TAN v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0967
TAN	Applicant
v
THE QUEEN	Respondent

S APCR 2009 0985
HAH	Applicant
v
THE QUEEN	Respondent

S APCR 2009 0986
PAB	Applicant
v
THE QUEEN	Respondent

S APCR 2009 0987
HAT	Applicant
v
THE QUEEN	Respondent

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JUDGES	NEAVE and REDLICH JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 May 2011
DATE OF JUDGMENT	20 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 427
JUDGMENT APPEALED FROM	R v HAT & Ors (Unreported, County Court of Victoria, Judge Wood, 17 December 2009)

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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.

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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. No reports were filed in relation to these money transfers as required by the Financial Transaction Reports Act 1988 (Cth).

HAH was responsible for the day to day running of three of the money-transfer businesses in Footscray, St Albans and Cabramatta, and HAT was responsible for running the fourth business in Bankstown. When HAH left Australia in June 2006, her brother, PAB took over the operation of the Footscray business. From July 2005 TAN operated the business at St Albans.

HAH and HAT each pleaded guilty to conspiring with each other and others between 6 December 2005 and 6 October 2006 to commit an offence against ss 400.3

of the Criminal Code[1] being an offence of dealing with money believing it to be the proceeds of crime and at the time of the dealing, the value of the money was worth $1,000,000 or more. The amount which it was alleged each dealt with between those dates was $68 million and $57 million respectively.[2] They were each sentenced to 12 years and six months’ imprisonment, with a minimum period of nine years’ imprisonment.

[1]Criminal Code Act 1995 (Cth) s 11.5.

[2]As they were co-conspirators intending to commit an offence contrary to s 400.3 of the Criminal Code Act 1995 (Cth), it is not clear from the sentencing remarks why they were not found to have conspired to deal in the same amounts.

PAB pleaded guilty to dealing in proceeds of crime, worth $1,000,000 or more, between 9 May 2006 and 6 October 2006, believing that the money was the proceeds of crime.[3] PAB was sentenced to eight years’ imprisonment, with a non-parole period of five years and six months.
[3]Criminal Code Act 1995 (Cth) s 400.3(1).

TAN pleaded guilty to dealing in proceeds of crime valued at $1,000,000 or more, being reckless as to the fact that the money was the proceeds of crime,[4] between 6 December 2005 and 6 October 2006. TAN was sentenced to five years’ imprisonment and a non-parole period of three years was fixed.
[4]Ibid s 400.3(2).

In each case the applicant dealt with substantial sums either knowing that the money was the proceeds of crime or reckless as to that fact. Their conduct was of a most serious order. A reading of some of the submissions made on their behalf on the plea and the reliance placed on cultural background and other mitigating factors in oral argument on the appeal tended to indicate, despite their pleas of guilty, that they did not appreciate the real gravity of their criminal conduct, its consequences for the community in which they live and their responsibilities as members of that community.

The sentencing judge recognized that there were mitigating factors which were common to all of the offenders involved in the four money laundering operations. They all pleaded guilty at the earliest opportunity in circumstances where a trial would have taken up to a year. Each applicant was therefore treated as showing significant remorse. None of them had any prior convictions. They had all suffered a delay of over three years in the determination of their sentences. Each had young children who would be separated from their parent if sentences of imprisonment were imposed.

At the outset of the appeal, an order was made at the request of one of the applicants, which was not opposed, that publication of the proceedings be suppressed. At the conclusion of the appeal it was agreed that a pseudonym should be employed in the reasons for decision of this court to conceal the identity of the applicant who had requested the suppression order. To effectuate that objective it is desirable that a pseudonym should be used for all of the applicants.

Application of s 400.12 of the Act to a count of conspiracy to contravene s 400.3

The first question raised in these appeals was whether s 400.12 could be applied where the offence charged was one of conspiracy to commit an offence against s 400.3.

Section 400.3 which falls under the description of ‘Money laundering’ in Division 400 of the Act provides:

Dealing in proceeds of crime etc.--money or property worth $1,000,000 or more
(1)A person is guilty of an offence if:
(a) the person deals with money or other property; and
(b) either:
(i)the money or property is, and the person believes it to be, proceeds of crime; or
(ii)the person intends that the money or property will become an instrument of crime; and

(c) at the time of the dealing, the value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 25 years, or 1500 penalty units, or both.

Before further discussing the relevant provisions, some consideration of Part 10.2 and Division 400 of Chapter 10 of the Act which adopt the descriptive heading ‘Money laundering’ is convenient. No definition of ‘money laundering’ appears in s 400.1 or in the Dictionary Schedule to the Act. Nor is a specific offence of money laundering created in Part 10.2. It is dealing in money or other property which is the proceeds of crime or may become an instrument of crime which is the physical element of the offence in s 400.3. The expression ‘deals with’ is extensively defined in s 400.2 and encompasses receipt, possession, concealment and disposal of money which was the proceeds of a Commonwealth indictable offence. It includes money or property that is intended for future criminal activity. The Act differentiates levels of dealing by reference to their value and the offender’s state of mind.[5] The offences under the Act are more expansive than the traditional notion of money laundering which usually connotes some transformational process associated with the tainted money in an attempt to divest it of its criminal character.
[5]Ansari v R [2007] NSWCCA 204, [122] (Howie J)

Section 400.3(4) provides that absolute liability applies to paragraph ss (1)(c) above. As a consequence of s 6.2(2)(a) where absolute liability applies to a particular physical element of the offence, there is no fault element for that physical element.

Section 400.12 of the Act provides:

Combining several contraventions in a single charge
(1)A single charge of an offence against a provision of this Division may be about 2 or more instances of the defendant engaging in conduct (at the same time or different times) that constitutes an offence against a provision of this Division.

(2)     If:
(a)     a single charge is about 2 or more such instances; and
(b)     the value of the money and other property dealt with is an element of the offence in question;
that value is taken to be the sum of the values of the money and other property dealt with in respect of each of those instances.

It was not in issue that when sentencing PAB and TAN for contravening s 400.3 (rather than conspiring to contravene it), s 400.12 entitled the sentencing judge to assess their culpability by reference to the aggregate amount of money they dealt with over the course of all the dealings they engaged in during the period charged.

The offence of conspiracy is contained in s 11.5 of the Act.

11.5 Conspiracy
(1)A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

(2) For the person to be guilty:
(a)the person must have entered into an agreement with one or more other persons; and
(b)the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c)the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

(2A) Subsection (2) has effect subject to subsection (7A).
…
(5)A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b)took all reasonable steps to prevent the commission of the offence.

(6)A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
(7)Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

HAT and HAH maintained the submission advanced on the plea[6] that it was error to aggregate the individual dealings during the conspiracy when assessing their levels of culpability for the offence of conspiracy to contravene s 400.3. While it had not been in dispute on the plea that HAH had dealt with proceeds of crime which in aggregate was $68 million and HAT with $57 million, it had been submitted that they could only be sentenced for dealing where the individual amount of a single transaction exceeded $1 million. Counsel for the applicant offered the example of a person who dealt in amounts of $10,000 on 100 separate occasions, and stated that, but for s 400.12, that person would be guilty of 100 offences contrary to s 400.6 of the Act,[7] but not of any offence contrary to s 400.3. The effect of s 400.12, he submitted, was to render that person liable for the s 400.3 offence. He further submitted that, if that person instead participated in a conspiracy to deal in amounts of $10,000, even if the agreement was to deal in such amounts 100 times, s 400.12 could not apply so as to ‘retrospectively alter’ the agreement to deal in amounts of $10,000, to an agreement to deal in $1 million.
[6]HAT adopted the submissions advanced by HAH.
[7]This provision creates the offence of dealing with proceeds of crime valued at $10,000 or more, for which the statutory maximum is ten years’ imprisonment.

At the sentence hearing it had been submitted that the only dealings referable to the conspiracy were three individual transactions which were each for $1 million or more. During oral argument on the appeal, it was submitted that only one of those dealing in excess of $1 million could be relied upon. HAH adopted HAT’s submission.[8] These submissions cannot be sustained.
[8] How the prosecution came to accept that the applicants could, after having pleaded guilty, challenge the factual basis of the plea, was not explored on the appeal.

On the plea it had been submitted that as the agreement was that they would deal in sums of money in excess of $1 million only individual transactions which exceeded $1 million could be taken into account. In rejecting that submission, his Honour stated that the physical element of the offence of dealing with the proceeds of crime was one of absolute liability (s 400.3(4)) so that intention or belief as to the quantum of the proceeds was irrelevant. The applicants’ submission was that this confuses knowledge as to the amount dealt with in dealing with the proceeds, with the discrete question whether such dealings fell within the object of the agreement. I agree with that part of the submission. That said, I do not accept that the object of the conspiracy alleged was to deal only in individual sums of money that were in excess of $1 million. The terms of the indictment were that HAH and HAT, between dates, together with other named co-conspirators

conspired to commit an offence against sub-s 400.3(1) of the Criminal Code being an offence of dealing with money believing that the money was the proceeds of crime and at the time of the dealing the value of the money was $1,000,000 or more.

Section 11.5 provides that a person who is found guilty of conspiracy ‘is punishable as if the offence to which the conspiracy relates had been committed.’ The respondent submitted that, accordingly, ‘the offence to which the conspiracy relates’ for the purposes of s 11.5 is the combined contraventions which totalled $57 million (in the case of HAT) and $68 million (in the case of HAH). The respondent correctly characterised s 400.12 as a provision that codifies the ‘well-recognised form of criminality’ of ‘between dates’ charges, allowing the Crown to lay a single charge with respect to multiple instances of dealing with the proceeds of crime. There was nothing in the Act nor any case law which supported the proposition that s 400.12 did not apply to the offence of conspiracy to contravene s 400.3. The respondent contended that there is no sound reason to distinguish between the commission of the substantive offence, and the agreement to commit the offence, for the purposes of the application of s 400.12. Further, it submitted that the submissions of HAH and HAT are antithetical to Parliament’s intention in enacting s 400.12 and the penalty scheme set up by Division 10 of the Act to criminalise money laundering.

The explanatory memorandum that accompanied the bill inserting Division 10 in the Act referred to the purpose of s 400.12 as follows:

for procedural convenience, this allows for the combination of charges in relation to the proposed offences. It also prevents the structuring of dealings with a view to manipulating the value based penalty scheme. The provision achieves this by allowing the total value to be taken into account when there are multiple dealings.[9]

[9](Revised) Explanatory Memorandum, Proceeds of Crime (Consequential Amendments and Transitional Provisions) Bill 2002 (Cth) 8.

The respondent further submitted that if the applicants’ submissions were to be accepted, this would create ‘anomalous sentencing scenarios’, and would enable participants in a conspiracy to contravene s 400.3 (but not the participants in an actual contravention of s 400.3) to structure numerous cash dealings so as not to incur liability for the higher penalty. The example given by counsel for HAT, it was said, demonstrated the very danger that the enactment of s 400.12 was designed to avoid, and does avoid, in the case of the substantive offences in Division 10 of the Act. The respondent further submitted that there was no element of retrospectivity in the application of s 400.12 to the offence of conspiring to contravene s 400.3 as the only intention required for the offence of conspiracy is the intention to enter into an agreement with another to commit an offence, the relevant offence in the present case being s 400.3. The only ‘fault’ element of s 400.3 is that the person believed or was reckless as to the fact that the money dealt with was the proceeds of crime. That offence and a conspiracy to commit such an offence does not require that the person know that the proceeds dealt with amounted to $1 million or more.[10]
[10]Criminal Code Act 1995 (Cth) s 400.3(4); R v Ansari (2007) 70 NSWLR 89, 109 (Howie J).

