Director of Public Prosecutions v Nguyen

[2014] VCC 1274

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00487

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUY NGUYEN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 August 2014
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2014] VCC 1274

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville	Office of Public Prosecutions
For the Accused	Mr A. Furstenberg

©The Crown in right of the State of Victoria.

This work is copyright. No part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission of the Authorised Officer.

1HER HONOUR:  Duy Hoang Nguyen, you have pleaded guilty before me to one charge of handling stolen goods, one charge of supplying identification information and one charge of obtaining property by deception.  The facts underlying your offending are as follows: 

2You came to Australia on a student visa in 2009.  Eventually, after working in some very poorly paid positions for Vietnamese restaurants in Richmond, in order to support yourself as a student, you began buying and selling electronic equipment on the internet, from which it appears you made a reasonable living for some time.  In the course of that you met the co-accused, Chris Dawn-Manuel.  You purchased a mobile telephone from him in 2010 then lost contact for about a year and got back in touch again, as a result of your buying and selling activities.  It is understood that those activities that you were undertaking at the time were perfectly legal. 

3During 2012 and 2013 Dawn-Manuel established an identity fraud operation where he got information, including Optus mobile phone application contacts containing information such as name, address, employment details and contact numbers, of applicants.  He used the information to apply for credit cards online, by including in the credit card applications accurate details of the 'applicants', that is their addresses, dates of birth, employment details and phone numbers, but would then create a fictitious email address using the 'applicant's' name and buying a pre-paid SIM card, registering the 'applicant's' details of the service provider and putting this telephone number in the credit card application.

4Dawn-Manuel obtained the postal addresses which were put in the credit card applications by searching realestate.com and similar websites and locating vacant rental properties, which were then put down as the address, and from which he retrieved the credit card once it was sent.  If an application was approved Dawn-Manuel would be notified by the bank, via the prepaid mobile telephone number he'd attached to the institution, and the bank would then post the credit card and pin number separately to the postal address at the vacant rental property Dawn-Manuel had nominated and he would attend those premises to collect the credit cards.  In this way he obtained a large number of credit cards, giving him access to several hundred thousand dollars' worth of credit. 

5You began to purchase Apple products from Dawn-Manuel at prices which were below retail value.  This was done, you believed, legitimately.  Then in March 2013 he offered to sell you Apple products at a lower percentage of the retail value (it later transpired, of course, that these were products he has buying with his false credit cards) if you would make fraudulent drivers licences for him, and he taught you how to do this in March 2013.  You accepted this offer and began making fraudulent licences for him, Dawn-Manuel sending you an SMS message with personal details including names, addresses, licence numbers and dates of birth.  And you then making the drivers licence with those details. 

6On occasion you would make multiple copies of the same licence and you made approximately 100 fraudulent drivers licences at Dawn-Manuel's request.  You purchased the required equipment, including a laptop printer and a printer with a tray to allow printing on plastic cards, and bought plastic cards from a US based website, which had saved images of Northern Territory drivers licences which could be modified.  You made both Northern Territory and Victorian drivers licences.  These actions underlie Charge 2 on the indictment, supply identification information. 

7Dawn-Manuel used the fraudulent credit cards and licences to buy items from retail stores and recruited other people as shoppers.  He would then sell some of the items, which were purchased with the fraudulent credit cards, to you for cash.  You were looking for a wholesalers who would buy goods in large quantities and you commenced selling Apple products purchased by Dawn-Manuel, originally using the fraudulent identification and then on-sold to you, to a contact of Dawn-Manuel's.  You started doing this for prices below value.  The name of the purchaser was Dissanyaka, D-i-s-s-a-n y-a-k-a. 

8The first transaction involved Dissanyaka travelling to collect the products from you but thereafter you would drop the products at his premises.  Dissanyaka would usually pay for the items with cash and you provided him with the original purchase receipts of the items bought.  In total you sold Dissanyaka 30 MacBook computers, 30 IPhone phones and several IPads.  These actions underlie Charge 3 on the indictment, obtaining property by deception. 

9On 18 September 2013 police searched your premises at which time you were at Tullamarine Airport waiting to board a flight to Vietnam.  However, you were arrested there and brought back.  Inside your premises police found 44 Optus mobile phone contracts in the name of assorted people, along with other equipment which was used by you in making up the false items.  The telephone contracts were identified as predominantly from Optus channel partner Gigaforce, which sells Optus products and services. 

