Director of Public Prosecutions v Tang
[2013] VCC 1386
•3 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-12-01663
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAO YONG TANG |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2013 | |
DATE OF SENTENCE: | 3 October 2013 | |
CASE MAY BE CITED AS: | DPP v Tang | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1386 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S. Flynn (Plea) | Office Public Prosecutions |
| Mr M. Bosso (Sentence) | ||
| For the Accused | Mr M. Stanton (Plea) Mr D. Wilson (Sentence) | Robert Stary & Associates |
HER HONOUR:
1 Hao Tang, you have pleaded guilty to one charge of bribery and one charge of recklessly carrying on a business as an unlicensed sex work service provider. The maximum penalty applicable to the offence of bribery is 10 years’ imprisonment and to recklessly carrying on a business as an unlicensed sex work service provider is 5 years' imprisonment.
2 It is unnecessary for me to summarise in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in your case are, in my opinion, serious and disturbing.
3 I turn to a brief summary.
4 You opened a massage business at 658 Smith Street, Collingwood. Prior to your involvement the property had previously operated as an illegal brothel and had been closed by the council in 2002. You took control of the property and operated your business at this address from October 2004.
5 You registered the business name “New City Therapy” on 2 June 2002. The nature of the business was listed as “Chinese rehabilitation”. The business name expired on 27 June 2008, however, you continued to operate the business in this name.
6 In 2006, you met a City of Yarra enforcement officer, Ken Wolfe. Mr Wolfe’s appointment in 2001 deemed him a “public official” and authorised him to take proceedings, investigate and prosecute any contravention of Acts, Regulations and Local Laws.
7 This authority included investigating premises such as yours at 658 Smith Street pursuant to the Prostitution Control Act 1994 and the later renamed Sex Work Act 1994.
8 You met Mr Wolfe after your details had been given to him during an inspection of 658 Smith Street. Mr Wolfe contacted you and warned you against operating your business as an unlicensed brothel.
9 After a subsequent inspection, you rang Mr Wolfe and arranged to meet. You agreed you would pay Mr Wolfe in exchange for information regarding any pending investigations regarding the business at 658 Smith Street.
10 An arrangement was made whereby you would deposit $1,000 on the 15th of each month into a Tabcorp betting account operated by Mr Wolfe. The payments became more regular over time.
11 Between February 2006 and 3 November 2010, that is over a period of approximately four and a half years, you gave Mr Wolfe payments for the purpose of receiving information from him and as an inducement to him to act in violation of his public duty and show favour to you. The favour alleged was that Mr Wolfe would provide you with information of which he was aware as a result of his position as a public official in relation to proposed action by the Yarra Council or other regulatory bodies charged with regulation of premises wherein sex work was occurring.
12 In June 2010, investigators from Yarra CIU commenced an operation concerning Mr Wolfe and looked into whether he was acting corruptly in the course of his employment. A warrant was issued pursuant to the Telecommunications Interception and Access Act 1979 on the mobile phone used by Mr Wolfe on 13 August 2010. Investigators then monitored telephone contact between he and yourself.
13 In relation to Charge 1, bribery, the prosecution relied upon SMS messages, call charge records, Tabcorp accounts, deposit slips, documents found in your possession and CCTV footage which disclosed a pattern of conduct by you where you deposited money into Mr Wolfe’s Tabcorp account and then advised Mr Wolfe by phone you had done so.
14 The deposits were made at various hotels around Melbourne, with a total alleged of $57,850 being paid to Mr Wolfe over 75 transactions. These amounts were detailed in the Prosecution Opening at paragraph 14. I discussed with the prosecution the reduction in amount and number of transactions compared with that in the sentencing remarks of his Honour Judge Murphy when sentencing Mr Wolfe on 16 November 2011. It appears, following negotiations with those representing you, the details in paragraph 13 and 14 (Exhibit A) were agreed to be the basis upon which you fell to be sentenced. I proceed on that basis.
15 On 13 March 2010, a plumber was called to 658 Smith Street to unblock a trap at the rear of the premises. As a result of the number of condoms located in the trap he reported the matter to police.
