Director of Public Prosecutions v Chiu
[2019] VCC 1719
•18 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-00510
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YAP CHIU |
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| JUDGE: | HIS HONOUR JUDGE SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 July 2019; 4 October 2019 |
| DATE OF SENTENCE: | 18 October 2019 |
| CASE MAY BE CITED AS: | DPP v Chiu |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1719 |
REASONS FOR SENTENCE
---Subject: Criminal Law
Catchwords:
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:DPP v Bulfin [1998] 4 VR 114; Dyason v R [2015] VSCA 120; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; R v Shankar [2004] VSC 132; DPP v O’Neill (2015) 47 VR 395; R v Grossi [2008] VSCA 51
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Goodenough (3 July 2019; 4 October 2019) Mr A. Foster (18 October 2019) | Office of Public Prosecutions |
| For the Accused | Mr P. Morrisey S.C. (3 July 2019) Ms K. Ljubicic(4 October 2019; 18 October 2019) | Cliffords Lawyers |
Introduction
1.Yat Yin Chiu, you have pleaded guilty to an indictment containing six charges of theft, contrary to s.74 of the Crimes Act 1958 (henceforth “Crimes Act”). The maximum penalty for the charge of theft is 10 years' imprisonment or 1,200 penalty units. However, Charges 3, 4 and 5, relating to transactions greater than $50,000, are continuing criminal enterprise offences, pursuant to s.6H of the Sentencing Act 1991 (henceforth “Sentencing Act”) and Schedule 1A of the Sentencing Act, carrying a maximum penalty of 20 years' imprisonment.
Circumstances of Offending
2The circumstances of your offending are set out in a summary of prosecution opening, dated 2 July 2019, tendered at your plea hearing on 30 July 2019 and marked Exhibit A.
3You were employed by Synnex Australia Pty Ltd (“Synnex”) from October 2009. You worked in the credit area. On 16 May 2016, when another employee of Synnex went on maternity leave, you took on the role of credit control officer, and were given control of an access card to the EFTPOS machines.
4Between May 2016 and December 2017, you stole funds from Synnex using three different methods.
5According to method one, after you obtained access to the access card and access to the EFTPOS machine, you were able to complete a “charge back”, in respect of money left owing for an extended period. You were then able to credit that money directly to your own account.
6According to method two, when Synnex was paid cash for goods, that cash payment was given to you. You deposited the cash into your own bank account. You disguised this theft by using an old overpayment, against which you could record the amount stolen, with the effect that the transaction would balance in the Synnex bank reconciliation.
7According to method three you convinced a client, Linktech, to change the bank account details through which they paid Synnex. You substituted your own bank account for the Synnex account. When you received their remittance, you balance the accounts by transferring the amount from an existing overpayment and writing it off against the Synnex bank account. On 14 December 2017, you sent an email to Linktech asking them to pay money again to the proper Synnex bank account.
8The amounts involved in each individual transaction were less than $1,000, with the exception of the method three thefts, where the amounts were significantly higher for each transaction.
9Charge 1 on the indictment covers a period between 16 May 2016 and
30 September 2017, during which you stole $300,493.18 from Synnex using methods one and two.10Charge 2 covers the period between 10 July 2017 and 5 December 2017, during which time you stole $341,997.33 belonging to Synnex, using method three.
11As I have indicated, Charges 3, 4 and 5 are continuing criminal enterprise offences. Each charge covers a discrete transaction. Charge 3 relates to a transaction on 19 July 2017, when you stole $205,463.42 belonging to Synnex using method three.
12Charge 4 relates to a transaction on 10 October 2017, when you stole $145,515.72 belonging to Synnex, using method three.
13Charge 5 relates to a transaction on 12 December 2017, where you stole $78,813.72 belonging to Synnex using method 3.
14Charge 6 covers a period between 30 April 2015 and 4 December 2017, some two and a half years. During this period you stole $4,280.72 belonging to Synnex, through petrol reimbursement. You would refill your own car and then obtain a refund from Synnex for that refill.
15The total amount of the money stolen from Synnex was $1,076,564.09.
16Your offending was discovered internally at Synnex on 22 February 2018. At a subsequent meeting the next day, you admitted the offending and your employment was terminated.
17You provided assistance to your employer in relation to locating missing money by email.
