Director of Public Prosecutions v Wang
[2024] VCC 496
•18 April 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01475
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YUCHAO WANG |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 April 2024 |
DATE OF SENTENCE: | 18 April 2024 |
CASE MAY BE CITED AS: | DPP v Wang |
MEDIUM NEUTRAL CITATION: | [2024] VCC 496 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Obtaining financial advantage by deception - continuing criminal enterprise offender
Legislation Cited:
Cases Cited:
Sentence:4 years and 10 months' imprisonment, non-parole period 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Zubreckyj | Office of Public Prosecutions |
For the Accused | Ms G. Morgan | Robinson Gill Lawyers |
HIS HONOUR:
1Yuchao Wang, you have pleaded guilty to three charges of obtaining financial advantage by deception. The first charges that on 1 September 2022 you obtained for yourself a financial advantage in the sum of $50,000 from the Bank of China; the second concerns a withdrawal on 2 September 2022 whereby you dishonestly obtained a further sum of $50,000 from the Bank of China by deception; and the third is a rolled-up charge that you dishonestly obtained a financial advantage in the sum of $1,850,000 as set out in a schedule which lists a series of 37 transactions, each in the sum of $50,000, occurring between 3 September 2022 and 10 October 2022.
2Since each of these offences concerned sums of money of at least $50,000 you fall to be sentenced as a continuing criminal enterprise offender. Therefore the maximum penalty, which ordinarily would have been imprisonment for 10 years for each of these offences, is 20 years.
3You have no prior criminal history.
4The prosecution tendered as Exhibit A and relied upon a document headed 'Amended Summary of Prosecution Opening for Plea' dated 5 April 2024. I am not going to go through that document in detail.
5Suffice to say that at the time of the offending you were employed by the Bank of China. Initially you were employed as a teller at the Melbourne branch in Swanston Street. Through your employment at the Bank you were able to gain access to the details of the account of a particular customer of the Bank of China. You noticed that there was a large sum of money in that account and that there had not been much activity on the account. Using your position as an employee of the bank, you exploited your knowledge of the account and its details, and your capacity to gain access to the money contained in that account, to transfer the money out of the account to an account which was in the name of another gentleman with whom you had previously had some business dealing. From there you transferred the moneys to your own account.
6The first two transactions were in the sum of $50,000 and each of the further 37 transactions the subject of Charge 3 was also in that sum. You repaid $50,000 to that gentleman's account at one stage during the period of offending. That is relied upon by your counsel as an indication that you had always intended to replace the moneys from gambling winnings at Crown Casino. It is common ground that you paid the moneys which you obtained dishonestly into an account with Crown Casino. Your motivation was to obtain further moneys to assist you in the purchase of a property with your partner and to deal with your financial situation, which was by that time somewhat depleted as a result of a gambling addiction. You had also spent up to $100,000 obtained from your partner.
7Not surprisingly, the holder of the account from which you obtained the moneys discovered that his account had been reduced to a point where he was unable to withdraw a sum that he was seeking. The matter was reported to the bank. They were able to identify you as being responsible for the withdrawals from the account. You were interviewed by bank officers. You told those officers in a note that you had accessed the client account details unintentionally and saw that the gentleman did not access his account often.
8You admitted that you had stolen money in the amount of approximately $1,940,000 and had done so by re-setting your e-token in order to enable you to make the daily transfers. You indicated that you were addicted to gambling, that you had lost your savings at the casino and had used all of the money on gambling. You indicated that you were remorseful and planned to repay the outstanding balance. You were subsequently arrested. You were interviewed by police and indicated in answer to questions that you had initially claimed that the moneys obtained were all gambled at the Crown Casino and there was nothing left. Then you said that you had paid back loans to your girlfriend and your father.
9I make no findings as to where the truth lies. But I don't find positively that you had in fact gambled all that money at the casino. There is no victim impact statement. There is an application from the Bank of China for restitution. I have indicated that I shall make the order for restitution in the sum set out in the draft order, which is $1,948,164.38.
10Turning to matters personal to you. You are 31 years of age. You have no current criminal history. Your counsel provided me with a detailed outline of submissions on your behalf dated 4 April 2024, along with other documents listed in the index provided, namely:
· a psychological report authorised by Mr Patrick Newton, psychologist, dated
27 March 2024;· a gambling help counselling report dated 3 April 2024;
· a treating counselling report dated 28 March of 2024;
· a referral to a gentleman by the name of Johnny Leung dated 16 May 2023;
· a character reference from your partner dated 30 March 2024, which I might say is helpful and heartfelt; and a letter from Kate Li, psychologist, re your partner dated 11 August 2023;
· two documents from the Australian Department of Immigration concerning your visa which gave you permanent residency dated 5 April 2018; and
· a document concerning the application by your partner for a partner visa dated 19 July 2022.
11I have read all those documents and taken them into account. I shall refer to matters arising from them during the further comments I make about matters personal to you.
12It is accepted by the prosecution that you were not motivated by greed. Rather, you were suffering from a gambling addiction and depression at the time of your offending. You are a permanent resident, although you are a Chinese citizen. There is a strong likelihood, if not a certainty, that you will be deported from Australia at the conclusion of your sentence. One might infer that it is extremely unlikely that you would ever get a visa to return to Australia.
