Director of Public Prosecutions v Le
[2014] VCC 124
•21 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02194
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOLLY LE |
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JUDGE: | His Honour Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2014 | |
DATE OF SENTENCE: | 21 February 2014 | |
CASE MAY BE CITED AS: | DPP v LE | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 124 | |
REASONS FOR SENTENCE
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Catchwords: Operation Squid – Obtaining financial advantage by deception – lack of prior convictions – mortgage –
Sentence: Community Correction Order: 100 hours unpaid community work over 18 months
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Ms N. Kaddeche | Haines & Polites |
HIS HONOUR:
1 Dolly Le, 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 8 August 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 Le, your offending was in relation to a short form loan application signed by you in order to purchase a residential property in Deer Park. The application form signed on 17 May 2011 declared your net monthly income as $4,793.81 when in fact you were on Centrelink payments at the time. A false payslip was prepared and provided by Hunyh to accompany the application. The manager of the business, of which the application purported you worked for, gave a statement to police that the payslip was not prepared by him. You played no part in the preparation of the false payslip 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 $427,950.33 and purchased a property. You were arrested and interviewed on 4 March 2013 and pleaded guilty at committal mention on 13 August 2013. You were unable to service the mortgage and the property was sold by Suncorp Metway on 16 August 2013, Exhibit 2.
6 By way of personal background, you are now aged 22 years and have two children aged 2.5 years and 15 months. You have no contact with your biological father or the father of your two children. You were born and educated in Australia and completed Year 12 whilst working at Safeway from the age of 15 years to assist your family. After completing school you gained employment as a Croupier at Crown Casino however you have not worked since 2012. You currently live with your two children, your mother, grandmother and your brother.
7 On your behalf, Ms Kaddeche, who appeared for you, submitted that I take into account the following matters by way of mitigation:
1) That you fall to be sentenced as a young offender as you were just 19 years at the time of the offence;
2) That you have no prior convictions;
3) That you entered a plea of guilty at the earliest opportunity;
4) That you are genuinely remorseful for your offending, evidenced by comments made in your record of interview;
5) That you are a young, single mother with two young children to care for.
8 It was submitted by Ms Kaddeche on your behalf that the appropriate penalty was a Community Correction Order with unpaid community work hours. She said that you made admissions as to the falsity in your record of interview, and that you are entitled to the benefit of an early plea of guilty. Ms Kaddeche also submitted that I impose a CCO without conviction due to your young age, both at the time of the offending and now, and that you have many years ahead of you. She noted that some job opportunities may be lost by the recording of a conviction. No further details were provided.
9 In relation to your involvement in the offending, Ms Kaddeche said that you had been recruited into the arrangement by Mr Duong Do, the owner of the company your false payslip purpoted you worked for. Mr Do was a friend of yours whom you no longer associate with. Ms Kaddeche sumbmitted you were used by Mr Do in that he brought you to Hunyh and organised everything, including the desposits into your bank account. And it was Mr Do who arranged the rental of the property. You never lived in it, nor received any rental income. Mr Do was not charged. His precise role and your relationship with him has not been adequately explained. In you record of interview you said that you entered into the transaction because you simply wanted a house. This seems somewhat inconsistent with the premises then being used for rental and the proceeds being taken by Mr Do.
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 I take into account your youth. 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 and have favourable prospects of rehabilitation.
13 For these reasons I am satisfied that your offending does not warrant a custodial sentence and I do propose to impose a Community Correction Order. However, I cannot accept your counsel’s submission that a penalty without conviction is appropriate in these circumstances. You signed the loan application as true and correct in the knowledge that the information contained in it was false. The amount of the loan was substantial. You were heavily pregnant at the time and I suspect you never had the capacity to service the loan. The bank foreclosed and sustained a loss of some $40,000.00. You are fortunate that the bank is not pursuing you for the loss. As I have previously stated, offending of this type must be denounced by the courts.
14 Ms Le, would you please stand. On the charge of obtaining financial advantage by deception, I propose to release you with conviction on a Community Correction Order for a period of 18 months. As no additional program conditions were being considered, a report from Community Correctional Services was not required. The order commences today.
15 The core conditions of the order are:
(1) that you not commit whether in or outside Victoria during the period of the order, any offence punishable on conviction by imprisonment;
(2) that you report to a specified Community Correction Centre within two clear working days after the coming into force of this order, in your case that place is Sunshine Community Correctional Services at 10 Foundry Road, Sunshine, Victoria;
(3) that you report to and receive visits from a Community Corrections Officer;
(4) that you notify an officer at the specified Community Correction Centre of any change of address or employment within two clear working days after the change;
(5) that you not leave Victoria except with the permission of an officer at the specified Community Correction Centre; and
(6) that you obey all lawful instructions and directions of the Community Corrections Officer.
16 In addition, I propose to impose the condition that you undertake 100 hours of unpaid community work.
17 Do you agree to comply with the order?
18 OFFENDER: Yes, Your Honour
19 HIS HONOUR: Very well, I’ll have you step out of the dock and sign that order.
20 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 three months imprisonment. However, I am unable to say whether I would have suspended that term given your age and the fact that you have young children.
21 HIS HONOUR: Are there any further orders required?
22 MR DEVLIN: No, Your Honour.
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