Director of Public Prosecutions v Sun

[2020] VCC 83

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01704

DIRECTOR OF PUBLIC PROSECUTIONS

v

YI SUN

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2020
DATE OF SENTENCE:	12 February 2020
CASE MAY BE CITED AS:	DPP v Sun
MEDIUM NEUTRAL CITATION:	[2020] VCC 83

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords: Plea of guilty - Breach of s2341(A) of the Migration Act 1958 (Cth) –

Cause to be presented forged/false document (1 charge)

Legislation Cited:     Migration Act 1958 (Cth) - Crimes Act 1914 (Cth)
Cases Cited:            Asfoor [2005] WASCA 126 - Miranda [2002] WSWCCA 89 -
  Markovic v The Queen [2010] 30 VR 589 - R v Verdins [2005] VSC 479
  O'Neill [2015] VSCA 325 - Dalgleish [2017] VSCA 360

Sentence:Convicted and sentenced to 2 years imprisonment (Federal) and an immediate recognisance release order.  

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. V. Hogarth	Office of Public Prosecutions
For the Accused	Mr. G. Hughan	Tao Juang Lawyers

HIS HONOUR: 

1Ms Sun appears before the Court, now aged 42, she was 39 at the time of this offending or during the period of this offending or at least.  In fact, she varied from 37 to 39, being born on 22 August 1977. 

2The plea was conducted before this Court on 31 January 2020, when Ms Sun pleaded guilty to the one charge on the indictment, dated 8 December, 2019, such charge being a breach of s.2341(A) of the Migration Act, being that between the dates, 22 May, 2015 and 5 July, 2017 at Melbourne, the prisoner provided to the Department, false and forged documents in regard to two applications for, as it was in that case, s186 visas.

3The seriousness of the crime is demonstrated by the fact that Parliament has prescribed a maximum sentence of ten years' imprisonment.

4Exhibit A, the prosecution summary, was accepted by Mr Hughan who appeared, and appears today for Ms Sun, the opening being prepared by Ms Hogarth and tendered as Exhibit A. 

5As I said, Mr Hughan accepted those facts as being the facts upon which I was to sentence his client.  It is noted that the offence is a rolled-up charge.

6The first aspect of that rolled-up charge involves a s186 Visa application by Ms Zhang, who is in Court and was so at the time of the plea.  This application and the supporting documents tendered therein are detailed in paragraph 11 of Exhibit A. 

7The period of offending in that instance is between the May of 15 and January of 17.  All of the documents in regard to the application for Ms Zhang were false or forged.  All were lodged by the prisoner and the prisoner's credit card was used to pay the fees in such application.

8The second application, as part of this rolled-up charge, involves a husband and wife, Mr Le and Ms Wei.  The application and supporting documents are detailed in paragraph 16 of Exhibit A.  The period of lodging of documentation is from 22/12/15 to July 17.  All of the documents were false and/or forged, and in particular, the documents detailed A, B and C, were lodged personally by the prisoner. Again, in this instance, the application fees were paid by the prisoner's credit card.  The documents being the two withdrawal requests, D and E, were lodged subsequent to a warrant being issued to search the prisoner's property.  The prisoner accepts responsibility for the lodgement of same, although it's accepted that she did not actually personally lodge those matters.

9The above scenario simplifies what was occurring with both of these applications. 

10The prosecution put to me that Ms Zhang, who appeared in the Court and indeed, the other applicants, believed she was the victim of fraud.  This may be so.  However, I have my doubts in this regard, given what she was trying to do, that is, obtain residency in Australia. 

11By the application, Ms Zhang allowed false documents to be lodged on her behalf.  She signed a contract of employment with a company she had never been interviewed by, and paid, insofar as this application to obtain residency, and ultimately, as I understand citizenship, the huge sum I would have thought in China, of $200,000 to a company in China, that company being a company known as Shanghai Dong (Dong LV). 

12However, as I said during the hearing, Ms Zhang is not charged with any matter before me, as I say, she is before me as a victim, as were the others that I mentioned, that is Le and Wei.  They equally paid similar amounts to attain the same result. 

13Apparently in both instances, approximately $30,000 was forwarded to the Australian part of this enterprise or part of the scheme, being an Australian company known as Australia YTHY Recruiting Pty Ltd.

