Director of Public Prosecutions v Yeoh
[2016] VCC 54
•10 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01740
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YONG HENG YEOH |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 28 January 2016 | |
DATE OF SENTENCE: | 10 February 2016 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Yeoh | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 54 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – conspiracy to defraud
Legislation Cited: Crimes Act 1958, s320; Sentencing Act 1991, Migration Act 1958 (Cth), s501(3A)(e) and (b), s501(6)(a) and s501(7)(c)
Cases Cited:Director of Public Prosecutions v Neoh [2014] VCC 229; Director of Public Prosecutions v Shuang [2015] VSCA 96; Phillips v R [2012] VSCA 140
Sentence: Convicted and sentenced to a period of imprisonment of 24 months with a non-parole period of 15 months. Section 6AAA declaration: convicted and sentenced to a period of imprisonment of 36 months with a non-parole period of 26 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T. Teague | Office of Public Prosecutions |
| For the Accused | Mr A. Malik | Victoria Legal Aid |
HIS HONOUR:
1 Yong Heng Yeoh, you have pleaded guilty to an offence that you, at Melbourne between 27 December 2012 and 23 May 2013, conspired with Fu Yong Joeson Neoh and other persons unknown to the Director of Public Prosecutions, to defraud the Australia and New Zealand Banking Group Ltd, which I shall refer to as ANZ.
2 Such crime is contrary to common law and s.320 of the Crimes Act 1958, and carries a maximum penalty of 15 years’ imprisonment.
3 The prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit (“Exhibit 1”) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)You are 55 years of age (born 2 March 1960) and are a Malaysian citizen who entered Australia in 2011 on a Tourist Visa which has now expired. You are currently an unlawful non-citizen;
(b)The first complainant is Danny Seng, who is the holder of an ANZ cheque account. When on holidays in Singapore on 31 December 2012, he was contacted by his sister to say that the ANZ had frozen his account due to fraudulent activity;
(c)When Seng returned to Australia on 7 January 2013, he was informed by ANZ that:
(i)his telephone number and address had been altered on the ANZ database following a call from a person purporting to be Seng;
(ii) a new Visa account had been established under his name; and
(iii)$180,000 had been transferred from his original account to the new account by internet banking.
(d)Police investigations have established that on 27 December 2012, you received the Visa card from a man known only as “Handsome guy” in the name of Seng, together with matching PIN. “Handsome guy” then drove you to various ANZ branches in order to withdraw money from the newly established account;
(e)You were unsuccessful in attempting to withdraw $3,000 from the ANZ Chadstone Branch and $7,500 from the ANZ Doncaster Branch. However, you successfully withdrew the following amounts:
(i) $8,000 from the ANZ Box Hill Branch;
(ii) $40,000 from the ANZ Mt Waverley Branch;
(iii) $5,000 from the ANZ Balwyn Branch; and
(iv) $3,000 from the ANZ Burwood Branch;
(f)The second complainant, Boon Leong Tay, held an ANZ account. After settling the sale of a property in December 2012, Tay deposited the sum of $439,608 in the account;
(g)On 23 May 2013, Tay was informed by the ANZ that $495,000 (being the $439,608 together with other funds in the account) had been transferred from his account;
(h)Investigations by the ANZ revealed that:
(i)an unknown person purporting to be Tay used telephone banking to change the contact details on the account on 16 and 18 April 2013 and 14 May 2013;
(ii)on 29 April 2013, an unknown person purporting to be Tay opened another ANZ account in the name of Tay by internet banking;
(iii)on 23 May 2013, the sum of $470,000 was transferred by internet banking from Tay’s original account to the new account;
(i)On 23 May 2013, you again met with “Handsome guy” and was given a false Chinese passport and an ATM card. You were driven to the ANZ South Melbourne Branch and there withdrew $300,000 in cash;
(j)Prior to the withdrawal of $300,000, a further $160,000 was transferred by you to a different account which had been set up by you. $70,000 of this money was withdrawn over the following days by a co-offender, Fu Neoh, before the ANZ became aware of the fraud and stopped the accounts;
(k)On 24 June 2015, the co-offender, Fu Neoh, made a statement to police identifying you;
(l)On 10 July 2015, you contacted police and surrendered yourself on the following day, at which time you were arrested and conveyed to the Monash Criminal Investigation Unit where you participated in a tape-recorded record of interview. During the course of such interview, you stated:
(i)you entered Australia on a Tourist Visa in 2011 and never returned to Malaysia;
(ii)you met with a co-offender, “Lan Chan”, meaning “Handsome guy”, as you had been told that “Handsome guy” would make some money for you;
(iii)you had to give the co-offender a photograph to arrange false identification. When you were reluctant to proceed, “Handsome guy” demanded $10,000 in payment of money he had already spent on the false documents;
(iv)you would receive 10 per cent of the money that you obtained. In particular, you received 10 per cent of the withdrawals made from Seng’s “accounts” and $30,000 from taking out $300,000 from Tay’s “account”;
(v)you were taken to the Branch and given instructions by the co-offender as to how you went about the withdrawals.
