Director of Public Prosecutions v Nguyen
[2022] VCC 1702
•4 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-00586
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NGA NGUYEN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September & 4 October 2022 | |
DATE OF SENTENCE: | 4 October 2022 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1702 | |
REASONS FOR SENTENCE
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Subject:Trial - sentencing
Catchwords: Obtaining financial advantage by deception
Legislation Cited:
Cases Cited:Mao v The King, Niu v The King [2022] VSCA 211
Sentence:24-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr W. Stougiannos | Office of Public Prosecutions |
| For the Accused | Mr A. Dickenson | Giorgianni and Liang Lawyers |
HIS HONOUR:
1Nga Nguyen, on 26 August 2022 a jury found you guilty of one offence of obtaining a financial advantage by deception in the sum of $244,040, that being a cause of conduct offence with particulars set out in Schedule A to the indictment. The maximum penalty for that offence is imprisonment for 10 years.
2During the plea hearing I questioned the extent to which I should find beyond reasonable doubt whether you had been engaged criminally in the offending in relation to each of the 19 transactions in the schedule to the indictment, or whether your criminal involvement commenced at some stage after the transactions began. Both counsel agreed that a finding beyond reasonable doubt that your criminal participation in this conduct commenced on or about 23 February 2017 and continued through to transaction 19 inclusive, which amounts to a total of 14 separate transactions involving some $187,540, was open on the evidence.
3You have no prior convictions. The prosecution case may be summarised briefly as follows. Your co-offender Khoa Duong was an employee of the Westpac Banking Group, employed at the Abbotsford branch of that bank from about February or March of 2016. He is of Vietnamese origin but spoke fluent English. During the period between his arrival at the Abbotsford branch and the commencement on 29 December 2016 of the offending conduct as set out in Schedule A, he came to know you as a customer of the bank. You became friendly with him and would see him from time to time both inside and outside the bank professionally and socially.
4Later during 2016, from about September of that year, Mr Duong also befriended a client of the bank who became the primary victim of the offending conduct. She was in the process of breaking up with her husband and was concerned about the financial impact of the dissolution of the marriage and her husband's intentions, which she represented as being dishonest in respect of the proceeds of a sale of a business in which she had been involved and otherwise as to the equitable division of the family assets.
5Mr Duong befriended her and, during the period between September and December of 2016, determined to exploit his relationship with that victim in order to manipulate her and her husband's bank accounts so as to obtain control over their assets for his own purposes. At some stage before the transactions the subject of the indictment commenced, he approached you with a view to your obtaining access to bank accounts which could be used to receive the funds that Mr Duong intended to divert from the control of the victim and her husband.
6What was said to you by Mr Duong at that earlier stage is unclear. But the evidence given at the trial reproduced at page 20 of the transcript indicates that he told you about the conduct that he was proposing to engage in. He told you that the conduct was not legal but that the two of you would “repay the money back”, to use his words. You then approached two Vietnamese women who had businesses and who apparently trusted you sufficiently to agree to allow you to pay monies into one or another account under their control, then withdraw the monies deposited and hand the funds to you in cash. The evidence was that Mr Duong had the expertise and the position of trust within the bank to manipulate the accounts of the victim and her husband to enable the transfers of money to take place. He relied upon your ability to arrange for the monies to be paid into the accounts of the two women who you had approached.
7When you became aware that the transactions were fraudulent is unclear. However I am satisfied beyond reasonable doubt that from 23 February 2017 and the transaction itemised as transaction 6 in Schedule A to the indictment, through to transaction 19 on 27 July 2017 on the same schedule, you participated in the scheme that Mr Duong had devised, dishonestly and knowing that what you were doing was illegal.
8Mr Duong was in a position of trust at the bank. You were not in a position of trust at the bank; however you exploited your friendships with the two businesswomen who willingly allowed their accounts to be used effectively to launder the funds belonging to the victim and her husband, which had been dishonestly diverted by Mr Duong. The explanation that you gave to the two businesswomen, whose participation you exploited was that the funds were part of a Vietnamese community-based saving fund, known as a “hui’.
