Director of Public Prosecutions v Mendoza

[2014] VCC 418

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 1400106

DIRECTOR OF PUBLIC PROSECUTIONS

v

ONIX MENDOZA
GIOVANNI BENISI

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JUDGE:	HIS HONOUR JUDGE MEREDITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 March 2014
CASE MAY BE CITED AS:	DPP v Mendoza & Anor
MEDIUM NEUTRAL CITATION:	[2014] VCC 418

REASONS FOR SENTENCE
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Subject:

Catchwords:             Money laundering s 400.9(1) Crimes Act Cth; Entering country to commit offence

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Rountos
For Accused Mendoza	Mr L. Hartnett
For Accused Benisi	Mr. I. Hill

HIS HONOUR

1Onix Mendoza you have pleaded guilty to two charges of money laundering, that is dealing with money, and it being reasonable to suspect that the money was the proceeds of crime.  Your crimes occurred variously on 19 October and 27 October 2013.

2Giovanni Benisi you have pleaded guilty of one charge of money laundering also.  You are jointly charged with Mr Mendoza for the offence committed on 27 October 2013. 

3The maximum penalty for the offence to which you have both pleaded guilty is three years imprisonment and a substantial financial penalty.  This is pursuant to s.400.9(1) of the Commonwealth Criminal Code.

4Tendered on your plea, and marked as Exhibit A, is a document entitled 'Agreed Facts for Plea Hearing'.  These facts are agreed and form the basis on which I sentence you.  This document will remain on the court file and is available for examination.  Accordingly I need only to briefly refer to the circumstances of your offending.

5Onix Mendoza, you arrived in Australia on 25 August 2013, flying from the United States of America to Sydney.  You arrived on a three month tourist visa.

6Giovani Benisi, you arrived in Australia 25 October 2013.  You arrived in Melbourne from the United States.  You were the holder of a tourist visa of approximately three months duration.

7So far as Charge 1 is concerned, monitored telephone conversations indicate a meeting being set up between you, Mr Mendoza, and another person, Singh.  Singh is awaiting a committal hearing on these charges and has not, as yet, been dealt with.  Australian Federal Police observed Singh driving a vehicle which he parked in the vicinity of the Ringwood Square Shopping Centre precinct.  You were observed as a passenger in a black Lexus motor vehicle parked on Barkly Street in Ringwood.

8Later surveillance observed the vehicle driven by Singh to park behind the black Lexus of which you were a passenger.  You were then observed to approach Singh's vehicle to show Singh a five dollar note, one with a particular serial number ending in the digits 987, and you were then observed returning to the black Lexus and removing a small dark coloured bag which you then placed inside Singh's vehicle.  You then returned to your vehicle.

9Singh's vehicle was intercepted by police a short time thereafter, and amongst other items $AUD500,100 were located.  This forms the factual basis of Charge 1, to which you have pleaded guilty.

10So far as Charge 2 is concerned, on 27 October 2013, surveillance observed you as a front seat passenger in a gold Lexus vehicle driven by a female.  This vehicle was observed to park in Collins Street, Melbourne, and you were observed to exit the front passenger seat carrying an orange and grey coloured backpack.

11You were then observed to meet with your co-offender, Mr Benisi, in the vicinity of Collins Street and Manchester Lane, and you were both then observed walking off together.  You were seen to hand the orange and grey coloured backpack to Mr Benisi, and the two of you then went your separate ways.  Mr Benisi was intercepted and searched and, amongst other things, the orange and grey coloured backpack was found to contain currency totalling $AUD509,450.  A number of items were seized from you, Mr Mendoza, when you were arrested and searched, as was the gold Lexus, at around the time Mr Benisi was intercepted. 

12

Found on one of the telephones related to you, Mr Mendoza, was a photo of an Australian five dollar bill which had the same serial number as that which was used in your transaction with Singh.  On another telephone associated with you, Mr Mendoza, were details consistent with your earlier meeting with Singh representing the conduct of Charge 1.  In a phone referable to you,

Mr Benisi, it was established that a message had been sent on 12 October 2013 to a phone used by you, Mr Mendoza, as well as other text messages having been sent to a phone related to you, Mr Mendoza.

