Jung v The Queen
[2022] VSCA 68
•12 April 2022
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) 205 A Crim R 106, 134 [117]–[118] (Johnson J, Macfarlan JA and RA Hulme J agreeing).
Following a plea conducted on 17 February 2022, the judge sentenced the applicant on 28 February 2022 to 21 months’ imprisonment, and directed that he be released on a recognizance release order after serving nine months of the sentence, to be of good behaviour for 21 months.[3]
[3]Pursuant to section 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s plea of guilty, she would have sentenced him to a total effective sentence of two years and 9 months’ imprisonment, with a non-parole period of 18 months.
The applicant now seeks leave to appeal against his sentence on three grounds, formulated as follows:
1. The sentencing judge erred by having regard — in elevating the Applicant’s culpability from that of a ‘higher than the lowest level of operative’ to that of a ‘mid-range’ offender — to the Applicant’s failure to proffer an explanation for his offending.
2A. The sentencing judge erred in synthesising, on a basis no better than conjecture, the impact which the Applicant’s offending may have had on his wife.
2B. In synthesising the impact which the Applicant’s offending may have had on his wife, the sentencing judge denied the Applicant procedural fairness.
3. In all the circumstances, the sentence imposed upon the Applicant was manifestly excessive.
For the reasons that follow, we would grant leave to appeal; allow the appeal; and resentence the applicant to 10 months’ imprisonment, with a direction that he be released on a recognizance release order after serving four months of the sentence.
Ground 1: Judge’s finding about seriousness of offence based on applicant’s failure to proffer an explanation
Under cover of the first ground, the applicant contended that the following passage from the judge’s reasons for sentence demonstrates that, in assessing the applicant’s offending ‘as being in the mid-range’, the judge impermissibly took into account the applicant’s failure to proffer an explanation:
[38] Since your guilty plea you have not placed any explanation before the court or the authorities as to your role. I have been told nothing about the extent of your involvement, what you were to do with the money or what was going to happen to it, how you came to be involved or who your associates were. Whilst your declining to place any explanation before the court is not a matter to be treated in aggravation of the offending, the failure to advance a truthful explanation means that there is nothing mitigatory in the circumstances of your possession of the money or the phone or the refusal to provide its password.
[39] These then are the matters I take into account as assessing the relative seriousness of this offending as being in the mid-range. That is the objective seriousness.
Counsel for the applicant submitted that the judge concluded that the applicant’s offending was ‘mid-range’ based — at least partly — on his ‘declining to place any explanation before the court’ and ‘failure to advance a truthful explanation’. Notwithstanding that the judge said that the failure to proffer an explanation was not a matter of aggravation, counsel contended that it is difficult to see another basis for the judge’s finding that the applicant’s offending was ‘mid-range’.
We consider that there is substance in the submission that the judge used the applicant’s failure to provide an explanation for his offending to elevate it from the lower end of the spectrum of seriousness for this type of offending to the mid-range of seriousness. Insofar as she did so, the judge erred. The judge was not entitled to draw an inference as to the seriousness of the applicant’s offending based on his silence on the issue.[4]
[4]See Strbak v The Queen (2020) 267 CLR 494, 502 [13], 507–8 [31]–[32] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ). See also R v Olbrich (1999) 199 CLR 270, 277–8 [14], 281 [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
Ground 1 is established.
Grounds 2A and 2B: Judge’s finding concerning offending’s effect on applicant’s wife
In her sentencing reasons, the judge made reference to the applicant’s wife:
[49] I am told that your wife will return to South Korea with you. If it had been her dream or hope to settle here, obtain residency and be able to stay here or move between the two countries that has been affected by what you have done. Her plans and wishes were not mentioned. The impact of your decision to engage in this activity may have had an impact on your wife and her plans for her future.
