R v Guo
[2010] NSWCCA 170
•5 August 2010
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
TEXTS CITED:
DECISION:
1. Crown appeal allowed with respect to sentence imposed upon Yun Lin Guo at the Parramatta District Court on 6 October 2009. The sentence imposed on 6 October 2009 is quashed and, in its place, Yun Lin Guo is sentenced to imprisonment for three years and 10 months commencing on 16 October 2009 and expiring on 15 August 2013, with a non-parole period of two years and five months commencing on 16 October 2009 and expiring on 15 March 2012.
2. Crown appeal allowed with respect to sentence imposed on Jin Hua Qian at the Parramatta District Court on 2 October 2009. The sentence imposed on Jin Hua Qian, on 2 October 2009 is quashed and, in its place, Jin Hua Qian is sentenced to imprisonment for two years and seven months commencing on 9 October 2009 and expiring on 8 May 2012, with Jin Hua Qian to be released on 16 June 2011 on a recognizance release order himself in the sum of $200.00.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2007/14204
2008/6218BEAZLEY JA
KIRBY J
JOHNSON J5 August 2010
REGINA v YUN LIN GUO
REGINA v JIN HUA QIAN
Judgment
BEAZLEY JA: I agree with Johnson J.
KIRBY J: I agree with Johnson J.
JOHNSON J: These are Crown appeals under s.5D Criminal Appeal Act 1912 with respect to sentences imposed upon the Respondents, Yun Lin Guo and Jin Hua Qian, at the Parramatta District Court in October 2009. In each case, the Crown submits that the sentence imposed was manifestly inadequate.
The Offences and Sentences
Mr Guo pleaded guilty to an offence of recklessly dealing with the proceeds of crime under s.400.4(2) Criminal Code Act 1995 (Cth) in the following terms:
“Between about 30 March 2006 and 11 May 2006 at Sydney, New South Wales, [Yun Lin Guo] did deal with money valued at $100,000 or more, reckless to risk that the money would become an instrument of crime, contrary to sub-s400.4(2) of the Criminal Code 1995.”
The maximum penalty for this offence is imprisonment for 10 years and/or a fine not exceeding $66,000.00. On 6 October 2009, Mr Guo was sentenced to imprisonment for two years, six months and 18 days commencing on 16 October 2009 and expiring on 2 May 2012, with a period of one year and 10 months to be served by periodic detention, with Mr Guo to be released on 15 August 2011 on a recognisanze in the sum of $1,000.00 to be of good behaviour for the remaining period of the sentence.
Mr Qian pleaded guilty to an offence of conducting transactions so as to avoid reporting requirements under s.31(1) Financial Transaction Reports Act 1988 (Cth) in the following terms:
“Between about 17 November 2005 and 18 May 2006 at Sydney, New South Wales, [Jin Hua Qian] was a party to two or more non-reportable cash transactions, namely cash withdrawals of less than $10,000, totalling $2,278,100, from Westpac Bank of Australia account number 032060-224555 in the name of Zhongyu Pty Ltd and Westpac Bank of Australia account number 0320630-283868 in the name of Hong Cai International Pty Ltd which, having regard to the manner or form in which they were conducted, it is reasonable to conclude that the transactions were conducted in that manner or form for the sole or dominant purpose of ensuring or attempting to ensure that the currency involved in the transactions would not give rise to a significant cash transaction contrary to s31(1) of the Financial Transaction Reports 1988.”
The maximum penalty for this offence is imprisonment for five years and/or a fine not exceeding $33,000.00. On 2 October 2009, Mr Qian was sentenced to imprisonment for one year and eight months commencing on 9 October 2009 and expiring on 8 June 2011, with a period of one year and five months to be served by period detention, with Mr Qian to be released on 8 January 2011 on a recognisanze in the sum of $1,000.00 to be of good behaviour for the remaining period of the sentence.
History of Proceedings Against Respondents
As will be seen, the Respondents were effectively co-offenders in an elaborate scheme which operated from late 2005 to mid-2006.
On 18 May 2006, Mr Guo was arrested and charged by the Australian Federal Police (“AFP”) and was released on bail.
On 18 April 2008, after partly contested committal proceedings, Mr Guo was committed for trial in the Downing Centre District Court together with a co-accused, Xiao Ping Zhang. The trial was due to commence on 7 October 2008, to be heard together with Ms Zhang and Mr Qian. Mr Guo pleaded guilty on 8 October 2008.
On 18 May 2006, Mr Qian was arrested and charged by the AFP and was released on bail. He was charged with one count of recklessly dealing with the proceeds of crime contrary to s.400.4(2) Criminal Code Act 1995 (Cth) and 27 offences under s.31(1) Financial Transactions Reports Act 1988 (Cth).
On 6 November 2007, Mr Qian waived the requirement for committal proceedings and was committed for trial at the Downing Centre District Court. On 27 June 2008, Mr Qian’s trial was set down to commence on 7 October 2008, to be heard together with Mr Guo and Ms Zhang.
On 9 October 2008, Mr Qian entered a plea of guilty to one count under s.31(1) Financial Transaction Reports Act 1988 (Cth) with the Crown not proceeding with any other charge.
Thereafter, lengthy sentencing proceedings (occupying some 10 days) ensued before the sentencing Judge with respect to Mr Guo, Mr Qian and Ms Zhang, involving evidence and submissions. In lengthy remarks on sentence delivered on 2 and 6 October 2009, his Honour imposed sentences with respect to the Respondents as set out earlier in this judgment.
On 27 October 2009, the Commonwealth Director of Public Prosecutions lodged appeals asserting inadequacy of sentence with respect to each Respondent.
