Director of Public Prosecutions v Wong

[2020] VCC 893

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02466

DIRECTOR OF PUBLIC PROSECUTIONS

v

HO MING WONG

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2020
DATE OF SENTENCE:	18 June 2020
CASE MAY BE CITED AS:	DPP v Wong
MEDIUM NEUTRAL CITATION:	[2020] VCC 893

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Mr J. Brancato	Armstrong Legal

HER HONOUR:

1Ho Ming Wong, you have pleaded guilty before me to 28 charges of theft.  The facts underlying your offending are as follows.  In 2010 you began employment as a call centre consultant at AXA, a company which merged with AMP in 2011 and you were thereafter employed by AMP.

2You were promoted first to team leader and then team manager.  The team manager position you held from 2014 until your dismissal in 2019 when this offending came to light.  Your responsibilities included management of the north service centre team which was part of the wealth management section of AMP dealing with client investments in shares, superannuation, pensions and so forth.

3On 18 July 2019 you went to the Melbourne West police station stating that you wished to confess to stealing $5 million from AMP.  You were interviewed in a record of interview on that day.  You admitted that you withdrew money from a customer's account and paid it to your own account in 2014, but you planned to repay it but gambling took over and you kept going and continued to withdraw more money from other customer accounts.

4You told police that your first method was to reopen accounts which had been closed but which had a tax rebate or distribution.  You said that you used a second method in the previous year, that is 2018/2019, of reversing receipts for payments.

5You stated that no-one noticed the reversal of receipts and that you chose closed accounts because they were less likely to be found.  You said you would withdraw money, pay it back and then withdraw it again and that most of the money went to Sportsbet or Crown Casino.  You also provided spreadsheets to police detailing your offending.

6Following the interview the AMP Risk Management Fraud Team began an investigation into your activities and essentially confirmed what you had told police.  It was established that using the first method which was you accessing accounts which had been reopened by AMP where the account had received a tax refund or profit, you stole a total of $1,307,680.77 from customer accounts.

7At the time there was no internal mechanism to notify the customer whose account had been previously closed that their account was now in credit and clearly you used your knowledge of these accounts to transfer money directly into your own CBA or Sportsbet account.

8In relation to the second method which involved reversing past deposits which had been made into a customer's now closed account you stole $5,083,353.43.  The total amount stolen from customer accounts by you was $6,391,862.20.  I should say that the second method that you used was also unable to be traced, although the reversal created a negative balance at that time within AMP there was no internal mechanism to notify the customer whose account had previously been closed or AMP that their account was now in deficit.

9In other words, your specialised knowledge of these two types of accounts and the transactions and the lack of internal mechanisms meant that you had what must have seemed to you an unending access to monies with which to gamble.

10You told police that you intended to repay the money you had taken from the accounts and an analysis by AMP investigators showed that you did repay $1,078,593.61 in 2015 and 2019 from your CBA and Sportsbet's accounts to the customer accounts from which you had stolen money.

11The balance outstanding is $5,313,268.58.  It was clear from investigations that the vast majority of your money that you stole was used in online gambling via Sportsbet.

12The maximum penalty for theft is ten years' imprisonment. However, pursuant to Part 2B of the Sentencing Act Charges 14, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 are what are called continuing criminal enterprise offences and therefore attract twice the ordinary maximum penalty.

13You are also to be declared a continuing criminal enterprise offender.  No victim impact statements were provided, however at the plea hearing AMP was represented by counsel who stated that all the account holders from whom you had stolen money had been reimbursed by AMP.

14You were charged on 18 July 2019 and the matter was settled to a plea of guilty on 6 December 2019 at a committal mention hearing which proceeded by way of a straight hand up brief.  You, as I have said, entered a plea of guilty at that stage.

15It is quite clear and I will refer to this later in my sentencing remarks that you have essentially created the entire - or provided all the information in relation to the case against you which involved not only a confession but the provision of documentation outlining your thefts.

16It was clear in my view from the prosecution summary that what you told police was simply verified by investigators.  The matter proceeded by way of plea on 12 June and you have been remanded in custody since that date.

17I now turn to your personal circumstances.  You are now aged 36.  You have no prior convictions.  To all intents and purposes you had a very normal and unremarkable childhood.  You are one of two children born to your parents who migrated to this country from Hong Kong 40 years ago.

18Your older sister who is six years older than you worked as a manager in a pharmacy and has a five year old daughter.  Your father worked as chef and he is now retired.  Your mother had the occupation of home duties and your parents made significant sacrifice to ensure you and your sister had expensive private educations.

