Director of Public Prosecutions v Lim
[2023] VCC 2275
•1 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01346
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIM-DANY LIM |
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JUDGE: | HIS HONOUR JUDGE HOLDING | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2023 | |
DATE OF SENTENCE: | 1 December 2023 | |
CASE MAY BE CITED AS: | DPP v Lim | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2275 | |
REASONS FOR SENTENCE
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Subject:- CRIMINAL LAW -
Catchwords: Plea of Guilty- eight charges – theft of over a million dollars – compensation Order – no prior criminal history – general deterrence – significant victim impact – Verdins principles.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:R v Matisi [2017] VCC 797;DPP v Paglianiti [2019] VCC 1972; DPP v Amerasekera [2019] VCC 1833; R v Tan [2016] VCC 2055 R v Rowe [2017] VCC 1731; DPP v Poon [2019] VCC 1584 ; R v Van Doorn [2016] VCC 1513; R v Kruger [2023] VSCA 149; DPP v Caulfield [2019] VSCA 131; Kelly v R [2021] VSCA 216; Dyason v R [2015] VSCA; R v Myron [2023] VCC 1453: Director of Public Prosecutions v Bulfin [1998] 4 VR 114; R v Verdins [2007] VSCA 102; Bugmy v The Queen [2013] 249 CLR 571.
Sentence: Total effective sentence of 47 months’ imprisonment with a non-parole period of 27 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C. Brydon | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M. Allen | Pica Criminal Lawyers |
HIS HONOUR:
1Kim-Dany Lim, you have pleaded guilty on indictment number N10150655 to eight charges of theft contrary to s 74 of the Crimes Act 1958 (Vic). Each charge carries a maximum penalty of 10 years’ imprisonment.
Circumstances of offending
2The circumstances of your offending are set out in a Summary of Prosecution Opening dated 9 May 2023.[1] Your counsel does not dispute that this is an accurate summary of your offending.
[1] Exhibit A.
3On 11 October 2011, you were employed by Lily Ong as a ‘Personal Assistant and Office Manager’ of her law firm, Lily Ong Solicitors. During your employment, Ms Ong relied heavily on you, to assist her personally and to manage the firm’s business needs.
4As part of your employment, you had access to the firm’s Westpac Bank account. You were also occasionally given access to Ms Ong’s personal accounts held jointly with her husband, Edmond Woo. On or about 4 January 2012, you began transferring money from these accounts into your own personal bank accounts, and joint bank accounts you held with your son and your husband. You concealed these transactions by referencing them on the complainant’s bank statements (and in the business’s MYOB accounting records) as being ‘Bpay’ transactions to various suppliers of the law firm.
5Between 4 January 2012 and 1 December 2012, you conducted 23 unauthorised transfers from Ms Ong’s business and personal accounts to your personal and shared accounts. You transferred a total of $10,008.71 without Ms Ong’s approval. The majority of these transfers were labelled on Ms Ong’s bank statement as ‘super’ payments (Charge 1 – Theft).
6Between 4 January 2013 and 24 December 2013, you conducted 231 unauthorised transfers from Ms Ong’s business and personal accounts to your personal and shared accounts. You transferred a total of $132,281.31 without Ms Ong’s approval. The majority of these transfers were labelled on Ms Ong’s bank statement as ‘Telstra’, ‘Sai Global’, ‘Water’ and ‘Super’ payments (Charge 2 – Theft).
7Between 5 January 2014 and 31 December 2014, you conducted 226 unauthorised transfers from Ms Ong’s business and personal accounts to your personal and shared accounts. You transferred a total of $170,531.67 without Ms Ong’s approval. The majority of these transfers were labelled on Ms Ong’s bank statement as ‘Sai Global’, ‘Telstra’ and ‘Super’ payments (Charge 3 – Theft).
8Between 2 January 2015 and 29 December 2015, you conducted 205 unauthorised transfers from Ms Ong’s business and personal accounts to your personal and shared accounts. You transferred a total of $210,719.16 without Ms Ong’s approval. The majority of these transfers were labelled on Ms Ong’s bank statement as ‘Sai Global’, ‘BPay Payment’ and ‘BT Super/Financial’ payments (Charge 4 – Theft).
9Between 4 January 2016 and 23 December 2016, you conducted 143 unauthorised transfers from Ms Ong’s business and personal accounts to your personal and shared accounts. You transferred a total of $152,666.21 without Ms Ong’s approval. The majority of these transfers were labelled on Ms Ong’s bank statement as ‘Sai Global’, ‘LexisNexis’, ‘VicBar’ and ‘Legal Super’ payments (Charge 5 – Theft).
