Director of Public Prosecutions v Mak
[2020] VCC 1233
•13 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-02505
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOMENIC MAK |
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| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 03 August 2020 |
| DATE OF SENTENCE: | 13 August 2020 |
| CASE MAY BE CITED AS: | DPP v Mak |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1233 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic | |
| For the Accused | Mr P Dunn QC |
HIS HONOUR:
1Domenic Sheung Mak, you have pleaded guilty to 5 charges of obtaining financial advantage by deception
2You were working for a law firm as a paralegal in its property law team. You are fluent in Mandarin and Cantonese and you dealt with Chinese clients in relation to their property transactions.
3Between 10 September 2018 and 30 May 2019, in 5 transactions you dishonestly obtained credits to your bank account totalling $1,919,266.84, by falsely representing, in 3 instances, a client had authorised a transfer of funds to you, and, in 2 instances, by falsely representing to a client your bank account details were the details of the firm’s trust account.
4Persons who abuse a position of high trust, in the manner you did, must expect to be imprisoned.
5It was common ground, because of the seriousness of your offending, I must impose a sentence of imprisonment, with a non-parole period.
6The central thrust of the plea, put on your behalf by Mr Dunn QC, was, for a range of reasons, I should impose a shorter than usual non-parole period. I accept that submission.
7For reasons I am about to explain, I will impose upon you a total effective sentence of 4 years imprisonment and fix a non-parole period of 2 years.
8The circumstances of your offending are set out in the agreed summary of prosecution opening [exhibit A].
Charge 1 – Australian Xing Four
9On 6 September 2018 you created a false request for payment of $191,307.85 from a client’s trust funds, ostensibly for a refund to a client, to your bank account. You fabricated an email chain, in Mandarin, which purported to contain the client’s authorisation for the transaction. On 10 September 2018 the office administrator transferred the money to your account.
Charge 2 - Australian Xing Four
10On 17 September 2018 you created another false request for payment of $183,677.17, ostensibly for the release of a deposit to the client, to your bank account. Again, you fabricated an email chain which purported to contain the client’s authorisation. On 19 September 2018 the office administrator transferred the money to your account.
Charge 3 – Z & L Family Trust
11On 4 October 2018 you created another false request for payment of $1,029,881.82, ostensibly for transfer of funds back to the client, to another bank account controlled by you. Because of the very large sum, the office administrator asked you to call the client to confirm the transfer and account details. You pretended to make the call and created a false file note purporting to confirm the client’s request for the transfer. The firm’s principal, Mr Nevile, asked you to make a video call with the client to confirm the transfer. On
|11 October 2018 you made the call, in the office administrator’s presence. After you spoke with the client, in Mandarin, you falsely told the office administrator the client had confirmed the request. On 12 October 2018 the money was paid to your account.Charge 4 – L & L Property Holdings (Liu)
12In April 2019 you asked the client to pay $4400 for fees to set up a company. You gave him, your bank account details, not your employer’s bank account details, for payment. On 23 April 2019 the client transferred the money to your account.
Charge 5 - L & L Property Holdings (Liu)
13On 30 May 2019 you emailed the same client the number for an account which you described as the firm’s trust account for payment of $510,000 for payment for a deposit for the purchase of a farm. Again, you dishonestly gave the client your bank account details and, on the same day, the client transferred the deposit to your account.
14On 19 July 2019 you resigned your employment.
15Three days later, when the farm purchase did not proceed, Mr Liu, asked for the return of the deposit. You told him payment would be delayed for several days because of an accounting issue. On 23 August 2019 you told his wife you had invested money and needed 2 to 3 months to get it back. The client contacted the firm and you met with the principal on 24 August 2019. You admitted you had taken the money paid by the client but denied any other dishonesty. You said you used the money to buy shares and would immediately sell them to refund the client’s money in full.
16The next day, you surrendered yourself to police at Box Hill before any report had been made to them.
17Subsequently, you voluntarily agreed to be interviewed. Before you attended the police station for questioning, you provided police with statement, which confessed your offending, and also an apology. You provided police additionally with your bank statements and a spreadsheet which traced the funds you misappropriated.
18You explained:
·in late June 2018, you started investing in contracts for difference (CFD) trading on the “Plus 500” trading platform. When you lost your personal savings, you misappropriated the clients’ funds in the hope you could trade profitably to recoup your losses and return their funds undetected.
·between 1 September and 18 September 2018, of the $191,307.85 you misappropriated (charge 1), you spent $898.55 of the client’s money on personal expenses and lost the remainder in CFD trading.
