R v Le
[2008] VSC 624
•2 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1746 of 2008
| THE QUEEN |
| v |
| HUY ANH LE |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 September 2008 | |
DATE OF SENTENCE: | 2 October 2008 | |
CASE MAY BE CITED AS: | R v Le | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 624 | |
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Solicitor, theft, deficiency trust funds, full restitution, mental health issues, 12 months wholly suspended for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Hillman SC | Office of Public Prosecution |
| For the Accused | Mr A Halphen | Robert Stary & Associates |
HER HONOUR:
Huy Anh Le, you have pleaded guilty to two counts of theft, one count of obtaining a financial advantage by deception and one count of having a deficiency in a trust account contrary to s.188 of the Legal Practice Act 1996.
You were admitted to practise on 7 April 1993, having completed your articles at Holme Robinson & Lowery at Preston and then working as an employee solicitor for a period time before moving to Slater & Gordon, remaining with them for approximately two years.
From 1998 you then practised as a sole practitioner under the name Le & Partners on premises at number 7‑9 Leeds Street, Footscray. As part of that business you conducted a trust account with the National Australia Bank and maintained a private bank account in your own name with the Commonwealth Bank. You probably have other bank accounts but they are not relevant to the offence to which you have pleaded guilty.
The offences
Count 1 ‑ theft, a cheque in the sum of $23,700.
Sam Ngoc Tran and Diep Thi Kim Nguyen agreed to purchase a property in Milton Parade, Malvern subject to obtaining finance. A deposit of $23,700 was paid. The finance was not approved and on 24 September 2001 Kennedys, the vendor's solicitors, forward a refund cheque to your firm on behalf of your clients. The cheque should have been paid into your firm's trust account but instead you paid it in the Commonwealth Bank account. That conduct constituted the theft of the cheque.
When you were asked about that offence you had no clear recall of the matter or any reason why you placed the money into the general account rather than your trust account and believed that it may have been an accounting error.
I can accept that you may well have had no clear memory by that stage, as you were first interviewed about this matter some almost seven years later.
Despite not having a clear memory, you admitted to the police that you were responsible for the cheque being placed in your general account and have entered a plea of guilty in respect of that matter.
Count 2 ‑ theft, bank cheque in the sum of $43,000.
In November of 2002 you were acting for Shao Xian Peng in relation to the purchase of a property, 33 Hosken Street, Balwyn North for $789,000.
On 6 November 2002 you wrote to your client seeking bank cheques for settlement, including a cheque to the State Revenue Office in the sum of $43,000, the stamp duty on the transfer of land based on the actual purchase price of $789,000. That cheque was forwarded to you but the bank cheque for $43,000 was not used to pay the stamp duty. It was negotiated at the Commonwealth Bank on 6 January 2003. $22,994.60 was credited to your Commonwealth Bank account and you obtained a bank cheque for $20,000 payable to Ti Lang Dang. That conduct constitutes the theft of the cheque. In your record of interview with the police you stated that she was a person who lent you money at the time, who was putting a lot of pressure on you to repay. Although you did not seem to totally agree when the police described her a "loan shark" you did say she was a person from whom you would borrow money but not very often but when desperate would borrow from her.
Count 3 – obtaining a financial advantage by deception.
Having stolen the cheque for the payment of stamp duty, which is Count 2, you then altered the consideration stated in the transfer of land from $789,000 to $589,000. That reduced the stamp duty payable from $43,000 down to $31,000. You then presented that altered document to the State Revenue Office on 21 May 2003. You presented it for stamping and you also provided a cheque for the $31,000 at that same time. You thus obtained a financial advantage by deception, being the sum of $12,000.
In your interview with the police you stated at the time that you altered the document because you were desperate for money and depressed. Once again, you were being pressed for repayment of money by a loan shark.
Count 4 ‑ deficiency in the trust account.
By the process of drawing a cheque for $31,000 on the trust account you created a deficiency in the trust account because no funds were held in trust for that client, you having earlier deposited the money in the manner referred to in Count 2. This deficiency is recorded as at 20 November 2003 when the Law Institute made inquiries.
What occurred after that is that Mr Peng, the client in respect of Counts 2 and also 3 inquired in early October 2003 about the first home buyers' grant which you had undertaken to apply for on his behalf but which you failed to do.
