R v Dinh

[2022] NSWDC 716

District Court

New South Wales

Medium Neutral Citation:

R v Dinh [2022] NSWDC 716

Hearing dates:

14 December 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Impose an aggregate sentence of three years and two months with an aggregate non-parole period of one year and seven months.

The sentence commences 16 December 2022 and expires on 15 February 2026. The non-parole period expires on 15 July 2024.

Catchwords:

CRIME – Fraud – Dishonestly cause financial disadvantage by deception – Solicitor – Trust account fraud

SENTENCING – Aggravating factors – Abuse of position of trust or authority in relation to victim – Solicitor

Legislation Cited:

Crimes Act 1914 (NSW), s 192E(1)(b)

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)

Thi To Ngoc Dinh (Offender)

Representation:

Counsel:

Mr Tunks (Crown)

Mr Khan (Offender)

File Number(s):

2020/00279237

SENTENCE

Introduction

1. The offender stands to be sentenced having pleaded guilty to the following offences: The first is that knowing that her co-offender Dung Kwok Vo between 19 November and 29 November 2019 at Cabramatta had by deception caused Terrence Vuong a financial disadvantage, by deceiving Terrence Vuong to place $22,117 in the Vo Lawyers Trust account, the offender between 21 November and 29 November 2019 assisted Dug Kwok Vo. In other words the offender was an accessory after the fact to Vo’s offence. That is an offence under s 192E(1)(b) of the Crimes Act and has a maximum penalty of five years imprisonment as it an accessory offence.

2. There is a second offence: between 22 January and 14 February 2020 at Cabramatta the offender did by deception, dishonestly receive $1,572,896.08 from Colin Nguyen and Thi Thuy Phuong Tran, causing them a financial disadvantage, namely the loss of $1,572,896.08. That is an offence under s 192E(1)(b) of the Crimes Act and has a maximum penalty of ten years imprisonment.

3. There is no applicable standard non-parole period in relation to either offence. When sentencing the offender on count 2, she acknowledges her guilt in relation to a further offence which is on a Form 1, of dishonestly causing a financial advantage by deception and asks that I take that into account when imposing sentence on that count.

4. The facts are agreed and are quite lengthy and the following is taken from the agreed facts:

The facts

5. In terms of background, this offender was during the period of her offending, a solicitor working for her co-offender Mr Vo who was the principal of a legal practice called Vo Lawyers. Mr Vo had been admitted to practice as a solicitor in 2005 and established Vo Lawyers as a sole trader in 2008. His firm was known as Vo Lawyers. During the period of the offences, that firm also employed one other practicing solicitor together with administrative reception and clerical staff and the practice was located in Cabramatta. The offender Ms Dinh commenced working with Vo Lawyers in 2013, during her fourth year at university in order to complete her mandated Practical Legal Training. Mr Vo, the co-offender, was her supervisor and signed off on her being admitted to practice. In July 2014, Ms Dinh was admitted to practice as a solicitor. After being admitted to practice, Ms Dinh worked fulltime between 2014 and 2016 for another legal practice while continuing to work on Saturdays for Mr Vo. In October 2017, this offender commenced working full time for Mr Vo in his legal practice. During the relevant period when these offences occurred, the offender worked as a junior solicitor under the supervision of her co-offender.

6. During the relevant period Mr Vo operated a trust account and a business transaction account and general business office account with the Commonwealth Bank of Australia related to his practice. There was also another account operated with the St George Bank known as the Freedom Business Account, that account was in the name of Vo Lawyers Pty Limited, Thai To Ngoc Dinh and Dung Kwok Vo.

7. The co-offender Mr Vo is the only person in the practice with authority to operate the trust account. Both this offender and the co-offender were the only ones with authority to access the St George Freedom Business Account.

8. On 3 December 2018 Mr Vo created a subscriber account for what’s referred to as the “property exchange Australia Limited Platform” referred to in the Agreed Facts by the acronym PEXA. This is an electronic platform that facilities the settlement and exchange of property. Mr Vo is the subscriber to the account, however both this offender and Mr Vo had access to the PEXA account, which as I understand it, is used to facilitate the settlement of property transactions.

