Director of Public Prosecutions v Yau
[2023] VCC 1601
•7 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-21-1568 & CR-22-00543
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ELIZABETH YAU |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2023 | |
DATE OF SENTENCE: | 7 September 2023 | |
CASE MAY BE CITED AS: | DPP v Yau | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1601 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – sentence – guilty plea
Catchwords: Sentencing – obtain financial advantage by deception – possessing material for trafficking a drug of dependence – knowingly making a false entry regarding a Schedule 8 poison – failing to record a Schedule 8 poison transaction detail – offender aged 31-33 – 69 individual deceptions – did not cease fraud by own choice – moderately high role and moral culpability – not in any position of trust on deception charges – limited criminal history – low level autism spectrum disorder – methamphetamine-use-disorder – prison environment more difficult due to autism – guarded prospects of rehabilitation – significant utilitarian value of plea in the aftermath of COVID
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:R v Hili [2010] NSWCCA 108; DPP v Dalton [2020] VCC 1504; DPP v Leaman [2019] VCC 687; DPP v Hayes [2014] VSCA 309; CDPP v Petzieridies [2019] VCC 188; DPP v Munn [2019] VSCA 267; DPP v Kovacevic [2020] VCC 949; DPP v Napoli [2021] VCC 952; DPP v Sharp [2021] VCC 1433; DPP v Tambakis [2017] VCC 697; Melnikas v The Queen [2016] VSCA 112.
Sentence: Total effective sentence 1 year 9 months with a non-parole period of 11 months; 51 days reckoned as already served; 6AAA: 2 years 9 months imprisonment with a non-parole period of 22 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | M. Cookson | Office of Public Prosecutions |
| For the Accused | K. McKay | Furstenberg Law |
HIS HONOUR:
1Elizabeth Yau, you have pleaded guilty to three charges of obtaining financial advantage by deception relating to events between 22 March 2016 and 15 September 2017.
2You have also pleaded guilty to unrelated charges on appeal from the Magistrates' Court (AP-21-1568): Charge 2 - possessing material for trafficking a drug of dependence; Charge 5 – knowingly making a false entry regarding a Schedule 8 poison; and Charge 6 – failing to record a Schedule 8 poison transaction detail.
Offending on Indictment
3By way of background, in 2016-17 the Victorian State Revenue Office (SRO) and the Queensland Department of Employment and Small Business Training (the Queensland Department) provided financial relief to employers for costs associated with hiring and training employees. The Victorian Scheme was called the 'Back to Work Scheme' and the Queensland Scheme was called the 'Back to Work Programme'.
4Once an application under either scheme was approved, an employer would receive two payments. The first, for hiring, ranged from $3,750-$12,000 per employee and could be paid into two instalments. The second, for employee training, was for $3,000 for part-time employees or $4,000 for full time employees.
5Between 22 March 2016 and 31 December 2016 you made 30 separate claims against the Victorian scheme using fraudulent supporting documentation and false information about the employment opportunity you proposed. As a result, the Victorian Scheme paid $110,000 into your nominated bank account and $50,000 into the account of another (Charge 1 (rolled up)).
6Between January 2017 and 24 July 2017 you made a further 24 claims against the Victorian Scheme. The documents you provided in support of these claims were fraudulent. The information you provided the SRO about the employment was false. A portion of these claims were successful. You were paid $96,410 and an additional $8,500 was paid into an account held by another (Charge 2 (rolled up)).
7Between 6 March 2017 and 15 September 2017, you submitted 47 claims against the Queensland Scheme. You used fraudulent documents in support of these claims and false information about the proposed employment. As a result, you were paid $167,000 into your account and $120,000 into an account held by another (Charge 3 (rolled up)).
8For each claim you provided fraudulent employment contracts and payslips, which you manufactured, attesting to having full-time or part-time staff. You provided each scheme fraudulent payment histories. You used multiple passwords to access correspondence between you and the schemes under numerous business email accounts. You gave fraudulent information about the identity of eligible employees as well as their average hours and salary. You obtained photographs of various peoples' driver licenses to submit alongside each claims.
9You were required to declare that all information you provided was true and correct, which you did, dishonestly.
10The SRO interviewed you three times about the circumstances covered by Charges 1 and 2.
11During the first interview on 12 November 2018, you were partly evasive, for example, stating that you filled in applications on behalf of your partner, that you did not know where the bank documents came from and that some employees were legitimate but their claims were fabricated.
12Eventually, however, you admitted to defrauding the scheme and estimated the total you had received at 'above $100,000'. You later agreed the correct amount to be around $200,000. You stated that, among other things, you used the money to pay your debts, service your mortgage and to get your partner to move out of the house.
13During the second interview on 1 March 2019, you admitted that, although you could not recall particular names, the identification details of employees and employers were made-up.