On 6 November 2009, his Honour sentenced Ms Zhang following her plea of guilty to one count of recklessly dealing with the proceeds of crime contrary to s.400.4(2) Criminal Code Act 1995 (Cth). Ms Zhang was sentenced to 18 months’ imprisonment to commence on 6 November 2009 and expiring on 5 May 2011 to be served by way of conditional home detention, with Ms Zhang to be released on 26 November 2010 on a recognisanze in the sum of $5,000.00 to be of good behaviour for two years and six months.
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.
Each day, an employee of Baiada would maintain a record of the production by the workers to be agreed by Choy whereupon those figures were entered into the Baiada computer system. B&E Poultry would submit an invoice for payment based upon those figures.
Mr Guo, through Lin Enterprises, engaged Quang Jun Pty Ltd ("Quang Jun") to supply what were the same labourers to work at Baiada as were engaged by B&E Poultry. Quang Jun invoiced Lin Enterprises. Choy was the sole director of Quang Jun, and was also a fellow supervisor with Mr Guo, employed by B&E Poultry at Baiada.
After a 4% deduction for commission and other expenses, Lin Enterprises would pay the Quang Jun invoice.
Quang Jun engaged Zhongyu Pty Ltd ("Zhongyu") and, later, Hong Cai International Pty Ltd ("Hong Cai") to supply what were the same labourers as those engaged by B&E Poultry and Lin Enterprises to work at Baiada. Zhongyu and Hong Cai invoiced Quang Jun.
After a deduction of a commission and expenses, payment of these invoices were made to the relevant company bank accounts in the chain.
Cash withdrawals were then made from the bank accounts of Zhong Yu and Hong Cai by Mr Qian, supervised by Cao, until his departure from Australia.
Lin Enterprises, Quang Jun, Zhongyu and Hong Cai were shell companies that did not perform any of the work detailed on the invoices to justify their payment.
The trail of invoices and payments had no commercial basis but were set up to conceal the ultimate conversion of legitimate contract payments to cash.
A portion of the cash withdrawn was used to pay unskilled workers at Baiada in cash or cheque. However, there was a surplus of cash each week and what became of it is unclear. Zhong Yu and Hong Cai never lodged income tax returns declaring as income the money deposited to their accounts.
So far as Baiada was concerned, those supervising the labour force continued in their role under this contractual arrangement. There was not, at any time, disclosure to Baiada of the additional arrangements in place involving further companies by means of which the money paid by Baiada was transferred from company to company, purportedly with commissions drawn by each along the way, until reaching the final repository, at which point structured withdrawals were made so that cash could be paid to the workers at the factory.
There was no suggestion of impropriety on the part of Baiada or its principals or employees in the arrangements giving rise to the charges.
His Honour referred to the tax and other implications of the scheme (AB66-67):
“I am satisfied beyond reasonable doubt that the only rational inference to draw is that this overall arrangement had as its goal the denial of taxation to which the Commonwealth was entitled and that concurrent with that goal or purpose, the workers providing services to Baiada were paid in cash without adequate records thereof and, it appears, without contributions for superannuation, and without appropriate insurance protection, although the evidence is silent upon those latter two points.”
In a further finding concerning the impact of the offences, his Honour said (AB104-105):
“As I noted earlier there is no evidence directly related to the question of superannuation and insurance protection, however, the inference to be drawn upon my assessment of the evidence speaking directly to these matters is that there was some such impact as well as the attack upon the revenue by reason of this scheme.”
His Honour accepted the following Crown submission concerning the tax and other implications of the scheme (AB46):
“The Crown submitted that when one stood back from this matrix and looked at the facts in a global fashion, what is revealed is that at the same time in respect of the same amount of money all three of these offenders were engaged upon the commission of their offences to facilitate the overall outcome sought, that is, avoidance of tax and the exploitation of the workers in this factory.”
The sentencing Judge characterised the misconduct of the Respondents in the following way (AB14-15):
“… their misconduct facilitated the success of a sophisticated arrangement whereby a small number of greedy individuals profited at the expense of the revenue and the unfortunate workers whom they exploited, denying them the rewards and protections to which they were entitled in the unpleasant and difficult services they provided preparing chicken meat products.”
Circumstances relative to Mr Guo
Over the period of the charge against him, Mr Guo dealt with an amount of $716,394.73, by depositing cheques drawn on the account of Lin Enterprises to the account of Quang Jun. Part of the proceeds of those cheques were eventually deposited into the bank accounts of Zhongyu and Hong Cai, from which cash was withdrawn by Mr Qian as part of his structuring activities.
On an occasion, Mr Guo was handed cash withdrawn by Mr Qian in Burwood.
Mr Guo continued his criminal activity over a period of two months, ceasing only because he was arrested.
Circumstances relative to Mr Qian
Mr Qian was employed to withdraw cash (totalling $2,278,100.00) from the bank accounts of Zhongyu and, later, Hong Cai on behalf of others, including Mr Guo over a period of six months. On average over the period of the charge, Mr Qian withdrew $84,448.00 each week.
Mr Qian represented himself to bank tellers as the owner of chicken factories requiring cash to pay his employees.
Mr Qian used a Westpac handycard, issued in the name of Cao, to withdraw cash from the account of Zhongyu and another Westpac handycard issued in the name of Ding to withdraw cash from the account of Hong Cai.
Mr Qian said, during a record of interview, that he withdrew less than $10,000.00 in any one transaction because he knew that if he withdrew more than that amount, there would be a record and the bank would require his identification.