10These contracts were given to you by Dawn-Manuel, he requesting that you type all the information into a spreadsheet so that he had that information accessible.  Your possession of these contracts, on behalf of Dawn-Manuel, knowing or believing they had been stolen by Dawn-Manuel, underlie Charge 1 on the indictment; handling stolen goods. 

11Following your arrest, you were interviewed by police and you made significant admissions, telling police about the price of the Apple products you purchased from Dawn-Manuel being reduced once you started making the fraudulent licences.  You told police Dawn-Manuel would send you the list of names and which name to put on the fraudulent licence.  And that he would then send the list of names and photos to you via a phone message.  You told police you would pay Dawn-Manuel for the Apple products with cash and that the reason that you made the fraudulent licence was "I was blinded by money...and at this moment it is not worth it". 

12You told police that you believe that during 2013 you made more than $10,000 from selling the items you purchased from Dawn-Manuel.  You also provided police with two statements detailing Dawn-Manuel's activities and you gave a commitment to give evidence against him, turning up at Dawn-Manuel's committal hearing which, however, resolved and Mr Dawn-Manuel entered a plea of guilty. 

13A number of co-accused were charged in relation to the fraudulent activities of Dawn-Manuel.  One of them pleaded guilty to 20 charges of obtaining property by deception, three charges of attempting to obtain property by deception and one charge of dealing with the proceeds of crime, and was dealt with in the Magistrates' Court and placed on a 12 month Community Corrections Order.  Another co-accused pleaded guilty to 12 charges of obtaining property by deception, attempt to obtain property by deception and going equipped to steal, the factual basis of her plea being that she was deceived by Dawn-Manuel.  She and the other co-accused I have mentioned both also gave undertakings to assist the prosecution and give evidence against Dawn-Manuel. 

14The final two co-accused were dealt with for two charges of obtaining property by deception and a charge of possessing proceeds of crime, handling stolen goods and possessing identification information.  Both gave undertakings to the court to assist the prosecution and give evidence if required, and were dealt with by way of fines, without conviction. 

15The maximum penalty for obtaining financial advantage by deception is ten years' imprisonment.  The maximum penalty for supplying identification information is five years' imprisonment.  The maximum penalty for handling stolen goods is 15 years' imprisonment.  I now turn to your personal circumstances.

16You were 23 at the time of this offending and are now 24.  You came, as I said, to Australia on a student visa in 2009.  You were born in Vietnam in Bien Huah City, where your father taught mathematics and your mother is an accountant.  You have one younger brother.  You were recognised as a gifted student during your education in Vietnam, receiving educational awards and finishing high school amongst the top three students in the province in mathematics.  You began tertiary education in Vietnam at the University of Technology in Ho Chi Minh City, where you studied for one and a half years before coming to Australia.

17Your family sold some assets in Vietnam to pay for your tuition fees here.  You completed a Bachelor of Information Systems at Swinburne University.  The family, however, did not have enough funds to pay all your living expenses and so you had to work part-time jobs here and began working as a waiter in 2009 at a Richmond Vietnamese restaurant, where you were paid about $4 an hour which was later increased to $7 an hour but your first month's wages were held by your employer as a bond, which was never repaid to you when you left there after nine months. 

18In 2010 you worked in a second job at a café at the rate of $10 per hour but unsurprisingly were still unable to make ends meet.  You then discovered the internet buying and selling site Gumtree and began buying and selling electronic goods for profits, and you would sometimes buy broken or damaged goods, fix them and also sell those at a profit.  It was whilst you were trading on Gumtree that you met Dawn-Manuel.  The motivation for your offending was to pay tuition and for your daily living costs.  But it appears that you were making a fair amount of money and, as you frankly said to police, became blinded by the money that you were able to make from this dishonest enterprise. 

19It is quite clear, as I commented during the plea, that at the time you became involved in this dishonest enterprise of Dawn-Manuel's, you are no longer in the dire financial position that you had been in when you were working in, and being exploited by, restaurant owners in Richmond.  And I do accept that greed was part of the reason, as you told police, that you became involved as you did. 

