Seo v Director of Public Prosecutions (Cth)

[2025] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0167

WOOSEOK SEO	Applicant
v
THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGES:	T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2025
DATE OF JUDGMENT:	11 February 2025
DATE OF REASONS:	18 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 9
JUDGMENT APPEALED FROM:	[2024] VCC 1306 (Judge Rozen)

APPLICATION FOR LEAVE TO APPEAL DETERMINED BY A SINGLE JUDGE PURSUANT TO s 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant pled guilty to two charges – Engage in conduct in relation to proceeds of crime greater than $100,000 – Deal in money greater than $100,000 suspected to be proceeds of crime – Total effective sentence of 2 years and 9 months’ imprisonment – 14 months’ recognisance release order – Whether recognisance release order was manifestly excessive – Offending was objectively grave – Applicant was morally culpable – Appropriately balanced with mitigation factors – Sentence and recognisance release order were within range – Leave to appeal refused.

Crimes Act 1914 (Cth) s 20(1)(b); Criminal Code Act 1995 (Cth) ss 400.4(2B), 400.9(1).

R v BDP [2022] QCA 32, distinguished.

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Counsel
Applicant:		Mr P Kounnas
Respondent:		Mr A Sprague
Solicitors
Applicant:	Prolink Partners
Respondent:	Commonwealth Director of Public Prosecutions

T FORREST JA:

1. The applicant (Wooseok Seo) applied for leave to appeal against the sentence imposed on him at the County Court of Victoria on 14 August 2024. At the hearing of the application, I gave an order that this application be refused. These are my reasons for that order.

2. The details of the sentence imposed on the applicant are set out below:

Charge on indictment	Offence	Maximum Penalty	Sentence	Cumulation
1	Engage in conduct in relation to money that is proceeds of general crime, $100,000 or more[1]	10 years’ imprisonment	2 years and 6 months’ imprisonment	Base
2	Deal with money reasonably suspected of being proceeds of indictable crime, $100,000 or more[2]	3 years’ imprisonment	6 months’ imprisonment	3 months
Total Effective Sentence:		2 years and 9 months’ imprisonment
Non-Parole Period/Recognizance Release Order:		To be released after serving 14 months’ imprisonment, upon giving security by recognizance of $2,000 to be of good behaviour for 2 years[3]
Pre-sentence Detention Declared:		Nil
Section 6AAA Statement:		3 years and 6 months’ imprisonment, with a non-parole period of 2 years and 4 months.
Other relevant orders		$372,410 cash forfeited, pursuant to s 48 of the Proceeds of Crime Act 2002 (Cth)

[1]Contrary to s 400.4(2B) of the Criminal Code Act 1995 (Cth).

[2]Contrary to s 400.9(1) of the Criminal CodeAct 1995 (Cth).

[3]Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).

1. The proposed grounds of appeal were originally drafted as follows:

   Ground 1a — The total effective sentence was manifestly excessive in light of all the circumstances.

   Ground 1b — The time ordered to be spent in custody (before being placed on a recognizance) was excessive.

   Ground 2 — The learned sentencing judge erred in finding that charge 1 was a ‘mid range’ example of the offence.

2. In the oral hearing for leave, the applicant significantly narrowed these grounds. He abandoned any argument that the total effective sentence, the individual sentences, or the order for cumulation was manifestly excessive. The leave application focussed entirely on the judge’s recognisance release order (‘RRO’) which was made under s 20(1)(b) of the Crimes Act 1914 (Cth).[4] In other words, on this appeal the applicant contended that the RRO requiring him to serve 14 months’ imprisonment was wholly above and outside the range of this type of order available to his Honour in the reasonable exercise of his sentencing discretion.

   [4]Ibid.

3. I shall set out the brief facts of the relevant offending. I have extracted these facts from the undisputed summary of prosecution opening tendered on the plea:

   (a)The applicant, a young man then aged 29 years, was intercepted at Melbourne Airport on 16 March 2023 in possession of $372,410 cash in a black carry-on bag. His ATO records disclosed that he effectively had no income, and he advised the Australian Federal Police (AFP) that he was a student. The amount of cash seized by the AFP, its disproportionality to the applicant’s income and expenditure and the unconventional manner of transportation, constituted the circumstances surrounding charge 2 on the indictment.

