Director of Public Prosecutions v Lee
[2020] VCC 1500
•11 September 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00442
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDI LEE |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2020 | |
DATE OF SENTENCE: | 11 September 2020 | |
CASE MAY BE CITED AS: | DPP v Lee | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1500 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Three charges of obtaining a financial advantage by deception – Continuing criminal enterprise offender – Position of trust as bank manager – Overall offending over a period of approximately 3 years and 8 months involving a total of $4.2m
Legislation Cited:
Cases Cited:
Sentence: Total Effective Sentence 7 years and 8 months’ imprisonment with a non-parole period of 3 years and 10 months. s6AAA declaration: 10 years’ imprisonment with a non-parole period of 7 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Cookson | The Solicitor for Public Prosecutions |
| For the Accused | Mr P Morrissey SC | Melasecca Kelly & Zayler Solicitors |
HER HONOUR:
1 Andi Lee, you have pleaded guilty to three charges of obtaining a financial advantage by deception, each of which carries a maximum penalty of 10 years’ imprisonment. As each of the three charges involve at least one transaction valued at $50,000 or more, each of the three offences is a continuing criminal enterprise offence within the definition in s6H and Schedule 1A of the Sentencing Act. Accordingly, pursuant to s6I, as a continuing criminal enterprise offender, you are liable to an increased maximum penalty of 20 years’ imprisonment on each charge.
2 The circumstances of your offending are summarised in the Prosecution Opening upon Plea (Exhibit A). This is a comprehensive summary comprising 17 pages. I do not propose to recite every detail from its contents, and I append it to these sentencing remarks.
3 Your offending occurred in the context of your employment as a bank manager with the Bank of Melbourne, a subsidiary of Westpac Banking Corporation. In 2014 you had been transferred from your position of manager at Box Hill branch of the Bank of Melbourne to become manager of its Doncaster branch. In the course of your employment you gained the trust and confidence of your staff and superiors at the Bank of Melbourne, as well as that of bank customers who relied upon you for investment advice in relation to substantial sums of money. You had an established relationship with all of the customers to whom you made false representations in order to obtain the financial advantage to which each of the Charges 1, 2 and 3 relate.
4 In essence, you used your position of having access to Bank of Melbourne systems and knowledge of detection mechanisms in order to successfully transfer money from customers to the accounts of your business associates, family, your own intimate partner and your former wife. You used your authority as the branch manager to create “mule” accounts in order to move money and transfer it to people associated with yourself without being detected by authorities or, indeed, in some cases, the account signatories. Over a period of approximately 3 years and 8 months from 10 August 2015 to 29 April 2019, you used this means to obtain a financial advantage of $4.2m, the sum total of your offending on all three charges.
5 Of the total amount of $4.2m, only approximately $400,000 appears to have been paid into your own bank account, which had a balance of $110,000 when your offending was detected. The remainder of the $4.2m was diverted by you into multiple other accounts, which on their face bore no connection with you.[1]
6 However, you did purchase two Porsche motor vehicles by using customers’ money which you had diverted to other accounts. These two vehicles had a total purchase price of some $283,000. One Porsche was given to your intimate partner, Ms Nguyen Thuy Dong (‘Gee’) Phan, for her use and you used the other one for yourself. Both vehicles were registered in Ms Phan’s name. In addition, between July 2018 and September 2019, a total of approximately $373,000 was spent on some 26 luxury watches. Of this amount, less than $30,000 of the total purchase price came from your own Commonwealth Bank account. The remainder came from customer’s funds which had been diverted by you into accounts in the name of your partner, Ms Phan.[2]
7 The balance of the $4.2m which you obtained by deception was transferred by complex means into a variety of different accounts, some of which were in the names of people known to you, and others were in accounts in false names which had been set up by you. Some of the latter were attached to your address and phone number, and others used identification by way of a Victorian driver’s licence in the name of a person other than yourself. There were no accounts or purchased assets in your name which would have made the moneys immediately or obviously traceable to you.
8 Charge 1 is a rolled up charge involving transactions totalling $1.5 million. This sum was deceptively obtained from customers of the Bank of Melbourne, Mr Panahandeh and his wife, Mrs Sadri, who met you soon after they migrated to Melbourne from Iran. You offered to them and completed false term deposit agreements on official Bank of Melbourne letterhead with an interest rate of 4 per cent per annum over a 12 month period in circumstances where the Bank of Melbourne did not offer any such product. You later offered false term deposit agreements with annual interest rates of 4.2 per cent and 5 per cent per annum and nurtured the trust of these customers by purporting to make interest repayments to them on 31 August 2016 of $21,000 and $80,596 and, on 14 August 2017, of $42,500. In fact, these interest payments came from their own money which you had purported to invest.
The purported term deposit investments involved a total of $1.5 million in multiple transactions which took place over a period of approximately 2 years and 10 months between 19 August 2015 and 7 June 2018. On each occasion, you accessed your customers’ account and transferred their money into another account which was in no way related to them or to you. The accounts into which you transferred their money were in the name of your ex-wife, Anna Tang, and your girlfriend at the time, Corrine Hong Ying Fong, and another fictitious name of Rosalyn Harris which you had created. The latter account had an address attached to it of Unit 2/3 Dumfries Road, Wantirna, which was an address at which you had previously resided. Some of the funds were later transferred from that fictitious account into the account of your current partner, Ms Phan. I here interpolate that Ms Fong said in her statement to police that she did not receive any statements and had no knowledge of the transfers.[3] Further, Exhibit “A” does not refer to the knowledge that either Ms Tang or Ms Phan may not or not have had about the transactions and neither of them made statements to police that are included in the Depositional material.
