R v Wang and Roizman
[2010] NSWDC 170
•5 August 2010
CITATION: R v Wang & Roizman [2010] NSWDC 170
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 8 to 23/2/10
JUDGMENT DATE:
5 August 2010JURISDICTION: Criminal JUDGMENT OF: King SC DCJ DECISION: WANG:
Convicted.
Sentenced to a period of imprisonment of 10 years to commence on 17/1/10 and expire on 16/1/20, with a NPP of 6 years and 6 months, to commence on 17/1/10 and to expire on 16/7/16.
Eligible for release to parole on 16/7/16.
ROIZMAN:
Convicted.
Sentenced to a period of imprisonment of 9 years and 6 months to commence on 22/2/10 and to expire on 21/8/19, with a NPP of 5 years and 6 months, to commence on 22/2/10 and to expire on 21/8/15..
Eligible for release to parole on 21/8/15.CATCHWORDS: Criminal law - particular offences - property offences - dealing with money the proceeds of crime - Sentence LEGISLATION CITED: Criminal Code Act 1995 CASES CITED: R v Raz NSWCCA unreported, 17 December 1990
Ansari v The Queen [2007] NSWCCA 204
Chen [2009] NSWCCA 66
R v Olbrich (1999) 199 CLR 270
R v Hart INSWCCA unreported, 26 July 1999)
R v Sopher (1993) 70 A Crim R 570
R v Price ( NSWCCA unreported, 2 September 1993)PARTIES: Regina
Jian Ping Wang
Alexandr RoizmanFILE NUMBER(S): 2007/11073; 2007/11075 COUNSEL: Mr P G Hastings QC with Mr A N Williams for Crown
Mr C J Watson for Wang, Jian Ping
Mr J C Spencer for Roizman, AlaxandrSOLICITORS: Mr T Nicholl for Crown
Mr P Ryan for Wang, Jian Ping
Mr P Green for Roizman, Alexandr
JUDGMENT
1. On 23 February 2010 Jian Ping WANG (WANG) and Alexandr ROIZMAN (ROIZMAN) were found guilty by jury verdict after trial commencing 8 February 2010
2. WANG was found guilty of an offence contrary to s 400.3(2) of the Criminal Code Act 1995 in the following terms:
- “Between about 1 December 2003 and about 6 January 2004 at Sydney in the State of New South Wales and elsewhere did deal with money to the value of $1,000,000 or more which was the proceed of crime, being reckless as to the fact that the money was the proceeds of crime.”
3. ROIZMAN was found was found guilty of aiding and abetting WANG in commission of the offence contrary to s 400.3(2) and s 11.2(1) of the Criminal Code Act 1995 in the following terms:
- “Between about 1 December 2003 and about 6 January 2004 at Sydney in the State of New South Wales and elsewhere did aid and abet the commission of an offence by Jian Ping WANG in that Jian Ping WANG did deal with money to the value of $1,000,000 or more which was the proceed of crime, when he was reckless as to the fact that the money was the proceeds of crime.”
4. The maximum penalty applicable to the each of the offenders is imprisonment for 12 years, a fine of 720 penalty units ($79,200) or both.
5. On 15 July 2005 WANG was sentenced to imprisonment until 3 June 2007 for other matters. He was released on bail in this matter on 10 July 2007. He has served 1 month and 7 days pre-trial custody with respect to this matter.
6. On 17 August 2005 ROIZMAN was arrested, charged and granted bail. He therefore has served 1 day of pre-trial custody.
7. The offenders have been in custody pending sentence since 23 February 2010.
Role of the offenders8. It is important in the sentencing process to assess the level at which an offender operated in an organisation in order to determine culpability: see R v Raz (NSW CCA unreported 17 December 1990).
9. The Court is satisfied of the following facts consistent with the evidence and the jury verdicts.
General Facts
a. A fraud was perpetrated on the Commonwealth Superannuation Scheme (CSS) on 24 December 2003. That fraud involved false banking directions being sent to the custodian of the CSS funds (JP Morgan), purportedly from the investment management of the funds (State Street Global), and a false telephone verification call back taking place with the assistance of an insider at JP Morgan (Greg Bourchier) (see generally Craig Slater T56ff, Nicole Marges T83ff). Funds totalling AUD$150 million were sent to four different accounts around the world. Relevantly for these offenders a sum of HKD175,624,839.38 (approximately AUD 30 million 582 thousand) was sent to an account held with HSBC in the name of Hong Kong Power Limited (T81, T127, EX3).
