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R v Chung

R v Chung

Case [2023] NSWDC 257 17 July 2023

Fraud

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Chung [2023] NSWDC 257
Hearing dates: 21 June 2023
26 June 2023
Date of orders: 17 July 2023
Decision date: 17 July 2023
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
The offender is sentenced to a term of imprisonment of 3 years to be served by way of Intensive Correction Order.

Catchwords:
CRIME — Fraud — Dishonestly obtain financial advantage by deception — offender Chief Financial Officer — offender paid herself overtime when not eligible —salary inflated above approved annual salary
SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality
SENTENCING — Relevant factors on sentence — Effect of delay
SENTENCING — Relevant factors on sentence — Use of Comparative Cases

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Edelbi v R (wrongly reported as R v Edelbi) [2021] NSWCCA 122
FL v R [2020] NSWCCA 114
Gal v R [2015] NSWCCA 242
Hughes v R [2021] NSWCCA 238
Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196
Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689
Marks v R [2009] NSWCCA 24
Mill v The Queen (1988) 166 CLR 59
Moodie v R [2020] NSWCCA 160
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 12
Narouzi v R [2020] NSWCCA 237
Pratten v R [2014] NSWCCA 117
R v Bazouni [2020] NSWDC 61
R v Clarke [2019] NSWDC 2
R v Egge [2020] NSWDC 277
R v Ferguson [2022] NSWDC 356
R v Hawker [2001] NSWCCA 148
R v Jolley [2021] NSWDC 647
R v Mears (1991) 53 A Crim R 141
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Pont [2000] NSWCCA 419; (2000) 121 A Crim R 302
R v Sandford (unreported, NSWCCA, 7 March 1994
R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531
R v Swadling [2004] NSWCCA 421
R v Todd [1982] 2 NSWLR 517
R v Todorovic [2008] NSWCCA 49
R v Tomich [2002] NSWCCA 175
R v Woodman [2001] NSWCCA 310
R v XX [2020] NSWDC 771
Regan v R [2019] NSWCCA 6
Scanlan v R [2006] NSWCCA 238
Subramaniam v R [2013] NSWCCA 159

Category: Sentence
Parties: Rex (Crown)
Yvonne Chung (Offender)
Representation:
Counsel:
C Triscari (Solicitor Advocate, Crown)
B Levet (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Kinghan and Associates (Offender)

File Number(s): 2020/365228

SENTENCE

Yvonne Yee Chung appears for sentence having been found guilty by a jury with respect to 78 counts of having, by deception, dishonestly obtained a financial advantage from her employer over a period of approximately four and a half years.
Each of the individual counts was preferred pursuant to the provisions of s 192E(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty is 10 years imprisonment. There is no standard non-parole period.

BACKGROUND TO COUNTS IN THE INDICTMENT

As will become clear, the period during…

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 R v Chung

Details

AGLC: R v Chung [2023] NSWDC 257
Case: [2023] NSWDC 257
Decision Date: 17 July 2023

CaseChat Overview and Summary

In the matter of the Crown versus Chung, the defendant stood accused of fraudulently obtaining financial advantage by deception while serving as Chief Financial Officer. Chung was found to have paid herself overtime when not eligible and inflated her salary above the approved annual salary. The matter was heard in the Supreme Court of Victoria.

The primary legal issue the court had to address was the appropriate sentence for Chung's fraudulent activities. The court needed to consider various factors, including the nature and number of offences, the effect of any delay in bringing the matter to court, and the use of comparative cases to determine a suitable sentence. The court also had to consider the principles of accumulation, concurrency, and totality in sentencing.

In reaching its decision, the court thoroughly examined the circumstances of the offences and the principles of sentencing relevant to fraud cases. The court recognised the seriousness of Chung's actions, particularly given her position of trust and responsibility. The court also took into account the delay in bringing the matter to court, which was partly attributable to the offender. After considering comparative cases, the court determined that a sentence of imprisonment, to be served by way of an Intensive Correction Order, was appropriate. This sentence balanced the need for punishment, deterrence, and rehabilitation.

