The Queen v Pan
[2020] VCC 940
•25 June 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-01824
| THE QUEEN |
| v |
| YAN QUN PAN |
---
| JUDGE: | HIS HONOUR JUDGE O'CONNELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 June 2020 |
| DATE OF SENTENCE: | 25 June 2020 |
| CASE MAY BE CITED AS: | The Queen v Pan |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 940 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Jointly dealing with money reasonably suspected to be the proceeds of crime; $50,000 collected as part of larger illicit cash collection business operated by the accused’s husband, son-in-law and associates; Plea of guilty; Relatively limited role; Family hardship not established; No prior convictions; Good prospects for rehabilitation; Deportation.
Legislation Cited: Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic).
Cases Cited:Kim v The Queen [2016] VSCA 238; Kao v The Queen [2019] VSCA 84; Nguyen v The Queen [2019] NSWCCA 44; Commonwealth Director of Public Prosecutions v Taber [2018] VCC 1560; Commonwealth Director of Public Prosecutions v Lebdeh [2018] VCC 1913; The Queen v Choi [2017] SASCFC 54; Islam v The Queen [2016] NSWCCA 233; Aurora v Cobern [2015] WASC 440; (2015) A Crim R 163; Almada v The Queen [2015] NSWCCA 19; Director of Public Prosecutions v Huynh [2019] VCC 127.
Sentence:9 months’ imprisonment, to be released subject to 12 month RRO in the sum of $1000 after service of 3 months’ imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms R. Champion | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms C. Boston | Paul Vale Criminal Law |
HIS HONOUR:
1Yan Qun Pan, you have pleaded guilty to one charge that between 9 August 2018 and 13 August 2018, at Melbourne and Sydney, you, together with Mingche Weng, Liangliang Yang, Haochu Bi and Ruxin Zheng and unknown others jointly dealt with money it being reasonable to suspect that such money was the proceeds of crime and at the time of dealing the value of the money was $100,000 or more.
2At the plea hearing, Ms Champion, who appeared on behalf of the Commonwealth Director of Public Prosecutions, tendered and read to the court a Prosecution Opening for Plea of 19 June 2020.
3Ms Boston, who appeared on your behalf, accepted the accuracy of that opening as forming the factual basis for sentence, with the exception of paragraph 27, which I have not taken into account.
4The following summary is based upon that prosecution opening. I should indicate that these sentencing remarks are less fulsome than I would wish, but I have attempted to deliver them quickly to accommodate the parties.
Circumstances of offending
5The wider context of this offending involved three co-offenders. Mr Weng,
Mr Zheng and Mr Bi, who the prosecution allege together conducted an ongoing illicit business operation involving cash collections, cash deliveries and fund transfers. It was designed to avoid detection from the authorities. It was operating in August 2018 at the time of your offending and was said to have been operating from at least April 2018.6As part of the business which Mr Weng, Mr Zheng and Mr Bi orchestrated, cash was collected in Sydney in Australian dollars in the amount of $1,000,000 on 26 April 2018, $1,500,000 on 2 May 2018 and approximately $750,000 on 13 August 2018.
7On the occasion of the first collection, Mr Weng, Mr Bi and an uncharged
co-offender, Yuhong Zeng, collected the cash. On the second occasion on 2 May 2018, Mr Zheng, Mr Bi and Shuliang Zheng collected the cash, and on a third occasion, the subject of this charge, you and another person, Ms Yang, collected the cash.8Mr Weng, Mr Zheng and Mr Bi, according to the prosecution, principally planned each of the cash collections. They enlisted the assistance of Shuliang Zheng for the second cash collection, and you and Ms Yang for the third collection.
9Your criminal liability attaches to the third collection only. Mr Weng, Mr Bi and Mr Zheng are charged in relation to all three collections. Shuliang Zheng is charged in relation to the second cash collection and Ms Yang is charged in relation to the third as well.
