Director of Public Prosecutions v Nguyen
[2014] VCC 172
•3 March 2014
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02240
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUCY NGUYEN |
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JUDGE: | His Honour Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2014 | |
DATE OF SENTENCE: | 3 March 2014 | |
CASE MAY BE CITED AS: | DPP v NGUYEN | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 172 | |
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 | Mr M. Gleeson | Michael J Gleeson & Associates |
HIS HONOUR:
1 Lucy Nguyen, 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 27 August 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 Ms Nguyen, your offending was in relation to short form loan application seeking $281,731.00 for the purchase of a property in Kurunjang. The application form signed on 26 July 2010 declared gross annual income of $60,814.26 from a company, it was discovered, had been deregistered and you had never worked for. In fact, you were in receipt of Centrelink payments. The assets declaration of $84,000.00 was also false. You played no part in the preparation of the false payslip prepared to support the application 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 advanced $281,579.51 by Suncorp Metway and purchased the property. You were arrested on 6 March 2013 but your interview with police was cut short as you became upset. A committal was held and at an initial directions hearing in this court on 26 November 2013 the matter was listed for trial in February 2015. The court was notified of your intention to plead guilty on 7 February 2014.
6 By way of personal background, you are now aged 24 years and were born in New Zealand. You emigrated to Australia with your parents when you were 10 years old and your parents separated soon after. You lived with your mother following the separation and cared for your younger siblings during periods when your mother was absent. You left home when you were around 13 years old to live with an older boyfriend, and left school at 14. You have limited reading and writing skills. You gave birth to a daughter when you were just 15 years old and have raised her substantially without assistance as a result of your former boyfriend’s drug addiction and violent behaviour. You have worked as a beauty therapist, a receptionist and a sales assistant however you are currently unemployed and looking for work. You were forced to move out of the Kurunjang home and into a cheaper property so you could use rent from the Kurunjang property to service the mortgage. You are currently in a stable relationship and raising your daughter who is now aged nine years.
7 A psychological report of Ms Helen Barnacle, dated 27 February 2014, Exhibit 1, was tendered on your behalf by Mr Gleeson, who appeared for you. Ms Barnacle, who has been treating you since June 2009, diagnosed you as having an Adjustment Disorder with mixed anxiety and depression. She also noted that you have previously suffered from Post Traumatic Stress Disorder as a result of violence perpetrated by you former boyfriend. Ms Barnacle said you are submissive and have been vulnerable to those trying to manipulate you.
8 I received into evidence a character reference of Mr Richard Tregear of the 20th Man Fund, Exhibit 2. Mr Tregear stated that you have suffered a great deal as a result of the abusive relationship with your former partner. He noted that you are a hard working and decent person who is striving to bring her daughter up in a responsible way.
9 On your behalf, Mr Gleeson submitted that I take into account the following matters by way of mitigation:
1) That you were just 22 years old when you committed this offence, with no prior convictions, demonstrating you have been of previous good character;
2) That you have had a difficult life as a result of your parents’ separation, your mother’s gambling addiction and your enduring an abusive relationship from a young age;
3) That the mortgage continues to be serviced and that there has been no financial loss suffered by Suncorp Metway;
4) That your plea of guilty has utilitarian benefit and demonstrates remorse;
5) That your offending was instigated by Huynh who is a more sophisticated and educated offender, thereby your culpability is reduced;
6) That you continue to care for your daughter who was born when you were 15 years old, and that your prospects of rehabilitation are high;
7) That there has been delay between the offending and your being charged.
10 Mr Gleeson submitted that although a committal was held, there was limited cross examination. He said that you made an offer to the Crown to plead guilty as soon as the issue in relation to automatic forfeiture had been resolved. Mr Gleeson submitted that a Community Correction Order is the appropriate penalty as you do not have capacity to pay a fine.
11 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.
12 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.
13 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 loss. In fact, it is the case that the loan remains on foot and is being adequately serviced by you as you have rented out the property. The bank seems content to continue in its relationship with you.
14 I take into account your plea of guilty. Although it followed a committal hearing, it still 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.
15 For these reasons, I am satisfied that your offending does not warrant a custodial sentence and, as you have no capacity to pay a fine, I propose to impose a Community Correction Order.
16 Ms Nguyen, 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.
17 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.
18 In addition, I propose to impose the condition that you undertake 100 hours of unpaid community work.
19 Do you agree to comply with the order?
20 OFFENDER: Yes.
21 HIS HONOUR: Very well, I’ll have you step out of the dock and sign that order. Mr Gleeson, will you please ensure your client understands the terms of the order.
22 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. I would most likely have suspended that sentence.
23 I will vacate the trial date of 2 February 2015 and final directions
24 HIS HONOUR: Are there any other orders required?
25 MR DEVLIN: No, Your Honour.
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