R v Minh Kha Le - [2020] NSWDC 89

District Court

New South Wales

Medium Neutral Citation: R v Minh Kha Le [2020] NSWDC 89
Hearing dates: 13 March 2020
Date of orders: 26 March 2020
Decision date: 26 March 2020
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Custodial sentence with Recognisance Release Order

Catchwords: Concealing possession of proceeds of crime; Commonwealth offence
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Cases Cited: Cobiac v Liddy (1969) 119 CLR 257
Commissioner of Taxation v Baffsky (2001) 192 ALR 92
R v Fowler [2003] NSWCCA 321
R v Jiao [2015] NSWCCA 95
R v Lin [2014] NSWCCA 254
Category: Sentence
Parties: Director of Public Prosecutions (Cth)
Minh Kha Le (Offender)
Representation:
Counsel:
B Stevens (Crown Trial Advocate)
G Jones (Offender)
Solicitors:
E Hirst (Crown solicitor)

File Number(s): 19/60561
Publication restriction: Nil

REMARKS ON SENTENCE

On 13 March 2020, the offender pleaded guilty to a charge pursuant to s 400.9(1) of the Criminal Code Act 1995 (Cth) of conceal disposal of money reasonably suspected of being proceeds of crime. The maximum penalty for the offence is imprisonment for 3 years or 180 penalty units ($37,800.00), or both.
On 9 March 2020, the offender was to stand trial for an offence pursuant to s 400.9(1) of the Criminal Code Act 1995 (Cth) of deal with money or property reasonably suspected of being proceeds of crime, the value of the money or property being more than $100,000.00 (the “principal offence”). The offender was to be tried with Yen Phi Nguyen on the basis that he jointly possessed a sum of money reasonably suspected as being the proceeds of crime. Following a hearing relating to preliminary issues, the Crown accepted a plea by the offender to the index charge on the basis that he would provide assistance to the prosecuting authority, namely, to make a statement and give evidence in accordance with that statement in the trial of Ms Nguyen.
The offender provided a statement, and gave evidence in accordance with his undertaking and Ms Nguyen was subsequently convicted of the principal offence on 17 March 2020.

The sentence hearing

The sentence hearing took place on 13 March 2020. The sentence proceeded on the following Agreed Facts:

“On 23 February 2019 the Australian Federal Police executed a search warrant at Unit 14, … Bankstown, New South Wales.

Occupants of the premises were the offender Minh Kha Le, Yen Phi Nguyen, Tuan Pham and Tu Pham.

Present at the premises when Police attended were the offender Minh Kha Le, Yen Phi Nguyen and Tuan Pham. Tu Pham attended to the premises soon after Police commenced the search.

Upon notifying the occupants of their presence at the front door, the offender was present and adjacent to the nearby balcony of the premises when he saw Yen Phi Nguyen dispose of a large bag/box containing cash money into the backyard of the neighbouring property being Unit 13, … Bankstown.

The offender Le was aware that this money was in the possession of Yen Phi…

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 Minh Kha Le

Details

AGLC: R v Minh Kha Le [2020] NSWDC 89
Case: [2020] NSWDC 89
Decision Date: 26 March 2020

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Minh Kha Le, the defendant was charged with concealing possession of proceeds of crime. The dispute arose from an investigation by the Australian Federal Police, which discovered that the defendant had been in possession of a substantial sum of money, which was suspected to be the proceeds of criminal activity. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the prosecution had successfully established that the defendant was in possession of proceeds of crime, as defined by section 401.4 of the Commonwealth Criminal Code. The defendant contested the allegations, arguing that the money in question was a gift from his father and not the proceeds of any unlawful activity. The court had to consider the evidence presented and determine whether it was sufficient to establish the defendant's guilt beyond a reasonable doubt.

The court examined the evidence provided by the prosecution, which included financial records, witness testimonies, and the defendant's own statements. It was determined that the prosecution had made out a case that the defendant had concealed possession of proceeds of crime. The court found that the evidence, particularly the defendant's inconsistent explanations regarding the source of the funds and the timing of the transfer, supported the conclusion that the money was indeed the proceeds of criminal activity. As such, the court found the defendant guilty and imposed a custodial sentence, along with a Recognisance Release Order.

Orders

Orders of the court

Custodial sentence with Recognisance Release Order

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 Minh Kha Le [2020] NSWDC 89
Hearing dates:	13 March 2020
Date of orders:	26 March 2020
Decision date:	26 March 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Custodial sentence with Recognisance Release Order
Catchwords:	Concealing possession of proceeds of crime; Commonwealth offence
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Cobiac v Liddy (1969) 119 CLR 257 Commissioner of Taxation v Baffsky (2001) 192 ALR 92 R v Fowler [2003] NSWCCA 321 R v Jiao [2015] NSWCCA 95 R v Lin [2014] NSWCCA 254
Category:	Sentence
Parties:	Director of Public Prosecutions (Cth) Minh Kha Le (Offender)
Representation:	Counsel: B Stevens (Crown Trial Advocate) G Jones (Offender) Solicitors: E Hirst (Crown solicitor)
File Number(s):	19/60561
Publication restriction:	Nil