During the record of interview, Mr Qian also said that:
(a)every Thursday, Ding or someone on behalf of Ding, would instruct
him to withdraw cash;
(b)he would meet Ding, or his representative, in a street near his house and hand over the withdrawn cash in an envelope;
(c)on occasions, he handed the withdrawn cash to Ms Zhang in her motor car;
(d)on an occasion, he handed the withdrawn cash to Mr Guo
in Burwood;
(e)he was due to hand over the $94,000.00 that was found in his premises during the search by the AFP;
(f)he received about $200.00 to $300.00 for each tranche of withdrawals (extrapolating from this, Mr Qian would have received
between $5,400.00 and $8,100.00 over the period of offending);
(g)he met both Mr Guo and Ms Zhang, as part of his activities.
Subjective Circumstances of the Respondents
Mr Guo was born in 1963 and was 43 years’ old at the time of the offence and 46 years of age at the time of sentence. He was born in China and came to Australia for the first time on a student visa in 1990. Thereafter, he returned to China, married his wife, and returned to Australia in 1998. His marriage broke down and he remarried in 2003 with a child being born of the marriage in August 2005.
Following his arrest, Mr Guo’s wife and child went to China to live with his mother.
Mr Guo has no prior convictions. Character evidence was led on his behalf on sentence and a psychological report was tendered which touched upon Mr Guo’s background and that of his family.
The sentencing Judge allowed a 15% discount for the utilitarian benefit of Mr Guo’s plea of guilty.
Mr Qian was born in China in 1953. He was 53 years’ old at the time of the offence and 56 years of age at the time of sentence. He has no criminal history.
Mr Qian married in 1983 and moved to Australia in 1989, becoming an Australian citizen in 1998. Before his travel to Australia, he was employed in China and upon his arrival in this country, he gained employment in various industries, mainly in labour-intensive work. A psychological report was tendered in the District Court with respect to Mr Qian, his family and their background. Character references were tendered as well in the defence case on sentence.
As with Mr Guo, the sentencing Judge allowed a 15% discount to Mr Qian for the utilitarian benefit flowing from his plea of guilty.
The Crown Appeals
The Crown Submissions
The Crown submitted in this Court that the sentences imposed upon Mr Guo and Mr Qian were manifestly inadequate and created an inconsistency in sentencing standards, to the extent that this Court should intervene in order to maintain adequate standards of punishment for offences of this nature. In particular, the Crown submitted that the sentences:
(a)failed to adequately reflect the criminality of the offending by reference to the roles of each of Mr Guo and Mr Qian and the nature of their offending;
(b)failed to properly take into account the positions occupied by each of Mr Guo and Mr Qian and the maximum penalties provided, resulting in unjustifiable disparity between the sentences; and
(c)failed to adequately reflect the element of general deterrence and the legislative intent of Parliament recognising the seriousness of offences of this type.
The Crown submitted that the sentence imposed with respect to each Respondent was manifestly inadequate, by reference to the length of the sentence and the direction that a proportion of the sentence in each case be served by way of periodic detention (and not full-time custody).
The Crown did not contend that any finding of fact by the sentencing Judge was erroneous. Rather, the Crown submitted that the sentence in each case was manifestly inadequate having regard to the findings made by the sentencing Judge concerning each Respondent.
With respect to Mr Guo, the Crown submitted that the sentence failed to reflect the conclusions reached by the sentencing Judge concerning his criminality and role in the scheme, even after regard was had to Mr Guo’s subjective factors.
The Crown submitted that Mr Guo was directly involved in the transfer of money and had a senior role to play at the start of the chain of money transfers. Lin Enterprises had received money from B&E Poultry and transferred money, less commission and expenses, to the next company in the chain. It was submitted that he had a significant role to play at the end of the chain in that he received cash from Mr Qian, and was involved with Ms Zhang in supervising worker payments. The Crown noted that the sentencing Judge found that Mr Guo was a principal in Lin Enterprises and was an “indispensable link in the chain”, although his Honour concluded that Mr Guo was not at the level of Cao or Choy.
The Crown pointed to other findings made by the sentencing Judge concerning Mr Guo, including the following:
(a)Mr Guo occupied the same supervisory role at Baiada prior to and after the scheme commenced, so that he was effectively providing the same service (AB115-116);
(b)his Honour had difficulty accepting Mr Guo's evidence that in performing those duties, he found it necessary to engage Quang Jun to perform those same labour hire duties (AB112);
(c)as far as Baiada was concerned, they were dealing with Mr Guo as a representative of B&E Poultry as Mr Guo failed to disclose the existence of Lin Enterprises and the role it was playing to Baiada (AB112);
(d)Mr Guo's company, Lin Enterprises, was the first company in the chain of the scheme to defeat the taxation system (AB117-118);
(e)Mr Guo, through Lin Enterprises, made available $716,394.73 to the scheme that eventually made its way to be withdrawn by Mr Qian (AB118);
(f)Mr Guo agreed that the purported invoices from Lin Enterprises, representing work performed by it, did not reflect work that had been performed by that company. Despite this, commission payments were taken by Lin Enterprises as the money passed from B&E Poultry through Lin Enterprises to Quang Jun. Mr Guo acknowledged that the money was diminishing as it proceeded down the chain (AB116);
(g)Mr Guo was willing to facilitate the illegal activities of the wider group in the scheme (AB118);
(h)Mr Guo was actively engaged with Ms Zhang and Mr Qian, together with Choy and Cao, throughout the process of the illegal activities (AB118);
(i)Mr Guo received cash extracted by Mr Qian at Burwood (AB118);
(j)the arrangement allowed the conversion of what was taxable income in the hands of B&E Poultry, into cash that was not declared by Zhongyu and Hong Cai (AB118-119);
(k)Mr Guo was careful to engage an accountant and kept rudimentary records, but this was only to give an appearance of integrity and propriety (AB121);
(l)there was no true legitimate commercial purpose for Lin Enterprises being placed where it was in the chain (AB121).
