R v Ding

[2011] NSWDC 184

District Court

New South Wales

Medium Neutral Citation:	R v DING [2011] NSWDC 184
Hearing dates:	13 October 2011
Decision date:	13 October 2011
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment for a period of 14 months
Catchwords:	CRIMINAL LAW - Sentence - Dealing with money reasonably suspected of being proceeds of crime - to be released immediately
Legislation Cited:	Crime Sentencing Procedure Act
Cases Cited:	Hili v The Queen; Jones v The Queen [2010] HCA 45
Category:	Sentence
Parties:	The Crown Weiwel Ding
Representation:	Mr N Steel - Offender Director of Public Prosecutions (Cth) John B Hajje Lawyers - Offender
File Number(s):	2011/277211

Judgment

1. HIS HONOUR: Weiwel Ding appears for sentence today after having pleaded guilty at an early stage to one offence of dealing with money reasonably suspected to being the proceeds of crime. This is a comparatively new offence for which the maximum penalty, when the matter is dealt with in this Court, is three years imprisonment. The matter can also be dealt with summarily. If it is, there is a jurisdictional limit of 12 months. I take into account in formulating the appropriate sentence to impose upon Mr Ding that the matter could have been dealt with in the Local Court.

1. The offence committed by Mr Ding, in very short form, was to have transferred a significant sum of money, indeed almost $300,000, from accounts of his in Sydney to a bank account of his father in China. It would appear that the offender would receive cash from persons unknown, put that into one of his bank accounts, move it from one bank account to another, and then transfer the money to his father. The sum of more than $300,000 in thirty transactions is significant when compared to the offender's income and financial circumstances generally. For example, ATO records show that his combined income for the financial years ending 2008 and 2009 was just more than $7,000.

1. There are suspicions that the money was the proceeds of card skimming operations. For example, the offender has on his criminal history an offence of making a false instrument and the statement of facts records that AFP officers believed that the offender was linked to premises where card skimming paraphernalia was found. But in reality, there is not sufficient information in the material before me to show precisely what form of offence these monies were the proceeds of, but it does not really matter. It is clear that the money was the proceeds of some crime, probably card skimming, but not necessarily so.

1. The offender told a psychologist that he did not believe that what he was doing was illegal, but that is very difficult to believe indeed, given the huge sums of money involved and the strange explanations offered by the offender as to why he was asked by others to do what he did. I have no hesitation at all in concluding beyond reasonable doubt that the offender was well aware that what he was doing was assisting in illegal conduct.

1. Offences of this kind are, of course, serious. It is often the case that law enforcement officers become aware of the proceeds of crime being dealt with in a manner similar to this, without being able to identify the precise crime involved. One way that the authorities seek to minimise crime is through offences such as this which are an attempt to hinder criminals being able to take advantage of their ill gotten gains. The prosecution says that, objectively, the offences require full-time imprisonment, and Mr Steel made no submission to the contrary.

1. The offender is twenty-three years of age. He is the older of two children born and raised in China. His parents and his younger brother live in China. When the offender was seventeen he came to Australia, he said to the psychologist, to pursue further education. Once in Australia he began gambling, at first on poker machines, but after being told, accurately, by others, that it was impossible to make money through gambling on poker machines, he moved to Star City Casino. He gambled money there and, not surprisingly, lost. Now is not the time to express at length any judicial opinion as to efforts being spoken of in federal government circles to reduce the problems created by gambling, beyond saying that the judges of this Court are distressingly aware that problem gamblers are easy targets for criminals who need people to do what the offender did in this case, to transfer money, the proceeds of crime, so that the criminals can have access to it.

1. I mentioned that the offender has a criminal history. Indeed, he was on a bond at the time of these offences. It is difficult to assess his prospects for rehabilitation, or what is likely to happen in the future as regards other criminal behaviour by him. No doubt the sentence that he has received in this matter will act as some personal deterrent to him. It is also important that I consider the principles of general deterrence, and I have taken that matter into account in formulating the appropriate sentence.

1. The offender pleaded guilty and so in order to reflect his willingness to facilitate the course of justice, the sentence that I am about to impose upon him will be twenty-five per cent less than it would otherwise have been.

1. Mr Ding has now spent a little more than seven months in custody for an offence that, the Crown concedes, is not at the top of the range of conduct covered by the offence.

1. In other cases I have expressed the view that following the High Court's decision in Hili v The Queen; Jones v The Queen [2010] HCA 45 , it would not be surprising to find that, for commonwealth matters, unconstrained by the New South Wales Crimes (Sentencing Procedure) Act , non-parole periods of about forty per cent of the head sentence are regularly imposed. If I formulate the appropriate head sentence and then consider a non-parole period of around that ratio, it is quite quickly seen that the offender is entitled to be released from custody immediately. The Crown did not speak in opposition to that result.

1. Although the non-parole period - as I will describe it, perhaps inaccurately - I am about to announce is more than forty per cent, it is only because there is no utility in formulating a precise ratio, given that it is my intention that I formulate an order that has the offender being released immediately.

1. So I impose on Mr Ding a sentence of imprisonment of fourteen months to date from 10 March 2011. He is entitled to be released on a reconnaissance release order self in the sum of $100 today, which is 13 October 2011.

**********

Decision last updated: 29 November 2011