Oudomvilay v R - [2006] NSWCCA 275

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Oudomvilay v Regina [2006] NSWCCA 275

FILE NUMBER(S):
2006/652

HEARING DATE(S): 19/06/2006

DECISION DATE: 07/09/2006

PARTIES:
Mimi Oudomvilay (applicant)
Regina (Crown-respondent)

JUDGMENT OF: Giles JA Grove J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1520

LOWER COURT JUDICIAL OFFICER: Payne DCJ

COUNSEL:
T S Corish (applicant)
D C Frearson SC (respondent)

SOLICITORS:
Legal Aid Commission (applicant)
Solicitor for Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW:
application for leave to appeal against sentence
charges of fraudulent misappropriation
fraudulently omit to account by solicitor
whether sufficient weight given to loss of professional standing

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act
Crimes Act

DECISION:
Leave to appeal granted; appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/652
GILES JA
GROVE J
HIDDEN J
Thursday 7 September 2006

MIMI OUDOMVILAY v REGINA

Judgment

GILES J A: I agree with Hidden J.
GROVE J: I agree with Hidden J.
HIDDEN J: The applicant, Mimi Oudomvilay, pleaded guilty in the District Court to four charges of fraudulently omitting to account and two charges of fraudulent misappropriation, both of them offences under s128A Crimes Act, carrying a maximum sentence of seven years imprisonment. The first three charges were fraudulently omitting to account, the fourth and fifth charges were fraudulent misappropriation, and the sixth was a further charge of fraudulently omitting to account. She asked that a further charge of fraudulently omitting to account be taken into account on a Form One.
She was sentenced as follows:
On the fifth charge (fraudulent misappropriation), imprisonment for three years and nine months with a non-parole period of two years and three months, dating from 11 March 2005;
On the first charge (fraudulently omitting to account), taking into account the offence on the Form One, imprisonment for four and a half years with a non-parole period of one year and nine months, dating from 11 June 2007;
On the second charge (fraudulently omitting to account), imprisonment for a fixed term of three years and four months, dating from the 11 March 2005;
On the third charge (fraudulently omitting to account), imprisonment for a fixed term of three years, dating from 11 March 2005;
On the fourth charge (fraudulent misappropriation), imprisonment for a fixed term of two years and three months, dating from 11 March 2005;
On the sixth charge (fraudulently omitting to account), imprisonment for a fixed term of three years dating from 11 March 2005.
It will be seen that the sentences on all charges but the first were to commence on 11 March 2005. The sentence on the first charge was to commence on the 11 June 2007, at the expiration of the non-parole period fixed in respect of the fifth charge. The overall sentence is imprisonment for six years and nine months with an effective non-parole period of four years, dating from 11 March 2005. The applicant seeks leave to appeal against these sentences.