10Between 9 January 2017 and 28 December 2017, you conducted 163 unauthorised transfers from Ms Ong’s business and personal accounts to your personal and shared accounts. You transferred a total of $161,988.12 without Ms Ong’s approval. The majority of these transfers were labelled on Ms Ong’s bank statement as ‘Sai Global’, ‘LexisNexis’, ‘Telstra’ and ‘Super’ payments (Charge 6 – Theft).
11Between 9 January 2018 and 24 December 2018, you conducted 180 unauthorised transfers from Ms Ong’s business and personal accounts to your personal and shared accounts. You transferred a total of $158,685.02 without Ms Ong’s approval. The majority of these transfers were labelled on Ms Ong’s bank statement as ‘Sai Global’, ‘Telstra’ and various council payments (Charge 7 – Theft).
12Between 10 January 2019 and 26 February 2019, you conducted 26 unauthorised transfers from Ms Ong’s business and personal accounts to your personal and shared accounts. You transferred a total of $18,882.32 without Ms Ong’s approval. The majority of these transfers were labelled on Ms Ong’s bank statement as ‘Sai Global’ and ‘City of Yarra’ payments (Charge 8 – Theft).
13In February 2019, Ms Ong’s law firm merged with another law firm. In May 2019, after having repeated issues with you, Ms Ong began to check the firm’s bank statements which revealed several payments into the same bank account albeit with different payment references. Ms Ong then made a complaint to police in June 2019.
14In total, between 4 January 2012 and 26 February 2019, you conducted 1,197 unauthorised transfers from Ms Ong’s business and personal accounts into your personal and shared accounts totalling $1,015,762.52.
15You were interviewed by police on 21 January 2021. You admitted your offending. Amongst other things, you told the police:
· You transferred funds into your own account under the pretence that it was an invoice;
· The transfers began when it was ‘needed, which turned into greed’;
· You transferred ‘random amounts’;
· The money was used for living expenses, bills, and gambling towards the end; and
· Initially your employment was confined to administrative assistance, however, it then developed into bookkeeping and paying wages, and eventually you became the ‘catcher of all things’.
Objective Gravity of the Offending
16Ms Lim, the charges to which you have pleaded guilty are very serious. Each charge is what is referred to as a ‘rolled up offence’ involving numerous instances of acts of dishonesty. Each of the eight charges carries a maximum penalty of 10 years' imprisonment. I must sentence you having regard to the totality of your criminal conduct as represented by each, and all, of the eight charges. The offences are sometimes referred to in legal circles as ‘white collar crimes’. A feature, most common to that type of offending, is that the offender had a position of trust to commit a defraud on their employer or the company that they work for. It is because of that position of trust that the offender is able to persist with their thieving or fraud without detection. That is certainly the situation here.
17I will refer to the impact of your crimes on the victim in more detail later in these reasons, but it is not in dispute in this case, that you were given great responsibility and trust within this law firm and your offending was a flagrant and gross breach of that trust.
18The responsibilities conferred on you by your employer enabled you to acquire knowledge of the regular expenses of the business, how the accounts would be recorded, and the use of the ‘Myob’ software. Using that knowledge, you were able to disguise your thefts as legitimate expenses of the business. You did that repeatedly, for longer than seven years, and through that process stole an extraordinary amount of money. It was only when Ms Ong’s business merged with another business that your deception was detected.
19It is common that the detection of these crimes is difficult and the ensuing investigation, complex, expensive, and protracted. These features, amongst others, have led the Court of Appeal in this state to comment upon the need for the sentence imposed for such offending to generally deter others from committing like offences. That is, the sentence imposed upon you must send a message to others in such positions of trust, that this type of offending will result in a significant sentence of imprisonment.
20A particular feature of your crime is that the law firm you defrauded was not a multimillion-dollar commercial enterprise, but a relatively small business. Your offending had a devastating effect on this business and your employer, Ms Ong. You must have had an appreciation of the consequences of your crimes throughout the period of your offending.
21The seriousness of your criminality is reflected by the realistic agreement between the parties that the only sentence that can be imposed in this case is one of imprisonment, involving a head sentence and non-parole period. The law states that a period of imprisonment is a sentence of last resort. It should only be imposed when all other sentencing options have been considered and regarded as inappropriate. It is agreed that this is the case here.
