Federal Court of Australia

Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd [2022] FCA 665

ORDERS

THE COURT ORDERS THAT:

1.    Vina Money Transfer Pty Ltd is convicted of Charge 1 and Charge 5 of the indictment attached as Annexure A.

2.    Vina Money Transfer Pty Ltd is fined the sum of $1,000,000.

3.    Van Ngoc Le is convicted of Charge 2 and Charge 6 of the indictment attached as Annexure A.

4.    Van Ngoc Le is sentenced to imprisonment, in relation to the first count, for 2 years and 1 month, and in relation to the second count, for 8 months. The second sentence is to commence after 1 year and 10 months of the first sentence, with the consequence that 3 months is to be served concurrently. The total sentence is 2 years and 6 months. Van Ngoc Le is to be released forthwith on a recognizance release order to be of good behaviour for a period of 3 years in the amount of $1000.

5.    Tony Le is convicted of Charge 4 of the indictment attached as Annexure A.

6.    Tony Le is sentenced to imprisonment for 9 months. He is to be released forthwith on a recognizance release order to be of good behaviour for a period of 1 year and 6 months in the amount of $500.

7.    Khai Van Tran is convicted of Charge 3 of the indictment attached as Annexure A.

8.    Khai Van Tran is sentenced to imprisonment for 1 year and 7 months. He is to be released forthwith on a recognizance release order to be of good behaviour for a period of 3 years in the amount of $1000.

9.    Thi Huong Nguyen is convicted of Charge 1 and Charge 2 of the indictment attached as Annexure B.

10.    Thi Huong Nguyen is sentenced to imprisonment, in relation to the first count, for 1 year and 10 months, and in relation to the second count, for 9 months. The second sentence is to commence after 1 year and 7 months of the first sentence, with the consequence that 3 months is to be served concurrently. The total sentence is 2 years and 4 months. Thi Huong Nguyen is to be released forthwith on a recognizance release order to be of good behaviour for a period of 3 years in the amount of $1000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CONTENTS

REASONS FOR JUDGMENT

ABRAHAM J:

1    Vina Money Transfer Pty Ltd (Vina Money), Tin Vuong Pty Ltd trading as Hong Vina Fast Money Transfer (Hong Vina) and Eastern & Allied Pty Ltd trading as Hai Ha Money Transfer (Hai Ha) were, at the relevant times, money remittance businesses in Victoria and NSW that offered customers the service of transferring money from Australia to Vietnam. These businesses charged customers a fee for the provision of services. They also set an exchange rate for currency exchange between Australian Dollars (AUD) and Vietnamese Dong (VND).

2    Each business had multiple branches, and the stores were all in close proximity to each other. In Footscray, for example, the businesses were within 500 metres of one another. Exchange rates were displayed in the branches, visible through windows, and also on changeable street signage outside the branch. Because of this practice, customers were easily able to compare rates between businesses. The three businesses, Vina Money, Hong Vina and Hai Ha, entered into contracts, arrangements or understandings (CAUs), containing cartel provisions. They were, but for the relevant cartel provisions in the CAUs, likely to be in competition with each other. The CAUs contained a cartel provision, relating to charging customers a common exchange rate of AUD to VND (exchange rate CAU); and relating to the price for services, namely, ceasing or applying fee discounts on money remittances to Vietnam (fee discount CAU). These provisions were given effect to.

3    In that context, the offenders were charged with and have pleaded guilty to the following offences.

4    On 3 February 2022, Vina Money pleaded guilty to two offences contrary to the then s 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth) (CCA), being the offences of giving effect to a cartel provision, namely, that relating to the exchange rate CAU with Hong Vina and Hai Ha, and that relating to the fee discount CAU with Hong Vina and Hai Ha. Giving effect to the cartel conduct in relation to the exchange rate CAU occurred between 12 January 2012 and 5 August 2016, and in relation to the fee discount CAU, on 20 February 2012 and on 30 March 2012. As a consequence, Vina Money falls to be sentenced for two offences.

5    On 3 February 2022, Van Ngoc Le (Ngoc Le), as director, employee or agent of Vina Money, pleaded guilty to two offences of being knowingly concerned in the contraventions by Vina Money, contrary to s 44ZZRG(1). The offence in relation to the exchange rate CAU occurred between 12 January 2012 and 5 August 2016, and in relation to the fee discount CAU, on 20 February 2012 and on 30 March 2012. As a consequence, Ngoc Le falls to be sentenced for two offences.

6    On 3 February 2022, Tony Le, as employee or agent of Vina Money, also pleaded guilty to the offence of being knowingly concerned in a contravention by Vina Money, being the exchange rate CAU, contrary to s 44ZZRG(1) of the CCA. This offence occurred between 20 December 2012 and 13 February 2014. Tony Le falls to be sentenced for a single offence.

7    On 3 February 2022, Khai Van Tran (Khai Tran), as director, employee or agent of Hong Vina, pleaded guilty to being knowingly concerned in the contraventions by Hong Vina in giving effect to a cartel provision, being the exchange rate CAU with Vina Money and Hai Ha, contrary to s 44ZZRG(1) of the CCA. This offence occurred between 12 January 2012 and 15 November 2014. Khai Tran falls to be sentenced for a single offence.

8    On 17 May 2022, Thi Huong Nguyen, as employee or agent of Hong Vina, pleaded guilty to two offences of being knowingly concerned in the contraventions by Hong Vina in giving effect to a cartel provision, being the exchange rate CAU with Vina Money and Hai Ha, and the fee discount CAU with Vina Money and Hai Ha. The offence in relation to the exchange rate CAU occurred between 12 January 2012 and 15 November 2014, and the offence in relation to the fee discount CAU occurred on 20 February 2012 and 30 March 2012. As a consequence, Thi Huong Nguyen falls to be sentenced for two offences.

9    A copy of the indictment containing the charges relating to Vina Money, Ngoc Le, Tony Le and Khai Tran, dated 31 January 2022, is attached to these reasons as Annexure A.

10    A copy of the indictment containing the charges relating to Thi Huong Nguyen, dated 28 March 2022, is attached to these reasons as Annexure B.

11    In respect to the exchange rate CAU, by 11 January 2012, each of Vina Money, Hong Vina and Hai Ha, through their directors, servants or agents, had entered into the CAU. The CAU was to charge customers of all three businesses the same exchange rate for AUD to VND, with such common rate to be altered from time to time as agreed between the businesses. The Director does not allege that the cartel was contingent upon always applying a common exchange rate. Rather, due to timing issues, message delays, business pressures, and commercial dealings, the CAU was not universally applied. Despite that, the offenders gave effect to the CAU over a period of time, the length of which varies between the offenders.

12    In respect to the fee discount CAU, on 20 February 2012, Vina Money, Hong Vina, and Hai Ha, and on 30 March 2012, Vina Money, Hong Vina and Hai Ha, through their directors, servants or agents, entered into the CAU. The CAU was agreeing, in respect to customer fees for the provision of money remittance services across the Footscray stores of Vina Money and Hong Vina, on 20 February 2012, to cease applying discounts, and on 30 March 2012, to apply the same amount of discounts.

13    During the charged periods, the three businesses in the CAU occupied approximately two-thirds of the market in terms of the number of transactions remitting money from Australia to Vietnam. Between 1 December 2011 and 31 October 2016, this amounted to approximately $2.5 billion.

Factual overview

14    Each of these matters proceeded by way of a statement of facts. In relation to Khai Tran, Tony Le, and Thi Huong Nguyen, the facts were agreed, and in relation to Vina Money and Ngoc Le, the facts were not disputed. There is significant overlap between the statements of facts, but each additionally focuses on the conduct of the particular offender to whom it related. The statements of facts provide detail on the manner in which the offences were committed, including SMS, email, and telephone communications between the representatives of the three businesses, reflecting the giving effect to the CAUs. The documents are lengthy and it is unnecessary to repeat all that detail here. I have taken all those facts into account, in so far as they form the basis of the plea of a particular offender. The following is only an overview.

The competitors

15    Vina Money Pty Ltd was registered in August 2002, and in September 2002, it changed its name to Vina Money Transfer Pty Ltd. It was registered in New South Wales (NSW) in October 2006, and in Victoria in August 2012. During the relevant period, Vina Money owned branches in Cabramatta and Bankstown in Sydney, and Springvale and Footscray in Melbourne. The directors of Vina Money were, at various times, Ngoc Le, and his two sons, including Tony Le. Ngoc Le was appointed director and later secretary from 2 May 2011 until 31 October 2014, and reappointed to those roles on 3 November 2016. Tony Le was appointed director and secretary on 21 December 2016.

16    Tin Vuong Pty Ltd was registered on 3 June 2010, and on 13 September 2011, it registered the business name Hong Vina Fast Money Transfer. At various times during the relevant period, Hong Vina owned branches in Cabramatta in Sydney, and in Footscray in Melbourne. Khai Tran was director of Hong Vina, and his then-wife, Thi Huong Nguyen, was an employee or agent.

17    Eastern & Allied Pty Ltd was registered on 22 April 2008, and on 23 April 2008, it registered the business name Hai Ha Money Transfer. Hai Ha, during the relevant period, owned branches in Cabramatta, Bankstown, and Canley Heights in Sydney, and in Footscray and Sunshine in Melbourne. The director of Hai Ha during the relevant period was Dianne Phuong Nguyen (Phuong Dai). Phuong Dai is a prosecution witness in this case, and she and the company Hai Ha have been granted immunity from prosecution by the Commonwealth Director of Public Prosecutions. The conditions of immunity are, inter alia, that she assists the Australian Competition and Consumer Commission and the Commonwealth Director of Public Prosecutions, and that, if requested, she appears as a prosecution witness in any legal proceedings related to the matter. As a consequence, the various statements of facts are based on the practices adopted by Hai Ha, which, as the statements of facts reflect, were practices said to be essentially the same for Vina Money and Hong Vina.

Money remittance from Australia to Vietnam

18    There are three types of money remittance businesses that provide money remittance services from Australia to Vietnam: ‘independents’, local Australian banks, and multinationals.

19    Independents, as they are characterised, are privately owned businesses, serving their local cultural area. The competitive advantage for independents such as, at the relevant time, Vina Money, Hong Vina, and Hai Ha, is the cultural knowledge and awareness of their employees, including that they speak fluent Vietnamese, know the geographical areas of Vietnam, and are aware of events in Vietnam which may explain why money is being sent (for example, cultural events or natural disasters). Independents also generally offer significant cost savings on transactions. The exchange rates and transaction fees are generally more attractive than those offered by local Australian banks and multinationals. The independents compete with each other on exchange rates, fees, delivery time, geographical scope of delivery, customer service, and brand loyalty.

20    Local Australian banks that provide money remittance services include banks such as Commonwealth Bank of Australia and ANZ Bank. Money remittance services from Australia to Vietnam is a small subset of these banks’ wider operations.

21    Multinational money remittance businesses include those such as Western Union, MoneyGram, and Ria Financial Services.

22    The business of money remittance, as it related to the three independent businesses, involved transferring money belonging to a customer in Australia to a recipient located in Vietnam. Funds were delivered in AUD or VND, and where the latter was chosen, a currency conversion was required. The exchange rate from AUD to VND was set by the business at the start of each day, taking into account the wholesale rate, the market rate, and the retail rate of competitors. The business may have changed the rate during the course of the day.

23    Hai Ha branches and most of its agents displayed the AUD/VND exchange rate offered by Hai Ha on rate screens outside their locations, which were manually updated by staff when new rates were communicated. When a customer requested delivery of funds in VND, the exchange rate was applied to convert the funds from AUD to VND. The branch or agent applied the rate recorded in the Hai Ha Exchange Rate Schedule (subject to some exceptions referred to in the statement of facts). Service fees and transaction fees were charged to the customer. For example, Hai Ha would generally charge the customer a transaction fee which, in 2012, if a customer wished to transfer $100 AUD, was a fee of $4 AUD. The fee schedule for Hai Ha changed on 1 July 2016.

24    Once a transaction with a customer was completed, at least in the case of Hai Ha, funds were then transferred from Hai Ha’s bank account to the bank account of a company in Vietnam named Dong Tai, an independent business partner of Hai Ha that paid money out to recipients. Dong Tai held accounts in both AUD and VND, and those accounts were held at a large commercial bank in Vietnam named Sacombank SBR (Sacombank). When paying out money in VND, Dong Tai would convert AUD to VND using the wholesale rate offered by Sacombank. That wholesale rate would be approximated at the start of each day by Hai Ha applying a formula, which would in turn affect the rate Hai Ha offered to customers. Due to time differences between Australia and Vietnam, Sacombank did not commence trading until 12:00pm ADST or 11:00am AEST, so each day the Sacombank Wholesale Rate would not be known with certainty until that time. Where the wholesale rate offered by Sacombank was different to the rate offered by Hai Ha at the time of the customer’s transaction, profits or losses could occur on the transaction.

Sacombank’s communications

25    All three companies had relationships with Sacombank, which, as mentioned above, operated a large commercial bank in Vietnam, and set the wholesale rate for the exchange of AUD to VND.

26    The following five paragraphs are taken from the statements of facts in relation to Vina Money, Ngoc Le, Khai Tran and Thi Huong Nguyen (and therefore do not apply to Tony Le).

27    Sacombank first approached Vina Money and Hai Ha in March 2011, encouraging both businesses to agree on one exchange rate, and indicating that there was already some preparedness by Hong Vina to follow the rates offered by Vina Money. However, despite communications between representatives of Vina Money and Hai Ha, no agreement was reached.

28    Later in that same year, competition between the three businesses of Vina Money, Hong Vina, and Hai Ha intensified, as the businesses began operating branches in close proximity to one another. When a location became available next door to Hong Vina, Ngoc Le set up a branch of Vina Money there. That meant that all three businesses operating in Footscray were providing money remittance services from stores within 500 metres of one another. The communications between the businesses during this period which discussed the intensely competitive environment and the effects it was having on business profits are set out in the statement of facts.

29    It is inferred that Sacombank, in its capacity of making payments in Vietnam on behalf of all three businesses, observed the volatility of exchange rates being offered by the three businesses and as a result, on 2 December 2011, again approached the three businesses by email, further encouraging them to agree on one exchange rate instead of competing. The email stated:

For over the past 10 days, I have directly monitored the exchange rate volatility in Australia when transferring money to Vietnam, via the system of Vina, Hai Ha and Tin Vuong companies transferring [money] through Sacombank and SBR. I am frustrated as the EXCHANGE RATE differences among the companies are way too much, at times up to 300 points (21750/ 21930), especially at the company offices in 'Footray' - 'Mel' [sic].

