Director of Public Prosecutions v Le

[2018] VCC 895

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02427
CR-17-02428

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHNNY LE

PHUONG NGUYEN

‑‑‑

JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2018
DATE OF SENTENCE:	8 May 2018
CASE MAY BE CITED AS:	DPP v Le & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 895

REASONS FOR SENTENCE
‑‑‑

Subject:  Dealing with property, $100,00 or more, reasonably   suspected of being proceeds of crime;
  Avoid bank reporting requirments.

Catchwords:  
Legislation Cited:
Cases Cited:
Sentence:

‑‑‑

APPEARANCES: For the Director of Public	Counsel	Solicitors
Prosecutions	Mr G. Scherburt	Office of Public Prosecutions
For Accused Nguyen	Mr K. Phair	MLG Lawyers
For Accused Le	Mr G. Steward	MLG Lawyers

HER HONOUR:

1Johnny Le & Phuong Nguyen, you have both pleaded guilty to Commonwealth offences of dealing with property, $100,000 or more,  reasonably suspected of being proceeds of crime.  You Nguyen have additionally pleaded guilty to a charge relating to avoiding bank reporting requirements, contrary to the Anti-Money Laundering legislation.  The maximum penalty for the proceeds of crime offence is three years imprisonment, and/or a fine of 180 penalty units, or $32,400; and for avoiding bank reporting requirements five years and/or a fine of 300 penalty units, $54,000.

2Section 16A(2) of the Code, sets out a non-exhaustive list of factors to be taken into account when the court sentences a person for a federal offence.  Such factors are to be taken into account to the extent they are relevant and known to the court. 

The nature and circumstances of the offence, s.16A(2)(a) and whether the offending amounts to a course of conduct, s.16A(2)(c). 

3The full details of your offending are set out in the prosecution opening, Exhibit A.  During 2016, as part of an investigation into an organised crime syndicate that was based partially in Vietnam, that was suspected of importing drugs into Australia, your criminal activities were discovered.

Charge 1

4On 20 June 2016 you, Le, contacted an undercover police operative and advised that you had a gift from Vietnam and arranged to meet him the next day at the KFC in Footscray.  The undercover operative activated a listening device when you met up. You put a bag in the boot of his car and confirmed with him that there was $100,000 cash in the bag.  The cash was subsequently counted and it was confirmed to be that amount.  It is not suggested you were aware that the syndicate was importing drugs into Australia.

5As a result of this contact investigators obtained warrants to intercept both your phones.  Communications revealed that you, Nguyen, were regularly delivering large sums of cash to different people or depositing funds into bank accounts in and around Melbourne, on instructions from people in Vietnam, including your mother. 

6Those involved in Vietnam would receive money in that country and for a fee the equivalent amount of money would be delivered to an individual in Australia in local currency.  Your role Nguyen was to deliver the Australian currency and you enlisted associates to help you, including Thuan Hun, and gave them instructions where to deposit bundles of cash at different banks.  Usually in sums between $5,000 and $7,500.

Charge 2

Those communications also revealed that on 1 September 2016, you Nguyen and Hun, travelled to Sydney to get some cash.  You organised and paid for the flights and the return train tickets.  You had told Le that you would come to Broadmeadows train station once you arrived back in Melbourne.  Police were at that station when you arrived.  Hun had a locked suitcase with him and you both denied that you had a key.  Inside was a large amount of cash separated into two plastic bags, with cash of $284,250, and $248,140, a total of $496,390.  You denied that you knew anything about the money or the bag.  I was informed that Hun has been charged in relation to this offence and will stand trial for it at a later date. 

Charge 3

7On the day you were arrested, police searched the apartment that you were sharing together in Maribyrnong and located the following; $620,580 in cash in a bag in the cupboard of the bedroom, $67,000 in cash in a safe in the same wardrobe.  Thus a total of $687,580 cash was located in the apartment.  Other items located by police in the apartment that evidence dealing in large sums of cash were two electronic cash counting machines and a device used to detect counterfeit notes.