16 On 22 September 2010, police attended at 658 Smith Street and spoke to two female workers, one whom they considered had engaged in sex work. You were then nominated as the boss and your details given to police.
17 Police spoke to you on 23 September 2010 and advised they had complaints about the property. You said you would contact police on 27 September to arrange a time to see them but failed to do so.
18 On 14 October 2010, a covert operative attended at 658 Smith Street and confirmed sexual services were being provided.
19 Regarding Charge 2, on 3 November 2010, a customer attended 658 Smith Street and was provided with services (as described in paragraph 17 of Exhibit A) ultimately interrupted by police executing a search warrant.
20 Police searched the property, your home and car and found documents supporting the charges before me.
21 On 3 November 2010, you were contacted by police and attended at the Richmond Police Station where you were arrested and a record of interview conducted. You told police you operated a massage parlour in Reservoir and were also associated with 658 Smith Street. You denied, however, knowing or meeting Mr Wolfe although later in the interview stated you knew him as “sir”. You denied putting money into Mr Wolfe’s TAB account and denied operating an illegal brothel.
22 You have pleaded guilty to these two charges and you are entitled to have that fact taken into account in your favour and I do so. The community has by your plea been spared the time and cost of a trial. Witnesses have been spared the need to give evidence upon your trial, although I note that a number of witnesses were required to give evidence and be cross-examined at a contested committal. I accept the contested committal was of limited compass and as a result of the committal hearing a number of charges originally laid against you were withdrawn.
23 Discussions in an effort to resolve your offending to a suitable Indictment commenced very soon after the committal in November 2012. The offer made by you to the prosecution was ultimately accepted on 18 June 2013. On 19 June 2013 you were arraigned and pleaded guilty to both charges. I accept your plea of guilty was at the earliest, realistic opportunity given the original charges you faced, and accept your indication of a plea of guilty was given at an earlier time than that of Ms Yan and Mr Lu, to whom I shall later return.
24 In the circumstances I am prepared to accept your plea of guilty indicates remorse for your actions.
25 You have admitted one prior court appearance on 18 June 1992 when you appeared at Melbourne Magistrates’ Court charged with being a person in a common gaming house, for which you were convicted, fined $50 and ordered to pay $25 costs. For the purposes of sentencing you for the two charges that are before me, I disregard that earlier court appearance. I was also told you had not appeared at court subsequently.
26 I have concluded, based on all the material before me, your rehabilitation prospects are good. This includes the delay between your offending and it finally being determined by the Court. Further, in that time you have not committed any further offences.
27 In the prosecution opening, reference was made to two other offenders who were sentenced for offences similar to yours, specifically, Mr Lu and Ms Yan. I discussed the sentences imposed on both on 26 July 2013 by his Honour Judge Parsons, in particular the features of their offending both similar and different from your offending.
28 I also discussed the sentence imposed by his Honour Judge Murphy on 16 November 2011 relevant to Mr Wolfe.
29 In my opinion, the sentences most relevant when determining your sentence taking into account the principles of parity (albeit not strictly co-offenders) are those of Ms Yan and Mr Lu.
30 Regarding differences between your offending was the giving of an undertaking in another case, the time over which the offending alleged relevant to each offender occurred was different, the total amounts paid by each offender to Mr Wolfe was different and the number of charges for which each was sentenced was different, and there was also the distinction between your offending in Charge 2 of recklessly carrying on a business as an unlicensed sex work service provider compared with ‘knowingly’ to which Ms Yan and Mr Lu pleaded guilty.
31 But I have no doubt, as discussed with Mr Stanton, you thought you were receiving a benefit by making payments to Mr Wolfe. The mere fact you were not able to particularise the actual benefit you believed you received was not to the point.
32 Mr Stanton referred to the submissions by counsel who appeared at Mr Wolfe’s plea hearing and that “in terms of Mr Wolfe doing anything active re: ‘looking out for Yan, Lu and Tang …’ that was very limited … more of it was passive.” That, however, seems to me to be inconsistent with the evidence Mr Wolfe gave himself at the committal (pp155-156).
