The State of Western Australia v Zhuang
[2021] WASCA 56
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ZHUANG [2021] WASCA 56
CORAM: BUSS P
MAZZA JA
VAUGHAN JA
HEARD: 21 DECEMBER 2020
DELIVERED : 1 APRIL 2021
FILE NO/S: CACR 44 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
XIAOLI ZHUANG
Respondent
FILE NO/S: CACR 43 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
ZHENG LI
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 1884 of 2018
Catchwords:
Criminal law - State appeals against sentence - Respondents convicted after trial of four offences - Two counts of possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) - Two counts of dealing with money that was the proceeds of an offence, contrary to s 563A(1)(b) of the Code - Total amount of $4,494,820 cash the subject of the four offences - Manifest inadequacy - Totality - Residual discretion
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 417(1), s 563A(1)(b)
Result:
CACR 44 of 2020:
Leave to appeal granted on grounds 2 and 3
Leave to appeal refused on ground 1
Appeal allowed
Sentencing decision of the primary judge set aside
Respondent resentenced
CACR 43 of 2020:
Leave to appeal granted on grounds 2 and 3
Leave to appeal refused on ground 1
Appeal allowed
Sentencing decision of the primary judge set aside
Respondent resentenced
Category: D
Representation:
CACR 44 of 2020
Counsel:
| Appellant | : | Ms A L Forrester SC |
| Respondent | : | Ms S H King |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid Perth – Criminal Appeals |
CACR 43 of 2020
Counsel:
| Appellant | : | Ms A L Forrester SC |
| Respondent | : | Mr O P Holdenson QC & Dr T R Alexander |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Nevile & Co Lawyers |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Barton v The State of Western Australia [2016] WASCA 196
CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Dias v The State of Western Australia [2017] WASCA 49
Director of Public Prosecutions (Cth) v Masange [2017] VSCA 204; (2017) 325 FLR 363
Director of Public Prosecutions (Cth) v Omar [2019] VSCA 188
Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428
Director of Public Prosecutions (Vic) v Fatho [2019] VSCA 311
Director of Public Prosecutions (Vic) v Holder (a pseudonym) [2014] VSCA 61; (2014) 41 VR 467
Director of Public Prosecutions (Vic) v White [2020] VSCA 37; (2020) 60 VR 292
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
H v The State of Western Australia [2020] WASCA 211
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
Impicciatore v The State of Western Australia [2020] WASCA 33
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Law v The Queen [2019] WASCA 81
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McAlpine v The State of Western Australia [2018] WASCA 195
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Moore v The State of Western Australia [2019] WASCA 35
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Musulin v The State of Western Australia [2020] WASCA 18
My v The State of Western Australia [2018] WASCA 1
Ng v The State of Western Australia [2020] WASCA 70
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Phan v The State of Western Australia [2019] WASCA 163
Pomana v The State of Western Australia [2020] WASCA 204
Pureau v The State of Western Australia [2017] WASCA 115
R v Kassir [2020] NSWCCA 88
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v Tait (1979) 46 FLR 386
Roffey v The State of Western Australia [2007] WASCA 246
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Tan v The State of Western Australia [2019] WASCA 112
The State of Western Australia v Cairns [2006] WASCA 178
The State of Western Australia v Charles [2016] WASCA 108
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Paolucci [2020] WASCA 188
Wong v The State of Western Australia [2019] WASCA 8
YDN v The State of Western Australia [2018] WASCA 62
TABLE OF CONTENTS
The State's case at trial
The defence cases at trial
The jury's verdicts
The State's written submissions to the trial judge in relation to sentencing
Mr Li's written submissions to the trial judge in relation to sentencing
Mr Zhuang's written submissions to the trial judge in relation to sentencing
The charging and sentencing of Ms Huang and Mr Tang
The trial judge's sentencing remarks
The grounds of appeal: the State's submissions
The grounds of appeal: Mr Li's submissions
The grounds of appeal: Mr Zhuang's submissions
The residual discretion: Mr Li's and Mr Zhuang's submissions
The merits of the appeals: general principles
The merits of the appeals: ground 2 in relation to count 7
The merits of the appeals: ground 3
The merits of the appeals: ground 1 in relation to count 4 and ground 2 in relation to count 5
The residual discretion: should it be exercised?
The outcome of the appeals and the resentencing of Mr Li and Mr Zhuang
JUDGMENT OF THE COURT:
These are State appeals against sentence.
The respondent in CACR 44 of 2020 (Mr Zhuang) and the respondent in CACR 43 of 2020 (Mr Li) were charged on indictment with four offences and, in the alternative, with four other offences.
Mr Zhuang and Mr Li pleaded not guilty.
On 28 February 2020, after a trial before Troy DCJ and a jury, both Mr Zhuang and Mr Li were convicted of counts 2, 4, 5 and 7 on the indictment.
Count 2 alleged that on 26 July 2017, at Cloverdale and elsewhere, Mr Zhuang and Mr Li were in possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code). The amount the subject of count 2 was $467,000.
Count 4 alleged that on 3 August 2017, at Rivervale and elsewhere, Mr Zhuang and Mr Li were in possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Code. The amount the subject of count 4 was $998,900.
Count 5 alleged that on 16 August 2017, at Lansdale and elsewhere, Mr Zhuang and Mr Li dealt with money that was the proceeds of an offence, contrary to s 563A(1)(b) of the Code. The amount the subject of count 5 was $1,420,000.
Count 7 alleged that on 22 August 2017, at Perth and elsewhere, Mr Zhuang and Mr Li dealt with money that was the proceeds of an offence, contrary to s 563A(1)(b) of the Code. The amount the subject of count 7 was $1,608,920.
The total amount of cash the subject of counts 2, 4, 5 and 7 was $4,494,820.
The maximum penalty for the offence created by s 417(1) of the Code is 7 years' imprisonment. The maximum penalty for the offence created by s 563A(1)(b) of the Code is 20 years' imprisonment.
On 9 March 2020, the trial judge sentenced Mr Zhuang to individual terms of immediate imprisonment as follows:
(a)count 2: 9 months;
(b)count 4: 12 months;
(c)count 5: 2 years; and
(d)count 7: 2 years.
His Honour ordered that the sentences for counts 4, 5 and 7 be served cumulatively upon each other and that the sentence for count 2 be served concurrently with the accumulated sentences. The total effective sentence was therefore 5 years' immediate imprisonment. The total effective sentence was backdated to 7 February 2020 to take account of time spent in custody on remand. A parole eligibility order was made.
On 9 March 2020, the trial judge sentenced Mr Li to individual terms of immediate imprisonment as follows:
(a)count 2: 9 months;
(b)count 4: 12 months;
(c)count 5: 2 years; and
(d)count 7: 4 years.
His Honour ordered that the sentences for counts 4, 5 and 7 be served cumulatively upon each other and that the sentence for count 2 be served concurrently with the accumulated sentences. The total effective sentence was therefore 7 years' imprisonment. The total effective sentence was backdated to 13 February 2020 to take account of time spent in custody on remand. A parole eligibility order was made.
The trial judge reduced, in the application of the totality principle, the length of the individual sentences he would otherwise have imposed for count 5, but did not (as he should have done) state the extent of the reduction.
In each appeal the State relies upon three grounds of appeal. The grounds are, in substance, identical. Ground 1 alleges in effect that the individual sentence for count 4 was manifestly inadequate. Ground 2 alleges in effect that the individual sentences for counts 5 and 7 were manifestly inadequate. Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle. On 18 March 2020, Buss P referred each application for leave to appeal on each ground of appeal to the hearing of the appeal.
We would grant leave to appeal on grounds 2 and 3 and refuse leave on ground 1 in each of the appeals. The appeals should be allowed. The sentencing decision of his Honour in respect of Mr Zhuang and Mr Li, including the sentences imposed by his Honour, should be set aside. This court should resentence Mr Zhuang and Mr Li. Our reasons are as follows.
The State's case at trial
The State's case at trial was as follows.
In August 2017, the Australian Criminal Intelligence Commission began a covert operation with the object of investigating a large scale money laundering syndicate based in Victoria.
Mr Zhuang and Mr Li, who resided in Victoria, were involved in the syndicate as cash collectors. On four separate occasions during July and August 2017, Mr Zhuang and Mr Li travelled from Victoria to Perth by commercial aircraft for the sole purpose of collecting cash. Another member of the syndicate, Xixuan Huang, made the travel arrangements. Mr Zhuang hired motor vehicles for the purpose of collecting and transporting the cash.
When they were in Perth, Mr Zhuang and Mr Li were involved in clandestine meetings with unidentified 'cash sources'. A member of the syndicate, known as Jackie, organised and facilitated those meetings. Jackie acted as an intermediary between Mr Zhuang and Mr Li, on the one hand, and the cash sources, on the other. Mr Li received instructions from Jackie.
Upon meeting, each of the parties to the meeting confirmed the other's legitimacy through the use of an arranged token, being the serial number on a five or ten dollar note. Mr Li photographed the note. Jackie supplied the photograph to the cash source before the meeting.
During the meetings, Mr Zhuang and Mr Li were involved jointly in receiving substantial amounts of Australian currency. Apart from the fourth collection, the subject of count 7, Mr Zhuang and Mr Li transported the cash to Victoria, either by motor vehicle or commercial aircraft.
Upon arrival in Victoria, Mr Li delivered the cash to Ms Huang and another or others. Ordinarily, Ms Huang then supplied the cash to Xiao Tang, who offset the cash by means of a series of online banking transactions in Yuan to various Chinese bank accounts. The details of the recipient bank accounts were supplied by Jackie to Mr Li, who then forwarded those details to Mr Tang. After the transactions were carried out, Mr Tang took screenshots of the transaction records and gave them to Ms Huang. Ms Huang then sent the screenshots to Mr Li, who acted as the 'go between' to Jackie, to verify the transfers.
