Director of Public Prosecutions v Qin

[2023] VCC 855

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01858

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUI QIN

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2023
DATE OF SENTENCE:	26 May 2023
CASE MAY BE CITED AS:	DPP v Qin
MEDIUM NEUTRAL CITATION:	[2023] VCC 855

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW      

Catchwords:   Dealing with proceeds of crime

Sentence:  12 months Community Correction Order

100 hours unpaid community work

Assessment and treatment for mental health issues

25 hours of treatment and rehabilitation credited as unpaid work

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. McCowan	Office of Public Prosecutions
For the Accused	Ms L. Thies	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1Rui Qin, you have pleaded guilty to one charge of recklessly dealing with proceeds of crime. The maximum penalty for this offence is 10 years' imprisonment.

2The charge is a rolled-up charge, being a collection of ten transactions that were conducted using your bank account between 1 – 28 August 2020 and bundled together in a single charge.  A total of $183,173.46 belonging to the victim, was credited to and then debited from your account.

3The circumstances of your offending have been provided in the summary of prosecution opening.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows:

4At the time of the offending, an online scam was underway, committed by unknown offenders.

5In March 2020, you were contacted by the scammers, posturing as United Kingdom solicitors and as a banking corporation where apparent funds were held. You were falsely informed that you were entitled to receive an inheritance of £9,500,000 from a deceased relative. You engaged in significant correspondence with them. You complied with their request to provide your full personal details, as you believed that you would receive a substantial sum of money.

6You paid $8,215.27 into a nominated bank account, being a required 'reactivation cost'.  You were unable to pay a further amount that was sought by the scammers, for costs associated with the inheritance.  However, you agreed with their requests to use your bank account to receive and transfer funds on their behalf. I am told that this was to assist in their release of 'your inheritance'. You also complied with two requests to purchase data, which you then transferred to them. You paid at least $5,112.32 for that data, although the total amount of money that you paid is unclear.

7The victim of your offending is not known to you, and you never had any direct contact with her. She, too, was caught up in the same offending scam. In July 2020, she received a letter from the scammers purporting to be solicitors in the United Kingdom, falsely informing her that she was entitled to receive £9,500,000 as an inheritance from a deceased relative. The scammers also sent a letter purporting to be from the banking corporation where the apparent funds were held, requesting that she provide details of her identification.

8The victim believed that she was to receive a substantial sum of money and complied with the request. She engaged in significant correspondence with the scammers, who deceived her into transferring money into your bank account on four occasions, being a total of $183,173.46.

9You then transferred all of the money you received from the victim to offshore accounts held at the Merchant Bank of China, on six occasions, as directed by the scammers. Your bank detected the large deposits and withdrawals to offshore accounts and froze your account.

10The victim did not receive the promised inheritance and suffered a loss of $183,173.46. In a Victim Impact Statement, dated 13 May 2023, the victim described the devastating impact of losing such a large sum of money. She has suffered significant financial loss.  She no longer has money to spend and is now in receipt of an aged pension. She has suffered psychological harm and has attempted suicide. Fortunately, she has been able to access professional assistance to overcome the residual effect of being the victim of a scam and to deal with related family issues. I take the victim impact statement into account, noting that you did not take any of the victim's money; you did, however, facilitate the transfer of her money to the scammers.

11You were arrested and interviewed by police on 16 December 2020. Your explanation for offending was initially fabricated, as you gave a story about needing extra money to support your family. However, once you were shown a copy of the letter sent to the victim by the scammers, you revealed that you had received a similar letter and believed that you had also been scammed.  The prosecution accepts that the initial explanation you provided is consistent with the instruction you were given from 'the solicitor' that you should not provide the real reason for your monetary transfer, but to say that you sent it to a family member.

12You then made full admissions to receiving the money from the victim and transferring it into offshore accounts. Your explanation for offending is that you did not think too much about your engagement in the transfer of funding, as you believed you would then eventually receive your inheritance. 

13The admissions that you made in your record of interview have been relied on by the prosecution to establish your guilt of the offence charged. You stated that you first got involved 'because you thought you were going to inherit money'. You agreed that it was 'abnormal' for the lawyer to access data in the way you provided it. You agreed that it was a 'bit odd' that you were asked to pay an amount of money to get 9 million pounds back. You stated you did not give the transactions much thought, as you believed you would receive the inheritance.