With respect to Mr Qian, the Crown submitted that the sentence imposed failed to reflect the conclusions reached by the sentencing Judge concerning his criminality and his role in the scheme, even after consideration was given to Mr Qian’s subjective factors.
The Crown submitted that Mr Qian’s role was integral to the scheme and the sentencing Judge so found (AB45-46). His Honour found that Mr Qian’s conduct was “clandestine and could have been for no purpose other than to mask the transactions from discovery, and mask the intended use of the money and the underlying purposes of the scheme for which the Crown contends”. His Honour found that the “illegitimacy of what he [Mr Qian] was engaged upon must have been obvious to him” (AB34).
The Crown submitted that an important question on sentence was Mr Qian’s knowledge of the need to withdraw amounts less than $10,000.00 so as to avoid the Commonwealth reporting requirements. After undertaking a lengthy comparison between Mr Qian’s answers given in a record of interview and his evidence given at the sentencing proceedings, his Honour accepted the Crown’s submission that Mr Qian knew that he should not withdraw more than $10,000.00 at a time, lest there be a report of the transactions (AB26, 28-34, 46).
The Crown pointed to other findings of the sentencing Judge concerning the criminal conduct of Mr Qian:
(a)he was involved in “systematic frequent structuring of a large sum of money on behalf of others including the offender Guo” (AB44);
(b)his activity occurred over a long period, ceasing only because he was arrested (AB44);
(c)he was part of a wider group, including Mr Guo, making use of a “chain of phantom companies” and was willing to facilitate the illegal activities of others to convert legitimate money into cash (AB44);
(d)he had knowledge of the precise amounts to be delivered following his structuring activities (AB23-24);
(e)he was aware that what he was doing was wrong (AB45);
(f)the activity of Mr Qian facilitated the ability of those more directly involved with the factory workers to mask from Baiada what was actually occurring (AB46);
(g)he used a false identity to negotiate the bank transactions, and acted with relative sophistication and with persistence, representing himself confidently to bank tellers as the owner of chicken processing factories with employees (AB22, 44-45).
The Crown noted the view of the sentencing Judge that the sentence to which Mr Guo was exposed ought be greater than either that of Mr Qian or Ms Zhang because of his role. In addition, Mr Guo stood for sentence for an offence carrying a maximum penalty which was twice that of the offence for which Mr Qian was to be sentenced. The Crown pointed to the finding of the sentencing Judge that Mr Guo’s role was above that of Mr Qian in the scheme. It was submitted that a higher maximum penalty should have been fixed with respect to Mr Guo in view of these findings. The Crown submitted that his Honour failed to have proper regard to the criminal activities of Mr Guo in fixing sentence.
The Crown acknowledged that disparity of sentence between co-offenders in itself is not a ground for a Crown appeal on the basis that the Crown or the community might feel a sense of grievance because of disparity: Moore v Weibe (NSWCCA, 11 August 1992, unreported); R v Novella (NSWCCA, 23 May 1990, unreported, BC9002396). However, the Crown submitted that the sentences imposed on the Respondents resulted in an “unjustifiable disparity” so as to warrant intervention by this Court: R v Radloff (1996) 88 A Crim R 26 at 33; R v Gutierrez [2004] NSWCCA 22 at [144]-[148]; Steer v The Queen [2000] FCA 462 at [11]-[12].
The Crown submitted that the sentences imposed upon Mr Guo and Mr Qian failed to adequately reflect the element of general deterrence and the legislative intent of Parliament recognising the seriousness of offences of this type.
The Crown pointed to statements in the second reading speeches to establish a clear legislative intent in introducing the money laundering and structuring legislation in recognition of the seriousness of these types of offences and the effect they can have upon the Australian economy, in particular given the difficulty of detection of offences of this type.
The Crown submitted that, in this case, the activities of Mr Guo and Mr Qian affected the ability of the Commonwealth of Australia, through the Commissioner of Taxation, to protect the revenue through the taxation system. The Crown emphasised and endorsed the finding of the sentencing Judge referred to at [38] above.
The sentencing Judge found that the only rational inference regarding the goal of the scheme was denial of taxation receipts to which the Commonwealth of Australia was entitled (AB66) (see [35] above).
The Crown pointed to the sentencing Judge’s endorsement of the Crown submission (referred to at [37] above), which extended to the conduct of Mr Guo and Mr Qian (AB46).
The Crown submitted that an examination of other sentencing decisions for offences under the legislation breached by Mr Guo and Mr Qian fortified a conclusion that the sentence imposed upon each Respondent was manifestly inadequate.
Submissions on Behalf of Respondents
Mr Linegar, counsel for Mr Guo, submitted that the sentence imposed upon his client was not manifestly inadequate.
Mr Linegar pointed to an acceptance by the sentencing Judge that “the source of the funds was legitimate and that the ultimate destination was legitimate, but along the way the money was diminished until it was below what would have otherwise been the appropriate remuneration of these workers, with appropriate taxation taken at source and provision for other aspects of the employment relationship” (AB117). He pointed to a further finding by his Honour that “wages may have been paid to workers either in cash or by cheque but the simple fact is that the arrangement allowed the conversion of what would have been taxable income in the hands of B&E Poultry into cash income that was not declared by Zhongyu and Hong Cai at the end of the line” (AB118-119).
Mr Linegar pointed to the finding that Mr Guo’s role was not that of a principal in the scheme, although acknowledging that he was the principal in his family company and was an “indispensable link in the chain” (AB121). Counsel submitted that this entitled the sentencing Judge to pass sentence based upon an assessment of criminality that placed Mr Guo at or below the mid range of objective seriousness for this offence.
