Director of Public Prosecutions v Poon
[2019] VCC 1584
•26 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-18-00791
Indictment No. H13289902
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BETTY PO WAN POON |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2019 | |
DATE OF SENTENCE: | 26 September 2019 | |
CASE MAY BE CITED AS: | DPP v Poon | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1584 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – eight charges of theft contrary to s74(1) of the Crimes Act 1958 – three charges of making a false document contrary to s83A(1) of the Crimes Act 1958 – plea of guilty
Legislation Cited: Crimes Act 1958, s74(1), s83A(1); Sentencing Act 1991
Sentence: Total effective sentence of four years and nine months' imprisonment with a non-parole period of three years' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Hamill Ms K. McGregor (sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M. Page Ms C. Hart (sentence) | Stary Norton Halphen |
HIS HONOUR:
1 Betty Poon, on 12 September 2019, you pleaded guilty to an indictment containing 11 charges, being: eight charges of theft (Charges 1 to 8) and three charges of making a false document (Charges 9 to 11). Of the theft charges, all, save Charges 7 and 8, are continuing criminal enterprise offences.
2 The maximum penalty for Charges 7 to 11 is 10 years' imprisonment, while the maximum penalty for Charges 1 to 6 is 20 years' imprisonment, as they are continuing criminal enterprise offences.
3
Tendered as Exhibit A and read aloud in court was the prosecution opening on plea. In summary form, you stole more than $1m from your employer over a period of almost three years, ending in November 2017. In addition, you also falsified a number of documents in an attempt to conceal your thefts. You were employed by the victim company, Aurora Funds Management Ltd (AFML') in May 2013 as that company's chief financial officer. You were paid a salary of $160,000 per annum and received bonuses from time to time, including a bonus of $45,000 in February 2015, and a retention bonus of $40,000 in
March 2017, after change of ownership of AFML.
4 AFML is an alternative asset manager, and as at November 2017, had approximately $45m in funds under management. I will not go through the corporate structure of AFML or the changes in that structure as a result of its sale whilst you were employed by them. Suffice it to say, in your capacity as the chief financial officer of the company, you were responsible for the financial and taxation functions of AFML, working with external auditors and tax consultants. You were also responsible for attending to all company secretarial matters in relation to the various Aurora funds. In the normal course of your daily activities, you had access to the electronic banking tokens for each of the company's accounts that allowed you unfettered access to those accounts.
5 Between 1 December 2014 and 8 November 2017, you stole a total of $1,029,543.44 from AFML accounts, transferring these sums into either your own personal ANZ Bank account or to pay third party liabilities as follows:
(a) On 1 December 2014, you stole $67,600 from the withholding tax account and applied it to the payment of a deposit on 49 Fletcher Street, Moorabbin, that became your family home (Charge 1);
(b) On 25 November 2015, you transferred $263,213 from the withholding tax account into your personal ANZ account and disguised this transaction by describing it within the books of account of the company as a transfer from one AFML account to another (Charge 2);
(c) On 11 April 2016, you transferred $98,228.98 from the withholding tax account into your personal ANZ account and again disguised the transfer to your own account as a transfer between two AFML accounts (Charge 3);
(d) On 15 June 2016, you transferred $190,854 from the withholding account and transferred it to Henley Homes for the construction of a house at 49 Fletcher Street, Moorabbin (Charge 4);
(e) On 12 August 2016, you transferred $52,981 from the Aurora dividend account and transferred it to Henley Homes, once again for the construction of your new home on the Fletcher Street, Moorabbin, site, and once again you camouflaged this transfer by recording it as a payment to the Australian Taxation Office (Charge 5);
(f) On 26 November 2016, you transferred $191,054.06 from the withholding account and transferred it to your ANZ personal account (Charge 6);
(g) Between 29 June 2016 and 9 November 2017, by five separate transactions totalling $101,562.40, you transferred funds from various AFML accounts into your personal ANZ account (Charge 7);
(h) Between 12 August 2016 and 12 October 2016, through three transactions, you transferred a total of $64,050 from various AFML accounts to Henley Homes as part payment for the construction of a new home on the Fletcher Street site (Charge 8).
