Director of Public Prosecutions v Trinh, Nguyet

[2013] VCC 494

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01240

DIRECTOR OF PUBLIC PROSECUTIONS

v

NGUYET TRINH

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2013
DATE OF SENTENCE:	30 January 2013
CASE MAY BE CITED AS:	DPP v Trinh, Nguyet
MEDIUM NEUTRAL CITATION:	[2013] VCC 494

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Milesi	Office of Public Prosecutions
For the Accused	Ms Morris	Robert Stary Lawyers

HIS HONOUR:

1 Nguyet Minh Thi Trinh, you have pleaded guilty to one charge of obtaining a financial advantage by deception, contrary to s.82(1) of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment.

2       You pleaded guilty at committal mention on 18 July 2012, and I have taken your early plea of guilty into account in your favour in mitigation of sentence. 

3       A summary of prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows. 

4       On 21 September 2011 you made an application for a home loan from Bank West through Tuan Duong, a mortgage broker, to purchase a property situated at 86 Holts Lane, Darley, a suburb near Bacchus Marsh.  The application for the finance included the following representations.  (1), That you were employed full-time as a chef and had been so employed for one year.  (2), That you were employed by the Hoi An restaurant.  (3), That your annual income was in the sum of $51,799.80.  And (4), that you had total assets of $70,000, including a Honda motor vehicle valued at $20,000.

5       Two fraudulent payslips were also submitted to the bank together with the application.  The representations that I have referred to were false, but you signed the application on the basis that those representations were true and correct.  As a result of the application provided to Bank West, the home loan was approved, and settlement of the property occurred on 17 October 2011 wherein Bank West advanced the sum to the vendor of $268,951.74.  You intended to own the property as an investment property and advertised in a Vietnamese newspaper in the western suburbs of Melbourne for tenants to rent it.  Those tenants did rent the property, and during the course of an investigation into the growing of cannabis police in November 2011 police became aware that the loan had been obtained by you on the basis of the false representations that you had made to Bank West.  On 15 February 2012 investigating police conducted a record of interview with you, wherein you made a number of admissions, and in particular you admitted that the representations that you had made to Bank West were in fact false.

6       Following the release of the property for the purposes of sale, it was sold in October 2012, and the Bank West loan was repaid in full, and accordingly the bank suffered no loss as a result of the false representations that you made.

7       As submitted by the prosecution, it is clear that your offending may be properly described as serious, and the banking system and in particular the obtaining of finance for the purpose of home purchases is based upon true and correct representations made by applicants for finance to financial institutions.  Accordingly, the sentencing principle of general deterrence is a significant consideration in your case. 

8       I now turn to your personal circumstances.  You were born on 2 March 1979 in Vietnam, and you are now 33 years old.  You were 32 at the time of your offending.  You are married and have one child, now aged 13 months.  You have no prior convictions or court appearances, and no outstanding or subsequent convictions or charges.

9       I have received in evidence three references that speak of your good character, and I accept that you are a person of good character.  I have also received in evidence a psychological report of Ms Carla Lechner, a consulting and forensic psychologist and a psychiatric report of Dr Kevin Ong, a consulting and forensic psychiatrist. Both identify you to be suffering from a depressive illness which in all probability finds its origins in the sexual abuse of you when you were a child, residing in Vietnam, by your uncle.  It would appear that that sexual abuse compromised both your education and socialisation, and ultimately you travelled to Australia at the age of 17, sponsored by an aunt, and you then resided in Sydney.  Your parents moved to Australia in 2007, and you moved with your family to Melbourne in 2008.  I accept that you have the support of a close and concerned family, and of your husband, and I further accept that your depressive illness would deteriorate in the event that you were imprisoned and, further, that imprisonment would involve a degree of hardship in your case, which would not be experienced by a person not suffering from your depressive illness, and I have taken those two factors in particular into account in mitigation of sentence in this case. 

10      Furthermore, I accept that imprisonment may involve the separation of your child from you, which would further exacerbate your depressive illness and further compound the hardship that you would experience as a result of imprisonment. 

11      As submitted by the prosecution during the course of the submissions in the plea in mitigation, general deterrence is a significant sentencing factor and, furthermore, your conduct must be the subject of denunciation by this court for the reasons that I have already referred to, namely the need of the court to ensure the integrity of the financial and banking system where possible. 

12 Despite the powerful factors in mitigation relied upon by your counsel, in my opinion imprisonment is the only appropriate sentence available to me, although, as I have observed during the course of submissions, a community corrections order would provide for your support within the community. But having regard to the various matters relied upon by the prosecution and the provisions of the Sentencing Act 1991, I have arrived at the conclusion that imprisonment is the appropriate course to adopt in your case.

13      It was submitted on your behalf that in all the circumstances, an appropriate proportionate penalty would be a wholly suspended term of imprisonment, and this submission was not opposed by the prosecution. 

14 Having regard to the provisions of s.27 of the Sentencing Act 1991, I am satisfied that it is desirable in your case to suspend the whole of the period of imprisonment that I propose to impose in your case. In the result the sentence of the court is as follows.

15      On the charge of obtaining a financial advantage by deception, you are convicted and sentenced to be imprisoned for a period of 12 months.  I order that the whole of that sentence be suspended for a period of two years. 

16      But for your plea of guilty, I would have sentenced you to a term of imprisonment of 15 months, nine months of which would be wholly suspended for a period of two years.

17      I need to explain to you, Ms Trinh, that in the event that you offend, or commit an offence punishable by imprisonment during the period of suspension, that is for the next two years, you will come before the court to be re-sentenced, and in all probability I would be required to direct that you serve the term of imprisonment that I have now suspended. 

18      Are there any further orders required?

19      MR MILESI:  No, Your Honour.

20      HIS HONOUR:  Thank you, Mr Melissi.  Ms Morris?

21      MS MORRIS:  No, Your Honour.

22      HIS HONOUR:  Yes, thank you. 

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