Director of Public Prosecutions v Vu Anh Nguyen
[2010] VSC 182
•12 April 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1664 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VU ANH NGUYEN |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March 2010 | |
DATE OF SENTENCE: | 12 April 2010 | |
CASE MAY BE CITED AS: | DPP v Vu Anh Nguyen | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 182 | |
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CRIMINAL LAW – Theft – False Accounting – Deficiency in trust account – Guilty plea – suspension of practicing certificate – Aggravating circumstances – plea made at the earliest possible opportunity – genuine remorse – Good prospects of rehabilitation – Delay significant feature in circumstances of case – Section 188(1)(a) Legal Practice Act 1996 (Vic) – Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Rose SC | Office of Public Prosecutions |
| For the Accused | Mr K. Kappandata | Allan McMonnies |
HIS HONOUR:
Vu Anh Hui Nguyen, on 22 March 2010 you pleaded guilty before me to seven counts of theft, six counts of false accounting and five counts of having a deficiency in your trust account. The counts to which you have pleaded guilty took place between June 2002 and November 2003. They involved your practice as a solicitor. You were a sole practitioner and conducted practice under the name VN Lawyers in Byron Street, Footscray. That practice was conducted by Dean Jacqueline Pty Ltd, a company of which you were a director.
An inspection of your trust account was carried out by Victorian lawyers, RPA Limited trust account inspectors in December 2003. That inspection had been carried out as a result of complaints received from a number of your clients. You had not processed the trust account records since 30 April 2003. The records of the practice generally were in disarray and its conduct chaotic.
In January 2004 Kevin Power, who was the general manager of Professional Standards, was appointed the receiver of the trust property of the practice. Many records were missing or incomplete. Your trust account was held at the National Bank of Australia. You also held a joint account at that bank with your wife and brother. Trust moneys were directed into that account and thus misappropriated to your benefit or to the benefit of your wife or your brother. The total of the deficiencies in your trust account was $180,262.75. The deficiencies were represented individually on the presentment to which you pleaded guilty by counts 4, 6, 9, 10 and 17.
There was a detailed opening of the matter by the Chief Crown Prosecutor, Mr Silbert SC. I was also provided with a copy of that opening in writing and it became Exhibit 1 on the plea.
Count 1 related to the theft of cash of $6969, which was received for costs, stamp duty and Government charges in June 2002. An office account receipt was issued. No trust account receipt was issued and the funds were not paid into the trust account.
In October 2002 the property which was the subject of a transaction, was registered in the name of your client. Counts 2, 3 and 4 relate to false accounting and associated trust account deficiency.
In April 2002, you received a total of $155,000 as the proceeds of the sale of a business. Those proceeds belonged to the estate of a deceased client. The funds were deposited in the trust account. They were, however, credited to your own personal trust account. The separate entries of $139,000 and $515,500 constituted the counts of false accounting. The funds were spent by you through July 2002. In July 2002, $115,848 was used to complete a conveyancing transaction on behalf of another client. You finished up with a total deficiency of $155,000 by July 2003.
According to the beneficiary of the estate you failed to distribute estate funds to him at his request. You eventually provided him with a summary sheet which showed amounts which had been distributed to him. It is not at all clear to me how the account was handled, but I can only assume that the beneficiaries have been paid in full.
Counts 5 and 6 related to false accounting and a deficiency in your trust account. These two counts related to you utilising client funds to pay stamp duty and registration relating to a property which had been purchased by you. The false accounting arose because the entries in the trust account ledger were false. Using the funds in that way created a corresponding deficiency in your trust account.
Counts 7, 8 and 9 related to false accounting, theft and a deficiency in your trust account. You acted for a client who had entered into a contract to purchase land for $50,000. You paid into the trust account of that client, funds which had been received on behalf of another client. You then drew a cheque on the trust account in the sum of $38,152.19, payable to the State Revenue Office and debited that amount to the trust account. That amount was in fact payable by the other client whose funds had been wrongly placed in that account and to that extent it was a legitimate transaction. Another $11,692.72 was debited to that account purporting to be for the Land Titles Office but was in fact paid into your account, that is the person account held by you, your wife and your brother.