On the evening of 22 August 2017, Mr Zhuang and Mr Li were in Perth. They were driving a hired motor vehicle. Representatives of the Australian Criminal Intelligence Commission stopped their vehicle. Shortly afterwards, Mr Zhuang and Mr Li were arrested by police. Their vehicle was searched by police, who located and seized two suitcases containing $1,608,920 cash in total. The cash was packaged in vacuum sealed blocks of $100,000 wrapped with elastic bands.
Police also located and seized three mobile telephones from Mr Zhuang and Mr Li. Analysis of data on the telephones revealed a significant number of communications from a variety of applications, including 'WeChat' and 'WhatsApp', in the form of text, image and audio files. Almost all of the communications were in Mandarin. The text and audio in Mandarin were translated into English.
Between 19 and 25 May 2017, Mr Li and Jackie exchanged a series of text and audio communications. During those communications, Mr Li and Jackie negotiated the terms of a business arrangement for the collection of money. Jackie asked Mr Li to act as his general agent in Australia.
The syndicate was structured so as to provide anonymity to those higher in the chain of command and to distance the origin of the cash from its intended destination. The collection of the cash was clandestine and protected by the use of tokens and an intermediary to facilitate the handover.
The defence cases at trial
The defence cases at trial were as follows.
Both Mr Zhuang and Mr Li asserted at the trial that they did not know or suspect that the cash was the proceeds of an offence.
Mr Zhuang's case was to the effect that he was merely assisting Mr Li. Mr Zhuang contended that he had no reason to suspect that the cash might have been unlawfully obtained and, further or alternatively, that he did not know that the cash was the proceeds of an offence.
Mr Li's case was to the effect that he was operating an 'alternative remittance service' without a licence. Mr Li knew that he required a licence. However, he believed that the source of the cash was lawful. His reason for operating the alternative remittance service was to circumvent Chinese law, which prevented Chinese nationals from transferring, without approval, more than the equivalent of 50,000 United States dollars from China. The alternative remittance service was a means by which his Chinese clients could have money available to them in Australia. Mr Li asserted that there was no money laundering syndicate. He was engaged in providing a financial service for known clients.
The jury's verdicts
The jury returned verdicts of not guilty on counts 1 and 3 (offences of property laundering), but returned verdicts of guilty on the alternative counts, namely counts 2 and 4, of unlawful possession of the cash in question that was reasonably suspected to have been unlawfully obtained.
The jury returned verdicts of guilty in respect of the offences of property laundering charged in counts 5 and count 7.
The State's written submissions to the trial judge in relation to sentencing
On 4 March 2020, the State filed a written outline of submissions to the trial judge in relation to sentencing.
The State's written outline contended, relevantly:
(a)The jury, by their verdicts on counts 5 and 7, were satisfied that the cash the subject of those counts was, in fact, proceeds of an offence or offences. Each of Mr Zhuang and Mr Li asserted, in his evidence at the trial, that he did not know or suspect that the cash was the proceeds of an offence or offences. The jury, by their verdicts on counts 5 and 7, did not accept, on the balance of probabilities, that evidence.
(b)The seriousness of the offending by Mr Zhuang and Mr Li was apparent from the following:
(i)the substantial amounts of money involved;
(ii)the repetition and duration of the offending;
(iii)the active and significant role performed by Mr Zhuang and Mr Li (in particular, by Mr Li who was in charge of transporting the money and was entrusted to take possession of it for that purpose); and
(iv)the reasonably sophisticated operation in which Mr Zhuang and Mr Li were engaged, as illustrated by the use of tokens, the involvement of an international controller and the interstate transportation of money.
(c)Neither Mr Zhuang nor Mr Li had a prior criminal record.
(d)At the time of the offending, Mr Zhuang was aged 33 and Mr Li was aged 29.
(e)Mr Zhuang and Mr Li were joint principal offenders in that each received and, further or alternatively, each had possession of, all or part of the cash the subject of the counts on which they were convicted.
(f)The criminality of Mr Li's offending was objectively more serious than the criminality of Mr Zhuang's offending.
(g)Although Mr Zhuang's role was important, he was subordinate to Mr Li in that:
(i)Mr Li recruited Mr Zhuang as an assistant;
(ii)at all material times, Mr Zhuang acted at Mr Li's direction;
(iii)Mr Li was primarily responsible for collecting the cash;
(iv)Mr Li communicated directly with the other participants in the criminal enterprise; and
(v)Mr Zhuang acted in the hope of receiving only a limited reward.
(h)The parity principle required that Mr Zhuang receive a lower sentence than Mr Li.
(i)There was no established customary sentencing pattern for offences against s 563A(1)(b) of the Code. The only cases dealing with appeals against sentence for that offence were Wong v The State of Western Australia;[1] Tan v The State of Western Australia;[2] and Phan v The State of Western Australia.[3]
(j)Tan was the most comparable case. However, having regard to various factors which the prosecutor specified, the offending in Tan was less serious than the offending of Mr Zhuang and Mr Li.
(k)The only appropriate sentencing disposition for each of Mr Zhuang and Mr Li was immediate imprisonment.
[1] Wong v The State of Western Australia [2019] WASCA 8.
[2] Tan v The State of Western Australia [2019] WASCA 112.
[3] Phan v The State of Western Australia [2019] WASCA 163.
Mr Li's written submissions to the trial judge in relation to sentencing
After the State filed its written outline on 4 March 2020 and before the sentencing hearing on 9 March 2020, Mr Li's lawyers filed a written outline of submissions and a further written outline of submissions to the trial judge in relation to sentencing.
Mr Li's written outlines contended, relevantly:
(a)The jury's verdicts in relation to counts 2 and 4 revealed that Mr Li was in possession of the money; that it was reasonable to suspect (objectively) that the money was unlawfully obtained; and that there were reasonable grounds for Mr Li to suspect that the money was unlawfully obtained (objective awareness of a person in the position of Mr Li).
(b)The jury's verdicts on counts 5 and 7 revealed that Mr Li dealt with the money; that the money was the proceeds of an offence; and that Mr Li could not satisfy the jury on balance that he did not know, believe or suspect, and there were no reasonable grounds for him to suspect, that the money was the proceeds of an offence.
(c)The jury's verdicts on counts 5 and 7 were no warrant to find that Mr Li knew that he was dealing with the proceeds of crime, or that his version of events was untenable. Rather, the jury's verdicts were a finding that Mr Li should have known better.
(d)The amount of money involved in the offending was substantial and an aggravating factor.
(e)The offending occurred on four separate occasions over about four weeks. The offending could not be said to be 'one-off'. Indeed, it was an illegitimate part of an ongoing legitimate business.
(f)There was some planning and organisation evident at trial in the circumstances in which the offending took place. However, that factor should be neutral, rather than aggravating, because the planning (collection of cash, use of tokens, driving to Victoria rather than flying) were incidents of dealing with cash, rather than indicia of criminality.
(g)Although he did not plead guilty, Mr Li accepted the jury's verdicts and expressed remorse and contrition for his offending.
(h)Mr Li facilitated the efficient conduct of the trial.
(i)Mr Li has no relatives in Western Australia. He will in effect be isolated from any contact with his relatives during his imprisonment.
(j)There was evidence as to Mr Li's good character beyond the mere fact that he had no prior convictions.
(k)General deterrence was an important sentencing objective in cases of this kind. However, specific deterrence should be given less weight, in the present case, because of Mr Li's good antecedents. Mr Li's prospects of rehabilitation are 'very good to excellent'. He has formal education, training, qualifications and experience, and a supportive personal network. Community protection was of little practical significance.
(l)Wong and Tan were relevant prior decisions. However, 'a small number of cases - especially when the number is one or two - are not generally useful to establish current sentencing practices'. Further, '[a]t best, a small number of cases can establish sentencing principles applicable to offence types'.
(m)The offences committed by Mr Li required sentences of immediate imprisonment. However, the length of the terms of imprisonment should be attenuated by reference to the circumstances of Mr Li's offending, his personal circumstances, and the parity principle as between Mr Li, on the one hand, and Ms Huang and Mr Tang, on the other.
Mr Zhuang's written submissions to the trial judge in relation to sentencing
After the State filed its written submissions on 4 March 2020 and before the sentencing hearing on 9 March 2020, Mr Zhuang's lawyers filed a written outline of submissions to the trial judge in relation to sentencing.
It is unnecessary to summarise the contentions in Mr Zhuang's written outline, apart from noting the following:
(a)Mr Zhuang had no prior criminal record. There were no pending criminal charges against him. He was of good character.
(b)Mr Zhuang is an unsophisticated man. His interviews with police and his evidence at the trial indicated that he was impressionable, immature and lacked consequential thinking.
(c)Since 2008 he had worked in a bar.
(d)Since 2015 he had also worked with his mother in the Ming Pavilion.
(e)His family, including his mother, partner and children, live in Victoria. Recently, he became a father to a young son.
(f)A report dated 6 March 2020, prepared by Dr Jeffrey Cummins, a consulting clinical and forensic psychologist, in relation to Mr Zhuang's partner and young child indicated that his partner will suffer the burden of social isolation and the absence of support while Mr Zhuang is in custody. His partner does not appear to have the financial means to support herself and her child. Mr Zhuang's imprisonment will be burdensome for him in that he will be separated from his partner and young child.
The charging and sentencing of Ms Huang and Mr Tang
Each of Ms Huang and Mr Tang were charged in Victoria with two counts of being an unregistered person providing a registrable remittance network service, contrary to s 74(1) of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (Cth). The maximum penalty for each of those offences was 2 years' imprisonment or a fine of 500 penalty units. Ms Huang and Mr Tang pleaded guilty. Ms Huang was sentenced in the County Court of Victoria to a fine of $6,000 on each count. Mr Tang was sentenced in the County Court of Victoria to a fine of $7,000 on each count. The prosecutor submitted in each case that a significant financial penalty was, in all the circumstances, within the appropriate sentencing range.
The trial judge's sentencing remarks
The facts and circumstances of the offending, as found by the trial judge, were as follows.
The four offences of which Mr Zhuang and Mr Li were convicted arose from four discrete trips from Melbourne to Perth made by Mr Zhuang and Mr Li in July and August 2017 to collect large sums of cash.
