Director of Public Prosecutions (Cth) v Dhitiporncajid
[2024] VCC 744
•23 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01788
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PRAMOTE DHITIPORNCAJID |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2024 | |
DATE OF SENTENCE: | 23 May 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Dhitiporncajid | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 744 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: one charge of engage in conduct on two or more occasions in relation to money that is proceeds of general crime – value of money more than $1,000,000 – plea of guilty – negligent as to the fact that the money was the proceeds of general crime
Legislation Cited: Criminal Code (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic);
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Majeed v The Queen [2013] VSCA 40; Palmisano v The Queen [2021] VSCA 124; Samarakoon v The Queen [2018] VSCA 119; Kim v The Queen [2016] VSCA 238; Majeed v The Queen [2013] VSCA 40; The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550; R v BDP [2022] QCA 32
Sentence: 18 months imprisonment, to be released on recognisance and to be of good behaviour for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms M Cananzi | Solicitor for the Commonwealth Department of Public Prosecutions |
| For the Accused | Mr A Lewis with Ms M Deighton | Tony Hargreaves & Partners |
HER HONOUR:
1Pramote Dhitiporncajid, you have pleaded guilty to one charge of engage in conduct on two or more occasions in relation to money that is proceeds of general crime where the value of the money is $1,000,000 or more, contrary to s 400.3(3B) of the Criminal Code (Cth) ('the Code'). It is alleged that you were negligent as to the fact that the money was the proceeds of general crime and the conduct concealed or disguised this fact.
2The maximum penalty applicable is five years' imprisonment or 300 penalty units or both.
Circumstances of offending
3The circumstances of the offending are set out in a comprehensive Summary of Prosecution Opening for Plea (Exhibit A). I will not repeat all of the detail of the offending here.
4By way of background, you were born in August 1980 and you are a Thai citizen. You were 42 years old at the time of the offending in 2022. You arrived in Australia on 16 April 2015. At the time of the offending, you were living in a unit at 160 Victoria Street, Carlton. You were working as a teller for MWing Pty Ltd (trading as 'XWing') and you had previously worked as a kitchen hand.
5During the period of the charges, between 17 October 2022 and 15 November 2022 you acted as 'a money mule' at the instruction and direction of another person, Quang Minh LE ('LE') who was the principal controller of the offending, and to whom you were introduced through your employer. This involved you collecting large quantities of cash from unknown individuals and depositing them into designated bank accounts.
6In total, during this period, you engaged in 122 banking transactions by way of cash deposits. In doing so, you dealt with $1,619,605 cash which is alleged to be the proceeds of crime.
7The prosecution allege that you were negligent as to the fact that the money was the proceeds of crime and your conduct in depositing the money, as I have said, concealed or disguised this. In particular, the following matters are relied upon:
(a) the overall amount of money that you dealt with, was grossly out of proportion with your income and expenditure. Australian Taxation Office records indicate that your assessable taxable income for the 2022 financial year was $17,430. The amount deposited over the course of the charged period was therefore disproportionate to your declared income;
(b) each of the deposits were into third party ANZ Bank, National Australia Bank or Commonwealth Bank accounts which were not in your name, nor did they have any ostensible connection to you. The accounts were linked to LE.
(c) the methodology used; as evidenced by your communications with LE via messaging applications 'Line' or 'Threema', which included the use of token small value notes (usually $5 notes) to confirm the transaction between the individual handing over the cash to the individual collecting and eventually depositing the cash;
(d) the instructions provided by LE regarding the deposits were to particularly avoid making deposits when bank staff asked 'too much';
(e) the eventual use of an encrypted messaging app; and
(f) the conduct involved a number of transactions that were structured or arranged to avoid the reporting requirements to AUSTRAC.[1]
[1] As required by the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
8You were introduced to LE by the manager at your workplace, XWing. Your contact with LE was only by message. The initial contact was made on 4 October 2022 whereby you, utilising the username 'North', and LE, utilising the username 'Kiatisak', commenced exchanging messages on 'Line', a mobile messaging app. You inquired about the prospect of work and an exchange took place whereby LE told you of the work involved:
(1)to pick up and receive cash from customers (around $100,000 to $300,000 or maybe more);
(2)deposit to his listed bank accounts every day until finish. He indicated he had both personal and business for depositing;
(3)your salary would normally be 1 per cent for the amount you can do; it will be changing depending on the market but at least 0.5 per cent; and
(4)Perth, (but only sometimes not regularly), Melbourne and Sydney is higher salary with 1.5 per cent to 2 per cent.
