Director of Public Prosecutions v Wang
[2024] VCC 1779
•7 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.
CR-23-01656
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| WEI WANG | Defence |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2024; 16 October 2024 | |
DATE OF SENTENCE: | 7 November 2024 | |
CASE MAY BE CITED AS: | DPP v Wang | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1779 | |
SENTENCE
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Subject:Dealing with property reasonably suspected of being proceeds of crime contrary to section 400.9 of the Criminal Code Act 1995 (Cth)
Catchwords: plea of guilty – illegal money remitter - dealt with $33,001,364 - delay – deportation – parity
Legislation Cited: Financial Transaction Reports Act 1988 (Commonwealth); Crimes Act 1914 (Cth); Migration Act 1958 (Cth).
Cases Cited:Kai Yang Kao v R [2019] VSCA 84; Paul Ngo [2021] VSCA 21; R v De Simoni (1981) 147 CLR 383; Shi (2014) 246 A Crim R; R v Jiao (2015) 251 A Crim R 236; R v Ansari (2007) 70 NSW LR 89; R v Nikodjevic [2004] VSCA 222; R v Guden [2010] VSCA 196; Hiu Mei Lam v R [2021] VSCA 241; R v Merrett, Piggott and Ferrari (2007) 14 VR 392; R v Pham (2015) 256 CLR 550; Hili v The Queen (2010) 242 CLR 520.
Sentence:Total effective sentence of three years and nine months imprisonment with a non-parole period of two years and six months. Pre-sentence detention: 70 days.
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APPEARANCES: | Counsel | Solicitors |
| Commonwealth Director of Public Prosecutions | Mr M Wilson | Commonwealth Director of Public Prosecutions |
Defence for Mr Wang | Mr L Hartnett and Ms M Brown | Ellinghaus & Linder Lawyers |
HIS HONOUR:
1 Wei Wang you have pleaded guilty to four federal offences, namely:
(a) two charges of dealing with property, valued at more than $100,000, reasonably suspected of being proceeds of crime contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth); and
(b) two charges of dealing with property, valued at more than $10,000,000, reasonably suspected of being proceeds of crime contrary to s 400.9(1AA) of the Criminal Code Act 1995 (Cth).
2 The maximum penalty for an offence under s 400.9 (1) is three years imprisonment.
3 The maximum penalty for an offence under s 400.9 (1AA) is five years imprisonment.
Circumstances of offending[1]
Charges one, two and three
[1] The circumstances of your offending are set out in the Federal prosecution opening dated 9 July 2024 (Exhibit A). They are agreed facts.
4 During the offending period, you operated a money transfer business which was used to launder money.
5 Your customers provided you with large sums of cash.
6 In exchange, you remitted monies, which you had received, to customers’ overseas bank accounts.
7 You also obtained crypto currency, using cash you had received from customers, which you transferred to nominated wallets from your crypto currency account.
8 At times, you collaborated with Boliang Liu, who ran a similar business.
9 Your offending commenced in December 2020. By that time, you had set up numerous bank accounts in names other than your own.
10 Between December 2020 and October 2021, you used these bank accounts to receive some $16 million in cash deposits to be dealt with on behalf of your customers.
11 Between 15 December 2020 and 26 January 2021, you received cash, totalling $3,050,650, in 988 separate cash deposits, into six different bank accounts which you held in the name of two entities (charge one).
12 Between 20 February 2021 on 13 October 2021, you received cash, totalling $12,746,920, in 1635 separate cash deposits, into 38 different bank accounts, which you held in the name of eight entities (charge two).
13 You used a money runner, Tao Zhou, to collect the cash from your customers and deposit it, at ATMs, largely in Melbourne’s eastern suburbs, into bank accounts, which you controlled.
14 None of the bank accounts were in your name. They were in the names of “appropriated identities”.
15 The deposits were made in more than 2500 transactions, all $10,000 or less, to avoid the mandatory financial reporting obligation.[2]
[2] See Financial Transaction Reports Act 1988 (Commonwealth).
16 Some of your instructions to Zhou were captured in WeChat conversations. [3]
[3] Summary prosecution opening, [71] – [76].
17 They show you told him who to collect money from and the amounts to be collected. You also told him the amounts to deposit into accounts which you nominated. On occasion, to comply with these instructions he had to make multiple cash deposits into multiple accounts.[4]
[4] Ibid, [74].