18You were arrested on 6 April 2018, when a search was conducted of your residence. You were interviewed by police on that day and made a “no comment” interview.
19You were subsequently interviewed by police on 15 August 2018, during which time you made significant admissions to your offending and detailed the methods you had employed. Your admissions were full and frank and to the amount of $1,076,564.09. You told police in that interview that you paid approximately $180,000 to $200,000 onto your mortgage and the balance sat in an account.
20At your plea hearing, on 30 July 2019, the prosecution confirmed that all stolen monies had been repaid by you.
21Furthermore, the prosecution on that date advised that no victim impact statements had been completed.
Personal Circumstances
22I turn now to your background and personal circumstances.
23You are currently 36 years of age.
24You were born in Hong Kong, and you are the younger of your parents’ two sons. When you were aged seven, your family migrated to New Zealand out of concerns regarding the proposed transition in Hong Kong from British to Chinese rule. You lived in New Zealand until the age of 14, when your family moved to Australia in search of better economic opportunities.
25You suffered from childhood epilepsy, and you attribute your poor memory of your childhood in Hong Kong to this condition.
26It would seem that your time in New Zealand was a most difficult period for you. Your father initially worked as a waiter in a local takeaway food restaurant before purchasing a takeaway food shop. Your family then relocated to a less salubrious part of Auckland to do so. Your father's takeaway food shop was barely profitable and your family, who all worked in the shop, led a meagre existence. At one stage, the family were reduced to living within the shop, where only the most rudimentary bathroom facilities existed. The shop was the target of repeated robberies, given the difficult neighbourhood in which you then lived.
27In contrast to your then peers, you were diminutive in height but not in stature, and you were then suffering the conditions of your undiagnosed epilepsy. Accordingly, you were bullied and picked on by your peers at school, leading you to hate your time at school. As a result of your childhood epilepsy, you suffered from recurrent seizures. As your parents did not then understand the condition, you were subjected to punishment for what was then believed to be deliberate strange behaviour. It was not until your late primary school years that this condition was appropriately recognised and treated.
28During an assessment with forensic psychologist, Mr Patrick Newton, conducted on 13 August 2013[1], you described this period of your life in most difficult terms. You explained that your family had lived on the verge of poverty, noting that while you had sufficient food to eat, you had nothing to spare and you wore second hand clothes. You informed Mr Newton that your parents' relationship had been deeply conflicted, and that your parents had emphasised work related activities, that there had been little time for recreation or relaxation, and that your parents argued heatedly about the family's financial problems. You informed Mr Newton that the discipline within the family was harsh and that you regularly felt humiliated and scared.
[1] Report dated 14 September 2019
29Your parents were not physically demonstrative and, as a result, you felt unloved, worthless and rejected.
30Notwithstanding your family’s obvious difficulties, it seems clear that your family placed a great deal of importance on the need for financial security and success.
31Your first language, being Cantonese, your English language skills were very poor during your primary school years in New Zealand, and you struggled with literacy and other academic skills during the early years of your schooling. There were very few Asian students in the schools you attended, exacerbating instances of teasing and harassment which you then endured. When you commenced secondary schooling in New Zealand, the harassment you had experienced in primary school grew more intense, resulting in you having to transfer to another school in order to interrupt this cycle. According to Mr Newton[2], you became adept at using self-deprecation to avoid harassment and becoming increasingly focused on your studies as a means of escape from your other problems.
[2] Paragraph [16]
32According to Mr Patrick Newton[3], you perhaps unsurprisingly, have suffered significant depressive mood disturbance since childhood. Your depressive symptoms initially developed as a recreation to the poverty, family conflict and social ostracism you experienced. These experiences “undermined the development of [your] self-esteem and left [you] unsure of [yourself] and [your] security in the world more broadly”, according to Mr Newton.
[3] Paragraph [36]
33At the age of 14 your family moved to Australia. This was in 1998. Your family continued to live frugally, spending no money on non-essential items and allocating little time for recreational activities. You commenced at Glen Waverley Secondary College upon your arrival in Australia. However, due to confusion regarding education equivalencies between Australia and New Zealand, you commenced Year 10 in Australia, having only completed Year eight in New Zealand. This posed additional challenges for you in your formative years. You also keenly felt the socioeconomic differences between your family and the relatively wealthy students at this secondary school.
