Director of Public Prosecutions v Tran, Huyen Thi

[2014] VCC 991

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-02244

DIRECTOR OF PUBLIC PROSECUTIONS

v

Huyen Thi TRAN

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JUDGE:	His Honour Chief Judge Rozenes
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2014
DATE OF SENTENCE:	3 July 2014
CASE MAY BE CITED AS:	DPP v TRAN, Huyen Thi
MEDIUM NEUTRAL CITATION:	[2014] VCC 991

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

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr P. Tomlinson	Haines & Polites

HIS HONOUR:

1       Huyen Thi Tran, you have pleaded guilty to two charges of obtaining financial advantage by deception.  The maximum penalty for that offence is 10 years’ imprisonment.  Charge 1 occurred between 28 September and 4 November 2010 and Charge 2 between 28 September and 5 November 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.  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       Ms Tran, your offending was in relation to two home loan applications totalling $600,000.00 and intended to, firstly, refinance a property in Lalor and, secondly, to purchase a property in Tarneit.  You signed the application in front of Tu Cam Thai, as well as completing an online ANZ Supporting Documentation Kit declaring that details contained in the application and the accompanying Statement of Financial Position were true and correct.  You declared an income of $73,937.00 from a company, it was later discovered, you had never worked for.  You also declared that you had $45,000.00 in superannuation.  In reality, you were in receipt of Centrelink benefits at the relevant time.  You played no part in the preparation of the false payslips, however you declared the contents of the application as being true and correct before it was introduced by Thai to ANZ bank.  You were subsequently loaned amounts of $180,000.00 and $420,000.00 by the bank.  You were arrested and interviewed on 4 March 2013 and told police that Thai pointed to the spot on the documents you needed to signed and you did so.  You indicated an intention to plead guilty on 2 June 2014.  I was told that you transferred ownership of the Lalor house to your sister-in-law, and that you currently pay rent to her to live in that house, and that the Tarneit property was sold.  You were, for a short time, subject to a restraining order over the Lalor property but this was withdrawn as the transfer of the property to your sister-in-law was deemed legitimate.

6       By way of personal background, you are now aged 34 years.  You arrived in Australia from Vietnam in 1999, at the age of 19, on a Student Visa.  You initially undertook an English course before commencing, but not finishing, an accounting course.  You worked for a poultry factory up until 2003, when you ceased work upon the birth of your first child.  You have two children, aged 11 and 7 that are in your sole custody.  Your divorce was finalised in 2012 and your husband does not contribute financially to the upbringing of your children.  You are in receipt of Centrelink benefits.  Out of those benefits you pay rent of $800.00 per month in addition to regular living expenses.

7       Mr Tomlinson submitted that a fine was the appropriate penalty in the circumstances as it would give effect to general deterrence.  He submitted that whilst you did not have an immediate capacity to pay the fine you might be able to pay some of it before making an application to convert the outstanding amount to community work.

8       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.

9       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.

10      Whilst there was always an intention to deceive the bank into making the loans, 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 financial loss.

11      I take into account your plea of guilty.  While not at the earliest opportunity, I am satisfied that it nevertheless demonstrates acceptance of responsibility, has facilitated the course of justice, has saved time and cost, and evidences remorse.  You have no prior convictions and nothing pending and are previously of good character.  I am satisfied you are unlikely to offend in this way again and for these reasons, I am satisfied that your offending does not warrant a custodial sentence and I propose to impose an aggregate monetary penalty.  Mr Devlin submitted that it was appropriate to do so in the circumstances of this case.

12      Ms Tran, would you please stand.  On both charges of obtaining a financial advantage by deception, you are convicted and fined an aggregate of $6,000.00.  I grant a stay of six months to 2 January 2015 for the payment of the fine.

13 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 six months’ imprisonment. .

14      HIS HONOUR: Anything else?

15      COUNSEL: No.

16      HIS HONOUR: Thank you.  You may step out of the dock, Ms Tran.

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