9 Charge 2 involved offending on or about 10 April 2017. Your victims were Mr and Mrs Bok, whom you had met as customers of the Bank of Melbourne when you were manager of the Box Hill branch. They would meet with you every six months for a coffee or lunch to discuss their term deposits and they considered you as a friend. You even invited them to your wedding on 2 November 2019, which was one month prior to your arrest. Your modus operandi was similar to your offending on Charge 1 in that you offered Mr and Mrs Bok a term deposit paying 4.35 per cent per annum in interest for a five year term on a $1.5 million investment. The Bank of Melbourne does not offer such a product. You forwarded a false term deposit agreement to them on official Bank of Melbourne letterhead and sent an updated term deposit contract to them on 10 April 2017. You transferred the entire sum of $1.5 million into the previously mentioned account in the false name of Rosalyn Harris. On two occasions namely, 17 April 2018 and 6 May 2019, you transferred amounts of $75,000 back to the Boks to create the appearance that annual interest was accruing appropriately on the money which they believed you had deposited on their behalf.
10 Charge 3 involved offending on 29 April 2019 by way of false representations to a Bank of Melbourne customer, Mr Arthur Pantazi. Mr Pantazi had become a customer of the Bank of Melbourne in February 2017, having changed from another bank due to the better term deposit rate and facility allowing access to funds in a term deposit offered by the Bank of Melbourne. Mr Pantazi was not working at the time as he was the primary carer for his elderly mother. On 23 April 2019 you suggested to him that he should invest his funds into “private banking” within the Bank of Melbourne which would give him a higher term deposit rate of 5 per cent annum for a five year period on a $1.2 million investment. The Bank of Melbourne does not offer any such product. On 29 April you provided Mr Pantazi with the Bank of Melbourne agreement with these conditions printed on Bank of Melbourne letterhead. Mr Pantazi signed the paperwork and you then placed his $1.2 million into a false account set up in the name of “Anthony Pantazi” (my emphasis) with an associated address and phone number which were yours. For identification you used a Victorian driver’s licence in the name of one Joan Howlett.
11 On 4 November 2019 an investigation began into your activities. On 2 December 2019 a search warrant was executed at your residence, where police found a large volume of financial documents relating to your offending, two amounts of cash of $6,900 and $1,100, and two Apple iPhones, one Apple iPad, one Windows Surface Pro computer, one black USB and your work mobile phone and work Apple iPad.
12 When interviewed by police on 2 December 2019 you gave information as to the names your former partner, Anna Tang, your current partner, Gee Phan and, also, stated that you currently rent a property from your half-sister, Linh Chi Lee. You stated that you had worked for the Bank of Melbourne since 2010 and were currently on an income of $98,000 plus employer superannuation contributions. You stated that your current partner was unemployed, but she drives a new white Porsche worth approximately $130,000 and owns another two year old Porsche worth approximately the same amount. You lied to police in claiming that you had not opened an account “for a while.”[4] When the specific allegations of offending were put to you, you responded with “no comment”, as is your legal entitlement.
13 On 5 December 2019 your employment with the Bank of Melbourne was terminated.
14 Although you provided police who executed the search warrant with passwords to your mobile phone and electronic devices, a considerable amount of resources, time and effort had to be spent by the bank and police in the investigation of your offending. Indeed, the depositions relating to it exceed 7,000 pages in length. As previously mentioned, your offending involved 3 “mule accounts”. One was in the name of Ms Fong, with whom you had been in a relationship between 2015 and 2017. She apparently permitted you to open the account in her name, but received no statements and had no knowledge of the transfers into her account. The other accounts were those for the fictional individuals, Rosalyn Harris and Anthony Pantazi, which had been opened using false identification documents. You transferred the money of your customers, Mr Panahandeh and Mrs Sadri, Mr and Mrs Bok and Arthur Pantazi into these mule accounts, but never transferred their money directly to yourself. You then transferred the misappropriated money to some seven third party accounts in the names of people who were closely associated with you or to which you were a signatory. All of these third parties were customers of the Bank of Melbourne and included a businessman, Beom Seok Shin, who is the director of five companies, his partner, Hwa Young Choi, and his mother, Jeom See Shin. As previously mentioned, they also included Anna Tang, your ex-wife, and Gee Phan, your current partner. In addition, they included a company of which Gee Phan was the sole director, GPHAN Pty Ltd, which operated under the business name CA-REM GELATO SOCIETY, They also included your younger half-sister Linh Chi Lee, who had commenced employment with the Bank of Melbourne on 3 August 2016. The transfers into those third party accounts are detailed in paragraphs 50 to 52 of Exhibit “A” and I will not repeat them in these sentencing remarks.
