The Commonwealth Department of Public Prosecutions v Zhao
[2006] QDC 377
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- The Commonwealth Department of Public Prosecutions v Zhao[2006] QDC 377
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The Commonwealth Department of Public Prosecutions v Zhao[2006] QDC 377
The Commonwealth Department of Public Prosecutions v Zhao[2006] QDC 377
DISTRICT COURT OF QUEENSLAND
CITATION: | The Commonwealth Department of Public Prosecutions v Zhao [2006] QDC 377 |
PARTIES: | THE COMMONWEALTH DEPARTMENT OF PUBLIC PROSECUTIONS Complainant v WEIXU ZHAO Defendant |
FILE NO: | 1196 of 2006 |
DIVISION: | Appellate Jurisdiction |
PROCEEDING: |
|
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 9 November 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 September 2006 |
JUDGE: | O'Sullivan DCJ |
ORDER: | Appeal allowed |
CATCHWORDS: | Appeal – Crimes Act 1914 (Cth) s 19B – recording of a conviction – transferring currency into Australia – Financial Transactions Reports Act (Cth) 1988 |
COUNSEL: | Mr N Whittle for the Applicant Mr M McCarthy, Commonwealth Director of Public Prosecutions for the Respondent |
SOLICITORS: | MDRN Solicitors for the Applicant Commonwealth Director of Public Prosecutions for the Respondent |
- [1]The appellant appeals against the recording of a conviction for not declaring transfer of currency over AUS $10,000 or equivalent into Australia, pursuant to s 15(1) of the Financial Transaction Reports Act 1988 (Cth).
- [2]On 8 February 2006 at the Brisbane International Airport the appellant was searched and found to be in possession of $52,210.00 in Australian currency, $400 in US currency and 175 Chinese Yuan. This money was not declared on the appellant’s incoming passenger card.
- [3]The Notice of Appeal filed 26 April 2006 includes the following grounds of appeal:-
“The Learned Magistrate erred in that
- (i)the Magistrate did not place sufficient weight on the submissions in regard to s 19B(1)(b) including
- (ii)the significant effects of a conviction in the Chinese culture
- (iii)subsequent sanctions that could be imposed upon the defendant
- (iv)in s 19B(1)(b)(iii), the circumstances surrounding the criminal act, in the lack of criminal intent in the commission of this offence
- (v)the ruling or order has resulted in a miscarriage of justice in that no conviction should have been so ordered by the court.”
- [4]The appellant filed an outline of submissions on 24 May 2006 and (by leave) an amended outline of submissions filed 25 September 2006. The amendment was to alter the grounds of appeal to the following:-
“(a) The Magistrate erred in his application of s 19B of the Crimes Act 1914 (Cth); and
- (b)That the Magistrate erred in not considering all matters that must be taken into account pursuant to s 16A(2) of the Crimes Act 1914 (Cth), applicable to the second stage of the discretion pursuant to s 19B.”
- [5]Section 19B of the Crimes Act 1914 provides for discharge of offenders without proceeding to conviction. So far as concerns this appeal the relevant provisions are:-
“(1) Where:
- (a)a person is charged before a court with a federal offence or federal offences; and
- (b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
- (i)the character, antecedents, cultural background, age, health or mental condition of the person;
- (ii)the extent (if any) to which the offence is of a trivial nature; or
- (iii)the extent (if any) to which the offence was committed under extenuating circumstances;
- (iv)that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that is expedient to release the offender on probation;
- (c)the court may, by order:
- (d)discharge the person, without proceeding to conviction in respect of any charge … upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions …”
- [6]Sub-section 16A (3) of the Crimes Act 1914 deals with matters to which the court is to have regard when passing sentence in respect of federal offences, and states that its provisions are to be applied in respect of orders under subsection 19B(1). Sub-section 16A (12) is as follows:-
“In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
- (a)the nature and circumstances of the offence;
- (g)if the person has pleaded guilty to the charge in respect of the offence – that fact;
- (h)the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or other offences;
- (j)the deterrent effect that any sentence or order under consideration may have on the person;
- (k)the need to ensure that the person is adequately punished for the offence;
- (m)the character, antecedents, cultural background, age, means and physical or mental condition of the person;
- (p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.”