8Additionally, a notebook was located which incorporated a handwritten table book containing names, dates and figures.  You, Nguyen, told the police the apartment was rented under your name and that you did not know how the money had got there.  You, Le, attended at the police station on 30 November 2016 and were charged with this offence.  You gave a no comment interview.

Charge 4

9Police also searched your car, Nguyen, and located 76 banking deposit receipts.  The receipts recorded cash deposits made into multiple bank accounts at multiple banking institutions, with the majority being deposits between 5,000 and 7,500.  When your phone, Nguyen, was analysed it contained details of multiple bank accounts. 

10Bank statements for relevant accounts were subsequently obtained by police.  A comparison of the recording of unusual cash deposits in those bank statements and the handwritten table contained in the notebook, revealed that the notebook recorded relevant details of the accounts.  For example, there were four cash deposit receipts into the one bank account on 14 July 2016, at four different branches of the same bank.  Each of the amounts was between 6,500 and 7,100, amounting to a total of $35,000.  The account holder was Sandra Suan Chan and the corresponding entry in the notebook included that name and the amount.  Other examples are also set out in the prosecution opening.

11You, Nguyen, deposited the cash or had an associate do so in amounts less than $10,000, in order to avoid the legislative reporting requirements and to avoid any scrutiny of the transactions.  In total, there were 281 separate cash deposits into 27 bank accounts belonging to 22 different people.  On 56 days between 15 March 2016 and 31 August 2016.  The total amount of these cash deposits was $1,742,575.   The details of the cash deposited are set out in a table identified as Table A in the prosecution opening. 

12As to Charge 5, on 6 July 2016 you, Nguyen, organised the hand delivery of $30,000 in cash to a client.  After some discussion as to how the money would be delivered you arranged for it to be delivered to him by that afternoon.  On 15 August 2017, an unexplained wealth restraining order was placed over the $1,183,970 in cash seized by police from the suitcase and from the apartment.  That is the total in respect of Charges 2 and 3.  The cash was forfeited to the State in February 2018. 

13The funds that were involved in both of your offending was significant.  Neither of you were involved on just one isolated occasion, though your involvement, Nguyen, was greater.  It was submitted that there was not a significant financial benefit to either of you and that your offending had not caused loss to anyone.  Between April and July 2016, $309,280 was deposited into your account, Nguyen, though that money was quickly transferred to other accounts. 

14There was other evidence that you were in need of funds.  However, there was evidence that you, Nguyen, had been provided significant funds for the purchase of a car, and it was apparent that you were providing some financial support for Le.  I accept that there was no evidence of significant or great financial betterment in relation to both of you.  And even accepting you were both employed, you were able to lead comfortable lives at the relevant time. 

15The role played by you, Nguyen, was of importance.  It is accepted that you were acting under the directions of others, including your mother.  You assisted in facilitating the movement of funds from individuals in Vietnam to identified recipients in Australia and enlisted others to assist you.  Although you were a low level player, you were integral to the elicit business of others.  Your offending, Nguyen, was over a significant period of time, over five and half month period and was a course of conduct. 

16Particularly, in respect of Charge 4, there were a significant amount of transactions and you enlisted the help of others to spread the depositing of the funds.  You maintained records in respect of the transactions.  Your conduct was described as repetitive, protracted and persistent.  The aggregate amount of money with this charge was a considerable sum. 

17In relation to the other offending, Charge 3, involved an amount of funds significantly more than the threshold, as did that in respect of Charges 2 and 5, though to a lesser extent.

The character, antecedent's age, means, and physical or mental condition of the offender, s.16A(2)(m),

18As to your personal circumstances Mr Le, I received a report from Carla Lechner, clinical psychologist dated 29 March 2018, Exhibit 2, and some personal references, Exhibit 1, and I take that material into account. 