15 Once money had been paid into the third party accounts, the money was applied in various ways either directly or indirectly for your benefit. The various ways in which this occurred are detailed in paragraphs 54 to 62 of Exhibit “A” and I will not repeat all details here. The following are some examples: Two payments of $20,000 were paid into an account of “Joe Shin” in respect of an investment in a restaurant “Hanzo Babekyu” by you, Joe Shin and others. Your portion of the investment was set at $80,000 as recorded in an email dated 26 May 2019 located by police during the investigation.[5] Further, a deposit of $51,500 was paid for the purchase of Unit 301, 8 Hepburn Road, Doncaster in the name of your sister. This was the property in which you actually resided. Another deposit of $5,000 was paid on a second property at 11 Thiele Street, Doncaster. Also, there were payments of VISA card/Bank of Melbourne Freedom Accounts in your name, totalling $85,825;[6] payments totalling $48,500 on the Bank of Melbourne VISA card in the name of your sister, Linh Chi Lee, on which you were a signatory, a transfer of $310,000 to the account of your sister;[7] amounts totalling $166,730 to your own account,[8] and various amounts of thousands of dollars to accounts of “B Shin”, Anna Tang and the mule account of Fong.[9]
16 On or about 18 December 2019 the Bank of Melbourne customers from whom you obtained a financial advantage by deception, as detailed in Charge 1, Charge 2 and Charge 3 respectively, had their money repaid, along with interest, by the Bank of Melbourne/Westpac Banking Corporation. Westpac has suffered a loss of approximately $4.09 million for which there had been no recompense. As the misappropriated money had been scattered across a number of persons and accounts, the Westpac Group has been compelled to take legal action to recover the money against the owners of the third party accounts, yourself and various corporate entities.
17 You are presently aged 39 years, having been born on 24 September 1980. You come before the Court with no prior criminal history.
18 A plea on your behalf was given by Mr Morrissey of Senior Counsel. Tendered as Exhibit 2 were two reports of Mr Luke Armstrong, psychologist, dated 31 January 2020 and 15 August 2020 respectively.
19 In his first report, Mr Armstrong details your family history. Your mother was born in Vietnam. Her husband died and, following the war, in 1975, she fled the communist regime on a boat and obtained asylum in a refugee camp in Malaysia. There, she met your father, and you were born in the refugee camp. When you were aged approximately two years, your parents were granted refugee status and settled in Adelaide, but your father left the family unit when you were aged only four or five years.
20 You described to Mr Armstrong a background of very considerable deprivation whereby your mother, as a single parent, struggled to support you and, later, a younger half-sister, as well as an older 15 year old half-brother from her first marriage, who arrived from Vietnam some years afterwards. She worked hard in a fish factory, six days per week, and also as a waitress on weekends. You would be awoken at 5am each morning and would ride on the back of your mother’s bicycle in the dark to be dropped off at the home of another family. You would sit on the couch by yourself for two hours before that family awoke, and then attend school and return home, but did not see your mother until she returned from her working day after 5.30pm.
21 You told Mr Armstrong that your mother had witnessed terrible things during the war in Vietnam, and had had a very traumatic journey by boat before she arrived at the refugee camp in Malaysia, where she spent three years before being granted asylum in Australia. You stated that your mother worked hard to lift you out of poverty, but there was never much conversation between the two of you, and you spent long hours playing by yourself, and you and your mother were socially isolated.
22 You described your mother’s primary focus as paying bills and putting food on the table, and strongly emphasising that you needed to achieve well at school, which you did. You were awarded a scholarship to an elite Adelaide private school, which you attended from Grade 5 until Year 8. You described yourself as living in “the slums” of Adelaide and becoming hypersensitive to socioeconomic differences between yourself and your peers at school, who came from wealthy families and lived in “mansions”. You felt the difference keenly when you could not have elite runners like those worn by fellow students, and when you invited some of those students to your home and your mother set up a barbecue in the single garage.
23 You stated that the entry of students into Year 8 of this elite school was celebrated by them wearing a grey blazer but, as your mother could not afford it, you had to continue to wear your junior blazer, which was purple in colour, and you were the only one, out of the sixty Year 8 students, to do so. You described your behaviour deteriorating, and you beginning to get detentions, because you refused to wear the blazer. You began to wag school and, within six months, were expelled.
24 Following your expulsion from school you led a feckless life, attending ‘Timezone’ with other school dropouts, and began smoking cannabis with this group. You did not return to school for one entire academic year. However, you began a relationship with a girl whose mother told you that you could not see her if you did not go back to school. Hence, you enrolled in the local secondary school, and were shocked by the poor behaviour of students compared to your previous school. Initially, you were told you must repeat Year 8 but, within six months, had been moved to Year 10. However, this proved too much for you, and you needed to repeat Year 10, and did well. Unfortunately, during Year 11 you became involved with your old dropout peer group, and your grades deteriorated. Ultimately, you left halfway through Year 11 and began working. You did later attend a private college to try to complete your equivalent of VCE, but left within six months.
25 Thereafter, you worked in a variety of unskilled jobs, but began to gamble with work associates at a car yard where you worked as a detailer. Your gambling led you into debt and, after returning to Vietnam for a short time, you then travelled to Melbourne, where you worked in the kitchen of a cafe doing washing-up for two or three years. You felt inferior and a “nobody”, and told Mr Armstrong that you desperately wanted to better yourself.
26 At age 28 years you moved to a call centre, where you worked for 18 months. This is where you met your former wife, Anna, and the two of you moved to the ACT for 12 months, where you managed to get work at St George’s Bank. After the two of you returned to Melbourne you obtained a customer service position with the Bank of Melbourne, and were later promoted to bank manager in 2010.
