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R v Zhang (No 2)

R v Zhang (No 2)

Case [2023] NSWDC 570 14 December 2023

Consistency of Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Zhang (No 2) [2023] NSWDC 570
Hearing dates: 7 December 2023
Date of orders: 14 December 2023
Decision date: 14 December 2023
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
(1) You are convicted of the offence against s 400.9(1AB) of the Criminal Code Act 1995 (Cth), that between 17 January 2022 and 28 April 2022 you did deal with money, it being reasonable to suspect such money was proceeds of indictable crime, and at the time of the dealing, the value of the money was $1,000,000 or more.
(2) You are sentenced to 1 year and 6 months imprisonment, commencing 13 December 2023.
(3) You are to be released on 12 June 2024 upon you entering into a recognizance, without security, to be of good behaviour for a period expiring on 12 June 2025.

Catchwords:
CRIME – Sentence – Money laundering – Taken to be reasonable to suspect money or other property is proceeds of indictable crime – ss 400.9(1AB), 400.9(2)(c), 400.9(4), 400.9(5) Criminal Code Act 1995 (Cth) – Place the offence among the statutory scheme of offences – Amount dealt a primary consideration – Consistency of sentencing – Importance of general deterrence

Legislation Cited:
Crimes Act 1900 (NSW), s 254
Crimes Act 1914 (Cth), ss 16A, 17A, 19B, 19AC, 20, 20AB
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 66(2), 66(3), 69(3)
Criminal Code Act 1995 (Cth), ss 400.2AA, 400.3(1), 400.3(1A), 400.3(1B), 400.3(2A), 400.3(2B), 400.3(3), 400.4(1), 400.4(1B), 400.4(2), 400.4(3), 400.5(1), 400.5(2), 400.5(3), 400.8(1), 400.8(2), 400.8(3), 400.9(1AA), 400.9(1AB), 400.9(1), 400.9(1A), 400.9(2), 400.9(4), 400.9(5). 400.10, 400.11, 400.12, 400.13
Evidence Act 1995 (NSW), s 191

Cases Cited:
Akoum v The King [2023] WASCA 102
Hili v TheQueen (2010) 242 CLR 520; [2010] HCA 45
Lai Yean Wong v R [2013] VSCA 52
Milne v R (2012) 259 FLR 42; [2012] NSWCCA 24
Nguyen v R [2019] NSWCCA 44
R v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Hoang [2022] NSWDC 193
R v Lim [2023] NSWDC 238
R v Milne (No 1) (2010) 260 FLR 166; [2010] NSWSC 932
R v Minh Kha Le [2020] NSWDC 89
R v Nguyen [2020] NSWDC 367
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Whittall [2019] NSWDC 606
R v Yi-Hua Jiao [2015] NSWCCA 95

Category: Sentence
Parties: Rex (Crown)
Liang Zhang (Offender)
Representation:
Counsel:
Ms Satkunarajah (Crown)
Mr Thomas (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
International Lawyers Co-operative (Offender)

File Number(s): 2022/00122559

Judgment

INTRODUCTION

The Offender was found guilty by unanimous jury verdict of a single money laundering offence against s 400.9(1AB) of the Criminal Code Act 1995 (Cth) (“the Code”).
The maximum penalty is 4 years imprisonment and/or 240 penalty units ($53,280).
The offence is described in the indictment in the following terms:

“Between 17 January 2022 and 28 April 2022 in Sydney and elsewhere…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Zhang (No 2)

Details

AGLC: R v Zhang (No 2) [2023] NSWDC 570
Case: [2023] NSWDC 570
Decision Date: 14 December 2023

CaseChat Overview and Summary

In the case of R v Zhang, the defendant was convicted and sentenced for an offence related to money laundering, specifically dealing with money suspected to be the proceeds of an indictable crime, in contravention of sections 400.9(1AB), 400.9(2)(c), 400.9(4), and 400.9(5) of the Criminal Code Act 1995 (Cth). The dispute arose from Zhang’s dealings with money amounting to $1,000,000 or more, which occurred between 17 January 2022 and 28 April 2022. The matter was heard and determined by the relevant court, which examined the nature and seriousness of the offence within the statutory framework governing such crimes.

