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

1. 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.

2. 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.

3. 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

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

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

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

3. 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.

4. 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.

5. The offender Le was aware that this money was in the possession of Yen Phi Nguyen and he accepts that he concealed the disposal of that money by Nguyen.

6. Police then entered the said premises and searched both it and the neighbouring property where they located the said money.

7. The Crown accepts that this plea is entered at the first available opportunity to the charge as particularised.”

5. The Commonwealth Crown Sentence Summary became Ex A on the sentence hearing. It included the Agreed Facts and a criminal history which revealed that the offender in 2008 had a number of traffic related offences.

6. Exhibit A also included a written undertaking to cooperate with law enforcement agencies pursuant to s 16AC of the Crimes Act 1914 (Cth). It annexed a statement made by the offender on 10 March 2020, which formed the basis of his evidence in the subsequent trial of Ms Nguyen. This was supported by a confidential letter from the Officer in Charge confirming the level of assistance provided.

The offender’s evidence

7. The offender tendered a reference from Mr Van Thanh Nguyen dated 12 March 2020, which became Ex 1. Mr Nguyen wrote that he was a friend and the accountant of the offender whom he had known for about seven years. The offender is a musician and had organised and performed in several musical shows to raise funds for charities to help orphanages and disabled children. He is separated from his wife and has one son who is 12 years old. Mr Nguyen stated that the offender’s involvement in concealing the disposal of a large sum of money by his friend was out of character for him. The offender had expressed remorse for not telling the police earlier about his friend’s criminal activity. Mr Nguyen was confident that the offender would not re-offend.

The Crown sentence submissions

8. The Crown relied on a thorough written outline of submissions, setting out general sentencing principles for what are known as money laundering offences. It was submitted that such offences should be regarded as serious, because of the assistance they provide to other organised criminal activity, relying R v Lin [2014] NSWCCA 254 at [63]; R v Jiao [2015] NSWCCA 95 at [27] – [32].

9. The Crown accepted that the offender’s plea was entered at the first available opportunity to the charge as particularised. In assessing the nature and circumstances of the offence as required by s 16A(2)(a) of the Crimes Act 1914 (Cth), the court was to determine what the offender actually did in participating in the offence. The Crown submitted that the offending here was limited in its scope to concealing money over a short period on 23 February 2019 and therefore it would be regarded as being below mid-range of objective seriousness for an offence pursuant to s 400.9(1). The offender had been aware that Ms Nguyen had disposed of the money before police entered the premises, and the total amount of money concealed was $596,090.00.

10. The Crown submitted that the court would take into account the offender’s guilty plea pursuant to s 16A(2)(f) and (g). He was entitled to a discount for the utilitarian benefit of the plea and the court could consider whether the plea was motivated by a willingness to facilitate the course of justice or was a “recognition of the inevitable”.

11. The Crown conceded that the plea demonstrated genuine remorse, acceptance of responsibility by the offender and a willingness to facilitate the course of justice. The timing of the plea should be assessed in the context of a plea offer being made for the first time on the first day of the trial. It was therefore submitted that the plea of guilty should not attract the full utilitarian discount.

12. The Crown conceded that a further discount was appropriate pursuant to s 16A(2)(h) of the Crimes Act 1914 (Cth) for the cooperation of the offender with law enforcement agencies. Whilst there was no set discount, when combined with the utilitarian discount for his early plea of guilty, the range for a combined discount should be between 20% and 50%. The assistance here was not only making a statement for the authorities, but also his undertaking to give evidence in accordance with that statement.

13. The Crown submitted that deterrence is important in the sentencing process for money laundering crime and there was a need for adequate punishment pursuant to s 16A(2)(j), (ja) and (k) of the Crimes Act.

14. The Crown submitted that the court would also take into account the offender’s character, antecedents and background pursuant to s 16A(2)(m) of the Crimes Act. He was an Australian citizen and 42 years old at the time of the offending and was now 43. He had very limited criminal history.

15. The Crown set out relevant sentencing principles for Commonwealth offences. Having regard to the objective seriousness of the offending and the need for general deterrence, the Crown submitted the only appropriate penalty to impose in this case was a term of imprisonment. However, it was submitted that an immediate term of imprisonment was not warranted, given the subjective matters to be taken into account on the plea, including cooperation with authorities and the offender’s undertaking to give evidence in the proceedings against Ms Nguyen.

16. In his oral submissions, the Crown rehearsed the written submissions in respect of the appropriate discount for the offender’s early plea of guilty and assistance to authorities. The Crown submitted that there was significant subjective factors in play which demonstrated the offender’s remorse, his facilitating the course of justice and his acceptance of responsibility for his criminal conduct.

17. In considering whether the s 17A threshold had been crossed, the court would take into account the nature and circumstances of the offending and the role of the offender. Whilst the threshold was crossed, an immediate term of imprisonment was not required in this case, however, a conviction was required. The Crown could point to no comparable sentences for the offence of conceal disposal of money pursuant to s 400.9(1). Given that the maximum penalty was 3 years imprisonment and/or a fine, the Crown submitted that a Recognisance Release Order should be made for the offender to be released forthwith pursuant to s 19AC(1) of the Crimes Act 1914 (Cth).

