Director of Public Prosecutions v Thai
[2014] VCC 177
•4 March 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01836
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TU CAM THAI |
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JUDGE: | His Honour Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2014 | |
DATE OF SENTENCE: | 4 March 2014 | |
CASE MAY BE CITED AS: | DPP v THAI | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 177 | |
REASONS FOR SENTENCE
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Catchwords: Operation Squid – Obtaining financial advantage by deception – lack of prior convictions – mortgage – position of trust
Sentence:Total effective sentence: 10 months’ imprisonment, wholly suspended for two years
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Ms J. Pisasale | Slades & Parsons |
HIS HONOUR:
1 Tu Cam Thai, you have pleaded guilty to three charges of obtaining financial advantage by deception. The maximum penalty for that offence is 10 years imprisonment. Your offending occurred between 10 December 2010 and 15 August 2011. You have no prior convictions.
2 You are one of a number of your co-accused before this court as part of Operation Squid. Another co-accused, Kieu Thi Huynh, pleaded guilty to a number of charges and has been sentenced in the Supreme Court.
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, Kieu Thi Huynh (known as Kim), and you, employed as her assistant broker, 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 business 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 free 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 Thai, your offending was in relation to three loan applications signed by you as a witness, all of which purported that the applicants worked for the same fraudulent employer. None of the loan applicants had ever worked for the employer listed on the applications, and their financial positions were grossly overstated. The total amount of the loans obtained from Suncorp Metway and the ANZ Bank was in excess of $1.25 million in relation to these three loans. You were arrested on 12 April 2013 and participated in a record of interview in which you denied being involved in preparing any false documents and would not comment when asked why you didn’t do anything when you thought a payslip was wrong. You said that Huynh helped customers with their documentation and that you didn’t check the payslips. You were charged on 12 April 2013 and pleaded guilty at committal mention on 26 September 2013.
6 By way of personal background, you are now aged 36 years and you grew up in Vietnam with your three siblings. Your upbringing was comfortable and all of your family, except for one of your brothers, still reside in Vietnam. In 2002 you moved to Australia and completed a Graduate Diploma in Information Technology and, in 2009, a Bachelor of Accounting degree. You are currently completing your final subjects to gain CPA accreditation. In 2004 you married an Australian-Vietnamese man, to whom you had a daughter, but divorced on account of your husband’s drug addiction and domestic violence. After living in crisis accommodation you were put on a waiting list for government housing. You worked in a factory to support yourself and your daughter whilst you were studying. You commenced a new relationship in 2009 and have a daughter from that relationship, which ended some months later. In 2010 you commenced working at St Andrews Mortgage Solutions part-time.
7 A letter of apology written by you, addressed to me, was tendered on your behalf by Ms Pisasale, who appeared for you, Exhibit 2. Your letter said that you turned a blind eye to the fraudulent loan applications as you needed your job to support yourself and your daughter. You expressed remorse and a desire to start over and be a good role model for your daughters.
8 I received in evidence a medical report from your treating General Practitioner, dated 11 February 2014, Exhibit 3. Dr Huynh’s report stated that you were diagnosed with depression and prescribed medication in August 2012. Dr Huynh also stated that you have been suffering from a General Anxiety Disorder as a result of these legal proceedings.
9 On your behalf, Ms Pisasale submitted that I take into account the following matters by way of mitigation:
1) That you have no prior convictions and no matters pending;
2) That you are previously of good character;
3) That you pleaded guilty at the earliest opportunity;
4) That you are genuinely remorseful as demonstrated by your plea of guilty and your letter of apology;
5) That you were acting under instructions from your employer and needed your job to support your children;
6) That there was no personal gain other than your continued employment;
7) That the banks are still receiving payments for each of the loans therefore there is no financial loss;
8) That your prospects of rehabilitation are high.
10 Ms Pisasale submitted that specific deterrence be moderated in your case as it has already been met, and that the appropriate penalty was a non custodial disposition without conviction.
11 Mr Devlin did not dispute the submission in relation to a non custodial disposition however disagreed that a penalty without conviction is appropriate in the circumstances. He noted that you made some admissions in your record of interview but were very cautious about what you told police. Mr Devlin said that this is a case about general deterrence and that the industry and community need a clear message that offending of this type is not acceptable.
12 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.
13 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.
14 Tu Cam Thai, you held a position of responsibility. You had accounting qualifications. You knew that it was wrong to assist in the provision of false information to secure these loans, but did so because you needed to keep your job. You said that you simply acted upon the orders of your principal and were concerned about maintaining your children.
