R v Jiao (No 2) - [2014] NSWDC 353

District Court

New South Wales

Medium Neutral Citation: R v Jiao (No 2) [2014] NSWDC 353
Decision date: 19 December 2014
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
A sentence of six months imprisonment to commence on 19 December 2014 and to expire on 18 June 2015.

Catchwords: CRIMINAL LAW – sentence – property offences – dealing with property reasonably suspected proceeds of crime – jury verdict of guilty – purpose of sentence – general deterrence – relevant factors – no prior criminality – large sum of money – objectively reasonable to suspect that the money was proceeds of crime – middle range of objective seriousness – good prospects of rehabilitation – no option other than a sentence of imprisonment – nature and circumstances of offender – middle aged – Taiwanese national – limited English skills – first time in custody – no family in Australia – of otherwise good character
Legislation Cited: Crimes Act 1914 (Cth), s17A
Criminal Code 1995 (Cth), s 400.9
Cases Cited: Assafiri v The Queen [2007] NSWCCA 159
Cahyadi v The Queen (2007) 168 A Crim R 41
Shi v R [2014] NSWCCA 276
Category: Sentence
Parties: Regina (Crown)
Yi Hua Jiao (Offender)
Representation:
Counsel:
B Neild (Crown)
F Santisi (Offender)
Solicitors:
Office of the Commonwealth Director of Public Prosecutions (Crown)
Goh Lawyers (Offender)

File Number(s): 2013/23304

Judgment

Yi-Hua Jiao was charged by the Commonwealth Director of Public Prosecutions with an offence against the Criminal Code 1995 (Cth). The charge was laid under s 400.9(1) of the Code. The charge is contained in an indictment which was filed in the District Court on 12 December 2013. The charge alleged that between 19 and 22 January 2013, in Sydney, Ms Jiao “dealt with money, it being reasonable to suspect that the money was proceeds of crime, and at the time of dealing the value of the money was $100,000 or more.”
Ms Jiao was arraigned before me on 1 December 2014 on the presentation of that indictment by Mr B Neild, the Crown Prosecutor. She pleaded not guilty and accordingly there was a trial with a jury. The jury returned a verdict of guilty two days ago on 17 December 2014. I therefore now have to sentence Ms Jiao for this crime, which I convicted her of when the jury returned with its verdict.
It is first important for a judge to set out briefly what happened which constituted the crime, so that the judge can make an assessment of how serious an example of the crime this particular offence was. Ms Jiao holds two passports, one from Taiwan and one from New Zealand. She flew to Australia on 18 January 2013 and was staying at the Star Casino here in Sydney.
Two days later, on 20 January, she collected a bag of money from a man who has been identified as a Mr Nguyen. She did not know Mr Nguyen before collecting the money. There was an arrangement for them to be able to…

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 R v Jiao (No 2)

Details

AGLC: R v Jiao (No 2) [2014] NSWDC 353
Case: [2014] NSWDC 353
Decision Date: 19 December 2014

CaseChat Overview and Summary

The case of R v Jiao (No 2) involved the defendant, Jiao, who was convicted of dealing with property reasonably suspected to be proceeds of crime. The matter was heard in the relevant Australian court. The central dispute in the case was the appropriate sentence for Jiao, given the specifics of the offence and the individual circumstances of the offender.

The court had to determine the purpose of sentencing in this instance, which included considerations of general deterrence and the specific factors relevant to Jiao's case. The legal issues centred on the nature and circumstances of the offence, Jiao's background, and the objective seriousness of the crime. The court also had to consider whether there were any mitigating factors, such as Jiao's lack of prior criminal history, his good character, and his prospects for rehabilitation.

In delivering its judgment, the court took into account that Jiao was a middle-aged Taiwanese national with limited English skills, making this his first experience in custody and with no family in Australia. Although the sum of money involved was substantial, and it was objectively reasonable to suspect that the money was proceeds of crime, the court found the offence to be in the middle range of objective seriousness. Given these considerations, the court concluded that there was no viable alternative to a custodial sentence, and sentenced Jiao to six months imprisonment, effective from 19 December 2014, to expire on 18 June 2015.

Orders

Orders of the court

A sentence of six months imprisonment to commence on 19 December 2014 and to expire on 18 June 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Jiao (No 2) [2014] NSWDC 353
Decision date:	19 December 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	A sentence of six months imprisonment to commence on 19 December 2014 and to expire on 18 June 2015.
Catchwords:	CRIMINAL LAW – sentence – property offences – dealing with property reasonably suspected proceeds of crime – jury verdict of guilty – purpose of sentence – general deterrence – relevant factors – no prior criminality – large sum of money – objectively reasonable to suspect that the money was proceeds of crime – middle range of objective seriousness – good prospects of rehabilitation – no option other than a sentence of imprisonment – nature and circumstances of offender – middle aged – Taiwanese national – limited English skills – first time in custody – no family in Australia – of otherwise good character
Legislation Cited:	Crimes Act 1914 (Cth), s17A Criminal Code 1995 (Cth), s 400.9
Cases Cited:	Assafiri v The Queen [2007] NSWCCA 159 Cahyadi v The Queen (2007) 168 A Crim R 41 Shi v R [2014] NSWCCA 276
Category:	Sentence
Parties:	Regina (Crown) Yi Hua Jiao (Offender)
Representation:	Counsel: B Neild (Crown) F Santisi (Offender) Solicitors: Office of the Commonwealth Director of Public Prosecutions (Crown) Goh Lawyers (Offender)
File Number(s):	2013/23304