DPP v Kevin [2021] VCC 343 (25 March 2021)

Last Updated: 12 April 2021

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-19-02038

DIRECTOR OF PUBLIC PROSECUTIONS
v
HELEN KEVIN

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2021
DATE OF SENTENCE:	26 March 2021
CASE MAY BE CITED AS:	DPP v Kevin
MEDIUM NEUTRAL CITATION:	[2021] VCC 343

REASONS FOR SENTENCE

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Subject: Criminal law

Catchwords: Obtain property by deception; theft; continuing criminal enterprise

Legislation Cited: Sentencing Act 1991 (Vic)

Cases Cited: R v Schwabegger [1998] 4 VR 649; R v Verdins & Ors [2007] VSCA 102; (2007) 16 VR 269

Sentence: Total effective sentence of 5 years and 8 months imprisonment; non-parole period of 3 years and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	Office of Public Prosecutions
For the Offender	Mr R. Stransky	Apac Legal

HER HONOUR:

1. Helen Kevin, you have pleaded guilty on indictment to six charges of obtain property by deception and two charges of theft. The offending that gives rise to these charges occurred over the period between 25 May 2010 and 25 March 2011, a period of some 10 months, and in a quantum that exceeds $2 million.
2. In sentencing you for these crimes I must have regard to the maximum sentences for the offences which you have committed. The charge of obtain property by deception at Charge 3 attracts a maximum penalty of 10 years imprisonment, as do the theft charges numbered 4 and 6. Charges 1, 2, 5, 7 and 8, obtaining property by deception in amounts greater than $50,000, are charged as continuing criminal enterprise offences under Schedule 1A of the Sentencing Act. Accordingly, the maximum penalty in relation to a continuing enterprise offence is double the maximum term prescribed for the offence and is therefore 20 years imprisonment.

The Offending

3. The circumstances of your offending were set out in a document entitled, "Amended Prosecution Opening Upon Plea", dated 13 October 2020. It is an extremely detailed document and represents an acceptance by you of all the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
4. I will not repeat the entirety of the opening as it is a document of record, but in order to comprehend the seriousness of your offending and how I am to sentence for it, there does need to be some recourse to the Crown opening.
5. At the time of your offending you owned Star Wool Conveyancing in Footscray, where you worked as a licensed conveyancer. It was your business. The offending relates to monies paid into bank accounts on your instructions, with each payment relating to your conveyancing business. In each instance you indicated that you would provide the monies received to an appropriate third party but instead withdrew it shortly after receipt and used it for your personal reasons.
6. Neither the Crown indictment nor the Crown opening is in chronological order but my summary of the facts will be. In chronological order your offending against each victim can be summarised as follows.

The Chang offending

7. The Chang offending is represented in Charge 2, obtaining property by deception in the amount of $70,000. Your first offence in time related to a victim, Yijie Chang, who engaged your services as a conveyancer between March and

   April 2010 in the purchase of a house and land package. At a meeting between you and Ms Chang, held in her own home, you advised Ms Chang that the development of the property could be sped up if she provided as much money as she could to the developer. You advised Ms Chang to transfer the money to your account and said that you would pass it on. Via text message you instructed Ms Chang to pay the money into a bank account in the name of "Helen Kevin t/as Star Wool Conveyancing" and provided the account details. On 25 May 2010, Ms Chang deposited $70,000 into that account.

8. Immediately thereafter you withdrew $15,000 in cash. You then withdrew a further $16,332.57. That amount was applied to a bank cheque addressed to the Commonwealth Bank. On the same day you transferred $20,000 into an unknown bank account. On 27 May 2010 a further $28,000 was deposited into the account from an unknown source, from which you then withdrew a further $47,646.29, most of which was applied to a bank cheque in the amount of $47,000 to the ANZ Banking Group relating to Charge 1. You attended at various different bank branches to facilitate the transactions.
9. Ms Chang regularly sought updates from you as to the progress of their property settlement and was repeatedly told that it was a slow process.

The Chow offending

10. Next, the Chow offending, Charge 7, obtain property by deception in the amount of $315,000. In July 2010 you were engaged by Hiu Tung Phoebe Chow as a conveyancer for the purchase of an apartment on behalf of her father. On

    5 November 2010 you met with Ms Chow at an ANZ branch to arrange for payment of monies for settlement of the property, a total of $315,000. You instructed Ms Chow to obtain two bank cheques, one addressed to L. Gunawan in the amount of $278,513.79, and the other addressed to the National Australia Bank in the sum of $27,486.21. Ms Chow believed the builder would be the recipient of the cheques that she subsequently provided to you and forms the basis for Charge 3. They obviously represent a significant amount of money. You did not provide receipts for those amounts.

