Director of Public Prosecutions v Le
[2016] VCC 1135
•14 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00923
Indictment No. E13031511.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUY ANH LE |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 July 2016 | |
DATE OF SENTENCE: | 14 July 2016 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Le | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1135 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – obtaining financial advantage by deception – suspension of certificate to practice as solicitor – prior charges of one count of obtaining financial advantage by deception and one count of deficiency in a trust account – cyclothymic disorder – obtained certificate of title making false representations to be a solicitor – application for loan on the basis of false representations – principles in Verdins – plea of guilty
Legislation Cited: Crimes Act 1958, s82
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Director of Public Prosecutions (Vic) v O'Neill [2015] VSCA 325; R v Le [2008] VSC 624; Law Institute of Victoria Ltd v Le [2006] VCAT 1201
Sentence: Nine months’ imprisonment, wholly suspended for a period of 24 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P Pickering | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr P Smallwood | Victoria Legal Aid |
HIS HONOUR:
Introduction
1 Anh Huy Le, you have pleaded guilty to the charge that on 31 May 2005, you dishonestly obtained for yourself a financial advantage, namely a $150,000 loan from “AM”, by deception, by falsely representing to BF Pty Ltd (“BF”) that you were a legal practitioner holding a current practising certificate; that you were acting for and on behalf of “YM”; that YM was the intended borrower, and that you were entitled to provide legal advice to YM.
2 Obtaining a financial advantage by deception is contrary to s82 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
3 Both counsel for the prosecution and your counsel provided me with very helpful written summaries of the case against you, material relevant to your plea, and submissions on what is a complex sentencing exercise.
4 I propose to set out a chronology which I hope will explain the basis upon which I will sentence you.
Your early life
5 You were born in Vietnam in 1968. You migrated to Australia with your parents, and your two younger brothers in 1979 when you were eleven years of age.
6 Your father and mother are both tertiary educated. Your father is a retired TAFE lecturer and your mother is a retired primary school teacher. Your two younger brothers are both medical practitioners who have specialist medical training.
7 You attended Melbourne High School. You completed Year 12 and subsequently enrolled at La Trobe University to study a double degree in science and engineering. You lost interest in that course. You subsequently enrolled at the Australian National University to study a double degree in commerce and law. You transferred your university studies to the University of Melbourne, from which you obtained a law degree. You graduated in 1992. You were admitted to practice on 7 April 1993.
8 You completed your articles of clerkship with a firm of solicitors in Preston. You worked with that firm for about two years. You later worked for another firm for about two years. You then obtained a partnership in a law firm in Abbotsford where you worked for six to eight months, before commencing practice in your own right in October 1997 in Footscray. Your law practice was general in nature, and mainly comprised work for members of the Vietnamese community.
9 You married your first wife in 1996. There is one child born of that relationship who is nineteen years of age. That marriage broke down in 1998. Tragically, your first wife died of cancer in 2008. Your son was raised by your parents-in-law.
10 You maintained your law practice until you were the subject of complaints by clients which were taken up by the Law Institute of Victoria. On 12 December 2003, a receiver was appointed to your practice, and you were suspended from practice. You appeared before the Legal Professional Tribunal on 31 May 2006. In response to a number of charges, you made admissions of impropriety. The Tribunal reprimanded you, and suspended you from practice from 31 May 2006 for a period of three years.[1] You have not reapplied for a practising certificate.
[1]Law Institute of Victoria Ltd v Le [2006] VCAT 1201
11 The complaints which were dealt with by the Tribunal related to:
· theft of $23,700 from a client;
· theft of $43,000 from another client;
· obtaining a financial advantage by deception by reducing the consideration stated in a transfer of land by $200,000 in order to have a reduced stamp duty assessment enabling you to obtain financial advantage in the amount of $12,000; and
· a deficiency in your trust account of $31,000.
12 The summary of each of these matters is taken from the sentencing remarks of King J,[2] who sentenced you on 2 October 2008 on two counts of theft, one count of obtaining a financial advantage by deception and one count of deficiency in a trust account.
[2]R v Le [2008] VSC 624
The 2008 Sentence
13 King J sentenced you to twelve months’ imprisonment, which was wholly suspended for two years. Your counsel referred me to her Honour’s sentencing remarks in some detail because of their relevance to my sentencing of you.
