Director of Public Prosecutions v Tang
[2019] VCC 1085
•19 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00211
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DPP v XIAO TANG |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2019 | |
DATE OF SENTENCE: | 19 July 2019 | |
CASE MAY BE CITED AS: | DPP v Tang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1085 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty – two charges of being an unregistered person providing a registrable remittance network service – no prior criminal record – offender was not a registered remittance network provider as defined in section 74 of the Act – strict liability offence – charges are regarded as regulatory charges – no evidence the money transferred was from any illegal source or intended for a criminal purpose – general deterrence is the paramount sentencing consideration.
Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), Crimes Act 1914 (Cth)
Cases Cited:
Sentence: Fine of $7000 each on Charge 1 and Charge 2.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Office of Public Prosecutions |
| For the Accused | Mr L Hartnett | Papa Hughes Lawyers |
HIS HONOUR:
Introduction
Xiao Tang, you have pleaded guilty to two charges of being an unregistered person providing a registrable remittance network service contrary to s 74(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) which carries a maximum penalty of 2 years imprisonment or 500 penalty units in each case.
You have no prior criminal record.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
On 22 August 2017, Zheng Li and Xiaoli Zhuang were arrested in Perth, Western Australia as a result of an investigation into money laundering.
At the time of their arrest, Li and Zhuang were in possession of AUD$1.6 million cash.
Analysis of the mobile telephones of Li and Zhuang and CCTV confirmed that Xixuan Huang had contact with Li prior to Li’s arrest.
On 17 August 2017, a number of phone calls took place between Ms Huang and you regarding a transfer of funds by you to Chinese bank accounts.
On 18 August 2017, Ms Huang sent a photograph of a sealed bag of Australian currency to Mr Li by mobile telephone, followed by another saying ‘Total 1.47’. Subsequent mobile telephone calls between you, Ms Huang and Mr Li referred to the transfer of money by you and the counting of money by Ms Huang, followed by messages from you saying to Mr Li that you had transferred the money to Chinese bank accounts as requested by Mr Li. The amount transferred by you to the Chinese accounts was AUD$1.47 million.
On 20 August 2019, Mr Li received a message from a person known as ‘Jackie’ stating that AUD$3 million was to be collected. The following day, Mr Li asked Ms Huang to arrange for you to make further transfers of money which Mr Li had collected in Perth. This was followed by conversations between you, Mr Li and Ms Huang on 21 August 2019 regarding the transfer of AUD$1.5 million and appropriate exchange rates.
You then made a series of deposits into a Chinese bank account on 22 August 2017 which totalled AUD$1.6 million, following instructions from Mr Li conveyed to you by Ms Huang.
You were arrested on 26 November 2017. Subsequent searches of your home and a warehouse rented by you resulted in seizure of numerous financial documents and a cash counting machine. You were interviewed and made no comment.
Nature and gravity of the offences
Section 74 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) requires that a person must not provide a ‘registrable remittance network service’ to another person unless that first person is a ‘registered remittance network provider’. In this instance, put simply, you were not a registered remittance network provider.
Section 74(3) of the Act provides that the offence pursuant to s 74(2) is a strict liability offence. As such the offence does not contain a fault element. The two charges you have pleaded guilty to may also therefore be regarded as regulatory charges.
It is not suggested that you were in any way involved in the money that was transferred other than facilitating the transfers themselves. In simple language, you were transferring money of the amounts particularised without being a registered network provider as required by the Act.
The objects of the Act include the provision of measures ‘to detect, defer and disrupt money laundering, the financing of terrorism and other serious financial crimes’[1] Clearly the requirement for registration of persons who are to transfer money is made to ensure that the money being transferred for criminal purposes is able to be detected and prevented from being used for its intended purpose. Therefore, in my view, while the offence is regulatory in nature and does not carry a significant maximum penalty, it is an important provision clearly designed to deter.
[1] Section 3(1) of the Act.
In my view the amount of money transferred as represented by the two charges is significant and would have required a degree of trust in you from the persons who owned or controlled this money. In that sense even though a regulatory offence, in my view the circumstances presented here represent a serious example of a breach of the provision. That said, I accept that there is no evidence before me that the money transferred was from any illegal source or intended for a criminal purpose.
Personal circumstances
You are 29 years of age. You were born in Shanghai and you are a Chinese citizen.
You are the only child of your parents who both work in the media industry in China. You maintain a close relationship with your family and you have frequent contact with them including on your return trips to China.
You attended boarding school in China from the age of five and did well academically. Your parents encouraged you to move overseas to complete your education however you attended high school in Shanghai. At age 16, you visited Australia on a study trip with your high school. You liked Australia and your parents arranged for you to complete years 11 and 12 at Westbourne Grammar School on a student visa.
Following year 12 you went on to study a diploma in business administration at Central Queensland University, completing that qualification at the Melbourne Institute of Technology.
While you were still at university you and a friend started an entertainment business where you arranged for Chinese singers to tour in Australia. You then worked in a consulting company where you were responsible for events planning. During that time you obtained a working visa.
In 2014 you started your own real estate business in Australia. The business was successful and you sold it in late 2016. You returned to China for a brief period of time before coming back to Australia on a long-term, multi-visit tourist Visa. You are currently not in any regular employment however you have undertaken some consulting work.
Sentencing considerations
As the charges to which you have pleaded guilty are Commonwealth charges I am required to take into account a number of matters pursuant to s 16A of the Crimes Act 1914 (Cth). Mr Hartnett who appeared on your behalf, highlighted a number of the matters in section 16A(2) that he submitted should be given weight.
Turning first your plea of guilty. Your plea of guilty was entered following a committal hearing in which no witnesses were examined. As such I accept that your plea was entered at the first available opportunity which in this case was upon the prosecution agreeing to withdraw other charges. In the circumstances your plea has avoided the expense and time of a trial, it demonstrates your acceptance of responsibility and thus has facilitated the course of justice.
In cases such as this, for the reasons I have outlined in relation to the nature of the charge and the purposes of the legislation, general deterrence must be the paramount sentencing consideration. The transfer of large sums of money without authorisation must be discouraged and persons who take that risk must know there are consequences.
As to specific deterrence it was submitted on your behalf that you are, at 29 years of age, a person who comes before the court with no prior criminal history. That said it was also submitted that the deterrent effect of being arrested and facing criminal charges has had a significant impact on you. Further, the result of you pleading guilty to these charges may indeed affect your visa status and your ability to work in Australia in the future and thus it was submitted that that fact alone has provided a significant deterrent effect. I accept that submission.
You have no criminal history and no pending criminal charges. You therefore stand to be sentenced as a person of good character with a good work history. It was also submitted that at 29 years of age you are still a relatively young man and thus rehabilitation in all the circumstances should take on greater weight in the sentencing equation.
In my view your prospects of rehabilitation are able to be considered as very strong. Further, although living in Australia, you have supportive parents and come from a close-knit family.
Mr Hartnett submitted that the relevant sentencing considerations are able to be met by a financial penalty. Mr Pickering on behalf of the Director of Public Prosecutions also submitted that a significant financial penalty in all the circumstances is within range in this instance.
Sentence
Mr Tang please stand.
Xiao Tang on Charges I and 2, you will be convicted and fined $7000 on each charge making a total effective fine of $14,000.
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