Director of Public Prosecutions v Pham
[2014] VCC 131
•24 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01548
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HIEU TAM PHAM |
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JUDGE: | His Honour Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2014 | |
DATE OF SENTENCE: | 24 February 2014 | |
CASE MAY BE CITED AS: | DPP v PHAM | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 131 | |
REASONS FOR SENTENCE
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Catchwords: Operation Squid – Obtaining financial advantage by deception – lack of prior convictions – mortgage
Sentence:Convicted and fined $6,000.00
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Mr T. Huynh | Victoria Legal Aid |
HIS HONOUR:
1 Hieu Tam Pham, 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 between 8 August 2010 and 4 November 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 Ms Pham, your offending was in relation to a short form loan application signed by you in order to purchase a residential property in St Albans for you to live in. The application form signed on 9 August 2010 declared gross annual income of $65,000.00 and assets in excess of $107,000.00. Both of these claims were false. Five false payslips were prepared to support the application. 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 Metway. You were subsequently loaned $311,051.78 and purchased a property. You were arrested and interviewed on 26 February 2013 and pleaded guilty at committal mention on 13 August 2013. 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 property as a result of your plea of guilty for this offending.
6 By way of personal background, you are now aged 31 years. You came to Australia from Vietnam on a student visa in 2001 and completed bachelor degrees in Accounting and Computing at Monash University. You have worked in a number of book keeping jobs and been victim to a franchise scam, for which you never received the compensation awarded to you as the company directors absconded. You and your husband started a gardening business through the New Enterprise Investment Scheme in 2010 and have run the business since. You are currently pregnant with your second child and are due to give birth in April. You hope to work as an accountant in the future when your children are older.
7 Six character references were tendered on your behalf by Mr Huynh, who appeared for you, Exhibit 2. The letters speak of your commitment to the church you attend regularly and the contribution you have made as a Choir Master and Young Adult Leader. The authors describe you as a devout Christian and express shock at your offending. They each speak of you in favourable terms, noting you are kind, generous and honest.
8 On your behalf, Mr Huynh submitted that I take into account the following matters by way of mitigation:
1) That you pleaded guilty at the earliest opportunity;
2) That you have no prior convictions and you are of previous good character, as evidenced by the reference letters;
3) That you have no subsequent or pending matters and your offending was completely out of character;
4) That you have expressed genuine remorse for your offending, evidenced by your early plea of guilty and that you have made frank admissions to members of the church about your offending;
5) That you offended out of a desire to obtain a home for your family in the knowledge that your financial situation at the time made it difficult for you to obtain finance legitimately;
6) That you did not produce the false payslips, were not aware of the asset declaration in the application form and have serviced the mortgage therefore your moral culpability is low.
9 Mr Huynh submitted that the recording of a conviction would have a detrimental impact on your ability to practice as an accountant and to contribute financially to your family as a result. Mr Huynh conceded that you would have to disclose that you had been found guilty of dishonest conduct in any event and that there was no evidence to suggest that the imposition of a conviction would be more onerous.
10 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.
11 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.
12 Whilst there was in your case 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, it is the case that the loan remains on foot and is being adequately serviced by you and your family. The bank seems content to continue in its relationship with you.
13 I take into account your early 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. I do not accept your counsel’s submission that a penalty without conviction is appropriate in these circumstances. Firstly, there is no evidence that the recording of a conviction as opposed to the finding of guilt will impact more adversely on your economic or employment prospects. Secondly, you are an educated woman with knowledge and experience in the financial field. You knew you were signing a document with false information and the consequences that would flow from that. And, 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.
14 Ms Pham, would you please stand. On the charge of obtaining financial advantage by deception, you are convicted and fined $6,000.00. I grant a stay of six months for payment of that fine.
15 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 four months imprisonment.
16 HIS HONOUR: Are there any further orders required?
17 MR DEVLIN: No, Your Honour.
18 MR HUYNH: No, Your Honour.
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