Director of Public Prosecutions v Nguyen, Van Hai

[2014] VCC 825

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-02238

DIRECTOR OF PUBLIC PROSECUTIONS

v

Van Hai NGUYEN

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JUDGE:	His Honour Chief Judge Rozenes
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2014
DATE OF SENTENCE:	10 June 2014
CASE MAY BE CITED AS:	DPP v NGUYEN, Van Hai
MEDIUM NEUTRAL CITATION:	[2014] VCC 825

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 C Nikakis Mr P Tomlinson	Haines & Polites

HIS HONOUR:

1       Van Hai Nguyen, you have pleaded guilty to one charge of obtaining financial advantage by deception.  The maximum penalty for that offence is 10 years’ imprisonment.  Your offending occurred on 10 December 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       Van Hai Nguyen, your offending was in relation to a home loan application signed by you in order to purchase a residential property in West Meadows.  The application form signed on 4 September 2010 declared net monthly income of $5,116.54 from a company, it was discovered, you had never worked for.  The application was supported by three false pay slips.  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 Tu Cam Thai to Suncorp Metway.  You were subsequently loaned $488,452.98 and purchased a property.  You were arrested and interviewed on 14 March 2013 and indicated an intention to plead guilty in April 2014.  You have continued to make payments on the loan and confiscation proceedings have been withdrawn by the Office of Public Prosecutions, meaning that 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 45 years.  You maintained your mortgage repayments and have sold the house, meaning that the bank has recouped the full amount.  You responded to an advertisement in the local Vietnamese newspaper and have medical issues.  Mr Nikakis submitted that a fine was the appropriate penalty in the circumstances.

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       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.

9       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, you sold the property and the bank did not make any loss.

10      I take into account your plea of guilty.  It demonstrates acceptance of responsibility, has facilitated the course of justice, has 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.

11      On the charge of obtaining financial advantage by deception, you are convicted and fined $6,000.00.  I order that the fine be paid by instalments of $200.00 per month, the first payment to be made on or before 10 July 2014.

12 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.

13      Thank you, you may step out of the dock.

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