Director of Public Prosecutions v Duong
[2013] VCC 1387
•4 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01409
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THUONG DUONG |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2013 | |
DATE OF SENTENCE: | 4 October 2013 | |
CASE MAY BE CITED AS: | DPP v Duong | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1387 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – obtaining a financial advantage by deception
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; R v Postiglioni (1997) 98 A Crim R 134; R v Taudevin [1996] 2 VR 402
Sentence: 2 years’ imprisonment, wholly suspended for 3 years.
S6AAA declaration 3 years’ imprisonment with non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr Y. Hardjadibrata | Office of Public Prosecutions |
| For the Accused | Mr D. Glynn | Andrew George Solicitors |
HER HONOUR:
1 Thuong Duong, you have pleaded guilty to one charge of obtaining a financial advantage by deception, being the provision of a mortgage facility from the Westpac Banking Corporation in the amount of $225,000 by falsely representing a number of matters regarding your financial circumstances and employment history. The maximum penalty applicable to this offence is 10 years’ imprisonment.
2 It is not necessary to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned Prosecutor. I proceed to sentence you on the basis of the facts as summarised by the Prosecutor and outlined in the Prosecution Opening (Exhibit A).
3 I turn to a brief summary of your offending.
4 You were born on 10 October 1962 and are an Australian citizen. You are 50 years of age at sentence. From time to time you opened a number of bank accounts at various banks, including Westpac, ANZ and Bendigo Bank. You had previously purchased property jointly with another person in April 2007 and on your own in May 2009. Both properties were purchased subject to a mortgage. The Melton property was sold in May 2010.
5 By a Contract of Sale signed by you as purchaser on 15 February 2010, you purchased in your name a property at 18 Underbank Boulevard, Bacchus Marsh for $296,123. Following payment of a deposit, the balance of the purchase price of $267,123 was payable on settlement on 30 March 2010. The contract was subject to a loan being approved from a bank or similar institution.
6 The real estate agent acting for the vendor was Mark Shelley at Stockdale and Leggo, Bacchus Marsh. He told police you were the primary negotiator in relation to this property and described you as having average English language skills.
7 On 26 February 2010, Mark Shelley provided a rental valuation stating the property would probably rent in the vicinity of $300 per week.
8 Approximately 20 days later, you signed your name on a RAMS home loan application form. In that application you said, amongst other things, that:
(a)you had been employed as a machine operator by Sunshine Doors Coating Pty Ltd (“Sunshine Doors”) since 1 September 2008 and prior to that, employed by Ho Fashions from 15 May 2006;
(b)you stated your annual salary with Sunshine Doors was $49,000;
(c)copies of payslips from Sunshine Doors for 3 March 2010 and 10 March 2010 were attached to your application showing a gross weekly salary of $942.40;
(d)there was a copy of a PAYG payment summary for the year ending 30 June 2009 issued by Sunshine Doors declaring your annual salary was $47,543 and that $9,015 tax had been withheld.
(e)you further stated the property was being purchased as an investment.
9 The RAMS home loan application documents were submitted in your name, including the signature by you on 15 March 2010. A pharmacist verified your identity and sighted original identification documents, being your Victorian drivers licence and current Australian passport, showing your date of birth of 10 October 1962.
10 On 24 March 2010, the balance of the deposit of $28,000 for the sale of the property was paid by you by bank cheque.
11 On 7 April 2010, a letter was sent to you by RAMS informing you a loan of $225,000 had been approved and the lender would be Westpac Banking Corporation. The letter requested, amongst other things, you complete and sign an acknowledgment form certifying the truth and correctness of your loan application and bank direct debit request.
12 On 9 April 2010, you signed the direct debit request, nominated an ANZ bank account and signed the acknowledgment.
13 On 16 April 2010, funds of $225,000 were drawn down from your RAMS home loan account to settle the property and you, as transferee, signed in the presence of a witness, a Transfer of Land for the Bacchus Marsh property.
14 On 19 April 2010, settlement of that property was effected and the RAMS loan of $225,000 was used to pay most of the balance of the purchase price. Loan repayments of between $1,397.38 and $1,456.30 were transferred from your ANZ cheque account at the start of each month, the loan being fully repaid on 2 April 2012.
15 The employment details and documents in your home loan application were false in the following respects:
(a)no person by the name of Thuong Duong had ever been employed by Sunshine Doors and the proprietor had never met you;
(b)Centrelink records show you had been paid a Newstart allowance from January 2008 to April 2009 and a Disability Support Pension from April 2009 to November 2011, those Centrelink payments being paid into your Westpac bank account;
(c)Australian Taxation Office records confirmed you had not been employed at the relevant time;
(d)An examination of your bank accounts for the relevant time revealed receipt of Centrelink payments but no evidence of salary and wage payments.
16 RAMS would not have approved the loan and Westpac Bank would not have funded the loan had they known your application contained false details in relation to your employment.
17 On 24 February 2012, you were interviewed by police. You made full admissions at the interview, stating that, amongst other things, you owned that property and had purchased it for $296,000.
