Director of Public Prosecutions v KC
[2022] VCC 338
•21 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-01543
Indictment No. L11819015
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BHARAT KC |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March 2022 | |
DATE OF SENTENCE: | 21 March 2022 | |
CASE MAY BE CITED AS: | DPP v KC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 338 | |
REASONS FOR SENTENCE
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Catchwords Obtain property by deception x20 - Relatively early guilty plea - Worboyes v The Queen [2021] VSCA 169 – conduct targeting members of the Nepalese community - All up over $220,000 - 20 separate victims - Conduct spanning over 18 months - Significant impacts given the nature of the victims and their family circumstances here and in Nepal - COVID-19 - 40 years of age - no formal prior criminal history but on bail at the time of many of the offences - That matter dealt with subsequently - Risk of deportation and increased burden.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering (Plea) Ms J. Deppeler (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr M. Sturges (Plea) Mr P. Tomlinson (Sentence) | Haines & Polites |
HIS HONOUR:
1 Bharat KC, last October you pleaded guilty to 20 charges of obtaining property by deception laid on the indictment filed in this court. The plea was conducted on Wednesday of last week having been adjourned from an earlier listing date in November 2021. Having heard the plea, I was then going to sentence you last Friday but the prison video link could not be accommodated. Hence, I am finalising the matter today.
2 You have no formal prior criminal history though there is a subsequently dealt with matter. In fact, you were on bail at the time of most of the offending that I am dealing with.
3 You were born in September 1981 and are now 40 years of age.
4 Each offence carries a 10 year maximum term of imprisonment. I am required to take into account the maximum penalty.
Facts
5 Mr Pickering appeared to prosecute on the plea and relied upon a written summary of prosecution opening that was dated 7 October 2021. Your barrister Mr Sturges told me that it was an agreed summary. That document was marked as Exhibit A on the plea. It was a very lengthy prosecution summary running to 23 pages and I see no need to set out the full sentencing facts in these my reasons. I will sentence pursuant to that agreed material. As can be seen from that summary, your method was pretty much the same in relation to most of the victims. I see no point in going chapter and verse through that summary or dealing with each individual offence. You have admitted them all by your guilty pleas and there is a recognition in your counsel’s submissions of how serious this conduct was and how deeply it impacted upon these people who trusted you. So I will provide only the briefest of summaries dealing generally with your method.
6 You were at the time of the offending a permanent resident of Australia. You were a member of the Nepalese community and had been running an import export business. In 2014-15 you began offering a remittance service to members of that small community. You used your contacts within that community to commit these offences. On occasions you offered to collect debts, but mostly you promised to remit moneys on behalf of clients to their families in Nepal. Amounts that might seem modest enough in Australian terms were very substantial indeed.
7 You took advantage of the various victims' ignorance of the Australian banking and financial systems and received this money for services you did not intend to provide. Your conduct was sometimes questioned by those who sensed that you might be acting dishonestly and when questioned you just put them off. For instance, when Nabin Paudel (Charge 1) mentioned reporting your conduct to the police you said: “Do what you want. I don’t care, I’m a permanent resident, they can’t hurt me.” You went on to say that he would never see his money and that his family would therefore be hurt. Similar sorts of statements are dotted throughout the summary (see paragraphs [18] and [60]), “There’s no point taking me to court because I used to run a business and now I’m bankrupt” (see paragraph [99]). “Don’t go to the police or tell anyone or take legal action or you will not get your money back.” One had you express the sentiment that unless the victim withdrew his complaint and the account was unfrozen the victim would not receive his money (see paragraph [107]).
8 You just kept offending, knowing as you did how these people trusted you and how significant the funds were to them or to their families. You also used a number of excuses to put people off your scent or to defer any action. A false name was employed and valueless cheques abounded here. Screenshots were sent by you suggesting payments had been made. You repaid small amounts to keep some of your victims at bay. You even had a practice of claiming that a person had been overpaid by one of your cheques when of course they had been paid not one cent, but then requiring a further payment to clear what you said was now owing to you. One instance even had you speaking to a victim’s family in Nepal, setting their mind at rest in terms of the arrangement that was in place.
