R v Nguyen; R v Alzcazar

[2017] NSWDC 386

District Court

New South Wales

Medium Neutral Citation:	R v Nguyen; R v Alzcazar [2017] NSWDC 386
Hearing dates:	14 July 2017, 8 September 2017
Date of orders:	08 September 2017
Decision date:	08 September 2017
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Nguyen: Charge 1: Term of imprisonment of one year commencing today to be served by way of intensive correction in the community. Charge 2: I order your release upon your giving security of $500 on recognisance to be of good behaviour for a period of two years.  Alcazar: Charge 1: Term of imprisonment of one year commencing today to be served by way of intensive correction in the community Charge 2: I order your release upon your giving security of $500 on recognisance to be of good behaviour for a period of two years.
Catchwords:	SENTENCE – Commonwealth offences – Money laundering – Holding large amounts of cash for those higher in a syndicate – Moving large amounts of cash for those higher in the syndicate – Young offenders of prior good character
Legislation Cited:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth)
Cases Cited:	Ansari v R [2007] NSWCCA 204 Arora v Cobern [2015] WASC 440
Category:	Sentence
Parties:	Director of Public Prosecutions (Commonwealth) (Crown) Michael Nguyen (Offender) Neil Alcazar (Offender)
Representation:	Counsel: Ms C Gregory (Crown) Mr P Lange (Offender Nguyen) Mr A Djemal (Offender Alcazar)   Solicitors: Solicitors for the Director of Public Prosecutions (Commonwealth) (Crown) Zahr Partners (Offenders)
File Number(s):	2016/287532016/47354
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Each Michael Nguyen and Neil Alcazar stands for sentence as a result of each having pleaded guilty to two charges contrary to the provisions of the Criminal Code Act 1995 (‘Criminal Code’) of the Commonwealth of Australia. Each of the offences is associated with money laundering.

2. In November 2015 the Organised Crime Squad of the NSW Police commenced an investigation into money laundering activities of an Asian male known only as Raymond. Raymond was employed by an Asian drug trafficking and money laundering syndicate to settle in Australia for the sole purpose of collecting cash being the proceeds of crime, and remitting that money on behalf of others to nominated destinations in a manner which would avert any undue attention from financial and/or legal authorities.

3. The mobile telephone service used by Raymond was intercepted by police and all conversations regarding the collection of money from other people were lawfully recorded. In December 2015 Raymond returned to Hong Kong and his position in the syndicate was replaced by another Asian male known only as Wilson. Wilson was given the mobile phone previously used by Raymond and therefore the lawful interception of his telephone communications continued.

4. In March 2016 Wilson was charged by the NSW Police and is being prosecuted by the Director of Public Prosecutions for his involvement in the receipt of, and disposal of, $1,799,855. That is the approximate total amount that Wilson had collected from Michael Nguyen and seven other persons. The only known involvement of Wilson is with Nguyen, not with Alcazar.

Facts

5. On 27 January 2016 at 10.10am Nguyen used a mobile telephone to telephone Wilson and arrangements were made for the two to meet at 11am at the Burwood Westfield Shopping Centre in front of a cinema. The arrangements were partially recorded in a text message. It is clear that Nguyen was required to provide Wilson a sequence of numbers which amounted to a code.

6. At 11am that day Nguyen drove a grey Toyota Corolla into the Westfield car park at Burwood. A short time later Wilson drove a grey Mazda 3 into the same car park. The two men met outside the cinema and then walked back into the car park together. Wilson and Nguyen entered Nguyen’s Corolla and drove down a level and parked in a parking spot. Police observed Wilson walk to the rear of Nguyen’s Corolla, open the boot and retrieve a black coloured sports bag. Wilson then closed the boot of the Corolla and walked back to his Mazda 3 carrying the sports bag and, when he arrived at his vehicle, placed the bag in the boot of the Mazda 3. Closed circuit television captured each of the men in his vehicle leaving the car park at about 11.10am.

7. Those facts ground a charge admitted by Nguyen that between 26 and 27 January 2016 at Burwood and elsewhere he dealt with money, or other property, it being reasonable to suspect that such money, or other property, was the proceeds of crime and at the time of the dealing the value of the money, or property, was less than $100,000. That is an offence contrary to s 400.9(1A) of the Criminal Code and that is punishable by a maximum penalty of two years imprisonment and/or a fine of 120 penalty units.

