Director of Public Prosecutions v Leung
[2023] ACTSC 15
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Leung |
Citation: | [2023] ACTSC 15 |
Hearing Date: | 2 February 2023 |
DecisionDate: | 2 February 2023 |
Before: | Berman AJ |
Decision: | (1) Wing Hei Leung is convicted of general dishonesty and sentenced to imprisonment to 9 months imprisonment to commence today, 2 February 2023, and expire 1 November 2023. This is suspended and served by means of an intensive correction order containing the core conditions. (2) Wing Hei Leung is convicted of dealing with the proceeds of crime and sentenced to 6 months imprisonment to commence on 2 August 2023 and expire on 1 February 2024. This is suspended and served by means of an intensive correction order containing the core conditions. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – general dishonesty – dealing with the proceeds of crime – intensive correction orders |
Legislation Cited: | Criminal Code Act 1995 (Cth) s 400.9(1) Criminal Code 2002 (ACT) s 333(7) |
Cases Cited: | R v De Simoni (1981) 147 CLR 383 |
Parties: | Director of Public Prosecutions ( DPP) Wing Hei Leung ( Offender) |
Representation: | Counsel T Hickey ( DPP) K Musgrove ( Offender) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law ( Offender) | |
File Number: | SCC 178 of 2022 |
Berman AJ:
Those high up in a criminal enterprise often need lower-level criminal assistance: for example, drug importers need couriers and wholesales who, in turn, need street level dealers, and those who deal in crimes which produce substantial sums of cash often need someone to take care of that money. These criminal assistants, as I describe them, often have no criminal history.
Those higher up choose people with no criminal history in order to reduce the chances that their criminal activities will be detected. It is for this reason that even people like the present offender, Mr Leung, who have no criminal history and are of otherwise good character must nevertheless have sentences imposed upon them which reflect a substantial component of general deterrence. If the high-level criminals cannot get anyone to do their dirty work, the community benefits.
Facts
In this case, police were investigating the activities of two people. As part of their investigations into these persons, they went to the home of Mr Leung. They had been led there because they discovered a link, or a possible link, between one of the individuals and the offender. They went to his home one evening. He was there, as were his wife, his parents-in-law and his children.
Police discovered, in the bedroom, a wardrobe which contained several shopping bags. Each shopping bag contained vacuum-sealed bags of cash. They discovered other things as well, but the most important thing they discovered was the cash. When they counted it, they found there to be $153,600 in Australian currency.
The offender has pleaded guilty to an offence of dealing with the proceeds of crime, a Commonwealth offence under s 400.9(1) of the Criminal Code Act 1995 (Cth), with a maximum penalty of three years.
Police spoke to Mr Leung. They also made further investigations into the two other individuals. As part of the efforts of the one of the individuals to mislead the police, he had Mr Leung tell police that the money was the subject of a loan between him and another connected subject of police investigations. Mr Leung did this on a number of occasions and even went so far as to sign a purported loan document which had been produced by this third individual.
Mr Leung has pleaded guilty, in relation to that conduct, to an offence of general dishonesty, an offence of the Australian Capital Territory under s 333(7) of the Criminal Code 2002 (ACT), carrying a maximum penalty of five years' imprisonment.
Subjective circumstances
Mr Leung is a man of otherwise good character. He has no criminal history. He was born in Hong Kong and had, what he described to the author of the pre-sentence report, a “normal” upbringing. In 2002, he came to Canberra to study. His parents remain living in Hong Kong.
He has become something of a hardworking businessman. He ran a restaurant which fell into hard times during the COVID-19 pandemic and it appears to be the case that Mr Leung got involved in these offences in order to make some money because of the position that his restaurant was in, as well as having to provide financial support for a sister-in-law for cancer treatment during this time.
Mr Leung is married. He has two children and he has his parents-in-law living with him. He has no problems with gambling, drugs or alcohol. He appears to be a good family man, sharing his home with his parents-in-law and sending money back to his parents in Hong Kong, in addition to supporting his sister-in-law’s medical finances.