19In 2002 you completed your VCE with an entry score of 96.9.  You then went to Melbourne University where you undertook a Bachelor of Commerce degree graduating in 2005.  You then travelled to Japan where you remained for about three years teaching English, in that time meeting your wife in 2007.

20You returned to Australia in 2009 and she came afterwards and the two of you married in 2010.  You have a seven year old daughter.  In 2009 you began working at AXA which was then taken over by AMP and were internally promoted as I have said first as team leader and then team manager.

21You were made team manager in 2013 and it would seem from what I have been told both by your counsel and to some extent by the psychological report from Dr Cidoni that you found this stressful and began working long hours.  Your daughter was also born in 2013 and I received a letter of support from your wife who described some difficulties for her in the raising of your daughter.

22She said that after the birth of her daughter she became very tired, she lost interest in the relationship with you in that there was a preoccupation with her daughter.  In her letter she said she came to see you simply as a provider.  All her family are back in Japan.  She would go back to Japan every year and it appears in that time you became more and more involved in your gambling over the years to the point that you said you were constantly on your mobile phone.

23She felt that you were simply not interested in her.  I am going into this in some detail because in fact the origins or the trigger for your gambling still remain something of a mystery.  Dr Anthony Cidoni in his report dated 15 July 2019 said he was unaware of a clear trigger to the escalation of your gambling although he did say it was clear that once your gambling was established chasing your losses was 'an important exacerbating and perpetuating factor'.

24It may be that the two factors, the greater stress of your work and the change in your personal marital situation combined to lead you to escape as is often so clear to this court that gambling addicts do to another world where the troubles disappear.

25In any event, it is not for this court to hypothesise about what led to your gambling.  It remains unclear.  It is however very clear that you did become a gambling addict.  There is no evidence of enrichment.  It is clear that most of the monies went to Sportsbet and that in fact you managed to live almost two lives, one where you were a dutiful husband and father, you paid the rent on your home in Mount Waverley, and your wife knew nothing of your gambling. Possibly because of your specialised knowledge of the accounts and the lack of process that existed within AMP you were able to access large amounts of money over periods of years in a way which meant that your domestic life was in no way affected.

26Certainly Dr Cidoni described you as suffering a gambling disorder and a major disorder which he described as being 'in the context of the incidents'.  It would seem that as time went on you became more and more concerned about what you were doing.

27I received a report from Dr Helen Sweeting who is an addiction specialist at the Delta Clinic which you have been attending fortnightly since mid-2019.  She described you as being someone who wanted to be found out so that the gambling could stop.

28A precipitating factor appears to be that after all these years of gambling at a very high rate you were finally contacted by Sportsbet who noted that your gambling was escalating as was your losses and it is quite clear that the amounts you started taking in the latter part of your offending vastly exceeded that at the start.

29In any event the Sportsbet representative asked you about your losses.  You lied about your income.  She suggested that you go to a counsellor and offered a counsellor and you refused and thereafter your Sportsbet account was closed.  This meant you no longer had ready access to putting monies out of the sophisticated system of sports betting that you were undertaking which was pointed out to me during the plea by the prosecutor, Mr Pickering.

30It would appear that there was a certain ease and capacity surrounding your gambling which allowed you to continue it in the way that you have and which to some extent I have referred to.  There were two parts to it.  Firstly, the undetected amounts of money which were readily available to you and secondly, the ease with which you could bet online.  You simply did it on your phone.

31You did not have to go anywhere.  You were not absent from your home.  You simply retreated into the world of your phone and online betting, if you like.  It would seem that once you were no longer able to bet in this way this prompted you ultimately to make what in this court's experience was the fairly extraordinary step of taking yourself off to police and confessing as you did.

32It is the experience of this court that people who have offended in the way you have, that is as an employee and involving a substantial breach of trust,  are very reluctant to confess their offending.  Normally they are detected as a result of internal mechanisms which extraordinarily were not in existence at AMP.

33However, once they are then discovered generally speaking matters proceed by a sort of drip feeding of information from the offender where certain amounts are confessed to as having been stolen and then it is discovered that in fact more has been stolen than that which was confessed to.  The perpetrator who is then presented with evidence showing that in fact the amounts that they confessed to was inadequate.  The offender then confesses to the greater amount, but always the evidence has to be produced first.

34Inevitably this leads to long and expensive investigations by police usually with the assistance of a forensic accountant.  It is extremely rare for this court to see a case of this kind involving years and years of dishonest behaviour by you, thefts by you, breaches of trust by you, resolved so quickly.