13Upon your arrest, both of you were interviewed.  You, Mr Mendoza, amongst other things, said that you came to Australia because it was a beautiful country and you were doing a bit of travelling, going places such as the beach, pubs, restaurants and bars.  When you were asked to describe who you had been in contact with since your arrival in Australia six or so weeks ago, you stated "People, I don't know exactly".

14

In relation to your time in Melbourne, you stated that you arrived in Melbourne three weeks ago but you were not sure.  You said you had a friend in Melbourne named John, who wanted help with his farm.  However you did not end up helping John with his farm.  You said that you did not know where John lived and did not have John's contact details, although you would usually call John.  You said you spent most of your time with John, and that John drove a gold Lexus, and that you were in John's car today, being

27 October 2013, the day of Charge 2, with John's wife.  You said that prior to your arrest you had just been walking around and shopping.  You stated in summary, that your reason for flying to Melbourne from Sydney was to go fishing with John.

15When asked questions relating to circumstances relating to the commission of Charge 2, you, as is your entitlement, refused to make any comment.  You denied being involved in any offending in relation to Charge 1, and said you could not recall being in Ringwood at the relevant time on 17 October 2013.

16

You, Mr Benisi, were similarly interviewed on the day of your arrest,

27 October 2013.  You admitted you had a backpack in your possession when you were arrested, which contained money.  You said the backpack was not yours and that you did not know who owned it.  You said a person you did not know gave you the backpack in the middle of the road in the city.  When asked why you had been given the backpack, you stated you were advised not to answer this question.  You stated you did not know how much money was contained in the bag, and did not know where the money came from, and that it was not yours.

17You said you were taking the money to the bank, you did not know which bank, and you were going to see which bank would accept it in the morning.  You said you arrived in Australia a couple of days prior to the commission of Charge 2 and that the purpose of your trip was to be an investment in money.  You further stated that you were going to leave the country shortly.

18It was accepted on behalf of both of you, that the purpose of your visit to Australia was to involve yourselves in the offending to which you have pleaded guilty.  You, Mr Mendoza, told Warren Simmons, psychologist, that your expenses for your trip to Australia were paid, and you were to be paid a further amount of $10,000.  You denied that you had received any of these funds to date.  You, Mr Benisi, told Ms Warren, psychologist, that you had an expectation of being paid four per cent of the quantum involved in Charge 2, or about $25,000 as a result of your involvement.

19In respect of each of you, your culpability is marked by the quantum involved in your respective offending, your attendance in Australia to participate in it, and the extent to which it reflects a degree of sophistication and planning.

20You, Onix Mendoza are now 28 years of age.  You have no prior convictions, you are the oldest of two children born to parents of Mexican extraction.  You were born and grew up in, generally, poorer areas of California around other impoverished immigrants.  You lived with your maternal grandparents until the age of six, and began living independently from your family after a falling out with your maternal grandparents over money.

21After the breakdown of this relationship, the attitude of the rest of your mother's family changed towards you, and as a result you described your family as more isolated.  For most of your early life, despite the best efforts of your parents, your family struggled financially and often sought assistance from welfare organisations.

22Despite your difficulties and lack of support from your parents because of their limited English and work commitments, you completed the equivalent of Year 11 at High School.  You had a number of difficulties with your school attendance, involving racial taunting and being involved in a number of fights.

23Upon your leaving school, you lived with a friend for a while and commenced working at your cousin's construction company at the age of 18 as a labourer.  Following this you held various warehouse jobs and lived with your grandmother for a year, whilst you were working at a petrol station.

24At the age of 21 you settled into a pattern of working with your cousin's construction company which involved you travelling to North Dakota to build houses for native Americans.  This occupied you from March until November, where you would then return to California, where you would work in a factory or a warehouse.  You indicated that the money from the employment with your cousin was acceptable, being about $25 per hour, however your warehouse employment earned you the minimum wage of on $6.00 per hour.

25At the age of 25 you commenced a relationship with a Ms Marr, which lasted for three years.  The relationship ended when she enlisted in the military.  When you arrived in Australia you met a woman, Tina Consem, and you speak positively of her.  She has continued to visit whilst you have been in custody.  You told Mr Simmons, psychologist, that you involved yourself in your offending because you would be paid a significant amount of money, at least $10,000, and you believed this would go a long way towards helping your mother obtain an operation which she needs.

