Director of Public Prosecutions v Truong
[2016] VCC 281
•15 March 2016
| Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-00045
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINH PHAT TRUONG |
---
| JUDGE: | HIS HONOUR JUDGE COISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 15 March 2016 |
| CASE MAY BE CITED AS: | DPP v Truong |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 281 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Coidan | Office of Public Prosecutions |
| For the Accused | Mr M. Thomas |
HIS HONOUR:
1Minh Phat Truong, you have been found guilty by a jury of your peers of one charge of deal with money or other property that was proceeds of crime where the value of the money or other property was $50,000 or more (Charge 3); and three charges of deal with money or other property that was proceeds of crime where the value of the money or other property was $100,000 or more (Charges 4, 5 and 6).
2These offences carry the following maximum penalties. Charge 3, 15 years' imprisonment, Charges 4, 5 and 6, 20 years' imprisonment. You pleaded not guilty and conducted a trial which is your right. Whilst you are not to be punished in any way for doing so equally you cannot expect the benefit that would attach to a plea of guilty or any indication of remorse that such a plea may have demonstrated.
3These offences were committed between 28 March 2012 and 27 May 2012. At that time you conducted an Asian grocery and fruit and vegetable business in Box Hill.
4You are the cousin of Suki Lieu. Suki Lieu was a Melbourne-based principal of an international drug importation, money laundering and drug trafficking syndicate. He was responsible for trafficking significant quantities of controlled drugs in Victoria and New South Wales. He was engaged in wholesale and street-level trafficking from at least 22 January 2012. Suki Lieu used and directed a network of subordinates and associates to carry out his drug trafficking business.
5A significant part of Suki Lieu's drug business was coordinated and carried out in conjunction with Hong Kong-based members of a wider drug syndicate. By arrangements with his Hong Kong drug business partners, John and Sam Gor, Suki Lieu was able to access supplies of controlled drugs that were warehoused in Sydney by the Hong Kong connections.
6As and when drugs were available in Sydney and required by Suki Lieu, Suki Lieu and John would make arrangements via telephone for their subordinates to meet in Sydney so the drugs could be handed over for intended transportation back to Melbourne and subsequent distribution and sale through Suki Lieu's network of subordinates and associates. The arrangements between John and Sam Gor and Suki Lieu were ongoing and involved the Hong Kong connections supplying Suki Lieu with drugs on consignment. Suki Lieu was then required to pay for the supplied drugs by remitting amounts of money that were derived from the proceeds of his drug trafficking back to his Hong Kong partners. This arrangement was cyclical in nature. When Suki Lieu was able to remit proceeds of his drug trafficking back to Hong Kong it would in turn enable the Hong Kong connections to release more drugs and make them available in Sydney for Suki Lieu's domestic drug trafficking business. In effect, the money being remitted was the proceeds of past drug sales and at the same time also the instrument of future drug supply and trafficking.
7At the time of these money laundering offences Suki Lieu had an established drug trafficking business that had been operating for some time and which involved these drug supply and money remittance arrangements with the Hong Kong syndicate connections. You assisted Suki Lieu to remit his drug proceeds from Australia to Hong Kong by enabling Suki Lieu to launder the money through the Crown Casino and to have it moved offshore via telegraphic transfers authorised by Crown Casino.
8I am satisfied beyond reasonable doubt that you knew that Suki Lieu was a drug trafficker and that he had Hong Kong connections involved in his drug business. I am satisfied beyond reasonable doubt that you knew that Suki Lieu needed to remit drug proceeds back to John and you knew that this was part of their ongoing drug trafficking and supply business arrangements. It was submitted on your behalf that these last allegations had not been proven beyond reasonable doubt however I am satisfied, having regard to the numerous telephone intercepts of your conversations, and all the circumstances, that these facts are proven beyond reasonable doubt.
9At the time of the offences Roy Moo was a business associate of yours. Moo had provided insurance and financial services to you. In that capacity you first met Moo. Moo also occasionally worked at Crown Casino as an authorised representative of an Indonesian-based junket operator. In this capacity Moo was able to deposit money at the casino into the account of the junket operator. Moo could also request that the casino arrange for overseas telegraphic transfers of the funds that he deposited into the junket operator's account. Moo only worked at the casino when clients of the junket were present at the casino. You knew of Moo's position as an authorised representative of the junket operator. You knew that Moo could deposit money into the junket operator's account and could arrange for the telegraphic transfer of those funds to overseas bank accounts. You also knew that Moo could only make such deposits and transfer requests when he was working at the casino because clients of the junket operator were in attendance.
