Director of Public Prosecutions v Lai
[2013] VCC 1318
•11 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01388
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IM SIAM LAI & IM LAI |
---
JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 September 2013 | |
CASE MAY BE CITED AS: | DPP v LAI | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1318 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. A. Sampson | Office of Public Prosecutions |
| For the Accused | Mr. J. Saunders |
HIS HONOUR:
1 James Lai, you can remain seated for the time being. You pleaded guilty to an indictment charging with an offence of dealing in the proceeds of crime, where the value of the money was $1 million dollars or more, in circumstances where you believed the money to be the proceeds of crime, at the time of the dealing with money to that value, and you pleaded guilty to Charge 2 which involves an offence of dealing with money being $100,000 or more, which is reasonably suspected of being the proceeds of crime. Both of those offences contrary to s.400 of the first Commonwealth Criminal Code, contrary to s.400 (3)(1) and the second, contrary to s.400(9)(1).
2 You have also admitted a prior conviction at the Moorabbin Magistrates' Court on 25 March 2010, where you were sentenced for three charges of dealing property suspected of being the proceeds of crime. You were convicted and placed on a Community Based Order for six months, with a condition that you perform 100 hours of Community work.
3 As I say, that court appearance was on 25 March 2010. The prosecution has tendered and relied upon a prosecution opening on the plea which is Exhibit A, and represents essentially, an agreed statement of facts upon which I can proceed to sentence you for these offences. The document was read in full yesterday and I am not going to read it again. But in brief, the first offence occurred between 29 December 2010 and on 10 August 2011, and involved you in a money-laundering scheme employing what is referred to as the cuckoo-smurfing method. The method is set out in the document. I do not propose to identify the components of that method again. In your case, it involved you making, in 191 separate transactions involving a total sum of money of $1, 909,580 dollars and upon your arrest on 11 August of 2011, in a shoebox located in your car, was a further sum of $174,310 in cash, which also was the proceeds of crime and also relevant to the charge, the subject of Charge 1.
4 It is apparent from intercepted telephone conversations between yourself and a Malaysian service, that is a service that was registered in Malaysia or operated in Malaysia, that you knew that these transactions were being committed on behalf of, and for the benefit of a substantial commercial drug trafficking syndicate that these were the proceeds of the activities of that syndicate, and that you were operating on their behalf. You committed these offences with the full knowledge of the nature of the substantial drug trafficking syndicate that had produced the cash, which was the subject of your money laundering activities. You therefore played a pivotal role on behalf of a major drug trafficking syndicate, operating internationally, in the full knowledge of the nature of their activities, and in a manner which showed that you were very close to those that were involved in the operation of that syndicate.
5 On that basis, this is to be regarded as a very serious offence of its kind, and towards at least the middle to top end of the range for the purposes of establishing your degree of culpability.
6 The second charge arises from your activities from 22 August 2011 to 6 February of 2011 when you engaged in a number of other money laundering transactions in a sum totalling $166,702. On these occasions, you deposited money into bank accounts that were either Chinese or Taiwanese bank accounts, and by your plea, you admit that those sums of money which are unaccounted for as to their origin, are reasonably suspected as being the proceeds of crime at the time of your dealing with the monies. Those offences, of course, were committed over a period of five months and more, immediately after you had been bailed for the offence, the subject of Charge 1. The offence, the subject of Charge 1, carries a maximum term of imprisonment of 25 years and the offence, the subject of Charge 2, a maximum term of imprisonment of three years.
7 Turning to matters personal to you, you were born in East Timor in January of 1972. You are now 41 years of age. You were the second youngest of your family. You have four sisters and I am told that in 1984, the family went to Portugal. You came to Australia in 1987 as a migrant, aged 16, with your family. You are still in touch with your family members. Your parents live in Caroline Springs. You went to High school in Year 10, and obtained your VCE. You then went to TAFE and studied electronics and you worked at the Vic Market and you subsequently, at the age of 23, set up your own computer shop. You married when you were aged 26, and you have a daughter who was born in 2003. She must be aged 9 or 10 now.
8 Your businesses seemed to flourish and you were obviously a successful businessman, until you sold your business and it seems, invested money in a townhouse development in Point Cook, which went bad. Your wholesale business, it seems, got into trouble, and no doubt, affected, somewhat by the economic downturn at the time, and also your marriage broke up and you became depressed. You were taking medication for your depression, brought on it seems by the combination of your marriage break up, the down turn in your profitable business and the financial strain arising from the property development venture which went bad, and exacerbated by the departure of your business partner overseas with the profits or part of the money from that business, left you with substantial debts and having to face bankruptcy with owing hundreds of thousands of dollars, I think, something over $600,000.
