Director of Public Prosecutions v Nguyen, Dung Kim Ngoc

[2014] VCC 1232

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-02192

DIRECTOR OF PUBLIC PROSECUTIONS

v

Dung Kim Ngoc NGUYEN

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JUDGE:	His Honour Chief Judge Rozenes
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2014
DATE OF SENTENCE:	6 August 2014
CASE MAY BE CITED AS:	DPP v NGUYEN, Dung Kim Ngoc
MEDIUM NEUTRAL CITATION:	[2014] VCC 1232

REASONS FOR SENTENCE
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Catchwords:             CRIMINAL LAW – Operation Squid – Obtaining financial advantage by deception – lack of prior convictions – mortgage

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr P. Tomlinson	Haines & Polites

HIS HONOUR:

1       Dung Kim Ngoc Nguyen, you have pleaded guilty to a single charge of obtaining a financial advantage by deception.  The maximum penalty for that offence is 10 years’ imprisonment.  Your offending occurred on 18 March 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 Prosecution Plea Summary, 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 home loan application signed by you in order to purchase a residential property in Kealba.  The application was accompanied by a Personal Statement of Financial Position.  You signed a declaration to the effect that the contents of both documents were true and correct.  The application form signed on 10 February 2010 declared income of $55,031.00 from a company, it was discovered, had been deregistered in October 2009.  You also declared savings of $54,900.00, an amount far beyond the $1,044.00 in personal effects you had declared to Centrelink.  You played no part in the preparation of the false payslips, however you signed the contents of the application as true and correct and it was then introduced by Huynh to Suncorp Bank.  You were subsequently loaned $284,000.00 and purchased the Kealba property.  You were arrested and interviewed on 27 February 2013 and indicated an intention to plead guilty in June 2014 after initially listing this matter for trial.  You have continued to make payments on the loan and confiscation proceedings were recently 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.

6       By way of personal background, you are now aged 26 years.  You were born in Vietnam and immigrated to Australia, with your family, when you were aged about 11.  You were educated at a secondary and tertiary level in Australia.  You enjoy a close relationship with your family.  You are clearly intelligent, as you are currently working as an industrial chemist and have done since April 2010, shortly after your offending was discovered.  Ironically, I was told that the income you earn now is close to what you falsely declared on your application for loan.  If required, your mother assists financially with mortgage repayments, which is ongoing, but ordinarily you are able to maintain the repayments yourself.

7       On your behalf Mr Tomlinson submitted that I take into account the following matters by way of mitigation:

1)      That your have no prior convictions and no matters pending;

2)      That you entered a plea of guilty which, whilst not at the earliest opportunity, is indicative or remorse and a willingness to accept responsibility for your offending;

3)      That your offending is not a particularly serious example of this offence as it was constrained to one instance, no loss was suffered by the bank;

4)      That there has been a significant delay between the offending and your being charged;

5)      That you have reasonable prospects for rehabilitation and are unlikely to re-offend.

8       Mr Tomlinson submitted that a fine was the appropriate penalty in the circumstances.  He said that it would give effect to general deterrence and that specific deterrence had already been achieved through your involvement in these proceedings.

9       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.

10      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.

11      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 financial loss.  In fact, as was said, it is the case that the loan remains on foot and is being adequately serviced by you and that the bank seems content to continue in its relationship with you.

12      I take into account your plea of guilty.  Whilst not at the earliest opportunity, it demonstrates an acceptance of responsibility, has facilitated the course of justice, 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 for these reasons, I am satisfied that your offending does not warrant a custodial sentence and I propose to impose a monetary penalty.  Although the bank suffered no loss, as I have previously stated, offending of this type must be denounced by the courts.  The additional punishment of having a conviction recorded is called for in your case.

13      Ms Nguyen, would you stand please.  On the charge of obtaining financial advantage by deception, Charge 1, you are convicted and fined $6,000.00.  I grant a stay of 6 months to 6 February 2015 for payment of the fine.

14 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 six months’ imprisonment.

15      HIS HONOUR: Are there any further orders required?

16      COUNSEL: No.

17      HIS HONOUR: Thank you.  Ms Nguyen you can leave the dock.

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