11. The cheque addressed to L. Gunawan was provided to Lisa Gunawan, who was not connected with Ms Chow's conveyancing but was involved in a transaction of another of your clients, Mr Sondakh. You had been directed to pay Ms Gunawan monies from the settlement of the sale of

    Mr Sondakh's property. You, in effect, used Ms Chow's money to satisfy that obligation. Your counsel, perhaps rightly, used the phrase "robbing Peter to pay Paul".

12. The cheque for $27,486.21 was credited to the account of your brother-in-law, Mr Kim Gun Lee, who had no connection to the conveyancing of Ms Chow's property.
13. Ms Chow contacted you on numerous occasions to ask how settlement was progressing. On each occasion you told her you had heard nothing from the builder's lawyer regarding settlement.
14. That offence occurred approximately six months after the first in time.

The Pham offending

15. About six weeks later was the Pham offending, Charge 3, obtain property by deception in the amount of $14,130. Between October and November 2010 you were engaged as a conveyancer by Ms Lien Nguyen, who was assisting her daughter, Julia, and son-in-law with the purpose of a block of land. You were recommended as you speak Vietnamese.
16. In December 2010 you contacted Ms Nguyen and advised that settlement would occur on 13 December 2010 and that the balance of the settlement should be transferred into your account in the name of "Star Wool Pty Ltd, Commonwealth Bank", within two weeks. Ms Nguyen deposited a cheque in the amount of $142,500 to that account on 6 December 2010. A further $142,500 was transferred into the CBA account the following day.
17. On 8 December 2010 you withdrew $327,000 via seven cheques and withdrawals from that account, including a transfer of $50,000 to your own personal CBA account.
18. Owing to the withdrawals, the Star Wool account had insufficient funds and settlement did not occur.
19. On 20 December 2010 you sent Ms Nguyen an email stating that a further $14,130.20 was owed for stamp duty, transfer of name and registration fees. Ms Nguyen paid $14,130 into the Star Wool CBA account. That amount was not paid towards stamp duty. Shortly after the monies were deposited you transferred $14,000 into your personal account and it is that transaction which is the subject of Charge 3.
20. You did go to some lengths to conceal that fraud. When Ms Nguyen received a recision letter from solicitors for the vendors you told her the letter had been sent by mistake and not to worry. You requested an extension of settlement to 10 January 2011, citing financial issues for your clients, and that explanation was accepted by the vendors. When a further letter was received from the vendors, indicating that recision would occur if funds were not received in time, you told Ms Nguyen's brother that the funds had not been sent to the vendor because the signatory to your trust account was stuck in Queensland and affected by floods.
21. On 12 January 2011 settlement ultimately went ahead, a delay of about a month. You refused to provide receipts for the funds paid. The cheque you provided in respect of stamp duty was dishonoured.
22. Your gain on this occasion was significantly less than the $70,000 from Charge 2 and the $315,000 from Charge 7, but in total already represented some $399,000 obtained by you in about seven months.

The Fong offending

23. The next in time is the Fong offending, Charge 4, theft, in the amount of $12,430.20. Between September and October 2010, Ms Saw Wah Fong engaged you as a conveyancer for the sale of her and her husband's home. Settlement was listed on 7 January 2011.
24. On 20 December 2010 Ms Fong signed a contract of sale for the purchase of a property for $300,000, with settlement scheduled for 20 January 2011. She instructed you that the funds from the sale of their property should be directed to paying off her mortgage and other fees, and the remaining funds should be deposited in her account. You told her that you would pay out the mortgage but that the remaining monies would go into the company bank account due to the short timeframe before settlement on 20 January 2011.
25. On that day you contacted Ms Fong to tell her that settlement could not occur because your boss was caught up in a flood and it would need to be moved to 28 January.
26. Settlement did occur on 28 January 2011, after which you still owed Ms Fong $23,214.37. She asked you a number of times to transfer the money, which you ultimately did in two separate transactions. I note that in terms of those transactions, $17,502.76 was obtained from the victim Low in the settlement of his property to pay Mr Fong, a point which I will return to.
27. In April 2011 it came to light that you had not in fact paid the stamp duty, lodgement or registration fees in respect to the property. These fees together totalled $12,430.20, the subject of Charge 4, which represents the second lowest of the amounts which you accessed. It is not clear where or how you spent this money.

The Zhou offending

28. The Zhou offending, Charge 6, theft in the amount of $9,947, was next in time. In July or August 2010 your conveyancing services were recommended to

    Mr Xue Mei Zhou for the purchase of a block of land on the basis of your Cantonese language skills. You agreed to act as his conveyancer for a fee of $500.

