Citation: R v Vongsaytham [2019] NSWDC 65
Court: District Court of New South Wales
Date: 8 February 2019
Judge: King SC DCJ
Background
The offender was a mortgage broker who submitted nine fraudulent residential loan applications to Adelaide Bank Limited between November 2004 and early 2005. He operated through a mortgage manager company called Ideal Homes, using a company associated with his de facto partner to receive commission payments. He was known to the industry under aliases, including "Victor Knight" and "Victor Smith."
Each application was submitted in the name of a different borrower and was supported by fabricated documents, including false payslips, PAYG summaries, ATO notices of assessment, bank statements, and forged identity documents such as Australian Citizenship Certificates and New South Wales driver licences. The applications systematically overstated borrowers' incomes and financial positions, inducing the bank to approve loans it would not otherwise have made.
The offender was arrested in July 2014 and committed for trial in December 2015. He did not enter guilty pleas until October 2017, and subsequently attempted to withdraw those pleas before abandoning that application in August 2018. The matter ultimately came before the District Court for sentencing.
Legal Issues
- The appropriate sentence for nine offences of using a false instrument with intent that it be accepted to another's prejudice, contrary to s 300(2) of the Crimes Act 1900 (NSW)
- The weight to be given to the very late guilty plea in calculating a utilitarian discount
- The relevance of subjective factors, including the offender's family circumstances and prospects of rehabilitation
- The correct structure of the sentence, including the use of an aggregate sentence and the appropriate non-parole period
Decision
His Honour treated the offending as planned, deliberate, and designed to defraud Adelaide Bank of significant sums. The fraud involved the creation or use of multiple categories of forged documents across nine separate transactions, with settlement proceeds from several loans directed into accounts associated with the offender. The objective seriousness of the offending was substantial.
The guilty plea attracted only a 5% utilitarian discount, reflecting how belatedly it was entered. The plea came on the eve of trial after an earlier trial date had been vacated, and was further undermined by the subsequent (and ultimately abandoned) attempt to traverse it. The court acknowledged the plea still carried some utility to the criminal justice system despite its timing.
On subjective matters, the court considered the offender's personal circumstances, including his children's ages and developmental needs and his elderly mother's health. The court identified both general and specific deterrence as important sentencing considerations. It found the offender did not have good prospects of rehabilitation, given the history of the proceedings, though it assessed the risk of re-offending as at least reasonably low.
His Honour imposed an aggregate sentence, with an indicative sentence of 23 months for each of the nine counts. The non-parole period was set at approximately 60% of the total term, rather than the standard 75%, to reflect the fact that this was the offender's first significant period of custody. The extended parole period was intended to assist the offender's reintegration and reduce the risk of further offending.
Orders Made
- Aggregate sentence of three years and nine months imposed
- Non-parole period of two years and three months, commencing 13 December 2018, with first eligibility for parole on 12 March 2021
- Balance of term (parole period) of one year and six months, with the sentence expiring on 12 September 2022
- Indicative sentence of 23 months recorded in respect of each of the nine counts
Key Takeaways
- A very late guilty plea, entered on the eve of trial and followed by an attempt to withdraw it, attracted only a 5% utilitarian discount rather than the more substantial reductions available for timely pleas.
- Under s 300(2) of the Crimes Act 1900, using false instruments with intent that they be accepted to another's prejudice carries a maximum of ten years' imprisonment, with no applicable standard non-parole period.
- Where an offender has no significant prior custodial history, the sentencing court may reduce the non-parole period below the standard 75% proportion of the total sentence to reflect that first-time imprisonment warrants particular consideration.
- An aggregate sentencing approach is available for multiple counts; the court must still record indicative sentences for each count and ensure the aggregate reflects the totality of the offending, including appropriate accumulation for offences occurring on separate occasions.
- The District Court declined to find good prospects of rehabilitation in light of the offender's conduct throughout proceedings, but assessed the risk of re-offending as reasonably low, a distinction that influenced the structure of the sentence rather than its head term.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 300(2) (using false instrument with intent to induce acceptance to another's prejudice; maximum penalty: 10 years' imprisonment)
Cases cited: No cases were cited in the portions of the judgment provided.