Director of Public Prosecutions v Tan

[2018] VCC 883

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00298

DIRECTOR OF PUBLIC PROSECUTIONS

v

KE TAN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2018
DATE OF SENTENCE:	14 June 2018
CASE MAY BE CITED AS:	DPP v Tan
MEDIUM NEUTRAL CITATION:	[2018] VCC 883

REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – theft and obtain financial advantage by deception – no prior criminal history – good rehabilitation prospects – CCO imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett (Plea) Ms S. Gleisner (Sentence)	John Cain Solicitor for Public Prosecutions
For the Accused	Ms C. Hollingworth (Plea) Mr A.Turner (Sentence)	Doogue & George

HER HONOUR:

1Ke Yan Tan, you have pleaded guilty before me to one charge of theft and one charge of obtaining financial advantage by deception.  The charges are serious and that is reflected in the maximum penalty that is prescribed by Parliament and that is ten years imprisonment for both charges.

2Briefly, the theft charge relates to you stealing a cheque belonging to Wayne Wong & Associates Barristers & Solicitors (the firm) on 11 April 2017.  Thereafter, the obtaining financial deception charge, involved you writing a cheque on that date to make an unauthorised transaction out of the firm's statutory trust account in the sum of $165,000 which you then used to pay one of the firm's clients Mr Robert Lui.

3This is serious offending because it is a breach of trust on your behalf.  There was a context to your offending to which I will refer to shortly.  You were working at the firm in a voluntary capacity and through the trust that was imposed upon you by the principal of the firm, Mr Wong, you were able to access his chequebook and you took advantage of that and committed these offences.

4In sentencing you there is a need to emphasise general deterrence.  In my view, specific deterrence is less important in the circumstances of this case given your post-offence conduct.  

5It is also important for the court to formally condemn your actions. It is not appropriate that you should have undertaken such offending and so formally, I must denounce your conduct. 

6In sentencing you I must provide for just punishment.

7The impact of your crimes have been significant in terms of how it has impacted upon Mr Wayne Wong personally and professionally.  I have read his victim impact statement declared on 1 June 2018.  He was severely impacted by your significant breach of trust and deceit reflected in this offending.

8In his statement he sets out comprehensively the impact upon him personally and also to his firm's reputation and the harm caused to clients of the firm, so much so, that some clients have now changed their lawyers because of lack of confidence and trust in the firm having regard to your behaviour.

9He says he has suffered depression and anxiety, loss of sleep, loss of trust and confidence in others and generally the impact of the offending has been very disruptive to his practice. You need to know that.  By your actions those consequences have been visited upon Mr Wong.

10I will sentence you on the basis of the prosecution opening that was read out by the learned prosecutor, Ms Duckett.  There was no objection taken to the opening.

11There is quite a complex context to the offending.  I understood that as a young lawyer, you were engaged by the firm of Wayne Wong & Associates and worked with them from about October 2014. In January 2017 as a consequence of various complaints being made to the Legal Services Commissioner, alleging misconduct by you, I was told that related to your failing to timely file some documentation relating to a liquor licence application, you were required to surrender your practicing certificate and sign an undertaking not to seek employment or be employed at a legal practice.

12Notwithstanding that, Mr Wong continued to have you working in his firm on a voluntarily basis so that you could hand over files that you had worked on to others. You were specifically instructed not to see or deal with any clients of the practice without permission and not allowed in the office unless other staff were present.

13That was the general background to the offending.  In the context that you were working at Mr Wong's practice, you came into contact with Mr Robert Lui.  He is a property developer and a client of the firm in relation to a conveyance relating to a property at Rockbank.

14Mr Lui was a nominated purchaser for that property at Rockbank.  The settlement sum was $3.4m.  He paid a ten per cent deposit; that is, $340,000 to another company JNT Law Investment Pty Ltd (the company), which was a company that operated six LJ Hooker Real Estate offices.

15Subsequently, that company was placed into liquidation following order of the Federal Court of Australia, in respect to unpaid tax liabilities and the company was wound up on 14 October 2016.

16In November 2016, the vendor of the property at Rockbank, through his solicitors, claimed that he had not received $340,000 from Mr Lui as a deposit but had received $180,000 which had been remitted by JNT Law Investment Pty Ltd.  The company trading account was now being held by the solicitor's trust account. The vendor then refused to release the $180,000 back to Mr Lui, until it could be established where the money had come from and who was entitled to it, as JNT Law Investment Pty Ltd was under investigation.

17Eventually, Mr Lui arranged for another purchaser to be substituted in the deal and that went ahead.  The settlement of the property occurred on 23 December 2016.  When this settlement took place, $160,000 of the $340,000 that Mr Lui had paid by JNT Law Investments Pty Ltd, was returned to him by the nominee, but there was still $180,000 remaining that was continued to be held by the vendor’s solicitors’ in their trust account.  The money was then released to the liquidators of JNT Law Investment Pty Ltd.

