Director of Public Prosecutions v Thi Le
[2015] VCC 617
•26 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00779
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THI LE |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 March 2015 | |
DATE OF SENTENCE: | 26 March 2015 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2015] VCC 617 | |
REASONS FOR SENTENCE
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Subject: Obtain Financial Advantage by Deception
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Convicted and fined $4,000.00.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Dickie | |
| For the Accused | Mr Saunders |
HIS HONOUR:
1 Thi Mai Ho Le, you have pleaded guilty to one charge of obtaining a financial advantage by deception. The maximum penalty for that offence is 10 years imprisonment. The offending occurred on 28 June 2010, nearly five years ago. Through a broker, you obtained a loan of $343,200 from the ANZ Bank. The loan application, which had been prepared by the broker but signed by you, was false in a number of respects.
2 The circumstances of your offending are set out in the prosecution opening, which I marked as Exhibit A. It was accepted by your counsel, Mr Saunders, as being accurate and as forming a true basis upon which I can proceed to pass sentence upon you. The opening was read to the court by the learned prosecutor, Mr Dickie, and it’s not necessary that I here repeat what is there set out. These sentencing remarks must, however, be read in conjunction with the prosecution opening.
3 You had sold a previous home, in which you had equity of approximately $86,000, and you entered into a contract to purchase an investment property. Pursuant to that contract, you paid a deposit of $86,000 and borrowed the funds necessary to affect settlement from the ANZ Bank. In order to achieve that, you used the services of a finance broker, who falsified the documentation on your behalf but you obtained the benefit of that falsification.
4 Fortunately, the bank has not lost any money, and you maintained the repayments of the principal and interest on the loan in accordance with the mortgage documentation. I was told and accept that the property has since been sold and there is an amount in excess of $140,000 currently restrained, pending the outcome of these proceedings.
5 The crime of obtaining financial advantage by deception, as the maximum sentence indicates, is a serious offence. But this, it must be said, is not the most or anywhere near the most serious example of this kind of offending. However, this kind of offending, particularly using finance brokers, is prevalent, and any sentence imposed by me must reflect properly the application of general deterrence in order to deter orders who might be likeminded and seek to offend in this way.
6 In your case, I think you’ve probably learnt your lesson and there’s no need for the sentence I impose to reflect application of the principal of specific deterrence. However, the penalty must record the court and the community’s denunciation of your offending and must reflect just punishment.
7 To your credit, you have pleaded guilty to the charge. And even though the plea came on the day when the charge was listed for trial with another charge, you, nonetheless, deserve the full benefit, I think, for having pleaded guilty. I’ve taken this into account and reduced the sentence I might otherwise have imposed had to continued to plead not guilty but were convicted by a jury after a trial.
8 You are 36 years of age and were born in Vietnam. You’re currently living in a de facto relationship and have two children from that relationship, aged six and five respectively. Your parents still reside in Vietnam, where you were born. You were educated in Vietnam, completed Year 12, and you were an average student. You came to Australia 13 years ago. And you have an excellent work record and, I dare say, have contributed a great deal to the community in which you live and work. This offending, it would appear, is entirely out of character for you.
9 You’re currently employed as a meat packer after having a short period out of work, for which you received Centrelink payments.
10 I received into evidence, as Exhibit 2, a psychological report from a psychologist, Catherine Ly. You were referred to her by your general practitioner in January 2014 because you had symptoms of anxiety and depression. Her report of 25 March reveals that you have had six sessions with the psychologist between January of last year and 25 March this year. Dr Ly diagnosed you as suffering from a depressive disorder with mixed anxiety. The report, all of which I’ve taken into account, shows that you have a number of stressors in your life.
11 Her report opines, inter alia, as follows:
Speaking from a psychological perspective, it is likely that if Ms Le were to serve a prison term her mental state would deteriorate. Ms Le would find placement in the custodial environment to be more onerous than would a prisoner not facing her psychological or personal challenges. In addition, she has two daughters, aged six and five, who are dependent on her. Her daughters will not cope without her, especially due to their young age.