18 You said the purchase money was paid by your share from your mother’s will of $85,000, together with the bank loan. You agreed you filled in paperwork for the loan. In relation to the false documentation stating you had worked for Ho Fashions and then Sunshine Doors, you said you were told by the RAMS home loan staff to tick that you worked full time, otherwise you would not get the loan.
19 You had paid for the loan by renting the property out at a rental of between $1,200-$1,500 per month.
20 Regarding not declaring you were on a pension in your home loan application, you said that that was the –
“… brokers people told me not to put so in, or do I get some loan. Otherwise if I said that I am a sick person the bank and the lending financial institution won’t lend me any money.”
21 You agreed that you falsely put down incorrect information because you knew if you put the correct information down you would not get the loan.
22 Regarding the salary summary from Sunshine Doors, you said you did not know about the document as everything was supplied by the brokers, RAMS. You said you did not know whether you lied in the application. You said you paid $1,200 to the brokers to do all the paperwork for you. You were told where to sign without knowing anything. You understood that this was probably illegal.
23 Your offending in my opinion is very serious. There are a number of disturbing aspects of your offending, including your suggestion the falsification of documents were completed by the broker, or someone else but not you.
24 You were aware of your own financial state, i.e. in receipt of Centrelink or a Disability Pension and knew such income would not permit you to obtain the loan sought. You were prepared to sign documentation knowing these documents were false.
25 You have pleaded guilty to this offence and are entitled to have that fact taken into account in your favour, and I do so. I note that this offence occurred in 2010 and you are now being sentenced in 2013, where there has been some delay. No real reason was given for the delay. I was told by Mr Glynn he was only recently briefed to represent you, just prior it seems, to your trial being due to commence in June 2013. Mr Glynn began negotiations with the prosecution on your behalf and agreement was made by you to plead to this charge. It is clear the delay was not due to the prosecution. A contested committal did take place.
26 By your plea of guilty witnesses have not been required to give evidence at your trial. You are entitled to a sentencing discount due to your plea of guilty and taking into account the timing of it.
27 You have admitted a number of prior court appearances, the first on 1 August 2002 involving dishonesty and violence offences and you were, with conviction, fined an aggregate of $300. You next appeared on 20 May 2005 for offences of failing to comply with a direction of an authorised officer and refusing to give a name and address upon demand, where you were convicted and fined $250 aggregate.
28 You then appeared at Sunshine Magistrates’ Court on 15 May 2007 for using an unregistered motor vehicle on a highway and, without conviction, the matter was adjourned to 14 August 2007.
29 Regarding your prior criminal history, you had no recollection of the offences dealt with in 2005 and 2007, although conceded you did so appear at Court. In relation to the 2002 offences, you instructed Mr Glynn that involved theft of milk and an altercation that occurred as a result.
30 You next appeared at Sunshine Magistrates’ Court on 3 December 2007 on charges of cultivating a narcotic plant, being cannabis, possessing cannabis, and theft, for which you received an aggregate of 18 months’ imprisonment. That was wholly suspended for a period of two years. That offending, I was told, related to a hydroponic crop. It appears from the depositions the home you purchased was also used for a hydroponic crop. Police attended six properties (of which yours was one) with search warrants and located crops which prompted the investigation into the ownership of the properties. This was how your involvement in the offence before me became known to police. Whilst I discussed this with Mr Glynn, I am conscious you have not been linked at all to the crop located by police. Your offending behaviour relates solely to the charge before me. In that regard, five other persons were also charged regarding the other five properties and obtaining of mortgages using various types of false information. Charges against one of the five were ultimately withdrawn and the sentencing remarks of the various Judges who dealt with the other four owners were before me, not as co-offenders in the strict sense, but of assistance when considering issues of parity and sentencing for similar offending as yours.
31 Mr Glynn, who appeared on your behalf at the plea hearing, submitted your offending fell into the least serious category of offending, relying principally upon –
· the bank having been repaid
· you obtaining the loan in your own name
· you not having any intention to “rip anyone off”, particularly referring to the Westpac Bank
· you maintaining all repayment obligations per month, the property ultimately being sold on 2 April 2012. The Bank, he submitted, was therefore not financially disadvantaged by your offending.
32 Mr Glynn further submitted the risk to the lender was low in this case and further, that the victim, being a financial institution, was not a “vulnerable victim” or one which raised concerns regarding breach of trust. Whilst a financial institution is different, I accept, to an individual person, that does not mean they are not victims. In the circumstances however, their money was not at risk and the bank was repaid on time on a monthly basis and upon the sale of the property.
33 I was advised there is a pending court hearing listed for contest at Sunshine Magistrates’ Court of concern relating to other drug charges for which you have been charged. Mr Glynn did not have the specifics in relation to that. That matter is pending and, as such has not been finally determined. Such is not relevant when determining the appropriate sentence for the offence before me.
34 I was told very little about your background, and no reports or references were before me. You came to Australia from Vietnam as a refugee. You said you did not have any relatives in Australia and your health was poor. You contracted tuberculosis apparently whilst in Thailand. Your tuberculosis had been treated, although has left your lungs in poor condition, and you are asthmatic as a result.
