Director of Public Prosecutions v Ho

[2014] VCC 287

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02123

DIRECTOR OF PUBLIC PROSECUTIONS

v

THANH TI HO

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2014
DATE OF SENTENCE:	12 March 2014
CASE MAY BE CITED AS:	DPP v Ho
MEDIUM NEUTRAL CITATION:	[2014] VCC 287

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Schubert
For the Offender	Mr D. Grace QC

HIS HONOUR: 

1Thanh Ti Ho, you have pleaded guilty to an indictment charging you with six offences, all under the Bankruptcy Act 1966 (Commonwealth).  In Charge 1 the offence that you pleaded guilty to was obtaining credit by fraud in bankruptcy; Charge 2 was obtaining credit without disclosing your bankruptcy; Charge 3 was obtaining credit by fraud in bankruptcy; Charge 4 was knowingly signing a false declaration in a statement of affairs; Charge 5, obtaining credit without disclosing bankruptcy; and Charge 6, failing by a bankrupt to fully and truly disclose to the trustee such information about your examinable affairs as the trustee required.  You have also admitted a prior conviction on 24 March 2006 for trafficking in a drug of dependence, for which you received a term of imprisonment suspended for a period of 18 months.

2The prosecution has tendered and relied upon a summary of prosecution opening and that document has been read to the court this morning.  I am not going to repeat it.  It is accepted by your counsel as being an accurate statement of the facts upon which I can proceed to sentence, although of course he drew my attention to further facts to put the prosecution statement in context.

3In essence, the case involves a background against which you first petitioned for bankruptcy in May 1997.   I am told that that was against a background in which you had received substantial sums by way of investment from members of the Vietnamese community.   Your business had failed and you ended up with considerable debt, including to the Vietnamese community by way of cash owed to those members, but also debts which left you in a position where you were able to, and did, petition for bankruptcy.

4You were discharged from that bankruptcy in May of 2000.   Then, on 5 November 2004, you again filed for bankruptcy on a debtor's petition.  By that time you must have been fully aware of the protections that the Bankruptcy Act offered a person like yourself.   It is against that background that one has to judge your culpability in committing the offences that followed.   What you did amounts, in my judgment, to a cynical exploitation of the Bankruptcy Act, which you sought as a protection for yourself, but which you sought to exploit in your favour.    I think you cynically disregarded your obligations under the Bankruptcy Act and you put at risk considerable sums of money to which you knew you were not entitled to obtain by way of credit. 

5The first offence concerns the period 13 to 29 April 2005 and onwards, wherein you obtained a personal loan of $21,100 for a period of seven years. Then on 29 April 2005 you applied for and obtained a home loan in the sum of $344,000 by telling a number of lies including providing a false identity and also false details about your employment and employment history together with pay slips and other documents in the false name that you had chosen.

6The next event that I need to mention, of course, is your conviction on 24 March 2006 for trafficking in a drug of dependence.  I am told by your counsel, and accept, that you played a secondary role in that offending conduct.   It seems that this court accepted that, because a term of nine months' imprisonment suspended for a period of 18 months was imposed in addition to a pecuniary penalty order in the sum of $11,500.  But the next two offences were committed during the operational period of that suspended sentence. It seems to me that that indicates two things:  (1) that you were not deterred by the imposition of a term of imprisonment, albeit suspended in March 2006, from committing offences; and (2) that you committed these offences in breach of that suspended sentence order, which indicates that I should give proper consideration to the sentencing principle of individual deterrence as well as the other sentencing considerations. 

7On 31 May 2007, whilst still a bankrupt, you applied for and obtained an investment loan in the sum of $265,000 for the purchase of an investment property in Queensland.  I am told by your counsel that this was some cockeyed scheme to try and dig yourself out of the financial mess that you found yourself in and you had hoped that you would make a substantial profit from that venture and that therefore you would be able to improve your financial situation.  However, you knew perfectly well you were not entitled to that money by way of a loan and that, as I suggest, is a cynical exercise on your part in flouting the purpose and terms of the Bankruptcy Act.

8Then on 16 July, less than two months later, you applied for further loan moneys secured against the Blackburn property that you were occupying as your family home at that time, as I understand it.  Again, in respect of both of those loan transactions, you supplied false details about your income and supported it with false documentation.

9Then, in respect of the third bankruptcy, in July 2010 you signed a declaration and statement of affairs which was false in a number of material particulars.  That again shows a flagrant disregard for your obligations under the bankruptcy law, about which by then you must have been very clear and about which you had previous substantial experience.

