Jung v The Queen - [2022] VSCA 68

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0029

WONSEOB JUNG	Applicant
v
THE QUEEN	Respondent

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JUDGE:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 April 2022
DATE OF JUDGMENT:	12 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 68
JUDGMENT APPEALED FROM:	DPP v Jung [2022] VCC 218 (Judge Hampel)

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CRIMINAL LAW – Appeal – Sentence – Dealing with money or property that is reasonably suspected of being proceeds of crime contrary to s 400.9 of the Criminal Code (Cth) – Sentenced to 21 months’ imprisonment with recognizance release order after 9 months – Whether sentencing judge elevated applicant’s culpability in the absence of explanation for offending – Whether sentencing judge erroneously took into account impact of applicant’s offending on his wife – Whether sentence manifestly excessive – Leave to appeal granted – Appeal allowed – Resentenced to 10 months’ imprisonment with recognizance release order after 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC	Adrian Dessi Legal
For the Respondent	Mr G Barr	Commonwealth Director of Public Prosecutions

PRIEST JA
BEACH JA:

On 18 June 2020, police executed a search warrant at the applicant’s residential premises. Inside a white Mercedes Benz in the garage, police located $190,000 cash — 19 bundles comprising $50 notes — in a brown paper bag; an additional $4,000 cash in a black pouch; and a digital money counter. Police also located an encrypted mobile phone on a bedside table in the applicant’s bedroom.

When questioned by police, the applicant did not have a credible explanation for his possession of the money and mobile phone, advancing a number of far-fetched explanations. Asked by police to provide them with the PIN for the phone the applicant claimed not to know it. Investigators were, however, able to retrieve geolocation data from it that matched the data extracted from another mobile phone found in the applicant’s possession. Surveillance evidence revealed that the applicant had done two road return trips to Sydney, and the geolocation data from the two telephones matched the surveillance evidence.

A little over a year later, on 26 July 2021, the applicant pleaded guilty in the County Court to one charge of dealing with money or property that is reasonably suspected of being proceeds of crime.[1] Pursuant to s 16BA of the Crimes Act 1914 (Cth), the applicant admitted the following offence, and asked that it be taken into account in sentencing:[2]

On 18 June 2020, fail to comply with order under section 3LA of the Crimes Act 1914 (Cth), contrary to subsection 3LA(6) of the Crimes Act 1914 (Cth).

[1]Criminal Code (Cth), s 400.9(1). The maximum penalty is three years’ imprisonment or 180 penalty units (or both).

[2]An offence under s 3LA(6) is punishable by 10 years’ imprisonment or 600 penalty units (or both). That may be contrasted with the maximum penalty for the offence to which the applicant pleaded guilty. Nothing, however, turns on this. See R v Nguyen (2010)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jung v The Queen

Details

AGLC: Jung v The Queen [2022] VSCA 68
Case: [2022] VSCA 68
Decision Date: 12 April 2022

CaseChat Overview and Summary

The case of Jung v The Queen involved an appeal by the applicant, who was originally sentenced to 21 months' imprisonment for dealing with money suspected of being proceeds of crime. The applicant's appeal was heard in the High Court of Australia. The central issue in this appeal was whether the sentencing judge had improperly assessed the applicant's culpability and the impact of his actions on his wife, which ultimately led to a sentence that was considered manifestly excessive.

The court examined whether the sentencing judge had, in fact, elevated the applicant's culpability without providing a clear explanation. Additionally, the court scrutinised whether the judge had erroneously considered the impact of the applicant's criminal activity on his wife, which could have influenced the sentence. The court found that the sentencing judge had indeed erred in these respects, as there was no adequate explanation for the level of culpability assigned nor was there a proper basis for considering the impact on the wife. The sentence of 21 months was deemed to be manifestly excessive given the circumstances and the errors identified by the court.

In light of these findings, the High Court allowed the appeal and resentenced the applicant to 10 months' imprisonment, with a recognizance release order after serving four months. The court's decision underscored the importance of proper sentencing principles and the necessity for clear justification of sentencing decisions. The final orders of the court mandated the adjustment of the applicant's sentence to reflect the corrected approach to culpability and the exclusion of improper considerations.

Orders