Director of Public Prosecutions v Tsui
[2017] VCC 68
•9 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01805
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LOK PING TSUI |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2017 | |
DATE OF SENTENCE: | 9 February 2017 | |
CASE MAY BE CITED AS: | DPP v Tsui | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 68 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms O. Go | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr C. Mandy | Chiodo Madafferi |
HER HONOUR:
1 Lok Tsui, you have pleaded guilty to one charge of dealing with money reasonably suspected of being the proceeds of crime, pursuant to s.400.9(1) Criminal Code (Cth). The maximum penalty applicable to that offence is three years’ imprisonment or a fine of 180 penalty units or both. You have also agreed to one charge of breaching parole, a summary offence, pursuant to s.78A Corrections Act 1986 (Vic), being heard by me and have agreed to this being determined by me, and have pleaded guilty to it. The maximum penalty for that offence is three months’ imprisonment or 30 penalty units or both.
2 You have been in custody since 19 July 2016 when the Adult Parole Board cancelled your parole as a result of this offending.
3 It is not necessary for me to recount 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 consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say your offending is serious and concerning.
4 I turn to a brief summary of it. On 29 April 2016 the Australian Criminal Intelligence Commission (ACIC) obtained a warrant under the Telecommunications (Interception and Access) Act 1979 and on 3 May 2016 ACIC began intercepting communication services relevant to you.
5 At 7.57 am on 4 May 2016, intercepted information revealed a conversation between your mobile phone and a male identified as Alan Saylav on his mobile phone. In brief, this involved you asking Mr Saylav if he could go to Target at Highpoint Shopping Centre in approximately an hour. Saylav indicated that was “very tight” as he had to pick up guests from China who were landing at Tullamarine at 9.30 am. Saylav stated if you met him at the airport that would be perfect, given the pick-up time of 9.30. You suggested meeting at McDonald’s near the airport, and asked about 9.00 am. Mr Saylav said he would see you there.
6 At approximately 9.02 am on that same day, intercepted material also revealed a conversation between you and Saylav, with you stating you would be at the McDonald’s petrol station in two minutes. A short time later you arrived at that service station.
7 You got out of the driver’s seat of your car and opened the rear cargo door. Saylav approached the rear of your vehicle and had a short conversation with you. During that conversation Saylav gave you an AUD$5 note bearing a serial number ending in 460 for identification purposes.
8 At the end of the conversation you removed a small grey backpack from the rear of your vehicle and handed it to Saylav, who then returned to his car and left the service station. You also departed the service station.
9 The vehicle driven by Saylav was then intercepted by members of the AFP and ACIC.
10 The grey backpack was searched, and a large quantity of Australian currency was located and seized. Saylav was arrested and participated in a record of interview, being released pending further enquiries.
11 On that same date, 4 May 2016, you received a cash deposit of $3,000 into your NAB account.
12 On 11 May 2016 a search warrant was executed at Saylav’s business premises at Avalon Airport, and on 19 July 2016 a search warrant was executed at your address in St Kilda, where a number of items were located, as set out within the prosecution opening (paragraph 16).
13 You were arrested at 10.15 am on 19 July, and on that date participated in a record of interview.
14 In that interview you made selective “no comment” responses in relation to the cash handover that had occurred on 4 May 2016, you were of course entitled to answer no comment. You also said you worked part-time jobs and that you did not have any assets, and did not have access to a large amount of money.
15 At the time you were arrested for this offending you were living in public housing in St Kilda. You did not have a closing balance in your NAB bank account greater than $4,408.68, between the period November 2012 and July 2016.
16 You were charged with the two offences before me. The Australian currency seized totalled $500,050.00.
17 At the time you committed this offence you were on Victorian parole in relation to the sentence imposed by the New South Wales Court of Appeal on a charge of conspiracy to supply heroin. You were serving part of that sentence in Victoria due to your ties in this State.
18 By committing the offence on the indictment before me, you breached a condition of your parole.
19 You have a prior criminal history to which I have just briefly referred. You appeared at the Sunshine Magistrates’ Court on 20 July 2012 charged with possessing methylamphetamine and sentence of two months’ imprisonment was imposed.
20
Prior to that you had initially appeared at Sydney Central Local Court on
22 March 1991 on drug offences. Following an appeal you were re-sentenced regarding that to 24 years’ imprisonment with a minimum term to be served of 18 years. Your parole relates to that offending.
21 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. There is a utilitarian benefit in your pleas of guilty to the court, and I also note your pleas of guilty at the earliest opportunity. I shall refer to this again later in these sentencing remarks.
