Quoc Viet LAI v R [2011] NSWCCA 16

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Quoc Viet LAI v R [2011] NSWCCA 16 Hearing dates: 24 September 2010 Decision date: 16 February 2011 Before: McClellan CJ at CL Latham J Price J Decision: Leave to appeal granted Appeal dismissed Catchwords: CRIMINAL LAW - Commonwealth offence - dealing in an instrument of crime - appeal against sentence - parity between co-offenders - grounds for discrimination between co-offenders - whether Judge erred in making finds beyond reasonable doubt about applicant's knowledge for the purposes of sentence - whether error in ratio between head sentence and non-parole period - whether Judge erred in assessing applicant's prospects of rehabilitation. Legislation Cited: Criminal Code 1995 (Cth) Crimes Act 1914 (Cth) Financial Transaction Reports Act 1998 (Cth) Cases Cited: Hili v The Queen; Jones v The Queen [2010] HCA 45 Category: Principal judgment Parties: Quoc Viet LAI - (Applicant) Regina - (Respondent) Representation: Counsel: J Hickleton - (Applicant) L Crowley - (Respondent) Solicitors: M Sten - (Applicant) J Purches - (Respondent) File Number(s): 2008/00014834 Decision under appeal Date of Decision: 2011-02-16 00:00:00 Before: Ainslie-Wallace DCJ File Number(s): 2008/00014834

Judgment 1McCLELLAN CJ at CL : I agree with Latham J. 2LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Ainslie-Wallace DCJ (the Judge) for an offence of dealing in an instrument of crime, being money in excess of $1 million, pursuant to s 400.3(2) of the Criminal Code 1995 (Cth), following the applicant's conviction after trial. 3The offence carries a maximum penalty of 12 years imprisonment. The applicant was sentenced to 9 years and 6 months imprisonment, including a non parole period of 7 years. 4The grounds of appeal take issue with certain of the Judge's findings of fact, complain of a lack of parity with a co-offender, Van Dang Tran (Dang), assert that the relationship between the non parole period and the head sentence is not justified by the applicant's criminality, and that the sentence is manifestly excessive. 5The following excerpt from the Judge's remarks on sentence represents a useful summary of the offence :- The offender was a senior pilot with Vietnam Airlines. As part of his duties he regularly flew planes from Vietnam to Australia. Through the influence of another pilot with Vietnam Airlines called Dang he was introduced to two people who owned and operated the Long Thanh Money Transfer Company, Thanh Huynh (who is referred to as Hang) her husband and her brother Tan. The Long Thanh Money Transfer Company operated out of business premises in Melbourne and Sydney. A relative of Hang was in charge of the business in Cabramatta in Sydney. Hang and her husband operated the Melbourne branch. Hang's brother, Tan Ba Huynh called Tan, was in charge of the business operated out of Saigon. The ostensible business of the Long Thanh Money Transfer Company was to remit money from Australia to Vietnam. In the period 25 June 2005 and 30 May 2006 the offender became part of a scheme to smuggle money out of Australia and take it to Vietnam. The scheme had apparently been in operation before the offender's involvement and had involved Dang and other crew members of Vietnam Airlines flights. The scheme involved the pilots receiving money in cash either in Sydney or Melbourne from people associated with the Long Thanh company which they carried out of Australia on the return flight to Vietnam. The movement of the cash was not reported in accordance with the Financial Transaction Reports Act . .................................................................................. The charge of which the offender was convicted comprehends 19 separate occasions on which he removed money from Australia in breach of the Financial Transaction Repords Act . In all, about $5.125 million was removed from Australia by the offender in this way. He was paid a percentage commission on the money removed by him. It was estimated by the Crown that the offender received about $39,460 as commission based on the amounts taken out of Australia by him. .................................................................................... A considerable amount of the evidence against the offender consisted of intercepted telephone calls between Hang and her husband in Melbourne, Tan in Saigon, the relative operating the shop in Sydney, the other pilot Dang and the offender. Unsurprisingly, the calls were conducted in veiled terms. Hang agreed to give evidence for the Crown and she provided an interpretation of the content of the calls, identified the speakers and gave a background of the business of the company. ....................................................................................... She explained the code used in the recorded conversations and said that where she is recorded referring to tops or garments, it is a reference to money and said that where she referred to 40 tops it was a reference to $400,000. Ground 1 : Parity 6The co-offender Dang received a sentence of 4 years and 6 months imprisonment, including a non parole period of 2 years and 6 months, after Norrish QC DCJ allowed 25% for the offender's early plea of guilty and a further 25% for the assistance he provided to the authorities. The starting point before the application of these discounts was identified as 8 years. 7Dang pleaded guilty to the same offence as the applicant, in that the particulars established that on 18 occasions between 2 July 2005 and 4 June 2006, Dang exported a quantity of money in breach of the Financial Transaction Reports Act 1988 (Cth) . A total of $6.5 million was carried to Vietnam by Dang in return for a commission of between $32,000 and $50,000. 