13Further, you intended to settle permanently in Australia. The prospect of deportation, if not the certainty of deportation, will weigh heavily on your mind during the period of your incarceration and will make it more difficult for you to bear the burden of that incarceration. Further, there is, I think, a very real likelihood that you will suffer the further punishment of the deportation and the inability to settle in Australia as you had intended.
14Those matters are both to be taken into account in determining an appropriate sentence. The report from the psychologist shows that you had been suffering from depression at the time of your offending. It is clear that that depression has become more florid since your offending was discovered, with the matter hanging over your head since your arrest in 2022. That will have been extremely burdensome for you knowing that there would be a term of imprisonment at the end of that period.
15Your counsel has urged me to take into account the likely effect of your incarceration upon your mental health. She submits that not only is your depression ongoing, but you have suicidal ideations which should be taken seriously. That must be made clear to those who are responsible for your care whilst you are serving your term of imprisonment. Formally, those matters support the submission that Verdins principles numbers 5 and 6 are to be applied in reducing sentence. I do take those principles into account. There is no dispute by the prosecution that both of those principles apply.
16Your counsel rightly points out the importance of your plea of guilty. It is accepted that it was tendered at an early stage towards the end of the period of the COVID pandemic. You are to be given significant credit for not just your plea of guilty supporting the conclusion that you are remorseful and indicating a willingness to accept criminal responsibility for your offending, but also for reducing the burden on the courts.
17I accept entirely that your admissions to the bank and to the police and your pleas of guilty support the proposition that you are genuinely remorseful and that you are ashamed of your conduct and the effect of your conduct upon your family and your partner. You have become close to your father and your stepmother in Australia. You have been supported by your partner. They are in court today. That is testament to the fact that you enjoy their continuing support. There is a question mark over the extent to which your partner may be permitted to remain in Australia during your incarceration. That too will impact upon your ability to cope with your term of imprisonment. I take that into account.
18It is also relevant to note that you sought help with your gambling addiction and your mental health issues during the period from your arrest by the police and today, which shows that you have taken seriously the need to promote your own rehabilitation. It is submitted that your prospects of further rehabilitation are good. The prosecution accepts that. I have no doubt that you do have good prospects of rehabilitation and that you can ultimately put all this behind you. I would be very surprised if you re-offended in any way for the rest of your life.
19This will have been a very sobering experience for you, and you will feel deeply the impact of your conduct on your partner and your family. I think that that is a considerable deterrent to you from engaging in any further conduct of this kind. Clearly, despite all of these factors which tend to reduce your period of incarceration for these offences, there are other sentencing considerations that I am obliged to take into account.
20Firstly, to denounce your criminal conduct and to punish you adequately for your offending. I doubt whether you need much in the way of punishment to persuade you not to offend again, so individual deterrence is probably not a significant sentencing factor, but general deterrence is a very significant sentencing factor.
21You were a trusted employee of the Bank of China. People put their money in a bank because they think it is going to be safe and that they can rely on bank staff who are given huge responsibility for protecting that money. You had that obligation, you knew you had that obligation. You had come from a banking background, and you were fully aware of the trust that had been reposed in you.
22It is necessary for the courts therefore to make a very strong statement to deter other people who, for one reason or another, are tempted to dip into other people's money as a result of their access to that money through their position of trust within the bank. Therefore it is necessary to impose a term of imprisonment that has the capacity to deter others from engaging in similar conduct.
23Ordinarily these offences would have carried a maximum term of imprisonment of 10 years. Because they involved at least $50,000 in each case, and there were a total of 39 separate transactions in all, each of the three offences now carries a maximum term of imprisonment of 20 years. That does make a very significant difference.
24Doing the best I can to balance the competing considerations of promoting your continuing rehabilitation, giving you full credit for the matters arising from your plea of guilty and the other matters to which I have referred, I now proceed to impose sentence upon you.
25Yuchao Wang, on Charge 1 you are convicted and sentenced to imprisonment for two years.
26On Charge 2 you are convicted and sentenced to imprisonment of two years.
27On Charge 3, which is the rolled-up charge involving the much greater sum of money and 37 separate transactions, you are convicted and sentenced to imprisonment for four years and four months.
28Although each of Charges 1 and 2 pales into insignificance compared with Charge 3, they are nevertheless serious offences, and I order that three months of the sentence on Charge 1 and three months of the sentence on Charge 2 be served cumulatively upon the sentence of four years and four months that I have imposed on Charge 3, making a total effective sentence of four years and 10 months' imprisonment.
29Your prospects of rehabilitation and other factors that I have indicated are to be taken into account, and I fix a non-parole period of three years.
30I declare 13 days' pre-sentence detention as time to be reckoned as served on the sentence that I have imposed upon you.
31But for your pleas of guilty, I would have sentenced you to imprisonment for a period of seven years with a non-parole period of four years and nine months.
32I make the restitution order in the sum of $1,948,164.38 in favour of the Bank of China, who have repaid their customer from whom you obtained the moneys.
33Is there anything else, counsel, that I should refer to?
34MS MORGAN: No, Your Honour.
35MS ZUBRECKYJ: Your Honour, in respect of the CCE offences, s6J of the Act requires the CCE offences to be noted on the court record.
36HIS HONOUR: Yes, thank you, and that will be noted on the court record.
37MS ZUBRECKYJ: Thank you, Your Honour.
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