Director of Public Prosecutions v Soo

[2024] VCC 456

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-01875

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHEUNG SOO

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2024
DATE OF SENTENCE:	11 April 2024
CASE MAY BE CITED AS:	DPP v Soo
MEDIUM NEUTRAL CITATION:	[2024] VCC 456

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:          Theft

Legislation Cited:  Sex Offenders Registration Act 2004 (Vic)
Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:2 years and 4 months' imprisonment, non-parole period 1 year 4 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Liantzakis	Office of Public Prosecutions
For the Accused	Mr H. Moodie	Stary Norton Halphen

HIS HONOUR:

1Cheung Soo, you have pleaded guilty to two offences of theft.  The maximum penalty for each of those offences is imprisonment for 10 years. 

2You have no prior convictions. 

3The prosecution tendered and relied upon a written prosecution opening for the purposes of the plea which is Exhibit A, and an annexure to that which deals specifically with the quanta and the dates of your offending.

4The facts are that at the time of the offending, that is between
17 November 2021 and 29 November 2021, you were employed by the National Australia Bank as a lending associate.  You had obtained that position on 7 September 2020 and remained in that position until your resignation on 6 December 2021 following the discovery by the National Australia Bank of your offending conduct.

5At the time of your offending you were 34 years of age.  You are now 36 years of age.  During your period with the National Australia Bank you ended up at the National Australia Bank Business Banking Office in Cremorne.  You were responsible for processing and completing lending applications for domestic loans.

6As part of your role you had access to the National Australia Bank's internal computer system, which is given the acronym ‘eBOBS’ - short for the Electronic Branch Online Business System.  It is designed for and used to input, review and maintain records of the bank's customers, their accounts and facilities and to process and review certain value transactions.  It can be used to transfer funds between accounts. 

7The eBOBS system is accessible only to National Australia Bank employees.  It is an internal National Australia Bank computer system, accessible only on devices that have had the program installed by the National Australia Bank.  It is not transferrable between a National Australia Bank authorised device and any other device.

8The system maintains records of all activity on that system.  Your offending was discovered as a result of an audit conducted by the National Australia Bank.  The matter was ultimately reported to police on 1 December 2021, two days after the conclusion of your offending conduct.

9You manipulated the eBOBS system to transfer funds from the National Australia Bank City South Business Banking Centre suspense account into, first of all, the National Australia Bank account of your great aunt, and then subsequently to other places.

10The offending began on Wednesday 17 November 2021 at 9.50 am, when you transferred $15,000 from the suspense account I have referred to, to the account of your great aunt.  At 10.57 am on that day, you transferred from that same account to your National Australia Bank account, and at 11.07 am you transferred a further $9,500 into your Westpac banking account.

11On Sunday 21 November 2021 at 11.56 am you transferred a further $9,800 using the same eBOBS system to your account with the NAB, and at 11.57 am another $9,800 to another account you held with the National Australia Bank.  Then, at the same time, 11.57 am on 21 November, you transferred another $9,800 to your Westpac account.

12On Tuesday 23 November at 5.52 am you utilised the eBOBS system to transfer $38,090.85 from the National Australia Bank Bankstown Business Centre suspense account into the National Australia Bank account of your great aunt.  At 5.56 am on the same date you transferred a further $20,000 from the same account to your great aunt's account, and then at 5.57 am you transferred $10,000 from your National Australia Bank account to your Commonwealth Bank account.

13At 10.21 pm you transferred $10,000 to your other NAB account.  That was then transferred to your Westpac account.  On 23 November 2021 at 9.06 pm you utilised the eBOBS system to transfer $486,758.58 from the National Australia Bank Bankstown Business Centre suspense account to the account of one of your former housemates, a Ms Liou.

14You advised Ms Liou and a Mr Leung, who was also a former housemate of yours, that the funds were commission on a block of land your uncle had sold in North Melbourne.  You instructed that firstly, the commission must be paid into a National Australia Bank account and secondly, your employment conditions with the National Australia Bank prohibited you from receiving the funds yourself, so you told Ms Liou and Mr Leung that you would share some of the commission with them by paying the fees for Mr Leung's aviation course and paying for Ms Liou's holiday.

15You advised Mr Leung to keep this arrangement “top secret”.  Ms Liou, under your instructions, transferred the funds in instalments of under $10,000, between accounts.  That was deceptive, devious conduct which took advantage of your friendship with people to whom you owed a great deal more loyalty than you demonstrated.  Your persistence in blaming them for your offending when you spoke to police later is a very unattractive aspect of your response to being caught.

