Director of Public Prosecutions v Mahendran

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01596

DIRECTOR of PUBLIC PROSECUTIONS

SARANY MAHENDRAN

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2021
DATE OF SENTENCE:	13 December 2021
CASE MAY BE CITED AS:	DPP v Mahendran
MEDIUM NEUTRAL CITATION:	[2021] VCC 2088

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence - Pleas of guilty - Obtain financial advantage by deception - make false document to prejudice another - Delay - Large number of victims - Legitimate business in debt - Accused’s response to this debt was to defraud others - Used victims’ funds to compensate others - Period of offending short - Deliberative and repeated offending over two months - No criminal history - Accused awaiting surgery to ameliorate severe form of endometriosis - Accused also suffers from possible major depressive disorder
Cases Cited:Worboyes v R [2021] VSCA 169; Maddock v The Queen [2020] VSCA 271
Sentence: Convicted and sentenced to a Community Corrections Order duration of 3 years - Conditions additional to mandatory ones - Supervision - Unpaid community work up to 75 hours of which can be satisfied by successful completion of the equivalent period of time of treatment and rehabilitation conditions of this order - Mental health treatment and assessment conditions - Programs to address re-offending - Ancillary order Compensation - s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms S Coombes	Solicitor for Public Prosecutions
For the Accused	Mr P D Lange	Aquila Lawyers, Sydney NSW

HER HONOUR:

