Director of Public Prosecutions v Mongkhoun

[2020] VCC 1991

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 02-01047

DIRECTOR OF PUBLIC PROSECUTIONS

v

ONG MONGKHOUN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October; 4 December 2020
DATE OF SENTENCE:	9 December 2020
CASE MAY BE CITED AS:	DPP v Mongkhoun
MEDIUM NEUTRAL CITATION:	[2020] VCC 1991

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Sentence – Plea of guilty – Obtaining financial advantage by deception – Attempt to obtain a financial advantage by deception – Using false documents to obtain finance – Significant delay of 20 years – Offender absconded – Serious example of the offence – Fully rehabilitated – Supervision in the community not necessary -

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited: R v Renzella [1997] 2 VR 88

Sentence: Total effective sentence of 1 year and 9 months imprisonment – s.6AAA declaration – 3 years and 6 months with a non-parole period of 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Yuan (Sentence) Mr D. Brown (Plea)	Office of Public Prosecutions
For the Accused	Mr R. de Kretser	James Dowsley & Associates

HIS HONOUR: 

1Ong Mongkhoun, you have pleaded guilty to the following charges:

·six charges of obtaining a financial advantage by deception contrary to s.82 of the Crimes Act1958 (Vic). The maximum penalty for that offence is 10 years' imprisonment; and

·three charges of attempting to obtain a financial advantage by deception contrary to s.82 and s.321M of the Crimes Act1958 (Vic). The maximum penalty for that offence is five years' imprisonment.

2By operation of the continuing criminal enterprise provisions of the Sentencing Act1991 (Vic), Charges 3,4,5,6,7 and 8 on the presentment, the charges of obtaining a financial advantage by deception are continuing criminal enterprise offences and the maximum penalty is therefore 20 years' imprisonment in relation to each of those charges.

3The offending you have pleaded guilty to, took place between 22 October 1998 and 23 March 2000.  That is over 20 years ago. 

4On 14 March 2001, you were arrested and charged with this offending.  On 27 May 2002, you were committed to stand trial in this Court and then failed to appear at a case management conference on 13 September 2002. 

5At that stage, the matter, which comprised many more charges than are now before the Court, was proceeding as a contested trial. 

6Following your arrest in New South Wales, and extradition to Victoria on 12 April 2019, the matter was placed in the long trials list and was the subject of trial case management until it resolved formally on 28 August 2020. 

7It is therefore plain that your plea of guilty is at a late stage in the proceedings, and of course, you absconded while on bail for these offences, but I nevertheless accept that it is a high-value plea of guilty as it has spared the community what would have been a particularly complex criminal trial. 

8It is also evidence of some remorse now for your offending and I have taken your plea into account in your favour in mitigation of sentence. 

9You have admitted a limited criminal history which is now many years ago.  However, it is notable that on 23 December 1998 you were sentenced to be imprisoned by the Australian Capital Territory Supreme Court, such sentence being the subject of a recognisance release order without you being imprisoned for two charges of obtaining a financial advantage by deception. 

10It is accepted by the prosecution that you have not reoffended since 2000 when the last of the offences before this Court was committed. 

11Whilst you absconded, and that is the reason that the offences are now before the court 20 years after they were committed, delay is, nevertheless, a relevant sentencing consideration in this case.

12The prosecution opening was tendered in evidence and your offending may be summarised as follows –

13Between the dates charged on the presentment, you and your brother were engaged in property development projects.  You jointly and separately used false documents to obtain finance to purchase homes as part of your business and also to purchase luxury vehicles. 

14Charge 1 concerns your use of false documentation in an attempt to obtain a line of credit for $5000 from the Bendigo Bank.  The funds were not obtained by you as the bank determined that the documents relied on were false. 

15Charge 2 concerns and attempt by you to obtain a home loan from the Colonial Bank in the sum of $320,000 using false documents.  The funds were not obtained as the bank determined that the documents relied upon were false.

16Charge 3 concerns a home loan in the sum of $262,637 obtained by Troy McClelland, a co-offender, using false documents.  You and your brother assisted McClelland in this offence and you obtained $29,492.94 from this offending. 

17Charge 4 concerns a home loan in the sum of $239,200 obtained from the Commonwealth Bank in relation to the purchase of a home in Footscray using false documents.  $29,600 of the funds were paid into the business account you operated with your brother.  No repayments were made on the loan and following repossession of the home, the Commonwealth Bank suffered a loss of $69,384.77 on the sale.

18Charge 5 concerns a loan of $126,628.70, obtained by your brother with your assistance, to purchase a BMW 5 Series using false documents.  You both used the vehicle until it was damaged in a collision on 14 February 2000 and effectively abandoned by you.  BMW lost the sum of $104,404.

19Charge 6 concerns a home loan in the sum of $210,000 obtained by your brother with your assistance, from the ANZ Bank using false documents, to purchase a house in West Footscray.  No repayments were made on the loan and the bank suffered a loss in the sum of $83,000.