16The offending to which I have referred is part of the factual matrix underpinning Charge 1, which is a rolled-up charge.  Charge 2, theft of $386,322.45, involved further deceptive conduct.  You made use of a gentleman who was employed by the National Australia Bank on the same date as yourself, although in a different state.

17That gentleman, a Mr Cheng,  resided in Queensland.  He does not know, and has had no contact with, either Ms Liou or Mr Leung.  On Monday 29 November 2021 you sent Mr Cheng a message via Microsoft Teams beginning, 'Bro, you there?'  You then had a video chat on Teams with him and requested use of his screen to complete a transaction due to, according to what you told him, your eBOBS having stopped working part way through a transaction.

18Mr Cheng agreed and apparently did not pay particular attention to the transaction that you were engaged in.  During the Teams chat with him you caused $386,322.45 to be transferred by eBOBS from the National Australia Bank Business Banking Centre's suspense account into the National Australia Bank account of Ms Liou.  This transfer was conducted using the eBOBS login of Mr Cheng.

19The further details of both of these transactions are set out more fully in the written opening of the prosecution.  It seems to me that it was, as your counsel has put to me, relatively unsophisticated, but you had plenty of time to think about what you were doing.

20You had plenty of time to devise the plan that you put in place involving three separate innocent parties in order to disguise your theft of the monies.  You thereby put each of them in jeopardy of being blamed and perhaps being prosecuted for your offending conduct.

21You were the subject of a search warrant on 13 January 2022, and various items, including your Apple iPhone and your laptop were seized.  You were arrested and taken to the West Melbourne police station where you were interviewed.  You told police a pack of lies.  You blamed Mr Leung and Ms Liou and Mr Cheng for your offending conduct.

22You claimed no involvement yourself in any criminal offence.  The police obtained details of your sports betting activity, which showed that over a period of years you had conducted betting which resulted in losses in the order of $40,000 to $50,000 in total, but on one of those accounts a total of $646,569.31 had been wagered during that period.

23The fact that you won back more than $600,000 underpins the proposition that you had become seduced by and perhaps addicted to gambling during that period, and that in part your conduct is not excused, but explained, by your losses and no doubt your desire to obtain money in preparation for your wedding, which was due to take place in January of 2022.

24None of that excuses your conduct, but it might perhaps explain to some extent the relatively short period of madness that led you to steal the monies the subject of these two charges.  It is a substantial total sum of money.

25The prosecution rightly point out that although the conduct may not have been particularly sophisticated, you were in a position of trust as a banking employee, and you exploited that position of trust.  It is no good pointing to what might be described as lax systems within the bank which permitted you to conduct yourself in this way - you were being trusted with not doing so.  You were trusted to conduct yourself in accordance with your training and according to the law.

26The bank has ended up with losses somewhere between $39,000 and $58,300, rather than anything like the $900,000 plus that was the subject of the thefts.  That is fortuitous from the bank's point of view, but it does not excuse your conduct in any way.  You exploited what you perceived to be a weakness in the system and the trust that the bank had reposed in you.

27There is no victim impact statement.

28I now move to matters that are personal to you.  Your counsel provided me with a very helpful outline of submissions which commenced with a chronology of relevant events, which shows that you were arrested on 13 January 2022.  There was a contested committal hearing in the matter at the Magistrates' Court on 12 and 13 October 2022.  You ultimately offered to plead guilty to these matters on 17 July 2023.

29Your counsel rightly points out that there has been a considerable period of delay between your arrest in January 2022 and today's date.  The matter has been hanging over your head for that time and I need to take that fact into account in determining an appropriate sentence.  I think it is fair to point out that it was within your hands to have accelerated the process of bringing this matter to finality, and that you did not indicate your guilty plea until 17 July 2023 is to some extent the explanation for the delay.  That is not to say that delay is irrelevant, but the mitigatory effect of the delay is diluted somewhat by your own choices. 

30Your counsel also provided me with a report from Mr Guy Coffey, psychologist, dated 2 April 2024, which is very helpful in setting out much of your background history and identifying whether you suffer from any mental impairment.  He concludes that you do not suffer from a mental disorder.

31It seems clear that your longstanding gambling activities, and perhaps addiction to gambling, have a significant role to play in the events which led to this offending.  But it is not an excuse, it is just part of the factual background which explains what might have motivated you.

32In addition to that document, I was also provided with character references from your father, your mother and each of your three sisters.  Those references are also very helpful in that they help me understand a bit about your family background and your history, what sort of person you are.  It seems to me that although your parents have separated and gone their separate ways now, there were times during your teenage years, and perhaps your adulthood, when tensions between your parents would no doubt have affected all family members.