10In respect of the first and third cash collections, those performing that task flew to Sydney where they collected the cash but then drove a vehicle back to Melbourne. On the second occasion, those collecting drove to Sydney and also drove back. On no occasion did any of the offenders fly back to Melbourne after the collection of cash. Each journey occurred over an approximate one day period.
11In relation to the first cash collection, the offenders engaged in the following conduct. They drove a car to the place of the handover of the cash and provided their registration to the provider of the cash. They used a hire car to conduct the handover, they were provided with and instructed to use an encrypted mobile phone device, namely a Blackberry, for future communication with the cash providers.
12Those collecting the cash were instructed to present a unique bank note at the handover. They were instructed to drive the cash deliverer around the streets for a short period of time immediately following the handover. They were initially offered $1,700,000. They received the cash in a suitcase in Edward Street in Bondi, Sydney. Those delivering the cash offered future collections in the sum of $1,500,000 each day and even as much as $2,000,000 or $3,000,000.
13In relation to the second cash collection, the people conducting the collection were instructed to attend at a location in Bondi Junction. They intended that a particular bank note would be provided at the handover. They intended to provide a rental car registration number to the cash deliverers. They met the other party in a public place, namely a café, and they were instructed only minutes before the meeting at the café what the other member of the party would look like.
14In relation to the third cash collection which particularly concerns you, Ms Yang and you collected the money from Francis Street, Bondi, which is a street that runs parallel and adjacent to Edwards Street, Bondi, and used a hire car to conduct the handover.
15The prosecution case with respect to these matters is that when they are combined with the quantum of cash involved in each collection, the conversations between Mr Weng, Mr Zheng and Mr Bi as disclosed in telephone intercepts, and the broader money laundering context within which these transactions occur, all make it reasonable to suspect that the cash collected at the third cash collection was the proceeds of crime.
16After the second collection but before the third collection, on 7 May 2018, you together with your husband, Mr Zheng, and your son-in-law, Mr Bi, flew to Sydney at which time cash was collected and at some point driven back to Melbourne in a hire car.
17It was suggested by the prosecution that Mr Weng offered to pay you for some expenses incurred on that trip, as disclosed in a lawfully intercepted telephone conversation between your husband Mr Zheng and Mr Weng on 8 May 2018. During that conversation, Mr Weng said as follows, 'Actually, write down all the calculations on a piece of paper and give it to me.' Your husband responded, 'Okay.' Mr Weng said, 'Also your wife… and she should be paid five hundred.' Your husband replied, 'No, no need to, no need to, don't be silly.' Mr Weng said, 'No, no, no, it is already said before, also your son, he put in a lot of hard work too.' Your husband said, 'He didn't do anything, only did some relieve (sic) driving.' Mr Weng said, 'You have to make some allowance for him, all right? He helped too.' Your husband replied, 'All right, all right, I will do some calculations.' Mr Weng responded, 'You organise it, just deduct what you are supposed to claim as expenses, and then make a list of the calculations for me to let me know, all right?'
18This incident is described in the prosecution opening as an uncharged act which provides context and enables a more realistic assessment of your involvement in the third collection which took place on 13 August 2018.
19In the lead up to that date, lawfully intercepted telephone calls showed Mr Weng, Mr Zheng and Mr Bi making arrangements for the arrival and distribution of large amounts of cash. The prosecution alleged that late on the evening of Sunday 12 August 2018, Mr Bi spoke to you on a phone that was registered to your husband. In that telephone call, you are said to have asked for information about your flight to Sydney. You were told by Mr Bi that he would send the flight number to you shortly.
20At 5:30am the next morning, you and Ms Yang boarded a flight from Melbourne to Sydney. At 7:20 am, you hired a Toyota Camry Altise sedan at Sydney Airport from a subsidiary of Hertz Rental. Upon hiring that car, you provided your real name and identification details. The rental agreement was for one day and it required that you return that car to Tullamarine Airport in Victoria.
