Director of Public Prosecutions v Chen

[2020] VCC 1122

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01768

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN CHEN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2020
DATE OF SENTENCE:	27 July 2020
CASE MAY BE CITED AS:	DPP v CHEN
MEDIUM NEUTRAL CITATION:	[2020] VCC 1122

REASONS FOR SENTENCE

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Subject:  Theft x 2

Sentence: 3 and ½ years imprisonment. 2 years nonparole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Teycheney	Office of Public Prosecutions
For the Accused	Ms C. Blakeney

HIS HONOUR:

1Kevin Chen, you have pleaded guilty to two charges of theft.  The maximum penalty for the crime of theft is imprisonment for 10 years.  You were born in November 1980.  You are a married man with a young family and you have no prior convictions and there are no further charges pending.  The circumstances of your offending are summarised in the prosecution opening for the purposes of your plea, that is dated 6 February 2020.  The summary was read in open court by the prosecutor Mr Sprague and your counsel,
Ms Blakeney, agreed that the prosecution summary was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.  In those circumstances, it is not necessary that I hear again set out all of the facts and I do so only in an abbreviated way.  These sentencing remarks should, however, be read in conjunction with what is set out in the prosecution summary.

2Your offending occurred on two occasions in one month, between 17 December 2018 and 17 January 2019.  You were employed at all relevant times by the National Australia Bank, NAB.  You worked in the pre and post litigation team at the NAB office in Docklands.  You were entrusted with an electronic card which gave you access to the premises and you were also entrusted with access to computer systems of the bank, which recorded various transactions.  In September 2018, you and your partner purchased a block of residential land, at a purchase price of $460,000.  Between the two of you, you had sufficient money to pay the deposit of $46,000, but you did not have sufficient funds to buy the property outright.  You attempted to borrow money to complete the purchase, but you were unsuccessful.

3Because you were fearful of losing the deposit that you had paid, between
17 December and 18 December 2018, you manipulated the computer records of the bank and you orchestrated a payment of $455,710 from the bank to an account of your conveyancer.  The money was used to effect settlement on the vacant land that you had purchased and $15,397.23 left over was ultimately received by you, being deposited by your conveyancer into an account in your name at the NAB, Charge 1.  Because your wife was pregnant with a second child and unable to work, between the two of you, you had accumulated considerable debts.  Between 17 January 2019 and 11 February 2019, and no doubt void by the simplicity with which you have been able to effect Charge 1, you again manipulated the computer records of the bank, in the result that $162,281.88 was transferred to an account in your name at the Commonwealth Bank.  That money was in part used to pay your debts, Charge 2.

4Your fraudulent conduct was detected relatively soon after your offending.  Despite the fact you manipulated the computer records to conceal your offences from detection.  Investigators were relatively easily able to associate you with the name of the conveyancer, to who the money in Charge 1 had been paid.  That conveyancer was acting for you and your wife.  You were interviewed by internal NAB investigators on 14 March 2019.  You initially denied any knowledge of the payment in Charge 1, but soon after, you made full admissions as to your criminal conduct involved in Charge 1.  Your services were immediately terminated.

5The circumstances surrounding Charge 1 were reported by the NAB to the police and on 30 May 2019, you were arrested and interviewed at which time you cooperated with the police and made admissions.  You were charged that day and released on bail.  The offending that constitutes Charge 2, however, was not identified until 30 July 2019, when internal bank investigations revealed the theft in Charge 2.

6On 20 August 2019, you were arrested and charged with those matters and you declined to be further interviewed on that occasion.  The total of your two acts of theft, as an employee of the bank was $617,991.88.  Clearly this is serious offending because it involved you breaching the trust that had been placed in you as an employee of the bank.  Each of the amounts that you stole was a large sum of money.  None of that money has yet been repaid.  I was told that it is your intention to repay the money and on the plea, through your counsel, you agreed to me making a compensation order in favour of the bank.

7The vacant land in the name of you and your wife is the subject of a restraining order, under the Confiscations Act.  As at the time of the plea, there had been no application by your wife for exclusion from the operation of this order.  Although the amount stolen by you were each a large sum of money, your criminal conduct was confined to only two transactions over the course of one month approximately.  This may be compared to a number of such cases of employee theft that come before the courts, where there are often large numbers of thefts of lesser sums, over a long period of time, that result in rolled up charges.