14This company apparently supplied the relevant documents to the prisoner, paid her a deposit in each instance of $2000, with an agreement to pay her a further $8000 upon each visa being obtained, and further repaid her the lodgement fees charged by the government in each instance, of $6500. 

15It is admitted by the prisoner, through her counsel, that had each application been successful, she would have been paid $20,000.  That is, in total, $10,000 for each application.

16The prisoner advised that each such application cost $6500 in lodgement fees and the learned prosecutor told me that there are currently 100,000 application per annum for s.186 visas in Australia. 

17I have no doubt that the breadth of the illegal activity in regards to the obtaining of these visas, is much broader than this Court can comprehend, nor that it needs to comprehend for the sentence of the prisoner.

18I state, for the record, that the prisoner of course, is only to be sentenced for her criminality.  In this case, the rolled up circumstances which make up this rolled up charge under the Act, involving the two instances that I have detailed. 

19Mr Hughan, when we were discussing the concept of breach of trust, was at pains to point out that the prisoner did not actually act as a migration agent for which she was at the time registered, for either of these parties.  This was not disputed by the prosecution. 

20Apparently, she had acted in a similar situation for the Chinese company since 2012, she, herself, being registered as a Migration agent in 2010.  However, apparently she became suspicious of the activities of Mr Fan in China, the company Dong LV, in China, and another company called Shanghai Donglu.

21Despite these suspicions, the particular documents as I have indicated were lodged by the prisoner, albeit that she did not lodge them as a migration agent. 

22It is important to make the point she is not charged here as to her failure of duties as a migration agent.  However, given her training and the fact that she had these suspicions before the happening of this criminality, such goes to her culpability.  

23As set out in the Migration Agents (Code of Conduct) Exhibit B, a breach of such code does not impose criminal sanctions, and specifically, the Code itself warns of the applicability of charges under the MigrationAct, if there is any breach of the obligations set out in the actual code. 

24Hence, albeit not directly acting as a migration agent, I do find that the criminality here is aggravated by the breach of trust by a registered migration agent, albeit not specifically acting for the clients, but who in fact, lodged the documents.  Such finding was, of course, not disputed by Mr Hughan, albeit that he was at pains to point out the precise circumstances whereby such aggravation comes about.

25In Exhibit C, the prosecution submitted that in the circumstances the only appropriate sentence was one of immediate imprisonment. It was submitted the Court should take into account the rolled-up nature of this charge, the fact that this offending, albeit only one offence, was not momentary, and not one impulsive lapse. That I was entitled to take into account, the course of conduct provision as set out in s.16A(2)(c) of the Commonwealth Crimes Act.

26It was further submitted by the learned prosecutor, that there was no dispute that such criminality was effected for the purpose of financial reward, and most importantly, that such actions by a person who is a registered migration agent, not only brings the system into discredit, but one of the important factors as far as the Commonwealth is concerned, in the integrity of the system on behalf of all the members of our community, is that to act in such a way is not only discrediting of the whole migration system, but is particularly hard to detect.  That is, you need significant resources exercised by the Commonwealth to precisely detect the lies and forgeries that were effected here.

27The cases tendered to me for perusal of Asfoor [2005] WASCA 126 and Miranda [2002] WSWCCA 89, give little general guidance because the circumstances were quite separate as set out.

28I have re-read the Victim Impact statements and I accept the genuineness of those, being Exhibits D and E.

29I have no doubt that each of the parties as they set out in those statements, not only lost considerable sums, but may have lost the chance to attain residency, and citizenship of Australia. 

30Ms Zhang, for example, I am instructed, is now in Australia, despite her application being unsuccessful, because she is in fact appealing the refusal insofar as the visa application relates to her, no doubt relying on the circumstances that I have just referred to.

31That, of course, is a completely different proceeding, however, in understanding the losses set out by the victims as have been put to me by the prosecution, the economic loss that they have suffered, the anxiety and trauma caused by these circumstances and predominantly caused by the fact that the visa applications were refused. 

32One has to question their involvement and knowledge of this scheme.  One has to question what harm was actually caused by the prisoner, given the prisoner's actual role. 

33The real culprits, of course, are those that effected this scheme in China, whether they be criminals or not, I am not sure; whether they be part of some criminal gang, I am not sure; but clearly, they were criminal operatives, no doubt acting on quite a large scale, who utilised the prisoner at the Australian end, to actually lodge the documents. 