14 At the sentence hearing before her Honour, one of your brothers gave extensive evidence about your mood from the time you were a student at the University of Melbourne. In essence, he said that he had observed “quite severe mood swings” when you were a student at the University of Melbourne; that you were “a bit manic” during the period of the breakdown of your first marriage, and that your behaviour in relation to dealing with money and making investments was “abnormal”. Her Honour then summarised part of his evidence:
“He thought things had escalated, as you borrowed a lot of money from him, from your parents and from others, including your older brother. He said you were spending lavishly, wearing expensive watches, pens, clothes. He said you had at least three cars. You started opening a lot of law offices with secretaries, without any lawyers being there. He said that he talked to you about that and you said it was fine, you did not know what he was talking about.”
15 King J was provided with a report of Professor Singh, psychiatrist, dated 15 September 2008. You first saw him for treatment in 2003. By the time he composed that report, you had seen him on thirty occasions. He recorded the following history, partly taken from a referring letter composed by one of your brothers:
“On presentation at that time, Mr Le gave a history consistent with his brother’s report. For the preceding 3 - 4 years since opening his law practice (1997) but worsening since his divorce in 1999, Mr Le had been behaving in an excessive and impulsive way, indulging in high risk activities in both his personal and professional life. In summary Mr Le was spending excessively, opening more offices that [scil than] the business could sustain, buying or leasing 3 - 4 cars, borrowing heavily, making poor investment judgements, entertaining constantly and paying the bill for all when he did. In addition he was acting out sexually with multiple partners and making superficial and ill-judged decisions regarding financial matters about people who he trusted amongst his associates. Mr Le was drinking and eating excessively and sleeping poorly. All in all he was living well beyond his means and displaying impulsive actions and poor judgement.”
16 Professor Singh diagnosed that you were suffering from a Cyclothymic Disorder which is characterised by the presence, for at least two years, of numerous periods with hypomanic and depressive symptoms that do not meet the criteria for a Major Depressive Episode. He treated you with medication and psychotherapy. It would appear that he treated you for about four years. He noted that your depression had been brought under control by medication, but that you were still vulnerable to hypomanic tendencies. He recommended that you continue to have treatment for the disorder.
17 Professor Singh was ultimately of the opinion that there was a clear link between the Cyclothymic Disorder and your criminal conduct.
18 In addition to the opinion of Professor Singh, King J was provided with a report of Mr Cummins, forensic psychologist, dated 26 September 2008. He agreed with the diagnosis made by Professor Singh. He was called to give evidence before her Honour.
19 I have been provided with the reports of Professor Singh and Mr Cummins, and also a further report of Mr Cummins dated 10 June 2016. I have read all of those reports.
20 I have expended the effort of setting out the foregoing because of the necessity to consider the principle of totality in the composition of the sentence which I must impose on you. I will return to these matters later in my sentencing remarks.
The present Charge
21 It was in the setting of your failing law practice, your failing marriage and your errant behaviour produced by the Cyclothymic Disorder that you engaged in the conduct that now brings you before the Court.
22 In short, you did the following:
· You obtained the certificate of title of YM.
· You represented to BF that you were a solicitor when clearly you were not.
· You made an application to BF for $150,000.
· You provided BF with a document which is entitled “Mortgage of Land”, noting YM as mortgagor, AM as mortgagee, and the amount of the loan being $150,000.
· You also provided BF with a document entitled “Solicitor’ Certificate” dated 30 May 2005 which referred to you by name as having provided legal advice to YM. It was stamped with the following “Huy Anh Le, a Current Legal Practitioner under the Legal Practice Act 1996, 85 High Street, Northcote 3070”. It referred to YM and his address as the borrower, and details of YM’s driver’s license and Medicare card as proof of identity.
23 As a direct result of the representations made by you and the submission of these documents, AC was prepared to finance the loan. Once the loan was approved, you requested that you be provided with two cheques: one made out to “SG” for $12,970, and the other made out to Focal Link for $131,817.38. The cheque made out to SG was part of a deposit to be paid by “WA”, who was the purchaser of a property. It would appear that he had engaged you to act as his solicitor in the purchase. Focal Link is a business name of which you are the registered proprietor. In other words, the cheque made out to Focal Link placed those monies in your hands.
24 Between 2005 and December 2012, you organised for “TN” to forward a cheque to AC for $1,062.00, describing the payment as being made by YM. You subsequently reimbursed TN. This scheme unravelled in 2011 when YM contacted the police. It is unclear to me what information he provided the police. In any event, YM spoke to you at a time when he understood the transaction which you had undertaken using his certificate of title.
25 You were subsequently interviewed by police on 23 June 2014. Although some of the admissions you made were somewhat equivocal, I accept that you admitted the steps you had undertaken to complete the transaction and to obtain the sum of $150,000, that you were not a solicitor entitled to act as you pretended to be, and that the monies were obtained for your benefit.
