Kai Yang Kao v and the Queen
[2018] VSCA 189
•1 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0083
| KAI YANG KAO | Applicant |
| V | |
| Respondent | |
| THE QUEEN |
---
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
---
| JUDGE: | WHELAN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 July 2018 |
| DATE OF JUDGMENT: | 1 August 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 189 First Revision: 6 August 2018 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1169 (Judge Tinney) |
---
CRIMINAL LAW – Sentencing – Application for leave to appeal – Proposed grounds specific error and manifest excess – Dealing with proceeds of crime – Seriousness of offending – Method of counting amount – Identify relevant dealings – Attempting to possess a commercial quantity of a border controlled drug – Manifest excess not reasonably arguable – Leave refused – DPP v Thomas (2016) 315 FLR 31 considered – Criminal Code Act 1995 (Cth) ss 400.9(1), 311.14, 11.1
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Edney | Doogue + George |
| For the Respondent | Ms K Breckweg | Ms S N McNaughton SC, Commonwealth Director of Public Prosecutions |
WHELAN JA:
The applicant, Kai Yang Kao, pleaded guilty to two charges of dealing with money reasonably suspected of being the proceeds of crime[1] and one charge of attempting to possess a commercial quantity of a border controlled drug.[2] On 18 August 2017 he was sentenced by a judge in the County Court to a term of imprisonment of two years on the first charge of dealing with the proceeds of crime, 14 months on the second, and a term of imprisonment of 9 years 8 months on the charge of attempted possession. Orders were made as to commencement dates which had the effect of imposing a total effective sentence of 11 years’ imprisonment. The sentencing judge fixed a non-parole period of 6 years 10 months.
[1]Criminal Code Act 1995 (Cth) s 400.9(1) (‘Criminal Code’).
[2]Criminal Code ss 311.14, 11.1.
The applicant seeks leave to appeal on two proposed grounds. They are:
(1)The sentencing discretion miscarried because the sentencing judge in assessing the objective gravity of the applicant’s offending on charge 1 ‘double counted’ the ‘dealings’ of the applicant.
(2)The sentence imposed on the charge of an attempt to import a commercial amount of a border controlled drug was manifestly excessive.
Circumstances of the offending
The first charge concerning dealing with the proceeds of crime was constituted by a number of transactions undertaken by the applicant between 1 March 2016 and 18 March 2016. The applicant dispatched three sums of money, $38,730, $98,025.50, and $30,503, to Chinese recipients on 1 March, 11 March, and 18 March. On 11 March and 15 March the applicant undertook four transactions involving a sum of $200,000. That sum was deposited into an account he had with ANZ on 11 March, he moved it the same day to another account he had with ANZ, moved it back on 15 March to the initial account, and then, according to the Crown opening which was read on the plea, withdrew it in cash on the same day. The next day, 16 March 2016, in six separate transactions he sent a total of $199,880 to a bank in China. The Crown opening asserted that the total amount dealt with in relation to this charge was $567,138. That figure was calculated counting the $200,000 moved between accounts and then withdrawn in cash as one transaction, and the transactions totalling $199,880 as separate transactions.
The second charge of dealing with the proceeds of crime was constituted by conduct of the applicant on 30 March 2016. The applicant and a co-offender travelled to Sydney by air and then returned to Melbourne by train. At the Southern Cross Station they were apprehended and each of them was found to be in the possession of a large amount of cash. The applicant was in possession of $206,950. The applicant and his co-offender’s unit was searched by police where additional currency and a money counting machine were located. The applicant and his co-offender were arrested, charged and interviewed. The applicant provided a no comment record of interview. Both the applicant and the co-offender were then released on bail.
The conduct which constituted the attempt to possess a commercial quantity of an unlawfully imported border controlled drug concerned two attempted importations of methylamphetamine, one consignment in glass vials, and a second in 55 packets of noodles. The consignment of glass vials was collected by a co-offender on 13 April 2016, and the consignment of noodles was delivered by an undercover operative assuming the identity of an Australia Post delivery driver on 20 April 2016. Both consignments were in due course delivered into the possession of the applicant who was arrested at his unit, together with co-offenders, on 20 April 2016. He was then in possession of the vials and the noodles.
The gross weight of the substance containing methylamphetamine in the vials was 1423.4 grams, containing pure methylamphetamine of 523.8 grams. The gross weight of the noodles containing methylamphetamine was 10.96 kilograms, containing pure methylamphetamine of 1.826 kilograms. A commercial quantity of methylamphetamine is 750 grams. The total quantity of pure methylamphetamine in both consignments was 2.34 kilograms, which is 3.12 times a commercial quantity.
Sentencing remarks
The applicant’s plea, together with that of a co-offender, was heard in the County Court in July 2017. The applicant and the co-offender were sentenced together on 18 August 2017.[3]
[3][2017] VCC 1169 (‘Reasons’).