On appeal it was further submitted that as the substantive offence of the conspiracy charged is dealing in proceeds of crime in excess of $1 million, the only individual dealings to which the parties to the conspiracy agreed and which are caught by the conspiracy charge, are those in excess of $1 million. HAH thus submitted that s 400.12 does not apply to a conspiracy to contravene s 400.3 so as to pick up, and make relevant as overt acts referable to the conspiracy, all the dealings in fact engaged in by those applicants, including those dealings which, individually, did not involve amounts over $1 million. It was further submitted that s 400.12 by its terms was confined to a ‘single charge of an offence against a provision of this Division’ and so could not apply to a conspiracy contrary to s 11(5) of the Act.

His Honour concluded that s 11.5(7A) ‘recognises the application of s 400.12 to the offence of conspiracy’. Section 11.5(7A) of the Act provides:

(7A)Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

The Dictionary to the Act defines the term ‘special liability provision’ as:

(a)a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence; or
(b)a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew a particular thing; or
(c)a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing

The plurality judgment of the High Court in The Queen v RK referred to s 11.5(7A) in these terms, in the context of a conspiracy to commit a breach of s 400.3 of the Act:[11]

Section 11.5(7A), … applies any special liability provisions of the substantive offence to the offence of conspiring to commit that offence. A special liability provision includes a provision that absolute liability applies to one or more (but not all) of the physical elements of an offence. Proof of the intention to commit an offence does not require proof of knowledge of, or belief in, a matter that is the subject of a special liability provision……

It was not necessary for the prosecution to prove that LK and RK knew or believed that the money with which they proposed to deal had a value of $1,000,000 or more.

[11]The Queen v LK; The Queen v RK [2010] HCA 17, 58 [117], and 59 [119] (Gummow, Hayne, Crennan, Kiefel, and Bell JJ).

Section 400.12 is not a provision that provides that absolute liability applies to a physical element of the offence. Section 400.3(4) does that with respect to proof that at the time of the dealing the value of the money was $1 million or more. By virtue of s 6.2(2)(a) there is therefore no fault element for that physical element. Neither does s 400.12 provide that it is not necessary to prove that the defendant knew of a particular thing. I accept the applicants’ submission that his Honour was in error in concluding that s 400.12 is a ‘special liability provision’ as defined in the Dictionary to the Act.

His Honour viewed the submission that s 400.12 could not apply to a conspiracy to commit an offence against s 400.3 as unsustainable having regard to the reasons of Howie J in Ansari v R.[12] Ansari was also concerned with a charge of conspiracy in which aggregation was effected pursuant to s 400.12. His Honour referred to the fact that Ansari was approved in R v RK and LK.[13] The reasoning in Ansari assumes that s 400.12 does apply to a charge of conspiracy to commit a substantive offence contrary to Div 10. The Court proceeded on the assumption that the amounts dealt with, each being less than $10,000, could be aggregated to reach a total of over $1 million and constitute a conspiracy to contravene s 400.3.
[12][2007] NSWCCA 204, [55], [63], [66], [82]–[83].
[13][2008] NSWCCA 338.

The learned sentencing judge also stated that s 400.12 ‘has been applied in the five conspiracy cases to which I have been taken by the Crown’. He was plainly referring to cases included in the list of unreported cases concerning offences against Div 10 of the Act to which the Crown made reference in the course of the plea although which five cases is not entirely clear from recourse to that list. However, one of those cases was the appeal to this Court in Waynsabi Trandy v R.[14] In that case this Court re-sentenced two of the appellants on counts of conspiring to commit offences contrary to s 400.3, on the basis that they had conspired to deal in an aggregate of over $2 million through 23 transactions, and later over $5 million in 33 cash dealings. Accordingly, in Trandy, as in Ansari, the Court proceeded on the assumption that such aggregation for the purposes of a conspiracy was permitted under the Act.
[14][2009] VSCA 321.

As no issue was raised about the applicability of s 400.12 in the context of a conspiracy charge in any of these cases, they cannot be treated as authority for the now contested proposition. No case is authority for something that is only implicitly assumed but has not been expressly considered.[15] But it may be as Campbell JA suggests in Jimmy v The Queen, that the fact that judges experienced in the criminal law proceed on a particular basis can at least provide some reason to believe that the assumption is justified, even though their decision is not binding authority that the assumption has been correctly made.[16]
[15]CSR Ltd v Eddy [2005] HCA 64, [13]; (2005) 226 CLR 1, 11 [13]; Markisic v Commonwealth of Australia [2007] NSWCA 92 [56]; (2007) 69 NSWLR 737, 748 [56]; Jimmy v The Queen [2010] NSWCCA 60, [183].
[16][2010] NSWCCA 66, [183].

The respondent submitted in its written outline that if it were necessary to do so, it would also rely upon s 11.5(7) which it was said picks up s 400.12 for the purposes of a conspiracy to contravene s 400.3. Section 11.5(7) provides:

(7)Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

The respondent contended that s 400.12 is a procedure or qualifying provision and so applies to a conspiracy. I agree with the applicants’ submission that s 400.12 is not, properly understood, a procedural provision which applies to s 400.3. It is a substantive provision which ‘transforms’ an individual dealing with money under $1 million in value into a contravention of s 400.3 if it is made in the context of a number of dealings, the sum of which is $1 million or more.

As to the scope of reference of the terms in s 11.5(7), the applicants in their written outline relied upon the observation of Hodgson JA in R v Onuorah[17] as to the meaning of s 11.1(6), which is identical to s 11.5(7) save that it applies to the offence of attempt. Hodgson JA was of the opinion that the expressions ‘defence’, ‘limitation’ or ‘qualifying provision’ in s 11.1 (6) ‘are apt to refer to matters extrinsic to the elements of the offence, rather than to the requirement on the prosecution to prove all the elements of the offence.’[18] The respondent submitted that Onuorah addressed the question whether the absence of an element could fall within the scope of s 11.1(6) but the instant case is not concerned with the absence of an element as the elements are established without reference to s 400.12. I am prepared to assume for present purposes that the reasoning of Hodgson JA does not preclude the conclusion that s 400.12 is a ‘qualifying provision’ but as this issue was not the subject of oral argument, I would leave open for another occasion the question whether s 400.12 is a ‘qualifying provision.’
[17](2009) 76 NSWLR 1.
[18]R v Onuorah (2009) 76 NSWLR 1, 11 [35]; (2009) 234 FLR 377, 387 [35].

In aid of its submission that s 400.12 was applicable, the respondent’s written submission referred to the observations of the High Court in Savvas v The Queen,[19] that a sentencing judge in sentencing should take into account ‘considerations which advert to the content and duration and reality of the conspiracy.’ The respondent further relied upon the observations of Gibbs CJ in R v De Simoni[20] which were referred to in Savass, to the effect that ‘a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.’ The respondent reasoned that as HAH and HAT had conceded on the plea that they had conspired to commit at least one dealing which individually involved an amount over $1 million, that meant they were guilty of a conspiracy to contravene the most serious offence in Division 10 of the Act, s 400.3. Thus it was said that the sentencing judge was permitted to take into account the sum total of all the dealings, including those which involved lesser amounts, for the purposes of assessing their culpability, as they constituted circumstances of aggravation which could not have warranted conviction for a more serious offence. Therefore, the submissions of the applicants to the effect that his Honour should have ignored the dealings in amounts less than $1 million, disregarded the reality of the conspiracy that they had engaged in, and to which they pleaded guilty.
[19](1995) 183 CLR 1, 7.
[20](1981) 147 CLR 383, 389.

I do not doubt that it if s 400.12 did not apply, so that the charge was confined to an individual transaction of $1 million of more, the sentencing judge would have been entitled to have some regard to the fact that the applicants dealings were more extensive. In oral argument the Crown also referred to the principle in R v Giretti[21] that some types of offending conduct, such as drug trafficking may not be confined to single act, but can be a continuing offence between dates which comprehends the carrying on of a trade or business in dealing drugs and may involve multiple dealings of small quantities which accumulate into a prescribed quantity.[22] The principle has also been applied in the case of money laundering.[23] But consideration of the ambit of the count or the matters that may be taken into account on sentencing does not assist in the resolution of the discrete construction question whether s 400.12 applies to a conspiracy, so that the individual dealings of the conspirators may be aggregated to determine the precise extent of the substantive offence for which they are to be punished.
[21](1986) 24 A Crim R 112.
[22]Giretti v The Queen (1986) 24 A Crim R 112, 134; R v Mustica [2011] VSCA 79, [30]–[32].
[23]R v Beary (2004) 11 VR 151, 160 [29] (Buchanan JA).

The offence of conspiracy under the Act is confined to agreements that an offence be committed, the conspirators being guilty of conspiring to commit that offence.[24] The conspiracy being one to commit the substantive offence, what must be agreed between the conspirators is that they intend to perform the acts which constitute that offence. The intended substantive offence the subject of the conspiracy was a single offence against s 400.3. The consequence of s 400.12 is that the substantive offence may be committed where there are multiple dealings each of which involves an amount less than $1 million but which in aggregate equal or exceed that amount. As the acts which constitute the offence include dealings in amounts of money less than $1 million, an agreement to deal in such amounts can constitute a conspiracy to commit the substantive offence. That is to say the conspiracy will encompass those acts which are in law capable of establishing that offence. Accordingly, the prosecution must establish the conspirators’ agreed intention was to deal in such amounts as in law would constitute the commission of the substantive offence. Therefore the implicit assumption made in Ansari and Tandy is sound that the conspiracy was made out where the conspirators agreed to deal in amounts less than $1 million but which in aggregate equalled or exceeded that amount is sound.
[24] The Queen v RK (2010) 241 CLR 177, 228 [117] (Plurality Reasons).

Neither party referred to s 11.6 during the hearing of the appeal. Subsequently, the Court invited the parties to provide written submissions as to whether s 11.6 supported the contention that s 400.12 could be applied to a conspiracy to commit any substantive offence in that Division. Section 11.6 is in these terms:

References in Acts to offences
(1)A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.
(2)A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.
(3)Subsection (1) or (2) does not apply if a law of the Commonwealth is expressly or impliedly to the contrary effect.
(4)In particular, an express reference in a law of the Commonwealth to:
(a)     an offence against, under or created by the Crimes Act 1914; or
(b)     an offence against, under or created by a particular provision of the Crimes Act 1914; or
(c)     an offence arising out of the first-mentioned law or another law of the Commonwealth; or
(d)    an offence arising out of a particular provision; or
(e)     an offence against, under or created by the Taxation Administration Act 1953;
does not mean that the first-mentioned law is impliedly to the contrary effect.

In my view, s 11(6) provides an additional basis for the conclusion that s 400.12 applies to a conspiracy to commit the substantive offence.

Section 11.6 of the Act falls within Part 2.4 entitled ‘Extensions of criminal responsibility’ and is to be interpreted in a manner which will facilitate that objective in relation to Commonwealth offences including those in Division 400. Offences against laws of the Commonwealth are those offences created by, or under the authority of the Criminal Code or any other Act.[25]
[25]1.1 Codification. Under sub-s 38(1) of the Acts Interpretation Act 1901, Act means an Act passed by the Parliament of the Commonwealth.

