DPP v Tan
[2017] VCC 1603
•3 November 2017
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-00949
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
WEE KIAT TAN Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
DATE OF HEARING: 22 September & 3 November 2017
DATE OF SENTENCE: 3 November 2017
CASE MAY BE CITED AS: DPP v Tan
MEDIUM NEUTRAL CITATION: [2017] VCC 1603
REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Negligently dealing with proceeds of crime (two charges) – Offender arrived in Australia on temporary visa – Intercepted by police and found in possession of Australian currently totalling $494,490 in his car – Search warrant of residence executed and a further $100,000 of Australian currency located – Youthful offender – No prior convictions – Mid-range example of this offence – Offender a low-level member of a syndicate or a ‘mule’ – Head sentence of 18 months imprisonment with a non-parole period of 12 months – R v Mills [1998] 4 VR 235, considered
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APPEARANCES: Counsel Solicitors
For the Crown Ms M Roper Solicitor for the Office of
Public Prosecutions
For the Defendant Mr G M Thomas
HIS HONOUR:
Wee Tan, you have pleaded guilty to two charges of negligently dealing with the proceeds of crime, being cash in the sum of $474,490.00 found in your car on 3 April 2017 (charge 1), and $100,000.00 found at your home on 4 April 2017 (charge 2). The maximum penalty is five years imprisonment.
Circumstances of offending
The circumstances of the offending were set out in the Crown opening which was read in open court and which I incorporate by reference.
Briefly, you were intercepted by police in Flemington on 3 April 2017 in a vehicle that was registered to you. You provided identification to police and consented to a search of your car. Here, police found $80,000.00 in a black Nike back pack and a further $394,490.00 concealed in a ‘LA Johnny Walker Whisky’ box. You provided no explanation for the money, and police formed the opinion that it was proceeds. Police also found a folded $5.00 note and a series of mobile phones This constitutes Charge 1.
The next day, 4 April 2017, police executed a search warrant at your premises where they located a further $100,000.00. This constitutes Charge 2.
The cash that was seized from you was counted and totalled $574,490.00.
As was submitted by your counsel, Mr Thomas, this offence falls at the lowest end of a series of proceeds of crime offences contained in the Crimes Act 1958. It is to be contrasted with the relevant analogous provision of the Criminal Code (Cth), which has ascending levels of seriousness, based on the amount of money involved and the moral culpability of the offender.
In this case, the culpability alleged against you is that you were negligently dealing with the proceeds of crime.
CCTV footage obtained by police at a service station in Flemington shortly before police intercepted your car shows that a backpack was moved from another vehicle into your vehicle and you drove off. As such, it is clear that there was some form of transaction where you were provided with the large sum of money.
You have been on bail since the time of your arrest. The matter proceeded by way of a committal mention where you indicated your intention to plead guilty.
10.The matter was listed for plea on 22 September 2017, and was adjourned after you were arraigned and the Prosecution Summary was read to allow you to make a statement to the informant.
11.You provided as much information as you could to police – I have, however, been advised by the learned Crown prosecutor that the information was of no major assistance to the authorities.
Seriousness of the offences
12.As was acknowledged by your counsel, it is difficult to assess the seriousness of this offence, because of the different factors that would ordinarily go to the seriousness of an offence. Firstly, regard must be had to the mental element of the crime – in this case, negligence. Secondly, regard must also be had to the quantum of money involved. There was no suggestion that you know where they money came from, or what particular crime it emanated from. At the same time, however, this offence could vary from a few hundred dollars found by police to potentially millions of dollars.
13.Your counsel submitted that there can be varying forms of negligence, and that your conduct should fall within the mid-range.
14.Taking into account all of the circumstances of this offence, I put your offending in the mid-range for offences of this type. It must have struck you that this money was the proceeds of some form of crime.
Your culpability
15.Your counsel submitted that you should be treated as a ‘courier’ in some form of syndicate involved in money laundering, or as a ‘mule’. There was no suggestion, or material available, to conclude that you were an active member of this syndicate, apart from this offending, or a principal.
16.Appellate courts, and the High Court, have said on a number of occasions that the use of such nomenclature does not advance the sentencing exercise. What is really required is for a court to sentence an offender for what they have actually done. Here, in your case, you responded to a Chinese language advertisement online wanting delivery drivers for work, and you were required to have a vehicle.
17.An example of such an advertisement was provided to me. You complied with the request of the advertisement – purchased a car (and were subsequently refunded the money for the purchase), and then took instructions. Those instructions included you taking the money and to wait for a further phone call, using the mobile phone that was provided to you. You were to then deliver the money to someone else. The $5.00 note is used notoriously as a method of identification. You had one $5.00 note in your car, and another at your house.
18.This is consistent with you being a sort of mule, a person without any real autonomy in your role as moving the money in a chain of distributing the proceeds of crime. The intelligence suggests that the actual crime from which the money appears to be the proceeds of is tobacco related. This does not make your offending any more or less serious.