·between 20 September and 14 November 2018, of the $183,677.17 you misappropriated (charge 2) you spent $10,262.34 on personal expenses and lost the remainder in CFD trading.
·you used the sum of $1,029,881.82 misappropriated (charge 3) to purchase shares in a medical research company. You lost $531,055.59 on the share price. You sold parcels of these shares to return $191,307.84 (charge 1) and $183,667.17 (charge 2) to the client concerned and spent $123,041.04 on personal expenses and to repay personal debts.
·In June 2019 you spent $16,236.44 of the $510,000 (charge 5) which you had misappropriated, on personal expenses, and the remainder to purchase shares in a lithium mining company. The share price dropped significantly after your purchase.
·After you met with the principal of your law firm, you repaid the Mr Liu (charges 4 and 5) $29,144.11 by cash transfer and you liquidated shares in the sum of $119,729.56 which also was repaid to the client.
19At interview, you made full admissions to your offending.
20You said,
·when you married 2017 you borrowed $30,000 to pay for the wedding,
·your wife and you were under family pressure to buy your own home; you had some savings and you decided to trade on the CFD platform to try to make a lot of money quickly,
·in June 2018 you started training on Plus 500 and soon lost your savings of about $65,000,
·in September 2018 you made your 1st misappropriation of a client’s funds which you traded to try to recuperate your losses,
·when you lost most of those monies you made the 2nd misappropriation,
·when you lost those monies you misappropriated further funds which you purchase shares and when the share price dropped you misappropriated funds again.
21You admitted
· you exploited your clients’ trust, and
· you created false email chains to conceal your dishonesty
22You also admitted you used “quite a bit” of the misappropriated funds on travelling and entertainment.
23You apologised to the firm’s principal and the other staff who were affected by your actions.
24After questioning, you were charged and released on bail.
25At the 1st committal mention you pleaded guilty.
26You have no criminal record.
Personal Circumstances
27Your personal circumstances are set out in the psychological report of Paul Grech who assessed you on 22 June 2020.
28You were born on 14 October 1991 in Hong Kong. You were 26 and 27 years old when you offended. You are now 28.
29You have one sibling, a younger brother.
30In Hong Kong, your father, who had studied journalism in Melbourne, established his own printing and design business. Your mother worked in retail and administration and then as a carer in aged care. Your paternal grandmother was your primary caregiver. You attended local schools until you were 8 years old. In 1999, when your father’s business failed, your parents brought your brother and you to Melbourne.
31You lived, with your family, at Glen Waverley where you attended Glen Waverley primary school and then Highvale secondary College. After you successfully completed your VCE you enrolled in commerce and law at Deakin University. When your father died, in 2012, your studies were disrupted. In 2013, after you had had 2 part-time jobs as a law clerk, Nevile & Co, employed you as a paralegal.
32You married your wife on 6 May 2017.
33You have been a youth group leader at your church and a volunteer for Chinese gambling concern Inc.
34You told Dr Grech, when your father died, as the oldest male, you felt the need to provide financially for your family. When you married, you borrowed the money to pay for the wedding and your wife and you moved into a rented apartment. Almost immediately your mother and your wife's family were pressuring you to buy your own home. You said you started trading on a CFD platform “with the hope of making a lot of money within a short period of time” to repay the personal loan and fast track savings for a house deposit. You misappropriated your two clients’ monies in September and October 2018 in the hope you could trade to recover your losses. And when you failed, you did the same again in April and May 2019.
35You said, when you resigned your employment, you expected your offending would be detected. When it was, you met Mr Nevile at his office and you admitted you had misappropriated Mr Liu’s monies (charges 4 and 5).
36You said, when Mr Nevile asked you whether it was an isolated event, you were too scared to tell the truth. Next evening you confessed to your wife and decided to hand yourself into authorities. You said when you went to the police station you told police what you had done and gave them Mr Nevile’s phone number. He told police he would prefer to keep the matter a civil dispute for the present. Police told you, as they had no grounds to arrest you, to go home. In September, when a detective called you, you prepared a chronology and a spreadsheet detailing your offending, to assist the police investigation.
37You told Dr Grech, when you left Nevile and Co, you got work with a property group and, after Mr Nevile confronted you, you resigned but your new employer had a change of heart and reemployed you. You said, at the end of 2019, your wife and you moved back to your family home. You continued working, your wife continued working, and the 2 of you have attended the church young couples’ group for counselling.
38You have also had weekly therapy sessions with Dr Grech at his recommendation.
39You told Dr Grech you have feelings of sadness, loss of pleasure, and a sense of past failure and guilt. You have difficulty sleeping.