22 Mr Mandy, who appeared on your behalf, prepared a written outline of submissions and addressed them during the course of your plea hearing. The summary of facts as filed by the prosecution, he stated, was accepted by you as accurate. You were the only person charged in relation to this transaction.
23 You were most recently released from your sentence imposed in New South Wales in 2007.
24 Following being sentenced to two months’ imprisonment in 2012 your parole from the 1991 sentence was extended to September 2018. Mr Mandy said you theoretically “owed” the Parole Board 2042 days, and I discussed this briefly with him.
25 Turning to your background and history, you are 64 years of age, were born in Hong Kong, and are the seventh of eight children. You grew up in severe poverty.
26 You completed only rudimentary schooling. By the time you reached secondary school you were working part-time and attending school irregularly, finally leaving school at age 13 or 14.
27 You then worked primarily in factories, and were a seaman on merchant vessels.
28 You migrated to Australia in 1973, when you were 23 years of age, with your first wife. Neither of you spoke much English and you felt very isolated. You found work in factories and sent some money home to your family. In Australia you experienced a very poor standard of living as a result.
29 I discussed with Mr Mandy your involvement at times over the years, also in the restaurant business.
30 You have two children now 35 and 33 years of age. When they were very young you were sentenced for your role in the importation of heroin, to which I previously referred.
31 In custody you attempted to improve your English and other skills, but were depressed and isolated.
32 When released in 2007 you worked as a kitchen-hand before you married again in 2010, prior to you being imprisoned for two months in 2012.
33 You have used stimulants in the past intermittently to relieve symptoms of depression.
34 Mr Mandy submitted you reported and presented to him as a man who had led a sad and bleak life.
35 Mr Mandy urged your motivation for this offending was financial and you had received $3,000.
36 You have been in custody since 30 July 2016 as at the date of your plea, approximately six months. Mr Mandy urged your moral culpability was not high, and that you had pleaded guilty to these two charges.
37 Mr Mandy, during the plea, changed his submission from that originally stated to ultimately a straight sentence (of days served at date of sentence). His secondary submission, without abandoning that submission, was a term of imprisonment be imposed with a Recognisance Release Order.
38 Ms Go appeared on behalf of the prosecution, and provided a written outline of submissions relevant to sentence (Exhibit B).
39 Ms Go referred to the maximum penalty relevant to Charge 1 having been increased on 19 March 2010 by the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2009 (Cth), from two to three years. She submitted, and I accept, that reflects the objective seriousness of this offending, as considered by parliament.
40 Ms Go referred to the Second Reading Speech relevant to that Bill, which made it clear the proposed then Act was intended to implement a range of measures to combat serious and organised crime. Also, the Explanatory Memorandum relevant to that implementing legislation stated the increase in sentence was intended to reflect “the serious nature of possessing the proceeds of crime worth more than $100,000 and the significant criminal activity that has generated $100,000 or more.”
41 The prosecution submission on appropriate sentence was that after taking into account all the relevant sentencing considerations, a term of imprisonment was the only appropriate disposition for your offending, and that time served to date was not sufficient.
42 I was directed to the relevant sentencing principles applicable when sentencing federal offenders contained within Part IB Crimes Act 1914 (Cth).
43 When sentencing a federal offender the primary obligation of the court is to impose a sentence of a severity appropriate in all the circumstances of the offence.
44 Section 16A(2) Crimes Act 1914 (Cth) also sets out a non-exhaustive list of the matters which must be taken into account when sentencing you.
45 I was referred to a recent amendment of the Crimes Act 1914 (Cth), amended by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015, specifically s16A(2)(ja) referable to the need for general deterrence. In the decision of R v Yi-Hua Jiao[1] the New South Wales Court of Appeal stated, referring to s.400.9 offences:
“Money laundering offences are very serious offences in respect of which the need for general deterrence is of particular significance.”
[1] [2015] NSWCCA 95 at [5]
46 Further, in R v Huang; R v Siu[2], the importance of general deterrence for such activity was also stated. Referring to general deterrence, Ms Go submitted, and I accept, that money laundering facilitates criminal activity and that there needs to be a signal to those who choose to become involved in money laundering that the potential rewards to be gained from such activities are neutralised by the risk of punishment.
[2] (2007) 174 A Crim R 370
47 I note the need for general deterrence when sentencing for State offences also. In Moon Ja Kim v R; Zhe Fhang v R[3], the Victorian Court of Appeal identified some of the principles applicable when sentencing for money-laundering offences under the Code (paragraph 14 of the prosecution opening). I note, as the prosecutor submitted, there needed to be some, she said "tweaking" of those principles in light of the particular offence I am to sentence you for such as referred to at paragraph 14(f), and I agree.