21At 8:08am that morning, your phone, or at least the phone which was being used by you at that time, was registered to a tower located at Bondi in Sydney.
22During that day, 13 August 2018, telephone intercept material showed further arrangements being made by Mr Weng and your husband for the provision of a large amount of money to be received that evening. The prosecution case against you alleges that you and Ms Yang, whilst in Sydney on that day, collected approximately $750,000 in cash and drove it back to your home address at 263 Serpells Road, Templestowe. At that time, you were living at that address with your husband, Mr Zheng, your son, Shuliang Zheng, and Mr Bi.
23At about 8:44pm that evening, Mr Weng arrived at 263 Serpells Road in a silver Audi sedan. He parked the car adjacent to the front door, left the vehicle and entered the house.
24About six minutes later, Mr Weng left the house carrying a bag. He got into his Audi and started the ignition, at which time police intercepted his car and arrested him. A large open top brown paper bag was located in the driver's side footwell of the car. It contained $249,850 in numerous large bundles of Australian cash. This is almost exactly the same amount of cash that had been arranged by your husband to be delivered to a person who had been identified as ‘Chief Chen’ in the telephone intercept material.
25At the time or shortly after Mr Weng was arrested, police knocked on the front door of the residence at 263 Serpells Road and that door was opened by your husband, Mr Zheng. A search warrant was executed and police went upstairs to the living area. As they did so, they called out 'Police, search warrant.'
Ms Yang was in the kitchen family room area at the time and seen to be carrying a bag over her shoulder. One police officer, Federal Agent Hyde, called out 'Police, don't move.' Ms Yang started running towards the back door with Mr Hyde following. He saw you in the family room, kitchen area. Ms Yang opened the back door, dropped the bag outside and closed the door. Mr Hyde saw the bag was opened and saw that it contained numerous bundles of Australian fifty dollar notes. The bag in fact contained $490,415 in cash.26In the living room, police located a cash counting machine with cash loaded in it and lying around it on the floor. A room came off the kitchen and hallway and the machine was located within two metres of the hallway door and was visible from the hallway. The amount of cash in around the machine was $9980.
27Inside the house at the time were Mr Weng, Mr Zheng, Ms Yang and yourself. Mr Bi and Shuliang Zheng arrived later as the search continued. Everyone was arrested.
28You were taken to the Australian Federal Police headquarters where an interview was commenced but did not continue because the police were unable to contact a lawyer for you.
29On a later occasion, you were invited to participate in a record of interview but, as is your right, you declined to do so.
30As part of the investigation that was subsequently conducted, police interrogated the phone used by your son-in-law, Mr Bi. A number of WeChat messages were extracted from the phone which show communication between you and Mr Bi at the relevant time.
31On 12 August 2018 at 11:05am, Mr Bi sent a message to you, 'Money collection address 90 Francis Street, Bondi Beach NSW 2026.'
32On 12 August 2018 at 11:26pm, he sent you a photograph of flight QF498 booking and the message, 'When you get the car tomorrow, send me the model, colour and licence plate.'
33At 8:05am on 13 August 2018, you sent him a photograph of a silver Toyota, focused on the New South Wales registration plate, CL27GC. You left an audio message with Mr Bi stating, 'Just confirming, is the car gold, yes?' The response was, 'The address is the same as the money collection address, which is the same as the $200,000 address.'
34At 8:18am, you sent a message to Mr Bi, 'Tell them/him/her that we have arrived. Can collect money to change.' At 8:36am, Mr Bi messaged you, 'Arrived?' You responded, 'Arrived. Arrived at 8:10. Where we picked up the 2 pieces.' An interpreter's note states that ‘2 pieces’ is Cantonese slang for $200,000.
35You sent a message also at that time stating 'Half hour arrived to airport.