34Notwithstanding these difficulties, you dedicated yourself to your studies as a way of avoiding the challenges in your life. You showed considerable aptitude, completing your VCE in 2000 and obtaining sufficient marks to undertake a double degree in accounting and computing at Monash University. You socialised relatively little during your tertiary studies, and graduate from your university studies in 2004.
35Since leaving university, you have worked primarily in fields related to accounting, but you have confined yourself to book keeping rather than pursing the accountancy or computing work for which your degrees qualify you, explaining to Mr Newton that you have prioritised security over advancement.
36Prior to these offences coming to light you had a stable work history, having worked for Synnex for some nine years prior to your offending.
37You met your wife Ms Nga Yu Tsui in 2006 and you married in 2008. There are two children to the marriage: Harmony, aged five and Christopher aged, two. In relation to your family, you said the following to Mr Newton[4],
“…Mr Chiu expressed a strong committed bond to his wife and children. He said that his main purpose in life is to provide for them. Mr Chiu noted that he is especially keen to ensure that his children avoid the poverty that he experienced, and he said that he fears for their long term security”.
[4] Paragraph [20]
38Your wife provided a heartfelt letter to the court[5], part of a bundle of personal references tendered at the plea hearing on 30 July 2019 and marked Exhibit 4. In that letter, your wife outlined details in relation to your frugal nature, which can only be described as extreme. She referred to your water saving efforts, which included reusing water from showering to be used in a washing machine, and then using washing machine water instead of flushing the toilet. Other activities included not using electric lighting at night time, using second hand clothing and furniture and eating food that was considerably passed its used by date, even retrieving items from the rubbish for this purpose. I accept the description given by your counsel in relation to such behaviours as being odd, compulsive and irrational.
[5] Letter dated 24 July 2019
39You do not have a history of problematic substance abuse or gambling. You do not have a prior criminal history.
40Perhaps unsurprisingly, you reported to Mr Newton the continuation of chronic low level depressive symptoms throughout your adult years. You reported poor self-esteem and absence of positive emotions, social withdrawal and ongoing physical malaise. On occasions you experienced suicidal ideation.
41Significantly, it is in the context of your most difficult personal background that your offending occurred. You explained to Mr Newton[6] that your offending had arisen out of your anxiety regarding financial matters. Your wife went on maternity leave in 2016 in connection with the birth of your second child, leading to a large reduction in your income. This saw you become increasingly anxious about whether you would be able to provided sufficiently for your family. This evoked upsetting memories of your childhood poverty and this magnified your distress. At around this time, one of your superiors went on leave, with the result that you had greater access to the company accounts, including an EFTPOS card. As indicated in the Summary of Prosecution Opening, dated 2 July 2019, you used approximately 20 per cent of the stolen moneys on the mortgage on your family. The balance of money stolen was placed in a bank account. You informed Mr Newton that this accumulated money was “a kind of reserve in case of adversity or unforeseen future expenses”[7].
[6] Paragraph [29]
[7] Paragraph [31]
42You informed Mr Newton that you did not use any of the money to finance a lavish or luxurious lifestyle. Indeed, it was not alleged by the prosecution that any of the proceeds were spent on luxury or discretionary items as is commonly seen in cases of this nature.
43I accept the submission made by your counsel that the manner in which you essentially “parked” the stolen money in a bank account bespeaks an odd decision making framework.
44Once your crimes were detected, you were promptly terminated from your employment. I accept that since this time, the degree to which you have attempted to rectify your wrongdoing has been substantial and most unusual. Despite an early “no comment” interview with police, you subsequently liaised with police and facilitated the investigation with extensive admissions and a statement setting out your offending methodology.
45With the assistance of your wife's family, the entirety of the amount stolen has been repaid. In addition, civil proceedings have been resolved and you have paid the considerable costs associated with these proceedings in full. I accept your counsel's submission that the degree to which restitution has been undertaken on your part is most unusual. At your plea hearing on 30 July 2019, your counsel indicated that you wished to be remanded in custody. You had up until that point been on bail. You have been in custody since this date, a period of 80 days, not counting today. According to Mr Newton[8], you have experienced difficulties in custody in the form of ostracism and bullying, which has rekindled distress from paralleled experiences in your school days. You have largely isolated yourself within your cell, and had difficulties generally adjusting to the mores and expectations of the prison environment.
