Director of Public Prosecutions v Basi

[2017] VCC 410

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02190

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAVINDA BASI

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 April 2017
CASE MAY BE CITED AS:	DPP v Basi
MEDIUM NEUTRAL CITATION:	[2017] VCC 410

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr P Darby
For the Offender	Ms M Fernando

HIS HONOUR: 

1Lavinda Basi, on 30 March 2017, you were arraigned and pleaded guilty to one charge of dealing with  money reasonably suspected of being the proceeds of crime, contrary to s.400.9(1) of the Criminal Code (Commonwealth).  The maximum penalty for this offence is three years' imprisonment and/or a fine of 180 penalty units or $30,600. 

2Tendered as Exhibit A on the plea and read aloud in court was the prosecution opening for plea.  In summary, in September 2012, the Australian Federal Police commenced an investigation into unauthorised financial transfers from Australian bank accounts.  The unauthorised transfers had been made using a number of methods including unauthorised mobile phone porting, unauthorised sim card swapping and unauthorised mobile phone diversion.

3During the investigation, Bobby Rhana, your son, was identified as the principal suspect in relation to the internet bank fraud.  On 25 February 2014, police executed a search warrant at premises occupied by your son.  During the search, a number of items were seized including cash, an Apple iPhone and two Nokia mobile phones.  Your son was present at the premises and was arrested. Analysis of the seized Nokia phones provided direct links to fraud losses totalling approximately $904,000. 

4Analysis of the seized Apple iPhone revealed communications between yourself and your son in September, October and November 2013, as well as February 2014. 

5On 25 February 2014, Australian Federal Police also executed a warrant at your home at Altona Meadows and seized $396,480 in cash.  The cash was found in a locked back in a lounge room cupboard.  When asked by police, you provided the key to the bag.  The key was hidden inside a pocket of a jacket that was hanging in your bedroom wardrobe.  The cash was bundled with rubber bands.

6You were interviewed under caution and apart from confirming that you lived at the address in Altona Meadows with your daughter Jessie and that you had an older daughter Serena and that Bobby Rhana was your son, you otherwise made a "no comment" record of interview. 

7Telephone email communications between yourself and your son and the banking records relating to your finances were relied upon by the Crown to establish the elements of the offence to which you have pleaded guilty. 

8At the time of your arrest, you were in receipt of social security benefits but at the time of your plea, you were working as a vegetable packer. 

9Tendered as Exhibit 1 on the plea was a report from Bernard Healey, psychologist, dated 22 March 2017. 

10You are 49 years of age having been born in Hamilton, New Zealand of Indian parents.  Your father is aged 84 years, whilst your mother is aged 79 but you do not have regular contact with them.  Your father was a dairy farmer and I was informed that he was an uncaring and hard man who meted out harsh corporal punishment to you as an example to your siblings.  Typical of life on a dairy farm, you and your siblings were required to assist in milking the cows before setting off for school in the morning and again, on your arrival home from school.

11You left school at the end of Year 9 and were discouraged from further education by your parents.  You were married by arrangement at age 20, having travelled to India at 18 years of age to meet your prospective husband.  You and your husband ran a share farm in New Zealand that was sold prior to you coming to Australia in 1996.  You have three children, two daughters and a son.

12Whilst in Australia, you completed a Certificate 3 in Health Patient Services Assistance in 1999.  Thereafter, you were principally employed at the Epworth Hospital and secured positions elsewhere through agencies.  Your last position working in this field was at the Royal Melbourne Hospital some four years ago.  In January 2017, you secured a position as a vegetable packer in Werribee. 

13Your arranged marriage took place in 1988 in New Zealand and it was an unhappy one from the outset.  You separated from your husband in 1998 leaving your children in his care.  When your son Bobby was 12 years old, your husband was diagnosed with schizophrenia and as a consequence of this illness, was aggressive to your son.  Over time, you secured custody of your children, your husband retained the family home and you received a $20,000 settlement.  Your son left home at age 15 years to live with friends and you had little contact with him after that time. 

14It was put on your behalf that the feelings of guilt that you experienced in respect to abandoning your children and the lack of a functional relationship with  your son predisposed you to comply with any request he might make of you in respect of the money, the subject of the charge on the indictment.

15Mr Healey conducted a number of psychological tests on you and ultimately he calculated your full scale IQ at 78, placing you in the borderline range at the seventh percentile meaning that 93 per cent of people of your age would perform better than you.  Personality testing was indicative of depression and social introversion and withdrawal.

16It was put on your behalf that your low intellect combined with your emotional state in respect to your children and in particular your son, combined to make you vulnerable to any request made of you by your son Bobby.

17Your 21 year old daughter Jessie lives at home with you.  She is currently unemployed and suffers from depression and anxiety for which she is under the care of a treating psychiatrist, Mr Niraj Angewal whose letter dated 22 March 2017 confirms that she has been under his care since June 2015. 