29. Mr Zhou advised you that he planned to travel overseas around the time of his scheduled settlement and you told him he needed to deposit $32,000 into your account as he would incur a penalty if settlement occurred in his absence.
30. On 28 January 2011 Mr Zhou withdrew money from a term deposit before it was due in order to transfer the $32,000 into an account in the name of "Star Wool Pty Ltd".
31. Following that deposit the account had a balance of $91,433.44, indicating that the pre-existing balance was $59,433.44 before Mr Zhou's transfer.
32. On the same day of the deposit you withdrew $500 and transferred $68,880 into an unknown account.
33. Accordingly, the withdrawal and transfer totalling $69,380 amounted to the theft of $9,947 of Mr Zhou's money. Like Charges 3, 4 and 6, this represented a significantly less amount than that which had preceded this offence and that which was to follow.

The Low offending

34. Indeed, the next in time is the Low offending, which is indicted as Charge 1, obtain property by deception in excess of $1.2 million. This, in my view, is the most serious of your offending. In January 2011 Mr Low was introduced to David Cheung, who advised Mr Low that he had a conveyancing business and would be able to assist with the purchase of a property in Williams Road, Toorak. You contacted Mr Low a few days later and told him that you had been instructed by Mr Cheung to handle the transaction.
35. Mr Low had paid an initial deposit of $10,000 with the balance of 10 per cent deposit payable by 17 January 2011 and the balance of the purchase price payable at settlement on 10 February 2011.
36. On 24 January 2011 you phoned Mr Low and requested he transfer the balance of the monies owed to the Star Wool Conveyancing account and provided the account details. This total was in excess of $1.2 million. Mr Low requested that the funds be paid directly to the seller's representative, with stamp duty and other fees to be paid into the Star Wool Conveyancing account. You resisted this and told Mr Low that the funds could not be directly transferred to the seller's representatives as the documentation needed to be checked, and that payment would need to be made by transfer to the Star Wool Conveyancing account or a bank cheque to Star Wool.
37. Mr Low requested evidence that the bank account details you had provided were in fact for a trust account. On 27 January 2011 you created a new account with the ANZ Bank in the name of "Helen Kevin t/as Star Wool Conveyancing. You emailed Mr Low the next day, advising him to transfer the money to this account and indicated it was a trust account.
38. On 15 February 2011 the amount referred to in Charge 1 was deposited into that account, forming the basis for Charge 4 on the indictment, and your sixth offence in time. I might have made an error earlier. Just pardon me. No, Charge 1 is the amount. You did not provide Mr Low with a receipt.
39. Between 16 and 18 February 2011 you attended various ANZ branches in Swanston Street, Bourke Street, Queen Street and Collins Street in the Melbourne CBD. You made withdrawals from the trust account on seven occasions. You spent those funds on a variety of things unrelated to the acquisition of Mr Low's property, including a bank cheque for $17,502.76 made out to Ms Fong, the victim of your offending at Charge 4; a transfer of $9,000 to a restaurant owned by your brother-in-law; and a transfer of $176,000 deposited into the account of your brother-in-law.
40. After these seven withdrawals were made, less than $1,000 remained in the trust account.
41. Settlement of the property was delayed until 23 March 2011, at which time settlement again did not occur. Mr Low asked for evidence that his money was still in the trust account but was told that the Business Licensing Authority had frozen the accounts of Star Wool Conveyancing as part of a routine audit.
42. After a number of further delays Mr Low again sought proof that his money was still in the Star Wool Conveyancing trust account and you emailed him with falsified interim bank statements showing that the account had a current balance in excess of $1.3 million, where the true balance at that stage was $903.95. You were becoming more experienced in your deception and braver with it.
43. Ultimately, on 31 March, you provided six bank cheques to Mr Low totalling $407,000. When he called you became tearful and asked him to give you one more day to provide the rest of the money. Mr Low told you that you needed to provide the money within 24 hours so he could make settlement on the property.
44. On 5 April Mr Low presented six bank cheques provided by you at settlement. The National Australia Bank accepted the bank cheques on presentation, but five of the six were dishonoured after you reported them as lost to the bank. One cheque for $47,000 was successfully deposited into the vendor's account. As a result of the dishonoured cheques, the NAB placed a caveat on the title of the property.
45. In total, $47,000 of the funds provided by Mr Low were used for their intended purpose. The remaining amount was not provided by you. The facts that I have referred to that were subsequent to the offence date of 15 February 2011 served to set out the full context of your offending and continued efforts to cover your tracks. You will not be sentenced for them but they do served to highlight the gravity of your wrongdoing.
46. By sheer quantum, the level of sophistication in keeping Mr Low within your web of lies, and falsehoods that you undertook in that context makes this offence the most serious of your endeavours.