9You agreed and asked LE when he would like you to start. He indicated that the market was 'quite silent' and that he would arrange your work soon and that he would normally inform you one day before your work.
10A further exchange took place on 11 October whereby LE said he would send you some business express deposit bags, asking where he could send it to. You told him to drop it at your address at XWing Melbourne. He advised that you would have a job from Thursday.
11A further exchange took place on 16 October regarding the use of a seri note number. LE indicated that his people would only give cash to anyone holding this note (seri note number) as their receipt. LE asked you to take a photo of any seri notes and later directed you to keep this note in hand and receive $250,000 at a shop, along with some directions about the deposit of monies. He reminded you to always keep a small note in your wallet as you would need to use it regularly.
12The reference to use of a seri note in the messages relates to the use of a token. A token (usually a note of small denomination) is alleged to be used by money laundering syndicates to confirm the transaction by reference to the serial number on the note between the individual handing over the cash and the individual receiving it.
13
LE instructed you that the amount to deposit must be split below $9,500 and it must be an odd amount. He provided you with banking details for the deposits in either his name or an account Stanley & Brothers Global Pty Ltd which is a
Sydney-based company owned entirely by LE.
14Later that day, using the username North, and LE, using the name Amado, commenced exchanging messages on Threema, an encrypted messaging application. The two of you confirmed details of the cash collection for the following day and LE reminded you to split the deposits 'into odd amount below $9,500 when deposit account' [sic].
15Over the course of the charged period, you and LE exchanged messages over Line and Threema regarding cash deposits. These messages preceded the deposits; with LE directing you as to cash collections and structuring of the subsequent deposits.
16On 17 October between 12.37 pm and 2.45 pm, you attended at a number of bank branches in the CBD where you made a number of cash deposits to various bank accounts, which were either in the name of LE or Stanley & Bros Global. In each instance, the amounts deposited were in the thousands but less than $10,000. In some instances, bank staff sighted your driver's licence on making the deposit and, as with many of your later deposits, photographs of the deposit slips created from the various transactions were later located on your mobile phone.
17On 19 October you attended a number of National Australia Bank or ANZ branches in the CBD and made a number of cash deposits. Again, deposits were made into the bank accounts connected to LE. In some instances, you made multiple cash deposits during the one attendance at the bank, which included a deposit of over $24,000.
18On 20 October between 10 am and 1 pm, you attended two different bank branches in the CBD and again made cash deposits of some significance, $25,000, $30,000. On this date, there were eight transactions in total.
19On 21 October you again attended at a number of bank branches in the CBD and made a total of eight cash deposits of varying amounts.
20On 24 October you attended at various bank branches in the CBD and again made numerous cash deposits between 11.19 am and 4.38 pm. Screenshots of the confirmation of deposit bags were also located on your mobile phone relating to two deposits of just over $21,000 each.
21On 29 October you attended at two different bank branches in the CBD and made a number of cash deposits. Some of those were considerable, being over $27,000. Again, screenshots of the confirmation of deposit bags or photographs of the deposit slips were located on your mobile phone.
22On 30 October you attended ANZ in Collins Street where you made three cash deposits into accounts associated with LE.
23On 31 October you attended two National Australia Bank branches in the CBD and made multiple cash deposits into accounts associated with LE.
