Citation: Director of Public Prosecutions (NSW) v Koh [2015] NSWLC 24
Court: Local Court of NSW
Date: 27 October 2015
Judge: Judge G Henson, Chief Magistrate
Background
The defendant, a Singaporean national, arrived in Australia in late April 2015 and within eight days deposited nearly $1 million in cash into a "safe keeping account" (essentially a secured safety deposit box) at Star City Casino in Sydney. Police attended the casino and then the defendant's adjacent hotel room. The defendant offered an explanation involving a relative in Newcastle and a suitcase of money destined for China, but subsequent police inquiries undermined the account in several significant respects, including that the "uncle" in China did not appear to exist.
The defendant was charged with two counts of dealing with property suspected of being the proceeds of crime under s 193C(1) of the Crimes Act 1900. He entered guilty pleas on 13 October 2015, close to the first available opportunity.
During sentencing proceedings, police evidence established that the defendant had actively cooperated with authorities, participating in controlled transactions. That cooperation led to the confiscation of approximately $1.59 million in tainted funds and the arrest and charging of two other individuals for money laundering offences.
Legal Issues
- What discount from the otherwise appropriate sentence should apply for a guilty plea that was entered slightly later than the first available opportunity?
- What discount should apply for the defendant's substantial assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999?
- Whether the defendant's status as a foreign national facing likely deportation was relevant to the sentencing exercise.
- Whether suspended sentences were appropriate given the nature of the offending and the need for deterrence.
Decision
Guilty plea discount: The guilty pleas were entered close to, but not precisely at, the first available opportunity. Applying principles from R v Borkowski, the court applied a slightly reduced discount of 22.5 per cent rather than the standard figure for a plea at the first available opportunity.
Assistance to authorities: The court accepted that the defendant's cooperation was genuine and consequential. Relying on the principles in R v Cartwright, the court found it was in the public interest to reward such assistance regardless of the offender's motive. A further discount was applied under s 23(4) of the Crimes (Sentencing Procedure) Act 1999, bringing the combined discount to 40 per cent. The court acknowledged uncertainty about whether the defendant would ultimately be required or willing to give evidence in future prosecutions, but found this did not preclude recognition of the assistance already rendered.
Foreign national status and deportation: The court directly rejected the proposition that the near-certainty of deportation should be treated as a reason to impose a more lenient or non-custodial sentence. Drawing on Chi Sun Tsui v R and R v Zamagias, the court found that treating deportation as a substitute for, or reason to reduce, a custodial sentence would produce an outcome of mere convenience and undermine the sentencing process.
Suspended sentences: The court declined to impose suspended sentences. Citing R v Taylor, the court observed that suspended sentences provide little or no general deterrence. Given the transnational nature of the offending, where individuals could enter Australia, launder funds through a casino, and depart before detection, the court found that both general and specific deterrence required actual imprisonment.
Orders Made
- Defendant convicted on each charge.
- Sequence 2: imprisonment for a minimum period of 9 months with an additional period of 3 months (total head sentence of 12 months).
- Sequence 4: imprisonment for a minimum period of 5 months with an additional period of 2 months (total head sentence of 7 months).
- Both sentences to be served concurrently, commencing forthwith.
- No supervision ordered on parole, having regard to the short parole period and the defendant's nationality.
- All seized moneys forfeited.
Key Takeaways
- A guilty plea entered slightly later than the first available opportunity attracts a marginally reduced discount; the court applied 22.5 per cent rather than the standard rate, following R v Borkowski.
- Substantial assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 can attract a meaningful sentencing discount even where it is uncertain whether the offender will ultimately give evidence, provided the assistance has already produced concrete results such as arrests and asset confiscation.
- The near-certainty of deportation does not of itself justify a non-custodial sentence or significantly reduced imprisonment; the Local Court rejected the suggestion that a suspended sentence could function as a sentencing outcome calibrated around an offender's expected removal from Australia.
- Where offending is transnational in character and involves the deliberate exploitation of licensed premises such as casinos, the sentencing court treated general deterrence as a paramount consideration.
- Suspended sentences were found inappropriate for this category of offending, consistent with the Court of Criminal Appeal's observation in R v Taylor that such sentences provide little by way of general deterrence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 193C(1) (dealing with property suspected of being proceeds of crime)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 (lesser sentence for assistance to authorities)
- Criminal Procedure Act 1986 (NSW), s 258 (Table 2 offences, summary jurisdiction)
Cases:
- Chi Sun Tsui v R (1985) 1 NSWLR 308
- R v Borkowski (2009) 195 A Crim R 1
- R v Cartwright (1989) 17 NSWLR 243
- R v Holland [2011] NSWCCA 65
- R v M [2005] NSWCCA 224
- R v Taylor [2000] NSWCCA 442
- R v Zamagias [2002] NSWCCA 17