   (b)The applicant’s affairs were then investigated by the AFP, and it was ascertained that between November 2022 and March 2023, he had received into his bank account $855,840 and transferred out $803,495 to other bank accounts via 154 transactions. Almost $500,000 was transferred to his brother-in-law and around $61,000 to his sister. This activity, which again concerned an amount of money that was grossly disproportionate to the applicant’s income and expenditure, constituted charge 1 on the indictment.

Reasons for sentence

1. The judge’s reasons for sentence were comprehensive and careful. I shall summarise them.

Remorse and early plea

1. During sentencing, the judge considered the applicant’s early guilty plea and the utilitarian benefit of this early plea.[5] The judge noted the applicant’s remorse and accepting responsibility for his offending, as shown in his early plea, a ‘reflection letter’ and remorse as observed by a close friend of the applicant.[6]

Prospects of rehabilitation

[5]DPP v Seo [2024] VCC 1306 (‘Reasons’) [47].

[6]Ibid [48]–[49].

1. Upon considering the applicant’s genuine remorse, lack of prior convictions and supportive friends, the sentencing judge determined the applicant had ‘good’ prospects of rehabilitation.[7]

Personal circumstances

[7]Ibid [57].

1. Turning to the applicant’s personal circumstances, the sentencing judge considered the applicant’s youth and certain debilitating orthopaedic injuries which ‘will make any period of incarceration more difficult for you than would be the case of a person without those injuries’.[8] As the applicant is a South Korean national living in Australia on a student visa, the judge took into account the applicant’s concerns regarding a risk of deportation:

   It was submitted on your behalf that the threat of deportation represents ‘extra-curial punishment by making any sentence more onerous’ …

   The authorities are clear. A court can take into account, in mitigation of sentence, the anxiety you will face about your future risk of deportation while in custody.

   While your case is not one where deportation of an offender will deprive their family in Australia of a breadwinner, I still conclude that some modest mitigatory weight should be given to the uncertainty you will endure as a result of your incarceration.[9]

Gravity of the offences

[8]Ibid [56].

[9]Ibid [52]–[55] (citations omitted).

1. In assessing the gravity of the applicant’s offences, the sentencing judge considered:

   (a) The precise circumstances of what the offender did;

   (b) The degree of authority reposed in the offender;

   (c) Whether the offender was the author or instigator of the money laundering arrangement;

   (d) The period of time over which the offence was committed;

   (e) The number of transactions involved; and

   (f) The amount involved in the offending.[10]

   [10]Ibid [39] (citations omitted).

2. The sentencing judge assessed that, upon applying the above factors, the objective gravity of charge 1 was ‘mid-range’. The judge noted the large number of transactions (154) over 4.5 months, the amount of planning involved in distributing the money, and that the money involved in the offence was ‘more than 8 times the threshold of $100,000. Had the amount been $1,000,000 or more, the maximum penalty would have been 12 years’ imprisonment’.[11] The applicant’s direct financial benefit from the money laundering was ‘relatively modest’ at around $40,000, and this and other conduct during the offending led the judge to conclude that the applicant had not instigated the arrangement.[12]

   [11]Ibid [40]–[42].

   [12]Ibid [43].

3. In relation to charge 2, the sentencing judge determined that the offending was ‘low to mid-range’, with the amount of cash in the applicant’s carry-on bag being ‘3.7 times the threshold value of $100,000,’ and the offending being one-off.[13]

Specific and general deterrence

[13]Ibid [44].

1. The sentencing judge stated the following in considering the role of general and specific deterrence in the applicant’s circumstances:

   The authorities make clear that general deterrence is an important consideration in sentencing for this type of offending. As the Court of Appeal has explained, money laundering ‘should be considered as serious criminal activity that is at the heart of organised, professional crime syndicates’. A person who launders money ‘is an important cog in the wheel of organised crime’.[14] Such conduct ‘warrants severe punishment not the least in order to reflect general deterrence of a very significant degree.’[15]

   Specific deterrence also has a role to play in your case although, I accept your counsel’s submissions that your lack of prior convictions and the remorse you have demonstrated for your offending suggest that you are not likely to re-offend.[16]

   [14]Majeed v The Queen [2013] VSCA 40, 12 [39].