The Explanatory Memorandum to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999, referred to it in these terms:

Items 9, 10 and 11 of Schedule 1 – amendments to section 11.6
Section 11.6 of the Criminal Code is an interpretative provision which provides that references to offences against an Act also include relevant extensions of criminal responsibility such as attempt, complicity and conspiracy. This simplifies the drafting of criminal statutes. The proposed amendments in items 9 and 10 make it clear this rule extends to not only Acts but other laws of the Commonwealth that create offences (for example, regulations). Proposed new subsection 11.6(4) which would be inserted by item 11 preserves references in existing laws to extensions of criminal responsibility.[26]

[26]The Explanatory Memorandum to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999, 16 [13].

The provision is referred to in the Commonwealth Criminal Code – Guide for Practitioners, as one essentially of drafting convenience that ensures that references in Commonwealth laws to Commonwealth offences includes references to crimes such as conspiracy, attempts and incitement.[27]
[27]Commonwealth Attorney General’s Department, March 2002, pp 292–3 ( I Leader-Elliott).

The applicants submitted that as neither s 400.3 or s 400.12 makes any reference to ‘an offence against a law of the Commonwealth’ s 11.6 cannot apply to their construction. That submission cannot be sustained. Section 2.2(3) of the Act provides that s 11.6 applies to all offences. Further the very terms of s 11.6 treat the code as a law of the Commonwealth. Next the applicants contend that s 11.6(2) cannot apply because neither s 400.3 or s 440.12 refer to a ‘particular offence’. That involves an artificial and narrow construction of s 11(6). Section 400.3 is for the purpose of s 11(6) a particular offence of law of the Commonwealth. So to is the reference to ‘a single charge of an offence against a provision of this Division’ in s 400.12. Next it is submitted that s 11.6(3) applies. Section 400.12 is said to be expressly or impliedly to the contrary effect to s 11.6(1) and (2) because it is confined to ‘a single charge of an offence against a provision of this Division’. Those words do not reflect any contrary intention. That is made clear by s 11.6(4). To so construe the words would defeat the plain purpose of s 11(6) as supported by s 2.2(3). Finally it was submitted that in the alternative, if s 11.6(1) and (2) applied to s 400.12, it would have to be interpreted as meaning that the ‘2 or more instances of engaging in conduct (at the same or different times) that constitutes an offence’ are reference to two or more conspiracies to commit a breach of s 400.3. I do not accept that is how the provision is to be construed. Section 11.6 does not require that both references to ‘an offence’ in s 400.12 must be interpreted as a reference to a conspiracy. Such a construction would also defeat the plain purpose of the provision.

The effect then of s 11(6) is that s 400.3 and s 400.12(1) and (2) are to be interpreted as including conspiracy to commit a breach of s 400.3 which permits the individual instances of the offender engaging in conduct that constitutes the offence to be aggregated for the purpose of the conspiracy.

These grounds are not made out.

HAH & HAT – whether automatic forfeiture of their property should have been taken into account in their sentences

Both HAH and HAT challenged the learned sentencing judge’s finding that there was no basis upon which he could take into account under s 320(a) of the Proceeds of Crime Act 2002 (Cth) (the PCA), by way of mitigation of sentence, the cooperation by HAH or HAT in resolving any action taken pursuant to the PCA. HAH further contended that pursuant to s 320(c) his Honour should have taken account of the forfeiture of property belonging to HAH that was allegedly lawfully acquired.

Section 320 of the PCA is as follows:

A court passing sentence on a person in respect of the person's conviction of an indictable offence:
(a)may have regard to any cooperation by the person in resolving any action taken against the person under this Act; and
(b)must not have regard to any forfeiture order that relates to the offence, to the extent that the order forfeits proceeds of the offence; and
(c)must have regard to the forfeiture order to the extent that the order forfeits any other property; and
(d)must not have regard to any pecuniary penalty order, or any literary proceeds order, that relates to the offence.

Meaning of ‘cooperation’ in s 320(a)

HAH owned a number of items which were the subject of a restraining order. Pursuant to s 92 of the PCA, these were automatically forfeited six months after HAH pleaded guilty on 11 March 2009 and prior to the date of her sentencing in December 2009. The forfeiture was automatic after six months because she did not make an application to have those items excluded from the restraint or the forfeiture, or to extend the time before forfeiture occurred.[28] She submitted on appeal that her decision not to exercise her right to apply to have the items excluded constituted ‘cooperation’ within the meaning of s 320(a). She submitted that in relation to automatic forfeiture, ‘mere submission’ to the forfeiture (i.e. the decision not to make any applications to have property excluded from the forfeiture) will be the only kind of cooperation possible.
[28]See Proceeds of Crime Act 2002 (Cth) ss 30, 31, 92(3), 93 and 94.

HAT, at the time of sentencing, was the subject of orders restraining her interest in two properties and her car. On 8 September 2009, three days before automatic forfeiture was due to occur, she made applications to exclude certain property from the restraint[29] and sought an extension of time before the property would be forfeited.[30] She was granted an extension of time until January 2010. At the date of sentencing her exclusion application had not been determined. In January 2010 she applied for a further extension, which was granted until June 2010. On 15 June 2010 HAT withdrew her application for exclusion of the property, with the result that the property the subject of the restraining orders was forfeited.[31] On appeal she relied upon her withdrawal of the exclusion application and the consequent forfeiture of the properties and the car subsequent to sentencing as ‘new evidence’[32] of cooperation within the meaning of s 320(a), that would enable the sentencing discretion to be re-opened and a lesser sentence imposed.
[29]Ibid s 31.
[30]Ibid s 93.
[31]The respondent on 23 November 2009 had made an application for a pecuniary penalty order pursuant to ss 116 and 134 of the Proceeds of Crime Act 2002 (Cth). The respondent withdrew this application on the same day that HAT withdrew her exclusion application.
[32]R v McLeod (2007) 16 VR 682.

The Crown submitted on appeal, as it did below, that neither HAH or HAT or had done anything which could be characterised as ‘cooperation…in resolving any action taking against the person under the Act’, because such a phrase impliedly required positive steps to be taken by an offender. It also emphasised that s 320(a) is couched in discretionary terms, and as such the sentencing judge was under no obligation to take this ‘cooperation’ into account when sentencing. HAT’s withdrawal of her exclusion application after sentencing, it was said, did not mean that s 320(a) should now be enlivened and that this Court should now reduce her sentence.

There appears to be no authority governing the question as to what conduct on behalf of an offender may be considered to be ‘cooperation’ for the purposes of s 320(a) in the context of automatic forfeiture under the PCA.

It is necessary to undertake some examination of the statutory scheme relevant to the proper interpretation of s 320(a). An offender is not able to ‘consent’ to automatic forfeiture under the Act. Upon the expiration of six months after a conviction for a ‘serious offence’,[33] the forfeiture of any property the subject of a restraining order under the Act occurs by force of the Act,[34] without any need for the Crown to apply for a forfeiture order. The offender can make an application to have property excluded from the restraining order,[35] or have the deadline for automatic forfeiture extended until up to 15 months after the date of conviction[36] and seek to exclude the property from forfeiture.[37] The effect of making any of these applications, even if they were ultimately unsuccessful, would be to prolong the timeline for automatic forfeiture and to require the Crown to become involved in proceedings to determine such applications.
[33]Defined in the Dictionary to the Proceeds of Crime Act 2002 (Cth) s 338.
[34]See Proceeds of Crime Act 2002 (Cth) s 92.
[35]Ibid ss 30 and 31.
[36]Ibid s 93.
[37]Ibid s 94.

The possible scope of automatic forfeiture in relation to a particular offender is relevant. A restraining order made under the PCA can cover all of the property of a person whom the Crown intends to charge with an indictable offence.[38] If the person is convicted of an indictable offence which is a ‘serious offence’, all of the property covered by the restraining order can be forfeited to the Crown, unless the offender makes a successful application to either have the property excluded from the restraint or excluded from forfeiture. In order to succeed in excluding any property from the restraint, the offender must satisfy the court that the particular property is neither the proceeds or an instrument of unlawful activity.[39] The test for exclusion from forfeiture is the same, but in addition the offender must also demonstrate that his or her interest in the property was lawfully acquired.[40]
[38]Ibid s 17(2)(a).
[39]Ibid s 29(2)(a).
[40]Ibid s 94(1)(e) and (f).

Under this statutory scheme, it falls to the offender to establish that the property was lawfully acquired and has no connection to any wrongdoing, if it is to be excluded from automatic forfeiture. When should the absence of an application to exclude property from the scope of a restraint or forfeiture be viewed as a form of cooperation under the Act? And does the fact that an application has been made mean that the offender cannot be said to have co-operated? As the consequences of automatic forfeiture for an offender are potentially very severe it would be unduly harsh for a court to say of an offender who makes an application for exclusion that he can never be said to have cooperated under the PCA and so deny him or her the right to have their sentence mitigated.

I accept the Crown’s contention that the principles relating to Victorian forfeiture expressed in R v McLeod[41] apply to the Federal forfeiture provisions save to the extent that there is any statutory provision to the contrary. Accordingly, the onus of proof rested upon the applicants to establish that their conduct amounted to cooperation which mitigated the severity of the sentence.
[41](2007) 16 VR 682.

If the offender abstains from making or withdraws an application for exclusion, whether it is to be viewed as ‘cooperation … in resolving any action taken against the person’ under the PCA, and if so the weight to be given to such cooperation is a matter for the sentencing court. Co-operation requires a deliberate decision by the offender to facilitate the course pursued by the Director in the PCA.[42] Its weight will depend on the nature of the property, whether it was lawfully acquired and whether the sentencing court is satisfied as to the reason why the offender did not seek or continue to seek to restrict the scope of the forfeiture.[43] If the Court is not satisfied that the offender’s decision was deliberately made for reasons that disclose a willingness to co-operate, the fact that an application for exclusion was not made or was withdrawn will not amount to co-operation. Where a court is so satisfied the weight to be attached to that co-operation will vary depending upon the circumstances. Obviously a decision not to pursue an application for exclusion that was hopeless should receive less weight than one where the offender does not pursue an arguable claim or where the circumstances are complicated and would involve the Director in protracted litigation.
[42]For example the applicant may voluntarily disclose the existence of property of which the Director was unaware or may relinquish the right to pursue an arguable exclusionary claim.
[43]See for example Stock v R [2011] NSWCCA 49, [39] (Schmidt J).

There was no evidence of HAH and HAT’s ‘cooperation’ beyond the bare facts that HAH did not make an application for exclusion and HAT withdrew her application after having the time for automatic forfeiture extended twice. Their co-operation was not established so as to justify any mitigation of sentence.

Automatic forfeiture of property not the proceeds of the offence

HAH also submitted on the plea, that certain identified forfeited property had been acquired by her prior to the offending. The property was a half share of a rental property that HAH had acquired in the late 1990s, and jewellery (valued at $198,000) which had been given to HAH in 1996 as a wedding present. It was submitted that this property could not possibly be said to be the ‘proceeds of the offence’ (committed in 2005 and 2006), and therefore his Honour was required to take the forfeiture of that property into account as a mitigating factor, pursuant to s 320(c).

