Director of Public Prosecutions v Kit

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00346

DIRECTOR OF PUBLIC PROSECUTIONS

SARITH KIT

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2021 and 22 March 2021
DATE OF SENTENCE:	12 April 2021
CASE MAY BE CITED AS:	DPP v Kit
MEDIUM NEUTRAL CITATION:	[2021] VCC 421

REASONS FOR SENTENCE
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Subject:
Catchwords:

Legislation Cited: Migration Act 1958 (Cth) ss 245AB(1) and 245AC(1); Criminal Code Act 1995 (Cth) s 400.4(2); Crimes Act 1914 (Cth) ss 4B(2), 16A, 20(1)(b)
Cases Cited:Obrich (1999) 199 CLR 270; R v Simonetta [2017] VCC 2015; DPP v Trailovic [2019] VCC 6741; Majeed v The Queen [2013] VSCA 40
Sentence:Fine: $40,000; 14 months imprisonment, Recognisance Release Order: released after 5 months
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Robinson QC with Mr P. Botros	Commonwealth Director of Public Prosecutions
For the Accused	Mr S. Moglia	Galbally & O’Bryan Lawyers

HIS HONOUR:

Sarith Kit, you have pleaded guilty to the following offences which carry the following maximum penalties:

Three charges of recklessly allowing an unlawful non-citizen to work. Each carry a maximum penalty of two years' imprisonment and/or, pursuant to s.4B(2) of the Crimes Act 1914, a fine of 120 penalty units. Each penalty unit at the time of your offending was valued at $180.
Charge 4, recklessly allowing a lawful non-citizen to work in breach of a work related condition which carries a maximum penalty of two years' imprisonment and/or a fine of 120 penalty units.
Charge 5, dealing with proceeds of crime worth $100,000 or more; which carries a maximum of ten years' imprisonment and/or a fine of 600 penalty units.
Charges 1, 2, 3 and 4 are rolled up charges. I will say more about that later in these sentencing remarks.
You do not have any prior criminal convictions. I will also say more about that in these sentencing remarks.
Your plea hearing was heard on 1 March 2021 and 22 March 2021.
Circumstances of Offending
The Crown tendered a Summary of Prosecution Opening dated 12 February 2021 as Exhibit A. A summary of your offending is as follows:
At the time of the offending, you were employed by M&G Vizzarri Pty Ltd (Vizzarri Pty Ltd) at the Vizzarri Farm located at 460 Koo Wee Rup Road, Koo Wee Rup (Vizzarri Farm). You had been employed by Vizzarri Pty Ltd for approximately 21 years and, at the time of the offending, you were a manager in the packing sheds at the Vizzarri Farm. You exercised control and oversight over the day to day operation of the packing sheds and the shed workers only dealt with you, rather than with Mr Vizzarri.
You reported to the Managing Director, Giuseppe Vizzarri, and were authorised to deal with sub-contracted labour, act as manager for the running and supervising of the sheds, oversee the asparagus and broccolini shed workers, arrange attendance of the required daily number of shed workers subject to Mr Vizzarri’s instructions, and give instructions and work directions in relation to the work conduct of the shed workers.
After Mr Vizzarri decided how many workers were required for picking and packing, he communicated the number to you and you spoke to a number of drivers employed at the farm. The drivers used word-of-mouth to employ the required number of workers. You provided each driver with an attendance sheet and the driver recorded the workers by allotted number, name or nickname; together with their start and finish times.
Each Wednesday, the drivers handed in the timesheets which ultimately came to you. From the timesheets, you calculated the total number of hours worked by all workers. From that information, a false invoice was produced in the name of the relevant labour hire company. Then Vizzarri Pty Ltd transferred the money to the labour hire company bank account, purportedly to meet the invoice.
Another farm worker; often an intermediary known as Mr Roth, withdrew the money from the labour hire bank account. After the labour hire company and Mr Roth each took a commission, the cash was handed to you. You also took a commission and then made up the pay for each of the workers according to the hours worked on the attendance sheet. Each worker was paid a cash sum in a marked envelope.
I emphasise at this time that you were not charged with exploitation of the workers.
On 2 December 2016, Australian Border Force (ABF) and Australian Federal Police (AFP) executed search warrants at the Vizzarri Farm. Investigators seized from the Vizzarri Farm contracts between Vizzarri Pty Ltd and two different purported labour hire companies which purportedly agreed to the provision of seasonal workers, as well as some records of labour work hours which purportedly related to these agreements.
Each of these labour hire contracts contained terms relating to:
·the supply of sufficient workers on a day to day basis;
·the reimbursement by Vizzarri Pty Ltd to the contractor;
·the responsibility of the contractor to ensure that each of the workers have proper Tax File Numbers and notations on any visas that they are entitled to work in Australia;
·details of pay rates; and
·that the contractor must ensure that all employees or sub-contractors provided to Vizzarri Pty Ltd were allowed to work in Australia.