8. On 28 January 2016 at 2.10pm the NSW Police observed Nguyen leaving his home in Rawson Road, Greenacre. He drove with his girlfriend to Alcazar’s residence in Campsie travelling in the same Corolla that he had driven on the preceding day. When Nguyen parked his vehicle he alighted from it and removed from the boot a brown cardboard box and then he entered Alcazar’s residence in the company of his girlfriend.

9. Just over an hour later, at about 3.21pm, Nguyen, his girlfriend and Alcazar left Alcazar’s residence. Nguyen was again carrying a cardboard box and placed it in the boot of the Corolla. Alcazar was carrying a white coloured shopping bag which he placed behind the passenger side of the Corolla. Alcazar then returned to his house.

10. At 3.40pm the Police pulled over the vehicle being driven by Nguyen and in which his girlfriend was still a passenger. The white paper bag which had been placed in the rear passenger side of the vehicle by Alcazar contained two shoe boxes which contained a total of $300,070. The cardboard box in the boot of the car contained a machine to count bank notes.

11. Nguyen and his girlfriend were arrested and taken to Campsie Police Station. The girlfriend was later released without any charge.

12. As a result of that transaction each of the offenders has pleaded guilty to a charge contrary to s 400.9(1) of the Criminal Code of possessing money, namely $300,070, suspected of being the proceeds of crime.

13. On 28 January 2016 the AFP executed a search warrant at Alcazar’s house. In his bedroom police located $299,950 stored in a travel bag behind the bedhead of his bed. Those notes had been bundled in the same manner as had the money that was located in Nguyen’s vehicle. As a result Alcazar was arrested on 14 February 2016. The result of the execution of the search warrant was that Alcazar was charged with a second offence contrary to s 400.9(1) of the Criminal Code of possessing the suspected proceeds of crime, namely $299,950.

14. The agreed facts tell me of an interaction between Wilson and Nguyen but there is no evidence of any interaction between Wilson and Alcazar. As far as the facts currently before me are concerned the only relationship that Alcazar had to the Asian drug trafficking and money laundering syndicate was as a result of his relationship with Nguyen.

15. Each of the offender’s was granted conditional police bail on the date of his arrest. Neither of the offender’s has served any period in custody.

16. Eventually on 14 December 2016 each of the offenders currently before me pleaded guilty to their respective charges in the Burwood Local Court and were committed for sentence in this Court.

17. The sentencing hearing commenced on 14 July 2017 when I ordered that in respect of each offender Community Corrections prepare a report to advise me whether the offender was suitable for the imposition of an Intensive Corrections Order.

Criminality

18. Each of these offences was deliberately done. It would be impossible to regard any of these offences as either unplanned, impulsive, or opportunistic, or somehow committed spontaneously. It is clear that Alcazar was acting as a “bank”, a place where large amounts of cash could be stored, that Nguyen was taking the cash from Alcazar and, on 27 January 2016, transferred some money back to Wilson. Where Nguyen was taking over $300,000 in cash on 28 January 2016 is unknown.

19. The fact that the Court is unaware of the actual source of the large amounts of cash, or their future intended use, is irrelevant to a consideration of an offence contrary to s 400.9.

20. The mental element of the offence was considered by Howie J in Ansari v R [2007] NSWCCA 204 at [123]:

“It 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].”

In Arora v Cobern [2015] WASC 440, Mitchell J said this:

“A person may commit an offence against s 400.9(1) of the Code without subjectively suspecting that the money is the proceeds of crime. It is enough that it is objectively reasonable to suspect that the money is the proceeds of crime, and that the person objectively has reasonable grounds for so suspecting. The offence against s 400.9(1) may also be committed by a person who subjectively suspects that the money is the proceeds of crime … A person who engages in conduct proscribed by s 400.9(1) while subjectively holding the relevant suspicion may fairly be regarded as being more blameworthy than a person who does not hold any subjective suspicion.”

Here, the amounts of money involved were so large that any person, even of the most limited intelligence, would know that such a large amount of cash could only be the proceeds of crime when it was being dealt with in the fashion in which it was being dealt with by the present offenders. I accept that each offender not only had a suspicion that the cash was illegally obtained, as well as objectively that they ought to have believed that it was illegally obtained. Indeed the offenders have admitted as much.

