Director of Public Prosecutions v Ha
[2021] VCC 1640
•26 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00669
Indictment No: L12820992.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUY TAN HA |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2021, 26 October 2021 | |
DATE OF SENTENCE: | 26 October 2021 | |
CASE MAY BE CITED AS: | DPP v Ha | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1640 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Obtaining property by deception – Rolled-up charge — Serious example of offence – $568,874 defrauded from finance company over a 15-month period by senior accountant employee – Serious breach of trust – Offending in context of significant gambling addiction – Early plea of guilty – Guilty plea during COVID-19 pandemic – Remorse – Full admissions and co-operation with investigators – Significant unexplained delay in finalising proceeding – No prior convictions – Good character – Extra curial punishment regarding loss of professional standing and future employment opportunities
Legislation Cited: Crimes Act1958; Sentencing Act 1991
Cases Cited:Lugo (A Pseudonym) v The Queen [2020] VSCA 75; DPP (Vic) v Raddino (2002) 128 A Crim R 437; R v Atalla (2002) 132 A Crim R 531; R v Do (2007) 180 A Crim R 308; R v Grossi (2008) 23 VR 500; Kovacevic v The Queen [2021] VSCA 49; Vu v The Queen [2006] NSWCCA 188; Worboyes v The Queen (2021) 96 MVR 344; R v Merrett, Piggott and Ferrari (2007) 14 VR 392; R v Talia [2009] VSCA 260; Chandler v The Queen [2010] VSCA 338; Rodriguez v DPP (Cth) (2013) 40 VR 436; Marasco v The Queen [2016] VSCA 85; SD v The Queen (2013) 39 VR 487; Torrefranca v The Queen [2021] VSCA 157; R v Rumpf (1987) A Crim R 64; Hook v Ralphs (1987) 45 SASR 529; Ryan v The Queen (2001) 206 CLR 267; DPP v Ellis (2005) 11 VR 287; R v Fucile & Tran (2013) 229 A Crim R 427; R v Pham (2015) 256 CLR 550; R v Kilic (2016) 259 CLR 256; DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428
Sentence:Three years’ imprisonment with a non-parole period of 21 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Baxter | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Barrera Mr J McGarvie | Stary Norton Halphen |
HIS HONOUR:
1Duy Tan Ha, you have pleaded guilty to an indictment containing one charge of obtaining property by deception.[1] The maximum penalty for this offence is 10 years’ imprisonment.
[1] Contrary to s81(1) of the Crimes Act1958.
The Facts
2The prosecution filed a summary of prosecution opening dated 10 August 2021[2] which, your counsel agreed, I can treat as a statement of agreed facts for the purposes of sentencing you.
[2] Exhibit (‘Ex’) P1.
3At the time of committing this offence you were aged between 28 and 29 and you are presently 32 years of age. [3]
[3] Date of birth is 2 January 1989.
4At the relevant time, you were employed by Stratton Finance Pty Ltd (‘the company’) as an assistant accountant. You commenced employment with the company on 14 March 2013 and in July 2015 you were promoted to group accountant. You held this position until your employment was terminated in September 2018 upon discovery of the present offending.
5The company provides finance for cars, boats and commercial equipment. It employs over 200 people Australia-wide.
6As group accountant, you were responsible for financial reporting, budgeting and the creation of financial tools. You were ‘effectively the second in charge of the Accounts Department’, reporting directly to the Chief Financial Officer (‘CFO’), Bronwyn Thorpe.[4] One of your friends described you as ‘the link between senior management, the board [of directors], middle management and all the organisation’s subsidiaries’.[5]
[4] See letter from Bronwyn Thorpe dated 26 August 2021 (Ex D7).
[5] See letter from Rafael Isidore Manalo Protacio, Director, Elite Finance, dated 23 August 2021 (Ex D10).
7Simultaneously, you were the treasurer of the Stratton Finance Pty Ltd Social Club (‘the social club’). As treasurer of the social club, you had access to its debit card, which was in your name. Moreover, at all relevant times you were an authorised signatory and effectively controlled the social club bank account. While there were two other authorised signatories, only one signature was required to authorise transactions.
