R v Van Dang Tran

[2007] NSWDC 310

CITATION:	R v Van Dang TRAN [2007] NSWDC 310
HEARING DATE(S):	07/06/07, 13/07/07, 09/08/07, 17/08/07
JUDGMENT DATE:	17 August 2007
EX TEMPORE JUDGMENT DATE:	13 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Convicted. Sentenced to a term of imprisonment of 4 years and 6 months. That term to date from 4 June 2006 and expire on 3 December 2010. Non parole for a period of 2 years and 6 months to commence on 4 June 2006 and expire on 3 December 2008.
CATCHWORDS:	CRIMINAL LAW - Sentence - Proceeds of crime - Currency transfer - Money as instrument of crime - Discount for cooperation
LEGISLATION CITED:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 Financial Transactions Reports Act 1988 Australian Crime Commission Act 2002
CASES CITED:	Wong v The Queen (2001) 76 ALJR 79 R v Sukkar [2006] NSWCCA 92 R v Bugeja [2001] NSWCCA 196 R v Z [2006] NSWCCA 342 Ansari & Ansari v R [2007] NSWCCA 204 Savvas v The Queen (1995) 183 CLR 1 Pearce v The Queen (1998) 194 CLR 610 R v Olbrich (1999) 199 CLR 270 Ibbs v The Queen (1987) 163 COR 451 Veen (No 2) v The Queen (1988) 164 CLR 465 The Queen v Way (2004) 60 NSWLR 168 Markarian v The Queen [2005] HCA 25 R v El Hani [2004] NSWCCA 162 R v MF [2003] NSWCCA 195 R v X [2004] NSWCCA 93 R v A [2004] NSWCCA 292 R v Chu (NSWCCA unreported 16/10/98) R v Paull (1990) 20 NSWLR 427 R v El Karhani (1990) 21 NSWLR 30
PARTIES:	Regina v Van Dang Tran
FILE NUMBER(S):	06/11/0709
COUNSEL:	Mr Neil QC - Commonwealth Crown Mr Grant - Offender

SENTENCE

1 HIS HONOUR: Van Dang Tran appears today for sentence in relation to a charge alleging that he, between 2 July 2005 and 4 June 2006, at Sydney, dealt with money where there was a risk that the money would become an instrument of crime, and was reckless as to the fact that there was a risk it would become an instrument of crime, and at the time of dealing with the value of the money it was $1 million or more. This offence is brought pursuant to s 400.3 (2) Criminal Code Act 1995, and carries a maximum penalty of 12 years imprisonment and/or a fine of $79,200.

2 The prisoner pleaded guilty at the Local Court, albeit after some negotiations as to the correct form of charge. It is conceded by the Crown, however, that the plea was entered at the first reasonable opportunity open to him. Thus the prisoner will receive a discount of 25 percent upon the otherwise appropriate sentence for the utilitarian benefit for the plea of guilty. It being conceded, as I understand it in the Crown’s submissions in this matter, as in a number of other Commonwealth matters, that notwithstanding the High Court decision of Wong v The Queen, it is appropriate to recognise a discrete discount for the utilitarian benefit of the plea of guilty, and for facilitating the course of justice by such a plea. This discount in Commonwealth matters has been recognised in a large number of cases, including matters such as R v Joseph Sukkar [2006] NSWCCA 92, R v Bujega [2001] NSWCCA 196 and R v Z [2006] NSWCCA 342, to which I will refer shortly, amongst others.

3 The prisoner was originally charged with 18 offences contrary to a different statutory provision carrying a maximum penalty of five years. Those offences were essentially rolled up into the one offence. Thus the offence charged truly represents the totality of the criminality of the prisoner.

4 The facts of the matter are that the prisoner is a citizen of Vietnam. He was born in November 1968, and thus at the relevant time of these offences was 36 and 37 years of age.

5 He was a commercial airline pilot working for Vietnam Airlines flying international flights from Vietnam to Australia, and from Vietnam to other places. He had travelled to Australia extensively over a period of time in that capacity. His general background I will deal with in greater detail when I touch upon his subjective circumstances.

6 The evidence in this Court through the Statement of Facts, the statement given by the prisoner to investigating authorities, the evidence of the prisoner and the evidence of his character witness, as well as evidence contained in other references, establishes the following matters relevant to sentencing, as the objective facts:

7 The prisoner was a man with an interest in the welfare of persons from his home country. Particularly those living in poor conditions, still suffering from the effects of what the Vietnamese call the 'American War'. For altruistic reasons he wished to support them and assist in a building program to improve the living conditions of people, particularly people in a village from which he had come near Hanoi. Much of the local infrastructure was still affected by the war, which had ended over 30 years before. The prisoner needed to borrow money for the particular building project that he had in mind, and thus the prisoner approached a person that he came to know by the name of Huynh Ba Tan, referred to in the facts as 'Tan', whose family were involved in the money transfer business.

8 The prisoner needed to borrow approximately $50,000 for the project that he had in mind, and he entered into an agreement with Tan to borrow the money, repaying that sum at $10,000 a year.

9 Tan’s sister, who I will refer to shortly, had a money transfer service in Melbourne Victoria.

10 The prisoner was initially told that the money was not available for him in Vietnam but if he wanted to borrow the money, the money would come to Vietnam from Australia.

11 Tan's sister was a woman known as Hang Thanh Huynh, (referred to in the facts as "Hang"), and her husband, Tuong Manh Hoang ("Tuong"). Hang and Tuong were the principal operators of a business known as the Long Tanh Money Transfer Company which was situated in Footscray, Victoria. There was another member of the family involved, known as “Phat”. Tan's father was involved in the business.

