Director of Public Prosecutions v Chai

[2015] VCC 1757

Pages 1 - 7   IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01497

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAOQUAN CHAI

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 November 2015
CASE MAY BE CITED AS:	DPP v Chai
MEDIUM NEUTRAL CITATION:	[2015] VCC 1757

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Accused	Mr G. Georgiou SC	Doogue O'Brien George

HIS HONOUR: 

1Gaoquan Chai, in August 2013 you obtained employment at the RM Williams shop at Chadstone shopping centre.  You had a history of work in the retail industry.  As part of your employment arrangements, you were given a key to the shop.  In a few weeks you used the key to go back to the shop after hours and steal RM Williams boots.  These are expensive items.  You sold what you stole on eBay.  You continued this dishonest conduct until you were caught some 18 months or so later.

2You had stolen 496 pairs of boots worth a wholesale price of over $123,000.  Your sales on eBay netted you $139,000.  This amount of money over 18 months is very significant and of concern, especially as your explanation for your crimes was greed and the need for money for ordinary expenses.  You were at the time earning wages, albeit the amounts varied.  You had for most of the time a partner, who you lived with, who was in full-time work as a chef.  It is hard to see anything other than $139,000 over 18 months or so, for a man in his early 20s without significant financial or other responsibilities, being anything other than money to be used for a comfortable, if not very comfortable, lifestyle. 

3All this adds to the very difficult question in this case, which is why you, a very intelligent young man with obvious potential, without any previous criminal behaviour or antisocial conduct, with a stable relationship and accommodation, would embark on such a dishonest and risky course of conduct.  There was an inevitability in being caught, given the eBay account was in your own name and the shopping centre was one with wide CCTV coverage.  Indeed you were seen ultimately through the means of CCTV footage.

4Your conduct and moral culpability was worse because your employer warned all staff that they were aware of the crimes, but you continued to offend for a month of so afterwards.  Again this is puzzling conduct.  There was another employee who committed the crimes with you, but he is involved in much less criminality.

5Your counsel pointed to your difficult family circumstances.  You were born in Malaysia and migrated with your parents and sister at age 11.  Already at that point your parents, in particular your mother, showed little love and care for you.  Communication and the usual family interactions were extremely limited to the point of being non-existent.  You were rejected, especially when compared to how your sister was treated.

6You excelled at school in Australia in order, it seems, to impress your parents, but it made no difference.  You enrolled in your chosen tertiary course, but before it was concluded you were asked to leave the family home.  Your friends, who wrote helpful letters, made it clear how estranged you were from your family as you grew up, notwithstanding that you lived in the family home and notwithstanding outward appearances.  You have had to work part time since your adolescence, but it seems your money was controlled by your parents.  Your parents do not know of your partner and it seems do not show any interest in your circumstances.

7All this tells me who you are and the difficulties you have faced, but it sheds only an obscure light on why you did what you did.  The psychologist who you are seeing reported that the emotional neglect probably left you without a moral compass or guide and thus you were unable to overcome the temptation of easy money that you could make by stealing your employee's goods and selling them on eBay. 

8The breach of trust and the sustained criminality are matters of real concern; however, you were young, 22 and 23 at the time and just 24 now.  Your rehabilitation must be given priority given you are a first offender who has shown genuine remorse.  In my view the community is willing to show leniency if a first offender does show remorse and has prospects, as you do, to permanently reform. 

9Your plea of guilty is an important matter and your sentence will be less than it otherwise would have been and I am able to consider other sentences of a different kind than I would have had you pleaded not guilty to these offences and been found guilty of them.

10In recent times our Court of Appeal has said that the sentencing landscape in this state has changed and sentencing judges have to recalibrate from previous understandings of what offending could be punished by community dispositions and what required immediate gaol.  The sentencing landscape has altered because our Parliament has made clear that I can only punish by imprisonment if it is the only option and a community corrections order does not meet all sentencing considerations. 

11The sentencing landscape has changed because in can impose longer community corrections orders and ones with greater elements of punishment and targeted rehabilitation program.  The Court of Appeal has made it clear in the guideline judgment of Boulton, and others, that a community corrections order has the benefit of enabling punishment and rehabilitation to occur simultaneously, which is not the case with gaol.

12I would have said in the past that theft from an employer over this length of time and of this amount would see a gaol term with a non-parole period for the offender, notwithstanding a lack of prior convictions or their age, but I can now consider a community corrections order alone or in combination with some gaol.  Your counsel urged a community corrections order alone.  The prosecution conceded that a community corrections order was appropriate, but urged it be combined with some gaol, given the gravity of the offending, its duration and the absence of any mitigatory explanation, it being really only explained by greed.

13I am, as I hope I have made clear, troubled by your criminality.  Punishment, denunciation and general deterrence are all matters of real weight, but in the end your rehabilitation - that is reclaiming you from this period of gross dishonesty - is also important for the community as much as for you.