10I am satisfied beyond reasonable doubt that at some time in 2012 before the first offence you approached Moo and asked if he would be willing and able to receive cash from you that could then be deposited into the junket operator's account at the casino and arranged to be transferred to overseas bank accounts nominated by you. Moo agreed to do this for you.
11At the time that you approached Moo with this proposal you had already informed Suki Lieu of the possibility that Moo could move money offshore to Hong Kong for him through the facilities available to the junket operator at the casino. Around this time you and Suki Lieu also arranged for your brother-in-law, Kevin Zhang, to be involved at the Hong Kong end of the transaction. Kevin Zhang was a director of a Hong Kong company. He was able to provide Bank of China account details for the various overseas telegraphic transfers and was also able to arrange to withdraw transferred funds in cash and then to meet with and pass the cash on to John or his associates in Hong Kong.
12Once the scheme for remittance of the funds was in place you dealt with money on each of the occasions the subject of the four offences in the following way:
(1) You and Suki spoke on the telephone and/or in face-to-face meetings to arrange for Suki to hand over cash to you. You and Suki also spoke on the telephone about the amounts that Suki owed and had promised to send to his Hong Kong partners and whether he had been able to collect the money which was required to be remitted; (2) After arranging a face-to-face meeting you and Suki met and Suki handed over a bag containing bundles of cash to you; (3) Once you had the cash you would count it and check the amount. You contacted Moo and arranged to meet with him very shortly after receiving the cash from Suki in order to hand the cash onto Moo; (4) You usually provided the cash to Moo in the foyer of the Crown Casino or at your Asian grocery shop. You provided Moo with the bank account details for the telegraphic transfer request; (5) Once Moo had the cash on occasions he changed it into casino gaming chips first, he deposited it at the casino cashier cage area into the Ang Junket account and completed a telegraphic transfer request form for the money to be sent to the Bank of China account corresponding with the account details provided by you; (6) After the telegraphic transfer request was approved Moo contacted you to confirm the money had been deposited and sent; (7) You then contacted Suki and Kevin Zhang to inform them the money had been sent so that arrangements could be made for Kevin Zhang to attend the bank to collect the money and for John to meet with Kevin Zhang to receive the money; (8) After the money was handed over by Kevin Zhang to John, Suki Lieu and you would be informed by Kevin Zhang and/or John that the money had been received.13In total you dealt with $696,500 and you received this money from Suki Lieu after meeting with him on five separate occasions. You handed the money over to Moo on five occasions, the money was subsequently transferred by Moo in four telegraphic transfers through the Ang Junket account at Crown Casino as follows: (1) 28 March 2012, $95,500 (Charge 3); (2) 1 April 2012, $286,500 (Charge 4); (3) 15 May 2012, $191,000 (Charge 5); and
(4) 27 May 2012, $110,000 (Charge 6). Further details of the circumstances and amounts handed over are set out in the Outline of Prosecution Sentence Submissions at paragraph 6 (16). The money transferred by Moo was successfully received and accessed by Kevin Zhang and handed over to John in Hong Kong.14I state to you that I have taken into account the following matters in mitigation of sentence. You have no prior convictions. I sentence you as a person of previously good character. I have been told something of your personal circumstances. You are 52 years of age, having been born on 3 December 1964 in Vietnam. You are the youngest of 11 children. You had a disrupted and difficult childhood as you were exposed to the effects of the war in Vietnam. After the communist victory your family decided to leave Vietnam and when you were 14 years of age you travelled by boat to Malaysia with your parents and some siblings. After eight to nine months in a refugee camp you immigrated to Australia.
15You arrived in Australia in 1979 aged 15 years. Once in Australia you learned English and you were ultimately able to complete secondary education to year 11 level. You started work at the Victoria Market on weekends when you were 16 years of age. You have a good work record.
16From 1989 to 1994 you worked for your brother in his shop in Springvale. You worked very long hours. In 1994 you and your wife opened a fruit and vegetable shop in Box Hill which you ran for about 20 to 21 years. You sold the business in 2014 and you have been conducting a small-scale import export business in recent times.