Saranya Mahendran, you have pleaded guilty to one charge of obtaining financial advantage by deception and one charge of making a false document to the prejudice of another.
Each of the offences has a maximum penalty of 10 years’ imprisonment. The maximum penalties reflect the seriousness with which Parliament regards the offences, and is a matter I must take into account in sentencing you.
At the time that the plea hearing took place in April 2021, you were 33 years old and managed a business which traded as EMS International. EMS International was an international money exchange company based in Pultney Street, Dandenong.
The business was operated by a company called Vengadeswara Money Exchange and Pawn Brokers Pty Ltd, and traded as EMS International” Whilst you were the manager of the business, your husband, Mahendran Ramanthan, was the company director of Vengadeswara Money Exchange and Pawn Brokers Pty Ltd.
You lived in Pendle Hill, New South Wales, and you used a number of employees in Victoria to operate the day-to-day business of EMS International from the Dandenong shop. You worked for another international money exchange company called TSS Worldwide Money Transfer, which was based in Pendle Hill, New South Wales.
A close friend of yours, Pratheepan Sinnarassa, was the company director of TSS Worldwide Money Transfer.
In order to execute a typical international telegraphic transfer, EMS International would obtain details from the customer, including the transfer amount, exchange rate, and beneficiary details.
The money would be deposited with EMS International either as cash or direct deposit into an EMS International controlled bank account. EMS International would typically batch all of the day’s deposits into sums of less than $100,000, and send them to their agent, a company called Jaleon in Sri Lanka, by way of a telegraphic transfer with instruction on how the funds were to be dispersed to the designated beneficiaries. Where the sum to be sent exceeded $100,000 for the day, two telegraphic transfers were sent.
The Sri Lankan agent required the funds to be sent via an intermediary bank account operated by a company called Focus Exp Limited, which was based in Hong Kong.
Between 24 October and 27 October 2016, EMS International transferred $549,800 in seven telegraphic transfers to the Hong Kong and Shanghai Bank account of Focus Exp Limited, the dates of such transfers, together with the sums transferred, were set out at paragraph 8 of the prosecution opening.
On about 28 October 2016, EMS International became aware that the seven telegraphic transfers had not been forwarded by Focus Exp Limited to the
Sri Lankan agent, Jaleon.
EMS International did not have a written agreement with Focus Exp Limited or Jaleon. Neither you or Ramanthan could explain what happened to the money. Jaleon and Sinnarassa both made numerous attempts to recover the lost money, but neither were successful.
Therefore, EMS International incurred a loss of $549,800. Despite being insolvent, between 28 October 2016 and 18 August 2017, EMS International continued to trade.
Charge 1 is a course of conduct charge and involves 46 separate transactions. The period of offending encompassed is from 8 June to 16 August 2017.
On 8 June 2017, Prabodha Paranavithana, transferred $60,000 into the National Australia Bank account of EMS International, with the agreement that the money would be transferred to the Sampath Bank in Elpitiya, Sri Lanka. EMS International used the money to pay a debt to another, however, and none of the victim’s money was transferred in accordance with his wishes. Nor was it returned to the victim. This gives rise to the first transaction which is the subject of the course of conduct charge, being Charge 1.
In relation to Charge 2, making a false document to the prejudice of another, again this is a course of conduct charge but spans from 21st to 26 July 2017.
I was told that between 13th June and 26 July 2017, the victim, Mr Paranavithana, corresponded via email regarding the status of the victim’s transaction. You created a false email where you purported to be from Bank West. The false email requested further personal information from Mr Paranavithana before the funds could be released. The email, which was dated 21 July 2017, was sent to
to this victim, who believed the email to be genuine and replied to you with the responses to the request for further information.
On 20 June 2017, the second victim, who was Samith Pinnaduwa, transferred $20,000 into the National Australia Bank account of EMS International, with the agreement that the money would be transferred to the HSBC Bank in Nawala,
Sri Lanka. However, EMS International again used this money to pay a debt owed to another. None of the second victim’s money was transferred to the HSBC Bank in accordance with the victim’s wishes. Nor was it returned to the second victim. This gives rise to the second transaction which is the subject of Charge 1.
Between 20 June and 21 July 2017, the second victim and you corresponded by email regarding the status of the second victim’s transaction. Again, you created a false email where you purported to be from Bank West. The false email requested further personal information from the second victim before the funds could be released. The email was forwarded to the second victim. The second victim believed the email to be genuine, this is the second email falsely created by you which is relevant to Charge 2.
Your offending continued on in this vein, and the details of it are set in the prosecution opening. In sentencing you, I have had regard to the full details of your offending. However, for the purposes of sentencing, I intend to provide a brief summary.
As I said earlier, there are a total of 46 separate transactions which involved you depriving victims of a total amount of $307,368. In each instance, your business used the money from each of the victims to defer debts you had previously incurred, without their knowledge or consent. A number of victims tried to enquire as to where their money had gone on a number of occasions. However, they were met with excuses, such as you telling them that their money had been frozen or withheld from the bank, or promises that their money would arrive the next day. On other occasions, you simply did not respond to their emails or calls.
