Citation: R v Liu [2020] NSWDC 617
Court: District Court of New South Wales
Date: 25 September 2020
Judge: Neilson DCJ
Background
The offender, a 56-year-old Canadian citizen originally from China, arrived in Australia on a tourist visa in June 2019. He said his purpose was to explore the potential for organising tours for Chinese-speaking travellers. Approximately two weeks after arriving in Brisbane, he travelled to Sydney.
On 26 June 2019, a police undercover operative arranged to meet the offender in a Bunnings warehouse car park at Mascot. The offender delivered a backpack containing $100,000 in cash and confirmed the transaction using a pre-arranged token. He returned later that day and delivered a further $100,000. The exchange was part of a police strike force operation linked to drug trafficking.
The offender was arrested on 4 July 2019. He maintained that he had been helping out a friend and was unaware the arrangement involved a drug scheme. There was no direct evidence that he profited from the transactions or that he knew the money was connected to drug supply.
Legal Issues
- What sentence was appropriate for an offence of recklessly dealing with proceeds of crime under s 193B(3) of the Crimes Act 1900, carrying a maximum of ten years imprisonment?
- What weight should be given to the offender's plea of guilty, prior good character, remorse, and personal circumstances?
- How should time already spent in pre-sentence custody be taken into account?
Decision
Culpability and objective seriousness: Neilson DCJ assessed the offender's criminal culpability as below mid-range. The amount involved, $200,000, was relatively significant but considerably less than the millions seen in comparable cases. The offender appeared to have been drawn into the scheme by a friend and had no decision-making authority within the operation. Nevertheless, his Honour observed that as a mature adult the offender should have recognised the arrangement was suspicious (at [9]).
Personal circumstances and mitigating factors: The offender had no criminal record in Australia and his history as a Canadian citizen granted refugee status made a prior criminal record unlikely. His Honour accepted the offender's remorse as genuine, although it was partly motivated by separation from his two young sons in Canada (at [8]-[9]). The offender's age, good character, and limited role were all treated as mitigating factors.
Sentencing calculation: His Honour started with a head sentence of two years' imprisonment, then applied a 25% discount for the utilitarian value of an early guilty plea, reducing the head sentence to 18 months (at [11]). The statutory ratio produced a non-parole period of approximately one year and one and a half months. Because the offender had already spent one year, two months, and 21 days in pre-sentence custody, his Honour fixed that period as the non-parole period, making the offender eligible for release on the day of sentence (at [11]-[12]). No special circumstances were found (at [12]).
Post-release circumstances: His Honour noted that upon release the offender would likely be transferred to Villawood Immigration Detention Centre pending deportation to Canada, given his status as a non-citizen (at [13]).
Orders Made
- Convicted of recklessly dealing with the proceeds of crime ($200,000) contrary to s 193B(3) of the Crimes Act 1900
- Total sentence: 1 year and 6 months imprisonment
- Non-parole period: 1 year, 2 months and 21 days, commencing 4 July 2019, expiring 25 September 2020 (time served)
- Balance of sentence: 3 months and 10 days, expiring 3 January 2021
- No special circumstances found
- Offender eligible for release on the date of sentence
Key Takeaways
- A 25% discount for an early guilty plea to a proceeds-of-crime charge reduced a two-year head sentence to 18 months, consistent with the utilitarian value the court recognised for early pleas (at [11]).
- Where an offender is duped into participation by a friend, holds no decision-making authority within the criminal scheme, and derives no apparent profit, culpability may properly be assessed as below mid-range for a s 193B(3) offence (at [6], [9]).
- Judicial Commission statistics for s 193B(3) offences show that since September 2018 approximately one-third of offenders receive imprisonment, one-third an intensive corrections order, and under one-third a community corrections order, with a median non-parole period of 18 months for those imprisoned (at [10]).
- Pre-sentence custody can be fixed as the non-parole period where it already meets or exceeds the period produced by the statutory ratio, enabling an offender to be released on the day of sentencing (at [11]-[12]).
- Prior good character, demonstrated through the grant of citizenship in a foreign country following refugee status, was treated as a mitigating factor in the absence of any domestic criminal record (at [8]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
Cases
- Not stated