Zeng v The King
[2023] WASCA 25
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ZENG -v- THE KING [2023] WASCA 25
CORAM: QUINLAN CJ
MITCHELL JA
VAUGHAN JA
HEARD: 13 DECEMBER 2022
DELIVERED : 10 FEBRUARY 2023
FILE NO/S: CACR 24 of 2021
BETWEEN: GUANG ZENG
Appellant
AND
THE KING
Respondent
FILE NO/S: CACR 25 of 2021
BETWEEN: GUANG ZENG
Appellant
AND
THE KING
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 944 of 2017
Catchwords:
Criminal law - Immigration - Appeal against conviction - Offences of a person who is not a registered migration agent receiving a fee for giving immigration assistance - Whether trial judge misdirected the jury as to the physical and fault elements of the offence - Whether verdicts of guilty on some counts were unreasonable or unsupported by the evidence - Whether trial judge erred in law in giving directions about the assessment of the credibility of witnesses whose evidence was interpreted
Criminal law - Sentencing - Whether total effective sentence for migration and other offences infringed the first limb of the totality principle
Legislation:
Criminal Code (Cth), s 5.2, s 5.4, s 5.6, s 400.6
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 21(4)
Migration Act 1958 (Cth), s 276, s 281
Result:
Appeal against convictions dismissed
Appeal against sentence allowed
Appellant resentenced
Category: B
Representation:
CACR 24 of 2021
Counsel:
| Appellant | : | J D Edwardson KC and F P Merenda |
| Respondent | : | M D Howard SC and A J C Mossop |
Solicitors:
| Appellant | : | The Defence Lawyers |
| Respondent | : | Director of Public Prosecutions (Cth) |
CACR 25 of 2021
Counsel:
| Appellant | : | J D Edwardson KC and F P Merenda |
| Respondent | : | M D Howard SC and A J C Mossop |
Solicitors:
| Appellant | : | The Defence Lawyers |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Gaio v The Queen (1960) 104 CLR 419
Gibbs v The State of Western Australia [2018] WASCA 68
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Kabambi v The State of Western Australia [2019] WASCA 44
La Fontaine v The Queen (1976) 136 CLR 62
M v The Queen (1994) 181 CLR 487
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6
R v Dookheea [2017] HCA 36; (2017) 262 CLR 402
R v Miranda [2002] NSWCCA 89; (2002) 128 A Crim R 362
R v Pham [2015] HCA 39; (2015) 256 CLR 550
R v Wanna (1997) 42 NSWLR 1
R v Wanna [1998] NSWSC 30
Roffey v The State of Western Australia [2007] WASCA 246
Wells v The State of Western Australia [2017] WASCA 27
Table of Contents
Quinlan CJ
Introduction
Appeal against sentence
Legal principles
My conclusion
Mitchell & Vaughan JJA
Summary
Offence creating provisions
Migration offences
Passports offence
Money offence
Prosecution case at trial
Counts 1 - 10: Migration offences
Count 11: Passport offence
Count 12: Money offence
Defence case at trial
Conviction ground 2: Misdirection as to elements of migration offences
Direction given by the trial judge
Appellant's submissions
Respondent's submissions
Are there two or three physical elements to the migration offences?
Did the trial judge misdirect as to the required intention?
Conclusion as to ground 2
Conviction ground 3: unreasonable verdicts
General principles
Appellant's general submissions
Respondent's general submissions
Proper scope of the inquiry as to what the fee was for
Operator of the Jaycay Migration Agency
Counts 1 and 2: fees received from Pingping Ban
Particulars
Prosecution case at trial
Evidence of Pingping Ban
Evidence of Weiliang Lu
Migration records
Disposition
Count 3: fees received from Meirong Li and Trevor Wilson
Particulars
Prosecution case at trial
Evidence of Meirong Li
Evidence of Trevor Wilson
Migration records
Disposition
Count 4: fees received from Bo Zeng
Particulars
Prosecution case at trial
Evidence of Bo Zeng
Evidence of Xifeng Zeng
Migration records
Disposition
Count 8: fees received from Shanglin Liang
Particulars
Prosecution case at trial
Evidence of Shanglin Liang
Disposition
Conclusion as to ground 3
Conviction ground 1: directions about interpreted evidence
Background
Trial judge's direction
Appellant's submissions
Respondent's submissions
Disposition
Appeal against sentence
Circumstances of the offending
Counts 1 and 2: fees received from Pingping Ban
Count 3: fees received from Meirong Li and Trevor Wilson
Count 4: fees received from Bo Zeng
Count 5: fees received from Liyan Hao
Counts 6 and 7: fees received from Peijun Lu
Count 8: fees received from Shanglin Liang
Count 9: fees received from Chun Jiang
Count 10: fees received from Lianghao Chen
Count 11: passports offence
Count 12: money offence
The offending generally
Victim impact
Appellant's personal circumstances
Trial judge's approach
General principles
Disposition
Orders
CACR 24 of 2021 (appeal against conviction)
CACR 25 of 2021 (appeal against sentence)
QUINLAN CJ:
Introduction
These appeals concern the appellant's convictions and sentence for 12 Commonwealth offences. The appellant, Guang Zeng, was convicted, following a trial before Stevenson DCJ and a jury, of:
(a)ten counts of receiving a fee for giving immigration assistance when not being a registered migration agent; contrary to s 281(1) of the Migration Act 1958 (Cth);
(b)one count of having possession of foreign travel documents, namely various People's Republic of China passports, knowing that the passports were not issued to her; contrary to s 21(4) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth); and
(b)one count of dealing with money or property that was, and that she believed to be, proceeds of crime with a value of $10,000 or more; contrary to s 400.6(1) of the Criminal Code (Cth).
On 4 February 2021, the learned trial judge sentenced Ms Zeng to a total effective sentence of 6 years and 6 months imprisonment with a non‑parole period of 4 years and 6 months. The sentences were backdated to 26 November 2020 to take account of the time Ms Zeng had spent in custody.
The individual sentences imposed for each count, and their cumulacy or concurrency, were as follows:
Count
Offence
Sentence
Concurrent/
Cumulative1
Receiving a fee for giving immigration assistance; contrary to s 281(1) of the Migration Act 1958 (Cth)
18 months
Concurrent
2
Receiving a fee for giving immigration assistance; contrary to s 281(1) of the Migration Act 1958 (Cth)
18 months
Concurrent
3
Receiving a fee for giving immigration assistance; contrary to s 281(1) of the Migration Act 1958 (Cth)
3 years
Head sentence
4
Receiving a fee for giving immigration assistance; contrary to s 281(1) of the Migration Act 1958 (Cth)
2 years 3 months
Concurrent
5
Receiving a fee for giving immigration assistance; contrary to s 281(1) of the Migration Act 1958 (Cth)
2 years
Concurrent
6
Receiving a fee for giving immigration assistance; contrary to s 281(1) of the Migration Act 1958 (Cth)
2 years 3 months
Concurrent
7
Receiving a fee for giving immigration assistance; contrary to s 281(1) of the Migration Act 1958 (Cth)
2 years 3 months
Concurrent
8
Receiving a fee for giving immigration assistance; contrary to s 281(1) of the Migration Act 1958 (Cth)
2 years
Concurrent
9
Receiving a fee for giving immigration assistance; contrary to s 281(1) of the Migration Act 1958 (Cth)
2 years
Concurrent
10
Receiving a fee for giving immigration assistance; contrary to s 281(1) of the Migration Act 1958 (Cth)
3 years
Cumulative
11
Knowing possession of foreign travel documents, not issued to her; contrary to s 21(4) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth)
18 months
Concurrent
12
Dealing with proceeds of crime; contrary to s 400.6(1) of the Criminal Code (Cth)
6 months
Cumulative
Total effective sentence
6 years 6 months
In addition to the orders as to cumulacy and concurrency, the learned trial judge reduced the sentence for count 10 from 18 months imprisonment to 6 months imprisonment for reasons of totality.
I have had the considerable advantage of reading, in draft, the reasons of Mitchell and Vaughan JJA. I entirely agree with their Honours' reasons for concluding that Ms Zeng's appeal against her convictions must be dismissed. There is nothing I could usefully add to their Honours' comprehensive reasons. I agree with the orders proposed by Mitchell and Vaughan JJA in relation to the conviction appeal.
I have, however, reached a different conclusion to their Honours in relation to Ms Zeng's appeal against sentence. While I agree that the total effective sentence imposed by the learned trial judge was severe, I am not satisfied that, in all of the circumstances, the total effective sentence was so high as to manifest error. For that reason, while I would grant leave to appeal on the sole ground in the sentence appeal, I would have dismissed the appeal.
My reasons for that conclusion are as follows.
Appeal against sentence
The appeal against sentence is brought on the sole ground that the total effective sentence violated the first limb of the totality principle, namely that the total effective sentence of 6 years and 6 months imprisonment did not reflect the overall criminality involved in Ms Zeng's offending, having regard to all of the circumstances, including those personal to her. Ms Zeng does not challenge any of the individual sentences imposed by the learned trial judge.
The facts and circumstances surrounding Ms Zeng's offending, and her personal circumstances, as found by the learned trial judge, are set out in detail in Mitchell and Vaughan JJA's reasons at [247] ‑ [303]. It is unnecessary for me to repeat those matters, save where it is necessary that I do so in order to explain my own conclusion.
Before doing that, the applicable legal principles may be summarised.
Legal principles
The legal principles governing appeals contending that the total effective sentence infringes the first limb of the totality principle are well known.[1]
[1] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears 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 or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The range of sentences imposed in other cases does not establish the bounds of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.
The broad consistency referred to in these principles has an added dimension in a case such as this, where the offender has been sentenced for federal offences. As the High Court has confirmed on a number of occasions, consistency in federal sentencing is to be achieved through the work of the intermediate courts of appeal in Australia.[2] For that reason this Court should have regard to what has been done in comparable cases throughout the Commonwealth, as it can and should provide guidance as to the identification and application of relevant sentencing principles and may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.[3]
[2] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56] - [57] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[3] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [18], [26] (French CJ, Keane & Nettle JJ).
While recognising these important principles of Australia-wide consistency in sentencing, it must be acknowledged that there is a dearth of previous decisions of intermediate courts of appeal in Australia dealing with sentences for the kind of offences committed by Ms Zeng. The researches of the parties and the Court revealed only two such decisions, both from the New South Wales Court of Criminal Appeal and each from more than two decades ago: R v Wanna[4] and R v Miranda.[5]
[4]R v Wanna (1997) 42 NSWLR 1 (R v Wanna); R v Wanna [1998] NSWSC 30 (R v Wanna [No 2]).
[5] R v Miranda [2002] NSWCCA 89; (2002) 128 A Crim R 362.
Just as one swallow does not a summer make, so two previous decisions of intermediate courts of appeal do not a discernible sentencing pattern yield. This is not a case, therefore, in which any useful range of sentences customarily imposed can be said to exist.