The court was tasked with determining the appropriate sentence, considering the statutory scheme of offences and the amount of money involved. It was crucial to place the offence within the hierarchy of criminal activities and to assess the significance of the money amount as a primary factor in sentencing. The court also needed to ensure consistency with previous sentencing decisions to maintain the integrity of the legal system and to consider the importance of general deterrence in such cases. The court’s role was to balance these considerations to arrive at a sentence that reflects the gravity of the offence while adhering to legal principles and precedents.

In reaching its decision, the court thoroughly analysed the statutory provisions and the specific circumstances of Zhang's dealings. It found that the offence was serious and warranted a custodial sentence. The amount of money involved, $1,000,000 or more, was a significant factor in determining the severity of the punishment. The court also considered the need for general deterrence and consistency with previous sentences in similar cases. After careful deliberation, the court sentenced Zhang to 1 year and 6 months imprisonment, with a release date of 12 June 2024 upon entering into a recognizance to be of good behaviour until 12 June 2025.

Orders

Orders of the court

(1) You are convicted of the offence against s 400.9(1AB) of the Criminal Code Act 1995 (Cth), that between 17 January 2022 and 28 April 2022 you did deal with money, it being reasonable to suspect such money was proceeds of indictable crime, and at the time of the dealing, the value of the money was $1,000,000 or more.

(2) You are sentenced to 1 year and 6 months imprisonment, commencing 13 December 2023.

(3) You are to be released on 12 June 2024 upon you entering into a recognizance, without security, to be of good behaviour for a period expiring on 12 June 2025.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Zhang (No 2) [2023] NSWDC 570

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

R v Lim
[2023] NSWDC 238 Para 37

…Very recently in R v Lim [2023] NSWDC 238, the offender was sentenced for three offences under the Code and an offence under s 254(b)(i) Crimes Act 1900 (NSW). The offences against the Code included an offence against s 400.9(1), an offence against s 400.9(1AB), and an offence against s 400.9(1A). The s 400.9(1) of…
Akoum v The King
[2023] WASCA 102 Para 38

…In Akoum v The King [2023] WASCA 102, the offender, whilst working for a car wash business in Sydney operated by a co-offender, travelled to Perth on the co-offender’s instructions to receive large amounts of cash and deposit them in express deposit boxes at various banks. 51 deposits were made totalling $1,762,480…
R v Hoang
[2022] NSWDC 193 Para 43

…In addition, I have also considered sentences on s 400.9(1) in R v Hoang [2022] NSWDC 193; R v Nguyen [2020] NSWDC 367; R v Minh Kha Le [2020] NSWDC 89; and R v Whittall [2019] NSWDC 606; R v Ngoc Doan Nguyen (2021/00288646); R v Bguyen Ban Mai Vo (2021/00288655).…
R v Nguyen
[2020] NSWDC 367 Para 43

…In addition, I have also considered sentences on s 400.9(1) in R v Hoang [2022] NSWDC 193; R v Nguyen [2020] NSWDC 367; R v Minh Kha Le [2020] NSWDC 89; and R v Whittall [2019] NSWDC 606; R v Ngoc Doan Nguyen (2021/00288646); R v Bguyen Ban Mai Vo (2021/00288655).…
R v Minh Kha Le
[2020] NSWDC 89 Para 43

…In addition, I have also considered sentences on s 400.9(1) in R v Hoang [2022] NSWDC 193; R v Nguyen [2020] NSWDC 367; R v Minh Kha Le [2020] NSWDC 89; and R v Whittall [2019] NSWDC 606; R v Ngoc Doan Nguyen (2021/00288646); R v Bguyen Ban Mai Vo (2021/00288655).…
R v Whittall
[2019] NSWDC 606 Para 43

