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Pun v The Queen

Pun v The Queen

Case [2017] VSCA 219 30 August 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0225

AUNG PUN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and McLEISH JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 May 2017
DATE OF JUDGMENT:	30 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 219
JUDGMENT APPEALED FROM:	[2016] VCC 1458 (Judge Lawson)

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CRIMINAL LAW – Appeal – Sentence – Pleas of guilty – Obtain financial advantage by deception and negligently deal with proceeds of crime – Sentence of five years’ imprisonment – Applicant sentenced on charges of negligently dealing with proceeds of crime as though for knowingly and dishonestly doing so – Role of judge when faced with conflict between agreed facts and negotiated charges – Whether sentence manifestly excessive – Appeal allowed – Applicant resentenced – R v De Simoni (1981) 147 CLR 383; R v Brown (1989) 17 NSWLR 472; R v Newman [1997] 1 VR 146 discussed – Crimes Act1958 ss 81, 82, 193, 194, 195 and 321M; Drugs, Poisons and Controlled Substances Act1981 ss 70, 71AC and 73.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Chernok	Valos Black & Associates
For the Crown	Ms S Flynn	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA

McLEISH JA:

We have had the considerable advantage of reading in draft the reasons for judgment of Croucher AJA. We agree, for the reasons his Honour gives, that the applicant was erroneously sentenced on the eight charges of negligently dealing in the proceeds of crime (‘NDPC’) as though they involved an element that he knew the funds he withdrew were the proceeds of crime. We agree that the applicant should be resentenced as his Honour proposes.

The sentencing judge was placed in an invidious position for two reasons. Firstly, the elements on the charge of obtaining a financial advantage by deception (‘OFAD’) (charge 6—the applicant opened a bank account in the false name of ‘Phuong Trinh’) differed logically from the mens rea on the charges of NDPC with respect to the same account, which alleged only that he was negligent as to whether the funds he withdrew were the proceeds of crime (charges 9 and 10). Secondly, the plea was conducted on the basis that the facts, as placed before her Honour, had been settled between the parties and were agreed. One fact was that, on all eight NDPC charges, the applicant knew that the accounts from which he withdrew monies, including those he had not personally opened, were accounts in false names. It was said on the applicant’s plea that he knew all of the accounts were false and that he acted dishonestly in withdrawing funds from those accounts. Therefore he knew they were the proceeds of crime. His counsel made no reference to the fact that the charges involved only negligence as to whether he knew the funds were the proceeds of crime.

It is thus not surprising, as Croucher AJA explains, that her Honour mistakenly sentenced the…

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 Pun v The Queen

Details

AGLC: Pun v The Queen [2017] VSCA 219
Case: [2017] VSCA 219
Decision Date: 30 August 2017

CaseChat Overview and Summary

The appellant, Pun, appealed against his sentence for obtaining financial advantage by deception and negligently dealing with the proceeds of crime. The appeal was heard by the High Court of Australia. The central issue in the appeal was whether the original sentence of five years' imprisonment was manifestly excessive, particularly in light of the fact that the applicant had been sentenced as though he had knowingly and dishonestly dealt with the proceeds of crime, rather than negligently.

The court examined the role of the judge when faced with a conflict between agreed facts and negotiated charges. It considered whether the sentence was disproportionate to the nature and circumstances of the offence, taking into account the mitigating factors presented. The court referenced previous cases such as R v De Simoni, R v Brown, and R v Newman to determine the appropriate approach to sentencing in cases involving deception and dealing with proceeds of crime. The court also considered the statutory provisions under the Crimes Act 1958 and the Drugs, Poisons and Controlled Substances Act 1981.

The High Court found that the sentence was indeed manifestly excessive and allowed the appeal. The court resentenced the applicant, taking into account the mitigating factors and the appropriate statutory framework. The court emphasised the importance of ensuring that the sentence reflects the true nature of the offence and the offender's culpability. The final orders of the court included a reduction of the original sentence to a more appropriate level, reflecting the correct legal principles and mitigating factors.

Orders