17You had met your wife in about 1998 in China. You worked very long hours in your shop after attending the market at 3 am. You often worked in the shop seven days per week. You and your wife have five children. They have all been involved in the family business. Four of your five children attended the plea hearing. These four children are in good employment and your youngest child is a year nine student.
18I accept that you have been hard-working and you have good support from your very stable and successful family and from many friends.
19Character evidence was led on your behalf from Yemen Thai. She has known you for more than 25 years. She first met you when you were living in modest circumstances in housing commission flats. She described your good work ethic, long hours of work and fine features as a model father and husband. She spoke in glowing terms of your five children. She was shocked and disbelieving when she learned of this offending.
20You have been a sponsor of children through the Salvation Army child sponsorship program since 2009 (Exhibit 3). A large bundle of references and testimonials were tendered on your behalf (Exhibit 2). They refer to your many fine features including your family's good manners, your gentle and caring nature, your dedication to the welfare and education of your five children, your generosity, your commercial success, your voluntary work at the temple, and your contributions to the temple. A detailed letter from your wife of more than 25 years describes your past good character, hardworking nature, and devotion to family. These sentiments are echoed by your children. The very high quality and quantity of these character references tendered on your behalf is a credit to you.
21Two properties have been the subject of forfeiture applications and restraining orders, your family home and a second property in Box Hill. I accept that this has been a source of stress and worry for you and you have been fearful of the possibility of losing your family home and another property. I accept that this is a factor in mitigation. I assess your prospects of rehabilitation as being reasonable.
22Against these matters in mitigation however your actions were very serious indeed. I have described in detail the nature and circumstances of these four offences. The amount of money involved in respect of each charge and the overall amount involved was substantial. I have imposed separate sentences for each offence. The amount involved is a relevant distinguishing factor in respect of each charge.
23Your role was that of a conduit. You were an important link in the chain or pipeline enabling Suki Lieu to launder his drug money, that is, the money that was the proceeds of his drug trafficking. I am satisfied beyond reasonable doubt from the telephone intercepts and all the circumstances that you were not simply acting upon the directions of Suki Lieu. On occasions you gave directions to Suki Lieu, and you admonished him for his conduct in making promises he could not keep. You were instrumental in using Moo and taking advantage of his important position as an authorised representative of the Ang Junket at Crown Casino. This account was important in enabling the money to be transferred out of Australia.
24I am satisfied beyond reasonable doubt that you introduced Moo and your brother-in-law, Kevin Zhang into this scheme. You performed an important role in true money laundering. Your actions facilitated Suki Lieu's drug trafficking operations. You were therefore an important cog in the wheel of organised crime.
25You have been found guilty of offences carrying the fault element of "belief". The extent of your belief is a relevant consideration. Where possible it is relevant to take into account the degree of your awareness or belief. I am satisfied beyond reasonable doubt on all the evidence, particularly having regard to the amounts involved, the actions of you, Suki Lieu and Moo, and the telephone intercepts particularly the critical phone call on 5 April 2012 between you and Keven Zhang that the extent of your awareness or belief that the money was the proceeds of Suki Lieu's drug trafficking was high.
26You engaged in this money laundering activity for financial reward. The percentage you were to receive was in dispute. I am satisfied beyond reasonable doubt, having regard to the telephone intercepts and particularly your conversation with Suki Lieu on 28 March 2012 (pp.43 and 44), that your commission was in the range of 5.5 to 6.5 per cent of the total amount dealt with on each occasion. I am also satisfied beyond reasonable doubt that you knew the money was the proceeds of Suki Lieu's drug trafficking and it would enable the cyclical drug business between Suki Lieu and his overseas Hong Kong-based connections to continue.
27There was a considerable degree of planning and organisation involved in your offending together with coordination of activities involving a number of persons. There was a deceit involved in the use by Moo of the Crown Casino junket account. In all these circumstances I find the objective seriousness of your offending to be high.
28As well as the matters to which I have referred I must also take into the account the need for general and specific deterrence. Specific deterrence is less relevant as you have no prior convictions. General deterrence is of considerable importance in a case such as this. Punishment and denunciation are also important sentencing objectives for this type of offending.
29I have had regard to the sentence imposed on Moo of two years and three months' imprisonment with release upon recognizance after serving nine months. He pleaded guilty to one charge of recklessly dealing with money the proceeds of crime to the value of $100,000 or more. His sentence was reduced on account of his guilty plea and cooperation with authorities. But for these matters he would have been sentenced to five years and six months with a three-year non-parole period.