8On 14 September 2018, Scott Wardle, a senior bookkeeper with the company, advised Ms Thorpe there was a debit of $20,000 which seemed unusual to him. The transaction was described as ‘INTERNET TRANSFER FROM CM to TRAD STRATTON FILE’ and was transferred from the company’s ‘novated account’. The novated account was used for novated leasing purposes. You and Mr Wardle utilised this account as did the ‘Novated Admin Team’. At any one time there would typically be between $700,000 to $1.5 million in the account.
9Mr Wardle requested the National Australia Bank (‘NAB’) trace where the money had gone. NAB advised the funds had been transferred on 13 September 2018 into an account named ‘Stratton Finance Social Club’ (account number 740382-4131). The social club account is the responsibility of social club members and is not directly related to the company. It is an account used purely by the social club and it would be rare for the company to deposit sums into this account.
10Because the details of the transfer did not match its description, Ms Thorpe became suspicious and began to investigate the transaction.
11Ms Thorpe was sufficiently concerned she decided to question you later that day. She asked you whether you had made the transfer to the social club account. You initially denied making the transfer, but soon admitted you had transferred the money. You then asked Ms Thorpe if the conversation could continue in one of the meeting rooms.
12Once in the meeting room, you admitted you had transferred the $20,000 from the social club account into your personal bank account. You then admitted there had been other transfers that were yet to be detected. You told Ms Thorpe you estimated the total of your fraudulent transfers during the last 12 months to be $250,000. You admitted these amounts had been transferred from the company’s account through the social club account into your personal bank account. You told Ms Thorpe that you had spent the money on gambling.
13You were then taken to a police station by the company’s chief executive officer, Mr Toby Simmonds, who made a formal complaint.
14Later, you returned to the company’s office where you provided Ms Thorpe with copies of your personal Commonwealth Bank of Australia (‘CBA’) and UBank accounts and you indicated to her which funds had been misappropriated. You were dismissed that day.
15The company engaged the firm of chartered accountants, KPMG Australia (‘KPMG’), to conduct an audit into the misappropriated funds.
16It was discovered you fraudulently obtained $568,874 from the company between 9 May 2017 and 18 August 2018, either by transferring money from the social club account into one of your personal bank accounts, or by making ATM cash withdrawals from the social club account. You performed 394 transactions during this period.
17In total, you transferred $535,016 into your personal CBA bank account and $33,858 into your UBank account. Schedule A to the indictment details the transactions made by you to your CBA bank account and Schedule B to the indictment details the transactions made by you to your UBank account.
18You were interviewed by police by appointment on 17 October 2018. You made full and frank admissions including:
(a) You had transferred funds from the social club bank account into your personal bank account.
(b) You first started using the social club debit card to withdraw money from ATMs on 18 June 2017 and this approximately coincided with the commencement of your gambling habit.
(c) You told police everyone at the company was a member of the social club and $5 per week would be deducted from employees’ pay and transferred into the social club account. The company would match those contributions made by employees.
(d) You were the only person who regularly viewed the statements of the social club account.
(e) At the height of your gambling problem, you were betting $20,000 on a single wager. You recently won $700,000 on a wager; however, you frittered this money away through further gambling.
(f) You explained you transferred the money from the novated lease account into the social club account and then into your personal banking account. You would then immediately transfer the money into your Sportsbet account.
(g) You would identify the fraudulent transactions in the company’s books of account as ‘GST reimbursement’.
(h) You told police there was nothing left of the funds you misappropriated.
Victim Impact
19No victim impact statement has been tendered in this case. Nonetheless, where no victim impact statement is relied upon, a sentencer may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim.[6]
[6] See R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Rankin [2001] VSCA 158 [10] (Winneke P, Vincent JA and O’Bryan AJA agreeing); MA v The Queen [2012] VSCA 214 [83] (Neave JA, Bongiorno JA and Whelan AJA agreeing).
20I was told you have made restitution to the company in the amount of $18,000. The company has been reimbursed the remainder of the funds defrauded by its insurer. The fact most of the loss has fallen on an insurance company is not mitigatory; a sentencer should not ignore the societal cost of offending against institutional victims.
21While it appears the company has suffered no direct financial loss, undoubtedly, there would have been expenses involved in the KPMG audit and also in the time and effort expended by the company’s employees involved in the investigation of your frauds. I take the impact of your crimes on the company into account in sentencing you.
Offence Seriousness
22Obtaining property by deception is a serious offence, carrying a maximum penalty of 10 years’ imprisonment. In my opinion, this is a serious example of the offence.
