Director of Public Prosecutions v Ngo
[2018] VCC 952
•15 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-01320
| Director of Public Prosecutions | Prosecution |
| v | |
| Tri Duc Ngo | Accused |
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JUDGE: | His Honour Judge M. Bourke | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 March 2018 | |
CASE MAY BE CITED AS: | DPP v Ngo | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 952 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms Harper | |
| For the Accused | Mr Cinar |
HIS HONOUR:
1 Tri Duc Ngo, on this indictment you are to be sentenced respectively for 35 charges and 13 charges of wrongful conversion under s.91(1)(a)(ii) and s.91(1)(a)(i) of the Estate Agents Act. The maximum sentence for both offences is ten years’ imprisonment. You are also to be sentenced for seven charges of, as an agent commissioned to sell, obtaining a beneficial interest in a property; a summary offence under s.55 of that Act. The maximum sentence for that is two years’ imprisonment.
2 You pleaded guilty before me on 8 November 2017. You were interviewed by police on 9 June, 22 to 24 and 30 November 2016. Particularly in the November interviews, you admitted transactions making out the offences. Committal went by hand-up brief in July 2017, after which you entered pleas of guilty. The matter was then listed for a plea hearing in this court.
3 You receive the benefit of your pleas of guilty and cooperation that brief history of the proceeding shows, both from an early time. You have facilitated the interests of justice.
4 At your plea hearing, which ran on 8 and 9 November 2017 and then on 22 February 2018, Ms Harper for the Crown tendered a written Crown opening and the victim impact statements of Ziu Jing Chi and Thi Linh Ma. Ms Harper also provided appellate court cases of similarity or relevance. Mr Cinar for you, tendered the psychological report of Penelope Karvelis dated 7 November 2017, the report of your treating psychiatrist, Dr Matt Gelman, dated 24 October 2017, and a number of letters of character reference. On 9 November, he called Dr Gelman to give evidence on your behalf. Mr Cinar also provided a written outline of submissions.
5 On 9 November, I adjourned the hearing and requested a pre-sentence psychiatric report under s.8 of the Sentencing Act. I received the report of Forensicare psychiatrist, Dr Remy Glowinski, dated 16 February 2018. The plea hearing was resumed and completed on 26 February.
6 The circumstances of your offending are described comprehensively in the tendered Crown opening, which is Exhibit A. My own summary may therefore be relatively short.
7 During the period of your offending, January 2015 to March 2016, you and your wife were licensed real estate agents. Your company, JNT Law Investments, operated under a franchise agreement with LJ Hooker. Your wife effectively ran the business. You operated the accounts. There were, as seems typical, three important accounts; the sales trust account, the rental trust account and the general account.
8 Broadly stated, deposit moneys on property purchases were required to be placed and, until permitted release, remain in the sales trust account. Similarly, rental moneys were placed in the proper or normal course into the rental trust account.
9 During the stated period, you fraudulently converted such moneys in several ways. This is reflected across the range of the 48 indictable charges alleging the two indictable offences.
10 Examples are as follows. (1). Moneys were moved from the sales trust account to the general account and then accessed to your benefit. (2). Moneys were transferred from the sales trust account to another JNT account. (3). Vendors were directed to deposit moneys into the general account, or at least that was brought into effect. (4). Similarly, deposit moneys were directed into another account or accounts. (5). You transferred moneys from the rental trust account into the general account.
11 Moneys so moved were accessed by you and used for what I find to be general lifestyle benefit. That seems to have included clothing and jewellery and your own heavy drug habit. I should say that the whole picture on this seems to me incomplete. Typical of what are called Ponzi schemes, moneys were, of course, used to make good other or earlier fraudulent conversations.
12 The total of moneys converted across the 48 charges is approximately $6.15 million. The effective or actual loss was about 2.3 million. Full compensation of that to victims has been paid by the Victorian Property Fund, established under the Estate Agents Act. I shall make an order that you pay compensation to that fund. The prospects of you doing so I find to be remove.
13 Mr Cinar’s submission document states that you have cooperated in caveats being placed on properties you own or have owned. Those properties have been sold in mortgagee sales, without any funds going to you.
14 The 48 indictable charges are single counts, except for Charge 33 and Charge 42. They are rolled up counts, representing, as to Charge 33, 18 transfers from the rental trust account to the general account; and, as to Charge 42, ten occasions of transfer from the sales trust account to the general account.
15 The summary offences are that you, unknown to vendors, obtained a beneficial interest in properties the business was commissioned to sell. Typically, you utilised employees of the business as purchasers, at least sometimes under other names. Funds obtained in the indictable offences seem to have been used to purchase. Transactions within the business and in between accounts sought to disguise what was happening.
16 In April 2016, Consumer Affairs Victoria were informed that the JNT Sales trust account was significantly overdrawn. An independent auditor reported concerns and there was a vendor complaint to Consumer Affairs. Subsequent examination of JNT business records revealed breaches under the Act; and further investigation led to you being charged with these offences. Your wife has also been charged and awaits trial.
