Director of Public Prosecutions v Ung
[2023] VCC 2383
•14 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02366
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZUHUA UNG |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October 2023 | |
DATE OF SENTENCE: | 14 December 2023 | |
CASE MAY BE CITED AS: | DPP v Ung | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2383 | |
REASONS FOR SENTENCE
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Subject:SENTENCE – CRIMINAL LAW
Catchwords: One charge of making a false document;
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of one year and nine months’ imprisonment with a non-parole period of one year and three months imprisonment. 58 days of pre-sentence detention reckoned as served. 6AAA declaration – two years and six months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Cashmore | Office of Public Prosecutions |
| For the Accused | Mr P. Dunn KC | Josh Smith Legal |
HER HONOUR:
Introduction
1Zuhua William Ung, you have pleaded guilty to an indictment containing one charge of make a false document, which carries a maximum penalty of 10 years’ imprisonment, and one charge of obtaining a financial advantage by deception, which carries a maximum penalty of 20 years’ imprisonment.
2The circumstances of which you came to commit those offences are set out in the Summary of Prosecution Opening dated 5 June 2023 (Exhibit A). The prosecution also relied on:
· Prosecutions submissions on sentence (Exhibit B);
· Sentencing snapshot for obtaining financial advantage by deception (Exhibit C);
· Victim Impact Statement of Cuong Pham dated 12 October 2023 (Exhibit D);
· Order of then Judicial Registrar Burchell dated 31 December 2020 (Exhibit E);
· Police summary of prior offending (Exhibit F);
· LEAP summary of Senior Constable Tarabaras (Exhibit G);
· Comparable cases and sentencing snapshot (Exhibit H).
3In addition to the matters advanced in oral argument, your counsel relied on:
· Defence plea submissions dated 11 October 2023 with chronology (Exhibit 1);
· Psychological report of Gina Cidoni dated 14 June 2023 (Exhibit 2);
· Bundle of character references (Exhibit 3);
· Letter of apology (Exhibit 4);
· Comparable cases (Exhibit 5).
4I have had careful regard to all exhibited documents, as well as to the matters addressed in the oral plea in mitigation of penalty.
Circumstances of your offending
5At the time of your offending, you were aged between 33 and 34 years. The victims of your offending are Dy Quyen Nguyen and Cuong Pham. They are in a relationship. You and Mr Pham have known each other for approximately 25 years, having attended high school together. In or around April 2018, Mr Pham and Ms Nguyen were considering building a home, and contacted you, because Mr Pham knew you to be working in the building industry. At the time, I understand that you were working as a sales agent and mortgage adviser as a sole trader.
6After Mr Pham made contact with you, you suggested to Ms Nguyen and Mr Pham that they engage a company called Integra Quality Homes, and you told them that you would draft the building design, and you offered them a $30,000 rebate for additional upgrades to a home and land package. You then drafted a land and home package for your victims, and they signed a contract with Integra Quality Homes, and paid a deposit of 5 per cent, which was approximately $11,891.95.
7In or around January 2019, Ms Nguyen and Mr Pham were advised by Integra Quality Homes that the $30,000 rebate offered to them by you would not be honoured. You then told them that you would assist them in your capacity as a sole trader/agent and that you would work with another wholesale builder called Creation Homes. You told them that you would also work with them to complete a property acquisition and design in the same way that you had initially intended with Integra Quality Homes.
8You then organised for your victims to build with Creation Homes, and you
informed them that you would transfer their 5 per cent deposit of $11,891.95 into a business trust account, for use as a deposit for their build with Creation Homes.
9In February 2019, you asked a friend to contact the victims using the name 'Chris Johnson' purporting to work for Creation Homes. Your friend did so as a favour to you, without knowing the reason for the request. The victims were told that there was a delay in the project, but there was no reason for them to be concerned.
10On 12 February 2019, your victims received an email from you, purporting to be an individual named Chris Johnson from 'Spherical Finance' utilising the email address [email protected]. The victims were told that their bank cheque (that is, the initial 5 per cent deposit for Integra Quality Homes) had been received.
11In March 2019, you attended Mr Pham and Ms Nguyen’s home with a Creation Homes contract for them to sign, and you advised them that you would give the contract to Creation Homes on their behalf and provide them with an executed copy.
12Having received a signed contract (which is a topic to which I will return), Creation Homes commenced building in July 2019. On 26 July 2019, Creation Homes sent an invoice to persons whom they believed to be Mr Pham and Ms Nguyen for the 'base stage'. This invoice was never paid.