23I note the charge is a rolled-up charge and, accordingly, you fall to be sentenced for the totality of the criminal conduct committed by you during the charged period.[7]
[7] See R v Jones [2004] VSCA 68, [12–[14] (Charles JA, Phillips JA and Bongiorno AJA agreeing); R v Beary (2004) 11 VR 151, 156 –7 [11]–[14] (Callaway JA); DPP v Jones (a Pseudonym) (2013) 40 VR 267, 286–7 [80] (Redlich and Priest JJA); Reid (a pseudonym) v The Queen (2014) 42 VR 295, 307-8 [73]–[74] (Priest JA, Maxwell P and Whelan JA agreeing); Lugo (A Pseudonym) v The Queen [2020] VSCA 75 [48]–[54] (Maxwell P, Kaye, T Forrest and Emerton JJA), [67]–[68], [80] (Priest JA).
24The offending conduct occurred over a 15-month period, during which you engaged in 394 separate criminal transactions. The total amount defrauded was $568,874, which is a very significant sum. According to the schedules to the indictment, the amounts you defrauded varied from $9,000, on several occasions, to as little as $20. The average transaction amount is approximately $1,444 and there are 194 transactions of $1,000 or more.
25A perusal of Schedule A demonstrates the seriousness of your offending escalated over time. In the first eight months, from 18 June 2017 to 17 February 2018, there were only eight transactions of $1,000 or more. By May 2018 nearly all transactions were over this threshold. Your offending conduct reached its crescendo in early July 2018, when amounts ranging between $4,000 and $9,000 became quite common.[8] There were eighteen transactions involving $8,000 or $9,000 between 6 July 2018 and 23 July 2018.
[8] There are 35 transactions involving $4,000 or more after this time.
26The frequency of your criminal transactions also increased significantly over time, from nine transactions in July 2017 to almost daily transactions from April 2018 onwards. There were days when you performed as many as six fraudulent transactions.[9] You defrauded a total of $252,439, or over 44% of the total amount, in July 2018 alone.
[9] 21 and 26 June 2018.
27Schedule B tells a similar story, although the number and size of the amounts involved is nowhere near as extravagant.
28Over the offending period, while you were employed as a senior accountant with the company, you continuously and repeatedly defrauded it of large sums of money totalling a very significant sum indeed. While relatively unsophisticated, your conduct was premeditated and planned, and constituted a gross breach of trust.
29Clearly, denunciation, general deterrence and just punishment must loom large in sentencing you. Your counsel accepted this is so.
30As the prosecutor correctly submitted, general deterrence is of particular importance in offences of this kind because they are easy to commit and difficult to detect. Offences of this nature are often committed, as here, by persons who hold positions of trust and are otherwise of good character. A message needs to be sent to those contemplating exploiting or abusing their positions of trust in order to dishonestly enrich themselves that, if detected, condign punishment awaits them. Offences of this nature are not victimless crimes.
31I accept the prosecutor’s submission your offending required a degree of foresight and planning, and on each occasion, you made a conscious decision to commit a criminal offence. You could have desisted at any stage, but you continued to defraud your employer until you were eventually detected.
32I also accept the prosecutor’s submission that you deliberately ‘exploited the system’ by transferring funds from the company’s bank account into the social club bank account, which did not require dual authority to withdraw funds.
33The prosecution accepts that the motive for committing these offences was not greed or a desire to partake of a lavish lifestyle. Rather, it was to feed your significant gambling addiction.
34Overall, I consider your moral culpability is high.
Personal Circumstances
35You were born and raised in Melbourne. Your parents are of Vietnamese heritage. You are the youngest of three sons born to your parents, who separated when you were three years old. There was conflict in your parent’s relationship which may have been associated with your father’s significant gambling which caused financial strain and hardship to the family.
36At the time of separation, your parents would yell and plates were thrown and broken. Immediately following this, your father left the family home. Your father has since re-partnered and you have a half-brother and a half-sister, with whom you are in regular contact.
37After your parents separated, you and your brothers continued to live with your mother and you had very little contact with your father for a number of years. You now describe having a positive relationship with your father, whom you regularly see.
38You describe you mother as being loving, positive, supportive and someone who always provided for you and your brothers by working long hours. Your mother has a diagnosis of depression and has made several suicide attempts requiring mental health inpatient treatment.