19You were born on 22 September 1987, and are currently aged 30.  You are an Australian citizen and came to this country in 1992 with your family.  Your parents and five siblings all live in Australia.  I was informed that you and your family have successfully integrated into Australian life.  You grew up in Ballarat and Shepparton where you completed Year 12 at Notre Dame Secondary College.  You have no tertiary qualifications but have been gainfully and consistently employed since leaving school.

20You have worked in a variety of jobs, most recently at Toyota where you worked for four years until its recent closure.  An injury to your knuckle has affected your ability to obtain work currently, though I was informed you were waiting to hear what would happen in these proceedings before you pursued employment options.  You are married to Nguyen and have known her since 2011.  She is due to give birth to your first child, a boy, on 3 June 2018. 

21You had no symptoms of an underlying psychological or psychiatric disorder.  In the opinion of Ms Lechner, formal testing revealed you to be of average ability with longstanding and chronically low self-esteem and that you are introverted by nature.  I accept you are of prior good character and have been a valuable member of the community as expressed in the material tendered on your behalf.  You have no history of alcohol, substance abuse or other anti-social characteristics. 

22Given your background, it is difficult to understand how it was that you became involved in this offending.  It would appear that you were motivated out of loyalty to your wife.  I note the concession of the Crown that you were not aware that the funds, the subject of your charges, were linked to a drug importation syndicate. 

23Your counsel submitted that any term of imprisonment would be more burdensome for you, given that you will be in custody when your first child is born and the immigration of your wife is uncertain.  These features, it was submitted, along with your personality traits including a lack of assertiveness make you more vulnerable in the prison environment.  I accept that submission and take it into account.

24As to your personal circumstances, Ms Nguyen, I was provided with a report from Patrick Newton, clinical and forensic psychologist, dated 2 April 2018, Exhibit 1A.  He also gave evidence on your behalf.  I was provided with personal references, Exhibit 2A and I take all of that material into account.

25You were born on 4 December 1994, and are currently aged 23.  You are a Vietnamese citizen having been born in Ho Chi Minh City and arrived in Australia in mid-2011 on a student visa.  You were 22 at the time of this offending.  You are still a relatively young age, and I take your age into account. 

26You were one of five children and have been in a relationship with Le since 2011.  You completed schooling in Vietnam from primary school until 2011.  Then arranged to complete your education in Australia, enrolling at Braybrook College using funds provided by your family.  In July 2011, you commenced English language classes.  Between 2011 and 2012, you worked as a waitress at a restaurant in Footscray and met Le.

27You completed Year 11 and 12, then between 2013 and 15, sold items on Facebook as a means of supplementing the money you had received from your family for living expenses.  In 2014, you commenced a Bachelor of Accounting at RMIT and had one subject left to complete your degree.  Your career aspirations are likely to be significantly affected by this offending. 

28Between 2016 and November 2017, you worked at Donut King in High Point, though you were asked to leave in November 2017.  You are currently approximately 30 weeks pregnant and are due to give birth on 3 June 2018.  You are currently experiencing sleeping difficulties and anxiety regarding the consequences of this matter but given your condition, you have limited options for medication. 

29Your motivation for this offending appears to stem from loyalty to your family in Vietnam.  Mr Newton was of the view that given your traditional cultural background, you have been a dutiful daughter, who lacked assertiveness skills and consequently had difficulty articulating your own needs and feelings, willing to do as requested by others.  Mr Newton, has diagnosed you with an adjustment disorder with depressed mood, presenting with symptoms of reactive depression. 

30The impact of this offending and the annihilation you now suffer from your family, has contributed to your mental wellbeing.  Your counsel submitted that your mental health was such that general deterrence ought to be moderated, that is, that Verdins applied.  The prosecution disputed that there was any evidence that at the time of this offending, that your mental condition was such as to be linked or casually connected to your offending as required by the authorities.  I accept that submission.

31That is not to say that your level of functioning is not relevant, as it explains your preparedness to do as requested by your mother and your lack of ability to challenge her requests.  Your current presentation and anxious state is consistent with that described in the bundle of character references that were tendered.  I accept and it was not disputed by the prosecution, that given your state of heightened anxiety, it is one of the factors I should consider in determining that you are likely to find prison more burdensome than other prisoners.

