Director of Public Prosecutions v Chau

[2014] VCC 2132

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-02052
CR 12-02051

DIRECTOR OF PUBLIC PROSECUTIONS

v

LINH CHUC CHAU
TUAN ANH LE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 December 2014
CASE MAY BE CITED AS:	DPP v Chau
MEDIUM NEUTRAL CITATION:	[2014] VCC 2132

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For Accused Chau	Mr D. Cronin
For Accused Le	Mr M. Thomas

HIS HONOUR: 

1Tuan Anh Le and Linh Chuc Chau, you have each pleaded guilty to three charges of obtaining financial advantage by deception.  That crime carries a maximum penalty of ten years' imprisonment in the normal course of events, but in these particular circumstances 20 years.

2You are 37 and 31 years of age respectively.  You each pleaded guilty to a settled indictment and must get the benefit of that.  There has been a significant delay in this matter being brought on and I take that into account.  You, Mr Le, have one prior finding of guilt but it is not related to this type of offending, and you, Ms Chau, have no prior convictions.

3You must get the benefit of that plea of guilty, particularly in the utilitarian sense, as trials such as these can be difficult indeed.  In so far as remorse is concerned I will give you the benefit of the doubt.

4Firstly pursuant to s.464 of the Crimes Act I make an order that you, Ms Chau, provide a saliva sample for DNA purposes and I must advise you that that order having been made, if you fail to comply with it, police may use reasonable force to take it from you. That order is made and handed down.

5The Crown's summary of the offending is relatively detailed and I simply annex that to these, my sentencing remarks.  Basically what each of you have pleaded guilty to and in varying degrees of complicity, as you each obviously plead as principals, is obtaining $200,000 by deception from the Westpac Bank in around April 2008 to purchase a property, obtaining a further $268,000 from the Westpac Bank in around October 2009 for the purchase of a property, and obtaining a further $270,000 in October 2010, again for the purchase of a property.

6Each of those loan applications which I am referring to was made through a different mortgage broker and involved obviously the production of false documentation such as pretending that each of you had a legitimate income.  I do not think I need to go into any more detail than that, other than to say that in respect of each of them it would appear that the bank has not suffered a loss and the payments would appear to have been made.

7I am aware that even though there is no loss to the complainant bank that matters of general deterrence, and indeed in your situation, specific deterrence, still have to play a part in this sentencing process.  Obviously the amounts involved are heading towards one million dollars and that is serious in anybody's language.

8There must be an appropriate punishment and denunciation.  Each of your counsel has put that a wholly suspended sentence is within range and the Crown do not demur from that position.  Additionally I think that that is the appropriate disposition here on the material before me.

9You have a family with two children who are doing well at school.  As I indicated neither of you have any relevant prior convictions.  You, Mr Le, were in prison for six days afterwards and you, Ms Chau, for 21 days afterwards and clearly they are punishments in themselves.

10In so far as your rehabilitation is concerned and the risk of you reoffending, that is beyond my knowledge in these circumstances, but when you have got to your ages without prior convictions you should be able to achieve that.

11I have read the submissions put on each of your behalves and you are from Vietnam and have come to this country a decade or so ago and have a family.  It is a situation where I do not propose to go into any more detail than that.

12Where you have got that continuing criminal enterprise can I give an aggregate sentence?  I was just going to do an aggregate for a suspended, but if you think there is a risk I will not, I will just sentence accordingly.

13MR DEVLIN:  You still can give an aggregate sentence, Your Honour.

14HIS HONOUR:  I know I can give one, but there is dangers.  You cannot give an aggregate sentence for a serious sexual offender for example.

15MR DEVLIN:  I do not believe there is an impediment, Your Honour.  That is as high as I can put it.

16HIS HONOUR:  I will not risk it.  I will not mess around with suspending all the six days and do those sorts of things.  If they are in breach obviously each of them can be called into account the PSD at that time which is the appropriate time.

17Accordingly the sentence is as follows.  On Charge 1, twelve months.  On Charge 2, twelve months.  On Charge 3, twelve months.  I direct that six months of the sentence imposed upon Charge 3 and six months of the sentence imposed upon Charge 2 be served cumulatively upon each other and upon the sentence imposed on Charge 1.  That gives an effective head sentence of two years and I direct that that be wholly suspended for a period of three years because I consider it in the interests of justice to do so having heard the plea material and the most appropriate concession by the Crown.

18There are no other orders I have to make.  The disposal order is done, the 464 is done.

19MR DEVLIN:  There is the 464, Your Honour.

20HIS HONOUR:  Do I really need to go there?  It says I must.  I know it says the word "must" is in there which the Crown would love to show me, but it does not invalidate the sentence and I think it would be unrealistic in this scenario.  If this had been a trial it would have just been nothing like what is before me.

21MR DEVLIN:  That is right.  I have raised it.

22HIS HONOUR:  If you are feeling anxious about it, just for these matters, even though I point out these in my sentencing remarks that I think this is grossly artificial, I do so out of a sense of obligation.  But for your pleas of guilty you would have been sentenced to a period of imprisonment for three years and I direct that some of it be suspended.

23Each of you has been sentenced to a suspended sentence.  That suspended sentence is two years imprisonment.  I have suspended it for a period of three years from today's date.  If you commit any offence punishable by imprisonment in that three year period you will be brought back before me on a breach and you have to show exceptional circumstances why you would not have to do the two years.

24Let me assure you you would find that very, very difficult to do.  If you come back you are in.  Thank you.

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