b. Arkadi Drisner was a significant figure in organising that fraud and the proposed subsequent laundering of those funds. Dallas Fitzgerald, Jamieson Vincent and TV assisted him in Australia in that task. The fraud on the Commonwealth Superannuation Scheme had been planned since at least September 2003 (Exhibit 4, Danswan T88ff, Exhibit 5, Griffith T94ff, telephone intercept material per Kirwan Exhibit 19, T185).
c. In particular, Dallas Fitzgerald was involved in:
i. Liaising with Arkadi Drisner and others as to the means of carrying out the underlying fraud on the Commonwealth Superannuation Scheme (Exhibits 4, 5, 19 and 31);
ii. organising others to provide suitable foreign account details for the receipt of funds;
iii. arranging for others to travel to Hong Kong to assist with the planned further dealings in the funds;
iv. travelling to Hong Kong himself to assist with the planned further dealings with the funds (Exhibits 19 and 24).
In the course of the conspiracy Dallas Fitzgerald used mobile telephone number 0404 201 140. That telephone was registered in the false name of William Glen (Exhibits 39 and 40, T238).
d. The money transferred to the account in the name of Hong Kong Power from the CSS was made available on board the vessel OMAR III on 29 December 2003 for use in playing Baccarat (Exhibits 7, 8, 11 and 12, T127).
e. The balance left after gaming by the offenders on the night of 29 December 2003 was approximately HKD 156 million (approximately AUD 27.16 million). That balance was dealt with by the giving of two receipts as follows (Exhibit 11, T146):
ii. to Chan Wai Kong – HKD 60,000,000 (approximately AUD 10.45 million)i. to ROIZMAN – HKD 95,924,000 (approximately AUD 16.7 million)
The loss from gambling was therefore HKD 19,700,000 (approximately AUD 3.43 million at the exchange rate given in Exhibit 21).
g. By the time an attempt was made to redeem funds on the basis of the receipts the funds had been frozen and could not be accessed (T294-295).f. The receipts were redeemable at the “Gold Society’ in Macau (T146, Exhibit 11).
10. In brief summary, the fraud was a highly sophisticated and very well organized “sting” relying on inside information and cooperation (Greg Bourchier at J.P.Morgan), technical expertise (manipulation of telephone lines through a Telstra exchange by a Telstra technician, Barry Osbourne) and coordinated timing (False documentation to authorize the transfer of funds on the last business day before the Christmas break in Australia, 24 December 2003, and early access to the funds transferred to Hong Kong Power account by 29 December 2003 to break the trail of financial institution records and convert the funds to untraceable cash in Macau on 30 December 2003.
WANG11. It is important to note that the Crown case in respect of both offenders accepted that neither had any involvement in or knowledge of the actions taken by others to carry out the fraud. The relevance of the actions of others in carrying out the fraud was to prove that the monies dealt with by the offenders were the proceeds of crime. The offenders can only be sentenced for what they have been convicted of and the actions they took relevant to their conviction.
a. This offender was involved in the obtaining of the account details for Hong Kong Power Limited. That is apparent from the evidence relating to a fax found at premises associated with him at Ashfield, and which had formerly been at an address in Pyrmont.
b. Wang was observed at the Ashfield address by Patrick Lott, AFP agent (T164-165).
c. Wang was connected with the Pyrmont address through the receipt of the bond refund paid at the end of the tenancy on that property paid to him at the direction of ROIZMAN, the lessee from 26 October 2003 by agreement dated 20 October 2003, and via the fax machine used at the Pyrmont address but found at Ashfield (Exhibits 20, 25 and 27).
e. WANG was involved in liaising regularly with Dallas Fitzgerald and with ROIZMAN (Exhibits 34, 35, 36, 37, 38, 39, 40, 41 and 42). The court is satisfied that much of that telephone contact was related to:d. The fax roll found on the machine located at the Brown Street Ashfield address evidences that a document containing the account details for HK Power had been transmitted to that fax machine. The fax log and telephone records demonstrate that that transmission occurred when the machine was located at the Pyrmont address on 16 December 2003 (Exhibits 32 and 33, T195, T208).
