Director-General of the Department of Fair Trading v Yang [2002] NSWSC 754 | Case summary

He has pleaded guilty to both those offences. There was originally a third offence charged but that matter was not proceeded with and was formally withdrawn and dismissed. 2 The offender obtained a real estate agent's licence in 1995. On 2 November 2000 the New South Wales Licensing Court determined that he was not a fit and proper person to continue to hold a licence by reason of the fact that he had been responsible for the trust account defalcations of a real estate agency of which he was at the time a director and the licensee in charge. The Licensing Court cancelled his licence and disqualified him from holding any licence under the Act for a period of 5 years. He was ordered to deliver his licence to the Department of Fair Trading within 7 days. 3 By letter dated 8 November 2000 the Department advised the offender, who did not appear at the hearing for reasons which he sought to explain when he gave evidence before me, of the Licensing Court's decision and of the relevant statutory provision which makes it an offence for a person to act as or carry on the business of a real estate agent unless he or she is the holder of a real estate agent's licence. The offender acknowledged having received the notice although he seemed to suggest, somewhat implausibly in his evidence, that he did not entirely appreciate its significance. In any event he did not lodge an appeal against the decision. 4 In July 2001 the Department discovered that the offender had been conducting business as a real estate agent in contravention of the decision of the Licensing Court. As a consequence the Department sought and obtained injunctions in this Court on 24 July 2001 on an ex parte basis to restrain the offender from continuing his activities as a real estate agent. 5 The matter was adjourned until 26 July 2001 when the offender was represented by counsel. On that day Studdert J made a number of orders which are of direct relevance to the present proceedings. The orders were made after the offender's legal representative gave undertakings (a) that the offender would cease to represent himself as, and engage in the activities of, a real estate agent and (b) that he would cease being a director, manager and secretary of N.E.W.S. Property Group Pty Limited or being or becoming a director, manager, or secretary of any corporation or a partner in any partnership carrying on business in New South Wales as a real estate agent. 6 The offender conceded whilst giving evidence that Studdert J had explained to him the importance of the undertakings which he had given. It is clear that he understood that he could be brought back to court should he be in breach of those undertakings. 7 Notwithstanding those undertakings, the offender proceeded, within a matter of weeks, to establish a real estate business named Tongsing Properties Pty Ltd, at Maroubra. It was in reality a reincarnation of the N.E.W.S. Property Group Pty Limited. The licensee in charge was a Mr Aman Hassan. The offender's brother in law, Mr Kenny Wong, who had some expertise in real estate, was a director. The offender's wife who had no experience in real estate and little command of the English language, was the sole shareholder. Only she and the offender had access to the safe into which the money received by the business was placed. Other monies received were collected by Mr Wong and taken directly to the offender's home where Mr Wong also resided. It is clear from the material which is before me, and indeed it is not disputed, that the offender had the controlling interest in and was the owner of the business. Indeed in documentation and correspondence seized during the course of an investigation into the business, the offender described himself as being the Managing Director of the business. I have no doubt that that accurately describes his role. 8 The offender said that he had originally intended, when he set up the business, that Kenny Wong would take over the running of it. Regardless of his original intentions, the offender admits that he continued to operate the business until at least April of this year at which time he said threats to himself and his family saw him leave the area in which the business was being conducted. 9 An investigation into the activities of Tongsing Properties Pty Ltd commenced on 1 May 2002 when the Department received a complaint that the business had failed to account for, and provide a refund of, a deposit of $120,000 paid in respect of a property which was subsequently withdrawn from the market by the owner. 10 There is material before me which reveals that claims in the order of $250,000 have been lodged with the Property Services Compensation Fund for losses said to have been incurred at the hands of the business. A further $162,000 in potential claims have been notified but not lodged with the Department. That material has as it appears to me, very marginal relevance to the matters to which the offender pleaded guilty, and I put it to one side for present purposes. I am sentencing the offender for offences of contempt and not for unproven allegations which may be said to constitute dishonesty. 11 It is critical that the authority of the courts is not subverted by those, such as the offender, who seek to act in defiance of orders made by the courts. As Kirby P said in Registrar of the Court of Appeal v Manian [No 2] (1992) 26 NSWLR 309 at 314 the particular purpose to be served in the punishment of those guilty of contempt is to ensure "the undisturbed and orderly administration of justice in the courts according to law." See also Pelechowski v The Registrar of the Court of Appeal (1999) 198 CLR 435 per McHugh J at 462-3; Kirby J at 484-5. 12 The provisions of the now repealed Sentencing Act have been applied to sentences for contempt. In AG for NSW v Whiley (1993) 31 NSWLR 314 the Court said: A conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular. As was said by Kirby P in Registrar of the Court of Appeal v Manian [No 2] (1992) 26 NSWLR 309 at 314: "…it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way." Being a common law offence there is no statutory maximum penalty. 13 In those circumstances it is common ground that the provisions of the Crimes (Sentencing Procedure) Act 1999 apply. In particular it is agreed that I should have regard to the general sentencing principles enunciated in s 21A of that Act. It is clear by reason of ss (5) of s 21A that the section applies to the determination of this sentence. Section 21A(1) requires a sentencing court to "impose a sentence of a severity that is appropriate in all the circumstances of the case." For that purpose the Court must take into account the matters enumerated in ss (2) insofar as they are "relevant and known to the court." In assessing the offender's overall criminality I have had regard to all those matters contained within ss (2) which appear relevant. I have paid particular regard to subparagraphs (a) (f) (g) and (h). 