   [15]Ibid.

   [16]Reasons, [45]–[46].

This application

Applicant’s submission

1. On this application, the applicant contended that the judge’s characterisation of the seriousness of the offending as mid-range was ‘not particularly helpful’ and failed to reflect the lack of guile or sophistication on the part of the applicant. Further, it was contended that the charge 1 offending occurred over a relatively short period of time and that the applicant was not the architect of the scheme but much lower in the criminal hierarchy. The applicant, it was contended, only derived a relatively modest financial reward of approximately $40,000.

2. The applicant submitted that these factors, together with the strong factors in mitigation, ought to have operated to mitigate the RRO to well below the 14 months ordered by the judge. This included the applicant’s:

   (a)age — 29 years at the time of offending;

   (b)lack of prior criminal history;

   (c)early plea and associated regret, remorse and contrition as accepted by the sentencing judge;

   (d)prospect of deportation to South Korea at the expiration of the sentence (or the RRO) and the anxiety caused by these prospects;

   (e)pre-existing and quite debilitating back, neck and knee injuries.

Consideration

1. As I have observed, no issue is taken with the applicant’s two head sentences or the order for cumulation. This is because those sentences were well within the range of sentencing orders open to the judge in the proper exercise of his sentencing discretion.

2. It is hard to see how his Honour’s characterisation of charge 1 as mid-range is erroneous or inappropriate. The amount of money involved is very high for an offence under s 400.4(2B) of the Criminal Code Act 1995 (Cth) (‘the Act’).[17] This subsection is directed at transactions on two or more occasions where the value of the transactions was $100,000 or more but less than $1,000,000.[18] The value of the applicant’s transactions was approximately 85% of the maximum amount under this subsection. The applicant structured the 154 transactions to avoid AUSTRAC’s[19] scrutiny. Together, these factors indicate the applicant’s activity is not at the lower end of the range of criminality for this type of offending. It is true that the applicant is likely to be at the lower end of the hierarchy responsible for generating and distributing these moneys, however without him — or others at his level — the monies could not be moved in a laundering cycle. I agree with the sentencing judge that the applicant was ‘an important cog in the wheel of organised crime’.[20]

   [17]Criminal Code Act 1995 (Cth), s 400.4(2B).

   [18]Dealing with proceeds of crime valued at $1,000,000 or more (but less than $10,000,000) constitutes an offence under s 400.3 of the Criminal Code Act 1995 (Cth) and is punishable to up to 25 years’ imprisonment.

   [19]The Australian Transaction Reports and Analysis Centre (AUSTRAC) collects and analyses financial reports to detect serious and organised crime.

   [20]Reasons, [45], quoting Majeed v The Queen [2013] VSCA 40, 12 [39] (Kaye AJA).

3. These remarks may similarly be directed at charge 2 (s 400.9(1) of the Act) which of course carries a 3-year maximum imprisonment sentence and does not require proof of any mens rea by the applicant, in contrast to charge 1.[21]

   [21]Criminal CodeAct 1995 (Cth) ss 400.4(2B), 400.9(1).

4. The applicant sought to rely on certain cases which were said to be in some ways comparable to the applicant’s, but they were not. Particular reliance was placed on R v BDP (‘BDP’).[22] The present case is readily distinguishable from BDP for two main reasons. Firstly, BDP involved a prosecution under s 400.9(1) of the Act so it was — in that respect only — comparable to charge 2 here. Secondly, the applicant in BDP provided significant cooperation and assistance to authorities leading to eight others being prosecuted in the money laundering operation. That authority is of no real assistance in the present case.

   [22][2022] QCA 32.

5. I agree with the respondent that a consideration of all relevant sentencing factors include the objective gravity of the offending, the applicant’s moral culpability and factors in mitigation applies not just to the head sentence but to a RRO as well. I note that the head sentences on charges 1 and 2 were only 25% and 16²/₃% of the respective maximum penalties, and further that the pre-release period was only 42% of the total effective sentence.

6. I regard the entire sentencing approach by his Honour as a model of restraint, good sense and balance. The applicant has failed to establish an arguable case of manifest excess in any aspect of the sentencing process.

Conclusion

1. Leave to appeal against sentence is refused.

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