R v Vongsaytham

[2019] NSWDC 65

District Court

New South Wales

Medium Neutral Citation:	R v Vongsaytham [2019] NSWDC 65
Hearing dates:	31 January 2019
Decision date:	08 February 2019
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted on each count. Special circumstances found – 1st significant period in custody, family circumstances, need for an extended period on parole to assist with rehabilitation in the community. Indicative sentences: On each count: 23 months’ imprisonment Aggregate sentence: Sentenced to a total term of imprisonment for 3 years and 9 months, comprising of a NPP of 2 years and 3 months to commence on 13/12/18 and to expire on 12/3/21, and a balance of term of 1 year and 6 months to commence on 13/3/21 and to expire on 12/9/22
Catchwords:	CRIMINAL – sentence - using false instrument with the intention of it being accepted by another person to their prejudice - nine fraudulent loan applications between 2004 and 2005 – overstatement of borrower’s financial position - using loan application forms containing false information, and used false and forged documents in support, such as false payslips, PAYG summaries, ATO notices of assessment, bank statements and false identification documents such as Australian Citizenship Certificates and New South Wales driver’s licenses – planned, deliberate and designed to defraud Adelaide Bank of significant sums of money - subjective matters
Legislation Cited:	Crimes Act 1900
Category:	Sentence
Parties:	Regina Keophanthoyn Vongsaykham
Representation:	Counsel: Defence: Mr J Clarke   Solicitors: Crown: Ms T Donovan
File Number(s):	2014/00225613

Judgment

1. HIS HONOUR: Keophanthoyn Vongsaykham appears for sentence in respect of nine offences. Each offence is contrary to s 300(2) of the Crimes Act 1900. Each bears a maximum penalty of ten years’ imprisonment and there is no relevant standard non‑parole period provided. He was committed for trial on 3 December 2015 from the Parramatta Local Court. A trial was listed for 24 October 2016 but the trial date was vacated and next listed for trial on 3 October 2017, when the offender entered pleas of guilty to a fresh indictment the following day, that is, 4 October 2017.

2. Subsequent to that, on his behalf a notice of motion to traverse the guilty plea was lodged, and on 7 August 2018, the notice of motion was withdrawn. In the circumstances, the plea of guilty was very belated. He is however still entitled to some discount for the utility of the plea, and I will allow a 5% discount for the utility of the plea which has been applied. The facts are agreed and are as follows:

3. The offender was born on 8 August 1963.

4. At all relevant times the Adelaide Bank Limited (ABL) sold mortgage loans directly and through independent contractors known as mortgage manager companies. One such mortgage manager company contracted with ABL was Ideal Homes (IHL). IHL contracted work to a number of brokers.

5. One of IHL’s brokers was the offender, who was also known as “Victor Knight” and “Victor Smith”. IHL knew the offender as “Victor Smith”. Ashwick Holdings Pty Ltd was the company IHL associated with Victor Smith. The director of Ashwick was the offender’s de facto partner, Ms Shixiao Lee, who was also known as “Shixiao Li” prior to 30 April 2007. The offender used Ashwick to introduce the loan application and to receive payment from IHL for commission on each loan approved.

6. The offender submitted nine fraudulent loan applications to ABL via IHL.

7. In submitting these applications the offender used loan application forms containing false information, and used false and forged documents in support, such as false payslips, PAYG summaries, ATO notices of assessment, bank statements and false identification documents such as Australian Citizenship Certificates and New South Wales driver’s licenses.

8. The offender in each of the nine loan applications knew the instruments used by him were false. The false instruments used by the offender in submitting the applications overstated the borrower’s financial position and their ability to repay the loan, thereby typically causing prejudice to the lender.

9. The offender in each of the nine fraudulent loan applications intended to induce ABL to accept these instruments as genuine, and because of that acceptance, to approve and make loans that it would not otherwise have made to its prejudice.

10. When the offender was arrested on 31 July 2014, he was found in possession of a Medicare and Centrelink pension card in the name of Victor S Knight, a Bendigo Bank debit card in the name of Keophaytoune Vongsaykham, and a TAB sports bet card in the name of Keophathoune Vongsaykham.

11. The facts in respect of each of the nine fraudulent loan applications follow.

COUNT 1: LOAN APPLICATION IN THE NAME OF GREYS O’BRIEN.

