Director of Public Prosecutions v Nguyen
[2019] VCC 846
•11 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02229
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRUC THANH NGUYEN |
---
JUDGE: | HIS HONOUR JUDGE M.P. BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF JUDGMENTSENTENCERULING: | 11 June 2019 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 846 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Coombes | |
| For the Accused | Mr L. McLennan |
HIS HONOUR:
1 Truc Thanh Li Nguyen you are to be sentenced for 11 charges of the offence of wrongful conversion under s.91(1)(a)(i) of the Estate Agents Act. The maximum sentence is 10 years' imprisonment. You are also to be sentenced for the summary offence under s.29B(2) of that Act, failing to comply with the duties of an officer in effective control of a real estate agency business. The maximum penalty is a fine of 25 penalty units, approximately $3,000.
2 You pleaded guilty before me on 27 May. When interviewed by police in June and November 2016 you made admissions, for example, in respect of your place or role within the business; but essentially denied knowledge of wrongdoing. There was a contested committal which ran for one day on 1 November 2017. The matter was then listed for trial in this court. It was placed in the so called long trials list. When it came before me earlier this year the expectation was that the proceeding would run at least a number of weeks. Ultimately there were to be three trials. The first, on a 31 charge indictment, began in late April. After pre‑trial rulings and empanelment of a jury it ran for a number of days, then it resolved to a plea of guilty to this lesser number of charges. The plea on the indictment also relates to a lesser period of offending, being about three months. The further two indictments were stayed.
3 You receive the benefit of your plea of guilty and the cooperation that history of the proceeding reveals. Clearly your plea, although late, facilitates the interests of justice. That it is late must also be seen in the context of resolution. Although it cannot be said that you had previously offered to plead in this way, the original proceeding before me entailed consideration of over 50 charges of wrongful conversion running over a period of about 15 months. Your plea expresses remorse.
4 At your plea hearing, which ran on 30 May, Mr Saunders for the Crown tendered a written prosecution plea opening and the victim impact statement of Jan Melih, a vendor and victim of your offending. Mr Saunders provided a comparative sentence and a Court of Appeal judgment on sentence.
5 Mr Marshall, for you, tendered a large number of letters of character reference. He provided a written outline of plea submissions with an appendix which puts matters related to the circumstances of your offending. Mr Marshall also called your aunt, Hanh L, to give evidence on your behalf.
6 The circumstances of your offending are set out in the tendered prosecution opening, which is Exhibit A. My own summary may therefore be shorter. I have also considered matters put in the appendix document purporting to explain your involvement in these offences.
7 Between late 2012 and April 2016 you owned and ran an LJ Hooker real estate franchise, JNT Law Investments Pty Ltd, with ultimately several offices in the eastern suburbs of Melbourne. Your husband, Joseph Ngo, was your partner.
8 Throughout the main part and during the period of offending you both held real estate agent licences. You were the nominated officer in effective control of JNT Law under s.29B of the Real Estate Agents Act. You focussed upon sales. Your husband was the office manager and responsible for the accounts. However, you were sole signatory to the business trust and general trading accounts. Moneys held on behalf of persons, for example, deposit moneys held for a vendor, must be kept until permitted release within the trust account.
9 Financial irregularities and consumer complaints in March and April 2016 led to investigation by Consumer Affairs Victoria. This revealed the offences committed by you and your husband.
10 Section 91 of the Real Estate Agents Act states the offence of wrongful conversion. Section 91(1)(a)(i) provides as follows.
'Any estate agent who fraudulent converts to his own use any moneys received or held by him on behalf of any person in respect of any transaction in his capacity of real estate agent shall be guilty of an indictable offence.'
11 After considering the Crown opening, the effect and meaning of the resolution of the proceeding against you, defence materials and applying the principles stated in The Queen v Storey and like cases I make the following findings.
12 1. There were trust account irregularities in respect of 53 properties between 20 January 2015 and 24 March 2016.
13 2. Your husband initiated the offending scheme.
14 3. In short, that scheme moved deposit moneys from the trust account (where they had been properly placed) into the general trading account, had deposit moneys placed directly into the trading account, or another account controlled by JNT. No permission by vendors was given for these irregularities. Moneys were often paid back into the trust account when there were sufficient funds to do so. False accounting explanations were made. Vendors were also paid deposit moneys directly from the trading account.
15 4. The total value of such wrongful conversions was approximately $6.4m. Allowing for the Ponzi style repayments, the net loss was approximately $2.1m.
16 5. Of course these figures relate to the whole scheme initiated by your husband and which ran from January 2015 to March 2016. Your offending ran over the lesser period, January to March 2016, total value of conversions being approximately $810,000. There are 11 properties. A schedule of this is at paragraph 44 of the Crown opening.
17 6. Ultimately there was no loss personal to any victim, such loss being made good to affected vendors from the Victorian Property Fund established under the legislation. That loss to the fund has been recovered in action against LJ Hooker. That is not to say that there has not been a significant victim impact. I would find that the tendered victim impact statement of Jan Melih exemplifies the anxiety and distress of many of the affected vendors.
18 The gravamen of your offending is that upon becoming aware of your husband's offending in early 2016 you joined it.
19 Explanation for your failure to realise earlier was made by Mr Marshall before me and in the appendix to his written outline. Your failures are also reflected in the summary charge under s.29B, which covers the earlier approximate 12 month period of your husband's sole offending.