You instructed EMS International employees to tell victims that the bank had frozen their funds, and the money would soon be released and paid to the respective beneficiaries. You lied to the victims, as in fact you were trying to sell the business. The EMS International employees did not know the real reason that the beneficiaries had not been paid. Ultimately, victims discovered the shopfront in Dandenong, which had serviced EMS International, to be permanently closed.
On 24 November 2017, the Vengadeswara Money Exchange and Pawn Brokers Pty Ltd company, which seemed to encompass other businesses including EMS International, was placed into liquidation.
You sent three false emails to victims purporting to be a relevant financial institution, with two being sent on 21 July, and the third being sent on 26 July.
You were interviewed by police on 27 July 2018 at Pendle Hill, New South Wales.
You admitted that you managed the day-to-day running of the company and facilitated telegraphic transfers. You admitted telling EMS International customers that it was the bank who had blocked their money transfers in order to preserve the value of the company so it could be sold. You admitted borrowing money from EMS International customers without their knowledge or consent, and using it to pay debts owed to other customers. You also admitted altering Bank West details and forwarding these to some customers to deceive them into believing that the bank was the source of the money delays.
In your record of interview, you said that you thought you would be able to fix the issue so you kept running the business for a while, using money from customers to pay for the lost money. You agreed that if the customers knew what you were doing with their money they would not have been happy. You said that they did not know about the issue.
Ms Mahendran, your offending is most serious and deserving of a punishment which is just in all the circumstances, and your conduct must be denounced. You were entrusted with sums of money by the victims who believed that these sums would be transferred to their designated beneficiaries in Sri Lanka. However, rather than do what your business was supposed to do, you used the funds to try to keep your company going, knowing full well that the victims would not approve of this. Moreover, when the victims tried to follow-up with you, you sought to delay them or fend them off in various ways, including, on three occasions, creating false documents, which is the subject of Charge 2.
It might well be the case that you had sustained a debt, but rather than take proper responsibility for this, you effectively stole money from your customers in a bid to keep the company afloat at a time when in fact the business was apparently failing.
In sentencing you, I take into account the impact on the victims insofar as I can, two victims have written a victim impact statement, and I take these into account. And I note that two victims are viewing these proceedings today.
The victim, Parakrama Nainanakaye, said that in late 2017 he sent a significant sum of money to Sri Lanka to support his disabled brother-in-law and ailing mother. He said that the money was stolen by you, and this had put a significant strain on his finances and had also led to great anxiety and trouble with sleeping, as he had to try and replace the money and worry about supporting his relatives. He had spent a lot of time trying to come to a resolution, even going to VCAT. He said that he thinks about the issue all the time and feels frustrated and angry most days.
The victim, Prabodha Paranavithana, said that the money which was stolen by you was meant to be sent to his parents in Sri Lanka to be used for medical expenses for his father, and also to relocate his parents to Colombo so they could access better healthcare and other facilities. He said that the need for this money was extremely critical at the time, considering his father’s health condition. He said that thinking about the means of finding the money which was needed caused him extreme distress and anxiety. He spoke about the theft of his money and his fear and anxiety at the prospect of losing his father, because he would be unable to attend to his medical needs.
He said that his parents had been extremely supportive of him as he was growing up and he felt the need to look after them in their time of need, so it was most traumatic for him to feel totally helpless in the fear that he might lose his father. He said that he had been hopeful initially of recovering the money from EMS International as you were providing excuses for the delay in sending the money to his parents.
He spent a great deal of time and effort finding ways to try to get your business to return the money. He spent hours and days in isolation and distress, and many sleepless nights pursuing various organisations in order to have you return the money. He said that he had been affected to the point where his manager had noticed him underperforming at work.
He said that the money that he planned to be sent to his parents came from his savings which he had put aside over many years. He spoke of how hard he had worked in order to save that money. He spoke of the fact that all his hard work and saving over a period of eight years had just disappeared with your theft of his money, and that his previous trusting and respecting nature in relation to other people had been challenged. He said that he now approaches everything with extreme caution and his distrust of people nowadays has impacted many of his relationships.
He has since had to draw a loan from the National Australia Bank at a rate of about 4 per cent per year, which had placed an extra financial burden on him, on top of the $60,000 he had lost due to your offending. He was still paying out the interest and capital on the loan amount, which had a considerable impact on his own life and meant he had to make sacrifices in respect of his own lifestyle.