32I accept that there are other features of your personal circumstances that will make your term of imprisonment more burdensome.  As indicated, you are in Australia on a student visa, there is a prospect your visa will be cancelled and that you will be unable to remain in this country when you are released from custody.  You have been in Australia for approximately six years.  You have established yourself with your husband and your child will be born here.  Your family and your mother do not want you to live with them in Vietnam.  The prospect of deportation adds to the burden of your imprisonment.

33Further, the stress and social isolation of imprisonment is likely to create a serious risk of deterioration to your mental state, particularly in circumstances at the birth of your first child, due only in a matter of weeks and the likely uncertainty as to whether the child will be able to remain your care.  See the evidence of Mr Newton.  I take each of these matters into account.

Plea of guilty, remorse, contrition, s.16A(2)(f) and (g)

34You have both pleaded guilty to these matters at the first opportunity.  I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit, particularly considering the nature of the charges against you.  A trial of some complexity would have been required.  There as a significant amount of depositional material as well as bank records.  Any proceeding would have taken a significant amount of court time and resources.

35In respect of you, Le, I accept that your plea is also indicative of remorse.  As noted by Ms Lechner, you express deep shame in relation to your offending.  I was informed you have not told your parents about this offending, though your brothers who were in court to support you, were aware of the details.  Your remorse is also evident from the content of the references tendered on your behalf.

36You, Nguyen, clearly regret your involvement in the offending and you have taken steps to understand and address your sense of familial obligation that lead to your offending.  Particularly, since your family are not supportive of you living with them in Vietnam.  As noted by Mr Newton, you feel overwhelmed by your current situation and are deeply ashamed of your conduct.  It was apparent to me on your presentation in court, that is in respect of both of you, that you are both remorseful for being involved, for your conduct.

The degree to which a person has cooperated with law enforcement agencies in the investigation of the offence or other offences, s.16A(2)(h)

37You, Nguyen, cooperated with authorities regarding the confiscation of the $496,390 and the $687,580, respectively, which was seized by police and forfeited to the State on 15 February.  You provided a declaration that the money in your possession belonged to your mother.  Your house in Maidstone is currently restrained and you have consented to forfeiture of that property with an estimated worth of approximately $800,000.  I am required to have regard to the forfeiture of the property. 

Rehabilitation prospects, s.16A(2)(n)

38It was conceded by the prosecution that you both have good rehabilitation prospects.  There are some features that apply to both of you that augur well for your rehabilitation.  You both have no prior convictions and were previously of good character.  You both have been gainfully employed.  You, Le, on a full time basis, and you, Nguyen, part time up until the early stages of your pregnancy.  You are both expecting your first child and you are both part of a supportive community with friends and with you, Le, additionally your family.  Hopefully, you will have a future together with your young family and you can go on to lead law abiding lives. 

Specific and general deterrence, s.16A(2)(j) and (j)(a)

39Given your good rehabilitation prospects, specific deterrence has less relevance to each of your individual sentences.  Your offending was at the lower end of the structure set out in s.400 of the Code because of the value or amount involved and your lack of knowledge regarding the source of the funds.  You ought to be sentenced on the basis that you held a reasonable suspicion that the money was proceeds of crime, not on the basis that it either of you knew or believed that to be the case. 

40It was however, serious offending particularly in your case, Nguyen, because of the features of your offending previously referred to, including the period involved and the significant amount of funds.  General deterrence is an important consideration.  Others should be discouraged from becoming involved in such activities usually connected to organised crime.  Similarly, those who engage in conduct designed to thwart a scheme, devised to ensure activities relating to significant amounts of funds are detected by authorities, should be aware that if caught they will punished. 

41I was provided with a table of comparable cases from both the prosecution and defence, however, they are of limited assistance.  The circumstances of this kind of offending vary, particularly in relation to the amounts involved and the nature of the offending as well as each individual circumstances. 