9 You were highly culpable. In this way you defrauded people of over $220,000, the vast majority of which has not been recovered. One can really only take with a grain of salt your vow to repay these outstanding funds. They are just words and I cannot put any store in them at all. By my calculations around $24,500 to $26,500 was repaid along the way. The reason why it is not so simple to calculate is even as you repaid some money, you sometimes required more payments coming in your direction from that same victim, claiming that you had overpaid them. As your counsel says, you were robbing Peter to pay Paul, and he said this indicating that you were fraudulently obtaining money to repay other victims. I am not sure how apt that description is. In such settings, 'Paul' is often enough left happy enough as he has been paid. There are no ‘Pauls’ in this case. Those who were paid money were paid only fractions of the amounts that you had spirited away. Here all your victims were the proverbial 'Peter'. They have all been left out of pocket by your conduct.
10 You were arrested on 30 July 2020 and interviewed and you co-operated with the police and made some admissions.
11 As I have said, you were on bail at the time of most of these offences having been bailed on two charges of obtain property by deception. Those charges were committed in February of 2019, you were bailed in late August 2019 and dealt with by a fine and compensation order imposed on 21 December 2021 at the Heidelberg Magistrates Court. Your character is not therefore as unblemished at it first appeared when I looked at the written submissions. That conduct had you order and obtain over 550 items worth around $9500 from a business known as Tibetan House in Heidelberg West. You had attended in person to obtain that property by deception.
12 You have been in custody since your arrest in July of 2020.
13 There is a chronology of the Court listings of this matter.
14 So much then for my short summary of the summary. I will sentence pursuant to the far more detailed statement which is marked as Exhibit A on the plea. That goes into all the actual detail of what you did to each one of these victims.
Victim impact statement
15 There are a large number of victim impact statements before me. Four of those were read aloud but five others were filed on the plea. I have read all of the victim impact statements again since the plea. I see no need to descend to the full detail of those impact statements. They make for sad reading. As I said on the day of the plea, one cannot help but see how deeply your financial crimes have struck. As you knew, these were significant sums of money for these people that you were targeting. You have wreaked havoc on many of them, that is not too strong a word. These crimes have had a range of quite predictable impacts upon your victims and their families. Some speak of the 'huge' sum of money lost, their life savings essentially lost to you. Another speaks of parents obtaining a loan to fund their son who was in need and adrift in Australia amidst the global pandemic only to see those borrowed funds lost. Others raise their inability to pay university fees or pay rent or even eat properly. Loss of homes and relationships and prospects. It is all there within this impact material. That is what you have brought about by your conduct. These sorts of sums either looked at in their individual amounts, charge by charge, or even globally, if fraudulently obtained from a bank, they would scarcely raise a blip on the radar. Here though, these were trusting and generally needy fellow citizens who trusted you and they were being fleeced by you of what were large if not very large amounts of money to them. They could not just absorb this sort of loss. Many have lost faith in their fellow man as a result of your conduct. The impact has been very sizeable in this case and I take it into account as I am required to.
In Mitigation
16 Your counsel Mr Sturges conducted his customarily excellent plea. He relied upon a written outline dated 3 March which was marked as Exhibit 1. He also relied upon an email setting out some gambling counselling Zoom sessions that you had attended.
17 He placed before me the details of your personal and family background including your educational and employment history. He made some submissions as to the relative gravity of the offending, your reasons for offending, your prospects of rehabilitation as well as the relevant sentencing principles at play in this case. He conceded that your culpability was high and that the impact was sizeable here.
18 He raised the following matters in mitigation in what was a sensibly conducted plea:
· Your relatively early guilty plea in the midst of the global pandemic;
· The presence of some limited remorse;
· The risk of deportation and the increased prison burden arising;
· The impacts of COVID-19 upon your custodial experience;
19 He conceded the inevitability of a prison sentence and one of a dimension where I would be required to fix a non-parole period.