R v Miranda, for example, bore some similarities to the present case. The offender in that case had, like Ms Zeng, established a business in providing immigration assistance without being registered to do so, although the business in that case was conducted under the auspices of a firm of solicitors, who had provided stationary for the purpose of the business. Nevertheless, the offending in R v Miranda could also properly be described as a scheme involving a considerable effort and considerable planning. A total effective sentence of 5 years and 6 months imprisonment in that case was reduced on appeal to 3 years imprisonment, on account of express and implied errors by the sentencing judge.
On the other hand, R v Miranda also had a number of features that distinguish it from the present case. The sentence in that case was imposed following a plea of guilty and the offender suffered from a significant medical condition following surgery for bowel cancer, which would make imprisonment significantly harsher. It also appears, from the illustrative facts referred to in R v Miranda, that the financial and other damage done to the victims of the offending was considerably less than in the present case. The illustrative charge referred to in R v Miranda involved the payment of a fee of $1,500. Even accounting for the effects of inflation, the sums extracted from Ms Zeng's victims were many multiples of the sums received in R v Miranda, not to mention the psychological, emotional and social damage inflicted by Ms Zeng's offending. The circumstances of R v Miranda are not comparable to the present case.
Nor does the sentence upheld in R v Wanna [No 2] (500 hours of community service) provide anything even approaching a broad 'yardstick' of sentences customarily imposed. In that case, the Crown appeal against what was, in the court's view, a 'very lenient sentence' was made difficult by lack of any clear findings by the sentencing judge as to the seriousness of the offending in the case. The manner in which the sentencing judge dealt with the task of fact finding left the appeal court in a position where the findings of fact for the purpose of sentence may have been 'unduly generous to the respondent'.[6]
[6] R v Wanna [No 2], 3 (Gleeson CJ; Beazley JA & Barr J agreeing).
The absence of any discernible sentencing pattern for the offences for which Ms Zeng was convicted does not, however, mean that the previous decisions do not provide assistance in the sentencing exercise in the present case.
At the level of principle, the previous cases assist in identifying the legislative purposes underlying the creation of the offences committed by Ms Zeng, particularly the offences under the Migration Act and the mischief to which those offences are directed.
In R v Wanna, Gleeson CJ (Mason P and Sheller JA agreeing), referred to as instructive the statutory purposes of the scheme for the registration of migration agents. His Honour referred to the relevant Minister's speech, at the time of its enactment in 1992:[7]
This initiative reflects the Government's concern over the level and nature of complaints made against incompetent or unscrupulous agents, complaints which would be familiar to many members of this chamber. It also recognises the fact that many of those who are likely to seek the assistance of agents are among the most vulnerable in our society, sometimes having a poor grasp of English, fear of authority or meagre financial resources. …
I do not intend to list comprehensively problems which led to the development of the scheme, but some examples include agents having been paid to lodge applications and then failing to do so, lodging applications without paying the prescribed fees, thereby not giving effect to the application, lodging applications tardily in a way which adversely affects the entitlements of applicants; and holding passports as security and then demanding extra payments. There are also examples of agents providing incompetent advice because they lack even a rudimentary knowledge of the Migration Act and regulations.
[7] R v Wanna, 3 (Gleeson CJ; Mason P & Sheller JA).
These statutory purposes reveal, in my respectful view, not only the mischief to which the scheme of the Migration Act is directed, but also a number of matters going to the seriousness of the consequences that can arise when it is breached or ignored. These include the exploitation of the vulnerable, applications not being lodged (or not being lodged properly), adverse effects on entitlements, demanding extra payments, improper use of passports and incompetent advice.
Each of those features may be more, or less, present in a particular case. It was in that context, and for that reason, that the court in R v Wanna [No 2] recognised that the legislation provided an 'extensive range' in potential penalties, as the offence was 'capable of being committed in a wide range of circumstances affecting the level of criminality of the conduct of the offender'. That range extended from offences that were 'little more than a technical breach' or 'inadvertence', at one end of the spectrum, to being 'part of a scheme of unscrupulous and predatory behaviour reflecting serious dishonesty', at the other end.[8]
[8] R v Wanna [No 2], 2 - 3 (Gleeson CJ; Beazley JA & Barr J agreeing).
I turn then to my consideration of the sentence appeal in the present case.
My conclusion
Ms Zeng's sentence appeal asserts implied error. She does not challenge the individual sentences imposed for each of the charges and she does not suggest that the learned trial judge made any express error of principle. It is important that I recognise that the question in the appeal is not whether I would have exercised the sentencing discretion differently. In all of the circumstances I probably would have. In my view, the total effective sentence imposed by the learned trial judge was severe. Nevertheless, the question raised by the appeal is whether the result produced in this case was plainly unjust or unreasonable, such that I should imply error.
Ultimately, I am not satisfied that I can, or should, imply error in the present case. The total effective sentence imposed on Ms Zeng was not, in my respectful view, plainly unjust or unreasonable. I have reached that conclusion for the following reasons.
In my view, particularly in relation to the offences against the Migration Act, Ms Zeng's overall criminality was very high and fell at the upper end of offending of this type. Indeed, in my view, the conduct of Ms Zeng displayed all of the mischiefs that the scheme of the Migration Act is intended to avoid and produced all of the serious adverse consequences that can flow from its breach: the exploitation of the vulnerable, applications not being lodged (or not being lodged properly), adverse effects on entitlements, demanding extra payments, improper use of passports and incompetent advice.
I refer, in particular, to the following matters.
First, this was not, as might be the case in offending at the lower end of the scale, merely inadvertence or minor incompetence. As the trial judge put it, Ms Zang's offending was the result of 'calculated premeditated decisions' which involved significant effort and considerable planning. Ms Zeng's receipt of money for immigration assistance was an elaborate, systematic and predatory scheme, involving business premises, business records and extensive advertising. The offending extended over almost two years and four months, from March 2013 to July 2015.
Secondly, as recognised in the Minister's speech and in the authorities referred to above, the persons targeted, and betrayed, by Ms Zeng were 'among the most vulnerable in our society, sometimes having a poor grasp of English, fear of authority or meagre financial resources'. Ms Zeng preyed on that vulnerability for her own commercial benefit.
Thirdly, this was not a case in which the offender actually provided meaningful assistance to persons requiring immigration assistance, albeit without being registered to do so. Such a case might be said to offend against the regulatory scheme itself, while incidentally providing some benefit to the persons requiring assistance. On the contrary, while purporting to provide assistance to the victims in return for their money, Ms Zeng did precisely the opposite. Not only did she not help her victims in their dealings with the Australian migration system, she positively hindered those victims: by lying to them, concealing the true position and using forged and misleading records.
Ms Meirong Li, who was the subject of count 3, is a good example. Having been paid $8,500 to obtain a spousal visa for Ms Li, Ms Zeng provided Ms Li with forged documents stating that valid visa applications had been made and that she had been granted a bridging visa. Ms Zeng then told Ms Li that Ms Li had to leave Australia and return to China in order to activate the visa. That was, of course, false, and Ms Li remained in China, separated from her husband and without a visa, for 18 months.
Indeed, one of the confounding features of Ms Zeng's offending is how she ever thought she would ultimately get away with her deception. It was the kind of offending for which, from the perspective of an objective observer, discovery of the offending appears inevitable. Ms Zeng's method of forestalling that inevitability was simply more deception. As the trial judge found, when 'confronted by the victims, [she] blamed others and provided misleading explanations in the knowledge that the language difficulties of the clients would lessen them learning the true position'.
Fourthly, the sums received by Ms Zeng – the gravamen of the offending itself – were very substantial. She unlawfully received fees of at least $227,655, a significant proportion of which may never be recovered. The substantial sums of money involved demonstrate not only the extent of Ms Zeng's offending but provide some measure of the financial damage caused to her victims by that offending.
Finally, the impact on the victims in the present case, as the learned trial judge found, extended well beyond the obvious financial impact. Ms Zeng's offending, particularly as a result of the disruption and dislocation of their lives, had very substantial impacts on the victims emotionally and psychologically and on their extended families. The personal toll on the victims, which the learned trial judge found 'cannot be underestimated' is amply reflected in their victim impact statements.
Against this high degree of criminality, there was very little by way of mitigation. Ms Zeng was sentenced as a person of prior good character and, at the time of her sentencing, she appeared to have good prospects for rehabilitation. She did not, however, display any remorse or insight into the seriousness of her offending. While she had refunded some of the fees paid to her, the learned trial judge had earlier described those refunds as 'strategic' and made for reputational reasons. What refunds she did make, accordingly, appeared to be directed to maintaining the illusion of trust that Ms Zeng had cultivated.
By the time of her sentencing Ms Zeng had been diagnosed with an Adjustment Disorder, as a consequence of stressful life events and subsequent poor coping. The learned trial judge referred, and gave weight, to a psychological report in relation to Ms Zeng's condition. The report, which I have also read, does not provide a persuasive account of how Ms Zeng's Adjustment Disorder could meaningfully be said to account for the premeditated and systematic nature of her offending. It points to 'worry about finances' being part of Ms Zeng's mental state, which might be said to point to her financial motivation for the offending, but it otherwise does not explain a causative link between her mental state and her offending.
The psychological report also referred to Ms Zeng reporting that she always wanted to help others, a matter that the learned trial judge accepted to 'a degree', although it was difficult to square with the inevitable harm her offending would cause. Ultimately, the learned trial judge concluded that this was not a case where a particular offence could be wholly explained by reason of a mental health issue or disorder and that, as is often the case, it was difficult to know the precise motivation for the offending.
Ms Zeng's offending was therefore very serious, it served to undermine the integrity of Australia's migration system and it caused great harm to her victims. It was offending which, in my view, called for a significant term of imprisonment reflecting both general and personal deterrence. While the sentence imposed by the learned trial judge was severe, I am not satisfied that the total effective sentence of 6 years and 6 months imprisonment was plainly unjust or unreasonable.
While I would grant leave on the sole ground in the sentence appeal, I would have dismissed the appeal.
Finally, I record my complete agreement with the observations made by Mitchell and Vaughan JJA at [315] in relation to the inappropriate attempt by Ms Zeng's solicitors to place additional material before the Court following notification of judgment delivery. Not only was no application made to adduce additional evidence in the appeal in relation to that material, Ms Zeng's solicitors made no attempt to explain the late reliance on the material or their failure to seek the respondent's consent for it to be provided to the Court. Regrettably, this was not the first occasion that the conduct of Ms Zeng's appeal was less than satisfactory, including matters being raised either late or not in the proper form. The conduct of appeals in this way is not conductive to the efficient and effective administration of justice.
MITCHELL & VAUGHAN JJA:
Summary
On 26 November 2020, the appellant was convicted, after trial by jury, of the following offences:
1.ten counts of receiving a fee for giving immigration assistance when not being a registered migration agent; contrary to s 281(1) of the Migration Act 1958 (Cth);
2.one count of having possession of foreign travel documents, namely various People's Republic of China passports, knowing that the passports were not issued to her; contrary to s 21(4) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) (Passports Act); and
3.one count of dealing with money or property that was, and that she believed to be, proceeds of crime with a value of $10,000 or more; contrary to s 400.6(1) of the Criminal Code (Cth) (Code).