39You also have a positive and supportive relationship with your brothers. You currently reside with one of your brothers and you have a small but positive social circle. Your brother, Duy Khanh Ha, attended the plea hearing via Webex.
40Between the ages of 11 and 15, your maternal uncle resided in the family home. He consumed significant quantities of alcohol and was aggressive towards your mother and on occasions resorted to physical violence against her. You and your siblings were required to intervene. Your uncle also had a significant problem with gambling, and he would ask your mother for money. Apparently, your uncle engaged in criminal activity in the form of handling and selling stolen goods. He was ultimately convicted and sentenced to a term of imprisonment, after which he did not return to your family home.
41So far as your education is concerned, you attended a mainstream primary school and completed your secondary education at St Joseph’s College. You did not experience any academic or social difficulties throughout your schooling. You then completed a bachelor’s degree in accounting, banking and finance at Victoria University.
42Whilst studying at university, you were casually employed at Oporto Restaurant. At age 21, you obtained a six-month work experience opportunity at an accounting firm where you assisted once per week. Between the ages of 22 and 24, you were employed in accounts payable and then as a graduate accountant at a retail business. At age 24, you commenced as an assistant accountant with the company. You were promoted to group accountant at the age of 26.
43During your time with the company, you continued studying, eventually qualifying to become a Certified Practising Accountant (‘CPA’). Apparently, the completion of your course requirements coincided with detection of the present offending and, consequently, you did not apply to graduate.
44You have largely remained unemployed since your arrest for the present matter. You have financially supported yourself by engaging in online poker tournaments several times per week, earning between $50,000 and $60,000 in profits per year, which you consider to be equivalent to a salary from employment.
45Your counsel submitted your offending occurred in the context of a significant gambling addiction. You commenced online sports betting approximately 12 months before the commencement of your offending conduct. As is so often the case, you started gambling by placing $5 to $10 bets, but as your addiction grew, you perceived you needed to place larger bets to increase your windfall in order to achieve a sufficient level of emotional gratification. The largest single bet you made was for $50,000. You initially used up approximately $30,000 of your savings before you engaged in the present offending behaviour.
46From what you told Dr Laura Anderson, a clinical neuropsychologist engaged by you legal representatives,[10] your gambling soon became an obsession. You were consumed by your addiction to the point where you were always watching events or placing bets on your phone, even when you were at work or spending time with family and friends. Apart from your father and maternal uncle, who both had gambling addictions, the brother with whom you reside also has a significant gambling problem. It is clear you were exposed to problem gambling from a very early age.
[10] See Dr Laura Anderson, ‘Forensic Psychological Assessment’, 23 May 2021 (Ex D2) (‘Anderson Report’).
47I have had regard to Dr Anderson’s forensic psychological assessment report where she opines:
Considering Mr Ha’s reported history and the nature of his alleged offending behaviour, it is my clinical opinion that his underlying gambling addiction was the clear precipitant for his engagement in the alleged offending behaviour. He otherwise presents as a largely prosocial individual and does not demonstrate significant antisocial attitudes or values. Gambling Disorder is considered to be an addictive behavioural disturbance and impact [sic] upon neurological systems and emotional states in much the same way that significant alcohol and other drug abuse. That is to say, the sense of positive emotion, gratification or relief that is experienced in response to engaging in the gambling behaviour is a significant reinforcer for further engagement in this behaviour, often even when one is faced with clear evidence of other negative consequences as a result of the behaviour. Gambling addiction is similar to that of substance use in that individuals can develop somewhat of a tolerance to the positive effects they experience, and as such, require higher levels of gambling, or risk taking, to experience the same level of positive gratification they once did. Based upon the reported pattern of Mr Ha’s behaviour, and the escalation of his gambling, it is opined [t]hat this phenomenon of increased tolerance and a search for higher levels of gratification, was occurring for Mr Ha. It is hypothesised that this aspect of the addiction cycle contributed to his engagement in the alleged offending behaviour.[11]
[11] Anderson Report, p 10 [7.3.1].
48Your counsel drew my attention to Dr Anderson’s opinion that you clearly met the diagnostic criteria for severe gambling disorder at the time of the offending conduct and that at the time of the assessment, on 22 April 2021, you presented with mild symptoms of gambling disorder.[12]
[12] Anderson Report, p 9 [7.2.2].