9. In terms of the facts specifically related to count 1, in October 2019 Terrence Vuong engaged Vo Lawyers to assist him and other members of his family in a transaction for the transfer of shares and residential property in Wentworthville. He met with the offender at Vo Lawyers offices. For a few weeks after that, the offender had phone contact with Mr Vuong and exchanged emails with him in relation to the transaction, however from around 31 October 2019 Mr Vuong was not able to get in contact with the offender and his calls and emails went unanswered.

10. On 20 November 2019, Mr Vuong sent an email to the firm addressed to the offender requesting information about the payment of stamp duty in relation to the transaction. In response, this offender sent instructions to the receptionist, and acting on those instructions the receptionist sent an email to Mr Vuong copying in the offender, informing Mr Vuong that the stamp duty amount was $21,217 with an additional PEXA fee of $900 being a total of $22,117. Instructions were provided for the funds to be transferred to the Vo Lawyers Trust Account and the account details provided.

11. At the relevant time being between 19 and 29 November 2019, both Mr Vo and the offender were in Adelaide, where Mr Vo was gambling at the Sky City Adelaide Casino. Prior to October 2019 Mr Vo had developed a gambling problem and started taking client’s money from the firm’s trust account. Records show that he was gambling at the casino from 1 October 2019. The offender attended the casino with him on occasions and was captured on closed-circuit television footage.

12. On 22 November, Mr Vuong transferred the $22,117 into the Vo Lawyers trust account as requested and sent an email to Vo Lawyers confirming that this had occurred. Thereafter on 22 November 2019 Mr Vuong’s sister sent an email to the Vo Lawyer’s email address and the offender’s email address attaching the signed client authorisation document and a statutory declaration for the purchase and transfer of the property. Mr Vuong’s sister re‑confirmed the transfer as the stamp duty amount paid by Mr Vuong and instructed the offender to proceed with the transfer and settlement. The transfer did not take place.

13. Between 23 and 28 of November Mr Vo made a series of transfers out of the Vo Lawyers trust account, moving the entire amount of $22,117 to his personal account. He then transferred some of the funds to this offender’s personal account, to his Mastercard which was in his name and made cash withdrawals. He transferred a total of $10,000 to this offender between 23 and 28 November 2019.

14. Records from the Adelaide Casino show that Mr Vo was gambling on 21 November 2019 during the time when Mr Vuong made the transfer of funds up until 28 November, spending large amounts on each day. The offender was also attending the casino from 21 to 26 November and cashing chips to a total of $31,000. Records indicate that this offender was not gambling the chips. Banking records also show that the offender and the co-offender made cash withdrawals from automatic teller machines in Adelaide between 23 and 28 of November, namely $8,000 by Mr Vo and $6,402.50 by this offender.

15. Between 22nd of November 2019 and 24 January 2020, Mr Vuong made numerous attempts to contact the offender and the co-offender regarding the transfer of the property; he made calls to the office, sent emails and attended the office but did not hear back from the offender or the co-offender. The total amount of $22,117 that he had deposited into the Vo Lawyers trust account had been exhausted by 29 November 2019. He ended up engaging another solicitor to finalise the transfer. On 31 January 2020 he submitted a complaint to the office of the Legal Services Commissioner. He was ultimately reimbursed via the Law Society of New South Wales Insurance Fund and ultimately made a complaint to the police.

16. In terms of this offender’s criminality in relation to this offence, at a point after Mr Vo commenced to withdraw funds from the trust account, this offender became aware that the source of the funds used by Mr Vo to gamble at the casino was in fact money deposited by Mr Vuong into the Vo Lawyers trust account. From that point she assisted Mr Vo by allowing Mr Vuong’s funds to be transferred to her personal savings account and the agreed facts set out the amount that Mr Vo had transferred into her personal bank account in that period and I do not propose to read them onto the record.