22You come before the court as a mature woman with no prior convictions. Nevertheless, the realities of the circumstances of your offending are that there is no other option than to impose a period of imprisonment. The submissions of your counsel have been directed towards the length of that period of imprisonment, in terms of the head sentence, and period you must serve before being eligible for parole.
Victim Impact
23Three victim impact statements were tendered by the prosecution on your plea.[2] It is no understatement to say that your offending has had a devastating impact upon Lily Ong and her husband and daughter. Ms Ong read her statement aloud in court during your plea hearing and it was obvious how much anguish and trauma she suffered as a result of your offending. Ms Ong’s victim impact statement is understandably lengthy and detailed. I have read it carefully but will only recite some parts of it in these reasons.
[2] Exhibits C, D and E.
24Ms Ong feels utterly betrayed by you. It was made clear that the consequences of your offending extend far beyond the very significant amount of money that was stolen. Ms Ong explained that during the course of your offending she struggled to understand why her hard work was not relieving her financial pressures. Her husband had the job of managing the accounts of the business. He was obviously hamstrung in that task because he was basing his reconciliations upon the misleading and false entries that you were creating. Ms Ong states:
During the years of offending, I was continuously angry and upset with my husband and as a result took it out on my children when I was stressed with financial worries and cried and screamed at them that their father was no good and I would be leaving them and him. No matter how much I worked I never seemed to get ahead of the bills that kept mounting up …
I was seeing with eyes of trust where Kim was concerned I never for one moment looked to her as being other than having my best interest at heart as portrayed by her behaviour whenever she was with me… I do feel that for the time of the offending I was like under her spell which makes me now feel quite depressed and sorry for myself and my family.
I feel guilty and nauseous when I think about how my family is so much poorer for having placed trust in Kim… I now find it hard to build a team as I find myself micromanaging and looking at everything through a lens of distrust which means everything takes more time and effort… I have incurred expenses for psychological counselling … I now have home security everywhere in the office. My anger with my husband and children and the deterioration in that relationship was caused by this woman’s dishonesty.
25Ms Ong also feels her most productive years have been wasted. In 2012 she made a significant investment, and purchased a property, only to end up cancelling the contract because she thought she could not afford the repayments on the loan. Now in the knowledge of these thefts, Ms Ong feels, with some justification, that significant financial opportunities to provide for her family have been lost.
26Included with the victim impact statement of Ms Ong is a document compiled by a psychologist, Ms Carla Lechner. Ms Lechner describes the psychological impact of the offending upon Ms Ong. It states that Ms Ong presented with symptoms of PTSD and Major Depressive Disorder as a result of the offending. Her sense of self has been impacted in that she experiences the ‘dissonance of being a successful businesswoman with being a ‘patsy’ in these offences.
27The victim impact of Ms Ong’s daughter Emma Woo also makes plain that the impact of these crimes extended beyond financial consequences. Part of Ms Woo’s statement describes you being taken into the family, ‘like an aunt’, to her and her brother. She states:
The very real impact of Kim’s crime in causing my mum stress impacted me because of the changes in her demeanour … From bearing witness to their fights …I know that Kim acted as a communicative link between my mum’s legal practice and my dad’s accounting practice; a position she exploited…Due to mum’s financial difficulties at work … it was impossible in this time to connect with mum and have a normal mother-daughter relationship. …It is extremely sad just how many years of bonding that my brother and I have missed out on with my mum due to her stress and abstraction , and I reflect now that Kim’s stealing and deception tore at the very fabric of our family relationship…If anything finding out about Kim’s crimes only solidified my mum’s own perception of herself as someone who let us down…I don’t know if the lasting effects of Kim’s betrayal can ever be overcome , and if we can ever fully repair our trust in each other as a family.
28The victim impact statement of Mr Woo also confirms the deep sense of betrayal experienced by this family. He states:
The wedge you placed between my relationship and my wife is shameful…This is a family business …where everyone knows each other, and I thought … cared about each other’s welfare… the impact of her stealing had on my family is tremendous… We were left in a very difficult financial situation … which forced us to sell properties. Kim’s level of stealing – forced us to sell our family home in Albert Park, rental property in Doncaster, and eventually my beloved office at 98 Gertrude St…
Personal Background
29I turn to your personal circumstances.
30Your family background is Cambodian. Your father had been a farmer in Cambodia but was forced to join the Khmer Rouge as a soldier. Your mother worked in the clothing business. Your family fled the Khmer Rouge regime, and in doing so, spent time in a Thai refugee camp. You were born in that refugee camp. You are the youngest of three children. Your family arrived in Australia in October 1981, when you were still an infant.