20 Following the birth of your fourth child in late 2013 you became unwell. There was a diagnosis of cervical cancer. Treatment included a full hysterectomy in July 2014 and then radiation therapy. Mr Marshall puts that you spent the majority of 2015, the first 12 months of your husband's offending, caring for your youngest child and recovering from health problems. You spent limited time at the business and relied heavily on your husband. Notably, these are matters in part relied upon to make out the summary offence, failing to comply with the duties of an officer in effective control. The circumstances surrounding your husband's offending included his abuse of ice amphetamine. It is said that you only became aware of this and then his offending in early 2016. That you then joined that offending is effectively conceded by the Crown in its acceptance of your plea to this indictment and the summary offence.
21 It is said on your behalf that you were motivated by fear that the business would collapse. As stated in the plea hearing it can be presumed that, had your offending in 2016 with your husband gone undetected and had been successful in saving JNT, you would have enjoyed or at least accepted the benefit of that.
22 You are a 44 year old woman with no criminal history. You were born in Vietnam and came to Australia at 14 to live with foster parents here. Your father had fought in the South Vietnamese army.
23 You completed Year 12 and began but did not complete an arts course. You were married and had a child at this time. You have worked as a teacher's aide, tutor and in businesses selling mobile phones, in financial broking and selling phone cards. You commenced working in real estate in 2011.
24 You married an older man when 19 and had two children. They are now at university and live with you. Your first husband drank and was at times violent. You married Joseph Ngo when 29. There are two children aged 10 and nine. There was a short separation from Ngo in early 2016 but you returned to living with him. He is presently serving a sentence of five years' imprisonment with a minimum term of three years. I imposed that on 15 March 2018.
25 After the investigation and interview of you in 2016 you continued to work in real estate for a time. Mr Marshall's outline states that you made, at this time, attempts to repay outstanding investors in the failed JNT business. I do not understand these people to be the victims of this offending.
26 Presently you study theology and care for your younger children. You preach as a pastor two or three times a month. You live with your children, parents‑in‑law and your aunt.
27 This was a serious failure in trust. People are heavily dependent upon licensed persons to manage and assist land sales and purchases. These are not just financial transactions for many people. The advantage is very much in favour of the professional. The scheme had some sophistication, was dishonest behaviour and ultimately the aim was your benefit. You were involved, although lesser than your husband, in conversions of considerable value affecting a number of properties and persons.
28 In such circumstances the sentencing considerations of deterrence, particularly general deterrence, your moral culpability, the need to condemn the offending and proportionally punish it are relevant. As established authority states, general deterrence is an especially important sentencing purpose as to offending like this.
29 I have decided that there must be a period of imprisonment for the indictable offences.
30 Your failure to comply under the summary offence has personal explanation; but must be seen as serious in its consequences. There should be a significant fine but one relative to the maximum penalty set by the legislation.
31 There are matters, mainly personal to you, which should go to moderate or reduce the length of your sentence of imprisonment. They particularly include the following.
32 1. Your plea of guilty. That plea has had considerable utilitarian benefit. It expresses acknowledgement and remorse. As I have said, the lateness of your plea must be seen in the circumstances of the final negotiated position.
33 2. Your otherwise good character. At 44 you have no criminal history. The evidence and material presents you as a generous, respected person who contributes to her community. One who also values and supports her family. These things include contribution to your church community and to other causes. I see you as having good prospects for rehabilitation. The sentencing purpose of specific deterrence becomes of lesser importance.
34 3. To some extent the accepted circumstances of your involvement in the offending.
35 4. Your personal history and circumstances. For example, I find that your imprisonment will be significantly more difficult given separation from your children and the knowledge that they will not have your support.
36 5. There has been some delay in the proceeding. I do not find that this has been the fault of the investigation or prosecution. I recognise that the period of delay has likely been a cause of stress and anxiety for you.
37 6. The question of parity or disparity is necessarily raised. You are entitled to a considered and just comparison with the sentence of your husband. As almost always there are important similarities and differences. For example, I was obliged to consider the extent of relevance of the principles stated in Verdins in respect of your husband's sentence.
38 However ultimately the differences, particularly, for example, in the conception level, circumstances of involvement and period of the offending should mean a significantly lesser sentence for you compared to your husband.
39 I find that in this case the moderating factors I have identified may be seen as particularly relevant to the minimum term I set before eligibility for parole.
40 Having considered and weighed what I see to be the relevant matters I sentence you as follows.
41 As earlier raised this morning and consistent with the sentence imposed upon Joseph Ngo I have decided that it is appropriate that I impose an aggregate sentence on the indictable charges. Stand up please.
42 On 11 charges of wrongful conversion you are sentenced to 20 months' imprisonment. I set a minimum term of eight months' imprisonment before eligibility for parole. There is no s.18 declaration to be made in this, am I right?
43 MR McLENNAN: No.
44 MS COOMBES: No, Your Honour.
45 HIS HONOUR: On one charge of the summary offence, failing to comply with duties of an officer in effective control of a real estate business you are convicted and fined $1,500.
46 Had you not pleaded guilty I would have imposed a sentence of three years' imprisonment with a minimum term of 18 months.
HIS HONOUR: Are there any other matters I need to deal with? Sit down please.
MS COOMBES: No, Your Honour. There are no ancillary orders.
HIS HONOUR: All right. Now some people have come to support Ms Nguyen and they may briefly speak to her before she's taken into custody. Would you supervise that at an appropriate distance please?
MR McLENNAN: Yes, Your Honour.
HIS HONOUR: I need to remain here whilst that happens.
MR McLENNAN: Thank you, Your Honour.
HIS HONOUR: You may speak to – can you tell them what they may do?
MR McLENNAN: Thank you, Your Honour. She's content, Your Honour.
HIS HONOUR: All right. Ms Nguyen needs to be taken into custody now. Thank you and I'll stand down for a short time and then call over the matters. Thank you, Mr McLennan.
MR McLENNAN: Thank you, Your Honour.
HIS HONOUR: Thank you, Ms Coombes.
- - -
0
0