Director of Public Prosecutions v Dawn-Manuel
[2014] VCC 1810
•21 October 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-00837
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRIS DAWN-MANUEL |
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| JUDGE: | HER HONOUR JUDGE GAYNOR |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 21 October 2014 |
| CASE MAY BE CITED AS: | DPP v Dawn-Manuel |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1810 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T. Saville | Office of Public Prosecutions |
| For the Offender | Mr C. Farrington |
HER HONOUR:
1Chris Dawn-Manuel, you have pleaded guilty before me to three charges of obtaining a financial advantage by deception, three charges of attempting to obtain a financial advantage by deception and one charge of possession of identification information.
2The facts underlying your offending are as follows:
3You were born in India and arrived in Australia on a student visa in February 2010. At the time of your arrest you were living at 1/17 Browning Avenue, Clayton South and also rented a room at 5 Faulkner Street, Clayton.
4During 2012 to 2013 you had established an identity fraud operation whereby you obtained identification information, including Optus mobile phone application contracts, containing information including the name, address, employment details and contact telephone numbers of various people. You then used this information to apply for credit cards online through GE Capital Finance, the National Australia Bank and the ANZ. You would then create a fictitious email address using the name of the fictitious applicant and the details of their address, date of birth, employment and telephone that you had previously obtained.
5You then purchased a prepaid SIM card registering that applicant's details with the service provider and putting this telephone number in the credit card application. You put postal addresses in the credit card application of vacant premises which you sourced by searching realestate.com and other websites. If an application was approved, you were notified by the bank via the prepaid mobile phone number you had attached to the application and that institution would post the credit card and PIN number separately to the postal address you had provided. You then attended the vacant rental property, collected the credit cards and PIN numbers.
6In relation to GE Capital Finance, you obtained three credit card facilities with a total value of $27,500, which underlies Charge 1, and tried to obtain a further credit facility with a total value of $8,000, which actions underlie Charge 2.
7In relation to the National Australia Bank, you obtained 27 credit card facilities with a total value of $394,000, which underlies Charge 3 on the indictment, and tried to obtain a further 27 credit cards with a total value of $361,000 underlying Charge 4.
8In relation to the ANZ, you obtained 15 credit cards with a total value of $239,000 and tried to obtain a further 31 credit cards with a total value of $489,999. Those actions underlie Charges 5 and 6 on the indictment.
9In all, you obtained 45 credit cards with a total value, combined value of $660,500 and tried to obtain 59 further credit cards with a total combined value of $858,999.
10You recruited a number of other people in this operation including a student, Di Huang Nguyen, whom you taught to make fraudulent Victorian and Northern Territory drivers' licences. You also sold him Apple products at below retail value, these being items you had purchased with your fraudulently obtained credit cards. You offered them to him at a discount in return for him making the fraudulent licences for you. Nguyen made about 100 fraudulent drivers' licences at your request.
11You used the fraudulent credit cards and licences to buy various items from retail stores, recruiting two other persons, Priyank Patel and Karmar Pedapudi as shoppers. Most of the time you attended retail stores, such as JB Hi-Fi, Myer and Dick Smith, picking up Patel on the way, providing him with a credit card, PIN and a licence and instructing him as to what to buy. Most items were Apple computers and other Apple electronic devices. On your instructions, Patel attended the stores, bought the requested items, gave them to you with receipts, receiving 2.5 per cent of the total spent as payment for shopping. Pedapudi also shopped on instruction from you on a couple of occasions in order to repay a loan of $1,000.
12
The fraudulent credit cards were used approximately 188 times to buy various items and withdraw cash from ATMs to a total of $452,024.15. There were a further seven attempts to use the credit cards to buy various items and withdraw cash from the ATMs valued at $18,963. You then sold some of the items purchased in this way to Nguyen for cash and he also sold about
30 MacBook computers, 30 iPhones, some iPads and some other items via an online store, Ausluck.
13On 18 September 2013, police attended your residence, executing a search warrant and locating you behind a door. There they found 48 assorted credit cards in various names and 65 false drivers' licences in various names with pictures of either yourself or Patel upon them. They also located a large amount of electrical items, designer clothes, shoes, jewellery, 27 bottles of alcohol and a box of plastic identity cards. Police then searched the room you rented at Faulkner Street, Clayton, which was set up as an office, where they found electrical items, eight mobile phones with sticky notes on the back stating names and associated banking institutions, 25 mobile phone contracts, a utility bill and other personal identity information.