31Your childhood was marred by family violence. Although your parents separated when you were approximately four or five years old, you have memories of your father visiting your household until you were about seven. He was violent and quick to anger. He would beat you on the legs and bottom with pieces of wire and dunk your head underwater as punishment. You remember him hitting your brother in the head with a frypan. Over time, the contact with your father became more sporadic, and after the age of seven you saw him very little.
32Between the ages of 10 and 13 you were sexually abused by an uncle. This uncle had sponsored your family to come to Australia, and as a result, you felt a sense of obligation to him and did not disclose the offending.
33You left the family home at the young age of 14, initially staying with friends, before moving in with one of your brothers. You managed to complete Year 12 and then completed an Advanced Diploma in business and finance administration at a TAFE college.
34You used your qualifications to obtain employment in various administrative roles in the banking industry. You were in full time employment between 1999 and 2011, before you commenced employment in Ms Ong’s law practice.
35You remain close to your mother and one of your brothers, but you are effectively estranged from your other brother and father. Your mother has in recent years suffered significant health issues, and you have been involved in caring for her.
36You have had a long-term relationship with your husband, whom you married when you were about 18. You have two children, a son aged 22, and a daughter aged 15. Tragically you also gave birth to another son in 2005 who died within 24 hours of being born.
37Your relationship with your husband has been affected by your history of sexual abuse, and these criminal proceedings have caused further strains on your relationship. I was told you are now effectively separated from your husband but have lived together under the one roof. It is unclear if you will ever reunite with your husband.
38Tendered at your plea hearing was a report from forensic psychologist Patrick Newton (and a follow up addendum report),[3] as well as letters from doctors, and other psychologists relating to your mental health. Also tendered were letters from counsellors that have assisted you in respect of problematic gambling and mental health issues,[4] and character references from your friend, your cousin, and your son.[5]
[3] Exhibit 2 & 3.
[4] Exhibits 4 ,5, 6 ,7, 8 and 9.
[5] Exhibits 10 ,11 and 12.
39Mr Newton’s reports are comprehensive in relation to your background, your account to him of the circumstances of your offending, and your mental health issues.
40In outlining your mental health issues Mr Newton has stated that you meet the DSM-5 criteria for a persistent depressive disorder (dysthymia). He states:
A review of Ms Lim’s history indicates that she has suffered depressive mood disturbance since her exposure to family violence and sexual abuse in childhood. Her limited vocational success underscored feelings of inadequacy and insecurity. Ms Lim said that her depressive symptoms had an onset at the time of her mother’s illness in about 2013, and that by the time of her[6] kidney transplant in 2015 they were intense.
[6] That is, her mother’s kidney transplant.
41Under the heading of Personality Adjustment, Mr Newton describes problems you have in relation to ‘dysfunctional personality traits’. He states that as a result of your past history, you had considerable difficulty establishing a secure and stable sense of your own identity. You have internalised a view of yourself as inadequate, defective, and lacking in qualities which would merit acceptance by others. He states:
While these issues are significant and while they intensify Ms Lim’s depression and anxiety, they are not sufficiently intense to meet criteria for a personality disorder. Rather they are noted as prominent features of borderline personality disorder… In Ms Lim’s case, these dysfunctional traits have undermined her emotional adjustment and intensified the effects of her depressive disorder.
42In relation to the circumstances of your offending you told Mr Newton that $150,000 of the money you stole was spent on gambling and the rest was used to sustain your lifestyle and support your family. You stated, ‘I guess my need slowly turned to greed: that’s how I got into this trouble’.
43The other material tendered on your behalf indicates that in May 2019 you sought the assistance of a psychologist Margi Otter, who assessed you as suffering a history of depression in an extremely severe range and referred you for review of anti-depressant medication. Your General Practitioner at the time, Dr Hossain, liaised with Ms Otter, who again referred you for re-assessment some months later in 2019 as you were suffering some side effects from the antidepressant medication you had been prescribed.
44Since being charged with these offences, you have also sought and obtained professional help related to problematic gambling. A letter was tendered from a specialist, Gamblers Help Therapeutic Counsellor, employed by the Banyule Community Health Centre, named Julie Jensen.[7] Ms Jensen details your attendance at numerous telehealth appointments since November 2021. The letter confirms that you undertook psychological testing in late 2021 which indicated severe levels of depression, stress and anxiety, and this led to a subsequent referral to a State- wide Mental Health and Gambling Harm Service, ‘Gambling Minds’ in November 2021. You also attended a Telehealth appointment with a psychiatrist and clinical social worker. Part of the assistance given to you by this agency, was an introduction to Ms Trina Fazio, a Therapeutic Counsellor who attends upon prisoners and may be able to provide you with ongoing counselling while in custody.
