Director of Public Prosecutions v Bounthirat
[2024] VCC 633
•8 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01609
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SOURIYA BOUNTHIRAT |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 April 2024 |
| DATE OF SENTENCE: | 8 May 2024 |
| CASE MAY BE CITED AS: | DPP v Bounthirat |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 633 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of Unauthorised Access, Modification or Impairment with Intent to Commit Serious Offence, Theft, Supplying Identification Information, Possession of Identification Information, Possession of Equipment Used to Make Identification Documentation and Possession of a Drug of Dependence – sophisticated offending – no criminal history – early plea of guilty – Verdins – prospect of deportation.
Legislation Cited: Sentencing Act 1991, ss 5(1), 5(2).
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007] VSCA 102; Borg v The Queen [2020] VSCA 191.
Sentence: 9 months imprisonment with an 18-month community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Liantzakis | Office of Public Prosecutions |
| For the Accused | Mr M. Kowalski | Garde Wilson Lawyers |
HIS HONOUR:
Introduction
1Souriya Bounthirat, I will sentence you to nine months' imprisonment on Charge 1. On the remaining charges, with your consent, I will convict you and sentence you to a community correction order of 18 months' duration with these conditions:
(a) to perform 250 hours of unpaid community work;
(b) to be supervised, monitored and managed as directed;
(c) to undergo assessment and treatment for your mental health; and
(d) to undergo assessment and treatment for your drug abuse or dependency.
2All hours satisfactorily completed on the therapeutic conditions of this order will count as hours of unpaid community work.
3You pleaded guilty to six charges. A description of the charges and their particulars gives a detailed picture of your offending. Both should be read with the circumstances described in the 'Amended summary of prosecution upon plea', which is Exhibit A.
Circumstances
4Using a search warrant, on 19 January 2022, police members searched your home and found:
(a) in the master bedroom, an OPPO mobile phone, a notebook with handwritten banking details;
(b) an Omen laptop, two notebooks with handwritten details in the names of other persons and a Magstripe card reader write encoder in the shed and two containers of cannabis;
(c) elsewhere, there was a USB smartcard reader and writer, various bankcards in the names of other persons and 21 blank encodable cards.
5You were taken to a police station and interviewed. Among other things, you admitted obtaining and selling identification documents during the COVID-19 lockdown. You said most of the money obtained was used to buy cannabis for your personal use. You bought identification information for resale or were given such information for sale. For the latter, you received up to $500 a time but usually received $200 to $300. You sold or resold the information using an application called 'Telegram'. You were paid in either of two cryptocurrencies.
6You used the card coding equipment in an unsuccessful attempt to copy cards you found in the street. You found the bank cards but did not attempt to find their owners. The cannabis was for your own use which you smoked in the shed to help you sleep at night.
Oppo mobile phone
7The police analysed your Oppo mobile phone. It showed you accessed a website called 'Russian Market' 5,707 times between 11 October 2021 and 18 January 2022, being almost daily access. You downloaded 638 files which contained identification information, logs, account information or cookies.
8This is part of Charge 4, a charge of possessing identification information. Schedule B to the indictment gives the name of each victim and the identification information for each. The schedule details 179 victims. The amount of information for each victim varies. For a number, there is a digital copy of a driver licence or a photograph of a Medicare card. For others, there is more information. For number 111 of the schedule, there is a photograph of a driver licence, a photo card, a health card and a Medicare card. The person in 111 is listed as a witness on the indictment.
9Also, during the same period, you accessed bank login websites about 1,973 times. This involved a wide range of banks including the so-called big four Australian banks.
10The police analysis showed you would access the 'Russian Market' website, then download information and then access bank login websites to check the validity of the data you purchased. This constitutes Charge 1. Reading the material facts of the charge gives the flavour of the offence:
'…did access unauthorised computer functions by testing username and password login information pertaining to bank accounts not related to [yourself], knowing it is unauthorised and with the intention of facilitating the commission of a serious offence by another person, namely a financial advantage by deception.'
11The 'notes' application in your mobile phone contained multiple identification documents, email accounts and associated passwords, Commonwealth Bank card names and associated personal verification numbers in 10 numbered 'memos'. This is part of Charge 4.
12Your phone contained conversations with other users and using the 'Telegram' application. They outline the extent of your selling of identification. There are other users whose identity is unknown enquiring of your services and requesting logs, identification documents, bank accounts, email or Medicare access. This constitutes Charge 3, a charge of supplying identification information.
Omen laptop
13You gave the police access to your Omen laptop as the warrant required you to do but you located for them the files relating to the identification documents and other information. You had a system of folders containing identification information with the majority organised according to the supplier of the information or who they were supplied to. The folders comprised '.zip' files.