10Then, on 5 July 2010 and onwards, you used two credit cards that you had obtained previously from the Commonwealth Bank to obtain further credit in sums totalling respectively $8318.23 and $10,783.81. 

11Finally, on 11 September you engaged in an interview with the representative of the Trustee of Bankruptcy for the purpose of providing further information in relation to your assets and you told a number of untruths in relation to that all in the course of that interviewing process.  However, as was pointed out this morning, it was during that interviewing process that you found yourself  unable to maintain much of the detail of your story and, confronted with too many awkward truths, you apparently made admissions to a number of matters about which you had previously given false information and displayed some signs of remorse, although you did not make a clean breast entirely of your deceptive conduct in relation to your bankruptcy even on that occasion.   But it was at about that time that it seems that the matter unravelled finally and I understand that the matter was referred to the enforcement agency, ITSA, in October 2011.  You were not charged until 21 August 2013 for these offences.  It is not suggested that there is any criticism involved in the investigative process, it does take time, one understands that.   But it is the fact that the matter has been hanging over your head with prospective enforcement proceedings since at least October 2011, and indeed, perhaps it may reasonably be said that even since September 2010 you must have been aware that you were in jeopardy of being prosecuted for offences under the Bankruptcy Act.  One way or another there has been delay, and your counsel puts that forward as a matter that I should take into account in your favour in assessing an appropriate sentence, and I do that.  I note that whether the delay is two and a half or three and a half years, properly calculated it is a significant period of time during which these events must have been causing you stress and it is to your credit that you do not seem to have fallen foul of the law again during that intervening period. 

12I regard this course of offending conduct as serious.  As the prosecution have pointed out, the period during which you engaged in this conduct was about five years and it was a sustained course of dishonest conduct.  You did show a total disregard for your obligations under bankruptcy law and you engaged in fraudulent conduct quite cynically, in my view. 

13It is, I think, to be observed that you had worked as an accountant.  You had even set up your own business as an accountant, although for various reasons that was not successful.  You had obtained not just a Master of Business Administration, but a Doctorate in Business Administration and you clearly demonstrate that you are a person of some intelligence and ability and knowledge, gained not just from your exposure within the field of accounting and business administration, but in your use of the bankruptcy laws, as I say, initially as a protection for you in your financial situation.

14Turning to matters personal to you, your counsel helpfully took me through a deal about your background.  You were born in 1954, and therefore 60 years of age now.  You came from a country background in Vietnam and you were associated with the South Vietnamese side during the Vietnamese war.  You are the second oldest of seven children, and it seems that your oldest brother died in the war in 1973.  You attended high school and then afterwards joined the South Vietnamese police until the end of the war in 1975.  You were allied  with the United States and were seen to be so by the North Vietnamese, who put you in a concentration camp and you were subjected to forced labour and ill treatment including torture.  You subsequently escaped with your young wife and daughter to Thailand and you came to Australia as a refugee in 1980 with your wife and daughter and, by then, also a son. 

15It seems that you started work as a bus driver and then went into accounting with Telecom in 1985, then worked for Coles Myer in 1988, National Mutual in 1989 and it was during that latter period that you were studying part-time for a Master of Business Administration, which you obtained in 1991.  During that period you also had other children, and you now have a total of five children, two of whom are in court today.   It seems that all of them are doing extremely well and you are, I think, to be congratulated for the contribution you have made as a father, and I well understand that you are justly proud of your family. 

16The diligence that you have shown at various stages of your working life in Australia has no doubt rubbed off on them and left them with good work ethic. I think that is all very much to your credit.  Perhaps you were too ambitious, though, and it seems that your Master of Business Administration did not equip you all that well for prudent investment and prudent business practices. Because it seems that most of the business ventures that you have engaged, although they may have had significant potential, have for one reason or other gone bad.  Nevertheless, it seems that you have persisted over the years in endeavouring to make a good living and to apply yourself, and that too is very much to your credit.  It is very much to your credit that you pressed on with your education and obtained a Doctorate in Business Administration at the Victoria University, obtaining that, as I understand it, in the mid 2000s. 

17You have been able to buy and sell houses.  You have engaged in property development in the late 1990s through Goldstone Investments.   It was probably as a result of that business that much of the money that you obtained to invest in that business went astray, and it seems that in the crash of 2000/2001 you lost everything plus at least a substantial sum of around about one million dollars, as I understand it, of investors' funds.  Nevertheless, you have bounced back with an endeavour to develop the clothing business through Nulan Trading.   After moderate success, that folded and then you engaged in a business of providing labour for the chicken processing industry.