27 You told Mr Armstrong that Anna’s father died and left her an inheritance. You had a chronic undercurrent of inadequacy and inferiority, and your path to dishonesty began with accessing your sister-in‑law’s funds to pay bills but, ultimately, you began to spend the money on expensive dinners in order to “network”. You allegedly spent $110,000 of an amount of $120,000 in your sister-in‑law’s account. It was in this context that you first used a bank customer’s money to invest and make more money.
28 You told Mr Armstrong that you began to be recognised by clients who wanted to invest, and you presented yourself as someone who was successful in the way you dressed and the car you drove. You described yourself as becoming preoccupied with success and your reputation, and stated that your mother was proud of you. You stated that the more admiration you received from others, the more you became caught up in the lifestyle which you had adopted. You and Anna had a daughter together, but your marriage broke down and you began to abuse cocaine, which contributed to further spending.
29 Two or three years ago you met your current partner, ‘Gee’ Phan. You described her as being from a wealthy family, and you adored her, and felt you had to impress her and her family, so would buy expensive items and deposited large amounts of money into her account, telling her that you had secured “big deals”. You told Mr Armstrong that you told these lies to secure Gee’s admiration, and you were utterly preoccupied with your facade of success. You described your collection of some 26 designer watches as rare pieces which were very desirable, and for which you “gained adoration” which, in turn, enhanced your image.
30 You stated that when you were arrested on 2 December 2019, Gee was shocked and angry that she had been drawn into it, and you are now consumed with regret, especially since she and another close friend have had their assets frozen.
31 Mr Armstrong stated that you presented as a mostly passive, dependent individual as a direct legacy of your familial experience of dysfunction and neglect. He noted that you had been entirely dependent upon your mother and the two of you had experienced great financial hardship. You outwardly complied with your mother in every way in order to avoid conflict for fear of further isolation, which you already experienced as a result of chronic neglect. Your father had abandoned you when you were approximately four years of age. You were profoundly affected by your mother’s hardship in endeavouring to provide for you against a background of her wartime experience, marital breakdown and poverty. These factors caused her to be unable to provide a sufficiently nurturing environment which became defined by emotional and material neglect. Mr Armstrong noted that this background initially caused you to have a healthy form of ambition from the age of 19 years, but this ambition ultimately became an obsession and preoccupation resulting in a considerable personality disturbance.
32 Mr Armstrong considered that you present with primary features of a dependent personality where you require reassurance and approval of others at any cost. He stated that you have a preoccupation with fear of being left to take care of yourself and a personality disturbance whereby you equate poverty with inadequacy which, in turn, fuels a distorted belief that you must become a material success at any cost. In addition, he considered that you had secondary traits of a narcissistic personality which, paradoxically, are directly associated with your childhood neglect and poverty such that you have spent your entire life compensating for this perceived flaw of poverty and neglect which you equate with inadequacy. Hence, you have a sense of grandiosity and are preoccupied with fantasies of success, power, love, require excessive admiration, have a sense of entitlement and are often envious of others or believe that others are envious of you.
33 On a general ability index assessment, Mr Armstrong classified you as having a general level of intellectual ability in the high average range at the 84th percentile. He stated that you did not present as thought disordered, but your core sense of being inadequate and inferior had caused you to fail to thrive throughout adolescence and early adulthood and, ultimately, you selected partners who were of a dominant nature, which further fuelled your chronic sense of inferiority. He considered your personality disorder to be the kind which reflects chronic, pervasive and inflexible patterns of perceiving and responding to the environment and involved expectations with respect to relationships which are distorted through being exposed to emotional neglect during early development. Mr Armstrong considered that you were ultimately disabled by the belief that you were inadequate and inferior and this fuelled and compelled you to set up your illicit money making scheme. Further, the admiration you received from significant others relating to your apparent wealth and success clouded your judgment and compelled you to fall deeper into debt and financial trouble. He described your core motivation for offending as being your “addiction to admiration” which was secondary to your belief that only material success equated to personal adequacy and a functional level of self-esteem.
34 Mr Armstrong considered that your being publicly stripped of your status within the community had compelled you to admit that you are flawed and have a serious problem. He noted that you remembered with fondness the simplicity of your early life with your mother and had stated in relation to your offending “I was trying to understand why I did it … it’s too little too late … I'm glad it’s all out, I don’t care if I lose everything, but I want that simple life again.”
35 Mr Armstrong ultimately diagnosed you as having a spectrum of personality disturbance which he described as “Other Specified Personality Disorder, with primary features of dependency and secondary narcissism.”
36 When Mr Armstrong saw you on 19 December 2019, he considered that you were in a “preparation stage” in that you acknowledged your problematic behaviours to the extent that you could make the necessary shift to change. He thought that you would require considerable long term treatment (at least two years or more) and, if you were to commit to long term corrective therapy, you would present as being at low risk of reoffending. He supported his conclusion by reference to the fact that you have no prior convictions, have a capacity for empathy, your psychological profile is shown on testing to be not associated with entrenched criminal offending, you have taken full responsibility for your misconduct and have recognised that you have a problem for which you must seek intensive assistance in order to correct it.