Whether s 320(c) applies to property automatically forfeited

On the plea, the parties and the sentencing judge proceeded on the assumption that s 320(c) applied to property forfeited automatically under s 92 of the PCA. On the plea the prosecution, whilst acknowledging that s 320(b) and (c) only referred to forfeiture pursuant to a forfeiture order, submitted that, by parity of reasoning, automatic forfeiture should be treated in the same way as forfeiture orders for the purposes of s 320. The sentencing judge accepted that the approach to forfeiture under the Victorian Confiscation Act 1997 as stated in R v McLeod,[44] should be applied under s 320 of the PCA.
[44](2007) 16 VR 682.

It was ultimately accepted during oral argument on the appeal that s 320(b) and (c) do not have any application in relation to property forfeited automatically under Part 2-3 of the PCA. Those subsections specifically refer to a ‘forfeiture order’, a term which is defined in the dictionary to the PCA Act to mean an order made under Division 1 of Part 2-2.[45] Section 320(b) and (c) do not deal with automatic forfeiture of property.
[45]Proceeds of Crime Act 2002 (Cth) ch 6 pt 6-2.

HAH then submitted on the appeal that, as s 320(b) and (c) did not apply to automatic forfeiture, common law principles applied so that the automatic forfeiture of the property which was acquired prior to the offending should have been taken into account by way of mitigation of sentence as it constituted an additional element of punishment.[46] The Crown appeared to accept that the sentencing court should on this question also apply the common law principles espoused in McLeod.[47]
[46]R v Pajic (2009) 23 VR 527, 534.
[47](2007) 16 VR 682.

Section 320(c) does not apply to property forfeited automatically under the PCA. The question arises whether that section is intended to cover the field, or whether there is scope for common law sentencing principles to operate. In Hili v R, the High Court recently confirmed that s 16A of the Crimes Act 1914 (Cth) accommodates the application of general common law principles to the sentencing of federal offenders, unless those principles are modified by Commonwealth statute.[48] Sections 320(b) and (c) expressly relate only to forfeiture orders and make no reference to whether automatic forfeiture may be taken into account in sentencing. I would not impute to the legislature an intent to exclude common law principles which require forfeiture to be taken into account in sentencing in the absence of unmistakable language that required such a construction.
[48]Hili v R [2010] HCA 45, [25].

Common law position as to relevance of automatic forfeiture

In R v McLeod[49] this Court considered the relevance to sentencing of automatic forfeiture under the Confiscation Act 1997 of property that had been lawfully acquired by the offender. The issue was governed by s 5 of the Sentencing Act 1991. The Court confirmed that

At common law, forfeiture of lawfully-acquired property has generally been regarded as a mitigating factor in sentencing, since it places the offender in a worse position than he/she was before the commission of the offence. That is, forfeiture has a punitive or deterrent effect.[50]

[49](2007) 16 VR 682.

[50](2007) 16 VR 682, 685.

However, the Court said that the offender who relies on forfeiture,[51] as a mitigating circumstance will ordinarily bear the onus of establishing that it should be so regarded.’[52] The Court further stated that it was also for the offender to provide ‘credible material’ identifying the source of the property, so as to permit the sentencing judge to conclude that at least some substantial portion of the property has been lawfully acquired.[53]
[51]The forfeiture may have already been ordered or the application may not yet have been resolved.
[52]Ibid 689 [29].
[53]Ibid [30].

Position taken on the plea as to the relevance of the automatic forfeiture

On the plea the prosecution did not dispute the assertion from the Bar table that the identified property had been acquired prior to the offending. Applying R v McLeod,[54] the prosecution contended that to discharge his onus the applicant would have to adduce evidence that the property was lawfully-acquired. The sentencing judge accepted this submission and applied McLeod,[55] holding that

[p]ursuant to s 320 of the Proceeds of Crime Act (Cth), the onus rests upon each of these prisoners who seek to rely upon forfeiture or anticipated forfeiture, in mitigation of sentence, to adduce credible material identifying the source of the property, thereby permitting the sentencing judge to form a position conclusion as to whether or not such property was lawfully acquired.[56]

As his Honour was not satisfied that the offenders had done so, he held that such forfeiture was irrelevant to their sentences.

[54]Ibid.

[55]Ibid 689 [29].

[56]R v HAT and Ors [2009] VCC 1843, [175].

Although the learned sentencing judge proceeded on the erroneous assumption that s 320(c) was to be applied to property automatically forfeited, the learned sentencing judge reached the correct conclusion. If HAH wished to have the automatic forfeiture of the half interest in her house and her jewellery taken into account in mitigation of sentence, she bore the onus of establishing to the sentencing judge’s satisfaction not only that the property was not the proceeds of the offence for which she was convicted, but that it was otherwise lawfully acquired. As HAH did not seek to discharge this burden, his Honour was right to disregard the forfeiture. This ground therefore fails.

Before leaving this issue, I pause to make the following observation. If the property of HAH had been forfeited pursuant to a forfeiture order under Part 2-2 of the PCA rather than by automatic forfeiture, s 320(c) would have been enlivened. In McLeod, the Court was concerned with s 5(2A) of the Victorian Sentencing Act 1991, which relevantly said that in sentencing an offender a court ‘may’ have regard to property forfeited under a forfeiture order which was not the proceeds of the offence. This is to be contrasted with the mandatory obligation under s 320(c) of the PCA. I would leave open the question whether the approach stated in McLeod[57] necessarily applies under s 320(c).
[57](2007) 16 VR 682.

Hardship of HAH’s separation from her children while in prison

HAH deposed in an affidavit tendered on the appeal to the impact that her incarceration had on her children, and the additional distress this has caused her. As there was no one left in Australia to look after her children when she was imprisoned, her children returned to Vietnam in January 2010 to live with their grandmother. She said that this was very difficult for them. Having been born in Australia they spoke little Vietnamese and all their friends were here. Since her incarceration they have had very limited contact with their mother. HAH also deposed that her children had not coped well living with their grandparents in Vietnam. Her eldest daughter had developed an eating disorder and required medication for depression and anxiety. A medical report verifying the daughter has an adjustment disorder and depression was also produced on the appeal. In February 2011 her children returned to Australia and have been living with a friend of HAH whom she met while in custody and who intends to return to China this year. HAH is understandably concerned about her children’s welfare and future. This evidence was said to constitute admissible fresh evidence on appeal.

The learned sentencing judge had taken into account the hardship that HAH would suffer if imprisoned, because it would separate her from her children. His Honour took into account the fact that her two children were to return to Vietnam to live very soon after her sentencing, and that the prospects of them seeing their mother for a considerable period of time were slim, and that they would therefore lose the benefit of the presence of their mother.[58]
[58]R v HAT and Ors [2009] VCC 1843, [164].

New evidence as to events which have occurred since the imposition of sentence may be led on an appeal against sentence where that evidence demonstrates the true significance of facts in existence at the time of the sentence.[59] Fresh evidence will not be admitted when it does no more than validate the sentencing judge’s observations or show the working out of matters generally recognised and taken into account by the sentencing judge.[60] The evidence adduced concerning family hardship fell in to the latter category.
[59]See R v Nguyen [2006] VSCA 184, [36], and more recently Armistead v R [2011] VSCA 84, [29].
[60]R v McLachlan [2004] VSCA 87; R v Jones [2006] VSCA 266.

HAH further submitted that the matters she had deposed to took the circumstances ‘pretty close’ to HAH’s imprisonment imposing ‘exceptional’ hardship upon her family.[61] But as the decision in Markovic and Pantelic v The Queen[62] reaffirmed, unless the circumstances are shown to be exceptional, family hardships are to be disregarded as a sentencing consideration.[63] As it was not contended that the circumstances were exceptional this ground is not made out.

Alleged error as to HAH’s role in the businesses and the nature of her relationship with her mother.

[61]R v Esposito [2009] VSCA 277, [14] (Nettle JA, with whom Buchanan JA agreed).

[62][2010] VSCA 105.

[63]R v HAT and Ors [2009] VCC 1843, [164]–[165].

HAH and PAB’s parents were un-indicted co-conspirators named on the count of conspiracy to which HAH and HAT pleaded guilty. It was not disputed that the money transfer businesses were founded by HAH’s parents. On the plea HAH submitted that an understanding of the true relationship between HAH and her mother was important to a proper assessment of HAH’s culpability and character and her prospects for rehabilitation. It was submitted that HAH’s mother held ‘dominion’ over her, and that in reality HAH was merely a subordinate under the influence of her mother who was controlling the entire operation from Vietnam and was, along with her father, at the apex of the hierarchical structure of the operation. HAH was said to be compliant to her mother, by reason of their relationship.

HAH relied upon a sample of telephone intercepts between HAH and her mother as indicative of their relationship. They were said to be demonstrative of the control HAH’s mother exercised over her. The sentencing judge rejected this submission. His Honour found that the calls showed that HAH and her mother had a business relationship whereby HAH reported to her mother on the state of the business, and her mother reported the amounts needed to be sent. His Honour relied in particular on one conversation in which he stated that HAH chided her mother, as inconsistent with her mother having dominion over her.

HAH submitted that the sentencing judge erroneously characterised the role of HAH’s parents which led to a flawed view of her culpability. Although it was conceded that she had the day to day management of three of the money-laundering businesses in Australia, she submitted that the most reliable indicator of the structure of the business was the distribution of profits. His Honour made no specific finding that she enjoyed financial betterment from the operation but he did observe, in the course of describing the respective levels of criminal involvement in the businesses of HAH and HAT, that as HAH was a member of the family business, she ‘potentially derived a more substantial share of commission and exchange-rate profits than [HAT].’[64] Initially the finding of ‘potential’ profits was the subject of challenge in a separate ground of appeal but on the hearing of the appeal counsel stated that it would be sufficient if this Court, treated the finding as a reflection of his Honour’s view of HAH’s role within the operation, but not a finding that she financially benefited from the business.
[64]Ibid [33].

HAH also relied upon evidence given by a forensic psychologist Mr Patrick Newton that she had a dependent, submissive personality, a tendency to subordinate her needs and desires to those of others, and that she was primarily motivated by a desire to gain her mother’s approval. However, Mr Newtown did not go so far as to diagnose her with a dependent-personality disorder. In cross-examination he agreed that she was intelligent and had the capacity to be calculating.

On the appeal the Crown submitted that HAH’s plea of guilty included an acknowledgement that the proceeds of crime was the trafficking of narcotics as stated in the Crown’s opening of the facts. HAH therefore was to be sentenced on the basis that she knew when she was conspiring with HAT that the money to be transferred through the business was profit created by illegal activities, namely drug trafficking, and that her activities involved significant moral culpability. HAH did not give evidence as to her role, or her relationship with her mother, and the Crown submitted that there was insufficient evidence that HAH was answerable to her mother in the way she suggested. It submitted that the phone calls supported his Honour’s findings as to their business relationship, which was consistent with HAH’s high level of involvement with the operation over a lengthy period. There is considerable force in the Crown’s submission. The matters raised under these grounds must however be considered in conjunction with the interrelated argument that his Honour failed to place any weight on HAH’s cultural background.

Relevance of HAH’s cultural background

On the appeal HAH placed heavy emphasis on Vietnamese cultural norms relating to the obligations owed by adult children, particularly daughters, to their parents. These norms were said to explain HAH’s involvement in the business. The claim made on the plea that she was not doing it for her own financial gain, but out of a sense of filial duty to her parents, particularly her mother was repeated. Reflective of the cultural position of women in Vietnamese society, she engaged in illegal behaviour merely to please her mother.