24On 3 November you were in Queensland, an arrangement that had been made with LE over the preceding days. LE had informed you via Threema that he needed you to receive $450,000 in Brisbane. You then attended a number of bank branches in Brisbane between Fortitude Valley and the CBD and made a total of 25 cash deposits between 7.20 am and 11.29 am. You returned to Melbourne later that day.
25On 8 November you again attended various bank branches in the CBD or Carlton and made a number of cash deposits into accounts associated with LE. Some of these deposits were of significant amounts, including one of $34,550.
26On 15 November you attended a number of branches in the CBD and made deposits into various accounts held by LE. There were a total of six cash deposits on this date.
27During many of your attendances at various banks, you were captured on CCTV. Additionally, at a later stage, photographs of many of the deposit slips created from the transactions were located on your phone.
28On 17 November members of the Australian Federal Police executed a search warrant at your residence in Carlton. A number of items were seized during the course of the search including:
(a) a cash counting machine;
(b) NAB Express deposit bags;
(c) a laptop computer;
(d) a mobile phone;
(e) a cash bag.
There was also clothing seized which you were said to have worn during the deposits, consistent with CCTV footage.
29Analysis of the electronic devices seized revealed:
(a) multiple images of large amounts of Australian currency bundled with rubber bands, including large volumes of cash;
(b) images of numerous bank cash deposit slips and bank documents;
(c) messages between you and LE on Line and Threema;
(d) messages between you and unknown persons regarding collection arrangements for cash;
(e) images of handwritten notes relating to XWing and Stanley; and
(f) images of token $5 notes.
30You were later interviewed by investigators during which you made a number of admissions and were frank with information about the way in which the system of depositing cash took place. You told police that once you received the cash, you would count it and split it between the banks, as instructed.
31You accepted that it was strange to collect cash from individuals who did not identify themselves and you acknowledged that it was 'quite weird' that you had to utilise the token $5 note. You understand from your manager at XWing, that the work with LE was safe to do. You told police that express deposit bags were provided.
32You admitted that you had flown to Brisbane, collected approximately $448,000 in cash, and subsequently that money was placed into various accounts. You were reimbursed for the flights and accommodation. You admitted to making deposits at various bank accounts and said that you were told to go to different banks so that you did not have to show identification. You said that you did not really know where the money came from, but you were curious. You recognised yourself in CCTV stills and you confirmed the bank accounts into which you were making deposits. You told police that you retained 1 per cent of the total amount of cash that you deposited.
33
Turning to the procedural history. You were arrested and interviewed on
17 November and charged the following day. You have not served any time in custody in relation to this matter. Although at one stage you intended to proceed to a committal hearing, seeking to cross-examine the informant only, ultimately the matter resolved at a committal hearing on 12 October 2023 by way of straight hand-up brief. Your plea hearing took place on 13 May.
Sentences for associated offenders
34The prosecution has tendered a table which sets out the status of the matters of various people associated with this operation. I have had regard to that table.
35I note that LE, said to be the principal of the offending, has entered a plea of guilty in New South Wales to more serious offending and is awaiting sentence at the end of this month. A number of the associated offenders still have proceedings outstanding. The only person who has been sentenced is Kunlayaphat Silarat. She was sentenced in New South Wales on a charge pursuant to s400.9(1) of the Code of dealing with property reasonably suspected of being proceeds of crime, money worth $100,000 or more. Her offending was said to have taken place between 27 October and 13 November 2022, in which she made 18 cash deposits totalling over $292,000. Ms Silarat pleaded guilty and was sentenced to seven months' imprisonment with immediate release into a two-year Recognisance Release Order.
Sentencing Considerations
36As the charge before me is a Commonwealth offence, you fall to be sentenced in accordance with Part 1B of the Crimes Act 1914 (Cth) ('the Act'). Accordingly, I am required to have regard to a number of matters which are set out in s 16A(2) of that Act to the extent that they are relevant and known to the court, and I do so, as I will elaborate. One of these factors is your personal circumstances.[2]
[2] Crimes Act 1914 (Cth) s 16A(2)(m).
