Director of Public Prosecutions v Le

[2019] VCC 806

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01023

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUNG TIEN LE

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2019 & 14 May 2019
DATE OF SENTENCE:	21 May 2019
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2019] VCC 806

REASONS FOR SENTENCE
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Subject:  Criminal law
Catchwords:  Deception
Legislation Cited:            Crimes Act 1958
Cases Cited:  Markovic v R; Pantelic v R [2010] VSCA 105
Sentence:  3 years’ imprisonment, non-parole period 2 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes	Director of Public Prosecutions
For the Accused	Mr C. Hooper	Richard Revill Lawyers

HIS HONOUR:

1Dung Tien Le, you have pleaded guilty to one charge of obtaining financial advantage by deception and one charge of obtaining property by deception.  The maximum penalties applicable to each of these charges is ten years' imprisonment.

2The details of your offending are set out in the summary of the prosecution opening for the plea, dated 16 April 2019.[1]

[1]Exhibit A

3In short, the circumstances of your offending involve an ongoing course of dishonest conduct directed towards your victim, Vinh Duc Pham.  In 2015,
Mr Pham was selling homemade spring rolls at the Gisborne market.  In August of that year, you made certain representations to your victim, including telling him that you were a solicitor and had been involved in commercial matters which could assist your victim in growing his business.

4I accept, as submitted by your counsel, that in the initial stages of these representations, your actions in late-2015 may not have been wholly motivated by your later criminal behaviour.  Nevertheless, in November 2015, you commenced requesting money from your victim by falsely stating to him that deposits were required to assist in his business ambitions. 

5Whilst it may be said, with the benefit of hindsight, that Mr Pham showed some gullibility in continuing to make transfers of funds to you over a lengthy period of time, right up until June 2017, it is clear that the increasingly cunning and complex nature of your requests throughout the period, were intended to assure your victim of your good intentions and to permit you to illegally obtain these funds, notwithstanding the consequences caused to your victim.

6The total amount obtained by you in relation to the first charge, was $592,952.  The second charge relates to two cash transfers in November 2016 and December 2016, totalling $45,000.  I accept that the two charges are essentially part of the same ongoing deceptions. 

Your personal details. 

7You are presently 41 years of age and at the time that your offending occurred, you were in your late-30s.  You have admitted relevant prior convictions, including multiple counts of obtaining property by deception, for which you were fined in the Sunshine Magistrates' Court in May 2013. 

8You are presently living with your 70 year old mother and caring for a 10 year old son who has been diagnosed with Autism Spectrum Disorder. 

9In the course of your plea hearing, Mr Hooper, on your behalf, tendered into evidence a report from a consultant paediatrician, Dr Rimer, and a number of other documents relevant to your son's condition and his ongoing needs.[2]   

[2]Exhibit 1

10Amongst these documents relevant to your son's care, is a letter from Mr Kim Tao, a family day care field officer at the City of Greater Dandenong.  He notes visiting your son when he is in the care of a registered educator, Mr Kim Oahn Nguyen, who had apparently cared for your son after school and on Saturdays between August and October 2018.  A further document provided from the Noah's Ark organisation notes that your son has received early intervention with that body since February 2013.  It also refers to a background of your son living with you and notes that he is regularly babysat by his paternal grandmother and he also attends Kinder Haven in Maribyrnong. 

11I do accept that your son suffers from Autism Spectrum Disorder and can present with challenging behaviour, as described in the unsigned document from Noah's Ark. 

12I accept that you have taken steps to address your gambling issues by recently executing self-exclusion orders from the Crown Casinos in Melbourne and Perth.  I do note that these orders were made on 3 April 2019.[3]

[3]Exhibit 2

13Mr Hooper urged me to accept that these self-exclusion orders were evidence of your desire to avoid further criminal activity by addressing your gambling issue.  Sadly, I note that you had previously executed similar orders excluding yourself from the Star Casino when living in New South Wales in 2011.  This action clearly predated your current offending and gives me some concern as to the efficacy of such actions, in terms of your overall rehabilitation.

14Mr Hooper also referred me to the comments of Dr Nguyen, a consulting psychologist, whose opinion, dated 5 April 2019, was tendered in evidence.[4]  Dr Nguyen comments:

“Mr Le is taking an active role in his rehabilitation by attending regular Gamblers Anonymous meetings.  He has been very committed to his counselling sessions with myself and has excluded himself from Crown Casino.”