Most recently, this morning, the exchange rate at the offices in 'Footray' [sic] is 30 points different among your companies (21750/21780), while the rate at the offices in 'Syned' [sic - 'Sydney'] is only 21600.

30    The email further stated:

If the situation continues like that at your companies in Australia, it leads to LOSSES only. We cannot do this - [we] can't let clients sending money to Vietnam benefit ‘unjustifiably/illegitimately’ [sic] due to the competition, among [your] 3 companies, in Exchange Rate, which is way too high compared to the current market in Vietnam.

Although Sacombank and SBR in VN [Vietnam] are only PAYER, I am really concerned about the too high Exchange Rate at [your] 3 Companies in Australia - you cannot get stuck in “a lose-lose situation” in Australia due to this Too High Exchange Rate.

…

I completely believe that, by doing this, each Company will not lose their clients, not suffer a loss, or get stuck in a lose-lose situation.

...

[I do] hope that you all reach a mutual agreement and start doing this RIGHT from this afternoon 02/12/2011 - applying one rate in 'Syned' [sic, Sydney] this afternoon, and also in Mel [sic, Melbourne] and other places.

31    In response, representatives of Vina Money, Hong Vina, and Hai Ha communicated, inter alia, by a series of emails, SMS messages, and telephone calls, seeking to agree to offer the same exchange rate and devising a process for communicating the agreed rate.

32    By 11 January 2012, these communications had culminated in the businesses reaching a CAU that the businesses would endeavour to offer a common exchange rate for AUD to VND to be altered from time to time as agreed between them. p

33    As explained above, Vina Money subsequently gave effect to the exchange rate CAU, with Ngoc Le, Khai Tran and Thi Huong Nguyen being knowingly concerned in giving effect to it, from at least 12 January 2012, and Tony Le from 20 December 2012, through an ongoing practice of communicating and offering the same exchange rate after that date.

34    With the exception of [27]-[31], the above details the nature of the business of money remittance, the three competitors, and the events that led up to the CAUs, as these matters are common to each statement of facts.

35    The summary below, which gives examples of the conduct of each offender, is based on the statement of facts tendered in relation to that offender. It is important to recall that each offender must be sentenced on the factual basis of the statement of facts tendered in their case.

36    Given the content of the statements of facts, it is also appropriate to record that an offender is to only to be sentenced for the conduct forming the basis of the offence for which the offender has pleaded guilty, and not any other conduct. An offender can only be sentenced for the conduct with which they are charged: The Queen v De Simoni (1981) 147 CLR 383. Each statement of facts refers to the circumstances in which the CAUs were made, in addition to evidence in respect to the giving effect to the CAUs and being knowingly concerned in that conduct. In that context, it is important to recognise that the offenders are not charged with, and not to be sentenced for, the offence of making a CAU, although the circumstances of the making are relevant, inter alia, to the knowledge of the offenders being knowingly concerned in giving effect to it. That is the basis articulated by the Director as to the relevance of this evidence.

Further facts for Vina Money and Ngoc Le

37    In addition to the summary of facts above, I add by way of overview the following.

38    From the earliest relevant time, Ngoc Le, as director and secretary of Vina Money, was responsible for managing and running the day-to-day operations of Vina Money at all of its branches. Ngoc Le’s sons, including Tony Le, were from time to time also engaged to do the same. In his role as director and secretary, Ngoc Le was responsible for setting the exchange rate offered to customers, and for deciding the amount of fees charged to customers. It is plain that Ngoc Le, by reason of his role in the business, was aware that Vina Money was in competition with both Hong Vina and Hai Ha.

Exchange rate CAU

39    As to the CAU to charge a common rate, as mentioned above, in response to the email from Sacombank on 2 December 2011, representatives of Vina Money, Hong Vina, and Hai Ha exchanged a series of emails, SMS messages, and telephone calls, seeking to agree to offer the same exchange rate and devising a process for communicating the agreed rate. Those representatives were Ngoc Le of Vina Money, Khai Tran of Hong Vina, and Phuong Dai of Hai Ha.

40    By 11 January 2012, Ngoc Le was communicating with the representatives of the other two businesses at various times on various days about what rate to apply, including whether to apply a higher or lower rate than the existing rate, when to apply a change to the rate, and the movement of exchange rates at competing businesses.

41    As a result of these communications, Ngoc Le, as director, employee or agent of Vina Money, directed Vina Money to apply a particular rate that was common to all three businesses on any given day at any given time.

42    From 12 January 2012 through to 5 August 2016, on a continual basis in a course of conduct, Ngoc Le gave effect to the exchange rate CAU by directing Vina Money to use the common exchange rate, and by passing information on exchange rates to the participants in the CAU. The evidence demonstrates ongoing discussions and agreements between the relevant participants, directed at the common purpose of giving effect to the exchange rate CAU on behalf of Vina Money (through Ngoc Le until 20 December 2012, then Tony Le until 13 February 2014, and back to Ngoc Le until 5 August 2016). The statement of facts provides illustrations that reflect the nature of the conduct and its frequency.

43    For example, in relation to the nature of the conduct in the period in which the exchange rate CAU was given effect to, on 10 October 2014, the following communication occurred between Ngoc Le and Phuong Dai:

44    Sometimes it was as simple as, for example, what occurred on 28 June 2012, when Phuong Dai sent an SMS to Ngoc Le stating, “I have increased to 21,000”, to which Ngoc Le replied, “ok”.

45    There were also some further communications from Sacombank. For example, on 26 January 2015, in response to an email from Sacombank, which included Sacombank saying, after referring to the discrepancy in that morning’s rates between the businesses:

With such a big gap in your exchange rate, I have to sadly say that the real beneficiaries are the money senders. At the same time, your service fee is considerably affected. Now is also time for the start of the Lunar New Year period. I do hope that you all can find a "common voice" in order to bridge the exchange rate gap.

Ngoc Le responded:

Many a time, I talked to Thi Huong Nguyen and Phuong Dai in order to reach a common exchange rate, since we all want, as business people, to make benefits.

However, there has been no result, and it’s really difficult if this lasts for any longer.

46    Vina Money gave effect to and Ngoc Le knowingly gave effect to the exchange rate CAU from 12 January 2012 until 5 August 2016, with the communications after January 2015 primarily being between Phuong Dai and Ngoc Le. For example, on 31 July 2015, Ngoc Le sent the following SMS message to Phuong Dai:

There’s been no rate at Vietnam’s market. I suggest [we] should not match the market VND rate. [We] should follow the rate we can exchange with the bank. Please reconsider [this], and what about the fee adjustment?

Currently, there are only 2 companies left, yours and mine. Why don’t we adjust to a higher fee rate, as all the current fees rise?”

47    It is unnecessary to recite further examples of the substantial communications involving Vina Money and Ngoc Le giving effect to the CAU. Suffice to say those referred to above are fairly typical of the type of communications.

Fee discount CAU

48    Vina Money had a standard fee schedule that applied from 1 December 2011 to 30 June 2016, unless fee discounts were being applied. The alternative fee schedule that existed from 24 December 2011 to 18 February 2012 allowed fees to be discounted 50% from the standard fees. From 24 December 2011 to 21 January 2012, fees were discounted 50% for the majority of Vina Money’s transactions.

49    Hong Vina’s standard fee schedule was identical to Vina Money’s fee schedule from 1 December 2011 to 18 June 2016 in respect of transactions of $10,000 or less. From 14 November 2011 to 30 November 2011, fees were discounted 30% for the majority of Hong Vina’s transactions; from 1 December 2011 to 23 December 2011, fees were charged in full to the majority of Hong Vina’s transactions; and from 24 December 2011 to 21 January 2012, fees were discounted 50% for the majority of Hong Vina’s transactions.

50    There is an apparent discrepancy between the businesses from December 2011 to January 2012 as to the amount of discount applied to fees, and the consistency of their application.

51    It is inferred that such discrepancy and inconsistency in fee discounting practices across the three businesses led to the discussion about fees in January 2012 between Ngoc Le and Phuong Dai, at a café in Cabramatta. During the course of the meeting, they discussed whether the businesses should charge higher transaction fees, as the fees were currently low, had not changed for a long time, and money was not being made as a result. Ngoc Le said to Phuong Dai that if she agreed, he thought Hong Vina would probably agree as well, and “we should come up with the fees together”.

52    Following the meeting, from 1 February 2012, a series of SMS messages were exchanged between Ngoc Le, Thi Huong Nguyen, and Phuong Dai discussing the cessation of discounts to fees, and later between Ngoc Le and Thi Huong Nguyen, discussing an agreed rate of discount to be applied to fees in the Footscray branches, and when to apply those discounted fees.

53    On 20 February 2012, the date on which the first offence of the giving effect to the fee discount CAU occurred, a series of SMS messages were exchanged between Ngoc Le, Thi Huong Nguyen, and Phuong Dai, the result of which led all three businesses to stop discounting fees that same day. That day, Phuong Dai sent SMS messages to Thi Huong Nguyen and Ngoc Le noting that Hong Vina and Vina Money continued to discount fees despite what had been agreed. Ngoc Le said in response, “no more discounts from this morning”. Phuong Dai sent another message to Ngoc Le stating that his discount sign was still up, to which Ngoc Le replied he would have it “checked right now”. Ngoc Le, as director, employee or agent of Vina Money, as a result of these communications, directed Vina Money to return to its standard fee schedule and stop discounting fees at all its locations that same day.

54    In the lead up to 30 March 2012, the date representing the second offence of the rolled up count, Ngoc Le and Thi Huong Nguyen exchanged SMS messages discussing when to start reducing fees at the Footscray branches, and what that discount rate should be. On 25 March 2012, Ngoc Le requested by SMS message that Thi Huong Nguyen reduce fees at Hong Vina at the same rate as Vina Money, to which Thi Huong Nguyen agreed, asking how much the fee reduction would be. On the same day, Ngoc Le sent Thi Huong Nguyen the new reduced fee schedule to be applied “from tomorrow”. Ngoc Le, as director, employee or agent of Vina Money, as a result of these communications, directed Vina Money to apply the new reduced fee schedule, which discounted fees at 30% off the standard fees, in its Footscray branch from 29 March 2012 to 12 July 2012. Hong Vina applied the same fee discount in its Footscray branch from 30 March 2012 to 15 September 2012.

Further facts for Tony Le

55    In addition to the summary of facts above, I add by way of overview the following.

56    As explained above, following the entry into the exchange rate CAU, each of the companies through their servants or agents continued to give effect to it. However, on 20 December 2012, there was a change in the operation of Vina Money. On that day, Ngoc Le sent an SMS message to Phuong Dai saying he was going overseas and gave her Tony Le’s mobile number. Tony Le was then authorised by Ngoc Le to take control of, and was authorised to deal on behalf of, Vina Money. Ngoc Le intended for Tony Le to engage in furthering the CAU by giving effect to it. Tony Le did so from 22 December 2012.

57    During the relevant period, Tony Le and Phuong Dai exchanged SMS messages to notify each other and agree on exchange rates to offer to customers of Vina Money and Hai Ha. The offence period for Tony Le is from 20 December 2012 until 13 February 2014, the date of the last SMS communication involving him in respect to the exchange rate.

58    For an example of Tony Le’s communications to Phuong Dai about the rate to apply to Vina Money transactions, on 4 February 2013, the following SMS message communication occurred:

59    And on 18 February 2013:

Further facts for Khai Tran

60    In addition to the summary of facts above, I add by way of overview the following.

61    From the earliest relevant time, Khai Tran, as director and secretary of Hong Vina, was responsible for managing and running the day-to-day operations of Hong Vina at all of its branches. In his role as director and secretary, Khai Tran, with his former wife Thi Huong Nguyen, employee of Hong Vina, was responsible for setting the exchange rate offered to customers, and for deciding the amount of fees charged to customers. It is plain that Khai Tran, by reason of his role in the business, was aware that Hong Vina was in competition with both Vina Money and Hai Ha.

62    In response to the email from Sacombank on 2 December 2011 which is recited above at [29] and [30], in the early hours of 3 December 2011, Khai Tran emailed Sacombank (although initially, it was incorrectly sent only to Phuong Dai of Hai Ha) as follows:

HI TRUNG, I AM REALLY GRATEFUL TO YOU PERSONALLY AND SACOM BANK IN GENERAL, FOR HAVING TRIED TO STAND UP TO HELP [OUR] 3 COMPANIES FIND A GOOD PATH TO WORK TOGETHER. TO BE HONEST, IF [WE] KEEP COMPETING LIKE THIS, IT JUST WASTES OUR HARD WORK. I REALLY HOPE THAT, AFTER THIS EMAIL, ALL 3 COMPANIES CAN FIND TOGETHER A BRIGHTER PATHWAY. AS FOR HONG VINA, [WE] ALWAYS WISH [OUR] CLIENTS TO BE HAPPY WHEN [THEY] COME, AND SATISFIED WHEN [THEY] LEAVE. HOWEVER, THERE WILL NOT BE COMPETITION NOR GIVE OURSELVES TROUBLE IN TERMS OF PRICES [sic – exchange rates]

TIN VUONG P/L..

63    The communications between Khai Tran and the representatives of the other two businesses thereafter were extensive and frequent. I refer to the table in the relevant statement of facts that sets out details from SMS messages between 14 December 2011 and 7 January 2012 showing the date of the message, time of the message, and rate agreed between the three businesses, with Khai Tran being listed in the table whenever he sent or received a message.

64    By 11 January 2012, Khai Tran was communicating with the representatives of the other two businesses at various times on various days about what rate to apply, including whether to apply a higher or lower rate than the existing rate, when to apply a change to the rate, and the movement of exchange rates at competing businesses. By a series of SMS and e-mail communications between agents of each of the three companies, by 11 January 2012, each company had made the exchange rate CAU.

65    The CAU was made by the words and actions of Khai Tran together with Thi Huong Nguyen, as servant or agent of Hong Vina, and servants or agents of Vina Money and Hai Ha. It was the common purpose of Khai Tran, and each company and their co-accused employees or agents, to give effect to the exchange rate CAU.

