.
12 At times you appear to suggest that a parcel containing money had previously been left in the bin at your house. At other times you said that you had received a parcel previously but you did not open it and did not know what was in it. You added that you suspected it was money because you had shaken it and thought you heard the rustle of paper.
13 You said that you had received and passed on parcels for the gangsters in the past. At one stage you said you had not received anything for two years. That you had asked them to stop and they had done so.
14 When asked about the paper bag containing the money you initially said you had not touched it or the counting machine or the money. Later you admitted you had touched the money and the counting machine.
15 You said you had put the paper bag with the money and the counting machine in your car on the back seat. When investigators told you that they had found the bag in a black backpack you said you did not have a black backpack. Later you said you put the bag in the backpack because the money was poking out of the bag.
16 You could not explain where the $4,000 had come from or why it was in a separate place in your car. You said that you did not have any way of contacting the gangsters that they were the ones who contacted you. Later you said when you needed to contact them you did so through ‘the brothers’, whoever they may have been.
17 The telephone that was found beside your bed I have called an encrypted phone. By that I mean it was a mobile telephone with encryption software. There was a cypher message on the screen indicating it has been used recently either to receive or transmit a message. It was on the bedside table on your side of the bed. You denied the phone was yours and said that you had found it with the money the night before.
18 You acknowledged that you had touched it and it was you who placed it on the bedside table. You said you had tried to open it but could not. You said you tried to charge it at a bus stop. You were asked to provide the passcode for the phone and refused. You said you did not know what the passcode was.
19 Police were unable to access the phone because they did not have the passcode. They were, however, able to retrieve geolocation data from it. That was compared with another mobile phone which you had in your possession and which you acknowledged was yours.
20 There was also surveillance evidence that revealed that you had done two road return trips to Sydney. The first up to Sydney on 30 May and back to Melbourne on the 31st. The second two weeks later: up to Sydney on 13 June and back on the 15th of June. The geolocation data from the two telephones matched the surveillance evidence showing you had travelled to Sydney and back on those two occasions. The inescapable inference is that those two phones were in your possession when you did those two trips to Sydney.
21 Despite the various apparently innocent explanations you sought to advance for your possession of the money and the telephone, you have now pleaded guilty before me to one charge of dealing with money in excess of $100,000 reasonably suspected of being proceeds of crime.
22 You have also admitted an offence of failing to comply with an order or direction to provide the investigating police with the password to the encrypted phone. By s16BA of the Commonwealth Crimes Act that offence is to be taken into account when sentencing you for the money laundering offence.
23 The charge of dealing with money in excess of $100,000 reasonably suspected of being proceeds of crime is an offence under the money laundering provisions of the Commonwealth Criminal Code. By s400.9(2)(c) of the Code, money in excess of $100,000 is reasonably suspected of being proceeds of crime if its value is, in the opinion of the trier of fact, grossly out of proportion to the defendant's income and expenditure.
24 By your guilty plea you acknowledge that the explanations you gave for being in possession of the money were false.
25 After discovering the phone, police outlined to you their reasons for believing that you had used it and had the passcode to it. They gave you a direction, as they are entitled to do under s3LA, to give them the password. You refused, maintaining your denial of any connection with that phone other than a fortuitous finding of it. After Federal Court ruling in another case confirming the validity of a direction in respect of an encrypted phone you admitted the offence of failing to comply with an order to provide the password.
26 By admitting that offence you acknowledge that you did know the password of the telephone. That means that what you told the police you are also acknowledging was false. It also follows from the geolocation data and the surveillance evidence to which I have referred, that you acknowledge the evidence reveals that phone was in your possession when you made those two Sydney trips.
27 The sentence to be imposed on the principal charge, the money laundering charge, is to be increased by reason of your admission of this further offence and the requirement to take it into account in sentencing.
28 The major charge on which you come to be sentenced is one which does not require a finding that you believed or were reckless or negligent as to whether the money was proceeds of crime. The Commonwealth Code creates further more serious offences if it is also proved that you believed or were reckless or negligent as to whether the money was proceeds of crime.
29 I proceed to sentence on the understanding that this charge is made out on a finding first that objectively there is a reasonable suspicion that the money is proceeds of crime, and second that you are unable to prove on the balance of probabilities that you had no reasonable grounds to suspect the money was derived or realised from some form of unlawful activity.
30 Money laundering offences are serious. There are many cases that confirm that a money launderer is to be treated as an important cog in the wheel of organised crime. The ability to move proceeds of crime is an essential part of many kinds of criminal activity. In that sense, money launderers facilitate criminal activity. Laundering permits the hiding of the financing of, and the profits coming from, a range of illegal activities, including importing, exporting or distributing drugs or other prohibited or regulated goods; the financing of terrorism offences, and offences related to illegal gaming and tax evasion. Money laundering is a dirty business.
