Director of Public Prosecutions v Tran
[2014] VCC 123
•21 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02195
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANH MINH TRAN |
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JUDGE: | His Honour Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2014 | |
DATE OF SENTENCE: | 21 February 2014 | |
CASE MAY BE CITED AS: | DPP v TRAN | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 123 | |
REASONS FOR SENTENCE
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Catchwords: Operation Squid – Obtaining financial advantage by deception – lack of prior convictions – mortgage
Sentence: Community Correction Order: 100 hours unpaid community work over 18 months
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Mr A. Paull | James Dowsley & Associates |
HIS HONOUR:
1 Anh Minh 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 between 30 June 2010 and 27 August 2010. 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. Your wife is also your co-accused and has a trial listed for February 2015. 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 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, 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 Mr Tran, your offending was in relation to a short form loan application signed by both yourself and your wife in order to purchase a residential property in Rockbank for you to live in. The application form signed on 30 June 2010 declared your net monthly income as $3,153.27 when in fact you were on Centrelink payments at the time. A false payslip was prepared and provided by Hunyh to accompany the application. The assets declaration on the form was also false. You played no part in the preparation of the false payslip however you signed the contents of the application as true and correct and it was then introduced by Huynh to Suncorp Metway. You were subsequently loaned $272,386.22 and purchased a property. You were arrested and interviewed on 5 March 2013 and pleaded guilty at committal on 18 November 2013 prior to any witnesses being called. You have continued to make payments on the loan and confiscation proceedings have been withdrawn by the Office of Public Prosecutions, meaning you will not face automatic forfeiture of the property as a result of your plea of guilty for this offending.
6 By way of personal background, you are now aged 53 years and were born in Vietnam. You were sent to work at your uncle’s restaurant in Saigon when you were just 12 years old and your father was killed by Viet Cong during the war. You left Vietnam as a refugee in 1982 and resettled in Australia following seven months in a refugee camp in Malaysia. You have little contact with your two sons from your first marriage, which ended in 1990. You remarried in 2003 and your second wife is your co-accused in these proceedings. You have worked as a tyre inspector, truck driver, farm worker and been self-employed during your time in Australia. You are currently not employed but are looking for work.
7 On your behalf, Mr Paull, who appeared for you, submitted that I take into account the following matters by way of mitigation:
1) That you are 53 years of age with no prior convictions and no matters pending;
2) That you are of previous good character and the offending was an aberration;
3) That your childhood was traumatic, evidenced by the loss of your father and your having to resettle in a new country in your early twenties;
4) That you entered a plea of guilty prior to witnesses being called at committal.
8 It was submitted by Mr Paull on your behalf that your offending falls at the lower end of the scale for this offence. He said that although you understood the figures on the application form were incorrect and agreed to them, you did not formulate the numbers or create the fraudulent payslip. On the question of penalty, Mr Paul submitted that a Community Correction Order with unpaid community work was appropriate and that no assessment or treatment conditions were required as you do not have any mental health issues or problems with drugs or alcohol. Mr Paull said a fine was also open to me however he would urge a fine to be limited so that it could be converted to unpaid community work in the event that you were unable to pay.
9 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.
10 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 a important role in the sentencing process.
11 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 wife. The bank seems content to continue in its relationship with you.
12 I take into account your early plea of guilty. It 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.
13 For these reasons I am satisfied that your offending does not warrant a custodial sentence and I propose to impose a Community Correction Order. I had contemplated imposing a fine but, having regard to your financial situation and the fact that you are currently unemployed, have decided not to.
14 Mr Tran, would you please stand. On the charge of obtaining financial advantage by deception, I propose to release you with conviction on a Community Correction Order for a period of 18 months. As no additional program conditions were being considered, a report from Community Correctional Services was not required. The order commences today.
15 The core conditions of the order are:
(1) that you not commit, whether in or outside Victoria during the period of the order, any offence punishable on conviction by imprisonment;
(2) that you report to a specified Community Correction Centre within two clear working days after the coming into force of this order, in your case that place is Melton Community Correctional Services at 83-85 Unitt Street, Melton, Victoria;
(3) that you report to and receive visits from a Community Corrections Officer;
(4) that you notify an officer at the specified Community Correction Centre of any change of address or employment within two clear working days after the change;
(5) that you not leave Victoria except with the permission of an officer at the specified Community Correction Centre; and
(6) that you obey all lawful instructions and directions of the Community Corrections Officer.
16 In addition, I propose to impose the condition that you undertake 100 hours of unpaid community work.
17 Do you agree to comply with the order?
18 OFFENDER: Yes.
19 HIS HONOUR: Very well, I make the order in those terms.
20 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.
21 HIS HONOUR: I will have my Associate prepare the paperwork. Are there any further orders required?
22 MR DEVLIN: No, your honour.
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