66    On a continual basis thereafter, as a course of conduct, to give effect to the provisions of the CAU, Vina Money, Hong Vina and Hai Ha made arrangements or arrived at understandings with each other about exchange rates to be quoted or otherwise communicated to customers and/or potential customers for the supply of their services. The giving effect to was by Khai Tran directing Hong Vina to use the common exchange rate and through the passing of information as to exchange rates and agreements as to common exchange rates thereto between him and Thi Huong Nguyen (as employee or agent of Hong Vina) each of Ngoc Le and Tony Le (as director, employee or agent of Vina Money) and Phuong Dai of Hai Ha. The evidence demonstrates ongoing discussions and agreements directed to the common purpose of Khai Tran giving effect to the CAU. Khai Tran knowingly gave effect by exchanging information as to the rates and what the adjusted rate ought to be, and then directing, encouraging or otherwise causing Hong Vina to apply the agreed exchange rate.

67    Hong Vina did not operate for the entire period during which Vina Money gave effect to the exchange rate CAU with Hai Ha. While it remained registered, it effectively ceased involvement in the cartel on 15 November 2014. Khai Tran knowingly gave effect to the exchange rate CAU from 12 January 2012 until 15 November 2014.

Further facts for Thi Huong Nguyen

68    In addition to the summary of facts above, I add by way of overview the following.

69    Thi Huong Nguyen is the former wife of Khai Tran. At all relevant times she was an employee of Hong Vina, and she and Khai Tran operated the Hong Vina business together. She was responsible, with Khai Tran, for setting the exchange rate offered to customers, and for deciding the amount of fees charged to customers. It is plain that Thi Huong Nguyen, by reason of her role in the business, was aware that Hong Vina was in competition with both Vina Money and Hai Ha.

70    The telephone communications between Khai Tran and Thi Huong Nguyen were lawfully intercepted pursuant to warrant.

Exchange rate CAU

71    As mentioned above, in the period of giving effect to the exchange rate CAU, on a continual basis, in a course of conduct, to give effect to the provisions of the CAU, Vina Money, Hong Vina and Hai Ha made arrangements or arrived at understandings with each other about exchange rates to be quoted or otherwise communicated to customers and/or potential customers for the supply of their services.

72    Thi Huong Nguyen did so as an employee or agent of Hong Vina. The evidence demonstrates ongoing discussions and agreements directed to the common purpose of Thi Huong Nguyen giving effect to the exchange rate CAU until November 2014.

73    For example, on 21 January 2012, there was a telephone call between Thi Huong Nguyen and Phuong Dai. During the telephone conversation, Thi Huong Nguyen stated that the rate of 21,680 was too high. Thi Huong Nguyen said to Phuong Dai that she had had a conversation with Ngoc Le, during which she and Ngoc Le agreed on dropping the rate. At the end of the conversation, Phuong Dai confirmed that she would also bring Hai Ha’s rate down, in line with the agreement reached between Thi Huong Nguyen and Ngoc Le.

74    Both Thi Huong Nguyen and Phuong Dai expressed concern in the conversation about whether Ngoc Le was implementing the 2011 understanding. During the conversation Thi Huong Nguyen said:

“And why on earth we should give them at such a high rate over here on Saturday … we can talk to each other when doing business so that we can make a bit of profit … why should we let er keep doing at higher rate so other people will profit? You know what I'm saying?”

75    On 11 February 2012, Phuong Dai received an SMS from Khai Tran and Thi Huong Nguyen’s daughter, Olivia Tran, providing her father’s Vietnamese telephone number to which Phuong Dai replied, “Thanks”. On 13 February 2012, Phuong Dai called Olivia Tran regarding the number she had been provided, which appeared to be missing a digit. In response, Olivia Tran provided Phuong Dai with Thi Huong Nguyen’s Vietnamese number. From that point, Phuong Dai sent and received SMS messages from the telephone number recorded by Phuong Dai as being that of Thi Huong Nguyen. The parties continued to exchange SMS messages and to match exchange rates until Phuong Dai took maternity leave from 21 February 2012. From 15 April 2012 to 16 January 2013, Khai Tran was overseas. While Phuong Dai was on maternity leave, Thi Huong Nguyen called her on 30 May 2012 and 2 June 2012, expressing concern about the level of exchange rates.

76    For a further example of communications between Thi Huong Nguyen, Ngoc Le and Phuong Dai, on 16 July 2012, at 1:58 pm, Phuong Dai sent an SMS to Thi Huong Nguyen and Ngoc Le stating that she was cutting Hai Ha’s rate to 21,230. Phuong Dai did not receive a response to her SMS message from either Thi Huong Nguyen or Ngoc Le. Hai Ha’s rate was increased from 21,230 to 21,270 at 2:21 pm. The following communication then occurred:

77    Again, the acts undertaken to give effect to the exchange rate CAU are detailed in the agreed statement of facts, and it is unnecessary to recite all of them here. Suffice to say I have taken them into account.

78    As noted above, Hong Vina did not operate for the entire period during which Vina Money gave effect to the exchange rate CAU with Hai Ha. Thi Huong Nguyen knowingly gave effect to the exchange rate CAU from 12 January 2012 until 15 November 2014.

Fee discount CAU

79    A summary of facts relating to the lead up to giving effect to the fee discount CAU, including facts which relate to Thi Huong Nguyen, is set out above at [48] to [52], when considering the case in respect to Vina Money and Ngoc Le.

80    Those facts that relate to the rolled up count are at [53] for the first limb and [54] for the second limb.

The investigation

81    In 2014, the Australian Criminal Intelligence Commission (formerly the Australian Crime Commission), lawfully intercepted telecommunications of Thi Huong Nguyen and Khai Tran in relation to an unrelated investigation. Analysis of those communications identified that between December 2011 and July 2012 both were in regular communication, via telephone conversations and SMS, with Ngoc Le and Phuong Dai.

82    The communications revealed that the businesses were notifying each other of exchange rates to be charged to customers, in VND, and discussing transaction fees.

83    In June 2014, the Australian Crime Commission referred this matter to the Australian Federal Police (AFP) and Australian Competition and Consumer Commission for investigation. As a result of that referral, the AFP and Australian Competition and Consumer Commission commenced an investigation into suspected cartel conduct that was contrary to provisions in the CCA. . On 28 October 2016, the AFP, with the assistance of the Commission, executed search warrants at the business premises of Hong Vina, Vina Money and Hai Ha, and the residential premises of Khai Tran, Thi Huong Nguyen, Ngoc Le, Tony Le and Phuong Dai, pursuant to s 3E of the Crimes Act 1914 (Cth).

Offence provisions

84    As referred to above, the offence to which Vina Money has pleaded guilty is giving effect to a CAU that contained a cartel provision contrary to s 44ZZRG(1) of the CCA. I note that s 44ZZRG was amended in 2017 and replaced with s 45AG. Given the dates of the offending it is s 44ZZRG which is the relevant offence provision. Section 44ZZRG(1) (as then in force) is as follows:

44ZZRG Giving effect to a cartel provision

Offence

(1)    A corporation commits an offence if:

(a)    a contract, arrangement or understanding contains a cartel provision; and

(b)    the corporation gives effect to the cartel provision.

…

(2)    The fault element for paragraph (1)(a) is knowledge or belief.

85    As apparent from the terms of the provision, it concerns corporations that contravene a cartel offence provision. The offence to which Ngoc Le, Khai Tran, Tony Le and Thi Huong Nguyen have pleaded guilty is being knowingly concerned in the contravention of a cartel offence provision, namely s 44ZZRG(1) of the CCA, contrary to s 79(1)(c) of the CCA. Section 79(1) is as follows:

79  Offences against section 44ZZRF or 44ZZRG

(1)     A person who:

(aa)  attempts to contravene; or

(a)  aids, abets, counsels or procures a person to contravene; or

(b)  induces, or attempts to induce, a person (whether by threats or promises or otherwise) to contravene; or

(c)  is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of; or

(d)  conspires with others to contravene;

a cartel offence provision is taken to have contravened that provision and is punishable:

(e)  in a case where:

(i)  the provision is a cartel offence provision; and

(ii)  the person is not a body corporate;

by a term of imprisonment not exceeding 10 years or a fine not exceeding 2,000 penalty units, or both; or

(f)  in any other case—accordingly.

Evidence

86    As noted above at [14], the Director tendered a statement of facts in respect to each matter, and each matter proceeded on its particular factual statement. In addition, the Director tendered material in each matter comprising, inter alia, portions of the transcript from the committal proceedings, and a statement of Matthew Weiner (AFP Digital Forensics) with attachments.

87    In respect to Ngoc Le, four character references were tendered:

(1)    Evan Bekiaris dated 13 December 2021;

(2)    Hung Ly dated 15 December 2021;

(3)    Thi Nhu Quynh Ho dated 17 December 2021; and

(4)    Bao Lac Le dated 31 December 2021.

88    A report dated 28 January 2022 from Kris North, a psychologist, was also tendered. I note the offender did not give evidence. I will return to these matters of evidence below.

89    In respect to Tony Le, six character references were tendered:

(1)    Evan Bekiaris dated 13 December 2021;

(2)    Hung Ly dated 15 December 2021;

(3)    Vuong Nguyen dated 14 January 2022.

(4)    Andy Tran dated 17 January 2022;

(5)    Thien Cat Tien Bui dated 18 January 2022; and

(6)    Richard Nguyen dated 19 January 2022.

90    Two character witnesses were called to give evidence: Thien Cat Tien Bui and Vuong Nguyen.

91    No evidence was tendered by Khai Tran or Thi Huong Nguyen.

Sentencing principles

92    The offenders fall to be sentenced in accordance with Pt 1B of the Crimes Act, which requires that the sentence imposed by the court be of a “severity appropriate in all the circumstances of the offence”: s 16A(1) of the Crimes Act.

93    In determining the sentence to be passed, in addition to any other matters, the Court must take into account the matters set out in s 16A(2) as far as they are relevant and known to the Court. This list relevantly includes: the nature and circumstances of the offence: s 16A(2)(a); if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character, that course of conduct: s 16A(2)(c); any injury, loss or damage resulting from the offence: s 16A(2)(e); the degree to which the person has shown contrition for the offence: s 16A(2)(f); if the person has pleaded guilty to the charge in respect of the offence, that fact, the timing of the plea, and the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g); the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences: s 16A(2)(h); the deterrent effect that any sentence or order under consideration may have on the offender: s 16A(2)(j) (specific deterrence); the deterrent effect that any sentence or order under consideration may have on other persons: s 16A(2)(ja) (general deterrence); the need to ensure that the person is adequately punished for the offence: s 16A(2)(k); the character, antecedents, age, means and physical and mental condition of the person: s 16A(2)(m); if the person’s standing in the community was used by the person to aid in the commission of the offence, that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates: s 16A(2)(ma); the prospects of rehabilitation of the person: s 16A(2)(n); and the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents: s 16A(2)(p).

94    It is important to recall that in sentencing, a court may not take into account facts adverse to the interests of the offender unless those facts are established beyond reasonable doubt. For facts in favour of the offender, it is enough that those facts are proved on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. As to the latter, the onus is on the offender to establish those mitigating factors. That said, as noted above, s 16A requires that those matters be taken into account so far as they are “relevant and known to the court”. That is not to be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [21]-[22].

95    The sentencing process involves the judge weighing all the relevant circumstances and making a judgment as to what is the appropriate sentence. It involves the balancing of many different and conflicting features: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [75]. This has been described as a process of “instinctive synthesis”, namely, as described by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51], “the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”.

96    I will refer to further sentencing principles relevant to the s 16A factors when addressing the submissions advanced in respect to each offender. However, given each of the offenders who fall to be sentenced pleaded guilty, it is appropriate to refer in more detail to the effect of that on the sentencing process.

97    The court is required to take into account not only the fact of the plea of guilty, but also its timing and the degree to which the timing resulted in any benefit to the community or any victim of, or witness to, the offence: s 16A(2)(g). This requires the court to take into account the utilitarian effect of the plea, in addition to any subjective significance that may flow from it (for example, as a reflection of remorse or contrition, or a willingness to facilitate the course of justice). The utilitarian value involves an objective assessment to be undertaken. On the other hand, if an offender has demonstrated contrition involving facilitating the course of justice as evidenced by the plea, this is a subjective factor and involves an enquiry as to the attitude of the offender and an assessment of contrition. It may be taken into account in the offender’s favour: s 16A(2)(f), see Bae v R [2020] NSWCCA 35 at [55]-[57]; Khalid v R [2020] NSWCCA 73; (2020) 102 NSWLR 160 at [88]. Although there is no requirement in the Crimes Act to specify or quantify the reduction given for the guilty plea, it has become the practice in some states to do so (NSW, for example, but cf Victoria). It follows, though, that the failure to do so is not an error. This topic of specifying the reduction was only addressed in the sentencing hearing for Thi Huong Nguyen. The Director recognised that there was a difference in practice between NSW and Victoria, and did not urge that a percentage discount must be given. It was accepted that it was not an error to specify a discount. Following the introduction of s 16A(2)(g), its operation was considered by Johnson J in Bae (with whom Bell P and Walton J agreed), concluding at [57]:

The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender.

98    The approach described in Bae has repeatedly been applied.

99    The advantage of specifying the reduction for the utilitarian value of the plea is that it recognises the degree of discount for the step taken, and provides, inter alia, guidance to others as to the possible impact of a plea of guilty on the sentencing process. It also provides transparency in the sentencing process, as it is (with assistance to law enforcement authorities) the only aspect of the sentencing process where a discount is given. Other factors, both mitigatory and otherwise, are weighed in the instinctive synthesis sentencing process.

100    There is a dearth of authority on sentencing in respect to contraventions of the criminal cartel provisions in the CCA, with only the cases of Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876; (2017) 254 FCR 235 (NYK); Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170; (2019) 137 ACSR 75 (K-Line); and CDPP v Wallenius Wilhelmsen Ocean AS [2021] FCA 52; (2021) 386 ALR 98 (WWO) (all interrelated matters concerning CAUs in a shipping context), which specifically address the nature of these types of offences.

101    Before considering the cases in respect to each offender, it is appropriate to make some general observations about the nature of cartel offences.

102    First, as Wigney J observed in WWO at [170]:

It is trite to observe that cartel conduct generally involves anti-competitive conduct of a very serious nature that should be emphatically condemned and deterred by the imposition of appropriately stern penalties. Prior to 2009, cartel conduct attracted only civil penalties. The fact that cartel conduct was criminalised in 2009 no doubt reflects the fact that Parliament regarded it sufficiently serious as to attract “opprobrium and societal condemnation in a way that the imposition of a civil penalty cannot”: CDPP v NYK at [215]-[216], also at [1] which reproduces the Minister’s Second Reading Speech; CDPP v K-Line at [275], [278].