During the execution of the search warrants on 2 December 2016, ABF and AFP officers entered the asparagus and broccolini packing sheds at the Vizzarri Farm and identified 89 illegal workers:
1.61 Unlawful Non-Citizens (1 other Unlawful Non-Citizen was found on farm, but not inside packing sheds); and
2.28 Lawful Non-Citizens whose visas did not permit them to work.
The offending period for the first charge of allowing an unlawful non-citizen to work (Charge 1) is 27 August 2015 to 2 December 2015 at Koo Wee Rup in Victoria. This charge relates to at least 7 unlawful non-citizens.
The period for the offending on the second charge of allowing an unlawful non-citizen to work (Charge 2) is 3 March 2016 to 20 April 2016 at Koo Wee Rup in Victoria. This charge relates to at least 7 unlawful non-citizens.
The offending period for the third charge of allowing an unlawful non-citizen to work (Charge 3) is 27 October 2016 to 2 December 2016 at Koo Wee Rup in Victoria. This charge relates to at least 62 unlawful non-citizens.
The offending period for the fourth charge of allowing a lawful non-citizen to work (Charge 4) is 1 October 2016 to 2 December 2016 at Koo Wee Rup in Victoria. This charge relates to 28 lawful non-citizens.
You were interviewed by the AFP on 2 December 2016. You told interviewing officers that you did not check the work eligibility status of the seasonal workers and that you did not see it as your place to check their eligibility.
The offending date for the fifth charge is 2 December 2016 in Keysborough. When the AFP executed a search warrant at your home, they found in excess of $403,000 AUD in cash located first in the:
1.Master bedroom walk-in robe $49,140;
2.Walk-in robe safe in the master bedroom $54,800; and
3.Safe under the staircase $300,000.
The investigators did not specifically address the proceeds of crime issue in the record of interview.
The elements of this offence to which you have pleaded guilty are that:
1.You dealt with money in excess of $100,000;
2.That money was the proceeds of crime; and that
3.You were reckless as to the fact that the money was the proceeds of crime.
Whilst you agree that you received $323,940 which is properly attributed as being the proceeds of crime, you dispute that the remaining $80,000 was received as proceeds of crime. Rather, on 1 March 2021, you called two witnesses, Phiron Nou and Thea Ros. Ms Ros stated that she left a total of $80,000 and a further $10,000 US currency with your partner in 2016 as a stockpile of cash to support her children who were studying in Australia, and for expenses related to building a house in Keysborough.
I was told during the course of the hearing on 22 March 2021 that confiscation of the proceeds and the application made by Ms Ros are the subject of separate proceedings. I was not provided with, and I did not particularly seek further information except I learned that some $15,000 USD currency was found at your home at the time of the search on 2 December 2016. The US currency does not form part of charge five.
In the end, I concluded that I simply do not have enough information before me to make a positive finding that $80,000 belongs to Ms Ros. Nevertheless, as Mr Robinson QC submitted, the CDPP must prove facts adverse to you beyond reasonable doubt: see Olbrich (1999) 199 CLR 270, [27]. In the absence of any further evidence, I am not satisfied beyond reasonable doubt that you dealt in proceeds of crime amounting to $403,940. In the circumstances, I conclude that you must be sentenced for dealing in proceeds of crime amounting to $323,940.
You were bailed on 27 February 2020. You have spent no time in custody by way of presentence detention.
Objective Gravity and Moral Culpability
Migration Act Offences
The scheme of Migration Act offences was introduced to address concerns about those who seek to work illegally in Australia and those employed labour supply schemes who (as in this case) recklessly engage unlawful noncitizens or lawful noncitizens without work entitlements.
I was referred to the sentencing remarks of Her Honour Judge Lawson in the case of R v Simonetta [2017] VCC 2015 at [10] – [14]. In that case, Judge Lawson emphasised the relevance of general deterrence and denunciation.
10     The employment of non-citizens who do not have permission to work in Australia is a significant problem that does have a number of consequences:
a)   it takes away job opportunities from Australian citizens and lawful migrants;
b)   as income tax is generally not withheld from the worker's income, offending of this nature therefore reduces Australia's taxation revenue;
c)   illegal workers, who are complicit in the offending, are difficult to detect, and the cost of detecting illegal workers places an unwelcome burden upon the Australian taxpayer;
d)   it undermines the integrity of Australia's otherwise orderly migration program;
e)   it imperils the competitive playing field for employers looking for workers with similar skills. Any contravening conduct which reduces wage costs provides direct financial gain for that employer and therefore provides a competitive advantage for non-compliant employers over those who do comply with the relevant legislation.