18It was that $180,000 that is the source of the offending insofar as Mr Lui then engaged Wayne Wong & Associates to make a claim for compensation from the Victorian Property Fund and also for the liquidator to treat the money paid by Mr Lui as being held on trust and distinguishable from the residual assets of JNT Law Investment Pty Ltd. 

19Documentation that was supposed to be sent Consumer Affairs to effect the claim against the Victorian Property Fund was not filed by you. It became apparent that it was not until 27 April 2017 that the documentation was submitted.  It is still the case that the Victorian Property Fund has yet to make a decision about Mr Lui’s claim for compensation.

20In the meantime, you were contacted by Mr Lui and pressure was put upon you to hasten the process.  For some inexplicable reason you took it upon yourself to steal the cheque from Mr Wong's office whilst he was overseas in China.  You paid $15,000 of your own money to Mr Lui and then wrote a cheque for the balance of $165,000 which was then drawn against the business' trust account and those funds were then released to Mr Lui.

21When Mr Wong returned he discovered a shortage in his trust account and when further inquiries were made through the bank, the bank advised him that the cheque had been written and issued to a payee called Robert Lui and the bank could not stop the payment as it had already been cleared.

22To make matters worse, after inquiries were made by Mr Wong of people in his office, you pretended to be Mr Lui and spoke to Mr Wong on the telephone and said that you would transfer the money back immediately but you needed until early the following week to do so and then you sent an email perpetuating that fraud. 

23It became evident that it was a fraud when Mr Wong then spoke to the real Robert Lui and that is when all your criminality was disclosed.  When he confronted you, you made a full confession to stealing the cheque, to sending emails and to calling Mr Wong. When Mr Wong asked you why you committed this crime, you said that you did not know why you did it, and that you had just done it.

24You were then asked by Mr Wong to make a full confession to the police which you did.  A formal record of interview was conducted on 5 May 2017 where comprehensively you detailed to the police your actions.

25It is hard to understand why it was that you took these steps, but having regard to the context that was put at the plea hearing, it is obvious that your relationship with Mr Wong was impacted upon because of other complaints that had been made to the Legal Services Commissioner that you did not have the capacity or the maturity to explain to Mr Wong what had happened in his absence. Instead, you took this course, that has later been shown to be truly a folly on your behalf.

26It is apparent that there is a legitimate claim for compensation for the $180,000 from the Victorian Property Fund which is yet to be determined, such that your actions were really unnecessary to remedy the situation that Mr Lui found himself in.

27In sentencing you, I have taken into account your personal history and background.  I note that you are a Malaysian national of Chinese origin.  You are now 28.  You were 27 at the time of offending.  You are the youngest of the two children born to your parents. They still reside in Malaysia. You were sponsored to Australia by your older sister who is a successful professional who owns her own home where you now live.

28You have loving but strict parents and great expectations were placed upon you to excel. You were sent out to Australia at a very young age, aged 18, to live with your sister, to continue your studies here in Australia.

29You successfully completed a condensed version of VCE and then completed a Finance Law Degree through La Trobe University.  Having done that, you then completed the Leo Cussen practical training course as well as some work experience at the State Revenue Office before qualifying as a solicitor and obtaining employment through Wong & associates, law firm in 2014.

30It is evident that you struggled with the rigours of professional life and you did not have confidence in your own ability to raise difficulties with your principal when they arose.

31I have had regard to the circumstances as were set out at the plea hearing and I accept that Mr Lui probably did overbear you in terms of demanding the payment of the $180,000 be hastened but that in no way excuses your criminal behaviour.

32In your favour, I have taken into account your full co-operation with the authorities, making full admissions and a confession essentially to the offending at the time you were interviewed.  I accept that you entered a plea of guilty at the earliest opportunity and there is real utility in that.  I accept that your plea of guilty does indicate remorse, notwithstanding the fact that when the offending first became obvious to your employer, you chose to further complicate matters by perpetuating the fraud.  I note that you now realise that you have made a fatal mistake and you have committed indictable offences that potentially have ruined your professional life as a lawyer.

33You did not receive any benefit from your conduct and as a consequence of the convictions, it is unlikely that you will ever be able to work again as a lawyer.  I have taken that into account.

34I accept that you now have insight into your behaviour and you understand the impact of the offending upon Mr Wong, his firm and others affected by your behaviour, such as your family.

35I have had regard to the report provided by Dr Bath, the psychologist.  I accept his opinion that you present as an immature man prone to impulsive and reckless behaviour which focuses on providing short term solutions for your problems rather than contemplating the long term consequences of your behaviour.