The sentencing judge referred to the relevant charges and the applicable maximum penalties, being 3 years’ imprisonment for the proceeds of crime offences and life imprisonment for the offence of attempted possession. He set out the circumstances of the relevant offending, observing that the applicant was on bail, consequent upon his apprehension at Southern Cross Station in possession of a very large quantity of cash, at the time the acts constituting the attempted possession were committed.[4]
[4]Ibid [5].
As to the applicant’s role in the attempted possession offence the sentencing judge said:
[Counsel for the applicant] conceded that you were the ‘warehouse manager’ in charge of the Melbourne warehouse crew at the Australian end of the criminal syndicate. You were responsible for receiving the drugs and had the power to delegate and to recruit and direct others. You had recruited others for the money remittance practice I was told, and had recruited [co-offender] to collect the contact lens vials parcel and instructed [co-offender] to collect the parcel from [co-offender]. You had made your address available for receipt of the noodle consignment.[5]
[5]Ibid [23].
The sentencing judge set out the matters put in mitigation on behalf of the applicant.[6] He referred in detail to the applicant’s background and to evidence given by the applicant’s parents.[7] There was reference in material filed on the applicant’s behalf to the proposition that the applicant had been coerced into the offending by a criminal organisation. That suggestion had been abandoned by the applicant’s counsel on the plea. The sentencing judge recorded that abandonment, which he described as ‘a very sensible decision’.[8]
[6]Ibid [16]–[17].
[7]Ibid [23]–[24].
[8]Ibid [10].
The sentencing judge found that the applicant had pleaded guilty at an early stage and that that was a matter to be taken into account in his favour. The sentencing judge described it as ‘a matter of significance’. He found that it was significant for its utilitarian value.[9] The sentencing judge also found, relying on the guilty plea, and on references, reports and other material tendered on the plea, that the applicant was ‘to a degree remorseful or contrite’. He said that he took that into account.[10]
[9]Ibid [27].
[10]Ibid [28].
The sentencing judge referred to the fact that the applicant was a foreign national and would be geographically isolated from friends and relatives whilst in prison. He said that he was prepared to give ‘some weight’ to the increased custodial burden as a consequence. He observed that he could not give ‘great weight’ to that increased burden as it had been ‘an inescapable fact’ that if the applicant were to be caught committing these serious crimes he would end up serving a long period of imprisonment in a foreign country.[11]
[11]Ibid [29].
A psychological report by a psychologist, Dr Matthew Barth, had been tendered on the plea. The sentencing judge indicated that, with one proviso (the asserted coercion), he took the matters in that report into account.[12]
[12]Ibid [30].
Counsel for the applicant on the plea had submitted that, on the basis of Dr Barth’s report, the fifth and sixth limbs of Verdins[13] were applicable. The fifth limb concerns the increased burden of imprisonment as a consequence of a mental condition, and the sixth concerns the risk of a significant adverse effect on an offender’s mental health as a result of imprisonment. The judge characterised that submission as having been put diffidently. The judge concluded that he was prepared to give ‘some very modest weight’ to the increased burden of imprisonment, being the fifth limb of Verdins, but was not prepared to find that the sixth limb was engaged.[14]
[13]R v Verdins (2007) 16 VR 269.
[14]Reasons [30].
The sentencing judge addressed the issue of the applicant’s youth at some length.[15] At the time of the offending the applicant was 22 years of age. He was 23 at the time of sentence. The sentencing judge referred to the principles applicable to young offenders. He observed that the applicant was at the time of the offending ‘still quite young’ but also observed that he was ‘the head of the Australian end of the syndicate’. The judge concluded that the applicant’s youth was an important consideration, but was not the only factor which he had to consider. He said that there was also the need to punish, to denounce and to deter both the applicant and others. He observed that general deterrence is of real importance in this sort of case.[16]
[15]Ibid [32]–[38].
[16]Ibid [38].
In relation to rehabilitation, the judge concluded that the applicant did have good or favourable prospects of rehabilitation in the future.[17]
[17]Ibid [40].
The judge considered the general principles applicable to sentencing in cases of this kind,[18] and the issues of parity.[19]
[18]Ibid [41]–[53].
[19]Ibid [54]–[66].
Proposed ground 1 — double counting
The applicant submits that ‘in truth’ the total amount involved in the first proceeds of crime offence was $199,880 less than the $567,130 asserted by the prosecution and adopted by the sentencing judge.
As indicated, the Crown opening had asserted that the amount dealt with was $567,138, counting the four movements of $200,000 only once but treating the $199,880 as separate. What the judge said was:
the amount for charge 1 for you Mr Kao was over $500,000 with a number of dealings rolled up into that single charge. I take care not to doubly count the amounts described in the summary.[20]
[20]Ibid [42].