14 As I have indicated the offender gave evidence before me. I have also been provided with relevant background information about the offender in a pre-sentence report dated 19 August 2002. He came to Australia in 1987 from his native Singapore and later became an Australian citizen. He is married and has two sons aged nine and seven respectively to whom he is devoted. He also has a sister living in Sydney although there may be some tension between them. 15 There is nothing particularly remarkable about the offender's background although it appears that he has been a gambler for the last seven years. It has clearly become more of an issue in recent years. The problem seems to have arisen since the death of his parents. The offender informed me that he found himself responsible for meeting his mother's medical expenses (which he estimated to have totalled $300,000) in the period just prior to her death. He was forced as a result to go into debt and he still owes large sums of money. His liabilities considerably exceed his assets. 16 The offender now acknowledges for the first time that gambling has been an on-going problem for him. He has never sought any professional assistance in relation to it in the past because of the sense of shame which is said to be attached to having such a problem. 17 The evidence before me suggests that he has been in fairly continuous full-time employment over the years. He has apparently been favourably regarded as an employee in the past. He has not been as successful in business as an employer. I accept that his present financial circumstances are parlous. Indeed he said to the Probation and Parole Service officer that he changed his name by deed poll because of the poor credit rating which he had acquired in his original name. 18 The offender's explanation for his behaviour is to be found in the pre-sentence report and is in the following terms: [He] claimed that although he did inform employees about twelve months ago that he no longer had a real estate licence, he did not elaborate on the implications arising from his status. He added that in order to maintain his business, arising from the pressure of clients, he continued to act as though he was still licenced, despite making some initial effort to avoid acting in his usual capacity. He further added that he felt a sense of responsibility to maintain his business for himself and his employees, feeling that he "could not fail them". He stated that with regard to his clients he felt that he could not inform them to go elsewhere as they "had nowhere else to go". 19 The offender's sister described him as being "an ambitious man who was keen to do well financially". She feels that "his high level of ambition and concomitant greed are significant contributing factors to his current predicament." The offender himself did not disagree with that assessment. The Probation and Parole officer referred to the offender's view that it was his misguided sense of responsibility towards his employees and clients which led to his offending behaviour but she concludes, as do I, that his "motive was perhaps more selfishly based." I also accept however that his straightened financial circumstances, which were exacerbated by his gambling problems, played their part. 20 I have given due weight to those matters which can be taken into account in the offender's favour. In particular I have had regard to subparagraphs (e) (i) and (j) of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. A significant matter to be weighed in the offender's favour is the fact that he has pleaded guilty. Moreover it is apparent that he did so at the first reasonable opportunity. See s 22 of the Crimes (Sentencing Procedure Act) 1999; R v Thomson (2000) 49 NSWLR 383; Cameron v The Queen (2002) 187 ALR 65 and R v Sharma [2002] NSWCCA 142. In the circumstances I am disposed to extend to him a discount towards or, at the top of the range, referred to in Thomson. I am also prepared to conclude that he has demonstrated a measure of contrition for his behaviour. I have no doubt that he has learnt a salutary lesson from having spent 7 weeks in custody upon remand awaiting the disposition of the matter. He is also entitled to some credit for the fact that he has had no prior convictions. 21 I have derived some assistance from the decision of Greg James J in Department of Fair Trading v O'Keefe [2002] NSWSC 398. That matter involved a 22 year old man who was engaged in targeting people with poor credit records and promising them that he could raise loans on their behalf. In return he sought a down-payment of 10% of the amount of the loan. He received in all a considerable sum of money although it was not possible to quantify exactly how much he received. Suffice it to say that he kept the money which he received for his own purposes. Injunctions restraining him from continuing with those activities were obtained. He nevertheless continued to engage in conduct which constituted a contravention of the orders. He also failed, in further contravention of the orders, to make restitution of about $100,000. He pleaded guilty to the charges. He had had a dysfunctional family background and a record for offences of dishonesty and was on a bond at the time when he committed the offences of contempt. Greg James J imposed a period of 9 months imprisonment upon that offender but ordered that he be released immediately. The effective non-parole period, taking into account time spent in custody, was approximately 3½ months. It is common ground that that decision is a useful guide as to how I should deal with the present offender although Ms Kennedy submits that I should treat her client rather more leniently than Mr O'Keefe. I must of course exercise my own discretion in relation to the matter. 22 On any view of it the offender has by his actions committed serious breaches of court orders. His conduct was deliberate, calculated and continued over a significant period of time. He is not a man lacking in sophistication. The law must respond appropriately to such acts of defiance. Notwithstanding the matters which may properly be taken into account in the offender's favour, the criminality displayed by the offender warrants the imposition of a full-time custodial sentence. I am however prepared to make a finding pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 of "special circumstances." In doing so I have had regard to the various factors to which I have earlier referred and in particular to the need for him to have a period of supervision in the community so that he may address his gambling problems. 23 On each charge I sentence the offender to a term of imprisonment of 9 months to commence on 5 July 2002 and to expire on 4 April 2003. In respect of each charge I impose a non-parole period of 2 months to commence on 5 July 2002 and to expire on 4 September 2002. The sentences are to be served concurrently.

Director-General of the Department of Fair Trading v Yang

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