12 There were other money transfer businesses that were located at St Albans, Victoria, operated by friends of Hang and Tuong, namely Tai Luong Nguyen and his wife, Thi Thu Nhi Nguyen, which operated as a subsidiary of the Footscray store. There were businesses in Cabramatta and Bankstown in New South Wales which were said, in the facts, to operate with, or were closely related, even subsidiaries to, the Footscray enterprise.

13 In May or June, 2005, the prisoner brought back cash from Australia to Vietnam and gave that money to Tan. That money was brought back, as I understood it from the facts although they are a bit obscure on this matter, originally for the purpose of the prisoner borrowing the money for the building or business project proposed by the prisoner. I understood the evidence to reveal that it was approximately $50,000 in total. This transfer was not the subject of any charge with which the prisoner is concerned.

14 After bringing this money back from Australia, it was suggested to the prisoner that he could bring back money from Australia to Vietnam on the basis of being paid a percentage commission, depending upon the amount of money he brought and the denominations of that money. The payment for transporting the money was calculated to be between 0.5 percent and 0.8 percent of the total amount brought back. From that time onwards the prisoner regularly transferred cash between Australia and Vietnam for Tan and the Australian principals, including Hang and Tuong.

15 The prisoner understood the money he was bringing back to Vietnam was from Vietnamese people in Australia, using the money transfer company in question to send money back to Vietnam. He understood the transfer of the money was to avoid high bank fees, taxes and commissions.

16 The prisoner claimed that the cash he brought back to Vietnam was declared because in Vietnam it did not matter how much cash was brought into the country.

17 He said in his statement to the Australian Federal Police that he told the Vietnamese authorities that the money was from relatives in Australia returning money to family members in Vietnam. He said he was "rarely" asked about the money he brought back into the country.

18 As indicated earlier, in addition to the money transfer companies in Victoria, there were two money transfer companies located at Bankstown and Cabramatta. The persons involved in these businesses included Hue Thanh Tran, (known as Thanh), her husband Tam Tran (known as Tam), at Bankstown, and Thi Ba Ong Huynh (referred to in the facts as Ong) at Cabramatta. The business at Cabramatta was a direct subsidiary of the Footscray store and Ong was subject to the instructions of Hang and Tuong.

19 The Crown case in relation to this prisoner, and others concerned with these matters, is that at all relevant times four businesses were jointly involved in the money laundering operation. The four businesses were effectively run as one enterprise.

20 It is alleged by the Crown, in relation to the activities of other people who have been charged, that the principal operators of the money transfer companies in New South Wales and Victoria had laundered "proceeds of crime" in excess of $93 million over a period of time from 2005 to 2006.

21 The manner of the stores’ activities are set out in the Statement of Facts and I need not outline them here. The investigation conducted by the Australian Federal Police revealed that a number of Vietnam Airlines flight crew members were believed to be involved in the movement of large sums of money as demonstrated in this case. The prisoner was one of those persons regularly used for this purpose. The prisoner over a period of time met with Hang, Tuong and Ong to collect amounts of money.

22 The Statement of Facts that I have goes into considerable detail about each transaction. These facts are established from contemporaneous investigations including electronic surveillance and details provided by the prisoner. Essentially the same modus operandi applied.

23 The prisoner would arrive in Australia, usually in Sydney, but on one occasion in Melbourne. The prisoner would either contact Hang or someone else by telephone, or be contacted and given details of his movements within Australia. He usually did this by coded messages. The prisoner was given details of who to meet and where he was to go to pick up particular sums of cash. He would generally go to either one of the money transfer places, as I said usually in Sydney, or on a couple of occasions to a private residence, or residences, in Sydney. He would take delivery of the cash and arrange, by facsimile either to or from the Footscray store, the amounts to the confirmed.

24 Subsequently the prisoner would fly out one, two or three days after his arrival with the cash in his possession. Usually Tan was contacted in Vietnam and advised by the contacts in Australia of the amount of cash the prisoner had taken back.

25 The prisoner ultimately expatriated from Australia the following amounts in Australian currency:

2 July 2005 - $690,000
14 August 2005 - $320,000
3 September 2005 - $120,000
3 October 2005 - $350,000
3 November 2005 - $100,000
13 December 2005 - $100,000
18 January 2006 - $400,000
28 January 2006 - $400,000
11 February 2006 - $450,000
28 February 2006 - $700,000
14 March 2006 - $400,000
6 April 2006 - $100,000
13 April 2006 - $200,000
20 April 2006 - $200,000
7 May 2006 - $320,000
18 May 2006 - $250,000
24 May 2006 - $600,000
4 June 2006 - $549,265

26 The last attempted transaction was intercepted by the investigators and the prisoner was arrested as he was about to leave Australia for Vietnam.

27 On none of the occasions that the prisoner took Australian currency from Australia, did he complete an International Currency Transfer Report, which required him to report sums in excess of $10,000 being taken out of the country. He was aware of that obligation because on 14 February 2001 he had completed such a report for the sum of $19,000. The total amount of Australian currency transferred by the prisoner was $6.449 million. All bar approximately $550,000 was successfully transferred to Vietnam.

28 When initially arrested he was charged with an offence pursuant to s 15 Financial Transactions Reports Act 1988, concerning the money that was already in his possession. The investigators, however, were well aware of his past activities.

29 On 9 June 2006 he participated in a record of interview. He identified the source of the moneys and the details of persons with whom he had dealt in Vietnam and Australia.