49Your counsel rightly conceded it is only in rare cases that gambling addiction is afforded more than slight weight as a mitigating factor. He accepted in this case your gambling disorder alone does not necessitate any reduction in moral culpability or amelioration of general deterrence.[13]
[13] See DPP (Vic) v Raddino (2002) 128 A Crim R 437, 443–4 [26]–[27] (Chernov JA, Phillips CJ and Charles JA agreeing); R v Atalla (2002) 132 A Crim R 531, 534–5 [12]–[15] (Vincent JA, Winneke P and Charles JA agreeing); R v Huynh [2004] VSCA 128 [58] (Eames JA, Batt and Vincent JJA agreeing); R v Galletta [2007] VSCA 177 [15] (Redlich JA, Buchanan JA and Kaye AJA agreeing); R v Do (2007) 180 A Crim R 308, 343 [7] (Redlich JA, Ashley JA and Curtain AJA agreeing) (‘Do’); R v Grossi (2008) 23 VR 500, 513–6 [49]–[53] (Redlich JA, Vincent and Neave JJA relevantly agreeing) (‘Grossi’); Kovacevic v The Queen [2021] VSCA 49 [47] (Kaye JA).
50The relevance of your disorder to the sentence I impose on you is to be assessed in accordance with the principles stated in R v Verdins[14] as explained in Brown v The Queen.[15]
[14] (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
[15] (2020) 62 VR 491.
51Your counsel did not seek to engage any Verdins principles in your case, accepting the assessment of a gambling addiction will usually lead to the conclusion that on its own it does not result in any appreciable moderation of sentence.[16] Your counsel submitted your gambling addiction was ‘not put as a factor which should significantly moderate the sentence to be imposed’.[17]
[16] See Do 343–4 [7]–[10]; Grossi 513–8 [49]–[57].
[17] ‘Outline of submissions on behalf of Duy Ha’,1 September 2021 (Ex D1) p 2.
52Nonetheless, while providing no excuse, your gambling addiction does provide an explanation of the reasons behind your offending conduct. It is generally relevant to your personal circumstances, both at the time of committing the offence and at the time of sentence. It also excludes an aggravating motive, such as, pure greed or a desire to fund other criminal activity.[18]
[18] See eg Vu v The Queen [2006] NSWCCA 188 [74]–[75] (Hall J, James and Buddin JJ agreeing).
53It was put on your behalf, and I accept, you were not leading a lavish lifestyle as a result of your offending. It appears all of the money you defrauded was expended by you in satiating your gambling addiction.
54It is concerning that following detection of the present offending, you attended Crown Casino on a couple of occasions with friends and you engaged in poker tournaments between late 2019 and May 2021 as a way of providing yourself with living expenses.
55I note you have since recognised the risks attending Crown Casino posed and you ceased your engagement with that organisation. I am also gratified that, since May 2021, you have ceased engaging in online poker tournaments. Presumably, in prison you will not have access to gambling, and this may provide the circuit breaker necessary for you to rid yourself of this addiction for good. However, it will ultimately be up to you when you are released from custody as to whether you can remain free of gambling. I fear, if you return to that addiction, you will undoubtedly commit further offences and find yourself again in custody.
56You have no history of any significant mental illness or other mental health concerns prior to committing the present offence. You have experienced some anxiety since your crime was discovered which is, no doubt, reactive to your current circumstances. Moreover, you are in generally good physical health and you do not have a history of problematic alcohol use or illicit drug abuse.
57Following your plea, on 5 October 2021 your solicitor advised the Court you had tested positive for COVID-19. On 8 October 2021, the Department of Health and Human Services advised you that you would be able to stop isolating on 17 October 2021.
58You told Dr Anderson you had not revealed your present legal circumstances to you mother, father, half-siblings or most of your friends. At the time of the assessment, you were reluctant to do so ‘because of the shame [you] felt in association with [your] behaviour’.[19] However, both your brothers are aware of your present predicament and provided character references to the Court. Your mother is also now aware of the offence. You brother, Duy Khanh Ha, was supporting you during the plea hearing and is present in court today.
[19] Anderson Report p 5 [5.2.5].