40Your wife wrote a very impressive letter to the court. She described you as a “positive, cheerful, caring, loving and compassionate young man”. She said you are “hard-working, knowledgeable and intelligent”. On 25 August 2019, before the two of you went to bed, you confessed your crimes to her. She described you are being “terribly upset and distressed”. She was “shell-shocked”. She hadn’t seen any change to your lifestyle. You had not purchased any luxury items. She said you don’t party, you don’t drink alcohol, you don’t smoke or pursue luxury brands. She said you rarely purchase anything for yourself and, when you are not working, you stay home to help around the house or to serve in your church.
41She talked through it with you and you prayed together. You told her you wanted to hand yourself into police. And she said, around 1 am, the 2 of you went to the Box Hill police station, where you turned yourself in. The police sent your home as there was no report against you.
42In searching for an explanation as to why you offended in a way so remarkably out of character, she wrote that she saw you feel the burden of responsibility to achieve financial security for your widowed mother, after your father died, and succumbed to pressures, from your family and hers, to buy your own home.
43She wrote that she will stick by you.
44Your younger brother also provided a letter to the court. He wrote, growing up, the two of you were never encouraged to express your personal feelings and left to solve your problems on your own. He confirmed your father’s death caused a major shift in the family dynamics. Your mother had been financially dependent on your father and you were expected to become “the man of the house”. Like your wife, he thinks the heavy weight of responsibility to become financially independent, and to provide for the family, lead to your offending.
45He described you as his “role model”; selfless and generous. He said you have always actively contributed to your community; volunteering for antigambling organisations and taken on various leadership roles at your church.
46Like your wife, he confirmed you are remorseful and “want to atone for your transgression”.
47The CEO of your current employer, Brett Serratore, provided a reference for you. On 22 July 2019 he employed you as a client relationship manager. On 27 August 2019 he accepted your resignation when you confessed your crimes. He wrote ‘after much reflection’, he offered to re-employ you because he regarded you as a trusted and valued employee who, he believed, deserved “a 2nd chance”. You have told him you are sorry for your actions and ashamed for the embarrassment you have brought your family. He said you have accepted responsibility for your misconduct, seeing a psychologist for counselling, and, recently, setting up a fortnightly pay deduction for restitution to the victims of your offending.
48In the expectation you would be imprisoned for your crimes you left your employment in the days prior to your arraignment. Significantly, Mr Serratore is willing to re-employ you upon your release from prison.
49For the last year, in your role, which is to facilitate property transactions for international buyers, you have worked closely with Kokoda’s lawyer, Lynn Ng. She wrote you are very good at your job and well liked. She has spoken to you at length about your offending. According to her, you genuinely regret your wrongdoing and are doing your best to atone for it and to rehabilitate yourself. And, your offending notwithstanding, she described you as “reliable, trustworthy, organised and dedicated.”
Apology
50You wrote a powerful letter of apology, addressed to Mr Nevile and others at his firm, and your clients.
51You acknowledged yours was a gross betrayal of their trust. You wrote you are truly sorry for the harm you have caused and, to show you accept responsibility for your actions and are trying to redeem yourself, you surrendered to police and gave them a full account of your offending with supporting documents.
52You wrote, when you offended, you ignored your conscience by “covering your ears while stealing the bell”, a Chinese idiom which means, burying your head in the sand. In your letter, you acknowledged your psychological struggles which you have sought to address through professional and religious counselling so you will never offend again. You wrote you recently entered into a payment arrangement of 35% of your net salary, approximately $1500 a month, to make restitution.
53You wrote, “I am truly remorseful for what I have done. I also understand that my crimes must not go unpunished. I am fully prepared to account for my actions and accept just punishment for my crimes. I have let down people who trusted me, supported me and loved me… I… apologise to those who I have hurt… I do hope that one day I will be able to make it up to them.”
Grech’s opinions
54Dr Grech assessed you as “suffering from disturbed adjustment, unresolved grief and reactive depression following (your) father’s passing, which, when combined with overwhelming financial pressures and cultural expectations, was contextual to blurred judgement and decision-making (when you offended).” He described you as “deeply regretful, remorseful and insightful in relation to (your) criminal activities”.
55He continued, “(Your) self-reporting of (your) actions is an indication that (you have) a moral compass and genuine remorse. There are no substance abuse issues. (Your) employment prospects [when at freedom] are outstanding and (you have) a high level of determination to recompense (your) employer and those who have been harmed by (your) offending”.
56You accepted Dr Grech’s recommendation for weekly therapy; he described you as “a model patient”.
57Taking these matters into account, he considers your risk of reoffending is “very low”.