Count 2, which was committed on 26 July 2017, concerned $467,000 cash.
Count 4 was committed on 3 August 2017 and concerned $998,900 cash.
Count 5 was committed on 16 August 2017 and concerned $1,420,000 cash.
Count 7 was committed on 22 August 2017 and concerned $1,608,920 cash.
The total amount of cash involved in the offences was $4,494,820.
On 22 August 2017, Mr Zhuang and Mr Li were arrested by the police.
His Honour was satisfied beyond reasonable doubt that Mr Zhuang and Mr Li believed the money the subject of count 5 and count 7 to be unlawfully obtained (ts 1510).
As to count 2 and count 4, the jury was necessarily satisfied beyond reasonable doubt that the money the subject of those counts was objectively reasonably suspected of being unlawfully obtained and that each of Mr Zhuang and Mr Li failed to prove that he had no reasonable grounds for suspecting that the money was unlawfully obtained (ts 1511).
As to counts 5 and 7, the jury was necessarily satisfied beyond reasonable doubt that Mr Zhuang and Mr Li dealt with the money the subject of those counts in Western Australia and that the money was the proceeds of an offence. Each of Mr Zhuang and Mr Li failed to prove 'at the very least' that he did not have reasonable grounds to believe or suspect that the money was the proceeds of an offence (ts 1511).
His Honour said that Mr Zhuang and Mr Li's convictions were, in his view, 'utterly inevitable'. His Honour was satisfied that 'at some passages of [their] evidence each of [Mr Zhuang and Mr Li] knew that what [he was] saying in evidence was complete nonsense but having chosen the course of contesting the matter [he was] obliged to hold the line' (ts 1512).
The money the subject of count 5 and count 7 was derived by criminals and/or criminal organisations from criminal activities on a very significant scale. The role of Mr Zhuang and Mr Li was to launder that money (ts 1514).
His Honour was satisfied beyond reasonable doubt that each of Mr Zhuang and Mr Li believed that the money was the profits of criminal enterprises in Australia. Their role was to assist in moving the money to Victoria (ts 1514).
Mr Zhuang and Mr Li were principal offenders, but Mr Zhuang was subordinate to Mr Li (ts 1515).
Although neither Mr Zhuang nor Mr Li was at 'the top of any particular syndicate in terms of the persons who were to benefit from the repatriation of [the] profits' of the criminal enterprise, each of Mr Zhuang and Mr Li would have been paid some amount of money for the work that he did. His Honour could not determine how much money they would be paid, but his Honour was satisfied that the remuneration would have been greater for Mr Li than for Mr Zhuang (ts 1514).
The personal circumstances of Mr Zhuang and Mr Li had been set out in the written submissions (ts 1513).
Mr Zhuang and Mr Li did not have the mitigation of youth and neither of them suffered from any causal mental illness (ts 1513).
His Honour accepted that each of Mr Zhuang and Mr Li was a person of previous good character and his Honour had regard to that fact as a matter of mitigation. However, his Honour added that the good antecedents of Mr Zhuang and Mr Li and matters personal to them, although not irrelevant, carried less weight having regard to the need for personal and general deterrence with the kind of offences they had committed (ts 1513).
His Honour was not satisfied that Mr Zhuang or Mr Li had established, on the balance of probabilities, that he was remorseful for his offending (ts 1513).
However, his Honour accepted that the risk of Mr Zhuang and Mr Li reoffending in a similar manner was low and that their prospects of rehabilitation were good (ts 1513).
His Honour commented that Mr Zhuang and Mr Li will serve terms of immediate imprisonment in Western Australia and that their families reside in Victoria. However, the deliberate decision of Mr Zhuang and Mr Li to offend repeatedly in Western Australia meant that their separation from their families did not afford them any mitigation (ts 1513 ‑ 1514).
His Honour noted that he had seen both Mr Zhuang and Mr Li cross‑examined at the trial. His Honour did not accept that Mr Zhuang was as unsophisticated as alleged in the written submissions filed on Mr Zhuang's behalf. Mr Zhuang dealt deftly with the cross‑examination over a number of days (ts 1514).
His Honour considered that the previous good character of Mr Zhuang and Mr Li was useful in carrying out the offending. They were not persons 'who would be particularly on the radar' (ts 1514).
Mr Zhuang and Mr Li were trusted with almost $4,500,000 cash by the people who would benefit from the transfer of that money from Western Australia to Victoria (ts 1514).
His Honour said:
(a)the planning and organisation involved in the offending was an 'inevitable feature of the offending proved against [Mr Zhuang and Mr Li] as opposed to an additional aggravating factor' (ts 1515);
(b)insofar as Mr Zhuang and Mr Li cooperated in the course of the trial, his Honour was not satisfied that this was a mitigating factor (ts 1515);
(c)it is to be expected that 'in prosecutions of this type often little or nothing will be known as to the offence or offences from which the money is derived' (ts 1517);
(d)the present case involved a very serious example of property laundering (ts 1517);
(e)counts 5 and 7 should be viewed in the context of counts 2 and 4 (ts 1517);
(f)the offending by Mr Zhuang and Mr Li could not be regarded as a result of naivety or an isolated lapse of judgment (ts 1517);
(g)the offending on all counts, including count 2 and count 4, was serious and involved a very significant amount of cash (ts 1517); and
(h)there is no established sentencing pattern for the offences in question (ts 1517).
His Honour referred to observations by this court in Tan and Pham.
His Honour said that he was sentencing Mr Zhuang and Mr Li for four offences and the totality principle was therefore engaged. His Honour was of the view that the so-called one transaction rule did not apply. Substantial accumulation of the individual sentences was required. However, without apparently distinguishing between Mr Zhuang and Mr Li, his Honour said that he would reduce the length of the individual sentences he would otherwise have imposed for count 5 to reflect the totality principle. His Honour did not state (as he should have done) the extent to which he had reduced the length of the individual sentences he would otherwise have imposed for count 5 (ts 1517).
The grounds of appeal: the State's submissions
As to ground 1, counsel for the State submitted that the sentence imposed on each of Mr Zhuang and Mr Li for count 4, namely 12 months' immediate imprisonment, was manifestly inadequate.
Counsel contended that there were no directly comparable cases that had been decided by this court in relation to sentencing for offences against s 417(1) of the Code.
Nevertheless, counsel submitted that some guidance can be discerned from Ng v The State of Western Australia;[4] Musulin v The State of Western Australia;[5] Law v The Queen;[6] Gaskell v The State of Western Australia;[7] My v The State of Western Australia;[8] Dias v The State of Western Australia;[9] Barton v The State of Western Australia[10] and The State of Western Australia v Charles.[11] Those cases included offences against s 417(1) and also other offences. The cases were concerned primarily with the application of the totality principle. All of the cases involved pleas of guilty by the offenders. Also, all of the cases involved significantly smaller amounts of unlawfully obtained cash, apart from Gaskell, where the offender possessed unlawfully obtained cash in the amount of $569,000.
[4] Ng v The State of Western Australia [2020] WASCA 70.
[5] Musulin v The State of Western Australia [2020] WASCA 18.
[6] Law v The Queen [2019] WASCA 81.
[7] Gaskell v The State of Western Australia [2018] WASCA 8.
[8] My v The State of Western Australia [2018] WASCA 1.
[9] Dias v The State of Western Australia [2017] WASCA 49.
[10] Barton v The State of Western Australia [2016] WASCA 196.
[11] The State of Western Australia v Charles [2016] WASCA 108.
According to counsel, the amount of money involved in an offence against s 417(1) of the Code is not the only factor in arriving at the appropriate sentence to be imposed, but the amount of money is an important factor and 'it is possible to discern a broad correlation between the amounts of cash involved in an offence and the severity or otherwise of the sentence ultimately imposed'.
Counsel argued that, when measured against the yardstick of the maximum penalty of 7 years' imprisonment, the sentence imposed on each of Mr Zhuang and Mr Li for count 4 (12 months' immediate imprisonment) was unreasonable or plainly unjust having regard to the criminality involved in the offence and the absence of any 'real' mitigation. Counsel noted that the sentence of 12 months' immediate imprisonment had not been reduced in the application of the totality principle. There was nothing in the facts and circumstances of the offence or in Mr Zhuang's or Mr Li's personal circumstances to justify the leniency of the sentence.
As to ground 2, counsel for the State submitted that the sentence imposed on each of Mr Zhuang and Mr Li for count 5 (being 2 years' immediate imprisonment) and the sentence imposed on each of them for count 7 (being 2 years' immediate imprisonment in the case of Mr Zhuang and 4 years' immediate imprisonment in the case of Mr Li) were manifestly inadequate.
Counsel submitted that the offending in relation to each of count 5 and count 7 was undoubtedly serious. Each of Mr Zhuang and Mr Li had 'very little' in the way of mitigation. Although each of them had favourable antecedents, that was of limited significance having regard to the nature of the offending and the importance of personal and general deterrence. However, counsel acknowledged that the trial judge accepted that each of Mr Zhuang and Mr Li posed a low risk of reoffending and had good prospects of rehabilitation.
Each of Mr Zhuang and Mr Li was convicted after trial and, consequently, did not have the mitigation that pleas of guilty would have brought. Neither of them was youthful or inexperienced for sentencing purposes. Mr Zhuang was aged 33 at the time of the offending and was 36 when sentenced. Mr Li was 29 at the time of the offending and was 32 when sentenced. There was no mitigation as a result of cooperation or remorse. His Honour expressly rejected a defence submission to the effect that they were remorseful.
Counsel contended that no customary established sentencing pattern for offences against s 563A(1)(b) of the Code has yet emerged. However, a number of principles to be applied in assessing the relative seriousness of an offence against s 563A(1)(b) were identified by this court in Tan [49] ‑ [50]. Counsel referred to the facts and circumstances and the sentencing outcomes in Tan, Phan and Wong.
Counsel argued that, when measured against the yardstick of the maximum penalty of 20 years' imprisonment, the sentence imposed on each of Mr Zhuang and Mr Li for count 5 and the sentence imposed on each of them for count 7 was unreasonable or plainly unjust having regard to the serious nature of the offending, the limited mitigation and the importance of personal and general deterrence.