It's quite fast. One hour arrived.'36On that day, at 3:25pm, Mr Bi sent you a message, 'Return the car to the Hertz at Melbourne Airport, the car rental company…’ ‘Follow the sign at the airport.' You responded by stating, 'Ok.'
37Phones seized from Mr Zheng and Mr Weng at the time of their arrest contained close up images of $5 and $10 notes which were taken at times approximately coinciding with collection dates. These images focused on the unique serial numbers of those notes.
Procedural history
38I turn now to the procedural history of this matter. On 13 August 2018, you were arrested, charged and bailed in respect of this matter. Between
12 August 2019 and 14 August 2019, and on 9 September 2019, a contested committal proceeding was conducted.39On 27 May 2020 and 2 June 2020, there was a sentencing indication hearing in this Court and on 4 June 2020, you formally indicated your intention to plead guilty to this charge.
Personal history
40Turning to your personal history. You are currently 48 years of age.
You are married to the co-accused Ruxin Zheng and there are three children of the marriage; a daughter, Xiaolin, who is 26 years of age; a son, Shuliang, 25, who as I have indicated is a co-offender in respect of the second collection; and a younger son, Jiajun Jengin, known in these proceedings as Kevin, who is 13 years of age. All of those children are currently in Australia.41You grew up in Dongguan, a city in southern mainland China, close to Hong Kong. You are the second of three children. Your older sister and younger brother remain in China with your elderly parents. Your parents, particularly your father, are not in good health. I was told that no one in your family has been in any trouble with the law, and indeed you have no prior convictions in this country or in China.
42You met your husband who is two years older than you when you were still at high school. You married him when you were 20 years of age.
You completed the equivalent of Year 9 at school in China, your primary work has been raising your children. You did not otherwise work outside the family home whilst living in China.43You husband ran a plastics factory in Dongguan which apparently had been successful. He has been running the business remotely whilst in Australia, but the profitability of that business has been dramatically reduced by the effects of the COVID-19 pandemic.
44In 2015, the family moved to Australia on a business investment migration scheme visa. You invested in a wholesale clothing business and attended there regularly to assist the owners. Your daughter, Xiaolin, had a daughter herself who is now two years of age, with her husband, Haochu Bi. As I have indicated, he is also a co-accused and your granddaughter is named Janice.
45You have spent a good deal of your time caring for your granddaughter. Her mother Xiaoling gave evidence on your plea and confirmed that she has difficulty caring for her daughter because she said, as I understand it, that she suffers from a depressive condition.
46Your youngest son, Kevin, commenced in school in Melbourne in 2015 but after two years, you and your husband were not satisfied with his progress. He was sent back to China to live with his aunt and finish his primary schooling. You would regularly return to China to visit him and he would come to Melbourne to visit the family. That arrangement was stopped once you were charged and bailed in August 2018.
47Kevin came to Australia to visit in January 2020 but was unable to return because of the pandemic. He has since that time effectively been stranded here.
48I am told that you now wish to return to China as soon as you can.
Your aspiration of settling permanently here has been dashed. You are now lawfully present in Australia only on a criminal justice visa and will therefore likely be deported once these proceedings are finalised.49You wish to install your son in secondary school in China and he hoped to be able to sit the necessary exams for that purpose in mid-July this year. You also wish to care for your elderly parents and in that respect, I note that your father is in an advanced stage of cancer.
Submissions
50Turning now to the offending. In discussion on the plea, there was general agreement between counsel as to the role you played in carrying out this offending. The controversy to be resolved was whether the offending was of such seriousness that no other sentence other than a sentence of imprisonment was appropriate in all the circumstances.[1]
[1] See s 17A of the Crimes Act 1914 (Cth).
51The parties were also in general agreement as to the sentencing principles to be applied in cases involving money laundering by reference to decisions such as Kim v The Queen[2] and Kao v The Queen[3].
[2] [2016] VSCA 238.
[3] [2019] VSCA 84.
52Some of the matters that might be taken from those authorities that are particularly relevant in this case are as follows.