12. On 29 November 2004, the offender submitted a false application to AVL via IHL for a residential loan in the name of Greys O’Brien (DOB 27/04/1952) of 202/241-247 Crown Street, Surry Hills, New South Wales. The application was for the purchase of a residential property located at 12/76-78 Courallie Street, Homebush West, New South Wales. The loan amount applied for was $389,500.

13. The loan application form submitted by the offender falsely stated that the applicant’s occupation was a Sales Manager for a company called Real Estate Matters, earning $98,000 per annum. In support of this application the offender submitted the following false documents in the name of Greys O’Brien:

• PAYG payment summary;

• Payslips;

• Westpac Bank Statement Classic Account with a stated account balance of $58,300.15.

14. On 19 January 2005, the loan settled. On 20 January 2005 AHL paid Ashwick $3,895 in commission for the approval of the loan application. The loan disbursements indicated that at settlement $23,752.92 was received into an account in the name of S Li at the direction of the offender.

15. On 5 April 2005, the borrower’s loan account fell into arrears and on or about 30 March 2010, the borrower’s sale of the mortgaged property was approved by ABL for $350,000.

COUNT 2: LOAN APPLICATION IN THE NAME OF SHARON NGUYEN

16. On 6 December 2004, the offender submitted a false application to ABL via IHL for a residential loan in the name of Sharon Nguyen (DOB 07/05/1978) of 52 St Kilda Street, Johns Park, New South Wales. This application was for the purchase of a residential property located at 14 Mohawk Crescent, Greenfield Park, New South Wales. The loan amount was $329,600.

17. The loan application form submitted by the offender falsely stated that the applicant’s occupation was State Marketing Manager for a company called Alpine Finance, earning $98,000 per annum. In support of this application the offender submitted the following false documents in the name of Sharon Nguyen:

• Notice of Tax Assessment;

• False payslips.

18. 16. On 17 January 2005 the loan settled. On 18 January 2005, ABL paid Ashwick $1,956 and on 17 February 2005, ABL paid Ashwick $5,475 in commission for the approval of the loan application.

COUNT 3: LOAN APPLICATION IN THE NAME OF SONG TRUONG DOAN

19. On 4 January 2005, the offender submitted a false application to ABL via IHL for a residential loan in the name of Song Truong Doan (DOB 21/09/1976) of 10 Vancouver Place, Fairfield, New South Wales. This application was for the purchase of a residential property located at 2/76-78 Courallie Avenue, Homebush West, New South Wales. The loan amount was $387,700.

20. The loan application form submitted by the offender falsely stated that the applicant’s occupation was as a Marketing Manager for a company called Alpine Finance, earning $97,000 per annum. In support of this application, the offender submitted the following false documents in the name of Song Troung Doan:

• PAYG payment summary;

• Two false payslips;

• St George Bank Statement of term deposit with a stated account balance of $59,063.14

21. On 31 January 2005 the loan settled. On 10 February 2005 IHL paid Ashwick $501 in commission for the approval of the loan application. The loan disbursements indicated that at settlement $30,822.81 was received into the account in the name of S Li at the direction of the offender.

22. On 28 February 2005 the borrower’s loan account fell into arrears. ABL subsequently took possession and sold the property for $300,000.

COUNT 4 - LOAN APPLICATION IN THE NAME OF BOUNTHOMG VONGSAYKHAM

23. On 4 January 2005 the offender submitted a false application to ABL via IHL for a residential loan in the name of Bounthomg Vongsaykham (DOB 08/08/1963) of 3/134 Railway Street, Parramatta, New South Wales. Boun Thom Vongsaykham is the offender’s brother. This application was for the purchase of a residential property located at 18/76-78 Courallie Avenue, Homebush West, New South Wales. The loan amount was $397,700.

• The loan application form submitted by the offender falsely stated that the applicant’s occupation was a State Marketing Manager for a company called Caporale Design, earning $98,000 per annum. In support of this application, the offender submitted the following false documents in the name of Boun Thom Vongsaykham:

• PAYG payment summary;

• Two false payslips;

• St George Bank statement for a term deposit with a stated balance of $75,000;

• Certificate of Australian Citizenship;

• New South Wales driver’s licence.

24. On 4 March 2005 the loan settled. On 8 March 2005 IHL paid Ashwick $2,777 in commission for the approval of the loan application. The loan disbursements indicate that at settlement $8,999.15 was received into the account in the name of S Li at the direction of the offender.

