Director of Public Prosecutions v Zhang
[2014] VCC 1627
•26 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01249
Indictment No E11270846
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THORANY ZHANG |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 September 2014 | |
CASE MAY BE CITED AS: | DPP v Zhang | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1627 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Roussety [2008] VSCA 259
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | |
| For the Accused | Ms L Mendicino |
HER HONOUR:
1 Thorany Zhang, you have pleaded guilty to five charges of obtaining property by deception, Charges 1, 2, 6, 9 and 11; and six charges of obtaining financial advantage by deception, Charges 3, 4, 5, 7, 8 and 10. You have also pleaded guilty to one uplifted summary charge, Summary Charge 4, of being an unlicensed person carrying on a conveyancing business.
2 The maximum penalty for obtaining property by deception and obtaining financial advantage by deception is ten years’ imprisonment. Each of the Charges 3,4,5,7,8 and 10 involves obtaining financial advantage of $50,000. By your pleas of guilty to Charges 3, 4 and 5 you become a continuing criminal enterprise offender. On the basis of the decision in R v Roussety [2008] VSCA 259 the increased maximum penalty of 20 years applies to all of the continuing criminal enterprise offences for which you are to be sentenced, including offences which qualify you as a continuing criminal enterprise offender. Accordingly, the maximum penalty in respect of Charges 3, 4, 5, 7, 8 and 10 becomes 20 years’ imprisonment, pursuant to the provisions of s.6(H) and 6(I) of the Sentencing Act 1991.
3 The maximum penalty for being an unlicensed person carrying on a conveyancing business is two years’ imprisonment or 240 penalty units.
4 The prosecutor applied for the making of an order for the taking of a forensic sample from you. The making of that order was not opposed.
5
The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A. Between 13 May 2011 and 27 February 2013 you purported to be licensed to carry on a conveyancing business which you operated under the business name
HMT Conveyancing Services Vic. You are not licensed as a conveyancer and have never had a conveyancing licence. This is the subject matter of uplifted Summary Charge 4.
6
In March 2010, a Ms Dickinson bought a property in Point Cook.
Ms Dickinson used your business for the conveyancing. You sent
Ms Dickinson documents to sign and settlement was arranged for 18 May 2011. You altered the Transfer of Land and related documents naming yourself as the owner of the property. On 26 September 2011, you lodged four documents at the State Revenue Office. You then paid stamp duty and lodged the Transfer of Land with Land Victoria. You then became the registered proprietor of that property at Point Cook. That is the subject matter of Charge 1.
7 In 2009 a property in Brunswick was purchased by Mr Heen, who is a Singapore resident. Mr Heen used your business to carry out the purchase of the property. The settlement took place on 10 August 2011. Again, you altered all the transfer and related documents for settlement to name yourself as the owner of the property. On 26 September 2011 you went to the State Revenue Office and lodged three necessary documents. You paid stamp duty and lodged the Transfer of Land at Land Victoria. You then became the registered proprietor of the property in Brunswick. This is the subject matter of Charge 2.
8 In November 2011 you made application to the Westpac Bank for refinance on a property in Hoppers Crossing. Your father’s interest in that property had been transferred to you in March 2008. Your mother’s interest in the property was subsequently transferred to you on 8 December 2011. The application for refinance was refused due to insufficient equity. You then reapplied for refinance using your equity in the Hoppers Crossing property and the Point Cook property. You provided a letter purporting to be a document confirming your employment with a company by whom you had never been employed called PPG International. You also provided an altered letter from the rental agents saying that you were the landlord of the property at Point Cook. You also supplied a false rental agreement which purported you were the landlord of the Brunswick property.
9 On the basis of that documentation, Westpac agreed to the mortgage and refinancing application. In November 2011, you signed the Acceptance of Loan Offer and drew the investment loan of $410,000 on 12 December 2011. That is the subject matter of Charge 3. After payment of an existing mortgage and associated bank fees on the Hoppers Crossing property were paid, the sum of $149,962.56 was paid into your Westpac account.
10 In November 2011, you applied to a finance company for a loan of $195,000, using the Brunswick property as security. On 1 December 2011, the company paid $195,000 to you. This mortgage was discharged on 26 June 2012. The obtaining of this financing is the subject matter of Charge 4.
