Director of Public Prosecutions v Cuong Viet Do
[2015] VCC 55
•4 FEBRUARY 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02206
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Cuong Viet DO |
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JUDGE: | CHIEF JUDGE ROZENES | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 FEBRUARY 2015 | |
DATE OF SENTENCE: | 4 FEBRUARY 2015 | |
CASE MAY BE CITED AS: | DPP v Cuong Viet DO | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 55 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Operation Squid –Obtain financial advantage by deception – Prior criminal history resulting in imprisonment – Three year Community Correction Order with conviction
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | Office of Public Prosecutions |
| For the Accused DO | Mr M Thomas | Valos Black |
HIS HONOUR:
1 Cuong Viet DO, you have pleaded guilty to one charge of obtaining a financial advantage by deception, the maximum penalty for which is ten years’ imprisonment. You have a prior criminal history comprising convictions in this court in 2004 and 2005 for theft and cultivation of a commercial quantity of cannabis.
2 You are one of a number of accused before this court as part of Operation Squid, an investigation into mortgage loans fraudulently obtained through St Andrews Mortgage Solutions using false or misleading information. The facts of the case were opened by Mr Devlin, who appeared to prosecute, and are contained in the prosecution plea opening, Exhibit A.
3 In brief summary, the operators of the scheme advertised in local community papers that they could obtain loan facilities from banks in circumstances where customers approaching those banks directly would most likely not succeed. The organisers provided false documents and/or made false representations on application forms to enable customers to obtain loans. The false representations usually related to overstating employment income, or assets. Arrangements were made with a number of businesses to use their details to construct the fraudulent payslips and for those businesses to confirm employment if contacted by the lender. The organisers received an upfront fee and trailing commission from the lender as well as fees from the loan applicants.
4 Mr Do, your offending was in relation to a loan application for $372,000.00 from the ANZ Bank, for the purpose of purchasing a property at Taylors Hill. The application form signed by you on 1 November 2010 was supported by a fraudulent payslip declaring a total net monthly income of $7,165.00. You played no part in the preparation of the false payslip, however you signed the contents of the application as being true and correct and it was then introduced to the ANZ Bank. The loan was advanced on 1 December 2010. You were arrested on 5 March 2013 and indicated your intention to plead guilty on 4 December 2014 at a final directions hearing in this court.
5 By way of personal background, you are currently 38 years of age having been born on 4 May 1976 in Vietnam. You were 34 at the time you committed this offence. You left Vietnam as a refugee in 1989 with your mother, father and two brothers. You report then spending around five years in an internment camp in Hong Kong before being forcibly repatriated to Vietnam, and subsequently arrived in Australia on a family reunion visa when you were aged 20. You were educated to Year 7 standard in Vietnam and undertook education in the Hong Kong camps to Year 11 standard. On arrival in Australia you undertook English studies for approximately one year. Since arriving in Australia, you have been variously employed in factories and as a clothing cutter. From 2004 you have been employed in your partner’s cigarette shop. You have been in a relationship with your partner since 2002, and have two sons, aged 13 and 7.
6 On your behalf your counsel, Mr Thomas, submitted that I take the following into account by way of mitigation:
a. that your offending conduct is similar to the majority of ‘purchasers’ involved in Operation Squid who have been dealt with by this court; that is, you were not involved in establishing the fraudulent scheme but took part in it;
b. that you should not be treated differently from others who have been sentenced to a non-custodial disposition just because you have prior convictions and your plea was not offered as promptly as it might have been;
c. that you always met your mortgage repayments and that the property was later sold with the mortgage being discharged in full, demonstrating that you never intended to cause financial loss to the bank, nor was any loss occasioned;
d. that the offending occurred some four years ago, and that since that time you have not committed any further offences and there are no charges pending against you;
e. that your prior convictions are not for dishonesty offences.
7 Mr Thomas submitted that the appropriate sentencing disposition in your case was a community correction order or a fine. Mr Devlin conceded that both these dispositions were available, and also that a suspended term of imprisonment was properly within the realm of sentencing options available.