26 I will now set out a chronology which will later become relevant to submissions made by your counsel:
· You were interviewed on 23 June 2014.
· You were charged on 1 September 2014.
· There was a filing hearing on 1 October 2014.
· There were mentions on 26 November 2014, 16 December 2014, 23 January 2015 and 23 February 2015 which resulted in adjournments due to issues relevant to Legal Aid funding for you.
· There was a committal mention on 11 March 2015. The committal was adjourned on 17 April 2015 because the Court was not available, and on 27 May 2015 you were committed for trial.
· There were directions hearings on 28 May 2015, 1 July 2015, 22 July 2015 and 26 August 2015 which were also the subject of adjournments due to issues relevant to Legal Aid funding for you. On 23 September 2015, Legal Aid was granted.
· On 26 November 2015, YM’s evidence was to be pre-recorded, but because he was unwell, that was adjourned to a mention on 4 February 2016. He remained unwell.
· On 8 March 2016, discussions occurred relevant to the entry of a plea of guilty, and on 1 April 2016, an Indictment was filed, and subsequently, you pleaded guilty to the charge before the Court.
27 I have set out the chronology because your counsel submitted that the delay from when you were interviewed to the filing of the Indictment occurred for a number of reasons unrelated to you, and the prosecutor conceded that was partly so.
Your plea
28 Your counsel referred to his written outline of submissions dated 5 July 2016, which are extensive, informative and very helpful to me in understanding the factors which I must consider in determining a just sentence. Your counsel supplemented the written outline with equally informative and very helpful oral submissions, and in particular, reference to the reports of Professor Singh and Mr Cummins.
29 It is relevant to set out your present personal circumstances.
30 You are now forty-eight years of age. You are married. Your wife is thirty-seven years of age. She has a twelve-year-old son born of her previous marriage. You and your wife have a five-year-old daughter. As a family unit you live in rented accommodation at a cost of $2,000 monthly. Your wife is occupied in full-time home duties. You work in a factory, earning $3,700 gross per month. You have no other source of income nor any other assets.
31 You have paid AC just over $100,000 restitution. You have consented to the making of a restitution order in favour of AC for $46,302.60.
32 In Mr Cummins’ report dated 10 June 2016, he made the following observation, which is consistent with the conclusion that I have reached:
“He is now pleading guilty to one count of obtaining a financial advantage by deception. In my opinion this offending was committed around the same time as the earlier offending which has already been dealt with by Her Honour Justice King. It is therefore my opinion that at the time of committing the offence of obtaining financial advantage by deception in Melbourne on 31/5/2005, his perception, judgement and ability to exercise rational thought was impaired as a result of him suffering from a Cyclothymic Disorder with intermittent features of hypomanic episodes.
Significantly, at interview on 30/5/2016 Mr Le stated he still regards his moods as sometimes ‘swinging’. It is therefore my opinion it would be preferable he receives appropriate mental health treatment although, as indicated above, he stated that he ceased receiving psychiatric treatment in late 2008 and ceased taking mood stabilising medication in 2011. In my opinion Mr Le has always had difficulty accepting the true magnitude of his mental health problems and I am aware this is an issue previously commented upon in Professor Singh's reports.”
33 Mr Cummins repeated the same opinion expressed by Professor Singh, that is, that a sentence of imprisonment would jeopardise your mental health.
34 I accept the opinion of Mr Cummins for two reasons: firstly, it is consistent with the opinion of Professor Singh noted by King J when she sentenced you in 2008; and, secondly, there is a strong consistency in the histories taken by Professor Singh and Mr Cummins on which they have based their opinions regarding your psychiatric state and how it has affected your behaviour.
35 Your counsel submitted that you do have some awareness of your psychiatric state, to the extent that you try to regulate your behaviour by avoiding situations which may reproduce the worst aspects of it. Otherwise, your counsel submitted that you are in a very stable environment: you are married, you are working full-time in stable employment, and you have two children who you care for.
Sentencing considerations
36 There are a number of sentencing considerations which I must address before arriving at the sentence which I must impose on you.
37 Firstly, I accept the diagnoses made by Professor Singh and Mr Cummins that you have suffered, and continue to suffer, from a Cyclothymic Disorder. I accept that the conclusions reached by King J in her sentencing remarks are as applicable to your present circumstances as they were when her Honour sentenced you.