The Lui offending

47. Next is the Liu offending, Charge 5, obtain property by deception in the amount of $325,000. In late February 2011 you were engaged as a conveyancer by a Ms Zheng and her husband, Mr Liu, for the purchase of their property. A deposit of 10 per cent was to be paid on the date the contract was signed, with the balance due at settlement on 20 April 2011. Ms Zheng and Mr Liu agreed to pay $325,000 in cash and obtained a loan from Westpac in relation to the remainder.
48. On 17 March 2011 the vendors of the property faxed you requesting the release of the deposit monies. You telephoned Ms Zheng and falsely stated that the vendors had requested the entire settlement amount. You told Ms Zheng she should transfer the $325,000 cash into your account prior to 1 pm and gave her details. Ms Zheng arranged for $325,000 to be transferred to the Star Wool Conveyancing account, forming the basis for Charge 5. This was approximately four weeks after Charge 1.
49. On the same day as the deposit you attended the Elizabeth Street branch of the Westpac Bank and withdrew $325,000 from that account. A handwritten note later recovered from your files indicated that, amongst other expenditures, $249,500 was deposited into your brother-in-law's account. By this stage, on the Crown case, approximately $461,000 of funds obtained by you had gone to your brother-in-law in some form.
50. Ms Zheng and Mr Liu were ultimately compensated by the Victorian Property Fund on the basis that the sum of $325,000 was misappropriated. After this compensation occurred, settlement proceeded on 12 May 2011.

The Yao offending

51. The Yao offending, Charge 8, obtain property by deception in the amount of $120,000, is next. On 28 February 2011 your last victim in time, Ms Li Yao, signed a contract to purchase a property, paying $1,000 deposit, with the remaining $36,700 of the deposit due on 14 March 2011 and the balance of $339,300 payable at settlement on 31 May 2011.
52. On 1 March 2011 Ms Yao telephoned Star Wool Conveyancing and spoke with you. You advised her you would be acting as the conveyancer for the purchase of the property. You told her she would have to pay a 10 per cent deposit. You told Ms Yao that she should transfer the money to the Star Wool Conveyancing account that morning, which she did. Shortly after this deposit you attended at the ANZ branch in Swanston Street and withdrew $35,000 in cash.
53. What then followed was a series of stalling tactics on your part when the deposit was not paid as due. Ms Yao contacted you on a number of occasions requesting that the funds be transferred as required, but you provided a series of false explanations, including that 14 March was a public holiday, that you were "protecting her" as the loan had not yet been approved, and that dishonoured cheques merely needed 24 to 48 hours to clear, which was not a concern.
54. I note that in this instance the deposit was eventually paid, having been sourced from other funds.
55. On 24 March 2011 you attended at Ms Yao's property and advised her that she could pay the balance of the purchase price by cheque by herself at settlement or by depositing the money into your account. As an incentive, you offered her 12 and a half per cent interest if she paid the monies into the Star Wool Conveyancing account. On 25 March 2011 Ms Yao transferred $120,000 into that account, forming the basis for Charge 8.
56. You then attended the ANZ Bank and withdrew that amount in the form of a cheque payable to Li Yao. That cheque was not provided to Ms Yao and the whereabouts of the funds has not been ascertained.

The investigation

57. In February 2011 Consumer Affairs Victoria received several complaints in relation to your use of trust monies. In March 2011 your victim Chang learned that you owed monies to several other people and contacted you on several occasions, requesting the return of the $70,000 she had provided you with. Each time you advised Ms Chang that you would put the money into her account. Each time you did not.
58. Consumer Affairs was notified of the misappropriated funds and in April 2011 a Mr Galea was appointed as the statutory manager of Star Wool Conveyancing by the Director of Consumer Affairs. He took possession of all client files, accounting records and other business records of Star Wool Conveyancing and your licence was suspended on 5 April 2011.
59. On 12 April 2011, at a time where you were already very much on notice that your offending was being investigated, you attended at Ms Zheng's house, the victim of your offending at Charge 5. You produced a letter which you asked Ms Zheng to sign, which would have enabled you to continue working as Ms Zheng's and Mr Liu's conveyancer. This was at a time when settlement was still to be achieved. When Ms Zheng asked about the whereabouts of the missing $325,000, you lied and told her that the money had already been paid to the vendor. You told Ms Zheng that if she signed the document you would be able to ensure that settlement occurred on 20 April 2011 and told her that

    Mr Galea would not. When Ms Zheng refused to sign the letter you told her not to tell anyone that you had attended the address.

60. Again, these subsequent efforts to protect your criminal activity are not the subject of a charge but do again provide context to the assessment of the overall gravity of your offending.
61. You were interviewed by police on 19 September 2011, at which time you gave a "no comment" record of interview, as is your right.