These are the sentiments of two of your victims, Ms Mahendran. The impact upon them and those who they wished to support has been significant.
In the case of each of the victims, it can be inferred that they were not in any position to lose such sums of money, and it would take little imagination to know that the impact on the other victims from whom you stole, have also suffered due to the losses that they have incurred.
I acknowledge that I don't know what the financial situations of each of these victims was overall, however, the sums that you took from them were not insignificant.
Moreover, rather than telling each of the victims what the true state of affairs was, you strung them along or else ignored them. You then took steps to sell your business rather than to attempt to account to them.
In assessing the objective gravity of your offending and your moral culpability, however, I have taken into account that this was not a situation where you were funding a lavish lifestyle or behaving out of greed. You were effectively robbing Peter to pay Paul, using funds of the victims in order to compensate others who had lost money when their funds were stolen overseas.
I also accept that the business was not set up in a bid to defraud others, as is sometimes the case. Rather, it was a legitimate business which, in the course of running, suffered a debt which you responded to by defrauding the victims. Your offending involved a good deal of deliberation and a decision to offend repeatedly, over a period of over two months in the case of Charge 1. Having said this, the period of offending was rather confined.
In your favour, you have no prior convictions. I understand that you have a subsequent matter in relation to offending in Sydney, which involved you creating a false email during the same offending period. I was told that you did so in response to a request from a co-accused, so you provided content of the email which took the form of emails which you prepared in the offending before me and which are the subject of Charge 2.
In determining the seriousness of your offending, I have had regard to the individual sums that were appropriated and also the total sum. Although the individual and total sums are not the greatest that the court has ever seen, they are substantial.
I allow for a substantial discount in the sentence you would otherwise receive because of the early stage at which you indicated a preparedness to plead guilty to the charges. In doing so, you saved the witnesses the time and trouble of giving evidence, and you saved the community the time and expense of running contested proceedings.
Further, you have indicated a preparedness to plead guilty and have the matter dealt with during COVID-19 times, so that your pleas of guilty have facilitated justice to an even greater degree than would otherwise be the case. The Court of Appeal of Victoria, have made it clear that in such circumstances the sentence imposed ought reflect 'A pronounced amelioration of sentence' (Worboyes v R [2021] VSCA 169 at paragraph [39]). This is due to the fact that you have facilitated justice by pleading guilty during the COVID-19 pandemic, contributing to a reduction in the backlog of cases awaiting trial.
In your case, I accept that you are remorseful for your offending, which is reflected in your early pleas of guilty, your admissions to the police, and the letter provided on your behalf from Dr Reverend, Dr Jegasothy. Further, I have factored in your letter of apology.
In sentencing you, I have taken into account that you suffer from a severe form of endometriosis. I accept that any time that you might spend in custody would be particularly onerous because of this condition, which has impaired your daily working and social life whilst in the community.
As at the plea hearing, you were awaiting surgery for this condition and I am told that you are still awaiting surgery which had to be delayed because of lockdown restrictions in New South Wales. However, I have received documentation in relation to a colonoscopy that you have undergone and I understand that you will have surgery that is needed as soon as you are able to, whilst living in Victoria in all likelihood.
I have also been advised that you have suffered an ankle injury which requires ongoing pain management, this is evidenced in a medical report which was provided on your behalf. Although these conditions could be managed whilst in prison, I accept that this would not be ideal in your particular situation, further if you were to be sentenced to a period of imprisonment it would be your first period of incarceration in circumstances where you have exhibited an otherwise good character. The character references tendered on your behalf support this finding.
I also understand that you have been seeing a psychologist in relation to anxiety and depression issues, I take these into account in a general way in sentencing you.
Further, I have factored in your counsel’s submissions in relation to the prospect of deportation, in that if you were sentenced to a period of imprisonment, you would experience the anxiety of the threat of deportation. Having said this, it is not appropriate for me to impose a sentence which avoids such a prospect so as to alleviate your anxiety. However, your anxiety in relation to such a prospect is a relevant sentencing consideration.
I have also taken into account the delay in this matter in circumstances where the offending conduct occurred during the period June to August 2017. You were interviewed a year later in relation to the alleged offending, but almost three years elapsed between the offending and you being charged.
You have experienced further delay since this time. I take into account in your favour that you had the anxiety of these matters hanging over your head for a significant period now, but also that during this period you have demonstrated your ability to rehabilitate.