In these reasons, we shall refer to the offences against s 281(1) of the Migration Act as the migration offences. We shall refer to the offence against s 21(4) of the Passports Act as the passports offence. We shall refer to the offence against s 400.6(1) of the Code as the money offence.
On 4 February 2021, the appellant was sentenced to a total effective sentence of 6 years 6 months' imprisonment with a non-parole period of 4 years 6 months. The sentences were backdated to 26 November 2020 to take account of time spent in custody on remand. The sentencing court also made a reparation order and a forfeiture order.
The individual counts on the indictment, and the sentences imposed for each count, are summarised in the following table:
Count
Offence
Offence date[9]
Sentence
Accumulation
1
Migration offence
23.9.13 - 4.10.13
18 months
Concurrent
2
Migration offence
21.1.14 - 6.3.14
18 months
Concurrent
3
Migration offence
13.3.13 - 18.9.13
3 years
Head sentence
4
Migration offence
19.2.14 - 27.2.15
2 years 3 months
Concurrent
5
Migration offence
11.6.15 - 7.7.15
2 years
Concurrent
6
Migration offence
1.10.14 - 22.10.14
2 years 3 months
Concurrent
7
Migration offence
18.11.14
2 years 3 months
Concurrent
8
Migration offence
1.9.14 - 23.3.15
2 years
Concurrent
9
Migration offence
30.5.14
2 years
Concurrent
10
Migration offence
10.6.14
3 years
Cumulative
11
Passport offence
29.8.13
18 months
Concurrent
12
Money offence
1.2.13 - 29.8.13
6 months
Cumulative
Total effective sentence
6 years 6 months
[9] The references to dates are to those contained in the particulars (Blue/Green AB 2151 - 2153) where there is a divergence between the dates referred to in the particulars and those referred to in the indictment.
The appellant now appeals against her convictions and sentences in respect of the above offences.
The appellant appeals against her convictions on the following three grounds:[10]
1.The trial judge erred in law by directing the jury to consider certain matters in relation to evidence given through interpreters.
2.The trial judge made an error of law by misdirecting the jury as to the elements of the migration offences.
3.The guilty verdicts in relation to counts 1, 2, 3, 4 and 8 were unreasonable or unsupported by the evidence.
[10] A fourth ground, alleging that the quality of interpretation provided by an interpreter at the trial occasioned a miscarriage of justice, was abandoned at the hearing of the appeal: see appeal ts 149. A number of associated applications to adduce additional evidence in the appeal (dated 31 October 2022 and 24 November 2022) therefore fell away.
The appellant appeals against her sentence on the sole ground that the total effective sentence of 6 years 6 months' imprisonment violates the first limb of the totality principle.
The applications for leave to appeal on the above grounds have been referred to the hearing of the appeal.[11]
[11] Order of Buss P in CACR 24 of 2021 made on 13 July 2021; Order of Buss P in CACR 25 of 2021 made on 13 July 2021.
For the following reasons, none of the grounds of appeal against conviction are established and the appeal against conviction should be dismissed. The ground of appeal against sentence is established. The appeal against sentence should be allowed and the appellant resentenced to a total effective sentence of 4 years 9 months' imprisonment with a non-parole period of 3 years 2 months.
Offence creating provisions
Migration offences
Part 3 of the Migration Act regulates the registration of migration agents and the giving of immigration assistance.
Division 3 of pt 3 makes provision for the registration of migration agents by the Migration Agents Registration Authority. Requirements for registration generally include the holding of prescribed qualifications (s 289A), that the applicant is a fit and proper person to give immigration assistance and that the applicant is a person of integrity (s 290).
Division 2 of pt 3 creates a number of offences relating to the provision of immigration assistance by persons not registered as a migration agent. These offences include, in very general terms, giving immigration assistance while not being a registered migration agent (s 280), charging fees for immigration assistance by a person who is not a registered migration agent (s 281), falsely representing that a person is a registered migration agent (s 283) and advertising that a person who is not a registered migration agent gives immigration assistance (s 284 and s 285).
The legislative purpose of pt 3 of the Migration Act, apparent from its terms, is to provide for a regime under which, generally speaking, only registered persons who have been assessed as competent and honest may provide migration assistance. The purpose of the provisions was explained in the following passage of the second reading speech for the Migration Amendment Bill (No 3) 1992 (Cth), which was set out in the reasons of the New South Wales Court of Appeal in R v Wanna:[12]
This initiative reflects the Government's concern over the level and nature of complaints made against incompetent or unscrupulous agents, complaints which would be familiar to many members of this chamber. It also recognises the fact that many of those who are likely to seek the assistance of agents are among the most vulnerable in our society, sometimes having a poor grasp of English, fear of authority or meagre financial resources. …
I do not intend to list comprehensively problems which led to the development of the scheme, but some examples include agents having been paid to lodge applications and then failing to do so, lodging applications without paying the prescribed fees, thereby not giving effect to the application, lodging applications tardily in a way which adversely affects the entitlements of applicants; and holding passports as security and then demanding extra payments. There are also examples of agents providing incompetent advice because they lack even a rudimentary knowledge of the Migration Act and regulations.
[12] R v Wanna (1997) 42 NSWLR 1, 3.
The charged migration offences were against s 281(1) of the Migration Act, which provides:
Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance.
The maximum penalty for an offence against s 281(1) of the Migration Act is 10 years' imprisonment.
Section 281(2) of the Migration Act creates a similar offence in relation to asking for or receiving any fee or other reward 'for the giving of immigration assistance by another person who is not a registered migration agent'. It appears to be common ground in this case that, in this context, the offence created by s 281(1) prohibits the receipt of a fee for the giving of immigration assistance by the accused, rather than a third party.
It also appears to be common ground in this case that, consistently with the decision in R v Wanna, an offence against s 281(1) may be committed even though no actual immigration assistance is provided. The question is rather whether the accused receives a fee for such assistance, whether it is provided or not.
Section 281(3) relevantly provides that s 281 does not prohibit a person from asking for or receiving a fee for the giving of immigration legal assistance by a lawyer.
Section 276(1) of the Migration Act relevantly provides that:
For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant … by:
(a)preparing, or helping to prepare, the visa application …; or
(b)advising the visa applicant … about the visa application[.]
However, under s 276(3) of the Migration Act, a person does not give immigration assistance if he or she merely:
(a)does clerical work to prepare (or help prepare) an application or other document; or
(b)provides translation or interpretation services to help prepare an application or other document; or
(c)advises another person that the other person must apply for a visa; or
(d)passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
Section 5.6 of the Code provides that:
(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Section 5.2 and s 5.4 of the Code define the concepts of intention and recklessness in the following terms:
5.2 Intention
(1) A person has intention with respect to conduct if he or she means to engage in that conduct.
(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
…
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
Passports offence
Section 21(4) and s 21(5) of the Passports Act relevantly provide:
(4)A person commits an offence if:
(a)the person has possession or control of a foreign travel document; and
(b)the person knows that the document was not issued to the person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(5)Subsections (1), (2), (3) and (4) do not apply if the person has a reasonable excuse.
Section 5 of the Passports Act defines 'foreign travel document' to relevantly include a foreign passport. A 'foreign passport' is defined as a passport issued by or on behalf of the government of a foreign country.
The term 'reasonable excuse' is not defined.
Money offence
At the time of the money offence, s 400.6(1) of the Code relevantly provided:
A person is guilty of an offence if:
(a)the person deals with money or other property; and
(b)…
(i)the money or property is, and the person believes it to be, proceeds of crime; … and
(c)at the time of the dealing, the value of the money and other property is $10,000 or more.
Under s 400.6(4) of the Code, absolute liability applies to paragraph (1)(c).
Section 400.1 of the Code, at the time of the money offence, defined 'proceeds of crime' to mean:
[A]ny money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of an offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
Relevantly under s 400.2 of the Code, a person deals with money or other property if the person receives or possesses money or other property.
The maximum penalty for an offence against s 400.6(1) of the Code is 10 years' imprisonment or 600 penalty units or both.
Prosecution case at trial
Counts 1 - 10: migration offences
The prosecution case at trial was that the appellant received fees, which were particularised in a jury aid,[13] in respect of each of counts 1 ‑ 10, for giving immigration assistance. The prosecution relied on formal admissions made on behalf of the appellant to the effect that she was not and had never been a registered migration agent and that she knew this at all times.[14]
[13] The document was designated Jury Aid 2 and appears at Blue/Green AB 2151 ‑ 2153.
[14] Trial ts 588 - 589.
The prosecution alleged that, in some cases, the appellant identified a particular fee 'for an agency fee' and, in other cases, the appellant received a global or lump sum which included her fee. Where there were government fees for a particular visa, the amount asked for was significantly in excess of the government fees at the time. The prosecution said that the jury could be satisfied that 'in those circumstances factually, the [appellant] was receiving a fee for her own provision of immigration assistance'.[15]
[15] Trial ts 590.
The prosecutor said that the Crown did not need to prove that the appellant actually gave any immigration assistance. The charge was proved if the jury were satisfied that she received a fee for giving immigration assistance.[16]
[16] Trial ts 590.
The prosecution alleged that the fees received by the appellant were received either for the appellant to prepare or help to prepare a visa application or to give advice to a particular visa applicant about a visa application.[17]
[17] Trial ts 591.
The prosecution case was that the appellant carried on business under the business name 'Jaycay Migrant Agency' or something similar and used an Australian Business Number (ABN) registered to the appellant. It was admitted that 'Jaycay Migrant' is not a business name registered with the Australian Securities and Investments Commission (ASIC).[18]
[18] Trial ts 591 ‑ 592.
The prosecutor referred to statements made by the appellant in interviews with Commonwealth officers to the effect that she was working with or for Mr Gan Li, who was a registered migration agent. The prosecutor indicated that he would suggest it was clear from the interviews that the appellant did receive money from clients, which she kept for herself. The prosecutor said that the jury could be satisfied that the appellant was receiving a fee if she was keeping some of the money for herself, even if she passed on some to Gan Li. The prosecutor indicated that the Crown would also call Gan Li who would say he had a migration agent business registered to him in the name 'jc migration' and that Jaycay Migrant Agency 'had nothing to do with' his business.[19]
[19] Trial ts 592 - 594.
The prosecutor then outlined the Crown case on the individual migration offence counts. We will deal with the particulars of the Crown case for counts the subject of ground 3 of the conviction appeal when dealing with that ground.
The prosecutor noted that, in some cases, the appellant refunded the fees to clients. The prosecution case was that the offence against s 281(1) of the Migration Act was committed when the fee was received, irrespective of whether it was subsequently refunded.[20]
Count 11: passport offence
[20] Trial ts 605.
The Crown case was that the People's Republic of China passports identified in count 11 on the indictment were found in the appellant's possession during a search conducted in August 2013. The prosecutor noted that the appellant admitted possessing the passports, intending to possess them and knowing that they were not issued to her. The prosecutor anticipated that the critical issue would be whether the Crown had proved that the appellant had no reasonable excuse for possessing the passports.[21]
Count 12: money offence
[21] Trial ts 602 - 603.