14You confirmed that ultimately, despite communicating with 'the lawyer' until October 2020, you have not inherited any money. At the conclusion of the interview, you voluntarily provided passwords, numerous details and documents to assist police in their investigation. You are entitled to benefit from your assistance. 

15Following the interview, you were released by police and eventually charged on 31 January 2022. After discussions between the parties, your matter resolved to a plea of guilty to the rolled up, single charge at committal mention, on 12 October 2022. It is agreed that your plea has been entered at the earliest opportunity and has been heard on the first County Court listing, on 15 May 2023. Your plea is consistent with the admissions made in your record of interview. 

16You are entitled to receive a substantial benefit for your guilty plea.  It has a highly significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial.  You have facilitated the efficient administration of justice and are entitled to a benefit for that.  This is particularly relevant given the delay in jury trials that has resulted from the COVID-19 pandemic.  I consider the utilitarian benefit of your plea to be enhanced by the fact that it was entered at the current time and should attract a more pronounced amelioration of sentence than at another time.

17Your plea of guilty demonstrates an acceptance of responsibility for your offending.  Your counsel submits that it is also consistent with remorse.  I accept this submission and will return to the aspect of remorse later in these reasons.

18I turn now to your personal circumstances.  You reside in an apartment in the city of Melbourne. You are not in a relationship, have no children and live a socially isolated lifestyle. You can communicate quite well in English, although Mandarin is your primary language. You were assisted by an interpreter at your plea hearing.

19You were born in Shanghai, China in October 1983 and are now 39 years of age.  You are an Australian citizen.  You are an only child, and your parents reside in Shanghai. They were employed at a local university and have now retired. You maintain a close relationship with them and have regular phone and video contact. You have not disclosed your current situation to them, as you are ashamed of your offending.

20After commencing your education in Shanghai, you came to Australia at the age of 18 and completed your VCE in 2003, at Blackburn High School. You spoke very little English when you arrived.  You lived with a host Chinese family who did not have other children of your age. You then returned to Shanghai and worked as a product manager until 2019.

21You returned to Melbourne and have been employed as a product manager at an electrical wholesaler business, since April 2019. You work approximately 40 hours per week. You have continued with your education and are now in your third and final year of a bachelor in Business and Information Systems at RMIT. You are very busy with your employment and educational commitments.

22You resided on your own when you returned to Melbourne, until the COVID related restrictions were put in place.  You then found a housemate online and have been living with her for around two years. Your flatmate has written a letter to the court. She describes that you are a very quiet, polite, and reliable person. You do not socialise and keep to yourself.  When she first heard about your situation, she could not believe that you were the 'victim of the scam' and that you then 'became involved in it'. She writes that you are 'embarrassed' and feel 'terrible' about your offending conduct. In her opinion, it is entirely uncharacteristic of your personality.  She describes that you are not 'the kind of person who will steal from others'. 

23You have no issues with drug or alcohol abuse, nor do you suffer from any mental health issues other than a level of potential anxiety associated with the pending court proceedings.

24You have prepared and provided a letter to the victim of your offending, where you offer her an apology for your misconduct. You describe that you 'deeply regret' your involvement in the scam and 'blame [yourself] almost every day'.

25You have no prior convictions and do not have any other criminal matters outstanding. You are someone of previous good character. You are entitled to call upon that good character on your plea.

26I have no doubt that the remorse that you have expressed is genuine and I am prepared to moderate your sentence to reflect that. I also accept that your prospects of rehabilitation are excellent.  Apart from this brief period in your life in 2020, you have remained out of trouble.

27You concede the seriousness of your offending, but submit that your misconduct and moral culpability needs to be viewed in the context that you, too, were a victim of scamming and lost money as result of this. I take that into account when considering your moral culpability.  There is no evidence that you benefited by any particular material enrichment for your offending.

28The prosecution concedes that your offending was not elaborate or sophisticated. You did not actively deceive anyone.  Your culpability relates to turning a 'blind eye' to the proceeds of crime. 