25. The account subsequently fell into arrears and ABL took possession of the property and sold it for $309,500.

COUNT 5: LOAN APPLICATION IN THE NAME OF TERESA PINTO SARMENTO

26. On 2 February 2005 the offender submitted a false application to ABL via IHL for a residential loan in the name of Teresa Pinto Sarmento (DOB 09/02/1984) of 33 Young Street, Mount Pritchard, New South Wales. This application was for the purchase of a residential property located at 91 Woodcourt Street, Ambarvale, New South Wales. The loan amount was $247,350.

27. The loan application form submitted by the offender falsely stated that the applicant’s occupation was in sales marketing for a company called Officeworks, earning $65,000 per annum. In support of this application, the offender submitted the following false documents in the name of Teresa Pinto Sarmento:

• Two notices of assessment;

• Two false payslips.

28. On 5 May 2005, the loan settled. On 10 May 2005 IHL paid Ashwick $1,743.15 in commission for the approval of the loan application.

29. On 16 July 2008, the account fell into arrears and ABL took possession of the property and sold it for $228,043.40.

COUNT 6: LOAN APPLICATION IN THE NAME OF KEO VONGSAYKHAM

30. On 2 February 2005 the offender submitted a false application to ABL via IHL for a residential loan in the name of Keo Vongsaykham (DOB 06/11/1962) of 3/124 Railway Street, Parramatta, New South Wales. This application was for the purchase of a residential property located at 1/124 Saywell Road, Macquarie Fields, New South Wales. The loan amount was for $290,000.

31. The loan application form submitted by the offender falsely stated that the applicant’s occupation was a building supervisor for a company called Caporale Design earning $95,000 per annum. In support of this application the offender submitted the following false documents in the name of Keo Vongsaykham:

• PAYG payment summary;

• Two false payslips;

• Commonwealth Bank statement with a stated account balance of $52,801.60;

• St George Bank Visa card;

• Certificate of Australian Citizenship;

• New South Wales driver’s licence;

• Medicare card.

32. On 1 March 2005 the loan settled. On 12 May 2005 IHL paid Ashwick $2,793.60 in commission for the approval of this loan application.

COUNT 7: LOAN APPLICATION IN THE NAME OF KRIT KRITTIYATHAMRONG

33. On 14 July 2005, the offender submitted a false application to ABL via IHL for a residential loan in the name of Krit Krittiyathamrong (DOB 30/10/1959) of 4/548 Willoughby Road, Willoughby, New South Wales. This application was for the purchase of a residential property located at Lot 5 Roth Street, Casula, New South Wales. The loan amount was for $405,000.

34. The loan application form submitted by the offender falsely stated that the applicant’s occupation was a carpenter at a company called Caporale Design Pty Ltd earning $98,000 per annum. In support of this application, the offender submitted the following false documents in the name of Krit Krittiyathamromg:

• PAYG payment summary;

• Two false payslips;

• Letter of employment from Caporale Design Pty Ltd;

• Commonwealth Bank statement with a stated account balance of $48,654.85

35. On 19 August 2005 the loan settled.

36. The account fell into arrears. ABL subsequently took possession and sold the property for $335,000.

COUNT 8: LOAN APPLICATION IN THE NAME OF SIMON EDMUND

37. On 14 July 2005, the offender submitted a false application to ABL via IHL for a residential loan in the name of Simon Edmund (DOB 19/05/1966) of 25 Dudley Street, Mount Druitt, New South Wales. This application was for the purchase of a residential property located at lot 6, Roth Street, Casula, New South Wales. The loan amount was for $402,000.

38. The loan application form submitted by the offender falsely stated that the applicant’s occupation was as a building supervisor for a company called Terra Land and Building Services earning $84,000 per annum. In support of the application the offender submitted the following false documents in the name of Simon Edmund:

• PAYG payment summary;

• Two false payslips;

• Westpac bank statement for a Classic Account with a stated account balance of $29,459.19.

39. On 31 August 2005 the loan settled.

40. The account fell into arrears. ABL subsequently took possession and sold the property for $325,000.

COUNT 9: LOAN APPLICATION IN THE NAME OF SII SOMBOUN

41. On 17 July 2005, the offender submitted a false application to ABL via IHL for a residential loan in the name of Sii Somboun (DOB 06/11/1962) of 1/124 Saywell Road, Macquarie Fields, New South Wales. The date of birth given for the fictitious Sii Sombeun is that of Pra Prome, the deceased brother of the offender. This application was for the purchase of a residential property located at lot 3 Roth Street, Casula, New South Wales. The loan amount was for $490,000.

