Director of Public Prosecutions v Pang

[2018] VCC 2016

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02137

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEONG PANG

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2018
DATE OF SENTENCE:	30 November 2018
CASE MAY BE CITED AS:	DPP v Pang
MEDIUM NEUTRAL CITATION:	[2018] VCC 2016

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Sentence – plea of guilty – attempt to obtain property by deception – obtain property by deception
Legislation Cited:	Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited:	R vMartin [1994] 74 A Crim R 252; Boulton v The Queen [2014] VSCA 342
Sentence:	Convicted and sentenced to 9 months’ imprisonment and a community correction order for a period of two and a half years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Kenna	Office of Public Prosecutions
For the Accused	Mr C. Hooper	Richard Revill Lawyers

HIS HONOUR: 

1Mr Pang, you can just stay seated, what I am about to say relates to the plea put on your behalf both yesterday and today, most ably, if I might say, by Mr Hooper. There are a number of things that I have to go through, and what I will do is go through those matters, and when I am about to sentence you I will ask you to stand, all right?

2As I have just said, this plea was conducted yesterday, with Ms Mandie appearing on behalf of the Director, and today Mr Kenna.  Mr Hooper, appeared as solicitor from Revill Lawyers on behalf of Mr Pang.

3Jeong Pang is aged 35.  He was 33 at the time of this offending, having been born on the 23rd day of November, 1983.  He is a company manager by occupation.  He is also, as I understand it, an Australian citizen.

4He was married on 15 November 2018, and his wife has been present the last two days.  I had some concern insofar as that that marriage was concerned.  However, Mr Hooper assures the Court, having read the certificate of marriage, that it is a valid marriage.  I therefore indicate clearly that any such concerns are removed from my consideration.

5Insofar as the indictment H11346975 is concerned, Mr Pang pleaded guilty to the three offences therein yesterday.

6Charge 1 occurred in Melbourne on the 15th day of May 2017. It is a charge of attempt to obtain property by deception pursuant to s.81(1) of the Crimes Act, in combination with s.321M, whereby an attempt at such offence brings with it a maximum penalty of imprisonment of five years.

7The full circumstances are that on that day in Melbourne, that is at Crown Casino, he attempted to utilise the $300,000 which had been transferred to the Crown Casino account by him, by way of his false representations, (1) that he was one Lee Zheng, who had a Westpac account; (2) that he was entitled by the use of Mr Zheng's passport, which he presented, to withdraw the sum of $300,000, which request was acceded to by the Westpac Bank and forwarded to the particular bank account conducted by the Crown organisation, for what we commonly call high rollers, but was unable to obtain it. He did attend Crown that afternoon to obtain that money but there was suspicion by Crown, and having read the police summary overnight, it would appear that in fact Westpac were far more diligent than I had given them credit for, and indeed as a result of investigations, ultimately Mr Pang was arrested when he subsequently came along to get that money, having been held off, so to speak, by subterfuge presented by the security at Crown Casino.

8The false representations that I have identified that make up Charge 1 are exactly the same representations that make up Charges 2 and 3. However, in this instance, on the 16th day of May 2017, the crimes were completed. That therefore brings in the maximum penalty for such a crime pursuant to s.81(1) of the Crimes Act, of ten years.

9The second charge was the offence of obtain property by deception, committed at the Westpac branch at Prahran.  Using the same modus operandi and representations as I have identified, he was able to obtain $10,000 from Mr Zheng's account.  That occurred at 10.14AM that morning.

10The third charge, again using the same MO and representations, which were misrepresentations in the sense that they were false and dishonest, achieved the same result at 3.17PM that afternoon at the Docklands Westpac branch, when he obtained $10,000.

11Exhibit A was the prosecution summary, which was accepted by Mr Hooper as the circumstances upon which I am to sentence his client. 

12Mr Pang’s role, accepted in the plea by the prosecution, was that he had acted as a “mule”. The Court was presented, from either party, with no evidence of how Mr Zheng's bank account came to be targeted.

13Secondly of what was the relationship between Mr Pang, who we identify as a mule, and the principals involved and/or Mr Andale, with whom he had stayed at the Fraser Place Hotel in Melbourne from the 11th day of May 2017 through to the day of his arrest, the 15th day of May 2017. The only circumstance I know about Mr Andale is what I was advised in Court yesterday, that he apparently vacated, if that is the word, the State very quickly thereafter, and has not been able to be located since.  I have no knowledge of what attempts have been made to find him.