…also considered sentences on s 400.9(1) in R v Hoang [2022] NSWDC 193; R v Nguyen [2020] NSWDC 367; R v Minh Kha Le [2020] NSWDC 89; and R v Whittall [2019] NSWDC 606; R v Ngoc Doan Nguyen (2021/00288646); R v Bguyen Ban Mai Vo (2021/00288655).…
Nguyen v The Queen
[2019] NSWCCA 44 Para 39

…In Nguyen v R [2019] NSWCCA 44, the Court did not disturb the sentence at first instance by Arnott DCJ. After a 15% discount for plea of guilty, his Honour sentenced the offender to 14 months imprisonment with release after 9 months on a recognizance to be of good behaviour for the balance of the term. The offender…
R v Jiao
[2015] NSWCCA 95 Para 17

…s, in my opinion, guidance in the considerations for sentencing for money laundering offences is found in R v Ly [2014] NSWCCA 78 and R v Yi-Hua Jiao [2015] NSWCCA 95; both of which decisions considered sentencing for offending against s 400.9(1) and preceded the commencement of s 400.9(1AB). With the assistance of…
R v Ly
[2014] NSWCCA 78 Para 17

…ch confirmed that result. Nevertheless, in my opinion, guidance in the considerations for sentencing for money laundering offences is found in R v Ly [2014] NSWCCA 78 and R v Yi-Hua Jiao [2015] NSWCCA 95; both of which decisions considered sentencing for offending against s 400.9(1) and preceded the commencement of…
Wong v The Queen
[2013] VSCA 52 Para 40

…In Lai Yean Wong v R [2013] VSCA 52, the Supreme Court of Victoria, Court of Appeal, reviewed the sentence of an offender convicted on a total of nine counts, five relating to dealing with money against s 400.9(1), one of dealing with money against s 400.9(1A), and other Commonwealth and State charges including t…
Milne v R
[2012] NSWCCA 24

…ing [2023] WASCA 102 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Lai Yean Wong v R [2013] VSCA 52 Milne v R (2012) 259 FLR 42; [2012] NSWCCA 24 Nguyen v R [2019] NSWCCA 44 R v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Hoang [2022] NSWDC 193 R v Lim [2023…
R v Milne
[2011] SASCFC 150 Para 29

…The s 400.9(1AB) offence is part of a statutory scheme, the following description of which was adopted by the Court of Criminal Appeal in Milne v R (2012) 259 FLR 42; [2012] NSWCCA 24 at [134] and the Court in R v Yi-Hua Jiao at [29], as originally observed by Johnson J in R v Milne (No 1) (2010) 26…
Hili v The Queen
[2010] HCA 45 Para 27

…encing by courts across Australia for money laundering offences, for the purposes of consistency of sentencing ( Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45) to be mindful of where the subject offence falls in that hierarchy and that those cases are not directly comparable, in the sense that they do not i…
R v Milne (No 1)
[2010] NSWSC 932

…De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Hoang [2022] NSWDC 193 R v Lim [2023] NSWDC 238 R v Milne (No 1) (2010) 260 FLR 166; [2010] NSWSC 932 R v Minh Kha Le [2020] NSWDC 89 R v Nguyen [2020] NSWDC 367 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Whittall [2019] NSWDC 606 R v Yi-Hua Jiao [2015] NSWCCA…
R v Ansari
[2007] NSWCCA 204 Para 26

…In R v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204 at [118] – [119]; [124], Howie J recognised that money laundering offences involve activity of a wide ambit, including the receiving or disposing of money, importing it into or exporting it out of Australia, and engaging in banking, so that the money or property ca…
R v Olbrich
[1999] HCA 54 Para 34

…state of mind of that suspicion. In this way, it is important to consider carefully what the Offender actually did ( R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19]), which was to receive, count and otherwise handle, make book entries in regard to, carry in shopping bags, and bank, sums of cash which were…
R v De Simoni
[1981] HCA 31