The prosecution case was that $30,000 in cash was found during a search of the appellant's house in August 2013. The prosecution case was that this cash was the proceeds of crime, being the receiving of a fee for giving immigration assistance, and that the appellant knew this to be so. The prosecutor noted that the appellant admitted possessing the cash and anticipated the critical issues to be whether the cash was the proceeds of crime and whether the appellant knew that the cash was the proceeds of crime.[22]
[22] Trial ts 603.
Defence case at trial
The appellant, through her counsel, made formal admissions at the commencement of the trial. The appellant's admissions relating to particular counts on the indictment were as follows:[23]
[23] Trial ts 583 - 584; exhibit 1 (Blue/Green AB 1450 - 1451).
Admissions in respect to Counts 1-10 on the Indictment
1. She is not, and never has been, a registered migration agent.
2. She is not, and never has been, otherwise authorised to provide immigration assistance.
3. At all material times, she knew that she was not, and has never been, a registered migration agent.
4. At all material times, she knew that she was not, and has never been, otherwise authorised to provide immigration assistance.
Admissions in respect to Count 11 on the Indictment
5. On 29 August 2013, she possessed and controlled each and every of the foreign travel documents named in Count 11 on the Indictment which were not issued to her.
6. On 29 August 2013, she intended to possess each and every of the foreign travel documents named in Count 11 on the Indictment, and knew they were not issued to her.
Admissions in respect to Count 12 on the Indictment
7. On 29 August 2013, she possessed the cash in the amount of $30,000.
8. On 29 August 2013, she intended to possess the cash in the amount of $30,000.
In his opening remarks, the appellant's counsel accepted that, in 2013 ‑ 2016, many people, who went to the appellant and spoke to her about getting help with immigration, provided large sums of money for services that were never ultimately provided. The appellant was working out of an office on Canning Highway in Victoria Park (Canning Highway office), which was also occupied by Gan Li, who was a registered migration agent carrying on business as 'jc migration'. The defence case was that Gan Li was the person purporting to provide immigration assistance to the clients that the appellant brought into the business. Gan Li did not want any financial records of his work, just cash, and did not want to meet directly with clients. Because the appellant was prepared to work with him on this basis, he was in a 'perfect position to perpetuate a fraud'.[24]
[24] Trial ts 606 - 607.
In relation to the passports offence, the defence case was that the appellant had a reasonable excuse for possession of the foreign passports referred to in the indictment. That reasonable excuse was that the appellant was in possession of the passports for the purpose of providing them to a registered migration agent to provide immigration assistance.[25]
[25] Trial ts 607 - 608.
Conviction ground 2: misdirection as to elements of migration offences
It is convenient to begin with ground 2 of the conviction appeal, which in effect contends that the trial judge made a wrong decision on a question of law by misdirecting the jury as to the elements of the migration offences.
As noted above at [72], the appellant formally admitted that she was not a registered migration agent and that she knew this to be the case. The matters in issue in relation to the migration offences were whether the Crown had proved, beyond reasonable doubt, the physical element(s) that the appellant received the particularised fee (or part thereof) for giving immigration assistance and the associated fault element(s).
Direction given by the trial judge
The trial judge gave the jury a jury aid at the commencement of his directions about the elements of the charged offences. The passages of the jury aid concerning the elements of the migration offences were in the following terms:[26]
[26] Jury Aid 15 (Blue/Green AB 2420 - 2421) provided at trial ts 1769.
Counts 1 - 10: restriction on charging fees for immigration assistance
1. The offender was the [appellant] (identity);
2. The [appellant] is not a registered migration agent; and
3. The [appellant] received a fee for giving immigration assistance.
A person gives 'immigration assistance' if they use, or purport to use, knowledge of, or experience in, migration procedure to assist a visa applicant by:
(a)preparing, or helping to prepare, a visa application; or
(b) advising the visa applicant about the visa application.
A person does not give immigration assistance if they merely:
(a) do clerical work to prepare, or help prepare, an application or other document;
(b) provide translation or interpretation services to help prepare an application or other document; or
(c) pass on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
Factual issue with respect to the count you are considering
Has the Crown proved BRD that the [appellant] received a fee (in whole or part) for giving immigration assistance (at least some) to the person identified in the Crown particulars for the count you are considering?
Jury question
Has the Crown proved BRD that:
(a) the [appellant] received a fee (in whole or part) for her to give immigration assistance; and
(b) at the time of receipt of the fee, the [appellant]:
(i) intended to receive at least part of the fee for herself; and
(ii) intended to herself give at least some immigration assistance for the fee.
If no, then the [appellant] is entitled to be acquitted and you should return a verdict of not guilty.
If yes, then you should return a verdict of guilty.
For example: the [appellant] will not have committed an offence if, at the time of receipt, she intended for another person to give the whole of the immigration assistance. (original emphasis)
In his oral directions, the trial judge identified the elements of the migration offences in terms of pars 1 ‑ 3 of the jury aid, reproduced above at [87]. His Honour indicated that this was not an identity case and that the appellant had admitted she was not a registered migration agent. He indicated that these first two elements were not in issue and so the jury could give them a 'tick'.[27]
[27] Trial ts 1770 - 1771.
The trial judge then read the parts of the jury aid defining 'immigration assistance'. In doing so, his Honour said he did not understand there to be any issue in relation to counts 1 - 10 that the communications between the appellant and the relevant complainants were in relation to visa applications. The judge directed the jury that, in considering the third element, they needed to bear in mind the definition of 'immigration assistance', what it includes and what it does not include.[28]
[28] Trial ts 1771 - 1772.
The trial judge read the paragraph of the jury aid under the heading, 'Factual issue with respect to the count you are considering', and observed:[29]
So as a matter of evidence or inference, there must be a nexus between the action of receiving the fee such that the receipt can be characterised as a reward or recompense for immigration assistance to be provided. This is answered by reference to the [appellant's] intention at the relevant time.
[29] Trial ts 1772.
Later, the trial judge corrected the passage just quoted. After referring to the quoted passage, his Honour directed the jury:[30]
That in fact is not right. If you look at the physical element, which is in the jury question set out for you at sub-paragraph (a), that's the physical element about which you must be satisfied beyond reasonable doubt. Namely, did the [appellant] receive the fee in whole or part for her to give immigration assistance?
Now, that factual question needs to be proved not by reference to the actual intention of the [appellant] at that point in time, but by reference to the objective evidence in relation to this context and circumstances that the fee was paid to the [appellant] by the complainants.
So it's a factual question which must be answered as an element, just as the fault element which is intertwined with respect to what the [appellant] at the time of the receipt then intended to do with it.
So the factual question about which you must be satisfied beyond reasonable doubt is that the [appellant] received a fee in whole or part for her to give immigration assistance.
That's an objective question to be determined by reference to what the complainants said, the receipts that the [appellant] provided to them on payment of the various fees in respect of the count that you are considering.
[30] Trial ts 1789 - 1790.
The trial judge defined the critical question for the jury as that set out under the heading, 'jury question' in the jury aid. He said that par (a) of the jury question was concerned with the physical element of the offence, while par (b) was concerned with the intention of the appellant at the time she received the fees or payments from the complainants. His Honour emphasised that the jury must be satisfied, beyond reasonable doubt, of both parts of par (b) before they could convict the appellant.[31]
[31] Trial ts 1772 - 1773.
After referring to the example in the last paragraph of the passage quoted at [87] above, the trial judge observed:[32]
In the same way, if you find that she intended to pass the whole of the fee that she received onto a [third] party and not retain or keep any part of it for herself, then, again, jury question [(b)(i)] would not have been proven beyond reasonable doubt, and the [appellant] would be entitled to be acquitted.
[32] Trial ts 1774.
The trial judge referred to statements by the appellant in her recorded interviews that she was in a business relationship with Gan Li and that he was the registered migration agent who was in fact 'sitting behind her'. The appellant indicated that she was receiving the fees in their entirety for Gan Li and intended that Gan Li would give the immigration assistance in its entirety. The judge directed the jury that:[33]
For the purpose of this element, members of the jury, you would need to be satisfied beyond reasonable doubt that she did not intend to use a registered migration agent in whole for the purpose of the immigration assistance being sought by the complainants on behalf of their friends and family.
[33] Trial ts 1774.
The judge referred to the fact that the Crown particulars often referred to multiple payments relating to the one count. His Honour directed the jury that they must be unanimous as to proof beyond reasonable doubt of at least one of the particularised payments before they could convict the appellant.[34]
[34] Trial ts 1774 - 1776.
The judge noted that the oral and documentary evidence surrounding payment of fees to the appellant contained different descriptions as to the reason for or purpose of the payment. His Honour referred to descriptions of an 'application fee', an 'agent service fee', 'fees charged by the Immigration Department', and 'security deposit and department fee'.[35] The judge directed:[36]
So members of the jury, in this regard you must be satisfied beyond reasonable doubt that the [appellant] intended to receive at least part of the fee for herself, however it was described or whatever it was called, and that she intended to give at least some immigration assistance herself as a result of receiving the fee.
If you're not satisfied unanimously about the required intention of the [appellant], irrespective of the character of the payment in the way that I have directed you, then it is your duty to acquit the [appellant] because this element of the alleged offence in relation to the count you are considering will not have been proven to your satisfaction beyond reasonable doubt.
[35] Trial ts 1775 ‑ 1776.
[36] Trial ts 1776.
The judge directed the jury that, in relation to at least one of the particularised payments the subject of the relevant count, the jury must be unanimous that:[37]
1.the appellant intended to receive at least part of the fee or the payment for herself and that it was not wholly for another person; and
2.the appellant also intended to give at least some immigration assistance herself as a result of receiving the fee, as opposed to another person wholly giving the immigration assistance.
Appellant's submissions
[37] Trial ts 1776.
The appellant submits that there are three physical elements of the offence created by s 281(1) of the Migration Act:[38]
1.The person was not a registered migration agent (a circumstance for which the fault element is recklessness).
2.The person received a fee or other reward (conduct for which the fault element is intention).
3.The fee or other reward was given 'for' the giving of immigration assistance (a circumstance for which the fault element is recklessness).
[38] Appellant's submissions, pars 56 - 61.
The appellant submits that the trial judge's direction erroneously conflated the second conduct element and the third circumstance element into one element, and then broke up the fault elements into the two intentions referred to at [97] above.[39]
[39] Appellant's submissions, pars 63 - 66.
The appellant in effect submitted that the jury question should have been cast in the following terms (with changes shown being to the jury question set out at [87] above):[40]
Has the Crown proved BRD that:
(a) the [appellant] received a fee (in whole or part) for herself;
(b)the fee was for the appellant to give immigration assistance; and
(
bc) at the time of receipt of the fee, the [appellant]:(i) intended to receive at least part of the fee for herself; and
(ii)
intended to herself give at least some immigration assistance for the feewas reckless as to whether the fee was objectively of the character of a fee for the giving of immigration assistance by the appellant.[40] Appeal ts 113.