[50] I say this not because it adds to your moral culpability but because it is a very graphic illustration of the consequences on family of decisions, conscious decisions to involve oneself in criminal activity. Your wife was not present at your plea hearing or on sentencing today. I do not know what that means in terms of her views or how she feels about this and your conduct and the impact of it on her life.
Counsel for the applicant submitted that these remarks betray error. First, it was purely conjectural that the applicant’s wife may have hoped or dreamed of staying in Australia. Secondly, she was not a victim of the applicant’s offending, yet the sentencing judge considered the potential impact upon her in a context that appears to be adverse to the applicant. Thirdly, if the sentencing judge was going to have regard to the impact of the applicant’s offending upon his wife, it was incumbent on the judge to invite submissions (or evidence) from the parties, but the judge did not do so.
Although the judge’s musings concerning the applicant’s wife’s situation appear to be largely irrelevant, we are not persuaded that the judge’s remarks demonstrate that she took any impact of the applicant’s offending upon his wife into account in a manner adverse to the applicant.
Grounds 2A and 2B cannot be upheld.
Ground 3: A manifestly excessive sentence?
Given our conclusions on the first ground it is strictly unnecessary to consider ground 3. We consider, however, that there is substance in the contention that the sentence imposed upon the applicant is manifestly excessive.
In support of that contention, the applicant’s counsel relied in summary on the following matters:
· the applicant possessed less than $200,000, in circumstances where the offence embraced sums between $100,000 and $1,000,000;
· he was, as the judge said, a ‘cog in the wheel’;
· his offending, as the judge observed, was the product of a ‘single transaction’;
· there was no evidence linking the money the applicant possessed to any particular crime, or that he knew or believed it was linked to any particular crime;
· the applicant’s guilty plea was at the earliest opportunity, and also attracted the considerations discussed in Worboyes,[5] given the effects of the COVID-19 pandemic;
· the applicant had a good work history and was of prior good character; and
· he had very good prospects of rehabilitation.
[5]Worboyes v The Queen (2021) 96 MVR 344 (Priest, Kaye and T Forrest JJA) (‘Worboyes’).
Counsel for the respondent submitted in response that, although the offence created by s 400.9(1) of the Criminal Code (Cth) sits at the lower end of the legislative scheme for money laundering, it remains a serious offence, with general deterrence being of particular significance. Further, the lack of evidence linking the money to a particular crime, and lack of knowledge or belief that it was so linked, is simply a reflection of the elements of the offence.[6] Whilst submitting that, although the amount of money involved is undoubtedly a relevant factor, it is not the sole or dominant factor,[7] the respondent’s counsel nonetheless contended that the sum of $194,000 in the applicant’s possession was almost double the statutory threshold. Finally, the respondent’s counsel submitted that the offence taken into account under s 16BA of the Crimes Act 1914 (Cth) justified an increase in the penalty otherwise appropriate for the charged offence.
[6]Counsel cited Majeed v The Queen [2013] VSCA 40, [38]–[39] (Kaye JA).
[7]Counsel cited Truong v The Queen [2016] VSCA 228, [31] (Priest JA).
In Samarakoon,[8] the Court (Beach and Niall JJA) made a number of observations about the offences created by ss 400.3 to 400.8 of div 400 of the Criminal Code (Cth):[9]
Sections 400.3 to 400.8 create a number of offences when a person ‘deals’[10] with proceeds of crime.[11] Each section creates three offences, of decreasing severity, based on whether the person believed that the money (or property) was the proceeds of crime, or was reckless or negligent as to that matter. Each section relates to proceeds of crime valued at a certain amount, with proceeds of crime worth $1,000,000 or more being dealt with in s 400.3, and subsequent sections dealing with proceeds of crime of progressively smaller amounts. Thus the seriousness of the offence depends on the fault element involved and the value of the money at stake. The applicable penalties range from 25 years’ imprisonment where the person dealing with the money believes it to be proceeds of crime and the value of the money exceeds $1,000,000,[12] to a fine of 10 penalty units where the person is negligent as to whether the money is proceeds of crime and the value of the money is less than $1,000.[13]
[8]Samarakoon v The Queen [2018] VSCA 119 (‘Samarakoon’) (citations as in original).