[3][2016] VSCA 238
48 Your actions which constituted your offending, in the period over which it was committed, the number of transactions involved, the amount involved in the offending, and your role in this arrangement, are relevant principles and relevant considerations when determining the appropriate disposition in your case.
49 A number of factors were relied upon by the prosecution in that regard relevant to you (paragraph 20 of Exhibit A). The prosecutor submitted, and I agree, that there were a number of features of your offending which were relevant when assessing the nature and circumstances of it, to which I should have regard.
50 There was a large amount of cash involved in the transaction ($500,050), from as it currently stood, an unknown source.
51 Also the amount involved was significant, approximately five times more than the threshold of $100,000. Such, the prosecutor submitted and I agree, is relevant when assessing the objective seriousness of your offending.
52 The prosecution also submitted this to me, supported by your record of interview and also the submissions by Mr Mandy, that the amount of money involved was grossly out of proportion to your income and expenditure. In your record of interview, you said you had worked most recently in part-time jobs, did not own any assets, and did not have access to a large amount of money.
53 Ms Go also referred to the delivering and handover in the petrol station carpark of the money, the use of a $5 note as a means of identification (although I note this note was produced by Saylav), and that there was a significant amount of money involved in the form of cash. I agree.
54 Turning to your specific role, the prosecution submitted and I accept, you were not the author or the instigator of this arrangement, and that the money likely belonged to another person. I do agree with the prosecution, however, that you played a crucial role in facilitating the movement of the money. You had been trusted to handle a very large amount of cash on this occasion, which tended to indicate you were an important and trusted participant in the enterprise.
55 It is clear also that your offending was committed for financial gain. You received $3,000 cash on the date of the handover of that money.
56 Turning to your plea of guilty (s.16A2(g)) and your contrition (s.16A2(f)). The prosecution submitted, and I accept, you pleaded guilty to these charges at the earliest opportunity at a committal mention hearing on 17 October 2016. I am obliged to and must and do take that into account. It is a mitigating factor as it has a utilitarian value, saving the community the expense of a contested trial.
57
The prosecution submitted this was a strong prosecution case, and that must be taken into account when assessing the subjective value of your guilty pleas. It was submitted that a guilty plea entered in the face of a strong prosecution case should not be afforded as much weight as the plea entered in circumstances where the prosecution case is weak. It was conceded by
Mr Mandy this was a strong prosecution case relevant to this charge, with an abundance of evidence proving your involvement in the handover of the money to Saylav at the petrol station.
58 Turning to remorse, I accept your pleas of guilty are indicative of some remorse for your offending, although, as I understood her submissions, Ms Go urged that for that to be mitigating you needed to satisfy the court there was genuine penitence, contrition, and a desire to atone. In that regard I heard some submissions from Mr Mandy referable to your possible belief this money was potentially legitimate. That, however, is not specifically relevant to this offence. I accept you are not seeking to raise that at trial, does reflect a level of your remorse. I do have some concerns about the extent of your remorse for this offending, however having said that, I do not find you are not remorseful.
59 Addressing s.16A(2)(h) the prosecutor submitted, and I accept, that you did not make any admissions to this offending when spoken to in the record of interview by the Australian Federal Police, and I discussed that with Mr Mandy. To date you have not provided an explanation for the source of the funds, and maintained that position as at your plea hearing.
60 Ms Go submitted there was a need for specific deterrence when sentencing you (s.16A(2)(j)). I agree. I note that at the time of this offending you were on Victorian State parole. You also have prior court appearances or appearance.
61 Turning to your character, antecedents, age, means and physical or mental condition (s.16A(2)(m)) and prospects of rehabilitation (s.16A(2)(n)), Ms Go conceded that whilst there were prospects of rehabilitation, she said they were tempered by your mature age and prior criminal history.
62 I am concerned regarding your rehabilitation prospects given your prior convictions for drug offences, and your offending before me occurred whilst on a State parole order, and also your offending in 2012, as I understand, was also whilst on parole, which does raise some concerns about your prospects of rehabilitation.
63 Turning to the need for appropriate punishment s.16A(2)(k), Ms Go submitted and I accept, that the activity of money laundering was a serious criminal offence, with a need to reflect general deterrence, and the objective seriousness of your offending, required both general and specific deterrence.
64 In determining the appropriate sentence in this case, I am mindful of s.17A(1) which states a court may only pass a sentence of imprisonment on a person for a federal offence if having considered all other available sentences, I am satisfied no other sentence is appropriate in all the circumstances. Similar principles apply when sentencing under State legislation.