34I accept in regard to both of the victims, husband and wife in regard to the second incident, that no doubt they have suffered a large economic impact.  The question, of course, for this Court is whose fault is that, if anyone's, apart from theirs.

35It appears to me to really be the consequence of their own failed forgery scheme to get residence in Australia.  As I say, these matters are not matters for me and no doubt will, in regard to Ms Zhang, be detailed when her appeal is heard.

36In all the circumstances, the plaintiff has agreed to a reparation order in this case, and indeed, has come to this Court with bank cheques in the sum of $20,000, which seems appropriate in the circumstances, and such is a valuable gesture indicative of her remorse. 

37That is, the reparation figure represents the total sum that would have been earnt by her, had the applications been successful.  Whether any of the victims are able, I would think not, to recover the balance of the sums that they have, 'been defrauded' is really a matter for another occasion. 

38In regard to the plea, Mr Hughan tendered documents which were exhibited as Exhibits 1 to 7.  Essentially his submission, as he has reiterated this morning upon the receipt of the community correction report (exhibit F) which was positive for his client, was primarily that there should be no immediate gaol imposed.  Primarily that such should be effected by way of a community correction order, with no gaol attached.

39Being a Commonwealth matter, the only alternative thereby, given that I may not have accepted that submission, was a sentence of imprisonment with a recognisance release order allowing for immediate release.  Mr Hughan has maintained that submission today.

40I accept the chronology referred to by Mr Hughan and tendered as part of Exhibit 1.  That details the personal history of the prisoner, her achievements, her education and achievements in Australia, and the fact that she has no prior offences whatsoever.

41It is, of course, given the education and opportunities that she has received in Australia, the employment that she is able to undertake in Australia and the registration as a migration agent, disappointing no doubt for the Australian community, to see a person who has been given such opportunities in this country, commit a crime of this type.

42I accept the submission of Mr Hughan as to the plea of guilty, that it was particularly early in this regard, being within some five months of her arrest; that it was utilitarian, given the ultimate plea, but in particular, her cooperation upon the warrant being executed at her premises, and that her actions have furthered the course of justice, both by way of her cooperation and her plea of guilty. 

43I further accept that she is a person of otherwise good character.  In particularly, the four character references set out in Exhibit 5 speak to that, and in regard to the factor of remorse, I also accept, as effected by her plea, and the reparation paid today, that such is genuine and that the indications as set out in those testimonials, further support such remorse. 

44I am prepared to accept that over and above the remorse demonstrated by the plea of guilty, there is genuine remorse shown in this matter.

45During the plea I indicated that the circumstances insofar as her parents were concerned, do not meet the requirement for exceptional circumstances, especially in regard to the fact that 18 months before she returned to Australia, that is, in March 2017, those parents had looked after themselves, despite their various afflictions.

46As I detailed, such circumstances fall short of what is required for an exceptional determination to be made, as detailed by the Court of Appeal in Markovic v The Queen [2010] 30 VR 589, [15].

47I of course accept, if the prisoner was gaoled, the obvious impact upon her family, however I do not accept that the facts apart from being humanely noted by the court, are of such a degree to be so burdensome on the parents as to be exceptional.  I do not in any way, dispute as was pointed out to me by the learned prosecutor, that a period in gaol pursuant to s.16A(2) of the Act, would no doubt be burdensome on the prisoner herself, given her worries about her parents. 

48Mr Hughan also mounted a submission that I should, on the materials, accept a causal link between the alleged mental condition of Ms Sun and the offending and therefore reduce the culpability based on the principles of Verdins 1 to 4. 

49Having considered the material lodged on the plea, I indicated to Mr Hughan that I was not persuaded in this regard, but would further consider the submission. 

50One starts, as pointed out by the prosecutor, with the statement by Dr Kwong, the psychiatrist, set out in Exhibit 2, and especially the clinical note, on or after the first consultation on 12 June 2019, which states:

'The prisoner did not experience any mental stress till last year, nor apparently was she aware of any diagnosis of hypothyroidism.' 

51As said in the report at p.2,

'Since the traumatic experience of being accused and searched, Ms Sun said she had progressively become anxious and depressed.'

52On the last page of such report it was postulated by Dr Kwong,  that the criminality in this matter, could be related to a reduction of the thyroid hormone.

