Director of Public Prosecutions v Trinh, Chau Ha
[2014] VCC 1548
•16 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02199
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Chau Ha TRINH |
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JUDGE: | HIS HONOUR CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2014 | |
DATE OF SENTENCE: | 16 September 2014 | |
CASE MAY BE CITED AS: | DPP v TRINH, Chau Ha | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1548 | |
REASONS FOR SENTENCE
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Catchwords: Operation Squid – Obtaining financial advantage by deception – lack of prior convictions – mortgage –
Sentence: Fine with conviction - $3000.00 – Stay 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | Office of Public Prosecutions |
| For the Accused | Mr M Phillips | Victoria Legal Aid |
HIS HONOUR:
1 Chau Ha TRINH, 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 husband is also your co-accused and pleaded guilty before me on 21 February of this year. 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 TRINH, your offending was in relation to a short form loan application jointly signed as true and correct by you and your husband, co-accused Anh Minh Tran, in order to purchase a residential property in Rockbank for you to live in. The application form signed on 30 June 2010 declared you and your co-accused’s joint net monthly income as $4,414.62. Of this amount, your co-accused declared he was employed as a delivery driver at Wild Juice Pty Ltd earning a net monthly income of $3,153.27. This is false, as your co-accused was never employed there as a full time driver. A fraudulent payslip dated 25 June 2010 was prepared and provided by Huynh with the loan application as evidence of your co-accused’s employment and income. You played no part in the preparation of the false payslip. You declared employment with Alphatop Wholesalers Pty Ltd with a net monthly income of $1,261.35. This declaration is not alleged to be false.
6 Further, your joint application disclosed total assets of $216,303.00. This figure is false. Centrelink records indicate that you received a Newstart allowance of $10,780.95 in 2009 and $3,000.64 in 2010. No such assets were declared to Centrelink.
7 On 13 July 2010, Suncorp Metway provided you with a letter of offer approving a net loan of $272,386.22 which you accepted. The loan was advanced by Suncorp Metway on 27 August 2010.
8 You were arrested and interviewed on 6 March 2013 and indicated on 14 August 2014 that you would plead guilty to this offence, following committal to this Court in late 2013. 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.
9 By way of personal background, you are now aged 41 years and were born in Vietnam. You migrated to Australia in 2004. While you do not read or speak English, you were educated to the equivalent of year 12 in Da Nang, Vietnam. Further, you have completed a two-year diploma in accounting in Vietnam. You married your husband, co-accused Anh Minh Tran, one year prior to coming to Australia, and have been married for approximately 10 years. You have no children. You have previously worked as a retail assistant, in a hotel and currently work at the Bertocchi Ham factory on a casual basis.
10 On your behalf, Mr Phillips, who appeared for you, submitted that I take into account the following matters by way of mitigation:
1) that you are 41 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 you played a secondary role to that of your husband;
4) that the money was used to finance your family home which you continue to occupy with your husband; and
5) that you have demonstrated, and continue to demonstrate, remorse by accepting responsibility for your actions and by your plea of guilty;
11 It was submitted by Mr Phillips 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 your co-accused’s fraudulent payslip. On the question of penalty, Mr Phillips submitted that either a fine or a Community Correction Order with unpaid community work was appropriate.
12 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.
13 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.
14 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 husband. The bank seems content to continue in its relationship with you.
15 I am obliged to take into account the sentence I imposed on your husband. I accept that your involvement was lesser than his. I take into account your 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.
16 For these reasons I am satisfied that your offending does not warrant a custodial sentence and I propose to impose a fine with conviction. I take into account in fixing the fine that your offending was in the nature of a joint undertaking with your husband and that I should moderate the penalty having regard to the fact that he has already been punished and that a fine will be a penalty against the family.
17 Ms TRINH, would you please stand. On the charge of obtaining financial advantage by deception, you are convicted and fined $3000.00. I grant a stay of 6 months meaning that you have until the 16th of March 2015 to make payment.
18 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 three months’ imprisonment.
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