[7] Exhibit 7.
45A letter from Ms Kelly Preece, a counsellor also from the Banyule Community Health centre, dated 16 June 2023,[8] confirms that you have attended 15 regular appointments since November 2021 and have worked on strategies of financial management and budgeting. The letter states that you have a proactive attitude to implementing financial strategies to assist in gambling harm recovery.
[8] Exhibit 8.
46The character references tendered on your behalf paint a picture of a person with character traits that are inconsistent with your offending. Mr Eric Lay, a cousin related by marriage, has known you for over 20 years and says he has spoken to you several times about your offending.[9] He describes you as a caring person, always supportive of friends. He states you are ashamed of your conduct and that you have done a lot of charity work, and donated money to overseas agencies supporting orphaned children.
[9] Exhibit 11.
47Your son, Jonathan Lim, now aged 22, writes how he is in his final year of biomedical science, and while he does not in any way condone what you have done, he describes you as always being a hard worker and a reliable and loving mother.[10] He describes you as the glue that held everyone in the family together, and that you took care of everything. He writes that you struggled with the loss of a child, and your history of sexual abuse. He writes that he has witnessed you helping people in need and doing charity work. He says you have taught him to ‘give back to the community where you can, and to help others’.
[10] Exhibit 12.
48The letter from your friend Minh Nguyen also describes you as someone who ‘will be the first to help anyone out’.[11] It describes you performing acts of charity when coming across people in need and describes your offending as ‘completely out of character’. Miss Nguyen says you are ‘guilt riddled’ and that you feel ‘like the worse human being’.
[11] Exhibit 10.
Orders For Compensation
49As a result of your offending the Director of Public Prosecutions (the DPP) have filed an application for compensation, pursuant to s86 of the Sentencing Act 1991 1991 (Vic) (‘Sentencing Act’), in the amount of $974,749.71. That application is not opposed by you. The amount is less than the total amount you stole, but I was informed that after negotiations between the parties it was agreed this was the amount that should be the subject of an order for compensation.
50I was also told during the plea hearing that the DPP had restrained two properties in which you are alleged to have an equitable interest. One of those properties is in Tarneit and is registered in another person’s name. The other property is in Mount Cottrell, and you are the registered proprietor of that property. I was told during the plea that it was expected an amount in excess of $445,000 will be available to compensate Ms Ong from the sale of the property in Tarneit.[12] After the plea hearing the court received a further email from the prosecution indicating that after settlement of the Tarneit property, $544,544.73 has been restrained.[13] It was agreed that no one is making claim in relation to this matter and it will flow to Ms Ong in accordance with the order for compensation.
[12] During the plea hearing the Prosecution tendered an email, Exhibit G, that set out the detail in relation to the value of these properties. It was stated by the Prosecution that in the following week the Court could be provided with the precise amount that would as a result of the settlement of the Tarneit property be provided to Ms Ong.
[13] The email dated 18 September 2023 will be made Exhibit H.
51In relation to the Mount Cottrell property, I was told your mother was claiming to have an interest in that property and until that issue was resolved it was uncertain how much, if any at all, of the proceeds of the sale of that property, will be made available as compensation to Ms Ong.
Factors in mitigation
52The following matters in mitigation were not disputed by the prosecution.
53You have pleaded guilty at an early stage during the pandemic. Your plea expedites the course of justice and entitles you to a significant discount in sentence. As the plea was entered during the difficulties of the pandemic you are entitled to additional utilitarian benefit because your plea relived the backlog of cases in this court. Your imprisonment may at times be more onerous due to some restrictions in gaol imposed to combat the pandemic. Although, recently, that sentencing consideration has moderated. I will, however, take it into account to some extent.[14]
[14] Worboyes v The Queen [2021] VSCA 169.
54The prosecution conceded that there is some evidence of remorse. I find that you are remorseful. Initially during the plea hearing, I queried how frank you had been in your interview with the police, but your counsel took me to answers where it was clear you were making a full and frank confession. I also accept the comments in the references tendered on your behalf relating to this issue.