Sentencing Considerations
[8] Paragraph [49] of his report
Nature and Gravity of Your Offending, and Your Level of Culpability
46As the authorities made clear[9], offences of this nature, which are often described as white collar crimes, represent serious criminality. Offenders often come before the court with a lack of prior criminal history and very good prospects of rehabilitation. The offending often involves a carefully calculated course of conduct over a significant period of time, repeated deliberate acts of dishonesty, and substantial amounts of money. The offender often holds a position of responsibility or trust and has the ability to disguise or camouflage the conduct in question. Detection can be very difficult. The result of these considerations means that the sentencing purpose of general deterrence will usually carry particular significance.
[9]DPP v Bulfin [1998] 4 VR 114; Dyason v R [2015] VSCA 120
47In committing the offences for which you have now pleaded guilty, you abused the trust that had been placed in you by your employer. As conceded by your counsel, while you have an absence of prior criminality and are otherwise of good character, to a degree, your financial crimes were facilitated under the cloak of respectability. Your offending commenced in April 2015 and extended through until December 2017. This represents, in my view, a sustained period of offending. During this period you utilised numerous methodologies to both facilitate and conceal your offending. The amount stolen by you exceeds $1m. On any interpretation this represents significant criminality.
48However, I accept that there are features of your offending which can be described as most unusual. In contrast to many cases of this nature, there is no evidence before me that you were motivated by greed. On the contrary, your offending appears to have been motivated by a somewhat irrational fear of financial insecurity, and your conduct could best be described as motivated by comfort rather than greed. Furthermore, the vast majority of the proceeds were simply placed into an account in your name, rather than being spent or otherwise dispersed. I accept in all the circumstances that whilst your offending must represent a significant example of theft from an employer, the unusual features that I have described do diminish the gravity of your offending.
49In terms of your level of culpability or responsibility for the offending, your counsel submitted that due to your longstanding depression and anxiety, your moral culpability was reduced and the sentencing purposes of general and specific deterrence should be moderated, pursuant to Verdins[10] principles one, three and four. Particular reliance was placed upon the opinions of forensic psychologist Mr Patrick Newton as set out in his report, dated 14 September 2019.
[10]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
50According to Mr Newton, you have suffered significant depressive mood disturbance since childhood. Prior to your arrest on these matters, you had not received any treatment to address the symptoms of your depression. Mr Newton diagnosed you with “persistent depressive disorder (dysthymia)”[11] at a mild level. In Mr Newton's opinion, your depressive symptoms were both reactive to your legal predicament and chronic in relation to your background.
Significantly Mr Newton opined as follows[12]:
“…While his intent to commit the offending was not obscured and while he was still clearly aware of the wrongfulness of his conduct, it was apparent that Mr Chiu had placed such an emphasis on securing his family's financial situation that he had prioritised it over and above concerns of legality, morality and professional obligation. That is, his anxiety about his family's financial situation led to some distortion in his weighing of options and decision making at the time of his offending conduct.”
[11] Paragraph [38]
[12] Paragraph [40]
51Mr Newton also described symptoms of significant anxiety which, whilst not meriting a separate diagnosis, were clearly of significance to Mr Newton in relation to your general psychological makeup and the underpinnings of your offending. According to Mr Newton[13]:
“…it is clear that when combined with changes brought about by parenting responsibilities, his anxiety became so intense that he engaged in irrational and disproportionate attempts to buttress his family's financial security.
…While Mr Chiu's anxiety at the time of his offending was significant, it is clear that he was fully aware of the wrongfulness of his conduct and that he was able to form the intent to commit the offending.”
[13] Paragraph [44]
52In concluding Mr Newton opined:
“Mr Chiu presents as an intelligent man who is in the grip of longstanding anxiety and depression. His problems can be traced back to his childhood depravation, dislocation and ostracism and have had a persistent affect upon his mental health. While Mr Chiu's legal problems have exacerbated his distress, they are not its primary cause.”