30 On 19 October 2006, he offered to provide a statement to the Australian Crime Commission, after some negotiations, and he was examined to give evidence under the Australian Crime Commission Act 2002. He participated in two further records of interviews with Australian Crime Commission members and officers on 29 March 2007 and 3 April 2007.

31 As I earlier said, the ultimate 18 charges that were brought against him were changed to the one charge which he now currently faces.

32 On 24 May 2007 he signed the statement which was prepared for the prisoner from the records of interviews of 29 March and 3 April 2007. He has signed an undertaking pursuant to s 21E Crimes Act 1914 confirming his intention to provide assistance not only in relation to criminal proceedings, but also in relation to confiscation of proceeds of crime.

33 I do not propose to go into the details of people that the statement of the prisoner has given will be used against, however it is to be noted that seven persons have been charged in Victoria; three persons are currently not amenable to justice at this point.

34 The prosecution of the other persons is at the pre-committal stage and it is intended that the prisoner give evidence against the principal remitters. It appears likely, from the schedule provided to me by the Crown, that he will need to give evidence interstate and he may need to give evidence on a number of occasions in the Local Court as well as at any trial, or trials, that arise in relation to confiscation of the proceeds of crime.

35 The prisoner has explained the use of coded or disguised terms used in intercepted conversations, identified voices participating in telephone conversations and otherwise assisted the investigation. His evidence will be significant in the prosecution of others more culpable than he, notwithstanding the fact that investigations have already identified those persons.

36 The investigation conducted in this matter must be applauded for its professionalism and detail, involving, as it did, electronic and physical surveillance over a period of 16 months. Most of the information provided by the prisoner was known beforehand, particularly in relation to his own involvement with the principal remitters.

37 It is said that the prisoner, "mostly confirmed information already known to the ACC." However, as the prosecution brief against others is heavily reliant upon intercepted telephone conversations and conversations recorded by way of listening devices, confirmation of disguised or coded conversations will strengthen the prosecution's case.

38 The prisoner also added to the information held by the authorities as to how he became involved, the commission he received and explained, or identified, disguised voices and/or coded terms.

39 The prisoner has not revealed the involvement of other Vietnamese Airline personnel in the scheme and there is a real possibility that he is aware of who those people are. Nor has he revealed the processes used to circumvent security at airports. Although he was not asked any questions about this when he gave evidence, by either the Crown or his counsel, it is asserted on his behalf that he has nothing to tell in this regard as he was just fortunate in being able to disguise the money and remove it without inquiry before his detection on 4 June.

40 I note other persons have indicated their willingness to give evidence in the prosecution against the principals.

41 I do not have a precise breakdown of the denominations which he took out of the country, which dictated the rate of commission, but on the figures available to me it would appear that he received, for the 18 transactions in which he was involved, between $32,000 and $50,000-odd for his involvement in this matter.

42 I am satisfied his primary purpose was to obtain money for the altruistic purpose that I earlier identified.

43 On his version of events, he was assisting his countrymen and raising money for worthwhile projects. This was not only asserted in his own version of events, but it was confirmed in the evidence of Danh Van Phan, an accountant and tax agent, who was resident in Victoria. He came to Australia as a ‘boat person’ approximately 28 years ago. Mr Phan, after he obtained his university degree, worked in the National Audit Office and took up private practice as an accountant and tax agent in 1999. It would appear, on the reference that he provided to me, that he became involved in community affairs in Melbourne. He first met the prisoner in 2000 and came to know the prisoner's family from his trips to Vietnam for business purposes.

44 I am informed the prisoner discussed with Mr Phan a proposal for a housing project for the poor. Mr Phan was so impressed with the prisoner's commitment to the project, or the details of the project, that he asserts that he, by mortgage, obtained $385,000 from an Australian bank. Upon the prisoner's arrest it would seem that the project has come to an end. From references and the Probation and Parole Service report I have evidence that the prisoner has interests in helping others, particularly less fortunate than himself, in his native country.

45 This particular offence carries a maximum penalty of 12 years imprisonment as well as a pecuniary penalty. In the supplementary submissions I have been provided by the learned Crown, it is a matter to be regarded as one of the worst offences of its type. It is submitted, in effect, that the commencement point for the determination of the sentence to be imposed, conceding as the Crown has, that there should be particular discounts, should be close to the maximum. In fact, as the discussion today has revealed, this matter was, in part, delayed from last Friday because of the anticipation the Crown had of a decision in a case involving two appellants, Ansari. In fact, on 14 August 2007, the Court of Criminal Appeal handed down its decision in Commonwealth DPP v Ansari & Ansari [2007] NSWCCA 204.

46 The Crown submits, in supplementary submissions, that that decision indicates an appropriate range of sentence for an offence of this type. In my view this must be the case, having regard to the terms of the judgment. Insofar as decisions of the Court of Criminal Appeal are concerned, they are not binding precedents, but provide guidance to inferior courts such as mine.

47 The Crown, in its earlier submissions and currently, relies on the decision of R v Z . This particular decision involves an offender who was, in fact, connected to the brothers Ansari. In relation to the decision in Z, the Crown pointed to the obiter observations of Justice Beazley in respect of sentencing for this particular offence pursuant to the relevant provision, as providing guidance to an inferior court.

48 Z, it must be fairly said, should be now seen in the context of the decision in Ansari, particularly, as I pointed out, that Z was a co-accused, or co-conspirator of the brothers Ansari. He had, however, been dealt with earlier and had agreed to co-operate with the authorities and I assume give evidence against those brothers. Z, it seems to me in this matter, probably is now of greater relevance in assessing the calculation of the appropriate discount for the offender's co-operation and other related matters to which I will turn later.