35Ordinarily there are a number of years between the detection of fraudulent activity and the resolution of it in court.  Therefore, it is my view that you are entitled to far more mitigatory weight to be given to the actions you have taken both in alerting authorities to your dishonest activity and to your cooperation in providing the details of it.

36This matter essentially was resolved and a plea of guilty entered within six months.  The authorities make it clear that persons who provide evidence to police which underlies the laying of charges which would not otherwise have been able to be laid are entitled to significant discounts.

37There is clearly an early plea of guilty at the earliest opportunity.  I am satisfied you are remorseful for your actions.  These actions are important because the case of Grossi makes it clear that a gambling addiction cannot be taken by the court as comprising a mitigatory circumstance in a person's offending.

38I am of course satisfied that you did have a gambling addiction but that does not help you in terms of your offending.  I am however impressed by the actions that you have taken since making the decision that this had to stop.  You have attended, as I said, on the Delta Clinic for addiction counselling for a period of eight or nine months involving twice weekly attendance there and the report from Dr Helen Sweeting described you as a person fully engaged in the therapy and it was quite clear in the letter that you wrote to this court that Delta has had a significant effect upon you.

39You appear to have learned a great deal about your addiction and indeed you expressed to the court a desire in the future to work in this field and to assist others.  Hopefully that is something that you can achieve.  I regard your letter to this court as a truly remorseful piece of writing.

40Again it was not particularly helpful in leading the court to some understanding of what led you to offend in the first place.  The depressive condition Dr Cidoni found you to be suffering from he described as reactive to your situation, rather than as something which had existed for some years previously and which led you into addiction in the first place.

41It was his view however that whilst you have experienced some relief in having confessed to an activity of which you were ashamed and for which you felt guilty, the imposition of a term of imprisonment could adversely impact your depressive condition.  He regarded you as a possible suicide risk and he certainly believed you would find the experience of gaol difficult and one which would adversely affect your existing mental health difficulties.

42I accept that.  Ordinarily you are not a person it would seem who would ever have expected to end up before a court charged with serious criminal activity of the kind in which you engaged.  You continue to enjoy the support of your family who are prosocial and have never been in trouble with police.

43I received impressive written references from your parents and from your sister.  You are clearly a much loved member of your family.  You continue to enjoy the support of your wife.  Since leaving your employment in December of last year you have not taken up other employment but you have supported your wife while she has undertaken an online course on technology.

44She is to become the sole breadwinner for she and your daughter and you understand that it may be that in the circumstances she finds that she needs to return to Japan to access the support of the family she has there.  These are all deeply distressing results of your offending and you have canvassed them very comprehensively in the letter that you wrote.

45I regard you as having very good prospects of rehabilitation.  I am satisfied you have actively sought to attend to your gambling addiction both by your attendance on Delta and by your attendance at Gamblers Anonymous another organisation upon which you have been attending weekly and I also received a reference from Craig Adams, a co-attendee, who spoke of the remorse that you showed for your offending.

46Mr Adams wrote, 'My personal assessment of Ho Ming is that at heart he is a kind and humble young man who has shown genuine remorse at the hurt he has caused and holds himself fully responsible and accountable for his actions and behaviours and through change to his life hopes to make amends to those people affected by his addiction wherever possible'.

47He described you as someone he looks to for support and inspiration and says you give that to all members who come into the room.  So that was an extremely positive report and it may be that is where your future lies,
Mr Wong.

48In any event, as I have said in sentencing you I take into account your previous good character, your good work history, although I must note that the offending has been ongoing for a period of years.  I accept that you are remorseful for your offending and you are entitled to a significant discount because of your exceptional cooperation with police.

49You have good prospects of rehabilitation as I have said and in my view you continue to enjoy the support of our family.  You are an intelligent person who is well educated and you have clearly sought to change and to understand the addiction that has led you before this court and facing a gaol term as you are.

50Of course as I have said several times in these sentencing remarks this offending involved a considerable breach of trust over a long period of time.  It was not suggested that I could deal with you in any way other than by a term of imprisonment.

51However, in the very unique circumstances of your case it is my view that specific deterrence and protection of the community are not principles to which I need to have regard.  General deterrence is the main principle of a punitive nature in the sentencing exercise before me.

52In all the circumstances of the case taking into account both the mitigatory and adverse and negative aspects of this situation I have determined that you should be sentenced to a term which involves a greater than usual disparity between the minimum and maximum term.