8Dang was sentenced 2 years and 4 months before the applicant was sentenced. His Honour Judge Norrish QC made a number of favourable findings, including that the offender had committed the offence primarily for altruistic purposes, namely that he wished to support citizens of Vietnam who were still suffering from the effects of the Vietnamese War, in particular, those people from the offender's village near Hanoi. The offender pleaded to the offence on the basis that he was reckless as to the fact that the transfer of the funds was to avoid paying any bank commissions and taxes. His Honour found that the offender's understanding was that the transfer of the money from Australia to Vietnam by way of the airline was to avoid higher bank fees, taxes and commissions. 9The offender Dang gave evidence on sentence. His favourable subjective circumstances and the evidence concerning his charitable work and his motives for becoming involved in the transfer of the funds not surprisingly led to a finding that his prospects of rehabilitation were promising. 10The Judge sentenced the applicant with full knowledge of the remarks on sentence by Norrish QC DCJ. The applicant did not give evidence at trial or on sentence. By way of contrast with the offender Dang, the Judge found that the applicant engaged in the impugned conduct for reward and that it was incorrect to describe the applicant as "a mere courier" or "a pawn used by Hang and others". Her Honour described the applicant's role as "important". Her Honour accepted that the applicant was brought into the venture by Dang, but determined that the telephone intercepts established beyond reasonable doubt that the applicant was a willing participant who was well aware of the illegality of his actions. Moreover, her Honour found that the applicant was aware that the source of the funds was from illegal activities. In conformity with these findings, the Judge found that the objective gravity of the offence in the applicant's case was "of a significant order". 11Accepting that, for the purposes of parity, the relevant comparator is the head sentence imposed upon the applicant and the starting point of 8 years indicated by Norrish QC DCJ, a difference of one year is entirely consistent with the findings made in relation to the co-offender Dang and the relatively less favourable findings made in relation to the applicant. The applicant's submission that "the only real difference between the two offenders was the timing of the arrest" is clearly incorrect. 12I pass to a consideration of ground 2, which turns upon an adverse finding made by her Honour that underpinned the assessment of the applicant's criminality, relative to that of Dang. Ground 2 : Error in finding that the applicant was aware that the source of the funds being transported by him was from illegal activities. 13The applicant's submission on this ground asserts that it was no part of the Crown case against the applicant that he was aware of the illegality of the source of the funds and, in any event, there was insufficient evidence to support such a finding. It is further submitted that there was evidence to the contrary. 14The first limb of the applicant's submission fundamentally misconstrues the nature of the charge brought against the applicant and the role of the Judge on sentence. The charge upon which the applicant was convicted only required the Crown to prove as an element of the offence that he was reckless as to the risk that the funds would become an instrument of crime. The nature of the charge, and more importantly, the fact that the Crown did not seek to prove at trial more than it was required to prove, did not disentitle the Judge, for the purposes of sentence, from making findings beyond reasonable doubt with respect to the extent of the applicant's awareness, both in relation to the source of the funds and the motive behind the transfers to Vietnam. 15Her Honour gave reasons for the findings that she made in this regard. Her Honour said :- There is abundant evidence on which I could be satisfied beyond reasonable doubt that the applicant was aware that the source of the funds being transported by him were from illegal activities. I base this finding on the conversations in which Hang and others spoke in code, the way in which the funds were delivered by someone driving up to him on the street and handing him a plastic bag in which large bundles of cash were contained, that on his return to Vietnam he would hand that money to an intermediary and later to Tan, that no receipt or document was given to him to support his possession of the cash, that on each occasion that he went to the Cabramatta branch of the [company] to collect money to take to Vietnam, it would have been abundantly clear to him that ostensibly the company would be in a position to do that by electronic funds transfer rather than in cash. 16The sufficiency of the evidence supporting the Judge's finding is, in my opinion, beyond question. In addition, it has never been the case that the existence of evidence tending to undermine a fact, necessarily precludes a finding of that fact beyond reasonable doubt by the tribunal of fact. 17It follows that this ground of the appeal fails. Accordingly, ground 1 also fails. Ground 3 : Error in applying a ratio between the head sentence and the non-parole period substantially greater than the "usual" ratio. 18This ground of the appeal was argued before the High Court handed down its decision in Hili v The Queen; Jones v The Queen [2010] HCA 45. That decision established that there is no "norm" in respect of the ratio between the head sentence and the non-parole period in relation to federal offenders. 