Director of Public Prosecutions v Lee
[2013] VCC 1353
•24 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00959
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIM LEE |
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JUDGE: | HIS HONOUR JUDGE PARSONS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2013, 10 July 2013, 2 and 24 September 2013 | |
DATE OF SENTENCE: | 24 September 2013 | |
CASE MAY BE CITED AS: | DPP v Lee | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1353 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering Ms C.Teague | OPP |
| For the Accused | Mr J Valos | Valos Black Solicitors |
HIS HONOUR:
1 You, Kim Jak Juan Lee, have pleaded guilty before me to one count of conspiracy to defraud.
2 The circumstances of this crime are fully outlined in Exhibit A, the summary of prosecution opening and indeed this is a matter which I have now referred to on a number of occasions.
3 The matters with which I am concerned arise in the following way. In September 2008, Victoria Police commenced on operation, in conjunction with the Australian Federal Police, into the investigation of a syndicate involved in the importation, embossing and use of counterfeit credit cards, and the recruiting of Malaysian nationals to use the cards.
4 The focus of the Victorian Police operation was on lower members of the syndicate, while the AFP would focus on the syndicate heads. Following the arrest of a number of syndicate members, Victoria Police commenced another operation which targeted other members of the syndicate, in mid to late 2012. This ultimately resulted in the arrest of a number of accused, including yourself.
5 You are a Malaysian citizen, previously known at Zuin Kat Lee. Date of birth 31 August 1986.
6 Following conviction for credit card fraud on 3 December 2010 and the serving of your sentence for that crime, you were deported from Australia in April 2011. You returned in August 2011, under the name of Kim Jac Tuan Lee, on a student visa, but failed to inform Australian Immigration of your change of name, your previous conviction or your deportation.
7 You have been identified in incidents involving use of fraudulent credit cards and the redemption of gift cards, purchased used fraudulent credit cards, as described in Exhibit A.
8 I have described the operstioon of the syndicate in numerous other sentences of your co-accused. Broadly speaking, it involved the use of black magnetic strip cards, bearing images similar to genuine banks and other financial institutions, being imported into Sydney or Melbourne from Malaysia. These blank cards are then embossed with stolen overseas credit card information, obtained or purchased from internet sites, with losses incurred by both Australian and overseas financial institutions. To aid the use of those counterfeit cards, the syndicate would also manufacture false Medicare cards and Victorian and New South Wales driver's licences.
9 The syndicate members were divided into four types, the syndicate head, a Malaysian resident who co-ordinates the syndicate; the controller, the head of a cell, who co-ordinates the use of cards and distributes the goods fraudulently obtained in Australia; the driver, the person who co-ordinates and transports the shoppers and receives instructions from the controller; and the shopper, the person who uses the counterfeit cards and purchases the goods.
10 The division between these categories often overlaps. The shoppers are paid on average ten to 15 per cent of commission on the face value of the goods purchased, for their role in the syndicate. Each shopper would be supplied with fake identification. The controller would then contact the driver with a list of specific purchases and the counterfeit credit cards. The driver would then take the shoppers to and from the stores and provide the shoppers with a list of purchases.
11 As a result of the investigation, police identified the roles of the various accused, in particular with respect to you as follows: That you were a shopper, driver and controller for the syndicate and you were involved in the manufacture of fraudulent credit cards. You were identified in 31 incidents involving either the purchase of gift cards with fraudulent credit cards or the redeeming of gift cards, so obtained for the purchase of cigarettes. The total loss was $85,904.47 for the cigarettes purchased with redeemed gift cards and $952.83 for the purchases of gift cards.
12
Analysis of the credit cards used by you and your co-accused, indicates that a large number of different cards were used to make purchases and credit cards used details from various countries and financial institutions. Bank records indicate that between 29 September 2011 and 15 August 2012, you transferred $19,195 to bank accounts in Malaysia and the Ukraine. And on
14 August 2012, you received a transfer of $10,000 from overseas bank accounts.
13 On 16 November 2012, police executed a search warrant on your premises in Clayton and arrested bot yourself and a co-accused Lui. During the search of those premises, police located a number of items and in particular in the bedroom occupied by you, there were credit cards found in the name of Nicky Wong. A key to unlock the middle room where the laptop computer and card skimmer were found, was also located in your bedroom.
14 On that day you were interviewed by the police and you admitted a number of matters, which are set out in paragraph 34.
15 A Compensation Order is sought and not opposed in your case and I will make that order. There was to be some discussion with respect to other orders that are sought, but I will now make the Forfeiture and Compensation Orders sought, as they are not opposed by Mr Velos who appears for you at sentence.
16 You have spent a significant amount of time in custody in preparation for this sentence procedure. I understand that is 312 days. As was pointed out by Mr Gwynn who appeared on your behalf at your plea there are a number of mitigating factors. You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.
17 The community has, by your plea, been spared by the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial and I can tell you that the sentence I tend to impose is far less than would have been imposed had you been found guilty after trial.
