Director of Public Prosecutions v Lau
[2023] VCC 1781
•26 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
Case No. CR-22-02399
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW LAU |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 15 September 2023 | |
DATE OF SENTENCE: | 26 September 2023 | |
CASE MAY BE CITED AS: | DPP v Lau | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1781 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence.
Catchwords: Plea of guilty – Three charges of theft – One charge of making a false document – False accounting – Deceased estate – Breach of fiduciary duty – Executor and trustee – Verdins – Early plea – Delay.
Legislation Cited: Crimes Act 1958, ss 74, 83A(1); Sentencing Act 1991, s 89F.
Cases Cited:DPP v Carley [2021] VCC 1897; Boulton v The Queen [2014] VSCA 342; Hutchinson v The Queen [2015] VSCA 115; R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169; R v Todd [1982] 2 NSWLR 517; Hudson v The Queen [2010] VSCA 332; DPP (Vic) v Dalgliesh (a pseudonym) [2017] 91 ALJR 1063;
Sentence:Sentence of 9 months’ imprisonment in combination with a 2 year community correction order upon release.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D. Hancock | Office of Public Prosecutions |
| For the Accused | Mr C. Tom | Tyler Tipping & Woods, Barristers & Solicitors |
HIS HONOUR:
1
In this matter, indictment number N10479383, Mr Lau has pleaded guilty to
two charges.
2 Mr Christin Tom appeared on his behalf, Mr Hancock appeared on behalf of the Director.
3 Mr Lau is aged 52 and was 45 at the time of this offending, having been born on 29 October 1970.
4 Charge 1 is a rolled-up charge. Withdrawals were made from his deceased mother's pension account from the 17 October 2015 to 24 November 2017. The withdrawals were made by use of a debit card, and the numerous withdrawals have been detailed in the prosecution opening statement as Schedule A. Charge 1 is one of theft pursuant to s 74(1) of the Crimes Act for which the maximum penalty is 10 years imprisonment. The victim in such instance was the Estate of Helen Musgrove, Mr Lau's mother.
5 Charge 2 is also a rolled-up charge, the period being from 28 October 2015 to 18 August 2016. In this instance the sum of $67,494 was withdrawn by the use of a credit card, on this occasion from his deceased mother's unlocked senior's account. Apparently, Centrelink had continued payments into this account until November of 2017, albeit that his mother died on 27 September 2015. Again, this is an offence under s 74(1).
6 From the withdrawals, $22,000 was used to pay off a loan that Mr Lau had, and a sum of $25,000 approximately was funnelled through his partner's account, who then returned it to him. The full amounts and details and dates in regard to this charge is set out in Schedule B.
7 Charge 3, is a charge of make false document contrary to s 83A(1) of the Crimes Act. It again is a rolled-up charge being from 4 December 2015 to 13 June 2016. The false documents were his false signature purporting to be that of his mother to 28 cheques which had been issued by the Commonwealth Bank in his mother’s name. Again, the penalty for this charge is one of 10 years’ imprisonment.
8 Charge 4 is a further charge of theft. The theft relates to 16 cheques which are set out in Schedule C. It is in fact the use of those 16 cheques by which the sum of $55,063 was obtained from the account. I would have thought it would have been simpler to simply make it a charge of theft of the money; however, what has been drawn by the Crown prosecutor and pleaded to as the theft of the 16 cheques being the negotiable instruments, as I understand the law, which enabled the obtaining by the use of the cheques of the sum of the $55,063. At any rate, that is the charge which was pleaded to.
9 Mr Lau comes before the Court with minor priors dating back many years. Exhibit B was the victim impact statement of Mr Ken Musgrove dated
12 May 2023. He was the son of the first marriage of the mother's husband,
Mr Musgrove. In his victim impact statement, he explains that the Musgroves were not aware for some number of years as to them being beneficiaries under the will. I am not too certain from the materials put in Court how it came to be that he did become aware. There is some suggestion that at some stage Mr Lau made contact with him.
10 The victim impact statement indicates that somewhere about April of 2022, the Estate had to repay to the Commonwealth the sum of $49,171.45, which was the overpayments made by the bank into the unlocked senior account. The statement talks about spending $25,000 in order to fight such a claim, again which I do not totally understand.
11 I am advised, and again I am not sure why this was done, but insofar as the totality of the money stolen, or obtained by Mr Lau, being $177,038. It would appear that the bank reimbursed the Estate for $128,131.30. Again,
I am not aware why, and perhaps the expenditure by the Estate of the sum of $25,000 makes more sense in that instance. However, the Estate, as
I understand the position, owing to the criminality of Mr Lau is still owed $48,000.