17 The tendered victim impact statements relate to the respective individual offences under Charge 34, Thi Linh Ma, and Charge 37, Ziu Jing Chi. Both are vendors who placed deposit moneys into the general account (Charge 34) and into another ANZ account (Charge 37). These were offences under s.91(1)(a)(i). Both statements evidence financial loss, the cost of delay, frustration and breach of trust.
18 Thi Linh Ma wished to develop the property she thought she had bought. Ziu Jing Chi wished to purchase a house for her mother. For both, there has been stress, anxiety and loss of faith in our systems. There is emotional and not just financial harm. I note that both statements were made in May 2016. I have presumed that this is prior to compensation by the Victorian Property Fund. However, these statements and the offences themselves bring to mind the necessary financial but also personal reliance people place upon the integrity of a commissioned agent.
19 There were many other victims, and one must presume a broadly similar impact upon most if not all. I find that the victim impact of your offending has been considerable and must be taken into account in my sentence of him.
20 You are a 37-year-old man, presently awaiting this sentence in remand custody. You were remanded by me on 27 February. You are married to your co-accused. You have four children, including two stepchildren. The youngest child is three years.
21 You were born in South Vietnam and came to Australia, aged two, as a refugee. Your father was in the South Vietnamese Army and detained in a correctional facility at the time of your birth. The family’s departure from Vietnam was very difficult. In Australia, you went to school until Year 11 at Mazenod College. You had left home at 14, seeing your parents as too strict. You also did not get along with your older brother. Your father drank heavily. He has since stopped because of ill health. Your relationship with your parents has improved in recent years.
22 You lived an itinerate and unstable life until the mid-twenties when you met your wife. You qualified as an estate agent and began your role in the JNT business about two years before this offending. You are religious. Each of the tendered letters of character reference are by your priest or pastor.
23 The plea hearing had strong focus upon the likely interconnected matters of your mental health and drug abuse. You were introduced to cannabis and alcohol in teenage. After a serious motor vehicle accident at 19, which included suffering a closed head injury, you began using heroin. It became an essentially consistent habit between then and your mid-twenties. During this time, you began to use ice amphetamine which became your major substance abuse problem. The relationship with your wife meant that you reformed from drug use. You told Forensicare psychiatrist Dr Glowinski, however, that you returned to using methylamphetamine about two years ago. You were using much, or at least some of the proceeds of this offending, to fund that.
24 Your psychiatric history and diagnoses are best described by the evidence of Dr Gelman and Dr Glowinski. You have reported from teenage and into adulthood incidents and symptoms of self-harm, attempted suicide and mental illness, including depression. Symptoms of psychotic illness seem to have developed or intensified in your early twenties. There is a context of drug abuse to that. You were hospitalised a number of times because of mental illness symptoms in 2003 to 2005.
25 The question of your psychiatric condition and its relevance to this offending raised consideration of the so-called Verdins principles, particularly as to reduced moral culpability and what flows from that. Having considered the relevant evidence heard and tendered, essentially that of the two psychiatrists, I make the following findings.
26 (1) You suffer the condition schizoaffective disorder. That combines psychotic or schizophrenic symptoms together with mood swings; for example, depression.
27 (2) You have suffered that for at least 12 to 15 years with varying severity. As stated, you have not been hospitalised since 2003 to 2005. Your marriage, abstinence from drug abuse for ten or more years and compliance with medication has helped to stabilise you.
28 (3). I accept that some impact of illness has remained throughout; for example, vulnerability to delusional and paranoid thinking.
29 (4). That had some impact upon you at or during the time of offending. In other words, even when not floridly psychotic, the illness has had some general effect upon your judgment and decision-making.
30 (5). However, I prefer the opinion of forensic psychiatrist Dr Glowinski as to the relevant connection of your illness to this offending. He agrees with or accepts the diagnosis of schizoaffective disorder. I quote relevant parts of his concluding opinion and do so at some length.
31 “I agree with Dr Gelman that Mr Ngo’s psychotic condition suggests a degree of genetic or biological disposition. However, in contrast of Dr Gelman’s approach, I think that Mr Ngo’s psychotic illness has been significantly influenced by ice use rather than the opposite direction of causation that Dr Gelman has emphasised.
32 “Mr Ngo provides a clear history that psychotic symptoms commenced in the months after commencing ice use. In a moment of candour during the interview, he acknowledged a substantial impact from ice use on his mental health.
33 “Mr Ngo describes ongoing and intense psychotic symptoms during his ten years of abstinence from ice. However, the history of objectively disturbed behaviours being wholly associated with periods of ice use cannot be ignored. The history provided is that he was functioning much better while abstinent from substances. This is difficult to reconcile with his descriptions of suffering unremitting and severe psychotic symptoms throughout. That he was not taking any psychiatric medications during this time is also difficult to understand, as symptoms and behaviours would be expected to have worsened upon cessation of the medications.