14At Nguyen's address, police found 45 Optus mobile phone contracts in the name of assorted people, which had been given to him by you, you having asked Nguyen to type the information into a spreadsheet as you wanted all of it to be accessible via computer.
15You conducted a "no comment" record of interview with police.
16Nguyen made a number of admissions in his record of interview with police, stating he purchased items from you after he started making the fraudulent licences, that you would send him a list of names and which photos to put with which names on the fraudulent licences, that you would send the list of names and photos to him via phone message, that he would pay you for the Apple products with cash, that he believed he made more than $10,000 from selling the items he had purchased from you. He then also provided police with two statements detailing his involvement in the offending, as well as detailing your own criminal activities. In all, there were five co-accused involved in this criminal operation organised by you, all of whom had been recruited by you.
17Patel pleaded guilty to 20 charges of obtaining property by deception for a total of $59,544.03; three charges of attempting to obtain property by deception worth $15,425.96; and dealing with the proceeds of crime. He gave an undertaking to assist the prosecution and give evidence against you and was sentenced to a 12 month community correction order by the Magistrates' Court with a special condition to complete unpaid community work.
18A second co-accused, Tamara Rowarth, pleaded guilty to 12 charges of obtaining property by deception, attempting to obtain property by deception and going equipped to steal and was placed on a good behaviour bond without conviction by the Heidelberg Magistrates' Court on April 24, 2014. The factual basis of her plea, which was clearly accepted, was that she was deceived by you and gave an undertaking to assist the prosecution in giving evidence against you if required. It also appears you were involved in an arrangement of marriage with Ms Rowarth.
19Pedapudi pleaded guilty two charges of obtaining property by deception and gave an undertaking to the Heidelberg Magistrates' Court to assist the prosecution and give evidence against you if required. A $1,500 fine without conviction was imposed and he was ordered to pay almost $10,000 in restitution.
20A fourth co-accused, Xien Jiang, pleaded guilty to charges of possessing the proceeds of crime, handling stolen goods and possessing identification information and, on May 13, 2014 at the Melbourne Magistrates' Court, received a $4,000 fine without conviction. The factual basis of his plea was that he was handling goods for you but he was not part of any fraud, and he also gave an undertaking to assist the prosecution and give evidence against you and Nguyen.
21On 11 August 2014, after pleading guilty to one charge of handling stolen goods, one charge of supplying identification information and one charge of obtaining property by deception, Mr Nguyen was placed by this court on a two year community correction order with a special condition to undertake 300 hours of unpaid community work. Mr Nguyen had pleaded guilty at an early stage, that is, at committal mention, and had no prior convictions. He had also been extremely cooperative with police. You did not indicate a plea of guilty until the date of your actual committal on May 13, 2014, that hearing having been set down as a contested committal, and during Mr Nguyen's plea it was conceded that the information he provided as to your activities via the two statements he made to police was instrumental in causing you to eventually enter a plea of guilty on that date.
22You have been remanded in custody since your arrest on 17 September 2013.
23You have two prior convictions in Australia. On August 30, 2011 the Moorabbin Magistrates' Court sentenced you to a six month intensive corrections order for 26 charges of obtaining property by deception, one charge of theft and one charge of obtaining a financial advantage by deception.
24On 8 May 2012 the Moorabbin Magistrates' Court placed you on a six month community corrections order on one charge of theft and one charge of obtaining a financial advantage by deception. You were dealt with for breaching that order on October 30, 2012, the breach being found proven and the order reimposed.
25The maximum penalty for obtaining a financial advantage by deception is ten years' imprisonment. The maximum penalty for attempting to obtain a financial advantage by deception is five years' imprisonment. The maximum penalty for possession of identification information is three years' imprisonment.
26You also pleaded guilty in this hearing to two summary charges which were uplifted, they being charges of possessing a controlled weapon without lawful excuse and dealing with property suspected of being the proceeds of crime. Those charges related to the discovery by police at your residential address of a hunting knife, that being the controlled weapon, and to the items found at your home and at your office comprising a number of mobile phones, laptops, iPads, a box of plastic identity cards, jewellery, hard drives, shirts, a TV, clothes, a printer, a camera and other items which were believed to have been obtained by you via your fraudulent activities.
27The maximum penalty for possessing the proceeds of crime is two years' imprisonment, and the maximum penalty for possessing a controlled weapon is one year imprisonment.
28I now turn to your personal circumstances.