42. The loan application form submitted by the offender falsely stated that the applicant’s occupation was as a State Marketing Manager for a company called Caporale Design, earning $98,000 per annum. In support of the application the offender submitted the following false documents in the name of Sii Somboun:

• Letter of employment;

• Notice of assessment;

• PAYG payment summary;

• Two false payslips;

• Westpac Bank statement for an account with a stated balance of $57,133.05;

• New South Wales driver’s licence;

• Certificate of Australian Citizenship.

43. On 22 September 2005, the loan settled. The loan disbursements indicate that at settlement $21,142.024 was paid to the offender.

44. The total amount of funds provided by the bank as a result of the loan applications was $3,348,850. Six out of the nine loans ultimately defaulted and the bank was required to pursue enforcement, repossession and the re-sale of the properties.

45. The total amount of money received in the bank account held by Ashwick as a result of the loan applications was $40,282.99.

46. The total amount of money received into the account in the name of S Li in relation to the loan applications was $63,574.88.

47. The applications and loans were made within the period from 28 November 2004 to 22 September 2005, approximately a ten month period. In respect of Counts 1, 3, 4, 5, 7 and 8, the Adelaide Bank, after having taken possession and sold the property after the default on the mortgage, was $391,316.68 out of pocket, however the facts do not provide any information as to any monies paid during the course of the mortgages prior to the default in each case, so the actual loss is not capable of being calculated from the facts, nor is there any information as to the costs to the bank of taking appropriate action to enter back into possession, and the costs on the re-sale of the properties.

48. Payments to the offender in relation to the nine counts via Ashwick totalled $40,282.99 and to the account of S Li, his partner, $63,574.88. That is, there was, in relation to the nine loans made as a result of the offender’s use of false instruments, a total of $103,857.87 paid either to the offender or his partner. I accept the Crown’s submission that as to each of the counts before the Court, considering the amount of the loan approved on the basis of the false information and the benefits to the offender either directly through Ashwick or in combination with the payments to his partner, that each of the offences can be regarded as falling within the mid-range of objective seriousness for offences of this nature.

49. Each of the acts was clearly planned and deliberate and designed to defraud the Adelaide Bank of significant sums of money, even though the facts do not allow the Court to precisely find any particular sum. The bank was entitled to expect that it was advancing monies which were secured, not only by the mortgage on the property, but also by the assets and trust they placed in the apparent borrower as being someone capable of paying the mortgage instalments. In the majority of cases the failure to meet mortgage payments occurred relatively quickly, that is, within months, indicating that the borrower was incapable of supporting a mortgage in respect of the amount of money lent by the bank.

50. There is no evidence as to when the offending conduct was discovered, however the offences have occurred, as previously stated, between 28 November 2004 and 23 September 2005, and in most cases failure of repayments occurred within a few months thereafter. I note that the date of arrest was 31 July 2014, a significant delay between the actual offending and the offender’s arrest. There is no explanation for the delay, nor is, as I have said, is there any information as to how long it was before the offending conduct was discovered, but presumably, considering the relatively short term before failure of most of the mortgages, they were discovered some significant time before the offender was charged.

51. In respect of subjective matters, tendered on behalf of the offender there is a report from Mr Watson-Munro, psychologist, dated 10 December 2018; references from Victor Phomsavanh, being a Human Resource Manager with Premier Counsel, dated 8 December 2018; a letter from the Abbot of Wat Pa, being a Buddhist temple, dated 13 December 2019; a letter from Huan Bui, dated 13 December 2018; a letter from the offender’s daughter, Jaria Vongsaykham, dated 12 December 2018; a letter from the offender’s son, Ananda Vongsaykham, dated 12 December 2018; a letter from Philip Kelly, a friend of the offender’s, dated 12 December 2018; a letter from Kingmaly Vongsaykham, being the offender’s older sister, dated 4 December 2018; a letter from She Xiao Lee, spelt on this occasion as three separate names, dated 5 December 2018, being also the mother of the offender’s two children previously referred to.