17. In terms of the Form 1 offence that I am to take into account when sentencing the offender on the second count, the fact are as follows:

18. In May 2017 a Miss Pham engaged Vo Lawyers for the purchase of a property in Bilpin. There were no issues in the transaction. In March 2017 Ms Pham and her husband engaged Vo Lawyers to act in relation to their intended purchase of an off the plan apartment in the Rocks in Sydney. They met with the offender at the Vo Lawyers office, thereafter they were assisted by the offender and at times another member of the practice in relation to the purchase of the apartment.

19. On 24 March 2018 Ms Pham and her husband attended Vo Lawyers and signed a purchaser declaration form to commence the purchase of the property, thereafter Ms Pham and her husband received no further communication from the offender or the practice at that time. Stamp duty of $241,510 in regards to Ms Pham’s transaction would have been due on 12 May 2018, however Ms Pham as part of the purchase negotiations, chose to delay this payment after the offender had agreed to pay any interest charged for late payment.

20. In January 2020 the offender and Mr Vo were at the Adelaide Casino. On 9 January 2020 Ms Pham received a text message from the offender asking Ms Pham to call her, which she did that same day. The offender told her that the stamp duty for the apartment of $241,510 was due to be paid on 13 January 2020. Ms Pham told the offender she was unable to pay such a large amount of money in a short period of time and there was discussion about payment by way of an instalment plan and the dates for payments. Following that conversation, the offender sent an email to Ms Pham after their discussion urging Ms Pham to pay a portion of the stamp duty to reduce the interest for late payments.

21. On 10 January Ms Pham advised the offender that she could pay $150,000 for that purpose. The offender then provided Ms Pham with the details of the Vo Lawyers St George Freedom Business Account. So as to enable the transfer of funds, the offender advised Ms Pham on the process to increase her transfer limit so that she could transfer more than $5,000 at a time. On 10 January Ms Pham went into the St George Bank at Penrith and transferred $150,000 to the Vo Lawyers St George business Account. Ms Pham then sent a text message with the transfer receipt to the offender who told Ms Pham that she would proceed to process the stamp duty payment, however she did not do so.

22. The Adelaide Casino records show that Mr Vo was gambling at the casino between 10 and 21 January 2020. He gambled large amounts of money each day. Records also show that the offender was purchasing gambling chips at the casino between 11 and 20 January 2020. There are no records however of the offender gambling and the Crown accepted that I could not find beyond reasonable doubt that she herself gambled. Bank records show that from 10 January 2020 to around 21 January 2020 either the offender or Mr Vo had withdrawn or transferred the entire $150,000 deposit made by Ms Pham from the St George business account. The relevant transactions are set out on page 7 of the agreed facts and I do not propose to read them on to the record.

23. Of the transactions referred to in the agreed facts, some of the payments were made from the St George business account on 13, 16 and 18 January 2020 and were to the La Loft Apartments Adelaide for accommodation. Records reveal the co-offender Mr Vo was gambling at the Adelaide Casino on those dates, and records also reveal that this offender was purchasing gambling chips at the Adelaide Casino on 11, 12, 17 and 19 January 2020. The stamp duty was not paid on the apartment.

24. On 10 March 2020 Ms Pham was contacted by a representative of the New South Wales Law Society. He advised her that he had been appointed as practice manager of Vo Lawyers, and urged her to engage a new lawyer to act for all of her properties that were being handled by Vo Lawyers. Ms Pham then contacted the Law Society and found out that Vo Lawyers were being investigated.

25. On 12 March 2020 Ms Pham engaged a new lawyer to inquire about the $150,000 paid to Vo Lawyers and the lawyer told Ms Pham there had been no recent stamp duty assessment lodged regarding the Harrington property. She checked her bank account and saw that the money had not been sent back to her from Vo Lawyers and then she instructed her new lawyer to make a claim to the Law Society and ultimately the Law Society reimbursed her $151,993.15 and she made a complaint to the police.

26. In terms of this offender’s criminal responsibility for the offence on the Form 1, the offender and Mr Vo were engaged in a joint criminal enterprise to cause Ms Pham a financial disadvantage by deception. The relevant deception was leading Ms Pham to believe that funds deposited by her into the Vo Lawyers Freedom business account would be used as payment of stamp duty on her behalf by Vo Lawyers, however the funds were not used for that purpose and were completely depleted by 21 February 2020.

