Director of Public Prosecutions v Metsaranta

[2015] VCC 899

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01239

THE QUEEN

v

LAURI HEIKKI ILMARI METSAERANTA

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2015
DATE OF SENTENCE:	19 June 2015
CASE MAY BE CITED AS:	DPP v Metsaranta
MEDIUM NEUTRAL CITATION:	[2015] VCC 899

REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Dealing with money, being $100,000 or more, which is reasonably suspected of being the proceeds of crime contrary to subsection 400.9(1) of the Criminal Code (Cth).
Sentence: Thirteen months imprisonment with release after five months upon entering into recognisance in the sum of $3000. 160 days of pre-sentence detention declared as time served.               

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Mandy	CDPP
For the Accused	Mr S. Anger	Michael Gleeson and Associates

HER HONOUR:

1Lauri Metsaeranta; you have pleaded guilty to one charge of dealing with money being $100,000 or more which is reasonably suspected of being proceeds of crime, contrary to s.400.9(1) of the Commonwealth Criminal Code.  The maximum penalty for this offence is three years' imprisonment and/or a fine of up to $30,600.

2The charge relates to your activities in Melbourne on 1 February 2014 with your partner, Xianjeng Carmen Chen - who I will refer to as Chen - and another person, Chu Wah Wong, who I will refer to as Wong.

3The circumstances of your offending are outlined in the summary of prosecution opening, which was tendered as Exhibit 1 on the plea.  I propose, briefly, to summarise those circumstances.

4On 30 January 2014 Wong arrived in Australia from Hong Kong.  His luggage was searched and found to contain a currency counting machine and three mobile telephones.  The next day telephone intercept warrants were obtained for the mobile telephone numbers used by Wong, in which there were discussions concerning "stuff" which Wong had brought with him, and the need for a small suitcase to be provided to Wong so that the "stuff" could be put in it.

5On 1 February 2014 you and your partner, Chen - both Finnish citizens travelling on Finnish passports - arrived in Australia from Singapore.  Prior to checking in at the Grand Hyatt in Collins Street, a telephone conversation between Wong, Chen and yourself was intercepted, in which Chen says she can come over immediately and sort things out, asks Wong where he is staying, and you attempt to assist by asking Wong how to spell the Mantra hotel.  You and Chen then checked into your room at the Hyatt, emptied your two suitcases and left the hotel with your empty suitcases.

6At around 10 am you went to Room 502 at the Mantra hotel, where Wong was staying.  Less than half an hour later you and Chen left the hotel in a taxi with the two suitcases.  A short time later the taxi was intercepted on Batman Avenue by members of the Australian Crime Commission (ACC).  The suitcases were searched and a large quantity of Australian currency was located.  An HTC mobile phone was seized from Chen.  You and Chen were arrested and conveyed to the Australian Federal Police (AFP) Melbourne office.  A short time later Wong checked out of the Mantra hotel, and a short time after that he was arrested by members of the ACC in Southbank Boulevard and conveyed to the AFP Melbourne office.

7On 1 February 2014 you participated in an interview with investigating officers, which was recorded.  You stated that you never asked your wife what you were going to collect at the Mantra hotel, that you were a bit shocked by seeing so much money, and denied knowing where the money came from.  More specifically, you stated that you have been a pilot for Finnair for the past 12 years, and came to Australia for a sort of honeymoon with your wife, Chen.

8When you checked into the Grant Hyatt your wife received, and then made, a call in Chinese.  Chen told you that you had to pick some stuff up from the Mantra hotel.  You did not ask what you were going to pick up.  You emptied your suitcases then took the empty suitcases together to the Mantra hotel; Room 502, where you met Wong, who emptied a large amount of cash onto one of the beds.  You guessed there was about $500,000.  You did not know where the money came from, but when asked, "Did you think it had come from legitimate means?" replied that, "It felt a little grey area because I noticed there is a lot of money and the regular (indistinct) of transferring that much money is bank transfer."

9The three of you then loaded the cash into two suitcases.  You were not sure if you had met Wong before.  You and Chen left the Mantra hotel in a taxi with the suitcases and were arrested a short time later by the police.  Members of the AFP executed a search warrant at the room you occupied at the Grand Hyatt and seized a mobile phone belonging to you.  Police recovered a series of audio messages in Finnish between you and Chen in January 2014.

10On the phone were, inter alia, the following three messages.  First, a message dated 13 January 2014, in which you ask Chen:

"How did that last trip of yours to Australia go by the way?  Was it now the last one, or do you have to go there again?"

11Second, a message dated 13 January 2014, in which Chen states:

"I cannot take all with me, I just stay there.  I say as I cannot take so much at one time, as I promise sometimes when we have time.  Well, let's see.  This Australia is such a bit funny thing, how to get in, as questioned as much as because I am Asian, but when you are leaving they do not ask anything, they do not even check.  They do not even want to know what you are taking out of Australia.  They only want when coming into Australia something special thing."

12Third, a message dated 28 January 2014, in which Chen states:

"Lauri, that calculator - money calculator is down there.  Down there in the counter.  But now I find that person in Hong Kong can take our sale to Melbourne for money calculator.  When you wake up there could you send me a message?  I can call him, he can come to pick up."

