CDirector of Public Prosecutions v Thanawong

[2024] VCC 1917

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01722

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

THITIKORN THANAWONG

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2024
DATE OF SENTENCE:	29 November 2024
CASE MAY BE CITED AS:	DPP (Cth) v Thanawong
MEDIUM NEUTRAL CITATION:	[2024] VCC 1917

REASONS FOR SENTENCE
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Subject:Criminal law - Sentence

Catchwords:          Recklessly dealing with money or property being proceeds of indictable crime of a value of $100,000 or more – Offender’s partner assisted her to lodge nine fraudulent business activity statements via MyGov account – Five GST refunds received totalling $296,212 paid to offender over a 5 month period – Offender not criminally culpable for predicate offending – Fraudulently obtained funds transferred to partner, associates, family members, and spent on cash withdrawals, retail purchases, luxury goods, flights and holidays – Some assistance provided to AFP and ATO officers – No priors – Offending motivated to some extent by greed – Proceeds dealt with in an unsophisticated manner – No repayment made – Early plea – Good prospects of rehabilitation – Potential deportation following release.

Legislation Cited:         Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Crimes Act 1958 (Vic); Sentencing Act1991 (Vic).

Cases Cited:Du Randt v R [2008] NSWCCA 121; Van Eaden v R [2012] NSWCCA 18; R v Jacques [2021] SASCA 94; Ihemeje v R [2012] NSWCCA 269; DPP v Mellington [2023] VCC 1192; DPP v Trailovic [2019] VCC 674; R v Tilocca [2013] NSWDC.

Sentence:  Total effective sentence of 2 years and 8 months’ imprisonment. To  be  released  after  serving  10 months  on  a  Recognisance Release Order.

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Mr G Barr	Commonwealth Director of Public Prosecutions
For the Accused	Mr S Ghattas	Angus Cameron Lawyers

HIS HONOUR:

Introduction

1Thitikorn Thanawong, you have pleaded guilty to one charge of recklessly dealing with money or property being proceeds of indictable crime, of a value of $100,000 or more, contrary to s 400.4(2) of the Criminal Code Act 1995 (Cth) (‘Criminal Code’).

2This charge carries a maximum penalty of 10 years’ imprisonment, or a fine of 600 penalty units ($133,200), or both.

Uncharged predicate offending

3On 7 September 2016, you registered an ABN[1] (36 688 070 784) with the business description being “Aromatic massage oil manufacturing”.

[1]        Australian Business Number.

4On 26 July 2021, you created a MyGov account and provided your email address and mobile phone number. On 24 September 2021, your Australian Taxation Office (“ATO”) Integrated Client Account was linked to your MyGov account.

5On 23 October 2021, your ABN was registered for GST[2] reporting.

[2]        Goods and Services Tax.

6Between 8 November 2021 and 25 March 2022, nine Business Activity Statements (“BAS”)[3] were submitted via your MyGov account. Together, the BASs claimed net GST refunds totalling $296,212.

[3]A Business Activity Statement is lodged by a registered entity in each tax period to report the GST they collected on their taxable sales and the credits they can claim on their purchases.

7At all relevant times, you were not carrying on a business or enterprise for the purposes of claiming GST refunds. Rather, during the period of your offending, you were employed as a massage therapist where you received wages from your employer totalling $44,118.

8At various times throughout the Covid-19 pandemic, you received social security payments from Services Australia while your employment was adversely affected.

9It is not alleged that you were criminally culpable for this predicate offending.

Facts related to the offending

10Each of the claims for GST refunds between 8 November 2021 and 25 March 2022 were successfully processed. Namely, between 24 November 2021 and 6 April 2022, the ATO made five payments totalling $296,212 into your bank account.

11Therefore, you received and possessed $296,212 being proceeds of indictable crime, namely fraud on the Commonwealth (“proceeds”).

12You subsequently dissipated the balance of those proceeds by transferring $127,330 to your de facto partner, Hamed Heydari; making several transfers to associates; offshore remittance to family members; large cash withdrawals; many online retail purchases; vehicle-related purchases; and luxury purchases at high-end fashion stores including, Louis Vuitton, Saint Laurent, and Gucci. You also used the proceeds to fund interstate flights and holiday expenses.

13By 12 July 2022, you had exhausted the entire balance of the proceeds.

Detection and audit

14In June 2022, the ATO detected the offending and subsequently audited you.

15On 4 October 2022, you, through your legal representative, provided a witness statement in response to the ATO’s request for information.

