Director of Public Prosecutions v Kulothungam
[2023] VCC 318
•3 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01388
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DIRESH KULOTHUNGAM |
---
JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 November 2022, 24 February 2023 | |
DATE OF SENTENCE: | 3 March 2023 | |
CASE MAY BE CITED AS: | DPP v Kulothungam | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 318 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentence
Catchwords: Sentence indication – Plea – Conspiracy to defraud – Sentencing principles – Denunciation – General deterrence
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Hague v The Queen [2022] VSCA; Guden v The Queen [2010] VSCA 196; Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175; Boulton v The Queen [2014] VSCA 342.
Sentence: Total effective sentence of 9 months’ imprisonment with a 3-year Community Correction Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Hancock | Office of Public Prosecutions |
| For the Accused | Mr P. Smallwood | Lewenberg & Lewenberg |
HIS HONOUR:
1Diresh Kulothungam, you have pleaded guilty to a single charge of conspiracy to defraud. This charge was set out on Indictment J13060564.1. Your plea of guilty came after a sentence indication hearing in November 2022 in which I indicated I would impose a sentence of nine months' imprisonment and in combination a three-year community correction order (‘CCO’).
2The facts and circumstances of your offending were set out in a prosecution opening which was tendered at the sentence indication hearing and an edited or amended opening was read on the plea hearing today.
3What occurred was that between 17 December 2016 and 10 January 2018 you were part of an organised group of offenders who installed card readers and pinhole cameras into bank automated teller machines. The card readers and the cameras enabled you and the other offenders to obtain the banking details of bank customers. That is their account numbers and personal identification numbers. Thus the conspiracy was an agreement between you and your fellow conspirators to be involved in obtaining the bank details of ordinary bank account holders who happened to use the ATM that had been targeted. What then occurred consequentially was that with those bank details withdraws were made, or attempted to be made, by others, some overseas criminals using customer details and using those details to access their accounts.
4To enable this sophisticated scheme to operate, advanced modern equipment was imported to read or skim the account details from a card and to secretly photograph the punching-in of PINs, all achieved when the customers did what so many in our community do, and that is to use an ATM to withdraw cash or do other banking business.
5The prosecutor alleged that you were someone who actually received the equipment from overseas, who had access to those card readers and skimming equipment. You were also in receipt of pinhole cameras. Others in the conspiracy were involved in driving to regional towns in Victoria, New South Wales and South Australia to install and then retrieve the equipment. Two of those individuals have been sentenced by this court. Their sentences of imprisonment for the time that they had served together with CCOs were given on the basis of undertakings given by those accused to be witnesses in your trial.
6The prosecution have particularised a number of skimming activities you were involved in. Further, the prosecution have identified what amounts were successfully stolen and what amounts were involved in unsuccessful attempts. There were five skimming events; two were successful, the amounts were about $39,000 taken from these accounts. Again I reiterate: by 'others', mostly it seems overseas. Three skimming events were not successful and approximately $99,000 was attempted to be taken. Although the amounts actually stolen are relatively small, what needs to be kept in mind is the overall criminality of conspiring with others to engage in effectively identification fraud, which then led on to others engaging in theft. On any measure this is serious offending and causes great concern to the community. It undermines the services that banks can provide and so much of modern life does depend on cards and PIN numbers. An attack on that system is criminality of great concern. Denunciation and deterrence must be prominent in any sentence.
7Crime involving interstate syndicates is hard to detect and often those caught are not the main organisers. Insofar as this operation arising from your activities in Victoria are concerned, you were a key organisational link. That is you linked to others not here and to others who were here who did some of the practical installation tasks. And you seemed to be the link in the provision or receipt of equipment from others who were overseas and sent to Australia for the purpose of compromising the banking system. That said, I understand and have taken into account that you are far from a high-ranking conspirator in this particular operation.
8I do keep in mind that your own actual benefit was quite small and not reflected even in the small amounts relatively of $39,000 taken in the skimming events connected to you.