6 Your offending was discovered after AFML made a takeover for the ASX-Listed RNY Australia Property Trust ('RNY'). AFML was obliged to pay RNY's unit holders a total of approximately $2m. You suggested that AFML send payment by way of cheque. On 14 November 2017, you told the CEO of the company, Mr John Patton, that the cheques had been posted to accepting RNY unit holders. On 21 November 2017, after RNY had expressed concerns to AFML management about non-payment of unit holders, you maintained to Mr Patton that you had paid those persons by cheque and sent to Mr Patton a falsified Australia Post receipt in support of your representation (Charge 9).
7 On 24 November 2017, you were asked to provide your electronic banking tokens so that Mr Patton could check the AFML account balances. After giving Mr Patton excuses as to why you could not provide the banking tokens, you sent him an email that purported to attach a Commonwealth Bank screen shot showing AFML's Commonwealth Bank accounts, including the sum of $1m in the Aurora Property Fund account. The image attached to the email was not genuine (Charge 10).
8 After receiving the email attaching the screen shot, Mr Patton requested that you provide the detailed transaction history of the relevant account. You replied shortly thereafter with an email attaching what purported to be a Commonwealth Bank 'transaction history' record showing $1m having been deposited into the Aurora Property Fund account on 15 February 2017 (to create the balance of $1m). This document was false. At the time, the account was in debit to the tune of $20 (Charge 11).
9 Mr Patton's concerns were allayed until RNY contacted him, stating that they had not received their own cheque, which should have been in the sum of $878,000.
10 On Saturday, 25 November 2017, an employee of AFML attended at your house at 3 pm by arrangement in order to obtain your banking token so that AFML could check the balance of their accounts. You made an excuse that your electronic banking token was at your parent's house in Mornington and an arrangement was made for a further meeting at 9 pm that day.
11 At the 9 pm meeting, Mr Patton attended at your premises and ultimately, you admitted to him that you had taken approximately $1m from the Aurora Property Fund account in February 2017, which was a false statement.
12 Mr Patton reported the matter to St Kilda Police on the night of the 25th after leaving your home and at the same time made arrangement within AMFL for the fraud to be reported to the Stock Exchange, ASIC and AMFL's insurers and auditors.
13 It is of note that you cooperated with inquiries made by those representing AMFL.
14 You attended the St Kilda Police Station by appointment on 29 November 2017 and you were interviewed under caution and made admissions. You were subsequently charged.
15 At the time that you purchased the residence in Moorabbin, you owned, subject to mortgage, a three bedroom apartment in Sydney. At no stage did you avail yourself of your equity in those premises, which was in the order of $500,000, to finance your purchase of the Moorabbin address.
16 Tendered as Exhibit B on the plea was the victim impact of John Patton, a principal in Aurora Management. In his statement, Mr Patton deposed that Aurora was a small business of five staff members and that you, Ms Poon, were a director of Aurora as well as a company secretary and responsible manager for AFML. You were also a part-owner in the Aurora business and an integral and trusted member of the Aurora team.
17 As a consequence of your offending, Aurora reported the matter to the Victoria Police on Saturday, 25 November 2017, notified the Australian Securities and Investment Commission ('ASIC') and made an ASX announcement advising of the fraud on Monday, 27 November 2017.
18 Over the 2017 Christmas holiday period, Aurora management conducted its own examination of its accounts that revealed the extent of your dishonesty.
19 Following Aurora's announcements, ASIC closely scrutinised its business. An external review was conducted by an independent compliance consultant, which tied up management resources and was an additional cost to the business. After initially providing conditional approval, ASIC decided not to approve Aurora's request to become the responsible entity for RNY Property Trust and subsequently agreed to an external party becoming the responsible entity of RNY. The appointment of the external party occurred in July 2018 and the delay in this appointment resulted in considerable cost to Aurora.