33You and your sisters all had a good, reasonably comfortable upbringing with the right kind of encouragements to pursue your education.  All three of your sisters seem to be high achievers: one is a medical practitioner, one is a lawyer and one is a psychologist.  You have consistently been an under-achiever academically, perhaps because of your natural tendency to be sociable and to be inattentive in class.

34You under-achieved at school, despite your parents' attempts to change the school, sending you, as they did, to Scotch College in Melbourne when you were 15 or 16.  That was no doubt designed to give you a boost in your education leading up to your VCE or university entrance, and to give you a foundation for your tertiary education.

35Again, you were an under-achiever at that school, spending too much time with your video game activity, your gambling and your socialising.  You had some sporting ability but, whatever the distractions were at the time, your Atar score was not nearly as high as it should have been given your natural abilities - at least, that is the assessment of your family and your teachers.

36You were able to get into university to study engineering to start with, then accounting, and ultimately a business course.  You graduated, but it took you a long time to get there.  With your father having a banking background you gravitated ultimately towards employment with various financial institutions.

37I do not need to go through the detail, but all of that led to your employment with the National Australia Bank, which gave you access to the system that you exploited for the purposes of your offending conduct.  It is clear from the fact that your partner is here, your father is here and there are relatives who are listening to these proceedings, that you have considerable support.

38I have formed the view, as urged upon me, that you have excellent prospects of rehabilitation with that support.  It is not surprising that you have felt ashamed and I am sure that you do.  You feel that you have let your family down and, perhaps most importantly, your partner.  When I say your partner, I mean your wife, because you did ultimately marry even though it was not the wedding that you had planned.  You married in June of 2022 at a registry office.  Your wife is here supporting you.

39I am sure you are very grateful to her for her support and she has probably been a lifeline for you in the last year since you determined to plead guilty to these matters, and indeed in the period before that.

40That supports my conclusion that you have good prospects of rehabilitation, perhaps excellent prospects of rehabilitation.  I have concluded that justice can be done by imposing a sentence that on one view is lenient, given the amounts of money involved and the degree of exploitation of the position of trust that you held with the bank.

41You yourself have concluded that you deserve punishment and that a term of imprisonment is inevitable.  You indicated through your counsel on the previous hearing that you wish to be deprived of your bail and to go into custody to start your sentence at the earliest possible opportunity, which occurred on the last occasion you were before me.

42It is necessary for me to impose a sentence that punishes you adequately, that denounces your conduct and, very importantly in cases such as this, deters others from committing similar offences.  I am not sure that you need a great deal of impetus to avoid offending in the future; I think individual deterrence has probably arisen from the shame that you feel, and your own sorrow for letting down your family, and particularly your wife.

43Nevertheless, each of those sentencing considerations needs to be given proper weight.  With your prospects of rehabilitation evident, your counsel fairly and reasonably asked me to consider a sentence involving a term of imprisonment up to 12 months and a community correction order on top of that.

44The reports from the Department of Justice, Community Corrections and from Forensicare support that as being a suitable outcome, but as I indicated to your counsel earlier on, I have come to the conclusion that the offending is too serious to sentence you in that way.

45It is always difficult, against a background of current sentencing practice, to assess the precise degree of punishment that is required, the denunciation that is required, and what is required to deter others.  There is no mathematical formula for determining that, but having looked at some of the cases drawn to my attention, and others indicating a range of sentences that is appropriate in cases such as this, I have reached the conclusion that a sentence of more than 12 months is required in order to satisfy all of those sentencing considerations.

46Doing the best I can to marry all relevant factors and taking into account the very honest, if I may say so, assessments of your character provided by your referees, I proceed to sentence as follows. 

47On Charge 1, which is a rolled-up charge of theft of $540,748.43, I convict you and sentence you to imprisonment for a period of two years.

48On Charge 2 of theft of $386,322.45, I convict you and sentence you to imprisonment for a period of one year and eight months. 

49I order that four months of the sentence on Charge 2 be served cumulatively upon the sentence of two years that I have imposed on Charge 1, making a total effective sentence of two years and four months.

50I fix a non-parole period, that is a period during which you will not be eligible for parole, of 16 months. 

51But for your pleas of guilty, I would have sentenced you to imprisonment for a period of four years with a non-parole period of two years and nine months.

52I declare seven days’ pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively.

53Are there any other matters, counsel, that I need to deal with?

54MS LIANTZAKIS:  No, Your Honour.

55MR MOODIE:  No, Your Honour.

56HIS HONOUR:  Thank you.

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