31 It follows therefore that in sentencing, imposing a sentence that deters others from engaging in activity like this is particularly important. Those who lend themselves to money laundering activities must know that it is illegal and they will pay a high price if and when caught so that they do not facilitate serious criminal activities of other people.
32 The authorities also make it clear that there are a number of factors to take into account in assessing the seriousness of a particular offence. They include:
(i) the amount of money involved – here over $190,000. That is almost double the threshold for this offence.
(ii) The role played by the launderer, whether they are the instigator or a cog in the wheel. Here you are clearly a cog in the wheel.
(iii) The extent of their involvement, the steps they actually took and whether there is one or more than one transaction involved. Here I am dealing with a single transaction and all I know of your role is that you received money and were entrusted to keep it.
(iv) Whether the person knows what crimes the moneys are proceeds of and, if so, what their role is in facilitating a particular type of criminal offending. Having said that I am mindful of what I said earlier, that is that I cannot make a finding that you believed or were reckless or negligent as to whether the money was the proceeds of crime or of any particular crime. There is simply no evidence before me as to what criminal activity this money was proceeds of, let alone you having any knowledge of the criminal activity it was facilitating.
33 Although your involvement here is a single act and repeated involvement is seen to be more serious one should not undervalue the seriousness of a single act of being in possession of this amount of money.
34 Although this offence relates to sums of money of between $100,000 and $1 million and the authorities say the amount of money involved is a factor to take into account, it is important to avoid any crude percentage measure and to say, for example, that this is only of 20 per cent gravity in the range of such offending. What is clear is that with this amount of money, over $190,000, serious criminal activity is required to generate the amount of cash that you were had in your possession.
35 You told the police that you looked in the bag and touched the money. Your fingerprints also prove that you did that. The number of bundles, 19, and the size of each bundle, $10,000 each if they were all the same size, makes it clear that you are dealing with a large amount of money even if you did not actually count it.
36 I am satisfied that the amount of money and the possession of the encrypted phone demonstrate that you were placed at a level of trust and involvement higher than the lowest level of operative.
37 I have already noted that by your guilty plea you have acknowledged the accounts you gave the police were false.
38 Since your guilty plea you have not placed any explanation before the court or the authorities as to your role. I have been told nothing about the extent of your involvement, what you were to do with the money or what was going to happen to it, how you came to be involved or who your associates were. Whilst your declining to place any explanation before the court is not a matter to be treated in aggravation of the offending, the failure to advance a truthful explanation means that there is nothing mitigatory in the circumstances of your possession of the money or the phone or the refusal to provide its password.
39 These then are the matters I take into account as assessing the relative seriousness of this offending as being in the mid-range. That is the objective seriousness.
40 What then are the matters relied on your behalf to temper the weight otherwise to be given to general deterrence or to counterbalance the weight to be given to the objective seriousness of the offending?
41 You pleaded guilty and I take that guilty plea into account as one being made at the earliest possible opportunity. I treat the admission of the other offence as also being made in the circumstances at the first reasonable opportunity. Guilty pleas and the early stage at which they are entered are clearly significant matters counting in your favour. They operate to significantly reduce the sentence otherwise appropriate, and in these COVID times guilty pleas that avoid the cost and time of a trial carry additional weight.
42 Turning then to your personal circumstances. You were 39 at the time and you are now 42. That is, Mr Jung, you were a mature adult, well capable of knowing right from wrong and making choices as to whether to involve yourself in criminal activity or not. You describe your childhood, upbringing and education as stable and positive. You describe your parents as loving and supportive. You were, by what I was told, an intelligent and capable student. You flourished at school and university. You excelled at sport as well as academically. In your school and university years you spent much of your spare time engaged in community activities to help others less advantaged.
43 There is no suggestion that you suffer or have suffered from any mental illness or psychological disorder, or that you have any physical illness or disability, have been exposed to violence or trauma, have suffered direct involvement in or exposure to the substance abuse of others, or have suffered any of the other disadvantages that so often affect the lives of people who come before this court.
44 You were born, educated and married in South Korea. Your wife, it would appear, is an equally well educated and advantaged person. You qualified as a sport scientist. You obtained meaningful employment managing a fitness centre. You had a successful career change and worked as a data analyst. Your wife worked as a Chinese Korean translator and embarked upon postgraduate studies.
