R v Liu

[2020] NSWDC 617

District Court

New South Wales

Medium Neutral Citation:

R v Liu [2020] NSWDC 617

Hearing dates:

25 September 2020

Date of orders:

25 September 2020

Decision date:

25 September 2020

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Head sentence: 1 year 6 months

NPP: time served (1 year 2 months 21 days)

Catchwords:

Recklessly deal with the proceeds of crime, $200,000 cash - O agreed to take money from the criminal organisation to someone thought to be from another criminal organisation, involving drug trafficking – 56 year old Canadian citizen of prior good character.

Legislation Cited:

Crimes Act 1900

Category:

Sentence

Parties:

Regina - Crown
Chailo Carl Liu – Offender

Representation:

Stojanovic - Crown
Lloyd QC - Offender

File Number(s):

2019/00205820

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Chailo Carl Liu stands for sentence as a consequence of pleading guilty to a charge that on 26 June 2019 at Mascot in this State he did deal with the proceeds of crime, namely $200,000, being reckless as to whether it was the proceeds of crime. That is an offence contrary to s 193B(3) of the Crimes Act 1900 and carries a maximum penalty of ten years imprisonment. There is no standard non-parole period.

2. The offender was born in China and lived there for the early part of his life, but subsequently became a Canadian citizen. He came to Australia on a tourist visa, arriving in Brisbane on 10 June 2019. Two years later he travelled to Sydney. He says that his purpose in coming to Australia was to investigate the possibility of organising tours in Australia for Chinese speaking travellers. He had flown from Canada to Australia via Singapore.

3. On 26 June 2019 a police undercover operative (UCO) who was participating in a Strike Force known as Ferguson rang the offender and arranged to meet with him in the car park of the Bunnings warehouse at Mascot. At 10.30am on the morning of 26 June the offender met with the UCO at the car park and went and sat in the front passenger seat of the undercover operative’s car. The offender had with him a backpack. The offender told the UCO that he had with him $100,000 in cash and that there would be a further drop off of a further $100,000 in cash later that day. The UCO provided a $5 note as a token and this was accepted by the offender who confirmed that it was the correct $5 note by comparing the number on the note. During the interaction between the UCO and the offender, who was going under the name of “Jack”, the UCO asked the offender whether he was the one who was going to pick up drugs at some future time. The offender replied that he was not, that he had no authority to make any decision. He also was unaware of any further role he might be called upon to perform. The offender merely knew for whom he was “working” and the offender did not know, for example, whether he would be the person who would be dropping off the further amount of money later on the same day to the UCO. He said that he merely operated by receiving text messages from those for whom he was working as to what he was to do. One answer that the offender gave was this:

“I have absolutely no idea, they just inform me to drop the file to you. No questions and [not] anything from me.”

When asked by the UCO whether he knew what the money was for the offender replied that he had no idea. When the UCO asked him whether he knew it was for drugs he said that he did not know and in answer to the same question repeated that he had absolutely no idea. He was merely a traveller, he said, and he was merely there to drop off the parcel to her. The parcel was later inspected by the police and was found to contain ten bundles of Australian currency which totalled $100,000.

4. At 5.15pm on the same day the UCO returned to the Bunnings warehouse car park at Mascot and called the offender. At about 5.30pm the offender arrived in a motor vehicle which was different to the one he had used earlier in the day and parked his car next to that containing the UCO. [19] of the agreed facts is this:

“The offender approached the front passenger seat of the UCO’s vehicle, wearing the same clothing and carrying the same backpack as before. They had a conversation about the Sydney traffic which was recorded. Liu placed the backpack on the front foot well of the vehicle. He then removed a plastic bag from the large section of his backpack and handed it to the UCO. The offender confirmed that he had counted the money and that it was all in the bag. Inside the plastic bag were two envelopes and inside each envelope was a sum of money. The UCO put the plastic bag on the back seat of her car. The offender then exited her car and got into his”.

Later, at a further police debriefing, the cash was inspected and counted by the police but it was $15 short of $100,000 so either the offender was not telling the truth when he said he had counted the money or he had made an error in counting. Nothing at all turns on that other than the court attendance notice should have had a smaller amount of money stated on it.