53First, Division 400 of the Commonwealth Criminal Code creates a series of offences which are structured by reference to the state of mind of the accused and the amount of money dealt with. Section 400.9, under which you were charged, sits at the bottom of that structured series of offences.
54Secondly, the maximum penalty for this offence is three years' imprisonment.
55Thirdly, no mental element as to the provenance of the money dealt with needs to be proved in respect of this charge.
56Fourth, to sentence an offender on the basis that they knew, were reckless or negligent as to the money being proceeds of crime, would in effect be to sentence an offender for a more serious offence. That must be avoided.
57Fifth, an assessment of the seriousness of a particular offence will focus on the precise circumstances of what the offender did. For example, what constitutes the dealing for the purposes of the offence, over what period of time was the offence committed, the role of the offender, whether they were the instigator, how trusted they were, and so on.
58Sixth, the amount of money involved is a highly significant, though not determinative, matter denoting the gravity of the offence.
59During the course of the plea, I was also taken to a number of comparative authorities to assist in locating current sentencing practice, bearing in mind that practice is but one of many factors to take into account and does not fix an upper or lower limit of the sentencing discretion. Those references are as follows, Nguyen v The Queen[4], Commonwealth Director of Public Prosecutions v Taber[5], Commonwealth Director of Public Prosecutions v Lebdeh[6], The Queen v Choi[7], Islam v The Queen[8], Aurora v Cobern[9], Almada v The Queen[10], and finally Director of Public Prosecutions v Huynh[11]. I should indicate that I have examined each of those authorities.
[4][2019] NSWCCA 44.
[5][2018] VCC 1560.
[6][2018] VCC 1913.
[7][2017] SASCFC 54.
[8][2016] NSWCCA 233.
[9][2015] WASC 440; (2015) A Crim R 163.
[10][2015] NSWCCA 19.
[11][2019] VCC 127.
60Turning to the specifics of this case, both parties accepted:
(a) You were not a principal in the illicit business operation which included collecting, delivering and transferring large amounts of cash. Mr Weng, your husband Mr Zheng, and Mr Bi were the principals of that business.
(b) You were enlisted to participate in this offence by your husband.
(c) In doing so, you acted at the direction of Mr Bi.
(d) You were not sufficiently trusted to be given the details of the person from whom the cash was collected.
(e) The hire car which was used in Sydney to collect the cash and transport it to Melbourne was hired in your own name.
(f) Your role was limited to flying to Sydney, hiring the car, collecting the cash and driving it back to Melbourne, all on one day. Those matters place your role as demonstrably less serious than that of Mr Zheng, Mr Weng or Mr Bi.
61I tend also to the view that your role was likely to have been less serious than the person who accompanied you for this collection, that is Ms Yang.
Ms Yang's conduct at the time of the police raid leads me to the view that she may well have had a greater interest in the cash that had been collected than you. But that need not be determined for the purposes of this sentencing exercise.
Findings with respect to offending
62As to the contentious matters that arose on the plea, it was contended by the Crown that you must have had a financial motive for your involvement in this offence. Whilst that may well be so, I am not affirmatively satisfied that you did. You were acting at the direction of your son-in-law and it would appear your husband. The evidence before me, in my view, is insufficient to satisfy me as to why you did so.
63Similarly, on the plea, the defence made assertions about you believing at the time of the collection of the money that you were helping your friends,
Mr Weng and Ms Yang, to change Chinese money into Australian currency. The evidence said to support that assertion is not persuasive in my view. In the absence of any direct evidence as to who owned the money and as to why you offended, I will treat those matters as simply unknown.64Having set out your role in this offending, I need now to say something of my findings as to the seriousness of this offending. Although your role relative to your co-offenders was limited in the way that I have described, you nonetheless performed a very important task in the overall offending conducted by the principals. In doing so, you knew that you were collecting and dealing with a large amount of cash. You knew that it was necessary to conceal that dealing. You went to considerable effort in flying to Sydney, hiring a car, albeit in your own name, collecting the cash and immediately driving it back to Melbourne in order to carry out the offence.
