Director of Public Prosecutions v Manivel
[2023] VCC 1617
•8 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01847
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THEVAMANOGARI MANIVEL |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 August 2023 | |
DATE OF SENTENCE: | 8 September 2023 | |
CASE MAY BE CITED AS: | DPP v Manivel | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1617 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: one charge of recklessly dealing with the proceeds of crime – 4 million dollars – summary charge of dealing with property suspected of being the proceeds of crime
Sentence: Convicted and sentenced to 209 days imprisonment followed by a 18 month community corrections order with conditions; 200 hours of comm8unity work; intensive compliance; curfew.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nibbs | Office of Public Prosecutions |
| For the Accused | Ms J. Willard | Senia Lawyers |
HER HONOUR:
Introduction
1Thevamanogari Manivel, you have pleaded guilty to an indictment containing one charge of recklessly dealing with proceeds of crime, i.e. $4,000,000 which carries a maximum penalty of 10 years' imprisonment. At the hearing of the plea in mitigation of penalty, you indicated your consent to my dealing with a related summary offence; namely, dealing with property suspected of being the proceeds of crime, i.e. $11,750 cash, and you pleaded guilty to that charge which carries a maximum penalty of two years' imprisonment.
2In this case, the prosecution has relied on a summary of prosecution opening for sentence indication hearing dated 24 July 2023, which was adopted for the purpose of the plea in mitigation of penalty, which I received and marked as Exhibit A. After the conclusion of the hearing of the plea in mitigation of penalty, I received a community correction order assessment outcome report from the Office of Corrections dated 14 August 2023, which indicates your suitability for a community correction order, and your willingness to enter into such an order. I will now receive and mark as Exhibit B that document.
3In addition to the matters developed in oral argument, your counsel relied on an outline of plea submissions dated 9 August 2023 (Exhibit 1); a letter from psychologist Akriti Shrestha, dated 3 July 2023 (Exhibit 2); a bundle of educational certificates and custody education summary and certificates (Exhibit 3); an overseas student confirmation of enrolment (Exhibit 4); a bundle of two letters of reference (Exhibit 5); and a bundle of medical records in relation to your daughter (Exhibit 6). I have had regard to the matters developed in oral argument, in addition to the exhibited documents.
4In May 2021, you were in a relationship with Mr Jatinder Singh. On 2 May 2021, Mr Singh opened a crypto currency account with an online business named Crypto.com. He later made a deposit of $100 Australian dollars to his crypto account using your Commonwealth Bank account, so as to provide funds for buying crypto coins. Because the funds were coming from an account in a different name to the crypto account holder, Crypto.com declined to accept the payment, and sent Mr Singh an email telling him they were going to refund the $100 deposit. A second email was sent on 10 May 2021 by Crypto.com to the same effect.
5On 11 May 2021, Crypto.com made a significant accounting mistake in attempting to refund the $100 Australian dollars, and instead of refunding that amount, the staff member typed an account number, 10474143, into the transfer document as the amount to be transferred. As a result, Crypto.com transferred the sum of $10,474,143 to your account at the Commonwealth Bank. For reasons known only to that organisation, the overpayment was not discovered for many months.
6On 12 May 2021, Mr Singh's crypto currency account held crypto coins with a value of approximately $9,500. The following day, Mr Singh discovered the overpayment to your Commonwealth Bank account, and contacted you, asking you to transfer the funds from your Commonwealth Bank account to an account at the Westpac Bank that you shared in your joint names.
7At 12.14 pm on 13 May 2021, $80,000 was transferred electronically from your Commonwealth Bank account to the Westpac account in the joint names, and at 12.34 pm on that day you attended the Commonwealth Bank branch at Casey Central Shopping Centre, Narre Warren, and withdrew by bank cheque the sum of $10m, together with $5,000 in cash.
8At 3.00 pm that day, you deposited the bank cheque for $10m into the Westpac Bank joint account held in both of your names, together with a sum of $80,000.
9Here I interpolate that I recount this information as background and context to your offending, which falls between the dates of 24 December 2021 and 31 January 2022.