58In his opinion, as a “young, slightly built, intelligent but impressionable young man without any criminal connections or drug use history”, in prison, you will be a very soft target for bullying and intimidation and the risk of physical harm to you is very high. Additionally, the COVID crisis will exacerbate your isolation.
59I accept his opinions, which were not challenged.
Defence submissions
Offending
60Mr Dunn QC submitted you made “serious and immature errors of judgment”. He conceded yours was a serious breach of your employer’s and your clients' trust, which was attended by a degree of sophistication.
61He submitted your motivation was to recoup your CFD trading losses and to make money for a house deposit for your wife and yourself, in the context of the loss of your father in your early in your adult life, and the cultural imperative for the oldest male child to take financial responsibility for his family.
62He submitted, in assessing your moral culpability, I should take into account:
63You felt considerable cultural pressure, when you offended,
64You ceased your offending, before you were detected, and
65You left your employment but remained in the jurisdiction, knowing your offending would be detected.
66He conceded I must impose an immediate prison sentence with a non-parole period.
Mitigating factors
67In mitigation of penalty, he relied on the following factors:
1 your guilty plea, made at the earliest opportunity;
2 your voluntary confession to -
(a) your client (charges 4 and 5),
(b) your employer when you admitted misappropriation of Mr Liu’s monies (charges 4 and 5) and
(c) police to whom you made full admissions;
3A Doran discount for your disclosure of the details of your spending of the misappropriated funds, information which was otherwise not known to police;
4 your remorse;
5 your prior good character;
6 your relative youth – age 26 and 27 when you offended;
7 additional hardship of imprisonment as a1st time prisoner;
8 your untreated, until recently, depression and anxiety;
9 your excellent prospects of rehabilitation;
10 your efforts to make restitution;
11the impact of COVID-19 for its increased isolation and restrictions on your confinement.
68He submitted, taking into account your compelling mitigating factors, I should fix a shorter than usual non-parole period, to give you the opportunity to continue your rehabilitation under supervision in the community.
Prosecution Submissions
69Ms Malobabic, who appeared for the prosecution, also submitted the court should impose a sentence of imprisonment involving a head sentence and non-parole period.
70She submitted your offending was premeditated, calculated and systematic and, in relation to charge 3, brazen.
71Referring me to Christopher Koch v The Queen [2011] VSCA 453, she submitted, taking into account the period of your offending, the substantial sums misappropriated and the serious breach of your employer’s, and your clients’ trust, the gravity of your offending is in the high range.
72Referring me to DPP v Bulfin [1998] 4 VR 114, she submitted, for crimes of this type, general deterrence and denunciation are particularly significant.
73She acknowledged, by your cooperation with authorities, and your early guilty plea, you accepted responsibility for your conduct. She accepted, the seriousness of your offending notwithstanding, your prior good character is nevertheless some mitigating factor and that your prospects of rehabilitation are positive. She also accepted the public health emergency is causing additional stress and concern for prisoners and their families as it is for every member of the community (Brown v The Queen [2020] VSCA 60 at [48]).
74Helpfully, she referred me to 4 appellate decisions concerning misappropriation of funds in breach of an employer’s trust. The sentences imposed ranged from 2 years and 6 months (as a result of a successful Director’s appeal) to 5 years and 9 months.
Analysis
Maximum penalty
75The maximum penalty for obtaining property by deception is 10 years imprisonment. In your case, charges 1, 2, 3 and 5 are continuing criminal enterprise offences as the value of the financial advantage obtained is $50,000 or more. An offender who is found guilty of 3 or more continuing criminal enterprise offences is a continuing criminal enterprise offender and liable, for a continuing criminal enterprise offence, to twice the length of the maximum term of imprisonment prescribed. You are therefore liable to a maximum term of imprisonment of 20 years for each of the 4 continuing criminal enterprise offences.
76I must have regard to the increased maximum penalty in sentencing you. However, it is but one sentencing factor, and does not require an automatic increase. The prosecution did not submit otherwise in your case.
Gravity of your offending
77Over an 8½ month period, in two episodes, you misappropriated $1,919,266.84 from 3 clients,
78$524,598.84 was repaid to 2 clients,
79Using part of the monies you misappropriated from Z and L family trust (charge 3)
·to repay $375,725.17 to Australia Xing 4 (charges 1 and 2). and
·to make a cash payment of $29,144.11 and another payment of $119,729.56, from the sale of shares, to Mr & Mrs Liu (charges 4 and 5).
80On your own disclosure, you spent $150,438.37 on personal expenses and to pay personal debts.
81And you lost $1,244,229.63 of client funds on CFD trading and share purchases.
82The amounts you misappropriated were substantial.