53Mr Joblin, in his report, Exhibit 3, the clinical psychologist, saw her for a medico-legal report in August of last year.  On p.3 of such report, he noted the severe depression and gave four causes for such.  His throwaway line of, 'appeared' connected to depression, that is, the offending as set out on p.4, is hardly helpful to Mr Hughan's submission.

54Adapting the rigorous analysis and examination required in regard to such submissions, set out by the Court of Appeal in O'Neill [2015] VSCA 325, I maintain my finding, indicated during the plea, that such submission cannot be accepted.

55Ms Sun’s mental issues, whenever it started and whatever it was, in no way, in my view, reduces the prisoners culpability.

56Mr Hughan, as part of an indication of his client's remorse, stressed her preparedness to enter into a reparation order or scheme in the sum of $20,000, being the amount as I have already said, which she would otherwise have earnt, and that the terms of such would be detailed. 

57As I have indicated, through consultation between my associate and the parties, that has been clarified into the fact that today the prisoner has brought two bank cheques addressed to the two parties, which will be appropriately forwarded by the informant. 

58As has also been tendered today, is a positive community correction report.  While such report is not such as to cause me to make such an order, as I feel that an order of imprisonment is necessary, the positive nature of such report and the comments therein were of assistance to the Court in undertaking the difficult balance and sentencing synthesis that is required here. 

59As I said earlier, I accept the propositions put by the prosecutor, and in particular, the importance of general deterrence and the importance to the Immigration Department, as best the Court can, of assisting the agency in ensuring that people get the message, that one cannot abuse the system in the way that the prisoner has done. 

60Against that, of course, are all the matters put by Mr Hughan, in particular the age of the prisoner, her exemplary record prior to this time, the reparation paid, the genuine remorse that I have referred to and of course, the positive Community Corrections report.

61There is also the issue of parsimony and as is demonstrated in the Commonwealth legislation, as in our own State legislation, this Court is required to look at all alternatives to a period of imprisonment and in this case, actual imprisonment, that it can in the circumstances, to deliver as has been detailed most recently by the High Court in Dalgleish [2017] VSCA 360, a just sentence for the prisoner, based on the circumstances of this case. This Court hopes that that is the philosophy in all sentences handed down in this Court.

62Having given such required balance close consideration, as I said, I told Mr Hughan that I do not accept his submission that a community correction order should be imposed, however albeit I feel that it is appropriate for me to sentence his client to a period of gaol, I do accept his submission that such can be subject to a recognisance release order, and I do intend to make that recognisance release order immediate, pursuant to the provisions of s.21B of the Commonwealth Crimes Act. 

63That necessarily means, despite the worth of the submission of the prosecutor, I do reject the proposition that in the totality of these circumstances, serious as they are, that a period of immediate imprisonment must be imposed.

64Madam Prosecutor, before I actually pronounce it, because of the eternal difficulties of sentencing in this sphere, can I just announce to you what I propose?

65MS HOGARTH:  Yes, certainly.

66HIS HONOUR:  I propose to convict and sentence the prisoner to a period of two years' gaol; and order that she be released immediately by way of recognisance release order upon her own recognisance in the sum of $5000.

67MS HOGARTH:  Yes.

68HIS HONOUR: And that as a condition of such recognisance, she make reparation in the sum of $20,000 immediately, and that further, she pay a penalty which, pursuant to s.20(5) of the Act, can be a maximum of 300 penalty units.  I have determined that I should impose as a condition of such order a penalty of 30 penalty units, the appropriate Commonwealth penalty unit at the time I am advised, was $180.

69MS HOGARTH:  Correct.

70HIS HONOUR:  And my maths tell me that is a total of $5400 which would mean probably that I would grant a stay of six months for that payment in the circumstances Mr Hughan, unless you were going to ask me for any longer.

71MR HUGHAN:  I certainly would not ask you for any longer, Your Honour.

72HIS HONOUR:  I mean I would grant that because I note that your letter indicates that she has had to draw-down on her current mortgage to get the $20,000 and in those circumstances, the financial penalty should obviously be paid in due course.

73MR HUGHAN:  I am grateful for that indication, for that understanding Your Honour.

74HIS HONOUR:  Before I actually formally pronounce that, I will just make sure I can do what I want to do under the Act.

75MS HOGARTH: Yes, if I can just have a moment to just review s.20(5) of the Act.