Personal circumstances
37You come before the Court with no prior criminal history and you are now 43 years.
38You were born in Thailand and raised in the city of Hua Hin with your two older sisters. Your father worked as a border patrol officer and your mother sold clothes at a local market. Your father was often required to work away from the home for much of the time, staying in touch through letters and visits every few months. He is now 78 years old and requires some assistance with his daily care, having been diagnosed with leukemia approximately 10 years ago. Your mother, who is 69 years old, and grows vegetables on a farm, cares for your father. Both of your parents remain in Thailand and you speak with them weekly on the phone, although this is sometimes difficult. You remain in contact with your sisters and you have told one of them about the offending.
39You attended a local primary and secondary school. You were a talented musician and played guitar and drums. At the age of 15, you moved to a boarding school in central Thailand. This was a specialist music school and you competed in international marching band competitions at an elite level. After completing Year 12, you obtained a scholarship to study at a university in Bangkok where you completed an undergraduate degree in western music over four years.
40After graduating, you gained employment at a travel company in Bangkok, assisting with airport transfers and tour bookings. You worked there for nine years. In 2015, you came to Australia on a student visa to study English, spending three months at a language school in Brisbane before returning to Thailand to renew your visa. You soon returned to Australia to live in Melbourne and study a Certificate IV in Business Management at the Melbourne Institute of Technology for two years. During this period, you relied on your savings and worked up to 20 hours a week at a restaurant as a kitchen hand, as allowed by your visa.
41While studying, you met your partner, Chanaporn, also from Thailand who was studying at the same institute. Following her graduation, she was granted a graduate visa and then obtained employment at XWing, the money exchange company. You were able to obtain a spouse visa and worked as a receptionist at a massage parlour in the CBD for a number of years before eventually becoming employed at XWing, through your partner, in 2020. You have also been working at a Thai Café and continue to do so.
42You and your partner have made plans to marry and have children and you hope to be able to continue to build a life together in Australia. However, soon after you were charged, your partner experienced various health issues and was diagnosed with a lump in her stomach, according to her referee letter. Due to the cost of medical treatment and her distress at your ongoing legal proceedings, she has returned to live with her family in Thailand in mid-2023. She remains there, but the two of you have continued your relationship and she is fully supportive of you. You were unable to pay rent on your apartment and you are now living in shared accommodation with four other Thai nationals.
43Since being charged with this offending, you ended your employment at XWing and you have continued to work as a chef at the café. You are currently on a bridging visa.
44A reference letter from your employer was tendered on the plea. He is aware of the charge to which you are pleading. Mr Hunter states that it was a complete shock to hear of this charge. After knowing you for a number of years, he states that he has found you to be truthful, honest, reliable, trustworthy and respectful. You have always got along with people at the café and you are described as a great asset to the business, who is well liked and part of the team. He describes you as not only extremely honest – but a little naïve, thinking the best of people. He has described the toll he believes these proceedings have taken on you.
45Similarly, a reference was prepared by your partner. She was extremely surprised to hear of your involvement in this offending. She has considered you to be one of the most responsible people she has ever known. In your relationship, she considers you hardworking, trustworthy, honest and reliable. She notes that you have always taken care of her when she has been ill, but given her current circumstances, thought it would be best if she returned to Thailand, hoping that you would be in a position to join her over there at some stage to assist with her care.
46A psychological report prepared by Patrick Newton was also tendered. You are said to have reported a strong bout of reactive distress in response to your arrest, with feelings of guilt and transient suicidal ideation. These symptoms persist.
47Mr Newton assesses you as a 'compassionate man who places a strong premium on contributing to his community and who espouses pro-social values'. He considers that you are introverted and socially conservative, tending to follow authority and that you can sometimes delay or persist with actions in the face of misgivings or qualms. You are not assessed as suffering any mental disorder. There is no indication that your personality is characterised by anti-social features. Mr Newton opines that you are prone to be a conservative individual, with respect for authority and commitment to caring relationships. You are said to be risk averse with a set of moral principles that you aspire to hold to. In this regard, it seems that your offending was very much out of character with those principles that you otherwise adhere to.