Offence gravity

62. In terms of the gravity of the offending it is accurate to suggest that you were always likely to be identified for your offending. You used your own name, accounts that could be linked to you and you were the public face of the conveyancing business.
63. Your offences were each discrete. It is not uncommon for charges of this nature to present as "rolled up" charges, reflecting multiple occasions of offending. You have eight separate occasions.
64. Be that as it may, your offending certainly had a degree of sophistication in its methods and your careful persuasion of your victims to do as you instructed them to do.
65. You are a speaker of Vietnamese, Mandarin and Cantonese, with a client base from those communities adding to their reliance upon you. You used your position to create trust when persons were vulnerable in the context of high value purchases. You exploited that vulnerability and their trust at the stressful time of property purchase, which is often the largest and most important transaction a person can undertake.
66. When called into question you continued to perpetrate your deceptive behaviour in your efforts to cajole your clients to believe that there was nothing wrong and that they should maintain their trust in you. This was clearly motivated by your need to protect yourself from scrutiny in order to perpetrate your dishonest actions.
67. Whilst there are certainly worse examples in terms of duration, your offending continued for a somewhat protracted period of some 10 months.

Continuing Criminal Enterprise offending

68. Axiomatically, Charges 1, 2, 5, 7 and 8, the continuing criminal enterprise offences, were for substantial amounts of money - Charges 1, 5 and 7 more particularly. During the course of your offending it escalated in terms of quantum as well as your efforts to maintain and support your deceptions.
69. In terms of continuing criminal enterprise offences, there is a clear nexus in all of your offending but it is Charges 1, 2, 5, 7 and 8 that are the offences listed in Schedule 1A of the Sentencing Act and each involved transactions valued at $50,000 or more. Accordingly, each of those offences are continuing criminal enterprise offences.
70. As you have pleaded guilty to at least three such offences in this matter, you are a continuing enterprise offender for sentencing purposes and therefore liable to an increased maximum penalty in respect of those charges.
71. In respect of those charges the maximum penalty is double the standard 10 year maximum for obtaining property by deception, and is accordingly 20 years imprisonment. There is no challenge to the application of the continuing criminal enterprise provisions.
72. The maximum penalties reflect the seriousness with which Parliament regards those type of offences, especially continuing criminal enterprise offences. In effect, in relation to those particular charges, having obtained property worth more than $50,000 and having done so on more than three occasions, you are seen as having run a continuing criminal enterprise and in effect are to be regarded as a threat to the community. The reason that the maximum penalty doubles is to protect the community from such serious offending.
73. Whilst the effect of the continuing criminal enterprise provisions is on the effective maximum penalty, the maximum penalty remains only one of a number of considerations. It does not compel a given sentence or require an automatic increase. I am, however, obliged to enter into the records of the court the fact that you are sentenced as a continuing criminal enterprise offender in respect of these charges.

Victim impact

74. I turn now to victim impact. The victims of your offending were reimbursed by the Victorian Property Fund, which provides compensation for individuals and corporations when an estate agent, conveyancer or their respective representative has misused or misappropriated trust money or property in the course of their work.
75. I am told that each of your victims was ultimately able to make their intended purchase, reducing the impact somewhat of your offending upon each of them. Your offending is perhaps therefore not in the same category of those who have been swindled out of their life savings or left financially troubled or destitute. However, whilst full repayment of the settlement monies did occur, this repayment did not occur for losses owing to disruption of settlements, legal fees and loss of interest.
76. The repayment of lost funds also cannot be said to compensate your victims for the enormous amount of stress and anxiety that was no doubt caused to them by your offending.
77. You have not made any reparation for outstanding monies to your direct victims or to the Victorian Property Fund.
78. The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
79. A victim impact statement authored by Mr Donald Han Low - the victim of Charge 1, the most significant of amounts which you obtained - was tendered at the plea. That document serves to highlight the ramifications of your actions upon others and, as it was read to the court, means you are now well aware as to how your offending has affected others besides yourself. Mr Low states that he suffered severe anxiety attacks as a result of your offending, fearing that he could not provide a roof for his family moving from overseas and, even now, many years on, continues to experience what he described as "haunting feelings of anger and hopelessness".

Plea of guilty

80. The Sentencing Act obliges me to take into account the stage at which you entered your plea of guilty. You pleaded guilty to these charges prior to committal mention on 10 October 2019 and the matter proceeded by way of straight hand-up brief. I accept that this is a plea at the earliest opportunity.
81. Although a strong prosecution case, there is nevertheless clear utilitarian value in saving the community the expense of what would have been a complex and lengthy trial had the Crown been put to its proof. These factors will be taken into account in your favour.
82. Your counsel submitted that your early plea of guilty is also evidence of remorse. Based on materials tendered and the simple fact that you did not reoffend over some 10 years when you were on notice of being the subject of investigation, I am satisfied that you are also remorseful.

