Director of Public Prosecutions v Kim
[2014] VCC 171
•3 March 2014
fco
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02239
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NGA NGOC KIM |
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JUDGE: | His Honour Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2014 | |
DATE OF SENTENCE: | 3 March 2014 | |
CASE MAY BE CITED AS: | DPP v KIM | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 171 | |
REASONS FOR SENTENCE
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Catchwords: Operation Squid – Obtaining financial advantage by deception – lack of prior convictions – mortgage
Sentence: Convicted and fined $6,000.00
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Mr M. Gleeson | Michael J Gleeson & Associates |
HIS HONOUR:
1 Nga Ngoc Kim, 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 on 14 October 2011. 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 Ms Kim, your offending was in relation to a short form loan application seeking $415,000.00 for the purchase of a property in Essendon. The application form signed on 15 August 2011 declared net monthly income of $4,624.32 from a company, it was discovered, had been deregistered and you had never worked for. In fact, you were in receipt of Centrelink payments. The assets declaration of $241,645.00 was also false. You played no part in the preparation of the false payslip prepared to support the application 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 advanced $415,000.00 by Suncorp Metway and purchased the property. You were arrested on 7 March 2013 and gave a ‘no comment’ record of interview. A committal was held and at an initial directions hearing in this court on 26 November 2013 the matter was listed for trial in February 2015. The Court was notified of your intention to plead guilty on 7 February 2014.
6 By way of personal background, you are now aged 58 years and were born in Vietnam. You have five siblings and your father was a soldier. You left school at the age of 18 and commenced work in a shop before marrying. You fled Vietnam by boat in 1991, leaving your two teenage children with your husband from whom you had separated You resettled as a refugee in Australia following four years in a refugee camp in the Philippines. You have a solid employment history in Australia working in factories, on farms and in restaurants. Your son and daughter moved to Australia in 1997 and resided with you. You purchased the Essendon property in 2011 with the assistance of relatives of your former husband as a way of providing security for your two children.
7 A letter from your treating psychologist, Exhibit 1, was tendered on your behalf by Mr Gleeson, who appeared for you. The letter from Ms Sandra Nguyen stated that you have attended counselling since 2008 and suffer from anxiety and depression as well as ongoing health problems. Ms Nguyen noted that you have been compliant with counselling and present as honest and open.
8 On your behalf, Mr Gleeson submitted that I take into account the following matters by way of mitigation:
1) That you are 58 years of age with no prior convictions, demonstrating that you have been of previous good character;
2) That the mortgage continues to be serviced and there has been no financial loss suffered by Suncorp Metway;
3) That you have had a difficult past, having to flee Vietnam and resettle in a new country, initially without your children;
4) That your plea of guilty has utilitarian benefit and demonstrates remorse;
5) That you speak limited English and placed your trust in Huynh, as the mortgage broker, thereby your culpability for your offending is reduced;
6) That you continue to seek treatment for anxiety and depression and your prospects of rehabilitation are high.
9 Mr Gleeson submitted that you were in a position to pay a fine if you were given time to pay. He conceded that the recording of a conviction was appropriate in the circumstances. He also noted that cross examination at committal was limited and there had been discussions in relation to resolution of the matter at committal. He said that the primary barrier to resolution at that point was automatic forfeiture of the property and as soon as that issue had been resolved, the matter was booked in for plea.
10 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.
11 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.
12 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 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.
13 I take into account your plea of guilty. Although not made at the earliest opportunity, as you ran a contested committal, it still 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 have favourable prospects of rehabilitation.
14 For these reasons, I am satisfied that your offending does not warrant a custodial sentence and I propose to impose a monetary penalty.
15 Ms Kim, would you please stand. On the charge of obtaining financial advantage by deception, you are convicted and fined $6,000.00. I grant a stay of six months for payment of the fine.
16 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 four months imprisonment.
17 HIS HONOUR: Are there any other orders required?
18 MR DEVLIN: Your Honour, the trial date of 2 February 2015 and final directions
19 HIS HONOUR: Yes. I vacate the trial date and final directions hearing date now.
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