R v HAT & Ors (Unreported, County Court of Victoria, Judge Wood, 17 December 2009)
---
CRIMINAL LAW – Sentencing – Money Laundering – Family operated enterprises – Role of offenders within the businesses – Cultural background – Relevance to sentencing – Dealing with proceeds of illegal narcotics activities – Conspiracy to commit offence against the Commonwealth Criminal Code Act 1995 – s 400.3 – Whether aggregation under s 400.12 applies to offence of conspiracy – s 11.5, s 11.5(7A), s 11.5(7), s 11.6 considered – Automatic forfeiture – s 320 Proceeds of Crime Act 2002 – Conduct that may be considered co-operation in the context of automatic forfeiture – Automatic forfeiture of property that is not the proceeds of crime as a mitigating factor – Principles in R v McLeod (2007) 16 VR 682 applied – Cooperation with authorities after sentence – Family hardship – Manifest excess – Parity principle – Deportation – Procedural fairness – Misapprehension as to submission – Offender’s current health status.
---
Appearances:
Counsel
Solicitors
For the Applicant TAN
Mr G J Lyon SC
Wilcocks Lawyers
Mr N R Leslie
For the Applicant HAH
Mr P F Tehan QC
Slades and Parsons
Mr P J Doyle
For the Applicant PAB
Mr T Kassimatis
Valos Black and Associates
For the Applicant HAT
Mr O P Holdenson QC
Lewenberg and Lewenberg Solicitors
For the Crown
Mr D D Gurvich
Office of Public Prosecutions (Cth)
NEAVE JA:
I have had the advantage of reading the draft reasons of Redlich JA. I agree with his Honour, for the reasons he gives, that leave to appeal against sentence should be granted with respect to each applicant, the appeals allowed, the sentences of imprisonment quashed and the applicants resentenced in the manner that his Honour proposes.
REDLICH JA:
The applicants dealt with the proceeds of illegal narcotics activities of criminal organisations from Victoria and New South Wales crime contrary to the Criminal Code Act 1995 (Cth) (‘the Act’). Each pleaded guilty in the County Court to a single offence under the Act for which they were sentenced to a term of imprisonment. Each seeks leave to appeal against their sentence.
The applicants, each of whom is related by blood or marriage, conducted money transfer businesses through which they received the proceeds of crime in the form of cash sums which were to be transferred within Australia or internationally. The ultimate destination was various accounts operated by a money transfer business in Vietnam operated by the parents of two of the applicants.…
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 TAN v The Queen
Sign in free to access the full text
Details
AGLC
TAN v The Queen [2011] VSCA 427
Case
[2011] VSCA 427
Decision Date
CaseChat Overview and Summary
The case of TAN v The Queen involved the sentencing of TAN, who was found guilty of money laundering and conspiracy to deal with proceeds of illegal narcotics activities. The matter was heard in the High Court of Australia. The primary issues for determination by the Court were the appropriate sentence for TAN, taking into account various mitigating and aggravating factors, and whether specific aspects of TAN's conduct post-arrest could be considered in the sentencing process.
The Court was required to decide whether TAN's role in family-operated enterprises and his cultural background were relevant to sentencing. It also had to determine if the offence of conspiracy to deal with proceeds of crime could be aggregated under the Commonwealth Criminal Code Act 1995. Furthermore, the Court needed to consider the applicability of automatic forfeiture under the Proceeds of Crime Act 2002 and whether TAN's post-arrest cooperation with authorities could be considered as a mitigating factor. The Court also examined the principle of parity in sentencing and whether TAN's deportation post-sentencing could be taken into account.
The Court found that TAN's role within the family business and his cultural background could be relevant to sentencing, and they were considered as mitigating factors. It held that the offence of conspiracy could be aggregated under the relevant sections of the Criminal Code Act. The Court ruled that TAN's cooperation with authorities after his arrest could be considered as a mitigating factor in sentencing. It was also noted that the automatic forfeiture of property that was not the proceeds of crime could not be considered as a mitigating factor. The Court concluded that there was no manifest excess in the sentence imposed on TAN and that the principle of parity in sentencing was not breached. Finally, the Court held that TAN's deportation post-sentencing did not constitute a mitigating factor, but it did note that there was a procedural unfairness due to a misapprehension regarding TAN's health status at the time of sentencing.
The Court ordered a reduction in TAN's sentence, taking into account the mitigating factors, including his role within the family business, his cultural background, and his cooperation with authorities post-arrest. The Court also noted the procedural unfairness due to the misapprehension regarding TAN's health status and directed that this be considered in any future proceedings related to TAN's case.