Citation: R v Minh Kha Le [2020] NSWDC 89
Court: District Court of New South Wales
Date: 26 March 2020
Judge(s): Mahony SC DCJ
Background
The offender was originally charged with dealing in money reasonably suspected of being proceeds of crime (value exceeding $100,000) alongside a co-accused, Ms Nguyen, who was a tenant at the relevant premises. Before trial, a subpoena issued by the offender to the Australian Federal Police produced documents that strengthened his defence to the original charge and of which the Crown had not previously been aware.
On the second day of trial, the Crown accepted the offender's plea to a lesser charge: concealing the disposal of money reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is three years' imprisonment or 180 penalty units ($37,800), or both. The plea was conditioned on the offender making a statement and giving evidence in the subsequent trial of Ms Nguyen.
The offending was limited in scope to a single day, 23 February 2019, when the offender concealed the possession of $596,090 by Ms Nguyen in the period before police entered the premises. Ms Nguyen was subsequently convicted of the principal offence.
Legal Issues
- What level of utilitarian discount applied to the offender's guilty plea, given the charge had changed shortly before trial?
- What further discount, if any, applied for the offender's cooperation with and assistance to prosecuting authorities?
- Whether a conviction should be recorded, or whether the court should instead discharge the offender under s 19B of the Crimes Act 1914 (Cth) without conviction?
- Whether a custodial sentence was required under s 17A of the Crimes Act 1914 (Cth), and if so, on what terms?
Decision
Issue 1: Objective seriousness
The court found the offending fell towards the lower end of the range of objective seriousness for a s 400.9(1) offence. The conduct was confined to a short period on a single day and arose from the offender's presence at premises where Ms Nguyen was a tenant (at [27]).
Issue 2: Guilty plea discount
The court accepted that the plea was entered at the first reasonable opportunity in the context of the changed charge, which itself arose from the AFP documents produced on subpoena. A utilitarian discount of 20% was allowed for the plea (at [28]).
Issue 3: Cooperation discount
A further 20% discount was allowed for the offender's assistance to the prosecuting authority: 10% for past assistance in making a statement and 10% for future assistance, which ultimately materialised in the offender giving evidence at Ms Nguyen's trial and being extensively cross-examined. The total discount across both components was 40% (at [29]-[30]). The court rejected the submission that additional credit should be given on grounds of cultural sensitivity attributed to people of Vietnamese descent, finding no evidentiary basis for that claim (at [30]).
Issue 4: Conviction and sentence
The court declined to discharge the offender without conviction under s 19B of the Crimes Act 1914 (Cth). While the offender was a person of prior good character, the court was not satisfied the offence was trivial or committed under extenuating circumstances, and was not satisfied it was inexpedient to inflict punishment given the need for both general and specific deterrence (at [36]-[37]). The court was satisfied that no penalty other than a custodial sentence was appropriate under s 17A, given the serious nature of the offending (at [38]). After applying the 40% discount, an appropriate term of 12 months' imprisonment was identified, with immediate release ordered by way of a Recognisance Release Order under s 19AC of the Crimes Act 1914 (Cth) upon the offender providing security of $1,000.
Orders Made
- The offender was convicted of the offence under s 400.9(1) of the Criminal Code Act 1995 (Cth) in relation to conduct on 23 February 2019.
- A sentence of 12 months' imprisonment was imposed.
- A Recognisance Release Order was made for the offender to be released forthwith upon giving security of $1,000 for a period of 12 months.
Key Takeaways
- A guilty plea entered to a lesser charge, where the lesser charge only emerged from documents obtained on subpoena shortly before trial, can still attract a meaningful utilitarian discount if the plea was made at the first reasonable opportunity in that altered context (at [28]).
- Combined discounts for an early plea and for cooperation with authorities are assessed together: the District Court here applied 20% for the plea and 20% for assistance, reaching a total of 40%, consistent with the range of 20% to 50% accepted by both parties (at [29]-[30]).
- Under the two-stage test in s 19B of the Crimes Act 1914 (Cth), a court must first be satisfied of at least one of the prescribed threshold conditions (trivial nature, extenuating circumstances, or good character) and then be satisfied it is inexpedient to inflict any punishment. Good character alone is insufficient to enliven the provision if the court concludes punishment remains expedient (at [36]-[37]).
- Claims of cultural sensitivity as a basis for additional sentencing leniency require evidentiary support and will not be accepted as a matter of assertion alone (at [30]).
- Money laundering offences under s 400.9(1), even at the lower end of the scale, may cross the s 17A custodial threshold, though an immediate term of imprisonment is not necessarily required where significant subjective factors favour the offender (at [38]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth)
- Criminal Code Act 1995 (Cth)
Cases
- Cobiac v Liddy (1969) 119 CLR 257
- Commissioner of Taxation v Baffsky (2001) 192 ALR 92
- R v Fowler [2003] NSWCCA 321
- R v Jiao [2015] NSWCCA 95
- R v Lin [2014] NSWCCA 254