11 In June 2012, you applied to the Westpac Bank for refinance on the Brunswick property making application for $300,000. You supplied a false rental agreement which purported that you were the landlord of the property in Brunswick together with a false rental agreement in respect of the Point Cook property and a false statement of employment from PPG International. Westpac agreed to the mortgage and refinancing application. On 19 June 2012 you drew the investment loan of $300,000. This is the subject matter of Charge 5. After payment of the mortgage on the property arising from the Charge 4 loan and associated bank fees on the loan, the sum of $94,878.70 was paid into your Westpac account.
12 In July 2011 a Ms Knight engaged you and your conveyancing business, on behalf of herself and a Mr Moulding, to remove a deceased co-owner from a title. On 10 July 2012 you lodged a false Transfer of Land with Land Victoria naming the deceased person, Ms Knight and Mr Moulding as vendors and yourself as purchaser. You wrote all the signatures yourself. You then became a registered proprietor of the property. This is the subject matter of Charge 6. Ms Knight and Mr Moulding were unaware of this transaction and, on 2 August 2012, Ms Knight paid you $82.50 for the conveyancing services. This property is in Mount Waverley.
13 In June 2012 you bought a property in Carlton with the settlement date being 1 October 2012. You applied for a mortgage from the Westpac Bank. You again provided false letters of employment, documents to show that you were the owner of properties in Mount Waverley, Brunswick and Point Cook and documents purporting to show you were receiving rent from the Hoppers Crossing property. You also provided documents purporting to show you were receiving rent from the property at Point Cook and an altered rates notice purporting that you were the owner of the Mount Waverley property. On 3 September 2012, you drew down the sum of $670,000 which was secured on the Carlton property. This is the subject of Charge 7. This mortgage was also secured on the property in Mount Waverley.
14 In August 2012 you applied to the Westpac Bank for a mortgage on the Mount Waverley property for $552,000. You supplied a false letter of employment from PPG International and a further document on letterhead from the same company stating your monthly salary. You also provided a false tax statement for rental income on the Hoppers Crossing property and a rental agreement purporting that you were the landlord of the property in Brunswick. You also provided an altered rates notice purporting that you were the owner of the Mount Waverley property. On 27 August 2012, you drew the investment loan of $552,000. That is the subject matter of Charge 8. The funds drawn down were used for the purchase of a property in Carlton.
15
In January 2010 Mr and Mrs Wajs bought a property in Caulfield East. On
August 2011 they nominated a Mr Nicholas as the purchaser. Mr Nicholas used your conveyancing business to organise the purchase. Settlement occurred about 15 September 2011. You altered the transfer and related documents to name yourself as the owner of the property. On 27 February 2013, you lodged the false Transfer of Land with the State Revenue Office. You paid the stamp duty and lodged the Transfer of Land at Land Victoria. You became the registered proprietor of the property in Caulfield East. That is the subject matter of Charge 9.
16 You then applied to the Westpac Bank for a mortgage on the property at Caulfield East. In support of the application, you provided a document purporting to be from PPG International. You also provided false documents to show you were receiving rent from the premises in Mount Waverley, Carlton, Hoppers Crossing and Brunswick East. On 2 April 2013 you drew down $370,000, which was secured on the Caulfield East property. That is the subject matter of Charge 10. After bank loan fees and charges were deducted, $369,895 was paid into your Westpac account.
17
In June 2011 a Mr Dannis purchased a property in Epping. He used you and your conveyancing company for the purchase. The settlement occurred on
14 July 2011. You retained the Certificate of Title at his request. On 22 May 2013 you went to the State Revenue Office and lodged a false Transfer of Land and a false Contract of Sale, purporting to transfer the property from
Mr Dannis to yourself, and a false Notice of Acquisition. You paid the stamp duty and lodged the Transfer of Land at Land Victoria. You then became the registered proprietor of the property in Epping. That is the subject matter of Charge 11.