Mitigating Circumstances
59You indicated an intention to plead guilty to this offence at the second committal mention of the proceedings in the Magistrates’ Court, following a two-month adjournment to facilitate plea negotiations. I accept your plea was entered at the earliest forensically reasonable opportunity[20] and it has significant utilitarian benefit, which is of even greater than usual importance given the effects of the COVID-19 pandemic.[21] Any trial would have been relatively lengthy and complex, and you have spared the company’s employees, and others, the inconvenience and stress of giving evidence and being cross-examined.
[20] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
[21] See Worboyes v The Queen (2021) 96 MVR 344, 356–7 [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA).
60The plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
61I accept your counsel’s submission, as indeed does the Director, you are genuinely remorseful for your actions as is evident from your discussions with Dr Anderson and the contents of a number of testimonials provided by your family, friends and former colleagues which were tendered at the plea hearing. These include a glowing character reference from Ms Thorpe, the company’s former CFO and your immediate superior, who speaks of your work ethic and the indicia she perceives of your genuine remorse.[22]
[22] Letter from Bronwyn Thorpe dated 26 August 2021 (Ex D7) (‘Thorpe letter’).
62However, it appears you lack some insight into the reasons behind your offending behaviour and its objective gravity. As I said earlier, your extensive post-offence involvement in online poker tournaments is concerning. It clearly concerned Dr Anderson and, to a lesser extent, your brother Duy Khanh Ha. Hopefully, with further treatment you will come to realise the significant risk this behaviour poses for your future prospects for rehabilitation.
63Nonetheless, on balance, I find you have good prospects of rehabilitation, provided you completely refrain from all gambling activities in the future. I accept you have good family support which is a protective factor in your case.
64There has been significant unexplained delay in finalising this case which is not attributable to you.[23]
[23] See generally, R v Merrett, Piggott and Ferrari (2007) 14 VR 392, 400 [34]–[36] (Maxwell P, Chernov JA and Habersberger AJA agreeing) (‘Merrett’); R v Talia [2009] VSCA 260 [22] (Ashley and Weinberg JJA) (‘Talia’); Chandler v The Queen [2010] VSCA 338 [16] (Maxwell P and Weinberg JA); Marasco v The Queen [2016] VSCA 85 [20]–[25] (Osborn JA, Priest JA agreeing).
65Your offending was detected on 14 September 2018 and you made full admissions to police on 17 October 2018. Soon after, you provided your bank statements to Ms Thorpe and police. KPMG completed their investigation report on 23 January 2019. However, you were not charged with relevant offences until 26 October 2020. This is an unexplained and unacceptable delay of over 21 months.
66The filing hearing occurred on 14 December 2020 and you offered to plead guilty to an appropriate charge on 25 January 2021. Following negotiations with the prosecution, the matter resolved to a plea of guilty to, effectively, the present offence on 18 March 2021. Since that time the matter has proceeded expeditiously enough, given the COVID climate.
67The effect of delay is a mitigating circumstance in your case. As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[24]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[25]
[24] (2013) 40 VR 436.
[25] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted). See also Merrett 400 [34]–[36].
68Insofar as your rehabilitation during the period of delay is concerned, your counsel advised me you telephoned the Gambler’s Help service shortly after confessing your crime to Ms Thorpe. You were referred for counselling sessions but there were a number of months’ delay before these could commence. In the meantime, you engaged in a small number of counselling sessions under the company’s Employee Assistance Program.
69Within about two weeks after your offending conduct concluded, and prior to you being interviewed by police, on 25 September 2018 you self-referred for gambling counselling with the Melbourne Counselling Service Gambler’s Help, conducted by The Salvation Army. You completed 12 individual counselling sessions of the 20 offered to you between 19 October 2018 and 13 September 2019 and you attended six group sessions in October and November 2018. Additionally, you attended one session with a financial counsellor in November 2018, which was also facilitated through The Salvation Army.[26]
[26] See letter from Blanca Ramos, Clinical Team Leader, Gamblers’ Help City & Inner North, Melbourne Counselling Service, The Salvation Army, dated 20 January 2021 (Ex D4).
70After you were charged, on 19 January 2021 you were referred to IPC Health for further gambling counselling. Since 29 January 2021, you have completed 15 sessions with that organisation. You told your counsellor you wish to cease gambling because of the adverse psychological and financial impact it has on you.[27]
[27] See letter form Josh Phiri, Therapeutic Counsellor, IPC Health, dated 17 August 2021 (Ex D3).