76HIS HONOUR:  I think that is the one that sets the maximum as 300, does it not?  Have you got an actual written Act there Madam Prosecutor, what page?

77MS HOGARTH:  Yes, unfortunately my volume only goes to s.23(WA) unhelpfully.

78HIS HONOUR:  Wait on, I have got it, 20(5) I have got it. I must have looked it up, because that is the note I have got. Yes.  So 20(5) says this:

79'Where a person is convicted of a Federal offence, the conditional release of offenders, the court, before which she is convicted may, if it thinks fit, release the person by recognisance to the satisfaction of the court that she will comply with the following conditions: 

80That she be of good behaviour and that is during the period of two years that I have sentenced her to - this is under 20(1).  

81That she will make reparation, which I have ordered in the sum of $20,000, and

82That she will pay the Commonwealth such pecuniary penalty as I have detailed, and then the maximum penalty set out in sub-s.(5) as being - 5B - where the offence is not punishable by a fine, if the court is not a court of summary and it is 300 penalty units.  So I think we are right, but I am happy to be told by you that I am not.

83MS HOGARTH:  That does seem sensible, Your Honour, and I cannot locate anything in the Federal sentencing guide that would say otherwise, so I ‑ ‑ ‑ 

84HIS HONOUR:  Well I think it is a recognisance release order, the conditions I am putting are specifically set out in s.20.

85MS HOGARTH:  Indeed.

86HIS HONOUR:  A reparation order is being made, and I have imposed a financial penalty upon her and I will give her a six-month stay and that amounts to $5400.

87MS HOGARTH:  The only thing that I would query, Your Honour, is whether Your Honour would make the reparation order independent of the recognisance release order.

88HIS HONOUR: Why would I do that?

89MS HOGARTH: Under - well - noting that under s.20(1)(b) of the Crimes Act, there is that independent power for Your Honour to make a reparation order.

90HIS HONOUR:  Well there is, but there is, it seemed to me, I will make it part of the recognisance release because I - that is why I wanted it paid today.

91MS HOGARTH:  Indeed, I hear what Your Honour says.

92HIS HONOUR:  And indeed, as Mr Hughan has, not just today, but in the other plea, indicated reparation was prepared to be made and it seemed to me that is a very important part of the totality of the circumstances that led me to that decision. 

93MS HOGARTH:  Indeed.  I do not wish to be heard any further on that. 

94HIS HONOUR:  Are you happy with that Mr Hughan?

95MR HUGHAN:  Yes, Your Honour.

96HIS HONOUR:  All right.  Do you want to - well I will formally indicate therefore I intend to make those orders.  Do you - before I ask your client to stand up and I formally make it - do you want to explain those before I do that?

97MR HUGHAN:  I will just clarify it.  I think Your Honour's made it very clear that ‑ ‑ ‑ 

98HIS HONOUR:  I have got an obligation to make sure your client understands, given I cannot talk in her language.  The only way I can do that is with an interpreter, is to seek that you explain what I intend to do, and then I am, Madam Prosecutor can be happy that my obligation under the Act is fulfilled.

99MS HOGARTH:  Yes, Your Honour.

100HIS HONOUR:  Yes.

101MS HOGARTH:  I do have a template which I intend to complete.  A recognisance release order, unless Your Honour's associate has prepared a form of order. 

102HIS HONOUR:  We have one, don't we, or is it - does it always come from the Commonwealth?  Do we have on as a template?  In the court generally, or does it always come from the Commonwealth?  I think as I understand the practice is that is exactly what happens. 

103MS HOGARTH:  Thank you, Your Honour.

104MR HUGHAN:  All right, so yes, Your Honour, I will go and ‑ ‑ ‑ 

105HIS HONOUR:  Yes, I grant you leave to have that conversation.

106MR HUGHAN:  If Your Honour pleases.

107HIS HONOUR:  When I sign the reparation orders, they are part of the recognisance release. 

108MS HOGARTH:  Yes, Your Honour.

109HIS HONOUR:  Which I have now signed. 

110MS HOGARTH: Your Honour, I am grateful to my instructor in pointing out that under our version of the legislation, that there does not appear to be a s.20(5) of the Crimes Act.

111HIS HONOUR:  What is 25?

112MS HOGARTH:  I am not sure if ‑ ‑ ‑ 

113HIS HONOUR:  20, sub-s.5?