Personal circumstances

83. Tendered on your plea were submissions on your behalf and a psychological report authored by Mr Jeffrey Cummins dated 3 February 2021. In those documents your counsel and Mr Cummins set out your personal background. It is this background which you use to point to the explanation for your offending.
84. You were born in Ho Chi Minh City, Vietnam, and are now about to turn

    50 years of age. You are single and have never been married, nor do you have any children.

85. You spent 14 months in a refugee camp as an 18-year-old, before coming to Australia in the year 2000 at the age of 28 on a permanent refugee visa. You were granted Australian citizenship on 26 January 2003. Since arriving in Australia you have always lived in Melbourne and have not returned to Vietnam.
86. Between your arrival and the identification of your offending you have worked in trust-based positions which have included administration and, obviously, a time as a conveyancer, having obtained appropriate qualifications in the year 2007.
87. Over time your entire family immigrated to Australia between the years 1975 and 2005. You have two brothers and three sisters in total. Your father passed away in 2007 after suffering a stroke and your mother now resides in a home for the aged for residents of Chinese background.
88. In Vietnam you were educated to a Year 12 pass level. You stated to

    Mr Cummins that by then you were already in a relationship with a Mr Buu, who had been a classmate in Year 9 and 10, and you had started dating when aged around 16 years.

89. A significant element of your plea related to the complex instructed circumstances of your relationship with Mr Buu. You reported to Mr Cummins that about three months after leaving school you also decided to leave your relationship with Mr Buu. You travelled to Thailand where you lived in a refugee camp for about 16 months but were told that you would not be able to reach Australia from there, so returned to Vietnam with the intention of then leaving for Australia.
90. However, you re-met Mr Buu at the age of around 22 years and then you lived together for six years until you "escaped" Vietnam in 2000. Upon being granted a refugee visa you told Mr Buu that once you arrived in Melbourne you would sponsor him to come to Melbourne. He was apparently unhappy about your plan to leave and insisted you remain. You describe him as violent and threatening towards you and that he was dependent on alcohol and gambling.
91. You say you became progressively aware that as a result of his habits the Vietnamese mafia had become involved in his life and that in a desperate attempt to break free from that relationship you allowed him to provide the title to a property of which you had sole ownership to the Vietnamese mafia to retain until Mr Buu could repay monies he owed. That title was apparently to the house in which your parents and younger brother then lived. Your parents had transferred the title to you in the belief it would assist you in the future care of your younger brother, who was born with Down's Syndrome.
92. You also report that Mr Buu threatened to harm your brother, disseminate nude photographs of you and report you to police for drug dealing when you attempted to end your relationship with him. Your relationship consisted of physical, emotional and psychological violence.
93. Subsequent to your arrival in Australia, Mr Buu apparently shifted his attention to your parents and younger brother. You told Mr Cummins that he demanded large sums of money from you and your parents, continued to make threats and further demands, visited your parents at their home and assaulted your brother, who died days later from injuries sustained. In this context you say you began borrowing monies from local "loan sharks" to appease his demands.
94. You further report that Mr Buu informed you he had come to owe the mafia $700,000 and organised for you to make direct contact with them. You apparently agreed with them to repay his debt on condition that the property title was returned to you. You state that this led local affiliates of the Vietnamese mafia in Melbourne to make contact with you to make ongoing arrangements for further payments, and that you borrowed funds from loan sharks at high interest rates to meet those payments.
95. Through your counsel you proffered explanation for each of your transactions resulting from each of your offences. These include:
    1. using your brother-in-law to attend at settlements for you by transferring monies to him which he could then convert to bank cheques;
    2. returning monies to other client files or accounts from which you had "borrowed"; but, primarily,
    100. obtaining monies to pay demands made of you from loan sharks and members of Vietnamese gangs you say pursued you post your relationship with Mr Buu.
96. Your counsel initially submitted that this background gives context to your offending and mitigates it to some extent as the offending was not for personal gain, was situationally motivated and conducted under some duress. He submitted that you were in effect trapped in a situation.