55The defence submitted, (and it was not disputed by the prosecution), that s 5(2B) of the Sentencing Act allowed the court in the circumstances of this case to regard the forfeiture of the Tarneit property, without you making a claim upon that property, as an indication of your remorse and co-operation. I accept that submission. I must also take into account that there will be, although no doubt from the point of the victim somewhat belatedly, a significant amount of compensation.
56Your counsel also submitted that your difficult upbringing, being your exposure to family violence in your formative years, and subsequent sexual abuse, engaged the application of principles referred to in the High Court Case of Bugmy v The Queen (‘Bugmy’).[15] The prosecution conceded that what was referred to as the ‘general application’ of those principles were engaged. However, the prosecution submitted that the degree to which it might be said that your moral culpability might be reduced as a consequence of applying those principles would be modest in the circumstances of your case. I accept that your deprived background must be considered. You are not to be sentences as if you did not have the disadvantages of that background and I accept to some extent your moral culpability is reduced because of that background. However, it is a modest reduction. Your offending went on for a very long time, in circumstances where on your own admission you were partly motivated by greed. As I have mentioned above, you took advantage of gaining the trust of your employer to deceive her in the most callous way, while no doubt witnessing the family stress that you were causing.
[15] Bugmy v The Queen [2013] 249 CLR 571.
57It is also conceded by the prosecution that given your lack of prior offending and work history your prospects of rehabilitation are reasonable. I accept that this is the case. In reliance upon this finding your counsel has submitted that there should be a greater than normal differential between your head sentence and the period before which you will be eligible for parole. While I accept this submission, and I am persuaded that your prospects of rehabilitation are sound, I am also conscious of the considerations expressed in the case of DPP vBulfin (‘Bulfin’);[16] that the period that you serve before being eligible for parole, should not be so short as to undermine weighty considerations of general deterrence.
[16] Director of Public Prosecutions v Bulfin [1998] 4 VR 114, [131]-[132], cited with approval in R v Kruger [2023] VSCA 149, [48].
58The defence also rely upon the considerable delay between your offending being detected and your case being finalised. A complaint was made to the police in June 2019, and you are now being sentenced in December 2023. It is accepted that during this considerable delay the case has been hanging over your head. It is not in dispute that part of this delay is a result of the complexity of your offending. I was informed that the negotiations relating to the specifics of the charges and analysis of the extensive financial documentation required considerable time. Nevertheless, I accept that part of your punishment has been having this matter hanging over your head for over four years. The knowledge, during that period of delay, that you were ultimately likely to have to serve a gaol sentence must have weighed heavily upon you. I was told that since leaving the employ of Ms Ong you have managed to obtain work with a charity and have not re-offended. I take these matters into account.
59Your counsel also submitted that your mental health issues are likely to make your experience of imprisonment more difficult,[17] thus engaging principle 5 of the
well-known case of R v Verdins (‘Verdins’).[18] The prosecutor conceded that principle was engaged, and I accept your counsel’s submission, and will take your mental health condition into account in this regard.[17] See Paragraph 60 -61 of the report of Patrick Newton dated 15 June 2023 (Exhibit 2).
[18] R v Verdins [2007] VSCA 102, [32].
60There was issue taken between the parties as to whether your mental health condition engaged principles 1-4 and principle 6 as referred to in the case of Verdins.
61Your plea hearing was conducted on 5 September 2023 this year and then adjourned for me to deliver sentence on 27 September 2023.
62When you came back before me on 27 September 2023, your case was adjourned because your counsel brought to my attention claimed deficiencies in your medical treatment while in custody. On 14 November 2023 further submissions were made on your behalf and records were placed before me from Justice Health, accompanied by two affidavits from Jackie Ashmore, the Director of Justice Health. This documentation detailed the medical treatment you had received since being remanded. Your counsel provided helpful written submissions summarising your medical treatment since being remanded. I have carefully read these submissions and reviewed the material upon which they were based.
63When you were taken into custody you brought to the attention of the authorities that you had an eye infection. The records show that in custody you were prescribed two types of eye drops on 6 September 2023. For unexplained reasons, you did not receive those eye drops in a timely fashion. Despite repeated requests from you, it was not until 27 September 2023, that you received one of the two types of eye drops that had been prescribed three weeks earlier. The records indicate you received the second type of eye drops on 4 October 2023. When you appeared before me on 14 November 2023 your counsel indicated that some further medication that had been recommended to treat your eye condition had still not been received.
64The records indicate that your infected eye condition caused you to experience several adverse symptoms such as soreness, blurred vision, discharge, pain behind your right, headaches, and problems opening one of your eyes.
