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2
District Court 17 August 2007

R v Van Dang TRAN

[2007] NSWDC 310

Fraud & dishonesty
CRIMINAL LAW SENTENCE PROCEEDS OF CRIME CURRENCY TRANSFER MONEY AS INSTRUMENT OF CRIME DISCOUNT FOR COOPERATION

Citation: R v Van Dang TRAN [2007] NSWDC 310
Court: District Court of New South Wales
Date: 17 August 2007
Judge(s): Norrish QC DCJ

Background

The offender was a Vietnamese commercial airline pilot employed by Vietnam Airlines, flying international routes including to Australia. Over approximately one year, between July 2005 and June 2006, he repeatedly transported large amounts of cash from Australia to Vietnam on behalf of a network of money transfer businesses operating out of Footscray (Victoria), St Albans, Bankstown, and Cabramatta.

The Crown alleged the four businesses operated jointly as a money laundering enterprise. The offender's involvement began after he sought to borrow around $50,000 from a contact to fund a community building project in Vietnam. He was subsequently recruited to carry cash for a commission of between 0.5 and 0.8 percent of each amount transported. The total value of the money he carried exceeded $1 million.

He was charged under s 400.3(2) of the Criminal Code Act 1995 (Cth) with dealing in money recklessly as to the risk that it would become an instrument of crime. The offence carries a maximum penalty of 12 years imprisonment. Originally facing 18 charges under a different provision, those were consolidated into one charge representing the totality of his criminal conduct.

  • Whether a 25 percent discount for an early guilty plea was appropriate in a Commonwealth matter, notwithstanding the High Court's decision in Wong v The Queen
  • The proper objective seriousness of the offence, including the role of the total value of money dealt with and the offender's level of knowledge and recklessness
  • What weight to give subjective factors including the offender's altruistic motivation, good character, cooperation with authorities, and remorse
  • The appropriate head sentence and non-parole period, including how to treat the non-parole period for a foreign national who would likely be deported on release

Decision

Norrish QC DCJ accepted that a 25 percent discount for the utilitarian value of an early guilty plea was appropriate in Commonwealth matters, consistent with Court of Criminal Appeal authority including R v Sukkar, R v Bugeja, and R v Z. The Crown conceded the plea was entered at the first reasonable opportunity, and the court recognised it as facilitating the course of justice.

On objective seriousness, the court found the offence fell in the mid-range. The total amount transported exceeded $1 million, which aggravated the matter. However, the offender's role was as a courier rather than an organiser of the scheme, and his knowledge was limited: he believed the transfers helped Vietnamese Australians avoid high banking fees rather than launder criminal proceeds. His recklessness, rather than actual knowledge, defined his culpability.

The offender's subjective case was treated favourably. The court accepted his initial involvement arose from genuinely altruistic motivations connected to his desire to support his home village. His cooperation with the Australian Federal Police and his contrition were also given weight. He had no prior criminal history and was assessed as posing a low risk of reoffending.

On the non-parole period, the court acknowledged a legal complexity unique to foreign nationals: the usual considerations underpinning parole (community supervision and reintegration support) have reduced practical application for a person who would be deported on release. Despite this, the court considered it appropriate to fix a non-parole period by reference to the same principles that apply generally, including the offender's contrition and good custodial conduct.

Orders Made

  • The offender was convicted of the charge under s 400.3(2) of the Criminal Code Act 1995 (Cth).
  • Sentenced to imprisonment for 4 years and 6 months, commencing 4 June 2006 and expiring 3 December 2010.
  • Non-parole period fixed at 2 years and 6 months, commencing 4 June 2006 and expiring 3 December 2008.
  • Conditions of parole and any release to parole were noted as matters for the parole authorities; deportation was anticipated upon release.

Key Takeaways

  • A 25 percent discount for an early guilty plea remains available in Commonwealth sentencing proceedings, even after Wong v The Queen, where the plea is entered at the first reasonable opportunity and the Crown concedes its utilitarian benefit.
  • Recklessness as to whether money will become an instrument of crime, rather than actual knowledge of a criminal purpose, can still found a serious money laundering conviction under s 400.3(2) of the Criminal Code Act 1995 (Cth).
  • The District Court accepted that an offender's limited role as a courier, combined with a genuine (though mistaken) belief about the lawfulness of transfers, bears on objective seriousness and reduces moral culpability, even where the total value is significant.
  • Where a defendant is a foreign national facing deportation on release, the conventional rationale for a non-parole period (community reintegration and supervised parole) may have limited practical application, but the court held that standard non-parole principles should still be applied as far as relevant.
  • Cooperation with investigating authorities and genuine contrition are recognised as mitigating factors in Commonwealth sentencing, capable of influencing both the head sentence and the non-parole period.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 400.3(2)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Financial Transactions Reports Act 1988 (Cth)
- Australian Crime Commission Act 2002 (Cth)

Cases:
- Wong v The Queen (2001) 76 ALJR 79
- R v Sukkar [2006] NSWCCA 92
- R v Bugeja [2001] NSWCCA 196
- R v Z [2006] NSWCCA 342
- Ansari & Ansari v R [2007] NSWCCA 204
- Savvas v The Queen (1995) 183 CLR 1
- Pearce v The Queen (1998) 194 CLR 610
- R v Olbrich (1999) 199 CLR 270
- Ibbs v The Queen (1987) 163 CLR 451
- Veen (No 2) v The Queen (1988) 164 CLR 465
- The Queen v Way (2004) 60 NSWLR 168
- Markarian v The Queen [2005] HCA 25
- R v El Hani [2004] NSWCCA 162
- R v MF [2003] NSWCCA 195
- R v X [2004] NSWCCA 93
- R v A [2004] NSWCCA 292
- R v Chu (NSWCCA, unreported, 16 October 1998)
- R v Paull (1990) 20 NSWLR 427
- R v El Karhani (1990) 21 NSWLR 30