Plea of Guilty
48I take into account your plea of guilty which was entered at an early stage.[3] In pleading guilty, you have demonstrated a willingness to facilitate the course of justice and, to some extent, your remorse for the offending. Your plea of guilty has a significant utilitarian value in that you have saved the community the time and expense of running a trial. At the time you entered your plea, from the Court's perspective, there was still a backlog as a result of the COVID‑19 pandemic. Since late October 2023, an audit of outstanding trials has revealed that the backlog has, in effect, been reduced to the state it was before the pandemic. However, I take into account that at the time you entered the plea, as far as the Court was aware, there was still a backlog and, accordingly, consistent with the principles in Worboyes v The Queen,[4] there should be an appreciable discount in sentence.
[3] Crimes Act 1914 (Cth) s 16A(2)(g).
[4] [2021] VSCA 169.
49I take into account the fact that you were cooperative with police during the course of the investigation, making admissions in your record of interview. I accept that you are remorseful for this offending, which is reflected in your early plea of guilty. Mr Newton observed that the offending was a matter of some shame, which has taken its toll upon your self-esteem and sense of wellbeing.
Prospects of Rehabilitation
50Mr Newton opines that your prospects of rehabilitation are very good, noting that you have good insight into the criminality of your conduct. You have found these proceedings, he says, 'deeply aversive'. I take into account the fact that you come before the Court as a person of good character with no criminal history either in Australia or overseas. You have had a strong work and education history and I accept that you have been a positive member of the community. All of these matters bode well for your prospects of rehabilitation, which I consider to be excellent.[5] In reaching this conclusion about your prospects of rehabilitation I take into account your demonstrable remorse,[6] your lack of prior criminal history, strong work history, and the fact that you have pleaded guilty at an early opportunity.
[5] Crimes Act 1914 (Cth) s 16A(2)(n).
[6] Crimes Act 1914 (Cth) s 16A(2)(f)(ii).
Burden of Imprisonment
51
Your counsel Mr Lewis submits that you would find a term of imprisonment onerous given that your partner and family all reside overseas. This is particularly heightened by the concerns in relation to your partner's health given that she may require surgery at some point. I accept that as a foreign national, you would find imprisonment more burdensome due to the separation from your family.
Mr Newton considers that you would be a relatively vulnerable man in the custodial environment having regard to your naivety and the social isolation of being part of a small minority, both culturally and linguistically, in prison and with the absence of any local support. Mr Newton anticipates that you would experience a relatively difficult period of adjustment to the custodial environment and would require more support than others. I accept this.
Possibility of Deportation
52Your counsel submits that you face the prospect of having your bridging visa cancelled and then being deported following sentence. Both you and your partner had reportedly planned to remain in Australia, although whether this would come to fruition is difficult to determine, given that she has returned overseas for health reasons. Mr Lewis submits that it appears highly likely that you would be deported following the completion of any sentence. Whilst I cannot speculate as to that, I do take into account that there is a prospect of deportation and the lost opportunity for you and your partner to settle in Australia would weigh heavily upon you during any custodial sentence.
Crimes Act 1914
53As I have noted, you fall to be sentenced in accordance with the Crimes Act 1914 (Cth). Section 16A(1) of the Act requires me to impose a sentence that is of an appropriate severity to all of the circumstances of the offence. As indicated, I have had regard to the matters set out in s 16A(2).
Nature and Gravity of the Offending
54Pursuant to s 16A(2)(a) of the Crimes Act 1914 (Cth), I must take into account the nature and circumstances of the offence. In doing this, I must assess your level of criminality.
55Offences against Division 400 of the Code are structured in order of seriousness. The relevant mental element for this offence is one of negligence. This is obviously a relevant factor.[7] The quantum here, being in excess of $1,000,000 places the offence towards the higher end of the legislative scheme. Having said that, for an offence contrary to s 400.3(3B) which is relatively broad quantum-wise, the overall quantum here is towards the lower end.