49 Justice Howie, in the decision of Ansari, at [118] – [124], discussed the relevant legislation, the scope of the criminal activities contemplated by it and the seriousness of alleged conduct brought pursuant to the provisions that relate to this offence. The Ansari brothers were convicted of one count of conspiracy to breach s 400.3 (2) Criminal Code Act 1995, and a related, but later, offence of conspiracy, expressed in identical terms, committed between 22 March 2004 and 29 July 2004. Whilst the first conspiracy in time was given effect to, the second conspiracy in time did not ultimately achieve its objective.

50 In respect of each count they were sentenced to 4 years imprisonment "to be served concurrently" with a non-parole period of 2 years and 9 months. Justice Howie observed that his Honour, Judge Woods QC, ordered the sentences to be served concurrently, (see [37]). When quoting Judge Woods' remarks at a later time, his Honour referred to the incidents being “largely concurrent”.

51 As I understand it, in effect his Honour Judge Woods QC, "partially accumulated by six months the sentences of four years for each count," and he fixed a non-parole period.

52 The Ansaris appealed against their convictions. The Court dismissed the conviction appeals and upheld the Crown appeal in each case. It fixed a sentence of 7 years for each offence, although, "a sentence of at least 9 years would have been appropriate at first instance." It is always to be borne in mind in Crown appeals, if the appeal is upheld, the Court must take into account the concept of double jeopardy.

53 The Court imposed sentences which were made partially cumulative in each case by 2 years. Thus, in each case the total sentence was one of 9 years with a non-parole period representing 60 percent of the ultimate sentence.

54 I note that Justice Howie in his determination of the matter assessed the criminality in the original sentence was inadequate and himself assessed the criminality as "very high." He noted in his assessment of the objective facts the offender were "principals" in the conspiracy, were "intelligent professionals" who were architects of the scheme using a legitimate finance business as a cover. The offences were committed for "profit" and were "motivated by greed." His Honour noted that the Crown case, being one of conspiracy, established intentional conduct on the part of the prisoners to act "recklessly" and in the circumstances the Crown had proved beyond reasonable doubt that the appellants "knew that the money was at risk of becoming an instrument of crime." They could only, however, be sentenced on the basis of "recklessness". Otherwise, his Honour said, the approach would have been in breach of “De Simoni” principles, as "intention and knowledge were elements of the more serious offence", which carried a maximum penalty of 25 years imprisonment under the same provisions.

55 His Honour said of the Ansaris that: “Their conduct involved a substantial degree of criminality within the scope of the section” (at [131]-[132]).

56 The second conspiracy did not achieve its purpose. The criminality was aimed at least at evading taxation and the conspiracy contemplated more than 100 offences contrary to s 31 Financial Transaction Reports Act. Each such offence carrying a maximum penalty of imprisonment of 5 years. He noted that in sentencing, the Court was entitled to take into account the actual conduct committed under the conspiracy and was not limited merely to a consideration of the agreement entered into (See Savvas v The Queen (1995) 183CLR 1 at [133]).

57 He noted that although the appellants had good character at the time of the first offence, that fact was of "little significance." Because they were of good character they were able to carry out the financial business that provided the opportunity to commit the offences for which they were being sentenced. That last observation applies here to a large extent; given the fact that the prisoner was of good character he was privileged to fly from Australia to Vietnam frequently without attracting suspicion.

58 Justice Howie observed that a sentence in the District Court, referred to in the Crown's submissions, for an offence involving money laundering of $3 million appears "on its face" to be "manifestly inadequate" where, after a discount for plea and assistance, a sentence of 3 years with a non-parole period of 1 year and 9 months was imposed.

59 In Ansari, as I understood the facts, the amount involved was apparently just over $100 million that had been alleged to constitute the result of the first conspiracy.

60 His Honour said in the judgment that in any event the Court of Criminal Appeal had "authoritatively set the bench mark" for the sentence of these appellants by determining the appropriate sentence for Z and that the Court of Criminal Appeal had to be consistent with its own judgments rather than District Court Judges that appear "on their face to be conflicting with this Court's assessment with the seriousness of such conduct." Notwithstanding the discretion said to remain with sentencing judges at first instance his Honour concluded that the sentences imposed for the current appellants were “so unreasonable” that his Court should intervene (see [147]).

61 Of course every case must be decided on its facts. It must be fairly said, however, that sentencing is becoming more and more mathematical, and this is a matter that may be said to impinge upon the discretion that his Howie J recognised the Court has.

62 It is interesting to note that almost nine years ago in the key decision of Pearce v The Queen (1998) 194 CLR 610, the High Court said: “It is highly undesirable that the processes of sentencing should become any more technical than it already is…. It should, however, be emphasised that sentencing is not to be attended by "excessive subtleties and refinements", it should be approached as a matter of common sense, not as a matter of semantics”. Their Honours said: “Sentencing is not a process that leads to a single correct answer arrived at by some process of leading mathematical precision”. (See paras [39], [42] and [46].

63 Assessing the objective criminality of any offence, the role of the offender and examination of what the offender actually did, is an essential task of the sentencing judge. Simply labelling offenders as “couriers” or “principals” has been held in decisions of high authority such as Olbrich, to not necessarily adequately reflect an assessment of the objective gravity of the offence. Sometimes, as pointed out in Olbrich, it may not be possible to conclude where a particular offender stood by relationship with other offenders involved in the same criminal conduct, even if the other offenders are charged with more serious offences. That is not the case here.