18 You were interviewed by police on 16 July 2013 and made full admissions to all these offences. You also admitted that you had purchased properties for relatives and had transferred approximately $400,000 to relatives in Laos. Police inquiries established that the amount transferred overseas by you totalled $667,454. You made a confessional statement which you read during the record of interview. You were interviewed again on 11 April 2014 and again made full admissions. The committal mention proceeded by way of straight hand-up brief.
19
Victim impact statements were tendered from
Ms Dickinson, Ms Knight, Mr Nicholas and Mr Moulding.
20
Mr Nicholas, in his victim impact statement, describes the consequences to him of your dishonest actions. He describes the financial and other difficulties he has had in trying to be registered as the legal owner of the property and in the question of the uncertainty as to whether or not he will be able to keep the property, which is still the subject of legal proceedings. Ultimately,
Mr Nicholas was able to receive the outstanding rental payments owed to him but only with great difficulty. Mr Nicholas describes the stress and worry caused to himself and his partner at a time when they are contemplating retirement.
21 Ms Knight also describes the financial, mental and physical impact on her of your actions. She lives in the property that you were dealing with and is allowed to do so by the bank but is concerned that they might evict her at some point. Ms Knight has had to spend money in an effort to get her property back. As with Mr Nicholas, it appears that money is still owing in respect of the mortgage which was secured on that property. Mr Moulding, whose father was an owner of the house prior to his death, describes the stress and upset caused to him. He has also found the financial and emotional costs of the legal proceedings in relation to the property to be very difficult.
22
Ms Dickinson also describes the impact on her following the discovery of what had happened with property she had purchased and the outstanding mortgage. She describes the stress and anxiety caused to herself by this. She and her family also had legal costs associated with your offending.
Ms Dickinson fears that she and her husband will have to sell their home at some point to pay the debt which was incurred by you.
23 In sentencing you, I have taken into account your personal circumstances. You are now 40 old. You were born in Laos. In 1980 you came with your father and grandmother to Australia by boat as refugees. Your father, mother and sister had left Laos earlier. Your father came back for you and your grandmother. You regard him as having done this at great risk to himself and he would often remind you of this when you were a child. You moved around Australia for a time until settling in metropolitan Melbourne.
24 You completed Year 12. You moved to Sydney with your grandmother and stayed there for two years. You completed a business course through Open Learning. When you were 21 you moved back to Melbourne and worked as a seamstress in your mother’s garage at home for four years. Between 2001 and 2005, you were employed as a conveyancing assistant. You worked as a real estate manager in 2006 and as an office assistant in 2006 to 2007. From March 2007 to May 2007 you worked as a contractor with PPG International. In November 2007 you registered HMT Conveyancing and commenced your own conveyancing business.
25 Your parents separated when you were 19 years old. Your father relocated overseas. He currently lives in Thailand with his new partner. After ten years, in 2002 or 2003 you received the message that your father had called and wanted to speak to you. You spoke to him. He reminded you that without him you would still be in Laos. Contact was re-established. Your father returned to Australia in 2004 or 2005. You last spoke to him in 2013. Your mother remains single, is now 52, and lives in the Hoppers Crossing property.
26 You were married when you were 25. You have two children aged 15 and 14. You have had some difficulties in your marriage and separated after you were charged with these offences. Your younger sister also lives in Hoppers Crossing with your grandmother and your two children. Your relationship with your older sister has deteriorated as a result of your offending.
27 You admitted one prior criminal matter. In 1998, you pleaded guilty to knowingly obtaining a benefit not payable.
28 I was advised about one subsequent matter. On 14 July 2014, you pleaded guilty to making a false document. You were given a sentence indication which you accepted. You were released without conviction on a Community Correction Order for a period of 12 months, with the condition that you perform 30 hours of unpaid community work. You have completed four hours of community work. Your counsel said that the document was to give your brother some reassurance, as he was concerned about his position because of your situation.
29
Mr Jeffrey Cummins has assessed you as having chronic adjustment disorder, with mixed anxiety and depressed mood. He said that you present as moderately anxious and moderately depressed, reflective of a reactive adjustment disorder as a result of your arrest and legal situation.
Mr Cummins reports that you had started drinking alcohol in 2001, but your alcohol use became problematic from 2009. In July 2013, you were placed on a mental health plan for mixed anxiety and depression and saw a psychologist on seven occasions.
