Director of Public Prosecutions v Kumar Desai

[2023] VCC 2129

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

AT Melbourne

CRIMINAL DIVISION

CR-22-01379

DIRECTOR OF PUBLIC PROSECUTIONS

v

SUNJAY KUMAR DESAI

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JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2022
DATE OF SENTENCE:	28 November 2022
CASE MAY BE CITED AS:	DPP v Kumar Desai
MEDIUM NEUTRAL CITATION:	[2023] VCC 2129

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             One charge of theft- no prior criminal history- remorse- very good prospects of rehabilitation-

Legislation Cited:     Crimes Act 1958; Sentencing Act 1991
Cases Cited:            Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007] VSCA 62
Sentence:                 230 days imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms N Grunwald	Office of Public Prosecutions
For the Accused	Mr L Robertson	Victoria Legal Aid

HER HONOUR:

1Sunjay Kumar Desai, you have pleaded guilty to one charge of theft, contrary to s74 of the Crimes Act 1958 which carries a maximum penalty of
10 years imprisonment or 1200 penalty units.  The circumstances of the offending are set out in a summary of prosecution opening tendered as
Exhibit A.  In January 2022 you were the operator and sole director of a business called Sunshine Cleaning Services Pty Ltd.

2The victim in this matter is True Cleaning Services Pty Ltd, a business owned and operated by Mehmet Mesli and his wife.  In January 2022 True Cleaning hired Sunshine Cleaning Services as a subcontractor.  True Cleaning paid Sunshine Cleaning Services invoices weekly.  On Tuesday, 29 March 2022 you emailed the victim an invoice for cleaning services totalling $26,400.  On the same day customer service manager, Mohammed Raza, processed the invoice and made a payment to Sunshine Cleaning Services. 

3Raza made an error when processing the invoice and mistakenly transferred $264,000 to the bank account nominated by Sunshine Cleaning Services.  The mistake was noticed by Mr Mesli's daughter who reviewed payrolls and the company's invoices and notified Mr Mesli immediately.  The transaction was reported to the Bank of Melbourne being the victim's bank.  Upon being informed of the transaction by Mesli, Raza contacted you to explain the mistake.  You texted Raza a screenshot of your online banking and stated that the money had not yet been received.

4The next day, Wednesday, 30 March, Raza contacted you and you advised that the money had been received.  You and Raza agreed to meet at the Westpac branch in Broadmeadows at noon that day.  Mr Raza and Mr Mesli arrived at the car park of Westpac Broadmeadows at 11.50 am.  Mr Raza called you and inquired where you were.  You replied that you would be five minutes.  After
five to ten minutes Raza again called you to check on your whereabouts.  The call went to voice mail.

5Further attempts to contact you via telephone were unsuccessful.  Raza texted you and said that they would go to police if you did not contact them.  Raza and Mesli attempted to contact you for a further two hours before attending the Bank of Melbourne, Broadmeadows to report the theft.  The bank referred the matter to their fraud department and directed Raza and Mesli to police.  Raza and Mesli reported the matter to Broadmeadows police station, however they were advised to wait 24 hours in case your mobile phone had run out of battery.

6On 31 March 2022 Mr Mesli again reported the matter to police.  Subsequent inquiries revealed that a deposit of $264,000 with reference True Cleaning Sunshine invoice was made to Westpac account number on 30 March 2022.  This account was registered to Sunshine Cleaning Services Pty Ltd.  Between 31 March 2022 and 1 April 2022 a number of large withdrawals were made from this account totalling $220,680.

7The amount of money you stole in effect was $237,600 which was $264,000 less what you were legitimately entitled to.  On 1 April police notified
Australian Border Force and a passenger analysis clearance and evacuation system alert was placed on you.  On 12 April 2022 Victoria Police were notified by members of the Australian Federal Police that you had passed through Customs at Melbourne airport attempting to board a flight leaving Australia.

8You were then detained by members of the Australian Federal Police.  You were arrested and transported to Broadmeadows police station where you took part in a record of interview with the assistance of a Hindi interpreter.  During that record of interview you made admissions to receiving $264,000 from the victim but stated that the payment did not reflect the final balance owed by the victim.  You stated that you believed there would be an adjustment after the final invoice was issued.  You stated that you had made no attempts to return the money to the victim.