9From the jury's verdict, it is clearly to be inferred that you acted dishonestly in relation to transactions 6-19 inclusive and that you did so for personal financial reward. Quite what that financial reward was to be and quite what you actually received by way of financial reward is not clear. Very little detail was given during the evidence of Mr Duong at the trial as to the division of the funds totalling $240,040 dishonestly obtained. But in Mr Duong's witness statement at paragraph 15 he states, and I quote, “Nga would usually get between $1000 and $5000 per transaction.”
10I discussed with both counsel an appropriate way of determining, at least in general terms, what reward you received for your participation in the offending which I have outlined which, on figures given in Mr Duong's statement, would amount to between $14,000 and $70,000.
11
Evidence was given by police witnesses of attending your home on
4 May 2018 when you were arrested, and finding about $19,000 in cash and a number of other luxury items, including luxury brand handbags, watches, a Montblanc pen and other items that appeared to have substantial value. However there is no evidence as to when any of those items were acquired. There is scant evidence as to the value of any of those luxury items beyond two receipts, one for a belt showing a price of $700 and one for a designer handbag showing a price in Hong Kong dollars the equivalent of $4,700 in Australian dollars.
12At the time you were still living with the father of your two youngest children. He was a habitual gambler. There were others including the two older daughters living with you at that time. I find it impossible to reach any firm conclusion as to a link between your offending and the cash in the sum of $19,000 or any of the luxury items seized by police on 4 May 2018. Of course one is suspicious that police discovered a treasure trove of luxury items that you bought with the proceeds of your criminal conduct with Mr Duong. But I cannot reach that conclusion beyond reasonable doubt. Rather I conclude that the reward you received was somewhere between $14,000 and $70,000, which was considerably less than the reward obtained by Mr Duong.
13After your arrest on 4 May 2018, you were interviewed by police. You admitted to knowing Mr Duong. You told police that Mr Duong had told you that someone owed him money and that he asked you whether you knew anyone who had a business account into which money could be deposited. You admitted to knowing the two businesswomen whose unknowing participation in this criminal adventure you exploited. You admitted that you obtained their consent for use of their business accounts. You admitted attending ATMs with those two ladies and receiving cash from them, being the proceeds of the transfers which had been effected by Mr Duong through his manipulation of the internal banking processes of the Westpac Bank. You claimed that you were not aware of the source of the money that was being transferred into the business accounts of the two ladies to whom I have referred and you denied any criminal involvement in the offending conduct.
14
Mr Duong pleaded guilty to two separate offences of obtaining a financial advantage by deception involving the same 19 transactions in total. However the indictment was divided into two separate charges, one involving the first five of those transactions and one involving transactions
6-19 inclusive. His Honour Judge Dyer of this court was required to sentence him on the basis that he pleaded guilty to the two offences, that he had agreed to provide a witness statement implicating you in his criminality and that he had agreed to give evidence in court against you in relation to those transactions.
15
He described the conduct of Mr Duong in his sentencing remarks as 'sophisticated and prolonged offending'. His Honour not only gave
Mr Duong credit for his pleas of guilty, but moderated sentence significantly as a result of his undertaking to assist the prosecution in their prosecution of you. Indeed he fulfilled that undertaking by giving evidence in the trial against you. His Honour sentenced Mr Duong on 12 October 2020 to an aggregate term of imprisonment of 12 months and, in addition, to a two-year Community Correction Order requiring him to perform 100 hours of community work during that period and to participate in programs directed to reduce offending conduct and programs towards his mental health. His Honour directed that 50 hours of attendance in those programs would be credited against the 100 hours of community work that he required of Mr Duong under the order.
16
There were some related summary offences for which His Honour convicted Mr Duong, but without further penalty. His Honour stated that but for
Mr Duong's plea of guilty he would have imposed a sentence of three years' imprisonment with a non-parole period of 18 months.
