R v Cheng, Benny Zhong - [2016] NSWDC 393

District Court

New South Wales

Medium Neutral Citation: R v CHENG, Benny Zhong [2016] NSWDC 393
Date of orders: 18 March 2016
Decision date: 18 March 2016
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full-time custodial sentence. For orders see [105]

Catchwords: CRIMINAL – Intentionally deal with money to help facilitate criminal activity – monetary transactions totalling in excess of one million dollars – SENTENCE – Commonwealth - role of the offender compared with co-offenders – utilitarian benefit of the plea of guilty – parity principles – impact of sentencing upon the offenders family – mental health of children – whether family circumstances are ‘exceptional circumstances’ – remorse and contrition – no prior criminal history.
Legislation Cited: Anti-Money Laundering and Counter Terrorism Act 2006 (Cth)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Cases Cited: Barbaro v R (2014) 253 CLR 58
Bugmy v R [1990] HCA 18
DPP (Cth) v Quian Lin [2014] NSWCCA 254
Elshani v R [2015] NSWCCA 254
Hili v R; Jones v R [2010] HCA 45
Lowe v R [1984] HCA 46
Polley v R [2015] NSWCCA 247
Power v R [1974] HCA 26
R v Jimmy [2010] NSWCCA 60
R v Li (2010) 202 A Crim R 195
R v Thomson; R v Houlton (2000) 49 NSWLR 381
R v Zerafa [2013] NSWCCA 222
Regina v Qian Lin [2014] NSWCCA 254
Wong v R [2001] HCA 64
Category: Sentence
Parties: Regina (Crown)
Benny Zhong Cheng (Offender)
Representation: Counsel:
Ms Jamshidi (Crown)
Mr Barron (Offender)

File Number(s): 2009/00301096
Publication restriction: Nil

SENTENCE

HIS HONOUR: The prisoner Benny Zhong Cheng, is to be sentenced today in relation to a charge that he between 27 May 2012 and 17 July 2012 in the State of New South Wales did deal with money or other property intending that the money or other property will become an instrument of crime and at the time of the dealing the value of the money or other property, was $1,000,000 or more. This is an offence contrary to, “s 400.3(1)(b)(ii)” Criminal Code (Cth). The maximum penalty for this offence is 25 years imprisonment and or, a pecuniary penalty of 1,500 penalty units.
The prisoner was arraigned before me on 7 December 2015 and was tried before a jury with the jury returning a verdict of guilty on 9 December 2015. The Crown case against the prisoner was not the subject of any dispute in essence. Exhibit A in the trial is an agreed statement of facts, setting out the essential facts relied upon by the prosecution in order to prove the guilt of the accused and I do not propose to reiterate the detail of those agreed facts, the document being already an exhibit in the proceedings albeit in the trial but not the sentence proceedings.
I prepared a document for the benefit of the jury setting out the legal issues for it to consider. It is to be borne in mind in relation to this…

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

Case: [2016] NSWDC 393
Decision Date: 18 March 2016

CaseChat Overview and Summary

The appellant, Benny Zhong Cheng, was convicted for his role in facilitating a large-scale criminal activity through a series of monetary transactions. The case reached the court where the central issue was to determine the appropriate sentence for Cheng given his involvement in facilitating a significant criminal enterprise. The court had to consider various factors including the role of Cheng compared to his co-offenders, the benefits of his early guilty plea, the principles of parity in sentencing, and the impact of incarceration on Cheng’s family, particularly the mental health of his children. Additionally, the court evaluated Cheng's remorse and contrition, as well as his lack of a prior criminal history.

The court examined the substantial nature of Cheng's involvement, which included transactions exceeding one million dollars. It considered the utilitarian benefits of Cheng’s early guilty plea, which often leads to a reduced sentence. However, the court balanced this with the need to ensure that the sentence was commensurate with the severity of the crime and Cheng’s role within it. The family circumstances, particularly the potential impact on the mental health of Cheng’s children, were also carefully weighed. The court concluded that these circumstances, while impactful, did not qualify as ‘exceptional circumstances’ warranting a departure from the general sentencing principles. Cheng's expressions of remorse and his lack of prior criminal history were noted but did not significantly alter the court’s view on the need for a custodial sentence.

In determining the appropriate sentence, the court found that a full-time custodial sentence was necessary to adequately reflect the seriousness of Cheng’s criminal activity. The court recognised the societal need for deterrence and the importance of upholding the rule of law. While acknowledging Cheng’s early guilty plea and his family’s circumstances, the court determined that these factors, alongside the severity of the crime, justified a custodial sentence. The final orders of the court included a full-time custodial sentence, with specific details provided in the detailed judgment.

Orders

Orders of the court

Full-time custodial sentence. For orders see [105]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v CHENG, Benny Zhong [2016] NSWDC 393
Date of orders:	18 March 2016
Decision date:	18 March 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [105]
Catchwords:	CRIMINAL – Intentionally deal with money to help facilitate criminal activity – monetary transactions totalling in excess of one million dollars – SENTENCE – Commonwealth - role of the offender compared with co-offenders – utilitarian benefit of the plea of guilty – parity principles – impact of sentencing upon the offenders family – mental health of children – whether family circumstances are ‘exceptional circumstances’ – remorse and contrition – no prior criminal history.
Legislation Cited:	Anti-Money Laundering and Counter Terrorism Act 2006 (Cth) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Barbaro v R (2014) 253 CLR 58 Bugmy v R [1990] HCA 18 DPP (Cth) v Quian Lin [2014] NSWCCA 254 Elshani v R [2015] NSWCCA 254 Hili v R; Jones v R [2010] HCA 45 Lowe v R [1984] HCA 46 Polley v R [2015] NSWCCA 247 Power v R [1974] HCA 26 R v Jimmy [2010] NSWCCA 60 R v Li (2010) 202 A Crim R 195 R v Thomson; R v Houlton (2000) 49 NSWLR 381 R v Zerafa [2013] NSWCCA 222 Regina v Qian Lin [2014] NSWCCA 254 Wong v R [2001] HCA 64
Category:	Sentence
Parties:	Regina (Crown) Benny Zhong Cheng (Offender)
Representation:	Counsel: Ms Jamshidi (Crown) Mr Barron (Offender)
File Number(s):	2009/00301096
Publication restriction:	Nil