36It is obvious that you do have significant self-esteem issues. You are immature and have poor coping skills.  Therefore, it is important that you pursue the treatment that he has recommended. I understand that that has all been sorted out and that you will be attending him for treatment in the future.

37Going forward, it will be important for you to draw on this new found insight that you have into your behaviour and its consequences.  Through this offending you have revealed that there are significant issues with self-esteem and confidence and also immaturity.  Hopefully through the lessons learnt from this behaviour you can move forward with professional support and deal with those issues, because you are still a relatively young man and it is important for you for the future that you deal directly with the behaviour that led to this offending.

38Overall, I consider that you do have excellent prospects for success in terms of your ultimate rehabilitation.  You are a person who comes before the court with no prior criminal history and no subsequent charges.  You have good character. I have read the letter from your mother, Mrs Yu.  She said the family was shocked.  There have been long conversations about your offending. She was very surprised to hear about your situation, but she too said that you deeply regretted your offending, that you have insight into the behaviour that led to the offending and that you did not want to excuse your offending in any way. That is all important because it reveals a capacity on your part to be a bit more mature, to reflect on what caused the offending behaviour and the need to take steps to address the behaviour.

39You are currently on a Bridging Visa. You have an application for Permanent Residency still pending.  There is some uncertainty with respect to that process as consequence of your offending and I have taken that into account.

40It is important ultimately, given the particular circumstances of this case, that you do have ongoing counselling and treatment as suggested by Dr Bath, and also that you pursue the mental health plan with your GP to provide you with the treatment that Dr Bath says that you need.

41In sentencing you I have had regard to the Court of Appeal guideline judgment in Boulton v The Queen[1]. 

[1] [2014] VSCA 342.

42I have already indicated to you what the formal court orders will be.  In essence, you will be convicted and placed on a community correction order with an operational period of two years commencing from today's date subject to all the usual mandatory terms and the special condition you perform 150 hours unpaid community work over two years as directed.

43The Court of Appeal has said that a community correction order can be punitive, achieve deterrence and may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.  Those observations clearly apply in this case.

44You are still a relatively young man and your rehabilitation and future prospects are very important not just for you individually, but also for the community generally.

45In all the circumstances I consider that is the most appropriate disposition. I note that both the prosecution and defence counsel sought such an order on your behalf.

46All that remains for me is to formally state the court orders.  Could you please stand?

47For the one charge of theft and one charge of obtain financial advantage by deception, you will be convicted and placed on a Community Correction Order for two years duration commencing on today's date,  that is subject to the usual mandatory conditions and the special condition that you perform 150 hours unpaid community work over two years as directed.

48Now there was an ancillary order sought in terms of the forensic sample.  That was consented to. I make the order pursuant to s.464ZF.

49Have we got an order?  We do?  No we do not.  Could you organise that for me?

50MS GLEISNER:  Yes, Your Honour.  It was e-lodged but I also have my hard copy here if that would assist?

51HER HONOUR:  All right.  If you would not mind?  Because I need to explain that.

52There was an application pursuant to s.86 of the Sentencing Act 1991 for compensation in the sum of $115,000 payable to the Westpac group, but in the circumstances having regard to the fact that the Victorian Property Fund still has an application pending in respect to compensation, it may mean that all the monies are returned to their legitimate lawful owners. I have held that order in abeyance.

53I have noted that that has been applied for but I have made no orders and the parties have liberty to apply in the event that that is necessary to be determined at a later stage.

54MR TURNER:  If Your Honour pleases.

55HER HONOUR:  All right.  Mr Tan, the only other thing I need to tell you is, this is an application for a forensic sample order.  You have to go to the police station at Broadmeadows to provide them with a forensic sample.  What that means is that you have to attend at the police station and they give you a little cotton bud to put inside your mouth and then you return that to them.

56Provided that you do that, you have complied with the order.  But I do have to tell you that in the event that you do not co-operate, then they can take such a sample by blood and they may use reasonable force to enable that to be conducted. Hopefully that will not be necessary. I have made that order having regard to the fact the order is by consent and the granting of the order is in the public interest.

57All right, that order has been signed as is the Community Correction Order.  Could I ask that Mr Tan signs that.  I think I have covered everything.

58I am not sure whether I have to do a s.6AAA?

59MS GLEISNER:  Not with a Community Correction Order, Your Honour.

60HER HONOUR:  All right, good.  I think I have covered everything then.  For the future, Mr Tan, what you need to take away from this situation is that you do need to think before you act and always think about the consequences of your actions.  If you get into a difficult situation where you are subject to pressure and you do not know what to do about it, seek advice from others. 

61You have got a good relationship with your sister.  You should have spoken with her and told her what was going on.

62All of this could have been avoided if only you had been a little bit more mature and reflective about your behaviour, but I am sure you do have the capacity to learn from this and move on and hopefully you will re-establish yourself in the future.  All right, thank you.

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