65The second adverse consequence of the deficiencies in your medical treatment in custody related to treatment for your mental health issues. Before you were initially remanded in custody you were receiving a drug named Lexapro for symptoms of depression and anxiety. Justice Health provided you with a generic brand of this drug a few days after going into custody, despite previously being on a daily dose of Lexapro. Unfortunately, the generic brand caused you side effects such as nausea and difficulty sleeping. The records indicate that the medical professionals that saw you within the gaol system recommended you cease taking the generic brand and noted that you should receive Lexapro.[19] As of your appearance before me on 14 November 2023, you still had not received this drug despite the records indicating you had repeatedly submitted official requests for this drug, noting the side effects you were experiencing.[20] I also received supplementary written submission from your counsel that you instructed him that as of 29 November 2023 you had still not received the Lexapro medication, and some eye drop treatment was also still outstanding.[21]
[19] See Note of Dr Vaz on 2 October 2023 ‘Plan Lexapro 10 mg’ JH records p 34.
[20] Sew Medical request form 9 October where Ms Lim noted – ‘No medications since 11 Sept! – severe anxiety’.
[21] Exhibit 15.
66I accept that in the initial period of your imprisonment you have suffered increased symptoms relating to depression and anxiety as a result of less than adequate medical treatment and also problems with your eye condition.
67The documents confirm that while in custody you are on a Mental Health Care Plan which is due for review on 6 December 2023.
68Your counsel pointed out that your experience of these symptoms occurred in the context of your experiencing your first period of custody. You also reported some intimidation from another prisoner. The records indicate that when you reported this intimidation you were moved to another area of the prison and felt ‘safer’.
69Your counsel submitted that as a consequence of the deficiencies in your medical treatment summarised above, your experience of imprisonment has been more burdensome. Further, that the evidence established on the balance of probabilities that your imprisonment will have a gravely adverse effect on your health; therefore, enlivening principle 6 in the well-known case of Verdins. That principle requires the court to moderate the sentence where it is of the view that there is a serious risk that imprisonment will have a significantly adverse impact on the offender’s mental health. It was submitted that this principle should not be regarded in a ‘binary’ way. It was a question of degree and the weight that should be attached to the evidence. As I understood the submission, it was argued that the combination of matters relating to your ongoing medical treatment, was more than likely to cause you a sense of great uncertainty as to your future medical treatment while in custody; thus, the impacts upon your health as a result, are likely to be significantly adverse.
70The prosecutor took no issue with medical records demonstrating that you had suffered an additional burden of imprisonment because of the provision of medical treatment since your remand that had not been adequate. He agreed that your sentence should be moderated on account of this, but that it was a matter of degree, and the moderation should not be great. As referred to above, the prosecutor took issue with principle 6 of Verdins being engaged and submitted that the evidence of your treatment since your remand did not go so far as establishing, on balance, that there was a serious risk of a significant impact upon your mental health in the future.
71I accept the prosecutor’s submission. The deprivation of your liberty by the imposition of a custodial sentence and the punishment you receive as a consequence should not be exacerbated by inadequate and unexplained deficiencies in your medical treatment. The documentation brought to my attention does not reflect well upon the efficiency and professionalism of the medical treatment provided by Justice Health. I will moderate your sentence as a result of the additional hardship you have suffered since being remanded in custody due to these deficiencies. I am able to take account of these matters by reference to principle 5 in Verdins. The evidence of what has happened to you since being remanded has not changed my initial view that principle 6 of Verdins is not engaged.
72In relation to principles 1- 4, while Mr Newton referred to your mental health issues affecting your capacity to think clearly, and fully thinking through the implications of your actions, he also expressed the view that your mental health problems were unlikely to be severe during the period of your offending conduct. After referring to your ongoing ability to fulfill work-related duties both before, during, and after your offending he stated:
Accordingly, the effects of her depressive disorder upon her reasoning, judgment and decision-making – while likely to have been real - are assessed as being most likely to have been in the mild to moderate range of severity relative to other sufferers of clinical mood disorders. To be clear, there is no indication that Ms Lim’s moral reasoning was ever impaired or that she was not capable of understanding the wrongfulness of her conduct.
73I do not regard the evidence of your mental health issues to have a sufficient causal connection with your offending to enliven principle 1 in the case of Verdins. I am also of the view that the evidence of your mental health problems do not engage the principles 2- 4 of Verdins. It cannot be said that your mental health condition makes you an inappropriate vehicle for general deterrence, or significantly affects the application of the principles of specific deterrence or the kind of sentence that should be imposed. That is not to say that your mental health condition is of no relevance; it does to some extent explain, rather than excuse, your offending.