34 “I think that it is not a coincidence that Mr Ngo’s major offending problems have occurred during the times when he was abusing substances…
35 “It appears to me that ice use combined with the likely worsening of his psychotic condition provides some context to the offending and may in combination have caused a decrease in Mr Ngo’s inhibitions and his reasoning capacity.
36 “Mr Ngo describes that psychotic experiences meant that he regarded the offending as being justified. Mr Ngo states that he was not motivated by the prospect of financial gain, although he acknowledges that he would have spent near $300,000 on ice in the corresponding time”.
37 Dr Glowinski then states, significantly, in my view, “I note that some of the offending involved a degree of sophistication and organisation which I would usually consider beyond the capacities of an individual in an acutely psychotic state”.
38 (6). I have not disregarded the opinions of Dr Gelman; but find Dr Glowinski’s position, as it relates to what I must decide, more likely correct. For example, the period of offending, its consistency and the need to manage it in a relatively sophisticated, or at least organisational way, speaks for a much lesser effect of mental illness than can otherwise be. Further, the offending was self-evidently immoral and harmful.
39 Ultimately, I tend to agree with the submission of Ms Harper that, in terms of reduced moral culpability and the consequences of that, the Verdins principles have some but relatively modest impact. There should be some moderation of such sentencing purposes as denunciation and deterrence in accordance with R v Verdins. Your illness is controlled by compliance with medication and abstinence from drug use, as presently appears the case. I find that your illness will make imprisonment more difficult and that there is a risk of its deterioration. You will also suffer the hardship of concern for your young family.
40 Your criminal record filed with the indictment states two prior court appearances, both in early 2001, now 17 years ago and when you were aged 20. For charges of armed robbery and attempted armed robbery, you were detained in a youth training centre for three years. There is a trafficking heroin charge for which you were convicted and fined $500. There is some reference to breaching a community-based order, which is difficult to understand. In any event, I see this prior offending to be of reduced relevance given its age. I find that the prior offending in this case falls away in comparison to the different but very serious nature of the offences for which I must sentence you.
41 Your offending was dishonest, harmful and prolonged. It had some sophistication. It badly breached the trust of people. You were in a licensed, really a privileged position. The advantage was very much in your favour. Although, as stated, your criminal history is not highly relevant, you do not have the benefit of unblemished character. Although there is some moderation of them, sentencing purposes and considerations of deterrence, your moral culpability and the need to condemn what you did remain important. There must be punishment proportionate to your offending. The only appropriate sentence is that of imprisonment of some significant length.
42 I also take into account mitigating or moderating factors which may properly go to reduce that length of sentence. They include the following matters.
43 (1) Your plea of guilty, which, as I have said, assists the interests of justice. You have expressed remorse.
44 (2) Whilst you have criminal history, the tendered evidence of character speaks well of you. Despite your illness, you appear to have functioned well in a number of areas of your life.
45 (3) Your personal history and circumstances. That includes your mental illness in the ways I have stated.
46 (4) Rehabilitation depends upon your capacity to control your illness and particularly, I would say, abstain from drug use. Although guarded, I do not discount the prospects of it. You have ability and capacity to rehabilitate.
47 I have been referred to so-called comparative cases. For example, the case of Brancatella is instructive, particularly as to relevant principles. That offender had the benefit of aspects such as partial but significant repayment, a lesser period and quantum in respect of the offending; and had no prior convictions. I do not attempt a complete comparison and bear in mind the dangers of that. You will be sentenced on the basis of your offending and the factors relevant to it. This was serious offending. The sentencing purpose of general deterrence is very important.
48 Having considered and weighed what I see to be the relevant matters, I sentence you as follows. I have decided that it is appropriate to impose an aggregate sentence under s.9 of the Sentencing Act. Although your crimes offended individually against a large number of people, two of whom made victim impact statements tendered to the court, in many ways they can be seen as a course of conduct with great similarity in mechanisms and purpose. To attempt individual sentences with necessary cumulation would not be feasible, nor, in my view, sensibly reflect your criminality. Stand up, please.
49 On all charges on the indictment and on the summary charges before me, you are sentenced to five years’ imprisonment. I direct a minimum term of three years before eligibility for parole. Under s.18, I declare 16 days of pre-sentence detention. Had you not pleaded guilty, I would have imposed a sentence of seven years with a minimum term of five years.
50 I am going to make an order that you provide a sample of your saliva at a time to be arranged in custody. My reasons are the seriousness of the circumstance of this offending. I see the granting of the order in the public interest. What will happen is that at a time to be arranged, you will be asked to supply a sample of your saliva by putting a cotton swab inside your mouth. If you cooperate in that, that is the end of it. If you do not, a sample of blood may be taken by injection and reasonable force used to do that. I am going to sign the order now.
51 I am also going to sign an order for the payment of compensation. It says here in the sum of $2,128,380.77. I make the order in that amount. Mr Ngo can be taken into custody now.
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