Mr Linegar submitted that whilst a large sum of money passed through Mr Guo’s company, a relatively small amount of 4%, and later 8%, was retained by him as commission, with the bulk of the funds being paid to the workers hired to provide the labour.
Mr Linegar submitted that his Honour made careful and detailed findings which provided a proper foundation for the characterisation of Mr Guo’s criminality and the sentence imposed with respect to him.
With respect to the Crown submission concerning parity, Mr Linegar submitted that the principle in R v Radloff had no application to this case as there was no unwarranted disparity between the sentences of the Respondents, having regard to the facts and the circumstances of each offender.
Counsel submitted that a sentence by way of periodic detention lay within his Honour’s sentencing discretion. The Respondent had pleaded guilty to a charge that alleged that he acted recklessly and this was significant to an assessment of his criminality. It was submitted that the profit gained personally by Mr Guo over the two-month period in 2006 was relatively small, and his criminality was less than that of the two principals, Cao and Choy, who intentionally defrauded the Commonwealth of much larger sums.
Mr Linegar pointed to subjective factors operating in Mr Guo’s favour, including prior good character, his expression of remorse and health issues raised in a psychological report tendered on sentence. He submitted that appropriate regard was had to sentencing factors referred to in s.16A Crimes Act 1914 (Cth). Further, Mr Linegar submitted that the comparative cases relied upon by the Crown could be distinguished from the circumstances of this case. He submitted that the present case is not a money laundering offence related to drug dealing (R v Z (2006) 167 A Crim R 436; R v Ansari [2007] NSWCCA 204; 70 NSWLR 89) nor was it factually similar to the circumstances of R v Huang; R v Siu [2007] NSWCCA 259; 174 A Crim R 370.
Counsel submitted that the sentence imposed on Mr Guo was both appropriate and adequate in all the circumstances of the case, so that the Crown appeal ought be dismissed.
Mr Clark, counsel for Mr Qian, pointed to a number of findings concerning the conduct of his client, including the fact that he received a sum of between $5,000.00 and $8,000.00 for his actions as part of the scheme. Mr Clark pointed to the finding that Mr Qian was accompanied by someone else, who was directing and maintaining a supervisory role concerning his activities (AB43). Counsel emphasised that allowance was made for Mr Qian’s plea of guilty and contrition and that the offence for which he was to be sentenced carried a maximum penalty of imprisonment for five years, half the maximum penalty faced by Mr Guo.
Mr Clark submitted that an examination of comparative cases in the District Court relied upon by the Crown did not advance the Crown appeal. He sought to distinguish the various cases - R v Au [2001] NSWCCA 468; R v Narayanan [2002] NSWCCA 200; R v Rule [2003] NSWCCA 97 and R v Hutton [2004] NSWCCA 60.
Mr Clark submitted that the detailed remarks on sentence balanced the objective seriousness of the offence, and Mr Qian’s role in it, and his personal circumstances. He submitted that the length of the sentence, and the use of periodic detention, was appropriate in all the circumstances, having regard to Mr Qian’s role, his previous unblemished character and his subjective circumstances. He submitted that the sentence imposed in the District Court was an available one in the exercise of that Court’s sentencing discretion so that the Crown appeal ought be dismissed.
Some Sentencing Principles Concerning Money Laundering Offences and Financial Reporting Offences
Money Laundering Offences
A number of decisions of this Court have considered the approach to sentence for money laundering offences under Pt 10.2 of the Criminal Code Act 1995 (Cth). The breadth of conduct covered by offences in Pt 10.2 has been emphasised.
In R v Wing Cheong Li [2010] NSWCCA 125, Barr AJ (Allsop P, Basten JA, McClellan CJ at CL and Simpson J agreeing) examined the structure and content of offences contained in ss.400.3-400.4 Criminal Code Act 1995 (Cth). Barr AJ examined the graduated series of offences contained in each section, all concerned with money or property worth at least $1 million (s.400.3) or at least $100,000.00 (s.400.4), but varying in gravity according to the offender’s state of mind (at [17]-[19]). His Honour referred to a number of sentencing decisions concerning s.400.3 (at [25]-[27], [34]-[39]) and s.400.4 (at [28]-[33]). After referring to these cases, Barr AJ said (at [40]):
“Although the number of money laundering cases dealt with by the appellate courts is growing, it is still small. The cases do not even begin to trace the limits of the range of proper sentencing discretion. They can do no more in my opinion than produce a broad indication of the developing sentencing practice. Moreover, unless there are co-offenders, one may not look at the facts and result of a single case in order to show that the case under consideration is within or outside a proper range of sentencing discretion: R v George [2004] NSWCCA 247 per the Court at [48] - [49].”
Accordingly, sentencing decisions for money laundering offences may provide assistance by way of statements of general sentencing principle for this class of offence, but not by way of identification of a range of sentence: Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53 at 79 [81].
Barr AJ continued in R v Wing Cheong Li at [41]:
“Notwithstanding the gridlike structure of the subsections, their graded component parts and maximum sentences, they comprehend such a wide range of criminality that there is bound, I think, to be an appreciable variation in the length of sentences within and between them. It seems to me, without undervaluing the importance of the principal differentiating factors – minimum value of money or property and state of mind – that each case will have other variables that bear on sentence. Perhaps the most important will be an exact appreciation of what the offender did, what acts he performed and with what authority and over what period of time. The total value of money or property involved will be important, and whether the money or property belonged to the offender or to another. The degree of planning or deceit that led to the commission of the offence and whether actual loss resulted, and the extent of such loss, will be important. Just as there is a distinction between recklessness and belief, the precise nature of proved belief may vary so as to affect the sentence. There will be a range of possible strengths of belief, rising to certain knowledge, as in Maldonado.”
