Director of Public Prosecutions v Nararjoen

[2019] VCC 1088

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00460

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARANEEN NARARJOEN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2019
DATE OF SENTENCE:	16 July 2019
CASE MAY BE CITED AS:	DPP v Nararjoen
MEDIUM NEUTRAL CITATION:	[2019] VCC 1088

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Obtain financial advantage by deception – limbs five and six of Verdins case.

Legislation Cited:  s.5(4C) Sentence Act 1991.

Cases Cited:DPP v Dang [2016] VCC 1028, DPP v Ahmad [2018] VCC 1174, DPP v Boulton [2013] VCC 972, R v Verdins [2007] VSCA 102.

Sentence:Convicted and sentenced to serve a community corrections order for a period of two years. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Farhall	Office of Public Prosecutions
For the Accused	Mr J. Westmore	Dribbin and Brown Criminal Lawyers

HIS HONOUR:

1Daraneen Nararjoen, in the County Court of Victoria at Melbourne on this day, 16 July 2019, you pleaded guilty to the following charges on Indictment No.J11699116:

Charge 1, is attempt to obtain financial advantage by deception; this charge has a maximum penalty of five years' imprisonment. 

Charge 2, is obtain financial advantage by deception, that was $36,000 personal loan; this charge has a maximum penalty of 10 years' imprisonment. 

Charge 3, obtain a financial advantage by deception, that was the credit card for $15,000; this charge has a maximum penalty of 10 years' imprisonment.

2You have no prior criminal history.  Full restitution of the money obtained by your offending was repaid in November 2018.  The dates of the offending are between 13 September 2016 and 13 October 2016.  The documents that you falsified were presented to your victim, Credit Union Australia (“CUA”), on the same day which was 13 September 2016.  You have spent no time in pre-sentence detention.

Circumstances of your offending 

3The prosecution tendered a summary of prosecution opening upon plea, dated 25 June 2019.  This was Exhibit “A” on the plea.  I will read from parts of it. 

4You have pleaded guilty to two counts of obtaining financial advantage by deception, being credit of $36,000 in the form of a personal loan, and a credit of $15,000 in the form of a credit card from Credit Union Australia.  You also pleaded guilty to attempting to obtain financial advantage by deception, being credit of $503,605.95 in the form of a mortgage from Credit Union Australia. 

5You applied for each of the financial products in September 2016.  You included false details within each application, including supplying a fabricated pay slip and a fabricated bank statement.  In reliance on these applications, Credit Union Australia funded the personal loan and the credit card.  However, the mortgage was not funded by Credit Union Australia.

6In the week before 13 September 2016,  you had attended at the Ringwood branch of the CUA, located in Eastland Shopping Centre.  You spoke to representatives of Credit Union Australia about home loan consolidation and refinancing of your existing debts. 

7Credit Union Australia offered you a package to consolidate your debts.  This package included a home loan consolidation in the amount of $503,605.95, a personal loan for the amount of $36,000, and a credit card with a credit limit of $15,000.  You commenced the application process in that store.

8On 13 September 2016, you submitted you application for the mortgage and for the credit card.  The applications were submitted by email to a representative of Credit Union Australia.  Both applications were dated 12 September 2016 and was signed by you as being true and complete, that stated that you were employed by Everglo Car Cleaning Pty Ltd as a manager and IT consultant and had a gross fortnightly income of $5,793.65, and that you stated that you had $10,000 in savings, or $10,000 in savings with St. George Bank. 

9On 27 September 2016, Credit Union Australia sent you an email containing the link to an online application for a personal loan in the sum of $36,000.  You completed that application, submitted it to Credit Union Australia. 

10In support of all three applications, you gave Credit Union Australia the documents, including the following:

(a) A document purporting to be a statement for a period 26 March 2015 to 25 August 2016 of a bank account held in your name at St. George Bank.  That was the false banks statement. 

(b) A document purporting to be a payslip of yours from Everglo Car Cleaning Pty Ltd for the period of 31 August 2016. That was the false pay slip.

11The applications were assessed by Credit Union Australia. The application for the credit card and the person loan were originally approved and funded.  As a result, you received the financial benefit of a total of $51,000, being:

(a) The $36,000 in respect of the personal loan which was credited to your account on 29 September 2016, You used that amount to pay off other loans.