Reliance was placed on a statutory declaration of Mr Phong Nguyen, the National President of the Vietnamese Community in Australia. Mr Nguyen stated that in Vietnamese culture, adult children are expected to obey their parent’s wishes as part of their filial duty, to the point where unreasonable demands and pressures on adult children to do things against their wishes are quite common and often acquiesced to by the son or daughter for many years without overt complaint or protest’. He further deposed that in Vietnamese culture ‘it is generally regarded as inappropriate and even un-filial to contradict, object to or reject a parental request’. Australia-Vietnamese refugee or migrated children whose parents are still living in Vietnam face greater pressure to repay their parents for the freedoms and better life they have here in Australia than children in Vietnam. Daughters ‘are particularly more vulnerable to parental “unreasonable or unethical” demands than sons’, as a Vietnamese woman is expected to look after and obey her elderly parents more so than sons. He said that female children are much more vulnerable to parents’ demands than their male counterpart and often received much less sympathetic reaction from the public if they reject or disobey their parents’ wishes or demands.

In the report of Mr Newton, tendered on the plea, he recorded that HAH made reference to ‘cultural norms of valuing their sons more highly than their daughters’, that she viewed her assistance with her parents’ business as being her ‘duty’ and that ‘considerable emotional pressure was placed upon her by her mother and that she felt that she had little choice but to comply with their requests.’ Mr Newton also referred to ‘traditional cultural stereotypes’ and ‘traditional cultural background’ related to her role as a woman. Mr Newton also gave evidence at the plea hearing of HAH’s perception of these ‘cultural factors’ when asked about HAH’s insight into her relationship with her mother.

On appeal the parties conceded that, under s 16A(2)(m) of the Crimes Act 1914 (Cth) as it applied to HAH and the other applicants, the learned sentencing judge was required to have regard to an offender’s ‘cultural background’ when fixing a sentence. This was not drawn to the attention of the sentencing judge. It should also be noted that HAH’s cultural background was not given the same degree of attention on the plea. HAH had focussed primarily on the fact that she was part of the family business and deferred to her mother who ran the family.

In December 2006 the requirement that a sentencing judge must have regard to an offender’s ‘cultural background’ was removed from s 16A(2), and sub-section (2A) was inserted, prohibiting a sentencing court from taking into account ‘any form of customary law or cultural practice as a reason for

(a)excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or
(b)aggravating the seriousness of the criminal behaviour to which the offence relates.’[65]

[65]See Crimes Amendment (Bail and Sentencing) Act 2006 (Cth) Schedule 1, item 5.

It appears counsel and his Honour operated under the assumption that s 16A(2A) applied. However, that amendment applied to the sentencing of offenders who committed offences on or after 13 December 2006.[66] As HAH’s offending was between December 2005 and October 2006, the learned sentencing judge was required under s 16A(2)(m) to take into account the applicants’ cultural backgrounds.
[66]Crimes Amendment (Bail and Sentencing) Act 2006 (Cth) sch 1 item 6(2).

How is cultural background relevant to sentencing

At the time of sentence HAH’s cultural background was to be ‘taken into account’ in sentencing for Commonwealth offences. It remains a relevant sentencing consideration for a State offence. In Neal v The Queen,[67] Brennan J made the following observation as to the relevance of an offender’s cultural background in the sentencing process:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of ·criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.[68]

[67][1982] 149 CLR 305.

[68]Ibid 326.

These comments were echoed by this Court in R v Fuller-Cust,[69] in dealing with the sentencing of an Aboriginal offender who had been taken into state care at a very young age. Eames JA stated:

To ignore factors personal to the applicant, and his history, in which his Aboriginality was a factor, and to ignore his perception of the impact on his life of his Aboriginality, would be to sentence him as someone other than himself. Not only would that offend principles of individual sentencing which apply to all offenders but in this case it would fail to identify the reasons for his offending and, in turn, the issues which have to be addressed if rehabilitation efforts are to successfully be adopted so as to ensure that he does not re-offend and, in turn, to ensure the long-term safety of the public.
To have regard to the fact of the applicant's Aboriginality would not mean that any factor would necessarily emerge by virtue of his race which was relevant to sentencing, but it would mean that a proper concentration would be given to his antecedents which would render it more likely that any relevant factor for sentencing which did arise from his Aboriginality would be identified, and not be overlooked. Exactly the same approach should be adopted when considering the individual situation of any offender, so that any issue relevant to that offender's situation which might arise by virtue of the offender's race or history would not be overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored.[70] (Emphasis added.)

[69](2002) 6 VR 496.

[70]R v Fuller-Cust (2002) 6 VR 496, 520.

This approach under State law conformed with the requirement of s 16A(2)(m) that a sentencing judge is required to take an offender’s cultural background into account. Even where there is a strong need for deterrence, there are examples where the personal circumstances of an offender which are informed by his or her cultural upbringing may be given significant weight in the sentencing process.

R v Cappadona,[71] concerned tax fraud by a married couple spanning over five years. The wife was the bookkeeper and administration manager of a construction company. She claimed that she was not responsible for the fraud and had complained to her husband about her being required to participate in it. She relied upon the fact that she had been raised in ‘a strict Italian Catholic environment whereby females are traditionally taught that marriage is the ultimate goal and it is the responsibility of the wife to nurture and maintain the relationship.’[72] The sentencing judge accepted that the cultural background reduced the wife’s culpability. The New South Wales Court of Criminal Appeal refused to interfere with a 12-month suspended sentence imposed on the wife. McClellan J accepted that –

the cultural environment of her upbringing had the result that she believed it to be important that she obey her husband's instructions in many matters including business. Friction over these matters has apparently imposed significant strains on the relationship with her husband. Otherwise evidence was given of her integrity and genuine remorse, shame and humiliation.
Although as I have indicated general deterrence is a predominant consideration when sentencing for offences of defrauding the revenue, the personal circumstances of Dorothy Cappadona were such that she had little real choice but to accept and participate in the fraudulent activities of her husband. Having regard to these matters I am of the opinion that a custodial sentence was not required.[73]

[71](2001) 122 A Crim R 52.

[72]Ibid 57.

[73]Ibid 61 (emphasis added).

In determining what weight should be attached to the fact that particular cultural norms informed an offender’s criminal behaviour, the sentencing judge should consider whether those cultural norms obliged the offender to engage in the relevant criminal behaviour or confined the choices of the offender so to diminish the offender’s moral culpability or whether the cultural norm merely provided a justification for a voluntary decision to engage in the criminal behaviour.

The approach of the Northern Territory Court of Criminal Appeal in R v GJ[74] is illustrative of the approach that should be undertaken. The Court with apparent approval referred to the view of the sentencing judge that ‘an Aboriginal person who commits a crime because he is acting in accordance with traditional Aboriginal law is less morally culpable because of that fact’.[75] However, it did not consider that the extent of the leniency shown by the sentencing judge in the sentence imposed, for this reason, was justified. Mildren J (with whom Riley and Southwood JJ agreed) stated that:

What is contended is that in this case the respondent, although he was entitled to act as he had done according to traditional law, was not obliged to do so, and was not under any pressure to do so. There is a positive finding by his Honour as to the lack of obligation and no finding that he was under any pressure. In those circumstances, I consider that less weight should be afforded to this factor.[76]

[74](2005) 196 FLR 233.

[75]Ibid 239 [30].

[76]Ibid 240 [30].

A sentencing judge is not however required to act upon a mere assertion that an offender’s cultural background impacted on his or her offending. Such a matter must be established like other facts on a plea. Personal disadvantage must be established by evidence relevant to the particular offender even if that disadvantage arises by reason of the offender's membership of a particular ethnic group.[77] It will be for the sentencing judge to determine whether he or she was satisfied on the evidence of this fact.[78] If so satisfied, the sentencing judge must decide what weight to attribute to that fact in the sentencing calculus.
[77]R v Nguyen (2005) 157 A Crim R 80, 95 (Grove J).
[78]Ibid 96 (Grove J).

The offender’s particular cultural background must not loom so large in the sentencing calculus that insufficient weight is given to the objective seriousness of the offending, and to other sentencing principles to the extent that the sentence imposed fails to adequately punish the offender or to act as a deterrent to others from a similar cultural background.[79] Hence the fact that cultural norms may play a part in the instinctive synthesis does not give rise to a different ranges of sentences applicable to those who fall within a particular cultural group and those who do not.[80] Though the offender’s criminal conduct may have been affected by cultural attitudes, the sentencing of a member of such a group is not to be approached in a different way from the sentencing of any other member of the community. While cultural considerations may give rise to some degree of leniency, the punishment must remain proportionate to the objective gravity of the offence.[81]
[79]R v GJ (2005) 196 FLR 233, 241 [38] (Mildren J).
[80]R v Rogers and Murray(1989) 44 A Crim R 301, 308; R v KU & Ors; Ex parte A-G (No 2) [2008] QCA 154, [130].
[81]R v KU & Ors; Ex parte A-G (No 2) [2008] QCA 154, [135]; R v Fuller-Cust (2002) 6 VR 496, [49] (Batt JA), [50] (Eames JA); R v Fernando [2002] NSWCCA 23 (Spiegelman CJ, Wood CJ at CL, Kirby J); R v Bell; Ex parte Attorney-General (Qld [1994] QCA 220; R v Riley [2006] NTCCA 10, [15] Martin (BR) CJ.

There is ample evidence before the court of the Vietnamese cultural norms on which HAH relies. I am satisfied that in Vietnamese culture it is expected that adult Vietnamese children, but especially daughters, comply with the requests of their parents, even if those requests are unreasonable or unethical, and that contradiction to a parent’s wishes will be met by disapproval and condemnation by the Vietnamese community. I reject the submission of the Crown that this ‘norm’ is in substance no different from the expectations of Anglo-Saxon parents of their children, and their children’s reciprocal sense of obligation towards their parents. There is no community expectation within the general community that an adult son or daughter must comply unquestioningly with the demands made of him or her by a parent, particularly if that demand was unreasonable or unethical.

The second issue is whether this Court should be satisfied that this cultural norm contributed to HAH’s criminal behaviour, and if so to what extent. I am persuaded that HAH, by reason of the norm in Vietnamese culture of blind obedience to parents’ requests, felt compelled to become involved in the money-laundering operation. I accept that HAH, by reason of her cultural upbringing, thought that she had little real choice but to obey her mother’s wishes.

This fact provides some part, at least, of her reason for her offending and to that extent reduces her moral culpability. It is also relevant to an assessment of her prospects for rehabilitation. Absent any continuing sense of obligation to engage in criminal activity, her genuine remorse and her efforts to redeem herself, there are strong indicators that she will not re-offend.

Accordingly, this ground is made out. This considerations should be taken into account upon re-sentencing HAH.

HAH – Insufficient weight given to fact imprisonment more burdensome due to psychological condition

HAH submitted that the learned sentencing judge failed to give adequate weight to her mental condition which would make imprisonment more burdensome for her than for a person without her condition.[82] Mr Newton gave evidence on the plea that she had experienced depressive symptoms for many years prior to the offending, and diagnosed her with a dysthymic disorder, a chronic form of depressive mood disturbance, which he opined would make prison more burdensome for her. Mr Newton’s evidence was that her condition was asymptomatic until after her crime was detected.
[82]R v Verdins (2007) 16 VR 269, 276 (Maxwell P, Buchanan and Vincent JJA).