i. Finding the account details;
iii. The timing of the availability of the funds and the arrangements for dealing with them after they had been used to gamble.ii. Making arrangements with respect to boarding and gaming on the Omar III;
g. On 29 December 2003 WANG boarded the Omar III with a number of people including ROIZMAN (Exhibits 9, 10, 11, and 12).
h. Over the course of 8 hours or so between 29 and 30 December 2003 WANG played Baccarat while seated with ROIZMAN, who also played. The funds WANG used for that gaming were the funds that had been fraudulently transferred to the HK Power account from the CSS (T127, Exhibits 7, 8, 9, 10, 11 and 12).
i. While in Hong Kong WANG met with a number of people, including Dallas Fitzgerald. At least one of those meetings was to discuss what had gone wrong after it became apparent that the funds had been frozen and could not be accessed (David HE T222).
j. WANG returned to Australia from Hong Kong on 6 January 2004 (Exhibit 22).
k. WANG met with Dallas Fitzgerald upon his return from Hong Kong to discuss what had gone wrong (David HE T225).
l. In the course of his offending WANG used mobile telephone number 0405 267 426, which was registered in the false name of Ms Yin Zhang (Exhibits 42 and 35).
m. When questioned by the police on 5 June 2004 Wang lied about a number of matters, including relevantly, by denying that he knew ROIZMAN in particular and any European men in general, and that he had met with ROIZMAN in Hong Kong (Exhibit 18).
12. The Crown opened and proceeded on the basis that WANG knew that the funds were the proceeds of crime, and was not merely reckless. Pursuant to s 5.4(4) of the Criminal Code Act 1995, recklessness may be proved by knowledge. The Court accepts that the jury verdict can be taken by the court as an acceptance that WANG knew that the funds were the proceeds of crime. In support of that conclusion is the evidence relating to WANG not just to the dealing with the funds on the boat, but also his earlier contact with Dallas Fitzgerald and his involvement in obtaining the account details to which the funds were to be sent. Such a conclusion by the jury is further supported by inferences that can be drawn from a number of lies and/or misrepresentations contained in the recorded interview with WANG (Exhibit 18)
13. However, the offender was not charged with the more serious offence provided by s 400.3(1) of the Criminal Code where it must be proved that the offender “believes” the money to be proceeds of crime. In sentencing for this offence the Court must maintain the distinction between the more serious offence provided by s 400.3(1) and the less serious offence involved here, s 400.3(2), which requires proof of being “reckless” and has a maximum penalty provided of 12 years imprisonment. Ansari [2007] NSWCCA 204 at (131); Chen [2009] NSWCCA 66 at (23)
ROIZMAN
a. The Court finds that the jury in returning the verdict of guilty rejected the account given by ROIZMAN in his evidence, the exculpatory “Sergei” explanation. Indeed, the “Sergei” explanation was entirely incredible and incapable of acceptance. The Court finds for the purposes of fact finding on sentence:
i. There was no such person as “Sergei” who invited ROIZMAN to Hong Kong, invited him to gamble with his money, travelled with him to Macau, and threatened him upon return to Australia to speak to no-one.
iii. ROIZMAN did not lease an apartment in Pyrmont in his own name on 20 October 2003 only to assist his friend Carol who was having immigration problems (Exhibit 25).ii. ROIZMAN had a clear idea of the amount of money involved in his trip to Hong Kong, at least to the extent that he was aware of the amounts issued to him on the boat, that he gambled with, and that he had issued to him as a receipt.
c. ROIZMAN travelled to Hong Kong on 27 December 2003 (Exhibits 15, 16 and 23).
b. ROIZMAN was involved in the obtaining of the account details. He assisted his friend WANG by being listed as the tenant on the Pyrmont property (504/ 310-318 Harris Street Pyrmont). It was to that address the account details for Hong Kong Power were faxed on 16 December 2003 (Exhibits 20, 25, 26, 27, 32 and 33).
d. On 29 December 2003 ROIZMAN boarded the vessel OMAR III. Overnight, and with WANG, he played Baccarat with funds that were the proceeds of the fraud on the CSS (Exhibits 7, 8, 9, 10, 11, 12 and 13).
e. At the end of the night’s gaming ROIZMAN was issued with a receipt in his name for HKD 95,924,000 That amount is equivalent to approximately $16.7 million AUD (Exhibits 11 and 21)
f. ROIZMAN travelled to Macau. He stayed at the Hotel Lisboa on 30 December 2003. While in Macau he attended the premises he had been directed to and attempted to redeem funds on the basis of the receipt but was unable to do so (T294-T295).