Prosecution
20 Mr Pickering, who prosecuted, had little need to say much owing to the sensible way the plea had been conducted. He did make some submissions as to the cruel and calculated way that you had offended, targeting your fellow countrymen many of whom were badly exposed here amidst the global pandemic with difficulties in funds being transmitted to or from Nepal a fact that you knew. You advertised on Facebook to provide a service. He says you targeted and then exploited people who were naïve and trusting and you had knowledge of the banking and financial systems which you put to work in what he argued was a systematic fraud. You wrung out every last dollar from some of them and sought to discourage reporting of your crimes by the threat that they would get nothing. He argued that your interview with the police really contained no expressions of remorse.
21 The prosecution did not even make an actual sentencing submission as your counsel had correctly conceded the inevitability of a prison term and one with a non-parole period being fixed.
Background
22 I will turn to your personal background but I will do so very briefly as I have no reason to doubt the details of your personal and family background that has been placed before me. It has next to nothing to do with your decision to offend, that much is very clear. There is no point in my setting it all out.
23 You were born in Nepal in September 1981 and are now 40 years of age. You were one of eight children. You had a normal upbringing, completing your schooling and then attending university in Nepal where you studied finance. You are a married man, marrying in 2007 before moving to Australia in 2008. You have a six-year-old daughter in grade 1. You had never had any mental health issues prior to being held in custody. When you went into custody, you received some antidepressant medication but that has now ceased. Your wife and child are Australian citizens. You are not. You are here on a permanent resident’s visa, something you were very happy to hold over the head of at least one of your victims. Now of course, the unpleasant reality of your own fragile immigration position is made clear.
24 You have no prior convictions but you do have that subsequently dealt with appearance which is relevant to my task. You were committing fraud in a different setting in February 2019 and then offending whilst on bail from 27 August 2019. Of course, that lack of prior criminal history is of relevance to my task but the conduct that I am dealing with spanned over one and a half years and it can hardly be said to be out of character in that time frame. Much of it was whilst you were on bail as well, for what was serious enough dishonesty conduct.
25 You have been held in custody since July 2020 so pretty much throughout that period where COVID 19 has had ramifications for the conditions in which prisoners have been held. You are currently held up at Marngoneet. I was told that the offending was to fund your gambling issues. That is not submitted to be a matter in mitigation in this case. It is but a context and a pretty hollow one at that. You have at least received some counselling whilst in custody.
26 I turn then to consider the various other matters raised by your counsel.
Guilty plea
27 The first of those matters is your early guilty plea. Your plea was entered at an early enough though clearly not the earliest stage.
28 By pleading guilty you have taken this early responsibility for your offending. As a result of your early guilty plea, the time, the cost and the effort of a fully blown committal hearing in the Magistrates' Court or a trial up in this court have all been avoided. The matter proceeded by way of a straight hand-up-brief with no witnesses being called and there was already some talk of resolution at that stage as I understand it with some forensic accountancy report still outstanding. Ultimately none of the victims have been required to give evidence at all. At least these various victims have been spared that experience. It settled swiftly once you were committed up to this court.
29 You have in these ways facilitated the course of justice.
30 Your guilty plea is also worthy of extra weight for the many reasons set out in the decision of Worboyes[1]. There is a large backlog of cases waiting for a hearing in this court. Your case is not one of them.
[1]Worboyes v The Queen [2021] VSCA 169
31 So I take these various matters into account in mitigation.
Remorse
32 Your counsel submitted that there was some remorse and pointed to your guilty plea and aspects of your interview with the police. He was not suggesting it was fulsome. He was submitting that there was some limited remorse. The interview with the police is not that impressive in that respect. Whilst it is true that you co-operated and you did make some admissions, there is not much within it signifying any remorse for your crimes or any empathy for your victims.
33 It is quite strange that you could not look at your own behaviour and see how starkly wrong, criminal and unconscionable it truly was. You have had, for whatever reason, only limited empathy. Perhaps you are a work in progress and one hopes that you are developing some sense of remorse. You have listened to a number of the impact statements being read out aloud. I am prepared to accept there is some limited remorse here. It is not at all fulsome and nor does your counsel suggest that it is. I turn then to your prospects of rehabilitation.