27. The facts in relation to the second count on the indictment to which the offender has pleaded guilty are as follows: In October 2019 Mr Nguyen and Ms Tran, his wife, engaged Vo Lawyers in relation to the sale of the residential property in Parramatta, the property was in Ms Tran’s name. The offender was the principal contact at Vo Lawyers for the purpose of that work. The contract of sale was signed on 14 November 2019 with the sale price of $1.75 million and a settlement date of 23 January 2020.

28. On 15 November 2019 Mr Nguyen advised the offender that the contract had been signed. He asked her to acknowledge the SMS, however she did not respond. On 3 January 2020 the offender contacted Mr Nguyen requesting he pay her fees of $1,000, the offender forwarded an invoice and an account number for the money to be paid into, that was the Vo Lawyers Freedom Business Account. The offender then asked about the account that Mr Nguyen was going to nominate the settlement be paid into and he gave the St George account that was in the name of his wife. On 23 January 2020 the offender contacted Mr Nguyen by SMS message to inform him that the settlement for the sale of their property had been completed. The property sold for $1.75 million and following a payment of administration fees, Mr Nguyen and Ms Tran were due to receive $1,572,896.08 directly through the PEXA account following completion of the settlement. The settlement was scheduled to take place at 11 o’clock on 23 January, the fees were supposed to be deducted from the settlement amount and then the remainder was to be transferred to Mr Nguyen and Ms Tran.

29. On 23 January the final settlement amount was paid into the Vo Lawyers trust account. At 1.02pm that day Mr Nguyen checked his wife’s bank account and saw that the settlement money had not been transferred. He attempted to call the offender with no success. The offender responded to him via SMS message informing him that the transfer of the money would take one week. Before 3.30pm on the afternoon of 23 January 2020, the co‑offender Mr Vo attended the Cabramatta branch of the Commonwealth Bank having returned to Sydney from Adelaide earlier that day. At the bank, Mr Vo dealt in person with the bank teller who assisted him to make five international money transfers. The five transfers made by Mr Vo transferred a total of $830,013.30 into various other accounts held by third parties. No money was transferred to Mr Nguyen and his wife. Mr Vo then made further transactions from the Vo Lawyers trust account that day moving the settlement money out of trust account and transferring it to various accounts including his own personal account and his master card, those transactions amounted to $112,705.64. Six thousand dollars of that amount was transferred into the personal account of this offender. Between 23 January 2020 and 14 February 2020, the co-offender Mr Vo transferred $485,385.67 to unknown accounts, $303,660 into his personal account and $98,754.47 into the offender’s personal account. During the period 22 January to 2 March 2020 records show that Mr Vo was gambling at the Adelaide Casino, those records also show that this offender was attending the casino but only buying chips between 24 January and 21 February 2020 and again there is no evidence the offender herself was gambling.

30. On 24 January 2020 Mr Nguyen made inquiries again with the offender about when the money would be transferred. She responded via SMS message that the money might be in the account by next week, Friday. Between 29 and 31 January Mr Nguyen continued to check his account but the funds had not been transferred. He contacted the offender during that period. She informed Mr Nguyen that due to the fact it was a substantial sum of money and there had been a public holiday there would be a delay in settlement funds being transferred into his wife’s account. The offender also told Mr Nguyen that she had made inquiries with PEXA on his behalf, in fact of course she had made no inquiries with PEXA. Mr Nguyen continued to contact the offender regarding the settlement funds and was assured by her that the delay was normal and that other clients had experienced similar difficulties. During this period the offender also told Mr Nguyen that she was making inquiries on his behalf with PEXA and that she would try to seek compensation with them if the money went missing. Whilst doing so, the offender advised Mr Nguyen that it would be better for the legal practice to liaise with PEXA rather than himself for the reason that, from the offender’s perspective, was obvious. The offender did not make inquiries with PEXA.