45 In 2009 you and your wife came to Australia together on a working holiday visa. Through that you obtained sponsored employment for a Korean company importing Australian beef into Korea. That enabled you to continue working in Australia. You continued in that role until 2016 when you opened a Korean restaurant in Melbourne Central. That was apparently in partnership with your original employers in the Korean meat business.
46 In 2019, through no fault of your own and before COVID, that restaurant closed because of renovations to Melbourne Central and the resultant loss of your leasehold. Your visa status changed again. Your wife by then was studying hairdressing and you remained in Australia, she on a student visa, you on a spouse visa.
47 It would appear that after that you obtained some work as an Uber and delivery driver but how much of that either before or after COVID you were able to do is unclear.
48 These charges have precipitated a decision to return to South Korea. It is not clear whether that is a blighting of a dream that you had to make your future here or whether you were planning to return in any event. What it does mean is that any hope that you had of remaining here or returning here has most likely been lost.
49 I am told that your wife will return to South Korea with you. If it had been her dream or hope to settle here, obtain residency and be able to stay here or move between the two countries that has been affected by what you have done. Her plans and wishes were not mentioned. The impact of your decision to engage in this activity may have had an impact on your wife and her plans for her future.
50 I say this not because it adds to your moral culpability but because it is a very graphic illustration of the consequences on family of decisions, conscious decisions to involve oneself in criminal activity. Your wife was not present at your plea hearing or on sentencing today. I do not know what that means in terms of her views or how she feels about this and your conduct and the impact of it on her life.
51 You got to the age of 39 without ever having been in trouble with the law either in South Korea or here. You are entitled to have that good character, both in South Korea and here, taken into account in your favour.
52 A testimonial was provided to me by your friend, Ms Jenny Kang and she is present here in court today supporting you. She speaks in glowing terms of the sort of person you are, your kindness, your integrity and your good spirit. What she says sits at odds with the type of behaviour that you have pleaded guilty to. It is hard to understand how you came to this.
53 Those matters all point to you having very good prospects for rehabilitation. You do not sit in court looking defiant or as if you do not care about this. I consider that the stain of a criminal conviction, the loss of reputation and the shame of facing court in this way will act as a powerful deterrent to you from offending like this or in any other way again.
54 These matters therefore are matters to take into account, mitigatory matters to offset against the other matters I identified earlier.
55 I was provided with the Commonwealth DPP's usual helpful table of comparative sentences and Mr Malik's considered references to other relevant authorities as well as his assessment or analysis of those comparative sentences.
56 Having regard to the maximum penalty for this offence, three years' imprisonment, the actual sentences imposed in the table of comparative cases and the sentencing principles involved in those cases and the authorities on money laundering more generally to which I was referred, I am satisfied that the common ground of counsel, namely that a term of imprisonment with release on recognisance release order is the only appropriate sentence. Mr Botros and Mr Malik diverged on whether any time in custody was actually required to be served.
57 Having reviewed the principles outlined in the cases generally and in the comparatives I have come to a comfortable degree of satisfaction that some term of imprisonment must be served and in coming to that comfortable degree of satisfaction I am guided by the quantum, the absence of mitigatory explanation for involvement and the additional offence to be taken into account as well.
58 I have considered the impact of COVID on the recognisance release order and on the overall sentence. In addition to what I have already said about the impact of a guilty plea on the length of sentence, the sentence must be reduced by reason of the impact of COVID on people serving a sentence. Therefore in looking at the useful guidance or yardstick provided by the comparative sentences I take into account the fact that they were all pre-COVID sentences. However, I remain firmly of the view that a term of imprisonment requiring some time to be actually served must be imposed having regard to those matters that I have identified.
59 Before I formally pronounce sentence I will indicate that I make the forfeiture order sought in the terms that it is made.
60 Could you now please stand, Mr Jung?
61 Wonseob Jung, on the charge of possession proceeds of crime to which you have pleaded guilty you are convicted and you are sentenced, taking into account the other offence that I am to take into account, as follows.
62 You are to be sentenced to a term of imprisonment of 21 months and you are to be released after serving nine months upon you giving surety or security by recognisance of $5,000 to be of good behaviour for 21 months.
63 What that means, Mr Jung, is that I have sentenced you to a term of imprisonment of 21 months and directed that you be released on a recognisance release order after serving nine months. You are then to be released upon or to be of good behaviour for 21 months and I have to fix a sum, the value of your promise to be of good behaviour and that sum is $5,000.