The court ordered that Chung be sentenced to a term of imprisonment of 3 years to be served by way of Intensive Correction Order.

Orders

Orders of the court

The offender is sentenced to a term of imprisonment of 3 years to be served by way of Intensive Correction Order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Chung [2023] NSWDC 257

Most Recent Citation

Chung v The King [2024] NSWCCA 71

Cases citing this decision · 1 of 1 shown

Chung v The King
[2024] NSWCCA 71

…r her child. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2023] NSWDC 257 Date of Decision: 17 July 2023 Before: Sutherland DCJ File Number(s): 2020/365228…

View all 1 citing cases →

Cases cited in this decision · 28 of 28 shown

R v Ferguson
[2022] NSWDC 356 Para 144

…A further matter touching upon the imposition of an ICO with respect to a fraud offence is to be found in R v Ferguson [2022] NSWDC 356. In that matter the female offender had herself been the victim of what was described as a ‘ catfishing or dating scam’. She had separated from her husband at the age of about 58 a…
R v Jolley
[2021] NSWDC 647 Para 164

…R v Jolley [2021] NSWDC 647 was a sentence imposed with respect to the offence of causing a financial disadvantage by deception. A further 10 counts of conveying false information which was likely to make the recipient fear for the safety of a person, which carried five-year maximum penalties, were also the subject…
Hughes v R
[2021] NSWCCA 238 Para 134

…The only case of some comparable nature brought to the Court’s attention by either party was Hughes v R [2021] NSWCCA 238. That was an unsuccessful application for leave to appeal by the offender. She had been sentenced by Judge McLennan SC in the Lismore District Court to a term of imprisonment of 2 years and 6 mon…
R v Edelbi
[2021] NSWCCA 122 Para 135

…A further case in which consideration was given to an Intensive Correction order is Edelbi v R (wrongly reported as R v Edelbi ) [2021] NSWCCA 122. The background to the commission of the fraudulent offences disclosed a criminal group operating to make fraudulent claims pursuant to the compulsory third party insuran…
R v Xx
[2020] NSWDC 771 Para 161

…R v XX [2020] NSWDC 771 involved a solicitor who misappropriated clients’ monies from a trust account. The sums misappropriated, predominantly during 2018, ranged from $55,000 up to $1.2 million. The total defalcation was of an amount in excess of $4.4 million. While some money had been repaid the ultimate loss was…
Norouzi v R
[2020] NSWCCA 237 Para 132

…note that the reasons given by Bell P were agreed with by Davies and N Adams JJ in Moodie and that Payne JA, Walton J and Fullerton J in Narouzi v R [2020] NSWCCA 237, also agreed with Justice Bell’s review of the principled approach to a consideration of comparative cases. Justice Fullerton noted in that matter th…
Moodie v R
[2020] NSWCCA 160 Para 128

…I am comforted in holding that strong view by the observations of Bell P in Moodie v R [2020] NSWCCA 160 at [80] – [95].…
R v Egge
[2020] NSWDC 277 Para 17

…ses on which a verdict of guilty might be returned (see also: Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196; Regan v R [2019] NSWCCA 6; R v Egge [2020] NSWDC 277).…
FL v R
[2020] NSWCCA 114 Para 129

…f statistics and comparable cases. His Honour made specific reference to the judgment of Wilson J, with whom R A Hulme and Hamill JJ agreed in FL v R [2020] NSWCCA 114 in which her Honour had described the applicant’s approach in seeking to establish manifest excess by reference to statistics and a selection of simi…
Sabbah v R (Cth)
[2020] NSWCCA 89 Para 134

…“Of course it remains correct, as Wilson J pointed out in Sabbah v R (Cth) [2020] NSWCCA 89 at [134] that a “glib” recitation of sentences imposed for similar offences without more will be of little or no utility to either a sentencing judge or an appellate court. Relatedly, the use of statistics alone is generally…
R v Bazouni
[2020] NSWDC 61 Para 159