(b) A credit card to the limit of $15,000, which was issued on 13 October 2016. You used that credit card to make numerous purchases. 

12The application for the home loan consolidation was not funded. 

13Credit Union Australia was unable to verify your documents concerning your employment and banking accounts.  Your credit card was cancelled and the matter was reported to police. 

14On 3 February 2018, you attended the Heidelberg police station at the request of police.  You were arrested and interviewed in respect of this offending.  In the course of the interview with police, you admitted you created the false documents to support your application to Credit Union Australia. 

The false bank statement

15The false bank statement purported to show:

(a) a closing balance, as at 25 August 2016, of $13,946.22; and

(b) a receipt of numerous payments from Everglo Car Cleaning. 

16However, the genuine bank statements were as follows:

(a) a closing balance of 44 cents, as at 25 November 2016;

(b) The highest balance between 26 March 2016 and 24 November 2016 was $400.38; and  

(c) It did not show any payments during that period from Everglo Car Cleaning.

17You admitted to police during your interview that you had created the false bank statement.  You said that you used Adobe to export a bank statement from PDF to Microsoft Word format and then used Microsoft Word to alter that document.  When asked why, you stated that, 'At the time, I was not thinking ahead, I was just thinking ‘oh, if I get a loan approved… maybe it's of benefit for me to pay less'. 

The false payslip

18The agreed evidence was as follows; the false payslip purported to be issued by Everglo Car Cleaning Pty Ltd.  It purported to show that you had an annual salary of salary of $150,635.00 and had received a gross pay of $5,793.65 for the period between 15 August 2016 and 26 August 2016. 

19However, the ASIC records show that Everglo Car Cleaning Pty Ltd was de-registered on 23 February 2015, some 18 months before the payslip was purportedly issued to you, and 19 months before you made your application to Credit Union Australia. 

20During the interview with the police, you said as follows:

(a) you told police that you had worked at Everglo Car Cleaning up till October 2017;

(b) you admitted that you created the false pay slip, you said that you received your payslips by email as a PDF document, and that you used Adobe to export PDF to Microsoft and that you had then used Microsoft to alter that document; and

(c), you told police that a the time of the applications, you had been paid $4,000 per month by Everglo Car Cleaning Pty Ltd, but you had made the pay slips show that you had been paid $4,000 per fortnight.  When asked if you did this, to make it clear that you were being paid more, that you actually said, 'Yeah, a little bit'. 

21You also told police during your interview that the company was still operating but it had started to reduce down, closing, because the owner, then your partner, was not interested in it anymore.  When asked about the ASIC record showing the company was de-registered, you said you did not know anything about it. None of that was true. 

22In any event, the full restitution of $51,000 has been paid back to Credit Union Australia.  In the final wash-up, your offending was all for nothing.  You have exposed yourself to the risk of imprisonment, with all that entails for you and your family. 

Personal circumstances 

23You are now 41 years old; at the time of your offending, you were 38.  You had no prior criminal history.  You were born in Thailand.  Your mother and two sisters still live in Thailand.  Your father died in 1988 of a heart attack. 

24You describe yourself to Ms Carla Lechner, psychologist, as, 'I'm daddy's girl'. 
Ms Lechner was of the opinion you still have unresolved grief arising from your father's premature death.  At the present time, you have little contact with your mother or sisters.  The rift seems to have developed because you have been unable to continue to financially assist your mother. 

25You were a good student, who completed high school education in Thailand.  You then completed a Bachelor of Material Science and upon graduation, you then worked for a gem company in Thailand for about a year.  In 2000, you came to Australia for the first time.  Your idea was to improve your English skills. 

26You commenced a master's degree in International Business at Deakin University.  You then returned to Burapha University in Thailand as a lecturer.  In 2012, you obtained a scholarship to return to Australia to study for a PhD in Business Management at Victoria University.  You came here with your then husband. 

27Shortly after your arrival in Australia, there was some domestic violence within the relationship and police were called. As a result of the fallout from all of that, the marriage ended.  You then commenced a separate relationship with
Mr James.  You had our first child, who is now aged seven years.  Due to the joint pressures of study, work and family duties, you ceased your PhD studies prior to completion. 

28Since your arrival in Australia, you had a good work history.  You have worked as a counsellor for a migration agent, you have worked in a Thai restaurant in a book keeper role and at an educational institution here in Victoria.