9As to your personal circumstances, you are now 38 years old. You come before the court without any criminal history, thus as a consequence you are entitled to seek a merciful sentence for your first and only breach of the law. You were raised in northern Sri Lanka, the youngest of eight children. Violent turmoil in Sri Lanka meant you could not finish school. A brother of yours committed suicide following being detained and tortured by the authorities. Your family were terrified and urged that in the chaos of war-torn Sri Lanka that you as the youngest and as an unmarried man flee the country and seek a better life elsewhere. Your family remained in Sri Lanka. Sadly your father died in 2011. Your mother passed away in 2020. Because you were on bail you could not go back to see her before she died or mourn her after her death; for your father you were in refugee camps at the time.
10You escaped Sri Lanka to Malaysia, then you tried to get to Australia by boat but were intercepted and taken to Indonesia. You remained in a refugee camp for a significant period, it seems in 2009 or thereabouts, to 2013 before being accepted as a refugee by the Australian authorities. You met a number of co-accused or co-conspirators in the refugee camps or because of your experience as a refugee you were brought into contact with them when you arrived in Australia. You worked in cleaning jobs and in factory jobs throughout 2014 to 2016 and slightly beyond. Since your arrest in 2018 you have not been able to work. You have a number of physical ailments that prevent you being able to labour. Your level of education means that for you labouring work is your area that you can successfully undertake, thus your physical injuries are a problem.
11I turn to your psychological health. An assessment was undertaken by the expert forensic psychologist Mr Newton after the sentence indication had concluded. He was of the opinion that you are an anxious and socially isolated man. He described you as having a more pronounced level of anxiety arising from your concerns for your ultimate fate in these proceedings and in particular your immigration status as a consequence of your offending. Thus your anxiety arises from these offences, also from your immigration status. He adds a third cause of your anxiety is concerns you have for your physical health. That is your pain due to musculoskeletal problems in your neck, back and arm. Mr Newton considered your level of anxiety was at such a point that it satisfied the criteria for an adjustment disorder with anxiety as defined in DSM-5.
12He considered your anxiety was likely to mean you will find prison more onerous than for those without your problem. Although the expert report has been provided since the sentence indication, I did understand you were suffering difficulties such as anxiety and depression that would make prison harder. I ameliorated the length of the term of imprisonment as indicated to accord with my understanding of how you would find prison more onerous because of your psychological difficulties. The report validates my approach. However, I considered on submissions ultimately made by your counsel as to whether a shorter term of imprisonment was warranted with this further information. In the end my conclusion on that is that the sentence I imposed was a just and appropriate sentence which took into account a sense that your mental health made you vulnerable and would make prison more onerous.
13The evidence of your anxiety as to your immigration status is also a factor relevant to sentence. I am able to take into account that prison would be harder as you worry – and in your case to an extreme level – as to whether you will be able to remain in Australia. You wish to live permanently in Australia. You endeavoured to become a citizen. You consider that you will have failed and shamed your family if you are deported. In your case the issue of deportation is unclear. I only take into account this issue as permitted by the authorities, in particular the most recent analysis of the issue by the Court of Appeal in Hague v The Queen,[1] at paragraphs 28 to 31 and also I take into account the earlier decision of the Court of Appeal in Guden v The Queen.[2]
[1] [2022] VSCA 17.
[2] [2010] VSCA 196.
14I note your counsel does not rely on all aspects of the expert report – that is your explanation of the offending, which is at odds with the accepted facts at the least.
15But I do not use this against you, as it was not relied on and there was no submission that much if any remorse is established or relied upon. As to remorse, your plea is the only aspect of remorse that I can safely rely on. People plead guilty for a range of reasons and your level of anxiety perhaps also could explain your different versions at different times in the face of the appeal.
16Although you were described in the expert report as socially isolated, you do have some close friends who stand by you. They have attended court both earlier and today. They see good aspects of your character, in particular your generosity to other refugees. They have seen how stressed and shamed you are. A number of friends wrote very genuine letters to the court. The themes were the same. One is a good example of the others.
17Mr Kumaradenedrar Narayanaswami wrote as follows, and here he is speaking of getting to know you in his role as a resettlement case manager. He is an emerging leader himself in the Tamil community and he says
According to my view and experience, Diresh is a very quiet, gentle, humble character. Due to war and conflict in Sri Lanka, he was not able to attend school for many years and has struggled with his education – it was extremely limited and I know he has felt that his negatively impacted on his life.