As to ground 3, counsel for the State submitted that the total effective sentence of 5 years' immediate imprisonment imposed on Mr Zhuang and the total effective sentence of 7 years' imprisonment imposed on Mr Li infringed the first limb of the totality principle.
Counsel relied upon the submissions she had made in relation to counts 4, 5 and 7 in the context of grounds 1 and 2.
Counsel submitted that the gravity of the overall offending by each of Mr Zhuang and Mr Li had no parallel in any previously decided cases in this state.
Counsel emphasised that Mr Zhuang and Mr Li were entrusted with a total of almost $4,500,000 cash and their role in the syndicate was to take possession of and transfer that cash from Western Australia to Victoria. The trial judge found in relation to count 5 and count 7 that Mr Zhuang and Mr Li believed that the cash in question was the profits of a criminal enterprise.
According to counsel, the total effective sentence imposed on each of Mr Zhuang and Mr Li was not commensurate with the overall criminality of his offending conduct. There was nothing exceptional in the offending, viewed as a whole, or in the personal circumstances of Mr Zhuang or Mr Li, to justify leniency.
Counsel argued that the total effective sentence imposed on each of Mr Zhuang and Mr Li did not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all of the facts and circumstances of the case including his personal circumstances. Each total effective sentence was unreasonable or plainly unjust.
The grounds of appeal: Mr Li's submissions
As to ground 1, counsel for Mr Li asserted that the State contended in essence that manifest inadequacy in relation to the sentence imposed on Mr Li for count 4 was made out because there is 'a broad correlation between the amounts of cash involved in an offence and the severity or otherwise of the sentence ultimately imposed'.
Counsel submitted that the State's contention unduly emphasised the importance of a single factor amongst the matrix of factors which inform the appropriate sentence in each case. The State's contention reduced the broad discretion conferred on sentencing judges to a mechanistic application of 'a correlative numerical relationship between amount and severity of punishment'.
According to counsel, the simplicity of the State's contention was 'superficially attractive' but suffered from three limitations.
The first alleged limitation was that, at highest, the cases only provide 'some guidance' but do not create precedents to be followed. The second alleged limitation was that as ground 1 challenges the appropriateness of a sentence on an individual count forming part of a total sentence (as does ground 2), it is inapt to consider the sentence in isolation. The third alleged limitation is that, in any event, 'even if the numerical correlative contended for by [the State] does exist and could be applied', the mere fact that the sentence is not within the range of sentences imposed for similar offences does not necessarily establish that there was an error in the exercise of the sentencing discretion. The pattern of sentences imposed in previous cases does not define the limits of the sentencing discretion.
As to ground 2, counsel for Mr Li again asserted that the State complains in relation to ground 2 of the absence of 'a correlative numerical relationship between amount and sentence severity'. Counsel submitted that the implication from the State's complaint appears to be that 'a linear relationship should and must exist - the absence of which betokens implied error'. Counsel repeated his submissions in relation to ground 1 in response to that issue.
Counsel also argued that it was apparent from the trial judge's sentencing remarks that the sentence imposed on Mr Li for count 5 had been reduced to accommodate the totality principle. Accordingly, the State's complaint about the inadequacy of the sentence for count 5 can only properly be considered in relation to the total sentence. There is no established sentencing pattern for offences against s 563A(1)(b) of the Code. Accordingly, the State's complaint in respect of the sentences for count 5 and count 7 is not, and cannot be, supported by reference to any comparable cases or established sentencing range.
As to ground 3, counsel for Mr Li asserted that the State had, in essence, identified two matters in support of its case that the total effective sentence infringed the first limb of the totality principle. The first matter was that the overall offending involved an amount of nearly $4,500,000. The second matter was that the trial judge found that Mr Li believed that the amount the subject of each of count 5 and count 7 was the proceeds of crime.
Counsel submitted that the State's contention in relation to ground 3 relied heavily upon the total amount involved in the overall offending (nearly $4,500,000) as a singular factor in determining an appropriate sentence.
Counsel accepted that the mitigating factors relied upon by defence counsel for Mr Li and adverted to by the trial judge were limited in number. However, there was a paucity of aggravating factors, apart from his Honour's finding in relation to Mr Li's belief.
Counsel also accepted that the 'laundered amount' in the present case was 'undoubtedly significant'. General deterrence required that Mr Li be punished. On the other hand, 'two powerful sentencing objectives' were in Mr Li's favour, namely his good prospects of rehabilitation and 'the absence of any real requirement for specific deterrence'. Further, the sentencing objectives of denunciation and community protection played no role.
According to counsel, the total effective sentence of 7 years' imprisonment imposed on Mr Li bears a proportionate relationship to the overall criminality involved in Mr Li's offending, viewed in its entirety, and after having regard to all relevant facts and circumstances and all relevant sentencing factors. It is not reasonably arguable that a proper basis exists for inferring error from the sentencing outcome.
The grounds of appeal: Mr Zhuang's submissions
Counsel for Mr Zhuang's submissions on grounds 1 and 2 reproduced in substance the submissions of counsel for Mr Li on those grounds.
As to ground 3, counsel asserted that the State had conceded that there were no truly comparable cases. Counsel submitted that, in light of that concession, the State had unduly emphasised the sentencing factors of punishment and general deterrence.
Counsel argued that the State's position erroneously implied that:
(a)there is 'something exceptionally lenient', in all the circumstances, about Mr Zhuang's total effective sentence of 5 years' imprisonment;
(b)there must be 'something exceptional' for his Honour to have 'arrived at this sentence'; and
(c)there is 'a mathematical apportionment for each sentencing factor, rather than an instinctive synthesis [exercise]' by his Honour.
Counsel asserted that the State had emphasised that 'there ought to be greater emphasis on punishment' and that there was a need for 'substantial general and specific deterrence'. However, according to counsel, there was nothing which mandated that 'these types of offences require greater emphasis on general deterrence above any other type of offence'. Counsel argued that Mr Zhuang, who had no prior criminal history and in respect of whom there was no evidence to suggest that he was at risk of reoffending, did not require 'substantial specific deterrence'.
The residual discretion: Mr Li's and Mr Zhuang's submissions
Counsel for Mr Li and counsel for Mr Zhuang emphasised the exceptional nature and specific purpose of a State appeal against sentence.
Counsel referred to the statement by French CJ, Crennan and Kiefel JJ in Green v The Queen[12] that the purpose of a State appeal against sentence 'does not extend to the general correction of errors made by sentencing judges' and that a State appeal 'provides a framework within which to assess the significance of factors relevant to the exercise of the discretion'.
[12] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [36].
It was submitted that, even if the trial judge in the present case made an appellable error, this court 'should not interfere with the [sentences] imposed [by his Honour]'.
In particular, counsel for Mr Li submitted:
(a)The arguments and case advanced by the State on appeal 'were not even faintly pressed' by the prosecutor at the sentencing hearing before the trial judge.
(b)To the extent that the State relied upon written submissions before his Honour, 'no assistance was provided in that document with respect to counts 2 and 4, and marginal assistance [only] with respect to counts 5 and 7'.
(c)At the sentencing hearing, 'no authorities were the subject of submission by the prosecutor to [his Honour]; no meaningful submissions regarding an appropriate sentence were made; and, no table of comparable cases was provided'. In his written submissions, defence counsel for Mr Li called for an 'attenuated' length of imprisonment. The prosecutor did not make any oral submissions before his Honour challenging that submission or any other sentencing submission made on Mr Li's behalf. The prosecutor's position with respect to the sentencing disposition only appeared in the State's written submissions and was that 'immediate imprisonment is the only appropriate disposition'.
(d)Now, on appeal, by reference to numerous cases and extensive argument regarding sentencing standards for offences against s 417(1) and s 563A(1)(b) of the Code, the State seeks to advance a position that was not put at the sentencing hearing. The prosecutor at the sentencing hearing 'was duty bound to provide both meaningful assistance with respect to sentence and to avoid the risk of the court falling into appellable error'. If any of Mr Li's individual sentences was manifestly inadequate or if his total effective sentence infringed the first limb of the totality principle, as contended for by the State, then neither of those duties was fulfilled. Counsel referred to Director of Public Prosecutions (Cth) v Masange[13] and R v Tait.[14]
(e)The failure of the prosecutor to advance submissions at the sentencing hearing consistent with those now being advanced on appeal is 'a relevant and compelling reason for this [court] to exercise its discretion to decline to interfere with [Mr Li's sentencing]', even if any of his individual sentences is manifestly inadequate or his total effective sentence infringes the first limb of the totality principle.
(f)In any event, the purpose of the State appeals could be achieved by this court declaring any erroneously lenient sentences to be inadequate, without correcting them.
[13] Director of Public Prosecutions (Cth) v Masange [2017] VSCA 204; (2017) 325 FLR 363.
[14] R v Tait (1979) 46 FLR 386, 388 ‑ 390.
Counsel for Mr Zhuang adopted, in substance, the submissions advanced on behalf of Mr Li which we have summarised at [103] above.
The merits of the appeals: general principles
A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[15] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia[16] and Gaskell v The State of Western Australia.[17]
[15] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[16] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[17] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
As Gleeson CJ, Gummow, Hayne and Callinan JJ observed in Markarian v The Queen,[18] the maximum penalty for an offence 'provide[s], taken and balanced with all of the other relevant factors, a yardstick'. See also Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym).[19] Attention should be directed to where the facts and circumstances of the particular offence and the particular offender lie on the spectrum that extends from the least serious instances of the offence in question to the worst category, being those offences so grave as to warrant the maximum penalty. See Ibbs v The Queen[20] and R v Kilic.[21]
[18] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31].
[19] Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [10] (Kiefel CJ, Bell & Keane JJ).
[20] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452 (Mason CJ, Wilson, Brennan, Toohey & Gaudron JJ).