10In December 2021, seven months after the mistaken overpayment, an audit process at Crypto.com discovered the accounting error resulting in the payment of the $10m into your account. Crypto.com contacted the Commonwealth Bank. As a result, the Commonwealth Bank contacted you and requested return of the $10m overpaid by mistake. You were told that the money had been sent by mistake and that you must return it.
11At that date, the balance of your Westpac joint account was $8,061,401.11.
12Immediately following the communication from the Commonwealth Bank, you transferred $2m to an account in Malaysia with HSBC Bank in your name.
13On 5 January 2022, you were contacted via web message by the Commonwealth Bank requesting the return of the $10m, and you were again contacted by web message by the Commonwealth Bank on 13 January 2022.
14On 31 January 2022, you transferred a further $2m to your HSBC account in Malaysia.
15The two transfers, totalling $4m, after you had been contacted by the Commonwealth Bank and return of the $10m had been requested, is the subject matter of your charge, that between 24 December 2021 and 31 January 2022, you dealt with $4m which was the proceeds of crime, that is, of Mr Singh's wrongdoing, being reckless as to whether it was the proceeds of crime.
16On 17 March 2022, you were arrested at Tullamarine International Airport attempting to board a flight to Malaysia. You had a one-way ticket and $11,750 AUD in cash. Your possession of this money is the subject matter of your summary charge of dealing with property suspected of being the proceeds of crime.
17You were interviewed by police, and you told police that your partner Mr Singh had told you that he had won money, and the money came to your account, whereupon Mr Singh told you to transfer the money to your joint account. You accepted in that interview that sometime later you were contacted by either the Commonwealth Bank or Crypto.com and you were being told that the money had been 'sent wrong' and that you had to give it back. You told police that you believed this was a scam call, and you did not act on it, and that you spoke to the Commonwealth Bank and they told you the call was probably a scam. After receiving what you believed was the scam call, you transferred $4m to the Malaysian accounts.
Plea of guilty, timing, and remorse
18You were arrested on 17 March 2022 and were remanded into custody, where you spent 209 days on remand before you were eventually bailed on 11 October 2022. Your matter proceeded through the committal stream at the Magistrates' Court, and you were committed to stand trial in October 2022. The matter then proceeded through a series of directions hearings before it was listed as a case conference, and then a sentence indication before me. The matter then resolved as a plea of guilty to proceeding charges after I provided my indication as to the sentence I would be likely to impose were you to plead guilty to those charges.
19I accept and take into account in mitigation of sentence that your matter resolved in the continuation of negotiations during preparation for trial, which I consider to be a plea entered at a mid to late stage of the proceeding, but prior to the door of the court. Moreover, I accept that your plea is accompanied by an understanding of wrongdoing, and your contrition for involvement in your offending.
20Your plea of guilty is of special significance in the current era, where the effects of the COVID‑19 pandemic continue to linger upon the listing of trials. There was significant utilitarian benefit resulting from your plea, in that you spared the witnesses the stress and inconvenience of needing to give evidence, and you saved the court and the community the time and expense of a trial and here I apply the decision in Worboyes. I mitigate sentence on this basis, and also on the basis of your remorse and contrition for your offending, which you have freely expressed including at the time of your assessment for suitability for a community correction order.
Personal circumstances
21You are now 41 years of age, and were 39 at the time of your offending.
22You were born in Malaysia to parents who fought continually, and decided to separate when you were only seven years of age. Your exposure to your parents' frequent fights has affected you deeply.
23You completed high schooling in Malaysia, and at the age of 17 started working as a clerk in Sharp-Roxy in Malaysia. You worked as a clerk for two years, then you enrolled in and completed a Diploma in Information Communication Technology, and then from 2004 to 2015 you assisted in your family business in respect of scrap metal, in the role of accountant.
24You married your ex‑husband when you were aged 19, and you share three children: a daughter who is now 21, a son who is 19, and a younger daughter who is now 16. Your elder daughter lives in Australia, but your son and younger daughter remain with your ex‑husband in Malaysia. Your younger daughter has a history of myxofibrosarcoma (cancer of the pelvic bone) and has undergone eight cycles of chemotherapy, and has had two surgeries to date. I am very relieved to note that she is in remission, but now requires ongoing medical check-ups with her oncologist.