[4]Exhibit 4

15She went on to conclude that should you receive ongoing counselling and other treatment, she would consider your prognosis for recovery to be positive.  At the date of that report, you had seen Dr Nguyen on some eight occasions. 

16The history provided in her report records you as having no prior convictions, which is incorrect.  Additionally, the referral letter from Dr Bui,[5] your general practitioner, notes a history as follows: 

“Four weeks ago lost custody battle of children.  Business gone bankrupt.  Poor sleep.  Depressed mood.  Similar episode seven years ago after divorce.  Does not want to take medicine.  Now living with mother.  Requesting mental health care plan to see psychologist.”

[5]Part of Exhibit 2

17Frankly, it is difficult to see why there was no reference in Dr Bui's correspondence to your gambling addiction or any desire to avoid future criminal behaviour. 

18In my view, your prospects for rehabilitation must be guarded and largely depend upon you honestly addressing and dealing with your gambling addiction and any further criminal behaviour. 

19Mr Hooper submitted that any term of imprisonment would cause extreme hardship to your son, due to his complex needs.  He submitted that this would give rise to exceptional circumstances and I should therefore impose a sentence in the form of a lengthy community corrections order with appropriate punitive conditions. 

20I was referred by the prosecution to the Court of Appeal decision in Markovic v R and Pantelic v R.[6]  The Court of Appeal in that case stated that the question as to whether family hardship can give rise to exceptional circumstances must ultimately be a question of fact and degree.  The court went on to state that such cases would be rare. 

[6][2010] VSCA 105

21There were many decided cases of “undoubted hardship” which have, nonetheless, been held by appellate courts to fall short of “exceptional circumstances”.[7]

[7]Ibid at [77]

22Mr Hooper submitted that your imprisonment would lead to great hardship being caused to your young son, due to the importance of your ongoing involvement in his care.  Nevertheless, much of the material tendered on your behalf does not assist me in reaching such a conclusion.  It would appear that your son has been cared for by educators, carers and indeed your aging mother for a number of years.  I cannot conclude that you have established exceptional circumstances in this case. 

23In my assessment, the sentencing guidelines of general and specific deterrence and denunciation of your conduct must be given significant weight in the sentence I must pronounce upon you. 

24I have heard a victim impact statement read in this court by your victim and it is clear that your criminality has caused great hardship, both financially and emotionally on him. 

25I am not satisfied that the principle enunciated in Boulton's case[8] enables me to impose a sentence avoiding an immediate custodial sentence, particularly given the hardship caused to your victim and the lengthy and complex deception involved in your offending. 

[8][2014] VSCA 342

26I have, however, taken into account the close relationship between Charges 1 and 2 and I have, of course, taken into account the provisions of s.6AAA, noting your early plea of guilty and the fact that you have, at least, provided the court with an opportunity to avoid the considerable cost and difficulties associated with a trial. I therefore propose to moderate the sentence I would otherwise have imposed upon you.

27Would you stand now please, Mr Le.

28On Charge 1, obtain financial advantage by deception, you are convicted and sentenced to two years and nine months' imprisonment.  This is the base sentence.

29On Charge 2, obtain property by deception, you are convicted and sentenced to six months' imprisonment, three months of which is to be served cumulatively upon the base sentence. 

30The total effective sentence is therefore three years imprisonment.

31I direct that you are to serve a period of two years imprisonment before becoming eligible for parole.

32Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, the sentence I would have imposed would have been imprisonment for four years and six months, with an eligibility for parole after serving three years of that sentence.

33There is no pre-sentence detention, I understand? 

34COUNSEL:  No, Your Honour.

35HIS HONOUR: All right. There is a further order pursuant to s.464ZF and that is not opposed, Mr Hooper?

36MR HOOPER:  No, Your Honour.

37HIS HONOUR: All right. Pursuant to s.464ZF of the Crimes Act 1958, you are to undergo the taking of a forensic sample, namely saliva, to be placed on the database. I must inform you, that if you do not consent to the taking of such sample, an authorised member of the police force may use reasonable force to enable that sample to be obtained.

38Do you understand the sentence I have imposed upon you, Mr Le?

39OFFENDER:  Yes, Your Honour.

40HIS HONOUR:  All right.  Well you can go with the Corrections officer now.  Thank you. 

41MS WATSON:  If the court pleases.

42MR HOOPER:  As Your Honour pleases.

43HIS HONOUR:  Thank you.  I will excuse counsel. 

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