14There were about 385 '.zip' files. Each contained from about 50 to over 200 usernames and password combinations for various websites including MyGov, PayPal, Google and gaming accounts.
15There was also a large number of picture files with the vast majority showing identification documents including driver licences, passports, Medicare, Births, Death and Marriages certificates and 'Keypass'.
Redline
16All of the log.txt files located on your laptop were titled 'Redline'. 'Redline' is described as 'stealer malware'. It can infect a victim's computer in different ways. Once it has infected a computer, it remains and is able to harvest data stored in the computer. It allows the theft of browser passwords, bookmarks, cookies and history. The victim is unaware of the intrusion and the offender cannot be traced as the data is stored in a private database. This data can be sold through darknet markets.
Coinspot
17On 25 April 2021, you opened an account on a cryptocurrency trading platform called 'Coinspot'. The account was in your partner's name. Between that date and 3 January 2022, there were 27 deposits into the account in the form of a cryptocurrency. Whenever a deposit was made, it was sold for Australian currency. The deposits correspond with the Telegram conversations on your mobile phone of identification supply and sales. The converted currency was then deposited into a Bendigo Bank account. Although there were 27 deposits, you accessed your Coinspot account on 125 occasions, mostly on the dates the deposits were made into that account.
Criminal history
18You have no criminal history. I am ignoring the suggestion of criminal offending in New Zealand. Offenders should be given credit for their good character up to the time of offending. Good character is a mitigating factor.
Victim impact statements
19There are no victim impact statements.
Personal
20You were born in Auckland and are of Thai and Laotian background and are now 31. You have two younger sisters. Your early childhood was positive with no exposure to domestic violence, sexual abuse or substance use. You did experience racism in New Zealand as you were one of the very few individuals of Asian descent residing in your area.
21During your schooling years, you were bullied and experienced racism and this resulted in physical altercations and suspension from schools. You gravitated towards negative peer groups as a means of support and protection. You did not receive any support from the school in relation to this abuse. You were able to attend the equivalent of TAFE in New Zealand and completed Year 12.
22In New Zealand, you were involved in the criminal justice system for violence and theft matters, which led to some form of a corrections order. You attended a bootcamp for a month and a diversion programme to assist at risk youth who were involved in the criminal justice system. The bootcamp proved challenging but provided you with the tools you needed to not encounter the criminal justice system again.
23When you were 17, you and your family moved to Queensland for two years. You resided with your mother's family during this time. Also, during this time, you worked with your father in the family plastering business. His business gained work in Victoria and you would accompany him there.
24While working in Victoria, you met your partner, Daniela, when you were 19. You are still with her. She became pregnant and you decided to stay in Victoria to be with her. You now have two children with her, a son aged 10 and a daughter aged five.
25In 2014, you mother died after suffering an aneurysm. You had a good relationship with your mother and describe her as the person who kept the family together. After her death, your family drifted apart. You struggled to deal with your grief and you avoided others. Your father experienced a significant deterioration in his mental state after your mother's death and your relationship with him is now distant and strained.
26In 2019, your son was diagnosed with a ventricular septal defect, commonly known as a 'hole in the heart'. Since diagnosed, he has been cared for by cardiologists at the Royal Children's Hospital and requires close monitoring. He suffers from dizzy spells and laboured breathing and will eventually require surgery to correct his heart defect.
27You have a healthy and supportive relationship with your wife. Both of you rely on each other. Her mother died in 2007 from a heart attack and you have no other immediate family support in Victoria. You, your wife and two children live in a rented property at Mooroolbark.
28After moving to Victoria and meeting Daniela, you started working in car detailing and still do so. You alone are employed in the family. For 18 months during the pandemic you did not work. During this time, you received childcare payments and a small loan from your father but you were ineligible for government-assisted payments during the pandemic as you are not an Australian Citizen. You now work as a team leader in car detailing. In the future, you would like to set up your own car detailing business.
29Regarding your drug use, you used cannabis daily to assist your chronic gut issues and anxiety. You deny using any other substances and alcohol. You told the community corrections officer you would like to cease your cannabis in the future but, it appears, have no present intention of doing so.
Neuropsychologist
30Matthew Staios is a clinical neuropsychologist. At your solicitor's request, he interviewed you on 12 April 2024[1].
[1] Report dated 15 April 2024.
31Dr Staios saw two stressors operating in the period of your offending, the financial stress due to your unemployment and the stress caused by your son's heart condition. Coupled with the stress of this proceeding, he diagnosed you as suffering from a major depressive disorder with anxious distress. The first two factors saw a decline in your mental health, impairing your decision‑making ability and leading to the commission of these offences.