21. It is also clear to me that the only reason for each of these two young men to become involved in these crimes was the prospect of financial gain. The offender Nguyen admits as much. He needed money to pay off a large accumulated gambling debt. It beggars belief to think that Alcazar did what he did, that is, secrete in his own home, over $600,000 in cash without any prospect of reward, even if ultimately he did not receive any because of the arrest of Nguyen and then of himself.

Plea

22. Each of the offenders pleaded guilty prior to the matter being committed to this Court. The Crown concedes that these are relatively early pleas of guilty. However, the offences were against the law of the Commonwealth and Commonwealth offenders are not automatically entitled to a discount on sentence because they pleaded guilty at an early opportunity. A federal offender can obtain a discount for a guilty plea if he or she establishes, on the balance of probabilities, or the court and prosecution agree that the guilty plea demonstrates subjective mitigation by way of genuine remorse or acceptance of responsibility and/or willingness to facilitate the course of justice.

23. Each of the offenders does appear to accept responsibility for his misconduct. Each is understandably ashamed of what he has done, each is acutely aware of the embarrassment and shame that his conduct has brought upon his family. However, any criminal who is caught for any offence experiences the same matters. What the Court considers to be most appropriate is a realisation of the harm that the offender has done to our community by his conduct. Drug syndicates and money laundering syndicates can only do their work because they have “workers”, persons who agree to participate in the enterprise with the prospect of some form of reward. If no one agreed to act as a lieutenant or deputy or worker for a drug dealer or drug importer or money launderer then large enterprises of that nature would not exist. Large scale drug dealing and the associated money laundering does untold damage to members of our society. Illegal gambling, pornography and racketeering also lead to money laundering. All these activities harm out community..

24. The offenders should realise that by doing what they did with the prospect of earning some money they potentially endangered the lives of many other people in our society. Neither offender has assisted the police at any stage during the investigation of these offences. That is not uncommon because any information they might give to the authorities might result in their receiving what we politely call extra-judicial punishment, by being bashed, threatened or even killed by members of a large Asian money laundering syndicate.

Personal Circumstances

25. Each of the offenders comes before this Court as a young man of prior good character. Each of them was aged 20 at the time of his offending. Each is now 22 years old. Neither of the young men before me has committed any prior crime nor has he committed any subsequent crime. In respect of each offender, I have a psychologist’s report which details each offender’s background.

(a) Nguyen

26. Michael Nguyen was born in Sydney. He is the middle of three children born of Vietnamese parents. His parents separated when he was five years old. He has a teenage half-sister from a subsequent relationship of his father and two younger half-siblings from his mother’s subsequent relationship. The offender essentially has, since his parents’ separation, lived with his grandparents and/or his mother, mainly with his mother and other siblings since 2011. The offender has had little contact with his father since his parent’s separation. When the offender entered year 7, his father was in custody for a period of four years. In 2014, his father was sentenced to imprisonment for 15 years. The offender Nguyen has had little contact with his natural father.

27. The psychologist who interviewed him, Ms Kathryn Wakely, has expressed this view.

“Throughout his teen years Mr Nguyen experienced suicidal ideation which for the most part appears reactive to his family’s circumstances and the poor attachment he shares with his father. For young males, the bond between father and son (or an elder male role model) is extremely important throughout adolescence and is something which helps them to develop their own capacity for self-management, their sense of self-worth, their identity, and to define their place in the world. Insecure attachments with caregivers have consistently been linked to later instability, including low self-esteem, depression, anxiety and later difficulties forming and maintaining relationships. Furthermore, the absence of a secure male father figure or role model heightens an individual’s risk of susceptibility to antisocial peers and influence throughout the adolescent period and heightens risk for subsequent negative outcomes...”

That detriment which Nguyen has experienced has fortunately for him been counteracted to a large extent by the close and ongoing attachment that he has with his mother.

28. Ms Wakely formed the view that the offender was suffering from depression and stress in the moderate range, and anxiety in the extremely severe range. Such is not surprising for any person standing for sentence.

