Jimmy V Regina (2010)
- Facts of the Case
The defendant was charged of money laundering under section 400.41(1) of the Criminal Code Act of 1995 and under section 4AAA of the crimes Act of 1914. The defendant, on occasions numbering twenty seven between the dates 26th November 2003 to 11th February 2004, took a sum of cash to a bank and arranged that it be transferred to a bank account in Hong Kong. On all these occasions, the amount deposited to the bank was less than $ 10000, an act to deliberately keep the deposits below the threshold that is required for a reportable cash transaction. In all these occasions, the deposits amounted to a total of $ 243952 (Jimmy v Regina [2010] NSWCCA 60).
All these cash deposit transactions took place in nine different banks, of which seven of them were within the central business district in Sydney, Australia and the rest in Glebe and Hurstville. When the defendant made multiple deposits in a single day, the always ensured that each of such deposits was made in a different bank (Jimmy v Regina [2010] NSWCCA 60).
The defendant also falsified his name in all the cash deposit transactions except one. In total, he made use of falsified identity on seven occasions. He also always supplied falsified addresses on all the occasions that he made the cash deposits to the banks, including even the single instance in which did not use a falsified identity. He also on all occasions made use forged signatures on the forms that were required to transfer the money to Hong Kong, and furnished details which were incorrect concerning the transferor for the funds (Jimmy v Regina [2010] NSWCCA 60).
The money that the defendant sent was transferred to five different recipients in Hong Kong. One of the recipients was sent the money in three different accounts and for the other two recipients, each received the money in two different accounts (Jimmy v Regina [2010] NSWCCA 60).
The defendant was in fact a part of a larger money laundering operation conducted by one Mr. Peter Chen in Australia. In the subsequent hearings, it became clear that the defendant had no knowledge of the fact that the money was the proceeds of the illegal activities of Mr. Chen. However, the judge found that the defendant was aware that the activities he was conducting were illegal (Jimmy v Regina [2010] NSWCCA 60).
- Fraud
The fraudulent act that the defendant carried out was the intentional deposit of amounts of money that did not exceed $ 10000 which are the reportable cash transactions. This was concealment; attempting to avoid being detected by depositing amounts that need not be reported (Jimmy v Regina [2010] NSWCCA 60).
The defendant also committed fraud by using false identity when making the deposits. Such a concealment of identity enabled him to successfully transfer huge amounts without being detected and thus gave him the ability to convert illegal money into semblance of legal deposits.
The defendant also used forged signatures to carry out the deposits laundered money. By using such forgeries, he was able to escape detection and thus successfully deposit large amounts of money albeit in small amounts and thus convert smaller amounts of deposits into an amount significant enough to be considered as laundering (Jimmy v Regina [2010] NSWCCA 60).
- Parties to the Fraud
The defendant in the case was merely an agent of Mr. Peter Chen, and during the course of the trail admitted receipt of $ 80 for every transaction that was successfully conducted. Mr. Peter Chen was the main party in the fraud, since the money being laundered was proceeds from his illegal activities in Australia. By using a proxy for the fraud of laundering the money from Australia to Hong Kong, Mr. Chen sought to legitimize what were essentially earnings from illegal activities. Mr. Peter Chen sought to use the defendant as a proxy for his illegal laundering activities. Mr. Chen was therefore under pressure to legitimize his illegal earnings, and he sought to achieve this through the use of fraud (Jimmy v Regina [2010] NSWCCA 60).
The defendant was also party to the crime of fraud that was committed. He knowingly engaged in activities are illegal such as forging his signatures and receiving compensation for making illegal deposits in multiple banks and transfers out of Australia to Hong Kong. The defendant was under pressure to provide for his family, and his earnings as a cook were not sufficient to meet the needs of his family. He may have used this situation to justify the illegal acts of money laundering that he conducted on the behest of Mr. Peter Chen (Jimmy v Regina [2010] NSWCCA 60).
- How the Fraud was investigated
Since the accused had committed the crimes in several jurisdictions, the investigation was conducted by a collaboration of several investigative bodies such as the AUSTRAC, the Australian Federal police and the Australian Tax office. The collaboration of these bodies was essential since Mr. Peter Chen was operating under a vast network.
The Federal Australian Police investigated the accused through a connection with other criminals who were also operating as money launders for Mr. Chen. The AUSTRAC investigated the case through the banking sector, by following the money trail to Hong Kong. It was through this process that evidence of wrong doing by the accused was determined. Since under the rules of the AUSTRAC, reporting entities such as banks must report the identifications of customers, it was able to identify the multiplicity of the deposits made by the accused. It was through this rule able to give evidence that the accused faked his identity on multiple occasions. The police, through the use of the evidence collected by AUSTRAC were able to make get evidence linking the accused with the operations of Mr. Chen, though he was himself unaware of it. The evidence was also used to make connections to the two individuals used for laundering by Mr. Chen.