9 There is no doubt that put a good deal of strain on you. I accept entirely that the context in which your spree of offending, if I can put it that way, which involved not just the offence, or the offences, the subject of your court appearance on 25 March 2010, but as I am told, other offending which occurred at or about that time, or rather during 2008 and 2009. That resulted in your appearance in this court on 11 February of this year, when you were sentenced to a total of four years imprisonment with a non-parole period of two years, for conspiracy to cheat and defraud. The offending arose from your involvement in a substantial fraudulent scheme where the principal was as man by the name of Hancock who was subsequently sentenced more than 9 years imprisonment for his involvement in that scheme. It seems that you were selling items that were obtained using stolen identities through E-Bay and remitting the monies back to the syndicate and obtaining essentially, a commission, for your involvement. That of course, is not a prior conviction, and it is relevant only to give me the picture of the period during which you were off the rails, and committing offences, apparently in the context of your financial difficulties, your failed marriage and your consequent depressed state.
10 It is relevant, I think, for me to take that into account in assessing your prospects of rehabilitation. It is also relevant for me to take that into account in applying what is known as the totality principle in assessing the overall sentence that is appropriate in all the circumstances of the case.
11 You have formed a new relationship and it would seem that that is now giving you comfort and considerable support. That too, will assist your rehabilitation. It was submitted on your behalf, that you are a good candidate for rehabilitation. In support of that, I was provided with a number of references which collectively form Exhibit 1 on the plea, and each of the letters of reference to which my attention was drawn, show that you have very good qualities as a loyal friend and as a person involved in business dealing. It seems that you have a very good reputation generally for honesty, and decency. Of course, I suppose it might be said that if those that had written these references were aware of what you were doing during the period of your offending, then their opinion of you might have been different at that time. They are, of course, now aware and they still support you. They still stand behind you, and they are still willing to give you the quite glowing references that they have, despite their discovery of a side to you of which they were, apparently, unaware.
12 You, of course, do not come before the court as a person of good character. But you come before the court, at least as a person who has acquired a good reputation amongst those with whom he dealt, both personally and in your business. That is to your credit, and is to be taken into account in your favour in assessing appropriate sentence and is also, as I said, relevant to your prospects of rehabilitation, because it seems that those people are still behind you and will no doubt, offer you support when the time comes for you to complete your sentence.
13 I was invited to take into account also that you pleaded guilty. That of course, does require me to give you a discounted sentence for the saving of court time, for the cost, the inconvenience of a trial, and inconvenience to witnesses and generally, in the promotion of the interests of judicial administration, court's administration, and you are entitled to a discount for what is known generally as the "utilitarian value" of your plea of guilt.
14 Frequently, a plea of guilty is relied upon as evidence of remorse. It is certainly consistent with remorse. I have to say that I do not see much if any, evidence of genuine remorse. It may well be that you remorseful. It would be surprising if you were not remorseful, having regard to the references that have been written on your behalf, but as I say, I do not see much evidence of it. I do note that you chose not to answer questions when you were first asked about this matter, or at least as far as Charge 1 is concerned, and I note, of course, that you committed further serious offences, those the subject of Charge 2, very soon after you were arrested and bailed for the offence, the subject of Charge 1. One might have thought that a person of your intelligence and capacity, would have heeded the warning shot - the very significant warning shot that was fired across your bow, so to speak - when you were arrested for the first charge, the matters the subject of the first charge on 11 August 2011.
15 So, it is with some hesitation that I give you some credit for remorse. I have to say I have come to that conclusion more by way of instinct, than by way of sound evidentiary support. I accept, of course, that part of your rehabilitation, will be your ability to get a job and to get established again in the workforce. I have no doubt that you have the intelligence and the capacity and the diligence to achieve that and to put all these matters behind you eventually. I underscore that fact as another strong pointer to good prospects of rehabilitation. Your counsel submitted that I should conclude really good prospects of rehabilitation; I am inclined to think you have good prospects of rehabilitation, the hesitation being that notwithstanding all the matters that I have just referred to, you did commit those further offences whilst on bail. That leaves that question mark hanging in the back of one's mind, which gives rise to a submission on behalf of the prosecution that specific deterrence, that is, deterring you, is still a relevant consideration. I think all in all, the prosecution is right about that. I do have to give that proper weight in the overall consideration of these matters.
16 I am required to have regard to a number of sentencing considerations, these being Commonwealth offences. I am guided by the provisions of the Commonwealth Crimes Act which, under s.16(A) require me initially by reference to sub-s.(1) to impose a sentence, that is, of a severity appropriate in all the circumstances of the offence.