64 In Ibbs v The Queen (1987) 163 CLA 451, it was held that whilst the maximum penalty prescribed for the offences were reserved for the worst type of case, not all behaviour prescribed by the legislation will necessarily attract the maximum penalty. A sentencing judge has an obligation to consider whether parts of a particular matter lie in the spectrum of offending behaviour contemplated by the legislation. These observations were adopted by the High Court in Veen (No 2) v The Queen (1988) 164 CLR 465 at 478 when, referring to Ibbs v The Queen, the majority said: "The second subsidiary principal ... is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which the penalty is prescribed".

65 In any sentencing exercise, including this one, before applying relevant discounts that are appropriate, the Court is required to make an assessment of all relevant matters, including an assessment of the objective seriousness of the offence, relevant mitigating matters, and in a Commonwealth sentencing exercise, the matters adverted to in s16A Crimes Act.

66 In The Queen v Way (2004) 60 NSWLR 168, the Court of Criminal Appeal in discussing the Crimes (Sentencing Procedure) Act 1999, which is only relevant to State offences, made general observations about the way in which a court went about the task of identifying the objective gravity of particular offences. The Court said: “Judges are well accustomed to considering … that a particular case falls into the worst category, or in between the lower end of the objective seriousness" [77]. Their Honours referred to the fact that: "Such expressions are commonly seen, for example, in sentences for drug offenders where the scale of the operation in the role played by the offender is a courier, or a warehouse man, or middle man, or a principal, have been factors taken into account" [78]. In fact in Ansari, such was the case when his Howie J assessed the objective gravity of the offence.

67 The Court later went on in Way to say that in assessing the objective gravity of the offence there was a need to assess the facts which are necessary ingredients of the offence as well as other facts that are concerned with the consequences of the conduct as well as facts relating to the reasons for the commission of the particular crime. Some offences, the Court noted, will be one end at the spectrum, others will be of lesser gravity.

68 In relation to this matter, having regard to what Justice Howie said in Ansari, it must be fairly said that the objective circumstances of this matter, taking into account all relevant facts, are such as to warrant the same description that was given in Ansari of the criminality. That is, as "very high".

69 In this particular matter one has to take into account the period of time over which the offence was committed, the total sum involved, and the repeated trips by the prisoner, particularised earlier in the facts. I note, of course, his Honour when giving an indication for appropriate sentence for the Ansari brothers, regarded them as "principals" who profited for “greed”. I would assume from what I understand are the facts of the turnover, what they were to profit from the first conspiracy was much greater than the profit for this prisoner. I also note that they committed the offences in circumstances where a legitimate business in which they were principals was run as a front for their illegal operation.

70 It is not without relevance in this matter that the prisoner was lured into the arrangement for what I have described as “altruistic” reasons. It is also relevant that the offender was reckless to the fact that the transfer of funds was to avoid bank commissions and taxes. It is not suggested that the prisoner was reckless to the fact that the funds were derived from drug trafficking, or that the funds were to be used for terrorist purposes.

71 In the context of the guidance provided in Ansari, noting the subjective matters that are relevant here to which will I turn in a moment and that are of some mitigation, I have concluded that the starting point of any sentence, synthesizing as suggested by the High Court in Markarian (2005) HCA 25, all relevant matters, should be eight years as I have foreshadowed.

72 To turn to the subjective matters. The prisoner was born on 4 November 1968. He is, according to the Probation and Parole report, the youngest of 11 siblings, all of whom reside in Vietnam. The prisoner was raised during the time what I have described as the 'American war'. After completing his schooling the prisoner was recruited to the army, and after completing the training in a military school he was sent to the Soviet Union, as it then was, to train as a fighter pilot. In 1990 he was returned to Vietnam, and was stationed at an air force base. He served until 1995 in the Vietnamese Air Force. He rose to the position of Wing Commander, as it is expressed in the report. For 12 months he served in Cambodia.

73 In 1995 he sought to become a commercial pilot, and approached Vietnam Airlines, which is controlled by the government. He completed training in Australia in 1995, 1996, and in early 1996 he attained his commercial pilots licence. In 1998 his skill was such that he became a pilot of the VIP fleet, and on a number of occasions has flown international dignitaries. As I understand it he has had some contact with our Foreign Minister.

74 In the material available to me from Vietnam Airlines, notwithstanding that organisation's knowledge of his misdemeanours here in Australia, if they can be described as that, the Chief Pilot of that airline has said that he discharged his duties and responsibilities to a very high standard, he has never been subject of any disciplinary action, he had a reputation for hard work, is regarded as a genuine family man, and was interested in helping his community.

75 His future with Vietnam Airlines is now problematic in light of these matters. In fact, his fate in Vietnam when he returns is not entirely clear. I have noted that he has various certificates of commendation and certificates of merit issued by the government to both himself in his professional capacity, and for his involvement in cultural and other affairs.

76 He is a married man. As I understand the evidence he has a 16-year old daughter and an 11-year old son. I have read some medical reports to suggest that his family suffer emotionally. His son has been assessed as suffering from stress, and his daughter has been treated for depression, as I understand the medical certificates. I would imagine his presence in Australia in custody without being able to provide income support provides a considerable burden to him and his family, and his presence in Australia separated from his family causes both him and his family considerable distress.