On 16 October 2003 you paid Mr Peng the sum of $7,000 by personal cheque and that was in respect of the application that you actually failed to make.
On 6 November 2003 a letter was sent from the Law Institute of Victoria outlining complaints lodged by Mr Peng in relation to your handling of his file.
On 12 December 2003 you consented to the appointment of a receiver under the Legal Practice Act and your right to practise was suspended.
On 31 May 2006 the full tribunal of the Legal Professional Tribunal found you guilty of a number of offences, some of which are connected to the present offences being particularly Counts 2, 3 and 4.
There was a Statement of Agreed Facts presented to that tribunal which contained admissions to what in this court became Counts 2, 3 and 4.
You were reprimanded by the tribunal and it was ordered that you be suspended from practise for three years from that date, effectively meaning that you were suspended from practise until at least 31 May 2009.
You were also directed to provide medical evidence of suitability to engage in legal practice on any future application to be issued with a practising certificate.
In March of 2008 police from the Fraud Squad conducted a record of interview with you in respect of these counts, to which you made full admissions.
On 8 April 2008 summonses were issued for these offences and on 11 June 2008 a hand‑up brief committal was held in which you indicated your intentions to plead guilty to the counts before this court. An accurate description is that you co‑operated with the investigators from the Law Institute, the police, and indicated your intention to plead guilty at the earliest possible stage.
Penalties in respect of these offences are: theft, 10 years; obtaining financial advantage by deception, 10 years; and deficiency in trust account, 15 years.
You have pleaded guilty at the earliest stage, as I said, and indicated at many levels your remorse for your offending conduct. You are entitled to, and will receive, a substantial discount for that plea of guilty and the demonstrated remorse.
You are aged 39 years, having been born on 29 October 1968 and have no prior convictions and no subsequent offending.
There has been what I would describe as a substantial delay in respect of these matters being brought before the court. None of that delay is attributable to any conduct on your part. It is not acceptable that someone who is making full admissions to matters, is not able to be brought before a court in a time span that is less than four to five years. As stated by Chernov JC in R v. Cockerell & Ors (2001) 126 A.Crim.R. 444 and cited with approval in R v. Taborsy & Ors (2006) 166 A.Crim.R. 291:
"The courts have recognised that such delay which as here cannot be attributed to the defender constitutes a powerful mitigating factor at a number of levels. First and perhaps foremost where there has been a relatively lengthy process of rehabilitation since the offending being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her".
Accordingly, delay is a matter which I will take into account in your favour. There is no doubt that the courts regard the breach of trust occasioned by a solicitor's theft of a client's money or defalcations in their trust account to be matters of serious concern and merit significant but appropriate punishment tempered as it must be by all of the aggravating and mitigating facts and circumstances.
Your personal circumstances are that you are the eldest of three sons from what could be considered a high achieving family. Your parents who became refugees after the war ended in Vietnam fled the country with their children in a boat, which ultimately sank. You and the others with you, were rescued by an oil tanker and sent to Malaysia to a refugee camp. At the age of 11 you were granted entry to Australia with the rest of your family.
You attended Melbourne High School, as did your brothers, although I must say that must have been difficult, in terms of your English, when you arrived in this country.
Your parents, who were tertiary qualified persons, worked initially in factories. Although I note that they are described in the report of Mr Cummins as being a retired TAFE teacher and a retired primary school teacher and I am unsure what they did from the time after they were working in factories. They are both in their 60s.
Your two brothers both successfully completed Year 12 and attended medical school and are qualified medical practitioners with the second youngest working in the specialisation of gastroenterology and the youngest, in the final year of his specialist qualifications as an ophthalmologist. That brother, Dr Anh Chuong Le, gave very detailed evidence before me on the plea. You were not as successful in your Year 12 studies as your brothers and qualified for a computer science degree at La Trobe University, which you undertook for one year. You enrolled in a law/commerce degree at the Australian National University the following year and after completing a successful year there, transferred to Melbourne University and completed a law degree, not continuing with the commerce.
Whilst at university you met your ex‑wife Lyn Tran who was training to be a doctor. You married in 1996, approximately six years after you had met, and you had a son James who is now aged 11. You and your wife separated in 1999 divorcing in 2000. Your ex‑wife sadly succumbed to breast cancer in February of this year and whilst your son remains with his maternal grandparents after a very acrimonious divorce you have assumed a great deal more of the responsibility for your child, being reconciled with your ex‑wife shortly before her death.