52. In addition, there are a number of letters and/or reports in relation to South West Sydney Local Health District and the Children’s Hospital in respect of the offender’s son. In addition, the Court has available the offender’s criminal history in New South Wales and Victoria, and a Sentencing Assessment Report under the hand of Joel Markou of New South Wales Community Corrections, dated 9 November 2018.

53. Subjective matters are taken from that material. The offender did not give evidence on sentence, nor was evidence called from any person on his behalf. According to the history provided by him to Mr Watson-Munro, he was born in Laos, having five brothers and two sisters, one of his brothers having died in 2008 from alcohol-related complications. His father died in 1998 at the age of 65 from diabetes and related health issues.

43. His mother is still alive, being now some 90 years of age, and lives in Australia with the offender and his partner and their children. The offender stated that she has been diagnosed with dementia, however remains living with the offender and his partner. He claims to be her primary carer. He apparently fled Laos at the age of 14 years, living in a refugee camp with a brother and sister for approximately three years before coming to Australia as a refugee.

44. The letter to the Court from Philip Kelly indicates that the family, in fact, after having left Laos at the end of the Vietnam war, was split, with the parents and several siblings coming to Australia while this offender and other siblings settled in France, and that in France he studied at the Marist Brothers before finishing his secondary education in south-west Sydney after coming to Australia, and that he did some post-secondary school education at Wollongong University in relation to studying business, where he met his current partner.

45. His partner is apparently now 42 years of age, and although they have in effect separated, they remain resident in the same premises. His son is now approximately 12 years of age and his daughter 13. His son attends North Sydney Boys High School, and his daughter, Caringbah High School. His partner is employed in payroll accounting. His son last year suffered a lung illness which required hospitalisation for a period of approximately three months in the Children’s Hospital.

46. The report from the Children’s Hospital dated 2 August 2018 indicated that he was first being seen in clinic in relation to the management of pneumonia in June 2018 with a long-standing history of a moist cough, weight loss and noted to be “clubbed”. He was apparently discharged home, but on discharge had a severe obstructive pattern with borderline bronchodilator reversibility. He had reduced air entry but no inspiratory crepitations and no evidence of overt hyperinflation of his chest.

47. His chest wall was normal, and his cough was dry when asked to do so. He was opined that it was probable that following the bronchoscopy “Ananda will be admitted to hospital for an effective tune up to see if we can optimise his lung function”. There is effectively nothing more current than what I have referred to.

48. After arriving in Australia and being exposed to a new country with a different language and culture, he had some significant adjustment issues. He became competent in English after about three years and obtained employment at the Campbelltown City Council for approximately two years before commencing work with the Picton Council for a further two years.

49. He later became involved in the hospitality industry for between five to ten years before moving into real estate, where he worked as a “back of house facilitator introducing people to a broker who would obtain loans on their behalf”. It was of course at that time that he committed these offences. Following his occupation in that field and the commission of these offences, he has had some employment with a building company for about two years before gaining employment with Premier Consulting, where he was employed as a supervisor, but otherwise described by Mr Phomsavanh of Premier Counsel as a project manager.

50. He claimed to Mr Watson-Munro that at the time of the offending he was financially stressed, and that a gambling habit had had a dramatic impact on his family’s finances. Mr Watson-Munro administered the Beck Depression Inventory, which is a self-reporting questionnaire, and as a result, he was found to suffer a mild depression. Mr Watson-Munro opined that he may in fact be trying to mask the true extent of his distress.

51. I note that in general those who have provided references, including his partner, to whose account a substantial amount of the funds appears to have been directed, and his children all regard him well. I accept that the views they have expressed in their various references are genuinely held by them. I accept that he is supportive of his elderly mother and his participation in her care is a significant feature in her life.

52. I accept that his exposure in Laos to what might be referred to as the peripheral impact of the Vietnam war no doubt had a significant effect on him in his younger years, and of course the process of becoming a refugee and living in refugee camps before finally finding a place of home In Australia indicates that he has had a difficult past history.

53. That is, of course, no excuse for abusing the laws of his host country in such a significant fashion. I note that his criminal history indicates a predilection to using a variety of names and a variety of birth dates that he has had since coming to Australia, and a number of convictions. In relation to New South Wales in 1987, five counts of forgery; seven counts of stealing; goods in custody; five counts of uttering; a further three counts of stealing contrary to s 71; and one count of stealing contrary to s 501.