42As dictated by the Code, the court must impose a sentence that is of the severity appropriate in all the circumstances.  The court must not impose a sentence of imprisonment unless it is satisfied there is no other sentence that is appropriate in all the circumstances of the case. 

43Both of your counsel conceded that a term of imprisonment was warranted and you were both remanded on the day of the plea.  Your counsel, Nguyen, submitted I should impose a period of imprisonment and a recognisance release order.  Further, that I ought to impose significant concurrency given the offending occurred in discreet period, and was in effect, one course of conduct. 

44Your counsel, Le, submitted that I should impose a straight sentence or a term of imprisonment with recognisance release order.  I was referred to the various sentences options which the prosecution submitted were open to me.  See paragraphs 54, 55 and 56 of the Crown's submissions.  The legislative scheme for this kind of offending is clearly to discourage people becoming involved in the movement of and/or covering up or hiding from authorities the proceeds or benefits from elicit activities.  Without people being prepared to play this kind of role, the discovery of these funds and thus the criminal activities associated with them, would be easier for authorities to detect.  Just punishment, community denunciation and general deterrence are all important sentencing considerations that must be balanced with personal features and those matters in mitigation outlined in these reasons.

45Could you please stand up Mr Le and Ms Nguyen.  In respect of you, Mr Le, in relation to Charge 1, you are convicted and sentenced to a term of imprisonment of one month.  In respect of Charge 3, you are convicted and sentenced to a term of imprisonment of 12 months.  That sentence is wholly concurrent and will commence today.  As a consequence of the concurrency proposed in respect of your sentence, the total effective sentence is 12 months.

46I am required to consider the making of recognisance release order given that total effective sentence.  It is my intention that you be required to serve six months of that sentence.  That is you will be released after serving a period of six months upon giving security in the sum of $1000 to be of good behaviour for a period of two years.  You must not during that period of two years commit any further breach of the law. 

47If that occurs, you will be in breach of the terms of the recognisance and should expect to be bought before the court in order to serve the whole of the sentence that I have just imposed. 

48The purpose of making this order is to give you the opportunity not to serve the whole of the term of imprisonment in gaol and to give you the chance to continue to work and make a valuable contribution to society. 

49In respect of you, Ms Nguyen, in relation to Charge 2, you are convicted and sentenced to a term of imprisonment of 6 months.  In respect of Charge 3, you are convicted and sentenced to a term of imprisonment of 12 months.  In respect of Charge 4, you are convicted and sentenced to a term of imprisonment of 2 years.  In respect of Charge 5, you are convicted and sentenced to a term of two months. 

50The sentence imposed in respect of Charge 4, will commence today.  The sentences imposed in respect of Charges 2, 3 and 5, will commence six months prior to the end of the sentence imposed on Charge 4.  As a consequence of the concurrency proposed in respect of your sentence, the total effective sentence is 30 months.  I am required to consider the making of a recognisance release order, given that total effective sentence.

51It is my intention that you be required to serve 15 months of that sentence that is you will be released after serving a period of 15 months upon giving security in the sum of $1,000 to be of good behaviour for a period of two years.  You must not during the period of two years commit any further breach of the law.  If that occurs you will be in breach of the terms of the recognisance and should expect to be bought before the court in order to serve the whole of the sentence I have just imposed.  The purpose of making this order is to give you the opportunity not to serve the whole of the term in gaol and to give you the opportunity to make a valuable contribution to society.

52Pursuant to s.6AAA, if you had not pleaded guilty to these matters, Mr Le, I would have convicted and sentenced you to a term of imprisonment of 12 months.  Pursuant so s.6AAA, Ms Nguyen, if you had not pleaded guilty to these matters, I would have convicted and sentenced you to a term of imprisonment of four and half years, with 30 months to serve.  Sorry, Mr Le, in respect of that 12 months, that was a 12 month sentence with that amount to serve pursuant to s.6AAA.  Eighteen days, PSD, in respect of both Mr Le and Ms Nguyen. 

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