29. Ms Wakely took a history from the offender which I am prepared to accept which explains how he became involved in this criminal activity. After turning 18, Mr Nguyen began to engage in occasional gambling, typically on poker machines. Over the following year, his involvement with that increased and he was meeting people he knew where he was gambling, and he would often drink alcohol with them and play the poker machines. By either 19 or 20 years of age, he commenced to start borrowing money from people in order to gamble. He told Ms Wakely that his gambling exceeded his ability to repay them and when he had exhausted any money borrowed from friends, he began borrowing money from other regular gamblers and that led him to encountering either Wilson or someone who put him in contact with Wilson, and led to his becoming involved in the Asian money laundering syndicate. He was promised that for his involvement, he would have his gambling debts repaid.

30. Since his arrest, the offender has sought to rehabilitate himself. He has undertaken gambling counselling. A letter from Mission Australia Gambling Counselling, tells me that he commenced a counselling on 17 February 2016, and continued that until 13 September 2016. It is clear from a number of sources that the offender has minimised his gambling and has instead taken up physical activity, in particular, gym work and the like, which obviates his need, probably a psychological need, to gamble.

31. Ms Wakely described Mr Nguyen as a, “very, naïve, young man”. She also expressed the view, at the time of the offences and in the period preceding them, the offender’s mood was low and his self‑worth was poor. The offender has not given any evidence. However, I am prepared to accept, because it is consistent with Ms Wakely’s formulation, that he had poor self‑worth, poor self‑esteem, that led to his becoming involved in gambling and becoming addicted to gambling, and eventually his becoming involved in the money laundering racket, for the purposes of paying off his gambling debt.

32. There are before me, a large number of references in support of the offender, which tell me that he is well regarded by other members of our community and in particular, by those with whom he has been working from time to time. Mr Nguyen has maintained employment since completing the Higher School Certificate. At the present time, he is working as a barista, and when his current employer was contacted by Community Corrections, he was described as a good worker who excelled in customer service. Other references before me, indicate that in the other jobs he has had, the offender is regarded as reliable, enthusiastic and well‑regarded.

33. The offender has been assessed as having a low risk of re‑offending. I accept that to be the case. The offender has been found to be suitable for the imposition of an Intensive Correction Order.

(b) Alcazar

34. Neil Alcazar was born in Australia, the fruit of the marriage of two Filipinos. His mother died of breast cancer when the offender was three years old. His father has not remarried. The offender has a very good and close relationship with both his father and his older brother, Nigel. After the offender’s mother’s death, he lived with his grandmother until he reached Year 3, when he returned to live with his father. He completed his primary schooling at Tempe and attended Tempe High School. He does not appear to have been a good student. He had a poor school attendance record and was asked to leave at Year 12 because of his poor attendance record. He then worked in a warehouse for one year and then in another warehouse for another 12 months.

35. He commenced working in bars in October 2015 and after he was arrested he was temporarily out of work. Currently the offender works as a food and beverage staff member at a hotel. His employer described the work done by Mr Alcazar in a very positive fashion when his employer was interviewed by Community Corrections.

34. The offender gave two different explanations for why he became involved in these offences. The ICO report says this:

“Initially, Mr Alcazar stated that he met a person while he was gambling, and that the person paid him $1,000 to hold the bag and the box of money. When asked why he agreed, he stated that he wanted the money so that he could keep gambling. When pressed further, for his response to the offences, he described his actions as ‘stupid’ and said that he regretted the offences and the impact that they had had on his family and himself.

Because Mr Alcazar’s account of his offending behaviour was minimal, he was asked to reconsider his responses. When he returned for the second interview, he stated that he had been untruthful, and that his friend (co-offender) had asked him to hold the items. He claimed that he knew what he was doing was wrong, but he did not want to ask how much money he was holding, and he thought he would not be caught.”

I do not know whether that last explanation given by Mr Alcazar to Ms Colleen Sutherland of Community Corrections is true or not but that ties in with the facts that are before me at this sentencing hearing. It is unfortunate the offender was initially untruthful when being interviewed by Community Corrections.

37. Community Corrections believes that Alcazar has a low to medium risk of reoffending and that his identified criminogenic needs are education and employment, financial, his companions and his “attitude/orientation”, presumably his attitude to his crime and his orientation in our community. Like Nguyen, Community Correction believes that the offender is suitable for intensive correction in the community.