Rehabilitation
34 You have pleaded guilty at an early stage and you have some limited remorse. You have been in custody already for a lengthy period and that has not been easy. You are in custody for the first time. You have done some counselling in relation to gambling. You have no prior criminal history and only that one criminal appearance in 2021 for 2019 offending so, of course, I take that into account in your favour. That is to say, you had reached a fair age before launching into criminal conduct but that is what you then did. You launched forth. Much of that whilst on bail. Acting criminally was part of your character in this significant time frame and that is not in any way really explained away by any gambling issue.
35 I was told that your company had gone belly up. It appears then on the materials before me that your ‘job’ in that phase of your life was tricking trusting fellow Nepalese countrymen into parting with their hard earned money. At best, gambling was a context. Gamble with your own money all you like. By all means do that if you think it is wise, but you were actively seeking out your next victim so that, unwittingly, these needy people could then fund your excess. It is no answer at all to your crimes. You knew how serious these crimes were. You knew how deeply you were impacting on these victims or their families. You knew they trusted you. I am satisfied of those matters beyond reasonable doubt. You kept at it even in the face of complaints, even whilst on bail awaiting the hearing for those other acts of dishonesty. This was not some transitory poor behaviour. It was nasty and cruel offending, deeply criminal and it spanned a period of over one and a half years.
36 You have since had time to reflect on your conduct. It has had obvious ramifications for you. You have been distanced from your wife and young child. No doubt the time you have spent in custody and the time remaining there will serve to deter you to a degree. Your remaining in this country is by no means assured. Rehabilitation does have a role to play in my task. It is after all one of the sentencing purposes that I must consider. One would hope that you can once again be a contributing member of a community upon your release from prison. It may very well not be part of this Australian community. Only time will tell on that score.
37 I am told that you still have family support. Very strangely though, your wife did not attend the plea hearing remotely. There was no explanation for that. But I note that she has joined the hearing today. It is actually a bit hard to know whether you enjoy her full support or not. I proceed on the assumption that you do have some support but it is obviously not unconditional. I note for instance the claim that if you are deported neither she nor your daughter will join you.
38 Your counsel argued that I should view your prospects as positive.
39 I am prepared to accept that submission. You have in my judgment relatively good prospects of rehabilitation.
COVID-19
40 So too do I accept the submissions made as to the increased burden arising from the global pandemic.
41 It is clear that the COVID-19 virus and the response to it by those who run the prisons has increased your burden of imprisonment. You have been there since July 2020, so throughout the period which has been impacted by COVID 19. Prison has undoubtedly been a more stressful environment in the time that you have been there to this point. Social distancing has not been easy. No doubt there has been a worry about catching the virus in such a setting where, unlike someone out in the community, there is just no level of autonomy. There have been some lockdowns and also I expect a period, if not periods, of quarantine in your case.
42 There have also been the limitations to visiting and also limits to the full range of courses in the period in which you have been held.
43 What lies ahead on the pandemic front is impossible for me to determine and I am not free to guess about that. We have opened up in the community as we emerge from the Omicron strain. Prisons seem to have lagged a bit behind the community in terms of restrictions being lifted. The restrictions in a prison setting in terms of in-person visits were due to be lifted starting from 12 March of this year.
44 I take into account the increased burden posed by the response to the COVID-19 virus in the ways contemplated by your counsel in his written and oral submissions, see paragraph [29].
Deportation
45 Your counsel in his written submissions spoke of the risk of deportation in this case. He conceded that you must receive a prison term in excess of 12 months which would then lead to the cancellation of your visa. He accepted there would be various avenues of appeal open to you but that there was a real possibility that you would be deported at the end of your sentence. It was this prospect, he said, which would increase your prison burden as it carried with it the spectre of loss of opportunity to permanently settle in this country. As I said a moment ago, your wife and daughter intend to remain here.
46 The written submissions in mentioning the avenues of appeal open to you recognised the difficultly in concluding that you would actually be deported. Mr Sturges in his oral submissions conceded there was a level of speculation as to whether you would actually be deported and no doubt that is true. It is quite impossible for me to quantify, and he accepted that was so.