16In your statement, you stated that you did not register for GST or lodge the BAS statements and had no knowledge of the lodgements at the time of the offending. You claimed to have provided your de facto partner, Mr Heydari, with your MyGov login details to facilitate him assisting you to lodge your income tax returns and obtain a ‘loan from the ATO due to COVID-19’. You further claimed that you entered into an agreement with Mr Heydari to give him 50% of the money received ‘for his help’ in assisting you to obtain your purported ‘entitlement from the government’.

17Finally, you stated, ‘After lodgement, I expressed concern and said that I did not want any more money from the government, but Hamed [Heydari] assured me that it was okay and that I was entitled to the money from the Government.’

18You were unable to produce any records to the ATO to substantiate the claims made in the various BASs. The audit concluded that you were not carrying on a business or enterprise during the relevant times and were not entitled to claim GST refunds.

Search warrant

19On 15 June 2022, AFP officers executed a search warrant at your home address in Werribee where you were present during the search.

20With the assistance of an interpreter, you were cautioned and read your rights.[4] You declined to participate in an interview at this time and further declined a subsequent invitation for 18 October 2022.

[4]        In accordance with Part IC of the Crimes Act 1958.

21As a result of the search, investigators located and seized two mobile phones and a laptop belonging to you. During the search warrant, you provided investigators with the password which enabled them to access your MyGov application and ATO account on your devices. Investigators identified that you had received over 85 SMS notifications from MyGov, including the One-Time Passcodes (OTP) which were used to login to your MyGov account.

No criminal history

22You have no prior convictions, no subsequent matters and there is nothing else pending.

Personal circumstances

23You are 44 years old and were born in Phitsanulok, Thailand.

24You have an older brother who remains living in Thailand and is employed as an engineer. You have little contact with him. Your father and mother who also remained in Thailand passed away in 2016 and 2021 respectively.

25In Thailand, you completed year 12 and then studied psychology at university for approximately 5 years, however you did not complete the degree.

26Your work history in Thailand spanned approximately 10 years, including working as a beauty and makeup advisor at a shopping centre and working for a financial institution selling personal and home loans.

27In 2016, you moved to Australia on a student visa and completed an English course over a 12-month period. You then began a cookery course which you completed in around 2019. You then enrolled in a project management course. Due to your limited grasp of the English language and complexity of the concepts, you struggled with the course and your attendance declined. As a result of your poor attendance, your student visa was cancelled in around April 2020.

28You then applied for a protection visa and currently remain subject to a bridging visa.

29Since early 2020, you were employed on a casual basis as a message therapist in Preston. As a result of your visa status, you no longer have work rights and prior to your remand in custody, you received an income from buying and selling second hand clothing online.

Objective gravity

30The offending involved five transactions over a five-month period totalling $296,212, almost three times the $100,000 threshold. You transferred $127,330 to Mr Heydari and quickly dissipated the balance by various means, including large cash withdrawals, transfers to other individuals, offshore remittance to family members and a number of online retail purchases. This involved some high-end luxury retail purchases and interstate flights and holidays. This demonstrates greed and funding a lifestyle beyond your means. Unlike many other cases where the offender is a mere conduit and retains only a small portion of the proceeds, you were the primary beneficiary. Having transferred approximately 43% of the proceeds to Heydari, the remaining 57% was the subject of transfers, purchases and cash withdrawals by you.

31I accept that the manner of dealing with the proceeds was unsophisticated. You made no attempt to conceal or disguise the nature of the money, the bank account was held in your sole name and you were the signatory on the account. The Crown accept that you were not the architect or instigator of the offending, but nevertheless played an important role in facilitating the offending. Mr Jeffrey Cummins in his psychological report states:

…after a while she felt confused and embarrassed about the amount of money that was coming into her account from the ATO. Nevertheless, she said Mr Heydari kept reassuring her that it was rightfully her money. She acknowledged she was someone who had never had surplus money and had effectively usually lived from paycheque to paycheque and therefore after these large sums of money began coming into her account and after she had paid to Mr Heydari the amount that he said he owned her for doing her bookwork, she spent the money on some travel, vehicle repairs and luxury purchases.[5] 

[5]        Exhibit 2.

32Despite what you said you were told by Mr Heydari, Mr Ghattas confirmed that in accordance with your plea of guilty, you accept that you were aware that there was a substantial risk that the funds arriving in your account and dissipated by you were the proceeds of crime.

33The money has not been repaid and you have not negotiated any arrangement to repay the debt.[6]

[6]This does not aggravate the gravity of the offending.

34General deterrence is a paramount consideration in cases involving money laundering. You must be adequately punished and deterred. While you have no prior matters, this offending was not an isolated occurrence but involved a number of transactions. Accordingly, specific deterrence remains a relevant sentencing consideration.  Your rehabilitation remains important and I am prepared to accept that your prospects of rehabilitation are good.