14Thirdly, I have no evidence whatsoever as to the motivation for this crime.  Mr Hooper puts to the Court that the motivation was gambling debts.  Given that there are in Mr Pang's life no prior offences for dishonesty, it seems to me that such an explanation is feasible.  Albeit that he does have priors for drug possession and possession of drug implements, to connect such as motivation, would be pure speculation, albeit that I think that may well be somewhere in the background.  But as I say, I have no evidence in that regard.

15His gambling, which from the circumstances seems acceptable, is put, of course, as an explanation only.  As has been determined for many years in the Victorian Court of Appeal, in Martin [1994] 74 A Crim R 252, [257], Southwell J, now deceased, said:

"As it seems to me, there is no logical distinction to be drawn so far as evidence of addiction is concerned between the commission of an armed robbery to obtain funds to feed, on the one hand an addiction to heroin, on the other an addiction to gambling.  The same can be said where the offence is not that of armed robbery but a theft in breach of trust.  It seems to me the analogy here is equal.  In the latter type of case at least, it would in my opinion be an unusual case where evidence of addiction to gambling will significantly reduce the importance of the element of general deterrence".

16I find that is the position in law here.  The question of gambling, albeit not fully detailed, is put by way of explanation only, and serves in no way, I find, as a matter which would reduce the primary consideration of general deterrence.

17The criminality executed by Mr Pang can only be described as brazen.  It was planned, directed attack on Mr Zheng's bank account, either in regard to Charge 1 via his Crown account, or successfully in regard to Charges 2 and 3, actually via his bank account.  I suppose we should say in regard to Charge 1 via his bank account and his Crown account.

18As I have said, the Court has no knowledge of why Mr Zheng was targeted, who he is, or how the prisoner was able to target him.  However, clearly, without Pang authorising the use of his photo upon the passport; volunteering to effect the brazen deception by attending at firstly the bank, and then Crown Casino in regard to Charge 1 and subsequently in regard to Charge 2 at both banks, none of these crimes could have been carried out.

19The Westpac Bank was duped in each of the three instances.  Remarkably, the security at Crown had concerns as to Charge 1, and refused payment.  I am not quite certain why.  Someone might have had an intuition.  It may have been because it all happened on the one day, and related to a large amount.  However, after some deliberate dalliance in regard to meeting the request for payment to Mr Pang, of the $300,000 by way of his request for gambling chips in that sum, the Westpac Bank had finally contacted the casino security. These matters came before the Court by way of a document which was tendered on the depositions, being the police statement.  It would appear in fact that, despite my comments yesterday, Westpac were on the job, so to speak, and they found that the passport presented on each occasion not only had the false photo in, which probably no one could have identified - there must have been some similarity in their looks - but in fact was not the correct passport that had been used to initiate the account at Westpac, nor did it bear the right number.

20In those circumstances, one wonders how the tellers honoured the withdrawals.  The process simply must not have been tight enough.  But anyway, honour them they did.

21As result of, as I call it, dalliance by Crown security staff and ultimately advice from Westpac, Mr Pang was detained on the 15th.  One wonders why he was not detained on the 10th.  As to precisely what led to his detention on the 15th I am not sure, but it seems like the intervention of the Westpac security combining with Crown.  At any rate, it led to the fact that despite attempts, the $300,000 was not able to be withdrawn.

22Mr Pang comes before the Court with no dishonesty priors.  He has some aged offences.  It has been put to me that he has not offended since the date of this offending, and I do not see that as remarkable, I must say; that is to be expected of a member of this community.

23The prosecutor seeks a forensic sample order, which I will make, and a compensation order in the sum of $20,000.  I confirm my view that the simple making by this Court of a compensation order in no way mitigates the criminality of Mr Pang in this matter.

24Pre-sentence detention to this date served is 114 days.

25The prosecution accepted that, as I have already said, Mr Pang acted as a mule. They accepted that an order under s.44 by way of a period of imprisonment, plus a CCO was within range. However, the prosecution did not accept the submission put to me by Mr Hooper that insofar as the period of imprisonment served, the period of pre-sentence detention of 114 days, being a sufficient sentence in all the circumstances.