65 Turning to the summary charge, Sentencing Act 1991 (Vic) again, s.78A, Corrections Act 1986, pursuant to s.16(3)(B)(a), unless otherwise directed by the court because of the existence of exceptional circumstances, any sentence I impose in relation to that charge must be served cumulatively upon the sentence I impose for Charge 1 on the indictment. No exceptional circumstances were urged upon me. I am also of the opinion there are no exceptional circumstances applicable.
66 Mr Mandy submitted your moral culpability for this offending was ‘not high’ and I discussed that briefly with him. Whilst I agree that your moral culpability was not high, I do not regard it at the lowest end of the spectrum either regarding its gravity.
67 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, which I regard as reasonable, I must also take into account matters such as general deterrence, which is of considerable importance in a case such as this. I have also referred to the need for specific deterrence in your case.
68 I have to also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am still concerned about that.
69 I am also required to manifest the community's denunciation of your conduct and generally to impose a just punishment.
70 Turning to Mr Mandy's primary submission, I disagree that time served would be the appropriate sentence. In my opinion, time served to date of sentence of 205 days would not adequately reflect all relevant considerations, including not only the circumstances of your offending, but relevant sentencing principles and all matters in mitigation of your sentence.
71 So I therefore sentence you as follows.
72 On Charge 1 (Commonwealth), you are convicted and sentenced to 12 months' imprisonment.
73 On the summary charge (State), you are convicted and sentenced to 1 months' imprisonment.
74 That results in a total effective sentence of 13 months, so that is 12 plus one. I direct that you serve a period of 8 months of the Commonwealth sentence (I will explain this to counsel) and thereafter be released on a Recognisance Release Order for the remaining 4 months of the Commonwealth sentence in the sum of $500 for a period of 12 months.
75 This needs to be correct. I want Mr Tsui to know I am not negotiating the sentence with the prosecutor. I have decided. But it needs to be correctly worded because it is State and it is Commonwealth sentence, two different types. So this is going to take a little bit of time. I am not negotiating the sentence. It is very important you understand that. This is what I am trying to achieve, so it is 12 months for the Commonwealth and one month State, cumulative. No exceptional circumstances, cumulative. Total 13. He has to do his one month, State.
76 Then it is eight months of the Commonwealth sentence which was 12 (12 less eight is four) so when he is out after the eight months of the Commonwealth sentence so I am not sure whether it should be worded after nine months to include that one month or if it is correct to say after the eight months of the Commonwealth sentence because we all know that is cumulative anyway. So my plan is eight months of the Commonwealth sentence plus the one month of the State total nine months if you like, then after the eight months of the Commonwealth sentence, which is part of the nine months, is out on a Recognisance Release Order for four months, which is the difference between 12 minus eight and it is for a period of 12 months, in the sum of $500. Now that is what I want to achieve. Madam, I do not know, does that make sense to you?
77 MS GO: Yes, Your Honour.
78 HER HONOUR: Is it worded correctly? Or should it be after nine months?
79 MS GO: No.
80 HER HONOUR: Or can I make it clear it is the Commonwealth eight months?
81 MS GO: The second one, Your Honour.
82 HER HONOUR: Good, so long as that is clear.
83 MS GO: And just to be clear, Your Honour, for the State charge.
84 HER HONOUR: Yes.
85 MS GO: If you can word it that it is imposed commencing today - - -
86 HER HONOUR: Yes, I was going to.
87 MS GO: And then the Commonwealth charge - - -
88 HER HONOUR: It was going to be that, did I say that here somewhere? I certainly intended to. It starts today - no I had not got that far. The next paragraph directly after what I had said; was: the State sentence commences today, 9 February 2017 and the Commonwealth sentence will commence after the State sentence is been completed. No, I have not put a time because sometimes there are lockdowns, days off, administrative and all of this sort of business, but that is the way I understand - I just had not quite got to that. Sorry. Now does that make sense, Mr Mandy?
89 MR MANDY: Yes and that last bit will achieve that result, Your Honour.
90 HER HONOUR: Yes, now does the sentence make sense to you, as the best you can do it? With a combination of State and Commonwealth?
91 MR MANDY: Yes.
92 HER HONOUR: Well it is over to you Ms Go, I want this right. No offence.
93 MS GO: Yes, Your Honour.
94 HER HONOUR: I have been led down the garden path before; not by you.
95 MS GO: Your Honour. As long as the State sentence is worded as imposed, commencing today - - -
96 HER HONOUR: As I just said.
97 MS GO: And then the Commonwealth one - - -
98 HER HONOUR: After the State sentence.
99 MS GO: After the expiration of the State sentence - - -
100 HER HONOUR: Yes, after the State sentence is completed, that is the same wording is it not? After the State sentence has expired.
