Director of Public Prosecutions v Nguyen
[2014] VCC 126
•21 February 2014
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01549
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LOAN THI NGUYEN |
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JUDGE: | His Honour Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2014 | |
DATE OF SENTENCE: | 21 February 2014 | |
CASE MAY BE CITED AS: | DPP v NGUYEN | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 126 | |
REASONS FOR SENTENCE
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Catchwords: Operation Squid – Obtaining financial advantage by deception – lack of prior convictions – mortgage
Sentence: $4,000.00 fine with conviction
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Mr M. Duckett | Nguyen Tan Hai Lawyers |
HIS HONOUR:
1 Loan Thi 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 15 August 2011. 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 a loan application signed by you seeking $410,000.00 for the purchase of a property in Delahey. The application form declared income of $62,088.00 from a company you had never worked for. The declarations made by your actual employers between 2010 and 2012 show income of less than half what you had declared on the loan application. You have also received Centrelink payments. The loan application listed personal assets in excess of $150,000.00 however your assets declared to Centrelink totalled just over $15,000.00. On 17 June 2011 you signed the contents of the application as true and correct and it was then introduced by Huynh to ANZ Bank. Thai signed as a witness to your acceptance of ANZ’s letter of offer and you were subsequently advanced $410,000.00 by ANZ and purchased the property. You were arrested and interviewed on 6 March 2013 and pleaded guilty at committal mention on 12 September 2013.
6 By way of personal background, you are now aged 46 years and were born and lived in Vietnam until emigrating to Australia approximately 10 years ago. You married in Vietnam and had three children. Your husband died at sea whilst working as a fisherman one year prior to your leaving Vietnam, and you came to Australia to be with your extended family already residing here. Having been educated to Grade 3 level in Vietnam, you were restricted by your employment opportunities but found work as a labourer on a fruit farm in the outer eastern suburbs of Melbourne. You sought finance for the Delahey property when the flat you owned in St Albans became too small for you, your children and your mother.
7 Three character references, Exhibit 3, were tendered on your behalf by Mr Duckett, who appeared for you. Each of the letters describes you as a kind and hardworking woman who cares deeply for her children.
8 On your behalf, Mr Duckett submitted that I take into account the following matters by way of mitigation:
1) That no financial loss has been suffered by the ANZ Bank;
2) That you have no prior convictions and no matters pending;
3) That you entered a plea of guilty at the earliest opportunity;
4) That you were ignorant as to the contents of the loan application as a result of your lack of education and that you cannot read and write English;
5) That your application was completed by the mortgage broker and you signed where you were told;
6) That you have experienced difficulties in your life, having lost your husband and raising your three children as a single parent in a new country.
9 Mr Duckett informed me that a couple of months after you purchased the Delahey property you sold your flat in St Albans and made a $270,000.00 payment onto the Delahey property loan. 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. Mr Duckett submitted that a bond without conviction was within the range of sentencing options open to me on the basis that this is your first offence and a conviction may impact upon your prospects for becoming an Australian citizen. No evidence of the latter was advanced.
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 loss. In fact, it is the case that the loan remains on foot and is being adequately serviced by you and your family. It is of significance that the proceeds of the sale of the first house were promptly paid into the loan. The bank seems content to continue in its relationship with you.
13 I take into account your early 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 have favourable prospects of rehabilitation.
14 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. You signed the application for the loan as true and correct in the knowledge that the information contained in it was false. And, although the bank suffered no loss, as I have previously stated, offending of this type must be denounced by the courts. Nothing was advanced on your behalf to show that a recording of a conviction would impact adversely upon you.
15 Ms Nguyen, would you please stand. On the charge of obtaining financial advantage by deception, you are convicted and fined $4000.00.
16 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.
17 HIS HONOUR: Is a stay required in relation to the fine?
18 MR DUCKETT: Six months is sought, your honour.
19 HIS HONOUR: I grant a stay of six months. Are any other orders required?
20 MR DEVLIN: No, your honour.
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