31. On 10 February 2020 Mr Nguyen received an SMS message being a photograph of the PEXA vendor destination line items from the offender. That image depicted a transaction of the settlement funds being transferred into Ms Tran’s St George bank account at 9.39am on 23 January 2020. The image was false and purported to be from the PEXA system and had the offender’s name on the document. On the same date Mr Nguyen received a further SMS message from the offender advising the relevant bank account details were correct and that there might be some technical issues with the PEXA disbursement system. Further, the offender advised Mr Nguyen she was preparing to lodge a formal complaint with PEXA over the transfer. Mr Nguyen confirmed the account was correct and instructed the offender to file the complaint.

32. On 11 February 2020 Mr Nguyen followed up with the offender for an update. The offender told Mr Nguyen that PEXA was working to get their matter resolved and that she was informed by Mr Vo that he was working to get a response from PEXA and obtain compensation for Mr Nguyen. Those statements by the offender were obviously false.

5. On 12 February 2020 Mr Nguyen made further inquiries with the offender regarding the PEXA transaction number for the settlement funds, she maintained a complaint had been made to PEXA and that the complaint was being assessed. Mr Nguyen responded by requesting the settlement document and work page ID, again the offender did not respond to that request.

6. On 13 February 2020 Mr Nguyen again requested the settlement document and work ID page from the offender via SMS. The offender did not have any further communication with Mr Nguyen. On 13 February Mr Nguyen spoke with a representative from PEXA, they confirmed that the amount of $1,572,896.08 from the settlement had been into the Vo Lawyers Trust account on 23 January 2020 instead of being transferred into Ms Tran’s account as Mr Nguyen and Ms Tran had instructed Vo Lawyers to do. PEXA then forwarded a copy of the correct vendor destination line items document for the transaction. It showed the amount had been transferred into the Vo Lawyers Trust account at 9.39 on 23 January 2020.

7. That day Mr Nguyen contacted the Law Society of New South Wales to report the offender and Vo Lawyers. He emailed the New South Wales Law Society Chief Trust Investigator and forwarded all the relevant correspondence. On 17 February 2020 the Law Society investigators attended the Vo Lawyers office in Cabramatta and found it shut with no-one answering the door or phone. Investigators attended Mr Vo’s residential address and attempted to contact both the offender and Mr Vo via their mobile phones and the Law Society was unsuccessful in contacting them. On 20 February 2020 the police commenced a criminal investigation.

8. The victims in relation to this charge have been reimbursed the full amount of $1,572,896.08 via the Law Society of New South Wales.

9. In terms of this offender’s criminal responsibility; for this particular offence the offender and Mr Vo were engaged in a joint criminal enterprise to cause Mr Nguyen and Ms Tran a financial disadvantage by deception, the relevant deception being misleading them to believe settlement funds transferred into the Vo Lawyers Trust account would be released to them following property settlement on their behalf by Vo Lawyers, however the funds were not used for that purpose and were completely depleted by 14 February 2020.

10. On 25 September 2020 police attended a premises to conduct a search warrant, being an address where both the offender and Mr Vo were residing at the time, they were arrested and taken to Campbelltown Police Station. The offender participated in an electronically recorded interview but she did not make any admissions that she had offended, although she accepted that she had been aware of Mr Vo’s offending and she had failed to report it to the authorities.

Objective seriousness

39. Turning then to my assessment of the objective seriousness of the two offences. These two frauds involve fraudulent conduct by a solicitor in relation to the funds of clients. They are both serious offences for that reason alone, involving a breach of trust towards the clients concerned. The offender had been admitted as a solicitor in July 2014, so as at the date of the offences she had been admitted to practice some five years. The offender was in a personal intimate relationship with her co-offender, the principal in the practice where she worked as an employed solicitor.

40. In relation to count one, the amount of money $22,117, is not an overly large sum and the offence occurred over a ten-day period. The offender had been the person at the firm who was dealing directly with the client concerned who was defrauded in this count, although this offender’s involvement was as an accessory after the fact in the offence committed by the principal in the firm.