11.Whilst it can be said that workers are necessarily complicit in the offending and often travel to this country for the purpose of working illegally, that is not a mitigating factor. When employed in Australia, non-citizens who do not have permission to work are generally underpaid, do not receive superannuation contributions and are not afforded the full range of employment entitlements available in Australia. They are therefore vulnerable to be exploited and steps need to be taken to deter other prospective employers from undertaking the employment of such people as they are easy targets.
12.The ability to successfully detect this type of offending and to prosecute employers is made more difficult by the fact that illegal workers are almost never willing to cooperate by providing statements against employers. Having said that, the circumstances of your offending was revealed when two of your workers complained in respect to their entitlements to the Fair Work Ombudsman.
13.Taking those matters into account, and having particular regard to prevalence and social consequences of this type of offending, it is important to emphasise general deterrence and also denunciation as important sentencing considerations.
14 The penalty for contravention of the Migration Act must mark the seriousness with which both Parliament and also the public regards such acts. Compliance is designed to act as a deterrent to others by imposing serious financial consequences for non-compliance. Employers should be in no doubt that they have a positive obligation to ensure compliance with the law.   It is important to emphasise that particularly for employers in the horticultural industry, an industry which relies heavily on migrant workers.
I state again that I accept that the principal object of this illegal scheme was to obtain workers to enable the vegetables to be picked and packed for market. By saying this, I do not mean to suggest that your offending was not serious – the consequences outlined by Judge Lawson are applicable in this case.
Moreover, each of the Migration Act offences is charged as a rolled up charge. As Mr Robinson stated, the prosecution does not allege that you knew the precise number of people you allowed to work. Nevertheless as the shed boss, and based on the actions you took, you were aware that you were participating in an arrangement for the performance of work by a substantial number of workers whilst you were reckless as to their entitlement to work.
Instead of charging you with individual offences in respect to each worker, those individual charges are rolled into one single charge for the specified period of offending. The maximum penalty remains two years, however, the law provides that a more severe penalty than might otherwise be the case can still properly be applied for a rolled up charge to reflect the overall circumstances of the offending. This must necessarily take into account the number of people affected by your offending.
Finally in this respect, each charge specifies that you were reckless to the fact that these workers worked illegally. It is not alleged that you knew they worked illegally; rather, you were aware of a substantial risk that the workers who were allowed to work were doing so illegally and you unjustifiably took the risk in the circumstances known to you.
Proceeds Of Crime
I turn now to consider the proceeds of crime charge.
The CDPP referred to the Court of Appeal proceeds of crime case of Majeed. In that case, the Court of Appeal identified the principles which must be applied in considering the appropriate sentence to impose. They are:
1.the grading of the offence according to the statutory provision under which the charge is brought;
2.the precise circumstances of the money laundering which includes, amongst other things, the role of the offender in this arrangement; whether the offender was the author or instigator of the arrangement; the degree of authority reposed in the offender; the precise actions of the offender which constituted the dealing for the purposes of the offence; the period of time over which the offence was committed; the number of transactions involved; and the amount involved in the offending;
3.state of mind of the offender; and
4.the importance of general deterrence in the sentencing consideration as money laundering is vital to the functioning of organised criminals syndicates; in particular, to drug trafficking syndicates.
The factors which I take into account in assessing the seriousness of this charge are:
1.Your role. Your role in this offence was significant. The proceeds were paid to you, and it was you who calculated the payment to each worker and caused the distribution. You were not, for example, a mere courier. You were vital to the dealing with the criminal proceeds.
2.Quantum. The figure found in your possession, over $320,000, is indeed a large amount, and was available to you, probably in its entirety, as your profit from the employment scheme;
3.You are charged with dealing in proceeds on the single date of 2 December 2016, but the amount of money which you admit to being the proceeds of crime suggests (by reference to the duration of the Migration Act offences) that it is likely that you accumulated the proceeds over a lengthy period of time.