29You are 36 years of age. You were born in India and, as I have said, came to Australia on a student visa in February 2010. The plea in this matter, through no fault of your own very competent counsel, was conducted in an extraordinary manner. The plea hearing commenced on 11 April 2014. On that occasion your counsel informed me that you had come to Australia to complete a Masters of Business. On your instructions, he gave a description of a heart-rending situation whereby you and your brother were born to parents who were a doctor and engineer respectively and lived with them in a fishing village until 2004 when a Tsunami struck in which both your parents and brother were killed. You survived, but with significant injuries, which were graphically described, but were reduced to a life of destitution and penury because all your family's possessions were washed away, there was no insurance and no extended family to care for you. You then, according to what your told your counsel, apparently spent some years begging on the streets, where you were exposed to violence and inhumane acts, but nevertheless managed to complete your education in order to escape the horrors of your life.
30Eventually you obtained a Bachelor of Arts degree against almost incredible odds, it would seem, and managed to save sufficient money to leave India and come to Australia to further your studies. You had managed to survive, I was told, by becoming a member of a street gang, so that dishonesty had become your way of life, and it was put that you were crippled with grief and guilt over having survived when your family had perished. For these reasons you were, it was said to me, unable to attend to your studies, lapsed back into the dishonest criminal activity, which was the subject of the two previous appearances at the Moorabbin Magistrates' Court, again in order to survive.
31There were concerns that you had developed a post-traumatic stress disorder and that once your studies lapsed, you fell back into long-established dishonesty behaviour, this leading directly to involvement in the very serious offending which has brought you here before this court. That hearing was adjourned, both because I was anxious to obtain a psychological assessment of you and because the informant in this matter, having heard your plea material, indicated to the prosecutor that he had doubts about the veracity of the information provided by you to this court through your counsel, and the matter was then adjourned to September 4, 2014.
32Extraordinary material was provided by the prosecution which indicated that your instructions to counsel were simply a pack of lies. Police investigation of your university records revealed, firstly, that your brother is alive and well and studying at an engineering college in India. Secondly, a psychiatric report was found on your computer in two versions, under the name of a particular practitioner who was contacted by police and who vehemently denied ever having seen you, treated you or written a report for you. It appears the report may have been used by you in your previous Magistrates' Courts proceedings. Interestingly, that document gave another version of events in relation to your family, whereby you stated that your parents were killed when you were 16 and you were then forced to support you and your younger brother who had fortunately survived the tsunami.
33Police also uncovered evidence that in 2011 you married a woman in order to obtain Australian citizenship, that her father found out and forced you to divorce her in April 2012. Police obtained a copy of the marriage certificate, which clearly shows the name of your parents. It appears you then married a second woman for the same ends, filing an application for divorce on April 5, 2013. You then planned to marry a third woman, your co-accused, Tamara Rowarth, whom you met in May 2013 when she answered an ad you had placed looking for a wife. You told her you had an ex-partner and a four-year-old daughter and had to stay in Australia because she was making life difficult for you and that if you had to return to India you would face death by firing squad. You told Ms Rowarth you had paid $200,000 to get to Australia via a place in a shipping container without even knowing the destination. You offered Ms Rowarth $35,000 and to pay her rent and provide a fully furnished house for her to live in if she married you.
34A statement was taken in September 2014 from your second wife, to whom you are apparently still married, one Joelene Samuels. She stated she met you on a website, the arrangements of the marriage being that you pay her $500 a week to meet you twice a week but that the relationship was not sexual. You told Ms Samuels you were a professor at Monash University, owned a petrol station in McKinnon, owned a massage parlour, a massage shop in South Yarra and that your family were in an accident. She said the marriage was an arrangement based on financial assistance to her, that you had only ever been to her house two or three times and that the two of you had never lived together.
35Another statement taken in March 2013 from a friend of yours contained the information that you attended an engineering college in India and that he had stayed at your house in Clayton when was accepted into university in Australia in 2012 and found out that your parents were trying to call you and were worried that you were missing. He said you came from a town named Nagercoil in India, had a younger brother, and that your mother, who is currently alive, works in education. He detailed your father's name and said he had spoken to your mother after your arrest and told her you were in prison. He learned from her that you had a girlfriend in India.
36Overall, evidence from other witnesses make it clear your family is alive and well. Your mother, in fact, is a principal of a college in India and eventually police established email contact with her.
37Police have also made contact with other persons in Australia who know you and whom you had given various stories, such as a sister being killed in a tsunami, that you have a wife and two children in India, that your parents are alive and that you spoke on many occasions on the telephone to your mother.