15 Acting on instructions in circumstances such as these, with the knowledge that you had, affords no excuse. The broader financial system requires persons in responsible positions, such as yourself, to act honestly and well.
16 Your employer, Kieu Thi Huynh, pleaded guilty in the Supreme Court to 27 charges of obtaining financial advantage by deception and one charge of attempting to obtain financial advantage by deception. She was sentenced by Dixon J on 25 February 2014 to four years’ imprisonment with a non parole period of two years. Due to the number and monetary value of the offences, Ms Huynh was sentenced as a continuing criminal enterprise offender, thereby doubling the maximum penalty for each of the obtaining financial advantage charges. In sentencing her the learned judge said that Ms Huynh’s offending:
…appears to have corrupted others who have in one way or another become involved in your scheme. Your offending was made possible by the licence you held on the basis that you were a person of good character. Your offending was assisted by your high level of education and training. These are common features of offending of this type and deterring others from the conduct that you indulged in is an important objective to be achieved by the sentence to be imposed in your case.[1]
[1]The Queen v Kieu Thi Huynh [2014] VSC 53 at 11.
17 Her offending occurred over an extended period of time. She was the architect of the scheme and profited directly from it. I am satisfied that you were only involved as an assistant, an employee. You acted on instructions. You were not involved in setting up the scheme, joining the brokerage after it had been in operation for some years.
18 I accept also that you did not benefit financially from the fraud, other than keeping your job, and that you were in a position where that became a significant issue for you. You had recently separated from your second husband, with two young children. With the exception of your brother, who lives in Melbourne, the rest of your family is still in Vietnam and so you were relatively unsupported in the community. It is to your credit that you have demonstrated a capacity for hard work and diligent study. It is regretful that you did not apply similar diligence to the maintenance of honest standards.
19 You were only involved in three transactions and I accept that no loss has been occasioned to the banks. I also accept that you did not create the false documentation. I accept that you are remorseful. Your letter, Exhibit 2, speaks of your shame. You pleaded guilty at the earliest possible opportunity, have no prior convictions, and nothing pending, and I am satisfied that you are otherwise of good character. I am satisfied that you are unlikely to offend in this way again and that accordingly your prospects of rehabilitation are favourable.
20 You are in a significantly different position from those who I have already sentenced. They were financially disadvantaged people, seduced by the offer of being able to obtain finance for a family house in circumstances where they individually would not be able to meet the requirements of the lender. It is the case in almost all of those instances that irrespective of that fact, the family support behind these borrowers was sufficient to ensure that the loan repayments could be sustained and were sustained in fact in almost every instance. Had the banks known that the materials in support of the loans were false, no loan would have been advanced. By your conduct the banks were exposed to risk.
21 I cannot accept your counsel’s submission that a penalty without conviction is appropriate in these circumstances. Your offending was more closely aligned to the conduct of your employer than to the loan applicants. You became a cog in the machinery of the fraud. It is of no help that you say you were only following orders. You knew that you were participating in a fraudulent scheme to deceive the banks. Whilst in sentencing Ms Huynh, Dixon J said that the majority of payslips were produced in house by you, I must sentence you on the basis that you were involved in the production of three only. In my view your offending calls for a sentence of imprisonment but your personal circumstances militate, by a very fine margin, towards that sentence being fully suspended.
22 Ms Thai, on the charge 1 of obtaining financial advantage by deception, you are convicted and sentenced to six months’ imprisonment. On charge 2 you are convicted and sentenced to six months’ imprisonment. On charge 3 you are convicted and sentenced to six months’ imprisonment. I direct that two months of the sentence imposed on charge 2 and two months of the sentence imposed on charge 3 be served cumulatively upon each other and upon the sentenced imposed on charge 1. That makes for a total effective sentence of 10 months’ imprisonment. I propose to suspend the sentence for a period of two years. Before I do that I am obliged to tell you that you have been convicted and sentenced to a term of imprisonment, but that you will not have to serve that sentence immediately.
23 However, if you commit an offence punishable by imprisonment, either in Victoria or elsewhere, during the period of the suspension, then you may be brought back to be further dealt with by me, and absent exceptional circumstances, will be required to serve the suspended sentence. Do you understand that?
24 OFFENDER: Yes, I do.
25 HIS HONOUR: Very well, I suspend the sentence for a period of two years.
26 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 14 months’ imprisonment with a non parole period of 8 months.
27 HIS HONOUR: Are there any further orders required?
28 COUNSEL: No, Your Honour.
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