[9]Ibid [61].
[10]‘Deals’ is broadly defined in s 400.2 of the Criminal Code.
[11]The proceeds may be money or property (see the definition of ‘proceeds of crime’ in s 400.1 of the Criminal Code). The offences also extend to where the money or property is an ‘instrument of crime’, as defined in s 400.1.
[12]Criminal Code s 400.3(1).
[13]Ibid s 400.8(3).
The Court then analysed pertinent aspects of s 400.9:[14]
Section 400.9 is different in some important respects.[15] Relevantly to the present matter, it applies where a person ‘deals’ with money (or property), and it is reasonable to suspect that the money was proceeds of crime. Where the value of the money is equal to or greater than $100,000, s 400.9(1) applies and the maximum penalty is 3 years’ imprisonment. Where the value is less than that amount, s 400.9(1A) applies with a maximum penalty of 2 years’ imprisonment.
[14]Samarakoon, [62]. See also [63]–[64].
[15]See Shi v The Queen (2014) 246 A Crim R 273, 285–6 [44]–[46] (‘Shi’).
Importantly, the Court made it clear that the value of the proceeds of crime will be a paramount consideration in assessing the objective seriousness of the offence:[16]
In examining the objective seriousness of an offence under s 400.9, there is very little room for a differentiation based on the state of mind or knowledge of the accused as to whether or not the money was the proceeds of crime. In the case of an amount of equal to or greater than $100,000, if the accused believed, or was reckless or negligent, as to whether the money was the proceeds of crime, he or she would be guilty of an offence under s 400.4. That would constitute a different and more serious offence, not an aggravating feature of an offence under s 400.9(1). Sentencing on the basis that it was an aggravating feature of a s 400.9 offence would be contrary to the principle propounded by the High Court in R v De Simoni.[17]
That conclusion also has significance for assessing the culpability of the accused by reference to his or her conduct. Thus, in the present case, the applicant’s argument in relation to his conduct was largely directed to demonstrating a lack of knowledge on his part as to the source of the funds.
Although it will be important to assess precisely what the accused did in the commission of the offence, the structure and purpose of div 400 clearly support the proposition that the value of the proceeds of crime will be a paramount consideration in assessing the objective seriousness of the offence.[18] …
[16]Samarakoon, [66]–[68] (citations as in original).
[17](1981) 147 CLR 383. See Shi (2014) 246 A Crim R 273, 286 [48].
[18]See R v Jiao (2015) 251 A Crim R 236, 249 [66].
Samarakoon involved two charges of dealing with money reasonably suspected of being proceeds of crime — one charge for less than $100,000 and one count for more than $100,000 — contrary to ss 400.9(1A) and 400.9(1) of the Criminal Code (Cth), and one charge of attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity contrary to ss 11.1(1) and 134.20(1) of the Code. The sentencing judge imposed individual sentences of five months’ imprisonment and 12 months’ imprisonment respectively on the two charges of dealing with money reasonably suspected of being proceeds of crime, and imposed 29 months’ imprisonment on the third charge. Orders for commencement of the sentences resulted in a total effective sentence of three years’ imprisonment, with a recognizance release order requiring the applicant to serve 18 months of the sentence before release. The Court of Appeal refused leave to appeal against the sentence.
In an earlier case, Almada,[19] the applicant had met several people at Sydney Airport. The contents of two shoe bags, containing approximately $210,000, was placed in the applicant’s suitcase. Ultimately, the applicant — who had prior criminal record and was on a good behaviour bond at the time of offending (an aggravating feature) — pleaded guilty to dealing with money in excess of $100,000, being money reasonably suspected of being the proceeds of crime contrary to s 400.9(1) of the Criminal Code (Cth). The judge sentenced him to 18 months’ imprisonment, with release after nine months upon entering into recognizance to be of good behaviour. Although granted leave to appeal, the NSW Court of Criminal Appeal dismissed the applicant’s appeal against sentence.