53It is clear from the decision of R v Verdins and Ors[14] that impaired mental functioning at the time of the offending may reduce an offender's moral culpability if, amongst other things, it would have the effect of impairing the offender's ability to exercise appropriate judgement, or impairing the offender's ability to make calm and rational choices or to think clearly.[15]
[14]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
[15] Ibid 26
54The prosecution in this case accepted that, in light of the opinions of Mr Newton Verdins[16] principles one, three and four were enlivened. In other words, it was accepted by the prosecution that in light of your mental health issues, there should be some moderation of any sentence due to reduced moral culpability, and the moderation of the sentencing purposes of general and specific deterrence. It was submitted, however, that any allowance should only be moderate in the circumstances, due to your above average intelligence, and Mr Newton's opinion that there was no defect in your moral reasoning.[17]
[16] Ibid
[17] Paragraph [42] of Mr Newton’s report
55Ms Ljubicic, who appeared on your behalf at the further plea hearing on
4 October 2019, nevertheless submitted that your sentence should be moderated by virtue of Verdins[18] principles one, three and four. Reference was made to the decision of the R v Shankha[19], a 2004 Supreme Court decision where an allowance was made due to, “considerable psychological vulnerabilities” born from the offender's harsh and emotionally impoverished upbringing and a diagnosis of depression, which is said to be similar to your case.[18]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
[19]R v Shankha [2004] VSC 132, 21
56During submissions on 4 October 2019, I raised with your counsel whether your psychological vulnerabilities warranted the application of the relevant Verdins[20] principles, or whether they were simply relevant in analysing the nature of your offending, your motivation for it, and ultimately a judgement as to the seriousness of your misconduct. As made clear in DPP v O'Neill[21], there may be cases where an offender's condition does not engage Verdins[22] principles, but nevertheless requires a reduction in moral culpability.
[20]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
[21]DPP v O’Neill (2015_ 47 VR 395, 100
[22]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
57Having considered the relevant authorities, the report of Mr Newton and the circumstances of your offending, I am of the view that there should be some moderation of your sentence pursuant to the first, third and fourth Verdins[23] principles. The prosecution in this case did not seek to cross-examine Mr Newton, and accordingly his opinion that your anxiety regarding your family's financial situation led to a level of distortion in your weighing of options and decision making at the time of the offending remains unchallenged. I am therefore satisfied that, to a degree, your impaired mental functioning at the time of the offending impaired your ability to exercise appropriate judgement, to make calm and rational choices, and to think clearly.
[23] Ibid
Maximum Penalties
58The maximum penalty for theft is 10 years' imprisonment. In relation to
Charges 3, 4 and 5 on the indictment, as they are continuing criminal enterprise offences, the maximum penalty is doubled to a period of 20 years' imprisonment.59In submissions before me on 4 October 2019, the prosecution confirmed that a greater sentence was not being sought in relation to the continuing criminal enterprise charges, given the overall context of your offending. As I then indicated, the entirety of your offending represents a continuing effort on your part to engage in the criminality to which you now fall to be sentenced. Pursuant to the relevant authorities, including the R v Grossi[24], an increased sentence is not automatic in relation to continuing criminal enterprise offences.
[24]R v Grossi [2008] VSCA 51, at 44 & 45
60In your case, the continuing criminal enterprise offences (charges 3, 4 and 5 on the indictment) represent individual transactions on three separate dates. Whilst the amount stolen on each transaction varied, they are all significant amounts. However, in the context of your offending, it cannot be said that these offences are more serious than Charges 1 and 2 on the indictment, which are rolled up charges, covering significant time periods and amounts which are in excess of the continuing criminal enterprise charges.
61In the context of your offending, I have taken into consideration the maximum penalties, including the increased statutory maximums for the continuing criminal enterprise offences, whilst not overshadowing an individualised analysis of your conduct.
Plea of Guilty and Remorse
62I accept your counsel’s submission that you foreshadowed an intention to plead guilty even before being charged. Your plea of guilty in these circumstances is early and deserving of a significant sentencing discount for utilitarian reasons.
63I also accept that you are genuinely remorseful for your conduct.
According to Mr Newton[25]:
“Mr Chiu expressed a deep sense of shame and remorse for his conduct. He acknowledged openly the violation of trust and the moral failing of his conduct. He said that he considers his behaviour to have been without excuse and that it runs against he values he has held against childhood. Mr Chiu noted that he has sought to all that is within his power to ameliorate the effects of his conduct”.