Count 7 related to the various entries outlined above. Count 8 related to the theft of the $11,692.72. It follows that there was a corresponding deficiency in your trust account, which is Count 9.
Count 10 related to the withdrawal of $5,400 from a trust account purporting to be from a nominated person who did not receive those funds. It followed that you had a deficiency of $5,400.
Count 12, false accounting, related to a corresponding transaction where upon $7,750 was paid into the trust account of the client in Count 10. That covered up the $5,400 in the account above, but of course created a deficiency of $7,750 in the trust account of the second client.
Counts 11, 13 and 14 were counts of theft involving $3,750, $20,000 and $33,750 respectively. In April and May 2003, two clients paid you a total of $55,000 for the purchase of a business. A trust account was issued for $3,750 and two office account receipts were issued for $20,000 and $33,750 respectively. None of the amounts were paid into the trust account and at least the amounts of $20,000 and $33,750 were applied to the office account and disbursed. The $3,750 cannot be traced. Funds from other sources were used to make good the settlement on the purchase in July 2003.
Count 15 involved the theft of $5,520. In June 2003, $5,880 was deposited in two trust accounts for two clients - $5,520 was drawn on those accounts for registration of title. And a cheque in total for that amount was drawn in favour of the Land Title Office and State Revenue Office. The amounts were not disbursed in favour of the holders of the relevant trust account and thus were stolen.
Counts 16, 17 and 18 – relate to the theft of $3,000, a deficiency in your trust account of $3,000 and false accounting of $3,000. You were acting for a client who was refinancing a property. The trust account ledgers showed an amount of $142,660.44 being forwarded to Permanent Trustees when only $139,660.44 had been sent. A cheque for $3,000 was made to your brother John and was deposited on a loan account held jointly with you and your wife. The false records concerning that payment, while representing the payment was to Permanent Trustees, constituted the false accounting. The forwarding of the funds as described constituted theft and it followed that you had a trust account amount of $3,000.
The maximum penalties for these offences are: theft and false accounting, ten years' imprisonment, and having a deficiency in your trust account, 15 years' imprisonment. According to the depositional material, claims of about $50,000 were made on the fidelity fund, but not all of those related to these offences. Your practising certificate was suspended in March 2007, although, as I have already noted, a receiver had been appointed to the practice in January 2004.
On the final accounting for the administration of your practice in November 2005, it was revealed that after the payment of all expenses, including the cost of administration, the cost of disciplinary proceedings and a fine and the cost to the fidelity fund - a total of $28,824 was available. That is, there was no apparent net loss. Whether all of those who had a right to make a claim on the fidelity fund did so is not clear, but I make no adverse finding about you based on that possible supposition.
It follows that your crimes are largely those of a thoroughly disorganised person, rather than an outright dishonest one. It cannot, however, be avoided that the crimes of theft and false accounting with which you have been charged do have an element of dishonesty associated with them. The dishonesty which follows in this case relates to the fact that you knew or must have known that you were not entitled to deal with the moneys which you received in the way that you did, nor to produce trust account records which were false or did not exist.
I do, however, regard this case as one of the least serious of its kind to come before this Court, as is indicated by the net proceeds in your favour. It is an unfortunate cautionary tale about those who are allowed to conduct sole practises when ill equipped to do so. I am told that the authorities now have in place a system which would either prevent or minimise the chance of such transactions happening again.
It should be noted that the final offending alleged took place in November 2003. It does take a long time for matters such as these to be investigated, particularly when no proper records have been maintained. I do take into account the fact that these offences are now relatively old and that you have not practised in the meantime.
There were a number of matters powerfully put in detail on your behalf on the plea. You are now 37 years of age. You were born in South Vietnam on 20 June 1972. Your mother was a secondary school teacher. Your father a captain in the South Vietnamese army. You were the eldest of three children. You have a brother, John, who is a year younger and works as an accountant. You have a sister, Linda, 35, who is a clerical assistant.
Because of the conditions existing at the time and shortly after your birth in South Vietnam, it appears that because your parents chose to separate you and your siblings from the family, that you were raised by your maternal grandparents.