13On 7 August 2019, Mr Pham and Ms Nguyen received what they believed to be their first building invoice for the base and frame of the home, in the amount of $66,520. You in fact had sent that invoice to the victims using the email account [email protected], cc’d to [email protected]. The account details provided on the invoice were:
Bank: Commonwealth Bank of Australia (CBA)
Account Name: Creation Homes
BSB: 063 791
Account Number: 11525829
14On 12 August 2019, your two victims authorised the ANZ Bank to make payment into the Creation Homes account, and they also made a payment of $14,500 into the same account from their personal savings account. The total amount paid was $81,020. This $81,020 is the first part of $139,470 in financial advantage that you obtained by deception referable to your rolled-up Charge 2.
15Checks conducted with the Commonwealth Bank of Australia have revealed the account holder of the Creation Homes account to be in the name Frank Maselli.
16Mr Maselli and you were close friends at the time of your offending. In 2019, you borrowed $10,000 from Mr Maselli, promising to repay him in the following weeks. Mr Maselli provided you with his bank account details so that he could receive payment.
17Having received the funds transferred by your victims, Mr Maselli told you that he had been overpaid, to which you instructed Mr Maselli to keep the $10,000 owing to him and return the remainder. You provided Mr Maselli with the bank account details of your mother and former partner. At the time, you had told your former partner that you were working as a sole trader, and asked her to use her bank account to receive commission payments. You told her that you could not use your own accounts as you were being sued by Integra Homes.
18
Between July and November 2019, Creation Homes project manager, Bindi Howell, had been in contact with you and the fictitious identity “Johnson”, who
Ms Howell said sounded very similar to you on the phone. Initially, Ms Howell told you that building works would be suspended due to lack of payment, however, by the time Creation Homes had realised the base stage had not been paid for, they had already built the frame and due to not being able to leave the frame in an unfinished state, Creation Homes finished the build in December 2019.
19On 16 September 2019, Mr Pham and Ms Nguyen received a second invoice, for
the “lock up stage”, in the amount of $48,500, from you utilising the email account [email protected]. The account details provided on the progress payment instruction were as follows:
Account Name: Creation Homes
BSB: 063 168
Account Number: 10936899
20On 7 October 2019, Mr Pham and Ms Nguyen authorised ANZ Bank to make payment into this second Creation Homes account, as directed in the progress payment instructions provided by you. They also made a payment of $10,000 into the same account from their personal savings account, totalling $58,450. This $58,450 is the second part of the $139,470 in financial advantage that you obtained by deception referable to your rolled-up Charge 2.
21Here, I interpolate that the false representations referable to Charge 2 comprise your actions in rendering the building invoices payable to Creation Homes Pty Ltd, signalling that the bank accounts listed on those building invoices were the true and correct accounts of Creation Homes and that the payments that were made to the bank accounts listed on the building invoices were monetary instalments for a new home build with Creation Homes Pty Ltd.
22Checks conducted with the Commonwealth Bank revealed the account holder of the second Creation Homes account to be yourself.
23In January 2020, Mr Pham and Ms Nguyen contacted you as their build was not complete. They had earlier been promised that it would be ready by December 2019. You attributed the delay to a lack of tradesmen.
24On 6 April 2020, Ms Nguyen decided to contact Creation Homes directly, after there had been no further progress made on their home. Ms Nguyen spoke to Bindi Howell, who informed her that she was under the impression that she had been communicating with Mr Pham for some time, via the email address [email protected].
25Ms Howell subsequently forwarded to Ms Nguyen a copy of the contract which had been provided to Creation Homes by you, on Mr Pham and Ms Nguyen’s behalf. Ms Nguyen identified that the contract had numerous signatures and initials which had not been written by herself, or her partner. She also identified that the email address provided on the 'Particulars of Contract – Owners' section was [email protected], which is not an email address used either by her or her partner. This is the offending referable to your Charge 1, that on 12 April 2019 you made a false document, namely a Victorian new homes contract, with the intention that you would use it to induce Creation Homes Pty Ltd to accept it as genuine.
26Subsequent checks on the email address [email protected] revealed it to be registered to you.
Investigation, arrest and interview; procedural history
27On 2 June 2022, you attended Sunshine Police Station where you were interviewed, and you provided police with contact details including the email address [email protected] as your email address. You otherwise made a 'no comment' interview, as is your right. You later provided a statement to police confessing your involvement, to which I will return in a moment.
Effect on the victims
28As a result of your offending, you caused Ms Nguyen and Mr Pham to experience a loss of $139,470, to which you have not made any payment whatsoever by way of restitution. A civil proceeding has ensued in the meantime resulting in their recovery of a sum of money from another or others, not you.