18 Further, I take it into account in your favour that you intimated relatively early your intention to plead guilty to these charges and of course you were apprehended in the circumstances described and made admissions with respect to your part in the crime and I accept that in your case your plea does indicate true remorse for your actions.
19 I have been told something of your personal history and your circumstances. Indeed Mr Gwynn very helpfully prepared an outline of submissions on your behalf which set out your personal history. You were born in Penang Malaysia on 31 August 1986 and you are currently 27 years of age.
20 Your father who is aged 51 previously ran a restaurant and your mother who is the same age also worked in that family restaurant. You have not seen either of your parents since they fled Penang in 2009 apparently due to threats related to their failure to repay a business loan. Although I was told by Mr Gwynn on 2 September in submissions made at your plea that in fact you have recent contact with them or at least they have with you by telephone and they have returned from South Korea when they had travelled, to Malaysia and you are now in contact with them.
21 Your older brother is studying engineering at Sydney University and you have had some occasional telephone contact but he has not visited you whilst you have been in custody. You have a younger sister whom you have not seen for about four and a half years and you have not spoken to her for two years. You are unaware of her current whereabouts
22 You have formed a relationship with a young woman who is studying accounting at Monash University and she is apparently an overseas student from China. It is her intention to complete her studies in Australia before you resume your relationship. Presumably that will need to take place in Malaysia given your almost inevitable deportation to your county of origin at the conclusion of your sentence. She was present in court during your sentencing and in that way expressed support for you. At least you have someone in Melbourne who is able to visit you and who is concerned about your welfare.
23 You were educated to grade 6 level. You finished your formal education at the age of 12 and worked in a family restaurant until you were aged 16. Following that you worked variously in a DVD store, as a car salesman and then as a kitchen hand.
24 You are concerned, as are your parents, that if you return to Penang those who are seeking you for failure for pay your debts will pursue you again and you will be in danger from them.
25 In addition to those submissions made on your behalf I also have a report of Mr Jeffrey Cummins a forensic psychologist which is marked as Exhibit 8 and which also sets out an extensive history of you and your family. He was also told by you that your parents fear for your lives as a result of threats from those to whom you owe debts in Penang. I do not now need to repeat the details set out in Mr Cummins; report which is most helpful and extensive.
26 It is also clear from his report that whilst in Malaysia you did have a problem with drugs and alcohol and of course you had previously been sentenced in Australia, as the prosecutor pointed out, for a similar offence.
27 This is without doubt a serious offence and in all the circumstances I have no alternative to the imposition of a custodial sentence. It was Mr Cummins' opinion that you are at risk of developing an adjustment disorder with mixed disturbance of emotions and conduct in response to the demise of your parents' restaurant and the associated problem of threats involving debt collectors although none of these matters give rise to the engagement of the Verdins' principles.
28 I am, on balance, satisfied that the chances of your rehabilitation depend on your ability to return to resume the lifestyle that you say you wish to resume once you have returned to Malaysia.
29 With respect to your particular role in this offending I have been provided with a chart by the prosecution which is most helpful and which shows where you fit vis a vis the other co-offenders.
30 I agree with the characterisation of your offending as submitted by Mr Pickering on behalf of the Crown and it seems to me that the Crown range is a realistic statement based upon your offending in relation to your co-offenders.
31 Of course as well as the matters personal to you to which I have referred including the question of rehabilitation I must take into account such matters as deterrence. Of course general deterrence is always of considerable importance in cases such as these involving as it does such a protracted and highly sophisticated fraud.
32 Clearly specific deterrence is also of relevance in your case given your prior offending in a very relevant matter. I must also consider the question of the protection of the community from you and bear in mind the likelihood of your re-offending which I find of course to be completely dependent upon whether you or not you are successful in your desired aims, as you described them, when you return to Malaysia. It seems to me unlikely that you would ever return to Australia at least in the foreseeable future.
33 Yes, if you would stand please, Mr Lee.
34 This is without doubt a serious offence and in all the circumstances I have no alternative to the imposition of a custodial sentence.
35 Having regard to all of the relevant matters, which have been put on your behalf, it seems to me that the appropriate sentence is, you are convicted and sentenced to a term of imprisonment of three years. And that results in a total effective sentence of three years.
36 I direct that you serve a minimum term of 18 months before become eligible for parole, as prescribed by s.13(4) of the Sentencing Act.
37 I declare that the period of time you have already spent in custody is 312 days and I direct that that be noted in the records of the court.
38 I also direct that pursuant to the provisions of s.6AAA of the Sentencing Act, had you not pleaded guilty I would have ordered a total effective sentence of four years with a non-parole period of two and a half years. Thank you Madam Interpreter. Yes, anything further, Mr Velos or Ms Teague?
MS TEAGUE: No, Your Honour.
MR VELOS: No, Your Honour.
HIS HONOUR: Thank you.
MR VELOS: As long as the PSD is noted as not including today.
HIS HONOUR: Yes, indeed. 312 days, not including today. Yes, thank you. All right, thank you Mr Lee. If you could go with the officer at the back of the court.
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