Director of Public Prosecutions v To

[2017] VCC 475

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00273

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHI MING TO

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2017
DATE OF SENTENCE:	27 April 2017
CASE MAY BE CITED AS:	DPP v To
MEDIUM NEUTRAL CITATION:	[2017] VCC 475

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Plea; Deal with property reasonably suspected to be proceeds of crime.

Legislation Cited:  Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth) Sentencing Act 1991 (Vic)

Cases Cited:Kim and Fhang v The Queen [2016] VSCA 238; Almada v R [2015] NSWCCA 19; R v Jiao (2015) 251 A Crim R 236; Kleindyk v R [2016] WASCA 12; Dong v DPP (Cth) [2016] VSCA 51; Singh v R (2016) 310 FLR 348

Sentence:12 months’ imprisonment with one-year Recognisance Release Order for sum of $1,000.00.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albore	Commonwealth Director of Public Prosecutions
For the Offender	Mr A. Pyne	Victoria Legal Aid

1HER HONOUR: Chi Ming To, you have pleaded guilty to one charge of dealing with money reasonably suspected of being the proceeds of crime, namely $550,430.00 in cash, contrary to s.400.9(1) of the Criminal Code Act 1995.

2The maximum penalty for this offence is three years' imprisonment and/or a fine of 180 penalty units.

3The circumstances of your offending were set out in the prosecution opening and I sentence you on the basis of the facts set out in that document.

4Briefly, you were apprehended in the context of a 2015 Australian Federal Police investigation into money laundering by Mr Ka Sing Lai. He arrived in Sydney on 10 November 2015.  You met him there and drove him away from the airport.

5On 1 August 2016, you flew to Melbourne from Sydney and in the company of your co‑offender, Yuk Cheong Chan, you rented a car.  Mr Chan rented a hotel room for two nights.  The next day, you were driving the rented car with Mr Chan as a passenger and you were intercepted by police in Lonsdale Street.  Police asked if they could inspect your vehicle and you agreed.

6In the boot, police located a large canvas bag containing 45 bundles of cash in vacuum sealed bags, which when counted amounted to $550,430.00. You told police that a friend gave you the bag.

7When interviewed, you made no comment in relation to the allegation of dealing with the proceeds of crime. You told police that you met Mr Chan in Sydney when you drank together; that you came to Australia in 2014 on a bridging visa because you owed money to people in Hong Kong.

8Your occupation here was washing towels in a brothel and working as a cleaner.

9Examination of your bank account revealed that in the six months to the end of December 2015, a total of $13,030.00 was credited through that account.

10You and Mr Chan were committed on 15 February 2017.  Mr Chan's trial is listed in September this year.

11You pleaded guilty shortly after the committal.

12You have been in remand since 2 August 2016, and have spent 268 days in custody, not including today.

13According to your counsel, your personal circumstances are as follows.  You are 36 years old and were born in mainland China, had a normal childhood, completed high school and worked as a waiter, labourer and repairer.

14You have no criminal history, nor any mental illness or drug or alcohol addiction.

15Before leaving for Australia you accrued a significant debt amounting to several hundreds of thousands of dollars to fund speculation on Bitcoin.  That investment failed, and you fled to Australia to avoid paying the debt.

16In Australia you have worked as a house cleaner by day and washed towels at night in a brothel. You are hoping to stay here, but face possible deportation for this offending.

17According to your counsel, your offending occurred in the context of your Hong Kong creditors asking you to go to Melbourne to deliver a parcel to a particular address.

18You had no expectation of any financial reward, but only the offer to defer your repayment of your debt for some further time.

19I indicate that I am satisfied that it is reasonable to suspect that the moneys are the proceeds of crime for two reasons.

20Firstly, based on your banking history and admission regarding your employment and debts, the value of the money found in the car you were driving was grossly out of proportion with your income and expenditure.

21Secondly, that the cash in the bag you were transporting was wrapped in 45 vacuum sealed bundles.

22The objective seriousness of your offending is to be assessed according to the principles set out in paragraph 61 of Kim and Fhang v The Queen[1].

[1] [2016] VSCA 238

23The first matter to be considered is where the offence sits in the scheme of offences provided for by Division 400 of the Criminal Code Act[2]. In this respect I note that money laundering offences carry the lowest maximum penalties.