The applicant submits that the $200,000 transactions on 11 and 15 March and the transactions totalling $199,880 on 16 March were the ‘same’ amount. Counsel at the hearing handed up pages from the depositions which, it was submitted, showed that the $200,000 had not been withdrawn in cash, as the Crown opening had asserted, but had been transferred to a foreign exchange company which then made the transfers totalling $199,880.
The respondent submits, first, that it cannot be determined that the transactions totalling $199,880 on 16 March were the ‘same’ as the $200,000 withdrawn on 15 March. Secondly, it submits that even if the transactions on 16 March were sourced from the funds obtained on 15 March they were in any event separate and discrete instances of ‘dealings’ with the money.
In reply counsel for the applicant conceded that all of the transactions were separate ‘dealings’ but submitted that the calculation of the total amount involved was the means by which the seriousness of the offending had been assessed.
There may have been an error in the assertion that the $200,000 was withdrawn in cash, and the opening may have been incorrect in that respect. But any such error was inconsequential. Strictly speaking, all the relevant transactions were separate dealings, as counsel for the applicant recognised. It makes no difference to the seriousness of the offending whether the $200,000 was withdrawn in cash or was transferred to the foreign exchange company. The judge was aware of all the separate transactions. The character of the offending conduct, and the transactions which constituted the offending conduct, were clear, and are unaffected by the differing methods by which the total amount ‘dealt with’ might be calculated.
I do not consider that there was any arguable material error made by the sentencing judge in relation to this issue, and I refuse leave to appeal on this proposed ground.
Proposed ground 2 — manifest excess on attempted possession offence
In the written case the applicant submitted that the sentence imposed on the charge of attempting to import a commercial amount of a border controlled drug was manifestly excessive given the early guilty plea, remorse, the applicant’s youth, the absence of prior (and subsequent) convictions, the character evidence and evidence of family support, the additional burden constituted by the fact that the applicant will be serving a term of imprisonment in a foreign country, his good prospects of rehabilitation, and ‘some application’ of the fifth proposition in Verdins. The applicant submitted that ‘comparative cases’ demonstrate that the sentence imposed upon the applicant was excessive, and, in that regard, particular reliance was placed upon the sentences imposed on offenders named Wu and Thomas which were the subject of a decision of this Court in DPP v Thomas.[21]
[21][2016] 315 FLR 31.
In oral submissions the applicant’s counsel emphasised that this offence (and similar such offences) are ‘quantity based’ offences. Counsel submitted that the applicant received a sentence of 9 years 8 months’ imprisonment for the attempted possession of a quantity 3.12 times a commercial quantity, whereas Wu was sentenced to 10 years 6 months for 5.29 times a commercial quantity and Thomas to 9 years for 4.8 times.
The respondent submitted that the ground of manifest excess can only succeed if the sentence imposed falls wholly outside the sentencing range available to the sentencing judge. The respondent submitted that it is not arguable that the sentence imposed was wholly outside the range. As to Wu and Thomas, the respondent submitted that quantity is not the only relevant factor; that, unlike Wu and Thomas, the applicant had offended whilst on bail; and that the applicant had had a more senior role than Wu and Thomas.
In my opinion it is not reasonably arguable that the sentence imposed was manifestly excessive given the following matters:
·The maximum penalty is life imprisonment.
·The offending conduct occurred very shortly after the applicant had been arrested with a very large amount of cash reasonably suspected of being the proceeds of crime, and whilst he was on bail for that offence.
·The applicant had played a senior role. He was the ‘warehouse manager’ at the Australian end of an international drug syndicate.
·The applicant had recruited and given instructions to others.
·The total amount sought to be possessed was 3.12 times the applicable commercial quantity.
·There were two separate and discrete consignments.
·The applicant’s offending was motivated by financial gain.
·General deterrence is very important in relation to this kind of offending.
·Given the nature of the offending, factors such as good character and youth are to be afforded less weight.
·The comparative sentences relied upon do not indicate that the sentence was excessive. Referring particularly to the sentences imposed upon Wu and Thomas, the applicant’s role was more senior than that of Wu and Thomas, and, unlike them, he offended whilst on bail.
·The non-parole period is very moderate, reflecting no doubt consideration of the applicant’s youth.
I have read and considered, as did the sentencing judge, the many references tendered on the plea and Dr Barth’s report. The references portray the applicant as a caring and (at times at least) hard working individual. Dr Barth’s report reveals that the applicant has had difficulties from his early teenage years. The applicant comes from a supportive family and his prospects of rehabilitation are good. These are matters properly to be taken into account in mitigation, and, in my view, the sentence imposed does reflect them. It must also be said that the material tendered on the plea reveals that the applicant comes from a somewhat privileged background and that he has been given opportunities in life that many offenders who come before the courts have not had.
Leave to appeal on proposed ground 2 will also be refused.
0
3
0