103    Second, aligned with that observation, the maximum penalty for a company for a contravention of s 44ZZRG, is calculated by reference to s 44ZZRG(3), which states as follows:

Penalty

(3)    An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:

(a)    $10,000,000;

(b)    if the court can determine the total value of the benefits that:

(i)    have been obtained by one or more persons; and

(ii)    are reasonably attributable to the commission of the offence;

3 times that total value;

(c)    if the court cannot determine the total value of those benefits—10% of the corporation’s annual turnover during the 12‑month period ending at the end of the month in which the corporation committed, or began committing, the offence.

104    The provision is rather unusual in that it provides for alternative maximum penalties, based on either benefits obtained or annual turnover: NYK at [210]. In respect to the latter, the maximum penalty varies depending on the amount of annual turnover.

105    In relation to Vina Money, s 44ZZRG(3)(b) does not apply, because the “total value of the benefits” cannot be determined due to difficulties in calculating the advantages obtained by Vina Money reasonably attributable to the commission of the offence. It is accepted that the annual turnover of Vina Money during the 12-month period ending at the end of the month in which it committed or began committing each offence was less than $100 million, and accordingly, the maximum fine is that contained in s 44ZZRG(3)(a): $10,000,000.

106    The maximum penalty for the individual offenders, in this case Ngoc Le, Khai Tran, Tony Le and Thi Huong Nguyen, is that in s 79(1): a term of imprisonment not exceeding 10 years, or a fine not exceeding 2,000 penalty units (equating to $220,000), or both: s 79(1)(e).

107    In this regard, in Markarian, the plurality observed at [31]:

…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

108    Third, in NYK at [220] and later in K-Line at [279]-[281] and WWO at [174]-[175], Wigney J recognised that some guidance as to relevant sentencing factors can be gained from civil penalty cases in respect to cartel conduct. In those cases he referred to the convenient summary of the principles in Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516; (2016) 118 ACSR 124 (ANZ) at [86]-[89]:

[86]    In general terms, the factors that may be relevant when fixing a pecuniary penalty may conveniently be categorised according to whether they relate to the objective nature and serious [sic] of the offending conduct, or concern the particular circumstances of the contravenor in question (what sentencing judges commonly refer to as the offender’s “subjectives” or the “subjective circumstances”).

[87]    The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the contravenor is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.

[88]    The factors that concern the particular circumstances of the contravenor (where the contravenor is a corporation) generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.

[89]    The size of the contravening corporation does not of itself justify a higher penalty than might otherwise be imposed: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 at 559-561 [89]-[92]. The size of the corporation may, however, be particularly relevant in determining the size of the pecuniary penalty that would operate as an effective deterrent. The sum required to achieve that object will generally be larger where the company has vast resources: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265; 215 ALR 301 at 309 [39]; Australian Competition and Consumer Commission v Apple Pty Limited [2012] FCA 646 at [38].

109    Although there are differences between the civil process and the criminal process, the factors referred to in ANZ are not surprising, and are really matters of common sense, given the nature of cartel offences. Having recited in WWO the above passage, Wigney J went on to observe at [175]:

Many of the relevant factors or considerations that have been noted in the civil penalty context have been replicated, to varying degrees, in the list of mandatory considerations found in s 16A(2) of the Crimes Act. It is also important to emphasise that those factors or considerations should not be treated as a “rigid catalogue or checklist” to be applied in each case: see CDPP v NYK at [220]; CDPP v K-Line at [281]. It ultimately remains a matter for the Court to consider the nature and objective seriousness of the offending conduct by assessing all of the relevant facts and considerations… 

110    Fourth, the nature of cartel offences are such that general deterrence is of particular importance; indeed, ordinarily, it is a weighty or primary sentencing consideration.

111    In NYK, Wigney J correctly said at [273]-[274]:

[273]    First, as has already been noted, cartel conduct is notoriously difficult to detect, investigate and prosecute. It often involves large and sophisticated corporate offenders who can deploy their considerable resources and position to minimise the risk of detection. It is generally accepted that general deterrence is a weighty consideration in sentencing for offences which are difficult to detect and investigate: see for example R v Curtis (No 3) [2016] NSWSC 866 at [51]-[53]; R v Hannes [2000] NSWCCA 503; 158 FLR 359 at [394]; R v Rivkin [2004] NSWCCA 7; 184 FLR 365 at [423]. The importance of general deterrence has also been accepted in imposing penalties for anti-competitive conduct in the civil penalty context: ABB Transmission at [16]; Australian Competition and Consumer Commission v J McPhee & Son (Australia) Pty Ltd (No 5) [1998] FCA 310; J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365; 172 ALR 532 at [157].

[274]    Second, cartel conduct is an essentially economic or commercial crime that generally involves the offender weighing up whether the benefit or profit from the conduct is likely to outweigh the risks of detection and penalisation. Sentences imposed for such offences should be set so that others who may engage in such a weighing exercise will come to appreciate that the risks are likely to outweigh the benefits: that the likely penalty will be such that it could not be regarded as an acceptable cost of doing business. This consideration has also been accepted in the civil penalty context: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 at [62]-[63]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [65]-[66]; Australian Competition and Consumer Commission v Visa Inc [2015] FCA 1020; 339 ALR 413 at [114].

112    As general deterrence is a paramount sentencing consideration, factors personal to the offender such as good character and other mitigatory factors are necessarily afforded less weight than they otherwise might be: Gajjar v R [2008] VSCA 268; (2008) 192 A Crim R 76 at [27] and [28]; DPP (Cth) v Page [2006] VSCA 224 at [37]; DPP (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546 at [193]; R v Nguyen and Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72].

113    Fifth, the nature of cartel offending is such that it may not be possible to ascertain or quantify the consequence on the market. Nonetheless, as Wigney J observed in WWO at [242]:

It would be wrong, however, to approach this offence as if it were a victimless offence, simply because no specific individual or quantified loss can be identified. The cartel offence in s 44ZZRG(1) is part of a suite of provisions in the CCA that are designed to protect the integrity of Australia’s markets and economic system: see also s 2 of the CCA. Australia’s economy, like other free-market economies, is based on the philosophy that private enterprise and competition will foster productivity, efficiencies and innovation for the greater good of the economy and the community generally. Cartel conduct, like other anti-competitive behaviour, is inimical to, destructive of and may lead to a loss of public confidence in, Australia’s markets and economic system. That is so even where the conduct, as here, is eventually uncovered and punished.

114    Finally, I observe that there are no comparative sentencing cases within the meaning of the concept described in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [53]-[54] and The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [28]-[29]. This is the first occasion on which individuals, rather than corporations, fall to be sentenced for this type of offending. The shipping cartel cases of NYK, K-Line and WWO involve only corporations and have features which do not apply in this case, as I discuss below at [130]. That said, the nature of this type of offending bears similarities to features often present in other white collar crime, for example, the difficulties in detection, the complexity of the investigation, and the financial advantage sought to be gained. Principles relevant to those topics may, depending on the circumstances, be equally applicable to this type of offending. So much is reflected in the observations in NYK and later cases.

115    In the context of the above, I turn to the question of the objective gravity of the offending conduct.

Objective seriousness of the offending

116    It is appropriate at the outset to make some general observations about the objective gravity of the offending.

117    An overview of the facts, based on the statement of facts relevant to each offender is given above and, as previously explained, I have taken into account, in relation to each offender, the entirety of the statement of facts relevant to that offender. The sentences imposed in relation to each offender is based on the respective statement of facts.

118    The Director submitted that in relation to each offender, the objective seriousness of the offending in this case is properly to be characterised in the low to moderate range of offending. The offenders also commended that conclusion, although some simply referred to it as lower-level offending. The submissions made are addressed in more detail below when considering the individual cases.

119    Suffice to say at this stage, having considered the submissions and evidence relevant to each offender, and having taken into account the relevant principles, I am satisfied that the offences in each case are properly characterised in that manner. The offending is also properly described, in respect to each case, as serious. Of course, the role or extent of the conduct of the individual offenders varies, and is addressed below. Regardless, the conduct in each instance is serious.

120    I accept the Director’s submission made in relation to each offender (based on the evidence relevant to that offender), that the offending – in giving effect to the CAU, or being knowingly concerned in giving effect to the CAU – was committed for financial gain.

Exchange rate CAU

121    Each of the offenders pleaded guilty to conduct in relation to giving effect to the exchange rate CAU.

122    The purpose or consequence of the exchange rate CAU was for the three competitors to maintain market share. As described above, although they are small independent companies by comparison to the other avenues for money remittance, by volume they had between them two-thirds of the market share, which is a substantial share of the market. The maintenance of that share was critical to the success of their businesses (in a competitive market) because the profit they made was from the fees on the transactions and not from the exchange rate variants. The competitors, therefore, made their money based on the volume of customers and transactions that ensued. During the period of intense competition, customers were going from one business to another looking for the best return. A company offering greater value for the AUD for VND would take business from its competitors. That no doubt adversely impacted on the financial position of the business. The CAU meant there was no reason for customers to shop between these three competitors for a better return, because the rate of exchange between the three competitors would remain the same. The businesses would not lose business to its competitors on account of that competitor fixing a better exchange rate. The consequence was that by giving effect to the CAU the three competitors maintained their market share. By giving effect to the CAU the companies continued to benefit from their share of the market and did not risk losing customers to a competitor. This was of economic benefit to the businesses. As the Director submitted, the significance or importance of this explains why the CAU continued to be given effect to for so long. There was plainly a financial motive.

123    I accept the Director’s submission that an offence contrary to s 44ZZRG(1) is capable of being characterised as an ongoing offence. The Director described the offending as a course of conduct, as do the statements of fact. That said, any one act is sufficient to give effect to a CAU and to constitute an offence. Only one act is needed to commit the offence, and so an offence is committed each time a corporation engages in conduct which gives effect to a cartel provision: NYK at [205]. Plainly, here, very many acts are referred to in the statement of facts, varying between each offender. Those acts, and the periods of time over which they were undertaken, necessarily impacts the seriousness of the offending. Although the CAU was not applied in every instance, the implementation of the CAU was deliberate and involved repeated conduct. I accept that there was at least a degree of sophistication, planning and cooperation involved in the offending.

Fee discount CAU

124    Vina Money, Ngoc Le and Thi Huong Nguyen also pleaded guilty to the fee discount CAU.

125    Offering fee discounts on transactions to customers was a way to attract customers to a business and away from competitors. It follows that by giving effect to a CAU between competitors which agreed to either cease applying discounts to customer fees for the provision of services or to apply the same amount of discounts, cuts out any competitive advantage. Again, giving effect to that CAU could only be for a financial benefit.

126    These are rolled-up counts. A “rolled-up” count is one in which more than one contravention of the relevant offence provision, or more than one episode of criminality, is particularised as part of the charge. Such a procedure has been adopted in some cases where there is a guilty plea, and where there is consent of the offender’s counsel, for otherwise the counts would be regarded as duplicitous: R v Jones [2004] VSCA 68 at [13]; NYK at [206]-[207]. The maximum penalty for the offence remains the same as if it were a single offence. However, the objective criminality of the offence is greater for the offender than if there was only one count: Jones at [13]; NYK at [207].

127    That said, it is important to consider the actions of each individual offender in being knowingly concerned with giving effect to the particular CAU, or in respect to Vina Money, giving effect to the CAUs, and when considering the case against each I address specific submissions advanced by each of the offenders as to the seriousness of this offending.

Cartel offending

128    In that context, before addressing the individual cases it is appropriate to make some observations pertinent to submissions made by each offender.

129    It may be readily accepted that Vina Money and the other businesses, in giving effect to the CAUs, are in a different position to those corporations involved in the CAU considered in NYK, WWO and K-Line. Nonetheless, the nature of the evil is the same, in that the conduct is anti-competitive, affecting customers. Moreover, although the businesses involved in giving effect to the cartel conduct were known as ‘independents’ and were smaller corporate entities than the other market participants in money remittance services (such as banks and multinational corporations), the independents occupied approximately two-thirds of the market share. This reflects on the impact of the conduct on the market.

130    Although the independents were smaller companies and therefore some of the observations from NYK and the other cases of WWO and K-Line would not have resonance, for example, observations about the commercial size, complexity of the arrangement and the offenders being sophisticated corporate offenders who could deploy their considerable resources and position to minimise the risk of detection, nonetheless, plainly, the observations about the operational object of the cartel being to advance company interests do apply. That is why, for example, the exchange rate CAU was given effect to for such a long period. Therefore, the discussion as to nature and purpose of the harm referred to in those cases applies here, although at a lower scale.

131    Observations made of the difficulties in detecting offences of this nature must also apply. Although it was suggested that this conduct was not covert, in that there are recorded conversations, it is apparent that the investigation that detected this offending appears to have stemmed from lawfully intercepted communications between Thi Huong Nguyen and Khai Tran, unrelated to this offending. Clearly, such conduct remains difficult to detect.

132    General deterrence in imposing sentences for cartel offences, as explained in NYK and the other cases, remains significant.

133    Having considered the objective gravity of the offending conduct generally, I turn to the case in respect to each offender.

Vina Money and Ngoc Le

134    The same counsel represented both offenders, and to some degree there was overlap in the submissions (and often made without differentiating between the offenders). As a consequence, I propose to address the submissions together. I note that the position in relation to Vina Money was given comparatively less attention than that of Ngoc Le. One statement of facts related to both these offenders.

The offending

135    It is first appropriate to supplement the general observations made above as to the seriousness of the offending, addressing specific submissions made in relation to these offenders.

136    For Vina Money and Ngoc Le, it was submitted that the circumstances of the offending included the cartel agreement forming out of pressure from Sacombank; that it was an unsophisticated arrangement; and that Vina Money remained in competition with other local money transfer competitors and multinational money transfer organisations and banks.

137    The offenders acknowledged the almost five-year duration of the offending was a lengthy period of time, but submitted that in considering Ngoc Le’s role as director of Vina Money, those matters (referred to immediately above) were relevant to his moral culpability. In addition, it was submitted that he was negligent and careless in his engagement in the cartel, and that his engagement in the first place was in response to prompting by Sacombank. His engagement in the cartel was also explained by his lack of training in antitrust legislation. It was submitted that Ngoc Le did not organise or attempt to engage in the enforcement of the reached agreement (there were in fact multiple occasions where he acted against the agreement). It was acknowledged that Ngoc Le was the most senior employee of Vina Money, being its director. It was also submitted that Vina Money’s size and financial position is small in comparison to the corporations ordinarily prosecuted under s 44ZZRG.