37 Mr Armstrong referred you to Ms Tracey Allen, psychologist, for therapy and you have attended regular sessions with her since February 2020. A report from Ms Allen dated 7 August 2020 was tendered as Exhibit “1”. She reported that you had presented as a willing and engaged individual and had been particularly responsive to therapy. Your treatment had focussed upon increasing your capacity for emotional identification and emotional expression by assisting you to improve your insight into personality factors that likely contributed to your offending; taking responsibility for developing and maintaining boundaries/assertiveness within personal relationships; improving your self-awareness and insight into your childhood trauma, particularly aspects of perceived neglect; and taking responsibility for your own needs, behaviours and flaws by learning skills to self-regulate in the face of adversity and hardship into the future.
38 Ms Allen noted that, at the beginning of your therapy, you presented as overwhelmed with feelings of helplessness and demonstrated a tendency towards emotional suppression. She stated that this was a characteristic of an avoidant attachment style which forms when a primary care giver is mostly unavailable to meet the emotional needs of a child. She noted that you harboured significant shame and embarrassment about your offending, as well as anger towards yourself. She expressed the opinion that you manifested self-loathing.
39 Ms Allen stated that, over the period that you had engaged in therapy with her, your progress was impressive and positive. She stated that you had come to realise that you had moved through life as a “chameleon”, constantly adapting to the needs and expectations of others and, hence, lack your own true identity and do not yet know who you are. You are able to identify that wanting to be liked and recognised had come at the cost of your own needs and emotional expression and that your strong people-pleasing streak left you hypersensitive to rejection and failure.
40 Ms Allen reported that you recently informed her that it was a good thing that you were caught because you could not see a way out of the predicament that you had created. She considered that you demonstrated improved self-awareness and the taking of responsibility. She noted that your capacity for emotional identification and expression had also improved. She noted that you had embraced volunteer work at Ronald McDonald House and genuinely enjoyed it, thereby evidencing a strong capacity for empathy and providing you with an improved capacity for perspective taking.
41 She concluded that you have made gains towards your goal of taking responsibility for your needs, behaviours and shortcomings and can reflect upon your childhood with improved insight, as opposed to feelings of embarrassment. She expressed the view that you did not condone or minimise your behaviour and appeared genuinely remorseful.
42 After you had engaged in therapy with Ms Allen for six months, Mr Armstrong reviewed you again on 14 August 2020. In his report dated 15 August 2020, which forms part of Exhibit 2, he noted that, amongst other things, when he had assessed you in December 2019 your profile did not show a primary scale elevation suggestive of the kind of self-aggrandisement predictive of entrenched psychopathy or criminality. He was confirmed in that view when he repeated his assessment on 14 August 2020 using the same tool, namely the Minnesota Multiphasic Personality Inventory – 2nd edition. Mr Armstrong stated that, having repeated your profile assessment twice within 12 months, he is of greater confidence that you are not an individual with entrenched deviance.
43 Mr Armstrong’s conclusions after his most recent assessment of you are that you are “moving in the right direction with regard to [your] reformation and rehabilitation”. He noted that when he had first seen you in 2019 you were bewildered and in shock, but now take full responsibility for your behaviour and can articulate that you suppressed your own accumulated inferiority and inadequacy problems and, by doing so, allowed yourself to make decisions to offend in order to impress other significant people in your life. He stated that you now recognise that your problem was a legacy of emotional dysregulation and you regard your engagement with Ms Allen as a supportive corrective experience. Nevertheless, he emphasised that you are not unrealistic, in the sense that you do not claim to have reached a point of complete rehabilitation.
44 Mr Armstrong pointed out that you had initially engaged in volunteer work with Ronald McDonald House hoping that it might assist you at the plea hearing, but you had ultimately derived satisfaction from helping others in a small way, which helped you to put your own life in perspective. He noted that you have been specifically working with Ms Allen to redress vulnerabilities in your identity so that you do not become caught up in others’ expectations, remain true to your own reformed beliefs, and commit to developing strategies for recognising feelings of inferiority and the value of positive relationships where people value you for who you actually are.
45 Mr Armstrong agreed with Ms Allen that you present with genuine remorse and full appreciation of the impact that your offending has had on the community, your family, and yourself, recognising that you have tarnished the Bank of Melbourne’s reputation and let many people down, including those who provided you with a career opportunity but, also, your mother and other people close to you.
46 Mr Armstrong assessed you as being at low risk of future offending in the light of your treatment progress, the lack of substance abuse or gambling problems, your comprehension of the trajectory of your offending and taking full responsibility for it, your understanding of the underlying flaws in your character which led to the offending, your improved mental state following treatment, your commitment to engage in treatment suggesting that you are on the pathway to reformation, his own confidence that you are not a person with entrenched deviance and that the deviance which underpinned your offending will continue to respond to treatment, your support from various positive peer relationships, your realistic medium and long-term goals, and your genuine sense of shame which is likely to act as a deterrent to future offending.
47 I accept the submissions of Mr Morrissey that your pleas of guilty at the earliest possible time (the first committal mention) have high utilitarian value. It is clear that, had you elected to plead not guilty, the evidence which would have been required to be put before a jury would be complex and time consuming. You have saved the State the cost of a trial and many people being inconvenienced by giving evidence. You have thus facilitated the course of justice. I also accept that your pleas of guilty are remorseful. I consider that the opinion of Ms Allen, who has been your treating psychologist for six months, and the opinion of Mr Armstrong, who spent 6½ hours assessing you in December 2019 and a further 3½ hours reassessing you on 14 August 2020, are a worthy basis for such a conclusion. Further, although often little value would be placed upon a letter from an offender to the Court when it is written for the very purpose of being tendered at a plea hearing in mitigation of sentence, I do place some weight on your letter to the Court dated 18 August 2020 (Exhibit 4).