17He also ordered the confiscation of the $14,700 in cash that had been found in Mr Duong's possession.
18Turning to matters personal to you: I was provided by your counsel Mr Dickenson with a brief outline of submissions as to sentence, a report from Dr Sandra Nguyen, psychologist dated 1 September 2022, letters from the Richmond Family Medical Clinic dated 20 September 2022 on behalf of each of your parents along with health summary sheets for each of your parents setting out details of medication that they have been and are currently receiving, details of current active health problems and details of past medical history.
19I was also provided with letters of reference, some of them translations of letters of reference, including letters from your son, Minh Duc Nguyen, dated 28 September 2022, and a letter from two of your daughters dated 27 September 2022. The combined letter authored by those two daughters and signed by them speaks of their experiences as your children growing up and of the abuse that had been wrought upon you as a result of their father's schizophrenia and violence, both emotional and physical.
20They also speak of many good qualities that you have shown as a devoted mother who has been able stoically to maintain your role as a parent, despite the conduct of your then husband, their father, towards you.
21The report of Sandra Nguyen provides a good deal of useful information about your background. You are now a 48-year-old woman of Vietnamese background, you came to Australian when you were about 16. You did not complete Year 10, after falling pregnant at the age of 17 years. Your first child was born in 1992 and is now 30 years of age. You have four other children with your former husband.
22The two younger children were born to a separate relationship with another man who was also physically and emotionally violent towards you and was a gambling addict. That fact had initially been kept hidden from you but it became apparent as time went on and he revealed the extent of his gambling. Neither former partner provided for your welfare or that of your children. The latter relationship with the father of your two younger children, aged 14 and 8 ended in 2020. It was current during the period of the offending between February and July of 2017.
23I found Sandra Nguyen's report well-balanced and helpful. She diagnosed that you were suffering from a major depressive disorder with anxious distress, which she described as severe. She said she had been treating you for your mental illness since August of 2018 and that you had been attending counselling sessions with her on a regular basis between 22 August 2018 and 30 August of 2022. Those sessions appear to have occurred on approximately a monthly basis and you have a future appointment already booked for 2 November 2022.
24The report provides strong evidence to conclude that you do suffer and continue to suffer from a major depressive disorder with anxious distress of a severe nature and that you have been suffering from that condition for a number of years. You have been in regular receipt of counselling since you were arrested by the police for this offending conduct. Ms Sandra Nguyen speaks of the fact that your life is now focussed on the care of your children and parents, particularly your two youngest children who live with you full-time. I understand that your 18-year-old daughter who is at school in Year 11 also lives with you and a 19-year-old daughter is living with you at least part of the time.
25Your elderly parents also live with you. It is clear that they are suffering from a number of health conditions, the details of which, as Mr Stougiannos rightly pointed out, are somewhat sparce, but there is evidence that your father suffers from Parkinson's Disease amongst other health issues. And I accept the description of your relationship with your parents and the nature of your care of them as set out in Sandra Nguyen's report which is Exhibit 2 at the plea hearing.
26The report of Sandra Nguyen also speaks of the reliance of the children upon you and she says in paragraph 24 of her report.
‘… Her two youngest children live with her full time and they rely on her on a daily basis. Ms Nguyen has a very close relationship with all her children, especially her two youngest ones. They have been through so much loss already with witnessing many arguments between their parents as well as dealing with their parents’ separation. If Ms Nguyen were to receive a custodial sentence this would have a significant impact on her children especially her two youngest daughters, who had to deal with being apart from their father through their parents separating and now being separated from their mother. The ordeal would be very difficult for [the two youngest daughters] to cope with and could lead to them suffering from anxiety and depression themselves.’
27She goes on in the next paragraph to say:
‘The impact on Ms Nguyen’s parents will also be profound as they both rely on her for their daily carer. Her father has multiple health problems as well as suffering from Parkinson’s Disease. He needs support with dressing, showering and mobility support. Her mother also has long term and ongoing low back pain for which she has had surgical intervention. She continues to complain of leg and foot pain as well which also affects her mobility. Ms Nguyen is a vital support person to both her parents in terms of
+ their physical, emotional and psychological needs.’