38 Secondly, I accept that the Cyclothymic Disorder is a mental impairment and has resulted in, and continues to result in, you suffering impaired mental functioning. In reaching that conclusion, I am influenced by the conclusions reached in that regard by King J, and by the application of the principles referred to in R v Verdins & Ors[3] and recently reviewed in Director of Public Prosecutions (Vic) v O’Neill.[4]
[3](2007) 16 VR 269
[4][2015] VSCA 325
39 I am as equally satisfied as King J, that your mental impairment and the impairment of your mental functioning has reduced your capacity for judgment and understanding, and ability to control your behaviour. Therefore, your reduced moral blameworthiness relevant to this offending is to be rightly regarded as an important mitigating factor in the sentencing process.
40 Whilst I am not satisfied that specific deterrence figures so prominently as a sentencing consideration because you have not engaged in similar conduct since 2005, general deterrence is relevant, but must be moderated in your case because of the application of the relevant principles in Verdins.[5] However, offences committed through fraud are easy to commit, and difficult to detect. Each of those observations apply to you and what you did. Any person who has an entitlement to practice the law will obtain the confidence of clients and parties to commercial transactions and be treated as trustworthy and reliable. You relied upon that to mislead the parties to the transaction in order to benefit yourself.
[5]Supra
41 Your conduct must be denounced, and the community needs to be protected from persons like you; however, to make it clear where these sentencing principles lie in your case, I am satisfied that you are very unlikely to engage in this kind of conduct again, and I am fortified in reaching that conclusion because you have not engaged in similar conduct since 2005.
42 The last sentencing considerations which were the subject of debate between myself, the prosecutor and your counsel are the principles of totality and delay.
43 The difficulty in broaching the principle of totality is endeavouring to put myself in the position of King J if this charge were also before her. I must approach that by asking what sentence I would have imposed if I were the sentencing judge at that time. I may have sentenced you to a term of imprisonment with a minimum term, even in the face of the compelling evidence that was put on the plea. The cause of your criminal conduct in 2001 and in 2005 have the same root cause. The sentence I may have imposed on you would have needed to address the principle of totality, that is, arriving at a sentence which was a just measure of your total criminality which satisfied all of the sentencing objectives applicable to the entirety of your criminal conduct.
44 I must also factor in the delay in you being brought before this Court. You were interviewed on 23 June 2014, at which time you made sufficient admissions for it to be plain that you had no real defence to the charge. I appreciate that the charge needed to be formulated, and some negotiation needed to follow. I will not analyse whether any part of the delay was self-inflicted. I think it is sufficient to say that the delay is significant and I propose to factor it in to the sentencing process. It is a powerful mitigating factor for two reasons: firstly, you have demonstrated that you have rehabilitated yourself by the pursuit of work and family life, which has brought you stability; and, secondly, you have been held in a state of suspense with this day hanging over your head, wondering what would happen to you.
45 Furthermore, you have not engaged in similar or other criminal conduct since 2005, and certainly not since you were interviewed on 23 June 2014.
46 I accept that you are remorseful. Your counsel expressed that at the commencement of the plea at your insistence. It otherwise resonates in the admissions made when you were interviewed, and in the second report of Mr Cummins.
47 I accept that these admissions probably pointed to you having no real defence. There was an inevitability that you would plead guilty to a properly framed charge. In the circumstances, I am prepared to accept that you made equivocal admissions which lead to you entering a plea of guilty at a reasonably early point in time.
48 It should not be forgotten that there were two victims of your criminal conduct. AC lost control of his investment. He is still owed a significant amount of money by you. His loss is not just to be measured by how much is owing to you, but also the loss of potential for that money to create capital gain. I accept that you will repay him. The other victim is YM, whose property is encumbered. He no longer has possession of his certificate of title. Both AC and YM have been placed in what can only be described as an awful position by you.
49 You have come dangerously close to the imposition of a sentence of imprisonment and the setting of a minimum term. I will spare you that, but you should understand that were it not for the excellence of the plea put on your behalf, and the concession by the prosecutor that a sentence of imprisonment, wholly suspended, is within range, I was considering sentencing you to an immediate term of imprisonment.
50 Lastly, the sentence I am about to impose upon you is proportionate to the gravity of your offending in the light of the objective circumstances of its occurrence, and pays due regard to the relevant sentencing considerations and the relevant factors going to mitigation.
51 Please stand.
52 On the charge of dishonestly obtaining a financial advantage, I sentence you to nine (9) months’ imprisonment. I direct that the sentence be wholly suspended for a period of twenty-four (24) months.
53 I declare that the sentence I would have imposed on you but for your early plea of guilty and your demonstrated remorse, would have been an immediate term of imprisonment.
54 I will now sign the Restitution Order and the Order that you undergo a forensic procedure pursuant to s464ZF(2) of the Crimes Act 1958.
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