Facts

The applicant is a woman of Laotian descent, who at the relevant time was practicing as a solicitor at Fairfield. She was also the president of an organisation known as the Lao Community Advancement Co-operative. Many of the clients of her practice were from the Lao and general Asian communities. The learned sentencing judge observed that these clients “typically possessed poor English skills and placed a high degree of trust” in the applicant because of her role as president of the Co-operative.
The offences occurred over the period between December 2002 and October 2003, and involved the applicant’s misuse for her own purposes of money in her trust account. There is no need to recite the facts of each of the offences, although it will be necessary later to refer to the fifth charge. Her Honour described the pattern of the offences in this way:
The prisoner would typically take trust money from one client without authorisation and convert the trust cheque into an equivalent amount as a bank cheque. The bank cheque would then be used to pay for her business or personal expenses. The withdrawal from the trust account would be disguised by the prisoner falsifying the payee details on the ledger and creating false file notes and other documentation to ‘support’ these transactions.
When clients from whom the prisoner had taken funds requested the return of their money, she would generally ‘stall’ them until she could again use the trust funds of another client to pay them. Again these subsequent unauthorised transactions would be disguised as previously described.
As will be seen, the victim of the offence the subject of the fifth charge was the Lao Community Advancement Co-operative. Otherwise, apart from the offences the subject of the first and second charges, the victims of the offences were people from the applicant’s Asian client base. In October 2003 the management of the practice was undertaken by the New South Wales Law Society and the applicant’s dealings were investigated. The total amount defrauded by her was, in round figures, $809,350.00. It appears that the practice had not been profitable, and the applicant spent the money on wages and other expenses relating to the practice, together with personal expenses.
At the time of sentence, all the clients of the practice but one had been reimbursed by the Fidelity Fund, and the remaining client was in the process of being paid. The Co-operative had also been repaid but, as her Honour observed, “at the expense of others”. The applicant herself repaid only $13,400.00, the amount the subject of the offence on the Form 1.
Her Honour noted that, from statements given to police by members of the applicant’s staff, it appeared that she had “directed them to make false entries in ledgers and to assist her in the creation of various false documents”. Her Honour continued:
She attempted to disguise her fraudulent activities from both her clients and the Law Society trust account inspectors through various deceptions and the use of false documents. When initially interviewed she could not remember where the majority of the funds, fraudulently taken from her trust account, were used. Investigators therefore identified a number of personal and business expenses paid by her using trust account funds that explain the shortfall at receivership in her trust account.
A statement of facts recorded that the applicant appeared to be remorseful and had claimed that she intended to make good the shortfall arising from the offences. Her Honour found that she appeared to be “relatively truthful when interviewed by police, with the exception of deliberately attempting to minimise the involvement of others, such as staff and family members, in her fraudulent activity”.
Subjective Case
The applicant was thirty-seven years old at the time of the offences and is now forty. She has no prior convictions. She is married and has four children. At the time of sentence her Honour found that the children could be cared for by her husband and her mother, but noted that the inevitable effect upon the children of her imprisonment was “a very sad aspect of this case”. Her Honour also observed that the applicant had lost her livelihood as a solicitor and her “considerable standing in the Lao community”.
It seems that the offences had compromised her relationship with her extended family. At the time of sentence her home was about to be sold to creditors, and her Honour described her as “without funds”. Fortunately, she retained the support of her husband, her mother and some close friends. Her Honour accepted that her conditions of custody would be more onerous because of her concern about her children.
The Application
Three grounds of the application were notified. Two of them relate to particular aspects of her Honour’s approach to sentence. The third is that the overall sentence and effective non-parole period are manifestly excessive. This was not pursued as a separate ground at the hearing. Counsel for the applicant, Mr Corish, acknowledged that the effective sentence, while severe, was within the available range. His argument was that the matters identified in the first two grounds demonstrated that the sentencing process had miscarried, and that the Court should intervene and impose a lesser sentence.
Ground 1 – the 5th charge
The fifth charge related to a cheque for a substantial sum to the Lao Community Advancement Co-operative, following the maturation of a term deposit held by the Co-operative. The applicant deposited this cheque into her trust account and used the proceeds to pay personal and business expenses. It seems that she later withdrew trust money held on behalf of some of her clients, without authorisation, and deposited it into the Co-operative’s account. In this way she concealed her fraudulent use of the Co-operatives money. It was this which led to her Honour’s finding, previously referred to, that repayment of the Co-operative had been “at the expense of others”.
Her Honour found that this offence was aggravated by the fact that the applicant “was prepared to take money of clients to protect her standing in the Lao community, even though temporarily”. Mr Corish noted that her Honour had elsewhere in the remarks on sentence found the offences to be “objectively serious” and to involve “a very significant breach of trust”. He submitted that it was inappropriate to find, as an additional aggravating circumstance, that the applicant owed a duty to the Laotian community and the Co-operative because of her ethnicity. He also argued that there was no evidence to support a finding that her purpose in using clients’ money to make good the loss to the Co-operative was to support her standing within that community.
In my view, this argument misconceives what her Honour was saying. The aggravating circumstance her Honour found was not simply that the applicant sought to protect her standing in her community. It was that she did so by using her clients’ money to conceal her fraud. It was the use of clients’ money which was the gravamen of the finding although, in my view, the additional finding that the applicant’s motive was to protect her standing within the community was also open. This ground is not made out.

Ground 2 – extra curial punishment

Mr Corish submitted that her Honour had failed to take into account as a mitigating factor the fact that the applicant had been struck off the roll of solicitors. Her Honour referred to that matter when summarising the subjective case, noting that she had “lost her right, indeed privilege, to be a solicitor”. Her Honour did not mention the matter again and Mr Corish argued that, from the fact that it was not specifically referred to as a mitigating factor, it should be inferred that it was not taken into account as such. He submitted that it should have been, as it amounted to a form of extra curial punishment. He referred to R v Daetz & Anor (2003) 139 A Crim R 398, particularly per James J at [61]-[63].
Before outlining the applicant’s subjective case, her Honour had set out the applicable mitigating factors under s21A(3) of the Crimes (Sentencing Procedure) Act. These included her plea of guilty and her prior good character, and her Honour’s finding that she had good prospects of rehabilitation and was unlikely to re-offend. Extra curial punishment is not one of the mitigating factors set out in subs (3). No doubt, that is why her Honour referred a little later to the applicant’s loss of her career as a solicitor. It was in the context of her Honour’s assessment of the deleterious effects upon the applicant of the offences, including her loss of standing in her community and the compromise of her relationship with members of her extended family.
It was appropriate for her Honour to have regard to all those matters in mitigation of sentence and, clearly, it was for that purpose that she referred to them. This ground also fails.
I would grant leave to appeal but dismiss the appeal.

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LAST UPDATED: 08/09/2006