DPP (Cth) v Kim (Unreported, County Court of Victoria, Judge Meredith, 18 December 2015)
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CRIMINAL LAW – Appeal – Sentence – Guilty plea – Whether person who pleads guilty to Commonwealth offence entitled to discount for utilitarian benefit of plea – DPP (Cth) v Thomas [2016] VSCA 237, followed.
CRIMINAL LAW – Appeal – Sentence – Manifest excess – Aiding and abetting dealing in proceeds of crime worth $50,000 or more – Applicants part of syndicate involved in managing licensed brothels without approval under Sex Work Act 1994 – Applicant Kim sentenced to 3 years and 2 months’ imprisonment with 2 years non‑parole period – Applicant Fang sentenced to 3 years and 8 months’ imprisonment with 2 years and 3 months non-parole period – Sentences not manifestly excessive – Criminal Code (Cth) s 400.5(1) – Appeals dismissed.
CRIMINAL LAW – Appeal – Sentence – Money laundering – Sentencing principles – Criminal Code (Cth) div 400.
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APPEARANCES:
Counsel
Solicitors
For the Applicant Kim
Mr C F Thomson
James Dowsley & Associates Pty Ltd
For the Applicant Fang
Mr M D Stanton
Stary Norton Halphen
For the Respondent
Ms W Abraham QC with Mr D Holding
Mr M Pedley, Solicitor for Public Prosecutions (Cth)
REDLICH JA SANTAMARIA JA McLEISH JA:
The applicants Moon Ja Kim and Fang pleaded guilty to aiding and abetting dealing with proceeds of crime worth $50,000 or more, contrary to s 400.5(1) of the Criminal Code (Cth) (‘Code’). Section 400.5(1) provides as follows:
(1) A person is guilty of an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds of crime; or
(ii) the person intends that the money or property will become an instrument of crime; and
(c)at the time of the dealing, the value of the money and other property is $50,000 or more.
Penalty: Imprisonment for 15 years, or 900 penalty units, or both.
Moon Ja Kim and Fang were, by virtue of having aided and abetted Mae Ja Kim in committing an offence under s 400.5, taken to have committed that offence themselves and were punishable accordingly.[1]
[1]Criminal Code s 11.2.
The expression ‘proceeds of crime’ is defined in s 400.1 of the Code to mean ‘any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of an offence … that may be dealt with as an indictable offence’. The offence committed by Mae Ja Kim was knowingly living wholly or in part on, or deriving a material…
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.
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Details
AGLC
Kim v The Queen [2016] VSCA 238
Case
[2016] VSCA 238
Decision Date
CaseChat Overview and Summary
In the matter of Kim v The Queen, the applicants, Kim and Fang, appealed against their sentences for their involvement in a syndicate that managed unlicensed brothels and engaged in money laundering activities. The case was heard by the High Court of Australia. The legal issues before the court were whether the applicants, who had pleaded guilty, were entitled to a discount in their sentences for the utilitarian benefit of their pleas and whether their sentences were manifestly excessive.
The court considered the principle set out in DPP (Cth) v Thomas [2016] VSCA 237, which held that a person who pleads guilty to a Commonwealth offence is entitled to a discount in their sentence for the utilitarian benefit of their plea. However, the court found that the applicants' sentences were not manifestly excessive, and therefore, the discount for the utilitarian benefit of their pleas did not apply. The court noted that the applicants had been part of a syndicate involved in managing unlicensed brothels without approval under the Sex Work Act 1994, and had engaged in money laundering activities worth over $50,000. The court also considered the sentencing principles set out in the Criminal Code (Cth) div 400.
The High Court dismissed the applicants' appeals, finding that their sentences were not manifestly excessive. The court noted that the applicants' involvement in the syndicate and their engagement in money laundering activities warranted a significant sentence. The court also considered the need to deter others from engaging in similar activities. The court found that the sentences imposed on the applicants were appropriate and not manifestly excessive.
The High Court dismissed the appeals and affirmed the sentences imposed on the applicants. Kim was sentenced to 3 years and 2 months’ imprisonment with a non-parole period of 2 years, and Fang was sentenced to 3 years and 8 months’ imprisonment with a non-parole period of 2 years and 3 months. The court held that the sentences were not manifestly excessive and that the applicants were not entitled to a discount for the utilitarian benefit of their pleas.