Erickson Tang v Commissioner of Police

[2024] QDC 28

QUEENSLAND COURTS AND TRIBUNALS

TRANSCRIPT OF PROCEEDINGS

© The State of Queensland (Department of Justice and Attorney-General). Apart from any use permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Providing a copy to a legal practitioner for the purpose of obtaining professional advice is considered fair use under section 43(2) of the Copyright Act 1968 (Cth) and does not require copyright release. For all other uses, you must not copy, modify or distribute this material without the written authority of the Director, Recording and Transcription Services, Queensland Courts.

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE SMITH

No 4 of 2024

ERICKSON TANG  Appellant

and

COMMISSIONER OF POLICE  Respondent

BRISBANE

11.00 AM, FRIDAY, 16 FEBRUARY 2024

DAY 1

JUDGMENT

Any rulings in this transcript may be extracted and revised by the presiding Judge.

WARNING:  The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence.  This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories.  You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

HIS HONOUR:   This is an appeal by the appellant with respect to sentences imposed on him on the 8^th of December 2023 in the Brisbane Magistrates Court.  The appellant was charged with one count of fraud, one count of forgery and one count of uttering.  He pleaded guilty to those charges.  He was sentenced to nine months imprisonment with a parole release date set on the 7^th of March 2024; a period of three months.  The appellant was 25 years of age and had no previous convictions.  He was a solicitor. 

The facts were that he was employed by a legal practice as a solicitor, the practice being called Keylaw, in Queen Street, Brisbane.  On the 9^th of March 2022, a client engaged Keylaw with respect to the sale of her property and signed client authorisation forms and provided bank details.  The sale proceeded and settlement took place.  Prior to settlement, a deposit of $10,000 was made by the buyer into the trust account operated by Keylaw.  Due to an internal error, the $10,000 was not paid to the client on settlement and remained in trust, and on the 12^th of August 2022, the appellant made an electronic transfer request for the $10,000 which was transferred to him.  So the charges relate to that.  He was confronted and lied about it, but then was later confronted and admitted taking the money and was remorseful for taking it.  The QLS was informed, police were informed, and the appellant was issued a notice to appear. 

So they are the facts of the case. The matter proceeded in the Magistrates Court as a plea of guilty. The facts were placed before the Magistrate and the Police Prosecutor suggested a probation order or a suspended sentence. By reference to the authorities, Defence counsel submitted that a wholly-suspended sentence was within the range. The Magistrate, though, rejected the submissions by both counsel. He took into account the pleas of guilty, noted the principles contained in the Penalties and Sentences Act, took into account a pre-sentence report but seemed to diminish the contents of that, stating a lot of people were depressed. He also had regard to a comparable decision where a person did stay out of jail, he noted but did not seem to give much weight to the fact there was full restitution and expressed some reservation as to remorse, stating there was no option but to plead guilty. He notedthe aggravating feature - the appellant was a solicitor and imposed the sentence I referred to previously.

The appellant submits there were a number of errors made. Having considered all of the proceedings and the submissions by the Crown, of course, it seems to me that insufficient weight was given to the full reparation made and to the psychiatric report. It is hard to see the sentence reflects those matters. So in those circumstances, I do consider an error has occurred and it is for the Court to resentence the offender here. Reparation was very important, in my view. Often in these cases we do not see it and it is relevant under the provisions of the Penalties and Sentences Act that, ultimately, there was no loss or damage. Reparation may be seen as an expression of remorse as well.

Turning to the psychological report, Dr Yoxall is well-known by the criminal Courts.  At the time of the assessment, the appellant was 26 years of age and had a partner and had talked about his family.  In his culture, parents have high expectation of their children.  His father had a drinking problem, and a bad temper.  He attended primary school and then high school and started social work but then completed his legal studies.  He drank alcohol socially and there was a small history of drug use.  The offending occurred in a period of his life where he was depressed, disconnected from others and helpless about his future.  Addiction and compulsive behaviours commenced in adolescence.  He used pornography as an escape with cannabis.  There was compulsive sexual behaviour outside of the relationship with his partner, which was reflective of what happened here.  He felt despondent in his life.  He took the money in that context. 

Two thousand was used to pay off a personal loan.  He lied about it to start with but then made admissions about it.  He underwent an assessment with his GP and went on a mental health plan.  He has agreed to engage in treatment to address his sexual behaviour and offending.  He engaged in counselling with a sex addiction therapist, which was of benefit to he and his partner, and attended Sexaholics meetings.  He continued to consult his treating psychologist.  A risk assessment was conducted and it was considered there was a low risk of reoffending.  That seems to me to be important.  He is extremely remorseful for his offending, deeply ashamed and embarrassed, and was aware of the impact on his employer.  He was motivated to serve any sentence handed down to progress with his life.  He grew up in a home marked by parental alcoholism, emotional dysregulation, unpredictable behaviour, and he suppressed his own emotions and used compulsive behaviours to engage in his own negative emotions. 

The offending occurred in the context of what has been undiagnosed depression.  The offending was impulsive and opportunistic.  He was shocked and ashamed because of it and, crucially, to my mind, he had made substantial changes in his life since the offending, which was quite some time before.  He required psychological intervention, which he was doing.  There was sound personal insight and judgment.  The impact of the charges have been substantial.  There is a low risk of reoffending and he would be vulnerable in prison, and he had the psychological capacity to engage with a community-based order. 

I also read the references, which spoke well of him, and the references from the counsellor. I also read the letter of apology, which I think is genuine.  There is no doubt this is serious:  stealing from an employer a not-insignificant amount of money.  Having said that, there were a number of mitigating factors in this case, including the full reparation offered, the psychological issues, and in that regard, I think it is a mistake to downplay the impact of depression.  Yes, a lot of people have depression,  but it can be a serious illness and needs to be considered in the context of offending behaviour. 

In all of the circumstances, bearing in mind the relevant provisions of the Penalties and Sentences Act, the fact that the appellant now has bail and the 43 days he has

already served in pre-sentence custody, I consider that he should not have to serve more time.  In those circumstances, I have decided to make these orders:  (1) I allow the appeal; (2) I set aside the orders made in the Magistrates Court on this matter; (3) on each count, a conviction is recorded, and I impose nine months imprisonment on each count to be served concurrently with each other; (4) I order the terms of imprisonment be suspended after he has served a period of 43 days imprisonment, and he must not commit another offence punishable by imprisonment within a period of 12 months if he is to avoid being dealt with for the suspended terms of imprisonment; (5) I declare he has served 43 days pre-sentence custody.  I state the dates are the 8^th of December 2023 until the 19^th of January 2024, and I declare that to be time already served under the sentence. 

And I might indicate for the record, counsel, that if I had been dealing with this, I would have probably imposed a fully suspended sentence at first instance, but in light of the 43 days served, the most appropriate way to deal with it to his advantage is to take that into account as time already served under the sentence. 

HIS HONOUR:   We will adjourn the Court.

______________________