47 I do take into account the many cases dealing with the relevance of the risk of deportation including the Guden[2] line of cases considered in more recent cases such as Allouch[3] and discussed in Loftus[4]. See also recently the case of Hague[5].
[2]Guden v The Queen [2010] VSCA 196
[3]Allouch v The Queen [2018] VSCA 244
[4]Loftus v The Queen [2019] VSCA 24
[5]Hague v The Queen [2022] VSCA 17
48 I will work on the assumption that you will have your visa cancelled automatically, but that you will have rights in relation to having that decision reconsidered. You intend to exercise them. Mr Sturges accepted that in terms of those review powers the court really could have no idea at all how they would play out. That that would involve pure speculation on my part. He is right. I did mention in the course of discussions the Sentencing Advisory Council paper headed 'Deportation and Sentencing' (from November 2019). That paper disclosed that a decent enough proportion of those who have their visas cancelled automatically then have that decision overturned. The success rate at least in the years covered by that research was between 34 to 41 per cent, see paragraph [24]. I raised also with the parties the Visa Statistics that are kept by the Department of Home Affairs from the last calendar year so that they would have the opportunity of addressing me on this topic with those updated figures. Those figures disclosed that around 37 per cent of those who sought reconsideration were successful. These figures and those dealt with by the Sentencing Advisory Council paper do not, as I understand it, include those who have had their reconsideration refused who then review the matter in a tribunal, and then succeed.
49 So where will this all end for you? Who knows? I do not, but nor do you. This is rather the point that Mr Sturges was making. That this uncertainty will be disturbing for you as you serve out this sentence.
50 I am then prepared to accept your counsel’s submissions and to find an increase in your custodial burden arising in this case. Of course, there will be uncertainty in your mind as to what lies ahead.
51 Mr Sturges was not arguing that you would lose the opportunity to permanently settle here and that this should be taken into account by way of punishment. That mitigatory limb of Guden's case was not being relied upon. Rather, it was the prospect or risk of that occurring which would increase your prison burden.
52 As I have said, if your visa is cancelled, as we expect it will be, you will then have the rights to have that decision reconsidered and I am told that you do intend to exercise them. If that process goes against you, in some settings, there is then a right of review to a tribunal. You have been in this country for number of years and obviously you did not come here to offend. You have a wife and a child who are Australian citizens so you may well have some factors that might excite the sympathy of those who will be asked to reconsider any revocation, or potentially review that decision, if the reconsideration goes against you. There is a large degree of speculation in reaching any view as to the likelihood of actual deportation for these reasons. I do accept that, if it occurred, it would be a blow to you. The prospects or risk of being disconnected from this country including from your wife and child would be genuinely worrying for you as you serve out your sentence. No doubt these aspects would feature in any request for the humane reconsideration of cancellation of your visa.
53 I give some weight to the deportation submissions made to me by your counsel.
The Offences
54I must pay regard to the nature and the gravity of the offences before the court. This was undoubtedly serious offending. Obviously, some of the charges are more serious than others. Each involved calculated dishonest behaviour but, of course, some had a higher monetary value. Some involved multiple acts. Some were committed between dates. There were differing impacts. They all involved planning and premeditation. As your counsel conceded, we have 20 victims and repeated acts of deception and dishonesty. It is true it was not particularly sophisticated conduct. It did not need to be. It is true that detection was likely if not inevitable. However, there was a brazenness to it that is a bit breathtaking actually. I mentioned some of those statements that you made to those who queried you. You were using what you believed to be your superior position. You strung people along. You deterred them from reporting your conduct and continued to offend.
55Now as judges, sometimes we see massive sums of money involved in fraudulent schemes which wind up before this court. Many such schemes target large financial institutions or entities that can actually absorb the loss or that are at least perceived to have that ability. These funds were very significant to the victims and their families. They could not absorb the loss. Your counsel conceded that these funds being remitted back to or coming from a less prosperous country deepened the impact here. It is in no way mitigatory that you offended to fund your own gambling addiction and not to live some lavish lifestyle. The fact is you were funding a lifestyle which was beyond your means and the financial pressure was all of your own making.