12 Exhibit D is the report of Chris Cowell, an officer of the Department of Justice and Community Safety, who provided the report sought by the Court, given the submissions by defence counsel. As I indicated to Mr Tom this morning, that report is positive and has now been tendered as Exhibit D.
13 There has been no indication to the Court of any restitution made by Mr Lau to the Estate. The only indication in regard to that is some appreciation, as set out in the letters to his psychologist or in the discussion with his psychologist, that any losses that are still owing to the Estate would be repaid, apparently from the sale of the mother's house. I am not quite sure how that represents repayment, but that apparently was in the mind of Mr Lau, as told to Ms Lechner.
14 The prosecutor in sentencing submissions put that the offending should be classified as objectively serious, with which Mr Tom, on behalf of the defendant, agreed, [2] and [35] of Exhibit 1, the defence submissions. The defence also accepted that this offending was a breach of trust and fiduciary duty given his role as executor and trustee as appointed by his mother. It was also accepted that the criminality involved persistence and the amount stolen and/or appropriated was also accepted, [36].
15 Specifically, such breach of trust involves firstly a breach of the obligation to his mother who had appointed him to such position pursuant to her will. Secondly, of his obligations to the beneficiaries, two of which were his own sons and as
I have said, two were the sons of his mother's husband, Musgrove, from the first marriage that Mr Musgrove had. He further breached the trust, in addition to these crimes of which he is charged, in that he apparently failed to prove the will, obtain probate or properly administer the estate.
16 As to each criminal breach of trust set out in these four charges, Mr Tom sought to discriminate each from a breach of a professional, such as an accountant or solicitor, as demonstrated in DPP v Carley [2021] VCC 1897, which was a sentence of mine, where Mr Carley, was not only an executor but also performed the role of an accountant for the estate and in that capacity prepared false accounts to hide his thefts from the estate.
17 Having considered the submission, I do not accept it. I consider, and find, that a breach of trust of the duties of an executor and trustee of a will to be of equal seriousness to breaches committed by professionals of their duties. Clearly differences can be found as to the degree of such breach, as for example in Carley where, for eight years he sought to hide his thefts by preparing the accounts for the estate.
18 As put by the prosecutor, such a breach means that general deterrence, denunciation, and punishment must be prominent factors for consideration by the Court. Indeed, Mr Tom in Exhibit 1, [3], conceded such.
I find that the objective offending and culpability as to the crimes committed by
Mr Lau should be classified in the high range, given its persistence over a period of some two years and the amounts stolen or obtained.
19 In that regard I accept the submission of the prosecution that it would be outside the range of appropriate sentencing for this sentence not to include a period of immediate imprisonment. I therefore reject the submission that Mr Tom detailed in [4] and [43] of Exhibit 1.
20 I acknowledge the reliance by Mr Tom on Boulton & Ors v
The Queen [2014] VSCA 342, and the principles detailed therein. However, in this case I consider the words of Priest JA in
Hutchinson v The Queen [2015] VSCA 115 [17], to be apposite. In that regard I will quote paragraph 17:
'Acknowledging that a community correction order might be appropriate, even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, it should not be thought that Boulton offers a 'get out of gaol card' free in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is of course to punish the offender to an extent and in a manner which is just in all the circumstance.
'There will be cases, indeed many cases, where, having regard to the seriousness of the offending a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all the circumstances, is just. At the risk of again traversing well trodden ground, it is axiomatic that in every case the sentence imposed must depend on its own facts, including the circumstances of the offending and the offender, and the circumstances of aggravation and mitigation'.
21 I stress that such a finding made and the reference to Hutchinson relates to the primary proposition of Mr Tom that a community correction order, without being combined with a period of imprisonment, would be within the range in this case. I accept the prosecution's submission that it is not in the range.
22 As to the plea, I accept the personal background as detailed by Mr Tom in his written submission from [7] to [21] in Exhibit 1, most notably that he served in the RAAF for a period of 22 years.
23 Mr Lau is a man of 52 years of age who comes before the Court with only minor offences of longstanding against his name. I take into account the character reference of his current domestic partner, Flair Manuell, Exhibit 3. She describes him as a kind and gentle person and, if I might say so, I found the reference impressive.
24 Mr Lau has suffered mental issues in his life with a diagnosis in 2013 of bipolar mood disorder. I note in Exhibit 2 the report of the psychologist, Carla Lechner, dated 20 February 2023, but do not accept the alleged naivete of Mr Lau referred to by Ms Lechner on p5.