28In paragraph 26, Ms Sandra Nguyen goes on to say,
‘If Ms Nguyen were to receive a custodial sentence the ordeal would be devastating to her own mental health and would further exacerbate her Major Depressive Disorder with Anxious Distress. Not only that, but the impact would also be devastating to both her two youngest daughters as well as her elderly parents who live with her and rely on her for their daily care.’
29I accept those observations as being balanced and reasonable and that they naturally flow from the circumstances. The references to which I have already referred speak of many good qualities, of you being generally a happy gentle person, always thinking of others, and that you often get involved in charity work such as sending money to Vietnam to help the temples and less fortunate people in the community.
30Your willingness to participate in counselling for your mental health conditions suggests that your prospects of rehabilitation are good. I have to determine whether the effect of incarceration, which would ordinarily flow from the verdict of a jury on a charge as serious as the one of which you have been convicted is exceptional to a point where I can take into account properly the impact on family members in determining an appropriate sentence.
31Ordinarily, I would be considering a significant term of imprisonment involving immediate incarceration for offending as serious as this. However, in addition to the family hardship, your counsel has urged that I should also apply the principles known as the Verdins principles. Principle 3 concerns moderating general deterrence based on the nature and severity of your mental illness as it is now. Principle 4 deals with individual deterrence.
32Principles 5 and 6 are concerned with the impact that a sentence of imprisonment would have upon a person suffering from the mental impairments from which you suffer and the serious risk that imprisonment would have a significant adverse effect on your mental health.
33I accept that each of those four principles should be applied in your case. I make it clear that that is quite distinct from any suggestion that your mental impairments should be taken into account to reduce your moral culpability for the offending as a result of the effect upon you at the time of the offending. The mitigatory effects arise as a result of the effect of your mental impairments now, at the time that sentence is to be imposed.
34I have been helpfully provided with the report of the decision of the Court of Appeal in Mao v The King, Niu v The King [2022] VSCA 211, which deals with the question of the extent to which the effect of incarceration of the accused may impact children. The Court in that case upheld the decision of the trial judge that where there were three children involved, the circumstances were not exceptional. I have found the question difficult in this case, and ultimately and with the help of both counsel I have reached the conclusion that the combined effect upon the three children, particularly the two younger children of school age, coupled with the impact upon your elderly parents who are clearly suffering from serious health issues, particularly your father, do amount to exceptional circumstances.
35
I have to punish you for your offending. I have to denounce your offending adequately; my sentence must, to the extent possible or reasonable, also deter others from committing offences of this kind. As I have said earlier in these sentencing remarks, this offending was serious enough to ordinarily warrant an immediate term of imprisonment. However, as I have endeavoured to set out in dealing with the nature of your role in the offending, it seems to me that there is a very significant distinction between the seriousness of your role and the seriousness of the role of
Mr Duong, in that he was a trusted employee of the Westpac Bank who was in a position to, and did, exploit his position of trust, and exploit his relationship with you to inveigle you into participating with him in this offending conduct.
36I have already noted that you exploited two of your friends, and drew them into the offending conduct, albeit they did not act dishonestly. I must also take into account your prospects of rehabilitation and, to the extent possible, promote your rehabilitation. I am satisfied that it is extremely unlikely that you will offend again and I am also impressed by the degree to which you have sought to address your mental health issues. The order that I propose to make will seek to encourage your further rehabilitation, as well as to meet the punitive elements of sentencing that need to be part of the sentencing order.
37I have received a report from the Department of Justice and a Community Correction Order assessment outcome report dated 3 October 2022, which finds you suitable for a Community Correction Order with the following conditions in addition to those that are the mandatory conditions of any such order, being for community work and treatment and rehabilitation for your mental health issues. That report is supplemented by a report by a Forensicare clinician, which recommends that you continue to participate in psychological counselling and that you continue that with Dr Sandra Nguyen under the terms of a Community Correction Order.