56Your counsel was not suggesting any reduction in your moral culpability here. In fact, quite the opposite. Your counsel conceded that this offending had high moral culpability and criminality and I agree. It was actually pretty despicable behaviour. Make no mistake, this was serious calculated criminal conduct. Your offending reached a total of over $220,000 with but a small fraction of that sum recovered. It has had devastating impact in many cases. These sums were very large sums of money in the hands of those you deceived and the loss of those sums has, as you know, occasioned very significant impact.
Purposes
57I have to consider a number of purposes of sentencing. Your counsel submitted that whilst general and specific deterrence, denunciation and community protection are relevant purposes, rehabilitation still had a role to play and of course I agree with that submission. Your prospects of rehabilitation are not to be ignored and I have viewed them relatively favourably. There are of course other purposes and your counsel mentioned some of those. One he did not mention was that of punishment.
58I must punish you and I must do that justly and proportionately. Punishment is an obvious and important consideration here.
59I must also denounce your conduct. Again, that is important. You preyed on these people. You relied on their trusting you. It was disgraceful, serious criminal conduct. This sort of dishonest conduct must be strongly denounced and I do denounce it. You should be ashamed of yourself, more ashamed than you are.
60I must pay appropriate weight to deterrence, both general and specific. There is the need for this court to deter you and others from this style of offending in the future. Specific deterrence, which is the need to deter you, would no doubt be given more weight if you had relevant criminal history before the courts. You have only the subsequent matter I have spoken of so that there can be some moderation of that purpose but of course it is still relevant to my task. The same can be said of community protection. I cannot ignore that purpose either. It has an undoubted role to play but would no doubt be given greater weight if you had a relevant prior criminal history
61General deterrence is a significant sentencing purpose in this sort of case. That is the need to deter other offenders. This was systematic and serious dishonest offending targeting those in the community that you sought to exploit.
62This court must convey the message that the courts will take seriously those who choose to commit crimes such as yours. We, as judges, must seek to deter others from committing these sorts of offences.
63I must have regard to the maximum penalty of 10 years in each case. I must also take into account the impact and, as I have said, it has been sizeable in relation to many of these victims.
64I do pay regard to current sentencing practices. It is not a single controlling factor. I have looked at the relevant portions of the Sentencing Advisory Council online data for statistics held in relation to this offence.
65I have looked at the Judicial College of Victoria online sentencing manual case collection for examples of sentences impose for this crime.
66The fact is though, those other cases are not precedents. There is no such thing as one correct sentence.
67Statistics have inherent limitations. What I have to do is pass an appropriate sentence in your case. I have taken into account all of the submissions made both by your counsel and by the prosecutor. Also the material relied upon on your behalf.
68It is not just a matter of looking at the amount of each dishonest obtaining or even for that matter the global total. That sort of total might be achieved by a single keystroke entry by an accountant in another case or by a single alteration of a single cheque. So a single, isolated act. That is not what you were doing. Here there are 20 separate victims. All of them were targeted by you. So multiple dishonest acts, and I am required to look at the separate impacts. I must look at your knowledge of the victims that you were defrauding. This was serious criminal activity. As I have said, had a real nastiness to it.
69Prison is a disposition of last resort. It is plainly warranted here. That much is conceded. It is plain that your conduct is deserving of a substantial term of imprisonment. Your counsel accepted that a non-parole period will be required here and of course he is right to make that submission.
Totality
70Each party has made submissions as to totality of sentence. I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. Totality of sentence is an important consideration here and I have taken a last look at the overall effect of my sentence. In fact I believe it is open to me to pass an aggregate sentence in this case. The preconditions to making such an order exist and none of the impediments set out in s 9 of the Sentencing Act or the case law seemingly exist. No doubt I could pass 20 individual sentences, mark out the most serious one as the base sentence and then make a series of orders for partial cumulation and in this way achieve a total effective sentence. The fact is there plainly would have been a need for some cumulation of all the sentences representing as they did separate crimes committed upon separate victims and with separate consequences and impacts. Doing that would bring me to the same end destination which I will soon pronounce.