18As I say many of these businesses do not seem to have been terribly successful, and it seems that the debt with which you were saddled, both the cash debt to the members of the Vietnamese community and the other debts that you incurred in the late 1990s and early 2000s have been a millstone around your neck.   They do, I accept, provide a context in which your transgressions in relation to the Bankruptcy Act may be better understood - not excused, but at least better understood.   I have no doubt that much of your motivation has been the provision for your family and assisting them to get on in the world and to pursue their educational and business interests. 

19As your counsel put it, though, by 2005 you seemed always to be chasing your tail and that even now you owe, as I understand it, a few hundred thousand dollars to your Vietnamese community investors.   Although it may well be that the heat has diminished from that quarter and that many of those have moved on with their lives and they are not pursuing you perhaps with the same vigour that they were applying in the late 1990s, early 2000s. 

20You have also, it seems, impressed others with whom you have had dealings in the period since 2000, at any rate, and your counsel relied upon a letter from Dr Sofocleous, a director of GSA Accountants, who met you when she was a lecturer at Victoria University in about 2000, as I understand it.   She was your supervisor in the preparation for your submission of the DBA thesis in which you were engaged, and it seems that you impressed her and others within that community as an ethical and honest person.  You were, according to her, highly regarded by your peers and other members of staff, hardworking and demonstrated a high level of intelligence.  She had formed the opinion that you were a family man of good character.  She added at the end of her letter, "He has confided to me that this will not happen again."  

21The other letter (Exhibit 2) which was relied upon was from your parish priest, Reverend Anh Nguyen.   He has known you for 14 years, as I understand it, regards you and your family as devout Catholics, regular attenders at Mass on the weekends and you are a leading figure in organising fundraising activities for charity in the parish as well as helping other social organisations in which you belong. 

22He says, "Mr Ho was remorseful when telling me what offences he had committed."  He goes on, "He is an honest and reliable person and each and every task I have assigned him, I strongly believe he will not commit similar offences again."

23It is curious that you did involve yourself in this offending conduct, and it seems to me that it is only explicable in terms of submitting to pressure that you felt that you were under as a result of your business investment activity, and I accept that it was in that sort of context that you engaged in this offending conduct.

24Your counsel reminded me that you had pleaded guilty to this offence and deserve the discount that arises from that, particularly since the plea was offered at the first reasonable opportunity.   You have saved the State considerable cost and the witnesses considerable inconvenience in having to give evidence at a trial.   Indeed, to some extent you assisted, I think, and co-operated with the investigation and you deserve credit for the utilitarian value of your plea of guilty and your co-operation.   Although your co-operation was not as forthcoming as it might have been at least in the early stages.

25Your counsel urged me to accept that your prospects of rehabilitation are good.  I am inclined to accept that you will not offend again.  You are 60 years of age now.  I am told that you have now given up all interest and intent in further entrepreneurial activity and that you are content to lead a quiet and honest life as an employee in your son and daughter-in-law's cake shop along with your wife and to earn a modest income from that employment.

26I take into account that you have not offended in the period since these matters came to light in September 2010, and that too is, I think, supportive of the proposition that you have good prospects of rehabilitation.

27It was submitted that you were well aware and that it is inevitable that a term of imprisonment should be imposed for these offences.   But it was urged upon me that I should impose a sentence which would enable me to make a recognisance release order under s.20(1)(b) of the Commonwealth Crimes Act and that, having regard to s.17A of the Act, I should not impose an immediate custodial sentence, but rather I should order your immediate release under such an order. 

28It was submitted that having regard to your age, it was inevitable that a term of imprisonment would bear heavily upon you.  To some extent I accept that is true, although 60 years of age is not a great age and it is not suggested that you suffer from the kind of ill health or mental issues that might weigh particularly heavily if a term of imprisonment was imposed.