29You accept that you were reckless as to whether the money you received and transferred was the proceeds of crime.  You had no knowledge of why the money was paid into your account or to whom it was being transferred, or whether it was in fact being stolen.  You did not benefit from your offending.  It is accepted by the prosecution that you were not involved in the working or running of the scam itself or against whom the deception occurred.  Further, it is accepted by the Crown that you, too, lost money as a result of being a victim of the same scam.  Your current misconduct is a complete departure from the law-abiding lifestyle and behaviour that you usually exhibit.

30The delay in these proceedings is a relevant consideration.  You became aware of the police investigation into your misconduct almost two and a half years ago. There was a delay of more than 13 months between the time you were interviewed and when you were charged with your offending. The risk of being charged and subsequent criminal proceedings have been hanging over your head for some time.  At the end of the record of interview, you thought that you would go into gaol. I accept that you have suffered considerable anxiety and distress for some time, and I take this into account. I consider delay to be a relevant factor in your favour. 

31Delay is also relevant in a different way. You have used the time between offending to reorganise your life and substantially effect your rehabilitation. You have not re‑offended for almost three years. 

32Your counsel acknowledges that the principle of general deterrence is an important sentencing consideration for offending of this kind, and I accept that it has some significance in the sentencing mix.  While the principle of specific deterrence is relevant, as there were a number of instances involving transfer of money, I accept that its relevance is limited given your lack of prior and subsequent offending and what are the unusual circumstances that accompany your current offence.

33When considering the appropriate penalty, your counsel submitted that a Community Correction Order (CCO) would be appropriate and satisfy all the relevant sentencing requirements in your case.  The prosecution does not accept your counsel's submission, saying that an immediate term of imprisonment in combination with a CCO is the only appropriate disposition in this case, given the quantum of money involved.

34You have been interviewed by a Corrections officer and found to be a low risk of general re-offending.  You were also assessed by the Mental Health and Advice Response Service (MHARS).  You expressed remorse, shame and distress that has affected your lifestyle, as a result of your offending. 

35It appears that you have suffered high levels of stress related to the court case, given the uncertainty of the outcome and the effect it will have on your life. While you do not have a documented history of mental illness, you presented as emotionally vulnerable and, as I have said, socially isolated. You would benefit from participating in psychological counselling, to manage your emotions and improve your quality of life.  It is recommended that ongoing mental health treatment be a condition of a CCO.

36You are capable of performing unpaid community work and state that you are prepared to do so.  You indicate that you are willing to comply with a CCO and have been found suitable. 

37I accept your counsel's submission that the circumstances of your offending are unusual.  While the quantum of money dealt with was not insignificant, not all factors of your offending are equally grave. I note that you did not take advantage of the finances that were transferred into your account, despite having lost your own money as part of the scam.

38I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.  I take into account the maximum penalty for this offence. When considering your offending conduct, as I have described it, I do not accept that a term of imprisonment should be imposed.  I consider that it would be unnecessarily harsh.

39Ms Qin, I intend to sentence you to a Community Correction Order with conviction for a period of 12 months.

40You are to report to the Derrimut Correctional Centre within 48 hours of today, but including the weekend, that means by Tuesday afternoon at 4 o'clock.

41I order that you perform 100 hours of unpaid community work, and that you are to engage in ongoing assessment and treatment for Mental Health issues, as directed.

42I direct that up to 25 hours of treatment and rehabilitation are to be credited as hours of unpaid community work. 

43Could Ms Qin please step down to behind her counsel and Ms Thies, if you could take her through the order please and see if she consents to compliance? 

44MS THIES:  Your Honour, if Your Honour's content for Ms Qin to remain seated behind me?

45HER HONOUR:  Yes.   Ms Thies, I will just give you a few minutes just to go through the standard conditions as well as the additional conditions, thank you.

46MS THIES:  Thank you for that time, Your Honour.  Ms Qin consents to the order.

47HER HONOUR:  Thank you.  Were there any other order sought, Mr McCowan?

48MR McCOWAN:  No, Your Honour.

49HER HONOUR:  I will just sign the order.  Have a seat please and give a copy of the order to both parties.  Thank you, we will adjourn the court.

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