35 Two medical reports were placed before me which verified your medical condition. The first from Dr Lo at Sunshine Central Medical Clinic, dated 8 March 2012, in particular referring to various medications prescribed principally for your asthma. The second from Dr Abdela, Sunshine Hospital, printed 10 April 2012, regarding a diagnosis of earlier renal colic.
36 Mr Glynn did not submit that principles 5 and 6 of R v Verdins[1], or indeed any other principles of Tsiaris as restated in Verdins, applied when sentencing you. I agree.
[1]R v Verdins & Ors (2007) 16 VR 269
37 I was told that you live in share accommodation and were not employed, due to your health.
38 I was told by Mr Glynn that the broker involved in arranging the loan, Angh Nguyen, was also the conveyancer of this property. His licence was suspended in November 2011, as a result of problems with his trust account (Exhibit 2).
39 Relevant to the appropriate disposition in this matter, is an analysis of others charged resulting from the investigation undertaken by police in relation to the other four properties (charges against one other having been withdrawn). I discussed the similarities and differences at some length with both Counsel, and the transcript will reveal that discussion.
40 In brief in the case of Vivian Trinh, I note she did not have any prior court appearances, was 18 at the time of the offending and fell into the category of a “young offender”.
41 In relation to Quang Tran, the amount of money was more than that involved in your case. There was psychological material tendered, an early plea of guilty and he was relatively young at 28 years of age. He had two prior court appearances, one resulted in a suspended sentence and the other a Community-Based Order, neither of which were breached by this offending.
42 Regarding Mai Nguyen, there was a psychological report and also references before the sentencing judge. She had a history of depression and of associated medication. She also had young children in her care. Ms Nguyen pleaded guilty at an earlier stage and she alerted police to the property in the first place. Ms Nguyen did not have any prior court history.
43 Turning to Nguyet Trinh, there were no prior offences alleged and the sentencing judge had before him, amongst other material, a psychological and psychiatric report.
44 It is also apparent from the table that was provided by the prosecution regarding those offenders, their pleas of guilty were entered at the committal mention stage, yours later at the door of the Court just as your trial was due to commence.
45 The amounts of money involved in relation to each of the other loans was also more than that involved in your offending, two being comparable and two others considerably more.
46 The issue for me is whether or not your offending warrants a sentence significantly different from that imposed on the other four offenders, specifically whether you should be required to serve a term of actual imprisonment.
47 In relation to disposition, Mr Glynn submitted a term of imprisonment, even a longer term than that imposed on the other four offenders, then suspended for a maximum of three years, would be the appropriate disposition in your case.
48 The prosecutor submitted a term of imprisonment was appropriate for your offending, although he submitted it was ultimately a matter for me as to whether or not any part of that sentence was to be served or whether it be wholly suspended.
49 Regarding your rehabilitation prospects, I have some concerns. You are not new to the criminal justice system. Whilst you do not have a prior criminal history reflecting this type of offending, you have received a suspended sentence in the past. Very shortly after you completed that sentence you commenced your offending before me. You were not deterred despite your previous involvement with the law. In my opinion, you will be back.
50 There is the need for general deterrence when sentencing for this offending.
51 There is also specific deterrence required when sentencing you as you have a criminal history, albeit I note not for the same type of offending as that before me.
52 Your offending must also be the subject of denunciation by this Court. There is a need for the Court to ensure integrity in the banking and financial system where possible.
53 Ultimately, having considered the sentences imposed in relation to the other offenders, and taking into account the matters in mitigation raised by your Counsel, I am of the opinion that the only appropriate disposition is one involving a term of imprisonment.
54 Having regard to s.27 Sentencing Act 1991, however, I have concluded that to suspend the whole of that period of imprisonment I impose is appropriate.
55 I sentence you as follows.
56 On Charge 1, you are convicted and sentenced to 2 years and 3 months’ imprisonment and I order the whole of that sentence be suspended for a period of 3 years.
57 This sentence means that if you commit another offence for which you could be imprisoned over the next three years, you will be brought back before the Court and back before me. You will then be ordered to serve the term of imprisonment that I have just suspended, that is, 2 years and 3 months.
58 My strong advice to you is do not test me. I know about your asthma, I have taken that into account this time. You will not be able to rely on that if you come back before me breaching this offence. You will do 2 years and 3 months gaol. As I said, do not try me.
59 Pursuant to s.6AAA Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to a term of 3 years 6 months’ imprisonment and set a non-parole period of 2 years.
60 No other orders were sought by the Prosecution. I hope that is right.
61 MS COOMBER: That's correct, Your Honour - - -
62 HER HONOUR: Very well. I might add just for the sake, nil PSD, is that right?
63 COUNSEL: That's correct.
64 HER HONOUR: Very well. Pursuant to s.18(4) I simply note should I have to revisit this sentence in the future you have not served any days in custody by way of pre-sentence detention. That just means that if you come back before me and I have to re-sentence you I do not have to look through a lot of paperwork to find that. That is all that means, all right?
65 Anything else? No? Thank you.
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