48 It seems to me that the contents of your letter are indicative of the gains you have made by way of insight into your character flaws and reasons for offending, and that the apology for what you have done to the Bank of Melbourne and your clients and your family and friends is genuine. In particular, you state:
“For 10 years I have been trying to impress people around me by being someone I’m not. Continuous lies to everyone and to myself. To a point where I couldn’t tell which part of my life was a lie anymore and eventually losing the real me.”
49 Further, you accept the punishment which your counsel has conceded must inevitably be a term of imprisonment, and express the hope that, in the future, you will lead your life in a more meaningful way, acknowledging the assistance that you have received from psychological treatment. In my view, this is an indication of true contrition, as is your conduct in giving something back to the community by volunteering as a bus driver for Ronald McDonald House, bringing rural relatives of young children who are patients at the Royal Children’s Hospital from their homes in country Victoria to the hospital. You have apparently undertaken this work for 8 hours on one day per week for the past six months.
50 By reason of your early and remorseful pleas, you are entitled to a high discount upon the sentence which otherwise would have been imposed. I accept that you did suffer emotional and financial deprivation in your childhood. You had a very hardworking, but somewhat emotionally distant mother, who cared for you. The images of childhood perceptions of disadvantage referred to in the history given to Mr Armstrong are credible and poignant, as is the pressure you felt from your well-meaning mother to achieve and do well. I acknowledge these factors as part of your personal circumstances relevant to the sentencing process, but note that your counsel has conceded appropriately that they are not, in themselves, mitigatory and they do not attract the principles of R v Verdins.[10]
51 Moreover, as was appropriately pointed out by the prosecutor, Mr Cookson, it cannot be said that only a relatively small proportion of the $4.2m of which you defrauded the bank was used for the purpose of keeping up the appearance of a successful and wealthy investor, because so much of the detail in your offending entailed a sophisticated web of transactions going from one account to another for a variety of potential business purposes which, if not discovered, may well and truly have enriched you greatly.
52 I accept that your offending has resulted in a spectacular fall from grace, and that your shame and embarrassment, and loss of a significant network of people who thought they were your friends, has led to a marked diminution in your circle of support.
53 I understand that a person like you, who has had no prior contact with the criminal justice system, is likely to find a term of imprisonment a very foreign experience, and I take into account that, unhappily, like all prisoners, you will suffer the loss of companionship of your current partner, Ms Phan, and will also feel keenly the lack of ability to connect to your seven-year-old daughter, who was born of your marriage to your former wife, Anna, from whom you separated in late 2014. I understand that you would pay maintenance in the form of meeting the mortgage on the home where Anna and your daughter lived, together with payment of other bills, and that your daughter would have overnight access with you at your home on one night per week.
54 I also take into account that being remanded in custody during the COVID‑19 pandemic brings particular hardships for persons serving a term of imprisonment. You will initially be required to serve the first 14 days of your sentence in isolation, and, at the present time, restrictions of various sorts still apply in prisons, as indeed they do in the general community. However, their impact is more marked in prisons, in that, at the present time, at most prisons, prisoners are only permitted to be out of their cell for half the usual period of time each day in order to facilitate social distancing. Further, there has been suspension of a significant number of programs of a rehabilitative nature and, most importantly, a suspension of contact visits with family and friends, albeit that there are increased Skype and telephone calls made available.
55 Obviously, it is difficult to predict how long these restrictions will remain in force. Without speculating, and doing the best that I can and given the most recent announcement of the Premier of Victoria last Sunday, 6 August 2020, I have made some allowance for restrictions which are expected to continue in some form or another over the next two to three months.
56 I accept that the reports of Ms Allen and Mr Armstrong indicate that you have embarked in a significant way upon the road to rehabilitation. As someone who was leading a shallow life, driven by a consuming desire for wealth and success by stealing from others, you have gained insight into your character flaws. You have, at least, undertaken some therapy since being arrested in order to understand your psychological makeup and frailties, and guard against them again resulting in you leading an existence with no moral compass as you did in committing this offending.
57 I particularly note that, as mentioned by Ms Allen, you have not endeavoured to condone or minimise your behaviour, and that Mr Armstrong is clearly of the view that you do not possess entrenched psychopathy or criminality. Hence, I consider that your prospects of rehabilitation at this stage are good, although it is highly desirable that you continue to have psychological treatment so that you can continue to build upon the rehabilitative gains which you have made thus far.
58 Mr Lee, you should be in no doubt as to the seriousness of the offending for which I must sentence you. The higher maximum penalty of 20 years’ imprisonment prescribed by Parliament for each of these three continuing criminal enterprise offences is an indicator of their seriousness. In sentencing you, I must take into account the higher maximum penalty that is applicable to the offences because they are continuing criminal enterprise offences, but this does not necessarily compel a sentencing judge to increase any individual sentence. This increased maximum is a yardstick which must be balanced with all relevant factors. I have had regard to the continuing criminal enterprise provisions of the Sentencing Act in arriving at the sentences which I intend to impose.