71You are to be commended on your rehabilitative efforts to date, which I am confident auger well for your future successful and crime-free reintegration into society. I take your rehabilitative efforts to date very much into account in your favour.
72So far as delay akin to punishment is concerned, since you were interviewed in relation to these offences you have had the very real prospect of a sentence of imprisonment hanging over your head. Undoubtedly, this has caused you significant stress and anxiety as exemplified by the written testimonial provided by Andrew Hart, a former associate from Stratton Finance who is now a close friend. Mr Hart writes, since your crime was discovered you have withdrawn from ‘society in general’ and have been living in ‘limbo … without being able to pursue work, both mentally and in the uncertainty of his situation’.[28] Mr Hart says: ‘The past couple of years have taken a clearly distressing toll on Tan’.[29]
[28] Letter from Andrew Hart dated 24 August 2021 (Ex D5).
[29] Ibid.
73Your elder brother, Mi Anh Ha, confirms the devastating effects your offending has had on your psyche.[30] He describes you initially ‘crumbling’ and you being ‘in a stupor’ for many months following the discovery of your offending.[31] Your other brother, Duy Khanh Ha, in his testimonial tells a similar story and speaks of the ‘a dark, menacing cloud hanging over [your] life’.[32]
[30] Letter from Mai Anh Ha dated 29 August 2021 (Ex D6).
[31] Ibid.
[32] Letter from Duy Khanh Ha dated 30 August 2021 (Ex D8). See also letter from Rafael Isidore Manalo Protacio, director Elite Finance, dated 23 August 2021 (Ex D10).
74I take the punitive effects of delay into account in your favour.
75I accept you significantly cooperated with the investigation and you made full admissions and provided relevant documentation to investigators. As I said earlier, I am satisfied you demonstrate true contrition and remorse for your offending conduct and, moreover, you have made reparation in the sum of $18,000 to the company.
76The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[33]
[33] The Queen v Madex [2020] VSC 145 [52].
(b) As noted earlier, the inherent utilitarian value of a guilty plea is greater during the pandemic.
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[34]
(d) The pandemic can impact on visits, work and educational opportunities available in prison, depending on the number of cases of COVID-19 in the community at any given time.[35]
[34] Brown v The Queen [2020] VSCA 60 [48].
[35] Astbury v The Queen [No 2] [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
77You have no prior convictions or findings of guilt and no subsequent convictions or outstanding charges. The testimonials tendered on your behalf attest to your otherwise good character. You are a dedicated family man who supports his family emotionally and financially. You have the day-to-day care of your aged and debilitated mother, with whom you reside. You also regularly look after your baby nephew, while his parents are at work. Ms Thorpe describes you as ‘an intelligent, hardworking and family-orientated young man’.[36] Mr Victor Martynov says you are a ‘kind and helpful individual who supports others and [is] a positive contributor to our society’.
[36] See Thorpe letter.
78I accept your offending conduct is an aberration of otherwise good character and I take this into account in your favour. I must be careful to not reduce the weight I give to this factor, while treating your breach of trust as an aggravating circumstance of your offending conduct.[37]
[37] See SD v The Queen (2013) 39 VR 487, 494 [31] (Ashley, Redlich and Priest JJA); Torrefranca v The Queen [2021] VSCA 157 [33]–[41] (McLeish and Osborn JJA).
79I accept you made frank and forthright admissions when interviewed by police and you gave a detailed account of how you committed the offence. You also provided documentary evidence to Ms Thorpe and police to assist them with their investigations.
80Your counsel realistically accepts the only sentence available to me is a sentence of imprisonment. He submits, as a first-time prisoner, you will be absent from your family during an uncertain time in our community.
81You are the primary carer for your mother who suffers from severe atopic dermatitis affecting her whole skin, including her hands and feet.[38] This condition interferes with her daily activities and self-care and prevents her from working. She is on a disability support pension.[39] Clearly, whilst in prison you will be unable to continue caring for her and other family members will need to step in to cover this situation.
[38] See letter from Dr Zahra Assarian, Dermatology Team, The Alfred Hospital, dated 30 March 2021 (Ex D13).
[39] ‘Your Disability Support Pension’ document dated 16 July 2021 (Ex D14).