He has told me about the accusations against him. He is very distressed and deeply impacted due to these issues.
I want to inform the court that I believe Diresh is a good character and a positive and helpful community member. He's assisted many people who have had a friend of family member pass away. He helps raising money, I know he has given significant sums of money to people to help them pay for funeral costs, an important aspect of our culture. All of us Tamil men who know him respect and value him as a person of good character - a good friend. He is there for people when they need him. I know he is a valuable and honest member of the Victorian community.
18The most prominent matter raised in mitigation is your plea of guilty. The Court of Appeal in the important decisions of Worboyes,[3] and Chenhall,[4] have directed sentencing judges to give greater weight or discount to those who plead guilty in these times when the trial lists of this court are beleaguered.
[3] Worboyes v The Queen [2021] VSCA 169.
[4] Chenhall v The Queen [2021] VSCA 175.
19The Court of Appeal in Worboyes said the following:
As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.[5]
[5] Worboyes v The Queen [2021] VSCA 169 [35].
20The Court of Appeal in Chenhall,[6] decided at the same time of Worboyes, made it clear that it if a sentencing judge did not give a greater benefit to a plea of guilty made at the time the court lists were under great strain caused by the pandemic, then the sentencing judge would fall into sentencing error.[7]
[6] Chenhall v The Queen [2021] VSCA 17.
[7] Ibid [29]-[36].
21The utilitarian benefits must mean in circumstances in certain cases a sentence will not just be of shorter duration in terms of imprisonment but a sentence of a different kind. The key point made by the Court of Appeal is that the sentence imposed in these times must operate to encourage others who are guilty to plead guilty.
22It was submitted here that the plea of guilty also relieved the prosecution of the heavy task of proving the conspiracy or conspiracies if there was a trial indictment. The evidence is complex, lengthy, and there are problems with co-accused adhering to their undertakings. While the prosecution maintained the case against you was strong and could be put before ethe jury in a manageable way, I do give weight to the plea of guilty in relieving the criminal justice system of a complex and lengthy case as well as relieving the prosecution of the always difficult task of proving a conspiracy. The plea involved a pragmatic outcome that is to be encouraged in the way described by the Court of Appeal in Worboyes.
23Another mitigatory factor is the long delay since this offending. As mentioned, there were co-accused who were sentenced. That was in 2019 and they were given time served in terms of imprisonment in combination with CCOs. Obviously those sentenced did not have the greater utilitarian benefit of a plea in pandemic times, but they were each given the benefit of the assistance as they undertook that they would give evidence to the prosecution. There has been some reluctance, as I understand it, and this added to delays, but there were many factors that added to the delays, some or many coming from your side of things. In the end delay of this kind, and in particular the obvious and intense stress it has caused, must operate to mitigate penalty. I factored in as best I can in consideration of parity and disparity with the co-accused sentenced by Judge Murphy. You are said to be more involved than those other co-conspirators.
24As you accepted the sentence that I indicated, I moved to have you assessed for your suitability for a CCO. You were found to be suitable. Your mental health assessment indicated a mental health condition on a community corrections order would promote your well-being and reduce your likelihood of reoffending.
25Thus a CCO meets the description given in Boulton v The Queen (‘Boulton’),[8] that a CCO can simultaneously rehabilitate and punish. It is proposed that you be considered for some unpaid work as well. That is unpaid work that is within your physical capabilities.
[8] [2014] VSCA 342.
26As has been regularly said by the court about CCOs, including in Boulton,[9] CCOs are no soft option. There is facilitation of your rehabilitation by a CCO but within strict parameters. If you do not comply you will be returned to be resentenced. Thus there is a spectre of further punishment if you do not do all that is required including supervision by the Office of Corrections, thus the penalty itself goes on for some time.
[9] Ibid.
27While a sentence of imprisonment may at first blush, that is a shorter sentence, be seen as a short sentence in light of the gravity of this serious, sophisticated offending; however, there is much, in my view, in the concept of individualised sentencing that the gravity of the offending does not determine the penalty that must follow.