26To this end, a number of medical reports were tendered which relate to your mother.  I have had regard to these, and they demonstrate that your mother has a number of medical issues, and also make reference to the fact that she was unable to afford, at times, necessary medication.

27I was told on the plea that your time in custody has been difficult for you.  It was said that you were moved around to a variety of different police cells as a result of the present situation of prisoner overcrowding.  I accept that these conditions are less than optimal.

28You reported to Mr Simmons, psychologist, that you have difficulty sleeping, that you ruminate about your family, from whom you are separated, that you wake during the night, and at times are tearful.  You report generally to feeling sad.  Mr Simmons opines:

"There was clear evidence of a depressive disorder at the present time, although this was felt to be in the mild to moderate range, and almost certainly reactive to Mr Mendoza being incarcerated.  Whilst he has some phone contact with his parents, he is essentially isolated, and his only visitor is his girlfriend of a few months, which while helpful, is not as strong as the bonds with his family.  Furthermore, it would appear that Mr Mendoza does not really fit into the prison environment and feels quite isolated from others.".

29Consistent with authorities such as Nguyen v The Queen, 2010, VSCA 127, [26] and Khoja v The Queen, 2014, VSCA 9, to the extent that your depressive symptoms appear reactive to your present legal predicament, I accord them little weight.  To the extent, however, that these symptoms and this condition mean that a given sentence will weigh more heavily upon you than it would upon a person not suffering from these symptoms or condition, I give them their full weight.

30Giovanni Benisi, you are now 50 years of age  You have no prior convictions.  You were born in Asti, Italy, and are the oldest of five children.  You come from a background of financial difficulty, and at 12 years of age, you began working for a hairdresser in order to support yourself, and also assist your family with their expenses.

31Your were educated until you attained about 18 years of age, and then commenced work, as you felt it important to assist your family financially and to assist with your younger siblings remaining in school. 

32You have had a mixture of differing occupations, initially obtaining work in the insurance industry, subsequently spending a year in the army, and then working as a real estate broker, and ultimately involving yourself in the trading of gold and diamonds.

33At 22 years of age you met your first wife and emigrated to Switzerland with her, where you married and remained in a relationship for the following six years.  During this time, in 1986, a son was born.  When you were 38 years of age, you married a Romanian woman, and have two daughters from that relationship, one aged 12 and the other aged three.  Your present wife and two daughters are dependent upon you for their financial survival, and you have been advised that they are finding it financially difficult.  I accept that you are distressed as a result of this, and you take seriously your wife's threats to end your marriage.  I also accept that your broader family are also displeased with your conduct.

34You are currently on medication for cardio-vascular issues as well as an ulcer, and I accept that given your age, your broken English, and your health issues, you find your period in custody difficult.  Pamela Matthews, psychologist, opines:

"There are no mental state issues which have contributed to Mr Benisi's offending, however he is currently presenting as moderately depressed, reactive to his situation, and significantly distressed by the current circumstances.".

35To the extent that your moderate depression is reactive to your present situation, I accord it little weight, in keeping with the authorities I have already referred to, namely Nguyen and Khoja.  To the extent, however, that this condition and its symptomology make the sentence which I must impose on you weigh more heavily than that of an offender in normal health, I do accord your condition and symptomology full weight.

36There was no dispute on the plea, that once the period which I am going to set by way of recognizance release order has expired, you will both be deported to you respective countries.  There was no endeavour on the part of you, Mr Benisi, to argue that this occasioned you any hardship; rather it was stated that, given the difficulties which you experience in custody, you want to return to your home country as quickly as possible.

37So far as you, Mr Mendoza, are concerned, it was suggested that if you had the opportunity you would have liked to remain in Australia.  However, no concrete steps had been put in place by you prior to the commission of your offending to enable such an event to occur.  Accordingly, it is no more than speculation to suggest that the process of deportation occasions any hardship to you.

38Part 10(2) of the Criminal Code Commonwealth, sets out a raft of differing offences relating to money laundering.  The respective culpability of these offences is determined by the quantum of funds involved, and the state of mind held by the offender at the time at which they commit their offence.  Suffice to say, that the offence with which you have both been charged under s.400.9(1), falls toward the lower end of the range of the money laundering offences.  It has a maximum term of imprisonment of three years only, in contrast with some of the other offences dealt with under Part 10(2), which have maximum terms of imprisonment of up to 25 years.

