R v Guo

Case [2010] NSWCCA 170

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Guo; R v Qian [2010] NSWCCA 170

FILE NUMBER(S):
2007/14204
2008/6218

HEARING DATE(S):
7 July 2010

JUDGMENT DATE:
5 August 2010

PARTIES:
Regina (Applicant)
Yun Lin Guo (Respondent)
Jin Hua Qian (Respondent)
Reg

JUDGMENT OF:
Beazley JA Kirby J Johnson J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/14204; 2008/6218

LOWER COURT JUDICIAL OFFICER:
His Honour Judge Bennett SC

LOWER COURT DATE OF DECISION:
2 October 2009 (Qian)

COUNSEL:
Mr K Chapple SC (Applicant)
Mr P Linegar (Respondent Guo)
Mr B Clark (Respondent Qian)

SOLICITORS:
Director of Public Prosecutions (Cth) (Applicant)
Ren Zhou Lawyers (Respondent Guo)
Jacksons Law (Respondent Qian)

CATCHWORDS:
CRIMINAL LAW
sentence
Crown appeals
one offender pleads guilty to recklessly dealing in proceeds of crime contrary to s.400.4(2) Criminal Code Act 1995 (Cth)
second offender pleads guilty to conducting transactions so as to avoid reporting requirements under s.31(1) Financial Transaction Reports Act 1988 (Cth)
sentence of imprisonment by way of periodic detention imposed in each case
claim by Crown that sentences were manifestly inadequate
offenders involved in elaborate and sophisticated scheme using phantom companies
avoidance of tax and exploitation of workers
sentencing principles applicable to money laundering offences and finance reporting offences
importance of general deterrence
offences involved significant degree of social harm
objectively serious s.400.4(2) offence
objectively serious s.31(1) offence
subjective circumstances of offenders not to outweigh need for sentences reflecting objective seriousness of offences and strong element of general deterrence
significant sentence of full-time imprisonment required in each case
sentences held to be manifestly inadequate
offenders resentenced

LEGISLATION CITED:
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Financial Transaction Reports Act 1988 (Cth)
Crimes Act 1914 (Cth)
Crimes (Appeal and Review) Act 2001

CATEGORY:
Principal judgment

CASES CITED:
Moore v Weibe (NSWCCA, 11 August 1992, unreported)
R v Novella (NSWCCA, 23 May 1990, unreported, BC9002396)
R v Radloff (1996) 88 A Crim R 26
R v Gutierrez [2004] NSWCCA 22
Steer v The Queen [2000] FCA 462
R v Z (2006) 167 A Crim R 436
R v Ansari [2007] NSWCCA 204; 70 NSWLR 89
R v Huang; R v Siu [2007] NSWCCA 259; 174 A Crim R 370
R v Au [2001] NSWCCA 468
R v Narayanan [2002] NSWCCA 200
R v Rule [2003] NSWCCA 97
R v Hutton [2004] NSWCCA 60
R v Wing Cheong Li [2010] NSWCCA 125
Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53
Thorn v R [2009] NSWCCA 294
R v O’Driscoll [2003] NSWCCA 166; 57 NSWLR 416
Leask v Commonwealth of Australia [1996] HCA 29; 187 CLR 579
R v Edwards; Ex parte Director of Public Prosecutions (Cth) [2008] QCA 85; 183 A Crim R 83
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
R v JW [2010] NSWCCA 49

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Details
AGLC
R v Guo; R v Qian [2010] NSWCCA 170
Case
[2010] NSWCCA 170
Decision Date

CaseChat Overview and Summary

In the case of R v Guo, the Crown appealed against the sentences imposed on Mr Guo and Mr Qian, both of whom had pleaded guilty to serious offences related to dealing in proceeds of crime and conducting transactions to avoid reporting requirements. The Court of Appeal was tasked with determining whether the sentences imposed were manifestly inadequate and if so, what appropriate sentences should be imposed. The Court found that the original sentences did not adequately reflect the objective seriousness of the offences and the need for general deterrence.

The Court emphasised the importance of sentencing in cases involving sophisticated schemes to avoid tax and exploit workers, highlighting the significant social harm caused by such activities. Both Mr Guo and Mr Qian were involved in a complex arrangement that included phantom companies and evasion of tax, which warranted strong general deterrence. The subjective circumstances of the offenders, including Mr Guo’s medical conditions, were considered but did not outweigh the need for sentences that reflected the objective seriousness of the offences. The Court concluded that a significant sentence of full-time imprisonment was necessary in both cases.

Consequently, the Court found the original sentences to be manifestly inadequate and resentenced Mr Guo to three years and ten months’ imprisonment, with a non-parole period of two years and five months, and Mr Qian to an appropriate term of imprisonment, reflecting the seriousness of the offences and the need for general deterrence. The sentences were to commence from the date of their original detention by way of periodic detention.

