Director of Public Prosecutions v Tran

[2015] VCC 1582

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-005134

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP TRAN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF PLEA:	4 November  2015
DATE OF SENTENCE:	4 November 2015
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2015] VCC 1582

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty to 2 charges of obtaining financial advantage by deception immediately before Jury charge commenced. Presented false document to obtain loan from bank; Long delay.
Cases Cited: McLeod [2007] VSCA 183
Sentence: Community Corrections Order 2 years with 200 hours

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Offender	Mr R. McCloskey	Barry Fried

HER HONOUR: 

1Mr Tran, I have arranged for a copy to be made for Madam Interpreter so she can interpret it as I read the sentence.  Stay seated just for the moment, Mr Tran.

2Phillip Tran, at the close of your trial, you have pleaded guilty to two charges of obtaining a financial advantage by deception.  These were Charges 2 and 3 on the trial indictment.  You entered these pleas today immediately before the charge to the jury was about to given. 

3In May and July 2009, you obtained two loans in respect of two houses, one in which you were living with your family and the other as an investment.  You already had a mortgage, amounting to about $132,000 in relation to your house in Bent Street where you were living.  You wished to refinance that loan and obtained a loan for $176,000, making available to you the additional funds of about $44,000.

4Charge 1 on the trial indictment was a charge of using a false document.  The jury was told that if you were found guilty of either of the other charges, there would be no verdict taken on Charge 1. 

5The circumstances were that you presented to the bank as part of your loan application a letter purported to have been written by a Mr Nghiem, who had employed you in his business, New Timber Floors.  The letter dated April 2009, stated that you had worked there full time since 2008 and that you were earning $70,000 per year.  Telephone numbers were provided in that letter.

6Documents obtained from the Tax Office showed that you did not lodge a tax return for 2009, nor for several other years, and the jury was invited to draw the inference that therefore you must have earned less than $6,000 in those tax years.  In no tax year in which you did a lodge a return had you earned more than $38,000.  I should add that there was evidence given by an employee of the bank who was partly responsible for the approval of the loans, that the information as to your employment and earnings was used in the approval process. 

7In August 2011 you pleaded guilty to one charge of trafficking in cannabis and one charge of theft of electricity.  In late 2010, you had organised and cultivated a crop of cannabis in your house at Bent Street.  You were sentenced by His Honour Chief Judge Rozenes to 19 months' imprisonment, with a non-parole period of nine months.  At some time the property was made subject to a restraining order and your other property was sold, with the bank being paid, and $40,000 remaining the subject of the restraining order.  You have continued to pay the mortgage on the Bent Street house and so the bank has not lost any money.

8Chief Judge Rozenes set out the details of your background in his sentencing remarks, which are that you were born in Vietnam where your family still lives and came to Australia when you were aged 22.  You are now aged 41, you have been married for some 14 years and have two school aged children.  You obtained tertiary qualifications in Vietnam but have been held back by your lack of English, leading to sporadic work of an unskilled type.  Unfortunately in the period before the trafficking charge, you began gambling and met the criteria for the diagnosis of pathological gambling disorder, but not to the extent that His Honour found it had impaired your judgment.  You ceased gambling four years ago.

9You had no prior convictions at the time of the previous sentence and that conviction is not a prior matter for the purpose of this sentence.  Nor have you offended in any way since then.  But you and your wife have worked hard to set up a car washing business, which after almost a year has not yet become profitable.  You are also being taught by a relative to become a mechanic.

10It is likely and expected that this conviction will activate the restraining orders on both properties.  The investment property, the house at Carnlea, has already been sold and the balance of $50,000 after paying out the bank is also subject to the restraining order.

11The question as to whether I can take these restraining orders, and the likely confiscation, into account was discussed at the hearing today and I was referred to the decision in McLeod, 2007 VSCA 183.  It is unclear what might happen in this case, in view of the experience of restraining orders having been lifted in some recent cases, the subject of Operation Squid.  Given that the Bent Street house was already subject to a mortgage before the loan was refinanced, there may be some room to move.  However it is not a matter I can take into account, given the uncertainty.

12The delays since the crimes were committed is a matter that can be taken into account.  Not only was there a delay of four and a half years before you were charged, but a further two and a half years has elapsed, a total of about six and a half years.  The crimes were committed a long time ago, and you have moved on in your life, with no further offending.  It is fair to say that during that time you have had the uncertainty as to the restraining orders hanging over your head as well.

13It might be said that deceit of this sort is a relatively easy crime to commit and that general deterrence is an important aspect of any punishment.  Indeed the maximum penalty is ten years imprisonment.  There is probably a much reduced need for specific deterrence and I can exercise some leniency in the penalty I impose.

14As I said, you have lived your life free of crime for some years and that suggests you have good prospects for rehabilitation.  The prosecution does not object to a community corrections order being imposed, which your counsel has submitted is appropriate.  I have also considered whether a suspended sentence is equally appropriate but I have concluded that it is not. 

15You have been assessed as suitable for a community corrections order which will provide a proper penalty, taking into account the mitigating factors I have mentioned.  I note that you are working in your business as well as learning a trade and it will not be easy for you to complete the work hours as part of your obligations under the order. 

16Mr Tran will you stand now please.  The order will begin today and convictions will be recorded.  The order will last for two years and will require you to perform 200 hours of unpaid community work, to be completed within nine months.  You must submit to treatment for problem gambling, or be referred for financial counselling, depending on any continuing issues.  You must report to the Sunshine Corrections Office at 10 Foundry Road Sunshine by 4 pm on Friday 6 November. 

17Mr McCloskey, that order will be ready for signature now, do you want to have a look at it first?

18MR McCLOSKEY:  Thank you very much.  Thank you.

19

HER HONOUR:  While that is being done, are there any other matters

Mr Albert?

20MR ALBERT:  No, Your Honour.

21HER HONOUR:  No. 

22MR ALBERT:   S.6AAA doesn't apply?

23HER HONOUR:  I thought of that and then I thought “no”.

24MR ALBERT:  No, probably a CCO doesn't apply to that, Your Honour.

25HER HONOUR:  Well it does, s.6AAA can apply to a CCO but in view of the time at which the plea was made, is there any room?

26MR ALBERT:  I don't know, I just raise it and leave it with Your Honour.

27HER HONOUR:  Well I am going to leave it out.  I know that if I do not put it in, it does not invalidate anything, and my view was I did not think that there was any possibility of a discount. 

28What do you think Mr McCloskey?  I have to give you the opportunity to be heard.

29MR McCLOSKEY:  I don't want to complicate a simple situation, I would have thought there might have been the tiniest little bit but ‑ ‑ ‑

30HER HONOUR:  Saving me the time for the charge and the jury for the time of deliberation?

31MR McCLOSKEY:  Yes, yes.  The tiniest amount, so it's probably not significant.

32HER HONOUR:  No, all right.  Thank you.  Considering I had already prepared the charge I think I have justified it not going any further.  Can I thank Madam Interpreter very much for your assistance during the last few days.

33INTERPRETER:  Thank you, Your Honour, you've been very kind and considerate to the interpreters, thank you, Your Honour.

34HER HONOUR:  Thank you.  Mr Albert and Mr McCloskey and your instructors, thank you for your assistance during the trial.

35MR McCLOSKEY:  Thank you, Your Honour.

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