Director of Public Prosecutions v Huynh, Jenny

[2014] VCC 829

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-01739

DIRECTOR OF PUBLIC PROSECUTIONS

v

Jenny HUYNH

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JUDGE:	His Honour Chief Judge Rozenes
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2014
DATE OF SENTENCE:	10 June 2014
CASE MAY BE CITED AS:	DPP v HUYNH, Jenny
MEDIUM NEUTRAL CITATION:	[2014] VCC 829

REASONS FOR SENTENCE
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Catchwords:             CRIMINAL LAW – Operation Squid – Obtaining financial advantage by deception – lack of prior convictions – mortgage

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Devlin	Office of Public Prosecutions
For the Accused	Mr A Lewin	Emma Turnbull Lawyers

HIS HONOUR:

1       Jenny Huynh, 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 13 July 2010 and 27 August 2010.  You have no prior convictions.

2       You are one of a number of accused before this court as part of Operation Squid.  Your co-accused are Kim Huynh and Tu Cam Thai who have pleaded guilty to a number of offences.  You are not a co-accused with the others in any real sense beyond the fact that you were apprehended for similar offending as part of the operation.

3       The facts of the case were opened by Mr Devlin, who appeared to prosecute, and are contained in the Summary of Prosecution Opening, Exhibit A.

4       In brief summary, Operation Squid was an investigation into mortgage loans fraudulently obtained through St Andrews Mortgage Solutions using false or misleading information.  The director and mortgage broker of St Andrews Mortgage Solutions, Kim Huynh, and her assistant broker, Tu Cam Thai, prepared false documents and/or made false representations on application forms to enable customers to obtain loans, which they would otherwise have been ineligible for.  In some cases, employment income was overstated whilst in others the clients had no income other than government assistance payments.  Huynh had arrangements 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 value of a client’s assets was also often inflated.  For each loan she facilitated, Huynh received an upfront fee and trailing commission from the lender.  She also received fees from the loan applicants.  Operation Squid uncovered the deception by cross referencing home loan applications with documentation from the Australian Tax Office, Centrelink and financial institutions. 

5       Jenny Huynh, your offending was in relation to a short form loan application signed by both yourself and your husband in order to purchase a residential property in Kings Park for you to live in.  The application form signed on 13 July 2010 declared gross yearly income of $39,936.00 from a company, it was discovered, you had never worked for.  The application was supported by a false pay slip.  It also listed the assets jointly held by you and your husband as $716,000.00, an amount far beyond the $17,500.00 in personal effects you had declared to Centrelink.  You played no part in the preparation of the false payslips, however you signed the contents of the application as true and correct and it was then introduced by Huynh to Suncorp Metway.  You were subsequently loaned $296,000.00 and purchased a property.  You were arrested and interviewed on 1 March 2013 and  indicated an intention to plead guilty on 15 April 2014.  You have continued to make payments on the loan and confiscation proceedings have been withdrawn by the Office of Public Prosecutions, meaning you will not face automatic forfeiture of the property as a result of your plea of guilty for this offending.

6       By way of personal background, you are now aged 32 years.  Mr Lewin, who appeared for you, tendered written submissions, Exhibit 1, and a bundle of five character references, Exhibit 2. 

7       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)      You signed the mortgage documents at the instruction of your husband, an accountant, without meeting the broker and, therefore, are at the lower end in terms of your culpability;

4)      That you have excellent prospects for rehabilitation.

8       Mr Lewin submitted that a fine without conviction was the appropriate penalty in the circumstances.  He submitted that, given that I had previously sentenced your husband for the same offending, I ought to impose a lesser fine on you as to impose a fine in the same amount would cause great hardship to you and your family.  He further submitted that the fine should be without conviction to reflect your reduced moral culpability.

9       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.

10      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.

11      Whilst there was always 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.  In fact, it is the case that the loan remains on foot and is being adequately serviced by you and your family.  The bank seems content to continue in its relationship with you.

12      I take into account your 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 and for these reasons, I am satisfied that your offending does not warrant a custodial sentence and I propose to impose a monetary penalty.  I agree with the submissions of your counsel that you should avoid a conviction, given your role in the offending and that the fact that your husband, an accountant, asked you to sign the mortgage application forms.

13      On the charge of obtaining financial advantage by deception, you are fined $2,000.00 without conviction.  I grant a stay of 6 months on the payment of the fine.  I note that I previously dealt with your husband, Kevin Khanh Nguyen, on 14 February 2014 and imposed a significantly higher financial penalty on him.

14 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 two months’ imprisonment. I am unable to say whether or not I would have suspended that sentence.

15      Thank you, you are excused.

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