13Finally, a fourth message dated 29 January 2014, where you ask Chen:

"Did Kevin Wong get to collect that thing?  As I did not think to ask reception, 'Will you collect sometimes'?"

14You, Chen and Wong were all arrested on 1 February 2014.  You were committed to stand trial on 7 July 2014, after a contested committal hearing in which one prosecution witness was cross-examined.  You gave evidence at your committal.  You denied being aware of the existence of the money prior to seeing it in the hotel room at the Mantra.  You were granted bail on that day and you spent 160 days in custody.

15Wong was committed by straight hand up brief on 7 July 2014, after the matter had been listed for a contested committal hearing.  After a plea hearing in the County Court he was sentenced on 2 September 2014 to 15 months' imprisonment, to be released after serving nine months on the condition that he be of good behaviour for 15 months.

16Chen was committed by straight hand up brief on 19 June 2014, having abridged the date of the contested committal hearing to a further committal mention date.  After a plea hearing in the County Court she was sentenced on 2 September 2014 to 13 months' imprisonment, to be released after serving seven months on condition that she be of good behaviour for 13 months.

17I turn to the matters raised in mitigation on your behalf.  You are 36 years old, a Finnish national, and have no prior convictions.  You spent your first two weeks in custody in police cells, and two further weeks at the Melbourne Assessment Prison before being sent to the Melbourne Remand Centre, where you stayed until you were granted bail on 7 July 2014.

18You returned to Finland and came back to Australia for your trial.  Your plea on the first day of the trial, albeit late, indicates your contrition and acceptance of culpability, and warrants an appropriate discount.  The late resolution of the matter is partly due - it was submitted - to the late filing on 10 February 2015 by the prosecution of a notice of additional evidence concerning, inter alia, the telephone conversations between you and Chen in January 2014, which I have referred to above at paragraphs 10 to 13, and which were only formally translated on 4 June 2015.

19In relation to the offending it was submitted that your role was slightly subsidiary to that of your wife, Chen, in that she had the lead in making arrangements, in conversing with the other parties to the transaction, and in negotiating with them.  You were involved as Chen's husband, helping her.

20You had a challenging childhood in which your father left your mother when you were aged ten.  Your mother killed herself and you were left with your younger sister.  You then had to move a long distance away.  You lived with your father til you were 16, then moved out and worked in construction to pay for your high school studies.  You completed compulsory national service, where you rose to second lieutenant.  You excelled in your studies and obtained admission to pilot training school and drove a taxi to finance those studies.

21You have been employed as a commercial pilot with Finnair for the past 12 years.  As a result of your offending conduct not only is your career as a pilot over, but you will lose the last 12 years' worth of contributions to a generous pension scheme.  You may also face travel restrictions in future.  You have been very pragmatic about your future prospects and have gone back into the construction business and hope to obtain projects from your father.

22In terms of your personal life, you had a relationship in your 20s with a woman which lasted seven years.  Three years ago you met Chen, who has two daughters; aged 12 and nine.  Chen travels widely due to her role in a wealthy Chinese construction family.  You treat her daughters as your own and plan to have children with her.

23It was submitted that in the light of your slightly lesser role, your plea of guilty, contrition, loss of career, financial loss, time already spent in pre-sentence detention and the efforts you have already made to secure alternative employment, that specific deterrence would not be served by any further period in custody.

24The prosecution submitted that the most appropriate comparable sentence is that received by Chen.  It was conceded that you had a slightly different and lesser role than Chen, in that she had the conversations with the others and had a previous trip to Melbourne two weeks earlier which is part of the same transaction, but in which you were not involved.

25However, the prosecution said that before leaving Australia you were aware that on the trip you would be collecting money, and so had some prior knowledge of what was to happen.  On this basis it was submitted your culpability is the same as that of Chen.  It was conceded that you both lacked prior convictions and that your offending has had a most deleterious impact on your career.  It was agreed that you should receive a discount for the utilitarian benefit of your plea, albeit that it was made on the first day of the trial.  Given the timing of your plea, however, it was submitted that your sentence should be greater than that received by Chen.

26I accept the matters put on your behalf by your counsel.  There is no doubt that general deterrence and denunciation are the principal sentencing considerations for this type of offending.  I note the large amount of money involved, which was nearly nine times the threshold amount of the offence with which you are charged.  I consider, however, that you played a lesser role in the criminal enterprise than that of Chen, although the text messages you exchanged with her demonstrate that you had some prior knowledge of what was to occur.

27Just punishment is required.  This must be informed by consideration of all the relevant factors in your case, including those that relate to the nature and gravity of your offending, as well as matters personal to you, including the matters in mitigation upon which you can rely.

28I must have regard to your age and prospects of rehabilitation.  You are 36 years old and have excellent prospects of rehabilitation, and I note that you have already made alternative employment arrangements.  I note that you have no prior convictions, and consider that specific deterrence is of lesser weight than some other sentencing considerations for the following reasons:

·You have suffered great professional and financial loss as a result of your offending.