64 If you commit another offence during that 21 months that you are released on recognisance or you are otherwise not of good behaviour you can be brought back before me to be dealt with for failing to be of good behaviour and for the effect that has on the sentence that I originally imposed. If that happens you may be required to forfeit the $5,000 that I am seeking as the sum of your promise to be of good behaviour but I want to make it clear you do not have to pay the $5,000. It is not a fine. It is the value of your promise to behave.
65 HER HONOUR: Mr Botros, Mr Malik, is that sufficient to explain the order and the recognizance before I ask Mr Jung to - - -
66 MR MALIK: Yes it is, Your Honour and I'll go and see Mr Jung at the conclusion of Your Honour's sentence.
67 HER HONOUR: Well I have to first give him the recognisance.
68 MR MALIK: Yes.
69 HER HONOUR: He has to confirm that I have explained the purpose and effect of the order and the consequences of failure to comply with it, to agree to be bound by it and to be given a copy.
70 MR MALIK: Yes, Your Honour.
71 HER HONOUR: So from your point of view have I done that sufficiently?
72 MR MALIK: Yes, Your Honour.
73 HER HONOUR: Mr Botros?
74 MR BOTROS: Yes, Your Honour.
75 HER HONOUR: Thank you. All right and is that recognisance release order now being prepared by your ever efficient instructor?
76 MR BOTROS: Yes Your Honour, it is.
77 HER HONOUR: Mr Jung, we just have to prepare, have the order prepared and I need to give it to you and make sure you understand it and have you confirm that to me. I will ask you in a minute to take a seat while I sort that out but just before I do. Are you prepared to acknowledge that I have explained to you the purpose and the effect of this order of imprisonment for 21 months, released after nine months on a recognisance release order? That is on a promise to be of good behaviour? Do you also understand what the consequences are if you are not of good behaviour? Can I indicate that Mr Jung has nodded in affirmation in response to both of those questions. Mr Jung, do you agree to be bound by this order? Right. Mr Jung has nodded again. I'm now just going to sign it. I'd ask if that can be given to Mr Malik. Mr Malik, can you please take that down?
78 MR MALIK: Yes, Your Honour.
79 HER HONOUR: Have you got a pen?
80 MR MALIK: I don't think I do, Your Honour.
81 HER HONOUR: You can take a seat, Mr Jung, just while we finish the last part to the formalities. Now we have to make copies of that, Mr Jung. A copy of that will be provided to you and one to the prosecution and one kept by the court. Are you going to go downstairs now, Mr Malik?
82 MR MALIK: Yes I will, Your Honour.
83 HER HONOUR: Would you then prefer if we gave you the copy to be taken down?
84 MR MALIK: I'm happy to do that, Your Honour, yes.
85 HER HONOUR: All right. Thank you.
86 MR MALIK: I take it they're still letting us downstairs?
87 HER HONOUR: Did you have a RAT before you came in this morning?
88 MR MALIK: I did, yes.
89 HER HONOUR: Have you got the notification of that?
90 MR MALIK: I do.
91 HER HONOUR: Yes.
92 MR MALIK: Thank you.
93 HER HONOUR: There's a requirement to have a RAT before going to the cells on the day of going there.
94 MR MALIK: Thank you, Your Honour.
95 HER HONOUR: Once you've done that you're in.
96 MR BOTROS: Just while we're waiting, Your Honour, it's not really a point to raise but I raise it anyway. In terms of a 6AAA statement - - -
97 HER HONOUR: Sorry, I didn't make it, did I?
98 MR BOTROS: No but it's optional for Commonwealth offences but if
Your Honour was to take up the option - - -
99 HER HONOUR: Thanks, Mr Botros. I'd intended to and I forgot. I declare pursuant to s6AAA of the Sentencing Act that but for the plea of guilty I would have imposed a term of imprisonment of two years and nine months and I would have fixed a period of 18 months as the time to be served before being released on an RRO.
100 MR BOTROS: As the court pleases.
101 MR MALIK: As Your Honour please.
102 HER HONOUR: Two years nine months and 18 months. Now have we got a copy that we can give to Mr Malik? We'll just have that formally done and acknowledged because that's the last part, the acknowledgement on the RRO form and I've indicated I'll make the disposal order. No further orders?
103 MR BOTROS: No, Your Honour.
104 HER HONOUR: Everything now in order, Mr Botros?
105 MR BOTROS: I believe so. Thank you, Your Honour.
106 HER HONOUR: Everything now in order, Mr Malik?
107 MR MALIK: Yes. Thank you very much, Your Honour.
108 HER HONOUR: Right. Thank you. Could you remove Mr Jung please? Thank you again to you both and to those instructing you.
109 MR BOTROS: Thank you, Your Honour.
110 HER HONOUR: We'll adjourn.
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