Director of Public Prosecutions v Vu

[2016] VCC 736

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01792

DIRECTOR OF PUBLIC PROSECUTIONS

v

CONG VU

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2016
DATE OF SENTENCE:	31 May 2016
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2016] VCC 736

REASONS FOR SENTENCE
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Subject:  Obtain Property by Deception
Sentence:  3 year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Zebrowski
For the Accused	Ms D. McCann

HIS HONOUR:

1Cong Qu Vu, you have pleaded guilty to four charges of obtaining property by deception.  The offending occurred in January and February 2013.

2The amount involved in each of the charges means that by definition each of the offences is to be regarded as a continuing criminal enterprise offence, in the result that the maximum penalty provided for the charge is to be doubled.

3The maximum penalty provided in the statute for this offence is ten years, so that in the case of each of these charges, the maximum penalty is elevated to 20 years' imprisonment.  That gives you some idea of the seriousness of this offending.

4The circumstances of your offending are contained in a prosecution summary in writing dated 16 September 2015, which I admitted into evidence as Exhibit A on the plea.  It was read in open court by the prosecutor Mr Zebrowski.  Your counsel, Ms McCann accepted that the prosecution summary was accurate and formed the proper basis upon which I can proceed to sentence you.

5It is not necessary that I here again set out what is there found in the prosecution summary, except in a very general way.

6You have been charged and doubtless pleaded guilty to these offences on the basis that you were complicit in the offending with your then partner Ms Nguyen.  At the time of these offences, she was a bank manager employed by the National Australia Bank and she was in a position of trust.

7In order to please you, she used her position within the bank to open four accounts in respect of which she arranged an authorised overdraft limit of $60,000.  The funds then available to each of the accounts were drawn upon.  Some of the money was withdrawn by her, Ms Nguyen, and given to you and some of the money was withdrawn yourself.

8The money was used by you to finance a gambling addiction.  Records obtained from the Crown Casino for the calendar year 2013 reveal that you turned over in excess of $240,000 in that year.

9The moneys have not been recovered, save that Ms Nguyen who was sentenced in this court by Her Honour Judge Douglas made a compensation order against her and she has been gainfully employed although she lost her position within the bank.

10The summary shows that each of these charges must be regarded as a serious example of what is a serious offence.

11At the time that you pleaded guilty to the charges, you also admitted a criminal history, the relevant parts of which relate to offending between March 1997, when you were dealt with in the Melbourne Magistrates' Court for trafficking and using heroin to 23 November 1998, when you were again dealt with on the same charges at the Dandenong Magistrates' Court.  Overall, you have prior convictions for drug offences resulting from five previous court appearances.

12Importantly, you did not offend except on some minor driving matters, between November 1998 and the time of this offending.

13You have pleaded guilty to the charges and you did so at the earliest available opportunity.  By your pleas of guilty you have saved the time and cost of a trial and because of your pleas of guilty, you are entitled in my view, to a reduction in sentence and this will be reflected in the sentence that I will shortly pass.  Also I treat your pleas of guilty as demonstrating genuine remorse.

14Ms McCann prepared a helpful outline of plea submissions which I admitted into evidence as Exhibit 1.  I borrow from those submissions, to set out briefly some of your background.

15You were born in Vietnam and you are now 37 years of age and you travelled to Australia when 13 years of age.  Your parents separated soon after the family was reunited in Australia.  You are one of three siblings.  Your sister sadly died when she was just 16.

16I was told and accept that you found it difficult to adjust to life in Australia, especially after your parents' separation and because you spoke little English.

17At the age of 14 you left home and moved to Springvale and you started taking drugs.  You formed a brief relationship with a woman, Chantelle, with whom you have a son, Calvin.  You were then aged 17.  Calvin is cared for by your mother and has been since he was born.  He is now 21 years of age.

18You received a term of imprisonment for trafficking in 1998 and when released in 1999, you went to Odyssey House residential rehabilitation program.  You worked as a chef and completed a Certificate in Commercial Cooking.  You then went on to obtain a Diploma in Youth Work, Drugs and Alcohol and commenced to work for the Youth Substance Abuse service in Eltham.  You were employed with that organisation from 2001 to 2014, when you stopped work because you had lost your driving licence and were unable to undertake the duties required.

19You met your co-accused, Ms Vu in 2003.  I was told and accept that you regarded this relationship as good and strong and you disagree with some of the statements that she apparently told the police about you.

20You became involved in the café business.  Due to problems in your relationship with Ms Nguyen and the doubtless commotion caused by this offending and the charges that followed, you were unable to concentrate your efforts in that business and the relationship ended with Ms Nguyen during 2014.

21All of that pressure resulted in you again returning to the use of the drug heroin, for which you have subsequently been charged and convicted of possessing and using.  There are other charges to be dealt with, I am told, in the Magistrates' Court tomorrow of a similar kind.

22You were charged in relation to these matters and there was a filing hearing on 11 June 2015.  You were bailed then to appear at a committal mention to be held on 29 July, but you failed to appear and a warrant was issued for your arrest.

23There was a further filing hearing on 18 September 2015 and you attended that hearing.  On 15 October 2015, there was a further committal mention and the matter resolved into a plea.

24On 22 February this year, the matter was listed for a plea hearing before this court but you failed to appear and again, a warrant was issued and you were apprehended on 14 March 2016.