In R v Ansari, Howie J (Simpson and Hislop JJ agreeing), at 118-119 [119]-[124], pointed to the breadth of conduct covered by this class of offences, and adverted to some factors relevant to an assessment of objective seriousness:
“119The offences within the Division, therefore, apply to a large range of activity in relation to money or other property to be used in connection with, or arising from, serious crime. Not only is there a very wide ambit in relation to the conduct caught by the offences but there is also a substantial range of criminal activity to which the money or property could relate, being limited in effect to an indictable offence of the Commonwealth or a State or Territory. The offences are not concerned only with the source of the money or property that is dealt with but also its ultimate use. The offences cover money obtained illegally or to be used for illegal purposes or dealt with in a manner that is illegal.
120With offences that are so wide ranging in their scope it becomes somewhat difficult to imagine an offence falling within the worst category of its kind against which any particular offence can be measured. It might be thought that dealing with money that is to be used for the purposes of terrorism might be within the class of the most serious offences encompassed by the sections in the Division. But it is perhaps not so difficult to conceive of offences that will form the bulk of conduct falling within the scope of the Division that would come before the criminal courts. The most obvious will relate to money obtained as a result of drug activity and that is being dealt with in order to make it more difficult to track or identify as the proceeds of a particular crime. It may also be money that has been legitimately earned but is to be dealt with in such a way as to disguise its source in order, for example, to defraud the taxation office.
121But frequently it will be impossible for the authorities to identify the origins of the funds or what is ultimately to be the use made of them, yet it can be shown that the manner of dealing with them was a breach of the law, such as to avoid the mandatory reporting conditions under the Financial Transactions Reporting Act. It may be the case that the persons dealing with the money do not know its source or ultimate destination and do not care provided they are being paid for rendering a service.
122The legislation itself has attempted to structure offences to give some guidance as to the seriousness of the conduct by reference to the applicable maximum penalty for each offence. The scheme is that the greater the sum of money involved, the more serious the offence. But the legislation also takes into account the mental state of the offender, so that an offence involving the intentional dealing with proceeds of crime or instruments of crime is more serious than one where the state of mind is recklessness as to the criminal nature of the property. Therefore s 400.3(1), where the amount involved is more than a million dollars and where the offender believes that the property is the proceeds of crime or intends that it will become an instrument of crime, provides for the most serious of the money laundering offences carrying a maximum penalty of imprisonment for 25 years and/or 1500 penalty units.
123It is likely that an offender before the court for sentencing for an offence within the Division will be a person facilitating the laundering of the money or actually involved in that process, rather than the owner of the money or the beneficiary of the laundering. The prosecution may not be able to show that the offender knew of the source of the money or its ultimate destination. In Assafiri v R [2007] NSWCCA 159 an analogy was drawn between money laundering offences and drug importations in that both types of offences usually reveal a hierarchy of persons involved in the conduct who have different roles to play and different gains to be made from the commission of the crime. The most important consideration in sentencing an offender for an offence under this Division will be to consider what the offender did, because there may be little or no evidence before the court as to the organisation behind the offence, the source of the funds or the ultimate use to made of them: see R v Olbrich (1999) 199 CLR 270 at [19].
124However according to normal sentencing principles, if the Crown wants to submit that the particular offence is aggravated by a circumstance that makes it more serious than objectively it would appear to be from the bare conduct of the offender, for example because the money with which the offender dealt was known by him to be intended to support terrorism, then the Crown should prove that fact beyond reasonable doubt. On the other hand, if the offender seeks to mitigate the seriousness of the apparent conduct by some fact, for example that the offender believed the funds were to be used for a humanitarian purpose, then it would fall to the offender to prove that fact on the balance of probabilities. Where however the accused denies the offence or there is no evidence as to his state of knowledge of the source of the funds, the purpose of dealing with the funds or their ultimate destination, the Court must simply deal with the matter on the objective facts as proved by the evidence. That was the case here. The Judge was not required to find facts that were most favourable to the appellants.”
In R v Huang, this Court (Simpson, Howie and Hislop JJ) referred, at 380-381 [32]-[36], to factors which bear upon an assessment of the objective seriousness of a money laundering offence:
“32Notwithstanding the Crown submissions to the contrary before this Court, we are of the opinion that the offender’s belief as to the source of the funds will always be a relevant consideration regardless of whether the offender is charged with an offence concerned with the proceeds of crime or an offence concerned with property being used as an instrument of crime. Where it is the latter, the belief as to the source of the funds or its nature is less relevant because the offence is directed at the use to be made of the funds. So the offence of the respondent Siu was aggravated because he believed that the funds were as a result of illegal activity, albeit the activity was not of the utmost seriousness.
33The understanding of the offender as to what was to be the destination of the money or the purposes for which it was to become an instrument of crime is also a relevant consideration. In the present case it was a significantly aggravating factor that the respondent Huang believed that he was actively involved in dealing with the money for the purpose of evading the payment of tax. But as was stated in Ansari, this is not a matter that is decisive of the seriousness of the particular offence or the appropriate penalty.
34The amount of money involved is clearly a highly significant matter because the legislation uses it as the principal means of dividing the offences into categories and it is the primary identifier of what is the maximum penalty for an offence. The only difference between an offence falling within s 400.3(a), and carrying a maximum penalty of 25 years, and an offence falling within s 400.4(a), and carrying a maximum penalty of 20 years, is the amount of money or the value of the property with which the offender dealt.
35Of course the number of transactions carried out by the offender in committing the offence and the period over which the transactions occurred are significant because they indicate the extent of the offender’s criminality. Generally speaking a number of transactions involving small amounts of money will be more serious than a single transaction of a larger amount. The latter may be seen as an isolated offence.