18 In another communication, on 7 October 2021, Zhou sent you a photo of a person in police custody with the caption “cops everywhere”. You replied, “keep a low profile don’t being [bring] too much with you”.[5]
[5] Ibid, [77].
19 You also had an interest and skill in crypto currency trading.
20 People you knew, including Liu, sought your help to convert Australian dollars to crypto currency.
21 Between 5 April 2021 and 13 October 2021, you received crypto currency, valued at $16,986,294, into your crypto currency account, in 87 separate transactions, from three crypto currency accounts held by two entities (charge 3).
22 You then transferred crypto currency, equivalent to the Australian dollars you had received, out of your crypto currency account to other nominated wallets.
23 Some of the money, four million dollars or more, which you received as crypto currency was the proceeds of Australian currency you had received from customers into the various Australian bank accounts you controlled.[6]
[6] Ibid, [86].
24 Your money laundering activities ended on 14 October 2021, at Mount Waverley, when police stopped you while you were driving your motorcar.
25 In your car, they found $117,500, in cash, in a box. At your home, they found $100,000, in cash, in a bag (charge four).
26 You had received the cash from clients who wanted you to launder it through your money transfer business.
27 At your home, police also found a MasterCard and Visa cards, in two names, and a bank document, in another name, which matched the “appropriated identity” bank accounts which you used to receive money. You also had eight telephone handsets.
28 Police arrested you under suspicion of money laundering.
29 At interview, when they asked you about multi-million-dollar cash deposits being received into numerous bank accounts, some of which were linked to you, by phone number or email address, you said “it’s nothing to do with me”.
Chronology of proceedings
30 You were charged with money laundering offences and remanded in custody.
31 On 22 December 2021, you were admitted to bail.
32 Following a committal hearing, on 20 September 2023, you were committed to the County Court to stand trial on federal money laundering charges.
33 Over the ensuing months there were complex resolution discussions between the CDPP and your legal representatives.
34 On 18 July 2024, you were arraigned and pleaded guilty to the charges on the indictment before the court.
35 By your guilty plea you admit, by:
(a) your receipt of $3,050,650, in cash, into 6 bank accounts, between 15 December 2020 and 26 January 2021 (charge one);
(b) your receipt of $12,746,920, in cash, into 38 bank accounts, between 20 February 2021 and 13 October 2021 (charge two);
(c) your receipt of crypto currency, usually USD Tether (USDT), valued at $16,986,294, into your crypto currency account, by Binance (Chancery); and
(d) your possession of $217,500 in cash on 14 October 2021 when police arrested you (charge four),
you dealt with money reasonably suspected of being proceeds of crime.
36 In all, you unlawfully dealt with cash and cryptocurrency totalling $33,001,364.
37 You are not to be sentenced for transferring money out of bank accounts, transferring crypto currency or engaging in money transfer activities. Your money transfer business gives the context to your receipt of cash deposits into your nominated bank accounts and crypto currency into your crypto currency account.
Objective seriousness
38 As the maximum penalties demonstrate, section 400.9 offences sit at the bottom of the structure of Federal “money laundering” offences.[7]
[7] Kai Yang Kao v The Queen [2019] VSCA 84, [67].
39 The sentencing principles are well-established.[8]
[8] Samarakoon v The Queen [2018] VSCA 119.
40 The offence does not require proof of any knowledge or belief as to the provenance of the money dealt with.[9]
[9] Kai Yang Kao v The Queen [2019] VSCA 84, [68]; Ngo v The Queen [2021] VSCA 21, [45].
41 Accordingly, there is little room for differentiation based on the state of mind or knowledge of an offender as to whether or not the money was proceeds of crime.
42 If an offender knew, or was reckless or negligent, as to whether, the money was proceeds of crime they would be guilty of a different and more serious offence. [10]
[10] Sentencing on the basis that a belief or suspicion was an aggravating feature of an offence under section 400.9 would be contrary to principle. See R v De Simoni (1981) 147 CLR 383; Shi (2014) 246 A Crim R; Kao v The Queen [2019] VSCA 84, [68].
43 In assessing the objective seriousness of your offending, the value of the proceeds of crime is a paramount consideration.[11]
[11] R v Jiao (2015) 251 a Crim R 236, [66].
44 You dealt with $33,001,364, in cash and crypto currency. There was some overlap in currencies as far as you used some of the cash you received to transfer crypto currency, which you received into your crypto currency account, to overseas wallet holders.
45 An offender’s role in engaging in financial transactions to launder money is also relevant.[12]
[12] R v Ansari (2007) 70 NSW LR 89, [123].