33 The fact is you believed you were receiving a benefit and that was the reason you paid money to Mr Wolfe.
34 There was a report before me from Ms Carla Lechner, Clinical and Forensic Psychologist, dated 17 September 2013.
35 Regarding your background and history, you told her you originated from Shanghai in China and came to Australia in 1989 hoping to expand business opportunities in metal design, however, this was not successful. You then worked in a range of factory positions before becoming involved in the massage industry. You said you paid the money to Mr Wolfe as a continuation of the tradition of the original business owner. You did not find this practice of paying officials particularly unusual, as such you said was consistent with your experience in China.
36 You expressed regret to Ms Lechner for your offending and said your life had changed dramatically since you ceased trading. You were now unemployed, with a decline in your financial situation. I was told you were currently in receipt of Centrelink payments. Your mood had also declined.
37 You are 52 years of age at date of sentence, are the eldest of two children. Your sister is 50 years of age and lives in Melbourne. In Court to support you during your plea was your father, daughter and brother-in-law.
38 You were married but separated in 1999 and have a 20 year old daughter, Penny. Most recently, in the past four years, you had married again to a woman who lives in Singapore. I understand she has a daughter from a previous relationship.
39 You came to Australia from Shanghai when you were 28 years of age. Your mother had a small business selling handbags on the roadside in China. Your father worked in a large supermarket and repaired watches.
40 You described yourself as a very bright student with no social or behavioural problems and that you completed secondary education with an Advanced Diploma in “Mechanical”. You worked in an office at the Design Production Institute as a metal designer for a period of seven years until 1989.
41 You were then offered an opportunity to go to Japan to work. After that you came to Australia, speaking little or no English. You continue to struggle with English.
42 When you arrived, you attended a language centre and engaged in part time work. Your wife followed in 1991 and your daughter was born two years later.
43 Over the years you have worked in “all kinds of jobs”. You were granted citizenship in 1998.
44 You worked in the massage industry between October 2001 and October 2010, stating the business “opened and closed a few times and changed location”. Since being charged with these offences, as I have previously stated, you were in receipt of a Newstart Allowance with occasional casual work.
45 Although formally not assessed by Ms Lechner, you impressed as being “of average” intelligence, generally being able to reflect on the impact your behaviour had on others and yourself. You described a close relationship with your wife, her family and friends.
46 You denied use of illicit drugs. You were on medication for diabetes and high blood pressure, and as part of the material relied upon by Mr Stanton during your plea (Exhibit 1, Tab 4) is a full Medical Summary relating to you and your father. Ms Lechner noted with some concern that you were somewhat incredulous in that you thought it was “only massage” that was occurring. You stated to her giving money to officials, you believed, would gain the favour of “no inspection”. You also thought you were helping pay for cancer treatment for Mr Wolfe’s child.
47 In the opinion of Ms Lechner, you did not present with symptoms of an underlying psychological or psychiatric disorder and as such no psychological treatment was indicated. You would, however, benefit by developing opportunities for alternative employment.
48 Ms Lechner noted that you did not have any subsequent criminal history. You were also, she concluded, capable of reflecting on the impact your behaviour has had on yourself and others. You did not have an underlying psychological or other disorder such as depression or anxiety. The reported downturn in your mood related to your pending Court hearing, lack of employment and decline in financial status.
49 There are no Victim Impact Statements before me.
50 Mr Stanton who appeared on your behalf, provided a very helpful chronology, (Exhibit 1) which he addressed during the course of your plea hearing. In 1998 you were granted Australian citizenship. In 2000 to 2001, Mr Wolfe also formed a friendship with another accused, Neil Hancock, who ran premises in Richmond. According to the chronology, Mr Wolfe took bribes from Mr Hancock over approximately eight and a half years. I note that is significantly longer than your offending over four and a half years and longer again than the offending of Ms Yan and Mr Lu. Mr Hancock’s charges are proceeding to trial, listed I was told for August 2014.