g. ROIZMAN returned to Australia on 1 January 2004 (Exhibit 23). His return was advanced by two days from the original booking as a result of the failed attempt to redeem the funds.
h. In the course of his involvement in the offences, ROIZMAN used a mobile telephone, number 0410 232 106, registered in the false name of Andrew Fish (Exhibits 25, 36, 37, 41 and 42). Such use included calls to Macau before Roizman left for Hong Kong and while WANG was in Macau.
i. When ROIZMAN was interviewed by the police on 2 March 2004 he told a number of significant lies, including as to his motivations for why he travelled to Hong Kong, whether he had travelled to Hong Kong at anyone’s request, and whether he had been on a gambling boat in Hong Kong.
14. The Crown opened and proceeded on the basis that ROIZMAN intended that WANG would commit the offence he was aiding and abetting and knew that WANG was committing the offence. The court accepts for sentencing purposes that he did have such knowledge, and that he did in fact know that the funds he was dealing with were the proceeds of crime.
15. Again, it is important to note that the offender has been convicted of the offence of aiding and abetting an offence contrary to s 400.3(2) and not the more serious offence provided by s 400.3(1) of the Criminal Code.
Loss or Damage
16. The fraud resulted in the successful transfer of AUD $150 million from the Commonwealth Superannuation Scheme account held with JP Morgan into four separate overseas accounts.
17. Relevant to each of these offenders, the amount transferred to the Hong Kong Power account was HKD $175,624,839.38 (Exhibit 1). The amount lost by gambling in the course of the single evening was HKD $19,700,000. The rest of the funds in that account were frozen and recovered. Using the exchange rates from Exhibit 21, the amount transferred to the Hong Kong Power account was AUD $30,582,809.07 and the amount lost was AUD $3,430,500.
18. All funds transferred in the course of the fraud to other accounts were frozen and recovered.
19. The only funds not recovered were the funds lost from the HK Power account by the gambling on the Omar III.
Seriousness of the Offence and Role
20. While the offenders were not party to the overall fraud and did not transfer any funds into the HK Power account they were responsible for providing the account details and putting at risk the whole of the funds transferred into the account, approximately AUD 30.58 million. They dealt directly with the funds and the gambling resulted in a loss of approximately AUD 3.43 million. It was fortuitous that the loss was limited by the freezing of the account before they could clear the balance, or any part of it, as cash terminating any financial trail. Whatever benefit they expected or obtained, other than losing through gambling a substantial sum of money is unknown, however, it is reasonable to infer that it must have been substantial.
21. In relation to this matter attaching a label to the role played by the offenders in respect of the offence each has been convicted of would not be a productive exercise. They should be sentenced for what they did rather than how it might be described. R v Olbrich (1999) 199 CLR 270. They played the substantial or primary role in respect of the offence. While each performed different acts, or participated in performing the same or similar acts, during the commission of the offence by them, and ROIZMAN has been convicted on a charge of aiding and abetting WANG, the Court finds that there is no real utility in the circumstances in assessing their individual moral culpability as it is so alike as to not justify distinction. The moral culpability of each offender is high.
22. The offence committed by each offender must be considered as a very serious instance of such an offence.
Subjective Matters
WANG
23. WANG did not give evidence in the trial or on sentence. The only information as to subjective matters is contained in a Pre Sentence Report from P & P Officer R. Aitkin and a criminal history (Exhibit 1 on sentence).
24. The offender was approximately 37 years of age at the time of the offence and is now approximately 44. He was born in China where his parents and an older brother continue to reside. The family was stable and he was well provided for. He came to Australia in 1990 and has permanent residencey.
25. He married in 1997 and there is one child of the union, a daughter now 11 years of age. The marriage is said to be stable and his wife supportive. His wife is unemployed but attends a TAFE language course and cares for her daughter.
26. He graduated in electrical engineering at the University of Shanghai and was employed as an engineer with the Shanghai Roads and Transport Department from 1988 to 1990. After arriving in Australia he was employed as a cook in Sydney until 1998 and as a public relations liaison officer at a casino in Macau from 1998 to 2003 while commuting to be with his family in Australia. His education and employment record could not be verified other than by his wife.