138    It was submitted that the impact on third parties is indecipherable, in part, due to Vina Money remaining competitive with banks and other money transfer companies. There were periods where Vina Money disengaged with the cartel. It was submitted that the Court cannot be satisfied that the reached agreement caused a stabilisation of the market rate due to the inefficiency of the cartel and the presence of other competitors. The cartel agreement was not seeking for customers to remain allocated between Vina Money, Hong Vina and Hai Ha. Rather, the companies continued to compete against each other for the customers in the areas where their respective shops and agents were located. It was submitted that the benefit that was enjoyed by Vina Money was chiefly the continued partnership with Sacombank. This benefit was said to be of some significance as there were only two available Vietnamese banks for that kind of partnership. The other option would have negatively impacted Vina Money’s ability to transfer money in a timely manner and would likely have led to a reduction in customers. It was submitted that Vina Money’s fear of losing Sacombank’s partnership was during a time where de-banking was occurring and there was pressure by Sacombank for Vina Money to apply the wholesale rate or they would lose Sacombank’s services. The communication about the agreement could be uncovered easily due to the cartel members communicating by text message and email. The inefficiency of this agreement was in part due to Vina Money not always adhering to the agreement due to their desire to remain competitive.

139    The degree of Vina Money’s involvement in giving effect to and Ngoc Le’s involvement in being knowingly concerned in giving effect to the exchange rate CAU is readily apparent from the statement of facts. Their roles were critical to the implementation of the CAU.

140    The offenders’ submissions fail to properly recognise the purpose of knowingly giving effect to the exchange rate CAU, as described above.

141    As explained above, the consequence of Vina Money giving effect to and Ngoc Le being knowingly concerned in giving effect to the exchange rate CAU was that Vina Money continued to benefit from its share of the market and did not risk losing customers to other businesses.

142    The criminalisation of cartel conduct was directed to preventing arrangements between competitors that harm the market or reduce competition and thereby disadvantage customers. Here, the customers lost what had been their ability to shop around between these competitors for a better return in exchanging their money from AUD to VND. This CAU was given effect to by Vina Money and Ngoc Le for nearly five years, with the purpose of the participants maintaining their significant share of the market. It can readily be inferred from the statement of facts that Ngoc Le (and therefore Vina Money) was aware that the consequence of the CAU was disadvantageous to customers but advantageous to him and his business. It provided an economic benefit for each of the businesses, and relevantly for Vina Money and for Ngoc Le, as its director, employee or agent.

143    Although Vina Money and Ngoc Le acknowledged that the offences are serious, a number of submissions were advanced which tended to reflect otherwise.

144    The submission by Vina Money and Ngoc Le that they were still providing a competitive rate to customers, or that without these companies (Vina Money, Hong Vina and Hai Ha) the customers would need to deal with the banks or international remittance services, fails to recognise the nature and purpose of the exchange rate CAU and its consequences on competition between the businesses. The submission was that the conduct was not “designed to rip off customers” because the customers were “still doing better with the independents than they would have been doing if the independents went out of business and the customers had to go to the banks or the multinationals”, in which case “the customers would be worse off”. The submission attempts to minimise the seriousness of the conduct engaged in. It fails to recognise that the customers were denied the effects of competition between the businesses, which would have been financially advantageous to them. The rate the businesses provided (even if it was favourable to customers by comparison to the rates of banks and international money remittance services) was calculated so as to benefit the businesses, in this instance, Vina Money, and its director, Ngoc Le, and not the customers. As advanced, the submission tends to characterise the offending conduct as nonetheless advantageous to customers, as they were still in a better position dealing with these independents as opposed to dealing with other types of businesses for money remittance. The impression gained from at least some of the submissions is that the conduct was rather an altruistic act.

145    So much is epitomised by the submission that customers are now more disadvantaged than during the existence of the cartel because Hai Ha has increased its share in the market as a result of the closure of Vina Money. Leaving aside that there is no evidence to support that submission (particularly given, for example, there are other independents), it fails to grasp the evil of the offending. In this regard, the observations of Wigney J in WWO, recited above at [113], are apt.

146    It was also submitted by Vina Money and Ngoc Le that they were pressured by Sacombank to enter the agreement, contending that implicit in the pressure was the proposition that if they did not co-operate in the manner suggested by Sacombank, then Sacombank would terminate its relationship with Vina Money. Although the offenders accepted that at least one of the motivations to enter the exchange rate CAU was to maintain the market share, it was submitted that the threatened termination of the relationship was the basis on which they entered the CAU. That submission is also reflected in the written submissions where it was contended that “the benefit that was enjoyed by Vina Money was chiefly the continued partnership with Sacombank”. It may readily be accepted that the CAU was being urged upon the offenders by Sacombank. It may be accepted that the approach by Sacombank was the catalyst. However, there is nothing in the email communications with Sacombank, or in the conduct of the parties as reflected in the statement of facts, that gives rise to any threat, implicit or otherwise, from Sacombank. More particularly, I do not accept the submission that either Vina Money or Ngoc Le was motivated to enter the CAU because of some threat that failure to do so would result in Sacombank terminating the business relationship. There is no evidence of this being the offenders’ state of mind. Ngoc Le did not give evidence. As this state of mind was relied on as mitigating the conduct, the onus was on the offender to establish this fact. The inference to be drawn from the statement of facts is that the CAU was entered into to maintain Vina Money’s market share. It was to financially benefit Vina Money and Ngoc Le.

147    I note in this context the email of 26 January 2015, recited above at [45], which includes Ngoc Le saying to Sacombank “[m]any a time, I talked to Thi Huong Nguyen and Phuong Dai in order to reach a common exchange rate, since we all want, as business people, to make benefits. However, there has been no result, and it’s really difficult if this lasts for any longer”.

148    That said, even if Vina Money and Ngoc Le had an underlying concern that Sacombank may have ceased to do business with them, there is no evidence that any such concern was a result of any threat or other thing done by Sacombank. Any purported concern of Vina Money and Ngoc Le does not alter my conclusion that the motivation or purpose of the CAU was to maintain market share. The CAU was entered into for a financial benefit.

149    It was also submitted that Ngoc Le did not drive the cartel or attempt to enforce its agreement. The statement of facts reflects that once agreed upon, Vina Money and each of parties acted together to give effect to it. Moreover, the submission does not sit comfortably with, for example, the email of 26 January 2015 to Sacombank, recited above at [45]. Nor does it sit comfortably with the period of time over which the exchange rate CAU was given effect to. It may be accepted, as contended by Vina Money and Ngoc Le, that the exchange rate CAU was not always given effect to, but as observed in NYK at [231], that feature is not unusual. There is no suggestion here that the failure to apply the CAU was for the benefit of the customers.

150    The offenders’ submissions were directed to the exchange rate CAU, rather than the separate fee discounting CAU. At one level that is understandable, because of the length of time over which the exchange rate CAU was given effect to. However, giving effect to the fee discount CAUs is, of itself, significant. In context, it is plain that the purpose for doing so was to increase the profit of the business. The conduct necessarily influenced the market. There is a rolled up count in respect to this offence, related to two occasions. The very nature of the agreements on fee discounts reflects their anti-competitive behaviour in the market. There is no evidence that Sacombank had anything to do with this CAU. This is inconsistent with and undercuts the offenders’ submission that their involvement in this offending was out of fear that Sacombank would terminate its relationship with them. Rather, this reflects that the offenders’ preparedness to give effect to the CAUs was motived by financial benefit.

151    It may be accepted, as contended by Ngoc Le, that the purpose or motive behind the offending was not to fund a lavish lifestyle. The Director did not challenge that submission. That said, there was a dearth of information provided by the offenders about their financial position. The conduct was undertaken for the financial wellbeing and success of the business. Further, there were other benefits which Ngoc Le gained from his conduct. It is readily apparent that the existence and success of the business which he built was very important to him, in relation to not only making a living, but his reputation and standing in the community. This was jeopardised by the increased competition in 2011 between him and his principal competitors.

152    As is apparent from the statement of facts, up until July 2011, Vina Money’s agent in Footscray was Minh Money, which was run by Ngoc Le’s nieces. After a falling out with Ngoc Le, the nieces became agents of Hai Ha, which enabled an expansion of Hai Ha’s business in Melbourne. Ngoc Le chose to then set up a Vina Money store in Footscray, next door to Hong Vina. As a result of the proximity of these stores, Vina Money, Hong Vina, UMT and Minh Money were in close competition for customers. It is plain that Ngoc Le was unhappy with the conduct of his nieces. After his nieces left Vina Money for Hai Ha, there was a reduction in Vina Money’s turnover of 50% due to the customer loss.

153    As mentioned above, the result was that these three businesses were operating within 500 metres of each other. This resulted in a period of intense competition.

154    Ngoc Le also submitted that from the time of his nieces’ departure, eight years of difficulty began for Vina Money and his family. In 2010, there was a significant change in the money transfer industry due to ‘de-banking’ policies that resulted in a high level of due diligence and monitoring activity. This impacted Vina Money due to the cost of compliance, losing bank accounts in Australia and the operational costs to implement the compliance changes. Further, two armed robberies of Vina Money in 2011 and 2014 resulted in the hiring of an armed guard company that resulted in yearly costs to the company in the amount of hundreds of thousands.

155    Although those may be the circumstances in which Vina Money and Ngoc Le chose to give effect to the CAUs, it is not an excuse. The premise underlying the submission was that financial issues had arisen.

156    The circumstances faced by Vina Money and Ngoc Le were not atypical (for corporations of all sizes), so far as it was said that there were difficult financial circumstances faced, including, in particular, financial difficulties created by competitors. Nor is it atypical that offences (of many kinds) are committed out of perceived need.

157    It is significant that Vina Money and Ngoc Le gave effect to the exchange rate CAU for nearly five years. As explained above, each act could amount to an offence, and here, very many acts of Vina Money in giving effect to the CAU, and Ngoc Le in knowingly being concerned in those acts, as well as the period of time over which the acts were undertaken, necessarily impacts the seriousness of the offending. This was a long-running effective cartel which influenced the market adversely to consumers, and advanced the interests of Vina Money, Ngoc Le and others who were engaged in it.

158    In respect to the fee discount CAU, the conduct was more limited. As explained above, these are rolled-up counts, which affects the objective seriousness of the offence. The fee discount CAUs which were given effect to were for the purpose of increasing the profitability of the businesses. These types of CAUs also necessarily influence the market, and are anti-competitive.

159    Although the Director was not able to establish the consequence to the market or individual victims in respect to either of the offences the subject of the plea of guilty, the observations of Wigney J in WWO, recited above at [113], apply. I accept the Director’s submission that notwithstanding that a dollar figure for any benefit from the offending cannot be established, it can be inferred from the continuation of the offending over an extended period of time that a benefit was being achieved.

160    It will be apparent from the above discussion that the nature and the circumstances of the offending (including the subjective case advanced in that context) has been addressed in considering the seriousness of the offending.

Personal/subjective matters

161    Turning to the personal circumstances of Vina Money and Ngoc Le. It was submitted that both are first-time offenders; there was no company training, guidelines or compliance manual regarding anti-competitive conduct; both have pleaded guilty; Ngoc Le cooperated with investigating authorities; Ngoc Le did not drive the cartel or attempt to enforce its agreement; there is significant financial impact resulting from these charges including loss of business and Ngoc Le’s home; there is a personal impact upon Ngoc Le given his reputational loss in his community; and there is evidence of his remorse and cooperation.

162    The submission that Ngoc Le did not drive the cartel or attempt to enforce its agreement is addressed above when considering the offending.

163    Ngoc Le’s personal circumstances and the establishment of Vina Money were detailed. It was submitted that Ngoc Le opened Vina Money in 1999 due to his observations of the difficulties and expensiveness of money transfer services between Australia and Vietnam. It was submitted that he noted that those impacted were largely the poor and those with limited English. He viewed these issues in money transfers as an opportunity to assist the Vietnamese-Australian community and to build his own business. Vina Money operated between 1999 to May 2019, when it closed as a result of the charges being laid. Ngoc Le employed his family members to assist him with the running of Vina Money including his two sons and two of his nieces. As referred to above, his nieces left the business after a falling out with him. Although a little unclear as to when, a partnership was formed with MoneyGram, where Vina Money became an agent to the multinational company. As a result of the charges, MoneyGram would not secure Vina Money’s bank account and no other money transfer company would partner with Vina Money. The business was sold to a former staff member for $1, who acted as an agent for MoneyGram before the shop closed in 2020.

164    The impact of the closure of Vina Money and the charges on Ngoc Le and his family is submitted to be considerable. It was submitted that Ngoc Le was diagnosed with depression in 2016 due to the stress of running Vina Money. His mental health has declined significantly due to the impact of the business closure on his family. Ngoc Le feels guilt that his sons did not follow their careers related to their education and instead came to assist him at Vina Money. It was submitted that his family has been ostracised by their community as a result of the charges. After the business closure, Ngoc Le sold his family home in July 2021 and now resides in a rental apartment with his wife and young niece. It was submitted that Ngoc Le is concerned about the impact on the wellbeing of his family, in particular his adopted niece, if he is imprisoned. His niece is of a young age and due to her early life circumstances has emotional health problems that would likely worsen in the event of his imprisonment. His family reside in NSW and therefore he will be isolated if imprisoned. It was further submitted that due to his age and his mental and physical health, Ngoc Le is concerned about incarceration during the Covid-19 pandemic. It was submitted that the prospects for rehabilitation are excellent. He is a person of good character who is deeply remorseful. The prospect of further offending of any kind is remote.

165    I accept that Ngoc Le has no prior convictions, and as his referees attest, was of good character.

166    I accept that the offenders each flagged resolution of this matter by way of a guilty plea at an early stage of the proceedings. The Director accepts, and I agree, that the pleas of guilty, and the early timing thereof, is significant and the utilitarian value is high in a case such as this.

167    The fact of the plea is also some evidence of remorse and contrition, although it appears from some of the submissions that the offenders attempted to minimise the seriousness of the conduct. There are also statements of remorse in the character references relied on by Ngoc Le, although I observe that these are second-hand statements.