32As to the impact of imprisonment, Dr Staios said[2]:
'…he is likely to exhibit a significant decline in his mental health state if required to serve a term in custody given his familial commitments, the nature of his son's cardiac condition, and no previous contact with prison environments.'
[2] At [7.5].
33I daresay due to a single attendance to give this type of report, Dr Staios relied upon how you appeared and the results of his tests. When speaking of the symptoms of major depression, he spoke generally. I do not know how much of the symptoms he described for major depression apply to you or their severity.
Discussion
34The Director's counsel submits a term of imprisonment is warranted for your offending but also submits that a combination of imprisonment and a community correction order is open. Your counsel submits a community correction order is appropriate.
35The purposes of sentencing are set out in s 5(1) of the Sentencing Act 1991. They involve the purposes of just punishment, general deterrence, specific deterrence, denunciation and protecting the community from you. To a greater and lesser extent, each purpose is relevant to the sentencing of you.
36The nature of each of the offences contained in the charges emphasises the sentencing purpose of general deterrence and denunciation. You were part of a system which sought to defraud others of their moneys. As is commonly known during 2023 there was large‑scale hacking of the data held by major Australian corporations. Nowadays, almost every other day, there is a media report of some form of using the data of persons and causing financial losses. In your case, there is no evidence of anyone suffering a financial loss. You received a relatively small amount of money for your efforts. Nevertheless, it is very important my sentences act as a deterrent to others not to commit the same or similar offences and serve to denounce your offending.
37The degree of your moral culpability is lessened because of your depressed and anxious state over the time of your offending.
38The need to deter you and protect the community from you is also lessened by your remorse, evidenced by your guilty pleas and expressions of remorse to others. The financial crisis has passed. You have returned to employment. Your son's condition is monitored and, if necessary, there is the possibility of surgery to resolve a reasonably common heart condition.
39Section 5(2) of the Sentencing Act sets out various matters I must consider where they are relevant to you.
Maximum penalties
40The maximum penalties for the offences are:
(a) unauthorised access, modification or impairment with intent to commit serious offence – 10 years' imprisonment;
(b) theft – 10 years' imprisonment;
(c) supplying identification information – five years' imprisonment;
(d) possessing identification information – three years' imprisonment;
(e) possessing equipment used to make identification documentation – three years' imprisonment; and
(f) possess a drug of dependence – 30 penalty units or one year's imprisonment.
Nature and gravity of the offending
41With Charge 1, over a period of a little more than three months, you accessed the 'Russian Market' dark website 5,707 times. You downloaded 638 files. You accessed bank login websites about 1,973 times to test the validity of the information you had downloaded. You did this intending to enable others to obtain a financial advantage by deceiving innocent persons.
42Charges 2, 3 and 4 are rolled‑up charges. They bring together more than one instance of the particular offence under the one charge. This process benefits you in that instead of each offence being the subject of a separate charge and sentence, they are rolled‑up into a single charge for which a single sentence is imposed.
43Putting aside Charge 2, Charge 3 contains 26 instances of you supplying confidential information. You sold this information in order to allow the purchasers to defraud others. The indictment sets out the names of potential witnesses if there were a trial and, as I said earlier, there is no evidence any were defrauded of their monies.
44There were multiple users of the 'Telegram' application requesting your information. The schedule to this charge gives a broad idea of the scale of the information you sold. You sent files or gave access to them. You received a total of $12,167.28 for your efforts. I assume this represents the payments for the 26 instances of supply.
45This was a reasonably sophisticated endeavour. Among other things, you used the dark web, an encrypted messaging service and payment by way of a cryptocurrency.
46Charge 4 involves the possession of identification information for 179 persons. The information was found in three handwritten notebooks, the notes application in your mobile phone and in folders in your laptop. The last contains about 385 files or logs.
47In the scale of things, Charges 2 and 6 are minor. The Director concedes the cannabis in Charge 6 was a small quantity and for your personal use. Charge 5 is a charge of possessing a card reader and six bank cards in the names of other persons and 21 blank strip and chip cards. You bought a smartcard reader for the purpose of copying bank data into blank cards. Schedule C describes the items and the equipment you possessed. For example, there were bank cards in the names of 6 persons.
Guilty pleas
48Your guilty pleas were entered after your application for summary jurisdiction was refused in the Magistrates' Court. This occurred on 4 September 2023. The proceeding moved directly to a plea hearing in this Court. Some of the charges against you started in the 'summary stream' of the Magistrates' Court. As more charges were added, it moved into the 'committal stream'. I consider your guilty pleas were entered at an early stage in the proceeding.