25The following day on 15 March you were brought before this court and this plea was listed and you were remanded in custody.  You have served 78 days
pre-sentence detention.

26The thrust of the plea by Ms McCann was that you are a person given to addictions but you have shown by your conduct in the past, that you are capable of resurrecting yourself from these addictions and the consequent offending.  That is demonstrated by the fact that you did not offend between 1998 and 2013.

27Given that all of your offending up until 1998 was for drug offending, a gap of some 15 years without offending is commendable and I accept that it bespeaks an offender who is capable when properly motivated of rehabilitating himself.  In passing sentence, I have taken that into account.

28Her Honour Judge Douglas sentenced Ms Nguyen on 17 September 2015 and Her Honour imposed a community corrections order with conditions and with conviction for a period of three years.

29As might be expected, Ms McCann draws upon that sentence and argues that any sentence imposed by me must apply in a proper way, the principle of parity and sentencing.

30The sentence that I will impose has full regard to parity, but I am of the view that there are certain distinguishing factors here weighing against you, so that the sentence that I impose will have more of a punitive element to it.

31You were the one that chose to gamble and you did so voluntarily and you were the one that benefited from this offending, to the extent of more than $240,000 which was used directly to fund your gambling habit.  None of the money has been repaid and the prospects of seeing it repaid, in my opinion, appear bleak.

32However, you have been now in custody for some 78 days and I am prepared to accept as I have already indicated, that you probably can be reclaimed in the sense that given proper opportunity, to amend your ways and to address your drug problems.  There is a reasonable prospect, I think, of you being fully rehabilitated.

33A community corrections order is designed to meet the purposes of sentencing.  In particular, just punishment, general and specific deterrence where necessary and rehabilitation.  I think each of those purposes can be met in this case by a short term of imprisonment, for time already served and the imposition of a community corrections order for which there will be a number of conditions being 200 hours community work, treatment and rehabilitation programs to reduce reoffending, supervision and judicial monitoring every six months.

34On each of the charges, you are convicted and sentenced to a term of imprisonment of 78 days.  I declare that there has been 78 days pre-sentence detention and that 78 days be reckoned as time already served under the sentences imposed this day.

35Upon your release, there will commence a community corrections order for a period of three years with the conditions that I have already mentioned.

36I have been asked to make a compensation order in favour of the National Australia Bank.  That application was not opposed and when the order is prepared, I will sign it.

37Any questions arising out of that?

38MS McCANN:  No, Your Honour.

39HIS HONOUR:  The 78 days is correct, is it?

40MR ZEBROWSKI:  Yes, Your Honour.

41HIS HONOUR:  My intention is that your client will be released today.

42MS McCANN:  Your Honour, the matters that are in the Melbourne Magistrates' Court tomorrow, he is on remand for.

43HIS HONOUR:  I see.

44MS McCANN:  So it ‑ ‑ ‑

45HIS HONOUR:  So he will complete the sentence but he will be on remand.

46MS McCANN:  Yes.

47HIS HONOUR:  Very well.

48MS McCANN:  Until those matters are finalised.

49HIS HONOUR:  Yes, very well.

50MS McCANN:  If there are difficulties that arises as a result of whatever the Magistrate determines to do with him tomorrow, I will manage - be in touch with your associate in terms of any start date attaching to that community corrections order.

51HIS HONOUR:  Very well.  Thank you.

52MR ZEBROWSKI: Your Honour, that only leaves the issue of s.6AAA.

53HIS HONOUR:  Yes.  Thank you for reminding me about that.

54For the purposes of s.6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty to the charges, I would have imposed a term of imprisonment of two years.

55MR ZEBROWSKI:  As Your Honour pleases.

56MS McCANN:  If it please the Court.

57HIS HONOUR:  Now Mr Vu, do you understand what I have done?

58OFFENDER:  Yes, I do.

59HIS HONOUR:  You have worked in the system at YSAS.  You should be familiar with it.  If you commit an offence punishable by a term of imprisonment during the course of three years whilst you are on this community corrections order, you will be brought back and re-sentenced.  Do you understand?

60OFFENDER:  I understand.

61HIS HONOUR:  Or you could be resentenced, I should say.  That includes, if you breach any of the conditions.  That is, the unpaid work condition and the failing to attend for supervision and addressing programs to address your reoffending.  Do you understand?

62OFFENDER:  Yes, I do.

63HIS HONOUR:  And your drug problem.  So the orders are designed to try and help you.  But if you breach them, you will come back before me.  Now I have also provided a condition for judicial monitoring, which means that you will be brought back before me each six months and I will receive a report as to how you are going.  Do you understand?

64OFFENDER:  Yes, I do.

65HIS HONOUR:  So if you step out of line, I will deal with you.  Do you understand?  So whether or not you take advantage of it is entirely up to you.  All right.  Very well.  We will need to get your client to sign the community corrections order, Ms McCann.

66MS McCANN:  May I approach him, Your Honour?

67HIS HONOUR:  Yes, certainly.  Very well, Mr Vu.  You will be taken back into custody to be kept on remand, depending upon what happens tomorrow.  Do you understand?

68OFFENDER:  Yes, I do.

69HIS HONOUR:  Other than that, I wish you well.  I thank both counsel for their assistance.  Thank you.

70MR ZEBROWSKI:  As Your Honour pleases.

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