The co-accused Fu Neoh
4I was informed by counsel for the prosecution that the co-accused, Fu Neoh, had been sentenced by his Honour Judge Parsons on 13 March 2014 following a plea hearing on 25 February 2014. I was advised by counsel for the prosecution that there was no issue that a different judge was hearing your plea. Counsel for the prosecution informed the Court that although there would be some issue of parity – that is, the legal principle that requires that like cases should be treated alike, there were differences in the roles played by you and Neoh, who also had antecedents which were taken into account in his sentence.
5
Counsel for the prosecution tendered the Summary of the Prosecution Opening in the plea involving the co-accused, Fu Neoh (see Exhibit 3) and also the Reasons for Sentence by his Honour Judge Parsons on
13 March 2014 (DPP v Neoh [2014] VCC 229). I shall return to this information later in these sentencing remarks.
Your personal circumstances, educational and vocational background
6 Your counsel tendered written plea submissions (see Exhibit “A”). On the basis of such document and various other information put to the Court by your counsel, I note:
(i) That you were born in Penang, Malaysia, and you are one of four children, having two other brothers and a sister. Your family was relatively poor, with your father working as a hawker, selling meat;
(ii) You commenced working at about the age of 14 when still at school to support your family. Your counsel described such work as “hot, hard work”. You ultimately left school at the age of 15 and began working full time doing whatever was available but in particular, worked in a used car business and a furniture wholesale shop;
(iii) You married in 1983 and have a daughter born that year and a son born later in 1985. You continue to be married but your wife has remained in Malaysia and you have had no contact for about 12 months. Your daughter also continues to live in Malaysia. Your son came to Australia for about three years and was deported at about the same time as your arrest;
(iv) Your father came to Australia in 1980 with your younger brother and in the late 1980s your sister followed, and then your mother in 1995. Your father, younger brother and sister all became Australian citizens. Your mother died some seven to eight years ago but your father, together with your younger brother and sister and their families, continue to live in Australia;
(v) That since being in Australia you have had regular work and were paid by “largely cash in hand”. Prior to your incarceration, you rented a room in a shared house.
Circumstances surrounding the offending
7
You have instructed your counsel that you were introduced to the man known as “Handsome guy” through a friend with the offer of “fast money”. Some two to three weeks later you were contacted by “Handsome guy” and told that they would go to a bank the following day. In particular, you instructed your counsel that you refused to take any further part in the operation, after which
“Handsome guy” demanded $10,000 from you and further, threatened your family.
8 At the time of the offending, you were working in a grocery shop, delivering vegetables and had limited income. Your counsel submits that the primary purpose of the offending was financial gain and that you used the money obtained as a result of the criminal activity to pay rent, bills and other living expenses involving gambling and assisting your family. Your counsel described your gambling habit to be “modest”.