[21] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19] (Bell, Gageler, Keane, Nettle & Gordon JJ).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an intermediate appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Intermediate appellate courts have regard to comparable cases to ensure consistency in the application of relevant legal principles and to ensure broad consistency in outcome. In the case of offences against the law of Western Australia, this is done through the work of this court and its predecessor, the Court of Criminal Appeal, and not by reference to sentences passed at first instance. See Hili v The Queen;[22] Impicciatore v The State of Western Australia[23] and Pomana v The State of Western Australia.[24]
[22] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[23] Impicciatore v The State of Western Australia [2020] WASCA 33 [279] (Buss P & Mazza JA).
[24] Pomana v The State of Western Australia [2020] WASCA 204 [67] (Buss P, Mitchell & Vaughan JJA).
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence. See Munda v The State of Western Australia;[25] The State of Western Australia v Doyle;[26] McAlpine v The State of Western Australia[27] and The State of Western Australia v Paolucci.[28]
[25] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[26] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[27] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
[28] The State of Western Australia v Paolucci [2020] WASCA 188 [53] (Buss P, Mazza & Beech JJA).
Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia[29] and Paolucci [54].
[29] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[30]
[30] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA). Part 2 div 1 comprises s 6 to s 9AA.
It is well established that:
(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen[31] and Nguyen v The Queen.[32]
[31] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[32] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently, or by reducing the otherwise appropriate length of one or more of the individual sentences. See Mill v The Queen;[33] Johnson v The Queen[34] and Nguyen [64]. Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate.
[33] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).
[34] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).
If a sentencing judge decides, in the application of the totality principle, to achieve an appropriate total effective sentence by lowering one or more of the individual sentences below what would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks. See Paolucci [60].
The merits of the appeals: ground 2 in relation to count 7
In the present case, it is convenient, first, to consider the State's challenge in ground 2 of the appeals to the individual sentences imposed for count 7.
As we have mentioned, the trial judge sentenced Mr Zhuang to 2 years' immediate imprisonment on count 7 and Mr Li to 4 years' immediate imprisonment on count 7.
Also, as we have mentioned, the maximum penalty for the offence created by s 563A(1)(b) of the Code is 20 years' imprisonment. Count 7 related to an offence against that provision.
This court has decided appeals against sentence involving offending against s 563A(1)(b) of the Code in four cases, namely Wong, Tan, Pham and H v The State of Western Australia.[35] It is appropriate to review those decisions. H was decided after the trial judge sentenced Mr Zhuang and Mr Li.
[35] H v The State of Western Australia [2020] WASCA 211.
In Wong, the appellants, Chiu Wong and his brother Chuen Wong, were convicted on their pleas of guilty of various offences.
Count 1 alleged that, on 29 January 2015, Chiu Wong disposed of, or dealt with, the sum of $100,000 in money that was the proceeds of an offence, namely selling or supplying a prohibited drug to another, contrary to s 563A(1)(b) of the Code. Count 2 alleged that, on 12 February 2015, Chiu Wong disposed of, or dealt with, the sum of $100,000 in money that was the proceeds of an offence, namely selling or supplying a prohibited drug to another, contrary to s 563A(1)(b) of the Code. Count 3 alleged that, on 20 February 2015, Chiu Wong had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act). Count 4 alleged that, on 20 February 2015, Chiu Wong and Chuen Wong had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act. Count 5 alleged that, on 20 February 2015, Chiu Wong and Chuen Wong were in possession of thing capable of being stolen, namely a sum of money in the amount of $400,938.50, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Code.
Chiu Wong was sentenced to 6 months' imprisonment (reduced from 12 months' imprisonment for totality) on count 1; 12 months' imprisonment on count 2; 14 years' imprisonment on count 3; 2 years' imprisonment (reduced from 16 years' imprisonment for totality) on count 4; and 2 years' imprisonment on count 5. The sentencing judge ordered that the individual sentences for counts 1, 3 and 4 be served cumulatively and that the individual sentences for the other counts be served concurrently with each other and concurrently with the individual sentence for count 3. The total effective sentence imposed on Chiu Wong at first instance was therefore 16 years 6 months' imprisonment.
It is unnecessary to refer to the sentences imposed on Chuen Wong or to the facts and circumstances of his offending.
The facts and circumstances of Chiu Wong's offending on counts 1 and 2, as summarised in this court's reasons, were as follows:
Chiu was born in Hong Kong in July 1991. At the time he was sentenced, he was 25 years of age. Chuen was born in July 1990, also in Hong Kong. At the time he was sentenced, he was 26 years of age. Neither appellant has a prior criminal record.
Chiu was recruited by a drug dealer in Hong Kong, and acted at his direction for financial reward. He came to Australia before his brother. Chiu agreed to undertake what his Honour described as 'different types of errands' on behalf of, and at the instruction of, his boss in Hong Kong. Prior to his arrest, Chiu had been in Australia acting on behalf of his boss for about eight months. In return, his rent was paid and he was provided with a food allowance. In addition, he was paid a sum of between $2,000 and $5,000 for each errand he was directed to perform, but he also expected to be paid a large (but unspecified) sum of money upon his return to Hong Kong. His Honour found that Chiu was aware that his conduct was illegal. He claimed to have been told by his boss that if he was caught, he faced 2 years in jail and then extradition.
…
As to count 1, Chiu was instructed by his boss to pay a sum of money to a person known as Raj. Chiu's boss provided him with Raj's telephone number. Chiu contacted Raj, and they arranged to meet at the car park of a fast food outlet.
On 29 January 2015, Chiu met with Raj as arranged. Chiu took with him a bag containing $100,000 in cash. He approached a car in which two people sat. He identified himself by providing a $5 Australian bank note with a particular serial number on it. The person to whom Chiu was to give the bag identified himself using a $2 Singaporean bank note with a particular serial number on it. Chiu's boss had provided him with the serial number. After matching the serial numbers, Chiu handed over the bag.
Chiu was arrested by police on 20 February 2015. He was interviewed by detectives later that day, and made full admissions to this and the other charged offences. Chiu explained that he was instructed by his boss to meet with several persons on different dates and in various locations in Perth in order to perform a number of different tasks. They included handing over money; reconciling cash and accounts for drug transactions; providing cash for other teams as living expenses; and collecting money for drug purchases. In relation to count 1, Chiu said that he thought the $100,000 would purchase half a kilogram of drugs.
As to count 2, on 12 February 2015, Chiu walked from the premises in which he was then living at 67 Coulthard Crescent, Canning Vale, to a nearby Caltex service station on Nicholson Road, where he was picked up and driven away in a vehicle. The vehicle then drove to a neighbouring street. There, after a $5 Australian bank note was used to confirm his identity, Chiu handed to a male, in the car, a bag containing $100,000 in cash. Chiu then left the vehicle and walked home.
In the interview on 20 February 2015, Chiu said that he had been instructed by his boss to pass on the money [8] ‑ [9], [12] ‑ [16]. (footnotes omitted)
The sentencing judge that found that Chiu Wong was 'towards the top end of the chain of distribution' of the drug hierarchy in question [33]. His Honour found that, based on the amount of money and the quantity of drugs involved in the offending, Chiu Wong was 'a trusted part of the operation' [34]. Chiu Wong's offending was 'motivated purely by the desire for financial gain' [34]. He had been acting in the role he played in the drug distribution network for about eight months before his arrest [34]. The offences could not be said to be 'a one-off aberration' [34].
The sentencing judge took into account a number of mitigating factors. First, Chui Wong's pleas of guilty, which attracted a 20% discount for each individual sentence under s 9AA of the Sentencing Act. Secondly, his youth. Thirdly, his prior good record. Fourthly, imprisonment would be more difficult for Chiu Wong as a result of his English language difficulties and because his family resided in Hong Kong.
On appeal, counsel for Chiu Wong alleged that the individual sentence for count 3 was manifestly excessive and that the total effective sentence infringed both limbs of the totality principle. This court found that the sentence of 14 years' imprisonment for count 3 was manifestly excessive. On that basis, it was necessary for this court to re-exercise the sentencing discretion in relation to all of the counts and for this court to come to its own view as to the appropriate total effective sentence. It was therefore unnecessary for this court to decide whether the total effective sentence imposed by the sentencing judge infringed the totality principle.
This court resentenced Chiu Wong as follows:
(a)count 1: 12 months' imprisonment;
(b)count 2: 12 months' imprisonment;
(c)count 3: 11 years' imprisonment;
(d)count 4: 12 years' imprisonment; and
(e)count 5: 2 years' imprisonment.
The new sentences for counts 1, 4 and 5 were ordered to be served cumulatively upon each other and the new sentences for counts 2 and 3 were ordered to be served concurrently with each other and concurrently with the new sentence for count 4. The new total effective sentence was therefore 15 years' imprisonment.
In Tan, Chee Tong Tan (Chee Tong) and his cousin, Chee Siang Tan (Chee Siang), were convicted, on their pleas of guilty, of one offence against s 563A(1)(b) of the Code. Chee Tong was sentenced to 5 years 9 months' imprisonment. Chee Siang was sentenced to 4 years 6 months' immediate imprisonment. Chee Tong appealed against sentence on the ground that his sentence was manifestly excessive. Chee Siang appealed against sentence on two grounds. First, that his sentence was manifestly excessive. Secondly, that the sentencing judge had made an express error. This court held that none of the grounds of appeal had been made out. Both appeals were dismissed.
The facts and circumstances of the offending, as summarised in this court's reasons, were as follows:
[T]he appellants possessed approximately $1.5 million in cash that was the proceeds of an unknown offence (or offences). Between them, the appellants delivered $150,000 to a Mr Arfiz and the balance to two co‑offenders.
The appellants are cousins. They came together from Malaysia to Australia; originally to Sydney and then to Western Australia.
For some time, Chee Tong had worked for his older brother. Part of his brother's work involved money changing. It also involved providing assistance to get money out of Australia to China, in relation to which he enlisted and entrusted Chee Tong to come to Australia and assist. Chee Tong received directions from his brother, who was the controller of the process.