18Tendered as Exhibit 3 was your letter to the court in which you expressed your sincere apology and remorse for your conduct.  In addition, tendered as Exhibit 5 was a reference from your daughter Jessie.  You have consented to restraining and forfeiture orders in respect to the money the subject of the charge on the indictment (see Exhibit 6).  This fact must be taken into account in arriving at an appropriate sentence in your case.

19Mr Charbra of counsel who appeared on your behalf conceded that no sentence other than a term of imprisonment was appropriate in the circumstances of your offending. However, he submitted that upon recording a conviction pursuant to s.20A(1) of the Crimes Act 1914, you should be released forthwith on your own recognisance. He submitted that your offending falls within the low range of objective seriousness. In doing so, he relied upon the report of Mr Healey and the assertion that you were susceptible to exploitation by your son. Mr Charbra submitted that your role was a perfunctory one, that you were ignorant of your son's illegal activities and accordingly, that your moral culpability was low. In his written outline, Mr Charbra submitted that the amount involved was far from substantial. During oral argument however, he seemed to abandon this submission. Mr Charbra emphasised your early plea of guilty and submitted that you had strong prospects for rehabilitation which, when taken in combination with your personal circumstances, warranted your immediate release upon recognisance.

20It is plain from the authorities that money laundering is regarded as a very serious offence by Parliament and one which the need for general deterrence is of particular significance.  I regard the amount of money found in your possession as substantial.  Whilst the charge on the indictment relates to a single day, the evidence of email communication between you and your son in the months prior to the execution of the warrant on your address in Altona Meadows, demonstrates to my satisfaction that you communicated with him as an equal.

21You are 49 years of age and without prior conviction.  You entered your plea of guilty at the earliest opportunity and are entitled to the benefit that flows to you from that plea, being that it is some evidence of your remorse and it has utilitarian benefit.  Whilst the offence under s.400.9 of the Criminal Code (Commonwealth) is at the lower end of the offences established under Part 10.2, Division 400 of the Code that relates to money laundering, it is a serious offence punishable by up to three years' imprisonment.  The amount of money found in your possession was substantial.  To my mind, you were a willing participant in storing the money on behalf of your son. Whilst it may be true that you feel guilt in respect of your conduct towards your son as a result of separating from your husband and leaving your children in his custody and that you are of low intellect goes to explain your conduct, it in no way excuses it.  In the present circumstances, I find that your prospects for rehabilitation are good. 

22You are, to my mind, an appropriate vehicle for the application of general deterrence.  It was not claimed on your behalf that any exceptional circumstances applied to your daughter who, until your were remanded in custody, resided with you.   Rather, it was submitted that should you be sentenced to a term of immediate imprisonment, the fact that your daughter was residing in your home with your former husband who suffers a serious psychiatric disorder, would weigh heavily on your mind and so make your time in prison harder for you than it would for others.

23Would you please stand.  By this sentence I must punish you, publicly denounce your conduct and deter others from committing this kind of crime.  Taking into account the circumstances of the offence and its effects together with your personal circumstances and antecedence which includes you consenting to a restraining and forfeiture order in respect to the moneys the subject of the charge and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to nine months imprisonment and I order that you be released on a recognisance release order after serving five months of that sentence. The period of the recognisance release order is 12 months, the sum of the recognisance is $1,000. 

24I declare that you have spent eight days by way of pre-sentence detention.

25Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to a term of imprisonment of 18 months and released you upon recognisance release order for a period of 24 months having served 12 months imprisonment. You may be seated.

26MR DARBY:  Your Honour, I will just prepare those orders. 

27HIS HONOUR:  Yes.

28MR DARBY:  The sentence requires a commencement date which I take it is today.

29HIS HONOUR:  Is today.  Take your time, Mr Darby, you're in no hurry.

30MR DARBY:  Thank you, Your Honour.  Your Honour, I've prepared two copies, one for the court and one for the offender. 

31HIS HONOUR:  Thank you very much.

32MR DARBY:  The effects of the recognisance order are to be explained to Ms Basi.

33HIS HONOUR:  Yes.  Thank you.  Ms Basi, would you please stand.  The effect of this order is that you have been sentenced to a term of imprisonment of nine months.  You are obliged to serve five months of that term then you will be released upon a recognisance release order for a period of 12 months.  So effectively, four months of the sentence that I have imposed upon you is suspended for a period of 12 months.  Should you commit an offence during the course of the period of 12 months, then you will breach the recognisance, the recognisance will be forfeited and you will be liable to serve the balance of the term of imprisonment.

34Now these documents will be brought down to you for your signature.  Do you wish to approach the dock to assist your client in that respect?

35MS FERNANDO:  Yes, Your Honour.

36(Recognisance release order signed and acknowledged.)

37HIS HONOUR:  By all means Ms Basi can speak to her daughter before she's removed by the prisoner officer.  Both counsel have copies of the order?

38MR DARBY:  Yes, Your Honour.

39MS FERNANDO:  Yes, Your Honour.

40HIS HONOUR:  That is for your own records, Ms Basi.  You may remove the prisoner please.  Thank you.

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