Lau v The King - [2024] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0221

ANDREW LAU	Appellant
v
THE KING	Respondent

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JUDGES:	BOYCE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2024
DATE OF ORDERS:	3 May 2024
DATE OF REASONS:	20 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 94
JUDGMENT APPEALED FROM:	[2023] VCC 1781 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Thefts from deceased’s estate by nominated lay executor prior to grant of probate – Whether breach of trust committed by lay executor is of equal seriousness to a breach of trust by professional – Lay executor – Breach of fiduciary duty – Breach of trust – Theft – Make false document – Appeal allowed.

Sentencing Act 1991 s 6AAA; Administration and Probate Act 1958, s 90A; Criminal Procedure Act 2009 s 281(1)(b).

SA Police v John (1995) 79 A Crim R 510; R v Fraser [2004] VSCA 147; R v Wright(No 2) [1968] VR 174, applied.

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Counsel
Appellant:		Mr C K Wareham with Mr P Reynolds
Respondent:		Ms B Goding
Solicitors
Appellant:	Tyler Tipping & Woods
Respondent:	Solicitor for Public Prosecutions

BOYCE JA
T FORREST JA:

Introduction

The appellant pleaded guilty in the County Court on 15 September and 26 September 2023 to three charges of theft[1] (charges 1, 2 and 4) and one charge of making a false document[2] (charge 3).
[1]Contrary to s 74(1) of the Crimes Act 1958.
[2]Contrary to s 83A(1) of the Crimes Act 1958.
The appellant was sentenced to an aggregate sentence of nine months’ imprisonment, and a two year community correction order (‘CCO’) with conditions requiring him to be supervised and undergo assessment and treatment in regard to alcohol and his mental health. The judge declared that had the appellant not pleaded guilty he would have imposed a sentence of two years’ imprisonment with a non-parole period of 16 months.[3]
[3]Pursuant to s 6AAA of the Sentencing Act 1991.
The appellant sought leave to appeal against sentence on the following grounds:
(1)The learned sentencing judge erred in treating a breach of trust committed by a lay executor as of equal seriousness to a breach of trust by a professional.
(2)The learned sentencing judge erred in finding that by failing to prove the will, to obtain probate and properly administer the estate the appellant committed a further breach of trust, which further breach of trust was an aggravated feature of the offending.
(3)The sentence imposed was manifestly excessive, when regard is had to the following factors:
(a)The appellant’s plea, its timing and inherent utility;
(b)The discount to be afforded to pleas of guilty during the currency of the COVID-19 pandemic;
(c)Delay;
(d)The appellant’s expressions of remorse and limited criminal history; and
(e)The objective gravity of the offending.
The application for leave was heard on 22 April 2024. On 3 May 2024, we made orders granting leave to appeal, allowing the appeal and setting aside the sentences imposed in the…

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.

Continue reading Lau v The King

Details

AGLC: Lau v The King [2024] VSCA 94
Case: [2024] VSCA 94
Decision Date: 20 May 2024

CaseChat Overview and Summary

Lau appealed against his sentence for thefts from the estate of the deceased prior to the grant of probate, and for making a false document. Lau was the nominated lay executor of the deceased's estate. The trial judge held that the seriousness of the offences was extreme, taking into account the breach of trust by Lau. Lau submitted that the trial judge erred in concluding that the seriousness of the offences was extreme. Lau argued that a lay executor should not be held to the same standard as a professional executor, and that the trial judge had failed to consider mitigating factors such as Lau’s remorse and good character. The appeal was allowed, and a new sentence was substituted.

The court examined the nature of the offences committed by Lau and the mitigating factors. The court considered the arguments presented by Lau regarding the difference between a lay executor and a professional executor in terms of the seriousness of the breach of trust. The court also considered the mitigating factors presented by Lau. The court held that the trial judge erred in concluding that the seriousness of the offences was extreme. The court held that a lay executor should not be held to the same standard as a professional executor, and that the trial judge had failed to consider mitigating factors such as Lau’s remorse and good character. The appeal was allowed, and a new sentence was substituted. The court held that the appropriate sentence for Lau was imprisonment for a period of two years, with a non-parole period of one year.

Orders