4.Against this, I note that the proceeds of crime provisions are graded according to state of mind and quantum. Your offending is not the most serious by either quantum or state of mind. I therefore will not lose sight of the fact that although serious, there are gradations of offending which the Commonwealth Parliament has specified are more serious (and less serious).
5.You have admitted that you were reckless as to the fact that the money you received was proceeds of crime. The underlying crime was also committed with a reckless state of mind.
6.When I consider the context in which you received this money against the 4^th principle identified in Majeed, I agree with your counsel that I should take into account that the proceeds of crime in this case did not result from a more serious criminal context, such as drug or human trafficking, or even the exploitation of the workers. Having said that, the context still remains serious, and general deterrence still remains an important sentencing objective.
Your offending must be met by principles of general deterrence, a measure of specific deterrence, just punishment and proportionality.
Personal circumstances
I turn now to a consideration of your personal circumstances.
You are 48 years of age and were born on 10 May 1972 in Cambodia. You are the youngest of five siblings.
You went to school until Year 11 and then worked in your parent’s grocery store for a few years in Cambodia. You came to Australia in 1993 at age 21 and sought out seasonal work in farms and shift work in factories.
You started a relationship with your current partner, Ms Taing, when you moved to Australia and you have two children together. Your children are aged 19 and 20 years and both study at universities in Melbourne.
Your parents have both passed away in the last 10 years. You were able to visit your mother in Cambodia in 2018, prior to her passing away that same year.
You have ceased any relationship with the Vizzarri family and company since being arrested and have been working in factories. You are currently employed at a refrigerator-making factory, doing process work.
I received four character references. According to your references, you are known as a contributor and supporter of others within the Cambodian community.
I accept from those references, from your biography and from your lack of prior convictions that before this offending you were a person of otherwise good character.
Mr Moglia used the factors that I must take into account pursuant to s.16A Crimes Act to frame the balance of his sentencing submissions.
The first requirement is that I must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Imposition of a sentence of imprisonment is a sentence of last resort.
Essentially Mr Moglia submitted that your Migration Act offending could be adequately met by a fine. Mr Moglia concentrated on the proceeds of crime offending. He submitted that:
1.The nature and circumstances of the offence, taking into account the context in which the proceeds were received (I have referred to this above) and your state of mind (to which I have also already referred) does not require the imposition of a term of immediate imprisonment.
2.Although the offending arose out of a course of conduct, the state of mind was reckless to such conduct and as such may be considered on the lower side compared to where such offending is (for example) an intentional part of a plan to defraud.
3.There are no circumstances of the victim to be considered and there is no monetary loss as the proceeds have been entirely recovered.
4.The degree to which you have shown contrition for your offending. Mr Moglia submitted that you took responsibility for your offending and admitted that the sum of over $300,000 constitutes proceeds of crime and will therefore be forfeited.
5.The fact of your plea of guilty. Although there was a committal, it was limited to the Migration Act offences. Mr Moglia submits that with COVID lockdowns causing a large backlog of trials stacking up in this court, it would have been an easy matter to drag this out. Rather, you entered a plea of guilty.
6.The degree to which you have cooperated with law enforcement agencies and investigation of the offence or other offences. Mr Moglia submitted that you answered questions and made admissions about employment arrangements when interviewed. I note however that no specific discount for cooperation is sought by either your counsel or the Commonwealth.
7.Mr Moglia submitted that specific deterrence does not attract much weight, given your age and previous good character.
8.General deterrence remains a dominant factor in the sentencing process. Nevertheless, the consequences of the offending to the community are not grave.
9.Adequate punishment in this case ought to take into account the adverse effect on your reputation in your local and cultural community, in which you have played a great part; the loss of your continuous employment of 21 years with the one employer and the shameful process of coming to court to face sentence for the first time as a 48-year-old man.
10.Your character and antecedents. You were previously a person of good character.
11.Your prospects for rehabilitation are very good.