38In his statement, Detective Acting Sergeant Simon Hunter, stated that as a result of his extensive investigations, which included direct contact with your mother in India, he had formed the opinion, which I entirely accept, that you are "skilled in the art of deception, whether it be committing offences or fabricating stories to suit his needs." He stated that "Dawn-Manuel has been raised in a well-off and respected family and been provided with a good education and opportunities to study in Australia."
39The material before me makes it perfectly clear, Mr Dawn-Manuel, that your mother is the principal of a college, your father is an engineer, your brother is studying at an engineering college and that you also attended that college and obtained a tertiary qualification. Detective Hunter was told by other students from India, who know you, that to attend a university there, you must be from a wealthy family.
40It was also noted by Detective Hunter that you were identified in police investigations which began in April 2014 through exhaustive searches of CCTV footage at a shopping centre capturing your vehicle registration and that it became clear to police, after watching hours of CCTV footage and having surveillance operatives follow you, that you used the proceeds of crime to describe - what he described as "an incredibly affluent lifestyle", "going out for every meal, spending a large amount of moneys on clothes, pairs of jeans, expensive alcohol and making numerous trips to high end brothels as well as having escorts attend your home."
41Detective Hunter attached witness statements and documentation revealing the extent of the fabrications that you have constructed in your personal life quite apart from your serious fraudulent criminal activity.
42There is a statement from Tamara Rowarth as to how she met you and what you told her about your background; from Joelene Samuels about your arranged marriage undertaken in order to obtain residency in Australia; from the friend in India who is now studying in Australia; excerpts from your brother's Facebook account making it clear he is alive and well; copies of your academic results, both at the secondary and tertiary level in India; copies of records from Monash University showing your negligible and perfunctory efforts at undertaking that course; a statement from a psychiatrist that the report contained on your computer later given to the Community Corrections Office following your appearances in the Magistrates' Court at Moorabbin was entirely false and that she had never seen you; a copy of that false report; and then an extraordinary set of photographs showing you holding up a fanned out wad of cash comprising mostly $100 and $50 notes, holding a tower of ten box iPhones and smiling broadly behind a counter of expensive alcohol.
43I have gone into considerable detail as to the extent of your deceptions because they are extremely important in determining your prospects of rehabilitation and hence the danger you present to the community on release. In my view, your prospects of rehabilitation must be seen as virtually negligible.
44First, you organised a sophisticated criminal enterprise into which you recruited a number of co-accused, which resulted in the plundering of other persons' bank accounts from which you reaped hundreds of thousands of dollars-worth of profit, much of it unrecovered. Detective Hunter notes that you received a total of 73 cash deposits in your bank accounts via branch and ATM deposits of $249,294.63 and that there is still a large amount of funds missing, police believing they have been sent overseas.
45You further profited by the acquisition of mostly electrical goods, which you then on-sold in the operation you set up. Second, your criminal activities represented a breach of the financial security of dozens of people and of the public banking system. The sophistication, extent and duration of these criminal activities which were masterminded by you would in themselves warrant a sentence where the principles of general deterrence and community protection would dominate the sentencing exercise.
46Evidence before this court, however, of your blatant attempts to manipulate these court proceedings by the presentation of entirely false material and evidence demonstrating this would appear not to have been the first time you have engaged in such activity, (investigation is ongoing as to whether the false psychiatric report found on your computer affected the disposition ultimately handed down by the Moorabbin Magistrates' Court on the three occasions you have previously appeared before it) has led me to form the view that you are a breathtakingly and brazenly dishonest man who is a hardened criminal.
47The evidence is that you come from a professional and well-off family in India, that you have been given every educational advantage, that the only reason that you continued to offend in this dishonest and fraudulent manner was greed.
48I accept that the moneys you generated from your criminal enterprise went entirely on an affluent and self-indulgent lifestyle. I note that police investigations include the discovery that you are also the part owner of a massage parlour in South Yarra.
49You have, of course, shown absolutely no remorse for your offending in any genuine sense. It appears that until your co-accused, Mr Nguyen, gave statements incriminating you and fully describing your activities to police, you were determined to plead not guilty to these charges. You then proceeded to supply false and misleading information to your counsel for use on the plea. Your plea of guilty in the circumstance has the barest utilitarian value. I do accept that it has saved the community the time and expense of a criminal trial.