41. It was this offender who, through the receptionist, gave instructions to the client to transfer the funds into the firm’s trust account. It is not suggested however, that at that point in time the offender knew of the fraudulent activities of the co-offender. At the time the funds were requested from the client, the offender was with her co-offender the principal at the casino in Adelaide for the purpose of the principal engaging in gambling. It was the co-offender Vo who transferred the funds the subject of count one out of the firm’s trust account into his own personal account. It was at some point after that, that the offender became aware that the co-offender was using funds drawn from the firm’s trust account to fund his gambling activities. He then transferred $10,000 to the offender’s personal account during the period 23 to 28 November 2019 and it appears those funds were used to further finance the co-offender’s gambling activities.

42. The victims of the second offence dealt with the offender in relation to engaging the firm at which the offender worked to act on the sale of residential premises. It was this offender who informed the victims that the settlement of the sale had been completed. After the balance of the purchase moneys on settlement were paid into the firm’s trust account this offender made repeated and calculated false representations to the victims as to why the funds had not been paid into their nominated account attempting to explain the delay. Those false representations were made while the offender was in Adelaide assisting the co-offender to gamble. The co-offender, having returned from Adelaide on 23 January 2020 attended a Commonwealth Bank of Australia branch at Cabramatta and made five international transfers, which I referred to earlier, into various accounts of third parties. Further funds were transferred by the co-offender out of the firm’s trust account, being the settlement funds, into his personal account and to pay his Mastercard again. Some $6,000 was transferred into the offender’s account. Between 23 January and 14 February the co-offender transferred substantial sums to unknown accounts and his own personal account as well as $98,754.47 to the offender’s personal account.

43. According to all the evidence before me, including that from the offender, she used the money placed in her own account to pay certain bills of the firm and her own and to pay for food and accommodation while she was in Adelaide with the co-offender and to purchase chips so that the co-offender could continue to gamble. The Crown accepted that I could not be satisfied beyond reasonable doubt that the offender herself gambled any of the trust money, however on her own evidence she was in Adelaide on a number of occasions accompanying the co-offender, stayed with him in expensive accommodation and went with him to the casino.

44. The sum of money defrauded in count 2 is a very significant sum and the fraudulent conduct occurred over 23 days. The offender was able to use her knowledge of the conveyancing process to make many of the false representations she made to the victims of this offence. All of the victims were able to be compensated from the Law Society’s fidelity fund, however that is not a mitigating factor here. The establishment of that fund and its maintenance is a cost that all solicitors in New South Wales bear and no doubt that cost is reflected in the fees charged to clients. The victims were not compensated for the anguish and inconvenience they no doubt went through due to the fraudulent conduct of this offender and her co-offender.

45. The offences by this offender involve serious breaches of trust by a solicitor towards her clients. The offender’s liability for count 2 is on the basis that she was a party to a joint criminal enterprise to cause the two victims a financial disadvantage by deception. The essential deception was leading the client to believe settlement funds transferred into the Vo Lawyers trust account would be released to them following the property settlement.

46. I note that when sentencing an offender for participation in a joint criminal enterprise, each participant in the criminal enterprise is equally responsible or liable for all the acts committed in the course of carrying out the enterprise by whomsoever they are committed. However, a particular participant’s level of culpability stands to be assessed by reference to his or her particular conduct in the criminal enterprise. The focus for sentencing purposes is what a particular offender did during the joint criminal enterprise.

47. The offender’s level of criminality here is clearly considerably less than that of her co-offender Mr Vo. He was the principal in the firm, she his employed solicitor. It is he who removes the funds from the trust account, it is the co‑offender who gambles those funds and transfers them to other accounts. However this offender’s role was still an important one, given her deceptive conduct towards the victims and her assistance to the co-offender in gambling the funds away. It appears this offender’s motive for engaging in the fraud was some deluded idea that she could assist her co-offender to gamble and win back the money that had been taken from the trust account and clients. One need only state that proposition to understand how deluded that motive was, given the offender was a solicitor of some five years standing. The offender did obtain some incidental financial benefits as I have outlined above. The nature of the fraud was not sophisticated and it was inevitable that it would be discovered.