51 From the chronology, it appears in October 2001, you began work in the massage industry when you were 40 years of age. In 2002, Mr Wolfe was involved in closing down the premises at 658 Smith Street, prior to your involvement. In October 2004, you began to operate the business.
52 In June 2010, the police Operation commenced into Mr Wolfe, as outlined in the chronology, and you were also charged not only with the bribery but as a result of a covert operative attending those premises.
53 Subsequently, Mr Wolfe was sentenced by his Honour Judge Murphy for three charges of bribery.
54 Reference was made in the submissions by Mr Stanton to Ms Yan and Mr Lu who were sentenced for similar offending, reminding me in his submissions, which I am well aware, that the offences involving them involved knowingly carrying on a business, your offending is “recklessly” carrying on a business, relevant to Charge 2.
55 I have read the sentence remarks in relation to both Ms Yan and Mr Lu and those relating to Mr Wolfe. In sentencing Ms Yan and Mr Lu, his Honour Judge Parsons noted when sentencing that:
“I accept the submissions made that Mr Wolfe was the instigator of this particular offence – he preyed upon your vulnerabilities in order to enlist you as supporters and providers of finance to him over the period of the crime.”
I accept that description applies also to you.
56 Mr Stanton conceded bribery was a serious offence and there is no doubt it is. Reference was made to the seriousness of it by his Honour Judge Parsons, who cited with approval the observations of the sentencing Judge endorsed by Street CJ in George & Ors v R[1]:
“The crime of which they have been convicted is a serious one. The maintenance of a democratic system of government is dependent upon public acceptance and the trust of public officials. Any attempt therefore to corrupt public officers strikes the very fabric of our democratic society.”
[1] (1987) 29 Crim R 380
57 Mr Stanton also conceded on your behalf that the charge of recklessly carrying on a business as an unlicensed sex work service provider was also a serious offence, given the need for the proper regulation of such businesses. It is. I am also mindful Charge 2, as I have said many times, relates to ‘recklessness’ compared with the co-offenders and their charges of ‘knowingly’.
58 I agree also with Mr Stanton’s submission that denunciation and general deterrence are very important sentencing considerations for your offending.
59 In his helpful written submissions, Mr Stanton referred to your early plea of guilty and remorse reflected by that plea of guilty. I have already referred to your plea of guilty and timing of it.
60 In relation to the delay between your offending and sentence, I note that the delay in this matter being finally determined, has not been through any fault of yours or the prosecution. In the interim period of time, you have not committed any further offending and the delay and non-offending is relevant to your rehabilitation prospects.
61 In relation to the principles in R v Verdins & Ors[2], Mr Stanton conceded none of the Tsiaris[3] principles applied, although Mr Stanton, while not relying upon the health of your family as amounting to family hardship, I accept, consistent with general sentencing principles that can be taken into account, and I do. Being away from your father will be an additional burden for you, and make your time in custody more burdensome.
[2]2007) 16 VR 581
[3][1996] 1 VR 398
62 When determining the appropriate sentence, principles of parity apply in this case. In particular, I refer to R v Taudevin[4] and Postiglione[5]. The subsequent decisions as outlined in Mr Stanton’s written submissions confirm the application of the relevant principles.
[4][1996] 2 VR 402
[5](1997) 98 A Crim R 134
63 Turning to your involvement in this offending, the prosecution accepted that Mr Wolfe bore a higher degree of moral culpability than you and that was also accepted as being the case by his Honour Judge Parsons when sentencing Ms Yan and Mr Lu. I also note Mr Wolfe had a prior Court appearance in 1999 for dishonesty. The prosecution accepts that Mr Wolfe actively fostered the impression he had more power than he did. Even on Mr Wolfe’s own account his involvement with any accused did not stop the inspections occurring.
64 Turning to sentencing submissions Mr Stanton’s primary submission was that a sentence which did not require an immediate period of incarceration was appropriate in all the circumstances, urging I consider the imposition of a Community Corrections Order and/or a wholly suspended term of imprisonment.
