Kong v Commissioner for Corporate Affairs - [2014] SASC 197

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KONG v COMMISSIONER FOR CORPORATE AFFAIRS
[2014] SASC 197
Judgment of The Honourable Justice Sulan
17 December 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OTHER OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - RESTITUTION OR REPARATION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OFFENDER
Appeal against sentence. Appellant pleaded guilty to six counts of making improper use of a position in an incorporated association, pursuant to s 39A(3) of the Associations Incorporation Act 1985 (SA). He was sentenced to a total of 20 months’ imprisonment with a non-parole period of six months. Whether Magistrate erred in concluding that restitution made by the appellant did not evince contrition or remorse. Whether fresh evidence demonstrates that the appellant will serve his sentence of imprisonment more severely than a person without such a condition.
Held (allowing the appeal):
1. The Magistrate erred in concluding that the restitution made by the appellant evinced no contrition or remorse.
2. When the Magistrate came to consider whether good reason existed to suspend the sentence of imprisonment, she failed to have regard to the restitution made by the appellant.
3. The fresh evidence should, in the interests of justice, be considered on appeal. It sheds new light on the defendant’s mental condition which existed at the time of sentence and establishes that imprisonment will have a significant adverse effect on the appellant’s mental health.
4. Sentence set aside and appellant re-sentenced.
Associations Incorporations Act 1985 (SA) s 39A(3); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(g), referred to.
R v Bandjak [2011] SASCFC 19; Warner v Police [2014] SASC 54; Re Tran; ex parte A-G (2002) 128 A Crim R 1; R v Robertson (1984) 115 LSJS 51; R v Chaloner (1990) 49 A Crim R 370; Matulich v Police (2007) 252 LSJS 219; Bright v Police [2008] SASC 220; R v Jennings (1996) 187 LSJS 222; R v Wirth (1976) 14 SASR 291, considered.

KONG v COMMISSIONER FOR CORPORATE AFFAIRS
[2014] SASC 197
Magistrates Appeal: Criminal

SULAN J: This is an appeal against sentence. The defendant and appellant, Seng Chaing Kong, pleaded guilty to six counts of making improper use of a position in an incorporated association, pursuant to s 39A(3) of the Associations Incorporation Act 1985 (SA). The maximum penalty for each offence is a fine of $20,000 or imprisonment for four years. He was sentenced to a total of 20 months’ imprisonment with a non-parole period of six months.
The defendant appeals on the ground that the Magistrate erred in the manner in which she dealt with the restitution made by the defendant. It is further contended that fresh evidence demonstrates that the defendant will serve his sentence of imprisonment more severely than a person without such a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] SASC 197
Decision Date: 17 December 2014

CaseChat Overview and Summary

Kong v Commissioner for Corporate Affairs is an appeal against the sentence imposed by the Magistrate in South Australia. The defendant, previously the president of the Cambodian Association of South Australia, appealed the sentence on the grounds that the Magistrate erred in the manner in which she dealt with the restitution made by the defendant. The defendant further contended that fresh evidence demonstrated that he would serve his sentence of imprisonment more severely than a person without such a condition.

The legal issues in this case centered around the Magistrate's handling of the defendant's restitution and the imposition of the sentence. The defendant argued that the Magistrate should have suspended the sentence due to the significant hardship it would cause him, particularly in light of his mental health issues. The defendant submitted that the Magistrate had not been aware of the full extent of his mental health issues when she imposed the sentence.

The court considered the defendant's submission and the evidence presented, including a report from Dr Begg, which established that imprisonment would have a significant adverse effect on the defendant's mental health. The court was satisfied that had the report been available to the Magistrate, good reason would have been found to suspend the sentence. Consequently, the court set aside the sentence imposed by the Magistrate and re-sentenced the defendant. The new sentence was a total head sentence of 20 months' imprisonment with a non-parole period of six months, to commence from the date of the court's decision. The court also suspended the sentence, imposing conditions that the defendant enter into a bond to be of good behaviour for a period of two years and be under the supervision of a Community Correction Officer for a period of 12 months.

Orders

Orders of the court

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Background

Background to the litigation

The defendant appeals on the ground that the Magistrate erred in the manner in which she dealt with the restitution made by the defendant. It is further contended that fresh evidence demonstrates that the defendant will serve his sentence of imprisonment more severely than a person without such a condition.Background In 1991, the defendant commenced work with the Cambodian Association of South Australia (the “Association”) as a youth worker. In 1998, he was elected president of the Association, a position which he held for approximately nine years. The Association was incorporated in South Australia in March 1983. It was formed with the object of providing welfare services to members of the Cambodian community, maintaining a Cambodian culture and representing and advocating on behalf of the Cambodian community in South Australia. During the period of the defendant’s presidency, the Association was dependent upon Government funding. The funds it received were used to employ social workers and to assist Cambodian refugees to integrate into the Australian community. The Association initially operated out of premises at the Parks Community Centre in Angle Park. In June 2002, the Association purchased property at 172-174 Burton Road, Paralowie. That property was comprised of two adjacent titles. The operation of the Association was transferred to those premises. The property was purchased with the assistance of a loan from the ANZ Bank (“the ANZ loan account”), secured by mortgage over the two titles. The loan repayments to the ANZ Bank were funded by using Government grants to the Association. During the period of the defendant’s presidency, the Association was the subject of Federal and State Government audits in relation to governance issues and the financial mismanagement of grant monies. In 2005, the defendant, and other members of the Association, were required to attend training sessions which included the topics of accountability and transparency. In early 2007, the defendant announced his intention to resign from the position of president. A new committee was elected. They were informed that there was a considerable taxation liability to the Australian Tax Office. The newly elected committed was unable to obtain financial records from the defendant. The Public Officer for the Association, Mr Frank Althuizen, and Mr Redden, an accountant, met with representatives of both the old and new committees on a number of occasions in an attempt to resolve disputes between the two committees relating to the financial records which had not been provided to the new committee. In the circumstances, the defendant agreed to resume the role of president, as no other person was prepared to take on the responsibility. By September 2007, the Association had liabilities of $118,183 to the Australian Tax Office on account of its PAYG obligations and outstanding fines. An amount of $234,000 was owing to the ANZ Bank in respect to the loan for the Burton Road property. Staff was owed $55,000 in entitlements. There were other outstanding amounts which left a total debt of approximately $460,000.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, the report of Dr Begg establishes that imprisonment will have a significant adverse effect on the defendant’s mental health. I am satisfied that had the report been available to the Magistrate, good reason would have been found to suspend the sentence.Conclusion For these reasons, I would set aside the sentence imposed by the Magistrate. In re-sentencing the defendant I see no reason to depart from the sentence imposed by the Magistrate. I would impose a total head sentence of 20 months’ imprisonment with a non-parole period of six months. The sentence and non-parole period are to commence from today. I am satisfied that good reason exists to suspend the sentence. Accordingly, I would suspend the sentence of imprisonment upon the defendant entering into a bond to be of good behaviour for a period of two years and to be under the supervision of a Community Correction Officer for a period of 12 months and obey the lawful directions of that officer.

Ratio Decidendi

Legal Principle Established

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