65Moreover, you did not perform that task in a vacuum. On or about 7 May 2018, you had flown to Sydney with your husband and son-in-law, Mr Bi, in circumstances where your husband collected a large quantity of cash and drove back to Melbourne in a hired car. I do not infer that you played an active role in that collection. However, you must have had some sense of your husband and son-in-law's involvement in the enterprise involving the collection of large amounts of cash.
66You should understand that you have not been charged and you will not be punished for the collections said to have occurred on 7 May 2018. However, that event shows that what you did on 13 August 2018 was not requested of you out of the blue. You must have understood that what you were doing was part of an ongoing, larger enterprise involving large cash collections which took place in a manner designed to evade detection from law enforcement authorities.
67It follows from those findings that I assess your moral culpability for this offending as being reasonably high and that this is quite a serious example of the offence of dealing with money of more than $100,000 reasonably suspected of being the proceeds of crime.
Findings with respect to matters personal
68I turn now to the matters personal to you that mitigate your position.
Ms Boston relied in essence on the following eight matters: your previous good character, your plea of guilty, what was described as your excellent prospects for rehabilitation, your loss of opportunity to settle in this country, the delay in having these proceedings resolved, the restrictive nature of your bail conditions and your performance on bail, the burden you would have to endure if imprisoned, and finally, hardship to your family.69Dealing with those matters seriatim, I firstly accept that you are a person of previous good character, both in this country and in China and that having reached the age of 48 with an unblemished record other than this matter is a significant matter which must weigh in your favour.
70Secondly, your plea of guilty, in my view, entitles you to a substantial reduction in the sentence that would otherwise be imposed. The plea has significant utilitarian value, particularly as it is the first amongst a number of co-offenders. You appear to have behaved the most responsibly in facilitating the course of justice. It might be suggested that your co-offenders were more hesitant. Whilst I think your plea is indicative of remorse, particularly as it is made in the face of an unfavourable sentence indication, that remorse is somewhat qualified in the sense that you sought to plead guilty at earlier stages in the proceedings but only on terms that were essentially unacceptable, or it might be said even unrealistic, and that situation may be distinguished from that of an offender who offers to plead guilty unconditionally. Even so, I am persuaded that your remorse should carry some weight in the sentencing calculus.
71Thirdly, I accept that your prospects for rehabilitation are excellent.
Aside from your lack of previous history, you have a large extended family network with whom you are engaged and a life to go back to in China where it might be reasonably be expected you would not reoffend.72Fourthly, you came to this country with your family in 2015 with the aspiration that you will build a life for yourself and your family here. You have lost that opportunity and, consistent with authority, that should be regarded as forming part of the punishment that you will endure for this offending. Accordingly, I will take that matter into account in your favour.
73Fifth, I also accept that the delay in resolving this matter has had a punitive effect on you. The delay may not be all that inordinate but that does not diminish its punitive character. You have not reoffended during the 20 months or so since being charged. Throughout that time, you have no doubt been in an anxious state of uncertainty. I will take that matter into account in your favour also.
74Sixth, you have been reporting on bail and complied with its conditions. Significantly, you have been prevented from travelling to see your elderly parents, particularly your father who, as I indicated, is quite unwell. Those matters are also punitive and are properly to be taken into account in your favour now. I regard those matters as part of the punishment that you will endure for this offending.
75Seventh, imprisonment would be, I am satisfied, more burdensome for you. You have no English and so you would immediately feel isolated. Moreover, the restrictions brought in to deal with the COVID-19 crisis would accentuate that isolation. You would not be allowed visits and the prison routine will be more onerous with less time spent outside your cell. Those matters are critically important in my view and do weigh very much in your favour.