59 Your counsel has acknowledged that the only appropriate sentence in respect of each charge is a term of imprisonment with a non-parole period, which is an appropriate recognition of the seriousness of your offending. It has multiple factors of gravity, which include the period of 3 years and 8 months over which you offended, the overall quantum of $4.2m which you misappropriated, the grave breach of your employer’s trust, in that you utilised your position as a bank manager with intricate knowledge of the banking system in order to offend, and the appalling abuse of trust of the customers who had faith in you personally to advise them when it came to making important decisions about investment of money which in respect of each charge involved in excess of $1m. In this regard, I note that Mr Panahandeh and Mrs Sadri were relatively new arrivals to Australia when the placed their trust in you to advise them about the best investments for their money. Mr and Mrs Bok clearly regarded you as a friend with whom you mixed socially and, bizarrely, you invited these people from whom you were stealing to be guests at your wedding. Mr Pantazzi was in a vulnerable position not working because he was caring for his elderly mother. Your betrayal of the trust of all these people and of your employer is the action of a person who, at that time, was morally bankrupt.
60 Although amounts of approximately only $400,000 found their way into your account, the structure which you employed to commit your offending, was, as I have mentioned, both complex and sophisticated and utilised the knowledge of the banking system which you had because of your position as manager. It involved the transfer of amounts from one account to another, some of which accounts were in false names, and multiple accounts were utilised by you in the names of people known to you. You also created false documents to fool your customers into thinking that you were genuinely investing their money and transferred amounts to your customers which purportedly represented interest on their investments, when in fact it was their own money.
61 You ensured that very little of your deceitful web of transactions was traceable to you. The unit in which you lived, which had been purchased from the misappropriated funds, was in the name of your sister, and you purported to rent the unit from her. The two Porsches, which had a total value of approximately $283,000, were purchased from money which had been transferred into your partner’s account and both of the vehicles were registered in her name. Similarly, all but two of the 26 luxury designer watches were apparently purchased with funds from your partner’s account, namely, an amount of $258,000,[11] with only $29,568 having come from your Commonwealth Bank account, which funds had been sourced from Mr and Mrs Bok via the Anthony Pantazi account.[12]
62 All other moneys ended up with other people, including an amount of $687,000 which was paid into the account of the mother of your business partner, Beom Seok Shin. There are numerous documents which show that you were involved in various business dealings with others into whose accounts you have paid very considerable amounts of money. As I have stated, you appear to have been careful not to have documentation in your name demonstrating that you had wealth.
63 Although ultimately the bank’s actual customers have had restitution made to them by the bank, they were undoubtedly bewildered by a person whom they trusted and regarded as a friend and adviser having cheated them in this way.
64 Further, although it is your legal entitlement to make no comment, as you did, when the allegations were put to you, the fact remains that the bank had to embark on a significant investigation and is now embroiled in complex civil litigation in the Supreme Court to which you, and many other people, into whose accounts you transferred funds, are defendants. The bank is out of pocket by $4.09m, and it cannot be assumed that it will necessarily recover all of this amount due to the complex intermingling of funds in others’ accounts which was part and parcel of your sophisticated scheme of offending.
65 I have already referred to your background of deprivation, which I do take into account as part of the sentencing process. However, it is important to make it clear that, while this explains, to some degree, your offending behaviour, it is not mitigatory of your moral culpability, albeit that I have accepted that you are now ashamed of what you have done. You had no need for the vast amount of money you stole. You were driven by an insatiable need to look successful and appear to be wealthy. It was not conduct driven by, for example, a gambling or drug addiction but, rather, an addiction to being admired. Whilst the genesis of this addiction is probably your deprived childhood, the law cannot excuse you for that. You have sought to better yourself at the very considerable expense of others.
66 Further, whilst I have noted that you have no prior convictions and were formerly of good character, it is relevant that you did, in fact, use your prior good character in order to gain the trust of your employer and bank customers and, hence, that good character was part and parcel of why you managed to succeed in your offending. For this reason, prior good character is often of less weight in white-collar crime of the type you have committed than in other offences.
67 In all of the circumstances, there can be no doubt that the only appropriate sentence is a substantial term of imprisonment. However, I have found your prospects of rehabilitation to be good, and I have acknowledged the anxiety which you will face going into prison for the first time, particularly during the COVID‑19 pandemic, and in circumstances where the term of imprisonment may well bring an end to the relationship between yourself and Ms Phan, and, of course, cause you anxiety concerning your ability to keep the relationship with your seven-year-old daughter a strong and meaningful one.
68 Although motivation for your offending was the vulgar pursuit of the trappings of wealth and actual wealth, unearned by hard work or the exercise of legitimate skill, I have accepted that your background of disadvantage and unhealthy obsession with success and wealth in order to win admiration from others has played a significant role in your offending, and have accepted that you have endeavoured to gain insight into these character flaws, with some degree of success.