Your mother has been recently diagnosed with lymphoma and is undergoing chemotherapy.
As I said, you came from a very high achieving family and your parents were far from satisfied with your results in Year 12 and did not accept the choices that you made for your university course and it was as a result of their insistence and encouragement that you ultimately became a lawyer. They valued education very highly and there is no doubt that you felt that you had disappointed them with your academic results.
Your brother gave evidence before me and stated that he had noticed, whilst you were still attending university in Melbourne, that you had what he thought were quite severe mood swings, with you being exceedingly happy and jovial as he described it and then locking yourself away and not mixing with others. He was of course much younger than you were whilst you were at university, but he noticed, as time went on, that these moods continued as you got older and caused a great deal of problems, in respect of your marriage to your wife.
He said that during your marriage to your ex‑wife, he was very close to both of you and he continued to notice the mood swings. He said your wife would ring him complaining about what was described by her as your weird behaviour, getting angry for no reason, money in the joint account would disappear and a myriad of other problems.
He said he was concerned to try and prevent the breakdown of the marriage. His view was that he believed you were a bit manic and he looked up some material on the internet relating to mania and gave it to you. He was of the view that you first had to understand and accept there was a problem before you would do anything about it. He said that your mood swings got worse as the break up got closer. He described you as very reckless with money, that you seemed to think very highly about yourself, that you had funny ideas about investment and that you would talk to him about wild ideas and schemes. He thought your behaviour was abnormal and he tried to speak to you about his beliefs and suspicions. He gave evidence that what he said and gave you, in the way of information relating to mania, appeared not to sink in. You did not seem to accept that you had a problem. He also said he did not believe you were involved in drug taking, as this was something that he had treated during his time in hospitals and you did not have any of the signs. Gambling he did not consider an issue, as you were never the gambler in the family. When all the family played cards you would not. To his knowledge you had never been near Crown Casino.
He thought things had escalated, as you borrowed a lot of money from him, from your parents and from others, including your older brother. He said you were spending lavishly, wearing expensive watches, pens, clothes. He said you had at least three cars. You started opening a lot of law offices with secretaries, without any lawyers being there. He said that he talked to you about that and you said it was fine, you did not know what he was talking about.
He stated that he definitely thought you had some sort of manic behaviour problem, at this stage. He tried to discuss this with your mother, but she did not accept that you had any sort of psychiatric problem, being very sceptical of the existence of psychiatric disorders at all.
He said, he came to the view that he thought that you would have to get into trouble, before you would accept that you had a problem.
When he was informed by your parents in November of 2003 that you were in trouble, he took the opportunity to talk to you and try and make you realise there was a problem and made arrangements for you to see Professor Singh, a psychiatrist who taught him whilst in medical school. He physically took you to see the professor, for the first two appointments, concerned that you may otherwise not have attended and you have continued from that time to see Professor Singh.
Your brother said, that in the last 12 months, what he described as your manic problems have gone, but you now sound depressed and sad, that you avoid family functions, it appears because of the shame you have brought on the family. He described you as down, helpless and hopeless. Also that you appear very sad, particularly about your son, and you have expressed your sadness about your behaviour towards your ex‑wife.
Your brother said that, in his discussions with you, you expressed great regrets for what you have done, particularly as your family is well known in the Vietnamese community and you believe that you have given them a very bad name within that community. This material is the background to the treatment and therapy that you have been undergoing with Professor Singh since the time in 2004, when your brother took you to see him. Professor Singh was overseas at the time of the plea and unable to give evidence, but a report was tendered outlining the diagnosis and treatment provided by the professor. In short, he has seen you on 30 occasions since the referral and has treated you with medication, including an antidepressant Zoloft and a mood stabiliser Epilim, together with psychotherapy, Professor Singh described the problems, the first time he saw you as:
"Mr Le has been behaving in an excessive and impulsive way indulging in high risk activities in both his personal and professional life. In summary, Mr Le was spending excessively, opening more offices than the business could sustain, buying or leasing three to four cars, borrowing heavily, making poor investment judgment, entertaining constantly and paying the bill for all when he did. In addition, he was acting out sexually with multiple partners and making superficial and ill‑judged decisions, regarding financial matters, about people who he trusted among his associates. Mr Le was drinking and eating excessively, sleeping poorly. All in all, he was living well beyond his means and displaying impulsive actions and poor judgment. In short, he was showing all the features of a hypermanic episode."