114MS HOGARTH:  My apologies, Your Honour, thank you. 

115HIS HONOUR:  That is what I was reading from.  Yes.  They are the conditions that can be applied to a recognisance release order. 

116MS HOGARTH:  Thank Your Honour..

117HIS HONOUR:  I am sorry, I probably said 25, did I?  I apologise. 

118MS HOGARTH:  In which case, I should have a hard copy of that provision, Your Honour.

119HIS HONOUR:  You will, that is why I was surprised you did not have it in the first volume.   

120MR HUGHAN:  Yes, Your Honour.

121HIS HONOUR:  Understand that, Mr Hughan?

122MR HUGHAN:  Yes, she does.  I have gone through the components of the order as I understood Your Honour has set out for us, or the proposed order I should say.

123HIS HONOUR:  Yes.

124MR HUGHAN:  And she understands and accepts those special conditions and the like.

125HIS HONOUR:  I should add one matter, of course, Mr Hughan, that was also important; that not only did I say she has had no priors before, but given her lifestyle, despite the seriousness of this matter, I do have faith in the proposition that you put, that her rehabilitation will be effected, and we will not see her before the Court again.

126MR HUGHAN:  I appreciate Your Honour's indication of that finding. 

127HIS HONOUR:  Yes. 

128MS HOGARTH:  Before Your Honour makes the ‑ ‑ ‑ 

129HIS HONOUR:  I was going to say, I also - yes, go on Madam Prosecutor, I was going to pronounce 6AAA, but I do not know, on the basis that I have to make it in this court.  I think it is best to conclude we do.

130MS HOGARTH:  It is a bit open, Your Honour.

131HIS HONOUR:  It is.

132MS HOGARTH:  There is variance in the court's practice to pronounce the s.6AAA.  I was just going to confirm Your Honour's calculations in relation to the 30 penalty units.

133HIS HONOUR:  Thirty by 180 makes, according to my computer, 5400.  But my computer could be wrong too.

134MS HOGARTH:  That accords with my calculation as well, thank Your Honour.

135HIS HONOUR:  Pursuant to s.6AAA I would have otherwise sentenced you to a period of imprisonment of two years, immediate, with nine months' minimum to serve by way of parole. 

136MR HUGHAN:  Your Honour, I do not think it greatly matters given it's a s.6AAA declaration, but I think for a Commonwealth matter, they have this sort of legislative scheme that you do not get parole unless it is three years' or over.

137HIS HONOUR:  That's right. 

138MR HUGHAN:  I understand Your Honour as saying that you would have released her ‑ ‑ ‑ 

139HIS HONOUR:  On a recognisance release order to serve nine months.

140MR HUGHAN:  I do not think that could possibly make a difference to the sentencing discretion, but I thought I had better stand in case.

141HIS HONOUR:  It is always very hard to understand s.6AAA anyway, given that you are required to talk about one factor only, when it is so multi-factorial.  I will do as best as I can, Mr Hughan.

142MR HUGHAN:  I have grown up understanding that you do not do that, Your Honour, and so I struggle with the concept.

143HIS HONOUR:  All right.  Ms Sun, if you would stand up please.  Ms Sun, you will be convicted of a breach of the Migration Act.  It is probably clear from that you will never become a migration agent again, I would imagine. 

144But, insofar as the Court is concerned, that conviction will bring with it a sentence of imprisonment of two years, given the seriousness of this offence. 

145However, as I indicated, given the totality of the matters put before me, and in particular, your role if I can put it this way, at the Australian-end of this large fraud perpetrated on these parties which are detailed here, but no doubt perpetrated on many, many people in China, I suppose it just indicates the value of residence in Australia, but at any rate, that fraud, I would imagine, is rife in China at the moment, although perhaps not quite at the moment. 

146For such offence therefore, I will order that a recognisance release order be imposed in regard to that period of imprisonment and that you be released immediately pursuant to s.20B on the following conditions.

147Firstly, that you pay reparation to the parties involved in the sum of $20,000, such reparation being detailed as we have indicated, and as I understand, to be effected today by your counsel.

148Secondly, that you pay a financial penalty to the Commonwealth in the sum of 30 penalty units which comes out to an amount of $5400.  I grant you a stay in the circumstances, given you have had to redraw on your mortgage to pay the reparation fee of six months. 

