Director of Public Prosecutions v Do, Thi Thu Phuong

[2014] VCC 722

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-14-00411

DIRECTOR OF PUBLIC PROSECUTIONS

v

Thi Thu Phuong DO

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JUDGE:	His Honour Chief Judge Rozenes
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2014
DATE OF SENTENCE:	27 May 2014
CASE MAY BE CITED AS:	DPP v DO, Thi Thu Phuong
MEDIUM NEUTRAL CITATION:	[2014] VCC 722

REASONS FOR SENTENCE
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Catchwords:             CRIMINAL LAW –– Obtaining financial advantage by deception – lack of prior convictions – fraudulent application for mortgage – property used as a cannabis grow house

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms T Bolton	Office of Public Prosecutions
For the Accused	Mr A Hands	Luat Tran & Associates

HIS HONOUR:

1       Thi Thu Phuong Do, you have pleaded guilty to one charge of obtaining financial advantage by deception.  The maximum penalty for that offence is 10 years’ imprisonment.  Your offending occurred between 27 April 2012 and 9 May 2012.  You have no prior convictions.

2       The facts of the case were opened by Ms Bolton, who appeared to prosecute, and are contained in the Prosecution Plea Summary, Exhibit A.

3       In brief summary, your offending was detected when the police located cannabis plants growing at a house in Brookfield.  Police traced the property to you and discovered your deception.  I should note that you are not charged with any drugs offences.  Your offending is in relation to a home loan application made by you which was supported by two false pay slips and an inflated valuation of assets and savings.  You signed the contents of the application as true and correct and it was then given to the Westpac Bank.  You were subsequently loaned $308,000.00 and purchased the property in Brookfield.  You were arrested and interviewed on 8 October 2013 and made admissions to purchasing the property, agreeing that it was your signature on the application form and loan documents.  You said that you could not recall the address of the house or much of the details of the transaction. You indicated an intention to plead guilty on 28 March 2014.  The property was confiscated under the Confiscation Act 1997, has been sold and the bank repaid. You have lost some $40,000 in equity.

4       By way of personal background, you are now aged 30 years.  You were born in Vietnam and moved to Australia in 2008 on a student visa.  You have a daughter, aged two-and-a-half years.

5       On your behalf, Mr Hands submitted that I take into account the following matters by way of mitigation:

1)      That you have no prior convictions and no matters pending;

2)      That you entered a plea of guilty at an early opportunity;

3)      That your offending is not a particularly serious example of this offence as it was constrained to one instance, no loss was suffered by the bank, and your house was confiscated;

4)      That you are a single parent on a limited income from Centrelink;

5)      That your family resides in Vietnam and cannot provide much support; and

6)      That you have good prospects for rehabilitation.

6       Mr Hands submitted that period of imprisonment wholly suspended was the appropriate penalty in the circumstances.  Ms Bolton agreed that the use of the fraudulently-obtained property as a cannabis grow house elevated the offence in terms of seriousness and that a period of imprisonment was called for. 

7       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.

8       Financial institutions should be entitled to rely upon representations made to them.  Conduct of this kind is serious 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 should understand that an offence of this kind will not be treated leniently by the courts and may, in appropriate circumstances, result in a sentence of imprisonment.  General deterrence must necessarily play an important role in the sentencing process.

9       I note, again, that you are not charged with any drug offences and I can only sentence you in relation to the charge before me.  I was told by your counsel that you were in Vietnam at the time that the crop house was set up and, for that reason, the police withdrew the charge of cultivation.  No explanation was offered as to how the house purchased by you came to be used for the cultivation of cannabis.  The contract of sale was entered into by you on 28 April 2012 and you departed overseas on 10 May returning on 31 October.  The cannabis crop was discovered on 10 October.  It seems clear enough that you were involved in the purchasing of the property for a purpose other than occupation by you.  The prosecution obviously did not think there was enough evidence to sustain a prosecution for cultivation.  Unlike many others in your position who embarked upon similar frauds and who proffered as an excuse for like conduct the fact that they were simply intending to provide housing for their family you  are in a different category altogether. 

10      I take into account your early plea of guilty.  It demonstrates acceptance of responsibility, has facilitated the course of justice, has saved time and cost, and evidences remorse.  You have no prior convictions and are previously of good character.  I am satisfied you are unlikely to offend in this way again. 

11      Consistent with the sentencing dispositions of others in your group, I am satisfied that your offending does warrant a custodial sentence, however I am prepared to wholly suspend it.

12      Ms Do, would you please stand.  On the count of obtaining a financial advantage by deception you are convicted and sentenced to 6 months’ imprisonment.  I propose to wholly suspend the sentence for a period of 12 months.  Before I do that I am obliged to tell you that you have been convicted and sentenced to a term of imprisonment, but that you do not have to serve that sentence immediately.  However, if you commit an offence punishable by imprisonment, either in Victoria or elsewhere, during the period of the suspension, then you may be brought back to be further dealt with, and absent exceptional circumstances, will be required to serve the suspended sentence.  Do you understand that?

13      OFFENDER (THROUGH INTERPRETER): Yes I do, sir.

14      HIS HONOUR: Very well, I’ll make that order.

15 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 12 months’ imprisonment. I am unable to say whether that sentence would have been suspended or not.

16      HIS HONOUR: Are there any further orders required?

17      COUNSEL: No.

18      HIS HONOUR: Thank you, Ms Do you can step out of the dock.

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