Submissions made by your counsel in support of your plea in mitigation
9 Although your counsel fairly conceded that there were no significant mitigating factors and that at one level you were simply attracted to what was described as “quick, easy money”, he did highlight the following matters:
(i) You contacted police and volunteered your participation in the offending during the record of interview. Furthermore, you indicated an intention to plead guilty at your committal mention on 8 October 2015, which is accepted to be at the earliest opportunity. In such circumstances your early plea of guilty had the utilitarian effect of saving the time and cost of a trial and furthermore, so it was submitted, such plea and your cooperation with police is evidence of remorse in relation to this offence. In particular, you have informed your counsel that you are too “ashamed” to tell your family details of the charge against you and furthermore, have instructed your solicitor not to contact your family;
(ii) There is no record of any offending prior to this particular offence;
(iii) While your offending was a necessary part of the conspiracy to defraud, you were at the lower end of the hierarchy and had no involvement in the acquiring any false documents or contacting the banks to change the accounts. Your role was limited to being given the counterfeit documents and/or PIN numbers and you were told to withdraw various amounts from different bank accounts;
(iv) Given the likely sentence in this matter, and bearing in mind that you have no visa status, it is probable that you will be deported at the completion of any custodial sentence. In such circumstances, the fact of deportation is relevant as a mitigatory factor insofar as you will be deported from this country and unable to come back to this country in circumstances where your father, younger brother and sister, together with their families, continue to live;
(v) Your counsel submits that going back to Malaysia will be very difficult for you as you are estranged from your family and you do not know whether, on your return, you will resume habitation with your wife. Furthermore, you have little work skills and you are unsure of your future in your home country;
(vi)
Taking account of your age and your lack of prior convictions, together with your remorse, it was submitted that the prospects of you
re-offending were “low”.
10 In response, counsel for the prosecution accepted that you did cooperate with the police, made full admissions as to the offending and pleaded guilty at the earliest possible time. He did point out that it is a matter for the Court as to whether you are remorseful because you have been caught or because, as your counsel has submitted, that you are actually “sorry” for your offending.
11 In particular, counsel for the prosecution referred to the Court of Appeal decision of Director of Public Prosecutions v Shuang[1] which makes clear that deportation cannot be treated as a mitigating factor unless the chances of deportation can be quantified.
[1][2015] VSCA 96
12 However, as the Court of Appeal notes in that decision, the recent amendment to the Migration Act 1958 (Cth) by the insertion of s.501(3A) clarifies in what circumstances the appropriate Minister must cancel a visa and deport someone, and in such circumstances, the chances of deportation can be quantified and be the basis of a mitigatory factor in any plea.
13 In such circumstances, counsel for the prosecution accepted that it is open for the Court to take into account as a mitigatory factor that in the event that you are deported, you will lose contact with various members of your immediate family and their extended families as a result of such deportation.
14 Furthermore, it was submitted that it is a matter for the Court to assess the allegation that you were coerced by “Handsome guy” and it would be necessary for the Court to be satisfied of such on the balance of probabilities. Counsel for the prosecution also accepted that it was a crime of opportunity where you were seeking to make what was referred to as “quick money”.
Conclusion
15Conspiracy to defraud is a serious offence, as is made clear by the maximum penalty of 15 years’ imprisonment. The fraudulent scheme involved, as far as you were concerned, the acquisition of various counterfeit documents including passports, Visa cards and ATM cards, used to ultimately withdraw money from various financial institutions. Although not clear how others in the conspiracy obtained sufficient details to be able to change accounts and PIN numbers, such information was obtained in pursuit of the conspiracy to defraud. Your particular role was to enter any particular financial institution with the counterfeit documents, seeking to obtain various monies.
16 I do accept that you were not involved in the setting up of the scheme to defraud or were involved in any way in its day-to-day management. However, clearly enough, you were well aware of the illegality of your actions and it must be borne in mind that such offending occurred on 27 December 2012 and on 23 May 2013, when on each occasion large amounts of money were withdrawn fraudulently from various accounts.
17 Although at the lower end of the chain, the fraud could only be completed by you being willing to enter the various financial institutions claiming to be the account holder and producing the counterfeit documents. Such fraud is of a serious nature because of the amounts of money involved, the sophistication of the fraud and that it extended over some period of time.
