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District Court 18 March 2016

R v CHENG, Benny Zhong

[2016] NSWDC 393

Fraud & dishonesty
CRIMINAL SENTENCE COMMONWEALTH ROLE OF THE OFFENDER COMPARED WITH CO OFFENDERS PARITY PRINCIPLES

Citation: R v CHENG, Benny Zhong [2016] NSWDC 393
Court: District Court of New South Wales
Date: 18 March 2016
Judge: Judge S Norrish QC

Background

The offender, a man in his early fifties with no prior criminal history, was convicted by a jury in December 2015 of dealing with money intending it would become an instrument of crime, where the value of the money was $1,000,000 or more. The offence is found in s 400.3(1)(b)(ii) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of 25 years imprisonment.

Between 28 May 2012 and 16 July 2012, the offender attended three registered money remitters in Eastwood, Ashfield, and Haymarket on eleven separate occasions. On each visit he presented a false New South Wales driver's licence bearing his photograph but the name "Nick Wang," along with a false date of birth and address. He remitted a total of $1,098,066 in cash, which was converted to Chinese currency and transferred to financial institutions in China. On at least four occasions, he conducted more than one transaction on the same day at different remitters. The cash was never recovered.

The offender was linked to two co-offenders. Gulun Zhang had been characterised by the sentencing court as the head of a syndicate involved in money laundering and false identity manufacturing. Qian Lin, the offender's former wife, had been convicted of dealing with proceeds of crime worth $100,000 or more and sentenced to nine months imprisonment, a sentence the Crown had unsuccessfully appealed to the Court of Criminal Appeal.

  • What sentence was appropriate for a mid-level participant in a money laundering scheme involving over $1 million in cash remittances?
  • How should the offender's role be assessed relative to co-offenders, including the syndicate head and his former wife?
  • What weight should be given to the utilitarian value of the plea of guilty (noting the jury returned a verdict after trial)?
  • Did the parity principle, as it applied to co-offenders' sentences, constrain the sentence to be imposed?
  • Were the offender's family circumstances, including the mental health of his children, capable of constituting "exceptional circumstances" relevant to sentencing under Commonwealth law?
  • What role did the offender's remorse, contrition, and lack of prior criminal history play in the sentencing exercise?

Decision

Judge Norrish sentenced the offender to two years and nine months imprisonment, with a non-parole period (described as a minimum term) of one year and three months, to be served from the date of sentencing. The offender was to be released on 11 May 2017, subject to a three-year supervision period under Commonwealth legislation requiring good behaviour and compliance with Community Corrections.

The court carefully distinguished the offender's role from that of Gulun Zhang, the syndicate head. The offender was not charged with manufacturing false identities or organising the broader scheme, placing him at a meaningfully lower level of culpability. However, his role was assessed as more serious than that of his former wife, Qian Lin, whose offence involved a single transaction worth $100,000. The offender had participated in eleven transactions totalling over $1 million using deliberate deception, which pointed to a more sustained and calculated course of conduct.

The court applied the parity principle with reference to the sentences imposed on both co-offenders, including the Court of Criminal Appeal's observations on the Qian Lin appeal. Because the offender was convicted after a jury trial rather than by plea, the utilitarian discount available for an early guilty plea did not apply. The court also considered the impact of imprisonment on the offender's children, whose mental health was said to be affected, but the judgment addressed whether that impact reached the threshold of "exceptional circumstances" as required under Commonwealth sentencing principles.

The offender's lack of prior criminal history and expressions of remorse and contrition were accepted as relevant mitigating factors. The court acknowledged the absence of any evidence establishing the source of the cash or any connection to terrorism-related activity, which limited the scope of adverse inferences the prosecution might otherwise have invited the court to draw.

Orders Made

  • The offender was sentenced to two years and nine months imprisonment.
  • A minimum term (non-parole period) of one year and three months was fixed, commencing on 18 March 2016.
  • The offender was to be released on 11 May 2017, subject to Commonwealth parole provisions and rights of appeal.
  • Upon release, the offender was required to be of good behaviour for three years, report to NSW Community Corrections, and obey all reasonable directions of that service.

Key Takeaways

  • The District Court applied the parity principle to calibrate the sentence against those of two co-offenders at different levels of the same scheme, treating the syndicate head's sentence as an upper bound and the former wife's sentence as a reference point for a lower level of involvement.
  • Where a defendant is convicted after a jury trial rather than by plea, no utilitarian discount for a guilty plea is available under Commonwealth sentencing law, and the absence of that discount meaningfully affects the sentence range.
  • Under Commonwealth sentencing principles, the impact of imprisonment on an offender's family, including children's mental health, requires a finding of "exceptional circumstances" before it can significantly reduce the sentence imposed.
  • A lack of evidence as to the source of laundered funds, or any nexus to terrorism, limits the adverse inferences a sentencing court may draw, even where the offending involves large sums of cash remitted overseas using false identification.
  • Sustained, repeated offending across eleven transactions over nearly two months, involving deliberate use of false identity documents, was treated as a significant aggravating feature, notwithstanding the absence of proof that the offender occupied an organising role in the scheme.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 400.3(1)(b)(ii), 400.4
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
- Crimes Act 1914 (Cth), Pt 1B, s 16A
- Crimes Act 1900 (NSW)

Cases
- Barbaro v R (2014) 253 CLR 58
- Bugmy v R [1990] HCA 18
- DPP (Cth) v Qian Lin [2014] NSWCCA 254
- Elshani v R [2015] NSWCCA 254
- Hili v R; Jones v R [2010] HCA 45
- Lowe v R [1984] HCA 46
- Polley v R [2015] NSWCCA 247
- Power v R [1974] HCA 26
- R v Jimmy [2010] NSWCCA 60
- R v Li (2010) 202 A Crim R 195
- R v Thomson; R v Houlton (2000) 49 NSWLR 381
- R v Zerafa [2013] NSWCCA 222
- Wong v R [2001] HCA 64