Director of Public Prosecutions v Thanh Binh Hoang

[2014] VCC 1540

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-02113

DIRECTOR OF PUBLIC PROSECUTIONS

v

Binh Thanh HOANG

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JUDGE:	CHIEF JUDGE ROZENES
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2014
DATE OF SENTENCE:	15 September 2014
CASE MAY BE CITED AS:	DPP v Thanh Binh HOANG
MEDIUM NEUTRAL CITATION:	[2014] VCC 1540

REASONS FOR SENTENCE
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Catchwords:             CRIMINAL LAW – Obtaining financial advantage by deception – lack of prior convictions – mortgage

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APPEARANCES:	Counsel	Solicitors
For the DPP	Jamie Singh	Office of Public Prosecutions
For the Accused	Anthony Lavery	Theo Magazis & Associates

HIS HONOUR:

1       Please remain seated. Binh Thanh HOANG you have pleaded guilty to one charge of obtaining a financial advantage by deception, the maximum penalty for that offence being 10 years’ imprisonment.

2       The circumstances of your offending, set out in Exhibit A (Prosecution Opening), are briefly summarised as follows.

3       On 15 January 2002, you attended at ANZ Footscray Business Centre (‘the bank’) and made application for a home loan in the sum of $150,000.00 to facilitate purchase of a property at Deer Park (‘the Deer Park property’). This loan application was subsequently approved and settlement of the Deer Park property was completed on or about 22 March 2002. It is worth noting at this point that you had been referred to the bank by LT Finance and Conveyancing (LT) who did not provide you with any documentation in support of the loan.

4       In support of the loan application, you provided a letter from 99 Poultry (Vic) Pty. Ltd. (’99 Poultry’), confirming your employment and declaring a gross wage of $513.00 per week together with three payslips in your name for the period December 2001 to January 2002. These documents were false.

5       Your loan application was managed by a Vietnamese speaking employee of the ANZ Bank.  All documents that had your signature on them were signed by you in his presence. When he contacted 99 Poultry someone falsely confirmed that you worked there.

6       A home loan for $150,000.00 was approved in your favour and was advanced to you on or about 22 March 2002. Subsequent enquiries revealed that you had never worked for 99 Poultry. It goes without saying that the bank would not have authorised the relevant home loan for the Deer Park property had it been aware of your deception.

7       You were arrested and interviewed by police on 24 February 2012. Your record of interview with police includes responses from you to the effect that:

·    you did not know what you had done wrong to be arrested;

·    in relation to the property, you thought you only needed 15-20% of the purchase price, and that LT would complete all the paperwork for you;

·    the loan was applied for through LT and not the bank;

·    LT did not require you to produce any loan documents at all;

·    the loan documents were signed at LT and not the bank;

·    you knew nothing of the payslips from 99 Poultry;

·    you could not recall which papers you signed;

·    some loan documents were signed at LT and some at the bank; and

·    when signing loan documents, all questions were asked of the service officer, that you were not asked anything, and that you were just there to sign.

8       By way of personal background, you are now 55 years of age, having been born on 8 December 1958. You arrived in Australia in 1993. Like many migrants you believed in hard work and owning a house.

9       You were able to meet the mortgage repayments for 7 years or so by having a number of tenants live in the house with you.  The loan has been repaid in full and the Bank has suffered no loss.

10      You are otherwise of good character, and have the support of your family.  Whilst you have separated from your wife, your two daughters have done well.

11      Mr Lavery 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.

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 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.

14      In your case, I am satisfied that 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 none has in fact been sustained. 

15      There has been significant delay. The offending occurred in 2002 and charges not laid until April 2012. You were committed for trial in November 2013 and pleaded not guilty. There was a nine day trial in late 2013 that did not produce a verdict. The defence as I understand it was that the fault lay with the broker, LT.  The matter was re-listed for trial in July of this year but resolved.

16      I take into account your plea of guilty.  Whilst very late, it nevertheless facilitates the course of justice in that it has saved the time and cost of a second trial. It is difficult to say that it is also clearly inductive of acceptance of responsibility and remorse.

17      I am satisfied that your offending does not warrant a custodial sentence. I propose to impose a monetary penalty and to record a conviction.

18      Would you please stand.  On the single charge of obtaining a financial advantage by deception, you are convicted and fined $5000.00.  I grant a stay of six months to 16 March 2016 for the payment of that fine.

19 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 4 months’ imprisonment.