97. Fact-finding on sentence is well established and depends on whether the fact is one that operates favourably or unfavourably to the offender. Facts unfavourable to an offender need to be established beyond reasonable doubt. By contrast, circumstances favourable to the offender are to be proved on the balance of probabilities. I accept it is commonplace for facts in mitigation to be put from the Bar table. However, I had real difficulty accepting the narrative and gave indication that if the pursuit of you by loan sharks and Vietnamese gangs was to be relied on to mitigate sentence in terms of reducing your moral culpability then I would need to hear or see evidence.
98. No evidence was forthcoming. Instead your counsel clarified the reported background to your offending as just that, an explanation as to why you came to transgress the criminal law.
99. I note that there was no evidence of enrichment. The only information accepted by me as to where the monies went are as outlined in the Crown opening, an accepted document. It is clear that on some occasions you were certainly "robbing Peter to pay Paul", as was submitted. I simply make no finding as to what you did with the monies outside those amounts you accept through the Crown document.
100. As a direct consequence of your offending you were prevented from ever working in conveyancing or holding trust monies. This is perhaps hardly surprising in the context of your offending, but it has placed limitations on your working life since your offending was identified.
101. Until being remanded by me on 10 February 2021 you resided rent-free with your sister and her family for at least the last eight years. The only members of your family who are aware of your offending and current situation are that sister, her husband and their three children. Your other siblings all live in Melbourne with their respective families. You have never re-partnered.
102. You work in your brother-in-law's restaurant. You chose to live an isolated existence, described as "hermit-like", and spent your time working seven days a week, earning approximately $900 per week- according to Mr Cummins' report- before you would return home and remain in your bedroom, drinking wine. It is perhaps surprising in those circumstances for you not to have sought to make any repayment of the monies, but that will not be held against you.
103. Mr Cummins concluded that you provided a history consistent with suffering from major depressive disorder which developed in response to being verbally and sometimes physically abused by Mr Buu and continued upon your arrival in Australia. He also opines that you suffer from stress related alcohol use disorder of at least moderate severity and that you have developed a trauma-and stressor-related disorder in the form of complex post-traumatic stress disorder in response to your relationship with Mr Buu. His report was tendered to detail your background and to establish diagnosis only. Your counsel does not call into your aid the principles of the R v Verdins & Ors. Mr Cummins' report is not the subject of challenge by the Crown if used in this way.
104. I accept that your isolated existence is likely to transfer into the custodial setting. Whilst your alcohol use disorder will likely resolve given enforced abstinence, your diagnosed major depression and complex post-traumatic stress disorder, plus separation from your only resource, that being your relationship with your sister and brother-in-law, will, in combination, in my view, make that transition into custody more burdensome than someone without those conditions and that situation.
105. I have had recourse to a reference authored by Mr Thomas Lee, your brother-in-law, to whom some funds were syphoned during your offending period. He states you have lived with him and his family since your arrival in Australia, except for a period between 2011 and 2013. He does speak of people coming to the home and family business for about 20 months to apply pressure to you, but you did not tell him what was happening and have been reticent to talk about the issues you face. He confirms that only he and his wife and children are your social contacts.
106. You have no prior criminal history and can accurately be described as being otherwise of good character, particularly given the fact that there has been no further offending in the 10 years since Charge 8, the last event in time.
107. Your counsel submitted that delay is an issue of significant weight in this matter given the period of some eight years between your police interview and the charges ultimately being laid in 2019. There is no satisfactory explanation for this delay, except the matter seems to have been set aside notwithstanding the investigatory materials were in effect prepared and completed by the Director of Consumer Affairs by 2011. There was no real further investigation undertaken by Victoria Police. Even once re-allocated to the current informant in May 2018, you were not charged for in excess of 12 months later.
108. To quote from Schwabegger [1998] 4 VR 649 at 659 to 660:

"There is a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other."

109. The conduct of this matter was further delayed as your plea was initially set down for hearing in April 2020. It was then adjourned a number of times due to COVID-19 disruptions and an adjournment for your counsel to obtain psychological materials.
110. In your case there is therefore delay between being interviewed and then charged, and a further delay between being charged and the matter being conducted to the point of sentence when your intention on charge was to plead guilty. None of this delay is of your making.
111. Your counsel submits that this delay is relevant in two ways: because you have had the matter hanging over your head for a lengthy period; and also because there has been no further offending with that period.
112. I accept the relevance of delay as it is put. I have little doubt that you would have experienced anxiety in having been interviewed by two authorities in 2011 but not charged, without explanation, for an extensive period of time and in circumstances where a term of imprisonment was inevitable.
113. Whilst you hid for two years, it is not suggested that that played a role in the delay in your prosecution.
114. In addition, since 2011 you have lived a simple existence and there has been no further offending. That time provides a considerable testing period as to your prospects for rehabilitation, which would appear to be excellent. In these circumstances there is very limited need to give weight to either specific deterrence or the need to protect the community from you. General deterrence, of course, still has a role to play.
115. In your case I accept that the delay occasioned was undue and is a powerful mitigatory factor relevant to both the imposition of the head sentence and non-parole period. In addition, given your future prospects, there is real merit in you having a lengthy and supported transition to your eventual return to the community.
116. Your counsel rightly conceded that imprisonment for this offending was unavoidable but submitted that the very serious consideration with respect to delay ought lead to a lower head sentence and lower non-parole period than might otherwise be expected for this level of offending. I have already indicated that I accept this submission.
117. The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, which I assess as high, your personal circumstances and those of your victims. I am also required to balance the interests of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure as far as is possible that offenders are rehabilitated and are reintegrated into society.
118. I have taken into account the relevant sentencing purposes referred to in section 5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and have outlined to counsel the cases to which I have had regard.
119. The principle of totality also looms large. The totality principle requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains one which is just and appropriate for the whole of the offending.
120. I will deal firstly with the compensation application.
121. The prosecution makes application for the amount of $2,116,171.15 paid out by the Victorian Property Fund resulting from your criminal offending against your conveyancing clients, as contained in the indictment to which you have pleaded guilty. The Victorian Property Fund provides compensation for individuals and corporations where an estate agent, conveyancer or their representative has misused or misappropriated trust money in the course of their work. The application is made pursuant to section 86 of the Sentencing Act and I have had regard to its contents. The amount being sought is not the subject of dispute. Your counsel has provided helpful submissions. The Crown do not take issue with those submissions.
122. In effect, with respect to the application Mr Stransky submits that, although the making of the compensation order is not opposed, the quantum ought be reduced in light of the significant delay in these proceedings and the fact that Consumer Affairs did not seek compensation in the 2011 proceedings. He asked me to look to your financial circumstances and the impact that a weighty order may have on your rehabilitation. I note that the only information I have as to your financial circumstances is that contained in the report of Mr Jeffery Cummins, that you were living rent-free with your brother-in-law and earning $900 per week up until your recent remand.
123. The reference from your brother-in-law tendered on your plea confirms that you were living with him for all but two years between 2011 and 2013 and working for him seven days per week from around 2013.
124. Your address with your brother-in-law is the same address as the originating motion dated 8 April 2011 when Consumer Affairs sought to, and successfully did, restrain you from acting as a conveyancer or dealing with trust funds.
125. Be that as it may, you are now a woman about to turn 50 and about to serve a substantial gaol sentence, who will then have to find her feet upon release. In effect, your circumstances are very much reduced from that that they were in 2011, and more so, are likely to be so for a lengthy period of time. There is certainly no evidence of any assets. Your earnings over the last 10 years on what is known to me are not particularly significant. I accept that this has been a considerable burden in circumstances where this particular issue could have been dealt with at a much earlier stage and would have seen you already in a position to move forward.
126. I also take into account as another indication of remorse the fact that you did not formally oppose the making of the compensation order or dispute the amount sought. You simply seek that there be some amendment to that amount in light of the relevant circumstances.
127. I do accept that the amount sought will impose a substantial burden upon you even if it is properly owed. In the exercise of my discretion, in order to ensure that your evident rehabilitation continues, I order that you pay compensation to the Victorian Property Fund in the amount of $500,000.
128. I do now turn to sentence.
129. In relation to Charge 1, which occurred sixth in time and is of such significant value, you are convicted and sentenced to four years and three months' imprisonment. This will form the base sentence;
130. In relation to Charge 2, occurring first in time, you are convicted and sentenced to 14 months imprisonment, of which two months is cumulative on the base sentence.
131. Charge 3, a relatively low amount, occurring third in time, you are convicted and sentenced to six months imprisonment.
132. Charge 4, theft, also a relatively low amount, you are convicted and sentenced to six months imprisonment.
133. Charge 5, occurring seventh in time and also of relatively high value, you are convicted and sentenced to two years and nine months imprisonment. Six months is cumulative on the base sentence and other sentences imposed this day.
134. Charge 6, also of a relatively low amount, you are convicted and sentenced to four months imprisonment.
135. Charge 7, occurring second in time for, again, a relevantly high amount, you are convicted and sentenced to two years and eight months imprisonment. Five months is cumulative on the base sentence and other sentences imposed this day.
136. Charge 8, which did occur eighth in time, you are convicted and sentenced to two years imprisonment. Four months is cumulative on the base sentence and the other sentences imposed this day.
137. The sentences imposed on Charges 3, 4 and 6, bearing in mind their relatively low value and totality, are to be concurrent with one another and the base sentence.
138. This comprises a total effective sentence of five years and eight months imprisonment.
139. I direct that you are to serve three years and four months before being eligible for parole.
140. I declare a period of 44 days by way of pre-sentence detention.
141. Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges, albeit delay was a significant factor in the sentence that I did impose. However, if not for you pleas of guilty I would have sentenced you to seven years and two months with a minimum of five years and six months before being eligible for parole.
142. Now, subject to whether or not you were able to keep up, Mr Cookson, is there anything that I missed?
143. MR COOKSON: No, Your Honour, not by my reckoning.
144. HER HONOUR: Mr Stransky?
145. MR STRANSKY: No. I think that covers it, Your Honour.
146. HER HONOUR: All right. Well, I will do as indicated. I will close the court until 10:30 on Monday and give you the opportunity to speak with your client.
147. MR STRANSKY: As Your Honour pleases. Thank you for that, Your Honour.
148. HER HONOUR: Thank you.
149. MR COOKSON: If Your Honour pleases.

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