Citation: R v Jiao (No 2) [2014] NSWDC 353
Court: District Court of New South Wales
Date: 19 December 2014
Judge: Cogswell SC DCJ
Background
The offender, a Taiwanese national holding dual Taiwanese and New Zealand passports, flew to Sydney in January 2013 and stayed at a hotel connected to a major casino. Over two days, she collected a backpack containing more than $620,000 in cash from a stranger, using a pre-arranged identification method involving a serial number on a $5 note. The banknotes were in poor condition, soiled, and gritty, and were not wrapped in a manner consistent with bank packaging.
The offender took the money to the casino to be counted and attempted to transfer it to another account. Casino staff became suspicious and alerted the Australian Federal Police. Officers attended a nearby Commonwealth Bank when the offender arrived to withdraw approximately half the funds, and she was arrested. She was charged under s 400.9(1) of the Criminal Code 1995 (Cth) with dealing with money where it was reasonable to suspect the money was proceeds of crime, with the value being $100,000 or more.
The offender pleaded not guilty and stood trial. After the jury returned a verdict of guilty, the sentencing hearing proceeded immediately before Cogswell SC DCJ.
Legal Issues
- What is the appropriate sentence for an offence of dealing with property reasonably suspected to be proceeds of crime under s 400.9(1) of the Criminal Code 1995 (Cth)?
- Where does this particular offending sit within the range of objective seriousness for this type of offence?
- Is a sentence of full-time imprisonment required, given the terms of s 17A of the Crimes Act 1914 (Cth)?
- What weight should be given to mitigating factors including first offender status, good character, foreign nationality, and absence of any victim loss?
Decision
Cogswell SC DCJ assessed the offending as sitting in the middle of the range of objective seriousness. The amount involved ($620,000) was more than six times the statutory minimum threshold of $100,000, and the conduct extended over a couple of days rather than being a fleeting transaction. The condition of the banknotes and the use of a covert identification process were objective features that supported the reasonableness of the suspicion that the money was proceeds of crime.
His Honour accepted several mitigating factors: the offender had no prior criminal history, was cooperative during her police interview, had good prospects of rehabilitation, and was unlikely to reoffend. There was no identifiable victim and no actual financial loss, as the money was confiscated. The offending was also characterised as relatively unsophisticated. However, because there was no guilty plea, mitigating arguments available to offenders who plead guilty, such as facilitation of justice and contrition, were not available to the offender.
On the question of full-time imprisonment, his Honour applied s 17A of the Crimes Act 1914 (Cth), which requires a court to be satisfied that no other sentence is appropriate before imposing imprisonment. Despite the personal hardship facing a middle-aged foreign national with no family in Australia and limited English skills, the court concluded that general deterrence required a custodial sentence. Reference was made to the Court of Criminal Appeal's confirmation in Shi v R that money laundering is a serious criminal activity and that general deterrence is an important sentencing consideration for this type of offence. Parliament's decision to increase the maximum penalty from two to three years was also treated as an indicator of the seriousness with which such conduct is to be regarded.
His Honour imposed a sentence of six months' full-time imprisonment. Comparative cases from the Court of Criminal Appeal, including Shi, Assafiri, and Cahyadi, were considered, though each was distinguished on the basis that they involved guilty pleas, greater quantities of money, or more persistent offending.
Orders Made
- The offender was sentenced to six months' imprisonment, commencing 19 December 2014 and expiring 18 June 2015.
- Trial exhibits were to be retained in the Court registry, with a direction that they be returned to the tendering parties if no notice of appeal was filed on or before 27 February 2015.
Key Takeaways
- Under s 400.9(1) of the Criminal Code 1995 (Cth), there is no requirement to prove that the offender knew or believed the money was proceeds of crime. The NSW Court of Criminal Appeal confirmed this in Shi v R [2014] NSWCCA 276, and the District Court applied that principle in sentencing.
- General deterrence carries significant weight in sentencing for this category of offence. The District Court treated the Court of Criminal Appeal's statements in Shi, together with Parliament's increase of the maximum penalty, as indicators that courts should approach s 400.9(1) offences with substantial seriousness.
- First offender status, cooperation with police, good character, and the absence of victim loss are recognised mitigating factors, but they did not displace the need for a full-time custodial sentence where the objective circumstances placed the offending in the middle range of seriousness.
- Section 17A of the Crimes Act 1914 (Cth) requires a court to be satisfied that no other sentence is appropriate before imposing imprisonment. Here, the court was so satisfied despite considerable personal hardship to the offender as a foreign national without family in Australia.
- The absence of a guilty plea meant the offender could not access sentencing discounts available to those who plead guilty, though the court was careful to note she was not penalised for exercising her right to defend the charge.
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), s 400.9(1) and s 400.9(5)
- Crimes Act 1914 (Cth), s 17A
Cases
- Shi v R [2014] NSWCCA 276
- Assafiri v The Queen [2007] NSWCCA 159
- Cahyadi v The Queen (2007) 168 A Crim R 41