69 By reason of these factors, notwithstanding the gravity of your overall offending, I consider that it is appropriate to set a non-parole period which, if parole is granted by the Adult Parole Board, will enable you to return to the community to endeavour to continue your rehabilitation by way of therapy and to avail yourself of the reduced supports that you have in the community. This will consist mainly, in Melbourne, of your sister and Ms Phan (if she is still supportive of you upon your release), and your mother, who resides in Adelaide, and has told the Court in a reference (Exhibit 3) that she continues to support you, despite being shocked, disappointed, and very upset about your offending. She states that you are a good son, and you have always been caring and polite towards your family and friends, and she believes that you will learn your lesson and become a better person and a more honest person and will return to being a contributing member of society.[13]
70 This type of offending calls for the Court to denounce your dishonest conduct whilst acting in a position of trust. When sentencing you, emphasis must be placed upon the principle of general deterrence so that others in positions of trust, like that which you held, who abuse that trust in such a dishonest way, will know that they will be appropriately punished. There is also a need for emphasis upon special deterrence since your offending overall spanned a period of three years and eight months and the charges overall involved, not only the deceit in misappropriating the sums from your customers, but a host of transactions through different accounts which were not in your name. This was clearly aimed at avoiding detection. However, as I have stated, I do acknowledge that since your last act of offending on 29 April 2019, you have made progress in recognising why it was that you offended in this way and I have accepted that you are on the path to rehabilitation and that, now, it is unlikely that you will offend in this way again.
71 In arriving at the overall sentence which I intend to impose, I must ensure that it appropriately reflects the gravity of your offending. However, I am mindful of the principle of totality so that, notwithstanding the very serious nature of your offending, I should ensure that the punishment imposed upon you is a just sentence of imprisonment and not one that will crush you without hope of rebuilding your life. It is apparent that you are an intelligent person with considerable talents which could be put to good use. You are said to have empathy and a wish to rebuild your life in a way that is not some sort of make-believe and hollow quest to be rich and envied. You apparently do not have traits of entrenched criminality. You have started your rehabilitation already and are still young enough to turn your life around. The Court sincerely wishes you well with your ongoing rehabilitation.
72 Would you please stand up, Mr Lee.
73 On Charge 1, which is a rolled-up charge involving a number of transactions between 19 August 2015 and 7 June 2018, you are convicted and sentenced to be imprisoned for a period of 4 years.
74 On Charge 2, you are convicted and sentenced to be imprisoned for a period of 3 years.
75 On Charge 3, you are convicted and sentenced to be imprisoned for a period of 2 years and 6 months.
76 The base sentence is that of 4 years, or 48 months, imposed on Charge 1. I order that 2 years of the sentence imposed on Charge 2 and 20 months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1 and upon each other. The total effective sentence is thus 7 years and 8 months’ imprisonment, or 92 months. I direct that you serve a period of 3 years and 10 months before becoming eligible for parole. I note that you are being remanded in custody for the first time today and, hence, there is no pre‑sentence detention to be declared.
77 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 10 years’ imprisonment with a non-parole period of 7 years.
78 Pursuant to s6H(1)(a) of the Sentencing Act, as you have been found guilty of three continuing criminal enterprise offences on the one indictment, you fall to be sentenced as a continuing criminal enterprise offender and I cause to be entered into the records of the Court that, on each of the Charges 1, 2 and 3, you have been sentenced as a continuing criminal enterprise offender.
79 Having been convicted of a Schedule 1 offence, namely, obtaining property by deception (Charges 1, 2 and 3) I order pursuant to s33(1) of the Confiscation Act 1997 that the property referred to in the schedule of this order be forfeited to the Minister. This involves 15 of the luxury designer watches and three boxes used for storing watches.
80 Having been convicted of a number of Schedule 1 offences, namely, obtaining property by deception (Charges 1, 2 and 3) and upon being satisfied that the property referred to in the schedule of this order is property that is prescribed by the regulations that was used or was intended to be used in or in conjunction with the commission of the offence or offences or was derived or realised directly or indirectly by you or another person from the commission of the offences, I order pursuant to s78(1) of the Confiscation Act 1997 the forfeiture to the State of the property referred to in the schedule and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. The schedule of this order refers to six folders of assorted financial documents and paperwork, two black folders containing assorted documents, one Hocking Stuart folder containing a contract of sale for Unit 301/8 Hepburn Road, Doncaster and one black box containing financial documents and personal paperwork.
81 As you have been convicted of three charges of obtaining property by deception and I am satisfied that, as a result of these offences, Westpac Banking Corporation had experienced loss, I order you to pay to Westpac Banking Corporation, 150 Collins Street, Melbourne, compensation in the sum of $4,090,000. I note that your counsel, Mr Morrissey, did not oppose that order or seek that the Court should take into account your financial circumstances and the nature of the burden that payment of this amount would impose. Clearly, in the event that the civil litigation by Westpac Banking Corporation in the Supreme Court were to result in recovery from other persons of all or any portion of the amount of compensation that I have ordered you to pay, then that would be offset against such amount.
82 Upon you having been convicted of charges of obtaining property by deception I order pursuant to s84(1)(a) of the Sentencing Act 1991 that the Chief Commissioner of Police restore the following stolen sums of money recovered during the execution of the search warrant at your address to Westpac Banking Corporation: Australian currency in the amounts of $1,900 and $5,000 and US currency in the amount of $1,100.
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| IN THE COUNTY COURT OF VICTORIA | Court Ref: CR-20-00442 |
| AT MELBOURNE | Indictment: K13115232 |
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
ANDI LEE
PROSECUTION OPENING UPON PLEA
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