Director of Public Prosecutions v Zheng

[2022] VCC 1356

z

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

AT Melbourne

CRIMINAL DIVISION

CR 21-02518

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUIJUN ZHENG

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 August 2022
CASE MAY BE CITED AS:	DPP v Zheng
MEDIUM NEUTRAL CITATION:	[2022] VCC 1356

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr White
For the Accused	Mr A. Trood

HER HONOUR:

1Quijun Zheng, you have pleaded guilty before me to one charge of contravening a restraining order. 

2The details of the offending are that on 27 August 2019 you made four withdrawals from a bank account, that is withdrawals of $20,000, $10,000, $10,000 and $23,646 respectively on the same day.  These withdrawals were made by you only hours after a restraining order had been served upon you as a result of investigations and then charging of you for dealing with the proceeds of crime.

3At the time of committing this offending, you were in Australia with your husband on a student visa and student spousal visa respectively.  As a result of the charge laid against you by the Commonwealth DPP you were placed on a justice visa.

4I now turn to your personal circumstances.

5

You are 34 years of age and have no prior convictions.  You were raised in

South China

, the only child of your parents with whom you had according to Psychologist, Mathew Staios, whose report was tendered on the plea, a distant relationship as they worked. You were closer to your grandparents who essentially raised you.

6

Your mother was extremely critical of you and high standards were expected.  You completed high school in China, then when you were 23 married a primary school friend you had reconnected with.  Eventually you came to Australia in 2010 undertaking a BA in graphic design at the Edith Cowan University in

Western Australia.

7You relocated to Melbourne, where you had a number of friends, and you began an MBA which you have never completed.  In 2015, you established an export business in a vitamin baby formula which was successful.  You and your husband purchased a house in East Burwood, and in 2020 you gave birth to your only child, a daughter.

8Once the Commonwealth charge was laid against you as I have stated, you were placed on a justice visa.  The charge against you which related to unexplained wealth including a number of assets being real estate, bank accounts, together with $500,000 cash, apparently located in a roof cavity and involving you and other persons.  That charge was ultimately withdrawn in May of this year, and you have subsequently remained here on a bridging visa.

9This matter has had a somewhat protracted history.  The plea hearing first came before me on 8 March 2022, at which time the proceeds of crime charge was still on foot and the plea was adjourned in order to allow the Commonwealth matter to proceed at that stage, being contested by you.  Ultimately, a number of hearings came and went, ultimately, as I have said, the charge was withdrawn.

10In that time, your plans to remain in Australia changed and it was stated to the court on a further plea hearing on 7 July by your counsel, that it is now your intention to return to China.  Concomitant with that, was a change in the prosecution attitude towards the penalty that I should impose for this offending. 

11Originally it was the prosecution submission that I should deal with you by way of a combination sentence, that being a term of imprisonment together with a Community Corrections Order.  As a result of your decision to return back to China, together with the delay that has occurred in this matter as a result of the Commonwealth charge, first being laid and then being withdrawn, it was conceded that I could deal with you by a wholly non-custodial disposition, that comprising either a Community Corrections Order or a fine.

12

In the process, application was made by the prosecution for a pecuniary penalty order pursuant to s58(2) of the Confiscation Act.  The submission by the prosecution was that this order should be made because the amount withdrawn by you, has never been recovered.  Once the restraining order was made in relation to your bank accounts, you applied for an exclusion order under the restraining order, but that has never been further litigated, so the situation remains that the moneys should be forfeit to the State unless you are successful in applying for exclusion pursuant to the provisions of the

Confiscation Act

.

13My understanding is that the moneys that you withdrew from your bank account, you gave to your business partner, Chiang Zheng (who is no relation to you), for the purpose of opening a frozen yoghurt business.  Apparently, according to her statement, Chiang Zheng placed the money in her bank account and it was then removed from there by her husband and the moneys have never been sourced since.