20Charge 7 concerns you, with the assistance of your brother, obtaining a loan in the sum of $108,350 to purchase a Jaguar S-Type V6 using false documents.  No payments were made on the loan and the vehicle was repossessed after you drove it for four months. 

21Charge 8 concerns you obtaining a loan in the sum of $105,000 to purchase a Mercedes Benz using false documents.  One payment was made on the loan and the vehicle was subsequently recovered after your abandoned it in Sunshine. 

22Charge 9 concerns an attempt by you to obtain two home loans from the Bank of Melbourne in the sums of $224,000 and $144,000 using false documents.  No funds were obtained by you as the bank determined that the documents relied upon were false. 

23You were arrested on 14 March 2001 and made no comment to questions put to you by investigating police.  Your offending was systematic and planned, and dishonestly intended to support the business you carried on with your brother and to portray a false image of success by the use of luxury vehicles. 

24Whilst the actual funds obtained personally by you is limited, I am nevertheless satisfied that these are serious examples of the offences that you have pleaded guilty to. 

25The principles applicable to this offending are well established and the financial system and the community more generally, must be protected from offending that destabilises that system.  The sentence must be calculated to deter others from offending in this manner and you must be punished for your dishonest greed. 

26I now turn to your personal circumstances. 

27You were born in Laos on 13 July 1966, and are now aged 54.  You moved to France when you were nine years old with your family and then to Australia four years later.  The family lived in Sydney and you completed your HSC at Liverpool High School.  You studied Architecture but did not complete that, before moving to Melbourne in 1998.

28You are the youngest of nine children and I accept that you are close to your 92 year old mother who resides in Aged Care in Canberra, and to your sister who is now aged 60, in poor health, and also residing in Canberra.  You intend to return to Canberra on your release from custody, to care for your mother and for your sister. 

29You have never been married and you have no children.  Your brother, Keo Phaytoun Vongsakham is three years older than you and I accept that he played a more prominent role in the offending that you each engaged in. 

30Unlike you, he has continued to offend and is currently undergoing a sentence of imprisonment in New South Wales for offences of dishonesty in relation to fraudulent loan applications. 

31Following your absconding on bail, a matter now of deep regret to you, you moved to Sydney and worked in restaurants.  You did not reoffend and it would appear that you led a stable and hard-working life.

32I accept that you are now fully rehabilitated and there is little prospect of you reoffending again.  The delay in your case is of course due to you absconding and so the significance of your rehabilitation is to be moderated for that reason. 

33It was submitted by the prosecution that there is no reason for you to be the subject of supervision in the community, and I am firmly of that view too.

34I do not accept that the purposes for which this sentence is to be imposed, would be met by the imposition of a Community Correction Order, in conjunction with a term of imprisonment as was submitted by your counsel. 

35In arriving at an appropriate proportionate sentence in  your case, I have also had regard to what is termed, 'Renzella time.' (See R v Renzella [1997] 2 VR 88.)

36That is the 114 days spent by you on remand in New South Wales, between 22 December 2018 and 12 April 2019 in relation to offences that were not proceeded with. 

37Furthermore, you have been in custody during the COVID-19 pandemic restrictions which have increased the hardship of imprisonment upon you.  You are not a young man and you suffer from a degenerative spinal condition that causes you constant pain in your back, neck and right leg. 

38Despite this, you have worked in prison and it would appear that you are a model prisoner, now responsible for the operations of the chess club at Fulham Prison. 

39Yours is an exceptional case, and I have concluded that it is appropriate for me to impose a sentence upon you that does not involve the fixing of a head sentence with a non-parole period. 

40By operation of s.11 of the Sentencing Act1991 (Vic) I am permitted to impose a term of imprisonment without fixing a non-parole period if that term is less than two years. It is, in my opinion, appropriate for you to now be released from prison or at least in the immediate future, in all the circumstances of this case.

41In the result, on the charges on the presentment, you are convicted and sentenced to the aggregate term of imprisonment of one year and nine months.

42I declare that you have served 607 days by way of pre-sentence detention, not including today. 

43But for your plea of guilty, I would have imposed a total effective sentence of imprisonment of three years and six months and fixed a non-parole period of two years and six months.  

44Are there any further orders required?

45MS YUAN:  No, Your Honour.

46MR de KRETSER:   No, Your Honour.

47HIS HONOUR:  Thank you.  Mr Mongkhoun, I am not sure what deductions will be made by the Corrections authorities by reason of your being imprisoned during the COVID-19 restrictions, but I would anticipate that you will be released from prison in the immediate future.  Thank you.

48MR de KRETSER:  As Your Honour pleases.

49MS YUAN:  As Your Honour pleases.

50HIS HONOUR:  Thank you. 

51OFFENDER:  Thank you, Your Honour. 

52HIS HONOUR:  We'll adjourn now until half past ten, tomorrow.

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