29I have the benefit of a Victim Impact Statement from your victim Mr Pham, who describes himself as a man who has endured immeasurable pain and devastation as the victim of a fraudulent crime committed by his best friend of over 25 years, someone he considered a brother and family. You have caused him pain that he describes as 'beyond words.' He described using heartfelt words, that the deception caused to him by someone that he trusted wholeheartedly to have left 'a wound that cuts deep into my soul.' He has described the torment and sadness of his partner Ms Nguyen, and he has taken on a feeling of guilt and responsibility for placing his trust in someone capable of such deceit.
30As a result of your offending, you have not just caused financial loss, you have caused enormous torment to your former close friend.
Plea of guilty (and stage); introduction to remorse
31On 25 August 2022, you provided police with a statement in which you made full admissions to your offending, and you told police that you wanted to cooperate with them and take responsibility for your actions.
32You were charged on summons on 30 August 2022 and the matter proceeded through the committal stream of the Magistrates’ Court, resolving with you indicating your intention to plead guilty at the second committal mention. The matter was then transferred to this court, and proceeded as a plea in mitigation of penalty before me.
33I accept and take into account that you entered your plea of guilty at the earliest available stage, and further that your plea is indicative and reflective of your remorse. I take this plea, the stage at which it was entered, your remorse, and your facilitation of justice into account in significant mitigation of the sentence that I would otherwise impose. Here, I interpolate that at the point at which you indicated your intention to plead guilty, the court was experiencing unfortunate delays in listing matters for trial as the result of the effects of the COVID-19 pandemic. Your plea was of special utilitarian significance and I afford mitigation to this factor in accordance with the principles outlined by the Court of Appeal in the case of Worboyes[1].
[1] Worboyes v The Queen[2021] VSCA 169.
Personal circumstances
34You are now 38, and as I have mentioned you were between 33 and 34 years of age at the time of your offending. You are unmarried and have no children.
35You are the eldest of two children born to loving parents, your mother is a factory
worker, originally from Cambodia, your father is also a factory worker, originally from Vietnam.
36You were born in Melbourne, and attended kindergarten at the age of four but did not speak English, and as a result you needed to repeat. In 1990, when you were aged five, you and your sister moved to Delahey to live with your mother’s parents, as owing to the long hours that your parents worked, they could not take care of you, and their budget did not extend to childcare. You and your sister were raised by your maternal grandparents, and you would see your parents at weekends and from time to time. You attended McKellar Primary School and a local high school.
37In 2002, when you were aged 17, your parents bought a house in Taylors Lakes, and you moved in with them, and the following year you completed Year 12, whilst working part-time in hospitality.
38In 2004, you commenced studying at RMIT University, and you worked in retail at a jeans store in the Melbourne CBD.
39You commenced a long-term relationship, which ended in 2011.
40In 2007, you commenced study at Deakin University at the Burwood Campus, and you also developed an interest in visiting the gym and working on weight training.
41In 2011, you started work at a GPS company in Mulgrave called MT Data, and the following year in 2012, when you were aged 27, whilst living at home with your parents at Taylors Lakes and with the assistance of a family loan, you and a business partner bought GMC Health Foods, a franchise in Acland Street, St Kilda for $60,000 each. Two years later, this business collapsed due to competition from larger stores.
42In an effort to save this business, you paid a cheque for stock but the cheque was dishonoured. The business failed, and the money that had been invested was lost.
43You started working for JPM Property Finance Solutions, run by your former
partner’s brother, and you were involved in the sale of house and land packages on vendor terms. This business subsequently collapsed, and the following year, in 2015 when you were aged 30 you commenced work as a sales consultant for Integra Homes, selling house and land packages in the south-east and western suburbs of Melbourne. You then commenced a relationship with the partner to whom I have referred in your Summary of Offending, who worked at the Commonwealth Bank.
44In 2016, when you were aged 30, you were convicted of seven charges of obtaining a financial advantage by deception, four charges of using a false document to prejudice other, and one charge of possess of drug of dependence, a prescription drug, and were fined $5000. Concerningly, this court appearance occurred only three years prior to your current offending.
45In 2018, whilst working for Integra Homes, you paid a 10 per cent deposit on a house in Maidstone and in April of that year, you accepted the deposit of $11,891 from your victims.
46In November that year, your relationship failed due to you having an affair with another person. You lost your job at Integra Homes, you commenced using drugs, mainly cocaine, and you returned to live with your parents.
47In 2019, at the time of your offending, you continued using cocaine to excess and your addiction is, as I understand it, the background to and motivation for your current offending.
48In 2020, in the midst of the pandemic, your financial problems continued and you started working for a property development in St Kilda Road, and lived with a friend in Maidstone. A court appearance for possess cocaine, Trenbolone, testosterone and cannabis, which postdate this offending, resulted in a conviction and fine. You returned to live with your parents in 2021.