30I have had regard to the principle of parity, but note the very different circumstances between your role and the offending of Moo.
31Pursuant to s.16A(1) of the Crimes Act 1914 I must impose a sentence of a severity appropriate in all the circumstances of the offence. I have had regard to the matters in s.16A(2) insofar as are relevant.
32Pursuant to s.17A(1) I am satisfied no other sentence than imprisonment is appropriate in all the circumstances. As I have already stated I have taken into account the amounts involved and as there are four separate offences I have ordered a degree of cumulation.
33Having regard to all relevant facts and appropriate sentencing principles I sentence you as follows: Charge 3, convicted and sentenced to four years' imprisonment; Charge 4, convicted and sentenced to six years' imprisonment; Charge 5, convicted and sentenced to five years and six months' imprisonment; Charge 6, convicted and sentenced to five years' imprisonment. I direct that six months of the sentence imposed on Charge 3 and 12 months of the sentence imposed on Charge 5, and 12 months of the sentence imposed on Charge 6 be served cumulatively upon the sentence imposed on Charge 4 and upon each other. Otherwise the sentences be served concurrently. The total effective sentence is eight years and six months.
34The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist. For that reason it cannot be fixed automatically. All relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision. In all the circumstances I direct you serve a minimum term of six years before becoming eligible for parole.
35Pursuant to the provisions of the Crimes Act 1914, I must state the date of commencement of each sentence: Charge 4, six years' imprisonment, starts on this date, 15 March 2016; Charge 3, four years' imprisonment, starts
15 September 2018; Charge 5, five years and six months' imprisonment, starts 15 March 2018; Charge 6, five years' imprisonment, starts
15 September 2019.36As prescribed, I declare the period of time you spent in custody is 20 days, which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court.
37I must explain the sentence to you. The total effective sentence is eight years and six months' imprisonment. You must serve six years before being released on parole to complete service of the sentence.
38Do you want to just check the formalities in terms of those? Do you want me to go over those dates, the commencement dates?
39MS COIDAN: Perhaps if Your Honour could just repeat the commencement dates again, that would be ‑ ‑ ‑
40HIS HONOUR: So the commencement date - I have expressed the sentence - perhaps if I just go through it again. I have expressed the sentence in conventional terms initially, so that it is clear the degree of cumulation that is intended, and it is in clear the total effective sentence. Do you need that again or not? Is that all clear?
41MS COIDAN: That is clear Your Honour.
42MR THOMAS: Yes, Your Honour.
43HIS HONOUR: All right. So what I have then done, Charge 4 starts on this date, which is 15 March 2016, and that is of six years' imprisonment. Now, Charge 3, four years' imprisonment, that starts on 15 September 2018, then Charge 5, that starts 15 March 2018, and Charge 6, that starts 15 September 2019. So the sentence on Charge 3 would run from 15 September 2018 to
15 September 2022, the sentence on Charge 5 would run from 15 March 2018 to 15 September 2023, and the sentence on Charge 6 would run from 15 September 2019 to 15 September 2024. From 15 March 2016 to
15 September 2024 gives a total effective sentence of eight years and six months.44COUNSEL: If Your Honour pleases. Thank you, Your Honour.
45HIS HONOUR: Is that correct?
46MS COIDAN: I think so, yes.
47HIS HONOUR: All right, thank you for your help. We will just stand down.
(Short adjournment.)
48Look, thanks very much for coming back, I am sorry to have required you to attend again, but I think that I made a mistake in relation to the commencement dates. I asked my associate to send through the proposed orders to the Commonwealth DPP. We received a response suggesting a mistake, and a suggested correction, but I think there is a mistake in that as well, so perhaps if I hand down a proposed draft order and then I hand down my timeline. I think that this makes sense. If I start just with the conventional manner in which the sentence was imposed, and that was three years on Charge 3, six years on Charge 4, five years and six months on Charge 5 and five years on Charge 6. I directed that six months of the sentence on Charge 3 and 12 months of the sentence on Charge 5 and 12 months of the sentence on Charge 6 be served cumulatively on the sentence on Charge 4 and on each other. So the total effective sentence is eight years and six months. No problems with that. Now if you look at the table, my timeline, if Charge 3 starts on this date, Charge 3 is the four-year term, that starts on this date, and then if Charge 6, which is the five-year term, starts in six months' time, which is 15 September 2016, and then if Charge 5, which is the five-year, six-month term, starts in 12 months - starts 12 months after Charge 6, so that is 15 September 2017. And then if Charge 4 starts 12 months after Charge 5, so that is in then 15 September 2018, we then have Charge 4 running through to 15 September 2024, which is the eight years and six months. In fact it has to work backwards.