168    As explained above, regardless of whether the offenders were aware that this conduct was a criminal offence, they were aware that the conduct was disadvantageous and adverse to customers. The submission made was that Vina Money and Ngoc Le were negligent or careless in the engagement of the cartel conduct. To the extent that that submission relates to knowing the conduct was a criminal offence, it may be accepted. It was said that as a small company there was no company training, guidelines or compliance manual regarding anti-competitive conduct. However, the conduct itself was deliberate. I accept that was the circumstance in which the offence was committed, but as director of the company, Ngoc Le held certain responsibilities. Ignorance of the law is no excuse.

169    Moreover, it is important to recall that the absence of aggravating factors is not a mitigating factor on sentence.

170    As referred to above, Ngoc Le relied on a psychologist’s report dated 28 January 2022.

171    This report contained a significant amount of second-hand material which was relied on in the sentencing submissions. For example, the content of what Ngoc Le told the psychologist regarding his physical health conditions was relied on in submissions, rather than any separate medical evidence on this issue. Moreover, there are aspects of the report of concern, including advocacy by the psychologist that the Court should take into account certain matters in considering sentence. Senior counsel for Ngoc Le accepted during submissions, when the matter was raised with him, that that was the case. It was submitted that I would not take into account anything of that nature from the report. In that context the author also expressed concerns about the offender’s access to medicine and treatment, but provided no basis for those concerns.

172    In R v Smith (1987) 44 SASR 587 at 589, King CJ said this:

The state of health of an offender is always relevant to the consideration of the appropriate sentence of the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the conditions of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse impact on the offender's health.

173    R v Smith was cited with approval in Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596 at [123]. See also Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) [2017] FCA 522 at [154]; Lusty v CRA20 [2020] FCA 1737 at [49]; Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202 at [22]; Matson v Attorney-General (Cth) [2021] FCA 161 at [196].

174    There is also a brief description of what the offender told the author of the report about his offending, and his state of mind as to knowledge of the legality of the offending. Again, his counsel accepted that statements of those types of matters were not being used to bolster his case.

175    I note that the offender has not given evidence. It has been observed that limited weight ought to be given to self-serving, untested statements made to experts which are tendered in sentence hearings: see for example, R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369.

176    These observations about the material relied on in submissions, and the issues with doing so, highlights the importance of providing evidence in an appropriate manner to found the submissions.

177    All that said, I am prepared to accept the evidence of the psychologist in relation to Ngoc Le’s mental health, his diagnoses of anxiety and depression as a result of running his business, which has worsened since being charged with these offences, and how the diagnoses affect him. I also take into account and give some weight to what is said to be his physical condition, although there is scant material before me. These matters reflect on the fact that imprisonment may be harsher on this offender than others.

178    I accept that Ngoc Le has good prospects of rehabilitation, and that in his case, specific deterrence has less of a role to play in imposing his sentence. I have had regard to his personal circumstances and his concerns for the welfare of his family.

179    At the time of the submissions, Ngoc Le accepted that the effect of any sentence on his family did not amount to exceptional circumstances as is necessary under s 16A(2)(p): see for example R v Wirth (1976) 14 SASR 296. However, the interpretation of s 16A(2)(p) has since changed, with the Court in Totaan v R [2022] NSWCCA 75 at [93] concluding that s 16A(2)(p) should be applied according to its terms, and, to the extent that decisions of intermediate appellate courts have taken a different approach, they should no longer be followed in NSW. That is, there is no requirement that exceptional circumstances exist. Totaan has since been applied in Victoria, with the Crown there conceding it should, informed by the desirability of national uniformity in sentencing for federal offences: Rogerson v The Queen [2020] VSCA 82 at [106]-[109]. As no submissions have been made on this, and it is desirable, as recognised by the Crown in Rogerson, that there be a uniform approach, I will apply s 16A(2)(p) as interpreted in Totaan. I take into account the probable effect any sentence would have on Ngoc Le’s family. The submission in relation to that effect on his family is referred to above at [164], and is brief and at a high level of generality. The only particularised submission is his concern for his adopted niece if he is imprisoned, as she is of a young age, and due to her early life circumstances, has emotional health problems that would likely worsen in the event of his imprisonment. No evidence was presented in support of this submission. Nonetheless, I accept that any sentence of imprisonment may adversely affect his niece. I note also in this regard that Ngoc Le’s family reside in NSW and therefore he will be isolated if imprisoned.

180    I recognise also there has been some co-operation with the authorities by Ngoc Le.

181    I also accept that the loss of the business and his standing in the community are matters that fall within s 16A(2), in particular s 16A(2)(m), and I take them into account.

182    It is accepted by the Director that there has been significant delay in these proceedings, some as a result of Covid-19, but some by the nature and complexity of the investigation. In that context, the Director also accepted that the Court could find that during the period since the offending, there has been some aspect of rehabilitation. The relevance and significance of delay in the charging of an offender, or in the disposition of a pending prosecution against an offender for sentencing purposes, will depend on all the circumstances of the particular case: Scook v R [2008] WASCA 114; (2008) 185 A Crim R 164 at [16] and [57]. In R v Giourtalis [2013] NSWCCA 216 at [1791] Bathurst CJ observed that in “the case of a complex fraud it will always be necessary to balance the effect of the delay on the offender against the difficulty and complexity of proving the offence and the need for general deterrence”. I accept the Director’s submission that part of the delay was at least a result of the nature and difficulty in respect to an investigation of this nature. It has been recognised that the extent that delay can be relied on as a mitigating factor where it arises from a complex and lengthy investigation (which often arises in white collar crime), which is carried out with reasonable expedition, is limited: see for example, Giourtalis at [1791]; Scook at [59]. That said, conduct in respect to any rehabilitation remains relevant. Here there is the added consideration of delay as a result of the Covid-19 pandemic. I accept that the pandemic has added to the delay in these proceeding. Delay can also be relevant in so far as it has resulted in stress to the offender.

183    I also accept, as the Director did, that as a result of Covid-19, there is likely to be some restrictions imposed in prison, which otherwise would not apply, and this may make any time spent in custody more difficult.

184    Pausing there. As apparent from these reasons, I have accepted some submissions despite the offender not adducing any evidence or material to support the submission (where such might be expected) or where there are issues with the quality of some of the material relied on. As a general observation it should be noted that the fact I have done so should not be taken as any encouragement to adopt that approach when making submissions. To the contrary, the potential significance of such evidence or material in establishing the basis of a submission should not be underestimated, particularly so where the offence is serious, the submissions relied on are significant in mitigation of any sentence imposed (and such material in support would be expected to be available) and the submission is on a topic on which the offender bears the onus of proof.

Disposition

185    The Director submitted that bearing in mind the maximum penalty, the importance of general deterrence, in particular the need to deter those who may see possible penalty as a cost of doing business, the difficulty of detecting and proving cartel offences and the conduct of the offenders in committing the offences, punishment and denunciation ought to be given appropriate weight. The Director submitted that in the case of Ngoc Le the objective gravity of the offending warrants, in all the circumstances, the imposition of an immediate custodial sentence.

186    I note that although the Director contended that was the appropriate sentence, the Director accepted (as a result of a submission by the offenders) that it would not be an appellable error if a period of imprisonment was imposed but that Ngoc Le was released on a recognizance release order without serving the sentence immediately. That is, that result would be within the sentencing discretion open in the circumstances.

187    Ngoc Le submitted that a fine was an appropriate penalty, but if a sentence of imprisonment were imposed, it should be with a recognizance release order to be released forthwith. As to the submission that a fine was an appropriate disposition, I do not agree. The submission fails to appreciate the gravamen of the offending. I observe also that although s 16C of the Crimes Act provides that before imposing a fine on a person a court must take into account, inter alia, the financial circumstances of the person, no material was put to the Court to address that issue: s 16C(1). In making that observation I accept that the Crimes Act does not prevent a court from imposing a fine even if the financial circumstances cannot be ascertained: s 16C(2).

188    I have discussed the relevant factors in this matter, and made findings accordingly.

189    For the reasons previously given, general deterrence is the dominant sentencing factor in respect to cartel offences, and the circumstance in which these offences were committed does not alter that. To the contrary, the nature of this conduct, and, in respect to the exchange rate CAU, the extended period over which it was given effect to, renders the offences serious. Although the fee discount CAU was given effect to in a more limited manner, its purpose was the same. The giving effect to each of these CAUs is a separate offence, although driven by the same motive for the benefit of the offenders. The submission that a fine is appropriate fails to grasp the seriousness of the conduct. As explained below, I am satisfied that a sentence of imprisonment is the only sentence appropriate in all the circumstances of the case.

190    Although the personal circumstances explained above are generally favourable to Ngoc Le, there was a tendency to minimise or justify the conduct which reflects on the issue of the acceptance of responsibility and failure to appreciate the seriousness of the offences. Ngoc Le was the most senior person at Vina Money, being the director. Nonetheless, in the circumstances, I am prepared to accept that Ngoc Le is remorseful and contrite. I accept this is reflected by, amongst other things, his plea of guilty.

191    The most significant of the matters in mitigation is the early plea of guilty by both Ngoc Le and Vina Money, with all that that entails. I place great weight on that factor. For the utilitarian aspect of the plea of guilty, I have given a 25 per cent discount. In addition, the other factors taken from the plea (the subjective factors of remorse, contrition, and the willingness to facilitate the course of justice) have been taken into account in the offender’s favour in the instinctive synthesis process. As explained above, there has been delay in this matter, some of which is that necessarily attendant on the nature of these offences and the difficulty in investigation, although some attributable to the effects of Covid-19 on the justice system. I take into account the matters identified above in considering the submissions as to Ngoc Le’s subjective case.

192    As previously explained, general deterrence is of such importance that it necessarily follows that less weight can be given to mitigatory matters personal to Ngoc Le.

193    Nonetheless, noting the maximum penalty, and given the relevant sentencing principles and their application to the facts of this case, I am satisfied that a sentence of imprisonment is the only sentence appropriate in all the circumstances of the case. The appropriate sentence is a term of imprisonment. Ngoc Le is to be sentenced for two offences, one of which was an ongoing course of conduct involving very many acts of knowingly giving effect to the exchange rate CAU over nearly five years, and the other being a rolled-up count in respect to knowingly giving effect to the fee discount CAU. As previously made clear, Ngoc Le is not being sentenced for making a CAU.

194    In respect to the offence of being knowingly concerned in giving effect to the exchange rate CAU, I impose a sentence of imprisonment for 2 years and 1 month. In respect to the offence of being knowingly concerned in giving effect to the fee discount CAU, I impose a sentence of imprisonment for 8 months. In doing so I have applied a discount of 25 percent on each sentence.

195    Although these are separate offences, and there should be some degree of accumulation of the sentences, there is overlap in the periods during which the offences were committed. Consequently, I propose to order a degree of concurrency between the sentences: see for example the oft cited Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [37]. The sentence for the fee discount CAU will commence 1 year and 10 months after the commencement of the sentence for the exchange rate CAU. It follows that 3 months of the sentence will be served concurrently. In the result, the total effective sentence is a term of imprisonment of 2 years and 6 months.

196    The remaining issue is imposing a recognizance release order. The Court is required to fix a recognizance release order unless it exercises its discretion to decline to do so: ss 19AC(1), 19AC(4) and 20(1)(b) of the Crimes Act. A single recognizance release order is to be imposed: s 19AC(1)(c).

197    Section 20(1)(b) enables a court, before which a person is convicted of one or more federal offences, to sentence the person to imprisonment in respect of the offence, or each offence, but “direct, by order, that the person be released, upon giving security of the kind referred to in [s 20(1)(a)] either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with [s 19AF(1)]”: Hili at [27]. In Hili, the High Court observed at [40]:

…ss 16A(1) and (2) "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 the general principles identified by this Court in Power v The Queen, Deakin v The Queen, and Bugmy v The Queen.

198    The purpose of fixing a recognizance release order in relation to a sentence of imprisonment that has been imposed, is to provide mitigation in favour of rehabilitation through conditional release. Although the considerations taken into account at this stage are the same as those applicable to fixing the sentence of imprisonment, the weight attached to them may differ due to the different purposes to be served. In determining what period is required to be served, the objective gravity of the offending and general deterrence must also be taken into account, as must the interests of the community which imprisonment is designed to serve: see for example Page at [53]-[54].

199    The submission by senior counsel for Ngoc Le in support of Ngoc Le’s immediate release, included that if the court was sentencing a blue collar offender for an offence in the low-to mid-range of objective criminality, immediate imprisonment would not be being considered. The submission was, apart from being inaccurate, unhelpful. Again, it failed to acknowledge the seriousness of the offending, and the period over which it was committed.

200    What flows from the plea of guilty (for example, the subjective features of remorse and contrition, and the impact on issues such as rehabilitation), which are factors I have accepted, is also a consideration alongside all the factors, which are to be weighed for the fixing of the recognizance release order. There are, as explained above, a number of factors favourable to Ngoc Le, all of which I also take into account at this stage of the sentencing process. I note, in particular, the consequences of the charges on the business and the financial impact on him, that he is now raising his 5 year old niece, having adopted her, and that any sentence to be served would be in Victoria, with his family living in NSW. As explained above, I accept that as a result of Covid-19, there has been some delay in resolution of these proceedings and that there is likely to be some restrictions imposed in prison, which otherwise would not apply, and this may make any time spent in custody more difficult.

201    Given the seriousness of the offending and Ngoc Le’s role, and the importance of general deterrence and denunciation of this conduct, it may ordinarily be expected that some period of the sentence would be served immediately. However, in the circumstances (particularly those referred to in the preceding paragraph), this decision is finely balanced. Nonetheless, I have concluded, having weighed the relevant factors, that in the circumstances, sentences of imprisonment having been imposed, I order that Ngoc Le be released forthwith on a recognizance release order to be of good behaviour for a period of 3 years in the sum of $1000.

202    In relation to Vina Money, as previously observed, scant information was placed before the Court as to its financial position both at the time of the offending and at the time of sentencing. The Court was informed that by the time charges were laid, Vina Money had become an agent of MoneyGram, one of the multinational transfer companies. On Vina Money notifying MoneyGram of the criminal charges, the agency arrangement was terminated, and in 2019, Vina Money closed. There is no issue of future offending by Vina Money, or steps taken in relation to compliance.