In his sentencing remarks his Honour stated that ‘Mr Newton opined that it was not until your arrest that you experienced clinically significant depressive symptoms’, and he recorded that you had not sought treatment for depression prior to your arrest in October 2006.

His Honour later referred to the evidence of HAH’s condition in these terms:

HAH suffers from chronic depression which, according to Mr Newton, would be exacerbated by a period in custody. That prognostication needs to be assessed with the consideration that HAH has been referred by general practitioners to two psychiatrists, and there is no evidence whether those psychiatrists were consulted, and, if they were, what was the result of the consultation. It is also pertinent that, according to Dr Lieu, her general practitioner, although HAH had not consulted her for three years, upon her release from prison at the end of 2006 she requested a statement by the doctor certifying that she was currently stressed. The doctor refused to provide this statement, because she had not treated HAH for some three years and could not adequately verify her condition.[83]

[83]R v HAT and Ors [2009] VCC 1843, [171]. On the appeal HAH sought to tender letters from Dr Stella Kwong, a consultant psychiatrist, to rebut the comment made by the sentencing judge that there was no evidence that HAH had consulted any psychiatrists about her condition. However, nothing turns on his Honour’s comment as, for the reasons set out below, I am satisfied that HAH’s condition makes imprisonment more burdensome for her.

His Honour concluded that HAH’s condition did not itself call for any reduction in the term of imprisonment to be imposed, as her and her co-offenders:

depression and anxiety are products of a realisation that their offences call for immediate incarceration, which reaction would invariably result in any person sentenced to, or about to be sentenced to, a substantial term of imprisonment.

but that he had:

included this consideration as a component of their hardship in undergoing their sentences and have mitigated their respective sentences accordingly.[84]

[84]Ibid [173].

On appeal HAH submitted that Mr Newton’s evidence that HAH’s depression would make imprisonment more onerous for her was wrongly rejected. HAH’s condition was relevant to assessing the burden of imprisonment for her, even though it was asymptomatic until after her offending was detected. The respondent conceded that exacerbation of her pre-existing condition, caused by HAH’s realisation of her predicament, was relevant if that exacerbation makes prison more burdensome.

Mr Newton’s opinion on the plea was confirmed in his more recent report filed on 13 May 2011 for the purposes of this appeal. I accept that her previously asymptomatic condition should be given its full measure as a mitigating factor in the instinctive synthesis, even though the condition became elevated to a symptomatic stage as a consequence of HAH’s offending conduct.[85] This factor should be taken into account in re-sentencing the applicant.
[85]R v RLP [2009] VSCA 271, [31].

HAH – Fresh evidence – exceptional cooperation with authorities after sentence

At the date of sentencing, the sentencing judge had taken into account the fact that HAH had rendered assistance to prosecuting authorities by giving evidence in a trial of a co-accused in 2009 which the Crown conceded was ‘extensive and significant’. There was no reference made during the plea to the possibility of future cooperation, or any undertaking to further assist the authorities. Accordingly, s 21E of the Crimes Act 1914 (Cth) was inapplicable.

On the appeal HAH, without objection, tendered fresh evidence in the form of an affidavit sworn by her on 5 May 2011, and an affidavit sworn by the Operations Manager of the Australian Crime Commission on 11 May 2011. These affidavits described HAH’s ongoing assistance to prosecuting authorities and the nature and extent of the burden of her imprisonment.

In her affidavit HAH deposed that subsequent to sentence, she gave evidence as a witness over two days in a second trial in Sydney in April 2010. She was kept for four days in the cells adjacent to the court, in difficult conditions which caused her a great amount of discomfort. She also deposed that for that trial she was required to give her witness statement to police in sight of other people in a courtyard and to give evidence in court in view of the two accused and their families, which caused her great anxiety and distress. Her fear that people would discover that she had cooperated with the authorities remained when she returned to prison in Victoria. She deposed that other prisoners asked her if she had gone to Sydney to testify in a trial, and told her that if people found out that she had given evidence in Sydney, Vietnamese gangs would kill her family, who were living in Vietnam at that time. She thus feared for her children and felt she could do nothing to protect them.

The ACC Operations Manager in his affidavit confirmed that HAH has been a ‘crucial’ Crown witness is several prosecutions, including in April 2010. He confirmed that the conditions in the cell in which she was forced to stay while giving evidence were very poor, but that ‘despite all these adverse aspects, her level of cooperation was exceptional and she complied with all the requests of investigators and prosecutors’. He deposed that she was forced to give her witness statement in view of other prisoners, and was subject to rigorous cross-examination but was shown to be a ‘tested and reliable witness’. The Operations Manager deposed that since her arrest HAH ‘has provided an exceptional level of cooperation’ which has made a ‘significant contribution’ to an operation which ‘resulted in the successful prosecution of 73 offenders for money laundering, drug trafficking and associated offences.’

The Crown rightly accepted that this constituted fresh evidence and that the sentencing discretion should be re-opened.

In support of the submission that HAH should receive a discount of 50 per cent for her cooperation, counsel for HAH pointed out that she had not signed any undertaking to give evidence pursuant to s 21E of the Crimes Act 1914, and was under no compulsion to give the extensive cooperation to the Commonwealth DPP that she did. It was submitted, correctly in my view, that the principles applicable to discounts on sentence for undertaking to assist the authorities should apply with equal force when a prisoner gives such cooperation without signing an undertaking.

In R v Sukkar,[86] the New South Wales Court of Criminal Appeal examined cases where discounts had been granted for pleas of guilty and assistance, and concluded that while there is no fixed tariff, discounts customarily range between 20 per cent and 50 per cent and that, generally speaking, a discount of 50 per cent is regarded as appropriate for assistance of a very high order. In this State, this court has also said that there is no tariff for such a discount but that it may be 'as much as 50% or even more'.[87] Very recently, in R v Chan[88] the New South Wales Court of Criminal Appeal dealt with a discount that had been quantified at five percent.[89]
[86][2006] NSWCCA 92; (2006) 172 A Crim R 151.
[87]See also The State of Western Australia v Tran [2008] WASCA 183, [75]–[77]; The State of Western Australia v Wynne [2008] WASCA 195; (2009) 188 A Crim R 502; R v Baldock [2010] WASCA 170.
[88] [2010] NSWCCA 153.
[89]See the discussion by Maxwell P in Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32.

The promise of future cooperation was a general mitigatory circumstance to be taken into account. It must receive discrete attention because s 21E requires any reduction in sentence as a result of promised future cooperation to be specified. The risk of retributive violence in prison also needs be factored into the discount for cooperation.

HAH has already received a significant discount for her past assistance. The additional discount for her further assistance should be the extent to which her original discount would have been increased had her promise and now provided additional assistance also been taken into account.

For these reasons the Crown conceded that the sentencing discretion must be re-opened and a significantly reduced sentence should be imposed.

HAH – Head sentence and non-parole period manifestly excessive

As the Crown conceded that HAH should be re-sentenced because of her further co-operation with authorities, it is no longer necessary to address the grounds which asserted that her sentence was manifestly excessive. The contentions of the parties as to what was now the correct sentencing range remained germane to our sentencing task. HAH submitted that her sentence should be at least halved while the Crown submitted that, in light of the fresh evidence, the appropriate range for HAH was a head sentence of 10 to 12 years’ imprisonment, with a non-parole period of seven to nine years. That submission did not make any allowance for the appeal succeeding on other grounds. To keep matters in their right perspective, it is apposite to refer to the observations of Gleeson CJ in R v Gallagher, that an offender’s cooperation is but one element of ‘a complex of inter-related considerations’. In an oft cited passage, his Honour said:

Other considerations that enter into the matter include the remorse or contrition which may be demonstrated in a given case by cooperation with the authorities, and the more difficult time which an informer is likely to have during the period of incarceration as a result of having cooperated. Those last-mentioned matters may, depending upon the circumstances, be very difficult to separate from other considerations which might arise quite apart from the matter of assistance to the authorities. In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.[90]

[90](1991) 23 NSWLR 220, 227–228 cited in Wong and Leung (2001) 207 CLR 584, 612 [76]; R v Thomson; R v Houlton (2000) 49 NSWLR 383, 400 [68]; R v M [2005] NSWCCA 224, [18] and F S v The Queen [2009] NSWCCA 301, [15]; (2009) 198 A Crim R 383, 390–1 [15].

HAH submitted that, upon re-sentencing, this Court should fix a minimum period less than the 72 per cent of the head sentence fixed by his Honour, to reflect the powerful mitigating factors such as her early guilty plea which was of substantial utilitarian value due to the long and complex trial that was avoided, her remorse, lack of prior convictions, good prospects for rehabilitation and the valuable cooperation she has provided to the authorities in relation to the trials of others which she could call in aid. She submitted that as the factors which weigh heavily in fixing a head sentence should generally be weighed differently in the determination of a non-parole period,[91] greater disparity was required between her minimum period and the head sentence.
[91]R v Detenamo [2007] VSCA 160, [27]–[28].

The respondent rightly submitted that there is no fixed ratio which must exist between the head sentence and the non-parole period in a particular case,[92] as the fixing of a non-parole period depends on all the circumstances of the case,[93] and that the minimum period fixed did not bear an uncommon ratio to the head sentence.[94]
[92]R v Bolton & Barker [1998] 1 VR 692, 699 (Callaway JA).
[93]R v Demarco [1999] VSCA 69, [36].
[94]R v Bolton & Barker [1998] 1 VR 692, 699 (Callaway JA); Romero v R [2011] VSCA 45, [25].

The sentences to be imposed must allow that the cultural norm under which HAH lived bore upon her moral culpability. Some mitigatory weight must also be given to the fact that prison will be more burdensome for her, because of her mental state. But the primary factor which operates to require a significantly less severe sentence than that fixed by his Honour is the level of assistance she has provided to those investigating and prosecuting other offenders. For these reasons I would re-sentence HAH to nine years’ imprisonment, with a non-parole period of five years and nine months.

I now turn to the appeal of HAT.

HAT – insufficient weight given to guilty plea and over 3 year delay between arrest and sentencing

HAT submitted that insufficient weight was given to her guilty plea at the earliest opportunity particularly because of its utilitarian value, given the length of the trial that would have been required. The delay of over three years between her arrest and the imposition of sentence, during which period she had this matter ‘hanging over her head’ was also said to have been under-weighted. It was submitted that it was not open to the sentencing judge to impose a sentence of 12 years and six months’ imprisonment, with a minimum of nine years’ imprisonment given these considerations, in combination with the other matters relied upon in mitigation, and in particular HAT’s prospects of rehabilitation which the prosecution accepted were ‘good.’

His Honour fully appreciated the importance of HAT’s guilty plea, acknowledging in relation to all the applicants that ‘the utilitarian value of your respective pleas is substantial.’[95] He imposed a sentence which was substantially below the range suggested by the prosecution specifically because it failed adequately to take into account the value of her guilty plea.[96] His Honour also recognised the ‘anguish and uncertainty attendant upon all of the prisoners of their respective fates’ by reason of the delay,[97] and took into account the applicants’ prospects of rehabilitation in the context of their actions in the period of the delay.[98] I reject the contention that the sentence imposed is reflective of either of the errors asserted.
[95]R v HAT and Ors [2009] VCC 1843, [160].
[96]Ibid [176].
[97]Ibid [162].
[98]Ibid.