5. The offender was arrested by the police at the Westfield shopping centre at Hurstville at 12.50pm on 4 July 2019. It appears that the offender at that time was merely going about lawful business. He had on his person an envelope containing $2,000 in Australian currency and a wallet containing $430 in Australian currency and one US $1 note. Surprisingly he had no Canadian currency. The offender was living in an Airbnb property in Hurstville that was searched by the police but they found nothing of any substance other than the offender’s suitcase and toiletries and some food and drink which obviously was for his personal consumption.

6. The offender’s explanation for doing what he did is that he was merely helping out a friend. There is no direct evidence that he made any profit from what he did nor is there any evidence that he knew that he was being involved in some drug scheme. He clearly was inveigled by a friend to “assist him” and it turned out that what he was inveigled into was a scheme involving drug supply.

7. The offender was formerly married. His second marriage had recently ended but as a result of his second marriage he has two children in Canada living with their mother in Calgary and I understand the children to be both boys, one aged 13 and the other aged eight. His children, like him, are Canadian citizens.

8. The offender has no criminal record in Australia, is unlikely that he has one in Canada owing to the facts that he is a Canadian citizen, having been granted citizenship in that country in 1992 and having been granted a visa to travel to Australia. Equally to become a Canadian citizen it is unlikely that he had any criminal conviction of any moment in China. The grounds for his grant of Canadian citizenship was as a refugee. He was obviously accepted by the Canadian government as a man of prior good character.

9. The offender has had time to reflect on what he did and has admitted his remorse. His remorse clearly is motivated to a large extent by the fact that he has been separated from his sons whom he has a duty to support and who need his support. However I accept that he is also contrite for breaking the law of this country which took him in as a genuine tourist. Although the sum of money which he dealt with was a relatively large one, it is not as large as many that I have seen in similar circumstances which amount to millions of dollars. He appears to have been duped by a friend into participating. His criminal culpability is below mid-range. He ought to have been more astute. As a mature man, now aged 56, he should have considered his position when agreeing to go along with what must have been a “fishy” scheme if he turned his mind to it.

10. The statistics available from the Judicial Commission are broken up. There are figures prior to 23 September 2018 and figures after that date. The majority of persons sentenced for offences contrary to s 193B(3) do not go to prison. Prior to 23 September 2018 less than a third went to prison and the bulk of the offenders were given either a bond under s 9 or a suspended sentence or an ICO, which replaced suspended sentences. Of those sentenced to imprisonment the median non-parole period was 18 months. Since 24 September 2018 just over a third of those who offend against this provision have been sent to prison. Just over a third have been given an intensive corrections order and under a third have been given a community corrections order. For those sentenced to imprisonment again the median non parole period is 18 months.

11. It appears to me that I should start this sentencing exercise with a head sentence of two years imprisonment. I discount that by 25% for the agreed utilitarian value of the offender’s plea of guilty at the earliest available opportunity. That reduces the head sentence to one year and six months. Applying the statutory ratio that means the non-parole period should be one year and one and a half months. However the offender has been in custody now for one year two months and 21 days. I therefore am going to fix the time served as a non-parole period and the balance of the term will be the period in which the offender is entitled to remain in this country on parole but, of course, that will depend on the Commonwealth immigration authorities. The head sentence will expire on 3 January 2021.

12. Chailo Carl Liu, on the charge that on 26 June 2019 at Mascot in this State you did deal with the proceeds of crime, namely $200,000 being reckless as to whether it was the proceeds of crime you are convicted. I sentence you to imprisonment. I set a non-parole period of one year two months and 21 days commencing on 4 July 2019 and expiring today. I impose a further period of imprisonment of three months and ten days to commence upon the expiration of the non-parole period and expiring on 3 January 2021. The total sentence is therefore one year and six months comprising the non-parole period and the balance of sentence. I have not found special circumstances. You are eligible to be considered for release today.

13. Mr Liu what that means is that you are entitled to leave gaol today subject to formalities but it is likely that you will be taken to the Villawood Detention Centre with a view to being deported back to Canada. How long it takes for you to get back to Canada is unknown to the Court and is beyond the Court’s control. But your solicitor should make contact with the Canadian High Commission and the Canadian authorities may be able to expedite your return to Canada.

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Decision last updated: 16 October 2020