29I note, as the prosecution point out, though, that there are some important principles to be considered in determining what is an appropriate sentence.   I was referred to a number of cases, a total of nine separate cases, which give some indication as to the approach of the courts in Australia to offending of this nature.   One of the passages to which my attention was drawn was in the decision of the Court of Criminal Appeal in New South Wales in the case of Paragalli v R [2006] NSW CCA 87, at paragraph 23, where the court said, dealing with the facts of that particular case:

"There were six discrete offences, each involving a deliberate flouting of the bankruptcy law of this country.  Deterrence, both general and personal, but especially general deterrence, was a significant factor in aid of maintaining the integrity of the law of bankruptcy without which there would be serious public disadvantage of various commercial, economic and social kinds.  The offences were committed at times when the applicant was at liberty on a bond following his conviction for an offence of obtaining money by deception."

30You do not have any prior convictions for an offence of dishonesty, although I do note, as I pointed out earlier, that in respect of Charges 2 and 3, they were committed during the operational period of the suspended sentence that was imposed upon you in March 2006.

31There is a public interest, I think, in maintaining the integrity of the bankruptcy laws and that passage really spells out the need for general deterrence to play its part in the sentencing process for that purpose. 

32As I have indicated, I cannot ignore some need for individual deterrence in your case, despite the conclusion that I have reached that you have good prospects of rehabilitation.  I am also bound by s.16A(1) to impose a sentence which is appropriate in all the circumstances and under s.16A(2) to take into account the various matters that appear to be relevant arising from that section, and I have already made mention to some of those.  It was drawn to my attention by your counsel.  I must also pay proper regard to facilitating your rehabilitation and not to impose a sentence that is greater than that which is required to achieve the objects of sentencing in a case such as this. 

33I thought very carefully about imposing a sentence which would permit your immediate release.   I think I would be failing in my duty if I did not impose a term which involved immediate incarceration.  I think this offending conduct is too serious, your conduct too persistent and your culpability too great for me to pass a sentence that did not involve a component of immediate incarceration.

34With all those things in mind, I am now ready to impose sentence.  Would you please stand?

35On Charge 1 of obtaining credit by fraud in bankruptcy, I convict you and sentence you to imprisonment for a period of ten months. 

36On Charge 2 of obtaining credit without disclosing your bankruptcy, I convict you and sentence you to imprisonment for ten months.

37On Charge 3 of obtaining credit by fraud in bankruptcy, I convict you and sentence you to imprisonment for eight months.

38On Charge 4 of making a false declaration, I sentence you to imprisonment for one month.

39On Charge 5 of obtaining credit by fraud and bankruptcy, I sentence you to imprisonment for a period of seven months.

40On Charge 6 of failing to disclose property as required, I convict you and sentence you to imprisonment for four months.

41I order that the sentence on Charge 1 commences today; the sentence on Charge 2 commences on 12 May of this year; the sentence on Charge 3 commences on 12 November of this year; and the sentences on Charges 4, 5 and 6 all commence on 12 February of next year. 

42By my calculations that makes a total effective sentence of 18 months' imprisonment, and I order that you be released on your own undertaking in the sum of $1000 to be of good behaviour for a period of two years after you have served a period of ten months' imprisonment.  It seems to me that that is the least sentence that I can properly give in all the circumstances of this case.

43But for your pleas of guilty, I would have sentenced you to a total effective sentence of 23 months' imprisonment and ordered your release upon recognisance in similar terms after serving a period of 13 months.

44Are there any other orders I need make, gentlemen?

45MR SCHUBERT:  No, Your Honour.

46HIS HONOUR:  Do your calculations accord with mine as to the total effective sentence?

47MR SCHUBERT:  Yes.

48HIS HONOUR:  And I have complied with the law in relation to the application of the - or the declaration of the start dates for each of the sentences.

49MR SCHUBERT:  Yes, having declared the commencement dates, yes, Your Honour.

50HIS HONOUR:  All right.  Yes, thank you.  Wait a minute.  He has got to sign his recognisance.  Sorry, he has got to sign his recognisance.  I apologise.  Mr Grace, would you check the order, please?

51MR GRACE:  Yes.

52HIS HONOUR:  And if you are comfortable with it, supervise your client in perhaps taking him through it and then signing it.

53MR GRACE:  Yes, I'll do that, Your Honour.

(Recognisance order signed.)

54HIS HONOUR:  Thank you.

55MR GRACE:  He understands the order.

56HIS HONOUR:  He does?

57MR GRACE:  Yes, he does, Your Honour.

58HIS HONOUR:  Yes, thank you, Mr Grace.  Both of you can be excused from the Bar table.  There is somebody else waiting in the wings, so ‑ ‑ ‑

59MR GRACE:  Thank you, Your Honour.

60MR SCHUBERT:  As Your Honour pleases.

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