Ground that sentence manifestly excessive

Reliance was placed on the case of Trandy v R,[99] in which Trandy received a sentence of six years’ imprisonment on one count of conspiracy to contravene s 400.3(1) of the Criminal Code Act 1995 (Cth) and seven years’ imprisonment on a second such count. However, Trandy’s offending was less grave than HAT, as Trandy only dealt with proceeds in the amount of $2 million on the first count, and approximately $5.3 million on the second count. As HAT’s argument as to s 440.12 failed, she was to be sentenced as having dealt in proceeds amounting to $57 million.[100] In Trandy the appellant dealt with money intending that it be an instrument of future crime, rather than dealing in what the offender knew were proceeds of drug offending. Moreover, as was stated in Hudson v The Queen, the sentencing task does not involve a search for the most ‘like’ case, sentences not being a precedent against which to test other sentences.
[99]Trandy v R [2009] VSCA 321.
[100]R v Ansari (2007) 70 NSWLR 89, 119 (Howie J).

The objective seriousness of the HAT’s offending was very high, involving some $57 million of proceeds of drug trafficking by criminal organisations over a relatively short period.[101] There was a high level of sophistication in the money-laundering operations, and HAT controlled the business in Bankstown. The contention that the sentence imposed was beyond a sound exercise of the sentencing discretion cannot be sustained.
[101]For the relevance of the amount involved to the seriousness of the offence, see R v Ansari (2007) 70 NSWLR 89, 119 (Howie J).

HAT – Parity with other co-offenders re-sentenced on appeal

As HAH will be re-sentenced, there should not be a disparity between the sentences imposed on HAH and HAT such as would engender a justifiable sense of grievance in HAT.[102] HAT submitted that in this circumstance her appeal should be allowed and her sentence adjusted, in order for this Court to ensure that the parity principle is not infringed. The respondent accepted that if any of her co-offenders were to be re-sentenced by this Court, the question of parity in relation to HAT’s sentence would have to be considered. Both parties assume that where HAH’s sentence is to be reduced but HAT fails on all of her grounds, parity requires that HAT ‘s sentence be reduced rather than HAH’s sentence adjusted so as not to be markedly disparate from HAT’s sentence.
[102]Lowe v R (1984) 154 CLR 606, 610 (Gibbs CJ, with whom Wilson J agreed), 611 and 613 (Mason J), 623 (Dawson J, with whom Wilson J agreed); Postiglione v R (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).

When the sentencing discretion is re-opened in the case of a successful co-offender, the court, unconstrained by the sentence originally fixed, instinctively synthesises all relevant considerations, including those which may have been the subject of error by the sentencing judge, and fixes the sentence that it considers appropriate. Where that sentence when compared with the sentence of another co-offender who is also before the court, would infringe the principle of parity, the court must then re-sentence the other co-offender to avoid such an outcome. Any other course is likely to produce an unfair outcome. If the court could not interfere with the sentence of the unsuccessful co-offender, and was confined to adjusting the sentence of the successful co-offender to avoid infringing the principle, it would mean that the court would be unable to impose the sentences that it considered appropriate for the successful and unsuccessful co-offender.

The sentencing judge gave HAH and HAT the same sentence. He found HAH to ‘undoubtedly’ be more culpable than HAT as HAH ran three businesses while HAT ran one, but that this greater culpability was ‘redeemed in large measure by [HAH]’s cooperation with authorities in giving evidence at the trial’ in 2009.[103] Thus his Honour concluded that identical sentences were warranted. Save for the specific matters made out by HAH in her appeal, it was not suggested that such an approach was unsound. Having regard to the sentence that I propose in the case of HAH, and taking into account the factors of differentiation between HAH and HAT, I would propose a new sentence for HAT that ensures that there is no marked disparity between their sentences. I would therefore impose a sentence of eleven years with a non-parole period of eight years.
[103]R v HAT and Ors [2009] VCC 1843 [176].

I turn to the appeal of PAB.

PAB – Relevance of evidence of offender’s future deportation

The sentencing judge was aware that PAB had come to Australia in May 2006 with his wife and son, with the intention of showing his parents that he could manage an outpost of the family business, so that he could set up life in Australia. These plans were ruined by his arrest and conviction. Following the birth of his second son in March 2009, his wife and two sons were forced to leave Australia permanently in August 2009 when their visas expired.

PAB wished to rely upon fresh evidence, in the form of an affidavit sworn by him on 13 May 2011, which, it is submitted, sheds new light on the extent of the burden of imprisonment on him, particularly given his future deportation. In the affidavit he deposed that he had travelled to Australia in 2006 with his family with the intention that they would ultimately emigrate and settle in Australia. However, as a result of his offending, he has been separated from his family, as his wife and children cannot get visas to enable them to return to Australia to visit him. He has minimal contact with them due to the cost of international calls. He deposed that he has very limited English, has no regular visitors, and the only person in Australia to whom he is close is his sister HAH who is in prison. He deposed that, as a result, he has found imprisonment extremely lonely, isolating and difficult. He also deposed that upon release from prison in Australia, he has been informed that he will be kept in a detention centre up to six months, until he is deported. The Crown at the hearing confirmed that PAB will be deported back to Vietnam once he is released from prison.

Counsel for PAB on appeal acknowledged that no reliance was placed by PAB’s counsel on the plea on PAB’s likely deportation as a mitigating factor, as prior to the decision in Guden v R,[104] (which was handed down seven months after the applicants were sentenced) prospects of deportation were not usually treated as a relevant consideration.[105] However, this Court made clear in Guden that the prospect of deportation is a factor which may be relevant to the impact that a sentence of imprisonment will have on the offender, both during the currency of their incarceration and upon his or her release, and therefore, subject to the state of the evidence that such deportation is likely, it should be taken into account when sentencing.[106] The burden of imprisonment may be greater for a prisoner who knows that following his release he will be deported.[107] Also, if the effect of receiving a sentence of imprisonment is that an offender will lose the opportunity of settling permanently in Australia, this may be taken into account as a form of additional punishment.[108] But a sentencing judge is not required to speculate; there must be evidence that enables a sensible quantification of the risk that deportation will in fact occur, and proof that deportation would in fact be a hardship for that particular offender.[109]
[104][2010] VSCA 196.
[105]Cf Mann v The Queen [2011] VSCA 189, [37].
[106]Guden v R [2010] VSCA 196, [25]–[26].
[107]Ibid [27].
[108]Ibid.
[109]Ibid [28]–[29].

The Crown opposed the tendering of PAB’s affidavit as ‘fresh evidence’ as the sentencing judge was aware of PAB’s likely deportation, because it was referred to in a psychiatric report tendered on the plea, and because it was relied upon to support the submission that PAB should not be given a lengthy non-parole period. Counsel submitted that his Honour correctly rejected this as a mitigating factor and further submitted that it had not demonstrated that his deportation to Vietnam would be a hardship for him, as required by Guden v R.[110] The content of the psychiatric report was to the effect that he did not wish to stay in Australia any longer than necessary because he wanted to be with his family.
[110]Ibid.

The effect of the evidence upon which PAB now relied, is that, whatever his position at the time of sentencing, it is firstly said that imprisonment has become more difficult for him than an offender who is not facing deportation, as he now feels more keenly the loss of opportunity to settle in Australia with his family. Secondly, it is submitted that he is likely to spend up to a further six months in custody in a detention centre, following his release from prison pending his deportation. These matters should be taken into account as an added punishment, so that his sentence should be mitigated.

I do not regard the first of these matters as falling within the fresh evidence rule as explained in R v Nguyen.[111] It is contrary to the way his prospect of deportation was relied upon at the plea. A sentence appeal is not the opportunity for an applicant to take up a different and inconsistent position to that taken on the plea.[112] The second matter, namely his likely detention after completing his non-parole period was apparently unknown at the time of the plea. That does constitute fresh evidence and should be taken into account.
[111][2006] VSCA 184.
[112]Romero v R [2011] VSCA 45.

PAB – relevance of evidence of the offender’s health in prison

Long after the oral hearing and very shortly before the court was intending to deliver judgment, PAB issued an application pursuant to s 317 to obtain material relating to his health in prison from Justice Health. After a considerable further delay in pursuing this application, the information was then obtained. Counsel for PAB concedes that the new information need only be considered by this Court in the event that it intends to allow PAB’s appeal and re-sentence him. PAB and the Crown accept that the Court should consider the additional evidence in Chambers without the need for a further oral hearing.

The new evidence relates to three admissions to hospital since the applicant’s incarceration and after the oral hearing of his appeal. It is comprised of various medical tests, reports, and progress notes from teams of medical professionals treating PAB. It suggests PAB has been hospitalised between 21 July 2011 and 28 July 2011; from 3 August 2011 to 30 August 2011; and on 21 September 2011. The admissions relate to complications and pain arising from a chronic liver disease experienced by PAB.

In my view, this is a mitigating consideration and should attract some reduction in PAB’s total effective sentence on the basis that imprisonment will be a greater burden for him by reason of his state of health than for a person in normal health.[113]
[113]See eg R v Van Boxtel (2005) 11 VR 258 (Callway JA, with Ormiston and Charles JJA agreeing).

Reliance on cultural norms

PAB submitted that his role in the money laundering operations was a limited one, in that he effectively covered for his sister HAH by running the Footscray business for about six months while she was in Vietnam. He submitted that he was merely a subordinate of his sister; he did whatever she told him to do, and was dependent on her in terms of knowing how to run the business.

Counsel for PAB on the appeal sought to rely upon the submissions advanced by HAH, as to the relevance of Vietnamese cultural norms and the obligations of adult children to their parents, in order to explain PAB’s involvement in the money-laundering business. On the plea it was submitted that PAB became involved in the business because he felt obligated to do whatever his parents told him to do, because of the reverence in which he held his parents by reason of his Vietnamese background. He stood in for his sister in running one of the businesses while she was away because he thought it was part of his responsibility as a member of the family to take part in the family business. Counsel submitted that pursuant to s 16(2)(m) of the Crimes Act 1914 (Cth), his cultural background should have been reflected in the sentence imposed on him, because it demonstrated that his motive for the offending was not greed (which would be an aggravating factor) but a sense of obligation to please his parents, which explains why he committed the offence even though he received no real financial reward. While stopping short of submitting that this matter reduced his moral culpability, counsel did submit that it bore upon the objective gravity of his offending.

He submitted that the total effective sentence and non-parole period that was imposed on him did not reflect his level of involvement, his subordination to HAH, or the cultural factors influencing his decision to be involved. I accept for the reasons stated in relation to HAH, that some allowance should have been made for this consideration although the evidence in support of this ground is not as compelling as it is in the case of HAH.

As in the case of HAH, the plea was conducted on the basis that s 16(2)(m) no longer applied and his Honour did not therefore give any weight to the consequences of PAB’s cultural background. This is a matter I would take into account upon his re-sentencing.

PAB – Sentence was too disparate from sentences imposed on co-offenders TAN, TT and OH

PAB submitted that the learned sentencing judge erred in that there was too great a disparity between his sentence of eight years’ imprisonment, with a minimum of five years and six months and those imposed on the co-offenders Tan, TT and OH all of whom received sentences of five years’ imprisonment with a minimum period of three years.

PAB also repeated the submission of HAT[114] that if this Court were to re-sentence any of the applicants and this involved re-synthesising any matters beyond fresh evidence, the law required that there be due proportion between his sentence and that imposed on the other co-offenders.[115] It was thus said that because of the sentences imposed on TAN, TT and OH, and a re-sentencing of HAH, his sentence should be revised to avoid offending the parity principle. For the reasons discussed in HAT’s appeal, I consider this to be the correct approach.
[114]See earlier [119]–[121].
[115]Postiglione v R (1997) 189 CLR 295, 301–2 (Dawson and Gaudron JJ).