48. I assess the objective seriousness of the first offence given the sum involved as well below a notional mid-range offence.

49. The second offence is approaching the mid-range of objective seriousness in my view. The Form 1 offence is also a serious offence involving a fraud of $151,993.15 of another client of the practice. Those funds were used either to fund the co-offender’s gambling or to cover expenses such as accommodation in Adelaide where the gambling took place. Again, the offender’s criminal liability was on the basis of the doctrine of joint criminal enterprise. Given the serious nature of this offence, it has some impact on the sentence I am to impose on count 2.

The offender’s subjective case

50. Turning then to the offender’s subjective case. She is 35 years of age. The offender has no criminal history, which entitles her to some leniency here, although it must be acknowledged that her prior good character facilitated the commission of these offences, as to be a solicitor you must be a person of good character.

51. There is before me a Sentencing Assessment Report, a psychological report by Katie Murtens, psychologist dated 12 December 2022 and a letter by the offender’s brother. The offender gave evidence on sentence.

52. In terms of her family background, the offender was born in Vietnam and migrated to Australia with her parents at the age of two following the Vietnam war. She has two younger brothers and an older sister. The offender recalled that there had been some domestic violence in the family home when she was growing up. The offender detailed to the psychologist that she had had a good relationship with her parents and a good relationship with her siblings, if a little distant in more recent times. The offender’s account of her early life was to the effect that her parents placed a priority on her education and that she was expected to contribute to domestic work around the home. She noted that her father had engaged in problematic gambling which had been difficult at times in relation to the family’s financial circumstances. Her parents divorced when the offender was 14 or 15 years of age. The offender’s account of her early life is confirmed in her brother’s letter. The offender told the psychologist and gave evidence concerning the unexpected passing of a boyfriend in her early 20’s and the impact that had upon her.

53. While to the psychologist the offender denied any romantic relationship with the co-offender, in her evidence she described them being in an intimate sexual relationship as at the day of the offences. The offender is currently living with her brother and he is supportive of her. Consistent with the values of her parents, the offender had a commitment to her education. After high school she completed her Bachelor of Arts, Bachelor of Law degree while also working. In her evidence she detailed working for her co-offender’s firm before she had qualified as a solicitor and then when qualified she was employed in that role.

54. The offender undertook her practical legal training to become a qualified solicitor while working at the co-offender’s firm. Her evidence was that after becoming qualified, once she gained more experience she had more involvement with clients and worked on more difficult files. Clearly the co‑offender insofar as the offender’s professional development was concerned, was supportive and seen as a mentor. At some point while working at the firm, it would seem on the evidence around 2018, the offender commenced an intimate personal relationship with the co-offender. In her evidence she detailed how the co-offender at one point in 2019 confided to her that he had a gambling problem and had taken money from the trust account in order to fund his gambling activities.

55. The evidence from the offender was that she endeavoured to convince the co-offender to cease gambling. Clearly, given the number of times she went to the Adelaide Casino and accompanied him, her role really became one of assisting him to gamble and to endeavour to cover up the result of his fraud from the clients concerned.

56. The offender now of course cannot work as a solicitor and is on Centrelink payments. She has enrolled in a Bachelor of Science degree at Sydney University. The offender has no issues with alcohol or illicit substances and she denies problematic gambling.

57. The psychologist administered psychometric testing to the offender. That testing indicated she has a depressed mood with sleep disturbance and low appetite without the cognitive symptoms often associated with such diagnoses. Her depression and anxiety appear to flow primarily from the fact that she has been charged with and is to be sentenced for, serious fraud offences, which in effect means the end of her legal career for the foreseeable future. The psychologist considered that it did not appear that the offender suffered any diagnosable mental health condition as at the time of the offending.

58. The psychologist records the offender expressing regret for her offending, stating that the client would have felt anxious, disappointed and concerned about their financial wellbeing. The Sentencing Assessment Report records that the offender acknowledged the impact her actions had on the victims to the offending and regretted her actions.