- Investigation process and evidence relied on by court
The investigation relied upon by the court was mainly from the police investigation and information gathered from other relevant agencies. The evidence of the deposits was obtained from the banking records of the banks in which the defendants and his co-accused made deposits into. Such records provided evidence as to the specific amounts that were deposited and the dates and times at which such deposits were made. Also relied upon by the court as evidence were the bank records of the transfers made by the defendants and other co-accused to banks in Hong Kong to accounts associated with Mr. Peter Chen.
The Commonwealth Evidence Act was applied in the case against the defendant. The requirements for admissibility of evidence as set out in the act were applied in the case against Jimmy. The Act requires that the best evidence rule be applied; implying that a simple means of giving the evidence of the contents of a document was admissible. Under this rule, the evidence from the banks through which the defendant made deposits was enough and admissible. No original documents were required to establish the fact that the defendant did indeed make deposits in an improper manner on behalf of Mr. Peter Chen.
Under the simple evidence rule, documents which are not necessarily in paper form are admissible as evidence in a court of law. As such, video evidence showing the defendant’s entry into several banks that he made the illegal deposits and international funds transfers on behalf of Mr. Chen. Documents and other evidence that was in electronic form were admissible in court. An example of this is the evidence of the electronic fund transfers made by the accused to Hong Kong in the behest of Mr. Chen.
The evidence act also provides for the inclusion of narrower hearsay rule. This means that there are wider exceptions to the hearsay rule and provides for greater hearsay admissibility as evidence. This implies that the evidence in the case of Jimmy V Regina involved the use of hearsay; one need not have encountered the defendant first hand to give evidence. Those with information relevant to the case but who did not interact directly with Jimmy gave evidence as to the illegal actions of the defendant.
The evidence act makes provisions for easier proof of and presumptions about business and official records and documents recording an electronic communication. In the evidence act, pre-trial procedures should be used to enable parties in the case to test the weight of the documentary evidence that is presented. As such, in Jimmy v Regina, the documentary evidence that was presented was deemed admissible.
- How Evidence was collected
Evidence for the case was collected through the use of the conventional means of using police investigative capacities. The defendant was an accomplice in the criminal conduct of Mr. Peter Chen, and knowingly engaged in illegal activities which were in contravention of the law. The police investigations led to the collection of evidence which related the defendant to Mr. Chen, and further investigations revealed that he was indeed working with other co-offenders, though unknowingly, for Mr. Chen and were being used to launder money out of Australia to Hong Kong.
- Legislation and precedents applied in the decision
In the case, the accused was found guilty of the offence charged under section 400.4(1), Criminal Code Act of 1995(Commonwealth) which provides among other things that that a person is guilty of a crime if the person deals with money and either the person intends that the money will become an instrument of crime and that at the time of the dealing the value of the money was $10000 or more. The Crimes Act of 1914 provides that the value of penalty unit at $ 110 or an imprisonment of a term of twenty years. Under these two codes, the charge related is the twenty seven occasions when the accused made deposits of a sum of money so that it could be remitted to Hong Kong.
“Another legislation which was applied in the case is section 31 of the Financial transactions Reports act of 1988 (Commonwealth) which makes a provision that an individual commits an offence if such a person is party to two or more non reportable cash transactions and having regard to regard to:
(i) the manner and form in which the transactions were conducted, including, without limiting the generality of this, all or any of the following:
(B) the aggregated value of the transactions;
(C) the period of time over which the transactions took place;
(D) the interval of time between any of the transactions;
(E) the locations at which the transactions took place; and
(ii) any explanation made by the person as to the manner or form in which the transactions were conducted;
it would be reasonable to conclude that the person conducted the transactions in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the currency involved in the transactions was transferred in a manner and form that:
(iii) would not give rise to a significant cash transaction; or
(iv) would give rise to exempt cash transactions.”
The penalty for such an offence is a prison sentence of a term not exceeding five years (Jimmy v Regina [2010] NSWCCA 60).
The defendant pled guilty to the charge and was sentenced to a sentence of three years and three months. However, the accused made an appeal to the sentence, basing his claims on the parity principle by arguing that his sentence was harsh compared to what other offenders in similar circumstances had been sentenced to.” (Jimmy v Regina [2010] NSWCCA 60).
One of the precedents that was relied upon was R v Siu who was charged and pleaded guilty to a single count of money laundering in contravention to section 400.4(1) of the Criminal Code of 1995 (Commonwealth). His duration of offending was however longer than that of the accused in Jimmy v Regina. He was originally been sentenced to a sentence of two years and eleven months. Another precedent that was used in the appeal was R v Huang. (Jimmy v Regina [2010] NSWCCA 60).
“The case also relied on the legal principle that the Applicant invokes was stated by the High Court in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606. It was a case that concerned co-offenders – the lookout man, and the man who had actually taken the money, in an armed robbery. Gibbs CJ at 610 (Wilson J agreeing), Mason J at 611 and 613, and Dawson J at 623 (Wilson J also agreeing), all expressed the same thought, that sentences imposed upon co-offenders should not have such a marked disparity as to give rise to a justifiable sense of grievance, or give the appearance that justice has not been done.”