54. In relation to most of those matters, he was fined on each charge $50. In respect of one of the stealing charges, he received 200 hours of community service and in respect to another one he received 12 months imprisonment suspended on entering into recognisance in the sum of $1,000 to be of good behaviour with three years’ supervision by Probation and Parole, as well as an order to attend Gamblers Anonymous.

55. He was ordered to pay compensation in addition of $2,480. His next offending was in 1990 and involved six offences of fraudulently use plates; goods in custody; state false name; unregistered motor vehicle; uninsured motor vehicle and unlicensed driver. He was fined either $125 or $150 in relation to each of those offences. In 1992 there were further offences of unlicensed, unregistered and uninsured, resulting in further fines. Relevant to this matter in 1998 he was sentenced at the Waverley Local Court for obtaining a benefit by deception. He received a s 558 recognisance of three years.

56. There was also on the same date that he was before the Waverley Petty Sessions Court as it then was, a further offence of fail to appear in accordance with his bail undertaking, for which he received community service. There were further offences between 15 May 1998 and 24 June 1998 of obtaining money by deception being more than $5,000 but less than $15,000.

57. On one occasion he failed to appear when required, and eventually in August of 2015, having been charged for those offences in 2005, he received in respect of each of the two counts a cumulative 150 hour Community Service Order. However, in November of 2015 the Community Service Orders were reduced to 75 hours. He had also been ordered to pay $4,700 in compensation.

58. In 2009, he was charged in relation to offences of driver/rider state false name; fraudulently altering or using or lending driver’s licence; Class A motor vehicle exceed speed by more than ten less than 20 kilometres in a school zone; negligent driving; licence expired two years or more; not stop vehicle when directed; not stop before stop sign; and in relation to all of those matters, again indicating his predilection for false identities, and otherwise only transgressions of road traffic rules or licensing regulations.

59. However, in 1998 there appear to be further offences committed between 14 April 1998 and 24 June 1998 in respect to which he was charged on 28 September 1998, but again not dealt with until Liverpool Local Court on 26 August 2015, again being obtaining money by deception, resulting in Community Service Orders.

60. His Victorian criminal history indicates that he was dealt with on 14 October 1997 for a number of offences, in relation to which it appears, if I interpret his record correctly, that he received a sentence of six months on each charge concurrent and suspended for a period of two years. The offences referred to are attempt to obtain property by deception; attempt to obtain property by deception; state false name and address; attempt to escape from lawful custody; go equipped to steal/cheat; theft; obtain licence by misrepresentation; possess licence obtained unlawfully; and possess permit obtained unlawfully.

61. It is clear that the offender has a significant past history of what can be reasonably referred to as similar offending, even though the specific nature of the offending may have been different to what he is now before the Court in respect of. As to remorse and contrition, I note the following. When the matter was last before me on 31 January 2019, the offender provided a letter to the Court, dated the preceding day. It states:

“I am fully feel sorry and sad of my action in the past on this fraud charges. I now feel remorseful towards all the impact that I have caused. I understand the consequences of my behaviour and feel remorse for what happened. My time in jail I have reflective upon the consequences and I have strong intentions to change. I apologise to the Court and all people involve. Yours faithfully”.

73. I note that the time in jail referred to was the period in custody after I refused him bail on 14 December 2018, when, although the matter was listed for sentence and first came before me with him being represented by counsel and instructing solicitor, the offender withdrew their instructions, and the matter, having been already announced as ready to proceed by them - could not continue.

74. The significant portion of the delay since the offender was charged in 2014 has in fact been caused, in my view, by the offender and his failure to face up to and take responsibility for his offending behaviour, as previously indicated, the matter being originally committed for trial in December 2015; the trial date of 24 October 2016 being vacated and pleas of guilty not entered until 3 October 2017, followed by a notice of motion to withdraw the plea, although the notice of motion was withdrawn.

75. In my view, as I expressed on 14 December 2018, the offender appears to have been playing “Ducks and Drakes” in relation to the matter in order to achieve delay. As to his letter to the Court, as indicated to Mr Clarke, counsel for the offender, I place very little weight on letters to the Court from offenders in the circumstances where they are not prepared to give evidence on sentence so that the Court can assess for itself whether they are genuine in expressing what they refer to as “remorse”.

76. I also note, in relation to remorse and contrition, the report from Mr Watson‑Munro. In that he states on page 1 “At examination he expressed appropriate remorse for his behaviour” and on page 5 “Mr Vongsaykham added that he is highly remorseful for his behaviour”. I note that on no occasion in his report does Mr Watson-Munro indicate exactly how it is that the offender is said to have expressed remorse, which is unfortunately a usual circumstance in relation to reports from that particular psychologist.