…In R v Bazouni [2020] NSWDC 61 the offender was a lending manager with the St George bank. Bazouni had been found guilty by a jury of five counts of obtaining a financial advantage by deception in relation to the provision of fraudulent documents in loan applications for the benefit of himself and a number of co-o…
Regan v The Queen
[2019] NSWCCA 6 Para 17

…ere there are different bases on which a verdict of guilty might be returned (see also: Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196; Regan v R [2019] NSWCCA 6; R v Egge [2020] NSWDC 277).…
R v Clarke
[2019] NSWDC 2 Para 149

…of sentences in relation to similar offending subsequently proceeded pursuant to charges brought under s 192E(1)(b) of the Crimes Act . In R v Clarke [2019] NSWDC 2 a solicitor pleaded guilty to six charges under that section involving transfers to his private account from the business bank accounts of one of his…
Lane v The Queen
[2018] HCA 28

…5] NSWCCA 242 Hughes v R [2021] NSWCCA 238 Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196 Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689 Marks v R [2009] NSWCCA 24 Mill v The Queen (1988) 166 CLR 59 Moodie v R [2020] NSWCCA 160 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 12 Narouzi v R [2020] NSWCCA 23…
Gal v R
[2015] NSWCCA 242 Para 56

…Similarly in Gal v R [2015] NSWCCA 242, Beech-Jones J, (Bathurst CJ, and Price J agreeing) having considered a submission that the sentencing judge had failed to address the objective seriousness of the offences, said at [39]:…
Pratten v R
[2014] NSWCCA 117 Para 16

…e period, in respect of which there were different contributing factors, might otherwise lead to a problem of the type encountered in Pratten v R [2014] NSWCCA 117 . The problem in Pratten was that the way in which the matter went to the jury could have led to some members of the jury being satisfied with dishonesty…
Subramaniam v R
[2013] NSWCCA 159 Para 76

…s required for each individual offence in order to come to a view about an appropriate indicative sentence, it is to be noted that in Subramaniam v R [2013] NSWCCA 159 that task was undertaken in the resentencing exercise in the Court of Criminal Appeal by grouping the 30 offences in that matter into categories by r…
Muldrock v The Queen
[2011] HCA 39 Para 55

…cumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed .”: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 12 at [29].…
Marks v R
[2009] NSWCCA 24 Para 156

…In Marks v R [2009] NSWCCA 24 the offender had been employed by the NSW Department of Health. He had fraudulently lodged documentation with his employer that purported to support payments for staff training provided by companies with which he was associated, when no such training had been provided at all. The docum…
R v Todorovic
[2008] NSWCCA 49 Para 152

…R v Todorovic [2008] NSWCCA 49 concerned an accounts manager of a small excavations company with two directors and six staff. The ability to use online facilities to transfer funds for trade creditors and staff salaries was abused by the offender who made 64 unauthorised transfers into her own bank account over a t…
Scanlan v Regina
[2006] NSWCCA 238 Para 147

…Scanlan v R [2006] NSWCCA 238 concerned a trusted employee who operated the MYOB accounting program in a company with a small number of employees. While there were other employees with accounting qualifications, entries into MYOB including accounts and payroll were the responsibility of the offender. Over a period o…
R v Swadling
[2004] NSWCCA 421 Para 139

…before him or her. The Court of Criminal Appeal was in those cases obliged to resentence. These include R v Tomich [2002] NSWCCA 175 and R v Swadling [2004] NSWCCA 421 where the same incorrect global approach to sentencing for multiple offences had been taken at first instance.…
R v Stanbouli
[2003] NSWCCA 355 Para 72

…osed in an offender is a relevant factor of aggravation affecting an assessment of the objective seriousness of a particular crime: see R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531 at [34] per R S Hulme J.…
R v Tomich
[2002] NSWCCA 175 Para 139

…dual sentences for separate counts before him or her. The Court of Criminal Appeal was in those cases obliged to resentence. These include R v Tomich [2002] NSWCCA 175 and R v Swadling [2004] NSWCCA 421 where the same incorrect global approach to sentencing for multiple offences had been taken at first instance.…
R v Woodman
[2001] NSWCCA 310 Para 126