26Given Mr Hooper's submission, I sought a Community Correction report.  I thank that organisation for steps taken to provide that report. That report has been tendered today as Exhibit B, it is dated 29 November 2018.  It finds him suitable for a community correction order.  It notes in the view of Community Corrections the high risk of reoffending given his gambling issue.  Apparently he has had a gambling addiction, according to what was advised to those authorities, for over ten years, which to use their words is still active and a daily occurrence.

27In those circumstances my comments to Mr Hooper yesterday about the chances of rehabilitation are absolutely correct, being that rehabilitation depends totally upon him overcoming such addiction.  He also has an addiction to drugs.  That has not in any way, as I understand it, been put as an explanation to these cimes, but given that addiction, a recommendation has been made that he complete a gambling program, that he complete a program insofar as drug treatment is concerned, and I would also add a psychological program.

28Mr Hooper, in a spirited and forthright submission, which did not alter this afternoon, when he has made a further submission, submitted that a s.44 order should be made, and in the circumstances the pre-sentence detention of 114 days should be deemed by this Court as being sufficient.

29In support of that argument he tendered firstly Exhibit 1, the hospital report.  That explained firstly on 2 August why Mr Pang was not able to attend.  However, there was no actual medical report tendered.  Mr Hooper sought to explain the medical condition to the Court yesterday despite there being no medical report, and I accept that.

30Today as Exhibit 4, has been tendered a medical report from Dr Roland Lee of the Brunswick Central Medical Centre, which notes severe cardiomyopathy, which essentially is a disease of the heart wall for which Mr Pang is under treatment, with the multiple medications which have been identified by way of Exhibit 2.  The doctor says that such complication with the heart wall causes severe shortness of breath, swelling of ankles, and other symptoms not identified, but such as to suggest he has been unfit for work since May of this year.  The doctor also notes that he is to be seen on follow up in hospital later in the month.

31Mr Hooper tendered as Exhibit 2, two pharmacist printouts.  The first was from a nurse who was described as a cardiomyopathy nurse, which really evidenced nothing much except that Mr Pang had failed to attend a number of appointments at that organisation.  And the second aspect of Exhibit 2 was the pharmacist's prescriptions, which were explained by Mr Hooper as being predominately for diabetes, blood pressure and heart and chest pain.

32I accept that a prison sentence in regard to Mr Pang will be, because of his medical condition, more onerous for him, albeit that clearly this Court relies upon the authorities with the appropriate advice given from doctors to attend to any prescriptions and any treatment that a prisoner needs.

33As I said, Mr Hooper also spoke to his submission, Exhibit 3, dated 5 October 2018. He stressed that the plea was made at the earliest opportunity, which I accept. I also accept that the Crown, after a long-term offer made by Mr Pang's legal advisors, accepted such settlement on the 27th day of July 2018.

34I do in this sentence give the appropriate discount to Mr Pang, as to the plea of guilty being an indication of remorse, of assistance to the system of justice, and clearly of utilitarian benefit.

35Insofar as the plea was concerned, albeit in my view a very fortunate settlement, this Court accepts that one sentences in terms of such settlement made between Mr Pang's legal advisors and the Crown, in particular in regard to Charge 1, and I sentence accordingly.

36However, as I said yesterday, in the circumstances, Charge 1 is a high end example of an attempt.  The circumstances show that Mr Pang in fact, through the deceptions, did get the $300,000 extracted from the bank account of the victim.  Such funds were transferred from the victim's account to Crown, and lodged in the Crown high rollers account. It is clear in my view, had the matter not been settled and had it proceeded to trial, the provisions of s.81(2) would have clearly covered the issue as to the obtaining of property.

37However, I make the point, this plea is made on the basis that this is an attempt only, so the point that I make is academic only. It is, however, important in analysing the criminality of the first charge that, as I say, I find this a high end example of an attempt, because you really did not need to do much more to effect the crime.

38I assess in regard to Charge 1 the criminality in the range of between mid to high.

39Insofar as Charge 2 and 3, I accept totally that the amount involved is moderate, and that there are many such crimes that come before this Court of a higher dimension.  However, the maximum penalty prescribed for this offence should not be underestimated, and taking the deceptions involved, and as I have said before, the active role played by Mr Pang, albeit as a mule, there would have been no crime able to be committed without his active and energetic participation.

40I accept that his wife, who he has married since these events, has been here and supporting him.  I accept that his father has supported him, in particular by way of the surety amount.  I accept that he has no priors for dishonesty.