18 I consider that the sentencing principles of denunciation and general deterrence are particularly important as the offending goes not only to deprive people of their rightful entitlement to monies held in banks, but also has the potential to diminish confidence in our banking system. I also consider that specific deterrence is an important feature, although perhaps not as important as the other features, given that it is highly likely that you are to be deported after the completion of any prison sentence.
19 I do accept, consistent with the submissions of your counsel, the following matters should be taken into account in mitigation of any sentence:
(a) Your plea of guilty was accepted by counsel for the Director of Public Prosecutions to be at the earliest possible time. Although the case against you would appear to have been quite strong, given the potential evidence of some of your co-conspirators, a plea of guilty at the very least has utilitarian value in saving the time and cost of a trial. (See Phillips v R [2012] VSCA 140 at paragraph 36). However, it is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (again, see Phillips v R at paragraph 96. In the circumstances of this matter, I do consider that the early plea of guilty, and more particularly, the co-operation shown by you when dealing with the relevant authorities, does permit me to infer that you have some remorse for your offending. I also accept that you have felt shame in relation to your offending, as evidenced by not advising your family of your criminal activities;
(b) You have no criminal record;
(c) Your role in the offence, as I have described, can be seen as at the lower end of the scale and you had no involvement in the general planning or management of the fraudulent scheme. However, as I have already noted, it must not be forgotten that your role was a necessary role for the conspiracy to succeed;
(d) On balance, I do accept that your chances of re-offending are best described as moderate. I take into account that you have no criminal record prior to this particular event and seemingly, had some “second thoughts” about the offending after providing “Handsome guy” with a photograph of yourself so a false passport could be made. In this respect, I do accept, on balance, that “Handsome guy” did demand a certain amount of money from you, given the work that he had done after the photograph had been given by you and also may well have made some threats to your family. Of course, this must be balanced with what I consider to be your motive for the offending – that is, to make “quick money” for no other reason other than essentially, your use;
(e) I also accept that it is a relevant mitigatory factor that given the high probability that you will be deported after the completion of any custodial sentence, such deportation will have some impact on you and you will be unable to return to this country and lose physical contact with your father, younger brother and sister and their respective families.
The issue of deportation in relation to the sentencing of an offender has become more certain since the amendment of the Migration Act 1958 (Cth) by the insertion of s.501(3A). That section requires a relevant minister to cancel a visa if the visa holder is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a state or a territory, or if the person has been sentenced to a term of imprisonment of 12 months or more – see s.501(3A)(e) and (b), s.501(6)(a) and s.501(7)(c) of the Migration Act 1958 (Cth). This amendment was commented on by the Court of Appeal in Director of Public Prosecution v Zhuang [2015] VSCA 96 at paragraph 94, wherein Redlich, Priest and Beach JJA stated:
“The issue of deportation and the consequences for the respondent were identified by the judge in a passage in his reasons, which I have already set out above. His Honour took a very favourable approach to the issue so far as the respondent was concerned. No complaint of specific error is made by the appellant in relation to the judge’s treatment of the issue of deportation. The judge’s conclusion, however, appears inconsistent with authority that deportation cannot be treated as a mitigatory factor if, as the trial judge found, it is ‘not feasible to sensibly quantify the level of the risk that [the respondent] may be deported’. That said, since the sentencing of the respondent, the Migration Act 1958 (Cth) has been amended by the insertion of s.501(3A). That section requires the relevant Minister to cancel a visa of the kind possessed by the respondent if the visa holder is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, State or a Territory, or if the person has been sentenced to a term of imprisonment of 12 months or more. Absent some further amendment to the Migration Act between now and the completion of the respondent’s sentence, the respondent can now expect, with some certainty, to be deported upon her release from custody. The prospect presently being capable of quantification, it is now a mitigatory factor which, as the judge had already found, would increase the burden of her sentence. Whether the approach explicated in the authorities of Guden and Peng will continue to apply in the light of the amendment to the Migration Act which renders deportation certain in the case of certain offences, is not a matter we need to consider.”