You were diagnosed with a cyclothymic disorder listed in DSM‑IV. In short, that means for at least two years you had the presence of numerous periods of hypermanic symptoms and numerous periods with depressive symptoms that do not meet the criteria for a major depressive episode. It also means that the symptoms are not better accounted for by a schizoaffective disorder and that the symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning.
Professor Singh stated that when he first saw you, you were suicidally depressed, as you tried to come to terms with the enormity of your downfall and the shame. He stated that the scales were starting to fall from your eyes, in regard to your world of fantasy and the hypermanic behaviour. He saw you initially on a weekly basis and commenced medication and psychotherapy.
In respect to your response to treatment in his report Professor Singh stated:
"Over the last four years to the present he has continued on medication and attended me regularly for psychotherapy. He is remorseful for his actions and has a better understanding of the stresses he was under and the chronic low self‑esteem which lies behind his hypermanic defences against these. His depression is under control with medication. He lives in fear of the shame that all the publicity of this court case may bring. Mr Le has attempted to gain useful work, but still gets periods when his hypermanic tendencies emerge, but now he recognises them for what they are and is able to bring them under control. There has been no further behaviours of the type which led to his current predicament. However, he does have psychothymic personality and will continue to require treatment for the foreseeable future to keep this under control. If he did comply with treatment his prospects for rehabilitation in life and finding a career, whether back in the law or out of it, are good."
Evidence was called from Mr Geoffrey Cummins who agreed generally with Professor Singh. His evidence was lengthy, but I do not intend to go through it. Now in this situation, you have the support of your parents, you do appreciate that you have an illness that needs ongoing treatment, your brothers and their families are supportive and also in particular your current partner Ms Tina Pham, is emotionally and financially assisting you. She holds a responsible job as a medical scientist. You have virtually no income and all your outstanding debts have been paid, by your parents remortgaging their home. The fidelity fund will be compensated for their losses, although I understand the claims were not high. But I do take into account that full restitution will be made.
Because of your financial circumstances I will not be imposing a fine in addition to the sentence that I shall impose.
I have received character references including one from Ms Pham and whilst they all speak about your honesty, your integrity, ability and your work ethic, they do actually also demonstrate that you were, in hindsight, involved in hypermanic episodes and behaviour at the time of these offences.
In terms of your offending, the amounts involved are at the lower end of the scale of offending and although there were two separate thefts from your client the deficiency, is as a result of the theft and the obtaining financial advantage, that arises out of Count 2.
Count 3 does show a deception that you perpetrated upon a public body, but the sum involved again, was quite minimal.
Your offending, whilst serious in nature, is at the lower end of culpability for offences of this type, particularly taking into account the mental health issues that you suffered, at the time of the offending.
I have taken into account those issues and the principles enunciated in Verdins [2007] 16 V.R. at 276 and that will moderate the issue of general deterrence to a significant degree. Whilst I accept that you understood clearly that your actions were wrong and illegal, I am satisfied that your mental disorder significantly compromised your ability to function and rationalise your own actions. While the issue of specific deterrence is not a particularly dominant matter in my view, in light of your expressed and demonstrated remorse, your treatment and commitment to ongoing treatment, it will still have a part to play in the sentence.
I have examined a number of cases to which I have been referred and whilst helpful each case must of course be determined on its particular circumstances.
Accordingly, taking into account all the matters to which I have referred including the need for a just and appropriate sentence, in respect of Count 1 you are convicted and sentenced to be imprisoned for six months. Count 2, you are convicted and sentenced to be imprisoned for six months. Count 3, you are convicted and sentenced to be imprisonment for six months. Count 4, you are convicted and sentenced to be imprisoned for four months.
I direct that three months of the sentence imposed on Count 2 be served cumulatively upon the sentence imposed on Count 1 and three months of the sentence imposed on Count 3 be served cumulatively upon the sentence imposed on Counts 1 and 2 making a total sentence of 12 months' imprisonment. Count 4 is to be served concurrently with the sentence imposed on Count 1.
I direct that the sentences be wholly suspended for a period of two years.
Pursuant to s.6AAA of the Sentencing Act 1991 I declare that the sentence I would have passed but for your early plea of guilty and demonstrated remorse would have been 19 months' imprisonment wholly suspended.
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