On 23 June 2018, the appellants attended Terrace Road in East Perth in a hire car, and met with two co-offenders. Chee Siang had hired the car on 19 June 2018. He drove Chee Tong to meet the two co‑offenders. When they arrived, Chee Tong got out of the car and Chee Siang drove away in it.
Chee Tong met with the two co-offenders and each party confirmed that the other was bona fide through the use of an arranged token. Chee Siang returned in the hire car, from which Chee Tong retrieved a bag containing $1.347 million, which he gave to the two co‑offenders. Chee Siang got out of the car and talked to the others for a short time. Chee Tong and Chee Siang then got back into the car and drove away.
At some time, between 21 and 23 June 2018, Chee Siang delivered the $150,000 in cash to Mr Arfiz.
The judge found that, earlier, Chee Tong had collected the $1.5 million in cash.
The two co-offenders were later found in possession of $1,332,110 and were arrested. After the money was seized, Chee Tong contacted his brother to tell him what was going on.
On 4 July 2018, police executed a search warrant of a hotel room. The appellants were located there and arrested. When interviewed by police, they both declined to comment in relation to the investigation.
There was no evidence, or suggestion, that the appellants had any involvement in, or specific knowledge of, the particular offence(s) by which the $1.5 million in cash was obtained [5] ‑ [14]. (footnotes omitted)
The sentencing judge noted that each of Chee Tong and Chee Siang was aged 24 years at the time of the offending and aged 25 when sentenced. They had no prior convictions. His Honour allowed each of them a 25% discount under s 9AA of the Sentencing Act for his plea of guilty. His Honour said that the pleas of guilty demonstrated that Chee Tong and Chee Siang accepted personal responsibility for their offending and that they were prepared to facilitate the administration of justice. His Honour found that both of them were remorseful. His Honour took into account Chee Tong's and Chee Siang's youth and the hardship they would suffer in serving time in custody away from their families. However, his Honour considered that this hardship should be given limited weight because they had chosen to commit the offence in Australia.
The sentencing judge accepted that Chee Tong's and Chee Siang's criminality extended over a relatively brief period of time. His Honour also accepted that:
(a)they did not know the ultimate destination of the money; and
(b)they did not necessarily know the precise source or identification of the offence or offences that had been committed to obtain the money.
The sentencing judge found that:
(a)the amount of money involved in the offending was significant, being about $1,500,000;
(b)the money was being dealt with in a way that made it more difficult to track or identify those involved in the offending or the type of offence or offences that had been committed to obtain the money;
(c)Chee Tong's and Chee Siang's actions in laundering the money provided significant assistance to those who had committed the offence or offences to obtain the money; and
(d)each of Chee Tong and Chee Siang took significant steps in dealing with the money and each of them played an active role in the offending.
The sentencing judge found that Chee Tong had a greater role and greater criminal culpability than Chee Siang. Chee Tong received the communications and the instructions. Chee Tong was told how to collect and disburse the money. It was Chee Tong's responsibility to report on all contacts and to account for all expenditures. It was Chee Tong who had actually met with the two co‑offenders.
The sentencing judge accepted that Chee Siang's role was significantly less than Chee Tong's role and, in essence, comprised the provision of whatever assistance Chee Siang was instructed to provide.
This court held that the sentence imposed on Chee Tong was 'close to the top of the range of sentences available upon a proper exercise of discretion' [51]. However, this court was not persuaded that the sentence was so high as to reveal implied error.
This court noted that serious features of Chee Tong's offending included:
(a)the very substantial amount of cash involved;
(b)his commercial motive for the offending;
(c)although he followed instructions from his brother in Malaysia, who in turn apparently followed instructions from others, Chee Tong's role and what he did was significant; in particular, he was in charge of moving the money in Australia between different places and persons and was entrusted to take possession of it to effect that purpose; and
(d)there was a degree of sophistication in the operation in which Chee Tong was engaged, including the use of tokens for the purposes of identification.
Although Chee Tong was sentenced for a single offence, the material before the sentencing judge indicated that he had engaged in similar conduct in Sydney and, accordingly, the offence in question could not be seen as an isolated one-off offence.
This court concluded that the sentence of 5 years 9 months' immediate imprisonment imposed on Chee Tong was not unreasonable or plainly unjust.
This court held that the sentence imposed on Chee Siang was 'close to the top of the available range' having regard to his role in the offence and what he did, as well as his personal circumstances [73]. This court accepted the following:
(a)Chee Siang was the lowest in the hierarchy and his role was significantly less than that of Chee Tong;
(b)his role was limited to hiring the motor vehicle, driving Chee Tong to the meeting at which Chee Tong handed over the money, providing assistance to Chee Tong as directed and delivering $150,000 to Mr Arfiz;
(c)he acted in the hope of getting only a limited reward; and
(d)he was merely a facilitator.
However, this court was not persuaded that the sentence of 4 years 6 months' immediate imprisonment imposed on Chee Siang was unreasonable or plainly unjust. This court noted that Chee Siang assisted Chee Tong in moving a very substantial quantity of cash between different places and persons. Chee Siang was entrusted to deliver $150,000 to Mr Arfiz. There was a commercial element to Chee Siang's offending in that he believed he would be paid about $2,000 for participating in the offending. The operation in which Chee Siang was engaged had a degree of sophistication, including the use of tokens for the purposes of identification.
In Phan, the appellant was convicted, on his pleas of guilty, of three offences. Count 1 was an offence against s 563A(1)(b) of the Code for which he was sentenced to 4 years 2 months' immediate imprisonment. Count 2 was an offence against s 417(1) of the Code for which he was sentenced to 1 year 4 months' immediate imprisonment. Count 3 involved a failure to obey a data access order, contrary to s 61(2) of the Criminal Investigation Act 2006 (WA), for which he was sentenced to 9 months' immediate imprisonment. The sentences for counts 1 and 2 were ordered to be served cumulatively and the sentence for count 3 was ordered to be served concurrently. The total effective sentence was therefore 5 years 6 months' imprisonment. The appellant appealed on two grounds. Ground 1 alleged that the total effective sentence infringed the first limb of the totality principle. Ground 2 alleged that the individual sentence for count 1 was manifestly excessive. This court refused leave to appeal and dismissed the appeal.
The facts and circumstances of count 1, as summarised in this court's reasons, were as follows:
During 4 - 7 September 2018, the appellant deposited 'structured' amounts of cash into the bank accounts of persons unknown to him on 72 occasions. He did so knowing that the money was the proceeds of an offence. In total, the appellant deposited $431,825 at various financial institutions within the Perth metropolitan area. All except one of the cash deposits were under $10,000.
The reference to 'structuring' payments relates to the requirements of s 43 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). That section requires banks to report a cash transaction of $10,000 or more to the Chief Executive Officer of the Australian Transaction Reports and Analysis Centre (AUSTRAC). Deposits of less than $10,000 do not attract that automatic reporting requirement.
At approximately 11 am on Friday 7 September 2018, the appellant and his co-accused were at the Perth branch of the Commonwealth Bank of Australia. They attended with the common purpose of making structured cash deposits. As a result of their suspicious behaviour, Commonwealth Bank staff contacted police and advised that two people had been observed making numerous structured cash deposits into third party bank accounts. Police attended the branch, where the appellant and his co-accused were located and arrested.
The deposits were made as part of what is known as the 'cuckoo smurfing' money laundering method. This is designed to enable criminals to transfer wealth through the bank accounts of innocent third parties without their knowledge, by making use of corrupt international money remitters operating overseas. …
During their investigation, police discovered that a number of structured cash deposits were also made by other co-accused in Perth during that time. In total, over that four-day period, the appellant and those other co-accused made 254 deposits totalling $1,278,420. Police also conducted a review back to 1 July 2018 of the accounts deposited into during that four-day period. It was identified that other co-accused had previously utilised those accounts to make structured deposits in Perth in August 2018.
The appellant's offending involved the making of the 72 deposits of a total amount of $431,825. The money was derived by criminal organisations from criminal activities on a significant scale [6] ‑ [11]. (footnote omitted)
The facts and circumstances of count 2, as summarised in this court's reasons, were as follows:
During a search of the appellant's bag at the Commonwealth Bank, police located $32,278.20 in bundles of $50 notes. Police also located the key to the appellant's hire car, which was parked nearby and searched. In the car, police found $292,050.05 in two suitcases, and the appellant's wallet which contained $2,100.05. These amounts, totalling $326,428.30, were reasonably suspected of having been unlawfully obtained.
One of the suitcases was consistent in appearance with a suitcase previously seen on CCTV footage being brought in by the appellant and another identified male on 4 September 2018.
The appellant's co-accused was also found with $42,418.90 in cash on her person, and with the appellant was jointly in possession of the cash located in the car.
Police also found deposit slips and ledgers for the approximate total of about $1.3 million, with which the group of offenders was involved [12] ‑ [15].
The appellant in Phan was aged 37 years when sentenced. He came from an impoverished background in Vietnam and had a limited education. In about 2000 he migrated to Australia. In July 2011, the appellant was convicted in New South Wales of cultivating cannabis and other offences. He was sentenced to a total of 3 years' imprisonment. After he was released from prison, the appellant was deported to Vietnam. He obtained a false passport under a different name and, in 2015, returned illegally to Australia.
The sentencing judge in Phan allowed the appellant a 25% discount under s 9AA of the Sentencing Act for his pleas of guilty. His Honour accepted that the appellant's time in prison would be more difficult because he was separated from his family and would have no visitors. His Honour said that an aggravating feature of the appellant's offending was that he was in Australia illegally and operating under a false name. The appellant's prior criminal record meant that the appellant was not entitled to any credit for prior good character. Personal deterrence was an important sentencing consideration.
In H, the appellant and two other persons, X and L, were jointly charged with one count. The count alleged that between 15 December 2018 and 19 December 2018 they each possessed money that was the proceeds of an offence, contrary to s 563A(1)(b) of the Code. The appellant, X and L were convicted on their pleas of guilty. The sentencing judge imposed sentences of immediate imprisonment as follows:
(a)the appellant: 4 years 2 months;
(b)L: 3 years 1 month; and
(c)X: 2 years 11 months.