20 Considering that other members of the conspiracy have been previously sentenced, and in particular, the sentence of his Honour Judge Parsons in relation to the co-offender, Fu Neoh, on 13 March 2014, it is necessary I take account of what is referred to as the “parity principle” which requires that like cases should be treated alike and that if there are relevant differences, due allowance should be made for them.
21
Fu Neoh pleaded guilty before Judge Parsons to two counts of false information contrary to s.234(1) of the Migration Act 1958 (Cth) and one charge of conspiracy to defraud over the period from 26 August 2012 to
27 November 2012, and a further charge, a fourth charge of conspiracy to defraud over the period from 23 May 2013 to 27 May 2013. I was informed by counsel for the prosecution that Charge 4 in the Neoh matter relates to your offending involving the complainant, Tay.
22 Ultimately, his Honour Judge Parsons convicted and sentenced Neoh as follows:
(a) In relation to the first charge involving false information, to a period of imprisonment of six months;
(b) In relation to the second charge involving false information, to a period of imprisonment of nine months;
(c) In relation to each charge of conspiracy to defraud (which included, of course, Charge 4), to a period of imprisonment of two years and six months.
23 There are several differences between the position of Neoh and your present position. Such differences are:
(a)
Neoh had a prior conviction on 23 November 2010 when he was sentenced in the Geelong Magistrates’ Court on three charges of obtaining property by deception and one charge of attempting to commit an indictable offence. He had initially come to Australia on
8 August 2010 and was ultimately arrested on 22 November 2010, accused of using a false credit card;
(b) On 23 November 2010 his Visa was cancelled and he was detained in Immigration detention and deported to Malaysia on 31 December 2010;
(c)
In February 2012 he changed his name in Malaysia to Fu Yeong Josoneo, applied for a new passport in that name and on
8 February 2012, returned to Australia. On his return he gave false information that he was entering Australia for a seven-day holiday, falsely declaring that he had not been previously convicted of a criminal offence in Australia, and when applying for a temporary Student Visa, gave false information regarding his criminal history and the fact that he had also been deported from Australia;
(d) However, it must also be noted that whereas the charge to which you have pleaded guilty involved fraudulent activity on two distinct, separate occasions, Charge 4 involving Neoh related to one episode of fraudulent activity. It must also be noted that the extent of Neoh’s fraud in relation to Charge 4 not only involved attending the bank to withdraw money, but also involved making calls to the bank and also arranging fraudulent transfers of money from one bank account to the other.
24 Overall, I consider your culpability to be lesser than that of the co-accused, Fu Neoh. However, in all of the circumstances, I consider that a custodial sentence is necessary given the seriousness of the fraud. Furthermore, in the process of determining an appropriate sentence, I do not consider the imposition of a Community Correction Order would be appropriate for the following reasons:
(a) the seriousness of the offending warrants a custodial sentence;
(b) issues of parity would arise if such an order was made;
(c) in any event, a Community Correction Order would be rendered nugatory give the likelihood of your deportation.
Sentence
25 Please be upstanding, Mr Yeoh.
26 In relation to the charge, you are convicted and sentenced to a period of imprisonment of 24 months’ and a period of imprisonment of 15 months’ must be served before becoming eligible for parole.
27 I declare that you have served 214 days as pre-sentence detention up to yesterday in relation to this offence and such period is to be administratively deducted from the sentence that has already been served.
28 Pursuant to s.464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth until a sample of sufficient standard is obtained for the placement on the database. I must inform you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
29 Finally, pursuant to s.6AAA of the Sentencing Act 1991, I declare that save for your plea of guilty, you would have been sentenced to a period of imprisonment of 36 months with a non-parole period of 26 months.
30 Yes, anything counsel wants to raise with me?
31 MS TEAGUE: No, Your Honour.
32 MR MALIK: No, thank you, Your Honour.
33 HIS HONOUR: Yes. So you will no doubt give further explanation to your client.
34 MR MALIK: Yes, Your Honour, I will go down and see him at the conclusion of this.
35 HIS HONOUR: Yes. Thank you for your assistance in all these matters. Yes, thank you. We will adjourn sine die.
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