20Ultimately, Dawn-Manuel pleaded guilty at committal without witnesses being called and it was conceded by the prosecution that the very detailed information you supplied to police was extremely valuable, and may well have been part of persuading Mr Dawn-Manuel to plead guilty as he did.  It is also conceded that you pleaded guilty at the first available opportunity.  To your credit you have continued your studies and have completed your undergraduate degree and have just very recently commenced an MBA at Swinburne University. 

21You live in Brunswick in rented accommodation with your girlfriend, who supplied a character reference to this court.  Your family have no knowledge of the offending in which you have been involved.  As your counsel informed me, you are too ashamed to tell them.  Your girlfriend, Anh Trin, wrote an impressive reference, in that she stated she'd known you for ten years, that you have been in a relationship for seven years, she being a student in Australia at RMIT studying a Bachelor of Engineering. 

22She said there had been numerous disagreements between you, such that your relationship ended and she tried to commit suicide.  She described you as a compassionate person who helps others and her reference in that regard was supported by a second reference from a friend, Anh Thi Ngo, a network and system engineer who has known you since the time that the two of you met at Swinburne University in 2009.  The two of you have maintained contact, as you are regular members at the Kew Baptist Church's sports club and play together on a weekly basis. 

23Mr Ngo described you as a generous person who picks up and drops off team members, that you regularly assist others and he describes your offending as being out of character.  Both he and your girlfriend, Ms Trinh, described the stress and remorse that you have felt since being arrested in relation to this offending, which I note is the first time you have ever been in trouble with the law.  I accept that you are remorseful, both because of your early plea of guilty and because of your extremely frank interviews with police, the very valuable information you supplied to them, and because you demonstrated your bona fides by turning up to court when required to give evidence against Dawn-Manuel. 

24The prosecution submission was that I should deal with you by way of a sentence of imprisonment to be immediately served.  Ordinarily, this is the expected response by a court to this type of offending.  It is extremely serious to engage in producing false identification so that other people's moneys, other people's credit, other people's bank accounts, can be accessed. 

25I received a victim impact statement from a person who had $20,000 removed from their bank account, by fraudulent use of his credit card by Mr Dawn-Manuel.  That person detailed the enormous anxiety he experienced, firstly in discovering that his confidential, financial information and personal bank accounts had been breached and plundered.  He spoke of the enormous sense of distrust he has experienced ever since.  He detailed the anxiety that he has experienced, as the bank continued to press him for money which he could not afford to repay, even though it had knowledge that the debt was in fact not his. 

26This is a most unsurprising response, to know that your finances are available to be plundered and stolen as Mr Dawn-Manuel did, and this was an enterprise in which you assisted and enabled him to do.  To carry out such criminal acts is to strike at the normal person in the community's sense of security about the banking system which effects everyone.  The sorts of criminal activity you were involved in effected people who could ill afford to lose the moneys stolen from them, essentially by Dawn-Manuel.  It was thoughtless, damaging offending.  The courts are bound to protect the banking system and to punish persons who seek to exploit it, who seek to essentially steal from other people on a grand scale, in a very stern manner. 

27However, as I have said, I am satisfied that you are remorseful for your offending and I note that you have no prior convictions, although there is one small matter yet to be determined in the Magistrates' Court, relating to you failing to declare batteries were included in a package of electronic goods you were sending overseas.  Otherwise you have gone on to continue your studies and I accept that you are a gifted young man with a bright future ahead of him, who however needs to take away with him a great sense of shame about what you have done.  Not just because what you did was dishonest but that because you were exploiting innocent people in the community, causing them enormous stress, and that you have caused a great deal of damage to other people's lives. 

28I am not satisfied, however, that sentencing you to a term of imprisonment is the only sentence available to me.  I am satisfied you have good prospects of rehabilitation and I do accept that on balance it is unlikely that the courts will see you before them again.  Certainly I am prepared to give you an opportunity, Mr Nguyen, and to that end I have had you assessed for suitability for a Community Corrections Order, and you have been found to be suitable.  Again however, and you really need to think about this, your actions were callous and selfish and you have done, as I have said, a great deal of damage.  The courts would not tolerate any repeat offending by you.  If you were to appear again before a court on any charge of dishonesty you could confidently expect to be sent to gaol. 