·Your career as a commercial pilot is over and you have lost 12 years of valuable superannuation contributions.

29I accept that your offending was of limited duration and that your late plea of guilty was partly due to the prosecution's recent indication of reliance on conversations which have only very recently been formally translated into English, and I consider it appropriate to give you some discount for your plea because of its utilitarian benefit in avoiding the expense and inconvenience of a trial.

30I must also have regard to the sentencing principle of parity.  I consider that there are some differences between your case and that of Chen which are sufficient in my view to justify imposing a different and lesser sentence on you.  I consider that you played a lesser role than her, and for a shorter period than her.  Although you pleaded guilty at a later stage you have suffered great personal consequences in terms of the loss of your career as a commercial pilot, and substantial financial loss in terms of the loss of 12 years' worth of superannuation contributions.  You have already served 160 days of pre-sentence detention.

31In all the circumstances I propose to sentence you to a term of imprisonment of 13 months in respect of Charge 1 on the indictment.  If you consent I will, pursuant to s.20(1B), facilitate your release from custody after serving five months, provided you promise to be of good behaviour for a period of 13 months.  The amount of the recognisance will be $3000.

32Given the pre-sentence detention that you have already served, you may be released immediately.  You may want a moment with your counsel, and I am going to ask whether you consent to being subject to a recognisance release order in the terms that I have just explained.

33MR ANGER:  Yes, Your Honour, he consents to that.

34HER HONOUR:  In light of that consent, I formally sentence you in the manner that I stated.  Your sentence will commence on today's date.  I declare that you have served a period of 160 days pre-sentence detention in respect of the sentence you have received today.  I order that that period is to be reckoned as already served in respect of your sentence.  I further order that the fact of such declaration, and its details, be entered in the records of this court.

35Pursuant to s.6AAA of the Sentencing Act 1991 Victoria, I indicate that but for your plea of guilty you would have been sentenced to a term of 16 months' imprisonment and released after serving nine months. Are there any matters which counsel need to raise in relation to the sentence before I ask Mr Metsaranta to sign the recognisance release order?

36MR ANGER:  No, Your Honour.

37MR MANDY:  Just one matter, Your Honour.

38HER HONOUR:  Yes?

39MR MANDY:  I'm not sure that Your Honour said the duration of the recognisance?

40HER HONOUR:  For a period of - you're right.  No, for a period of 13 months.

41MR MANDY:  Thank you, Your Honour.

42HER HONOUR:  So Mr Metsaranta, we'll just ‑ ‑ ‑ 

43MR MANDY:  My instructor's completing the document now, Your Honour.

44HER HONOUR:  All right, thank you.

45MR MANDY:  Yes, the order that your associate prepared is fine, Your Honour.

46HER HONOUR:  Can we have Mr Metsaranta sign it?  Thank you.  You've got to show it to his counsel first.

47Mr Metsaranta, you have been sentenced to a term of 13 months' imprisonment, and will be required to serve five months of that sentence in gaol.  The 160 days you have already served will be deducted from that period, so you may leave here today after we finish.

48You must be of good behaviour for a period of 13 months, otherwise you can be brought back to this court and be required to serve the balance of your sentence; namely eight months.  You may also be required to pay the sum of the recognisance, that is $3000, in the event of your returning to court in those circumstances.

49At any time you or the prosecution may seek to vary or discharge the order that I have imposed.  You will be given a copy of the recognisance release order today.  Do you understand, Mr Metsaranta?

50OFFENDER:  Yes, Your Honour.

51HER HONOUR:  Thank you.  Are there any other matters?

52MR MANDY:  No, Your Honour.

53MR ANGER:  No, Your Honour.

54HER HONOUR:  All right, thank you.  We're just going to show you a copy of the CLMS orders that are made in respect of the matter and make sure that they're appropriate.

55MR MANDY:  Yes, Your Honour.  Your Honour, there is nothing wrong with those orders.

56HER HONOUR:  All right.

57MR MANDY:  There's a slightly pedantic comment made by my instructor.

58HER HONOUR:  No, that's all right, that's why I'm showing it to you.  Go for it.  Yes?

59MR MANDY:  Which is that in Commonwealth matters it's sufficient simply to declare that 160 days has been served.

60HER HONOUR:  Yes.

61MR MANDY:  Without saying, following on from that, as a period of imprisonment already served under this sentence.

62HER HONOUR:  All right, that's fine.  We'll just remove those words, yes.

63MR MANDY:  But it's otherwise impeccable.

64HER HONOUR:  It's all right.  A Commonwealth sentence is a Commonwealth sentence, may as well get it right.

65MR ANGER:  What would we do without the Commonwealth.

66HER HONOUR:  Just cross out the words that need to be crossed out ‑ ‑ ‑ 

67MR MANDY:  Thank you, Your Honour, yes.

68HER HONOUR:  ‑ ‑ ‑ and we'll just amend the order accordingly.  So that should be removed from the final draft of the sentence when it is published, if it's there at all.  In that case we'll finalise those orders.

69MR MANDY:  Thank you, Your Honour.

70HER HONOUR:  Thank you.

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