In the alternative, the appellant submitted that, even if there were only two physical elements to the migration offence, the trial judge identified the wrong question as to the required intention. The appellant says that the correct question was what the appellant intended the fee to be for. The appellant submits that the question posed by the trial judge concerned whether the appellant intended to give immigration assistance. The judge erroneously directed the jury to consider what the appellant intended to do for the fee once it was received, when the real question was whether she was reckless about whether the fee was in fact for the giving of immigration assistance by her.[41]
[41] Appellant's submissions, par 67; appeal ts 104 - 105, 106 - 109.
On the appellant's alternative argument, the jury question should have been cast in the following terms (with changes shown being to the jury question set out at [87] above):[42]
Has the Crown proved BRD that:
(a) the [appellant] received a fee (in whole or part) for her to give immigration assistance; and
(b) at the time of receipt of the fee, the [appellant]:
(i) intended to receive at least part of the fee for herself; and
(ii) intended that the fee be for the provision of immigration assistance by her
to herself give at least some immigration assistance for the fee.[42] Appeal ts 109.
In advancing the above contentions, junior counsel for the appellant submitted that s 281(1) of the Migration Act was concerned with a transaction rather than whether the accused gives immigration assistance for a fee. The critical question in relation to the physical elements was what the fee was for, ie, the purpose for which it was paid. This was an objective question to be ascertained by reference to the interactions between the appellant and the various complainants and to the circumstances known to both parties to the transaction.[43] The purpose for which the fee is paid cannot be altered by reference to extraneous factors outside of the transaction.[44] Counsel accepted that the trial judge's direction quoted at [91] above was correct.[45] On the appellant's construction, a person would not commit an offence against s 281(1) of the Migration Act if he or she received fees paid for the purpose of immigration assistance being provided by a fictitious third person.[46]
[43] Appeal ts 97 - 99, 183 ‑ 184.
[44] Appeal ts 106 - 107.
[45] Appeal ts 103 - 104.
[46] Appeal ts 99 - 100, 106.
Junior counsel for the appellant submitted that, if that objective question was answered affirmatively, the question was whether the appellant intended to receive a fee of that character or was reckless as to the nature of the fee.[47] The questions posed by the trial judge in the jury aid did not focus on the critical question of what the appellant intended the fee to be for. Rather, the trial judge posed the different question of what the appellant intended to do with the fee once it was received.[48]
Respondent's submissions
[47] Trial ts 104 - 105.
[48] Trial ts 107.
The respondent submits that there are two physical elements of the offence created by s 281(1) of the Migration Act:[49]
1.the person was not a registered migration agent (a circumstance for which the fault element is recklessness); and
2.the person received a fee for giving immigration assistance (conduct for which the fault element is intention both as to the receipt of the fee and the purpose for which the fee is received).
The respondent contends that the trial judge's questions for the jury were appropriately framed.[50]
[49] Respondent's submissions, pars 87 - 103.
[50] Respondent's submissions, pars 78 - 79.
The respondent also says that, even if the trial judge had accepted that there were three elements to the offence, the questions actually posed to the jury would not have changed. As the lower standard of recklessness encompasses the higher standard of intention, the way in which the questions were formulated for the jury imposed a higher standard on the Crown than that involved on the appellant's construction of the provision. The respondent says that, if there was an error of law, there was no resulting miscarriage of justice and no substantial miscarriage of justice.[51]
[51] Respondent's submissions, pars 104 - 114.
In relation to the appellant's alternative argument noted at [101] ‑ [103] above, the respondent says that there is no practical difference between the formulation proposed by the appellant and that adopted by the trial judge.[52]
Are there two or three physical elements to the migration offences?
[52] Appeal ts 164 - 166.
It appears from the above submissions that an issue in dispute between the parties is whether the offence created by s 281(1) of the Migration Act has two or three physical elements.
In our view, the trial judge correctly identified the two physical elements of the charged migration offences (pars 2 and 3 of the passage reproduced at [87] above). The second of those physical elements - that the appellant received a fee for giving immigration assistance - is conduct for which the fault element is intention. In our view, the conduct in receiving the fee cannot be divorced from what the fee was for, namely the giving of immigration assistance by the person receiving the fee. The prohibited conduct is not merely receiving a fee but rather is the receipt of a fee having the requisite character - it is the receipt of a fee for the giving of immigration assistance.
Even if we were wrong in that view, the trial judge's direction would not have involved any material error of law. The significance of the debate as to the number of physical elements concerns the attached fault elements. On the appellant's argument, the fault element of intention attaches to the physical element of receipt of the fee and the fault element of recklessness attaches to the physical element that the fee is for giving immigration assistance. However, under s 5.4(4) of the Code, proof of intention will satisfy the fault element of recklessness.
Therefore, if the appellant's characterisation of the physical elements of the migration offence is correct then the trial judge's approach would narrow the ways in which the Crown could prove the fault element to the appellant's advantage. The trial judge's direction that the Crown could prove the migration offence by proving that the appellant intentionally received a fee for giving immigration assistance was correct. The omission of an alternative means by which the Crown could prove that offence - by proving that the appellant intentionally received a fee and was reckless as to whether the fee was for giving immigration assistance ‑ would not involve any material error of law or miscarriage of justice, given the way the Crown case was presented.
Did the trial judge misdirect as to the required intention?
We are also of the view that the trial judge did not misdirect the jury as to the intention that the Crown had to prove in order to establish that the appellant committed the migration offences.
Each charged migration offence was that the appellant received a fee for giving immigration assistance. There is no dispute that the fee must have been for the giving of immigration assistance by the appellant, as opposed to some third person. The fault element which the Crown had to prove was that the appellant meant to engage in that conduct: ie, that she intended to receive a fee for the giving of immigration assistance by her. It was also common ground that the intention had to exist at the time the fee was received and not at some later time.
The question posed by the trial judge required the jury to be satisfied that, at the time the appellant received the fee, she intended to receive at least part of the fee for herself and intended to give at least some immigration assistance for the fee. In our view, if the appellant received a fee with that intention, then she would intentionally receive a fee for giving immigration assistance by her.
In our view, the trial judge's direction appropriately focused the jury's attention on the critical factual issues which the jury had to determine in the particular circumstances of this case in deciding whether the Crown had proved the fault element. The jury question directed attention to the appellant's intention at the time the relevant fee was received. It also directed attention to the need for the appellant to intend that the fee be for the provision of immigration assistance by her, as opposed to some third person. It did so by requiring the jury to be satisfied that the appellant intended to receive at least part of the fee for herself and intended to give at least some immigration assistance for the fee.
The difference between the trial judge's formulation of the question and that proposed by the appellant (as noted at [102] above) is, in our opinion, purely semantic. We can see no situation in the circumstances of the present case where different answers could have been given to the question formulated by the appellant and that posed by the trial judge. Junior counsel for the appellant was unable to identify such a scenario when invited to do so by the court.[53] On the evidence in this case, there is no substantive difference between the two different formulations of the question, and no material error of law or miscarriage of justice was involved in the trial judge's formulation.
Conclusion as to ground 2
[53] See appeal ts 185 - 190.
For the above reasons, the appellant has failed to establish that the trial judge's directions to the jury involved any wrong decision on a question of law or miscarriage of justice. While we would grant leave to appeal on ground 2, the ground is not established.
Conviction ground 3: unreasonable verdicts
We turn to consider conviction ground 3, which contends that the verdicts of guilty on counts 1, 2, 3, 4 and 8 were unreasonable or unsupported by the evidence.
General principles
The general principles governing an appeal on the ground of unreasonable verdicts are set out in M v The Queen.[54] In summary:[55]
1.The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
2.The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
3.That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
4.In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
5.A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
6.If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
7.The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.
[54] M v The Queen (1994) 181 CLR 487, recently reaffirmed in Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 [8] ‑ [12].
[55] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The State of Western Australia [2018] WASCA 68 [28] ‑ [34].
The task for this court is to consider the whole of the evidence for itself and determine whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt, which the court cannot assuage by having regard to the advantages the trial court can be taken to have had by reason of having seen and heard the evidence at trial.[56]
[56] M v The Queen (494 ‑ 495); Dansie [16].
In Pell v The Queen,[57] the High Court described the functional demarcation between the province of the jury and the province of the appellate court. The court emphasised that the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representatives of the community.[58] By contrast:[59]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (citation omitted)
Appellant's general submissions
[57] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123.
[58] Pell [37] - [38].
[59] Pell [39].
The particulars to ground 3 contend that it was not open to the jury to be satisfied beyond reasonable doubt that the fees that were the subject of counts 1, 2, 3, 4 and 8 were 'for' the giving of immigration assistance by the appellant.
In oral submissions, junior counsel for the appellant accepted that the jury could reasonably have been satisfied, beyond reasonable doubt, in relation to counts 1 - 4 and the first particularised payment of count 8 that:[60]
1.the appellant was not a migration agent and knew this to be the case;
2.the appellant received the particularised payments;
3.the payments were fees for the provision of immigration assistance (leaving aside the question of who the immigration assistance was to be provided by); and
4.the appellant intended to receive a fee for giving immigration assistance by her.
[60] Appeal ts 117 - 119, 128 - 129.
The appellant's contention in relation to counts 1 - 4 and the first particularised payment of count 8 was that the jury could not be satisfied, beyond reasonable doubt, that the fees received by the appellant were for immigration assistance to be provided by her (as opposed to by a person referred to as the 'boss' or a lawyer).[61]
[61] Appeal ts 119.
The appellant contends that her actual intention upon receipt of the fee was irrelevant to the question of whether this physical element of the migration offences was established. She contends that the objective characterisation of what the fee was for cannot be altered by factors which are extraneous to the transaction.[62] According to the appellant, the question is: what was the purpose of the payment?[63] In answering that question, attention must be confined to the communications between the parties to the transaction in the circumstances that are known to both parties.[64]
[62] Appeal ts 105 - 107, 181 - 182, 184.
[63] Appeal ts 111.
[64] Appeal ts 182 - 183.
Therefore, the appellant contends that, where a fee is paid for the express purpose of immigration assistance to be provided by a third person such as a 'boss' or a lawyer, then the fee cannot be characterised as a fee for the appellant giving immigration assistance. In those circumstances, receipt of the fee cannot constitute an offence against s 281(1) of the Migration Act, even if the third person was a fictious person whose existence was made up by the appellant who intended to provide any immigration assistance herself.[65]
[65] Appeal ts 110 - 111; see also appeal ts 124 - 125.
The second and third particularised payments for count 8 were of a total of $17,000 paid as a 'security deposit' fee for the Department of Immigration and Citizenship (later known as the Department of Immigration and Border Protection) (Department). The appellant contends that it was not open to the jury to be satisfied, beyond reasonable doubt, of either the physical element or the fault element in relation to these payments being fees for the giving of immigration assistance. The jury could not be satisfied that the funds paid were not a security deposit to be given to the Department rather than a fee for giving immigration assistance, or that the appellant intended to receive a fee for the provision of immigration assistance.[66]
[66] Appellant's submissions, pars 129 - 130; appeal ts 120, 129.
In advancing these submissions, the appellant accepts the correctness of the directions given by the trial judge to the jury, which are set out at [91] above.[67]
Respondent's general submissions
[67] See appeal ts 102 - 103.
