R v Van Le

[2003] QCA 256

SUPREME COURT OF QUEENSLAND

CITATION:	R v Van Le [2003] QCA 256
PARTIES:	R v VAN LE, Heip (applicant)
FILE NO/S:	Appeal No 144 of 2003 DC No 567 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX	18 June 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	18 June 2003
JUDGES:	Davies and Williams JJA, and Atkinson J Separate reasons for judgment of each member of the Court; each concurring as to the order made
ORDER:	Application refused

CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant convicted on own plea of guilty to one count of attempted fraud with a circumstance of aggravation – where conviction was recorded – whether improper exercise of sentencing discretion to record a conviction

Penalties and Sentences Act 1992 (Qld), s 12

R v Bain

CA No 452 of 1996, 14 March 1997, cited considered

COUNSEL:	A Boe (solicitor) for the applicant S Bain for the respondent
SOLICITORS:	Boe & Callaghan for the applicant Director of Public Prosecutions (Queensland) for the respondent

ATKINSON J: The applicant, Hiep Van Le, filled out an

application for a home loan from the Westpac Bank on 29 May

2002. The application was for a home loan in the amount of	10
$140,000. On the application he nominated a false employer
and a false income of $580 a week gross. In fact, he was working at the time but that work was part time and for a different employer from the one nominated. The false
application was discovered when the loan manager attempted to	20
verify his employment.
Mr Le was 40 years old at the time of the offences and had no
prior criminal history. The solicitor who appeared for the
applicant on his sentence submitted that his client was told,	30
wrongly, that he did not have to have any role in the
documentation of the application. He knew that the
documentation was false but he was unwilling to identify the
person who had prepared it. His solicitor submitted that he
was in receipt of income which would have been sufficient to	40
repay the loan.
The learned sentencing judge convicted him on his own plea of guilty on one count of attempted fraud with a circumstance of aggravation. The maximum penalty was five years imprisonment.	50
His Honour fined the applicant $2,000 and gave him four months
to pay. Although the applicant's solicitor submitted that a
conviction ought not be recorded, his Honour did record a
conviction. He gave as his reasons for doing so that the loan

2  60

was for a sum in excess of $100,000 and in the circumstances

must be regarded as a relatively serious matter. This relates

to the circumstance of aggravation under section 405C(2)(d)

that the value of the property exceeded $5,000. Here, the

value was $140,000, well in excess of the…