59. However, when giving evidence before me, the offender’s focus of concern appeared to be that of the co-offender and she did not appear to have any significant insight into the impact of her fraudulent conduct on the victims of the offences. The psychologist considered it was unlikely that the offender would re-offend and the Sentencing Assessment Report records that she has a low risk of re-offending.

Imposition of sentence

60. Her plea of guilty to count 1 attracts a 25% discount for the utilitarian value of it, as she pleaded guilty at the first available opportunity, that count being an ex officio count. The plea of guilty to count 2 was on the first day fixed for trial and attracts a 5% discount for the utilitarian value, which I will allow her. There is some evidence of remorse here being the content of the psychological report and the Sentencing Assessment Report I referred to earlier. As I also said earlier, when giving evidence the offender’s focus was her concern for her co-offender, which was troubling. While there is evidence of remorse here, I do not think that the offender fully recognises the impact her offending has had on her victims.

61. The offender has excellent prospects for rehabilitation and I consider she is unlikely to re-offend, she has no other convictions, is obviously intelligent and has a supportive family.

62. The co-offender was sentenced by Colefax SC DCJ on 11 March this year on the same charges as the offender, although none were on a Form 1. That offender was a principal in the first degree in relation to each offence. That offender was older and the principal in the legal practice. That offender was clearly the driving force behind the fraudulent conduct in order to feed his gambling addiction. The co-offender also had no prior convictions and was found to be remorseful. He pleaded guilty at the first opportunity and received a 25% discount for the utilitarian value of his pleas.

63. Colefax SC DCJ recorded the following indicative sentences: For the offence equivalent to count 1 here, nine months imprisonment. For the offence equivalent to count 2 here, four years and six months imprisonment. For the count that is the equivalent of the offence on the offender’s Form 1, his Honour recorded an indicative sentence of one year and ten months. His Honour imposed an aggregate sentence of six years imprisonment with a non-parole period of three years.

64. I have considered his Honour’s sentences, noting the differences I have referred to above in arriving at the appropriate sentence to impose here.

65. There are two substantive offences on which the offender is to be sentenced and two victims so there should be a reasonable degree of accumulation in my view.

66. I have had regard to the objectives of sentencing referred to s 3A of the Crimes (Sentencing Procedure) Act. Frauds by solicitors involving taking monies which clients have given them on trust are very serious offences. Persons who occupy the position of a solicitor in our society enjoy a particular status in our community. It is a position of trust and prestige. The community places great trust in solicitors to conduct their affairs competently and honestly. When that trust is betrayed by such dishonest conduct as displayed here, significant sentences must be imposed to deter other solicitors from engaging in such terrible fraudulent conduct. The maximum penalties have been taken into account as a legislative guideposts. There is no issue that the only appropriate sentence is one of imprisonment.

67. I will use the aggregate sentencing provisions. On count 1, I record an indicative sentence of three months’ imprisonment. On count 2 and having regard to the offence on the Form 1, I record an indicative sentence of three years imprisonment.

68. Stand up Ms Dinh please. I impose an aggregate sentence of three years and two months imprisonment and convict the offender of the two offences to which she has pleaded guilty.

69. As the aggregate sentence is more than three years, the issue of serving the sentence by way of an intensive correction order ventilated at the sentencing hearing falls away. If the sentence had been three years or less I would not have imposed it by way of an intensive correction order because of the serious nature of the offending and the weight that needs to be given to general deterrence here. I will find special circumstances when fixing the non‑parole period. This will be the offender’s first time in custody and it is likely that the custodial environment for a solicitor may be more arduous and indeed dangerous than it is for other inmates.

70. I impose an aggregate sentence of three years and two months and an aggregate non-parole period of one year and seven months. The sentence commences today 16 December 2022 and expires on 15 February 2026. The non-parole period expires on 15 July 2024. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 15 July 2024. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date. Just have a seat.

Orders

1. Impose an aggregate sentence of three years and two months with an aggregate non-parole period of one year and seven months.

2. The sentence commences 16 December 2022 and expires on 15 February 2026. The non-parole period expires on 15 July 2024.

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Decision last updated: 09 March 2023