- [7]Sections 16A and 19B of the Crimes Act were considered by the Court of Criminal Appeal of the Supreme Court of New South Wales in Commissioner of Taxation v Baffsky (2001) 192 ALR 92. The court held:
- (1)The application of the discretion in s 19B requires:
“(a) identification of one or more of the factors identified in s 19B(1)(b);
- (b)the determination that, having regard to the factor or factors so identified, it is inexpedient to inflict any punishment, or to reach the other conclusions for which s 19B provides;”
- (2)Section 16A(2) of the Act identifies the matters that must be taken into account in exercising the second stage of a discretion in s 19B;
- (3)The effect of a conviction on the respondent is relevant to personal deterrence under s 16A(2)(k), the issue of adequacy of punishment under s 16A(2)(j), and to the application of the test of “inexpediency”;
- (4)Although general deterrence is not expressly listed in s 16A(2), it is a relevant consideration of the sentencing in Commonwealth offences;
- (5)The significance of the conduct required by the statute which creates an offence is a consideration to which a sentencing judge must have regard in deciding whether it is “inexpedient” to impose punishment in a particular case.
- [8]When questioned by federal police, the appellant said that he thought the questions on the passenger card related to criminal matters; he did not understand the form; he had been travelling for a considerable time and was tired and had a limited understanding of English. When asked by federal police to read out question 5 on the card, he had difficulty in doing so.
- [9]When questioned as to the intended use of the money, the appellant said he was studying English in Brisbane with his brother, and the money was for living expenses and was from his wealthy and successful father in China.
- [10]In an affidavit filed at the hearing in the Magistrates Court, Mr McCart deposes to the following:
- (a)A conversation with the appellant’s father concerning Mr McCart assisting with the purchase of a new car for the appellant;
- (b)“I could understand how the $52,000 was to be applied for education costs, living expenses and purchase of a motor vehicle” (paragraph 10);
- (c)The recording of a criminal conviction would have a “serious impact on his life once he returns to China, the authorities will not take it lightly” (paragraph 13);
- (d)That the recording of a conviction “could have a long term detrimental effect on him and his family,” (paragraph 13);
- (e)The length of the journey from Shenyng in China to Sydney -approximately 26 to 28 hours; and
- (f)That he “could understand how someone can make a mistake completing forms due to the tiredness and excitement of travel” (paragraph 16).
- [11]Section 223 of the Justices Act 1886 states:-
“(1) An appeal under s 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection 2, the appeal is –
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced”.
- [12]The appellant sought and was given (without objection) leave to read and file an affidavit sworn by him on 23 May 2006. This material was not before the Learned Magistrate. It canvasses many of the matters which were raised at the Magistrates Court, but in addition also includes details of attempts by the appellant and his father to obtain a credit card. At paragraph 5, the appellant deposes to the “widespread distrust people have with the banking system [in China]” that he has a bank account in Brisbane with the Commonwealth Bank; and “It was my intention to travel to Brisbane with Australian currency and deposit this money into my bank account in Brisbane” (paragraph 19).
- [13]The new evidence discloses attempts by the appellant and his father to obtain a credit card rather than rely on cash payments, which is the usual procedure in business in China. It discloses difficulties in obtaining of a credit card, and the attempts made by the appellant’s father to obtain Australian currency in exchange for Chinese Yuan from friends and relatives after the bank was not able to assist.
- [14]In the affidavit filed by leave the appellant deposes:
- (a)“In hindsight, I realised I should have asked for a form written in Chinese, while at the time, I thought I was reading the form correctly” (paragraph 16);
- (b)“I am aware that the Chinese authorities view any criminal convictions very seriously; there is no difference made between criminal convictions received in China and criminal convictions received in other countries” (paragraph 16);
- (c)“I am also aware that when it becomes known that I have received a criminal conviction in Australia, that the Chinese authorities will restrict my life in China in regard to where I may obtain employment and where I may study in China” (paragraph 18);
- (d)“I am frightened that if I have a criminal conviction that it may affect my father who has a very well respected reputation and is highly regarded in the business community” (paragraph 19);
- (e)“I also have concerns that if I have a criminal conviction and I wish to continue my studies in Australia or obtain residency in Australia that my application will be rejected because I have a criminal conviction” (paragraph 20).
- [15]In R v Bain [1997] QCA 35, the Court of Appeal noted that there was no evidence that recording a conviction would have had any impact on the appellant’s economic or social wellbeing or her chances of finding employment. The Court said that: “A bare possibility that a conviction may affect her prospects is insufficient.” The Court held that the sentencing judge was correct when he concluded that it would not be right to consider adjusting a sentence because of the possible impact of decisions of immigration authorities. Any possible affects of the conviction must be supported by specific evidence: R v Abdi (Unreported - Court of Appeal - 23 August 1994). The court referred to s 19B, and in particular to the improper use of “some unspecified detriment” said to follow from the recording of a conviction.