41It is submitted that in his role as a mule, Mr Pang was going to receive the sum of $7,500. There is no evidence against that.  Had he been successful and obtained the full $320,000, one would think he was being under-compensated, but as I say, clearly, for the purposes of this Court, it was being done, albeit as a mule, for a profit motive.  As I say, it could not have been effected without his very active participation and his brazen attendance at both the banks and at Crown.

42I accept as a rational proposition that the background to this, by way of explanation, is his gambling addiction.  It is put to me by Mr Hooper that in fact he was undertaking such criminality to repay gambling debts.  Given what he has subsequently disclosed as to the length of his addiction, clearly he could have found himself in that position.

43One wonders, and I say wonders, what role drugs may well have played.

44It was strongly submitted, and reinforced today by Mr Hooper, that given the personal circumstances, the more onerous conditions that he would have to serve a prison term given his health condition, the principles of Boulton insofar as it describes a Community Correction order, that the 114 days served to date would be sufficient in all the circumstances, when combined with appropriate conditions under a Community Correction order as suggested by Mr Hooper in his submission, such as a work condition, a judicial monitoring condition, and a condition to ban him from gambling haunts, which could clearly by effected, it is submitted by Mr Hooper, by the forwarding of appropriate information to Crown so they would ban him, as they do ban their patrons.

45This Court of course has to balance all of such factors and take into account in particular firstly the maximum penalty prescribed by Parliament in regard to the three offences.  In regard to all offences, in particular Charges 2 and 3, but all offences, general deterrence is important, especially where the background to each of the offences is a sophisticated, planned attack on a person's resources, albeit in Charge 1 unsuccessful, but a successful attack in regard to Charges 2 and 3.

46That criminality, given the maximum penalty prescribed and the need for general deterrence, especially being an attack on the safety of the financial system, warrants appropriate punishment.  Clearly there is a need for specific deterrence, whatever the addiction, and albeit no priors, here is a person in Mr Pang who was able to be persuaded to act in a heinous criminal manner, because of his gambling addiction.  As I say, I have to balance all of those matters against the matters put to me so competently by Mr Hooper yesterday and today.

47Having done that, I might indicate that I do not accept the proposition that 114 days is sufficient imprisonment. I do, however, intend to impose an order under s.44, given the favourable report, Exhibit B, and the concerns expressed therein, and the need for conditions to meet the risks of reoffending, given gambling and drug problems of Mr Pang and the necessity for such programs in order to effect, and help him in, his rehabilitation.

48Such an order under s.44 can be for all offences, and would be for a period of two years, to commence upon Mr Pang's release from prison. There should be a supervision order under s.48E; a treatment and rehabilitation order under s.48D, which would cover gambling, drugs, and some form of psychotherapy.

49It is necessary of course to stress, given where Mr Pang's father lives, that imposition of such a combined order would mean that he could not leave Victoria unless special arrangements were made by the Secretary, once he leaves prison, for him to serve in some way those conditions interstate, I understand from experience that that can be done, but is not done so easily, as I understand.

50Yes, Mr Pang, if you would stand up.

51Pursuant to s.44 of the Sentencing Act, after deducting the 114 days which you have served of pre-sentence detention, I order that you be imprisoned for all offences to an aggregate period of imprisonment, imposed pursuant to s.9 of the Sentencing Act, of nine months.

52In addition, pursuant to s.44, as I have said, once you are released from gaol I order that you begin a community correction order for a period of two-and-a-half years, with the conditions that I have indicated.

53I intend to sign the forensic sample order sought, and the compensation order in the sum of $20,000. 

54In regard to s.6AAA of the Sentencing Act, I must say I struggle with the terms of that section, but it appears from a combination of sub-s.1(b)(ia) and (ib) that one is required to make such an order.  Can I say this, and it is important for you to understand, the sentence I have prescribed to you is in addition to what you have already served, a period of imprisonment of nine months, and
two-and-a-half years community correction order.

55Had you not pleaded guilty, doing as best as I can to adhere to the request of Parliament, I indicate to you that I would have sentenced you to a period of imprisonment of three years with a minimum period of two.

56Hence, the further nine months that you have to serve in addition to the approximate three months that you have already served, indicates the difference that you have achieved by pleading guilty.

57Mr Hooper, sorry, are there any other matters I need to attend to?