203    Nonetheless, general deterrence plays a prominent role in any sentence imposed. I take it from those circumstances just mentioned that Vina Money would not be able to pay any fine which must be imposed. No submission was directed to this issue by either party. Despite that, it is necessary to impose a sentence which is appropriate for the offending. The exchange rate CAU offending occurred over nearly 5 years. It was committed for the financial benefit of the company. Again, I give a 25 percent discount on the sentence for the pleas of guilty. I also give that discount in respect to the fee discount CAU. In respect to the exchange rate CAU I impose a fine of $900,000. In respect to the fee discount CAU I impose a fine of $187,500. The total fine is $1,087,500. Given there was an overlap in the conduct I have considered whether, as a result of the principle of totality, the accumulated fine should be reduced.

204    In all the circumstances, given the principle of totality it is appropriate to impose a fine on Vina Money of $1,000,000.

Tony Le

The offending

205    The nature and purpose of the exchange rate CAU to which effect was given is described above at [122]. The conclusions as to the objective gravity of the offending at [118]-[120] and [122]-[123] equally apply. Suffice to say that it is accepted that Tony Le’s involvement in the offending was for a lesser period than that of his father, Ngoc Le, and also that of the other offenders.

206    Tony Le accepts that the legislative regime creating the offence is designed to ensure that competition is protected and that in this case, to a degree, competition was undermined by the conduct of the offenders.

207    Tony Le made a number of submissions as to the seriousness of the offending, which he submitted drives this to the lowest end of offending. In respect of Vina Money and the arrangement as a whole, the submissions put were not dissimilar to those relied on by Vina Money and Ngoc Le. That is, that “it was at the behest of a foreign entity who controlled the ability of the company to do business and at the encouragement of a competitor who Mr Le knew would take advantage of the arrangement”; that the members of the cartel, even with the arrangement in place still ultimately represented a more competitive arrangement for the consumers than any of the other two options (the local banks and the multinationals); and that the arrangement was never universally applied, with many occasions of a failure of the group to apply a consistent rate across all their outlets. In so far as it relates to Tony Le, it was submitted that he was not responsible for establishing any of the arrangements, but simply took over a business that already had a process in place which he continued; his involvement was ultimately to assist his father rather than to profit himself or drive his own business intentions; and there is no evidence of egregious profit or even an ability to properly quantify the effect on the market. Tony Le accepted that the business desire to remain competitive had at its heart the need to make profit.

208    Some of those submissions have already been addressed above and again it is unnecessary to repeat the conclusions here. In addition to those matters, Tony Le’s submission that the offence was at the encouragement of a competitor who Tony Le knew would take advantage of the arrangement is not a matter advanced by Ngoc Le. It is unclear what the basis of the submission is, or its significance. The offence is not making a CAU, but being knowingly concerned in giving effect to it. The relevance of the making relates to the knowledge of the offender when committing the offence.

209    That said, although the CAU extended over nearly five years, Tony Le’s involvement was just over 13 months, and in a context where it was already running. That involvement is significantly less than that of the other offenders, although not insignificant in itself, in that it involved multiple occasions of giving effect to the CAU. However, that the CAU was already running has limited significance in a context where Tony Le only falls to be sentenced for the offence of giving effect to a CAU. He is not charged with making a CAU. As previously explained, the offenders are not to be punished for offences they have not been charged with. It is plain that when he committed the offence, Tony Le did so with the knowledge of the existence of the CAU.

210    It was submitted that Tony Le took up the position he did with Vina Money, in effect, because he was asked by his father, Ngoc Le, to do so. That he did so because of a sense of filial responsibility to assist his father does not diminish the seriousness of his conduct. In doing so, he worked for the success of the business. There is no suggestion that he was not paid for working for Vina Money. The offending was for financial benefit.

Personal/subjective matters

211    It was submitted that although it was not a plea at the earliest time, it did occur prior to a trial. It saved the need for what may have been a lengthy and complex trial involving great reams of data, spreadsheets and analysis. It also represents remorse and acceptance of responsibility. Tony Le has no prior history and is a man of good character. A number of character witnesses were called on his behalf who attested to this. I accept that evidence. Since the charges, it was said that Tony Le has not committed any further offences. It was submitted that given his past history, the nature of this offending reflects a man for whom specific deterrence will have little, if any, role to play. I accept that Mr Le has good prospects of rehabilitation.

212    It was submitted that through no fault of his own, Tony Le has been awaiting the outcome of these matters for almost three years. Though no criticism is made of any person, party or entity, it was submitted the pandemic has been pervasive and courts have recognised that delay is a factor relevant to sentence in terms of considerations around rehabilitation, deterrence and the stress an individual feels awaiting the conclusion of their matter. I have addressed the significance of delay above, and the observations made apply equally in Tony Le’s case.

213    As to any harm, it was submitted that Vina Money remained more competitive than other money remittance providers (local banks and transnational companies) and that the conduct of the prosecutors by permitting Hai Ha to continue trading with absolutely no restrictions has in fact produced the result of reducing competition in the market place. These were the same submissions advanced by Ngoc Le, and I have addressed them above at [144]-[145]. Again, the observations made there apply equally here.

214    Tony Le accepted that general deterrence is a relevant aspect to sentence and likely forms the most significant part of any sentence. It was submitted that the cumulative effect of public shaming, the collapse of the business (even in circumstances where Tony Le did not want to continue working in it) and the imposition of a financial penalty will have a broader deterrent effect which is commensurate with the offending.

215    It was submitted that Tony Le is currently employed in the hotel sector of the hospitality industry which requires not only ongoing security checks of the employees but also requires employers to be able to repose trust and discretion in their employees. A prior history will have an adverse effect on him and a custodial sentence (irrespective of how it is to be served) will obviously be particularly burdensome for him given his occupation. I note that no evidence was put before the Court to base this submission.

Disposition

216    The process of determining the sentence to be imposed has already been explained and it is not necessary to repeat here.

217    The Director submitted that bearing in mind the maximum penalty, the importance of general deterrence, in particular, the need to deter those who may see possible penalty as a cost of doing business, the difficulty of detecting and proving cartel offences and the conduct of Tony Le in committing the offences, that punishment and denunciation ought to be given appropriate weight. It was submitted that the objective gravity of the offender’s criminality was low to moderate. The Director submitted that the objective gravity of the offending warrants in all the circumstances the imposition of a custodial sentence. The Director did not submit that any portion of the sentence should be served immediately.

218    Tony Le submitted that in all the circumstances, the appropriate disposition was an without conviction bond pursuant to s 19B of the Crimes Act, but in the alternative, if the offending was too serious for a non-conviction disposition, placing Tony Le on a bond to be of good behaviour would achieve all sentencing aims.

219    On this matter, Tony Le submitted that relevant features to support the approach sought include his character, his lack of antecedents, the fact that his involvement in the matter was as a result of two factors that to a degree might be extenuating circumstances, namely, working at a company as a result of helping his father and family rather than establishing his own business or driving his own profiteering, and inheriting a system already established. It was accepted that the offending was not trivial.

220    Section 19B(1) of the Crimes Act is as follows:

19B Discharge of offenders without proceeding to conviction

(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, 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;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

the court may, by order:

(c)    dismiss the charge or charges in respect of which the court is so satisfied; or

(d)    discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

(i)    that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;

(ii)    that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

(A)    on or before a date specified in the order; or

(B)    in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order; and

(iii)    that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.

221    Properly considered, this involves a two-stage process; first, whether one or more of subparagraphs (b)(i), (ii) or (iii) is established; and second, if so, whether, having regard to the factors so identified, “it is inexpedient to inflict any punishment, or to inflict any punishment other than nominal punishment, or that it is expedient to release the offender on probation”. That is in a context of the relevant sentencing considerations and the matters identified in s 16A of the Crimes Act: Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 192 ALR 92 at [10] and [15]; Director of Public Prosecutions (Cth) v Ede [2014] NSWCCA 282 at [27]. Plainly, under the second stage, sentencing considerations relevant to the nature of the offending for which the offender is to be sentenced are also relevant. The overarching obligation remains: that the court must impose a sentence of the severity appropriate in all the circumstances of the offence. The Director’s submission that in relation to the first stage of the process each subparagraph must be satisfied cannot be accepted.

222    I do not accept that the circumstances relied on by Tony Le, namely that he worked at Vina Money because of a sense of familial obligation, and to help his family, could in any way be considered extenuating. Nor do I accept that any other feature amounts to an extenuating circumstance. As explained above, Tony Le was asked to join the family business, and he did. That he was of good character prior to this does not alter that. That he agreed to do this on the basis that it was to help his family also does not alter that. He committed this offending over 13 months. There is no suggestion that the offending was other than as a result of a choice he made. To suggest, as it appears to have been suggested, that the conduct is different from other white collar crime, in that it was not done for greed, is to miss the point. This offending was for financial benefit. The evil to which the cartel offences are directed is the anti-competitive behaviour. It is the effect on the consumers and the market that is to be protected. But even if that submission was accepted, much crime is committed out of what is perceived to be necessity. It is not extenuating to commit a crime because it was considered that doing so would help keep a business running. Tony Le worked hard while employed by the business to make it successful; to make a profit. It follows that the first stage is not established.

223    In any event, the second stage is not established. The Court is not of the opinion that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation. The submission, directed to s 19B in these circumstances, is unrealistic.

224    The submission more generally reflects a failure to recognise the seriousness of the offending.

225    That said, there are factors which mitigate any sentence imposed, including Tony Le’s good prospects of rehabilitation, the steps he has undertaken for that purpose, and that he was of good character. A significant factor is the plea of guilty. For the utilitarian aspect of the plea of guilty, I discount the sentence by 25 percent. I take the other subjective features which I accept arise from the plea into account in the instinctive synthesis sentencing process.

226    I have referred to and made findings in relation to the mitigatory factors present in Tony Le’s case above.

227    However, the offending is serious, and although Tony Le’s involvement in the offending was for a lesser period than that of the other offenders, the course of conduct involved very many acts in which he was knowingly concerned in giving effect to the exchange rate CAU, and it occurred over the course of 13 months. The nature of the conduct in committing this offence is objectively serious. Although the offending was for a lesser period than his co-offenders, given the importance of general deterrence, in my view, the appropriate sentence is imprisonment, albeit for a shorter period than the other offenders.

228    Weighing all the factors, for the offence of being knowingly concerned in giving effect to the exchange rate CAU, I impose a sentence of imprisonment for 9 months.

229    As explained above, the matters in favour of Tony Le, including the plea, are also relevant to the issue of imposing a recognizance release order. He has good prospects of rehabilitation and has taken active steps towards being so. Taking into account and weighing all the relevant factors, in my view, the circumstances of Tony Le’s case are such that I consider he should be released forthwith on a recognizance to be of good behaviour for a period of 1 year and 6 months in the amount of $500.

Khai Tran

The offending

230    The nature and purpose of the exchange rate CAU to which Khai Tran was knowingly concerned with giving effect to is described above at [122]. Again, the conclusions as to the objective gravity of the offending at [118]-[120] and [122]-[123] equally apply.

231    Khai Tran accepts that the cartel conduct is serious offending. He also accepts that there is a degree of sophistication and co-operation in the conduct between the parties, although it is apparent that the CAU was not always given effect.

232    Khai Tran’s offending conduct occurred over a shorter period than the life of the CAU, over nearly three years, having ceased in November 2014.

Personal/subjective matters

233    Khai Tran came to Australia in 1977 as a 22 year old refugee and is now an Australian Citizen and father of six children. At the time of the offending, he was 57 years old, and he is now 66 years old.

234    The circumstances in which Khai Tran became involved in the offence were described as follows. In 2010, at the behest of Thi Huong Nguyen the two purchased Hong Vina. At that time, Khai Tran had little to no knowledge of the money remittance system. Hong Vina had previously been an agent of Vina Money, and despite the offer for it to continue that way, Thi Huong Nguyen and Khai Tran decided to run the business on their own. They soon found themselves embroiled in the period of intense competition which I have already described. It was submitted that to a degree, they, in particular Khai Tran, were outgunned in terms of size and experience in this area. It was in that context that Khai Tran wrote the email to Sacombank recited above at [62] in response to the second approach by Sacombank. It was submitted that the email was written with a sense of relief. It was submitted that in early to mid-2012, Khai Tran’s involvement in the actual discussions between the parties faded away, although he gave effect to the CAU because he was a director of the business, and had directed his employees to set the rates in accordance with the agreement. In about 2014, he separated from his partner Thi Huong Nguyen and his involvement in the business ceased not long after.

235    It was submitted that this offence overlapped with some matters which were dealt with in the County Court in Victoria in 2016 and for which Khai Tran received a sentence of 2 years imprisonment to be released immediately on a recognizance release order. Those offences occurred between 2012 and 2015, and were the offences of providing a designated remittance services while unregistered and dealing with the proceeds of crime. Since those matters were dealt with in 2016, Khai Tran has not come to the attention of the courts. He has not been employed since the offending.

236    Before Khai Tran purchased Hong Vina, he had obtained some tertiary education which was a year-long diploma course in banking and finance at the University of Melbourne, which gave him a basic understanding of banking and finance. He went to work at the State Bank for about eight years until about 1988, in a job which was essentially to assist members of the Vietnamese community to understand their obligations in relation to home loans, borrowing and accounts. For the next 12 years he ran a wholesale clothing business, moving between Vietnam and Australia. Thereafter for the next 10 years he assisted his then brother-in-law run a hotel in Vietnam.

237    Reliance was placed on delay between the execution of the search warrant in 2016, which occurred shortly after Khai Tran’s matters in the County Court had been dealt with, and the charges in this matter which were laid in 2019 and are now being dealt with. It was submitted that as a result, he has been in a constant state of suspense. It was accepted that any stress he feels is no different from any person in his position. He has also evinced and demonstrated rehabilitation during that time which, it was submitted, should not be placed in jeopardy by an immediate custodial sentence. It was submitted that the plea of guilty indicates, amongst other things, a willingness to facilitate the course of justice and to bring an early end to these proceedings. The plea was indicated immediately after the committal proceedings. This was submitted to be in a context where a trial would have been relatively lengthy and probably quite complicated. It was submitted that his prospects of rehabilitation are positive, and he has already demonstrated rehabilitation. He had no convictions before coming before the County Court in 2016, and was a man of good character. It was submitted that he is now a 66-year-old man from a big family. He receives unemployment benefits and is unable to work due to some physical infirmities. He needs two knee reconstructions and has been transferred onto a disability support pension. It was submitted that apart from the need for the reconstructions, he was otherwise in good health. There has also been some degree of cooperation with law enforcement at the execution of the search warrant.