[2]1995 (Cth)

24Second, I must assess the circumstances of your offending. I consider that the amount involved is substantial, over five times the threshold amount, to enliven the higher maximum penalty of three years' imprisonment or 180 penalty units.

25I consider that your offending shows some degree of planning in that you flew to Melbourne from Sydney for the purpose of doing what was asked of you, booked a hotel and rented a car. However, your conduct was not sophisticated.  You used your own identity and credit card to make bookings and payments.

26Importantly, your conduct involved mere possession only: you collected money on one occasion only and took no other steps such as concealing or attempting to bank or transfer the funds.

27I regard your role as that of courier on one isolated occasion.

28In all the circumstances, and in particular given the amount of money involved, I consider that your offending lies towards the lower end to the middle of the range of seriousness for this kind of offence.

29In mitigation, your counsel relied on a number of matters, which I accept.

30First, you pleaded guilty at an early opportunity. This indicates that you accept responsibility for what you have done and are willing to facilitate the course of justice. Your plea also carries utilitarian benefit in saving the community and witnesses the time, expense and inconvenience of a trial.

31Second, you have no prior convictions and a solid work history. You have lived and worked modestly.

32Third, your conduct is limited to one occasion and took place over a very limited period of time.

33Fourth, your time in prison has been made more burdensome by the knowledge that you face the possibility of deportation upon your release.

34Fifth, you have good prospects of rehabilitation, as evidenced by your lack of prior convictions, solid work history, absence of any mental illness or addictions and you have supportive parents who know you are in gaol.

35Sixth, you do not speak English well and have been relatively isolated in custody, receiving no visitors and communicating with family overseas by phone.  In particular, I note that you spent the first few weeks after your arrest in police cells, sharing a cell with two other prisoners and sleeping on the floor.

36Your counsel conceded that general deterrence is an important sentencing consideration and that a term of imprisonment is inevitable, but submitted that time served would be sufficient to meet the relevant sentencing considerations.

37The prosecution emphasised the amount involved and submitted that on this basis alone this is a serious example of this kind of offence. It was submitted that general deterrence is to be given significant weight.

38Otherwise the prosecution accepted the matters put in mitigation on your behalf.

39The prosecution also provided me with a table of five comparable cases[3].

[3]Almada v R [2015] NSWCCA 19; R v Jiao (2015) 251 A Crim R 236; Kleindyk v R [2016] WASCA 12; Dong v DPP (Cth) [2016] VSCA 51; Singh v R (2016) 310 FLR 348

40I acknowledge that money laundering is an important cog in the wheel of organised crime and that general deterrence is to be given significant weight.

41I take into account your early plea of guilty, your lack of prior convictions, solid work and family history and that imprisonment has been especially burdensome for you because of the uncertainty around your visa status.

42I consider on the material before me that you have sound prospects for rehabilitation.

43In all the circumstances I consider it appropriate to impose a sentence of imprisonment.

44On the sole charge on the indictment, dealing with money reasonably suspected of being the proceeds of crime, you are convicted and sentenced to 12 months' imprisonment.  After completing 268 days of this sentence, you are to be released upon your entering into a Recognisance Release Order, for the sum of $1,000.00, with the condition that you must be of good behaviour for one year. If you fail to comply with this order without reasonable excuse, you would forfeit the $1,000.00 and be brought back to court to be resentenced.  There is a likelihood that you would have to serve the remainder of your sentence.

45You may apply to vary or discharge this order under s.20AA(1) of the Crimes Act[4].

[4]1914 (Cth)

46Do you understand what I have said about the Recognisance Release Order? 

47ACCUSED:  (Through interpreter) I would like to know upon paying the $1,000 good behaviour bond if I ‑ ‑ ‑ 

48HER HONOUR:  You won't have to pay it.  It only becomes payable if you breach the order.

49The sentence I have imposed will commence today, and I declare that 268 days of pre‑sentence detention, not including today, be reckoned as time already served and I direct that an entry to that effect be made in the records of the court.

50HER HONOUR: To the extent that is necessary, I indicate pursuant to s.6AAA of the Sentencing Act[5], that but for your plea of guilty, I would have imposed a sentence of 18 months' imprisonment.

[5]1991 (Vic)

51MR ALBORE:  Your Honour I've prepared an order and a Recognisance Release Order form.

52HER HONOUR:  All right, we'll make two copies.  Are there any other matters? 

53COUNSEL:  No Your Honour.  If the court pleases. 

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