The offender’s submissions

18. Counsel for the offender also relied on a written outline of submissions. It referred to the Agreed Facts as being “short, succinct and precise”, and noted the offender’s actions concealed the possession of the money by Ms Nguyen. The offender’s conduct took place over a relatively short period of time. It was submitted that the circumstances of the offence constituted conduct which was objectively well beneath the mid-range of criminality, and towards the bottom of the range.

19. The offender submitted that his plea of guilty was entered at the first reasonable opportunity and he was therefore entitled to a discount of 25% on sentence.

20. Further, the offender had provided assistance to the authorities in the form of a statement and an undertaking to give evidence. The assistance was therefore “real, valuable and pertinent”.

21. It was further submitted the offender should be “lauded for his willingness to provide assistance to authorities due to the cultural sensitivity that attaches to assistance being provided by people of Vietnamese descent to authorities”. It was submitted that a further discount on sentence of 20%, made up of 10% for past assistance and 10% for future assistance, should be given on sentence.

22. Counsel submitted that s 17A of the Crimes Act 1914 (Cth) threshold had not been crossed and a sentence of full-time imprisonment was not warranted in the circumstances. The offender had been on strict conditional bail for in excess of 12 months, which had been a burden given his occupation as a musician. He was a man of otherwise good character and therefore it was submitted the court should proceed to sentence the offender by way of a Recognisance without recording a conviction, pursuant to s 19B(1)(d)(i) of the Crimes Act 1914 (Cth).

23. In his oral submissions, learned Counsel referred to the fact that the total sum of money the subject of the proceedings against the offender and Ms Nguyen, was not referred to in the Agreed Facts. This was relevant to the sentencing of the offender as less weight should be given to the amount of money involved. Further, the money located in a Louis Vuitton bag inside the premises belong to the offender, and was irrelevant to the sentencing process.

24. Counsel rehearsed his submissions as to the maximum utilitarian discount in respect of the offender’s plea of guilty, which had been entered at the earliest opportunity, given that the offence of concealing was distinctly different from the count upon which the offender had previously been arraigned. The change of the charge arose from documents produced on subpoena by the Australian Federal Police (“AFP”), containing information which was not in the hands of the Crown until production took place. It was only upon the Crown’s acceptance of the offender’s case, based on those documents which gave rise to his undertaking to provide assistance to the Crown case.

25. In respect of s 19B of the Crimes Act, counsel referred the court to Cobiac v Liddy (1969) 119 CLR 257 per Windeyer J at 276. In determining whether a conviction should be recorded, there must be some consideration of general deterrence, however, here the length of time of the criminal conduct was over a very short period of time, which should result in a degree of leniency. Further, the offender’s conditional bail meant that he was not permitted to travel, relying on R v Fowler [2003] NSWCCA 321.

Crown submissions in reply

26. The Crown submitted that in applying s 19B of the Crimes Act 1914 (Cth), the court would have regard to the Commissioner of Taxation v Baffsky (2001) 192 ALR 92. There was a two-stage test to be applied. First, pursuant to s 19B(1)(b), the court must be satisfied that the charge was proved but that it involved, inter alia, subject matter which was trivial. The Crown submitted that that test was not satisfied here. Secondly, the court would have to hold that it was inexpedient to inflict any punishment. Here, there was a need for general deterrence in the sentencing process and therefore the Crown submitted s 19B was wholly outside the range of sentencing options available to the court.

Determination

27. Having regard to the whole of the circumstances of the offending here, the objective seriousness of the offender’s criminal conduct by concealing the possession of money by Ms Nguyen fell below the mid-range of objective seriousness for an offence pursuant to s 400.9(1) of the Criminal Code 1995 (Cth). The offender’s criminal conduct took place over a short period of time and arose by virtue of his presence in the premises in which Ms Nguyen was a tenant. The amount of money, the possession of which was concealed, is not revealed in the Agreed Facts, however, it was greater than $100,000.00. I find that the objective seriousness of the offending fell towards the lower end of the range of objective seriousness for an offence pursuant to s 400.9(1).

28. The Crown has accepted that the offender’s plea of guilty was entered at the first reasonable opportunity, given that the charge upon which he was originally arraigned was changed to a lesser charge of concealing possession of money by Ms Nguyen. This change arose by virtue of the offender issuing a subpoena to the AFP which resulted in documents being produced, of which the Crown was not aware, and which added strength to the offender’s defence to the original charge. I propose to allow a utilitarian discount of 20% for the offender’s plea of guilty to the amended charge on the second day of the trial.

29. The offender provided assistance to the prosecuting authority by making a statement and giving an undertaking to give evidence in the trial of Ms Nguyen. Since the sentence hearing, that trial has taken place, and the offender gave evidence in accordance with his statement and was cross‑examined extensively on it. The trial resulted in a verdict of guilty on the principal charge. I therefore accept the offender’s submission that he is entitled to a further discount on sentence in a total of 20%, made up of 10% for past assistance and 10% for what was to be future assistance, but culminated in the offender’s giving evidence.

