Base de données Jurisprudence

Blanchiment d’argent

Infractions

• Acquisition / possession / utilisation des produits de la criminalité

R v Shi

Australie

Résumé des faits

Ms Si Shi was involved in a money laundering operation in Sydney. The operation involved the use of Westpac Bank to transfer currency to a company called Super Forex. Ms Shi’s contribution to the operation was to receive large sums of cash from a Mr Liu who stored it in premises he owned. Ms Shi would take the cash to the Haymarket Sydney Westpac branch to deposit the cash into the accounts of Super Forex.

Ms Shi became involved in the operation through family contacts. Her mother, in China, was being cared for by a person associated with the enterprise. This person was described as an aunty by Ms Shi. She had requested that Ms Shi perform a task of physically moving cash from one point to another in order to make deposits. Ms Shi was then introduced the Principal of the Super Forex Company by her husband in 2010. Following the introduction, the company Principal liaised with Ms Shi over a period of time dealing with a number of large deposits. Super Forex was not found to be part of the criminal operation and the actions of the Principal were not undertaken to their knowledge. Ms Shi became known to the Haymarket Westpac branch, who told them various stories about why she was dropping off the money. In November 2011, the branch manager interrogated Ms Shi due to concern over the significant sums of cash being deposited, however his concern was directed at the dangers of carrying significant amounts of cash in person.

By December 2011 the Australian Federal Police had begun to investigate the matter due to the large amount of cash being deposited. The Australian Federal Police arrested Ms Shi in 2012 and it was discovered that over AUD$35 million had been transferred by Ms Shi.

Commentaire / Faits marquants

Role of the Offender: In sentencingMs Shi, the court found that her methods were not sophisticated and that she was not a kingpin of the organisation. She was merely a dispensable tool in the operation. Furthermore, the court took into account significant reasons why Ms Shi took part in the operation, including the fact that Ms Shi felt threatened by the ‘aunty’ figure and was compelled to take part in the offending due to fear that her mother would be hurt should she refuse.
Sentence: Ms Shi pleaded guilty to 10 counts of dealing with money believed to be the proceeds of crime contrary to s. 400.9(1) of the Criminal Code. She was sentenced to 5½ years’ imprisonment. A contributing reason for the prison sentence was that her offences had caused serious economic and commercial damage to the Australian economy and the interests of its people.
Appeal: Ms Shi appealed the sentence, raising five grounds of appeal. The first was that the sentencing judge had erred by finding that her awareness of the money’s association with crime was an aggravating factor. The appellant submitted that Ms Shi was not aware of the money’s origin nor that it was linked with crime. The Crown did not submit an argument to the contrary. Considering the provisions of s.400.9(1), the appeal court upheld this ground of appeal and found that the  sentencing judge had erred.
The second ground of appeal was that the judge had erred in his assessment of the seriousness of each individual offence. The appellant argued that the sentencing judge had erred by examining each offence separately rather than viewing them as an overall course of conduct. The appeal court found that the judge had not erred in doing so.
The third ground of appeal was that the sentence given infringed on the principles of parity when compared to the sentence of a co-offender who received a 5½ year term of imprisonment despite apparently more serious criminality. The appeal Court found, however, that the co-offender’s sentence was imposed on the basis of other external factors influencing his criminality, and that this ground of appeal should be dismissed.
The fourth ground of appeal was that the sentencing judge had not taken into account the degree of cooperation that Ms Shi provided to law enforcement. It was found that Ms Shi’s assistance to law enforcement had benefited the investigation which led to the arrest of a previously unknown offender. However this had not been properly taken into account by the sentencing judge and this ground of appeal was affirmed.
The final ground of appeal was that the sentence received was manifestly excessive. Considering that grounds 1 and 4 had been affirmed, this was also supported.
Ms Shi was resentenced to 4 years and 9 months’ imprisonment with a major factor being that her moral culpability was lessened due to there being no basis to believe that she was aware of the criminality of her conduct.
Date de la peine:
2014-11-26
Auteur:
Ben Russell, Graduate Intern, Macquarie University and Australian Institute of Criminology.

Questions transversales

Responsabilité

Responsabilité pour

• Infraction consommée

Responsabilité fondée sur

• Intention criminelle

Responsabilité impliquant

• Auteur principal (d’une infraction)

Considérations liées à l'égalité des genres

Détails

• Auteur principal féminin

Informations sur la procédure

Système juridique:
Droit commun
Décision judiciaire la plus récente:
Juridiction d’appel
Type d'Action Juridique:
Criminel / pénal
 
Procédure #1:
  • Étape:
    premier jugement

    • Tribunal

    Titre

    New South Wales District Court

     
    • Criminel / pénal

    Description

    Ms Shi pleaded guilty to dealing with property which is reasonably suspected to be the proceeds of crime contrary to s.400.9(1) of the Criminal Code 1995 (Cth.). A total of AUD$35 million had been transferred by her to a named account by the offenders managing her activity. Importantly while her role involved significant criminality she was not major part of the criminal network that ran the operation.

     
    Procédure #2:
  • Étape:
    appel
  • Numéro de dossier officiel:
    Shi v R [2014] NSWCCA 276

    • Tribunal

    Titre

    New South Wales Court of Criminal Appeal

     
    • Criminel / pénal

    Description

    Ms Shi successfully appealed her sentence with 3 of her 5 grounds of appeal upheld. The sentence imposed by the District Court of New South Wales was quashed and Ms Shi was re-sentenced to 4 years and 9 months imprisonment with a non-parole period of 2 years and 7 months. The original sentence was, accordingly, reduced by 9 months. It was found that the initial sentence was too harsh and not reflective of her culpability for the crime committed.

     

    Défendeurs / Répondants de la première instance

    Prévenu:
    Si Shi
    Sexe:
    Femme
    Nationalité:
    Australien

    Accusations / Demandes d’indemnité / Décisions

    Prévenu:
    Si Shi
    Législation/Code:

    s.400.9(1), Criminal Code 1995

    Détails de charges:

    Dealing with property which is reasonably suspected to be the proceeds of crime

    Constatation:

    Ms Shi was re-sentenced to 4 years and 9 months imprisonment with a non-parole period of 2 years and 7 months. The original sentence was, accordingly, reduced by 9 months.

    Tribunal

    New South Wales Court of Criminal Appeal

    Sources / citations

    Shi v R [2014] NSWCCA 276:

    https://www.caselaw.nsw.gov.au/decision/54a63ffc3004de94513dc91e

    http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCCA/2014/276.html?context=1;query=shi;mask_path=au/cases/nsw/NSWCCA