8 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
9 As I have now said many times it is of vital importance that financial institutions should be entitled to rely upon representations made to them when lending money. Conduct of this kind seriously challenges lending practices and impacts upon the community by way of making it more difficult for people to obtain finance and possibly at a higher cost. These offences are also difficult to detect. Persons in the financial community and would-be borrowers like you should understand that offences of this kind will not be treated leniently by the courts and may, in appropriate cases, result in sentences of imprisonment. General deterrence must necessarily play an important role in the sentencing process.
10 Whilst there was an intention to deceive the bank into making the loan it was equally clear that there was no intention to cause a financial loss to the bank and I am satisfied that the bank did not suffer any financial loss.
11 Whilst the offenders in Operation Squid are not, strictly speaking, co-accused, there is, nevertheless, a desirability that there be consistency in sentencing in cases such as these. So far, in this operation and another, I have sentenced a substantial number of borrowers such as you. None have received a sentence of immediate custody. None of them however have a prior conviction involving imprisonment, as you have. On two occasions you have served a sentence of imprisonment for cultivation of cannabis. In this case the finance was used to purchase a “rental property” and if I thought that this was in some way connected to the provision of housing for drug cultivation I would have had no difficulty in sentencing you to a term of imprisonment. As it is, there was no such suggestion here and whilst the presence of significant prior convictions usually demonstrates that specific deterrence needs to be given additional attention in the sentencing process, I am in the end satisfied that the desire for consistency in sentencing approach in cases where a large number of unconnected offenders are sentenced by the same judge for almost identical offending needs to be given primacy. Your prior history and the lateness of your plea are the only distinguishing features of your situation compared to others and whilst these factors call for a more substantial sentence they do not in this case call for a sentence of a wholly different kind. It might have been otherwise if your prior history was for similar offending or if there was some connection between this offending and drug cultivation.
12 I take into account your plea of guilty. Whilst not given at the earliest opportunity, I am nevertheless satisfied that it demonstrates acceptance of responsibility and has facilitated the course of justice, has saved time and cost, and evidences remorse.
13 For the reasons I have stated I am satisfied that your offending does not warrant a custodial sentence and I propose to impose a community correction order.
14 Would you please stand.
15 On the single charge of obtaining a financial advantage by deception, you are convicted and I order that you be placed on a community correction order for a period of 36 months with 300 hours of unpaid community work. The order will commence today. Do you agree to comply with the order?
16 OFFENDER: (Through Interpreter) Yes, your Honour.
17 HIS HONOUR: Very well. The core conditions of the order are:
(1)that you not commit whether in or outside Victoria during the period of the order, any offence punishable on conviction by imprisonment;
(2)that you report to the specified Community Correction Centre within two clear working days after the coming into force of this order. In your case that place is the Werribee Community Correctional Services at 87 Synnot Street, Werribee;
INTERPRETER: Your Honour, Mr Do asked to be - report in Sunshine please.
HIS HONOUR: Is that right?
INTERPRETER: Because the Sunshine - - -
MS VALOS: Sunshine, Your Honour, is his address.
HIS HONOUR: It's Werribee on the report. Does it make any difference where he
reports?MS VALOS: Other than for his convenience and being able to - - -
HIS HONOUR: Where does he live?
MS VALOS: In Sunshine, Your Honour, 2 Haven Close, Sunshine.
HIS HONOUR: I will make it the Sunshine Community Centre, they can make other arrangements after that. 10 Foundry Road, all right. It will be 10 Foundry Road.
(3)that you report to and receive visits from a Community Corrections Officer;
(4)that you notify the Sunshine Community Correction Centre of any change of address or employment within two clear working days after the change;
(5)that you not leave Victoria except with the permission of an officer at Sunshine Community Correction Centre; and
(6)that you obey all lawful instructions and directions of the Community Corrections Officer.
18 The further condition is:
(1)that you perform 300 hours of unpaid community work over the 36 month period of the order.
19 Anything other orders required?
20 COUNSEL: No, your Honour.
21 HIS HONOUR: Very well. You can step out of the dock, Mr Do, and come and sit behind your counsel. I will have the order prepared and you can then sign it. Mr Do, is that your signature.
22 OFFENDER: Yes, Your Honour.
23 HIS HONOUR: Thank you, counsel.
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