8However, whether the offending be prolonged or relatively short lived, offending of this kind which involves a breach of trust by an employee is very serious.  In cases such as this, the sentencing court must have proper regard to application of the principles of deterrence and denunciation.  Employees in a position of trust, like you, must be deterred from engaging in this sort of conduct.  On the plea, I did not understand your counsel to argue otherwise.  She conceded that this offending requires me to impose a term of imprisonment and fix a non-parole period.  Further, in arriving at an appropriate sentence, I must have regard to all of your personal circumstances, all factors in mitigation and your prospects for rehabilitation, which I consider to be good.

9You have pleaded guilty to the charges and that is to your credit.  By your pleas of guilty, you have saved the time and cost of a criminal trial.  Further, you have accepted responsibility for your offending and you have advanced the administration of justice.  I also accept that your pleas of guilty, in the circumstances here, evidence your genuine remorse for this offending.  The charges resolved at committal mention on 3 September 2019.  For the purposes of sentencing you, I treat you as having indicated that you would plead guilty to the charges at the earliest possible opportunity.  For that, you are entitled to receive a lesser sentence and any reduction would be indicated in the sentence that I will shortly pass.

10I turn to some matters personal to you and relating to your background.  You are now aged 39.  You were born in Taiwan and you are an Australia citizen.  You came to Australia with your mother whilst your father remained in Taiwan and you initially lived with her in Brisbane.  You continued to travel backwards and forwards to Taiwan.  You completed Year 12 of your education in Brisbane, before embarking on a TAFE course of study in business in criminology.  You did not finish that course and returned to Taiwan to visit your sick father.  Before being employed by the NAB, you worked in various fields, including child minding, pizza delivery and assisting with the teaching of English.  Between 2002 and 2004, you were a conscript in the Taiwanese army.  You completed your training as a soldier and then worked at a Taiwan hotel for 18 months before returning to Brisbane in 2005.  You worked in a restaurant and internet cafe.  Thereafter, you completed 12 months of a course in international business, but did not complete the course.

11In early 2009, you were interviewed and then employed by the bank.  You were entrusted with various areas of responsibility, including assessing insurance claims relating to mortgages and assessing a loss of evaluation relating to mortgage properties.  You dealt with customers relating to mortgage default collection and you also dealt with customers with overdrawn accounts and customer complaints.

12I conclude that at the time of your offending, you were a trusted employee, very familiar with the workings of the bank.  You met your partner in 2013 and there are two daughters of the relationship, aged four and one respectively.  Your partner is a permanent resident of this country.  Your counsel told me, and I accept, that after the birth of your first daughter, and become of complications with her birth, your partner was unable to return to work.  She suffered post-natal depression.

13You were earning approximately $1,600 per fortnight, but in a single income family paying rent, your expenses and debts were growing.  The birth of your second daughter was not planned and you were under financial pressure to provide for your family.  That is what motivated your offending.  I was told that it was always your intention to repay the first theft when you obtained a loan.  That may have been your intention, but I think there would have been real difficulties doing that, having regard to the circumstances in which you had stolen the money and the way you had attempted to recover your tracks.  It would have been difficult to repay any money without avoiding detection.

14When you offended the second time, $50,000 of that amount was transferred to an account controlled by you and other debts were paid off, including an amount in excess of $25,000 owed on a car and $30,000 owed to Latitude Loans.  Your counsel submitted, and I accept, that your offending was opportunistic and relatively unsophisticated, in that it was inevitable that your dishonest conduct be detected by the bank.  As I said earlier, that is what happened relatively soon afterwards.  Although you admitted your dishonesty when first interviewed about the circumstances, giving rise to Charge 1, you did not at that time reveal to investigators circumstances that are Charge 2.  That was your right, but you did not reveal the full extent of your offending when it was detected.