This court allowed the appeal in H on the ground that the sentencing judge erred in fact by finding that the appellant was 'equally culpable' with his co-offenders.
This court summarised the offending as follows:
The appellant and his co offenders came to Western Australia knowing that it was likely that they would be involved in illegal activity. Although the appellant was, in our opinion, the least culpable of the offenders, his role was, nevertheless, significant, particularly having regard to his role in counting the approximately $2 million in cash, repacking the suitcases, and transporting the money on the intended journey to Victoria. The appellant did not stand to obtain any actual payment for his services, but he was to benefit by the extinguishment of his debt [of the equivalent in Hong Kong dollars of about AUD $10,000] to loan sharks in Hong Kong [105].
The principal mitigating factors in H were the appellant's plea of guilty (for which a discount of 20% was allowed under s 9AA of the Sentencing Act), his youth (he was aged 21 at the time of the offending) and his prior good character. However, the appellant in H had also evinced remorse and had taken steps to rehabilitate himself in prison. In particular, while in prison the appellant had taken steps to address his gambling addiction (which was linked to his offending behaviour) and other personal issues.
In H, this court noted that, in resentencing the appellant, it was necessary to have regard to the parity principle. In particular, the circumstances of both L and X were different from the appellant because L and X each cooperated with law enforcement authorities, including by giving an undertaking to testify against another person associated with the offending. L and X were each given a discount of 30% on their sentences for their cooperation. The appellant did not have the advantage of that mitigating factor.
Having regard to all relevant sentencing considerations, including the parity principle, this court resentenced the appellant in H to 3 years 6 months' immediate imprisonment.
In Tan [49], this court emphasised that general deterrence is of importance in sentencing for offences against s 563A(1)(b) of the Code:
Money laundering is 'vital to the functioning of organised criminal syndicates' and the money launderer is an 'important cog in the wheel of organised crime'. Thus, money laundering is an offence in respect of which general deterrence is given significant weight. (footnotes omitted)
In Tan [50], this court went on to observe:
The laundering of the proceeds of criminal activity is the lifeblood of organised crime. To state the obvious, the ultimate object of much of the criminal activity in which such organisations engage is to obtain money in a form in which it can be used without alerting the law enforcement authorities. The laundering of the proceeds of criminal activity is often the essential final step in achieving that object. This underscores the importance of general deterrence in sentencing for offences of this kind.
In Phan [39], this court commented that there is no established customary sentencing pattern for offences against s 563A(1)(b) of the Code. That remains the position. As we have mentioned, the only decisions of this court dealing with appeals against sentence for offences against s 563A(1)(b) are Wong, Tan, Phan and H.
It is well established that a small number of cases is of little assistance in sentencing an offender and cannot establish the range of sentences customarily imposed. See Pureau v The State of Western Australia[36] and Phan [39].
[36] Pureau v The State of Western Australia [2017] WASCA 115 [74] (Buss P, Mazza JA & Beech J).
In our opinion, Wong is not comparable to the present case. Wong involved the imposition by this court of a total effective sentence of 15 years' imprisonment. The offending in Wong was primarily concerned with the possession of a very significant quantity of methylamphetamine with intent to sell or supply. Although this court resentenced Chiu Wong in relation to all of the counts and came to its own view as to the appropriate total effective sentence, the grounds of appeal and the focus of the submissions on appeal related to the individual sentence for count 3 (one of the drug dealing offences) and the total effective sentence imposed at first instance.
As to Tan:
(a)The objective seriousness of Chee Tong's offending on the sole count he committed had some similarity to the objective seriousness of Mr Li's offending on count 7. However, Chee Tong (unlike Mr Li) had the mitigation of a plea of guilty, for which he was given a 25% discount on the head sentence that would otherwise have been imposed. Further, Chee Tong (unlike Mr Li) was remorseful and had the mitigation of relative youth in that Chee Tong was aged 24 at the time of the offending. Otherwise, the personal circumstances and antecedents of Chee Tong were similar to those of Mr Li.
(b)The objective seriousness of Chee Siang's offending on the sole count he committed had some similarity to the objective seriousness of Mr Zhuang's offending on count 7. However, Chee Siang (unlike Mr Zhuang) was remorseful and had the mitigation of a plea of guilty, for which he was given a 25% discount on the head sentence that would otherwise have been imposed. Further, Chee Siang (unlike Mr Zhuang) had the mitigation of relative youth in that Chee Siang was aged 24 at the time of the offending. Otherwise, the personal circumstances and antecedents of Chee Siang were similar to those of Mr Zhuang, except that Mr Zhuang has a partner and children, including a young child.
In our opinion, the objective seriousness of the appellant's offending on count 1 in Phan (being the offence against s 563A(1)(b) of the Code) was:
(a)materially less than the objective seriousness of Mr Li's offending on count 7; and
(b)broadly comparable to the objective seriousness of Mr Zhuang's offending on count 7.
Mr Li's overall role in the offending on count 7 and within the criminal syndicate was more significant than that of the appellant in Phan.
However, the appellant in Phan (unlike Mr Li and Mr Zhuang) had the mitigation of a plea of guilty, for which he was given a 25% discount on the head sentence that would otherwise have been imposed for count 1.
On the other hand, the personal circumstances and antecedents of Mr Li and Mr Zhuang were better than those of the appellant in Phan.
As to H, the objective seriousness of the offending of the appellant in H on the sole count he committed was:
(a)materially less than the objective seriousness of Mr Li's offending on count 7; and
(b)broadly comparable to the objective seriousness of Mr Zhuang's offending on count 7.
Mr Li's overall role in the offending on count 7 and within the criminal syndicate was more significant than that of the appellant in H.
However, the appellant in H (unlike Mr Li and Mr Zhuang) had the mitigation of a plea of guilty, for which he was given a 20% discount on the head sentence that would otherwise have been imposed. Also, the appellant in H (unlike Mr Li and Mr Zhuang) had mitigation arising from his youth, the remorse he had evinced and the steps he had taken to rehabilitate himself in prison.
In the present case, the offending of Mr Li and Mr Zhuang in relation to count 7 was very serious. Mr Li's offending on count 7 was more serious than Mr Zhuang's offending. The trial judge was satisfied beyond reasonable doubt that each of Mr Li and Mr Zhuang subjectively believed that the money in question was the profits of criminal enterprises in Australia. The seriousness of the offending on count 7 is also apparent from the following factors:
(a)The offending involved a large amount of money, namely $1,608,920.
(b)The offending was not isolated, but formed part of an ongoing course of criminal conduct that did not cease until the offending on count 7 was detected by the law enforcement authorities and Mr Li and Mr Zhuang were arrested.
(c)Each of Mr Li and Mr Zhuang committed count 7 for the purpose of financial gain.
(d)Each of Mr Li and Mr Zhuang (especially Mr Li) had an active and significant role in the offending on count 7. Mr Li interacted with other members of the criminal syndicate. Mr Li was in charge of transporting the money and was entrusted by more senior members within the criminal hierarchy to take possession of the money for that purpose. Mr Zhuang was subordinate to Mr Li.
(e)The offending on count 7 was reasonably sophisticated in that it involved an international controller, the use of tokens for the purposes of identification and the interstate transfer of the money.
It is true that each of Mr Li and Mr Zhuang had good antecedents, posed a low risk of reoffending and had good prospects of rehabilitation. Accordingly, personal deterrence was of reduced importance. However, general deterrence was a significant sentencing consideration. The laundering of the profits of criminal enterprises is an essential aspect in the achievement of the objectives of organised crime, especially the objectives of those at or towards the top of the criminal hierarchy. Neither Mr Li nor Mr Zhuang was youthful or inexperienced for sentencing purposes. Also, neither of them had the mitigation that pleas of guilty would have brought. His Honour expressly rejected submissions on behalf of Mr Li and Mr Zhuang that they were remorseful.
In our opinion, each of the sentence of 2 years' immediate imprisonment imposed on Mr Zhuang for count 7 and the sentence of 4 years' immediate imprisonment imposed on Mr Li for count 7 was not commensurate with the seriousness of the offence he committed. We are satisfied, after considering all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence imposed on each of Mr Zhuang and Mr Li for count 7 was unreasonable or plainly unjust. That is the only conclusion reasonably open when each sentence is viewed from the perspective of the maximum penalty; the facts and circumstances of the offending of each of Mr Zhuang or Mr Li, as applicable; the seriousness of the offending of each of Mr Zhuang or Mr Li, as applicable; the importance of general deterrence as a sentencing consideration; and all aggravating and mitigating factors. Each sentence was not merely 'lenient' or 'at the lower end of the available range'. In each case, it was substantially less than the sentence that was open to the trial judge on a proper exercise of his discretion.
Ground 2 has been made out in relation to the individual sentences for count 7.
The merits of the appeals: ground 3
It is convenient now to consider the State's contention in ground 3 of the appeals that the total effective sentences infringed the first limb of the totality principle.
Mr Li's overall offending on the counts in the indictment of which he was convicted was very serious. The very serious nature and circumstances of his overall offending are readily apparent from the trial judge's findings of fact and other facts that were not in contest at the sentencing hearing.
Mr Zhuang's overall offending on the counts in the indictment of which he was convicted was also very serious, although less serious than Mr Li's overall offending. The very serious nature and circumstances of his overall offending are readily apparent from his Honour's findings of fact and other facts that were not in contest at the sentencing hearing.
In our opinion, the total effective sentence of 7 years' imprisonment imposed on Mr Li did not bear a proper relationship to the overall criminality involved in all of Mr Li's offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. In particular, the total effective sentence failed adequately to reflect the criminality involved in Mr Li's offending in relation to counts 5 and 7. Significant weight had to be given to general deterrence. The objective facts and circumstances of the offending, viewed as a whole, were very serious. The total effective sentence was unreasonable or plainly unjust. It was not merely 'lenient' or 'at the lower end of the available range'. The total effective sentence imposed on Mr Li was substantially less than the total effective sentence that was open to the trial judge on a proper exercise of his discretion.