74In relation to principle 6, Mr Newton stated that you would be ‘at elevated risk’ of experiencing deterioration in your mental state in the context of a custodial setting with the result that depressive symptoms would be likely to increase. Although I accept that this may be an unfortunate consequence of your imprisonment, I do not regard this evidence as sufficiently persuasive for me to find on the balance of probabilities that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
Current Sentencing Practices
75Both parties have drawn to my attention comparable cases.[22] I have read these cases and they have provided me with what might be described as a ‘yardstick’ as to the range of sentences imposed for this type of offending. It must be born in mind, however, that such cases are not precedents, and no two cases are the same. In each case it can be said that there are distinguishing features that differentiate the case from the circumstances of your offending and your personal circumstances.
[22] R v Matisi [2017] VCC 797; DPP v Paglianiti [2019] VCC 1972; DPP v Amerasekera [2019] VCC 1833; R v Tan [2016] VCC 2055 R v Rowe [2017] VCC 1731; DPP v Poon [2019] VCC 1584; R v Van Doorn [2016] VCC 1513; R v Kruger [2023] VSCA 149; DPP v Caulfield [2019] VSCA 131; Kelly v R [2021] VSCA 216; Dyason v R [2015] VSCA; R v Myron [2023] VCC 1453.
76The sentence I impose in respect of each charge will take account of the different amounts involved in each charge. However, in my view your offending in the later period of the seven years was, in some respects, more morally culpable; you must by that time have appreciated the impact your offending had already caused, and you persisted with it.
77Ms Lim, the purposes of sentencing are to publicly denounce your criminality, to punish you to an extent that is just in all the circumstances; to deter you and others from committing such crimes; and to protect the community from fraudulent conduct. Those purposes must also be balanced with the purpose of promoting your rehabilitation. The sentence should be no longer than is necessary in balancing these considerations. Having considered all relevant material placed before me and the submissions of the parties, I have determined that you should be sentenced as follows:
78On Charge 1 you are convicted and sentenced to 7 months' imprisonment
79On Charge 2 you are convicted and sentenced to 12 months' imprisonment
80On Charge 3 you are convicted and sentenced to 16 months' imprisonment.
81On Charge 4 you are convicted and sentenced to 20 months' imprisonment.
82On Charge 5 you are convicted and sentenced to 22 months' imprisonment.
83On Charge 6 you are convicted and sentenced to 24 months' imprisonment
84On Charge 7 you are convicted and sentenced to 25 months' imprisonment. This will be the base sentence.
85On Charge 8 you are convicted and sentenced to 12 months' imprisonment.
86I further order that 1 month of the sentence on Charge 1, 3 months of the sentence on Charge 2, 4 months of the sentence on Charge 3, 4, 5, and 6, and 2 months of the sentence imposed on Charge 8, be served cumulatively upon Charge 7 and all other sentences imposed this day. That makes a total effective sentence of 47 months' imprisonment.
87I further order that you serve a minimum of 27 months before being eligible for parole.
88Pursuant to s 18(4) of the Sentencing Act, I declare that the period of 87 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.
89Pursuant to s 6AAA of the Sentencing Act, I declare that had you not pleaded guilty I would have sentenced you to a total effective sentence of 6 years and 4 months' imprisonment with a non- parole period of 4 years and 6 months. There is a degree of artificiality in stating this, as I assume had you pleaded not guilty, there may have been no evidence before me of the likelihood of the victim receiving any compensation.
90I make the order for compensation pursuant to s 86 of the Sentencing Act that you pay Lily Ong the sum of $974,749.71 in the terms as set out in the draft order with the court dated 10 July 2023.
91Have Counsel had an opportunity to check the sentence and are there any matters that I have neglected? Mr Prosecutor?
92MR BRYDON: Nothing from me, Your Honour, no.
93MR ALLEN: Yes, nothing further, Your Honour. As Your Honour pleases.
94HIS HONOUR: All right. Do you need to stay on the link for a time or - - -
95MR ALLEN: I would be grateful for that, Your Honour.
96HIS HONOUR: All right. Ms Lim, I will allow you some time to be on the link for your counsel to have a discussion with you as to the sentence imposed and any consequences that may follow.
97Can I thank the parties for their helpful submissions, and we will adjourn the court.
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