238    I note that no evidence, medical or otherwise, was tendered by Khai Tran, nor did he give evidence.

239    I take into account the personal circumstances relied on by Khai Tran, the above being an overview. I accept that his plea of guilty being at a reasonably early stage of the proceedings is significant and the utilitarian value is high in a case such as this. I accept also that it is some evidence of remorse and contrition. The basis on which it is submitted that Khai Tran has rehabilitated is that he has not come to the attention of the authorities since his appearance in the County Court. So much may be accepted, although there is limited information provided as to life thereafter. That said, there is no reason to suppose that he does not have some prospects in respect to rehabilitation. This is a matter on which he bore the onus, and could have presented material in support. I note also Khai Tran provided some limited cooperation with the authorities at the time the search warrant was executed.

240    Khai Tran has no prior convictions, although he was convicted for offences which occurred, at least in part, in the same time period. Apart from informing the fact of those offences, very little information was provided. He did receive a sentence of imprisonment of 2 years to be released immediately on a recognizance release order. Those offences reflect that the behaviour in respect to this offending was not isolated or aberrant at that time. That is, he is not to be given leniency on the basis that this offending was out of character at the time.

241    There has been some delay in these proceedings and I have taken that into account in the manner previously described at [182]. I note that it was submitted that there was somehow an additional degree of punishment because Khai Tran has had two matters hanging over his head. The exchange rate CAU continued until August 2016. Search warrants in respect to that CAU were executed shortly thereafter. No submission was advanced that the investigation, given its nature, was not complex, or that it was not conducted reasonably expeditiously in the circumstances. I note that it was not suggested that he underwent anymore stress than anyone else who had a search warrant executed, and who was waiting for a resolution of the matter. Of course, Khai Tran’s conduct after the sentence was imposed in 2016 is plainly relevant and I have taken it into account.

242    As referred to, Khai Tran accepts that the cartel conduct is serious offending. The circumstances of his purchase of Hong Vina and his subsequent involvement in the offending do not detract from this. Rather, it can be readily inferred that the reason he agreed to giving effect to the CAU was for financial benefit to Hong Vina, and in turn, him and Thi Huong Nguyen as its directors.

Disposition

243    Again, it is unnecessary to repeat the principles relevant to assessing the sentence to be imposed.

244    As in the case of Ngoc Le, the Director submitted that given the maximum penalty, the importance of general deterrence, the need to deter those who may see possible penalty as a cost of doing business, the difficulty of detecting and proving cartel offences and the conduct in committing the offences, punishment and denunciation ought to be given appropriate weight. As explained above, objectively viewed, the criminality was low to moderate. In that context it was submitted that the offending warrants in all the circumstances the imposition of an immediate custodial sentence. Also as with Ngoc Le I note that although the Director contended that was the appropriate sentence, it was accepted that it would not be an appellable error if a period of imprisonment was imposed but Khai Tran was released on a recognizance release order without serving the sentence immediately. That is, that would be within the sentencing discretion open in the circumstance.

245    Khai Tran accepted that the appropriate sentence was one of imprisonment, but submitted that there should be a recognizance release order with the effect that he be released immediately.

246    I have made findings in relation to the features of Khai Tran’s case which are relied on. Some aspects of his subjective case are more difficult to assess (for example, prospects of rehabilitation) because of the nature of the submissions and the absence of evidence.

247    Weighing all the relevant factors, in light of the applicable sentencing principles, a sentence of imprisonment is appropriate. So much was accepted by him.

248    Significantly, Khai Tran pleaded guilty at a reasonably early stage. It was before the trial was listed. In relation to the utilitarian value of the plea have given a discount of 25 percent. The subjective features that I accept flow from the plea have been taken into account in the instinctive syntheses process.

249    Khai Tran’s offending is less serious than that of Ngoc Le, in that it did not continue for as long, although a length of nearly three years is still significant. For the offence of being knowingly concerned in giving effect to the exchange rate CAU, I impose a sentence of imprisonment for 1 year and 7 months.

250    The next issue is the imposition of a recognizance release order. I note this conduct occurred before Khai Tran was dealt with on other charges. It was submitted that because of the timing of these charges, he has been in a constant state of suspense. No doubt had these charges been known and dealt with at the same time as the other offending for which he was sentenced, the sentence imposed there would have been more severe. Nonetheless, it can be accepted that as a consequence, although he was sentenced to imprisonment, he was released forthwith on a good behaviour bond. He has since successfully completed his release on a recognizance order without further offending. I take into account other matters favourable to him, as described above. As noted above, the seriousness of the offences and general deterrence are still relevant to this stage of the sentencing process. I am also conscious of the importance of parity in sentences imposed when dealing with co-offenders. Weighing the relevant matters, in the circumstances, I am persuaded that a recognizance release order should be made such that Khai Tran is released forthwith. The period of the recognizance is that he be of good behaviour for 3 years in the amount of $1000.

Thi Huong Nguyen

The offending

251    The nature and purpose of the exchange rate CAU, which was knowingly given effect to, is described above at [122]. Again, the conclusions as to the objective gravity of the offending at [118]-[120] and [122]-[123] equally apply. The nature and purpose of the fee discount CAU is described above at [125], and the conclusions at [118]-[120], [125]-[126] and [158] apply. It is not necessary to repeat those matters here.

252    The Director submitted that Thi Huong Nguyen’s role in this offending was more involved than that of Khai Tran, her ex-husband, and that her communications with Phuong Dai and Ngoc Le were extensive. The Director placed Thi Huong Nguyen’s offending at a level of offending commensurate with that of Ngoc Le, although the Director acknowledged that her involvement was for a significantly lesser period. Thi Huong Nguyen accepted that characterisation, and accepted that her involvement was more than that of Khai Tran. Having considered the agreed statement of facts in her case, that submission can be accepted. The Director submitted that the conduct necessarily involved a contract, agreement or understanding and regular cooperation over an extensive period with other market participants, the conduct affected customers of money remittance services, and is serious offending. For the reasons given, that can be accepted.

253    Further, for reasons previously given, there is a degree of sophistication, planning and cooperation involved in the offending. I accept the Director’s submission that it can be inferred that offending of this nature was committed solely for financial gain. Indeed, Thi Huong Nguyen accepted as much, and pointed to the passage in the statement of agreed facts, recited above at [72], as reflecting this. In submissions, Thi Huong Nguyen was forthright in accepting responsibility for her conduct.

254    Thi Huong Nguyen accepted that her conduct affected customers of money remittance services, but that the conduct constituting this offence should be assessed as an example of lower-level cartel conduct. She submitted that it is relevant to note that the initial approach by Sacombank in March 2011 did not immediately result in a CAU. This, however, is of no real significance, as she is not charged with making a CAU. That said, in submissions, Thi Huong Nguyen confined the relevance of this to the assessment of the prospects of her reoffending. I accepted that may be so, but it is of little weight in the context of the later conduct. It was also accepted by Thi Huong Nguyen that her conduct was deliberate and planned. It was submitted, however, that the facts establish she was taking or accepting the direction of others, in terms of setting the rates and fees. Further, it was submitted that she was not the instigator of either agreement, and was not present at the meeting between Ngoc Le and Phuong Dai in January 2012 during which the potential for an agreement on ceasing fee discounts was discussed.

255    Thi Huong Nguyen accepted that as the offences on the indictment are ‘rolled up’, the offending involves multiple acts of criminality and is a course of conduct offending. However, it was submitted that the nature of cartel conduct offences is that they are likely to occur over a period of time (rather than occurring as isolated or one-off instances) so this feature is likely to be present in the majority of cartel cases. It was said that it would be very difficult to imagine an example of a cartel offence that did not reflect this, as the way in which these offences are committed is that for there to be any real benefit to the agreement, the cartel has to exist for a longer period than a one-off instance. In that context it was submitted that to the extent that it is relevant, the period of time over which these offences were committed is highly relevant, but does not necessarily elevate this example of cartel conduct above and beyond a typical example of cartel behaviour. Although I accept that giving effect to a particular CAU may involve a course of conduct, I do not accept that it is difficult to envisage an agreement which, given its nature, is only given effect to on one occasion. Indeed, it can well be envisaged that such conduct can occur, and effect very significant ramifications. As accepted by Thi Huong Nguyen, this offence can be committed by one act of giving effect to a CAU. This simply reflects that assessing the seriousness of cartel conduct necessarily depends on the circumstances of the particular case.

256    The offending conduct occurred between 12 January 2012 and 15 November 2014, a shorter period than that of Vina Money and that of Ngoc Le. The period of time charged for the exchange rate CAU was almost three years. That is a significant period. The period of time charged for the fee discount CAU was more limited. That length of time over which the offending occurred necessarily impacts the seriousness of this offending.

257    Thi Huong Nguyen submitted that the CAU was not being given effect to every day or on every occasion, although she properly acknowledged that that is not mitigating, referring to NYK. In NYK it was observed at [231] that: “experience has shown that cheating between cartelists is a common feature of many cartels. Indeed, economic theory suggests that such conduct is economically rational. It is in the cartelist’s own self-interest to cheat on the cartel. They do not cheat for the benefit of the customer or consumer”.

258    It was also submitted that when assessing the potential detriment of the cartel conduct, it is relevant that consumers were able to use major banking institutions and registered money remittance services as an alternative to the independents. It was accepted the independents represented a substantial percentage of the market share (approximately two-thirds).

259    It was also accepted that the Director is unable to quantify the exact extent of the consequences to the market or to individual victims, which reflects the ordinary state of affairs for cartel cases, and that the inability to quantify the loss or identify a particular victim does not necessarily mitigate the offending. Rather, the offences to which the offender has entered pleas of guilty focus on the damage sustained by the markets and economic system.

260    Thi Huong Nguyen, as with the other offenders, sought to highlight some differences between her and the offenders in NYK and the other shipping cases.

Personal/subjective matters

261    Thi Huong Nguyen submitted that she entered a plea of guilty at an early stage which was accepted by the Director. It was submitted that the plea of guilty has saved the community the expense of running what may have been a lengthy and complicated trial and is indicative of a willingness to facilitate the course of justice and an acceptance of responsibility. The Director submitted that Thi Huong Nguyen had flagged resolution of this matter at a reasonably early stage of proceedings, being post-committal, but prior to the listing of any trial date. The Director accepted that the plea of guilty, and the reasonably early timing of it, is significant and the utilitarian value is high in a case such as this. The Director observed that although this plea was entered after those of her co-accused, it was accepted that factors outside her control (namely, legal funding issues and change of counsel) would have contributed significantly to the delay in pleading guilty compared to her co-accused. I accept the plea was entered at a reasonably early stage, and although later than her co-accused. I accept that matters outside her control may have delayed the resolution of her matter.

262    I also accept and take into account that in addition to the plea of guilty, Thi Huong Nguyen made admissions to investigating officials when she was first questioned on the day of the execution of the search warrant on her home. I accept she did so in a forthright manner.

263    Thi Huong Nguyen submitted that specific deterrence should have moderate weight in this sentencing exercise given the passage of time since the offence commission dates, co-operation with investigating authorities and her pleas of guilty. Thi Huong Nguyen accepted that she had a prior criminal history and, accordingly, is unable to rely on prior good character. This history is one offence, said to have occurred in 2012. Little is known of this offence except that it related to failing to answer a question (or giving false and misleading information) in a compulsory examination conducted by the then Australian Crime Commission. I note also that after this offending, in October 2016, Thi Huong Nguyen was sentenced in the County Court for offences that focused on operating an unlicensed money remittance business, which was Hong Vina. The period of that offending is not entirely the same as the cartel offending, but there is said to be significant overlap. For those offences, Thi Huong Nguyen received a total effective sentence of 26 months imprisonment, to be released immediately on a recognizance release order to be of good behaviour for a period of 3 years. That bond was completed without further offending.

264    It was submitted that when Thi Huong Nguyen engaged in this conduct, she had limited awareness that it was against the law. It was submitted that this goes to the moral culpability of the offending. This submission was not challenged.

265    Thi Huong Nguyen outlined her personal circumstances. She rents, she receives unemployment benefits, and it was said that her financial state can only be described as parlous, in that the rent she pays on her home exceeds the amount of unemployment benefits she receives. Her three youngest children from the relationship with Khai Van Tran live with her, and two of those children are studying and one is working, however, the one who is working has not yet started to contribute to the rent. She often relies on loans or the goodwill of friends and family to meet essential expenses. Once her language proficiency increases, she hopes to be in a much better position to obtain gainful employment.

Disposition

266    The Director submitted, as with Ngoc Le and Khai Tran, that bearing in mind the maximum penalty, the importance of general deterrence, in particular, the need to deter those who may see possible penalty as a cost of doing business, the difficulty of detecting and proving cartel offences and the conduct of the defendant in committing the offences, that punishment and denunciation ought to be given appropriate weight. Objectively viewed, Thi Huong Nguyen’s criminality was low to moderate.

267    The Director submitted that, in the case of Thi Huong Nguyen, the objective gravity of the offending warrants in all the circumstances the imposition of an immediate custodial sentence. As with Ngoc Le and Khai Tran, I note that although the Director contended that that was the appropriate sentence, the Director accepted that it would not be an appellable error if a period of imprisonment was imposed but Thi Huong Nguyen was released on a recognizance release order without serving the sentence immediately. That is, that that outcome would be within the sentencing discretion open in the circumstances.

268    Thi Huong Nguyen accepted that a period of imprisonment was the appropriate sentence, but submitted that in the circumstances a recognizance release order could be made such that she serves no period of imprisonment immediately. In making the submission she pointed to the fact that any such order to be of good behaviour can be 5 years.

269    Thi Huong Nguyen is to be sentenced for two offences, one of which was an ongoing course of conduct involving very many acts of knowingly giving effect to the exchange rate CAU over nearly three years, and the other being a rolled-up count in respect to knowingly giving effect to the fee discount CAU. As previously made clear, Thi Huong Nguyen is not being sentenced for making a CAU.

270    I have made findings in relation to the relevant features above. Weighing these features and considerations, and having regard to the relevant sentencing principles, I determine that the appropriate sentence for each offence is a sentence of imprisonment. As with the other offenders, I have given significant weight to the plea of guilty, and I have given a 20 per cent discount for the utilitarian aspect of that plea (noting that it was entered at a later stage in the proceedings than the other offenders). I have taken the subjective features which I accept flow from this plea (remorse, contrition and willingness to facilitate the course of justice) into account in the instinctive synthesis process.