- Decisions reached by the Court
The court, after examination of precedent cases and rulings, dismissed the appeal and the original sentence that had been handed down on the defendant was upheld. The appeal was found to be based on faulty claims on the parity principle after considerations had been made to the other cases which were under the same law and whose sentencing was under similar circumstances.
“The Crown submitted that the ground of appeal originally relied upon as the sole ground should fail for four separate reasons.
“(1) It is inappropriate to apply the principle of parity in this case as the offenders were not actually co-offenders.
(2) The different sentences are justified by the different circumstances of the offences/offenders.
(3) The learned sentencing judge made a finding as to relative seriousness of the respective cases of the Applicant and Siu and this finding is not, and could not be, challenged by the Applicant.
(4) The degree of difference between the sentences is not so ‘marked’ as to give rise to a justifiable sense of grievance.”” (Jimmy v Regina [2010] NSWCCA 60).
References
Legislation cited:
Australian Constitution
Canadian Charter of Rights
Crimes Act 1900
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Customs Act 1901 (Cth)
Drug Misuse and Trafficking Act 1985
Financial Transaction Reports Act 1988 (Cth)
Misuse of Drugs Act 1981 (WA)
Proceeds of Crime Act 1987 (Cth)
United States Constitution
CASES CITED:
Alex Mihailovic v The Queen (High Court of Australia, 3 February 1994, noted [1994] 1 Leg Rep page C3)
Andrews v Law Society of British Columbia 1989 CanLII 2 (SCC); [1989] 1 SCR 143
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485
Bowtell v The Queen [2004] NSWCCA 17
Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
El Hassan v The Queen [2003] NSWCCA 252
Ellis v The Queen (1993) 68 A Crim R 449
Em v The Queen [2006] NSWCCA 336
Farah Constructions Pty Ltd v Say Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
FS v R [2009] NSWCCA 301
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
HAN, Zhi Qiang v R [2009] NSWCCA 300
Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330
Hudson v The Queen [2009] NSWCCA 59
John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417
Jones v The Queen (1993) 67 ALJR 376
Jones, (NSWCCA, 16 April 1992, unreported)
Kardoulias v The Queen [2005] NSWCCA 456; (2005) 159 A Crim R 252
Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337
Kauwenberghs v The Queen [2008] NSWCCA 98; (2008) 186 A Crim R 197
Krakouer v R [1999] WASCA 147; (1999) 107 A Crim R 408
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737
Melikian v The Queen [2008] NSWCCA 156
Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373
OM v The Queen [2009] NSWCCA 267
Osman v The Queen [2008] NSWCCA 157
Pham v The Queen [2009] NSWCCA 25
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Queensland v The Commonwealth [1977] HCA 60; (1977) 139 CLR 585
R v AAH & AAG [2009] QCA 321
R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555
R v Armstrong [2001] NSWCCA 77
R v Arnold (1993) 30 NSWLR 73
R v Christie [2000] NSWCCA 354
R v Diamond (NSWCCA, 18 February 1993, unreported)
R v F [2002] NSWCCA 320; (2002) 132 A Crim R 308
R v Formosa [2005] NSWCCA 363
R v Gibson (1991) 56 A Crim R 1
R v Guzman [2000] NSWCCA 261
R v Holder [1983] 3 NSWLR 245
R v Howard (1992) 29 NSWLR 242
R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370
R v Isamunadar [2002] NSWCCA 477; (2002) 136 A Crim R 206
R v Johns [1978] 2 NSWLR 259
R v Johnson [2005] NSWCCA 186
R v Jurisic (1998) 45 NSWLR 209
R v Kerr [2003] NSWCCA 234
R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274
R v Mai (1992) 26 NSWLR 371
R v Nguyen [2005] NSWCCA 362; (2005) 157 A Crim R 80
R v Salameh (NSWCCA, 9 June 1994, unreported)
R v Shepherd [2003] NSWCCA 287; (2003) 142 A Crim R 101
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Tiddy [1969] SASR 575
R v Underwood [2005] VSCA 80
R v Wall [2002] NSWCA 42; (2002) 71 NSWLR 692
Rend v The Queen [2006] NSWCCA 41; (2006) 160 A Crim R 178
Rexhaj (NSWCCA, 29 February 1996, unreported)
Sharpe v The Queen [2002] NSWCCA 96
Shen v R [2009] NSWCCA 251
Slaughter- House Cases[1872] USSC 142; , 83 U.S. 36 (1873)
Stanton v The Queen [2008] NSWCCA 326
Sumner v R (1985) 19 A Crim R 210
Tatana v R [2006] NSWCCA 398
Thorley (NSWCCA, 5 February 1991, unreported)
Tuifua v The Queen [2008] NSWCCA 224; (2008) 189 A Crim R 1
United States v Virginia, [1996] USSC 78; 518 U.S. 515 (1996)
Watson v The Queen (NSWCCA, 25 February 1992, unreported)
Woodgate v R [2009] NSWCCA 137
Wurramarbra v The Queen (1979) 28 ALR 176; 1 A Crim R 291
Xue v R [2009] NSWCCA 227
TEXTS CITED:
Ethica Nichomacea, trans. W. Ross, Book V3