PAB was sentenced to a different, more serious offence than TAN, TT and OH, namely knowingly[116] (rather than recklessly)[117] dealing in proceeds of crime valued at $1 million or more. This offence attracts a maximum penalty of 25 years’ imprisonment, compared to a maximum of 12 years for the offence of reckless dealing to which the others pleaded guilty. PAB effectively ran the business in HAH’s absence, receiving large sums of cash from criminal customers, liaising with persons in Vietnam, often in code, and engaging other money remitters in Melbourne to transfer funds on his behalf.[118] By contrast, TT, OH and TAN only ever acted under the direction of another who was present and running each respective business.
[116]Criminal Code Act 1995 (Cth) s 400.3(1).
[117]Ibid s 400.3(2).
[118]R v HAT and Ors [2009] VCC 1843, [42]–[44].

On the plea the prosecution had conceded that PAB had been recruited by, and was under the supervision of his sister HAH, and that he was ‘considerably less competent than her in the conduct of the Melbourne business.’[119] However, the Crown submitted that for PAB to suggest on appeal that he should be afforded parity with TAN, TT and OH was inconsistent with the submission made on the plea that PAB’s level of culpability was most similar to that of another co-offender, Mr Kim Phong Tran, who was sentenced by the same judge to seven years and six months’ imprisonment with a non-parole period of five years. As I stated in Romero v R, an appeal against sentence does not provide the applicant with an opportunity to recast submissions on the plea, and save in the case of a need to avoid a miscarriage of justice, the sentence below is to be assessed by reference to the arguments advanced at first instance. Moreover, it has not been shown that there is any marked disparity between PAB’s sentence and the sentences on those co-offenders as his degree of criminality was significantly greater than those who received head sentences of five years’ imprisonment.
[119]Ibid [45].

The sentencing discretion having been re-opened because of his likely detention pending deportation, and to take account of his cultural background and the sentences now to be imposed upon HAH and HAT, I would impose a sentence of seven years and a non-parole period of four years before he is eligible for parole.

Finally I turn to the appeal of TAN.

TAN – Error in acting on understanding applicant had accepted an immediate term of imprisonment was warranted

TAN submitted that his Honour erred in exercising his sentencing discretion on the basis her counsel had conceded that an immediate custodial sentence was required,[120] and that this was the appropriate starting point in determining her sentence. Counsel submitted that TAN was denied procedural fairness, in that she was denied the opportunity to have the sentence judge properly consider her submission that a ‘recognizance release order’ under the Crimes Act 1914 (Cth) was appropriate. It was submitted that TAN should be re-sentenced to a lesser minimum term, such that she is available for immediate release.
[120]Ibid [135], [158].

The Crown conceded that his Honour had misapprehended the position of TAN when he stated that she had accepted that an immediate term of imprisonment was appropriate. That was a concession that had been made by other counsel for some of her co-offenders. Her counsel had submitted that an immediate term of imprisonment should not be imposed. The Crown conceded that his Honour had thus failed to deal with the submission that a suspended sentence be imposed. However, the Crown submitted that the error was of no consequence, because his Honour was required by s 17A of the Crimes Act 1914 (Cth) to satisfy himself that no other sentence would be appropriate before imposing a term of imprisonment.[121] Alternatively, the Crown submitted that the sentence imposed on TAN was appropriate, and that there was no reasonable prospect that this Court would impose a lesser sentence.
[121]Crimes Act 1914 (Cth) s 17A.

The Crown’s submission misconceives the consequence of a breach of the fundamental duty of a judge to afford procedural fairness. The test to be applied when deciding whether to revisit a decision said to be infected by a denial of procedural fairness was stated by the High Court in Stead v State Government Insurance Commission[122] and discussed in Ucar v Nylex Industrial Products Pty Ltd.[123] A court can only refrain from intervening where it is satisfied that the denial of procedural fairness could not possibly have affected the outcome, in this case, the sentence. It is not an answer to a denial of procedural fairness on a plea to state that the sentence is one that fell within the appropriate range or that on the basis of his Honour’s understanding of the submissions advanced, only a term of immediate imprisonment was appropriate. Unless the Crown can show that there was no possibility that his Honour would have granted a recognizance release order, had his Honour understood TAN’s counsel’s submission to be that such an order was appropriate, the ground will be made out. The Crown cannot discharge that very high onus. It is therefore necessary to re-sentence TAN.
[122](1986) 161 CLR 141, 145–6.
[123](2007) 17 VR 492, 505 (Chernov JA), 514 ff (Redlich JA).

TAN – Parity argument with TT, OH

TAN submits that she should receive a lesser sentence than five years’ imprisonment with a minimum period of three years which was the sentence imposed on TT and OH. She submitted that there should have been greater disparity between her sentence and those of the two co-offenders, to accurately reflect her lower level of culpability. It was submitted she had no knowledge of the criminal activities being undertaken when she commenced work at the St Albans business, and she was no more than an obedient servant employee, who received only a modest wage, said to be $10 an hour and no commission.

The quantum of the amounts dealt with by each of TAN, TT and OH were similar ($8 million, $7 million and $10 million respectively), as were their roles within the businesses. They all engaged in cash dealings, in very large amounts, under the direction of another who was running the business. Both OH and TAN were described by the sentencing judge as merely obedient workers who received little financial reward for their efforts; TT was described as ‘reluctant in many of the dealings’. All three were charged with the lesser offence of recklessly (rather than knowingly) dealing in proceeds of crime valued at over $1 million. The sentencing judge said of TAN that she was:

engaged in cash dealings of a magnitude and character that must have alerted you to the substantial risk regarding the criminal pedigree of the cash that you dealt with … [and] had a method of distinguishing for your records whether the transaction was legitimate or substantially likely to be criminal‘.[124]

[124]R v HAT and Ors [2009] VCC 1843, [53]–[54].

TAN relied upon a mitigating factor which she submitted distinguished her from those two co-offenders, namely that mercy should be a significant consideration given that she has two young children whose welfare would become the responsibility of her husband and sister if she were imprisoned. On the plea, the prosecutor had conceded the fact that TAN was ‘burdened by recent motherhood’ at the time of offending and that it should be taken into account. TAN had given birth to her first child on 6 December 2005, the first date of the between-dates offence with which she was charged.

TAN also referred to the Crown’s submission as to the sentencing range on the plea in which it proposed a lower sentencing range for TAN than that suggested for the two co-offenders. Counsel submitted that for his Honour to have ignored the concessions by the Crown and to have made a finding, that TAN should have received a sentence equal to TT and OH, required a ‘strong sense of satisfaction’,[125] which the evidence could not support. TAN also submitted that it there were errors that required the re-sentencing of other co-offenders, then parity would require the reconsideration of her sentence.
[125]Crawley v The Queen [2011] VSCA 131, [32] (Ashley JA).

His Honour had acknowledged that the impact of their mother’s imprisonment on TAN’s young children was a ‘powerful’ consideration requiring substantial mercy, which his Honour stated would be ‘reflected’ in her sentence.[126] The sentencing judge recognized that all of the offenders involved in the four money laundering operations (except for OH) had young children who would suffer hardship by reason of their parents’ incarceration. His Honour said that TAN and her husband –

have the two youngest children, and they, being girls, will lose the considerable benefit of a mother who would provide to them the security and guidance parenthood entails … [t]heir plight is somewhat ameliorated because they will continue to have their father’s presence.[127]

[126]R v HAT and Ors [2009] VCC 1843, [135].

[127]Ibid [164].

His Honour concluded in relation to all of the applicants that because their imprisonment would involve the separation of parents from their children, ‘justice demands that the court must temper each of their sentences with mercy, and I have done so.’[128] His Honour was acutely aware of TAN’s circumstances. Minds may differ as to whether their circumstances could be distinguished so as to justify some difference in their sentences. However, where the complaint is that the sentences fail to reflect differences between co-offenders, the parity principle is not concerned with fine distinctions but with differences between co-offenders that are of such an order as to require substantial differences in their sentences. Hence to make out such a ground it is necessary that it be shown that having regard to those differences, there is ‘marked’ and unjustifiable disproportion between the sentences under consideration. Hence the infringement of the principle must satisfy such descriptions as ‘marked’ ‘manifest’ or ‘gross’. It has not been shown that his Honour was obliged to impose a sentence on TAN that distinguished her from her co-offenders TT and OH.
[128]Ibid [165].

Because of the denial of procedural fairness the sentencing discretion in the case of TAN must be re-opened. I would sentence her to four years and

nine months’ imprisonment with a non-parole period of two years and six months’ imprisonment.

I have proposed sentences of nine years’ imprisonment, with a non-parole period of five years and nine months in the case of HAH, eleven years’ imprisonment, with a non-parole period of eight years in the case of HAT, seven years’ imprisonment with a non-parole period of four years in the case of PAB and four years and nine months with a non-parole period of two years and six months in the case of TAN.

LASRY AJA:

I have had the advantage of reading the draft reasons of Redlich JA and I agree with his Honour’s reasons and the orders he proposes.

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SCHEDULE 1

Name	Offence	Role in businesses and amount dealt with	Duration of the offending	Statutory Maximum	Sentence (imposed below)	Sentence (imposed on appeal)	6AAA Sentence
HAH	Conspiracy to contravene s 400.3(1)	Controlled three businesses $68 million	10 months (6.12.05–6.10.06)	25 years	12 years 6 months (NPP 9 years)	9 years (NPP 5 years and 9 months )	11 years (NPP 7 years and 6 months)
HAT	Conspiracy to contravene s 400.3(1)	Controlled one business $57 million	10 months (6.12.05–6.10.06)	25 years	12 years 6 months (NPP 9 years)	11 years (NPP 7 years 6 months)	13 years (NPP 9 years)
PAB	Dealing while believing (s 400.3(1))	Assisted with one business $8–9 million	5 months (9.5.06–6.10.06)	25 years	8 years (NPP 5 years 6 months)	7 years (NPP 4 years)	9 years (NPP 6 years)
TT	Dealing while being reckless (s 400.3(2))	Assisted with one business (unclear – estimated to be several million)	10 months (6.12.05– 6.10.06)	12 years	5 years (NPP 3 years)
OH	Dealing while being reckless (s 400.3(2))	Managed one business $10 million	6 months (6.12.05–10.6.06)	12 years	5 years (NPP 3 years)
TAN	Dealing while being reckless (s 400.3(2))	Operated one business $8 million	10 months (6.12.05–6.10.06)	12 years	5 years (NPP 3 years)	4 years 9 months (NPP 2 years 6 months)	6 years and 6 months (NPP 4 years)
TN	Dealing while being negligent (s 400.3(3))	Assisted with one business $2 million	10 months (6.12.05–6.10.06)	5 years	2 years 6 months, wholly suspended for 3 years

S 400.3(1): Dealing with proceeds of crime worth $1 million or more and the person believes it to be the proceeds of crime
S 400.3(2): Dealing with proceeds of crime worth $1 million or more and the person is reckless as to the fact that it is the proceeds of crime
S 400.3(3): Dealing with proceeds of crime worth $1 million or more and the person is negligent as to the fact that it is the proceeds of crime

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[2011] VSCA 427

20 December 2011