R v Huynh - [2014] VSC 53

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0164

THE QUEEN

KIEU THI HUYNH

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 and 25 FEBRUARY 2014
DATE OF SENTENCE:	27 FEBRUARY 2014
CASE MAY BE CITED AS:	R v HUYNH
MEDIUM NEUTRAL CITATION:	[2014] VSC 53

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CRIMINAL LAW — Sentence — 27 counts of obtaining financial advantage by deception and one count of attempting to do so – Continuing criminal enterprise – Plea of guilty – mortgage broker submitting falsified documents – No loss to lenders who have continued with the loans – Offer to assist in prosecution of borrowers rejected by DPP – Risk of forfeiture of assets – Total effective sentence of 4 years with a minimum of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S Devlin	Mr C Hyland, Solicitor for Public Prosecutions
For Ms Huynh	Mr R Larkins	Anderson Law

HIS HONOUR:

Kieu Thi Huynh, you have pleaded guilty to one charge of attempting to obtain a financial advantage by deception and twenty seven charges of obtaining a financial advantage by deception. The charge of obtaining a financial advantage by deception carries a maximum penalty of 10 years’ imprisonment. Attempting to do so carries a maximum penalty of 5 years’ imprisonment. However, because in each charge the value of the financial advantage obtained exceeds $50,000 and you have pleaded guilty to more than three offences, I must sentence you as a continuing criminal enterprise offender. The maximum term of imprisonment for continuing criminal enterprise offences is doubled to 20 years and 10 years respectively.

Circumstances of offending

You were the owner and operator of a business called St Andrews Mortgage Solutions in St Albans and Sunshine. With an Australian Credit licence from ASIC to operate as a mortgage broker, your business placed applications for housing loans with lending institutions. Your conduct was discovered during an investigation into home loans obtained through fraudulent means by a number of persons using false or misleading information. Between November 2007 and February 2013, financial institutions approved home loans on the basis of fraudulent information and/or falsified documents supplied by St Andrews Mortgage Solutions on behalf of its clients, the borrowers. Investigators analysed 28 applications, all but one of which were successful resulting in a loan secured by a mortgage being made by a lender to your client.

As a licensed mortgage broker, you were trusted by lenders to supply correct information. Your primary role was to prepare your client’s loan application and ensure that all the required supporting documents were provided. Your introducer agreements, as they are called, required you to use your best endeavours to ensure that information provided in relation to loan applications is accurate and requires that you not provide any information that you know or should know is false, misleading or forged. The agreements also required that you did not engage in any misleading or deceptive conduct or make any representation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Huynh

Details

AGLC: R v Huynh [2014] VSC 53
Case: [2014] VSC 53
Decision Date: 27 FEBRUARY 2014

CaseChat Overview and Summary

In the case of R v Huynh, the respondent pleaded guilty to 27 counts of obtaining financial advantage by deception and one count of attempting to do so. The crimes related to the respondent's role as a mortgage broker who submitted falsified documents to obtain loans for his clients. The matter was heard in the Supreme Court of Victoria. The central issue before the court was the appropriate sentence for the respondent, considering the severity of the crimes and the potential impact on both the respondent and the victims.

The court needed to determine an appropriate sentence for the respondent, taking into account the gravity of the crimes and the circumstances surrounding them. Notably, the court had to weigh the fact that the lenders had not suffered any loss as they had continued with the loans, despite the deception. Additionally, the court had to consider the respondent's offer to assist in the prosecution of the borrowers, which was rejected by the Director of Public Prosecutions. The court also had to address the potential risk of the respondent forfeiting their assets and the impact this might have on their family.

The court found that the crimes were of significant gravity, with the respondent exploiting the trust placed in him by his clients and lenders. The court noted that the respondent had shown remorse and had offered to assist in the prosecution of the borrowers, which demonstrated some level of cooperation and accountability. However, the court also recognised that the respondent's actions had caused considerable harm to the financial system and had the potential to cause significant loss to lenders if not for the circumstances of this case. Ultimately, the court determined that a total effective sentence of 4 years with a minimum of 2 years was appropriate, taking into account the various factors discussed. The court made an order that the respondent be sentenced accordingly.

Orders