By reference to Majeed, Mr Robinson QC on behalf of the Commonwealth submitted that your role was more than mere courier. Rather, you received the proceeds, you calculated and made up the wages for the unlawful shed workers and you paid cash which was retained from the proceeds. The Crown submits the proceeds found in your possession were accumulated payments received by you.
The CDPP submits that, even taking into account the mitigating factors raised on your behalf, a term of immediate imprisonment remains appropriate for your offending. The CDPP submitted that some concurrency across your offending is required.
Another offender, Mr Roth, was dealt with in the Magistrates' Court on the migration matters. He received a fine for his offending. Mr Moglia urged me to also impose a fine on you for this offending
I consider the plea of guilty to have utilitarian benefit in this case; and all the more so in these difficult times of the backlog created by COVID. The CDPP accepts that your plea demonstrates the taking of responsibility, some contrition and a willingness to facilitate the course of justice. I agree, and I take account of these factors. Moreover, I am satisfied that you were a person previously of good character. I do not consider specific deterrence carries much weight in this case. Your prospects for rehabilitation are indeed very good. You have strong family and friendship support. You have continued to work hard since your arrest.
Over four years have now passed since you made your record of interview. The charges were filed two years later in December 2018. After that time, there was some delay as there was a committal for the Migration Act matters in February 2020. The plea was entered on 19 November 2020 at the initial directions hearing.
I am prepared to find that there was a delay in filing the charges and then a further delay brought about by the COVID-19 pandemic lockdown and its effect on the work of the courts. I do not consider the delay between the charges being filed and the committal can be taken into account as you chose to cross-examine witnesses on the Migration Act matters. The net effect is that I will take some account of delay in this case.
Comparative cases
The Crown provided me with a table of comparative cases. As you heard during the conduct of the plea, the Crown prosecutor spent time discussing each of the cases within the table in order to provide me with some comparison to your own position.
These comparative cases from across different courts throughout Australia are indeed useful in determining the appropriate sentence to impose in this case.
I have also read the case provided by Mr Moglia; the sentence of Trailovic.
In the end however I cannot be unduly influenced by the sentences imposed in other cases. Rather, I must consider the circumstances of your case, taking into account the objective factors and the matters personal to you and then make my own determination according to the sentencing principles.
Sentence
The Commonwealth Crimes Act provides that a sentence of imprisonment may only be imposed after all other sentencing options have been exhausted. I have considered the matter carefully and I consider that the Migration Act matters may be adequately dealt with by way of fines.
I consider that a period of imprisonment must be imposed and partially served on the proceeds of crime charge.
The principles of deterrence and adequate punishment must be met in this case. Moreover, your role was integral and the amount of money dealt with over $300,000 was substantial. The message must be sent that dealing in or amassing sums of money from criminal offending cannot be tolerated and will usually be met by a period of imprisonment.
I have already set out in detail the matters that I have taken into account in assessing both the seriousness of your offending and the factors in mitigation. Nevertheless, I highlight that in this case I have mitigated the sentence to be imposed and to be served by taking into account the delay, the grading of the offence, the loss of your long time employment, your otherwise good character and your very good prospects for rehabilitation.
So, Mr Kit, on Charge 1 you are convicted and fined the sum of $12,000.
On Charge 2 you are convicted and fined the sum of $10,000.
On Charge 3 you are convicted and fined the sum of $10,000.
On Charge 4 you are convicted and fined the sum of $8,000.
On Charge 5 you are convicted and sentenced to a period of 14 months' imprisonment. That sentence commences today. I order that you are to be released upon a recognisance release order after serving 5 months of that sentence.
I must explain to you the effect of the orders I have made.
On the Migration Act offences you have been fined a total of $40,000.
On the proceeds of crime offence you have been sentenced to a period of 14 months' imprisonment and you must actually go into custody today and serve 5 months of that sentence.
I will ask you to sign a recognisance release order. The recognisance is a promise to be of good behaviour for the balance of the sentence. If you are of good behaviour and you do not commit any further offences during the period of the order, you will not be required to serve the remaining nine months.
If, however, you commit further offences punishable by imprisonment then you may be returned to prison to serve the balance of the sentence.
HIS HONOUR: All right, Mr Botros. Beneficiaries.
MR BOTROS: Yes, Your Honour, the beneficiary is the Australian Border Force.
HIS HONOUR: Right, thank you. And then the order for the recognisance release order, do you want a security amount specified; is that right?
MR BOTROS: Yes, Your Honour, my understanding of how the Crimes Act operates is that a security is required under s.20(1)(b).
HIS HONOUR: Yes. I will set a recognisance in the sum of $500, Mr Botros.
MR BOTROS: If it please the court.
HIS HONOUR: You are then to be of good behaviour for nine months, do you agree with that?
OFFENDER: Yes, Your Honour.
MR BOTROS: Yes, Your Honour, I do not make any submission as to the length.
HIS HONOUR: All right, so Mr Kit. I will pass this document, I will sign this document and then you must also sign it. The document is when you sign it, it is your undertaking or promise to be of good behaviour, upon your release for the period of nine months.
I have specified that the cost or the price of the undertaking is $500. You do not have to pay that $500 to be released, it is simply a promise to pay $500 if you breach the bond, the promise. If you breach the bond or the promise during the nine month period after your release, then you can be brought back before me and ordered to serve the nine months.
If you do not breach the bond, and I do not expect that you will breach it, then you do not pay $500 and you do not come back before me.
Are you prepared to sign the bond or the promise under those conditions?
MR KIT: Yes, Your Honour.
HIS HONOUR: Thank you, I will sign it first. All right, thank you.
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[2021] VCC 421

12 April 2021