71I could see no reason why I should not pass an aggregate sentence here. I invited submissions from each party. Each counsel submitted that it was open to the court to proceed in this way and that is what I will do. I have looked at that head sentence to ensure that it is not a crushing outcome and that it is commensurate with your overall criminal conduct represented by these 20 charges. As I have said though, your criminality was high here.
Sentence
72Let me then pass sentence upon you. I will have you remain seated given that we are using the audio-visual link.
73On Charges 1-20 on this indictment, I convict and sentence you to an aggregate period of 46 months or three years and ten months' imprisonment. It is probably a misnomer for me to refer to it in this way but that is then the total effective sentence. That is three years, ten months.
Non-parole period
74Given the dimensions of that sentence, I am required by law to fix a non‑parole period. The risk of deportation does not remove the statutory requirement that exists for me to fix a non-parole period or play any role at all in the selection of the duration of that non-parole period.
75I am not allowed to speculate as to whether you will be released on parole. That matter will rest entirely in the hands of the Adult Parole Board.
76I direct that you serve a period of two and a half years or 30 months before becoming eligible for release on parole.
Section 18
77You have spent already a period of 599 days in custody by way of pre‑sentence detention and that period is declared as having already been served under this sentence.
Section 6AAA
78I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for five years and two months. I would have fixed a non-parole period of three years and ten months (46 months) and that statement is to be entered into the records of the court.
79I should indicate I will mark as withdrawn the various transferred summary offences of committing an indictable offence whilst on bail. Let me just see if there is anything else I need do.
80Ms Deppeler, anything else from your perspective?
81MS DEPPELER: No, Your Honour, thank you.
82HIS HONOUR: Mr Tomlinson, any other matters?
83MR TOMLINSON: Yes, one very small matter. Your Honour, when dealing with the subsequent offence, referred to it having been dealt with on 21 September 2021. It was actually 21 December.
84HIS HONOUR: I thought I said December but if I did not I will revise that.
85MR TOMLINSON: If I misheard that I apologise, Your Honour.
86HIS HONOUR: No, you may not have, but I am aware of the date because there was an extract of this provided and I looked at that, but if I said that it was a slip anyway and I will revise my reasons in due course. All right, thank you. Nothing else then from you?
87MR TOMLINSON: Nothing else. Thank you, Your Honour.
88HIS HONOUR: We have probably got the link for a little bit of time. I am not sure what arrangements exist. Do you want to have a conference with your client now or is there going to be some other conference held, or not?
89MR TOMLINSON: I have one booked in with him tomorrow, Your Honour.
90HIS HONOUR: You can use the link for a little while if you want, it is up to you.
91MR TOMLINSON: If I could just have a couple of minutes, Your Honour, if that's possible, just to have a quick talk to him. Thank you.
92HIS HONOUR: We can do that. You will be the host of the meeting so it will be done in private between you and your client. No one else will be joining that hearing. I will exit his wife as well and obviously all the victims. So it will be you and your client and you can have a bit of a chat to him, but he has heard you say that there will be another conference held tomorrow as well where you will discuss the ramifications of what has occurred here and his rights in relation to it. You will be able to terminate that meeting when you want to, that is what it amounts to.
93Mr KC, stay online and you will be in a position where you will be able to speak to Mr Tomlinson privately in a short time, but as you have heard him say, there will be another conference that he will have tomorrow with you to discuss your rights in relation to what has occurred here today. Do you understand?
94OFFENDER: Yes. Thank you, Your Honour.
95HIS HONOUR: I have signed that formal order. I should have asked as I normally do prior to actually pronouncing the pre-sentence detention but presumably I have got that right otherwise you would have told me I have got it wrong; is that right?
96MR TOMLINSON: 599 is correct, Your Honour, yes.
97HIS HONOUR: Ms Deppeler, I do not have any idea about the nature of the communications that have taken place or what Mr Nadeem wants, but as I understand it, he wants to speak to you so you may want to contact him to have a discussion with him if you could do that.
98MS DEPPELER: Thank you, Your Honour, I will do that after court. I have got Mr Nadeem's contact details, Your Honour, I will call him after court.
99HIS HONOUR: Give him a ring then because he has got obviously some query about all this. I have signed that formal order so that completes the matter.
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