Citation: R v Hoang [2022] NSWDC 193
Court: District Court of New South Wales
Date: 22 March 2022
Judge: Bennett SC DCJ
Background
The offender, a Singaporean national residing in Australia on a student bridging visa, was charged with dealing in money reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code (Cth). The charge arose from events on 28 to 29 February 2020, when she transported $261,445 in cash from Melbourne to Sydney in her red suitcase.
The offender had received the cash from an unknown male in the middle of the night and was instructed to deliver it to her partner at the Star Casino in Pyrmont. Police executing a Commonwealth search warrant intercepted her and a travelling companion in the casino lobby and found the money sealed in clear plastic bags inside the suitcase.
The matter had been set for trial, but following a pre-trial ruling by Judge Gartelmann SC that the evidence obtained from the search was admissible, the offender pleaded guilty on the first day of the trial week. She had no prior criminal history and had been on bail, including with reporting conditions, since her arrest.
Legal Issues
- What weight should the late guilty plea receive in sentencing, given it followed an adverse admissibility ruling rather than an early acknowledgement of guilt?
- What sentence was appropriate for an offender with no prior record who transported a large sum of suspected proceeds of crime?
- Whether a non-custodial outcome, specifically a recognizance release order (an order releasing the offender upon entering a bond to be of good behaviour), was open and appropriate.
- What pecuniary penalty (financial payment as a condition of release) was appropriate given the limited evidence of the offender's financial circumstances?
- Whether a forfeiture order should be made over the $261,445 seized.
Decision
The court accepted that the guilty plea carried some utilitarian value, as it avoided a five-to-seven day trial involving five witnesses. However, Bennett SC DCJ agreed with the Crown's submission that the plea was entered largely in recognition of an inevitable outcome after the pre-trial admissibility question was resolved against the offender, rather than as a wholehearted demonstration of genuine remorse. The court noted, however, that the offender had made admissions to police at the time of her arrest, which tempered that assessment somewhat.
The court found that a sentence of imprisonment was the only appropriate response to the offending. The amount of cash was substantial, the delivery circumstances were clearly suspicious (as the offender herself acknowledged), and the potential for harm was real even if the ultimate destination of the funds was unknown. The court declined to draw any inference that the casino was to be used to launder the money, confining its reasoning to the proven facts.
Despite imposing a term of imprisonment, the court ordered the offender's immediate release on a recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth). The court specified a nine-month term of imprisonment but suspended its operation, releasing the offender upon her giving a security of $5,000 and agreeing to be of good behaviour for two years. A pecuniary penalty of $5,000 was imposed as a condition of that order, with 28 days to pay.
The court acknowledged the challenge in setting the pecuniary penalty amount. With limited information about the offender's financial position beyond three payslips showing income of approximately $21 per hour as a nail technician, the court deliberately set the penalty at a level it assessed she could realistically meet.
Orders Made
- The offender was convicted of the offence to which she pleaded guilty.
- A sentence of nine months' imprisonment was specified, with the offender released immediately upon entering a recognizance (security) of $5,000, subject to two years of good behaviour.
- A pecuniary penalty of $5,000 was imposed as a condition of the recognizance release order, payable within 28 days.
- A forfeiture order was made pursuant to s 48(2) of the Proceeds of Crime Act 2002 (Cth), forfeiting the $261,445 seized on 29 February 2020 to the Commonwealth.
- No order as to costs.
Key Takeaways
- A late guilty plea entered after an adverse pre-trial ruling on admissibility will receive reduced, though not nil, weight in mitigation, particularly where the Crown's case was left in a strong position following that ruling.
- Under s 400.9(1) of the Criminal Code (Cth), a court sentencing for dealing in money reasonably suspected of being proceeds of crime does not need to establish the ultimate intended use of the funds; the sentencing exercise is confined to the proven facts.
- A recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth) remains available even where the court considers imprisonment the only appropriate sentencing disposition in principle, provided the statutory conditions are met.
- Where evidence of an offender's financial circumstances is limited, a court will set a pecuniary penalty at a level calibrated to the available evidence of capacity to pay, rather than by reference to the value of funds involved in the offence.
- Forfeiture of seized funds under s 48(2) of the Proceeds of Crime Act 2002 (Cth) followed as a consequence of the conviction, with the full $261,445 forfeited to the Commonwealth.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), s 400.9(1)
- Crimes Act 1914 (Cth), s 20(1)(a) and (b)
- Proceeds of Crime Act 2002 (Cth), s 48(2)
Cases
- Imbornone v R [2017] NSWCCA 144
- R v El-Karhani (1990) 21 NSWLR 370
- Shi v R [2014] NSWCCA 276