17 Apropros of that consideration, I was provided with a copy of the report of a Court of Appeal decision, in the Court of Appeal of Victoria, in the matter of Majeed v R 213 VSCA 40. It was pointed out to me that in that case the court was dealing with another accused who was involved as a significant participant in a cuckoo-smurfing based series of transactions, involving money laundering on a very substantial scale, involving sums of money in excess of $5 million dollars. Although in that case, the court was dealing with an offence under s.400 (3)(2) where the allegation was that the state of mind of the offender involved recklessness as to the link between the monies subject to the charge and the fact that the monies were the proceeds of crime. The maximum term of imprisonment for that offence, 12 years imprisonment. The court in dealing with the Appeal, concluded that the sentence that was imposed, and after a plea of guilty, being 7 years imprisonment with a non-parole period of five years, was a sentence that was within the appropriate range. I was referred, in particular, to paragraph 39, but I note that paragraphs 36, 37, and 38 are also of relevance I will just read paragraph 39 though:
"Money laundering, particularly of the nature and scale involved in this case, is vital to the functioning of organised criminal syndicates, and in particular, drug trafficking syndicates. In such cases, it is a necessary part of the criminal activities of those syndicates, and the money launderer is an important cog in the wheel of organised crime. Accordingly, the offence of money laundering, particular of the type and dimension which was involved in this case, is an offence in respect of which the principle of general deterrence is given significant weight. "
18 In the cases of Huang and Su, the NSW Court of Appeal consisting of Simpson, Howie and Hislop JJ stated:
"Money laundering in the scale in which both respondents were involved, should be considered as serious criminal activity that is at the very heart of organised professional criminal crime syndicates, warrant severe punishment and not least, in order to reflect general deterrence of a very significant degree. When the activity is engaged in a profit over a significant period of time, with a large number of transactions, the good character of the offender is of less significance than might otherwise be the case."
19 I take those to be the principles which apply to this case, noting as I do, that your state of mind was one where you actually knew the nature of the drug trafficking activity and the substantial scale upon which that activity was being conducted, and you played a vital role in assisting that drug trafficking syndicate.
20 I was also given a copy of the case of Huang and Su to which reference was made in paragraph 39 that I have just read out, and the case of R v Van Loy Nguyen [2010] NSW CCA 226 and I have read those reports also, and I am satisfied that the reference to the relevant principles in the matter of Majeed, is consistent with that which has been applied in New South Wales at least.
21 I have also, by virtue of s.16 (A)(2) required to take into account, a number of matters where they are relevant. Certainly the nature and the circumstances of the offence and to some extent I have already dealt with that, the fact that there was a course of conduct involved in this offence, is to be taken into account. Your personal circumstances and I have already dealt, I think, in some detail with those, the degree to which you have shown contrition for the offence, as I say, I am inclined to give you some credit for remorse, but I do not see evidence of any high degree of contrition.
22 I am required of course, to take into account your plea of guilty, and I have already made reference to that. I accept that that plea of guilty also reflects a degree of remorse. I am required to consider the degree to which you cooperated with law enforcement agencies in the investigation of the offence or other offences. I do not see any evidence of that. I am required to take into account, the deterrent affect of sentence upon you, although not under s.16(2) I am also required to take into account, general deterrence of course, which is deterring other people, and that I think, is clearly from the case of Majeed and the other cases, that is a very significant sentencing consideration for all the reasons that I have identified.
23 I need to ensure that you are adequately punished for the offences. I have to take into account your character, antecedents, age, means, physical and mental condition. I do take those matters into account, noting as I do, that you have been suffering from depression and the matters that have been drawn to my attention, which I accept is because of the various factors that were in play in the period immediately prior to, and during your offending conduct, those matters were clearly were relevant to, and contextual of your offending conduct. I am required to take into account your prospects of rehabilitation. I have already covered those. It seems to me that the prospects of rehabilitation do lead to a situation where I should consider a fairly substantial period when you will be eligible for parole, and your counsel, I think, submitted as much in the course of his plea.
24 I am required also, to take into account the probable effect of any sentence on your family or dependents. It is not suggested that special circumstances exist here. But it is a factor which I do take into account that you have a daughter out there, and she will have been deprived of a father during that period. I also note that that will weigh heavily on you, and it will make your time in custody harder to bear. It seems to me that it is relevant on those two bases, she will be deprived to some extent, and you will be affected in the knowledge of the deprivation .
25 So, doing the best to balance all of those factors, I have to consider what is an appropriate sentence. I note, that you are serving a substantial period of imprisonment at the present time, that you were sentenced on 12 April 2012, and that you have served approximately one year and 5 months of that sentence. Your earliest release date is 10 April 2014. Pre-sentence detention of about 10 months was taken into account in that sentencing order, so that that amount of time was ordered to be deducted administratively from the time you would actually have to serve on that sentence. There is no pre-sentence detention that applies specifically to this case. But you were effectively in custody for part of that period, on these matters also, and you had this matter hanging over your head now for quite some time, and I take that into account too.