29You met your current partner, as I have said before, Darryl James, who is known as Damon James, and started working as a book keeper and an IT manager in his business, Everglo Car Cleaning Pty Ltd, and Blu Hygiene, which is a separate cleaning company. 

30Your partner, unfortunately, suffers from bipolar affective disorder.  His condition as diagnosed first in 2010, which on my calculation, was approximately some time shortly prior to your commencing your relationship.  His business ultimately failed and hence, the family finances went into a downward spiral.  On top of this problem, Mr James was required to pay considerable child and spousal support to his former wife.

31You have two children, aged seven years and one-year-old.  Your baby has been conceived and born after your offending.  Most significantly, despite your parlous financial circumstances, you have made full restitution to Credit Union Australia in November 2018. 

32You have commenced study to qualify as a book keeper in order to increase your chances of employment in the future.  Your conviction for these offences may act as a barrier to that course, but time will tell. 

33Since your detection for these offences, you have sought psychological treatment for depression.  You have been treated by Shraevani Giri, a psychotherapist. A report from Ms Giri dated 24 June 2019, which is Exhibit “3” on the plea, verifies that fact.  The report details you are on a mental health plan from your general practitioner, Dr Zahid. 

34The report also states that you are depressed and suffer from anxiety.  The pressures of looking after two young children, managing scarce family finances and the difficulties in your relationship with Mr James and the unknown future of the outcome of these proceedings have all combined to place your mental state under considerable pressure. 

35Some of these factors were place prior to your offending.  You have been receiving treatment from Ms Giri and plan to continue this treatment in the future.  This shows insight into your offending and your ongoing rehabilitation. 

36You have financial arrangements in place with your banks to reduce the pressure of repayments whilst you sell the family home.  You have a forward plan to work as a book keeper for Thai restaurateurs.  You will be able to do this work from home whilst looking after your children and partner. 

Sentencing considerations 

37The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and the denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances. 

38I am also required to balance the interest of the community in denouncing your criminal conduct, with the interest of the community in seeking to ensure, as far as possible, that you, as the offender, are rehabilited and reintegrated into society.  I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences.

39I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed they are from one another.

40In order to assist me, the learned prosecutor provided two cases from this court. The first was the case of DPP v Thi Kim Dang reported at [2016] VCC 1028, and the second, was the case of DPP v Fidaa Ahmad reported at [2018] VCC 1174.

41Both Mr Westmore and the learned prosecutor submitted that an appropriate range of sentencing included a community corrections order. 

42I am mindful of the provisions of the Sentencing Act and, in particular, s.5(4C) which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which a sentence is to be imposed. 

43I also reviewed the case of Boulton in considering if a community corrections order would be appropriate in  your case.  And as you know, I have had you assessed for community corrections order.  You have been assessed as being suitable.

44You have pleaded guilty to these charges.  The plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of the court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community.

45Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognise you are willing to facilitate the course of justice in the community in which you live. I accept that your plea of guilty to these charges indicates and demonstrates remorse on your behalf. 

46I accept that your remorse is genuine, based on you making full restitution and the statements made by you to Ms Lechner and to Ms Giri during the course of your treatment or assessment by each of them.  Your remorse is not driven by being caught for your offending, but arises from a breaking of your own standards, borne out by your previous good character, family engagement and education.

47I assess the seriousness of your offending is at the lower end of the range for this type of offending on the following bases:

(a) your offending is not to finance a flash living style or feed greed of some form for opulence or wealth;

(b) your offending was motivated by an attempt to obtain a more advantageous financial banking arrangement to consolidate a number of personal loans and credit cards, thus reducing your repayment burden;

(c) you represented the false documents on one occasion and that representation was used over three CUA products within a one month period;

(d) you have repaid the total sum of money you actually received as a result of your offending;

(e) the false documents that you created were all directly related to you. The false documents lacked the sophistication of numerous identities and numerous bank accounts which are often seen in cases like this; and

(f) your intention at all times was to repay the money borrowed, and I accept that was the case.