77. More relevant, in my view, to the issue of remorse and contrition is what is contained in the Sentencing Assessment Report: that Mr Markou, under “Attitudes”, has stated “Mr Knight did not accept responsibility for his offending behaviour and maintained his own version of events”. Under “Insight into impact of re-offending”, the report states “Despite maintaining his innocence in relation to his offending behaviour, Mr Knight expressed remorse in regard to friends and members of his family becoming embroiled in the matters currently before the Court”.

78. Acknowledging the impact on friends and members of the family, in my view, is not an expression of remorse or contrition in relation to the commission of an offence. I accept that in the past he has been of some assistance in relation to Wat Pa, assisting them in their charitable endeavours. I note of course one difficulty in accepting that the offender is genuinely remorseful and contrite is the nature of the charges before the Court, that is, they being charges involving deception, fraud and false documents.

79. Mr Markou assessed the offender as being a low risk of re-offending due to the time lapse between the commission of these offences and the time lapse from the time at which he was charged and the fact that there has been no further offending, at least since being charged.

80. I will accept that he is now a low risk of re-offending, however, as conceded by Mr Clarke on his behalf, these matters are serious. They undermine the integrity of our financial system and cause banks to be more circumspect about lending money and to having to make in general more enquiries to ensure they are not being misled by those who bring work to them. The offender clearly committed the offences for financial gain.

81. I note that he informed Mr Watson-Munro that he was at the time affected by the use of prohibited drugs and also had a gambling habit. Apart from his self‑serving statements in that respect there is no evidence before the Court that supports it, even though there is at least the earlier reference in the criminal history to supervision, a requirement as part of his good behaviour bond in 1987, of his accepting supervision including attending Gamblers Anonymous.

82. In my view, his previous offending of a similar or a related nature is clearly a subjective matter which is adverse to the offender, and in my view disentitles him to leniency. The individual acts themselves were not impulsive or spontaneous. They recurred on a regular basis during the period of the offending. I have, as I have indicated, taken into account at least the delay between the offending and being charged. In my view, the delay since being charged until today is largely the responsibility of the offender, although I will take into account the lack of any significant criminal offending during that period.

83. Mr Clarke has conceded on behalf of the offender that the s 5 threshold has been passed and, in my view, that concession was entirely appropriate. I note there may be some difficulty in relation to the ongoing assistance that he has provided to his aged mother, and of course his children are at an age when parental support is always important. However, in sentencing an offender, the Court must take into account the objective seriousness of the offence and the purposes of sentencing which includes as well the need for both general and specific deterrence, and of course the protection of society.

84. In relation to this offender I regard specific deterrence and general deterrence as being important. I have taken all of those matters and the personal circumstances of the offender into account as well as the utility discount that I have previously referred to. I intend to proceed by way of an aggregate sentence and it is in those circumstances necessary for me to provide an indicative sentence in relation each of the nine counts.

85. While there are some distinctions between individual counts, and of course some are distinguishable by being later in time to those that were earlier, I see no utility in providing a number of individual and different sentences as indicative sentences in relation to each of the nine counts. Instead, I will simply indicate in relation to each of the nine counts an indicative sentence of 23 months. There is of course a need for the aggregate sentence to reflect the totality of the offending, and a need to provide some accumulation between the separate offences, each occurring on an entirely different occasion.

86. In those circumstances, the term of the sentence will be a non‑parole period of two years and three months commencing on 13 December 2018. He will be first eligible for parole on 12 March 2021. The balance of term or parole period is one year, six months, giving a total sentence of three years and nine months expiring on 12 September 2022. I have reduced the non parole period to approximately 60%, from memory, of the total term of imprisonment, to reflect the fact that this is the offender’s first significant period in custody, having not spent any significant time in custody other than since I refused him bail in December last year.

87. I have also taken into account in particular his children and their stage of development, and his mother’s age and health. A more significant period of parole as I have allowed is provided in the hope that he will not re-offend. I should note that, considering the chequered history of the matter since he was charged, I am not able to find that there is a good prospect of rehabilitation. I anticipate there is at least a reasonable prospect as well, as I have previously expressed, a low risk of re-offending.

**********

Decision last updated: 21 March 2019