Upon the fall of Saigon in 1975, your father was arrested and he remained in a concentration camp for the next ten years. Your mother chose to remain by your father, providing what food and assistance she could.
In 1979 at age seven, together with your maternal grandparents, your brother and your sister and some other relatives, you were able to escape from Vietnam by small boat to Malaysia. Your boat was attacked by Thai pirates during the escape. On arrival in Malaysia, you were interned on a small island for six months until assessed by the United Nations High Commissioner for refugees.
In February 1980, you arrived in Melbourne. Your parents ultimately did arrive in Australia, but not until 1989, by which time you were preparing to study Year 12 in 1990. You and your brother and sister attended St Matthews Primary School in Fawkner. You were the only Asian students in that school and had to withstand some bullying and ridiculing by other ethnic groups, a matter which, in different circumstances, would be viewed as ironic.
Upon completing primary school, you attended St Joseph's Christian Brothers College in Pascoe Vale, and were there during Years 7 to 10. You then attended St Joseph's Christian Brothers College in North Melbourne for Years 11 and 12. During your primary and secondary schooling, as you reported to Mr Cummins, a forensic psychologist who carried out an examination for you and provided a report for these proceedings, you felt quite psychologically dislocated, depressed and lonely.
You certainly had no parental mentor. Your maternal grandparents are elderly and unable to speak English. They knew nothing of the customs and habits of those who surrounded them in Melbourne. They chose to remain with their own small group of refugees from Vietnam, for which nobody would blame them.
In 1990, you completed Year 12 quite successfully and were accepted at Melbourne University into a medical/science degree. You completed two years of that course but during that time have described feeling even more psychologically and physically dislocated. You and your siblings were then living with your parents and other family members in a three bedroom house. In effect, there were nine people living in the house at the one time.
Your father, who you really did not know, had not bonded with you or you with him. He had his own psychological difficulties, having been held in a concentration camp for ten years. He found it difficult to relate to his children, and had a relationship with them which was somewhat akin to the way he would have treated those below him when he served in the army. You decided to cease studies at Melbourne University and to leave the family unit and to branch out on your own, in what you saw as a fresh start.
You were accepted into a combined degree course in law and commerce at Griffith University in Queensland. You commenced there in 1993. Throughout your course, you were supported by Austudy and part-time work, which you performed at the Downtown Duty-Free store in Brisbane. You persevered with your studies, despite the fact that the first 18 months were particularly difficult, because during that time you were unable to find on campus accommodation and lived in premises that were pretty basic.
Having completed your university studies in 1997, you then commenced articles of clerkship in 1998 with the firm of Allan McMonnies. Having completed your articles of clerkship and having been admitted to practise on 1 March 1999, you very shortly thereafter opened your own practice in Footscray.
As I have already mentioned, you were certainly, in hindsight, ill equipped to cope with the stresses and strains, and did not have the expertise, particularly when it came to trust account maintenance. The business consisted of you and a part-time receptionist.
In June 1996, you married for the first time. As a result of that marriage there were two children, a son, Dean, who is now aged 12 and a daughter, Jacqueline, who is 11. Not long after the birth of the children, your then wife began to act irrationally and she adopted, at least at first, a reckless lifestyle. She commenced dating other males via the Internet and at one stage, without informing you, travelled to the United States, where she stayed for three months. During that time, she lived with another man.
You and the two children were residing with your wife's mother in Footscray. It was during that time you described yourself as effectively suffering from a nervous breakdown, which culminated in you leaving your wife in 2004 and divorcing her in 2005.
During that time, your wife became involved with another man who was some ten years her junior and they became involved in drug trafficking. Your then wife was imprisoned for eight months, during which time you looked after the two young children.
Since the middle of 2007, your two children have been in the care of their mother who, as a result of spending the time in prison, has reformed and is now able to take care of the children. You have access to them each weekend and take them for tennis lessons on Monday after school. You are financially responsible for their education. You have, in the intervening period, been practising as a migration agent.