83As a paralegal, you enjoyed a high degree of trust in the handling of large sums clients’ monies. Your offending was a serious breach of the trust of your employer and 3 of his clients, who relied on you to act honestly.
84It was also sophisticated. You created false emails to try to conceal your dishonesty and, your offending in relation to charge 3, by the pretence you maintained when the transaction was queried, was particularly brazen.
85I find the objective gravity of your offending was high.
Mitigating factors
86I accept you are genuinely remorseful.
87I also accept you have shown a real understanding of the wrongfulness and the impact of your misconduct:
·by your admission to your employer when confronted with the allegation you had misappropriated Mr Liu’s funds (in that regard, I accept your explanation you initially felt too scared to disclose your additional dishonest misconduct which was not then known),
·by your cooperation with authorities -
owhen you handed yourself in to police
owhen you fully confessed your involvement to them and
odisclosed details, known only to you, of your misappropriation of clients’ funds; and
·by making your apology to your employer and his clients and making efforts to compensate them.
88And, on over the last 12 months:
·by working diligently to remain employed,
·by continuing to participate in the life of your church, and
·by undertaking counselling to address your psychological struggles.
89I accept you have excellent prospects of rehabilitation and are very unlikely to reoffend.
90I also accept prison will be harder for you because,
·as a relatively young and impressionable first-time prisoner, of otherwise good character, you will be vulnerable to intimidation and physical harm; and
·you will suffer greater isolation and anxiety due to the Coronavirus pandemic.
91I have moderated the individual terms of imprisonment, the total effective sentence and non-parole period to take account of these factors.
92In particular, I find you are entitled to a substantial and demonstrable discount your sentence for your genuine remorse and the disclosure of the detail of the misappropriation of your clients’ funds.
93In Christopher Phillips v The Queen [2012] VSCA 140, Harper JA said, at [101]:
“(Genuine) Remorse… indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy – in the form of a very substantial reduction in what would otherwise be an appropriate sentence – is very likely due.”
94In R v Shane Doran [2005] VSCA 271, Buchanan JA explained the effect of an offender providing the prosecution with evidence which assists to convict him. At [14], his Honour said,
“In my view, the consequences… are they reduce the need for a sentence to personally deter the appellant, they increase the prospects of the successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in any sentence in order to encourage others to make like admissions.”
Totality
95Looking at the totality of your criminal behaviour, and considering the appropriate sentence for all of the offences, I have determined to order partial accumulation of several charges to ensure your total sentence is not excessive.
Comparable cases
96I have had regard to the 4 appellate decisions referred to in the prosecution submissions, and following the additional cases, which concerned the defalcations of 3 solicitors and a conveyancer, namely:
·R v David Tansey [2012] VSC 221 per Almond J;
·R v Michael Kesic [2006] VSC 493 per Coldrey J;
·Dankovic v The Queen [2012] VSCA 255, and
·DPP v Kim Blackberry [2019] VSCA 269.
where sentences ranged between 2 years and 4 years imprisonment were imposed.
Longer than usual parole period
97The purpose of fixing a non-parole period is to provide for mitigation of the punishment of an offender in favour of his or her rehabilitation through conditional freedom: R v VZ (1998) 7 VR 693, 697 (13), per Callaway JA
98Because, in my view, you are very unlikely to reoffend, and, because I accept your rehabilitation is well advanced through your
·demonstrated remorse;
·acceptance of responsibility for your actions;
·your successful re-employment; and
·your efforts to address your underlying psychological issues through counselling.
99I have decided it is appropriate to impose a shorter non-parole period than usual.
100Mr Mak, by this sentence, I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must also look to the protection of the community and as well your rehabilitation.
101Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:
102On charge 3 – you are convicted and sentenced to 3 years imprisonment. This is your base sentence.
103On charge 1 – you are convicted and sentenced to 2 years imprisonment. I direct 6 months of the sentence be served cumulatively upon your base sentence and with all other sentences I impose.
104On charge 2 – you are convicted and sentenced to 2 years imprisonment which is to be served concurrently with all other sentences imposed.
105On charge 4 – you are convicted and sentenced to 6 months imprisonment which is to be served concurrently with all other sentences imposed.
106On charge 5 you are convicted and sentenced to 2 years and 3 months imprisonment. I direct 6 months of the sentence be served cumulatively on your base sentences and all other sentences I impose.
107Your total effective sentence 4 years imprisonment. I fix a minimum non-parole period of 2 years.
108I declare you have already served 10 days imprisonment by way of presentence detention.
109And I declare, but for your plea of guilty I would have sentenced you to 6 years and 6 months imprisonment with a non-parole period of 3 years and 9 months.
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