[25] Paragraph [33] of his report
64Furthermore, having considered the counsellor report from Johnny Leung, dated 24 July 2019, Exhibit 3, and the bundle of personal references tendered at your plea hearing on 30 July 2019, Exhibit 4, I accept that you have expressed genuine remorse to a number of individuals, including your then counsel and Mr Leung, and your wife. Furthermore, your conduct in repaying the amount stolen and resolving the civil proceedings, together with your significant cooperation with police following your arrest, is further evidence of your genuine remorse. In my view, taking into account all of the relevant material, and having observed your demeanour on both 30 July 2019 and 4 October 2019, you are, in my view, genuinely sorry for your offending. A significant sentencing discount is therefore applicable.
Extra-Judicial Punishment
65Your counsel submitted that you had already suffered significant extra-judicial punishment. As a result of your offending you have lost your profession and faced judgement by your family and peer network. In that regard, I was informed that you have been an active member of the City Life Pentecostal Church in Wantirna South and you have had to disclose your offending to your church community, resulting in further shame on your part. I note that members of your church community provided some of the character references, confirming that, notwithstanding your fall from grace they remain supportive of you.
66Whilst it is to be expected that offending of this nature would necessarily result in a loss of standing within an offender's networks, I accept that the public shaming that you have endured in and of itself represents a form of punishment, and I have taken into consideration this issue in formulating an appropriate sentence in your case.
Verdins’[26] Principles Five and Six
[26]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
67It was submitted on your behalf that a further moderation in your sentence should be made by virtue of the fifth and sixth Verdins[27] principles. Those principles relate to the moderation of sentencing due to any given sentence weighing more heavily on you than it would on a person in normal health, and a further moderation on sentencing where there is a serious risk of imprisonment having a significant adverse effect on your mental health.
[27] Ibid
68According to Mr Newton:[28]
“…were the court to consider a significant further period in custody to be the appropriate disposition, there would be a genuine risk that Mr Chiu's mental state could deteriorate. He has already experienced some difficulties with ostracism and bullying during his time in custody and these have rekindled distress from parallel experiences in his school days. He told me that he had isolated himself within his cell; he was manifestly having difficulty adjusting to the mores and expectations of the prison environment. In light of these experiences it would appear reasonable to conclude that Mr Chiu is likely to require relatively intense support during any further period in custody. In terms of his mental health, it is anticipated that he would likely experience both more regular and more intense bouts of mood disturbance than with a prisoner who did not suffer his pre-existing problems. To this extent the effect upon Mr Chiu of any term of imprisonment which the court might see fit to impose, is likely to be relatively burdensome.”
[28] Paragraph [49] of his report
69In light of the unchallenged opinions of Mr Newton, together with the fact that you will serve a term of imprisonment obviously absent from your wife and young children, I am satisfied that a moderation of your sentence is appropriate by virtue of the fifth and sixth Verdins’[29] principles. I note that the prosecution in this case did not submit otherwise.
[29]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Rehabilitative Prospects
70You are 36 years of age. As I have indicated, you have a complete absence of criminal history. You have the benefit of ongoing support from your wife, children, extended family and church community. Your early therapeutic interventions with Mr Leung, from March 2018 until your remand in custody in July 2019, confirmed an appropriate degree of an insight and remorse and a willingness to seek help in relation to your underlying psychological difficulties.
71Mr Newton indicates that there is a need for you to participate in ongoing treatment to address your problems. Such treatment should be culturally sensitive and should encompass a strong focus on addressing your depression and anxiety-related symptoms.
72Provided you obtain the assistance recommended, in all the circumstances I am satisfied that your prospects for rehabilitation are good.
Current Sentencing Practices
73Both the prosecution and defence in this matter conceded that whilst current sentencing practices are a relevant factor in the sentencing synthesis, a resort to similar cases was problematic, given the highly unusual features of your case. Save for the provision of the decision of DPP v Caulfield[30], a decision provided by your counsel, I was not provided with any decisions which were said to be similar to your case.
[30]DPP v Caulfield [2018] VCC 2213
74I accept that your case represents a most unusual combination of circumstances and factors, making a resort to current sentencing practices of limited utility. I have, however, considered the earlier decisions to which I have referred in my Reasons for Sentence, setting out the applicable sentencing principles in cases of this nature.