39On the plea, I was assisted by the authorities and submissions made by various counsel, and I have had regard to the authorities to which I have been directed.  Section 16A(2) of the Commonwealth Crimes Act obliges me in sentencing you, to take into account the matters referred to within that section, as are relevant known to the court.  I have done this.

40Pursuant to s.16A of the Commonwealth Crimes Act, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence.  Section 16A accommodates the application of common law principles of sentencing.  While general deterrence is not specifically listed in s.16A(2), it is a matter to be accorded weight, given the nature of your offending.  Pursuant to s.16A(1)(g) I am required to take into account the fact that you both have pleaded guilty at early stages, and I indicate that I accept that your guilty pleas indicate a degree of remorse, and have significantly facilitated the course of justice.

41

Onix Mendoza, on Charge 1, I sentence you to 12 months imprisonment to commence this day.  On Charge 2, I sentence you, Onix Mendoza, to

12 months imprisonment to commence two months after the imposition of the sentence on Charge 1.  This makes a total effective sentence of 14 months.

42Giovanni Benisi, on Charge 2, I sentence you to 12 month's imprisonment, to commence from today's date.

43In both of your cases I declare that you have served 146 days of pre-sentence detention, and I would ask the parties to check that for me please.

44In your case, Mr Mendoza, I order that you serve a period of eight months imprisonment before being released on recognizance in the sum of $1,000 to be of good behaviour for the period of two years.

45In your case, Mr Benisi, I order you serve a period of six months imprisonment before being released on recognizance in the sum of $1,000 to be of good behaviour for the period of two years.

46Notwithstanding your imminent deportations, I am required to explain the purpose and consequences of making the recognizance release orders that I have just made.  They are to reflect the gravity of your respective offending, but to also take into account the mitigating factors to which I have referred.  You will serve the respective periods prior to your release on recognizance in prison.

47If you are in good behaviour over the following two year period, that will be an end to the sentencing process, so far as this court is concerned.  If you are not of good behaviour, in all likelihood you will be brought back before this court, and depending upon the nature and seriousness of your transgression, the court may either take no action, impose a fine, extend the period of your good behaviour or impose a different penalty, or revoke the recognizance release order and send you back to prison for the balance of your sentence.

48But for your plea of guilty, Mr Mendoza, I would have sentenced you to a total sentence of 20 months imprisonment and fixed a recognizance release order after the expiration of 14 months.

49But for your plea of guilty, Mr Benisi, I would have sentenced you to a sentence of 17 months imprisonment and fixed a recognizance release order after the expiration of 11 months.

50Now are there any other orders required?  And the recognizance release orders will have to be completed.  What I think I will do is just stand down  Please have a think about the numbers and so on.  I am fairly confident that they're all correct, but if there's a difficulty let me know and I will amend it under the slip rule when I come back.

51MS ROUNTOS:  Your Honour that 146 days, that includes today's date.

52HIS HONOUR:  Okay it is not meant to include today's is it?

53MS ROUNTOS.  That was my calculation, 142 as of Monday, including the Monday.

54HIS HONOUR:  I do not think it includes the day that the sentence is imposed.  So it should be 145.

55MS ROUNTOS:  Yes Your Honour.

56MR HARTNETT:  Yes Your Honour.

57MS ROUNTOS:  Your Honour I can prepare those orders now.

58HIS HONOUR:  Thanks.  Okay, if you do that, and Mr Hartnett, on my calculations, the fact that I have made the sentence of 12 months on Charge 2 ‑ ‑ ‑

59MR HARTNETT:  Yes Your Honour.

60HIS HONOUR:  ‑ ‑ ‑ commenced two months from today's date ‑ ‑ ‑ -

61MR HARTNETT:  Yes Your Honour.

62HIS HONOUR:  - - --will not impact on the period I have fixed for his recognizance release. 

63MR HARTNETT:  Yes Your Honour.

64HIS HONOUR:  So, in other words, once he has done that period, he will be entitled to be released.

65MR HARTNETT:  Yes Your Honour.

66HIS HONOUR:  Because the other sentence will have already commenced by that time.

67MR HARTNETT:  Yes Your Honour.

68HIS HONOUR:  Okay.  All right well I will stand down.

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