65 In my opinion, to impose a Community Corrections Order would not be appropriate in all the circumstances and not adequately reflect all sentencing considerations. Further, I have considered whether the imposition of a sentence of imprisonment wholly suspended would be appropriate, or whether such should be partially served. Finally, I have considered the imposition of a head sentence and non-parole period.
66 Ms Flynn submitted the charge of bribery was a very serious offence and that your offending occurred over four and a half years, involving amounts of money and a number of transactions far greater than Ms Yan and Mr Lu.
67 I am mindful you are before me on fewer charges than Ms Yan and Mr Lu and different charges, in particular regarding your Charge 2, reckless versus knowingly for the others.
68 Ms Flynn submitted general deterrence, denunciation, and an element of specific deterrence applied when sentencing you. There was also the need to protect the community from you when sentencing.
69 I discussed at some length with Ms Flynn the range of sentence urged by the prosecution when compared with the offending and sentences imposed on Ms Yan and Mr Lu. The transcript will reveal that discussion and my concern regarding the range suggested.
70 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
71 There is also an element of specific deterrence required when sentencing you. I note again you do not have any relevant prior Court appearances, however, your offending behaviour before me continued over a considerable period of time. Yours was not “one off” offending. There is an element of specific deterrence applicable when sentencing you.
72 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. That will ultimately will be a matter for you. If you obtain employment, the prospects of your re-offending will likely be reduced consistent with the opinion of Ms Lechner.
73 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
74 I am conscious this will be your first time in custody. I am also aware that to require you to serve an actual term of imprisonment must always be the last resort of the Court. I am also mindful, as I have said, of the principles of parity in this case.
75 I sentence you as follows.
76 On Charge 1, you are convicted and sentenced to 24 months’ imprisonment.
77 On Charge 2, you are convicted and sentenced to 2 months’ imprisonment.
78 Turning to cumulation and concurrency, Charge 1 is the base sentence and I direct that 1 month of Charge 2 be served cumulatively upon Charge 1.
79 That results in a total effective sentence of 2 years and 1 month imprisonment.
80 I have considered how this sentence should be served and have determined the sentence should be partially suspended. I therefore direct that you serve 3 months of that sentence and the remaining 22 months is to be suspended for a period of 3 years.
81 That means you must not, after release, commit an offence punishable by imprisonment for 3 years. If you do commit such an offence you will be brought back before me, not another judge, and you can expect to be ordered to serve the 22 months.
82 Pursuant to s6AAA Sentencing Act 1991, if you had been found guilty of these two charges following a jury verdict, I would have sentenced you to a term of 3 years and 6 months' imprisonment and set a non-parole period of 18 months.
83 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 3 days in custody (up to and including 2 October 2013) by way of pre-sentence detention and I direct that this be entered into the records of the Court.
84 The prosecution made application for a forfeiture order pursuant to s.32(1) Confiscation Act 1997 for cash and a mobile phone. This application was consented to by Mr Stanton on your behalf, and I make the order in the terms sought.
85 Turning to the sentence I have imposed, this is significantly less than that urged by the prosecution. I have attempted in these sentencing remarks and through my discussion with counsel to explain my reasons for sentence.
86 Any other matters?
87 MR BOSSO: Your Honour, just in relation to pre-sentence detention.
88 HER HONOUR: Yes.
89 MR BOSSO: Is that two days or three days as of yesterday?
90 HER HONOUR: Good question, what did I say?
91 MR BOSSO: You said three I think, Your Honour.
92 HER HONOUR: Did I? What should it be?
93 MR BOSSO: I believe it should be two.
94 HER HONOUR: What day did he go in?
95 MR BOSSO: No, I'm sorry, it was the 30th - - -
96 HER HONOUR: Are you sure?
97 MR BOSSO: Yes.
98 HER HONOUR: Very well, it does not count today so it counts the 2nd. So it is three days. Everyone happy with that?
99 COUNSEL: Yes, Your Honour.
100 HER HONOUR: Very well. I am just signing these documents, these forfeiture orders. Thank you. Can you remove the prisoner, please? Thanks very much, ma'am. Yes and thank you both.
101 COUNSEL: If Your Honour pleases.
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