Sentencing Purposes and Principles
75In addition to the matters to which I have earlier referred, I have considered the sentencing purposes set out in s.5(1) of the Sentencing Act in formulating an appropriate sentence in your case. As indicated earlier, there is a significant need to impose a sentence which reflects the need for general deterrence. Given your background and personal circumstances, specific deterrence is of limited applicability in your case. Whilst there is a need to denounce your conduct and appropriately punish you, given your personal circumstances, including the fact that you will presumably not work again in such a capacity, the need to impose a sentence which protects the community from you is not a particularly prominent sentencing purpose in your case.
Sentencing Submissions
76Your counsel initially submitted that in all the circumstances a Community Correction Order was an appropriate disposition, whether or not a term of actual imprisonment was also imposed. Given that you were remanded in custody on 30 July 2019, in further written submissions dated 2 October 2019, a combination sentence was urged upon me on your behalf, that is, a term of imprisonment coupled with a Community Correction Order.
77The prosecution submitted that a combination sentence involving a term of imprisonment and a Community Correction Order was no appropriate given the gravity of your offending, together with the limited moderation of any sentence pursuant to the Verdins’[31] principles. It was submitted by the prosecution that a term of imprisonment with a non-parole period, albeit with a longer than usual parole eligibility component, would be within the appropriate range of sentences.
[31]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
78On 30 July 2019, I ordered an extended pre-sentence report in relation to your suitability for a Community Correction Order, indicating to your counsel that this was not to be taken as an indicator of any likely sentence. Rather, the assessment was obtained to ensure that all relevant information was before the court for the purposes of sentencing.
79The extended pre-sentence assessment report dated 1 October 2019 confirms that you are suitable for a Community Correction Order. However, as indicated to Ms Ljubicic, who appeared on your behalf on 4 October 2019, it was and is my view that the gravity of your offending calls for a more significant term of imprisonment than that which could be imposed in combination with a Community Correction Order, notwithstanding the significant mitigatory factors to which I have referred.
80In my view, the only appropriate disposition in your case is a term of imprisonment with a non-parole period. I have moderated the term of imprisonment due to the powerful constellation of mitigatory factors in your case.
Sentence to be Imposed
81Mr Chiu, would you please stand.
82On Charge 1, you are convicted and sentenced to two years' imprisonment. This is the base sentence.
83On Charge 2, you are convicted and sentenced to two years' imprisonment.
84On Charge 3, you are convicted and sentenced to two years' imprisonment.
85On Charge 4, you are convicted and sentenced to 20 months' imprisonment.
86On Charge 5, you are convicted and sentenced to 18 months' imprisonment.
87On Charge 6, you are convicted and sentenced to four months' imprisonment.
88I direct that four months on Charge 2, four months on Charge 3, four months on Charge 4, two months on Charge 5 and one month on Charge 6 be served cumulatively upon each other and upon the sentence imposed on Charge 1, making a total effective sentence of three years and three months' imprisonment. I direct that you serve 20 months before becoming eligible for parole. I declare that I have imposed a shorter than usual non-parole period due to the significant mitigatory factors in your case and your good prospects for rehabilitation.
89Pursuant to s.18 of the Sentencing Act, I declare that 80 days be reckoned as the period of imprisonment already served under the sentence I have imposed.
90Pursuant to s.6AAA of the Sentencing Act, if not for your plea of guilty I would have sentenced you to a period of five years and nine months' imprisonment, with a non-parole period of four years.
91Finally, I order pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure, that order not being opposed by you.
92Mr Chiu, in relation to that final order, I need to inform you that I have ordered that you undergo a forensic procedure for the taking of a scraping from your mouth, in accordance with the relevant provision of the Crimes Act, until a sample of sufficient standard is obtained for placement on the relevant database. If at the time of the request you do not consent to the taking of the mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted; do you understand that?
93OFFENDER: Yes, Your Honour.
94HIS HONOUR: Yes, thanks, take a seat for a moment.
95HIS HONOUR: Yes, are there any other matters arising from the sentence?
96MS LJUBICIC: No, Your Honour.
97MR FOSTER: No, Your Honour.
98HIS HONOUR: Yes, thanks. Mr Chiu, can be removed, thank you.
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