36We are of the opinion that in the case of each of the respondents his criminality fell generally within the midrange of offending covered by the relevant sections. Money laundering on the scale in which both respondents were involved should be considered as serious criminal activity that is at the very heart of organised, professional crime syndicates. It warrants severe punishment not the least in order to reflect general deterrence of a very significant degree. When the activity is engaged in for profit, over a significant period of time and with a large number of transactions, the prior good character of the offender is of less significance than might otherwise be the case.”
The range of circumstances which may give rise to money laundering offences, and factors bearing upon objective seriousness, were considered again by this Court in Thorn v R [2009] NSWCCA 294, where Howie J (Campbell JA and Rothman J agreeing) said at [30]-[31]:
“30In sentencing for the money laundering offence the Judge referred to a number of decisions of this Court including Ansari v R [2007] NSWCCA 204; 70 NSWLR 89 and R v Huang and Sui [2007] NSWCCA 259; 174 A Crim R 370. But those cases involved money laundering of a completely different character to that involved in the offence before his Honour. Ansari concerned persons who were intimately involved in dealing with money that was the result of some other person’s criminal activity so as to hide its source. That is money laundering in the true sense of that term and clearly the type of activity that the legislature had in mind in creating the offence. Similarly Huang and Sui were involved in money laundering as it is generally understood but at a lower level of criminality than in Ansari. They were involved in taking sums of money at the behest of another and depositing it in various accounts under false names to hide the source of the funds.
31But here the applicant was merely transferring the money obtained by the fraudulent claims from the company accounts to his personal account or drawing it from an ATM so that he could use it to gamble. He was doing nothing to hide the source or to change the nature of the funds. He was simply gaining access to them. The activity came within the scope of the offence under s 400.4, because the offence is so widely drawn. But it was a highly technical version of the offence.”
The importance of general deterrence as a sentencing factor for money laundering offences has been emphasised: R v Huang at 381 [36].
Financial Reporting Offences
The Financial Transaction Reports Act 1988 (Cth) is directed at regulating the cash economy, which can facilitate both tax evasion and money laundering. The principal object of the Act is to facilitate the administration and enforcement of taxation laws (s.4(1)) and a further object is to facilitate the administration and enforcement of laws of the Commonwealth other than taxation laws (s.4(2)), with information collected for purposes identified in s.4(1) and (2) being able to be made available to State authorities to facilitate the administration and enforcement of laws of the States: R v O’Driscoll [2003] NSWCCA 166; 57 NSWLR 416 at 420-421 [13]-[14].
The mischief with which the Act was designed to deal is identified in the second reading speech as being “the underground cash economy, tax evasion and money laundering” with the legislation intended to “give law enforcement agencies the ability to monitor the movement of large amounts of cash and thus to identify tax evaders and the recipients of proceeds of crime”: Leask v Commonwealth of Australia [1996] HCA 29; 187 CLR 579 at 596-597.
Structuring offences under the Act are difficult to detect and they call for a significant degree of general deterrence: R v Au at [7]; R v Narayanan at [89]; R v Rule at [9]-[10]; R v Edwards; Ex parte Director of Public Prosecutions (Cth) [2008] QCA 85; 183 A Crim R 83 at 84 [2].
Bearing in mind the findings by the sentencing Judge that the present offences involved exploitation of workers and the non-payment to them of their lawful entitlements (see [37] and [38] above), the observations of McMurdo P of the Queensland Court of Appeal in R v Edwards, at 84 [3], are pertinent:
“The Act is principally aimed at limiting tax evasion. It also provides a useful tool against the anti-social practices of organised crime and public corruption. Our federal taxation system substantially funds the public services, facilities and institutions, which are essential to the satisfactory functioning of our civil society. Its efficacy depends in large measure on compliance by ordinary citizens with the statutory requirements of the Act. Non-compliance will not always be easy to detect.”
The Act provides a useful tool against anti-social practices, including exploitation of workers in circumstances which constitute an offence under the Act.
The fact that Mr Qian utilised a false identity to facilitate his criminal activity in this case elevates the level of objective criminality. General and specific deterrence are matters of particular importance where there is a pattern of illegal activity by an offender over an extended period using a false identity: Van Haltren v R at 79 [87].
As with money laundering offences (see [86] above), sentencing decisions for financial reporting offences may provide assistance by way of statements of general sentencing principle, but not by way of identification of a range of sentence.
Determination of Crown Appeals
The findings of the sentencing Judge demonstrated that each Respondent was a participant in an elaborate and sophisticated scheme, involving phantom companies and other disguises (including a false identity), to further their criminal activities. Although different offences bearing different maximum penalties were committed by each of the Respondents, they were each engaged in varying aspects of the same criminal enterprise.
With respect to Mr Guo, an assessment of the objective seriousness of his crime involves consideration of factors referred to in the authorities set out at [85] to [91] above. Mr Guo dealt with an amount of $716,394.73. There was a significant degree of planning and deceit involved in the commission of his offence. Although he pleaded guilty to an offence of recklessly dealing with the proceeds of crime under s.400.4(2), the level of criminality involved for that offence may be characterised appropriately as high. It should be kept in mind that the maximum penalty of 10 years’ imprisonment in s.400.4(2) applies only to offences of recklessness to a risk that the money was the proceeds of crime. It does not assist Mr Guo to contend that his crime was one involving recklessness rather than belief or intention that the money was the proceeds of crime, as the latter conduct constitutes a separate and more serious offence under s.400.4(1) with a maximum penalty of 20 years’ imprisonment. Mr Guo’s criminal activity continued over a period of two months, ceasing only because he was arrested.