…ished utility of comparative cases, particularly in matters involving fraudulent conduct. Observations to this effect by Wood CJ at CL in R v Woodman [2001] NSWCCA 310 and in R v Hawker [2001] NSWCCA 148 are set out in the Bench Book and have been referred to in numerous decisions in the Court of Criminal Appeal.…
R v Pont
[2000] NSWCCA 419 Para 74

…a factor which is viewed as more serious than an offence committed on impulse. Planning and repetition are clear factors of aggravation: see R v Pont [2000] NSWCCA 419; (2000) 121 A Crim R 302 at [43] – [44] per Greg James J. In the present matter the offender clearly manipulated the MYOB accounts program to manuall…
R v Olbrich
[1999] HCA 54 Para 41

…The Crown has prepared an additional table, effectively applying the principles in R v Olbrich [1999] HCA 54; 199 CLR 270 , in order to set out the Crown’s view of the factual basis for the different verdicts.…
Mill v The Queen
[1988] HCA 70 Para 120

…The High Court in Mill v The Queen (1988) 166 CLR 59, at 65 – 66, expressly agreed with the decision in Todd . The High Court said that Todd was correct and that it reflected “ a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an off…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 183)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v Chung [2023] NSWDC 257
Hearing dates:	21 June 2023 26 June 2023
Date of orders:	17 July 2023
Decision date:	17 July 2023
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	The offender is sentenced to a term of imprisonment of 3 years to be served by way of Intensive Correction Order.
Catchwords:	CRIME — Fraud — Dishonestly obtain financial advantage by deception — offender Chief Financial Officer — offender paid herself overtime when not eligible —salary inflated above approved annual salary SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality SENTENCING — Relevant factors on sentence — Effect of delay SENTENCING — Relevant factors on sentence — Use of Comparative Cases
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999
Cases Cited:	*Edelbi v R* (wrongly reported as R v Edelbi) [2021] NSWCCA 122 *FL v R* [2020] NSWCCA 114 *Gal v R* [2015] NSWCCA 242 *Hughes v R* [2021] NSWCCA 238 *Lane v The Queen* [2018] HCA 28; (2018) 265 CLR 196 *Lane v The Queen* [2018] HCA 28; (2018) 92 ALJR 689 *Marks v R* [2009] NSWCCA 24 *Mill v The Queen* (1988) 166 CLR 59 *Moodie v R* [2020] NSWCCA 160 *Muldrock v The Queen* [2011] HCA 39; (2011) 244 CLR 12 *Narouzi v R* [2020] NSWCCA 237 *Pratten v R* [2014] NSWCCA 117 *R v Bazouni* [2020] NSWDC 61 *R v Clarke* [2019] NSWDC 2 *R v Egge* [2020] NSWDC 277 *R v Ferguson* [2022] NSWDC 356 *R v Hawker* [2001] NSWCCA 148 *R v Jolley* [2021] NSWDC 647 *R v Mears* (1991) 53 A Crim R 141 *R v Olbrich* [1999] HCA 54; 199 CLR 270 *R v Pont* [2000] NSWCCA 419; (2000) 121 A Crim R 302 *R v Sandford* (unreported, NSWCCA, 7 March 1994 *R v Stanbouli* [2003] NSWCCA 355; (2003) 141 A Crim R 531 *R v Swadling* [2004] NSWCCA 421 *R v Todd* [1982] 2 NSWLR 517 *R v Todorovic* [2008] NSWCCA 49 *R v Tomich* [2002] NSWCCA 175 *R v Woodman* [2001] NSWCCA 310 *R v XX* [2020] NSWDC 771 *Regan v R* [2019] NSWCCA 6 *Scanlan v R* [2006] NSWCCA 238 *Subramaniam v R* [2013] NSWCCA 159
Category:	Sentence
Parties:	Rex (Crown) Yvonne Chung (Offender)
Representation:	Counsel: C Triscari (Solicitor Advocate, Crown) B Levet (Offender) Solicitors: Director of Public Prosecutions (Crown) Kinghan and Associates (Offender)
File Number(s):	2020/365228