46 The money was not yours. You played a facilitative role.
47 While your communications with Zhou suggest each of you had some suspicion about the unlawfulness of your money dealings, there is no evidence you knew the source of the funds. However, you knew how much you are dealing with.
48 You were engaged in a protracted course of conduct, over a 10 month period. Each of the 2623 deposits of cash, totalling $15,797,570, which you received into bank accounts, which you controlled, was a discrete instance of money laundering.
49 Additionally, you received crypto currency to make transfers to customers, and other nominated persons, to the value of the $16,986,294
50 There was a degree of sophistication to your offending. It was large-scale money laundering, engaged in for profit, and involved the use of many bank accounts in the names of multiple entities, and a crypto currency account.
51 To reduce the risk of your detection, you used “appropriated identities” for the bank accounts and you used Zhou as your money runner.
52 You charged your customers a commission for your services.
53 There is no direct evidence of your actual earnings.
54 However, you paid Zhou a wage which seems to have varied between $400 and $900, a day, depending on the amounts of cash he had deposited.[13]
[13] ibid, [75].
55 It would be reasonable to infer you are paying him less than what you were earning in commissions and, considering you were turning over millions of dollars, I would conclude your profit was not insignificant; likely some thousands, rather than hundreds, of dollars a week.
56 Considering the enormous sums of cash and crypto currency you dealt with and your crucial role in money-laundering, I assess the objective seriousness of your offending to be above mid-range offending of the type.
57 And, considering you engaged in a relatively sophisticated course of conduct over a lengthy period of time, which ended only when police arrested you, I assess your moral culpability to be high.
Criminal record
58 You do not have any criminal record.
Personal circumstances
59 You were born in January 1989 in Dafeng Province, China.
60 Your mother is an accountant; your father, a banker.
61 You went boarding school where you performed well academically. Your father wanted you to pursue a career in banking in China.
62 Instead, you applied to come to Australia. You arrived in October 2009 on a study visa.
63 In 2015, you were granted permanent residency.
64 In Australia, you completed an accounting degree and then commenced a Master’s degree in business.
65 In 2012, you met Mr Liu and started playing regular poker at his home. Initially, the stakes were modest but increased over time.
66 In 2016, you entered into several business projects, including property investment, with him. You borrowed significant monies from your parents to buy properties for redevelopment.
67 In 2017, you began investing in “crypto”, again using funds your parents contributed.
68 In 2018, and following, because of falling crypto and property markets, you lost several hundred thousand dollars of your parents money. You were also gambling heavily.
69 You said, in this context you were drawn to the earnings you could make from the unlawful money transfer business.
70 You had otherwise been a high functioning and law-abiding member of the community.
71 You have no history of mental health problems. However, since your arrest you have suffered insomnia and disturbed mood which, I accept, are attributable to the stress of the imposition of an inevitable prison sentence on you.[14]
[14] See psychological report of Luke Armstrong 2024 (Exhibit 2).
72 Your GP has prescribed medication for your insomnia and anxiety and put you on a mental health treatment plan.[15]
[15] See certificate of Dr Zhi Wang [Exhibit 3) prescription (Exhibit 4).
73 Since the December 2021, you have been subject to strict bail conditions which included daily reporting to police, a curfew and restrictions on your use of digital devices.
74 Your girlfriend, whom you met in 2018, has stood by you. She is also Chinese. Pandemic related travel restrictions kept you apart for a lengthy time. In July 2024 she returned to Australia to be with you. You have been donating to a charity, [16] and doing volunteer work and you are an active member of your Buddhist temple. She knows you as a kind and responsible person. She hopes one day you will have a family together.[17]
[16] Make a wish donation receipts (Exhibit 9).
[17] Reference of Huan Wu (Exhibit 7).
75 You have been working in a tech company focused on block chain services. You helped your business partner recover substantial monies lost when his crypto currency wallet was hacked.[18] He plans to start a new tech company with you after you are released from prison. He also knows you as a good and responsible person.
[18] Reference of Hao Wang (Exhibit 8).
76 Another friend, at your temple, describes you as kind and generous.[19]
[19] Reference of Jinmiao Wu (Exhibit 6).
77 Your parents are deeply disappointed by your actions. However, they forgive you for the loss of their money.[20] They have said they will help you rebuild your life.[21]
[20] Report of Luke Armstrong, page 5, (Exhibit 2).
[21] Reference of Tianyan Jin (Mother) (Exhibit 5).