30 You were diagnosed with Wolff-Parkinson-White syndrome and supraventricular tachycardia in late December 2012. You underwent surgery in January 2012. It appears that that surgery has successfully dealt with your heart condition.
31 In sentencing submissions, your counsel said that you wished to reunite with your children and play a significant role in their lives. You would like to personally apologise to the victims. You have had an opportunity to apologise to Ms Knight.
32 Your counsel said that your offending occurred in the context of what you felt was pressure from your husband and your obligations to your family in terms of financial matters. In August or September 2011, your father had come to your house with his wife and two children. He was complaining about his financial circumstances and you told him that, if you assisted him, he must leave your mother alone.
33 Your counsel submitted that your offending was not motivated by greed and that, largely, you did not personally benefit from the offending. Your counsel characterised your offending as taking place in the context of your misguided obligation to provide financial assistance to your family. Your counsel said that the property in Carlton had been purchased for the use of your sister and her business and that $400,000 of the amount transferred to Laos was to assist your aunt with her service station.
34 In mitigation, your counsel particularly relied on:
(a)your full and frank admissions to the police;
(b)your plea of guilty;
(c)your remorse;
(d)the lack of direct financial benefit to yourself;
(e)the application of Verdins principles;
(f)your motivation, being misguided loyalty to assist your family;
(g)your concerns about the hardship that your children will suffer whilst you are in custody; and
(h)your prospects for rehabilitation.
35 Your counsel submitted that a term of imprisonment with a shorter than usual non-parole period should be imposed, in order to allow your rehabilitation to occur in the community.
36 Your younger sister says that as long as she can remember, you have been under extreme pressure to support your family. She describes you in her reference as being a decent, hardworking and loyal person.
37 A reference was also provided from a family friend who attended court in support of you. He has known you since you were a young girl. Your family friend has also lent money to your father and it appears that, to an extent, he has been deceived by your father. Your friend says that he is shocked at what you have done and that you have told him you are very ashamed. He says he has always seen you as being the boss of the family and that your whole family looked to you after your father had left. He regards your activities as being entirely out of character.
38 It appears that your actions have had a devastating effect, including on members of your family, who have now been served with a Notice to Quit in respect of the Hoppers Crossing house.
39 Your counsel says that you are devastated at what you have caused to the victims, particularly those who made victim impact statements. You accept that they put their trust in you as a conveyancer and that you have breached their trust.
40 Your counsel submitted that quantum was highly relevant to the sentence to be imposed, but that it was difficult to quantify the actual loss. Whilst $2.3m had been obtained, there would not ultimately be that much loss to the bank.
41 In sentencing submissions, the prosecutor said that, within your family, you were getting benefits and your family was getting benefits. The prosecutor submitted the effect that the application of Verdins principles would make would be very small. The prosecutor emphasised the breach of trust involved and the mechanisms you had used to take advantage of your role as a conveyancer. The prosecutor submitted that, if there was not a direct benefit to you, then there was an indirect benefit through your family. The prosecutor submitted that it should be taken into account in sentencing you the need for general deterrence and the impact of offences which undermine the banking system.
42
Thorany Zhang, your fraudulent behaviour involved sophisticated and
well-organised deceptions against two financial institutions and other authorities over a period of two years. You obtained financial advantage totalling $2.479m. You repaid the loan in Charge 4, which leaves about $2.3m outstanding. I accept that some of that amount will be recovered after the repossession, at least, of the Hoppers Crossing property. It is unclear how much more will be recovered.
43 In respect of the obtaining property offences, you operated a sophisticated and well-organised fraud, using false documents and abusing the trust of those who employed you as a conveyancer, to obtain the title to five properties. You should not have been holding yourself out as being able to operate a conveyancing business. You used your title to the properties to mortgage those properties. You have caused enormous distress and worry to the true owners of those properties. It is to be hoped that ultimately they will retain their properties debt free but in the meantime they are living a nightmare, a nightmare caused by your flagrant and repeated dishonesty. This sort of offending undermines the community’s confidence in both financial and land conveyancing systems. Your offending constitutes a very serious example of fraud.