Consistent with his underlying character, he has expressed his remorse for his criminal behaviour. That remorse is evident not only from his pleas of guilty, but is also to be found in a letter he wrote to the Court and references tendered on his behalf. He has expressed his remorse to those referees.
The plea of guilty is not only evidence of remorse but also carries with it a utilitarian benefit. That plea came in the Magistrates Court and so the sentences I will ultimately important upon Mr Leung are 25 per cent less than they would otherwise have been.
Objective seriousness
An important part in determining what sentence to impose upon an offender is the criminality of his misconduct.
Let us start with the offence of dealing with the proceeds of crime. It is a significant amount of money to deal with: about $150,000. The Commonwealth has created a graduated series of offences and the offence to which Mr Leung pleaded guilty is committed if the money involved is more than $100,000 and less than one million dollars. Quite clearly, although $150,000 is, as I said, a significant amount of money it is towards, and very much so, the lower end of that range.
It is important also to recognise that I must not sentence Mr Leung on the basis that he positively knew that the money was the proceeds of crime. If I were to do so, I would breach the rule in R v De Simoni (1981) 147 CLR 383. I must bear in mind that Mr Leung is to be sentenced on the basis that he reasonably suspected the money to be the proceeds of crime. Given, however, the way the money was packaged, it would be a significant suspicion indeed.
Another way of assessing the criminality of that offence is to consider the number of transactions involved. In this case, there was evidence of only one. His misbehaviour, as far as this is concerned, is therefore isolated. As I have already mentioned, Mr Leung had a financial motive for doing what he did, but he was not trying to get money to do something illegal, he was trying to get some money to assist his business which was in trouble.
The Territory offence is a more serious one. Not only does it carry a higher maximum penalty, but Mr Leung’s criminality was more significant. His criminal acts, as far as this offence were concerned, were not isolated.
As I have mentioned, he told lies to police and even signed a document he knew to be false, all with the intention to deceive a public official. I emphasise, of course, that it is an element of the offence that Mr Leung intended to deceive a public official. I am not in any way suggesting that the offence is aggravated by that circumstance.
I do note that the document that he signed was created by others and he appears to have been led by others in doing what he did. Nevertheless, he was a willing part of the attempt to hide from police what was really going on.
Sentencing consideration
As noted when I began this judgment, general deterrence is of prime importance in cases of this kind, even if in the present case personal deterrence is of lesser importance because of Mr Leung’s very good prospects of rehabilitation.
Ms Musgrove, who appears for Mr Leung, concedes that a sentence of imprisonment must be imposed. Her written submissions suggested either a suspended sentence or an intensive correction order, but in oral submissions today she submitted that a suspended sentence was the appropriate outcome.
It has to be recognised that, whilst a suspended sentence of imprisonment is a significant sentence, it is not as harsh a sentence as an intensive corrections order. In my view, a suspended sentence would not achieve the appropriate level of general deterrence which offending of this kind, by a person of this nature, requires.
Both the prosecution and Ms Musgrove agree that there should be partial accumulation. The two offences, whilst related, involve separate acts of criminality.
I have decided that Mr Leung should be sentenced to imprisonment, but that sentence should be served by means of intensive correction orders.
Orders
I make the following orders:
(1)Wing Hei Leung is convicted of general dishonesty and sentenced to imprisonment to 9 months imprisonment to commence today, 2 February 2023, and expire 1 November 2023. This is suspended and served by means of an intensive correction order containing the core conditions.
Wing Hei Leung is convicted of dealing with the proceeds of crime and sentenced to 6 months imprisonment to commence on 2 August 2023 and expire on 1 February 2024. This is suspended and served by means of an intensive correction order containing the core conditions.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman Associate: Date: 13 February 2023 |
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Amendments
2 March 2023 Anonymise names of co-accused persons. Paragraphs: [3], [6]