Orders

Orders of the court

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Background

Background to the litigation

Evidence was adduced in Ms Zhang’s case from treating doctors and other specialists regarding the detrimental effect of a period of full-time custody as a result of medical conditions from which she suffered. Although the Crown lodged an appeal to this Court against inadequacy of sentence imposed upon Ms Zhang, the Court was informed that the Crown appeal has been withdrawn.Facts of Offences The following summary of the facts of the Respondents’ offences is drawn from the remarks on sentence and the Crown submissions before this Court, which reflected accurately the detailed statements of facts tendered in the sentencing proceedings. The Overall Scheme The activities of Mr Guo, Ms Zhang and the Mr Qian were part of a wider scheme also involving Yufeng Cao ("Cao"), who was not charged before his return to China, Jiu Cai Ding ("Ding"), who was not charged and cannot be located, Bill Dong ("Dong") and Kwin Hong Choy ("Choy"), who were not charged. Baiada Poultry Pty Ltd ("Baiada") conducted a chicken processing business in the western suburbs of Sydney. Baiada engaged B&E Poultry Pty Ltd ("B&E Poultry") to supply labourers for their business. B&E Poultry then submitted invoices to Baiada for the services it supplied. B&E Poultry employed Mr Guo as a manager at the Baiada factory for about five years. In 2003, B&E Poultry then engaged Mr Guo, through his company Lin Enterprises Pty Ltd ("Lin Enterprises"), to provide the labourers for Baiada. Dong was believed to be the principal of B&E Poultry. The specific events upon which the charges were brought against the Respondents extended from about 17 November 2005 until 18 May 2006, during which time Baiada had its chicken meat processing business at various locations in New South Wales, including a factory at Girraween. Baiada’s workforce was unionised and its labour costs were high. To reduce its running costs, Baiada decided to contract with B&E Poultry for the provision of an unskilled workforce at the Baiada factory at Girraween to process chicken meat. Baiada also had labour supply agreements with other companies and had its own employees numbering about 2,000. Pursuant to the agreement reached with B&E Poultry, that company provided staff to fillet and marinate chicken meat at Girraween. The number of staff employed varied according to the amount of work available at any given time. The staff employed under this arrangement, from time to time, numbered from 65 up to 120 persons. So far as Baiada was concerned, B&E Poultry engaged these process workers. Baiada did not have any details of these workers, but identified them by a number allocated to them. Baiada understood the supervisor for B&E Poultry to be Mr Guo. He would attend the premises when there was a production or staffing problem. Dong was believed to be the principal in B&E Poultry, but he attended the factory only rarely. In addition to Choy, there were two other supervisors representing B&E Poultry at the factory, but if there were any disputes regarding the workers, resolution of those matters would include consultation with Choy.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I have reached this conclusion without the need to resolve the Crown’s submission (at [65]) by reference to a suggested unjustifiable disparity between the sentences. Rather, the conclusion of manifest inadequacy may be reached by examination of the objective seriousness of the offence in each case and the subjective circumstances of each Respondent, compared and contrasted with the sentence imposed upon each Respondent. Discretionary Considerations I approach the resolution of the appeals without seeking to apply, in the Crown’s favour, s.68A Crimes (Appeal and Review) Act 2001. The statutory limitation upon the double jeopardy principle referred to in R v JW [2010] NSWCCA 49 will not be taken into account in these appeals. I have taken this approach as the application of s.68A to Crown appeals in Commonwealth matters is presently under consideration by a five-Judge Bench of this Court. It has been possible to resolve the present Crown appeals upon the view of s.68A which is most favourable to the Respondents. Accordingly, I do not consider that it is necessary to delay the determination of these Crown appeals until the five-Judge Bench delivers judgment. In considering the question of discretion, I have taken into account the affidavit of Mr Guo affirmed 2 July 2010. I am satisfied that there are no discretionary reasons why this Court should not intervene and resentence the Respondents.Resentencing the Respondents The Crown has demonstrated that the sentences imposed upon Mr Guo and Mr Qian are manifestly inadequate. In each case, I am satisfied that the sentences failed to adequately reflect the objective criminality of each of Mr Guo and Mr Qian as found by the sentencing Judge, and failed to adequately reflect the element of general deterrence and the legislative intent underlying offences of these types. The maximum penalty for Mr Guo’s offence is imprisonment for 10 years. His offence is a serious example of a crime of this type. General deterrence is an important consideration in this case. The conduct of Mr Guo damaged the Commonwealth revenue, but also served to exploit workers in a manner which may be characterised appropriately as anti-social and causative of social harm. Mr Guo has a number of significant subjective factors operating in his favour. I have taken into account the contents of the affidavit of Mr Guo affirmed on 2 July 2010. Having regard to all relevant objective and subjective factors and all relevant s.16A considerations, I am satisfied, before application of the 15% discount for his guilty plea, that a sentence of imprisonment of four years and six months with a non-parole period of two years and 11 months is appropriate in his case. After application of the 15% discount (and some rounding), the sentence to be imposed will be three years and 10 months’ imprisonment with a non-parole period of two years and five months. I note that Mr Guo has been serving a sentence by way of periodic detention since 16 October 2009. He is entitled to credit for this period, albeit that the sentence has been served only by way of periodic detention. I propose that the sentence operate from that date. This approach is appropriate in this case as sentence is being increased on a Crown appeal.