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District Court 16 December 2022

R v Dinh

[2022] NSWDC 716

Fraud & dishonesty
CRIME FRAUD SOLICITOR TRUST ACCOUNT FRAUD SENTENCING AGGRAVATING FACTORS SOLICITOR

Citation: R v Dinh [2022] NSWDC 716
Court: District Court of New South Wales
Date: 16 December 2022
Judge: Buscombe DCJ

Background

The offender was a junior solicitor employed at Vo Lawyers, a small Cabramatta legal practice. Her co-offender, Mr Vo, was the principal of the firm and had been her supervisor since she began her practical legal training there in 2013. During late 2019 and early 2020, Mr Vo had developed a serious gambling problem and began misappropriating client funds from the firm's trust account, including by gambling at the Sky City Adelaide Casino.

The offender pleaded guilty to two offences. The first was being an accessory after the fact to her co-offender's deception of a client, Mr Vuong, who had deposited $22,117 into the Vo Lawyers trust account for stamp duty and PEXA fees in connection with a property transfer. After becoming aware that Mr Vo was using those funds for gambling, the offender allowed a portion to be transferred into her own personal bank account and accompanied Mr Vo at the casino. The second and more serious offence involved the offender herself dishonestly causing a financial disadvantage of $1,572,896.08 to two other clients, Colin Nguyen and Thi Thuy Phuong Tran, by deception in connection with a separate property transaction. A further offence of dishonestly causing a financial advantage by deception was taken into account on a Form 1 when sentencing on the second count.

  • The appropriate sentence for an accessory after the fact to trust account fraud under s 192E(1)(b) of the Crimes Act 1900 (NSW), carrying a maximum of five years imprisonment.
  • The appropriate sentence for the principal offence of dishonestly causing a financial disadvantage by deception under s 192E(1)(b), carrying a maximum of ten years imprisonment, and the weight to be given to the Form 1 offence.
  • Whether special circumstances existed to justify a longer than usual ratio of parole to non-parole period.
  • Whether the sentence could be served by way of an intensive correction order.

Decision

Buscombe DCJ imposed an aggregate sentence of three years and two months imprisonment. The sentence reflected the gravity of the offending, particularly the breach of the trust placed in solicitors by their clients and the broader community. His Honour emphasised that general deterrence carried significant weight, describing the betrayal of client trust by such dishonest conduct as warranting a substantial custodial term.

The court found the offender's position as a solicitor to be a significant aggravating factor, constituting an abuse of a position of trust or authority in relation to the victims. The maximum penalties were treated as legislative guideposts in calibrating the sentence. His Honour was satisfied that imprisonment was the only appropriate outcome.

Special circumstances were found to exist. The offender had no prior criminal history and would be serving her first term of custody. His Honour noted that a custodial environment for a solicitor was likely to be more arduous and potentially more dangerous than for other inmates, which justified a longer parole period relative to the non-parole period. The aggregate sentence exceeded three years, which meant that the question of an intensive correction order did not arise. His Honour added that, even had the sentence been three years or less, the seriousness of the offending and the need for general deterrence would have precluded that option.

Indicative sentences were recorded as three months imprisonment on count 1 and three years on count 2 (incorporating the Form 1 offence), with the aggregate sentence of three years and two months and an aggregate non-parole period of one year and seven months.

Orders Made

  • Aggregate sentence of three years and two months imprisonment imposed.
  • Aggregate non-parole period of one year and seven months.
  • Sentence commences 16 December 2022 and expires 15 February 2026.
  • Non-parole period expires 15 July 2024.

Key Takeaways

  • The District Court confirmed that a solicitor's position carries a heightened level of trust, and that a breach of that trust through client fund fraud is a significant aggravating factor attracting substantial custodial sentences.
  • Under s 192E(1)(b) of the Crimes Act 1900 (NSW), the offence of dishonestly causing a financial disadvantage by deception carries a maximum of ten years imprisonment; the accessory variant carries a maximum of five years.
  • General deterrence was treated as a primary sentencing consideration, with the court emphasising that fraudulent conduct by legal practitioners requires meaningful sentences to deter others in the profession.
  • Special circumstances were established on the basis that a first-time custodial term served by a solicitor is likely to be more arduous and dangerous than for other offenders, justifying a longer parole period.
  • An intensive correction order was unavailable because the aggregate sentence exceeded the three-year threshold, and the court stated it would not have imposed one regardless, given the seriousness of the offending and the weight of general deterrence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b) (dishonestly obtaining financial advantage or causing financial disadvantage by deception)

Cases cited: None stated in the judgment.