14You admitted during a third interview on 22 July 2019 that the supporting documentation you used in support of each claim was false.
15Investigators from the Queensland Department did not interview you.
Sentence Appeal
16Your offending covered by the sentence appeal is detailed in the Summary dated 23 July 2021 which I adopt.
17In short, on 15 October 2020 police executed a search warrant at your address in Colac. They seized a number of chemicals:
(a) A glass container containing about 5.8 grams of hypophosphorous acid;
(b) A glass jar containing 86.6 grams of pseudoephedrine of which 18 grams were pure;
(c) A plastic bottle of liquid methylamphetamine with a very low purity; and
(d) A bottle containing 97 dexamphetamine tablets totalling 19.7 grams. The bottle's identification label was tracked to the Colac Pharmacy where you had been working.
18Police also seized assorted drug paraphernalia some of which contained traces of amphetamine and solvents including hypophosphorous and pseudoephedrine. They also found instructions and manuals for manufacturing methylamphetamine in your house and on your phone (Charge 2 – possession of materials, substances and equipment to trafficking a drug of dependence).
19Later, police discovered that on 22 February 2020 you had logged the release of one bottle of Dexamphetamine from the Colac East Pharmacy 'drugs of addiction' register. You did not, as required, have that log co-signed by a second pharmacist. You noted the reason for its release as being for destruction because it had expired. In fact, it had not expired. Rather than destroy it you took it home (Charge 5).
20You did not record your address in the register as required of persons to whom a Schedule 8 poison, such as Dexamphetamine, is transferred or released for disposal (Charge 6).
Procedural history
21You were not arrested until 15 October 2021, when police took you to Colac Police Station and questioned you. You made no comments.
22You indicated your intention to plead guilty on the summary matter at the first listing in the Magistrates' Court on 10 November 2021. The indictment matter was resolved on 6 April 2022, when you were committed. Your guilty pleas in both matters were made at an early stage in each proceeding.
23I note the indictment matter was adjourned for a lengthy period after April 2022 through no fault of your own.
24Your plea is of significance. It has saved the community the cost and time of a trial and this is of even greater value because the Court is beleaguered by a backlog of trials from the COVID-19 pandemic and I will moderate your sentence accordingly.
25I accept that your approach to these matters reflects an acceptance of responsibility and a willingness to facilitate the course of justice. It is also consistent with remorse.
Personal circumstances
26You are now 38 years old and you were between 31 and 33 at the time of your offending on the indictment and 36 when police located the drugs and equipment at your home in Colac.
27Your parents migrated to Australia from Vietnam. They established themselves in Tasmania where you and your younger brother were born. Your early homelife was free of conflict and you enjoyed a supportive environment and encouragement to engage in academic, musical and sporting activities.
28You went to primary school in Hobart where you did well academically but struggled socially. You spent most of your time in those formative years rather isolated.
29Tragically, your father died when you were around 12 years old and about to commence high school. You completed Year 10 in Hobart before completing Years 11 and 12 on a scholarship in a private school in Melbourne. You say you did not get along well with other students and that you were bullied. You returned to Hobart where you commenced a degree in Pharmacy.
30Your drug use commenced while at university. Initially, you used MDMA at nightclubs to connect with others. You then started using methamphetamine with others and became dependent on it.
31Your use steadily increased when you returned to Melbourne to undertake a traineeship with a pharmacy in Burwood and over time your consumption reached about half a gram of ice per day.
32
In that context you began an intimate relationship with Simon McGraw, your
co-offender. He would come to your home in Clayton North where you would both use that drug. You invited him to live with you, but the relationship over time became dysfunctional.
33You report that Mr McGraw soon began using your bank cards for things like food, transport, medical bills and drugs. You say that even after you blocked or closed an account, he would nevertheless find a way to gain access. Despite this you say he offered you an emotional security which had until that point been absent in your life. You describe how you became reliant on his company regardless of his treatment of you because 'he was the only person [you] had to hang out with'.
34Having set out those contextual matters, however, your counsel conceded that you were not engaging in your offending under any duress.
35As for your professional career, following your traineeship you successfully applied to the Australian Health Practitioner Regulatory Agency (AHPRA) for registration as a pharmacist, which was granted. This required you to adhere to the Health Practitioner Regulation National Law 2018 (Vic). Relevantly, this required you to not practice in a way that constitutes a significant departure from accepted professional conduct standards and to disclose any such thing to the regulator immediately if that were to occur.
36As a registered member of the profession, you worked at pharmacies in Karingal and Knox for about three to four years before undertaking locum positions across Victoria. As a locum pharmacist you worked in regional locations for five days a week and returned to Melbourne on weekends. You have admitted that during your locum work you were unreliable at times because of your methamphetamine use. You were dismissed from a number of these positions as a result.