149The most important condition of your recognisance release order which you will be released on your own recognisance of $5000, is that you be of good behaviour. 

150As I have just said to your counsel, one of the matters, apart from your having no prior offences at all, given your age, is that I am accepting of his submission that you being convicted now of this serious offence and the consequences that it will have on you at the age of 42, supports my view that you are a person who hopefully will learn from this, will therefore effect your rehabilitation and not come before the Court again.

151To ensure that, however, for the period of two years you will be subject to a requirement to be of good behaviour.  If you are not, you can be brought back before this Court and this sentence may well be altered.

152Can I indicate to you that had you not pleaded guilty as you have, the Parliament in Victoria requires me to tell you what the penalty otherwise would have been.  On the presumption that the Judicature Act applies and makes that an applicable obligation on me under the Commonwealth legislation, and certainly I have not as yet been told judicially that it is not so, can I indicate to you that had you not pleaded guilty, the period of gaol would not have changed that I would sentence you to, and that is a period of two years. 

153However, I would have ordered that you would have served a period of imprisonment of nine months before you would have been released on a recognisance.  That, I hope, gives you some indication of the value of your plea in this case. 

154Perhaps I might just change that to the sense that I make the total period of imprisonment two and a half years, given that the principle of sentencing is always that the maximum sentence is the actual sentence, not the minimum period served. 

155MR HUGHAN:  Yes, Your Honour.

156HIS HONOUR:  Yes, thank you both for your assistance.  It was of some help in this case.

157MS HOGARTH:  May it please the court.

158MR HUGHAN:  If Your Honour pleases. 

159HIS HONOUR:  Ms Hogarth, we now have a precedent. 

160MS HOGARTH:  Yes, thank you, Your Honour.

161MR HUGHAN:  Sorry, Your Honour, does the signing and so forth need to happen in Your Honour's presence.

162HIS HONOUR:  It does. 

163MR HUGHAN:  Sure, yes, I think that's right. 

164HIS HONOUR:  We're just preparing that now I think.

165MR HUGHAN:  So we'll of course wait for however long and if Your Honour wants to go and come back.

166HIS HONOUR:  Do you want to effect the - it doesn't embarrass me if you effect the payment of reparation now.  Perhaps it is through the - the prosecutor can handle that.

167MR HUGHAN:  Yes, if Your Honour pleases. 

168HIS HONOUR:  What you have handed over was consistent with the instructions to me, and that is two bank cheques.

169MR HUGHAN:  Two bank cheques made out in the names ‑ ‑ ‑ 

170HIS HONOUR:  One to Ms Zhang and one to the ‑ ‑ ‑ 

171MR HUGHAN:  The couple.

172HIS HONOUR:  The informant in this matter will attend to those matters.

173MR HUGHAN:  I understand that to be the case, Your Honour, yes.

174HIS HONOUR:  Yes.  Ms Sun, you can take a seat, till we get this documentation.  Perhaps while we're waiting. 

(At this stage the court proceeded with another matter.)

175MS HOGARTH:  Yes, Your Honour, I completed a form.

176HIS HONOUR:  Thank you. 

177MS HOGARTH:  Rather haphazardly, so I hope that ‑ ‑ ‑ 

178HIS HONOUR:  I think my associate's trying to a little less haphazardly, do one here, are you Madam Associate, or are we doing that in draft form?  Yes, we have. 

179MS HOGARTH:  Perhaps if I can this to Your Honour's associate and if Your Honour is content.

180HIS HONOUR:  You have got a draft there, have you Madam Associate?  Apparently Madam Prosecutor, we don't have a draft, we just use yours.  Yes, that is perfect and in accordance with 20(1)(b).  Excellent.  Yes, Madam Associate, you have the recognisance signed first.  Mr Hughan you might just assist.

181MR HUGHAN:  If Your Honour please.

182HIS HONOUR:  Mr Informant, I take if the 186's might drop off a bit right at the moment?

183INFORMANT:  No, not quite.

184HIS HONOUR:  I thought the current situation might halt things. 

185INFORMANT:  No, they've dropped off. 

186HIS HONOUR:  Yes, Ms Sun, I have signed that order and I expect you to behave accordingly.  Thank you.  Ms Sun can come out of the dock.

187MR HUGHAN:  If it please Your Honour.

188HIS HONOUR:  Yes. 

‑ ‑ ‑