77 These circumstances are not exceptional circumstances, and I note what the Crown has said about the circumstances of family members that must properly be taken into account in the way in which those matters may be assessed. I will turn to that matter later. His reputation as a family man and as a man who contributes to his community in a meaningful way is confirmed in the lengthy reference of Mr Phan, to whom I referred earlier. As I said, Mr Phan had met the prisoner's family, and he spoke of the prisoner's responsibility for looking after his family. The prisoner's wife does not work at all, and his children are too young to work. He noted in his report that the wife had been hospitalised due to depression. He noted, in his reference for the prisoner, he has lost his reputation in addition to his employment, and he had brought shame upon himself and his family. He expressed the opinion that the prisoner had learnt his lesson, and would pay for it dearly, that he was a good person, and a good family man, and this is represented or established amongst other things by the way in which he has responsibly dealt with the Australian authorities.

78 In relation to the prisoner I have a presentence report setting out some of the matters that I have already referred to. The prisoner has never been in custody before. He has, as one would expect, not caused any difficulties to the authorities. In fact he is placed in a position of trust, and he is regarded by the Corrective Services officers as "exceptionally reliable, honest and does things without being asked".

79 The truth of the matter is, as self-evident from his curriculum vitae that he is a man of achievement who has overcome many hurdles to achieve what he has at this point. He has completed courses in custody, and I have seen certificates in relation to those matters, and it would appear that whilst in custody he will make a constructive contribution. The Probation and Parole Service notes that the prisoner accepts responsibilities for his actions, which I accept, and it asserts that there are no "significant factors" relating to the prisoner's offending behaviour, and that his incarceration will serve as a "punitive measure". It notes his productive time in custody that I have already referred to, and that on release from custody he will return to Vietnam, having no other legal reason to be in Australia.

80 I have already referred in my remarks to the cooperation of the prisoner. This gives rise to consideration of assessing the appropriate discount for that cooperation, it being accepted in the submissions of the Crown that this is a matter where a discrete discount ought to be granted. I have determined that the prisoner should receive recognition for his past cooperation, his willingness to assist in the prosecution of others, and his offer of future cooperation set out in the s21E undertaking. In my view he should receive a discount of 25 percent upon the otherwise appropriate sentence for that cooperation. This discount is calculated on the basis that three fifths of it, or expressed another way, 15 percent discount of the otherwise appropriate sentence, be attributable, or identified as related, to future cooperation.

81 I noted earlier that seven people have been charged in relation to aspects of this affair, and I have noted aspects of that fact, including that he may need to give evidence on a number of occasions. I would imagine he will be required to travel to Victoria. I note that although he is currently in the general population of the New South Wales prison system, and there are no particular risks at this moment assessed to exist, the Crown has pointed out very fairly in some supplementary material that the co-accused at this stage do not know of his cooperation. Once this is known, the situation may change, although I note they are all, quite surprisingly given the character of the charges, apparently on bail.

82 The Australian Crime Commission, of course, cannot discount at this time "nonspecific" risks, once it was known in the general population that the prisoner has provided cooperation. His future cooperation will, in my view on the information available, be potentially more significant than the past cooperation, and it certainly will be more challenging in a range of ways. In my view there should be greater recognition of that. The Crown did not submit that there should be any need for me to measure future cooperation, and I recognise the reasons for that. Nor was it sought by each counsel.

83 In my view, however, in circumstances such as this, should the prisoner not live up to the bargain that he has made with the investigating authorities, then he will have, and the prosecuting authorities will have, some measure of the extent to which his failure to live up to his bargain, might affect his future custody arrangements. I see the calculation of his future cooperation also as an added incentive for him to provide assistance.

84 In assessing the calculation of the cooperation, and factoring it into the sentence, there was some complications which have been dealt with on the last occasion, and again on today. Those complications arise from some tension in authorities referred to by the Crown as to the way in which the discount should be expressed.

85 In Z v The Queen, at paras [91] – [92], Justice Beazley noted that the sentencing judge in Z had erred in failing to follow the Court of Criminal Appeal's decision in El Hani [2004] NSWCCA 162, to the effect that a separately assessed discount for assistance is to be applied to the balance of the sentence after the discounted plea has been taken into account. That was clear expression by her Honour as I understand it, adopted by the other members of the Court, that El Hani correctly states the position.

86 In El Hani at para [70], Justice Howie expressed the matter as follows:

“In those circumstances, which will be relatively rare, it was not necessarily inappropriate for the sentencing judge to indicate the discount for assistance as separate and distinct from the purely utilitarian value of the plea. However, as was indicated in R v NP [2003] NSWCCA 195, in a case where it is appropriate to specify individual discounts for the plea and assistance, the discount for the latter is not added to the discounts for the former. The discount for assistance is applied to the balance of the sentence after the discount for the plea has been taken into account. In this regard his Honour erred in favour of the applicant."

87 In NP, Justice Hodgson, at para [30], set out clearly that a discount for assistance should not simply be added to the discount for the utilitarian benefit of the plea, and he did the calculation in the instant case.

88 Of course, having pointed to these decisions, I note leading authorities on cooperation such as R v Sukkar [2006] NSWCCA 92, which involved the Court of Criminal Appeal in re sentencing offenders (in Sukkar's case) from a decision of mine where the Crown successfully appealed, expressing the relevant discounts as a global figure (see [65]). In fact the discussion in Sukkar about appropriate levels of discount at [54] reflect a similar "global" approach.

89 To come back to Z, the matter was complicated by her Honour at [92], after referring to El Hani, stating that in the case at bar, the "combined discount for the plea and assistance should be 50 percent". I take that not to be a statement of principle but simply the ultimate decision in that particular case.