37In 2017, you commenced working at Colac Pharmacy, which you maintained until your arrest in 2020. Shortly afterwards, the AHPRA suspended your registration with a final determination pending the sentence in this case.
38In her report dated 18 December 2021 (Exhibit 1), Forensic Psychologist Pamela Mathews diagnosed you as having a low-level autism spectrum disorder. She identified behavioural factors such as detachment and compliance that have contributed to your social isolation and made you vulnerable to emotional manipulation. She opines that a combination of social and emotional deficits related to your diagnosis is associated with your offending and in addition would make any time you spend in custody more onerous.
39In his report dated 10 July 2023 (Exhibit 2), Clinical and Forensic Psychologist Patrick Newton agreed with Ms Mathews' diagnosis. He stated that your presentation reflects the core features of an autism spectrum disorder. He stated that it has impacted upon your capacity for judgment and reflection about your actions as well as vulnerability to exploitation at the hands of your former partner. He said that although the impact was relatively mild they were nevertheless real.
40Mr Newton also stated that your drug consumption at the time of your offending would meet the criteria of methamphetamine-use-disorder of moderate intensity. Despite your professional training and employment, you display poor insight into your drug use by tending to downplay its risks and, as at the time of your interview, lacked an understanding of relapse prevention. While its likely you have been in remission during your time on remand, I accept Mr Newton's opinion that should you be released into the community without supports you are at an elevated risk of returning to drug use.
41I also note Mr Newton's agreement with Ms Mathews that the prison environment would be more difficult for you than for other prisoners on account of your autism.
42Save for the offending before this Court your criminal history is very limited. In 2017 you appeared in the Magistrates' Court for using a carriage service to harass and intending to distribute an intimate image of another for which you were discharged upon compliance with your undertaking. I do not give your history much weight if any in the sentence I am to impose on you today.
Sentencing considerations
43The maximum penalty for each deception charge is 10 years' imprisonment. The maximum penalties for summary Charge 2 is 10 years; for Summary Charges 4 and 6 it is 50 penalty units each.
44In total, the two schemes paid $373,410 into your bank accounts – you had 16 of them. The total you caused to be deposited into other accounts was $178,500.
45As to the seriousness of the deceptions, I note the number of individual claims you made on the schemes and that none of the numerous pieces of information and documents you provided to the schemes was truthful. This is not a case of mere overstatement of otherwise true facts or entitlements. While you did not use concocted identities for the accounts to which the money was paid, you did use multiple accounts, which reduced the likelihood, in my view, that the fraud would be detected. It cannot be said that you ceased the fraud by your own choice, rather it was because the schemes ceased operation. The amount of money you obtained for yourself and others was very substantial, even if not in the highest category of cases.
46Your counsel noted that there were no personal victims, that is, your conduct may be distinguished from cases where a professional person defrauds a client. In keeping with the principles set out in cases of defrauding the Commonwealth, such as Centrelink fraud, this at best is an absence of an aggravating feature. Cheating the public purse is not a victimless crime.
47As Rothman J said in Hili [2010] NSWCCA 108 at [13] of self-assessed government schemes (in that case, relating to income tax), they repose of the taxpayer
'a heavy duty of honesty. The practical restrictions on the capacity of government to apprehend offenders for every offence necessarily requires that the legislature and the courts ensure that deceitful conduct, in a commercial enterprise, once discovered, is appropriately punished. Deterrence looms large.'
48Your counsel submitted that your moral culpability was reduced because you live with an autism spectrum disorder described to be of a level 1 type, or Asperger's disorder. Mr Newton stated that its effects would have been relatively mild, nevertheless real. It was submitted that this should reduce the weight to be given to general and specific deterrence and will likely make any time you spend in prison more onerous because your prospects of negative interactions with others will be increased. The prosecutor submitted that any such reduction could only be mild. In assessing this, I have taken into account that, while engaging in the offending conduct, you were holding down responsible positions as a pharmacist and that the nature of that work, and indeed the offences, required you to engage in processes of varying complexity and judgment. While I agree that your mental condition is relevant in the ways submitted, the weight to be given to it in sentencing is mild.
49On the deception charges, I have not arrived at your sentence based on them involving a breach of trust due to you being a professional practitioner. While your offending involved significant dishonesty and misleading conduct that falls well below what I regard to be reasonable standards for proper professional conduct, I cannot say that you were in any position of trust on these charges that enabled you to offend in that way. So much cannot be said of your offending the subject of the appeal.
50In all those circumstances, I find the seriousness of your offending to be moderately high. The same is to be said about your role and moral culpability.
51By your own actions in these cases, you have been suspended from practicing and I accept that you did not challenge this decision, which may reflect some insight on your part. I cannot speculate about what actions the AHPRA might take, but it would seem likely that you have either destroyed or at least seriously hampered any prospect of returning to your chosen career. This is a real consequence and I expect it will provide a constant reminder of your crimes. I take that into account.