- [16]I was referred to R v Samard [2001] QCA 531 on the relevance of future decisions of immigration authorities. Counsel for the respondents argue that by analogy, the possibility of problems with future visas is to be similarly treated.
- [17]In his Supplementary Submissions in this court, counsel for the respondent, challenged the likelihood of the recording of a conviction in Australia becoming known in China, and pointed to the lack of evidence to support the assertion that it would have implications in China, or indeed, in respect of Australian authorities denying the appellant visas for further visits and, even more so, the visas for his brother (paragraph 27).
- [18]Counsel for the respondent further submitted that the court should not seek to anticipate the action of an administrative decision maker by artificially adjusting a sentence so as to defeat, avoid or circumvent the decision maker’s legitimate exercise of discretion, and cited R v S [2001] QCA 531.
- [19]In Supplementary Submissions, both counsel referred to R v Matsumura [2003] NSW CCA 170, which concerned a discretion pursuant to s 19B of the Crimes Act. It involved $520,195.90 proceeds of gambling coming into Australia without declaration.
- (a)Counsel for the appellant stressed that in Matsumara the accused had not read the question card properly but it was held the accused was trustworthy and the money was not intended for any criminal purpose and he was otherwise of good character.
- (b)In contrast, Counsel for the respondent stressed that the finding that the appellant was “a thoroughly trustworthy person” supported the view of the New South Wales Court of Criminal Appeal that it was a “exceptional case,” and noted that the New South Wales Court of Criminal Appeal specifially found that the evidence substantiated an “exceptional case”. He pointed out that in Matsumura the undeclared funds were completely legitimate; the offender was otherwise of the highest character; significant consequences would flow from a conviction; the offending was completely inadvertent and apparently due to “highly unusual circumstances”, including that the offender had apparently been awake for days when he incorrectly completed the incoming passenger card. He referred to passages in the decision of the Court of Criminal Appeal which indicate that a case must be “highly unusual” or “quite exceptional” before a discharge pursuant to s 19B can be supported.
- [20]The factors on which the appellant relies to support his case being exceptional are: his youthfulness; the fact that he had been on a long journey and was tired; his error in not asking for a passenger card in Chinese; his misunderstanding that the card referred to criminal convictions; attempts made to obtain a credit card which were unsuccessful; and “ the fact that there were no criminal or other improper origin of the funds”(as in Matsumura).
- [21]The appellant also referred to the consequences for him and his family in China and consequences for the appellant and his brother in obtaining visas for future study in Australia. For the reasons I have already outlined, I consider these factors lack the necessary evidentiary support.
- [22]Counsel for the appellant in the Amended Outline of Submissions on behalf of the applicant raised matters which were not raised by the previous Counsel at the hearing on 4 September 2006:
- (a)the failure of the Learned Magistrate to move to the second stage of the Baffsky test;
- (b)the error of the Learned Magistrate in concluding that because of the amount of money involved it was not a case that warranted the exercise of the discretion pursuant to s 19B;
- (c)the failure of the Learned Magistrate to have regard to all of the circumstances contained in s 16A and not just the nature and circumstances of the offence in s 16A(2)(a).
- [23]Counsel for the respondent challenged the assertions at paras 4.22 to 4.24 of the Amended Outline of Submissions of counsel for the appellant, and described the uncontested facts at paras 20-25 of his Supplementary Outline of Submissions, dated 2 October 2006. I agree with Counsel for the respondent on this issue.
- [24]I agree with Counsel for the appellant that the Learned Magistrate gave a great deal of weight to the sum of money involved, and reached the view that because of the sum of money involved he was bound to record a conviction. He therefore erred in not exercising his discretion appropriately. This question then arises: taking into account s 16A and s 19B, and having regard to the two stage process outlined in Baffsky, has the appellant discharged his onus of proving that the appeal should be allowed?
- [25]The schedule of comparable sentences which was tendered to the Learned Magistrate, and in particular the decision of Devillers on 23 April 2004, are of limited assistance because the judicial discretion must be exercised in respect of all of the particular circumstances of the case under consideration.
- [26]There is no doubt that the nature of the offence and the need for general deterrence (especially where larger sums of money are involved – as here) are matters which ought to be taken into account in the exercise of the judicial discretion. Further, as noted in Matsumara, ‘it is important for the proper running and security of this country that the questions asked in the passenger card should be answered accurately and honestly’ (paragraph 28). However, as I have already stated, these factors are not the only factors which ought to be taken into account.
- [27]After carefully considering all the relevant factors, I have reached the view that pursuant to s 19B the conviction ought not to have been recorded, and I allow the appeal.