49As I have mentioned, you were investigated and charged in 2022 and the case
has continued until this year. There has been a significant delay between your commission of these offences and the date of sentence, and the matter has been hanging over your head in the meantime, which I take into account in mitigation of sentence. You have managed to overcome your addiction to cocaine, which is to your credit.
50Notwithstanding your bail responsibilities and the reminder of the continuing nature of this case, you have been implicated in other acts of theft in the meantime and have other charges pending in the Magistrates' Court.
51Gina Cidoni, psychologist, has assessed you and has provided me with a report as to our psychological presentation. She considers that your substance abuse has played a significant role in your offending. Concerningly, she considers that you exhibit traits commonly associated with borderline personality which means you may experience enduring difficulties in regulating your emotions and you may have unstable relationships and display impulsive behaviours. You also show symptoms of high anxiety, of depression, and your emotions may fluctuate rapidly and unpredictably.
52Ms Cidoni considers that given your borderline personality disorder, your history of deception – and here I interpolate that she has not mentioned your pending charges – and your substance abuse, you carry a noticeable risk of reoffending. This is a fair conclusion. She also considers continued monitoring and support from mental health 'and legal professionals' to be vital components in managing your reoffending risk and assisting with your rehabilitation.
53She notes that you have expressed remorse for your offending. Your referees also make this observation and I have read your letter and I have taken this fact into account as I observed earlier. Your referees consider you to be an intelligent and pleasant person who has experienced setbacks in business and who is working to overcome traumatic child experiences. You have caused sadness and disappointment to your parents, they have told you, and they continue to support you, including by liquidating their assets that have been achieved through a lifetime of backbreaking work to cover the financial problems that you have incurred.
Objective seriousness of your offending, moral culpability
54
This is serious offending, premeditated, planned, involving elements of sophistication through the creation of false email addresses, the provision of altered account names and the involvement of an innocent agent. Your first charge inter alia diverts correspondence from Creation Homes to your email account whilst also containing other endorsements of contract which Mr Pham and
Ms Nguyen did not write. You were altering the rights and obligations to the contract to the victims' detriment.
55Your second charge, which of its nature is a rolled-up charge, leads to its characterisation as a continuing criminal enterprise and resulted in a $139,470 payment, which is a very significant quantum. As a sales agent and mortgage advisor you were in a position of trust over Mr Pham and Ms Nguyen which aggravates your offending, but also he was your close friend, and that served as no protection from your brazen, callous and dishonest need to strip him of a substantial amount of his money. Your gain was motivated by your need to get money to cover your cocaine addiction. This is not the first time you have resorted to dishonesty as demonstrated by your prior conviction.
Relevant sentencing principles, current sentencing practices, sentencing submissions
56I take into account the purposes for which sentence must be imposed, including the need for deterrence, both general and also specific, given your prior conviction for offending of a similar nature. This offending is an escalation of the gravity of that offending.
57The sentences that I will impose will punish you and denounce your behaviour and allow for community protection whilst allowing for your continued efforts at rehabilitation. I am somewhat cautious about your prospects of rehabilitation but I do accept your very learned senior counsel's characterisation of you as “damaged goods but not without hope”. I intend to structure my sentence so that you can derive support in your rehabilitative journey.
58I am obliged in this exercise to pay close regard to current sentencing practices, of which I am of course aware. I have had the assistance from counsel of sentencing statistics and past similar cases and have read the exhibits closely.
59In persuasive submissions, your counsel submitted that a sentence involving immediate custody to be followed by a community corrections order would represent a proportionate penalty and adequately satisfy all of the purposes for which sentence must be imposed in this case.
60The prosecution submitted that a sentence involving a head sentence and a minimum period before parole eligibility was necessary.
61I have been mindful of the totality principle of sentencing and am also acutely conscious of the need for parsimony, and I have reflected very carefully upon your counsel's submissions. I am ultimately of the view that such a disposition does not adequately satisfy all of the purposes for which sentence must be imposed in this case. I have been mindful of the fact that this is your first term of imprisonment and I trust and infer that it will be a salutary effect.
Sentence
62I now pass the following sentences:
(a) On Charge 1 of make false document, you are convicted and sentenced to six months' imprisonment, three months of which I order be served cumulatively upon the base.
(b) On Charge 2 of obtaining a financial advantage by deception you are convicted and sentenced to one year and six months' imprisonment. This is the base
This is a total effective sentence of one year and nine months' imprisonment and
I order that you serve one year and three months before parole eligibility. I declare 58 days pre-sentence detention reckoned as served, excluding today.
63Were it not for your pleas of guilty in this case, had you pleaded not guilty and been found guilty following trial, I would have imposed a head sentence of two years and six months' imprisonment.
64Any ancillary orders? Any other matters to raise?
65COUNSEL: No, Your Honour.
66HER HONOUR: Thank you. Adjourn sine die, please.
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