27. He denies any alcohol or drug issues or being addicted to gambling.
28. The comments recorded under the heading “Attitude to the Offence” can only be interpreted as a continued denial of guilt despite his equivocal statement that he “never tried to avoid my responsibilities” for his involvement in the offence and pleaded not guilty to “being the primary offender” and further stating that he thought “something was wrong with the money”. Mr Watson, counsel for the offender, has not submitted that any other interpretation is available.
29. In 1991 he was fined for the offence of being found in a gaming house. In 2003 he was fined and disqualified for driving with a low range PCA.
30. However, in 2006 he was convicted and sentenced for make false instrument to 3 years imprisonment and a partially concurrent sentence of 3 years for intentional import of tier 2 goods. The total term was 4 years 6 months from 4 June 2004 to 3 December 2008 with release on recognizance on 4 June 2007.
ROIZMAN
31. The offender gave evidence in the trial but not on sentence. The subjective matters are drawn from a Pre Sentence Report from P & P Officer L. Montgomery, a criminal history (Exhibit 2 on sentence), a number of personal references from friends, past employers and his wife (Exhibit 4), medical reports from Dr A. Aristoff, general practitioner, (Exhibit 5), Doctors G. Young and C. Brown, haematology specialists at Royal Prince Alfred Hospital (Exhibit 6) and a report from Dr. B. Westmore, forensic psychiatrist (Exhibit 7).
32. The offender was approximately 48 years of age at the time of the offence and is now approximately 55. He was born in the USSR and migrated to Australia in 1991. His family is described as loving and stable, although not financially well off in his formative years. His parents are deceased and he continues to communicate regularly with his sole sibling who resides in Germany. He has been married for 30 years and has one adult son resident in Canada. His wife remains supportive.
33. He was educated to the equivalent of the HSC. Before migrating to Australia he worked as a shoemaker. In Australia he was employed in a chocolate factory for 9 years before becoming a courier in 2000 and continuing in that occupation until September 2002 when first diagnosed with Chronic Myeloid Leukaemia. From that time he has been in receipt of a Disability Support Pension and ongoing treatment for the illness.
34. He denies any issues with alcohol, illicit drugs or gambling.
35. He was depressed for several years after diagnosis of his illness and has again become depressed as a result of this matter. There is no acceptable support in any of the documentation for his depression or illness as having any causative effect in relation to his offending conduct, although Dr Aristoff proffers an opinion in his report, dated 18 December 2009, that:
“…his concentration, memory and attention span could be easily affected by the combination of his primary diagnosis, the adverse affects of his treatment and the presenting symptoms of reactive depression in the period between December 2003 and 2004. At that time he was not aware of his actions completely and he was very indifferent to the events involving him.”
36. However, the offender continues to profess his innocence, inconsistently with those matters having any relevance to the commission of the offence.
37. His referees, in general, are supportive of him as being hardworking, honest, reliable and a loving and responsible family man that they would not expect to be involved in criminal activity. None appear to be aware that in 2005 he was convicted of making a false statement in the course of obtaining a false Australian passport and placed on a s 20(1)(a) bond for 12 months. The offence post-dated the current offence. It is his only criminal conviction and while this offence was committed first in time the only affect on sentence is that the offender is unable to claim that his character is entirely blemish free. It is, of course, an offence of an entirely different and far less serious nature.
38. In the Pre Sentence report under the heading “Attitude to the Offence” it is stated that the offender continues to claim innocence and that he was “framed” by a member of the Russian community. Presumably, that is a reference to the “Sergei” account.
39. Dr Brown took over treatment of the offender’s Chronic Myeloid Leukaemia in April 2009 from Dr Young on his retirement. While the Court has had regard to all of the reports the significant report is the final report of 3 May 2010, post-dating the trial. Dr Brown states that the offender passed through the most aggressive phase when first diagnosed in 2002. Treatment with imatinib (trademark Glivec) an inhibitor of the enzyme that drives the disease has resulted in a response that while suboptimal, has provided a reasonable level of disease suppression such that his full blood count does not show any features of CML. That treatment requires regular monitoring for any relapse and continued adherence to the medication on a daily basis.
40. Dr Brown makes no prognostication as to life expectancy. It is reasonable to expect that should a relapse occur which cannot be effectively treated that there would be serious consequences for the offender. However, it cannot be ignored that the offender committed the offence while fully cognizant of his illness.
41. Apart from daily medication and monthly monitoring he is said to require a balanced diet and adequate iron and other vitamins.