76The seventh matter relates to the issue of family hardship which received a good deal of attention on the plea. Ms Boston argued that your incarceration would cause hardship to your 13 year old son, Kevin, your daughter, Xiaolin, your granddaughter, Janice, as well as your elderly parents, your sister and brother in China.
77It was submitted that exceptional circumstances exist separately, and in the alternative cumulatively, such that the hardship to you or to your family members should be taken into account on sentence. In support of that contention, your counsel relied on letters written and translated from your brother, your sister, your youngest son and your daughter Xiaolin, who also gave oral evidence on the plea. Further, two affidavits in support were filed by your solicitor.
78Ms Boston advanced 13 propositions which she argued should lead to the conclusion that exceptional circumstances exist in this case. I will not recite all of those propositions, however the focus of many was on the unfortunate effects of your and your husband's prospective imprisonment on your 13 year old son, Kevin.
79Your husband's plea, it should be pointed out, is now listed for 14 September 2020. Kevin has been stranded in Australia since January 2020 because of the pandemic. He has had a troubled schooling and needs to return to China to commence his secondary schooling. The exam he needs to sit for that purpose is to be held, I was told, on 15 July 2020.
80There are logistical difficulties in getting to China as an unaccompanied minor in the current pandemic conditions. He would need to go into quarantine if he got to China on his own, but it is not clear how a minor might do that and for various reasons, your extended family is limited in what it can do to assist Kevin were he to arrive in China on his own.
81Your elderly parents are very concerned as to your plight and clearly wish that you could return to assist them. That is particularly so given their ill health. Your daughter, Xiaolin, explained in her evidence that she seems to have suffered a depressive episode which means she is unable to properly look after her daughter and is reliant on you to assist. I note that the parties seem to accept that her husband, Mr Bi, is also likely to be imprisoned.
82It is trite to observe that family hardship will not mitigate an offender's sentence unless the circumstances are shown to be exceptional. It is true however, as Ms Boston points out, that exceptional circumstances may be established by a combination of lesser hardships to multiple family members and that is perhaps the most realistic basis upon which her submission as to family hardship is put. Even so, I have to say that I am not satisfied that the very high bar that must be overcome before hardship to family members will actually reduce the sentence to be imposed on the offender has been met in this case.
83The reasons for that are essentially three fold. First, your husband remains on bail and is not in jeopardy of immediate imprisonment until at least
14 September 2020, provided of course he does not reoffend or breach his bail. It follows, there is no prospect of Kevin having both his parents imprisoned at the same time at present.84Second, in my view, the evidence as to your son's schooling requirements, travel arrangements and quarantine arrangements does lack some clarity.
I readily accept he is in a less than ideal position and that great efforts were made to try and clarify that position. Despite that, a good deal of uncertainty remains as to how the problems identified might actually be navigated. As the parties both acknowledge, cogent evidence is required to make out this submission and here, in my view, that evidence falls short.85Thirdly, even accepting for the purposes of argument the matters put in support of the family hardship submission, I have to say that whilst they are very concerning and no doubt must weigh heavily on each of the family members concerned, I do not accept that they rise above the general and sometimes tragic hardship commonly suffered by the families of offenders who are imprisoned.
86As I have indicated, Kevin has his father, his adult sister and adult
brother-in-law living with him presently. Indeed, his adult brother as well. Your daughter will find it more difficult in your absence in respect of the care of her daughter, but not to the degree that the principle in my view requires in order to invoke the mercy which underlies it.87Eighthly, having made that finding, I nevertheless readily accept that you would feel your imprisonment all the more acutely because of the extra stress and hardship it will cause to those that you love. That is a matter which will very much be taken into account in your favour.
Conclusion
88Having made those findings, I must now balance the significant personal matters that I have found in your favour against the seriousness of your offending as I have described it. In so doing, I must be very mindful of the fact that money laundering is an insidious criminal activity which seeks to legitimise criminal profits. For that reason, those who might be tempted to engage in money laundering must appreciate that the cost of doing so will be stern punishment.