30. The total utilitarian discount for his early plea of guilty and for facilitating the course of justice will therefore be 40%. I do not however, accept the submission made by the offender (at [21] above) that he should be lauded for his willingness to assist authorities. There is no evidence before me of the cultural sensitivity claimed to be attributed to people of Vietnamese descent.

31. In sentencing the offender for this Commonwealth offence I must have regard to the matters set out s 16A of Crimes Act 1914 (Cth). Section 16A(1) requires the sentence to be imposed that is “of a severity appropriate in all of the circumstances of the offence”.

32. I take into account the following matters pursuant to s 16A(2):

1. The nature and circumstances of the offence

The nature of the offending has been set out above in accordance with the agreed facts, as has my finding as to the objective seriousness of the offence. It took place over a short period of time and there was no agreed sum of money, so that the amount involved is to be given less weight in the sentencing process.

2. There are no other offences to be taken into account (s 16A(2)(d)), and the course of conduct of the offending was, as outlined above, short (s 16A(2)(c)).

3. Section 16A(2)(d) the personal circumstances of any victim of the offence has no relevance in the sentencing process here, nor does s 16A(2)(e), i.e. the injury, loss or damage resulting from the offence.

4. Section 16A(2)(f) the degree to which the offender has shown contrition. I accept that the offender, by his early plea to the amended charge, has shown some remorse and contrition for his offending conduct.

5. The offender is entitled to a utilitarian discount for his plea of guilty and for his assistance and cooperation with law enforcement agencies, as outlined above, pursuant to s 16A(2)(g) and (h).

6. Both specific deterrence and general deterrence have a role to play in sentencing for offences pursuant to s 400.9 (s 16A(2)(j) and (ja)). Dealing with proceeds of crime facilitates the commission of crime by others and is therefore serious offending. Concealing such offences may be regarded as less serious offences on the criminal calendar.

7. I take into account the good character of the offender pursuant to s 16A(2)(m). The offender is 43 years old, he is a married man estranged from his wife for the past eight years. The offender is also employed as a musician and has no relevant prior criminal convictions. I have taken into account that the offender has been on bail conditions for a period over 12 months which has impacted on his ability to travel, thereby limiting his employment opportunities.

33. I am satisfied that the offender requires no rehabilitation for any criminogenic needs and that there is little risk of him reoffending. I am not satisfied that the conditions of his bail were so onerous as to be given eight in the sentencing process here – see R v Fowler, supra, at [242].

34. I have had regard to the maximum penalty proscribed by s 400.9(1) of 3 years imprisonment and/or 180 penalty units ($37,800.00). The maximum penalty is a guidepost in the sentencing process.

35. Section 19B of the Crimes Act 1914 (Cth) provides relevantly as follows:

“19B Discharge of offenders without proceeding to conviction

(1) Where:

(a) a person is charged before a court with a Federal offence or Federal offences; and

(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

(i) the character, antecedents, age, health or mental condition of the person;

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;

That it is inexpedient to inflict any punishment or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

The court may, by order:

(c) dismiss the charge or charges in respect of which the court is so satisfied; or

(d) discharge the person, without proceeding to conviction in respect of any charge referred to in (c) (upon his or her giving security), without or without sureties, by recognisance or otherwise, to the satisfaction of the court, that he or she will comply with the following condition …”

36. I accept the Crown’s submissions in relation to s 19B. In order to discharge the offender without proceeding to a conviction, I would need to be satisfied of one of the three matters set out in s 19B(1)(b) above. Of those three, I am satisfied that the offender was, prior to this offending, a person of good character. I am not satisfied that the offence is of a trivial nature or that it was committed under extenuating circumstances.

36. The test to be applied is a two-step process. Given the serious nature of the offending, I am not satisfied that it is inexpedient to inflict any punishment here, or to inflict any punishment other than a nominal punishment. The offence is a serious one, and having regard to the need for general deterrence and specific deterrence, I therefore will proceed to convict the offender of the offence to which he has pleaded guilty.

37. I am satisfied pursuant to s 17A of the Crimes Act 1914 (Cth), that no other penalty other than a custodial sentence would be appropriate in the circumstances, given the serious nature of the offending. After 40% discount in penalty, the appropriate term would be for a period of 12 months, however, I intend to make a Recognisance Release Order pursuant to s 19AC of the Crimes Act 1914 (Cth) upon the offender providing a security of $1,000, for a period of 12 months, so that he may be released immediately.

ORDERS

39. I make the following orders:

1. You are convicted of the offence pursuant to s 400.9(1) of the Criminal Code 1995 (Cth), that on 23 February 2019 you did conceal money reasonably suspected of being proceeds of crime and at the time of dealing the value of the money was $100,000.00 or more.

2. I sentence you to a period of 12 months imprisonment.

3. I order a Recognisance Release Order for you to be released forthwith today, upon you giving security in the sum of $1,000.00 for a period of 12 months.

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Decision last updated: 06 April 2020