42. The medication causes the offender to suffer from lethargy, mild anaemia, intermittent diarrhoea and bilateral breast enlargement in the past.
43. Dr Westmore, forensic psychiatrist, diagnosed the offender as having an “adjustment disorder with depressed and possibly anxious mood” when seen on 1 April 2010 while in custody. Dr Westmore further described this as a “reactive disturbance of mood”. He did not find that he needed psychiatric medication or show evidence of a biological depression. The assessment was conducted with the assistance of a Russian interpreter and Dr Westmore expressed the opinion that incarceration would be a very difficult experience because of this age, his health problems and his poor English skills causing him to become isolated in the prison population.
44. To the extent that Dr Westmore referred to poor English skills I note that during the trial objection was taken to an electronically recorded interview with the offender being admitted in evidence. No interpreter was present or requested and the interview was conducted in English over approximately 75 minutes excluding breaks. I quote from the judgement dismissing the application:
“The accused’s ability to understand questions and respond in English supports a conclusion that the fact that an interpreter was not used did not in any way affect the reliability of the admissions. His grammar may not have been perfect and he may on occasion have struggled with his English expression, but this had no significant impact.”
The Court does not accept that Dr Westmore has an accurate understanding of the offender’s English skills.
45. In R v Hart (NSW CCA, unreported, 26 July 1999), the CCA, citing a line of authorities including Sopher (1993) 70 A Crim R 570 and Price (unreported CCA NSW Sheller JA, Campbell and James JJ 2 September 1993), stated,
- “the offender’s psychological and medical health and age may increase the hardship of a sentence and may therefore be taken into account in deciding what sentence is appropriate, but that consideration is limited by the necessity of maintaining proper standards of punishment”.
46. In Sopher (1993) 70 A Crim R 570 the Court stated [at p.5]:
- “Health and age are relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short period to live or need intense treatment which cannot be provided in gaol. There may be circumstances where to keep a person in gaol will probably lead to his early death and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life. The Department of Corrective Services has the responsibility of providing for health care but there may be cases where what is required on a permanent basis extends beyond what it can provide and can be expected to provide. In almost all cases what the Department is able to provide will suffice. If goal is significantly harder for a person because of difficulties due to health and age this would be a relevant matter to take into account.”
47. The Court is entitled, in arriving at an appropriate penalty, to take into account the prisoner’s age and health, but these are of themselves not factors that should lead to a gaol sentence not being imposed if it is otherwise warranted. They are factors that might, instead, affect the length of custodial sentence (Sopher (supra) at 573).
48. The offender was fully cognizant of his illness at the time of committing the offence. Although it is stated in the medical reports that he has on occasion not received his medication, an event most likely to occur when transferring from one custodial location to another or on initial reception, there is no reason for the court not to accept that the offender will receive from the Department of Corrective Services an appropriate level of health care and monitoring. Any side affects from medication will be the same in custody as they would be in the community. That is not to say that his state of health would not impact adversely on him while in custody nor that it is not a relevant consideration on sentence.
49. The offenders were convicted following a trial. They have shown no remorse or contrition and continue to deny guilt.
Co-operation or Assistance
50. The offenders have not provided assistance to law enforcement agencies in the investigation of this offence or any other offences.
Prospect of Rehabilitation
Deterrent Effect and Adequate Punishment51. Both offenders maintain their innocence, despite the verdicts in the circumstances of a strong Crown case. There is no real prospect of rehabilitation in the absence of an acknowledgment of the offending behaviour.
52. The objective seriousness of the offence is high. The offence involved a very substantial sum of money transferred into the HK Power account and the loss of a very substantial amount of that money, although significantly less than the amount transferred. That all of the monies transferred to that account were not lost was the result of a fortuitous circumstance, an enquiry by a bank in Greece as to the proper name of the account money was to be transferred into. The transfer of the funds into the account was an end product of a sophisticated and carefully planned criminal enterprise. While the offenders were not a party to committing the actual fraud it depended on them to be completed in respect of those funds. Without their participation in dealing with the proceeds the fraud could not have been completed, at least in respect of the monies transferred to the HK Power account.
53. In this matter, having considered all possible alternatives, it is clear that in relation to each offender a term of full time imprisonment is appropriate. The submissions by Counsel for each offender acknowledge that certainty.