…R 42; [2012] NSWCCA 24 Nguyen v R [2019] NSWCCA 44 R v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Hoang [2022] NSWDC 193 R v Lim [2023] NSWDC 238 R v Milne (No 1) (2010) 260 FLR 166; [2010] NSWSC 932 R v Minh Kha Le [2020] NSWDC 89 R v Nguyen [2020] NSWDC 367…

Legislation cited in this decision · 5

Crimes (Sentencing Procedure) Act 1999 (NSW)
66(2), 66(3), 69(3), 7 9 mentions (from Para 47)
Crimes Act 1914 (Cth)
16A, 17A, 19AC, 19B, 20, 20AB 7 mentions (from Para 18)
Crimes Act 1900 (ACT)
254 2 mentions (from Para 37)
Evidence Act 1995 (Cth)
191 2 mentions (from Para 11)
Criminal Code Act 1995 (Cth)
1 mention (from Para 1)

Medium Neutral Citation:	R v Zhang (No 2) [2023] NSWDC 570
Hearing dates:	7 December 2023
Date of orders:	14 December 2023
Decision date:	14 December 2023
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	(1) You are convicted of the offence against s 400.9(1AB) of the Criminal Code Act 1995 (Cth), that between 17 January 2022 and 28 April 2022 you did deal with money, it being reasonable to suspect such money was proceeds of indictable crime, and at the time of the dealing, the value of the money was $1,000,000 or more. (2) You are sentenced to 1 year and 6 months imprisonment, commencing 13 December 2023. (3) You are to be released on 12 June 2024 upon you entering into a recognizance, without security, to be of good behaviour for a period expiring on 12 June 2025.
Catchwords:	CRIME – Sentence – Money laundering – Taken to be reasonable to suspect money or other property is proceeds of indictable crime – ss 400.9(1AB), 400.9(2)(c), 400.9(4), 400.9(5) Criminal Code Act 1995 (Cth) – Place the offence among the statutory scheme of offences – Amount dealt a primary consideration – Consistency of sentencing – Importance of general deterrence
Legislation Cited:	Crimes Act 1900 (NSW), s 254 Crimes Act 1914 (Cth), ss 16A, 17A, 19B, 19AC, 20, 20AB Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 66(2), 66(3), 69(3) Criminal Code Act 1995 (Cth), ss 400.2AA, 400.3(1), 400.3(1A), 400.3(1B), 400.3(2A), 400.3(2B), 400.3(3), 400.4(1), 400.4(1B), 400.4(2), 400.4(3), 400.5(1), 400.5(2), 400.5(3), 400.8(1), 400.8(2), 400.8(3), 400.9(1AA), 400.9(1AB), 400.9(1), 400.9(1A), 400.9(2), 400.9(4), 400.9(5). 400.10, 400.11, 400.12, 400.13 Evidence Act 1995 (NSW), s 191
Cases Cited:	Akoum v The King [2023] WASCA 102 Hili v TheQueen (2010) 242 CLR 520; [2010] HCA 45 Lai Yean Wong v R [2013] VSCA 52 Milne v R (2012) 259 FLR 42; [2012] NSWCCA 24 Nguyen v R [2019] NSWCCA 44 R v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Hoang [2022] NSWDC 193 R v Lim [2023] NSWDC 238 R v Milne (No 1) (2010) 260 FLR 166; [2010] NSWSC 932 R v Minh Kha Le [2020] NSWDC 89 R v Nguyen [2020] NSWDC 367 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Whittall [2019] NSWDC 606 R v Yi-Hua Jiao [2015] NSWCCA 95
Category:	Sentence
Parties:	Rex (Crown) Liang Zhang (Offender)
Representation:	Counsel: Ms Satkunarajah (Crown) Mr Thomas (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) International Lawyers Co-operative (Offender)
File Number(s):	2022/00122559