Director of Public Prosecutions v Nguyen, Kim Phuong

[2015] VCC 65

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-02198

DIRECTOR OF PUBLIC PROSECUTIONS

v

Kim Phuong NGUYEN

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JUDGE:	CHIEF JUDGE ROZENES
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 FEBRUARY 2015
DATE OF SENTENCE:	3 FEBRUARY 2015
CASE MAY BE CITED AS:	DPP v NGUYEN, Kim Phuong
MEDIUM NEUTRAL CITATION:	[2015] VCC 65

REASONS FOR SENTENCE
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Catchwords:             CRIMINAL LAW – Operation Squid – Attempt to obtain financial advantage by deception – No prior convictions – Community Correction Order without conviction

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Devlin	Office of Public Prosecutions
For the Accused	Mr A Lewin	Emma Turnbull Lawyers

HIS HONOUR:

1       Kim Phuong NGUYEN, you have pleaded guilty to one charge of attempting to obtain a financial advantage by deception, the maximum penalty for which is five years’ imprisonment. You have not had a prior criminal history.

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 a part of the operation.  The facts of the case were opened by

Mr Devlin, who appeared to prosecute, and are contained in the Prosecution Plea Opening, Exhibit A.

3       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 (‘Huynh’), and her assistant broker, Tu Cam Thai (‘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. 

4       

Ms Nguyen, your offending was in relation to a loan application for $130,000.00 from the ANZ Bank for the purpose of refinancing a mortgage held by the Commonwealth Bank over a property you had purchased in Braybrook. The application form signed by you on 25 October 2010 was supported by a fraudulent payslip declaring a total net fortnightly salary of $1,765.80. Your application also declared motor vehicles to the value of $22,000.00 and superannuation of $30,000.00, both details of which were false. You played no part in the preparation of the false application and payslips, however you signed the contents of the application as being true and correct and it was then introduced by Huynh to ANZ Bank. The loan was never advanced to you. You were arrested and interviewed by the police on

4 March 2010, and indicated in November 2014, through your legal representatives of your intention to plead guilty.

5       By way of personal background, you are presently aged 50. You are separated from your husband. You have three children aged 27, 13 and 11. You are employed as a seamstress.

6       On your behalf your counsel, Mr Lewin, submitted that I take the following into account by way of mitigation:

a.       that weight ought be afforded to your plea of guilty, despite it not being entered at the earliest available opportunity;

b.       that your lack of prior and subsequent criminal history demonstrates excellent prospects of rehabilitation, and that you are unlikely to reoffend; and

c.        that the ANZ Bank suffered no financial loss as a result of your offending.

7       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.

8       As I have said in all of these cases, financial institutions must 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 and persons in the financial community and would-be borrowers such as you should understand that an offence of this kind will not necessarily be treated leniently by the courts and may, in appropriate circumstances, result in sentences of imprisonment.  General deterrence must necessarily play an important role in the sentencing process.

9       The circumstances of your offending were somewhat different than that of others charged in this operation.  Firstly you are only charged with an attempt.  Secondly, I think it fair to categorise your attempt as one brought about by you withdrawing from the scheme rather than it failing as a result of external intervention.  You withdrew from the scheme after your application was submitted to the bank but before it was processed.  You are entitled to a more favourable sentencing consideration than would have been the case had the offence been constituted by a failure not of your own doing.  Thirdly, the amounts sought to be obtained were substantially less than the other cases.

10      Whilst your plea of guilty was offered at a very late time, it nevertheless entitles you to a discount as it does have utilitarian benefit and is indicative of some remorse.  I take into account that you appear to have had a possible defence on the facts which you had by your plea abandoned.

11      You have no prior convictions, a good work history.  Mr Lewin said that you were quite shocked at finding yourself involved in criminal offending of this kind.  He said you were reckless as to the means by which those controlling the scheme would satisfy the lending requirements and had no real knowledge as to the subterfuge.  He submitted that a community corrections order without conviction was an appropriate outcome.

12      For all of these reasons, I am satisfied that your offending does not warrant a custodial sentence and I accept your counsel’s submission that a penalty without conviction is appropriate in these circumstances, given the distinction between the actual obtainment of a financial advantage and an attempt which has been the hallmark of others sentenced in this scheme.  Principles of parity dictate that your offending is to be distinguished and I do so by not recording a conviction in your case.

13      Would you please stand.

14      On the single charge of attempting to obtain a financial advantage by deception, without conviction I order that you be placed on a community correction order for a period of 12 months. The order commences today. Do you agree to be placed on a community corrections order.

15      OFFENDER: (Through Interpreter)  Yes Your Honour.

16      HIS HONOUR: Very well. The core conditions are:

(1)that you not commit whether in or outside Victoria during the period of the order, any offence punishable on conviction by imprisonment;

(2)that you report to the specified Community Correction Centre within two clear working days after the coming into force of this order. In your case that place is the Sunshine Community Correctional Services at
10 Foundry Road, Sunshine;

(3)that you report to and receive visits from a Community Corrections Officer;

(4)that you notify an officer at the Sunshine Community Correction Centre of any change of address or employment within two clear working days after the change;

(5)that you not leave Victoria except with the permission of an officer at Sunshine Community Correction Centre; and

(6)that you obey all lawful instructions and directions of the Community Corrections Officer.

17      In addition I propose to impose a further condition, namely:

(1)that you perform 75 hours of unpaid community work over the 12 month period of the order.

18      Anything else, gentlemen?

19      MR DEVLIN:  No, Your Honour.

20      MR LEWIN:  If Your Honour pleases, nothing further.

21      

HIS HONOUR:  I will make that order.  You can step out of the dock,

Ms Nguyen and  your counsel will shortly ask you - just come and sit behind your counsel and as soon as I have signed and printed the order, I will hand down the community corrections order and ask Mr Lewin to procure your client's signature.  Ms Nguyen, is that your signature on this document.

22      OFFENDER:  Yes, Your Honour.

23      HIS HONOUR:  I will make the order.  You will have a copy of that shortly.

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