[7] See Majeed v The Queen [2013] VSCA 40 [38].
56I have had regard to the relevant factors identified in Palmisano v The Queen,[8] as being relevant when considering offences under Division 400 of the Code.
[8] [2021] VSCA 124; and more generally Majeed v The Queen [2013] VSCA 40.
57You fall to be sentenced for cash deposits of over $1,600,000. Your offending occurred over approximately one month. The offending was protracted and repeated, with you engaging in over 122 cash deposits. You travelled to Queensland and it seems did so for the purpose of carrying out deposits of a very significant amount of money.
58Whilst I accept that you were following the directions of another more senior member of the syndicate, it is nonetheless a serious example of this offence. There was a degree of organisation and planning and some sophistication. However I again accept that you were not the author or instigator of the arrangements, and whilst you were entrusted to handle a large amount of cash, the degree of authority reposed in you did not extent much beyond that.
59Moreover, I accept that your role involved a considerable amount of risk. You made no attempts to disguise yourself, even producing your own driver's licence in some instances. You appear to have made few, if any efforts, to conceal your offending. That you photographed the deposit slips, suggests some degree of naivety as to what you were involving yourself in, but even despite some of your own concerns about the enterprise, you did not cease playing your role until you were detected by investigators. Furthermore, you did so for profit, expecting a small percentage from each transaction. There is no evidence of any enrichment or assets derived from the money earned.
60In Samarakoon v The Queen,[9] the court reiterated the importance of the value of the proceeds of crime when assessing the objective seriousness of the offence. Here we are talking about a very substantial amount of money. The quantum is a significant factor in my instinctive synthesis. Money laundering is vital to the functioning of organised criminal syndicates. In committing this offence, you have been an important cog in the wheel of organised crime.[10]
[9] [2018] VSCA 119.
[10] Kim v The Queen [2016] VSCA 238; Majeed v The Queen [2013] VSCA 40.
General and specific deterrence
61General deterrence assumes prominence in the sentencing exercise and this is prescribed in the Crimes Act 1914 (Cth). Those who might be inclined to engage in this sort of offending, must understand that it will attract considerable punishment.
62The sentence that I impose must reflect the significant punishment that is to be expected by people who participate in enterprises such as this, being an important part of organised crime. Mr Lewis submits that general deterrence is less of a sentencing consideration for an offence where negligence constitutes the mental element, than for a more serious charge where a mens rea is made out. Whilst I take into account the mental element in this charge, general deterrence nonetheless remains a relevant consideration.
63Furthermore, the court denounces your conduct. You have no prior criminal history but specific deterrence is not irrelevant given the prolific nature of the offending and the period over which you conducted these transactions. [11]
[11] Crimes Act 1914 (Cth) s 16A(2)(j).
64As I have said, in formulating sentence I have had regard to each of the matters discussed, the relevant provisions of s 16A(2) of the Crimes Act 1914 (Cth), the maximum penalty and the need to impose a sentence that is just in all of the circumstances.[12] I have had regard to all relevant matters.
[12] Crimes Act 1914 (Cth) s 16A(2)(k).
Current sentencing practices
65I have had regard to sentences imposed in comparable cases. However, this is only one factor and not the controlling factor in fixing a just sentence. As the High Court set out in The Queen v Pham,[13] when sentencing for a Commonwealth offence, I must have regard to sentences that have been imposed in other States and Territories. The prosecution have indicated that at present, no intermediate appellate court has considered an offence under this provision.
[13] [2015] HCA 39; (2015) 256 CLR 550.