In arriving at an appropriate sentence here, I’ve taken into account all of your personal circumstances. And in passing sentence, in any case, I must have regard to current sentencing practises.
12 In that regard, I refer to the Court of Appeal’s reasoning in Tran v. R (2014) VSCA 85. Your offending is nowhere near the level dealt with in that case, but I must apply the principals enunciated by the court in that case. Having regard to the circumstances of your offending and your personal circumstances, and all of the mitigating factors which I have indicated above, this is not a case where it’s appropriate, in my view, to impose a term of imprisonment.
13 However, it is a case where, in the proper exercise of discretion, I must impose a sentence that has proper regard to the application of general deterrence but which is fair, having regard to your personal circumstances.
14 Cases have been drawn to my attention, of similar conduct, where other judges have imposed a fine. In my view, that is the appropriate sentence to be imposed in this case. However, because you personally benefitted and you signed the documentation, it’s appropriate, in my view, that there be a conviction recorded.
15 On the charge of obtaining financial advantage by deception, you will be convicted and fined the sum of $4,000.
16 Do you seek a stay, Mr - - -
17 MR SAUNDERS: I seek a stay of three months, Your Honour.
18 HIS HONOUR: And I will impose a stay of three months – I beg your pardon – I will allow a stay of three months. I won’t impose a stay; I will allow a stay of three months.
19 MR DICKIE: Your Honour, just glancing at the Sentencing Act, I understand Your Honour’s obligation is to make a declaration pursuant to s.6AAA - - -
20 HIS HONOUR: No, there’s not.
21 MR DICKIE: If there’s a fine over 20 penalty units.
22 HIS HONOUR: Is there? I thought I had to impose a term of imprisonment before s.6AAA came in.
23 MR DICKIE: That’s why I glanced at it, Your Honour (indistinct) had to look at my phone at the Bar table. But – and if I can, with Your Honour’s leave, look at that again. But - - -
24 HIS HONOUR: Just a sec. Just a second. 6AAA. It takes a bit of finding, with all the different sections in the Act now. 6AA?
25 MR DICKIE: 6AAA, Your Honour.
26 HIS HONOUR: Yes. 6AAA, on p.38.
27 MR DICKIE: It’s sub.s-(1), sub-para.(b):
In sentencing, if the Court imposes a less severe sentence, and the sentence imposed on the offender is or includes an order under division 2 of part 3, or a fine exceeding ten penalty units, or an aggregate fine exceeding 20 penalty units, then, the Court must (indistinct) non-parole period, if any, that it would have imposed but for the plea of guilty.
28 HIS HONOUR: All right. Pursuant to s.6AAA of the Sentencing Act, I say that I have imposed a fine which is lower than the sentence I would have imposed had it not been for your plea of guilty. Had you fallen for sentence following a trial and conviction, I would have imposed a Community Corrections Order for two years with conditions and conviction.
29 MR DICKIE: Your Honour pleases.
30 MR SAUNDERS: Your Honour pleases.
31 HIS HONOUR: Any matters arising out of that, Mr Saunders?
32 MR SAUNDERS: No, Your Honour. I just wonder whether Your Honour would, in due course, prepare reasons or would make available the transcript. There will have to be an application under the Confiscation Act and the reasons may, of course - - -
33 HIS HONOUR: Well, of course I will be – they will be transcribed - - -
34 MR SAUNDERS: Thank you, Your Honour.
35 HIS HONOUR: I will revise them. And they can be made available to you without any difficulty.
36 MR SAUNDERS: Thank you, sir.
37 HIS HONOUR: Thanks for your help, gentlemen.
38 MR SAUNDERS: If Your Honour pleases.
39 HIS HONOUR: Ms Le, once the court has adjourned, you’re free to leave. And no one wants to see you back here. All right?
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