78 You have expressed regret and shame for your actions to your family, friends and the psychologist.
Defence submissions
79 All Counsel made comprehensive written and oral submissions. While I have considered them carefully, I will refer to them only briefly.[22]
[22] Written submissions (CDPP) (Exhibit C); Written submissions ((Exhibit 1).
80 Mr Hartnett who, with Ms Brown, appeared on your behalf, accepted the seriousness of your offending, where you dealt with millions of dollars of cash, and crypto currency, in hundreds of transactions, over a 10 month period, warrants the imposition of a sentence of imprisonment.
81 They argued, the following factors operate to moderate the length of the prison term, namely:
(a) Your good character: you are a first offender who has made contributions to the community;
(b) you guilty plea for its utilitarian value and as evidence of your remorse;
(c) delay, some three years, in sentencing,[23] because, firstly, you have had the prospect of a prison term hanging overhead and, secondly, you have demonstrated progress towards your rehabilitation; and
(d) risk of your deportation after you have served your sentence; because the uncertainty will make prison harder for you and, if you are deported, you will be additionally punished because you will have lost the opportunity to settle permanently in Australia which has been your home for the last 15 years.[24]
[23] R v Nikodjevic [2004] VSCA 222.
[24] R v Guden [2010] VSCA 196.
82 They submitted, considering you are a first offender, who is remorseful and has strong prosocial support from you partner and parents, I should conclude you have excellent prospects of rehabilitation.
Prosecution submissions
83 Mr Wilson, who appeared for the Commonwealth Director of Public Prosecutions submitted, because your federal offending involved:
(a) a course of conduct;
(b) of dealing with considerable sums of cash and crypto currency;
(c) in a multiplicity of transactions;
(d) using bank accounts in the names of “appropriated identities”;
(e) with a degree of organisation and planning;
(f) over a lengthy period;
(g) for profit,
it was objectively very serious.
84 He submitted, because general deterrence is an important sentencing principle, the court is required to impose a sentence sufficient to deter would-be offenders from yielding to the enticement of profits from money-laundering.
85 He submitted, in all the circumstances of the case, a head sentence, which requires a non-parole period to be fixed, is the appropriate sentence.
86 He accepted the length of the sentence is to be moderated for
(a) your good character;[25]
(b) your guilty plea for its meaningful utilitarian value in the facilitation of the course of justice; and
(c) the delay in sentencing and the risk of your deportation.
[25] Although the weight to be given to it should not undermine the need for general deterrence and just punishment.
87 He submitted, because you engaged in a sustained course of illegal conduct for financial gain, I should be cautious in assessing the prospects of rehabilitation.
88 He provided me with a table which contained a selection of intermediate appellate decisions relating to offences under s 400.9 (1).[26]
[26] Table of comparative cases (Exhibit C).
Consideration
89 You are to be sentenced in accordance with part 1B of the Crimes Act 1914 (Cth) (‘the Act’). .
90 The Act directs the court to impose a federal sentence that is of a severity that is appropriate in all the circumstances of your offending.[27]
[27] Section 16A of the Crimes Act1914 (Cth).
91 In doing so, I must have regard to the non-exhaustive list of matters in sub-s16A(2) of the Act, as far as they are relevant and known to the court.
92 A term of imprisonment is the sentence of last resort.[28]
[28] Section 17A(1) Crimes Act1914 (Cth).
93 There are mitigating factors which moderate the individual sentences I will impose and the non-parole to be fixed.
94 Firstly, your guilty plea has high utilitarian value. It also shows your willingness to facilitate the course of justice and your acceptance of responsibility for your actions.
95 Secondly, I accept you are genuinely remorseful for your wrongdoing. So much is evident from you guilty plea, your expressions of contrition, which I regard as sincere, to others, and your cooperation with authorities in resolving the director’s application, under the Proceeds of Crime Act 2002 (Commonwealth) for a forfeiture order of cash totalling $221,482.50 and crypto currency valued at $221,644.14, which police seized from your car and home on 14 October 2021.[29]
[29] See Proceeds of Crime Act, section 320. A court is precluded from having regard to the forfeiture of the proceeds of the offence
96 Thirdly, as a result of the prison sentence I will impose, as a Chinese citizen, you face the prospect of cancellation of your visa and deportation.[30] I accept this will likely cause you anxiety during your incarceration and, if you are deported, will deny you the chance to remain in this country, which you have made your home for 15 years.[31]
[30] Migration Act 1958 (Cth), s 501(3A).