14Chiang Zheng claims that she paid you $31,000 odd in order to buy her way out of the partnership. In any event, due to COVID, the business failed. There was some discussion before me, about the application of s5(2A) of the Sentencing Act, insofar as whether the court can have regard to the pecuniary penalty order in sentencing you.

15Pursuant to s52A(c), the court may have regard to any benefit received in relation to the restraining order.  It was submitted by the prosecution that the benefit you obtained in taking the money from your account and transferring it to Ms Zheng in order that a business be purchased, was a financial advantage.

16But under the Act, the definition and s52A(d) profit, may not be taken into account by a sentencing court.  It was a submission of the learned prosecutor that in your case profit and benefit were the same thing, profit being defined as what is left over minus any expenses that have been outlaid in obtaining that amount of money.

17It was the submission of the learned prosecutor here that profit and benefit were precisely the same in that the benefit is the financial advantage and in this case, the profit was the obtaining of the business.  It was therefore his submission that I should not have regard to the benefit covered by any pecuniary penalty order that I might order.  Now I'm just doing an aside here Mr White.  That's a correct summation of what you submitted to me?

18MR WHITE:  More or less Your Honour.

19HER HONOUR:  Where have I - - -

20MR WHITE:  But I certainly don't mean to interrupt Your Honour's reasons.

21HER HONOUR:  No, I've asked you to Mr White.

22MR WHITE:  It was simply the category that I don't know that I - in fact I didn't submit that the profit was a financial advantage as such.

23HER HONOUR:  Yes.

24MR WHITE:  I think that my learned friend made that submission that a profit was a financial - the profit in this case was a financial advantage.  Nonetheless, my submission was that the profit could be categorised as a benefit, the benefit was the same as a profit, they were the same thing.

25HER HONOUR:  All right, yes.

26MR WHITE:  And that they fell within the meaning of value within the purposes of the Confiscation Act.

27HER HONOUR:  I'm sorry, I thought I had mixed the two up, because I had noted that it was Mr Trood who raised financial advantage and not you.  I think I disposed of that submission at the last hearing in any event.

28MR WHITE:  Your Honour did yes.

29HER HONOUR:  Yes, I did, I'm sorry.  Sorry, the submission was, I withdraw that, the submission by the prosecution was that in this case the profit and benefit were the same thing and that I should not have regard to any pecuniary penalty order I might make in relation to any other sentence I should impose, for the offending.  Is that correct Mr White, the way I've put that?

30MR WHITE:  That is correct, yes, Your Honour.

31HER HONOUR:  Thank you Mr White, I apologise and Mr Trood.  Of course, it could be said that in the alternative, profit is the same as benefit and therefore should be taken into account.  The argument to some extent works both ways.  In any event, in the circumstances I am satisfied that the appropriate response to your offending is a fine.

32I note that you have suffered some fairly significant difficulties in relation to this matter.  You did plead guilty at the earliest possible opportunity.  You have no prior convictions.  You appear to be a hardworking young woman.  You had developed I am satisfied as a result of these proceedings, anxiety and depression and panic attacks and suicidal ideation.

33It cannot be said that these in any way contributed to the offending, but I am satisfied that you have suffered adversely as a result of it, prior to the imposition of any sentence by this court.  You are also to return to South China.  I note that your family is aware of your legal situation, but not your psychological circumstances, they being unlikely to be understood in the culture from which you come.

34In all the circumstances I am satisfied that the imposition of a fine is the appropriate way to deal with you.  Up until August of last year, you were able to continue to work pursuant to the visa, but once it was cancelled, you have had to rely on the - as has your husband, on the assistance of others and I understand you have had difficulty meeting your mortgage payments.

35I am satisfied that I should make a pecuniary penalty order in this case.  The offending was brazen.  It was carried out very shortly after the order was imposed.  The moneys have never been recovered and I regard the explanations for this as somewhat dubious.