48There has been considerable delay between your offending in September 2016 and your plea hearing.  You were charged in June 2018.  In the period between your offending and the present, you have not re-offended.  You have sought and received mental health treatment. You have made full restitution. You have made arrangements to stabilise your financial obligations and the stress which prompted your offending in the first place.  The period of delay has seen a large part of your rehabilitation, that has been undertaken by you.  I take that delay into account when finalising your sentence. 

49I assess your prospects of rehabilitation as being good.  You have addressed the mental health and financial issues that have burdened your life.  You have developed a pathway forward for employment as a book keeper and plan to reduce you indebtedness in an orderly fashion.  You are receiving treatment for depression and anxiety. 

50I accept your counsel's submission that you have experienced considerable anguish over the uncertainty of your young children's welfare in the shadow of a risk that you will be imprisoned for these offences.  This anguish is heightened by your partner's mental health status and perhaps his reduced level of assistance in caring for your children.

51The anxiety, in this regard, has been in place since you were interviewed by the police in February 2018.  I accept that limbs 5 and 6 of Verdins case have application in your sentencing.  I accept that Ms Lechner's opinion is correct when she states that a prison sentence would weigh more heavily upon you because of your diagnosed depression and that there is a serious risk your mental state would deteriorate whilst you were in prison.  These two factors mitigate your punishment.

52The offending requires the principles of general and specific deterrence to be modified in your case.  Just punishment and community protection are best reflected in a sentence that allows you to remain in the community and to enhance your rehabilitation under the control of a community corrections order.

53In respect to Charges 1, 2 and 3, you are convicted and placed on a community corrections order for a period of two years.  The conditions of that order are as follows:

(a), that you are to be supervised;

(b), that you perform 150 hours of unpaid community work;

(c), that 50 hours of that unpaid community work can be credited if you undergo the treatment which I am going to order for you for mental health, so 50 of the 150 hours can be accredited;

(d), that you undergo mental health assessment and treatment, which you have already been undergoing but it will be under this order and finally;

(e), judicial monitoring.  Despite your counsel's submissions at the end. I am going to ask you to return here for a judicial monitoring on 17 October 2019 at 9.30 am, and I am doing that to ensure two things that being; one, that this order is in place and up and running and, two, that your mental health program is in order and up and running.

54In terms of the 464ZF, I have not heard Mr Westmore on it, but as I understand it, that is a discretion matter for these charges?

55MR FARHALL:  Yes, that is correct, Your Honour.

56HIS HONOUR:  Yes, I am not minded to make a s.464ZF application in respect to this particular offender on the basis that I held the view that mostly it was to do with violence and sexual offending and that is where it mostly comes to play, so I am not going to make an order on 464ZF.  Because I have given a CCO, I do not think I have to a s.6AAA.

57MR FARHALL:  May it please the court. 

58MR WESTMORE:  As Your Honour pleases.

59HIS HONOUR:  Yes.  Well, that is right, is it not?  Yes.  What happens now is there is preparation of this order and you have to sign - well, sorry, you read the order and if you are prepared to comply with the order, you can sign it; do you understand?  Mr Westmore will explain it to you when it is printed up.  Do you understand what I have just done?  No.  You are not going to gaol, (1); (2), you are on a community corrections order for two years.  Mr Westmore, if you would be kind enough to attend at the dock?

60MR WESTMORE:  As Your Honour pleases.

61HIS HONOUR:  Ms Nararjoen, I will get you a copy of this order in a moment.  There is just one thing I forgot to tell you, which was you have to attend at the Ringwood Correctional Community Correctional Services office, which is at Level 1, 2 Bond Street in Ringwood, it is on the order, and you have to do that within two clear working days of today, so that finalises matters here in this court.  Good luck with selling the house and organising your finances.  You look after those two children because you have come here to make them productive citizens in our country, now your country, all right?

62OFFENDER:  Thank you, thank you.

63HIS HONOUR:  So you are free step out of there. 

64MR WESTMORE:  Your Honour, just one matter.  I have just had a look at 6AAA.  Because the order is for a period of two years, you have to.

65HIS HONOUR:  I have to give one?  Yes, thanks.  In respect of - I will just finalise that, in respect of s.6AAA, which is if you did not plead guilty to these charges, but for that plea, I would have sentenced you to 18 months with a 12 months minimum.  Yes.  You do not have to worry about that.  You do not have to worry about that.  Mr Westmore will explain it to you.  Thanks counsel for your assistance in this case. 

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