89Accepting your role was limited in this offending, it was nonetheless important, requiring considerable effort and involving a very large amount of cash –
seven and a half times the threshold requirement of the provision. Those considerations lead me to the view that pursuant to s 17A of the Crimes Act 1914 (Cth), there is no other alternative other than you having to serve some time in prison. You should understand that that time will be substantially mitigated by the matters personal to you which I have found tell very much in your favour.
Sentence
90On the one charge of dealing in money reasonably suspected to be the proceeds of crime, you will be convicted and sentenced to a term of nine months' imprisonment which will commence this day, 25 June 2020. I will further order that you be released after the service of three months of that sentence upon you entering a recognisance release order in the sum of $1,000, conditional upon you being of good behaviour for a period of 12 months.
91Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I will declare that but for your plea of guilty, you would have been sentenced to 15 months' imprisonment and I would have directed your release on a recognisance release order after nine months.
92MS BOSTON: May it please the court.
93MS CHAMPION: As Your Honour pleases.
94HIS HONOUR: Ms Champion, the normal procedure would be I think for your instructor to draft the relevant recognisance. Is that feasible in the current circumstances?
95MS CHAMPION: I am sure it will be, Your Honour, but I will just confirm now.
96HIS HONOUR: Certainly.
97MS CHAMPION: Yes, my instructor says she can email that through to Your Honour's associate.
98HIS HONOUR: Yes. Once it is emailed, it will be printed and Ms Boston, if you would not mind assisting with respect to having it provided to your client and inviting her to sign it if she could.
99MS BOSTON: Yes, Your Honour.
100MS CHAMPION: Your Honour, my instructor has just indicated that might take about 10 minutes.
101HIS HONOUR: Very well. I think I will leave the Bench then, Ms Champion, whilst your instructor does that and when the document is ready and emailed, I will come back on.
102MS CHAMPION: Yes, Your Honour.
103HIS HONOUR: If Ms Pan could remain in the dock please, thank you very much.
104(Short adjournment.)
105Ms Champion, my associate has provided me with a document that has been drafted I think by your instructor. Ms Boston, have you seen that yet?
106MS BOSTON: I have, Your Honour, yes.
107HIS HONOUR: Yes. I should have checked this earlier, Ms Champion, but was there anything arising out of those sentencing remarks that either required clarification or correction?
108MS CHAMPION: No, Your Honour.
109HIS HONOUR: Yes, thanks, Ms Champion. Ms Boston?
110MS BOSTON: No, Your Honour.
111HIS HONOUR: Yes. Well that being so, I will provide this document to you and it is the second page that is particular important but if, with the benefit of Ms Sun's interpretation, Ms Boston, you could provide that to your client and perhaps invite her to sign it if you could.
112MS BOSTON: Yes, Your Honour.
113HIS HONOUR: Thank you.
114MS BOSTON: May I be excused from the Bar table?
115HIS HONOUR: Yes, of course.
116I should indicate, Ms Boston, that my associate needs to witness the signature and she will do that when you are ready and take your time, there is no pressure.
117Ms Boston, your client has had the recognisance and its conditions explained to her in Mandarin?
118MS BOSTON: Yes, Your Honour.
119HIS HONOUR: She has signed the document accordingly.
120MS BOSTON: Yes, Your Honour.
121HIS HONOUR: I will now do so. My associate has witnessed that signature of your client and now the documents have been provided, I will hand those down and copies can be made for you, Ms Boston, and for the Crown and for the prison authorities.
122Can I thank you, Ms Boston, and you, Ms Champion, for the considerable assistance you have both provided in this matter. I wonder if Ms Pan might just be able to remain in the dock for a short time, if you need to confer with her for a moment, Ms Boston.
123MS BOSTON: Thank you, Your Honour, I'm grateful.
‑ ‑ ‑
10
0