49There are benefits of your guilty pleas. They are an emphatic acknowledgement of your offending. It places your guilt beyond doubt. Generally, this is not an issue but sometimes it is.
50Second, they relieved the victims from the need to give evidence against you in the trial. In this case, that may have proven to be a burden but not an overly difficult one.
51Third, you have assisted the criminal justice process. You have removed your case from those needing a jury trial and allowed others to move forward. This has avoided the delay and saved the time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and lasting weeks. Avoiding that is a considerable benefit to the criminal justice system.
52Fourth and for completeness only, the crisis addressed in Worboyes v The Queen[3] and other cases has now disappeared. On 5 May 2023, the World Health Organisation declared the virus no longer constituted a public health emergency. On 6 October 2023, the Chief Judge of this Court announced publicly his expectation the backlog of cases created by the pandemic would reach the pre‑pandemic levels of pending cases. This has occurred. The amelioration of penalty identified in the case of Worboyes no longer applies even though the virus can still cause some disruption to jury trials and other Court proceedings.
[3] [2021] VSCA 169.
Verdins
53You rely upon the fifth principle stated in R v Verdins[4], supported by paragraph 7.5 of Dr Staios' report. Your impaired mental functioning is categorised as a major depressive disorder. It will significantly worsen if you are imprisoned due to three reasons. First, your commitments to your family as the sole breadwinner with a lack of family support on both sides of the family.
[4] [2007] VSCA 102.
54Second, the state of your son's health. There are two letters of referral from general practitioners. The more recent was faxed to the Royal Children's Hospital on 10 or 18 December 2023. The practitioner's comment reads, 'Cardiac symptoms, due to be seen in March 2024. I believe he needs an earlier review…'. The practitioner requests a review in less than 30 days.
55Third, you have had no previous contact with prison environments. To Dr Staios, the elevated readings on avoidant and dependent personality scales together with the revelations on the major depression and anxiety scales indicates:
'…he has a personality structure that leaves him predisposed to fear, mistrust of others, and difficulty regulating and expressing emotions in the face of adversity.'
56These are most unhelpful emotions to possess in the volatile environment of a prison. I consider the fifth principle applies. I have already dealt with indirectly with some of the other principles in Verdins case and their application to you.
Deportation
57You are not an Australian citizen. You live here under some form of visa. There is a possibility your visa will be cancelled after my sentencing and you deported to New Zealand, never to return to this country. The prospect of deportation must weigh on you because of the lengthy time you have spent here and the relationships you have formed. I have taken this factor into account.
Current sentencing practice
58I was referred to Borg v The Queen[5] because it dealt with one of the offences in your case. Unfortunately, it provides no assistance because of the nature of Ms Borg's position and her unusual personal circumstances.
[5] [2020] VSCA 191.
59The Director's counsel referred to passages in relevant judgments, which are noted, that being footnote 1 of the prosecution opening on sentence dated 16 April 2024.
Community corrections assessment
60A community corrections officer assessed you on 17 April 2024. The officer assessed you as a low risk of re‑offending and recommended four conditions.
61You explained the offending to the officer as follows:
'…that he began accessing personal information through a website and selling that information to potential scammers for a fee. Mr Bounthirat said he never enquired as to what the potential scammers would be doing with the information but assumed it would be to steal identities to commit further offences. Mr Bounthirat explained his motivation was purely financial as he had lost his job due to COVID restrictions and was unable to obtain government benefits as he is a NZ citizen….'
62On the same day, you were also interviewed by a registered nurse, Gregory Lane, from Forensicare's Mental Health Advice and Response Service.
63Mr Lane considered you suffered from a mild mental health problem. He recommended a mental health condition be made as part of any community correction order in order to promote your well-being and reduce the likelihood of re-offending. He anticipated your general practitioner preparing a mental health care plan and a referral to a psychologist.
64Although there are strong mitigating factors in your case as put to me by your counsel and which I accept, a short term of imprisonment is demanded by the nature of your offending coupled with a community correction order.
Sentence
65On Charge 1, I sentence you to nine months' imprisonment.
66On the remaining charges, with your consent, I will convict and sentence you to a community correction order of 18 months' duration with these conditions:
(a) to perform 250 hours of unpaid community work;
(b) to be supervised, monitored and managed as directed;
(c) to undergo assessment and treatment for your mental health; and
(d) to undergo assessment and treatment for your drug abuse or dependency.
67All hours satisfactorily completed on the therapeutic conditions of the order will count as hours of unpaid community work.
Section 6AAA
68If you had pleaded not guilty to these charges but had been found guilty after a trial, I would have sentenced you to 15 months' imprisonment together with the same community correction order.
Forfeiture and disposal
69I will make the forfeiture and disposal orders in the terms of the draft orders.
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