66A table was tendered by the prosecution which summarised intermediate appellate sentences imposed for offences against s 400.9(1) of the Code where the quantum exceeded $1,000,000. Whilst this table has been of some assistance, there are also limits to its utility given that it relates to a different offence. A significant difference between offences under that provision, is it is an offence of strict liability. With those limitations in mind, the prosecution submits that the table of comparative sentences illustrates, without defining, the possible range of sentences. They are said to be the yardstick by which the court may examine the proposed sentence. As the table illustrates, offences involving a similar quantum usually attracts a term of imprisonment.
67Your counsel has taken me through some of the matters contained within that table, noting some relevant differences, and that at least in one instance, an immediate gaol term was not required having regard to all of the circumstances taken into consideration.[14]
[14] See R v BDP [2022] QCA 32.
Sentencing Submissions
68It is submitted on your behalf that you should be sentenced to a term of imprisonment with immediate release on a Recognisance Release Order. Your counsel submits that such a sentence would operate as a punishment and would allow the Court to denounce your conduct while also allowing you to continue your rehabilitation in the community. It is submitted that you do not present as a threat to the community having regard to your personal matters and your excellent prospects of rehabilitation. Alternatively, it was submitted on your behalf that should the Court consider that an actual term of imprisonment is required, then it should be one of short duration.
69The prosecution submits that having regard to the seriousness of the offending by reference to not only the overall quantum but also the number of transactions in which you were engaged over a confined period that, in all of the circumstances, a term of immediate imprisonment is required, in order to adequately reflect the seriousness of the offending and meet the relevant sentencing principles. It is submitted that the weight to be given to your past good character should be moderated given that those of good character are often targeted by criminal syndicates as a means of avoiding detection.
70I have considered all of the matters raised both on your behalf and by the prosecution. The submissions from each party have been helpful. I must take into account the maximum penalty for this offence, the gravity of the offending, your personal circumstances and all of the matters raised on the plea, whilst giving effect to the objectives of sentencing.
71Ultimately, I have come to the conclusion that whilst a term of imprisonment is warranted for this offending, having regard to all relevant matters including your plea of guilty, your demonstrable remorse, your previous good character and your prospects of rehabilitation, that you should be placed on a recognisance release order to be released forthwith. This would, in my view, meet the objectives of sentencing. What this means, Mr Dhitiporncajid, is that you will not be sentenced to a term of imprisonment to be served immediately. Can you please stand.
Sentence
72On the charge before me you are convicted and sentenced to 18 months imprisonment, to be released forthwith.
73You will be released upon a recognisance in the sum of $3,000 that you be of good behaviour for a period of 2 years from today's date.
74I will ask the prosecutor to confirm that the paperwork is available in court in relation to the recognisance release order. So Mr Dhitiporncajid, you are going to be asked to sign some paperwork in a moment and the paperwork is the recognisance release order that I have just mentioned. So I need to explain to you the effect of the sentence that I have imposed. In some ways it is not that dissimilar to what is referred to as a suspended sentence, but it is a different way of operating under the Commonwealth Code. The overall sentence is a period of 18 months imprisonment, but you will be released immediately. That period of 18 months will be hanging over your head for the next two years. During that two year period, if you were to commit a further offence punishable by imprisonment, you may well be required to serve that 18 month period of custody, in addition to whatever penalty you might receive in relation to the further offending. The recognisance amount, the $3,000 that I just mentioned, that is an amount that is potentially payable by you, if you were to breach the terms of the recognisance – that is, if you were to re-offend during the next 2 years. No doubt, Mr Hargreaves will explain to you what this in effect all means, but as I have said you will be asked to sign a document indicating that you understand what is required of you, all right. So just have a seat and I will allow the prosecutor to prepare the paperwork.
75Just while that is happening, Ms Cananzi, were there any other others that were sought by the prosecution?
76MS CANANZI: No, no further orders.
Section 6AAA
77Commonwealth legislation picks up the Victorian Sentencing Act and I indicate pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that but for your plea of guilty, I would have sentenced you to a period of 2 years imprisonment to be released on a recognisance after serving a period of 12 months. So that is the sentence that you would have received if you had pleaded not guilty and gone to trial and been found guilty.
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