90 Earlier decisions of the Court of Criminal Appeal in Z and Sukkar reflect different approaches. In R v X there was approval of the approach in NP (see R v X [2004] NSWCCA 93). However, in another decision of R v A, there was a somewhat different approach (R v A [2004] NSWCCA 292 at [26]). Ultimately I believe that I'm required to follow the approach expressed in NP and approved in El Hani. I appreciate it leads to substantial difference in the ultimate sentence.

91 I have noted what learned counsel for the prisoner has put to me. I do not believe it is a proper approach to sentencing simply to give the prisoner the "best result" to paraphrase his counsel's skilful argument. It seems ultimately the clear expression in El Hani, and in NP, approved in Z as well, takes precedence over, or general statements in other cases. I make no criticism of the superior courts, but it is an unsettling state of affairs that there are different approaches sometimes by the same benches in the way these matters are calculated.

92 I note also in relation to the way in which the range of discount is discussed, from cases commencing in the decision of Chu in October 1998 onwards, that the expression of a discount was stated to be in the range of 20 to 50 percent as a general rule, even though at that earlier time in 1998, time there was no discrete discount over the utilitarian benefit of the plea. Now that such a discount is recognised, and is required to be specified, the same range of discount is said to be appropriate including that discrete discount.

93 Although it is said that these discounts provide transparency, it leads to a very mathematical approach to sentencing in many respects.

94 In relation to this matter, as the Crown has properly pointed out in its written submissions, I am required to have specific regard to particular provisions of the Commonwealth Crimes Act. The Crown specifically addresses, in its submissions, s 16A(2) of the Act. This provision sets out a series of matters that are obliged to be taken into account in sentencing them. I so do. The Crown in its written submissions referred to the well-known decisions such as Paull (1990) 20 NSWLR 427, and El Karhani (1990) 21 NSWLR 370, that affirm that the principle and general deterrence in sentencing for Commonwealth offences still applies, notwithstanding the fact that it is not specifically referred to in s 16A.

95 With regard to the matters that are relevant arising under s 16A(2), I have already dealt with the nature and circumstances of the offence, and I have noted what the Crown has put about the legislative intention, not only expressed in the Crown's written submissions but of course in the judgment of Justice Howie.

96 Further, in this particular matter, I am required to take into account the degree to which the prisoner has shown contrition for the offence - see s 16A(2)(f) - by taking action to make preparation or any other manner. In this particular matter in my view the prisoner has expressed his contrition in a range of ways. Firstly, he cooperated with the authorities from an early time admitting his guilt, and revealing matters to the authorities, even though they may well have already known about them.

97 He has obviously expressed his contrition by his later co-operation, for which he will receive a discrete discount. Persons that know him and the Probation and Parole officer have reported his regret at becoming involved in this matter and I have no doubt that his current situation is, for him, a personally disastrous situation that brings him great shame. I have no doubt that if he had his time over again, he would not have involved himself in this affair.

98 I am also required to take into account the fact that the prisoner has pleaded guilty to the charge and, of course, the Crown cites decisions well known to the court such as Cameron and Siganto from the High Court where the rationale for the rule that the plea of guilty should be taken into account in mitigation was explained. Insofar as it goes to remorse and acceptance of a responsibility, it should be expressed in terms of a willingness to facilitate the course of justice and not on the basis that the plea has saved the community the cost of a contested hearing.

99 What I am further required to take into account is the degree to which the prisoner has co-operated with law enforcement authorities and he has gone into the matter at some considerable length.

100 I am required, pursuant to s 16A(2)(k) of the Act to take into account that the prisoner is adequately punished in relation to the matter. I note what the Crown says about that matter and have taken into account, in assessing the appropriate penalty, those matters in the context of the maximum sentence.

101 I am required to take into account, pursuant to s 16A(2)(m) the physical and mental condition of the prisoner. There is no evidence before me that the prisoner suffers from any mental disability that either contributed to his offending behaviour or arises out of his current circumstances. In fact, it would seem, notwithstanding all that has happened to him, the prisoner is remarkably well adjusted notwithstanding the fact that, as I say, he is separated from his family and will be for some further time.

102 I have already noted that he was a man who was well respected within his community and a man of high achievement. Of course, it is to be fairly said, as the Crown has pointed out, that when the need for general deterrence looms large in sentencing, good character is a lesser circumstance I have already adopted what Justice Howie said in Ansari, that the prisoner's good character gave him the opportunity to commit the offence that he committed, although it must be fairly said not in the same way as a person who, by reason of their good character, uses a business as a front.

103 I am also required to take into account his family circumstances and his dependants, (see s 16A(2)(n))

104 I have noted the effect upon his family of his current circumstances, however it is well established, as the Crown has pointed out, that it requires extreme hardship to significantly, or substantially, affect the ultimate penalty that is appropriate in matters involving serious crime. However, the Commonwealth legislation requires the probable effect on the family to be taken into account. I believe the family will be significantly affected by the prisoner's presence in Australia in an adverse way and I take it into account as a matter that is relevant ultimately to sentencing, but, as I say, not a matter of great significance. Certainly not of such significance as to, in a realistic way, change the appropriate penalty.

105 The Crown draws my attention to the fact that s 16G was repealed in January 2003. I am well aware of cases such as Stitt, Studenikin and Mas Rivadavia. Those matters, however, appear to be somewhat academic bearing in mind that the relevant sentences with which I am concerned and have provided some guidance, that is, the sentences in Z and Ansari, are sentences imposed subsequent, obviously, to the repeal of s16G.