54. In sentencing each offender, the sentence must reflect the objective seriousness of the offence, and the Court must fix a sentence that will ensure that the time the offender must spend in custody reflects all of the circumstances of the offence including the objective seriousness of the offence and the need for general deterrence and specific deterrence, and meet the fundamental purpose of punishment, the protection of society.
55. WANG has convictions for serious offences that resulted in terms of imprisonment indicating a need for greater consideration of specific deterrence and depriving him of the degree of leniency that might otherwise be provided. That provides some distinction from ROIZMAN who, while not blemish free, has a single conviction for a comparatively minor and dissimilar offence.
Sentences Imposed on Other Offenders
56. Her Honour Tupman DCJ has imposed sentences on a number of persons involved in perpetrating the fraud. Each of Ernest Hufnagl, Greg Bourchier and Barry Osborne were sentenced for the offence of Conspiracy to Cause a Loss contrary to s 135.4 of the Criminal Code 1995. A maximum penalty of 10 years is provided for that offence.TV was sentenced for the offence of Dishonestly Cause Loss to Another Person contrary to s 135.1(3) of the Code. A maximum penalty of 5 years is provided for that offence.
57. Each of the offenders dealt with by Tupman DCJ were, as indicated, sentenced in respect of different offences to these offenders and for offences where the maximum penalty for consideration was less than the 12 years provided in respect of these matters. Those sentences are of no assistance in relation to consideration of the sentences to be imposed on these offenders.
58. His Honour Marien DCJ sentenced Jian Hua CHEN for Conspiracy to deal with money to the value of one million dollars or more being proceeds of crime contrary to s 400.3(2) and ss 11.5(1) of the Criminal Code. Although a conspiracy offence it is the same offence as the court is now concerned with and the maximum penalty available is the same. The penalty imposed was imprisonment for 6 years with a non-parole period of 3 years and 7 months. Chen entered a plea of guilty at the earliest opportunity and remorse was taken into account. His offence involved an entirely separate account in Hong Kong and all of the transferred funds were recovered. He was found to be occupying a “position at least at mid level in the organizational hierarchy of the conspiracy relating to the Lun Tun Travel Trading Company Account”. Marien DCJ in the circumstances determined a starting point of 8 years. An appeal on sentence by Chen was dismissed. Chen [2009] NSWCCA 66.
59. Having considered that sentence I am of the opinion the offence committed by each of these offenders is objectively very serious and in each case involves a high degree of moral culpability. This matter requires the imposition of a more significant sentence than indicated by Marien DCJ’s starting point to reflect that and to provide an appropriate sentence.
Sentence
60. In respect of each offender I separately considered the sentence to be imposed and in doing so had regard to s 16A of the Crimes Act 1914.
Mr WANG please stand.
You are convicted in respect of the offence of dealing in the proceeds of crime. I sentence you to a total term of imprisonment of 10 years with a non-parole period of 6 years and 6 months.
To take account of the 37 days custody relating only to this matter the sentence will be backdated to commence 37 days before you were refused bail on 23 February 2010 at the conclusion of the trial.In accordance with those orders you will be first eligible to be released on parole on 16 July 2016.Accordingly, the term of imprisonment of 10 years commences on 17 January 2010 and will expire on 16 January 2020. The non-parole period of 6 years and 6 months commences on 17 January 2010 and expires on 16 July 2016.
Please take a seat.
Mr ROIZMAN please stand.
You are convicted in respect of the offence of dealing in the proceeds of crime. I sentence you to a total term of imprisonment of 9 years 6 months with a non-parole period of 5 years and 6 months.
To take account of the 1 day of custody relating only to this matter the sentence will be backdated to commence 1 day before you were refused bail on 23 February 2010 at the conclusion of the trial.
In accordance with those orders you will be first eligible to be released on parole on 21 August 2015.Accordingly, the term of imprisonment of 9 years 6 months commences on 22 February 2010 and will expire on 21 August 2019. The non-parole period of 5 years and 6 months commences on 22 February 2010 and expires on 21 August 2015.
That the total term of imprisonment imposed is 6 months less than that imposed on your co-offender reflects the lesser need for specific deterrence due to your lack of relevant criminal history. The usual relationship between the term of imprisonment and the non-parole period has been varied in your favour to reflect the possibility that your health may make serving a term of imprisonment less comfortable than it might otherwise be.
Please take a seat.
06/09/2010 - The name of the co-offender TV is subject to a non-publication order. - Paragraph(s) 9 (b); 56
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