58MR HOOPER:  No, Your Honour.

59HIS HONOUR:  Mr Kenna?

60MR KENNA:  No, Your Honour.

61HIS HONOUR:  Have I signed everything necessary?  Yes, take a seat, Mr Pang.  I am happy, given the language issue, Mr Hooper, if you want to just go and explain, because we have got to get the order signed.

62MR HOOPER:  If I could, Your Honour?

63HIS HONOUR:  So specifically, it is important to explain that it is after the deduction of PSD, that is a further nine months.

64MR HOOPER:  Nine months from today, that's right.

65HIS HONOUR: So it is exactly in the terms of s.44.

66MR HOOPER:  Yes.

67HIS HONOUR:  I think, Mr Kenna, the way to do it is simply not - the pre-sentence detention I have taken into account is, I have to declare pre-sentence detention is 114 days.

68MR KENNA:  Correct.

69HIS HONOUR:  But it is not to be deducted.

70MR KENNA:  Correct.

71HIS HONOUR: The sentence must read, sentenced to a period of nine months, as in s.44, after deduction of the pre-sentence detention. So it is not to be deducted administratively. There must be, is there a 44 order?

72MR HOOPER:  As I understand it, Your Honour, sorry, I might just hand this back to your associate, if I might approach?

73HIS HONOUR:  Yes.

74MR HOOPER:  In terms of the way the order is structured, I don't see an issue with it.

75HIS HONOUR:  The issue is this, to make sure that down below understands.

76MR HOOPER:  Yes.

77HIS HONOUR:  We do not want a situation where - see, as it was framed, it was just the normal, sorry, the PSD is to be deemed as part of this sentence and is to be deducted administratively.  Well, it is not.

78MR HOOPER:  Yes.

79HIS HONOUR:  Because this sentence is, in terms of 44, after deduction of the PSD.

80MR HOOPER:  As I understand ‑ ‑ ‑

81HIS HONOUR:  I am not sentencing to imprisonment of nine months plus 118 days, I am sentencing him to nine months after deduction of the PSD.

82MR HOOPER:  Yes, so the effective sentence is ‑ ‑ ‑

83HIS HONOUR:  Another nine months from today.

84MR HOOPER:  Yes, I understand that.  So the effective sentence ‑ ‑ ‑

85HIS HONOUR:  But it is a question of making sure it is right here, on the order, because we do not want any mistakes down below.

86MR HOOPER:  As I understand, the effective sentence is just shy of 13 months if you don't deduct ‑ ‑ ‑

87HIS HONOUR:  No.  Well, I do not declare it as an effective sentence.

88MR HOOPER:  No, but the consequence of the order, as I understand Your Honour's intention, is essentially a 13 months.

89HIS HONOUR:  Yes, essentially 12 months or 13 months, yes.

90MR HOOPER:  A 13 month term of imprisonment.  And from that, that includes the 114.

91HIS HONOUR:  No, but you do not do it that way.  You do it under 44 as it says. 

92MR HOOPER:  No, I understand what Your Honour's saying.

93HIS HONOUR:  No, no.  Just so it is ‑ ‑ ‑

94MR HOOPER:  We're on the same page.  I'm just saying, the consequence of your sentence is, the total time he'll serve is just under 13 months.

95HIS HONOUR:  Is nine months from today plus what he has already done.

96MR HOOPER:  Yes, which is just under 13 months.

97HIS HONOUR:  Yes.

98MR HOOPER:  Yes, I understand Your Honour's intention.  It'll just have to be worded ‑ ‑ ‑

99HIS HONOUR:  So I think you just declare the, as you do in the normal way, but do not do anything else about administratively, effective sentence of nine months, direct that the period of 114 days already served is not to be deducted administratively.  The sentence of nine months is to commence from the date of sentence.  I think that is clear enough, isn't it?

100MR HOOPER:  I think that's clear, Your Honour.

101HIS HONOUR:  So everything is signed?  Yes, Mr Pang, good luck.  We do not want you getting into trouble any more.  You have got a new wife to come out to.  I do not want any more trouble.  You have got to get rid of the gambling problem.  Look what it has done to you.  It is a tragedy.  Yes.

102MR HOOPER:  As Your Honour pleases.

103HIS HONOUR:  Take the prisoner.

104MR HOOPER:  As Your Honour pleases.

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