101 MS GO: Yes.
102 HER HONOUR: So it will be one month, however that eventuates; days out - I do not know, if there are any reduction administratively, that is for the prison. But one month plus 12 months for the Commonwealth - total 13. Does all that make sense?
103 MS GO: Yes, Your Honour.
104 HER HONOUR: Is all of that doable legally?
105 MS GO: Yes it is, Your Honour. And also I thought it was 206 days.
106 HER HONOUR: It will be up to and including yesterday.
107 MS GO: Okay, sorry, I included the day.
108 HER HONOUR: I used to include the day of sentence and I was promptly told off about that, so no it is by the authorities who go out and fix all these things up administratively. So no it is up to and including yesterday, 205 days, I have not come to that yet, I have not formalised it, I have not explained this to him yet. I just want to know that what I propose is doable.
109 MS GO: Yes, it is doable.
110 HER HONOUR: So you are going to prepare the documents are you not?
111 MS GO: Yes. I can fill it in with the - - -
112 HER HONOUR: You certainly will. All right well I will have a look at that. We have got to keep moving, we have got other things to say. Let us have a look at that. I mean of course the reality is that it could be a long time before he gets to the Recognisance Release Order as to when he gets out. All right, well that is that and today's date is 9 February 2017 and in a moment you will have to go to the back and have a chat to him but I have to explain things to him as you are probably aware. Now, could you stand, Mr Tsui, please?
113 I have to explain to you a few things about this proposed Recognisance Release Order. I have to use terms you are likely to understand. I hope you are not offended by that, that is what the law says. You do not have to pay the $500 unless you breach the Recognisance Release Order. If you commit another offence, and it does not have to be money laundering, but any other offence you can be brought back before me and you can be charged for that offending and then I will also have to re-sentence you on this offending. So you are likely to get more gaol time basically and you will also have to pay $500.
114 So regarding this Recognisance Release Order, you have to serve nine months in gaol in total. Then you will be out on a Recognisance Release Order for the remaining four months of your sentence for a period of 12 months, maybe. So if you are in the community you have got to do what community corrections tell you. Is that satisfactory? In words he understands do you think, Mr Mandy? You will have a word to him I suppose?
115 MR MANDY: Yes, sure.
116 HER HONOUR: Now, listen carefully. Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict. In other words if you had pleaded not guilty to these two charges but been found guilty of them I would have sentenced you to 2 months on the summary charge and 2 years on the Commonwealth charge to be served cumulatively upon the State sentence, and I would then have directed that after 14 months in custody you would be released on a Recognisance Release Order for the balance of the Commonwealth sentence of 6 months for 18 months. Now, that is not happening today.
117 Pursuant to s.18(4) Sentencing Act 1991 I direct you have served 205 days in custody by way of pre-sentence detention as at and including yesterday, 8 February 2017, and I direct that that be entered into the records of the court.
118 No other orders were sought by the prosecution in this matter.
119 Now, I have not done the maths, Mr Mandy can correct me if I am wrong but it is approximately, what would you say, two and a half months to go, give or take? He has done six and a bit has he?
120 MR MANDY: Yes.
121 HER HONOUR: He has got nine.
122 MR MANDY: Yes, that is about right.
123 HER HONOUR: You have done about six and a bit, you have to do nine. So you have got about - do not quote me on this - two and a half-ish months to go on this - as far as this sentence. I mean I know you have got other issues but as far as this is concerned. Does that make sense?
124 MR MANDY: Yes, Your Honour.
125 HER HONOUR: So you are perfectly clear about that, Mr Mandy?
126 MR MANDY: I am, Your Honour.
127 HER HONOUR: You are at least clear about it, whether you agree with it or not, I was not asking. And so can you now go back and have him sign this document? This is the Recognisance Release Order.
128 MR MANDY: Yes, Your Honour.
129 HER HONOUR: And just check that it is in the right terms, thank you.
130 MR MANDY: Yes, Your Honour, thank you.
131 HER HONOUR: All right then. I will not have this formally entered into the records of the court until about 3.30 this afternoon. If you go away and find that the order is in some way wrong again, not negotiating figures but simply the format, then can you notify my associate because Mr Tsui will still probably be here at 3.30. But I just want to make sure before it is entered into the records of the court that it is correct. Is there anything further?
132 MS GO: Thank you.
133 HER HONOUR: No? Thanks, Mr Tsui, you have to go first if you don't mind. Thanks very much.
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