53I am therefore going to sentence you as follows.  The end result will be a sentence of six years but I am ordering that you serve a minimum term of two years before becoming eligible for parole.  I thought I would tell you that first before I go through the rather tortuous exercise of sentencing you in relation to each of the charges.

54On Charge 1 you are sentenced to three months' imprisonment.  On Charge 2 you are sentenced to four months' imprisonment.  On Charges 3, 4, 5 and 6 you are also sentenced to four months' imprisonment.  On Charge 7, 12 months and Charge 8, ten months, Charge 9, four months, Charge 10, five months, Charge 11, four months, Charges 12 and 13, six months each, Charge 14, two years, Charge 15, six months, Charge 16, 12 months, Charge 17, six months, Charge 18, 12 months, Charge 19, 15 months, Charge 20, 12 months, Charge 21, three years, Charge 22, two years, Charge 23, 12 months, Charge 24, two years, Charge 25, two years and nine months, Charge 26, two years and six months, Charge 27, two years, Charge 28, two years.

55The base sentence will be the sentence imposed on Charge 21, three years' imprisonment.  I order that two weeks of the sentences imposed on Charges 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 15 and 17 be served cumulatively to the sentence imposed on Charge 21 and all other charges.

56I am not ordering any cumulation in relation to Charge 1.  In relation to the following charges I order that one month on each of those charges be served cumulatively to the sentence imposed on Charge 21 and all other charges.  They are Charges 7, 8, 16, 18, 19, 20 and 23.

57I order that three months of the sentence imposed on Charges 14, 22, 24, 27 and 28 be served cumulatively to the sentence imposed on Charge 21 and all other sentences imposed and I order that four months of the sentence imposed on Charges 25 and 26 be served cumulatively to the sentence imposed on Charge 21 and all other sentences imposed in this matter.

58That should lead to a total effective sentence of six years and as I have said I order that Mr Wong serve two years of that sentence before becoming eligible for parole.  I have gone through that a couple of times.  It does add up and it should add up.

59So it should be that in relation to the - so you have got three years at the base and then in relation to the first set of cumulations of two weeks, that should be six months' imprisonment because of two weeks on each and the second lot where there's a one month cumulation that's a further seven months.

60Then where there's three month cumulation that's a further 15 months and then in the last two, eight months, so eight plus 15 plus seven plus six leads to 36 months and then you have already got the three years.  So hopefully that is all in order.

61Pursuant to s.6AAA I declare that had Mr Wong not pleaded guilty I would have sentenced him to a term of imprisonment of seven years with a minimum term of five years.

62MR BRANCATO:  As Your Honour pleases.

63HER HONOUR:  What has happened in relation to the AMP restitution?

64MR BRANCATO:  Your Honour, there has been no further discussion in relation to the AMP restitution.

65HIS HONOUR:  There hasn't?

66MR BRANCATO:  No, there has been no ‑ ‑ ‑

67HER HONOUR:  They can come back and they can make application to me but they were meant to have discussions over that one issue.  If it hasn't happened then I'm not making any orders in relation to that today, that's a matter for them.

68MR BRANCATO:  As Your Honour pleases.

69HER HONOUR:  Is there anything else?

70MR PICKERING:  Yes, Your Honour.  There is just two matters, Your Honour.  Firstly, in case I missed it there was the presentence detention which I think is six days.

71HER HONOUR:  You are right.  How many days is it?

72MR PICKERING:  Six.

73HER HONOUR:  I declare that six days of the sentence I have imposed has already been served by way of presentence detention, of course,
Mr Pickering, thank you.

74MR PICKERING:  If Your Honour pleases the other matter is that there is a need for a declaration as an offender under 6J.

75HER HONOUR:  Yes, sorry, I thought that I was doing that the opening when I went through it but if that is not sufficient I do make the declaration that pursuant to that section Mr Wong is a continuing criminal enterprise offender.

76MR PICKERING:  As Your Honour pleases.

77HER HONOUR:  Is that everything else?

78MR PICKERING:  It is, Your Honour, and I will also make sure that - or at least my instructor who is listening in will make sure that the representative from AMP is aware that if they wish to continue their application they will have to relist it before you at some other stage.

79HER HONOUR:  Yes, they will.  I thought it was a fairly simple one point matter and nothing has happened so I can't be ordering in relation to it today.  I thank counsel very much for their assistance in this matter and as always,
Mr Pickering, you pick up everything I don't do.

80MR PICKERING:  If Your Honour pleases.

81HER HONOUR:  Thank you very much.  We will stand down.

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