[19]Almada v The Queen [2015] NSWCCA 19.
Jiao,[20] a prosecution appeal against sentence, is instructive. The 55-year-old respondent, a foreign national, was convicted by jury of an offence dealing with more than $100,000 that was reasonably suspected of being the proceeds of crime, in circumstances where she had received $624,340 in cash and deposited it into her casino account. A sentence of six months’ imprisonment imposed by the trial judge was set aside. The NSW Court of Criminal Appeal imposed in lieu a sentence of 16 months’ imprisonment, with conditional release after 12 months.
[20]R v Jiao (2015) 256 A Crim R 236 (‘Jiao’).
In Nguyen,[21] on one charge for an offence contrary to s 400.9(1), the applicant was sentenced to 14 months’ imprisonment, to be released on recognizance after nine months. She had pleaded guilty two years after the offending, and only one week before the date fixed for trial. The applicant had been found with $745,050, in circumstances where the sentencing judge found her role to be far more extensive than that of a courier. She had some minor prior convictions involving fraud, and obtained a discount for low level assistance and (late) plea of guilty. The NSW Court of Criminal Appeal dismissed her appeal against sentence.
[21]Nguyen v The Queen [2019] NSWCCA 44 (‘Nguyen’).
So far as comparative sentencing cases are concerned, the Court in Samarakoon observed:[22]
Having regard to comparable cases from intermediate appellate courts across the Commonwealth is an important aspect of sentencing for federal offences. It is important because they may provide guidance as to the identification and application of relevant sentencing principles. And they may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.[23]
[22]Samarakoon, [80].
[23]R v Pham (2015) 256 CLR 550, 558 [26] (French CJ, Keane and Nettle JJ).
Of course, sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished.[24] As a matter of principle, every sentence must result from the sentencer’s intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. That is not to say, however, that a general overview of sentences imposed for offences of a similar character will not play a part in informing that instinctive synthesis, particularly insofar as such an overview may provide a general guide to current sentencing practices.
[24]DPP v Dalgliesh (2017) 262 CLR 428, 454 [83] (Gageler and Gordon JJ); DPP v Zhuang (2015) 250 A Crim R 282, 292–3 [30]–[31] (Redlich, Priest and Beach JJA); DPP (Cth) v Thomas (2016) 53 VR 546, 607–8 [176] (Redlich, Santamaria and McLeish JJA).
Taken simply at face value, the sentence imposed in the applicant’s case does not compare favourably with sentences imposed in previous cases of a similar kind; in particular, Jiao and Nguyen. As we have observed, Jiao attracted a head sentence of 16 months’ imprisonment, imposed after a trial, in relation to a sum of $624,340; and Nguyen involved a head sentence of 14 months’ imprisonment, imposed upon an offender with prior dishonesty convictions following a late plea of guilty, in relation to a sum of $745,050 (albeit that there had been some minor assistance).
By way of contrast, the applicant’s offence involved a much lesser sum, and he pleaded guilty at the earliest opportunity (additionally attracting Worboyes considerations). Moreover, the applicant had a good work history; was of previous good character; and had good prospects of rehabilitation.
Synthesising for ourselves all relevant considerations — including taking into account the offence under s 3LA(6) of the Crimes Act 1914 (Cth) — we consider that the sentence imposed on the applicant at first instance is outside the range of sentences reasonably open in the sound exercise of the sentencing discretion.
Conclusion
Leave to appeal must be granted and the appeal allowed. In lieu of the sentence first imposed, we would sentence the appellant to 10 months’ imprisonment, and order that he be released on a recognizance release order after serving four months.
Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for the applicant’s plea of guilty, we would have sentenced him to 14 months’ imprisonment, with release on recognizance after serving six months.
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