52Your property has been restrained by the criminal assets confiscation authorities. I accept that you have cooperated with their processes and that ultimately this will likely recompense the States for their losses. On the material before me, however, I am unable to find whether or not the obtaining of your property was directly or indirectly connected to the offending. As such, I am not able to reduce your sentence based on the prospect of any loss of the restrained property, now confiscated.
53Your counsel submitted that you no longer use drugs and that you have gained insight into your needs and the offending. However, I have received no independent evidence that supports this. I would need such evidence before I could justify any real reduction in sentence on this basis. I accept that there are no pending or subsequent allegations of wrongdoing and this is positive.
54I accept that you are somewhat remorseful for your conduct and that it is reflected in the attitude you have taken to the restraint of your property. I have some concerns based on the opinion of Mr Newton, however, about your levels of insight.
55I find your prospects of rehabilitation to be guarded, but not poor. While you have no criminal history, the total offending before me is not limited to a single or only a few incidents. The deceptions were ongoing, involving many discrete dishonest actions over time, and your offending in 2020-21 disclose further dishonesty and other acts of gross misjudgement in breach of your professional obligations.
56I do not regard your offences to be on par with Mr McGraw, while I accept that he was involved in the same events. He was charged in relation to smaller amounts of money totalling about $90,000 and not the repeated dishonest claims against the schemes.
57I do not, however, find that I need to give increased weight to specific deterrence or protection of the community in all the circumstances.
58Each of Charges 1, 2 and 3 is a 'rolled up charge', with your agreement. This means that each charge reflects numerous individual deceptions, 69 in total, and you face only a single maximum penalty for each charge. I am nevertheless permitted to have regard to the overall extent of your offending in respect of each individual charge when determining the appropriate sentence.
59The prosecutor referred me to a number of comparable cases, namely, DPP v Dalton,[1] DPP v Leaman,[2] and DPP v Hayes.[3] Your counsel also referred me to a number of cases, namely, CDPP v Petzieridies,[4] DPP v Munn,[5] DPP v Kovacevic,[6] DPP v Napoli,[7] DPP v Sharp,[8] DPP v Tambakis,[9] and Melnikas v The Queen.[10]
[1] [2020] VCC 1504
[2] [2019] VCC 687
[3] [2014] VSCA 309
[4] [2019] VCC 188
[5] [2019] VSCA 267
[6] [2020] VCC 949
[7] [2021] VCC 952
[8] [2021] VCC 1433
[9] [2017] VCC 697
[10] [2016] VSCA 112
60I have had regard to and read each of those cases as to current sentencing practices as revealed in these cases. However, each case turns on its own facts, and I do not regard myself to be bound by any of the individual sentences in the cases I have listed.
61As to assessing the totality of your criminality, I have had regard to the common features and practices that each charge represents, but also that they also reflect separate occasions and moneys received. In those circumstances, I will make orders for partial cumulation of the individual sentences.
62I am mindful of it being six years since the end of your offending against the two schemes. Although, your further drug-related and dishonest offending occurred as recently as 2021. I accept these proceedings have been hanging over your head since your first interview with SRO investigators on 12 November 2019, which has no doubt been stressful. I also note that you cooperated with those investigators to a significant although not a high degree at first.
63I sentence you as follows:
(a) On Charge 1 on the indictment for obtaining financial advantage by deception, 13 months;
(b) On Charge 2, 14 months;
(c) On Charge 3, 16 months.
64I direct that three months of the sentence imposed on Charge 2 and five months of the sentence imposed on Charge 3 be served cumulatively upon each other and the sentence on Charge 1 resulting in a total effective sentence of one year and nine months.
65I fix a non-parole period of 11 months.
66On the charges the subject of the appeal, I set aside the orders of the magistrate and on Charge 2, I impose imprisonment for three months and on Charges 5 and 6, I fine you with conviction an aggregate of $2000.
67Two months of the sentence imposed on the appeal is to be served cumulatively upon the sentence imposed on the indictment.
68You have served 51 days of pre-sentence detention, and I declare that this period is to be deducted administratively from the sentence that I have imposed.
69
In accordance with section 6AAA of the Sentencing Act 1991, I declare that but for your guilty plea, I would have imposed a total of two years nine months with a
non-parole period of 22 months.
70I have made orders for compensation on an earlier date, which permitted the funds and or property that was restrained or realised to be disbursed appropriately.
71I make the order for forfeiture of electronic devices et cetera, as sought, which you did not oppose.
72I grant the disposal order, unopposed, relating to documents in the deception case.
73I also make the unopposed disposal order on the appeal for the drug paraphernalia.
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