82Your counsel relied on your mother’s health conditions and your inability to care for her in support of a submission these circumstances will add to the burden of custody in your case. He expressly disavowed any reliance on her medical conditions as constituting exceptional circumstances under the principles pertaining to hardship suffered by family members discussed in Markovic v The Queen.[40]
[40] (2010) 30 VR 589.
83I accept these circumstances will impose emotional pressure on you. Concern for your mother’s welfare and your inability to support her financially and emotionally will weigh heavily on you and increase the burden of custody in your case. Moreover, the restrictions to contact visits as a response to the COVID-19 pandemic will exacerbate this burden. I take these matters into account in your favour.
84I accept in your case I need give little weight to specific deterrence or protection of the community. I take the view you have learnt a valuable lesson from your involvement in the criminal justice system to date.
85It was put on your behalf that if I were to impose a sentence of less than 30 months’ imprisonment, this may assist you in ultimately obtaining your CPA qualification[41] and thereby assist in advancing your ultimate rehabilitation. However, in my opinion, your offending is too serious for a sentence of this duration. Considering all the mitigating circumstances you can call in aid, I my opinion a head sentence greater than 30 months’ imprisonment is necessary to achieve the purposes for which this sentence is imposed.[42]
[41] See CPA Australia, ‘Fit and Proper Requirement’ [1] (ex D12).
[42] See Sentencing Act 1991 s 5(3).
86I accept there is an element of extra curial punishment in your losing the opportunity to become a CPA, however, as your counsel fairly concedes, the weight to be given to this factor is reduced because you committed the present offences in the context of your employment as an accountant with the company.[43] To the extent I am permitted by law, I take this matter into account in your favour.
[43] See R v Talia [2009] VSCA 260 [28] (Ashley and Weinberg JJA). Compare, R v Rumpf (1987) A Crim R 64, 71 (McGarvie J, Young CJ and Murray J agreeing); Hook v Ralphs (1987) 45 SASR 529, 543 (von Doussa J); Ryan v The Queen (2001) 206 CLR 267, 285 [54] (McHugh J); DPP v Ellis (2005) 11 VR 287, 294 [17] (Callaway JA, Batt and Buchanan JJA agreeing); R v Fucile & Tran (2013) 229 A Crim R 427, 444 [110]–[112] (Maxwell P and Weinberg JA, Tate JA agreeing).
87During the offending conduct you were aged between 26 and 27 years and, therefore, you do not fall to be sentenced as a youthful offender. Nonetheless, I do consider you demonstrated a degree of immaturity at this time in your life.
Application of Sentencing Principles
88I have had regard to current sentencing practice for the offence before me as informed by the decisions of the High Court in R v Pham,[44] R v Kilic[45] and DPP (Vic) v Dalgliesh (a pseudonym).[46] I have had particular regard to the four cases your counsel referred me to.[47] While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[48]
[44] (2015) 256 CLR 550.
[45] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[46] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[47] DPP v Caulfield [2019] VSCA 131; Keane v The Queen [2011] VSCA 156; DPP v Zanin [2020] VCC 963 and DPP v Pierce [2018] VCC 1571.
[48] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
89It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute this offence, and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from these and other comparable cases, I have sought to do so in your case.
90The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it and your personal circumstances.
91I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, so far as is possible, you are rehabilitated and reintegrated into society.
92General deterrence, denunciation and just punishment are important sentencing considerations in this case and must be given primacy in my instinctive synthesis. I am of the view in your case specific deterrence and protection of the community need be given very little weight. I assess your prospects of rehabilitation as being good, provided you cease all forms of gambling and do not return to your former lifestyle upon your release from custody. In this regard, I accept Dr Anderson’s opinion you present with a number of protective factors.
93I consider the imposition of a sentence of imprisonment with a non-parole period is necessary to properly achieve the purposes for which this sentence is imposed.[49] However, I take the view in all the circumstances of the case, a non‑parole period shorter than I would otherwise have imposed is warranted in your case. I note the prosecutor accepted this was open to me in sentencing you for the present offence.
[49] See Sentencing Act 1991 s 5(4C).
Stand up Mr Ha
On Charge 1 (obtaining property by deception) you are convicted and sentenced to three years’ imprisonment.
I fix the period of 21 months during which you are not eligible to be released on parole.
There is no pre-sentence detention to declare.
Pursuant to s 6AAA of the Sentencing Act 1991, I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of four years’ and three months’ imprisonment with a non-parole period of three years.
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