29You have been found suitable for placement on a Community Corrections Order.  I note also that you were not the principle architect of this deceptive scheme, although you were an assistant in it.  I do accept ordinarily you would be an honest young man but you have strayed very far from the path, and you are quite right I am sure, in realising that your family would be devastated and ashamed were they ever to discover the dishonest way in which you have betrayed their trust, and betrayed the trust of the Australian community which granted you a visa to study here.

30In any event, I propose placing you on a Community Corrections Order.  Can you stand up please sir?  I can only place you on a Community Corrections Order if you consent.  The order will last for two years.  The core conditions of an order are that whilst you are on the order you may not commit any offence punishable by imprisonment, either inside or outside Victoria.  If you are you will be brought back to me on a breach and I will re-sentence you on this offending.  And I can assure you that if you offend again in the next two years, and I see you back in front of me on a breach of this order, I will not hesitate to gaol you.  You get one chance and one chance only to redeem yourself. 

31Secondly, you must report to the Community Corrections Office within two days of being placed on this order.  That is by Wednesday.  Whilst on the order you must receive visits from, and attend upon, the Office of Corrections.  You must inform the Office of Corrections of any change of address or employment within 48 hours of that change.  You must obey all lawful instructions of the Community Corrections Officer and you may not leave Victoria without the permission of the Community Corrections Office.  I am going to order there be a special condition that you undertake 300 hours of unpaid community work over the next two years.  Are you prepared to be placed on this order? 

32PRISONER:  Yes I am. 

33HER HONOUR:  Thank you.  You can have a seat, we will prepare the appropriate documentation.  Thank you. 

34MS SAVILLE:  Your Honour, there's also the forfeiture orders.

35HER HONOUR:  Yes, I'll sign those. 

36MS SAVILLE:  And there's an order for 464ZF.

37HER HONOUR:  Yes, I'll order that. 

38MR FURSTENBERG:  It's not by consent, Your Honour, in relation to the 464ZF.

39HER HONOUR:  No. 

40MR FURSTENBERG:  Given his age, his subservient role in the offending and Your Honour's findings as to the prospects of his rehabilitation and his antecedence, in my respectful submission an order is not warranted in these circumstances. 

41HER HONOUR:  Ordinarily I would agree with you.  It's not an order that I make particularly lightly, or indeed automatically, but it does seem to me that the seriousness of the offending does warrant the making of a s.464ZF application.  Can you stand up please, Mr Nguyen?  I am ordering that police take a - this is a custodial.  I need a non-custodial.

42MS SAVILLE:  My apologies, Your Honour.  I'll have another one drafted. 

43HER HONOUR:  All right.  There will be an order.  I'm going to make an order that you attend upon police and supply them with a saliva sample for the database.  They will just do a swab of your mouth so that they've got a DNA sample, and I'm doing that because that's how serious that I regard your offending.  You can have a seat, sir. 

44Forfeiture order?  I've only got two copies of that.

45MS SAVILLE:  My apologies, Your Honour.  I gave one to my friend.

46HER HONOUR:  That's all right.  Those are the references which can go back and here's the original bank statement.  I'll just get you to sign this, thank you. 

47MR FURSTENBERG:  In light of Your Honour's finding I assume there's no point making any submissions about conviction or no conviction?

48HER HONOUR:  Yes.  You can have a go, Mr Furstenberg.

49MR FURSTENBERG:  The real issue for him, Your Honour, ultimately of course at the end of two years he's going to have to apply, and presumably continue to apply, to have his visa renewed.  In the circumstances without conviction, this position would place him in better stead.

50HER HONOUR:  It might.  The trouble is he's made too many of these licences.  He made 100 of them.  All right?  He made about $10,000 and it was a continuing course of offending conduct.  He's really lucky not to have gone to gaol, I think.  I just don't see in the circumstances how I could possibly allow this.  Again, it's just the seriousness of the offending.  If it had been a little bit less protracted and involved a little bit less criminality I would have considered it but I just think he's out of the ball park for that one.  But fair enough and I was expecting that you would make the application.  I have given it some consideration overnight.

51MR FURSTENBURG:  As Your Honour pleases.

52HER HONOUR:  Thank you very much.  You may have done quite a bit of damage to your future too, Mr Nguyen.  This is going to be a nasty lesson for you down the line.  You want to work in areas which will undoubtedly involve corporate employers and now you've made it that much harder on yourself, I'm afraid.  Thank you very much.

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