19.Your counsel indicated that you were to make approximately $3,000.00 from delivering the money, and you were refunded the purchase price of the car you purchased.
Matters in mitigation
20.Mr Thomas put forward a number of matters in mitigation which I take into account. First, you pleaded guilty and you are entitled significant credit for this. It is some evidence of remorse. Your early plea has facilitated the course of justice and obviated the need for a trial. You are entitled to full credit for this.
21.You are also entitled to recognition for your offer to assist the authorities. Despite the authorities not being able to take the information you provided them any further, I accept the submission of your counsel that you are still entitled to some benefit for your offer.
Personal circumstances
22.You are now aged 22. You are a Malaysian national. You arrived in Australia early in 2017 on a visitor Visa. On the plea, your academic record was tendered along with a reference from a college colleague, Mr Yung, who indicated that he went through university with you, and that you are a person of good character in Malaysia. You are well regarded by him and have a love of basketball and sport more generally. He opined that it was financial difficulties that caused you to get into this trouble. You obviously have a good academic record from Abdul Rahman University College in Malaysia.
23.On the plea, your counsel placed emphasis on the fact that, when you were intercepted by police, you provided them with your Malaysian identification. It was put that you told police that you were a student. I do not accept this proposition.
24.There is no real evidence that you were a student whilst in Australia. As such, this strikes me as a case where you were in Australia needing money. You got picked up by a criminal syndicate needing people to facilitate their works, and you fell easily for the money involved.
25.On the plea, your counsel submitted that I should give significant weight to your youth. You were 21 years old at the time, you are now 22. You are a ‘youngish’ offender and that is, on the authority of Mills,[1] always to be taken into account. You are also of good character.
[1] R v Mills [1998] 4 VR 235.
26.Weighing against this is a number of Court of Appeal decisions involving serious criminality, particularly in the area of drugs, that state that prior good character and youth carry less weight than they otherwise would. They are still to be given some weight, however.
27.Specific deterrence is a factor, but your counsel put that given you are a first offender and given your youth, that has lesser weight in this case and I accept that. Punishment and denunciation are major considerations in this type of offending. Rehabilitation is also a factor. It is obviously in the community interest that you get back into being a law abiding member of the community. You are not entitled to be in Australia any longer, but back in Malaysia.
28.In sentencing you, I also take into account that any sentence of imprisonment that will be served in Australia, you will be isolated from your family. Probably only a small number of people will speak Mandarin in the prison system, and you will likely be deported at the end of any sentence. This means that imprisonment will be more onerous than for a person who has ties in Australia and was going to stay in Australia. These are all factors that do make a term of imprisonment more onerous for you than it would on another person.
Sentencing submissions
29.In sentencing submissions, the learned Crown prosecutor submitted that general deterrence is a major sentencing factor. He accepted that you are entitled to a benefit of a plea of guilty, but he submitted that general deterrence called for a term of imprisonment. Your counsel pointed to the lack of significant sentencing options, given the abolition of suspended sentences and the difficulties of a community corrections order.
30.I regard general deterrence as a very important factor. A signal must be sent to all people in the community, particularly those who might be looking for quick money, that the offer is too good to be true – that drug and organised crime syndicates require people to do their foot soldiering, that any person who is tempted to do that sort of foot soldiering for quick money, they must be deterred by heavy sentences. This will make it more difficult for the conduct of criminal syndicates involved in this community.
31.For this reason, I do not accept the submission of your counsel, that a non-custodial sentence is appropriate. A sentence of imprisonment is required to send that signal, to all people, visitors and tourists, that when they are intercepted in this sort of offending, in whatever capacity, they will go to gaol. It is the only alternative we have got to try to deter.
32.The offending here was over a two day period and, in a sense, involves a course of conduct. I have taken into account all the matters submitted by your counsel. Weighing all the matters put forward, including your youth, lack of prior convictions and having regard to the seriousness of the offence, I see the offending and the needs for punishment, denunciation and general deterrence, to require a sentence of imprisonment.
Sentence
33.On Charge 1, you are sentenced to 18 months’ imprisonment.
34.On Charge 2, you are sentenced to 12 months’ imprisonment.
35.I direct that those sentences be served concurrently, making a total effective sentence of 18 months’ imprisonment.
36.I order that you serve a term of 12 months before you become eligible to apply for parole.
37.I declare, pursuant to s. 6AAA of the Sentencing Act 1991, that had you not pleaded guilty, I would have imposed a total effective sentence of 27 months’ imprisonment with a non-parole period of 18 months.
38.Having regard to the seriousness of the offending, I consider it appropriate that you provide a forensic sample to the authorities. I must advise you that they have the right to use reasonable force to obtain such a sample if you refuse.
39.I will also make the forfeiture order sought by the prosecution.
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