Oudomvilay v Regina

The Application 14 Three grounds of the application were notified. Two of them relate to particular aspects of her Honour's approach to sentence. The third is that the overall sentence and effective non-parole period are manifestly excessive. This was not pursued as a separate ground at the hearing. Counsel for the applicant, Mr Corish, acknowledged that the effective sentence, while severe, was within the available range. His argument was that the matters identified in the first two grounds demonstrated that the sentencing process had miscarried, and that the Court should intervene and impose a lesser sentence.

Ground 1 - the 5th charge 15 The fifth charge related to a cheque for a substantial sum to the Lao Community Advancement Co-operative, following the maturation of a term deposit held by the Co-operative. The applicant deposited this cheque into her trust account and used the proceeds to pay personal and business expenses. It seems that she later withdrew trust money held on behalf of some of her clients, without authorisation, and deposited it into the Co-operative's account. In this way she concealed her fraudulent use of the Co-operatives money. It was this which led to her Honour's finding, previously referred to, that repayment of the Co-operative had been "at the expense of others". 16 Her Honour found that this offence was aggravated by the fact that the applicant "was prepared to take money of clients to protect her standing in the Lao community, even though temporarily". Mr Corish noted that her Honour had elsewhere in the remarks on sentence found the offences to be "objectively serious" and to involve "a very significant breach of trust". He submitted that it was inappropriate to find, as an additional aggravating circumstance, that the applicant owed a duty to the Laotian community and the Co-operative because of her ethnicity. He also argued that there was no evidence to support a finding that her purpose in using clients' money to make good the loss to the Co-operative was to support her standing within that community. 17 In my view, this argument misconceives what her Honour was saying. The aggravating circumstance her Honour found was not simply that the applicant sought to protect her standing in her community. It was that she did so by using her clients' money to conceal her fraud. It was the use of clients' money which was the gravamen of the finding although, in my view, the additional finding that the applicant's motive was to protect her standing within the community was also open. This ground is not made out. Ground 2 - extra curial punishment 18 Mr Corish submitted that her Honour had failed to take into account as a mitigating factor the fact that the applicant had been struck off the roll of solicitors. Her Honour referred to that matter when summarising the subjective case, noting that she had "lost her right, indeed privilege, to be a solicitor". Her Honour did not mention the matter again and Mr Corish argued that, from the fact that it was not specifically referred to as a mitigating factor, it should be inferred that it was not taken into account as such. He submitted that it should have been, as it amounted to a form of extra curial punishment. He referred to R v Daetz & Anor (2003) 139 A Crim R 398, particularly per James J at [61]-[63]. 19 Before outlining the applicant's subjective case, her Honour had set out the applicable mitigating factors under s21A(3) of the Crimes (Sentencing Procedure) Act. These included her plea of guilty and her prior good character, and her Honour's finding that she had good prospects of rehabilitation and was unlikely to re-offend. Extra curial punishment is not one of the mitigating factors set out in subs (3). No doubt, that is why her Honour referred a little later to the applicant's loss of her career as a solicitor. It was in the context of her Honour's assessment of the deleterious effects upon the applicant of the offences, including her loss of standing in her community and the compromise of her relationship with members of her extended family. 20 It was appropriate for her Honour to have regard to all those matters in mitigation of sentence and, clearly, it was for that purpose that she referred to them. This ground also fails. 21 I would grant leave to appeal but dismiss the appeal. **********