Citation: Director of Public Prosecutions (NSW) v Zhang [2025] NSWDC 279
Court: District Court of New South Wales
Date: 29 July 2025
Judge: Abadee DCJ
Background
The defendant pleaded guilty in February 2023 to three fraud-related offences under the Crimes Act 1900 (NSW): obtaining a financial advantage, and two counts of dealing in proceeds of crime. The offences involved unauthorised use of American Express accounts and fraudulently registered credit cards, and spanned a period from approximately September 2015 to September 2018. He was sentenced in August 2024 to a three-year term of imprisonment to be served by way of an intensive correction order.
The Director of Public Prosecutions applied for a pecuniary penalty order under s 24(1) of the Confiscation of Proceeds Crime Act 1989 (NSW), seeking $530,926.21, representing the value of the financial benefits the defendant derived from those offences.
The defendant appeared unrepresented and raised one substantive defence: that a prior payment of $375,000 to the NSW Crime Commission, made in 2019 to resolve a separate Supreme Court proceeding, had discharged all his outstanding liability to the State, including any liability arising from the later American Express fraud charges.
Legal Issues
- Whether the Court was required to make a pecuniary penalty order and, if so, in what amount, under s 24(1) of the Confiscation of Proceeds Crime Act 1989 (NSW)
- How the value of the benefits derived from the offences should be assessed under s 25(2) of the Act
- Whether the defendant's 2019 consent orders and payment to the NSW Crime Commission in settlement of a separate Supreme Court proceeding operated as a release or discharge from liability for a pecuniary penalty order arising from the later Amex fraud convictions
Decision
Abadee DCJ accepted the Director's quantification of the pecuniary penalty. The value of the benefits derived from the offences was assessed by reference to s 25(2)(a) of the Act: the money that came into the defendant's possession or control because he committed the offences. The Director excluded the amount in Count 2 from the calculation, as those funds had already been captured in Count 1 and double-counting was avoided. No other consideration under s 25(2) was raised by the defendant, and no forfeiture order existed that might require an adjustment to the penalty amount.
The defendant's sole defence was rejected. The 2019 Supreme Court proceeding was brought by the NSW Crime Commission under the Criminal Assets Recovery Act 1990 (NSW), and it arose from a 2009 charge involving eBay fraud, an entirely separate matter from the Amex fraud charges prosecuted in the District Court from 2020. The Crime Commission's forensic accountant gave evidence that he was unaware of the Amex fraud conduct when recommending settlement and that the settlement did not relate to those charges.
His Honour also found that the consent orders finalising the 2019 proceeding contained no release or discharge provision, and no notation of any kind indicating that the settlement was intended to cover future or prospective liabilities. The rights of parties under settlement arrangements are determined objectively, not by reference to a party's subjective belief. Given the defendant was legally represented during the 2019 settlement, the absence of any written provision to that effect was a critical objective indicator against his claimed understanding.
The defendant's evidence was characterised as amounting to no more than a statement of his own subjective understanding of his rights, which Abadee DCJ found to be barely admissible for the purpose asserted. The defence was rejected in its entirety, and the pecuniary penalty was assessed at $530,926.21.
Orders Made
- The defendant is to pay to the State of New South Wales a pecuniary penalty of $530,926.21.
- The defendant is to pay the Director's costs of the proceeding, as agreed or assessed.
Key Takeaways
- A pecuniary penalty order under s 24(1) of the Confiscation of Proceeds Crime Act 1989 (NSW) is assessed by reference to the value of benefits the offender derived because of the commission of the offences, with s 25(2)(a) providing the primary measure where money came directly into the offender's possession or control.
- Settlement of an asset recovery proceeding under the Criminal Assets Recovery Act 1990 (NSW) does not, without express written provision, operate as a discharge from liability for pecuniary penalty orders arising from entirely separate criminal charges prosecuted in a different proceeding.
- Consent orders finalising a Crime Commission proceeding will be construed objectively. A defendant's subjective belief that a settlement encompassed broader liabilities carries very limited evidential weight, particularly where no such provision appears in the written orders.
- Where a defendant was legally represented during settlement negotiations, the absence of a release or discharge clause in the resulting consent orders weighs heavily against any later claim that the settlement was intended to cover additional or prospective liabilities.
- Double-counting of benefits across related counts is avoided in the quantum calculation: the Director excluded proceeds captured in one count from the calculation of benefits attributed to a related count covering the same funds.
Legislation and Cases Referenced
Legislation:
- Confiscation of Proceeds Crime Act 1989 (NSW), ss 4, 7, 13, 24, 25
- Crimes Act 1900 (NSW), ss 193B, 193E
- Criminal Assets Recovery Act 1990 (NSW), ss 10A, 28A
Cases:
No cases were cited in the judgment.