You have since remarried, in fact on Valentine’s Day in 2099 and your wife came to Court to support you. Together you have a daughter, Clare, who was aged nine months at the time of the plea. You live with your maternal grandparents.
On the pleas I received, among other material, a psychological report from Mr Cummins. Mr Cummins states in his report that you have previously suffered from chronic adjustment disorder with mixed disturbance of emotions and conduct. He said in his report at p 5:
In my opinion this adjustment disorder had its genesis in his early childhood years. In my opinion his account of his childhood in adolescent years and his reported symptoms also indicate that he has been suffering from a post-traumatic stress disorder which also had its genesis in his early childhood years.
You also reported to Mr Cummins that in 2007 you had suicidal thoughts, but it was your two children that prevented you from furthering those thoughts. For a time in 2007 you saw a psychologist, Mr Michael Crewdson, concerning custody issues regarding the children. In a brief letter tendered on the plea, Mr Crewdson indicated that you had been seeing him, that you presented as extremely anxious and that your cognitive function was relatively poor.
In the past three years, however, with some assistance from health professionals but mainly through your own doing, you have succeeded in restabilising your personal and professional circumstances. You receive a reasonable income as a migration agent and you are studying for a masters degree. You are happy in your second marriage and you are devoted to your three children whom you love and they seem to be the focus of your life, together with your new wife.
I have given long and anxious consideration to the appropriate disposition of this case. The circumstances of aggravation are that you abused the position of significant trust, a position, after you were admitted to practice by this Court, involved the great privilege of being able to practice law and whatever the reality is, being perceived by the public to have the opportunity to make a good living.
It is because of the public position which you held with the endorsement of the Court that the matters are really quite as serious as they are. I accept that your career in law is finished. I think that it is unlikely that you will be able to significantly pursue your alternative career as a migration agent.
I accept that your plea was made at the earliest possible stage in the circumstances. I express that you have genuine remorse, that you have good prospects of rehabilitation, that the feature of delay in this case is important.
You have a relatively disadvantaged background, you have no prior convictions and have been of good behaviour otherwise. I take into account that there does not appear to have been any loss to any of your clients or to the fidelity authorities. I have taken all of those matters into account on your behalf. I have come to the conclusion that the only appropriate sentence is one of imprisonment. I am satisfied that the interests of justice will best be served in this case by allowing you to serve that sentence in the community. You will be sentenced as follows.
On Count 1, you will be sentenced to be imprisoned for two months.
On Count 2, to be imprisoned for six months.
On Count 3, to be imprisoned for three months.
On Count 4, to be imprisoned for 10 months.
On Count 5, to be imprisoned for 2 months.
On Count 6, to be imprisoned for 2 months.
On Count 7, to be imprisoned for 4 months.
On Count 8, to be imprisoned for 6 months.
On Count 9, to be imprisoned for 6 months.
On Count 10, to be imprisoned for 2 months.
On Count 11, to be imprisoned for 6 months.
On Count 12, to be imprisoned for 2 months.
On Count 13, to be imprisoned for 8 months.
On Count 14, to be imprisoned for 8 months.
On Count 15, to be imprisoned for 2 months.
On Count 16, to be imprisoned for 2 months.
On Count 17, to be imprisoned for 2 months.
On Count 18, to be imprisoned for 2 months.
I fix Count 4 as the base sentence. I direct that the sentences imposed on counts 1, 6, 9, 10, 12, 14, 15 and 17 be served cumulatively upon each other and upon the sentence imposed on Count 4. That makes a total effective sentence of 36 months.
I direct that the whole of the sentence be suspended for an operational period of three years.
The final position in relation to that, Mr Nguyen, is that you have been sentenced today to be imprisoned for 36 months. The whole of that sentence is to be suspended for 36 months. It is incumbent upon you to be of good behaviour in the meantime. If you are not, unless you are able to show the most exceptional circumstances, you will be called upon to serve that sentence.
In relation to s 6AAA of the Sentencing Act, had it not been for your plea of guilty, I would have sentenced to be imprisoned for a total of five years and would have fixed a non-parole period of three years before you were eligible for parole. And it follows of course, it would have been a sentence which otherwise could not have been suspended.
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