Mr Guo played a pivotal role in the activities as the sole director, secretary and shareholder of Lin Enterprises. The findings of the sentencing Judge summarised at [58] to [59] above point to the objective seriousness of Mr Guo’s offence. The sentencing Judge found that the overall arrangement had as its goal the denial of taxation to which the Commonwealth was entitled, with Mr Guo’s misconduct facilitating the success of a sophisticated arrangement whereby a small number of greedy individuals profited at the expense of the revenue and the workers whom they exploited, denying them the rewards and the protections to which they were entitled for unpleasant and difficult work. The offence caused a significant degree of social harm - it involved anti-social practices of the type referred to in R v Edwards at [95] above.
His Honour’s finding that there had been exploitation of workers is fortified by evidence given in the District Court concerning the difficulty in employment of workers and the placing of advertisements in the Chinese and Vietnamese press for that purpose (AB116-117). The flavour of the evidence was that a shadowy workforce identified by numbers only and not names (see [22] above) had been utilised, without proper records and being paid in cash, a situation no doubt attractive to illegal immigrants who are vulnerable to exploitation, and obliged to work without the protection of the law.
A clear determination of the loss to the revenue, and the actual extent of financial exploitation of the workers, is not possible because of the absence of records which could allow such a calculation. Of course, the absence of records is a consequence of the elaborate scheme in which the Respondents were very active participants. The findings of the sentencing Judge with respect to impact on the revenue and exploitation of workers are not challenged and ought be applied by this Court.
In my view, Mr Guo’s offence was one of very significant objective seriousness. General deterrence was and remains an important sentencing factor. I have taken into account all relevant factors under s.16A Crimes Act 1914 (Cth). Even after making full allowance for Mr Guo’s subjective circumstances, I am entirely satisfied that a significant period of full-time imprisonment was appropriate in his case. Clearly, a sentence of imprisonment by way of periodic detention is more lenient than full-time custody: Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at 166 [173]. It was not appropriate in this case. The Crown has demonstrated that the sentence imposed upon Mr Guo, both in length and form, was manifestly inadequate.
Mr Qian was engaged in a protracted and persistent course of conduct utilising deception as part of this elaborate scheme. A total sum of $2,278,100.00 was withdrawn by him over a six-month period. A false name was used and Mr Qian was entirely aware of the need (to further the arrangement) to make cash withdrawals in sums less than $10,000.00. Although the monetary rewards flowing to Mr Qian were not very substantial, he was a key participant in this scheme and was aware of the wrongful nature of his activities.
I bear in mind the general sentencing principles for this class of offence referred to at [92]-[96] above. I also have regard to the findings of the sentencing Judge concerning Mr Qian set out at [61] to [63] above.
As with Mr Guo’s money laundering offence, general deterrence was and remains a most significant factor on sentence for a structuring offence of the type committed by Mr Qian. It will be apparent from the recital of the facts of the offences and the history of the proceedings, that an elaborate and detailed investigation was required leading to the sentencing of the Respondents. The cases make clear that these types of offences are difficult to detect and that, as a consequence, general deterrence is a most important factor to be taken into account on sentence.
After making due allowance for Mr Qian’s subjective case and taking into account all relevant factors under s.16A Crimes Act 1914 (Cth) , I am entirely satisfied that a significant sentence of full-time imprisonment was required in his case. In my view, the Crown has demonstrated that the sentence imposed on Mr Qian, both in length and form, was manifestly inadequate.
Clear error has been established by the Crown in that the sentence in each case was manifestly inadequate in the well-recognised sense that it was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [8]-[9].
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.
Mr Qian’s offence carries a maximum penalty of imprisonment for five years. Having regard to all relevant objective and subjective factors and all relevant s.16A considerations, I am satisfied that, before application of the 15% discount, a sentence of imprisonment of three years with a non-parole period of two years is appropriate in his case. After application of the 15% discount (and some rounding), the sentence to be imposed will be two years and seven months with a non-parole period of one year, eight months and one week. Mr Qian has been serving his sentence by way of periodic detention since 9 October 2009. In the circumstances, it is appropriate that the sentence of imprisonment commence from that date to allow him credit for time served, albeit by way of periodic detention. Again, I consider this approach to be the appropriate one in determination of this Crown appeal.
I propose the following orders:
(a)Crown appeal allowed with respect to sentence imposed upon Yun Lin Guo at the Parramatta District Court on 6 October 2009;
(b)the sentence imposed on 6 October 2009 is quashed and, in its place, Yun Lin Guo is sentenced to imprisonment for three years and 10 months commencing on 16 October 2009 and expiring on 15 August 2013, with a non-parole period of two years and five months commencing on 16 October 2009 and expiring on 15 March 2012;
(c)Crown appeal allowed with respect to sentence imposed on Jin Hua Qian at the Parramatta District Court on 2 October 2009;
(d)the sentence imposed on 2 October 2009 is quashed and, in its place, Jin Hua Qian is sentenced to imprisonment for two years and seven months commencing on 9 October 2009 and expiring on 8 May 2012, with a non-parole period of one year, eight months and one week commencing on 9 October 2009 and expiring on 15 June 2011.
THE COURT: Following the delivery of judgment in this matter, it has been brought to the attention of the Court that the sentence with respect to the Respondent, Jin Hua Qian, should be comprised of a head sentence of imprisonment and a recognizance release order, not a non-parole period, to comply with the provisions of s.19AC Crimes Act 1914 (Cth). Accordingly, Order (d) in [117] is revoked. The Court orders that the sentence imposed on Jin Hua Qian, on 2 October 2009 is quashed and, in its place, Jin Hua Qian is sentenced to imprisonment for two years and seven months commencing on 9 October 2009 and expiring on 8 May 2012, with Jin Hua Qian to be released on 16 June 2011 on a recognizance release order himself in the sum of $200.00.
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LAST UPDATED:
5 August 2010
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