The respondent contends that the question for the jury was whether the evidence, considered as a whole, objectively supported a conclusion that the appellant intended that the fee (however described) was for the giving of immigration assistance. The fact that the fee might be described by the appellant as being for some other purpose did not preclude the jury from being satisfied of that matter. The respondent says that an accused person cannot escape conviction of an offence under s 281(1) of the Migration Act by falsely and misleadingly describing a fee for the provision of immigration assistance as something else.[68]
Proper scope of the inquiry as to what the fee was for
[68] Respondent's submissions, pars 185 - 190.
As mentioned above at [109], the prohibition in s 281(1) of the Migration Act is against receiving a fee 'for' giving immigration assistance by the person receiving the fee. As the relevant fault element is intention, it is essential for the Crown to prove that the appellant intended the fee to be for the giving of immigration assistance by the appellant. It is not clear to us that the question of an accused's intention is necessarily irrelevant to the proper characterisation of what the fee is for, as contended by the appellant (see [125] above). In a particular case it might be that the fact that an accused person intends that a fee be for the provision of immigration assistance by the accused is a factor which counts in favour of the fee being characterised as being for giving immigration assistance by the accused. On that basis, the intention of an accused person need not be irrelevant to the question of whether the physical element of the migration offence is established.
Nevertheless, the case was left to the jury on the basis that the proper characterisation of what the fee was for was an objective question to be answered by reference to the context and circumstances in which the fee was paid to the appellant by the complainants (see [91] above). We will proceed to consider the case on the basis that it was left to the jury, and so will proceed on the assumption (without deciding) that the appellant's subjective intention is irrelevant to the question of what the fee was for.
In characterising what the fee was for, the content of communications between the appellant and the complainants will be of importance. However, we do not accept the appellant's submission that circumstances which are not known to the complainants will necessarily be irrelevant to the proper characterisation of what the fee was for. It seems to us that the proper characterisation of what the fee was for is to be assessed by reference to all of the objective circumstances that bear on that question.
For example, there was evidence in this case that complainants paid fees to the 'Jaycay Migration Agency', without necessarily being concerned as to the ownership or structure of that business. There was also evidence that the Jaycay Migration Agency was operated by the appellant who did the relevant work herself. In characterising a fee as being 'for' giving immigration assistance, the fact that Jaycay Migration Agency was the appellant's business and the work was done by her may be relevant even if those facts were not known to the complainants.
Operator of the Jaycay Migration Agency
Before dealing with the evidence on specific counts, we will consider the evidence and admissions as to the ownership and operation of the Jaycay Migration Agency, Jaycay Migrant Agent or Jaycay Migrant Agency (as it was variously described in the evidence), with which various complainants dealt.
It was an admitted fact that 'Jaycay Migrant' is not a business name registered with ASIC.[69]
[69] Exhibit 1, par 17 (Blue/Green AB 1452).
Gan Li gave evidence that he became a registered migration agent in 2012 and operated under the business name 'jc migration' from the Canning Highway offices he rented. In 2013, he moved to Narrogin for a business opportunity and entered into an arrangement with the appellant (who he understood was operating a matchmaking introduction business) for her to share the Canning Highway office in return for paying half the rent.[70] The general effect of his evidence was that he was not in business with the appellant and had no involvement in the Jaycay Migration Agency business. The appellant did not work for his migration agency business and his only relationship with the appellant, apart from a few discussions of client referrals, was sharing an office.[71] Apart from rent and one payment of $1,000 for a potential client, which was subsequently refunded, Gan Li did not receive any money from the appellant.[72]
[70] Trial ts 1189 - 1194.
[71] See, for example, trial ts 1202, 1204, 1222 - 1223, 1242.
[72] Trial ts 1224 ‑ 1225.
At the hearing of the appeal, junior counsel for the appellant accepted that it was open to the jury to accept Gan Li's evidence that he was not involved in the Jaycay Migration Agency.[73] It follows that the jury were also entitled to reject the statements made by the appellant to Commonwealth officers about her business arrangement with Gan Li. However, when interviewed by Commonwealth officers, the appellant did admit that she was the sole operator of the Jaycay Migration Agency business.[74]
[73] Appeal ts 126 - 127.
[74] See, for example, the transcript of exhibit 71.1 (Blue/Green AB 2191 - 2192, 2261, 2281).
The reference to the children's game of 'Chinese whispers' was unfortunate in a context where the accused and many of the witnesses were of Chinese heritage. However, the reference could not reasonably be taken to constitute an invitation to the jury to speculate as to the accuracy of the interpreted evidence or substitute their own view of that evidence. It was, in context, a reference to the potential loss of nuance referred to by Kenny J in Perera v Minister for Immigration (at [235] above) and the effect that this has on the assessment of credibility, as the passage which immediately follows the reference makes clear.
We are fortified in the view that the judge's direction would not be taken as an invitation to speculate about the accuracy of the interpretation of evidence by the fact that the appellant's experienced and competent trial counsel raised no objection to this aspect of the trial judge's direction when it was given. It would be expected that defence counsel would have done so if, in the atmosphere of the trial, there was reason to be concerned that the jury might apprehend the direction to invite speculation of that kind. On appeal, senior counsel for the appellant indicated that the lack of objection was not a matter of some forensic decision made by counsel not to challenge an erroneous decision.[187] That suggests that trial counsel, listening to the direction as it was given, understood it in the way we have construed the transcript of the direction.
[187] Appeal ts 142.
Therefore, while we would also grant leave to appeal on ground 1, in our view the ground of appeal is not established.
Appeal against sentence
We turn to consider the appellant's appeal against sentence on the sole ground that the total effective sentence of 6 years 6 months' imprisonment infringes the first limb of the totality principle.
Circumstances of the offending
The trial judge made the following findings as to the circumstances of the appellant's offending.[188]
[188] Trial ts 1874 - 1887.
The appellant is a citizen of the People's Republic of China who was, at all relevant times, a temporary resident in Australia. At the time of sentencing, the appellant was not, and never had been, registered as a migration agent or otherwise authorised to provide immigration assistance. This was known to the appellant at all material times.
In about March 2013, the appellant approached Gan Li, a registered migration agent who operated the migration business 'jc migration', in relation to subletting the Canning Highway office. There were discussions between the appellant and Gan Li to the effect that the appellant would refer clients to him, although this did not occur in a 'meaningful or sensible way' during the period of the offending.
From about March 2013, the appellant operated a business called 'Jaycay Migrant Agent', by which she offered immigration assistance services to paying clients. The appellant generated business records and issued receipts for the purpose of this business, which displayed the business name, her own name and contact details, and an ABN registered in her name. The appellant advertised her immigration services in a local Chinese newspaper. She was not working for Gan Li or any other person. Gan Li was not involved in the provision of migration assistance to her clients and there was no 'boss' for the purpose of sentencing.
The appellant unlawfully received fees for giving immigration assistance of at least $227,655, of which $188,235 remained outstanding at the time of sentencing.
Counts 1 and 2: fees received from Pingping Ban
Counts 1 and 2 concerned fees received by the appellant from Pingping Ban for providing immigration assistance to her husband Weiliang Lu. Weiliang Lu and Pingping Ban sought immigration assistance at the relevant time because Weiliang Lu was unemployed and needed employment to retain his 457 visa. Pingping Ban paid a total of $25,620 to the appellant as fees for immigration assistance to obtain a 457 visa (count 1) and a permanent residency visa (count 2). Weiliang Lu was led to believe that he had been granted a new employer nomination by a forged letter he received, purportedly from the Department. Subsequently, Weiliang Lu received a call from the Department indicating that his 457 visa could be cancelled because he did not have a new employer.
In around May 2014, the appellant advised Weiliang Lu and Pingping Ban that they did not meet the visa requirements, despite never having lodged a visa application with the Department on their behalf. Although the appellant refunded all money paid, the impact of the offending was ongoing, given that Weiliang Lu and Pingping Ban still needed to engage a lawful migration agent to attend to their application.
Count 3: fees received from Meirong Li and Trevor Wilson
Count 3 concerned fees received from Meirong Li and Trevor Wilson in respect of immigration assistance for Meirong Li. At the relevant time, Meirong Li was residing in Australia on a guardianship visa to care for her daughter who was studying in Perth. The appellant and Meirong Li were previously friends.
The appellant offered to provide immigration assistance to Meirong Li on the basis that it would be free of charge, a 'very famous lawyer' would assist in the process and the cost of obtaining the 'marriage visa' would be $10,000. Meirong Li accepted the appellant's assistance following her engagement to Trevor Wilson. Meirong Li, Trevor Wilson, the appellant and a purported lawyer met at the appellant's Canning Highway office for the purpose of progressing the 'marriage visa' application. Meirong Li and Trevor Wilson paid the appellant a total of $8,500 as fees for immigration assistance to obtain a partner visa for Meirong Li.
In around June 2013, Meirong Li received forged documents from the appellant, which stated that a valid visa application had been received by the Department and that Meirong Li had been granted a bridging visa. The visa application was lodged on 24 June 2013. On 26 June 2013, the Department sent a letter to Meirong Li, stating that the application was not valid because a condition of Meirong Li's existing visa prevented her from applying for another visa while in Australia.
Meirong Li did not fully appreciate the contents of the letter from the Department at the relevant time and was operating on the basis of advice provided to her by the appellant. Meirong Li never saw the letter from the Department. The appellant showed the letter to Trevor Wilson at a later stage and a copy was found in the appellant's office during the execution of a search warrant on 29 August 2013.
Following receipt of the purported bridging visa, the appellant told Meirong Li that to 'activate her visa' she needed to leave Australia on 1 August 2013 and return to China. The appellant told her that she could then bring her other daughter to Australia. On or about 1 August 2013, Meirong Li went to depart on a flight to China. While going through customs, Meirong Li was informed that she would not be permitted entry back into Australia if she did not have a new visa. Her guardianship visa had expired on 31 July 2013, and she held no new or bridging visa at the time.
Meirong Li left Australia on this occasion, as she felt that she had no choice but to do so. Whilst in China, the appellant advised her and Trevor Wilson that the visa application was unsuccessful because the Department did not consider their relationship to be authentic. Meirong Li was unable to return to Australia until February 2015, after a subsequent application for a partner visa was granted on 5 January 2015.
Count 4: fees received from Bo Zeng
Count 4 concerned fees received by the appellant from Bo Zeng for providing immigration assistance to his family in China. In 2013, the appellant met Bo Zeng after he responded to her advertisement in a local newspaper. He paid the appellant $3,000 for the purpose of finding him a job, which the appellant did not do. Before refunding the money to Bo Zeng, the appellant advised him that he could apply for 457 visas through her, in a position as a farmer.
Bo Zeng indicated to the appellant that he had relatives in China who would be interested in this type of visa and that the visa would be for Hanxiong Yin, his brother‑in‑law. The appellant advised Bo Zeng that, to obtain a visa, a deposit of $10,000 was required.