Defence submissions

35In addition to his oral submissions, Mr Ghattas relied upon his written submissions dated 3 September 2024.[7] He tendered the psychological report of Mr Jeffrey Cummins dated 31 July 2024.[8] He conceded that other than background, the report did not raise anything else of any significance.

[7]Exhibit 1.

[8]Exhibit 2.

36In his written submissions, he invited the court to consider imposing a Community Correction Order.

37I accept that you have pleaded guilty at the earliest opportunity. By pleading guilty, you have facilitated the course of justice and taken responsibility for your actions. You have also saved the community the time and expense of a trial.

38I accept that you are remorseful. This is indicated by your early plea of guilty and a degree of co-operation in providing a statement to the ATO on 4 October 2022. In that statement you detailed the predicate offending of which you bear no responsibility and gave details of individuals who played a role including Mr Heydari.

39However, I note that despite indicating in that statement that you were willing to assist with all investigations and co-operate fully, you declined an opportunity to be interviewed on 18 October 2022. The statement you made was unsigned and non-jurated. I accept there was a degree of co-operation and that is relevant to your contrition.

40You have reached the age of 44 without any criminal history. Nearly two and a half years have elapsed since your offending. You have not been in any further trouble.

41I am prepared to accept that but for your relationship with Mr Heydari whom you met in March 2021, it is unlikely you would have committed this offending. It appears you were taken advantage of and there may have been a degree of coercive control.[9]

[9]Ibid [44].

42I was invited by Mr Ghattas to give some allowance to the fact that your time in custody will be more onerous on account of contemplating a potential deportation to a country you left some eight years ago as a result of political unrest. I note Mr Cummins states that you are feeling anxious and depressed about the prospect of being imprisoned and deported.[10]

[10]Ibid [45].

43I am prepared to give some limited allowance to the fact that your time in custody will be more onerous. However, I note that your student visa was cancelled as a result of your non-compliance with your study requirements. You have now applied for a protection visa and currently remain on a bridging visa. Therefore, quite independent of the punishment for this offending, your status in Australia remains uncertain. You have no ties or family in Australia.

44I have also received a letter regarding the ReStart program from the Australian Community Support Organisation dated 17 October 2024.[11] Since your remand, this program has been assisting you to identify areas of support that you require following your release.

[11]        Exhibit 3.

Prosecution submissions

45On behalf of the Crown, Mr Barr submitted that your offending was serious and could only be dealt with by the imposition of a term of imprisonment. In his written submissions dated 3 September 2024,[12] he set out the factors relevant to the gravity of the offending, including the amount of the proceeds[13], the period of the offending conduct over some five months, the motivating factor being greed and that the majority of the proceeds were utilised by you, having transferred $127,330 to Mr Heydari. This latter fact, Mr Barr submitted, was in contrast to many other cases where the offender received only a small cut for assisting in dealing with the proceeds of crime.   

[12]Exhibit B.

[13] Almost three times the amount of the $100,000 threshold under s400.4(2).

46I have had regard to all relevant matters and principles. I have taken into consideration the matters listed in s16A of the Crimes Act 1914 (Cth). I have considered each of the cases referred to me by the Crown and defence.[14]

[14]Du Randt v R [2008] NSWCCA 121; Van Eeden v R [2012] NSWCCA 18; R v Jacques [2021] SASCA 94; Ihemeje v R [2012] NSWCCA 269; DPP v Mellington [2023] VCC 1192; DPP v Trailovic [2019] VCC 674; R v Tilocca [2013] NSWDC.

Sentencing

47On Charge 1, you are convicted and sentenced to 2 years and 8 months’ imprisonment. The sentence will commence today, 29 November 2024. I direct that you serve 10 months of the term imposed before being released on a Recognisance Release Order (RRO) upon giving a security in the sum of $2,000 on the condition that you be of good behaviour for a period of two years.

48If you breach the conditions of the RRO, you may be brought back before this Court and dealt with for the breach. A possible consequence of any breach is that you may be required to serve the unexpired portion of the sentence imposed upon you today.  

49Mr Barr, anything arising?

50Mr Barr: No, your Honour.

51Anything arising, Mr Ghattas?

52Mr Ghattas: No, your Honour.  

53You will be given written notice of the sentence imposed today, including the conditions that you must comply with.

Pre-sentence detention

54Pursuant to s 18 of the Sentencing Act1991, the period of 65 days of pre-sentence detention is declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court’s records.

S 6AAA declaration

55Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months.