In sentencing you, I have also taken into account the psychological report prepared by Mr John Machlin. He sets out matters in relation to your background which I will not repeat, but I have taken these into account.
I understand that you are now separated from your husband and, according to
Mr Machlin, you are withdrawn, relatively isolated, and fearful of your medical condition worsening as you await surgery. He said that you gave a clear account of 'pervasive depressive symptoms affecting (your) mood, cognition and behaviour on the scale of a major depressive disorder' ([6] of the report).
In my view, any time spent in custody would be harder for you due to the diagnosis that you have received of major depressive disorder. However, I do not take the view that there was anything affecting you at the time of the offending, in terms of mental health issues, which is relevant to my assessment of your moral culpability.
In view of the nature of your offending, but also factoring in the reasons you engaged in it, your early pleas of guilty, remorse, insight and otherwise good character, I rate your prospects of rehabilitation as being very good. I place minimal weight on specific deterrence, however, I must place strong weight on general deterrence in a bid to deter others from behaving as you have.
In terms of your rehabilitation, I am concerned that you have few supports around you. It would appear that this is the case even in New South Wales. Your counsel told me that if you were to be subject to a community corrections order, it would necessitate you moving to Victoria, and that you do not have much in the way of support in this State. That concerns me, I must say, as it is important for you to have a level of support to assist you with a path to rehabilitation. However, you do have extended family here and you plan to live with your uncle and his family as long as it takes for you to obtain employment here and support yourself, I understand in due course your brother may well move here and you may well have his support as well.
The prosecution submitted that your offending was deserving of a sentence of imprisonment which involved a head sentence and non-parole period. In particular, they pointed to the total sum that you had effectively stolen and referred me to the case of Maddockv The Queen [2020] VSCA 271. There are some parallels with your case and the case of Maddock, but it is not on all fours with yours.
In any event, current sentencing practice is but one consideration in sentencing you and, whilst I have had regard to that case, it is but one case. I have also had regard to current sentencing practice more generally, and of course that is but one and not a controlling factor in sentencing you.
Your counsel submitted that I ought impose a community corrections order, but if I were of the view that the offending was too serious, then I ought impose a sentence of imprisonment in combination with a community corrections order.
I had you assessed for a community corrections order and that was an extensive assessment that I had ordered. I have now received a detailed report in relation to that assessment.
The report indicates that you are a suitable candidate for a community corrections order, although your medical conditions might impact on your ability to do unpaid community work. However, I am still satisfied that it is appropriate for you to do undergo unpaid community work and I make that remark in view of the fact that this is the punitive element of the sentence that I would impose. So, I ask that community corrections work with you in an effort to determine what kind of work you can do.
Although your offending is serious, in all of the relevant circumstances of your case and the weight which I attach to all relevant sentencing considerations, a community corrections order is warranted, without the need to serve a term of imprisonment.
In all of the relevant circumstances, I cannot see the utility of imposing a gaol term upon you. I do hope that the income that you earn in the future is conscientiously applied to the repay the victims of your offending. This ought be a primary focus for you, as well as abiding by all of the conditions that will be required of you under a community corrections order. To exhibit genuine remorse as you have expressed, repaying the victims, is a primary focus or should be a primary focus for you in the future. Do you understand that? All right, thank you. You can stand up.
You are convicted of the offences.
I intend to place you on a community corrections order but I can only do this with your consent so please listen carefully to the order that I propose:
The community corrections order would run for a period of three years.
The conditions of the community corrections order would be as follows. Firstly the mandatory terms that apply to all community corrections orders which are, you must not commit another offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations [2011].
You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate). You must report to the Werribee Community Corrections Centre before 4 pm within two clear working days of today. In this regard it might be best if you give them a phone call today, to make an arrangement such as you can, it might be that they simply require you to report in by phone, but I would find about that today. All right?
Further, you must let a community corrections officer know within two clear working days of you changing your address or job.
You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his/her delegate.
You must obey all lawful instructions from and directions of the Secretary in the Department of Justice or his/her delegate. Further, the conditions that apply in addition to the mandatory terms listed are, you must undergo 150 hours unpaid community work within the next three years. Up to 75 hours of this condition may be satisfied by the successful completion of the equivalent period of time of all or any of the treatment and rehabilitation conditions of this order.
You must be under the supervision of a community corrections officer for a period of three years.
You must undergo mental health assessment and treatment including, but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility if necessary, as directed by the Regional Manager.
Further, you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager.
Now, do you consent to the terms and conditions of the order?
OFFENDER: Yes, Your Honour.
HER HONOUR: I should tell you that if you do not comply with all of the requirements of this community corrections order then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a period of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
Do you understand this?
OFFENDER: Yes, Your Honour.
HER HONOUR: Do you still consent to the making of the order?
OFFENDER: Yes, Your Honour.
HER HONOUR: Therefore, in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out. I also make the compensation orders which have been sought by the Crown and which are not opposed by you.
If not for your pleas of guilty I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of three years.
You can take a seat Madam, I'll have your counsel help you with the signing of the community corrections order. Anything arising before that happens?
MR LANGE: Not from mine, thank you Your Honour.
MS COOMBES: No, Your Honour.
HER HONOUR: Yes, you can approach the dock Mr Lange, or your instructor and help with the signing of the order.
MR LANGE: I've asked Mr Juweinat, thank you.
HER HONOUR: Probably need hand sanitiser. Mr Lange your client will receive details of the conditions of the order obviously and will be under no misapprehension as to what's required.
MR LANGE: No, certainly Your Honour.
HER HONOUR: Thank you. All right, I've signed that, thank you very much. Thank you. Anything further?
MS COOMBES: No, Your Honour, may it please the court.
MR LANGE: No, Your Honour, thank you.
HER HONOUR: All right, thank you, we'll now adjourn.
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[2021] VCC 2088

13 December 2021