In February 2014, Bo Zeng paid the first instalment to the appellant. In February 2015, the appellant advised him that the 457 visa had been granted, prompting him to pay a further sum of $14,800 to the appellant. However, Bo Zeng's family never came to Australia. The appellant provided a cheque for $40,000 to refund Bo Zeng (which included additional money for a motor vehicle). However, he was unable to cash the cheque at the bank, as there was no money available.
Bo Zeng paid the appellant a total of $24,800 as fees for immigration assistance in obtaining 457 visas for his brother‑in‑law and family. No visa application was ever identified by Departmental records as having been lodged, but Hanxiong Yin and his family participated in a health check on 9 April 2014. At the time of sentencing, Bo Zeng had not received a refund from the appellant.
Count 5: fees received from Liyan Hao
Count 5 concerned fees received by the appellant from Liyan Hao for providing immigration assistance to her son, Mingyuang Xu. The appellant met Liyan Hao after Liyan Hao responded to the appellant's advertisement in a local Chinese newspaper. Liyan Hao informed the appellant that her son in China was involved in an incident when he was 16 years old and had been placed in an institution. The appellant said it was '100 per cent yes possible' for Liyan Hao's son to obtain a visa.
In mid‑2014, Liyan Hao attended the appellant's Canning Highway office. The appellant advised her that there was a waiting period of about 13 months for obtaining a visa. On 11 June 2015, Liyan Hao paid the appellant $5,835 upon the appellant's advice that the Department had pre‑approved her son's visa application. On 16 June 2015, the appellant and Liyan Hao signed a contract.
On 18 June 2015, the appellant informed Liyan Hao via WeChat that the visa had been granted for one year, providing a security deposit was paid. The appellant said that the security deposit must be paid through Liyan Hao's agent (ie, the appellant). On 16 July 2015, Liyan Hao paid the further sum of $16,000 to the appellant. When Liyan Hao attempted to check the visa status online, she could not see the visa status for her son's application. The appellant said that it 'was not yet ready'. After calling the Department, Liyan Hao was advised that there was no application for her son's visa and that there had been no payment of any application fee or security deposit.
Departmental records showed that no visa application was ever lodged during the relevant period but indicated that Mingyuang Xu participated in a health check on 6 July 2015. Liyan Hao paid a total of $21,835 to the appellant as fees for immigration assistance in relation to the obtaining of a visa for her son. She received a $200 refund from one of the appellant's associates.
Counts 6 and 7: fees received from Peijun Lu
Counts 6 and 7 concerned fees received by the appellant from Peijun Lu for providing immigration assistance to her friends, Chong Jiang and Jie Jiang. In early 2013, Peijun Lu was referred to the appellant by a friend, on the basis that Peijun Lu was seeking to obtain a tourist visa for her husband, Shanglin Liang. The appellant arranged a tourist visa for Shanglin Liang in the period March to May 2013. The appellant told Peijun Lu that she was an employee of a large company with a few departments under her, that the business was involved in various types of visas, that she was from Canada and had a licence to be a solicitor.
The appellant asked Shanglin Liang and/or Peijun Lu if they would like to refer some people who wanted to come to Australia. She agreed to assist Chong Jiang obtain a 457 visa to migrate to Australia from China. Chong Jiang transferred $25,000 to Peijun Lu for this purpose. Peijun Lu provided this money to the appellant (count 6). The appellant agreed to accept $30,000, of which $5,000 was paid by Peijun Lu herself, despite the appellant having asked for $35,000. The appellant indicated to Peijun Lu that the number of positions were limited and that 'the boss' had informed her that whoever paid the money first would obtain the positions. The appellant facilitated the payments from Peijun Lu by taking her to various banks (as Peijun Lu did not speak English), speaking to the bank tellers and then taking the cash withdrawn by Peijun Lu.
Jie Jiang was also referred to the appellant by Peijun Lu. The appellant told Peijun Lu that $24,800 was required for Jie Jiang's 457 farmer visa. Jie Jiang transferred $24,700 to Peijun Lu who then paid the appellant $24,800, which included $100 that Peijun Lu had contributed herself (count 7). In total, Chong Jiang paid $30,000, Jie Jiang paid $24,800 and Peijun Lu contributed $5,100 to the appellant. No visa applications for either Chong Jiang or Jie Jiang were identified by Departmental records, although records indicated that both participated in a health check.
Count 8: fees received from Shanglin Liang
Count 8 concerned fees received by the appellant from Shanglin Liang for providing immigration assistance to him. Prior to Shanglin Liang's marriage to Peijun Lu in July 2014, the appellant had previously assisted them to obtain tourist visas in March 2013 and April 2014.
In August 2014, Shanglin Liang paid $8,398 to the appellant for purported charges relating to his partner visa, of which $2,000 was said to be the fee. Shanglin Liang also paid money to the appellant in relation to health insurance policies, after the appellant advised him that he was required to have health insurance whilst in Australia. The appellant also advised Shanglin Liang that his visa could be granted within three to four months if he paid $17,000. As a result, in March 2015, he paid $10,000 in cash to one of the appellant's associates. A further $7,000 was transferred to the appellant's Commonwealth bank account.
On 10 October 2015, an officer of the Department contacted Shanglin Liang, requesting that further material be provided in relation to his partner visa application. At a meeting with the officer the next day, he queried the $17,000 payment and was informed that there was no such charge. The appellant then agreed to refund the $17,000 to Shanglin Liang. At the time of sentencing, Shanglin Liang had never received a refund, despite having paid a total of $19,000 to the appellant as fees for immigration assistance.
Departmental records indicated that on 3 September 2014, an application for a bridging visa in association with a combined partner visa was made. On 19 September 2014, a bridging visa was granted. Departmental records showed that two payments were received in relation to Shanglin Liang's visa application for $4,851.37 on 21 August 2014 and $4,624.41 on 3 September 2014. No payments in the amount of $17,000 were recorded.
Count 9: fees received from Chun Jiang
Count 9 concerned fees received by the appellant from Chun Jiang for providing immigration assistance to her brother, Feng Jiang. Chun Jiang was referred to the appellant by Peijun Lu for the purpose of obtaining immigration assistance for her brother in China. She initially spoke to the appellant on the telephone to obtain information that she could provide to her brother in relation to the requirements for an Australian visa.
In April 2014, the appellant visited Chun Jiang's house to check her brother's information. On 30 May 2014, she signed a Jaycay Migrant Agent contract in relation to obtaining a working visa for Feng Jiang. The appellant initially requested an $18,000 deposit but subsequently agreed to accept $14,000, which was paid by Chun Jiang.
In August 2015, the appellant and Chun Jiang were communicating via WeChat and it was ascertained that Feng Jiang's visa had not been obtained. The appellant advised Chun Jiang that, for the money to be repaid, certain forms needed to be completed.
Departmental records indicated that Feng Jiang undertook health checks on 29 April 2015 and 9 July 2015, but no lodged visa application was identified.
Count 10: fees received from Lianghao Chen
Count 10 concerned fees received by the appellant from Lianghao Chen for providing immigration assistance to his friends, Xiaoyun Chen, Bangshan Li, Mingwei Cai and their respective families. In early 2014, the appellant first met with Lianghao Chen, after he saw the appellant's advertisement in a newspaper and contacted the appellant in relation to persons in his hometown who wanted to migrate to Australia. He signed a Jaycay Migrant contract in relation to Xiaoyun Chen, Bangshan Li and Mingwei Cai. At that time, the appellant stated that the first instalment for each applicant would be $18,000 and that a second instalment of $24,000 would be payable when the visa applicant arrived in Australia. On 10 June 2014, Lianghao Chen paid three instalments of $18,000 to the appellant, totalling $54,000.
In February 2015, Lianghao Chen travelled to China upon being told by the appellant that the 'visas were ready for the families to come to Australia'. The appellant provided Lianghao Chen with fraudulent and false letters in relation to Xiaoyun Chen and Ping Guo, which stated that their visas had been granted. Based on the appellant's representations, each of the families travelled to Guangzhou Airport to fly to Perth but were informed by airport staff that they could not locate any information in relation to the alleged visas. While the appellant remained in Perth, she asked Lianghao Chen to 'keep checking'.
Between 27 February 2015 and 8 April 2015, Lianghao Chen and the families continued to check the visa information but were unable to ascertain any visa grants. On or around 8 April 2015, Weiying Chen, his daughter, flew to Guangzhou to assist him but was unsuccessful. The appellant subsequently flew to Guangzhou for four to five days and was also unable to remedy the visa issue.
The families did not come to Australia. The appellant agreed to refund a portion of the money paid by Lianghao Chen and issued him with a cheque for $104,000 dated 18 May 2015. He was unable to deposit the cheque as there was no cash in the account. The appellant provided him with a subsequent cheque for $50,000 dated 8 September 2015, which he was again unable to deposit.
Departmental records indicated that Xiaoyun Chen and Mingwei Cai underwent health checks on 25 August 2014 and 8 October 2014 respectively. The records did not identify any lodged visa applications for Xiaoyun Chen, Bangshan Li and Mingwei Cai.
Count 11: passports offence
Count 11 concerned the appellant's possession of 29 passports issued by the People's Republic of China. The appellant met Xiujing Qin, after Xiujing Qin saw the appellant's advertisement in a local newspaper and contacted the appellant in relation to obtaining Australian tourist visas for her aunty and uncle in China. The appellant subsequently informed Xiujing Qin that her aunty and uncle's tourist visas had been granted, but suggested the idea of a 457 visa application if they were interested in an agricultural position.
On the basis of the information supplied by the appellant, Xiujing Qin's aunty and uncle changed their visas to a 457 visa application. Xiujing Qin's other relatives and friends were also interested in coming to Australia on 457 visas. The appellant agreed to make the applications and told the applicants to provide documents and passports for the purpose of the appellant making the visa applications. The passports were sent to the appellant after the appellant told Xiujing Qin that the original passports 'needed a visa sticker to be placed in them for the purpose of the visa applications'.
On 29 August 2013, search warrants were executed at Xiujing Qin's residence, the appellant's residential address and the Canning Highway office. All passports the subject of count 11 were located at the appellant's residence and had been sent to Australia on the appellant's instructions. Once the passports were seized, the appellant refunded the money paid by Xiujing Qin and her family.
There was no requirement for a passport to be sent to Australia to obtain a visa.
Count 12: money offence
During the execution of the search warrant at the appellant's residence on 29 August 2013, $30,000 in cash was located in the appellant's possession, which was the proceeds of crime and was derived from migration offences occurring prior to August 2013.
The offending generally
The trial judge made the following findings as to the overall criminality and nature of the offending.[189]
[189] Trial ts 1875 - 1876, 1887.
The appellant engaged in a 'prolonged, systematic, predatory and dishonest scheme', by which she represented that she was a qualified migration agent and was therefore lawfully able to provide immigration assistance. She sought to engender the trust of her clients through various means and took significant sums of money from them for services she was purportedly providing.
The appellant took advantage of the fact that her clients were vulnerable non-English speakers and utilised forged documents. She misled clients and often failed to obtain or submit the relevant visa application, leaving the client in a disadvantaged position and adding to the burden of attempting to remedy the issues that the appellant caused. She often failed to refund the fees to the clients, despite representing that a refund would be available if the application was unsuccessful.
