Director of Public Prosecutions v Nguyen, Khuong

[2014] VCC 992

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-02248

DIRECTOR OF PUBLIC PROSECUTIONS

v

Khuong NGUYEN

---

JUDGE:	His Honour Chief Judge Rozenes
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2014
DATE OF SENTENCE:	3 July 2014
CASE MAY BE CITED AS:	DPP v NGUYEN, Khuong
MEDIUM NEUTRAL CITATION:	[2014] VCC 992

REASONS FOR SENTENCE
---

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       Khuong Nguyen, you have pleaded guilty to one charge of obtaining financial advantage by deception, the maximum penalty for that offence being 10 years’ imprisonment.  The offending occurred on 26 February 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       Mr Nguyen, your offending was in relation to an online home loan application with the ANZ bank, which was introduced to the bank by Huynh.  The loan application was for $236,000.00 for the purpose of purchasing a property at Burnside.  You signed an Online Supporting Document Kit declaring the contents of the application and the accompanying Personal Statement of Financial Position were true and correct.  You declared a total net monthly income of $3,268.00 and assets of $99,500.00 and supported this declaration with false payslips.  You were actually in receipt of Centrelink benefits at the relevant time.  On 26 February 2010, the ANZ bank advanced you $236,000.00.  You were arrested and interviewed on 1 March 2013, where you answered largely ‘no comment’ to questions from police.  You indicated an intention to plead guilty on 2 June 2014, after having a contested committal hearing and listing the matter for trial in this court.  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 properties as a result of your plea of guilty for this offending.

6       By way of personal background, you are now aged 24 years.  You were born in Malaysia before moving to Australia with your family at the age of four.  You were schooled in Australia.  You have started a number of apprenticeships since finishing school, and are currently enrolled in a personal trainer course.  You were supported in court by your mother, with whom you live in the Burnside property.  Exhibit 1 was a character reference from the Footscray Community Uniting Church that spoke highly of you.

7       Mr Tomlinson submitted that a fine was the appropriate penalty in the circumstances and that a substantial financial penalty would give effect to factors of general deterrence. 

8       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.

9       Financial institutions should be entitled to rely upon representations made to them and conduct of this kind is serious and impacts upon the community, 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.

10      Whilst there was always an intention to deceive the bank into making the loans, 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, it is the case that the loan remains on foot and is being adequately serviced by you and the bank seems content to continue in its relationship with you.

11      I take into account your plea of guilty.  Whilst not at the earliest opportunity, I am nevertheless satisfied that it demonstrates acceptance of responsibility and has facilitated the course of justice, has saved time and cost, and evidences remorse.  You have no prior convictions, nothing pending 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.

12      Would you please stand, sir.  On the single charge of obtaining a financial advantage by deception, you are convicted and fined $6,000.00.  I grant a stay of six months to 2 January 2015 for the payment of that fine.

13 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.

14      HIS HONOUR: Anything else?

15      COUNSEL: No.

16      HIS HONOUR: Very well,  you may step out of the dock, Mr Nguyen.

- - -