In our opinion, the total effective sentence of 5 years' immediate imprisonment imposed on Mr Zhuang did not bear a proper relationship to the overall criminality involved in all of Mr Zhuang's offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. In particular, the total effective sentence failed adequately to reflect the seriousness of Mr Zhuang's offending in relation to counts 5 and 7. Significant weight had to be given to general deterrence. The objective facts and circumstances of the offending, viewed as a whole, were very serious. The total effective sentence was unreasonable or plainly unjust. It was not merely 'lenient' or 'at the lower end of the available range'. The total effective sentence imposed on Mr Zhuang was substantially less than the total effective sentence that was open to his Honour on a proper exercise of his discretion.
Ground 3 has been made out.
The merits of the appeals: ground 1 in relation to count 4 and ground 2 in relation to count 5
It is well established that where a sentencing judge's discretion has miscarried in respect of one component of a sentence including, as in the present case, one of the individual sentences forming part of the total effective sentence, the whole of the sentencing judge's sentencing decision (including all of the sentences) must be set aside, and the offender resentenced. See, for example, McGarry v The Queen;[37] The State of Western Australia v Cairns;[38] Sathitpittayayudh v The State of Western Australia;[39] YDN v The State of Western Australia[40] and Law v The Queen.[41]
[37] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[38] The State of Western Australia v Cairns [2006] WASCA 178 [42] (McLure JA; Buss JA agreeing).
[39] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] ‑ [29] (Hall J; McLure P & Mazza JA agreeing).
[40] YDN v The State of Western Australia [2018] WASCA 62 [53] (Mazza, Mitchell & Beech JJA).
[41] Law v The Queen [2019] WASCA 81 [134] (Buss P, Beech & Pritchard JJA).
In the present case, we are satisfied, for the reasons we have given, that the sentence imposed on each of Mr Li and Mr Zhuang for count 7 was manifestly inadequate and that the total effective sentence imposed on each of them infringed the first limb of the totality principle. Subject to the possible exercise of the residual discretion, this court must re-exercise the sentencing discretion in relation to all of the individual offences (that is, counts 2, 4, 5 and 7) and must make its own decision as to the appropriate total effective sentences.
It is therefore unnecessary for this court to consider ground 1 in relation to the individual sentences imposed by the trial judge for count 4 or ground 2 in relation to the individual sentences imposed by his Honour for count 5.
The residual discretion: should it be exercised?
The difference in the approach of this court between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeals. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges. See Green [1] and CMB v Attorney‑General (NSW).[42]
[42] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55] (Kiefel, Bell & Keane JJ).
If this court is to allow a State appeal against sentence and to impose a heavier sentence on the offender, the State must establish two matters. First, the State must make out an appellable error in the exercise by the sentencing judge of his or her discretion. Secondly, the State must negate any reason why the residual discretion of this court under s 31(4) of the Criminal Appeals Act 2004 (WA) not to interfere should be exercised.
As we have mentioned, in the present case, counsel for Mr Li and counsel for Mr Zhuang submitted that the residual discretion under s 31(4) of the Criminal Appeals Act should be exercised.
Mr Li and Mr Zhuang do not, of course, bear an onus to establish that the residual discretion should be exercised in their favour. Rather, as we have mentioned, it is incumbent upon the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB [33] ‑ [34], [66].
In our opinion, there is no basis, in the present case, for invoking the residual discretion.
First, the prosecutor did not lead the trial judge into error at the sentencing hearing.
As to counts 2 and 4 (that is, the offences against s 417(1) of the Code), it is true that the prosecutor did not cite any decisions of this court. However, there is a paucity of cases in which this court has considered s 417(1) in the context of an individual sentence that was allegedly manifestly excessive or allegedly manifestly inadequate. This court's decision in Ng, in which the court held that a sentence for an offence against s 417(1) was manifestly excessive, was not delivered until after the trial judge imposed sentence. In Ng [62], the court said:
The parties did not cite to this court any relevantly comparable case. (A number of cases involving sentences under s 417 of the Code, albeit in circumstances materially different from the present case, were referred to by the court in Law v The Queen [2019] WASCA 81 [157]; see also Musulin v The State of Western Australia [2020] WASCA 18.) While acknowledging that the offence committed by the appellant was serious, particularly having regard to the quantity of cash he possessed, when measured against the yardstick of the maximum penalty of 7 years' imprisonment, a sentence of 5 years, having regard to the appellant's low level in the hierarchy of the criminal enterprise and the mitigating factors, is in our opinion unreasonable and plainly unjust. Implied error has been established. The sentence on count 2 is manifestly excessive.
This court has resentenced offenders for offences against s 417(1) in the context of appeals being allowed because the sentencing judges made errors in sentencing for other offences or errors in the total effective sentences imposed. See, in particular, Musulin, Law and Gaskell. Those cases primarily concerned sentencing for very serious drug dealing offences and there was little or no discussion of the principles to be applied in sentencing for offences against s 417(1).
As to counts 5 and 7 (which involved offences against s 563A(1)(b) of the Code), the prosecutor referred his Honour to the relevant decisions of this court, namely Wong, Tan and Pham. The prosecutor, correctly, submitted to his Honour that Tan was the most comparable case. The prosecutor, correctly, also submitted to his Honour that, having regard to various factors which the prosecutor specified, the offending in Tan was less serious than the offending of Mr Li and Mr Zhuang.
Any matters referred to or not referred to by the prosecutor did not lead his Honour into error. The present case is not analogous to Director of Public Prosecutions (Vic) v Holder (a pseudonym),[43] where the Court of Appeal of Victoria refused to intervene, on the basis of the residual discretion, because any inadequacy in the sentence imposed at first instance was to be explained 'both by what the prosecutor said, and by what was left unsaid, on the plea'.
[43] Director of Public Prosecutions (Vic) v Holder (a pseudonym) [2014] VSCA 61; (2014) 41 VR 467 [39].
In the present case, the prosecutor did not relevantly or materially breach any duty to his Honour.
Secondly, there is no doubt that the sentences for count 7 and the total effective sentences imposed by his Honour were unreasonable or plainly unjust. This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for offences against s 563A(1)(b) of the Code and for multiple offences which include very serious offences against that provision. In the present case, the sentencing outcome for very serious offending of the kind in question requires correction in order to maintain public confidence in the proper administration of criminal justice. It is necessary for this court to establish the proper approach for sentencing offenders convicted of offences against s 563A(1)(b) of the Code to ensure the correct application of sentencing principles and broad consistency in the application of those principles. See Green [69] and R v Kassir.[44]
[44] R v Kassir [2020] NSWCCA 88 [127] (Bathurst CJ; Fullerton & R A Hulme JJ agreeing).
Thirdly, the purpose of the State appeals in the present case could not properly be achieved merely by declaring the sentences for count 7 and the total effective sentences to be inadequate, but without altering them. See Director of Public Prosecutions (Cth) v Omar;[45] Director of Public Prosecutions (Vic) v Fatho[46] and Director of Public Prosecutions (Vic) v White.[47]
[45] Director of Public Prosecutions (Cth) v Omar [2019] VSCA 188 [24] (Maxwell P, T Forrest & Weinberg JJA).
[46] Director of Public Prosecutions (Vic) v Fatho [2019] VSCA 311 [79] ‑ [80] (Maxwell P, Priest & Beach JJA).
[47] Director of Public Prosecutions (Vic) v White [2020] VSCA 37; (2020) 60 VR 292 [82] ‑ [83] (Maxwell P, Beach & Weinberg JJ).
The outcome of the appeals and the resentencing of Mr Li and Mr Zhuang
We would grant leave to appeal on grounds 2 and 3 and refuse leave on ground 1 in each of the appeals.
The appeals must be allowed.
The trial judge's sentencing decisions, including the sentences imposed by his Honour, should be set aside.
This court has the material necessary to resentence Mr Li and Mr Zhuang. Neither Mr Li nor Mr Zhuang made an application for leave to put before this court any additional information for the purposes of any resentencing that may occur.
We have reduced each sentence that we would otherwise have imposed for each offence to reflect the mitigating factors referred to by his Honour.
We would exercise the sentencing discretion afresh in relation to Mr Li by imposing individual sentences of immediate imprisonment as follows:
(a)count 2: 9 months (reduced from 18 months in the application of the totality principle);
(b)count 4: 12 months (reduced from 21 months in the application of the totality principle);
(c)count 5: 6 years 9 months; and
(d)count 7: 7 years 3 months.
As we have indicated, we have reduced the new individual sentences for counts 2 and 4 in the application of the totality principle.
The new sentences for counts 2 and 4 should be served cumulatively upon each other and cumulatively upon the new sentence for count 7. The new sentence for count 5 should be served concurrently with the new sentence for count 7.
The new total effective sentence for Mr Li is therefore 9 years' imprisonment. The new sentence for count 7 and the new total effective sentence should be taken to have taken effect on 13 February 2020. Mr Li remains eligible for parole. Mr Li will be eligible to be considered for release on parole when he has served 7 years in custody calculated from 13 February 2020.
We would exercise the sentencing discretion afresh in relation to Mr Zhuang by imposing individual sentences of immediate imprisonment as follows:
(a)count 2: 6 months (reduced from 15 months in the application of the totality principle);
(b)count 4: 9 months (reduced from 18 months in the application of the totality principle);
(c)count 5: 5 years 3 months; and
(d)count 7: 5 years 9 months.
As we have indicated, we have reduced the new individual sentences for counts 2 and 4 in the application of the totality principle.
The new sentences for counts 2 and 4 should be served cumulatively upon each other and cumulatively upon the new sentence for count 7. The new sentence for count 5 should be served concurrently with the new sentence for count 7.
The new total effective sentence for Mr Zhuang is therefore 7 years' imprisonment. The new sentence for count 7 and the new total effective sentence should be taken to have taken effect on 7 February 2020. Mr Zhuang remains eligible for parole. Mr Zhuang will be eligible to be considered for release on parole when he has served 5 years in custody calculated from 7 February 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
1 APRIL 2021
15
51
0