49MS COIDAN: Yes, I think, Your Honour, my understanding of the previous orders was that the Charge 4 was the base sentence and everything built up from there, whereas ‑ ‑ ‑
50HIS HONOUR: Correct, it is.
51MS COIDAN: This way, it goes backwards, just as Your Honour said.
52HIS HONOUR: Correct. So it is the base sentence, but under the - and that is why I have - I have expressed it in the conventional way, so that everyone knows what the base sentence is, and everyone knows what orders for cumulation have been made so that - and everyone knows the individual sentences. When it comes to the Commonwealth legislation, I have to have the start dates of each sentence.
53MS COIDAN: Yes.
54HIS HONOUR: So I have to - I have to reflect both - I have to reflect those orders in this.
55MS COIDAN: That is right.
56HIS HONOUR: And the way to do it is to start with the smallest first.
57MS COIDAN: That is right, Your Honour, and as long as there is no gaps, which there does not appear to be here ‑ ‑ ‑
58HIS HONOUR: And also nothing starts after anything else finishes.
59MS COIDAN: That is right.
60HIS HONOUR: So, I haven't fallen into that error.
61MS COIDAN: No.
62HIS HONOUR: Sorry about all this.
63MR THOMAS: No Your Honour, it all makes sense.
64HIS HONOUR: I was puzzling over it. So I will correct the sentence that I pronounced this morning. The start dates should be as follows: Charge 3 starts on 15 March 2016; Charge 6 starts on 15 September 2016; Charge 5 starts on 15 September 2017; and Charge 4 starts on 15 September 2018. The order has the declaration of 20 days' pre-sentence detention and the non-parole period of six years is on the second page of the order. Do you want to look at it over lunch?
65MS COIDAN: May I, Your Honour?
66HIS HONOUR: You may.
67MS COIDAN: I might be able to just correct it - my understanding - I am just raising with Mr Thomas the commencement date of Charge 6.
68HIS HONOUR: Yes.
69MS COIDAN: Your Honour has directed that Charge 6 is to be - 12 months on Charge 6 is cumulatively upon the sentence imposed on Charge 4?
70HIS HONOUR: No. You are worried about something?
71MS COIDAN: So, Charge 6, Your Honour has directed that Charge 6 - 12 months of the sentence imposed on Charge 6 be served cumulatively upon the sentence imposed on Charge 4 and upon each other, so with Charge 5. Looking at Your Honour's line graph, Charge 6 is effectively two - 24-months cumulative upon Charge 4? I was just querying ‑ ‑ ‑
72HIS HONOUR: No. There has to be - there is a degree of cumulation.
73MS COIDAN: Okay, I do not think there is an issue, Your Honour.
74MR THOMAS: I think it is reflected properly, and as I understand Your Honour's orders in terms of cumulation, the way that Your Honour has set out the diagram reflects as per the orders, the cumulation, including cumulation upon cumulation.
75HIS HONOUR: Yes, it has got to be on each other, you have to think about it - you have got to think it is not - it has got to be on each other and on
Charge 4.76MS COIDAN: Yes. Okay. In that case, Your Honour, then there is no issue, I think that is fine.
77HIS HONOUR: Because I have to authenticate the orders to allow the prisoner to return today, so I am going to make the order in these terms, but if anyone wanted to make an application in the next day or two under the slip rule, I would entertain that application.
78COUNSEL: Yes.
79HIS HONOUR: Rather than bring you back after lunch.
80MS COIDAN: Thank you, okay.
81HIS HONOUR: But if you are troubled by anything, we will list this for mention later in the week.
82MS COIDAN: Certainly, okay. I will have a read over lunch, but subject to that, and that has been clarified, I have no issue with it, Your Honour.
83HIS HONOUR: Yes, all right. Again, I apologise for bringing you all back, but that is the order that I will make, and as I say, if there is any difficulties, we will list this for mention at a later time.
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