106 As to other Crimes Act provisions, I note that I can only pass a sentence of imprisonment if, having considered all the available sentences, there is no other sentence available and, as such a, I note the sentence must commence from the date the prisoner came into custody. I am required to fix a non-parole period if the sentence is in excess of 3 years and the Crown submits, by reference to a large number of authorities, that the general range of non-parole period for an offender under the Commonwealth legislation is between 60 and 66 percent.

107 I have taken into account all matters relevant to Mr Tran. I have already dealt, in passing, with a number of matters that are particularised in the helpful submissions of Mr Tran's legal representative. I note what is said about mature offenders, such as Mr Tran, requiring less supervision

108 Because the prisoner is obliged under Commonwealth law to be adequately punished, I take into account him being in custody with the loss of his employment and, as I understand it, it will serve as a salutary lesson for him. I do not believe there needs to be, in his case, much supervision, having regard to his subjective circumstances which I have taken into account.

109 There is reference by the accused’s counsel to what is called the principle of "parsimony", which, it is submitted, required the imposition of a lesser sentence.

110 I understand the law of "parsimony" to mean that no more causes or forces should be assumed other than those necessary to account for the facts. I did not understand, as a general principle, that a court is required to select, the, "least severe" sentence open to a sentencer, "which achieves the purposes of punishment in the instant case."

111 It seems to me that what a court is required to do is to achieve a just sentence having regard to all the relevant objective and subjective circumstances, aggravating and mitigating factors which is just for the prisoner and the community, which has an interest in a range of ways in sentencing of offenders. In that regard, I do adopt what is put on behalf of the prisoner, citing the decision of R v Yardley and Betts, adopted by the New South Wales Court of Criminal Appeal in the 2001 judgment of R v Blackman and Walters, where the South Australian Chief Justice said,

"The protection of the community is also contributed to by the successful rehabilitation of offenders ... this should not be lost sight of and it assumes particular importance in the case of first offenders ... if a sentence has the effect of turning an offender to a criminal way of life ... the protection of the community is to that extent impaired. If the sentence assists an offender to avoid offending in the future the protection of the community is ... enhanced."

112 Of course, in this particular matter the protection of our community is somewhat academic. The prisoner will be returned to Vietnam. But, as I said, these general sentencing matters apply to offenders such as this offender as well as those that will remain in our community.

113 I am required to take into account the deterrent effect that any sentence order may have on this prisoner as I have just done, pursuant to s 16A(2)(j). I am also required to take into account, as I have noted, the prospects of the rehabilitation pursuant to s 16A(2)(n).

114 In that regard, of course, I believe the prospects of rehabilitation for this prisoner are very good. Rehabilitation is understood to mean restoring a person to their former condition, a better position or restoring a person to their (a) normal life. The difficulties the prisoner will have restoring to his normal life are matters which depend upon the way in which he will be treated when you returns to Vietnam. I note one significant matter that will affect return to normal life is that he probably will not be able to pursue his particular profession because of this conviction for these matters. This will create for him further hardship and further hardship for his family, which I have taken into account.

115 As I foreshadowed, I propose to fix a non-parole period of 2 years and six months. I calculate that to be between 55 and 60 percent of the appropriate sentence. The fixing of a non-parole period for foreign citizens who are to be deported on completion of their sentences raises important questions about the utilitarian effect of parole. It is quite clear that a person who is released to parole to go overseas is different to an offender living in this country. However, the prisoner's adjustment to society, as I have noted, will occur outside of this jurisdiction and will be dictated by foreigners.

116 The prisoner will not be readily amenable if there is any supposed breached of parole conditions. In fact, the conditions will probably not be able to be enforced. That having been said foreign nationals are entitled to be considered for the fixing of non-parole periods. Of course, matters that are strictly relevant to the fixing of a parole period, that would arise if a person was resident in Australia, may not arise for consideration in a foreign national. In a sense, in fixing a non-parole period, this may arise from a type of legal fiction.

117 However, it seems to me that in this offender's case, it is appropriate, in fixing a non-parole period, to have regard to all those matters that ordinarily would be taken into account in fixing a normal non-parole period where relevant, subject to the parole conditions that might be fixed by the Parole Board.

118 I have regard to the fact that this will be the offender's first custodial sentence and he will ordinarily need assistance to adjust to community living. I am mindful of the fact that a non-parole period should bear a relationship to the seriousness of the offence. In my view, in the ordinary course of affairs, a non-parole period of 2 years would be ample, or sufficient, time to assist the prisoner to achieve the purposes of parole if the parole is to be enforced. In this particular matter, I note, favourably to the prisoner, the matters that I have earlier referred to, such as his contrition and his general attitude which contribute to an assessment of the appropriate non-parole period.

119 I trust I have taken all relevant matters into account. This matter has had a somewhat truncated and tortuous history, through no fault of the lawyers, nor of mine nor the prisoner's.

ORDER

120 In relation to the offence for which you have been founded guilty, Mr Tran, you are convicted. You are sentenced to a term of imprisonment of 4 years and 6 months. That term of imprisonment will date from 4 June, 2006 and will expire on 3 December, 2010.

121 In relation to that sentence, I fix a non-parole for period of 2 years and 6 months. That will commence on 4 June, 2006 and will expire on 3 December, 2008.

122 It will be a matter for the parole authorities as to whether you will be released to parole. When you are released to parole no doubt you will be deported.

123 The conditions of your parole will be a matter for the parole authorities. I trust that I have given favourable consideration to your circumstances. I imagine, given what I understand of you, there will be no matter arising of your conduct in custody that will be an impediment to your release to parole.

124 Mr Tran, do you understand the sentence that has been imposed on you?

125 PRISONER: (Through interpreter). Yes.

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