26 It was submitted by the prosecution that no other sentence, other than an immediate custodial sentence was appropriate. Section 17(A) of the Commonwealth Crimes Act requires me not to impose a term of imprisonment unless it is the only available option. It is not suggested that any other option is sensibly open to me in this particular case.
27 The prosecution submitted that with 191 deposit transactions involved in Charge 1, that was a systematic and sustained period of offending over a substantial period of time, involving a large sum of money. They submitted that general deterrence was of great significance in your case, that you were an important cog in this particular criminal venture.
28 I invited the prosecution to indicate a range which they submitted was an appropriate range of sentences within which I should sentence you. The prosecution submitted that the range was between 6 and 8 years as a head sentence, and four and a half and six years as a non-parole period.
29 It was submitted on your behalf that although there was nothing wrong with the range and the consistency between that range and current sentencing practice, I should look to a non parole period which would effectively be in the range of three and a half years or not a lot more. It seems to me with great respect, that the prosecution range is below that, which emerges from the cases that deal with lesser offences. To the extent that Nguyen provides any sort of guideline, the amount of money involved in that case, of course, was very large, about $15 million dollars, but the court re-sentenced in that case, after a plea of guilty to, I think, a sentence of 13 years imprisonment.
30 The other matter I have to take into account is totality. Mr Saunders invited me to approach the matter on the basis that I should look at your criminal conduct between 2008, 2009, and January of 2012. I think I have summarised his submission correctly, and then taking all that into account, apply the principle of totality to arrive at a just sentence overall.
31 If I was to impose a sentence which I thought was appropriate for these offences alone, without regard to the sentences you are presently serving, and was to impose those cumulatively, I think it would produce a sentence that was too high. I am therefore approaching sentence in your case, with a view to reducing what I would regard as an appropriate sentence, to give effect to the totality principle.
32 I note that so far as Charge 2 is concerned, that offence was committed whilst you were on bail and so far as the State Sentencing Act is concerned, the presumption is in favour of any sentence being served cumulatively. I have come to the conclusion, again, that if I was to order total accumulation, that that too, would produce a sentence that was likely to be in breach of the totality principle. I have therefore sought to modify the sentences and the effect of those sentences, with a view to applying the totality principle, and also taking into account, the fact that the total of your pre-sentence detention is effectively levied against the sentence that you are currently serving, and that you get no benefit effectively from that, or a period in custody in relation to these matters, at least on a pro-rata basis. I take that into account. I take into account your earliest release date from the sentences you are currently serving, being 10 April 2014.
33 Of course the sentencing regime is governed by Commonwealth legislation and there are certain rules that I have to apply, and I would be obliged if counsel would follow what I am about to say in terms of the structure of the sentence and correct me if they think that I have breached any of the rules that arise under either the Crimes Act or the combination of both the Commonwealth Crimes Act or with the State Sentencing Act.
34 James Lai, I am now ready to impose sentence upon you. Would you stand please:
35 The offence of dealing in the proceeds of crime where the value of the money was one million dollars, is subject to Charge 1 on the indictment. I sentence you to imprisonment for a period of 8 years. On Charge 2, of dealing with money being $100,000 or more, which is reasonably suspected of being the proceeds of crime, the subject of Charge 2, I sentence you to imprisonment for 15 months.
36 I order that the sentence on Charge 2 will commence today, and I order that the sentence on Charge 1 will commence on 11 March 2014. That effectively means cumulation as between the two sentences as to six months.
37 The total effective sentence is therefore 8 years and 6 months, and I set a non parole period of 5 years and six months before you become eligible for parole. That of course, too, will run from today, so that it effectively means that there will be a period of 5 years, or a little bit less than that, over and above what you are presently serving. having regard to your prospective earliest release date as 10 April of next year.
38 Would counsel please check that, and ensure that I have not fallen foul of any of the technical provisions. I indicate that, but for your plea of guilty, I would have sentenced you to 10 years and 6 months imprisonment with a non parole of 8 years and 6 months.
39 You can take a seat for a moment whilst counsel are just considering what I have just said. To the extent that the provisions of s. 14 of the Sentencing Act apply, to resetting or setting a new non parole period, it seems to me that the order I made has that affect. I am not sure whether s.14 actually applies because of the Commonwealth Sentencing regime. It may be that Ms Sampson is able to help, but to the extent that I need to set a new non parole period by virtue of s.14, then I set the new non parole period as being five years and six months running from today.
40 MS SAMPSON: Your Honour, the prosecution submit that it does not apply in the Federal sentencing.
41 HIS HONOUR: Does not apply. I took that view, but I did not want to be dogmatic about it, because I know that other people have given a good deal of thought to these matters.
42 MS SAMPSON: If Your Honour pleases.
43 HIS HONOUR: Thank you.
- - -
0
0