9On Monday, 23 May 2022 police contacted your nephew Verenda Patal to conduct a bail suitability assessment at Mr Patal's address.  During the conversation Patal disclosed that on 4 April 2022 you had given him a navy backpack containing cash.  You told Mr Patal to hold onto the backpack until you returned to India and you would then provide Mr Patal with further instructions.  Police attended Patal's address the same day and seized cash totalling $155,000. 

10A victim impact statement has been prepared by Mr Mesli which was tendered as Exhibit B.  Mr Mesli describes that this fraud has had a significant impact on his company as well as himself.  It has caused an enormous amount of stress to him and this has transferred into his private life.  He is unable to sleep, focus and feels depressed that his hard earned money has been taken away from him by someone.  He has worked hard to establish a good business and foster good business relationships.

11The offending took place on 30 March 2022 and you were charged on
12 April 2022.  The matter resolved when you pleaded guilty at committal mention on 3 August 2022.  You have no prior criminal history.  Turning to the nature and gravity of the offending.  I accept that the offending was opportunistic and unsophisticated.  It was in effect a one off incident, however you took the money and spent it over a couple of days.  You made a number of withdrawals from the account, and you then tried to hide some of the money with your nephew.  Sadly, you used a significant portion of the money on gambling.

12You took advantage of a mistake that was made by True Cleaning and you used their money for yourself.  Your behaviour was greedy and showed no respect for another individual's hard earned money and business.  Furthermore, when you became aware of the mistake you tried to leave the country. 

13Turning to your personal circumstances.  You were born in March 1970 at Dhanduka Village, India.  You are the youngest of four children.  All of your family live in India.  You had a difficult upbringing where money was scarce.
Your father worked as a doorman and was strict, often resorting to physical discipline. 

14As a consequence of your family's hardship, you frequently found yourself the object of teasing and bullying at school. You were an enthusiastic footballer and you played State level soccer.  You were the victim of an assault when you were aged 10 and you have felt considerable shame since this event.  Your family moved to Amedabad in 1988 when you were 18 years old.  You completed a three year Bachelor of Commerce in Accountancy at Gujarat University.

15After university you held various jobs as an accountant, salesman and in fabrication.  There were also periods of unemployment where it was difficult for you to find work, however you had a steady work history as a subcontractor whilst you were in India.  In 1992 you married your wife, Laxmiben in an arranged ceremony.  You have one child together who is now aged 29 and lives and works in Canada.  Your wife describes you as sensible and your daughter considers you to be caring, loving and responsible.  Your mother-in-law notes your generosity and selflessness as a family member.

16You and your wife moved to Australia in 2009.  You came here on a student visa.  Your daughter remained with her grandparents for a number of years before eventually joining you and your wife.  You held various student and work visas before ultimately applying for a protection visa which was refused.  You are currently in Australia on a bridging visa.  You are not eligible to apply to become a permanent resident.

17Since arriving in Australia you undertook a number of studies including courses in management and a diploma and Advanced Diploma of Business which you completed in 2015.  You and your wife resided in Sydney where you worked in various jobs including part time pick packing, in a restaurant and at the Jerilderie café before eventually moving to Melbourne in early 2020 when you applied for a protection visa and commenced work as a cleaner.

18You began working as a subcontractor for True Cleaning Services.  When it became apparent that you and your wife would be unlikely to be able to remain in Australia and work successfully your wife returned to India in 2021.  Her absence left you feeling extremely lonely and during this time your drinking escalated.  You began gambling heavily on poker machines.  Your gambling escalated to four to five hours each day and you lost between $1500 and $2000 daily on poker machines.  Sadly, it is estimated that you lost approximately $46,000 of the funds stolen from the victim to gambling.

19Psychologist Carla Lechner considers that you present with symptoms of a mild gambling disorder in early remission in a controlled environment.  You are now aged 52 years.  Your counsel, Mr Robertson, submits that it is your intention to retain home to India to join your wife.  You have few supports here in Australia but your nephew and his partner remain supportive of you.  They live in
New South Wales and have indicated an intention to assist you to fly to Sydney to stay with them before arrangements can be made for you to fly back to India.

20Your nephew's partner was present online during the plea, as was your wife and other family.  Tendered on your behalf were a number of character references from your wife, daughter, nephew's partner and your mother-in-law.  They all speak highly of you and it seems that this offending was out of character.  You have not told your parents what you have done as they are elderly and in poor health.  Your mother is losing her eyesight and your father has high blood pressure.  Both of your parents are in their 80s.

