Director of Public Prosecutions v Tran

[2014] VCC 137

fco

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-02242

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHUONG THI TRAN

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JUDGE:	His Honour Chief Judge Rozenes
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2014
DATE OF SENTENCE:	25 February 2014
CASE MAY BE CITED AS:	DPP v TRAN
MEDIUM NEUTRAL CITATION:	[2014] VCC 137

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 M. Gleeson	Michael J Gleeson & Associates

HIS HONOUR:

1       Phuong Thi Tran, 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 on 20 April 2011.  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 Ms Burnett, 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 Tran, your offending was in relation to an online home loan application seeking $265,000.00 for the purchase of a property in Sunshine West.  A letter was supplied with the loan stating that you were employed by a company you had never worked for.  In fact, you received no employment income from 2005 to 2011 and you have been in receipt of Centrelink payments since 2009.  The assets declaration on the application was also false.  On 11 February 2011 you signed the contents of the application as true and correct and it was then introduced by Huynh to ANZ Bank.  You were subsequently advanced $265,000.00 by ANZ and purchased the property.  You were arrested and interviewed on 6 March 2013 and a committal was held.  At an initial directions hearing in this court on 26 November 2013 the matter was listed for trial in February 2015.  The court was notified of your intention to plead guilty on 7 February 2014. 

6       By way of personal background, you are now aged 54 years and were born in Vietnam.  You fled Vietnam by boat in 1989 when you were pregnant with your second child and recently separated from your first husband.  After spending five years in a refugee camp in Malaysia, you resettled in Hong Kong with your second husband and then came to Australia in 1994.  Your third child was born in Australia however that marriage ended due to your husband’s issues with alcohol and gambling, and you have raised your three children as a sole parent.  All of your children currently reside at the Sunshine West property with you.  You have recently started part-time work as a machinist in a clothing factory.

7       A character reference, Exhibit 2, was tendered on your behalf by Mr Gleeson, who appeared for you.  The letter from your friend of more than 10 years describes you as an honest and reliable woman who loves her children.

8       On your behalf, Mr Gleeson submitted that I take into account the following matters by way of mitigation:

1)      That you are 54 years of age with no prior convictions, demonstrating you have been of previous good character;

2)      That, as you and your children have been servicing the mortgage, there has been no financial loss suffered by the ANZ Bank;

3)      That your plea of guilty has utilitarian benefit and demonstrates remorse;

4)      That you were not the architect of the offending and your culpability is thereby reduced;

5)      That there has been delay between the offending and your being charged.

9       Mr Gleeson submitted that a monetary penalty with conviction was appropriate in the circumstances.

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 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 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 plea of guilty.  Although not made at the earliest opportunity, as you ran a contested committal, it still 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 have favourable prospects of rehabilitation.

14      For these reasons, I am satisfied that your offending does not warrant a custodial sentence and I propose to impose a monetary penalty. 

15      Ms Tran, 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 the fine.

16 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.

17      HIS HONOUR: Are there any other orders required?

18      MS BURNETT: No, Your Honour.

19      MR GLEESON: No, Your Honour.

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