28Your deprived and frightening upbringing, your previous good character, your very important and weighty plea, the delay and the complex question of parity all mean in your case the sentencing purposes of denunciation and general deterrence and the facilitation of your reform can be satisfied by a sentence of, as I indicated, nine months and a long CCO. It is sometimes said that the fact of imprisonment for a first-time offender that establishes a level of punishment and deters more than whether it is nine months, 14 months or even longer.
29So doing the best I can, I have come to the conclusion after reconsidering that the sentence that I indicated is the just and appropriate one. Thus for the charge of conspiracy to defraud you are sentenced to a term of imprisonment of nine months together with a CCO for three years.
30You will be required under that CCO to do 100 hours of unpaid work. You will be required to be assessed and treated for mental health problems, most likely through your general practitioner, and you must be under supervision. All hours that are performed under the program condition relating to your mental health can be counted as part of the unpaid work requirement.
31Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of three years and nine months together with a non-parole period of two years and six months. There is no pre‑sentence detention.
32There are orders for forfeiture and disposal. There is no debate about those and I will sign those orders relating to the matters that are set out in schedules to those documents.
33Is there anything else required?
34MR HANCOCK: No, Your Honour, not from our side, Your Honour. May it please the court.
35MR SMALLWOOD: As the court pleases.
36HIS HONOUR: Thank you. Mr Kulothungam, what is required is that you go with the Office of Corrections people now. I am so sorry, I got distracted by what is probably on your mind as much as anything, which is the term of imprisonment. There is a document that is required because you are going to be on a CCO. It sets out all the terms and you have got to sign it.
37So I have got to explain it to you. What it means is you are on the CCO for a long time and there are standard conditions that apply to everyone. The first of those is the most important I think. You must not commit an offence for which you could be punished by imprisonment during the course of that CCO. So any offence you can think of that is punishable by imprisonment, whether you go to prison or not, it is just whether it is punishable. So do not commit any further offences at all, certainly not within the three months.
38The other requires are about cooperation. So you have got to report to the Office of Corrections within two days of being released from prison. They will assist you in that regard. You have got to accept visits from the Office of Corrections. You must tell them if you change your address or, if you get a job, tell them what that is about. And if you change it, tell them that you have done that. You cannot leave Victoria without getting permission from them to do that and you have got to effectively obey all lawful instructions and directions.
39Now, they are the standard conditions. The separate conditions that apply just to you are that you have to do the 100 hours of unpaid community work over the three years and you have to undergo any assessment and treatment for your mental health. If you do spend time doing that, then those hours can be deducted from the 100 hours. And you will be under supervision of the Community Corrections for the period of time.
40So the document will be now provided to your lawyer and if you sign it then so too will I. Thank you. Are you happy to do that, Mr ‑ ‑ ‑
41MR SMALLWOOD: Yes, Your Honour. Mr Kulothungam has signed that order, Your Honour.
42HIS HONOUR: Thank you, Mr Smallwood. All right, you've signed that order indicating that you consent. I'll sign that order as well.
43All right, to return back to where I was before, Mr Kulothungam, the courtroom is not set up so that you can spend any time now with - or discussing things with your good friends who are here to support you. Your lawyer will be able to see you, I hope with the assistance of an interpreter, and those that know you and want to be assured you're okay, they'll be provided with details about how you can contact them and so on and so forth. But it just can't happen here. I'm sure you would all be well behaved, but that's not always the case and we have to have just one rule.
44So if you wouldn't mind, Mr Interpreter, coming out of the dock and Mr Kulothungam will go with the other gentlemen. Thank you.
45I thank counsel for their assistance. I think I had, but I reiterate that. They are not hollow words. These were a plea or a resolution in a plea at the highest level assisting the court. I thank all the others in the community who have come here for the dignity they have shown.
46Mr Interpreter, to you particularly, not easy when I don't give you breaks. Thank you very much.
47INTERPRETER: Thanks, Your Honour.
48HIS HONOUR: If you wouldn't mind just staying and talking to the lawyers, they'll assist you or ask you I think for your assistance downstairs.
49INTERPRETER: Yes, I will do that.
50HIS HONOUR: Thank you.
‑ ‑ ‑
0
5
0