15Both you and your wife currently survive financially on Centrelink payments and it is in that situation that you have consented to a compensation order.  I think it is likely that a good part of the money stolen in Charge 1, might be repaid by the ultimate sale of the block of land.  There is no evidence about the valuation of that land, or of the out of pocket cost, et cetera, that may be involved in a forced sale.  I received into evidence, as Exhibit 2, a brief report from a treating psychologist Claudine Garcia.  You were referred to her following your arrest because you experienced anxiety, impacting your sleep and daily activities.  You told her that you found it difficult to stop thinking about what you had done and your future prospects and you were worried about what would happen to your family and your prospects of employment in the future.

16You expressed at her appropriate shame about your conduct.  Ms Garcia diagnosed you as suffering from moderate depression and moderate anxiety.  She went onto say 'In my opinion, Mr Chen developed a good insight about his action and the triggers that led to his actions.  He has expressed feelings of guilt and remorse about what happened'.  Mr Chen has also shown the ability to reflect on the situation and he has learnt to recognise when he feels pressured and communicate more effectively to others and ask for assistance.  I accept that evidence.

17I also received into evidence a further psychological report of Ms Gina Cidoni who saw you for the purposes of the report, on 13 July 2020.  She conducted some psychological testing of you.  She thought the test indicated a mental illness, with persistent depressive disorder and comorbid anxiety, with underlying chronic feelings of inadequacy and some chronic limitations as a result of migraine headache.  She thought you were self-punishing and very remorseful for your behaviour.  She thought you were of average intelligence.

18I was also provided with two references, Exhibit 4.  Both were from former work colleagues who speak highly of you and that this offending is entirely out of character.  In passing sentence, I have taken all of this into account.  I think you are most likely depressed because of the circumstances that you now find yourself in. 

19I have formed the opinion that it is unlikely that you will again offence in this way.  As I said earlier, I think your prospects for rehabilitation are good.  You have no prior offences and you have a good employment history and you have family responsibilities.  Importantly, you seem to have insight into the wrongfulness of your conduct and the underlying causes of it.  You have family support.  Your counsel asked me to take into account the hardship which your imprisonment will have on your family.  I accept there will be some hardship which is inevitably the case in circumstances such as this, where a principal breadwinner is gaoled, but there is no exceptional hardship in the circumstances here.

20This will be your first time in prison and it will be difficult for you.  I accept that the pandemic presently engulfing Victoria and the fact that this virus is threatening prisons will mean that your time in custody will be more onerous and burdensome than it ought normally be.  There will be fewer prison visits, if any, for some time, and your activities within the prison will be restricted and you will be subjected to quarantining in the initial 14 days.  Your counsel asked me to take all of this into account, and whilst accepting that I would have to impose a custodial sentence, and fix a non-parole period, she asked me to fix a parole period that is perhaps longer than would normally be provided for.  The sentence that I will impose does provide for this and attempts to balance all of these factors with the seriousness of your offending.

21On Charge 1, you are convicted and sentenced to a term of imprisonment of two and a half years.  On Charge 2, you are convicted and sentenced to a term of imprisonment of two years.  I direct that one year of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1, making a total effective sentence of three and a half years imprisonment.

22I direct that you serve a minimum term of two years imprisonment, before being eligible for release on parole. I declare there has been ten days pre-sentence detention relating to the sentences passed this day and direct that ten days be reckoned as having been already served be entered into the records of the court and be deducted administratively. For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of six years imprisonment, with a non-parole period of four years. The victim in this matter is the National Australia Bank, which seeks a compensation order for the total sum stolen by you. That order was no opposed and in the circumstances, I have signed it. Are there any questions arising out of that Ms Blakeney?

23MS BLAKENEY:  No.  As Your Honour pleases.

24HIS HONOUR:  Ms Teycheney?

25MS TEYCHENEY:  No, Your Honour.

26HIS HONOUR:  Very well.  Thank you.  I will have my tipstaff ‑ ‑ ‑

27MS TEYCHENEY:  As Your Honour pleases.

28HIS HONOUR:  ‑ ‑ ‑ terminate the transmission.  Ms Blakeney, do you need to speak with your client?

29MS BLAKENEY:  I have a telephone conference booked with him later this morning, Your Honour.

30HIS HONOUR:  Very well, thank you. 

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