14Mr Chai, do not doubt gaol is a brutal place and you are particularly ill-suited for it.  It would likely have had a long effect upon you.  You have a plan for continued tertiary studies and I think you have potential.  Your partner stands by you.  Mr Chai, by a bare margin I am going to impose a community corrections order alone; there will be no gaol.  But this is not a soft option, as the community corrections order I have in mind will be long and hard and you should be in absolutely no doubt that if you do not comply with each and every condition down to its final details then, when you return to me, there will be one option and that is you will go to gaol.

15Do you understand that bit of it?

16OFFENDER:  Yes, Your Honour.

17HIS HONOUR:  I intend to impose an aggregate term, as these offences are connected:  the burglary, which you have pleaded guilty to, made up by your breaking back into the shop without authorisation; and intent, that is as a trespass of intent to steal; the theft over the period of time, which is a course of conduct crime; and the obtaining financial advantage by deception, also a course of conduct crime, where you obtained the money from purchases on eBay, deceiving them that you were the rightful owner to sell the goods.

18An aggregate term will be one community corrections order; the duration will be four years.  There will be a number of conditions that apply to it, some that apply to all community corrections orders and some that apply just to you.  In general terms the conditions that apply to you is that you have to do 500 hours of unpaid community work.  You will be under the supervision of a community corrections officer.  You will have to do programs directed at you not reoffending and you will have to comply with treatment and assessment for any mental health problems.

19A document will be produced shortly and will set out the details of your order precisely.  They will be read to you and if you consent to them and then sign a document it will bring the matter to an end. 

20I make clear to you the benefit that has been given to you by reason of your plea of guilty and make clear to the community that had you pleaded not guilty to this offence and been found guilty of it I would have imposed a sentence of two years with a minimum term of 14 months and would have added a two-year community corrections order to that with a significant unpaid work component.  There will be orders that have been sought by the Crown relating to the forfeiture of some items that were found as the proceeds of crime, together with an order that you undergo a forensic procedure.

21I have considered that latter matter; notwithstanding you do not have any prior convictions, the sustained nature of your criminality is such that I consider the seriousness of the circumstances warrant that you be required to give a forensic sample.  That is a scraping from your mouth so that your DNA can be obtained and kept on a database.  Do you understand?

22OFFENDER:  Yes, Your Honour.

23HIS HONOUR:  There are certain conditions that will apply to that order and they are in general terms that you have a window in which you must go to the Glen Waverley police station to have your sample taken.  So four weeks from now the window opens and then you have got another 28 days to get the - the other way around.  Twenty-eight days from now a window opens and you have four weeks - same thing - to go down there and get the forensic sample done.

24When you get there, if you do not cooperate, they are authorised to use reasonable force to take the scraping of the mouth from you.  The way through it, of course, is to do what was said on your behalf by your counsel.  That is you do not stand in the way of this order and in fact consent to it.  You sign these documents and then the community corrections order will be produced.

25MS MALOBABIC:  If I may confirm, Your Honour, the order is with conviction?

26HIS HONOUR:  Yes.  It was not suggested that it would be otherwise.

27MR GEORGIOU:  No, it was not, Your Honour.

28HIS HONOUR:  No, thank you.  So, Mr Chai, the circumstances or the conditions attached to your community corrections order are these:  it will last for four years commencing today, 30 November 2015, and last to 29 November 2019.  The mandatory conditions that apply to everyone are you must not commit another offence for which you could be imprisoned during the time these orders are in force.  Almost every offence you can think of is one that is punishable by imprisonment, even though a magistrate might not impose such a punishment if you commit a minor offence.  It breaches this order; that is the point.

29So the way through it is do not commit any offences ever again.  But if you do in the next four years, you will come back before me and you know the consequences of that.  You must comply with any obligation or requirement under the sentencing regulations.  They will want to take a photograph of you and identify you in that way and maybe others so that when you go to community work they know who you are.

30You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre at Box Hill, there is an address here in Station Street, within two clear working days.  Get there tomorrow or the next day.  You must not leave Victoria without first getting permission to do so from the Office of Corrections.  That is anywhere and for any length of time.  You must let the Office of Corrections known within two clear working days if you change your address or your job and you must obey all lawful instructions from the Office of Corrections.

31All that means is just do what they ask you to do and keep them informed of what you are doing and you will get through it. 

32Conditions that apply to you are the 500 hours of unpaid community work over the four years.  I will pause there.  You do every hour, turn up when you are required to be there, stay as long as you have to be there.  It is not optional.  It is not that, "I do not feel like it today" - every single hour. 

33You have to be under the supervision of Community Corrections.  They will want to see you turn up when you are required to be there.  You must undergo any mental health assessment and treatment that is directed by the regional manager and you must participate in programs and courses addressed to factors relating to your offending.  That might be financial assistance or the like.

34Keep going to that psychologist if that is what your doctor wants you to do and tell them that you are doing it.  Do you follow?  You sign this document.  As I say, that will bring the matter to an end.

35MR GEORGIOU:  If Your Honour pleases.

36HIS HONOUR:  You will get a copy of that order shortly, Mr Chai.  I thank counsel for their considerable assistance in this matter.  If there is nothing further in regard to this matter, Mr Chai can leave the dock and I adjourn.  Thank you.

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