19When fixing the non-parole period of 7 years, the Judge adverted to the fact that the non-parole period which she was minded to impose exceeded the proportion of 60% to 66% of the head sentence. However, the Judge determined that the non-parole period was justified having regard to the seriousness of the offence, the applicant's questionable prospects of rehabilitation and a requirement that the sentence appropriately reflect general deterrence. 20This was an entirely correct exercise of the sentencing discretion according to the dictates of ss 16A(1) and (2) of the Crimes Act (Cth), which :- "make it plain that all of the circumstances, including the matters in the non-inclusive list in s 16A(2), must be taken into account in making recognizance release orders just as they must be taken into account in imposing a sentence of imprisonment". In determining what recognizance release order is to be made, s 16A(1) requires the sentencing court to "make an order that is of a severity appropriate in all the circumstances of the offence". What is the "severity appropriate" is determined having regard to [general principles]. Hili v The Queen; Jones v The Queen at [40] 21The applicant has not demonstrated that the sentencing discretion miscarried, either by the commission of a latent or patent error. This ground of the appeal fails. Ground 4 : Error in failing to find that the applicant had good prospects of rehabilitation. 22As I have already noted above, the applicant did not give evidence at trial or on sentence. The applicant's case on sentence was limited to the tender of a medical report and a statement from the applicant's wife, both of which addressed the health of the applicant's wife. Not surprisingly, the Judge observed :- Little is known of the offender, the only evidence about his personal circumstances was in the trial from a senior pilot from Vietnam airlines who said the offender had served the airline well and without censure, and had flown in the pilot during the war and had served his country with distinction. ................................................................................. There is little information before the court that would enable me to make an assessment of his prospects of rehabilitation. It is argued that because of his age and the likelihood that he would not be re-engaged by Vietnam airlines on his release from prison and returned to Vietnam means that there is no avenue by which he could commit a similar crime. I suppose this is correct although I am not sure to what extent this speaks to rehabilitation rather than capacity to reoffend. Perhaps the disgrace and loss of employment might cause the offender to set his face against criminal conduct. Further than that, I am not able to consider his rehabilitation. 23On the issue of good character the Judge said :- It is argued for the offender that he was a person of prior good character. I accept that however, it is this very quality, his character and his role as a senior airline pilot that enabled him to commit the crime of which he was convicted. ........ In this case, although the offender is entitled to have his good character taken into account on sentence, the extent to which it will give him comfort is reduced because of the circumstances of the offence. 24The applicant submits that the sentence imposed upon him, given he was 57 years old at the time of the offence, allows him no leniency for his prior good character and that good character was a matter that the Judge should have considered when assessing his prospects of rehabilitation. The balance of the applicant's submissions on this ground seek to repeat what was put before her Honour, namely the loss of his employment and his reputation after a long and distinguished career would deter him from reoffending and thereby lend further weight to a finding that his prospects of rehabilitation were sound. 25The answer to these submissions is that the Judge was obviously constrained by the paucity of the evidence provided by the applicant that would allow for a real, rather than speculative, assessment of the applicant's prospects of rehabilitation. Notwithstanding the applicant's prior good character, the fact remains that the applicant committed the offence and suffered the consequences of that conduct. Those consequences must have been apparent to him, in the event that he was arrested and charged, yet he took the risk. There was no concrete basis for a positive finding that he would not take such risks again if confronted with the opportunity. The applicant was entitled to remain silent at trial and insist upon his innocence after conviction, but a reasonable inference to draw from that silence was that the applicant did not take responsibility for his offending behaviour. 26Good character was taken into account, as the remarks set out at [23] demonstrate. The applicant does not contend that her Honour was not entitled to assign reduced weight to that factor. Clearly, that was a justifiable approach. 27I would reject this ground of the appeal. Ground 5 : Manifest Excess. 28The applicant's submission on this ground relies upon the combined effect of grounds 1 to 4, assuming they are upheld. The applicant made no submission to the effect that the sentence imposed fell outside the permissible range, even if grounds 1 to 4 were rejected. 29I propose the following orders :- 1. Leave to appeal granted. 2. Appeal dismissed. 30PRICE J : I agree with Latham J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2011