44
There are a number of matters which operate in mitigation of sentence. You are entitled to a significant discount for your plea of guilty. That plea has saved the cost, inconvenience and personal trauma for the victims of a trial.
I accept that your plea of guilty is also an expression of your remorse. You made immediate and full admissions and have expressed your wish to apologise to the property owners. I accept that you are genuinely remorseful.
45 I accept that you offended in order to keep up your role as main provider and supporter of your family, including your father and aunt overseas, rather than in order to lead a lavish personal lifestyle. You also used the money to keep up your appearance within the family as a successful businesswoman. You received that sort of benefit as well as the indirect benefits which accrued to your family. Your motivation was certainly not one of need. It appears that you felt secure enough in your offending to buy the Carlton property for the use of your sister and her business. My view is that, despite your accepted motivations of assisting your family, your moral culpability is high.
46 It is Mr Cummins’ opinion that your chronic Adjustment Disorder has compromised your "perception, judgement and problem solving ability to some degree". From Mr Cummins’ report, I conclude that this disorder stemmed from the difficulties within your family, particularly because of your father’s behaviour towards your mother and pressure arising from his debts. There were further difficulties including financial ones within your marriage, which had a negative impact. I consider that the effect of this disorder reduces your moral culpability but only to a very small degree.
47 Mr Cummins was not able to comment on the effect incarceration might have on your mental health. I accept that your moderate anxiety and depression will make incarceration somewhat more difficult for you. I also accept that your concern about your children will make incarceration more onerous.
48 I consider that your prospects for rehabilitation are reasonably good. You have a very limited prior criminal history. You made immediate admissions to the police and are remorseful. You were motivated to assist your family and through them yourself. You now understand that your actions have made matters far worse for your immediate family and for yourself. You are a capable and intelligent person who ought to be able to resist future temptation to dishonesty. Specific deterrence ought have only moderate weight in your sentence.
49 As conceded by your counsel, there is no doubt that the only appropriate sentence is a sentence of imprisonment. Sentences of imprisonment are warranted for the purposes of denunciation, just punishment, general deterrence and specific deterrence. General deterrence must be given significant weight, in order to try to prevent others from taking advantage of their situation or knowledge to dishonestly obtain money.
50 In sentencing you, I have applied the principles of totality and proportionality. I have taken into account the relevant applicable maximum penalties. In determining the head sentence and amounts of cumulation, I have taken into account that your offending impacted on a number of individuals and two financial institutions, with the Westpac Bank being the main victim in monetary terms. I consider that your prospects of rehabilitation are reasonably good, as I have said, but I do not consider there is any reason to impose a shorter than otherwise non-parole period in view of the seriousness of your offending.
51 Ms Zhang, could you stand up please.
52 On each charge you are convicted and sentenced as follows:
Charge 1, 27 months imprisonment;
Charge 2, 27 months imprisonment;
Charge 3, 32 months imprisonment;
Charge 4, 24 months imprisonment;
Charge 5, 28 months imprisonment;
Charge 6, 27 months imprisonment;
Charge 7, 42 months imprisonment;
Charge 8, 36 months imprisonment;
Charge 9, 27 months imprisonment;
Charge 10, 30 months imprisonment;
Charge 11, 27 months imprisonment;
Summary Charge 4, eight months imprisonment.
53 The sentence on Charge 7 is the base sentence. Two months of each of the sentences on Charges 3, 5 and 10; three months of the sentence on Charge 8; four months of the sentence on each of Charges 4 and Summary Charge 4; and five months of each of the sentences on Charges 1, 2, 6, 9 and 11 are to be served cumulatively on each other and on the sentence on Charge 7.
54 The total effective sentence is 84 months, which is seven years imprisonment.
55 I fix 56 months, which is four years and six months, as the period you are required to serve before being eligible for release on parole.
56
I declare that you have served 21 days of this sentence by way of
pre-sentence detention.
57 But for your plea of guilty I would have sentenced you to a term of imprisonment of ten years with a non-parole period of seven years.
58 I refuse to make the order sought for the taking of a forensic sample from you. Despite the fact that this was not opposed, I do not consider in the circumstances of your offending that it would be justified to make such an order.
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