Subjective Features
4 The applicant is now forty years of age and was aged thirty-three at the time of the first of the offences. He had no prior criminal record. The applicant gave evidence on his sentence proceedings. His Honour said that he "was impressed by his evidence, in that I am satisfied of the contrition and remorse that he has demonstrated at least since the time when the matter was presented to the Local Court and as reflected in his early pleas of guilty". At the same time, the learned sentencing judge noted (and I think, with respect, rightly) that his contrition had not extended to assisting the prosecution in the investigation of the matter as, for example, by submitting to an interview before or when he was charged.
5 The applicant was born in Vietnam, in what was then Saigon, and is the third eldest of six children, all males. He has a son aged three and a half years at the time of sentence and appropriate arrangements had been made between him and his partner concerning access. The learned sentencing judge noted that the applicant would find it distressing to have his access to his young son limited by virtue of his imprisonment. The applicant and his family came to Australia in 1979 in difficult circumstances. His parents' assets in Vietnam had been confiscated and, had they not escaped, they would have been required to perform forced labour. The family managed to get to Indonesia where they spent nine months in a refugee camp and then came to Australia as refugees in May 1979. When the applicant arrived he spoke only Cantonese and Vietnamese. However, he learnt English, attended high school and began studying towards admission to a science degree, during his university years working as a kitchen hand and selling from a fruit stand at Flemington Markets. He changed his academic goal to accountancy and was ultimately awarded an associate diploma of accountancy. Whilst studying he obtained employment with an accounting firm at Campsie and was issued with a tax agent's licence in 1997.
6 Regrettably, the applicant did not succeed as an accountant, at least, not to the extent which he desired. He especially felt his lack of success by comparing the successes of his brothers. Despite working hard, indeed up to seven days a week for twelve hours a day, he did not manage to earn more than $20,000 to $30,000 a year. He felt a failure. He commenced to gamble in order to obtain money for business activities but it is clear that he became addicted, gambling more and more and, as is almost invariably the case, seeking unsuccessfully to recover that which he continued to lose. He said that in the years 2000 and 2001 he was spending every night at the casino and was also betting through the TAB.
7 The applicant became aware that the Taxation Office was investigating him when a search warrant was executed at his office. He said in his evidence that he was not aware of the seriousness of his gambling up until the execution of the search warrant but, as his Honour accepted, he demonstrated some insight by having himself voluntarily excluded from the casino at a sports club where he would gamble on occasions. When he took this action he was advised by casino staff to see a counsellor about his gambling and he eventually saw a psychologist, Mr Jacmon, whose "very comprehensive" report was tendered. As his Honour noted, however, the applicant's consultations with Mr Jacmon occurred in May and June 2006. There is nothing to suggest that he had sought counselling assistance at an earlier time.
8 The applicant expressed shame for his conduct in respect of both himself and his family and his Honour accepted that he had gained significant insight about his attitude to success and thought that, on release, the applicant "would pursue aspirations at a more realistic level and not be so motivated by what he perceives to be the contrast between his success and the greater success…of his siblings". The learned sentencing judge was impressed by the applicant's candour, mentioning in particular the depression about which Mr Jacmon wrote in his report, that began when the search warrants were executed and his wrongdoing was exposed. His Honour was impressed by the lack of any attempt by the applicant to attribute his criminal conduct to this condition.
9 The older brother of the applicant, a solicitor in New South Wales since 1996, gave evidence about the family circumstances. In particular, he agreed that he would guarantee the payment of $100,000 offered by the offender in part payment of his fraud, to be obtained by loans from family members. Although his Honour was initially sceptical about the applicant's offer in this regard, and the guarantee by his brother, he concluded that in the circumstances some weight should be given to the representation. In my view, the effect of the language used in this respect by the learned sentencing judge is that he believed and gave some significance to the offer of partial recompense.
10 The learned sentencing judge accepted, I think, the truthfulness of the evidence of a friend of the family and statements contained in a number of written testimonials as to the otherwise positive character of the applicant and the support available to him from his family. His Honour set out the following as a fair summary of the applicant's situation -
"Mr Ly views his future and current circumstances as extremely dire. He accepts full responsibility for his offending behaviour and has discussed his situation openly and frankly with his service. He has identified some contributing factors including pressure he felt from his community and the demands imposed upon himself to have the appearance of success. In spite of these factors, he ultimately blames himself for the offence. He starkly describes his grim view of his future and poor potential for employment, however denies a suicidal ideation."
11 It is submitted in this appeal that the material before the sentencing court, including especially the report of Mr Jacmon, established a powerful case that, at the time the applicant committed the offences, he was suffering from such a serious depressive condition that his judgment was severely impaired. It is contended that his objective criminality was therefore diminished and that this should not be regarded as a case in which the applicant's fraudulent conduct was motivated purely by greed but, rather, one where an essentially decent person engaged in serious crime in order to overcome what appeared to have been a severe case of depression. The learned sentencing judge's analysis of Mr Jacmon's report was, with respect, both careful and thorough. His Honour concluded -
"As a reflection of the present circumstances of the offender the report may well have some value. However, it is a report prepared in respect of someone who was assessed four years after the misconduct which has brought him before the court. The stress and anxiety that the offender has no doubt experienced between 31 July 2002 and up to the present time when he is anticipating incarceration has no doubt had a significant impact upon whatever tests he undertook and the clinical presentation of which Mr Jacmon writes.
The conclusions that are expressed in the report in my assessment do not sit comfortably with the organisation and execution of the various frauds committed by the offender in this case. Nor do they sit well with the assessment of the offender's brother and the representations in the pre-sentence report and the written references and what I perceive to be the perception of the offender held by his family as presented to me by way of the evidence given by his brother … "
12 In my view, his Honour was entitled to conclude that the applicant was not significantly affected by any compromising mental condition at the time he committed the offences. His Honour accordingly concluded that, accepting the evidence of the applicant, the offences "were committed by a young man who, with his family, left the most difficult of circumstances and at great risk made his way to this country where the family has prospered…[where his] siblings…are driven to succeed…[and] the offender, who has not been as successful, might have suffered in his perception of self-worth and…[fell] into the trap of embracing a philosophy for success in which he sought to present an image of success and access to wealth which was no more than that, a mere image". In my opinion, this characterisation of the applicant's motivation was both fair and accurate.
13 His Honour noted that the applicant's fraud involved planning, and organisation, the creation of false particulars of employment, income and tax deduction and the provision of facilities for the receipt and distribution of the money paid out by the Tax Office. More than one methodology in the perpetration of the frauds was employed.
14 With respect, I can see no error in his Honour's characterisation of either the objective circumstances of the applicant's offences or the subjective features affecting him. Accordingly, I would reject the contention that greater weight should have been given by the learned sentencing judge to the applicant's psychological condition.
15 It is also contended that the learned sentencing judge did not give sufficient weight to the offer of part recompense. As the extracts from the above reasons for sentence demonstrate, this contention should not be accepted. At all events, the offer cannot have much significance in the assessment of the appropriate sentence in the circumstances of this case.