50In my view, you present a persistent and grave threat to the community as a self-absorbed, utterly dishonest individual whose offending was motivated solely by greed and who was able to set up, as I have said, a sophisticated and wide-ranging criminal operation which afforded you an extremely affluent lifestyle.
51Your offending, as I have said, involved an attack on people's security and the public banking system, vital to the daily financial affairs of virtually every member of the Australian community. Information about your continued attempts to remain in Australia through fraudulent marriages simply underscores the essential dishonesty of your nature as I find it to be.
52I congratulate the police on their extremely through investigations in this matter and the wealth of material presented to this court. I am very grateful to you.
53In my view, I am dealing with an arrogant, unscrupulous and entirely dishonest man. It is my view that you present an ongoing danger to the community and that I find, as I have said, your prospects of rehabilitation to be almost negligible.
54Ultimately, and fortunately, you will undoubtedly be deported from these shores to be returned to India in disgrace the moment you are released from prison. In my view, it is entirely clear that the principles of just deterrence, denunciation of your behaviour, protection of the community, specific and general deterrence have overwhelming significance in the sentencing exercise before me.
55An example of the traumatic effect of your offending is well represented in the victim impact statement I received from one victim who had $20,000 removed from his bank account as a result of fraudulent use of his credit card by you. That person detailed the extreme anxiety he experienced on discovering his confidential financial information, and personal bank accounts had been breached and plundered, and spoke of the great sense of distrust he has been left with ever since, as well as the anxiety he experienced as the bank continued to press him for money he could not afford to repay even though he knew the debt was not his.
56I, therefore, sentence you as follows. Mr Dawn-Manuel, can you stand up, please, sir?
57On Charge 1, you are sentenced to eight months’ imprisonment.
58On Charge 2, you are sentenced to four months' imprisonment.
59On Charge 3, you are sentenced to three years' imprisonment.
60On Charge 4, you are sentenced to 18 months' imprisonment.
61On Charge 5, you are sentenced to three years' imprisonment.
62On Charge 6, you are sentenced to two years' imprisonment.
63On Charge 7, you are sentenced to two years' imprisonment.
64I order that the base sentence be the sentence imposed on Charge 3, that is, three years' imprisonment.
65I order that two years of the sentence imposed on Charge 5, one year of the sentence imposed on Charge 6, six months of the sentence imposed on Charge 7 and six months of the sentence imposed on Charge 4 be served cumulatively to the sentence imposed on Charge 3 and all other offences.
66This gives a total effective sentence of seven years.
67I order that you serve a minimum of five years before becoming eligible for parole.
68Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of eight years and ordered that you serve a minimum term of six years.
69Thank you.
70Have a seat, thank you.
71Pre-sentence detention?
72MS SAVILLE: Three hundred and ninety-nine days, Your Honour.
73HER HONOUR: I declare that 399 days of this sentence have already been served by way of pre-sentence detention.
74MS SAVILLE: Your Honour, is Your Honour intending to impose a penalty in relation to the summary offences?
75HER HONOUR: I forgot about - I'm sorry.
76In relation to the charge of possessing a hunting knife, I impose a fine of $200.
77On the charge of possessing the proceeds of crime, I impose a term of six months' imprisonment.
78MR FARRINGTON: Your Honour, if I could just enquire as to the individual sentence on Charge 1.
79HER HONOUR: That was eight months.
80MR FARRINGTON: Eight months. Sorry, Your Honour said eight years.
81HER HONOUR: Did I?
82MR FARRINGTON: Yes.
83HER HONOUR: I am so sorry.
84MR FARRINGTON: Thank you, Your Honour.
85HER HONOUR: Oh my goodness, no wonder you checked. All right. So it is eight months. I beg your pardon. So it is seven with a five.
86MR FARRINGTON: As Your Honour pleases.
87HER HONOUR: All right.
88MS SAVILLE: Just the ancillary orders, Your Honour, forfeiture and 464.
89HER HONOUR: Yes. Stand up, please, Mr Dawn-Manuel.
90I have ordered the police take an intimate sample from you, which will either be a scraping from the mouth or a blood sample, and I need to inform you that should you resist police in their attempt to obtain this sample, they may use reasonable force in order to obtain it from you.
91Have a seat, thank you, sir. It says here "How obtained." I will leave you to fill that out, madam. Yes, thank you.
92MS SAVILLE: Your Honour, the forfeiture order.
93HER HONOUR: Yes. Have you got the forfeiture order? We haven't got a copy of that. Thank you. Yes, thank you.
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