36So, in any event I do make a pecuniary penalty order in the amount sought, that is $63,646.  Now, Mr White I can attach a time to pay in relation to that?

37MR WHITE:  Your Honour I don't know that it works the same way as a fine would in the granting of a stay order, it certainly wouldn't be referred to Fines Victoria in the same way that a fine would.

38HER HONOUR:  Yes.

39MR WHITE:  If I could just have a moment, I sought some advice about this and I'll just pull up - - -

40HER HONOUR:  Sure.  No problems, because I recall you saying I could attach 15 years to it, on the last occasion and I couldn't find anything that would - - -

41MR WHITE:  The submission I'd made Your Honour was that the fine would be enforceable for up to 15 years as a civil debt.

42HER HONOUR:  Yes.

43MR WHITE:  But not that Your Honour would - - -

44HER HONOUR:  Then I've misinterpreted that, thank you.  All right.  In relation to the offending itself, it was submitted by the prosecution that I should impose a not insubstantial fine in the circumstances and I was referred to the sentencing remarks of my brother, His Honour Judge Tinney, to the effect that these restraining orders are essentially brought into existence, in a fairly stringent form, largely, in one sense to ensure that crime does not pay.  The actions by you were a flagrant and brazen response and as I have said, I have notwithstanding that the Commonwealth charges have been withdrawn, I find the explanation of the missing nature of the moneys, if I can put it that way, to be less than satisfactory.

45Whilst you have no prior convictions, while I am satisfied that this offending has resulted in some extra-curial punishment insofar as you are concerned both emotionally and physically.  And whilst I do take into account, that your financial circumstances are straightened, nevertheless in my view, it is appropriate that I fine you in the sum of $7,000 for this offending.  And I will give you three months, a stay of three months.  All right?

46MR TROOD:  And that would be with conviction I'm assuming Your Honour.

47HER HONOUR:  Yes, it will be.

48MR TROOD:  Thank you, Your Honour.

49HER HONOUR:  The offending with respect Mr Trood.

50MR TROOD:  I wasn't going to cavil with it, but - - -

51HER HONOUR:  No, I'm sorry.  It's not like a Magistrates' Court where you actually ask that question, it's almost assumed that a fine in this - and I apologise I should have attended to that.  So I will grant you a three month stay in order to pay that.

52Pursuant to s6AAA, I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of six months' and order that you undertake a Community Corrections Order for a period of 18 months.  Thank you.

53MR WHITE:  As Your Honour pleases.

54MR TROOD:  Your Honour pleases.

55HER HONOUR:  Is there anything else I just need to sign?  It's not a pecuniary order by consent.

56MR WHITE:  No, Your Honour, if I may say, my instructor did file a draft order this morning.

57HER HONOUR:  All right.

58MR WHITE:  I don't know if Your Honour's received that.  The draft naturally the draft order contains the wording that would be sought in an order.

59MR WHITE:  I'm happy to forward that to your clerk now - sorry to your associate now if that would assist Your Honour.

60HER HONOUR:  All right, that's fine Mr White, thank you.

61MR WHITE:  All right, I've just forwarded that again now.

62HER HONOUR:  Thank you very much Mr White, we'll print that out and I'll sign it.

63MR WHITE:  Thank you, Your Honour.  I have also been advised, Your Honour just for Your Honour's information by our proceeds of crime solicitor that the pecuniary penalty order will be enforced by the Asset Confiscation Operations Unit at the Department of Justice and Community Safety.

64HER HONOUR:  Yes.

65

MR WHITE:  So that's how the order will be enforced as opposed to say,

Fines Victoria.

66HER HONOUR:  All right, that's fine. I thank counsel very much for their assistance in this matter.

67MR TROOD:  As Your Honour pleases.

68MR WHITE:  Please Your Honour.

69HER HONOUR:  Thank you very much.  Again, thank you, I thank everyone for their assistance in this matter and we'll stand down until 10.30.

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