Director of Public Prosecutions v Mai, Thi Thuy Huong

[2014] VCC 827

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-02247

DIRECTOR OF PUBLIC PROSECUTIONS

v

Thi Thuy Huong MAI

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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 MAI, Thi Thuy Huong
MEDIUM NEUTRAL CITATION:	[2014] VCC 827

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 S Tovey	Galbally & O’Bryan

HIS HONOUR:

1       Thi Thuy Huong Mai, 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 26 July 2010 and 15 September 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       Thi Thuy Huong Mai, your offending was in relation to an ANZ online supporting document kit loan application signed by you to purchase a residential property in Braybrook for you to live in.  The application form signed on 26 July 2010 declared a net monthly income of $4,449.00 from a company, it was discovered, was deregistered in 2009.  You played no part in the preparation of the false payslips that supported your application, however you signed the contents of the application as true and correct and it was then introduced by Huynh to the ANZ bank.  You were subsequently loaned $360,000.00 and purchased a property.  You were arrested and interviewed on 28 February 2013 and indicated an intention to plead guilty on 14 March 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 38 years.  Mr Tovey, who appeared on your behalf, provided a written outline of submissions, Exhibit 1, as well as a bundle of references and a certificate, Exhibit 2.  I was told that your motivation for engaging in this offending was to move from your pitiful accommodation conditions to your own house and you were taken in by the offer of the broker in the local Vietnamese newspaper.  You have obtained qualifications in aged care and intend to work in the area full time in the future. You have sold the house to your brother-in-law as you could not keep up with the mortgage repayments.

7       On your behalf, Mr Tovey submitted that 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)      That your offending was not a particularly serious example of this offence as it was constrained to one instance and no loss was suffered by the bank;

4)      That there has been a significant delay between the offending and your being charged; and

5)      That you have excellent prospects for rehabilitation.

8       Mr Tovey submitted that a fine without conviction was the appropriate penalty in the circumstances.  He said that the recording of a conviction would interfere with the possibility of you obtaining full time work in the future and that, despite the need to disclose the plea of guilty to an employer, imposing a sentence without conviction would be an accurate reflection of your culpability in this offending.

9       Mr Devlin conceded that a fine was appropriate but that the seriousness of the offending, and the need for general deterrence, warranted the recording of a conviction.

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 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.

13      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.  However, I cannot accept your counsel’s submission that a penalty without conviction is appropriate in these circumstances.  Firstly, there is no evidence that the recording of a conviction as opposed to the finding of guilt will impact more adversely on your economic or employment prospects.  Secondly, although the bank suffered no loss, as I have previously stated, offending of this type must be denounced by the courts.  The additional punishment of having a conviction recorded is called for in your case.

14      On the charge of obtaining a financial advantage by deception, you are convicted and fined $6,000.00.  I order that the fine be paid by instalments of $200.00 per month, with the first payment due on or before 10 July 2014.

15 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 six months’ imprisonment.

16      Thank you, you are excused and may leave the dock.

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