Consideration

38. Part of the Crown’s submissions are these:

“In comparing the roles between the Offenders, the Crown submits that Nguyen is a true runner in the syndicate, lower in the hierarchy than Alcazar reflected by the public aspect of his role. By contract, Alcazar’s role is distanced from view, and he is essentially responsible for the storage of the proceeds. While Nguyen dealt with a total amount between $300,070 - $400,000 over two days, the total amount of money, in cash, dealt with by Alcazar on one day, was over $600,000.”

I cannot accede to that submission. Nguyen appears to me to have greater criminality than Alcazar. On the facts before me Alcazar’s only involvement was with Nguyen who appears to have been leaving money with Alcazar as if Alcazar’s home was a “bank”, a safe place in which to hide the money. Nguyen was dealing with Wilson and providing him with cash, cash which presumably earlier Wilson had entrusted to Nguyen. Nguyen was moving the money around and in moving the money around was using Alcazar as a depot. I therefore believe that Nguyen’s criminality was greater. Equally it should be clear from what I have already said that Alcazar’s response to his arrest and the predicament he finds himself in has not been as positive as has been Nguyen’s.

39. Having considered the matter over a period of time I have decided that it is appropriate to pass the same sentence in respect of each of the two offenders. I allow some discount for the early pleas of guilty but the discount would not be as great as if they were being dealt with under New South Wales law.

40. I accept that the prospects of rehabilitation are good for each of the two young men before me although they are better at this stage for Mr Nguyen than for Mr Alcazar but as Ms Colleen Sullivan, herself, suggests with the benefit of an ICO the prospects of rehabilitation for Alcazar will be improved.

41. I am persuaded that it is unlikely that either of these young men will commit the like or any similar crime again. They must know that if they do they will be locked up for a relatively long period of time.

Sentences

42. Michael Nguyen, on the charge that on 28 January 2016 at Campsie you did possess money, namely $300,070 in cash suspected of being the proceeds of crime, you are convicted. Pursuant to the Crimes Act 1914 of the Commonwealth of Australia, s 20AB(1AA)(a)(ix) I sentence you to imprisonment for a term of one year commencing today to be served by way of intensive correction in the community. You are to report to the Community Corrections office at Bankstown within two business days, that is on next Monday or next Tuesday.

43. On the charge that between 26 January 2016 and 27 January 2016 at Burwood and elsewhere you dealt with money or other property, it being reasonable to suspect that such money or other property was proceeds of crime and the time of dealing the value of the money or property was less than $100,000, you are convicted. Pursuant to s 20(1)(a)(i) of the Crimes Act 1914 of the Commonwealth. I order your release upon your giving security of $500 on recognisance to be of good behaviour for a period of two years.

44. Neil Alcazar, on the charge that on 28 January 2016 at Campsie you did possess $300,070 in cash being reasonably suspected to be the proceeds of crime, you are convicted. Pursuant to the Crimes Act 1914 of the Commonwealth, s 20AB(1AA)(a)(ix). I sentence you to imprisonment for a term of one year commencing today to be served by way of intensive correction in the community. You are to report to the Community Corrections office at Burwood on Monday 11 September 2017.

45. On the charge that on 28 January 2016 at Campsie in this State you did possess the suspected proceeds of crime, namely $299,950 you are convicted. Pursuant to s 20(1)(a)(i) of the Crimes Act 1914 of the Commonwealth I order your release upon your giving security of $500 on recognisance to be of good behaviour for a period of two years.

46. Now I have to tell each of you that if either of you breaches the Intensive Corrections Order, that is do not comply with any of the provisions, then a sanction may be imposed directly by Corrective Services or by the Parole Board. The sanctions could include your being detained at home for a period of time or doing more corrections and they might include the revocation of the ICO. If the ICO is revoked, for example, after four months you would spend the remaining eight months in gaol. Do you understand? So if you breach the ICO you risk going to gaol full-time.

47. Now the explanation I gave to you gentlemen was under New South Wales law. Under the Federal law if you breach the ICO you come back and see me and you will find that I will not be as lenient towards you as I was today. Do you understand? You could well find yourself in gaol. It would be me that orders you to go in, right? So good luck to you and be careful to obey the order. You may stand down and accompany Ms Khan to the registry please.

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Decision last updated: 21 August 2018