20 There was considerable outflow of investment moneys held by Aurora, with a large number of investors redeeming their investments. Aurora engaged external forensic accountants at a cost of approximately $75,000. Additionally, Aurora engaged a legal firm to advise them at a cost of approximately $150,000. Aurora lost three staff members due to the increased workload and stress associated with your fraudulent activities. The loss of staff caused considerable cost to the business, with the loss of institutional knowledge, as well as the cost of replacing staff by the use of external recruitment firms.
21 Aurora had to sell some of its own investments to fund the working capital requirements of the business and this put a strain on Aurora's creditors, with considerable management time having to be devoted to keep those parties on side. Further, Aurora found difficulties in obtaining insurance and, more importantly, they lost business opportunities which the organisation was unable to pursue as a consequence of your conduct, despite the fact that they had invested considerable time and money in creating those opportunities.
22 Ultimately, Mr Patton summarised your conduct in respect to its consequences upon Aurora and its employees in the following terms:
'Words cannot adequately describe the breach of fiduciary duties/trust demonstrated by Ms Poon. The parties who remain have been left to pick up the pieces whilst trying to hold the business together.'
23 You are now 48 years of age, having been born in Kowloon and migrated to Australia with your family in 1974 when you were aged two or three. Your family migrated to join your paternal uncle, who owned a successful Chinese restaurant in Mordialloc.
24 Your father was an accountant in Hong Kong; however, his qualifications were not recognised in Australia and so he worked as a kitchen hand in your uncle's restaurant. Your mother was involved in home duties. You were one of four siblings, having initially two younger twin sisters. However, some five years ago, your sister, Anna, died of a brain tumour and this affected you adversely. You are the godmother to Anna's two school aged children and have supported them since their mother's death.
25 Your father is aged 78 years, whilst your mother is aged 73. You support them and you are the first port of call should they need any assistance.
26 Your sister, Nancy, provided a reference dated 12 September 2019, and gave evidence on your behalf on the plea. She was a most impressive witness. She confirmed your family background and said that you were regarded by the family as the 'rising star'. She swore that you were the principal carer for your three children: Axel, who is aged 12 years and has a learning disability; Benji, who is 10 years and suffers from Beckwith-Wiedemann Syndrome and; Amber, who is aged eight. Each of your children attend the East Bentleigh Primary School, and Axel needs a teaching aide.
27
Ms Nancy Poon swore that you had expressed to her remorse in respect to the consequences of your conduct on Aurora and, in particular, Mr Patton. Although you, in your discussions with your sister, Nancy, have never explained why you committed these offences, nor have you informed your parents of your offending. Whilst Benji suffers from Beckwith-Wiedemann Syndrome,
Ms Nancy Poon was unable to say how this syndrome exhibited itself in respect of him, save that he has trouble expressing himself and trouble sleeping.
28 Tendered as Exhibit 2 was a reference from your husband, Mr Mustafa. You met your husband in 1997 and married in 2006. In his reference, he describes your conduct as completely out of character. He refers to your steady employment and, in the outline of submissions for you in support of your plea submitted by your counsel, Mr Page, it is plain that your education and work history demonstrates that you are a woman of real capacity.
29 You attended Edithvale Primary School and Mordialloc Chelsea High School. After finishing Year 12, you did a two-year Diploma of Accounting at Frankston TAFE and then transferred to Monash University, where you obtained a Bachelor of Accounting. In 1995, you started work as a finance officer for Movielink, and thereafter you have held positions of a consultant to AON Consulting, a fund account manager at Port Folio Partners, Vice President of Financial Reporting to JP Morgan in Sydney, Head of Financial Accounting to the ANZ Wealth Division, and you finally took up employment with Aurora in 2011 in their Sydney office, and moved to Melbourne in 2013.