38I cannot impose a Community Correction Order upon you without your consent, do you understand?
39Mr Dickenson, I have no doubt that you have gone through the terms of the Community Correction Order with Ms Nguyen, have you?
40MR DICKENSON: Not in any great detail I must confess, Your Honour.
41HIS HONOUR: All right, well I'm going to give you that opportunity, because I do not want her consenting until she is clear as to what the implications of it are. I will state them, but I think it is important that you have the opportunity of discussing them with her.
42MR DICKENSON: Indeed.
43HIS HONOUR: It will involve you being required to undertake 200 hours of unpaid community work in the period covered by the order, which would be two years and that you also participate in assessment and treatment rehabilitation for mental health issues. I would allow you to offset 100 hours of rehabilitation treatment against the 200 hours, but you will be under the terms of that order for a period of two years, which will act like a suspended sentence hanging over your head.
44MR DICKENSON: Yes, Your Honour.
45HIS HONOUR: Yes, all right.
46MR DICKENSON: Thank you.
47HIS HONOUR: I'll leave the court for just a few minutes, whilst you do that.
(Short adjournment.)
48MR DICKENSON: Grateful for that opportunity Your Honour, my client consents to that - - -
49HIS HONOUR: Thank you very much.
50Nga Nguyen, balancing as best I can the factors relevant to sentencing including questions of parity of sentence with your co-offender Mr Duong, I order that with conviction you be the subject of a Community Correction Order commencing today, lasting for 24 months and ending on 3 October 2024, which would require you to attend the Collingwood Community Correctional Services at 241 Wellington Street, Collingwood, within two working days after the commencement of this order, which would be by 4 pm on 6 October 2022.
51The order would be the subject of the following mandatory terms that apply to all Community Correction Orders:
· you must not commit another offence for which you could be imprisoned during the time the order is in force;
· you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations, which concerns matters such as you not attending the offices of the Community Correctional Services whilst drunk or under the influence of drugs, and other such matters;
· you must report to and receive visits from the Secretary of the Department or his or her delegate;
· you must report to the Community Corrections Centre to which I have referred in Collingwood, within two clear working days of today;
· you must let a Community Corrections officer know within two clear working days of you changing your address or job;
· you must not leave Victoria without first getting permission to do so from the Secretary of the Department or his or her delegate;
· you must obey all lawful instructions from and directions of the Secretary or his or her delegate.
52In addition the following conditions apply:
· you must perform 200 hours of unpaid community work over the period of the order as directed by the regional manager, and I order that 100 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. If you fail to comply with that order, the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.
· you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.
53You need to appreciate that if you are in breach of any of the conditions of the order, you may be brought back to this court, probably before me, and sentenced to up to three months' imprisonment just for breaching the order. In addition, the judge before whom you appear would have to consider re-sentencing you for the offence of which you have been convicted. And that would likely be a term of imprisonment of a kind to which I have already referred in my sentencing remarks, which would be appropriate to the severity of the offence of which you have been convicted.
54If your circumstances change and it becomes difficult or impossible for you to complete any of the terms of the order, or to comply with any of the terms of the order, then you should draw that to the attention of the regional manager or other suitable delegate of the Secretary to the Department of Justice. If any of those situations arise you would be best advised to contact your solicitors and seek some assistance in having the order varied or discharged depending on the nature of the matters that impact your capacity to complete the order in accordance with the terms.
55I understand that you have had the order explained to you, and you have indicated your willingness to abide by the terms of the order, is that correct?
56OFFENDER: (Through Interpreter) Yes.
57HIS HONOUR: I will require you now to sign the order.
58MR DICKENSON: Do you mind if I approach my client, Your Honour?
59HIS HONOUR: Certainly. I have now signed that order. It is now in place and you may leave the dock. Are there any other matters, counsel?
60COUNSEL: No, Your Honour.
61HIS HONOUR: All right, adjourn the court.
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