[31] Hiu Mei Lam v The Queen [2021] VSCA 241, [38].
97 Fourthly, you have led an otherwise blameless life. You have also made contributions to your community. Your good character is relevant, particularly to the assessment of your prospects of rehabilitation.[32]
[32] However, it must not undermine the need for general deterrence and just punishment.
98 Fifthly, it is three years since you committed these crimes. During this period, you have suffered a natural anxiety in relation to your future, which is additional punishment.[33] More, when you were released on bail you made the most of your chance to progress your rehabilitation which will now necessarily be interrupted by a period of incarceration.
[33] R v Merrett, Piggott and Ferrari (2007) 14 VR 392, [35]-[37].
99 Your rehabilitation is another important sentencing consideration.
100 While your offending was sustained and protracted, and only ended because of police intervention , because you have accepted responsibility for your actions and, with continued strong family and peer support, you have substantially progressed your rehabilitation, I am satisfied you are unlikely to reoffend. In my view, you have excellent prospects of rehabilitation.
101 I previously sentenced Mr Liu, who ran a money transfer business similar to yours. At times, he collaborated with you. His offending was broadly comparable to yours. I also sentenced Mr Zhou who acted as a money runner for both of you.
102 Because of the connection between the three of you, and common features of your offending, parity is another relevant sentencing consideration. It is an aspect of equal justice which requires like be treated alike, while recognising differences between them.
103 Additionally, because you are to be sentenced for several offences, the totality principle has application. I have moderated the individual sentences and the orders for cumulation to ensure your total effective sentence is an appropriate measure of your overall criminality.
104 Charges 1 and 2, your dealings with cash, represent a continuing course of conduct. Separate charges were laid because of a change in the legislation.
105 You committed your crypto currency offending, during the time you were also dealing with cash. So, there is some overlap in time between these charges.
106 And some of the cash that you received, which is the subject of charge 2, was money which you dealt with in crypto currency. So, there is some overlap in quantum.
107 Again, these matters are relevant to moderate the length of the individual sentences and the orders for cumulation.
108 I have also had regard to the importance of consistency in sentencing,[34] and to comparable cases[35] from intermediate appellate courts across the Commonwealth to obtain guidance as to the identification and application of relevant sentencing principles and to discern sentencing patterns and a range of sentences against which to examine your sentence.[36]
[34] R v Pham (2015) 256 CLR 550, [23], [26]; Hili v The Queen (2010) 242 CLR 520, [24]-[25].
[35] Including Table of Comparative Cases (Exhibit C).
[36] R v Pham (2015) 256 CLR 550, [26].
109 Parsimony is another relevant sentencing consideration. While your sentence must be of an appropriate severity, it must be no more severe than is required to achieve sentencing objectives.
110 Overall, I have decided a sentence of imprisonment, with a non-parole period fixed, is required to achieve sentencing purposes in your case.
111 Mr Wang, by the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
112 Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:
(a) On Charge 1, dealing with money, $100,000 or more ($3,050,650), reasonably suspected of being proceeds of crime, you are sentenced to 1 year and eight months imprisonment, which is to commence one-year and six months before the expiration of the sentence on charge four.
(b) On Charge 2, dealing with money, $10 million or more ($12,746,920), reasonably suspected of being proceeds of crime, you are sentenced to 3 years imprisonment. This is your base sentence which is to commence today.
(c) On Charge 3, dealing with property, a chose in action, that is, crypto currency, valued at $10 million or more ($16,986,294) reasonably suspected of being proceeds of crime, you are sentenced to 2 years and 3 months imprisonment which is to commence 1 year and 9 months before the expiration sentence of your sentence on charge two.
(d) On charge 4, dealing with money, $100,000 or more ($217,500), reasonably suspected of being proceeds of crime you are sentenced to nine months imprisonment, which is to commence eight months before the expiration of your sentence on charge three.
113 Your total effective sentence is three years and nine months imprisonment.
114 I direct you serve a minimum period of two years and six months before you are eligible for parole.
115 I declare you have already served 70 days of your sentence by way of presentence detention.
116 While there is some artificiality in the process, I declare, under s 6AAA of the Sentencing Act1991 (Vic), but for your plea of guilty, I would have imposed a total effective sentence of five years and four months imprisonment and fixed a minimum non-parole period of three years and six months.
117 With your consent, I order forfeiture of cash and crypto currency valued at $443,126.64 be a forfeited to the Commonwealth.
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