When confronted by the complainants, the appellant blamed others and provided misleading explanations knowing that the language barrier would lessen the likelihood of the clients determining the true position. She used the authority and power of her position, by holding herself out as a migration agent, to deal with government departments.
The offending was not isolated or opportunistic and occurred over a period of almost 2 years 4 months, from on or about 13 March 2013 until 7 July 2015. It was the result of calculated, premeditated decisions by the appellant, which involved a significant effort and considerable planning, all for the purpose of deriving a commercial benefit. The offences represented a gross and significant breach of trust, given the appellant's representations to be a lawful migration agent and the complainants' particular circumstances, who were in an 'extreme vulnerable position'. The offending involved substantial sums of money, with the appellant having unlawfully received fees of at least $227,655, was across borders and was difficult to detect and prosecute by reason of the language barrier and nature of the offending.
Victim impact
The trial judge made the following findings as to the impact of the appellant's offending on Liyan Hao, Lianghao Chen, Shanglin Liang, Peijun Lu and Meirong Li.[190]
[190] Trial ts 1888 ‑ 1890.
The victim impact statements of these five complainants spoke to the 'enormous mental damage and misfortune to their families' caused by the appellant's conduct, as well as to substantial financial losses, loss of employment and change of position with respect to existing status quo work. The impact of the offending permeated through 'the various layers of the family structures in this country and also in China' and the extent of the loss and damage caused will be ongoing psychologically for the complainants and for other people indirectly affected by the appellant's offending.
In particular, the victim impact statement of Meirong Li indicated 'the depth to which the harm and hurt in relation to this type of offending goes'. In her statement, Meirong Li spoke to the 'great impact and trauma' that the appellant's offending had caused on her and her family's lives. She also spoke of the financial pressure, disruption to her life during the period that she remained in China and lack of trust caused by the appellant's offending.
In relation to the complainants generally, the trial judge found that there had been substantial financial loss as a direct result of funds received by the appellant and not repaid at the time of sentencing, as well as a substantial impact on their lives emotionally and psychologically. The extended families of the complainants had also been affected.[191]
Appellant's personal circumstances
[191] Trial ts 1888.
The trial judge made the following findings as to the appellant's personal circumstances.[192]
[192] Trial ts 1891 ‑ 1893, 1894.
The appellant was almost 39 years old at the time of sentencing. She was born in China and had a positive upbringing and a full education. She excelled in her studies, leading to her establishing a business involving teaching English to children and others. In March 2012, the appellant arrived in Australia. Her marriage failed, which placed a 'great deal of personal, emotional and financial stress' on her.
After the period in which the offending occurred, the appellant received a diagnosis of adjustment disorder, arising out of stressors and mental health issues. Those stressors and mental health issues explained in part the appellant's conduct during the relevant period of the offending. However, the trial judge found that the degree of calculation, planning and premeditation was such that the offending could not be explained as wholly caused by the appellant's personal mental health issues and stressors, on the basis of the nature of the offending, the considerable period of time over which it occurred and the appellant's educated background.
In relation to the appellant's motivation for the offending, the trial judge found that, to some degree, the appellant wished to assist others but the gain of commercial benefit for herself was ingrained in the appellant's offending.
There was no evidence as to whether the appellant formally engaged a registered migration agent to complete any of the proposed purported visa applications that she was facilitating. The timing of the appellant's diagnosis was consistent with the 'matter coming to a head'. It was unclear to the trial judge whether there was any real prospect of full refunds being made or where each of the individual matters would have gone.
The appellant's time in custody will carry a degree of hardship by reason of the fact that she is in a foreign country, her parents live in China and there is little or no prospect that her parents will be able to visit her. The appellant's medical conditions identified in the psychological report will be 'easily dealt with' while in custody and did not attract any particular mitigation.
At the time of sentencing, the appellant had good prospects of rehabilitation at some future point in time, had the ability to behave pro‑socially and was a low risk of future offending.
Trial judge's approach
The trial judge had regard to the relevant considerations in s 16A(2) of the Crimes Act 1914 (Cth) and regarded the need for general deterrence as an important consideration, given the nature of the regulation required to prevent harm to innocent people who are extremely vulnerable in their personal circumstances.[193] His Honour identified the following aggravating features of the offending:[194]
1.The appellant continued the course of unlawful conduct, even after becoming aware that she was the subject of investigation by Commonwealth officers.
2.The appellant was prepared to involve others in the scheme to assist her for the purpose of committing the offences.
[193] Trial ts 1893 ‑ 1894.
[194] Trial ts 1887 - 1888.
The trial judge identified the following mitigating factors:[195]
1.The appellant did cooperate to some extent in search interviews by answering questions.
2.The appellant had no prior criminal history in Australia and at the time of sentencing was treated as a person of otherwise prior good character.
[195] Trial ts 1891.
The trial judge found that there was no mitigation to be found in any material before the court which would demonstrate any degree of remorse or insight by the appellant in relation to the nature and seriousness of the offending. The appellant did not express contrition or offer any apology to the complainants, but the trial judge did note that some of the complainants received full refunds.[196]
General principles
[196] Trial ts 1891, 1893 ‑ 1894.
The general principles applicable to appeals of the type brought by the appellant in this case are well established and have been described in many cases decided by this court. This court may only intervene when material error is established. It is not enough that this court disagrees with the sentence imposed. Where, as in this case, the appellant relies upon implied error, it must be demonstrated, after a consideration of all relevant facts and circumstances, that the outcome was unreasonable or plainly unjust.[197]
[197] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The totality principle comprises two limbs. A generally accepted statement of the totality principle was made by McLure JA in Roffey v The State of Western Australia:[198]
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up.
(citations omitted)
Disposition
[198] Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
As the Chief Justice has explained at [30] ‑ [39] of his reasons, the appellant's offending, considered as a whole, was clearly serious in nature. It had the aggravating features identified by the trial judge and involved a persistent course of planned dishonest conduct by the appellant over a lengthy period. It was conduct which s 281(1) of the Migration Act was designed to prohibit, as reflected in the second reading speech quoted at [55] above. Both the rewards obtained by the appellant and the deleterious impact on those who sought to engage her services were significant. The individual offences were of a serious nature, as reflected in the maximum term of imprisonment of 10 years provided for in the case of all of the offences of which the appellant was convicted. The appellant does not contend any of the individual sentences imposed by the trial judge to be manifestly excessive. There were limited mitigating factors.
Where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.[199] The point of having regard to what has been done in other comparable cases throughout the Commonwealth is twofold:[200]
1.It can and should provide guidance as to the identification and application of relevant sentencing principles.
2.The analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine an impugned sentence.
[199] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [57].
[200] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [18], [26].
However, the parties were able to cite only two rather old decisions of intermediate appellate courts relating to migration offences which were committed in dissimilar circumstances to the present case.[201] There are no comparable cases of intermediate appellate courts from which sentencing patterns and a range of sentences can be discerned. The search for comparable cases is also complicated in the case of an appeal on grounds of totality by the wide variety of circumstances in which multiple offences can be committed, which may make finding and analysing true comparators difficult or impossible.
[201] R v Miranda [2002] NSWCCA 89; (2002) 128 A Crim R 362; R v Wanna (1997) 42 NSWLR 1.
The absence of comparable cases does not preclude the conclusion that a total effective sentence infringes the totality principle. The absence of comparable cases simply means that the ground is to be decided having regard to all of the facts, circumstances and applicable sentencing principles.
While recognising the serious nature of the appellant's offending, in our view, a sentence of 6 years 6 months' imprisonment is disproportionate to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally. In our view, the appellant's sole ground of appeal against sentence is established.
This court has the necessary material to resentence the appellant. As there was no complaint about any of the individual sentences, we would not interfere with those sentences. In our view, a total sentence of 4 years 9 months' imprisonment reflects the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally. We would give effect to that view by ordering the sentence for counts 8 and 12 to be served cumulatively upon the sentence for count 4, and ordering all other sentences to be served concurrently with the sentences for counts 4, 8 and 12. In our view, the appropriate non‑parole period for that sentence is 3 years 2 months. The sentences should continue to be backdated to 26 November 2020.
After the hearing of the appeal and after being notified of judgment delivery, the appellant's solicitors sent an email to the court containing a number of factual assertions which were said to be relevant to the exercise of this court's discretion to resentence the appellant in the event that the appeal against sentence was allowed. The facts were not asserted in the material placed before either the trial court at sentencing or this court at the hearing of the appeal. While the email makes reference to the court's power to admit additional evidence in an appeal, the appellant has not filed an application in the appeal for leave to adduce additional evidence supported by an affidavit containing the proposed evidence. The email indicates that the facts were known to the appellant and her legal advisers at all material times. No leave to file the further material has been sought or granted. This was an entirely inappropriate course for the appellant's solicitor's to adopt. We would not receive material which has been filed without leave just prior to the date listed for judgment delivery making assertions to which the respondent has not been given an opportunity to respond. In any event, even if we were to receive the material it would not, in all the circumstances, lead us to impose different sentences to those we have indicated.
Orders
For the above reasons, none of the grounds of appeal against conviction are established and the appeal against conviction should be dismissed. We would also dismiss the applications to adduce additional evidence in the conviction appeal, which were rendered redundant by the abandonment of ground 4 of the conviction appeal. We would allow the appeal against sentence and substitute a new total effective sentence of 4 years 9 months' imprisonment.
Therefore, the following orders should be made in each appeal:
CACR 24 of 2021 (appeal against conviction)
1.Leave to appeal is granted on grounds 1, 2 and 3.
2.The appellant's application in an appeal dated 31 October 2022, seeking leave to adduce additional evidence in the appeal, is dismissed.
3.The respondent's application in an appeal dated 24 November 2022, seeking leave to adduce additional evidence in the appeal, is dismissed.
4.The appeal is dismissed.
CACR 25 of 2021 (appeal against sentence)
1.Leave to appeal is granted on the sole ground of appeal.
2.The appeal is allowed.
3.The orders for accumulation and concurrency of the sentences imposed on the appellant on District Court of Western Australia indictment 944 of 2017 (Indictment) are set aside and the following orders are substituted:
(a)The sentence of 2 years imprisonment imposed on count 8 of the Indictment and the sentence of 6 months' imprisonment imposed on count 12 of the Indictment are to be served cumulatively upon the sentence of 2 years 3 months' imprisonment imposed on count 4 of the Indictment and cumulatively upon each other.
(b)The sentences imposed on counts 1 - 3, 5 - 7 and 9 - 11 of the Indictment are to be served concurrently with each other and concurrently with the sentences imposed on counts 4, 8 and 12 of the Indictment.
4.The order of the District Court fixing a non-parole period of 4 years 6 months is set aside and an order fixing a non-parole period of 3 years 2 months is substituted.
5.The sentences imposed on counts 1 - 7 and 9 - 11 of the Indictment, and the total effective sentence of 4 years 9 months' imprisonment, are taken to have begun on 26 November 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
10 FEBRUARY 2023
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