21You were remanded after your arrest on 12 April 2022 and refused bail.  I accept that this time that you have spent in custody has been difficult given that it has been spent during the COVID-19 pandemic.  To your credit, whilst on remand you have undertaken a number of courses in order to better yourself and you have worked as a cleaning billet within the prison system.  You have been unable to have visitors, however your nephew and wife have recently attempted to visit you without success.

22Given that all of your family are overseas I accept the fact that imprisonment may be more burdensome by virtue of the fact that you have been separated from your family and friends and you have been deprived of their companionship, comfort and support during this period.  A psychological report prepared by Carla Lechner was tendered on the plea.  In the context of mood fluctuation you have been diagnosed with an adjustment disorder with depression, secondary to being incarcerated, but prior to that, reactive to experiencing loneliness after your wife's departure overseas.  Psychometric testing indicated that you are likely to be moderately psychologist ally distressed.

23Your counsel submits that as a consequence the principles set out in
The Queen v Verdins are enlivened here, specifically limb 5.  It is submitted that it is open to the court to find that you are experiencing custody harder than somebody not suffering from this mental impairment.  The prosecution do not take issue with the application of this aspect of Verdins, however it is submitted that I should not give this significant weight.  I take this matter into account and I give it some weight.

24I take into account your plea of guilty which was a plea entered at the earliest opportunity and is therefore of significant utilitarian value.  You have saved the community the significant expense of a trial and importantly, you have spared the victims from having to give evidence.  Your plea demonstrates a willingness to facilitate the course of justice.  It is also some evidence of your remorse.  Your guilty plea has an additional value given that it was entered during the COVID-19 pandemic where the court has faced a substantial backlog resulting from the suspension of jury trials. 

25Accordingly, as the Court of Appeal articulated in Worboyes v The Queen, your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's effects.  Your plea of guilty should result in a perceptible amelioration of sentence.  You are entitled to a substantial discount in sentence both for the plea itself and taking into account that this plea has occurred during the pandemic.

26I accept that you are remorseful for your offending.  You have told Carla Lechner that you did the wrong thing and you have expressed both regret and shame for your actions.  Your wife notes that you are very sorry for what you have done.  Given your lack of prior criminal history in your 52 years, your strong history of working and studying and your desire to continue to support your family I consider your prospects of rehabilitation to be very good if not excellent.  You have the love and support of your family and this is relevant in determining your prospects of rehabilitation.

27I accept that this offending occurred in the context of loneliness and excessive gambling.  You have accepted responsibility for your offending and appear to now have some insight into how your conduct has affected your victim.  The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.

28I am required pursuant to the Sentencing Act 1991 to take into account various factors when formulating an appropriate sentence in your case.  These include the seriousness of the offending, your culpability, the effect of your offending on the victim and your personal circumstances.  The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible you are rehabilitated.  I am to have regard to protection of the community.  I also have regard to principles of parsimony.

29The sentence imposed must send a message to the community that those who might receive moneys by mistake to which they are not entitled and then keep that money for themselves should not expect to be treated lightly by the courts.  The sentence that I impose must deter others from similar conduct as well as denouncing your conduct.  I do indeed denounce your conduct.  As I have already said, I consider your prospects of rehabilitation to be good. 

30Your counsel has referred me to a number of comparable sentences set out in a table provided.  Eight of those sentences involved a similar amount of money, however each of those cases the offenders played a more active role in the appropriate of the money.  I note that all of those sentences were imposed prior to the COVID-19 pandemic.

31Mr Robertson submits that in accordance with those comparable sentences that ordinarily this offending would warrant the imposition of a
Community Correction Order.  However, as it is your intention to return to India upon your release such an order would have very little value or effect.  Accordingly, your counsel submits that I should sentence you to a custodial sentence which is in effect the time that you have already served.

32The prosecution submits that a term of imprisonment should be imposed.  I note that you have now served 230 days pre-sentence detention.  It is my intention to sentence you to the time that you have served.  That means that you will be released today. 

33Accordingly, on the charge of theft you are convicted and sentenced to
230 days in custody.  I declare 230 days to be reckoned as time served by way of pre-sentence detention.  As I have said, that means you have in effect completed the sentence that I am imposing.  I make an order for compensation to True Cleaning Services Pty Ltd in the sum of $82,600 which I understand is not opposed. 

34Finally, if you had not pleaded guilty to this charge and had the matter proceeded to trial and you had been found guilty, I would have sentenced you to a period of 12 months imprisonment. 

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