25 The above diagnosis was made after he had left the RAAF and failed in a business venture, thereafter placing him in difficult financial straits, such totality of circumstances being the background factor, as I understand the position, to his criminality. He was dealing with such issues by self-medicating with alcohol.
26 As detailed on p4 of Ms Lechner's report, and indeed in the recommendations of the pre-sentence assessment on p2, he is still dealing with such issue.
I accept the proposition put by defence counsel that this offence occurred during the period when he was experiencing what can be described, as to his mental state, as destabilisation.
27 I accept the applicability of principles 5 and 6 of Verdins and in that regard in order to reduce the risk of any exacerbation of psychological issues while in gaol, I will order that the reports of Ms Lechner and of the community corrections office be forwarded to the Corrections Department upon sentence.
28 I take into account in mitigation the factors put by Mr Tom being:
(a) The plea of guilty, such being in the circumstances still able to be described as early and utilitarian. I accept as detailed to Ms Lechner at p6 of her report that Mr Lau is regretful and remorseful as to his crimes.
(b) I also accept the principles of Worboyes [2021] VSCA 169 [39], are applicable where an enhanced discount for a plea must be given in circumstances where the courts have been suffering from particular difficulties in listing et cetera brought about by the issues of the pandemic.
(c) I consider these crimes opportunistic and I accept that Mr Lau will effect rehabilitation.
(d)
As to the submission as to there being significant delay not of his making,
it is clear that from the time this matter was reported to the police in November 2017 to the time of the record of interview was a period of three years and four months, and then he had to endure a further year until he was charged on 24/02/2022. It was clear that he had a considerable period of being in a state of suspense, and during that time he got on with his life and maintained his employment as best he could do. I take such significant delay into account and accept the principles put to me by
Mr Tom as set out in Todd [1982]
2 NSWLR 517, pp519 to 520.
(e) I accept the need for a sentence which incorporates a degree of concurrency given the close similarity and timing of the crimes, and
(f) I accept that he now has a stable relationship, one of worth, and during this more recent period has maintained full employment.
29 Finally as part of Mr Tom’s submission he provided the Court with an analysis of comparable cases, one of which I have already mentioned. I accept such as being appropriate signposts in the instinctive synthesis involved in this sentence. See Hudson v The Queen [2010] VSCA 332.
30
Of course as detailed in DPP v Dalgliesh by the High Court [2017]
91 ALJR 1063, 1075, [64] to [68], Mr Lau is entitled to a just sentence based upon the particular circumstances of his offending, which I have sought to do.
31 Mr Lau, would you stand please.
32 Mr Lau, you will be convicted of each of the four charges in this indictment.
33 Pursuant to s 9 of the Sentencing Act I sentence you to an aggregate sentence of nine months' imprisonment, and a community correction order pursuant to ss 40 and 44 of the Sentencing Act of two years, which pursuant to s 44(3) will commence upon the end of your term of imprisonment.
34 The conditions that will be put on such a community correction order is a supervision condition pursuant to s 48E; a treatment and rehabilitation condition pursuant to s 48D(3) in particular (b) being assistance and treatment involving testing in regard to alcohol, and (e) being assistance and treatment in regard to mental health. I do not intend to impose a work requirement.
35 It will be necessary and be explained to you by your solicitor and counsel that once released from prison you will be required to report to the appropriate justice centre in Bairnsdale within two days of being released.
36 I indicate that had Mr Lau not pleaded guilty, pursuant to the provisions of s 6AAA as I am required to do by Parliament, the sentence that I would have imposed would have been a sentence of 24 months' imprisonment with 16 months as a minimum period to serve.
37 Given the above orders I intend to sign the identity crime certificate presented to the Court by the prosecution pursuant to s 89F(1) of the Sentencing Act.
38 Do I need to clarify any matters to either counsel?
39 MR HANCOCK: No, Your Honour.
40 MR TOM: No, Your Honour.
41 HIS HONOUR: Any reason why I should not sign that certificate now, Mr Prosecutor?
42 MR HANCOCK: No, Your Honour.
43 HIS HONOUR: Yes. Good luck, Mr Lau. I never like sending anyone to gaol but there is simply no alternative in these circumstances. I'm sure, as I've said, you will effect rehabilitation after you have served that sentence. Yes, Mr Lau can be taken away.
44 MR HANCOCK: May it please the court.
45 MR TOM: May it please the court.
46 HIS HONOUR: Yes. Thank you both. I will stand down.
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