30 Your husband refers to you as being the first port of call in respect to your elderly parents and that you have always made yourself available to them. As a result of your offending, in the last 21 months you have spent time at home and you have become increasingly close to each of your children, and it is plain that they will miss you when you are ultimately imprisoned as a result of your offending.
31 Mr Page did not submit that there were exceptional circumstances that constituted family hardship in respect to you and your family.
32 Since losing your employment, your husband has obtained work with Visy Plastics and earns $70,000 per annum, a far cry from the income that you brought into your family from your employment with Aurora.
33 Your properties at Moorabbin and Sydney have been restrained to meet your debt to Aurora. You assisted the accountants who investigated Aurora's accounts. You made admissions to the police when interviewed under caution. You pleaded guilty at the earliest opportunity. You are entitled to the benefits that flow to you from your plea, being that it is some evidence of your remorse and that it has utilitarian benefit. I am satisfied that you are remorseful, and I am further satisfied that you have reasonable prospects for rehabilitation.
34 Your offending represents a serious breach of trust and was sustained. Your offending was motivated by personal gain that included, apart from the home in Moorabbin, a BMW motorcar valued at $120,000. Your motive also had an aspect to it of seeking to compensate your family for your absences from the family home because of the long hours that you worked with Aurora; however, to my mind, this does not mitigate your offending. Further, you sought to conceal your offending by making a number of false documents.
35 General deterrence must play an important part in arriving at an appropriate sentence in your circumstances, as must the application of just punishment and public denunciation. Your offending constituted a gross breach of trust. It was sustained. It involved a substantial amount of money and was motivated by personal gain.
36 By this sentence I must punish you, publicly denounce your conduct and deter others from committing these kinds of crimes. Taking into account the circumstances of your offending and their effects, your personal circumstances, which includes the fact that you have no prior convictions, endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows.
37 On Charge 1, six months' imprisonment.
38 On Charge 2, 18 months' imprisonment.
39 On Charge 3, 12 months' imprisonment.
40 On Charge 4, 18 months' imprisonment.
41 On Charge 5, six months' imprisonment.
42 On Charge 6, 18 months' imprisonment.
43 On Charge 7, 12 months' imprisonment.
44 On Charge 8, six months' imprisonment.
45 On Charge 9, 12 months' imprisonment.
46 On Charge 10, 12 months' imprisonment.
47 On Charge 11, 12 months' imprisonment.
48 I order that one months' imprisonment on each of Charges 1, 5 and 8, together with four months of the sentence imposed on Charges 3, 7, 9, 10 and 11, and eight months of the sentences imposed on Charges 4 and 6 be served cumulatively upon each other and on the sentence imposed on Charge 2.
49 This results in a total effective sentence of four years' and nine months' imprisonment, and I fix a period of three years' imprisonment which you must serve before you will become eligible for parole.
50 I declare that you have spent 14 days by way of pre-sentence detention, not including today.
51 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to a term of seven years' imprisonment, with a non-parole period of five years' imprisonment.
52 Now, there is an application for compensation pursuant to s.86 of the Sentencing Act?
53 MS McGREGOR: Yes, Your Honour.
54 HIS HONOUR: Is there any objection to that order being made?
55 MS HART: No, Your Honour.
56 HIS HONOUR: I hand down that order. Further, there is an application for a forensic sample; is there any opposition to that order?
57 MS HART: No, Your Honour.
58 HIS HONOUR: Thank you. Would you please stand, Ms Poon? The Crown have made an application for what is known as a forensic procedure. In this case, it is a scraping from the mouth, or what is known as a buccal swab. I have granted the application because of the seriousness of the circumstances of your offending warrant the order. The order is not opposed, and the granting of the order is in the public interest. I must inform you, if at the time of request, you do not consent to the taking of a mouth-scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted. I hand down that order.
59 Are there any other matters?
60 COUNSEL: No, Your Honour.
61 HIS HONOUR: Remove the prisoner, please.
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