25Between the year of her birth in 2007 until she reached the age of seven in 2014, your daughter was always in and out of hospital, which required you to provide constant care for her.
26Your marriage was deeply affected by your younger daughter's condition, and I understand the marriage was also affected by your ex‑husband's controlling behaviour.
27Unfortunately, your father passed away, which led to your decision to move to Australia to start a better life for yourself and your children, and you arrived in Australia in May 2015.
28Your plan has always been to bring all three children to Australia after you settled here, and you have managed to secure employment. However, once you arrived you realised you would be unable to fund their education until you had managed to work and save.
29You initially settled in a regional New South Wales town called Hay, as you found that living in a regional area was less expensive than living in a metropolitan area. Since your arrival in Australia, you have engaged in hard physical labour to provide for yourself, and your children and you have been consistently employed. You have worked on a farm, cleaning motels, as a cashier in a supermarket, and you have worked on irrigation on a cotton farm. You currently work as a disability support worker.
30Since your arrival in Australia, you have completed further study, i.e. a Certificate III and Certificate IV in Aged Care, a Certificate III in Pathology Collection, and a Diploma in Community Services, and you are currently undertaking a Bachelor of Science and Community Service.
31To your enormous pride, in 2018 you were able to bring over your elder daughter to Australia, and this daughter completed high schooling here.
32Unfortunately, in October 2020, as a result of your exhaustion from working double shifts, you were involved in a car accident which caused injuries to your shoulder and leg. You did not go to the hospital or call an ambulance, as you were afraid that you could not afford it. After your car accident, you were introduced to Mr Singh through mutual friends, and you fell in love, but I understand that you are no longer together.
33I also understand that you commenced attending psychotherapy in November 2022, presenting to the psychologist with symptoms of trauma following your time in prison, which has led to hypervigilance, low mood, difficulty managing emotions and stress, anxiety, paranoia, social isolation, and physical health issues. You are currently on antidepressants for your mental health issues. I note and take into account that your time spent on remand was an extraordinarily difficult time for you, and has had a strong salutary effect upon you.
34You have no prior criminal history, and prior to commission of your indictable offence were a person of exemplary character, as evidenced by your lack of prior history, and your hard work and diligence in your pursuit to establish a better life for yourself and your children. I take this into account in significant mitigation of penalty.
Objective gravity of your offending; moral culpability
35The task of sentencing you is a difficult one, and requires a nuanced application of the law to the circumstances of your case. The quantum of your offending is grave, i.e. $4m, which was disbursed after you had been warned that you had come into possession of the victim's property via their unfortunate mistake. Most of the $10m that was deposited mistakenly in your account, I understand, has been recovered, and in relation to the balance which had already been disbursed, you have cooperated fully in civil proceedings. This is an unusual quality in this case.
36I find that your offending was opportunistic, precipitated by the most extraordinary of circumstances: that is, the unexpected windfall of the $10m deposited into your account. The explanation for that deposit that you were given by Mr Singh was, of course, too good to be true, and it was not true. By proceeding with the charge that it has, the prosecution has accepted that it cannot prove your sinister intent until the point at which you were warned by the Commonwealth Bank of the mistake. At this point though, your behaviour turned cynical and was motivated by self-interest. In other words, it represented a short cut to the financial goal that you had previously endeavoured to pursue through your sheer hard work.
37I sentence you on the basis that your moral culpability lies in the temptation to which you yielded, to spirit away the $4m that you did. However, I also accept and take into account that this is not consistent with the high standard of morality with which you usually conduct your affairs.
Relevant sentencing principles; sentencing submissions
38In imposing sentence upon you, I consider the major purposes of sentencing to be general deterrence, some measure of punishment, and denunciation for your conduct. I consider your prospects for rehabilitation to be excellent, having regard to your unblemished history, your exceptional interest in maintaining your good record given its potential impact on whether you will be able to stay in Australia, your understanding of your wrongdoing, and your response to the charges. It is my intention to impose sentence which provides significant allowance for rehabilitation as a purpose of sentencing.
39In my view, specific deterrence does not loom large as a relevant sentencing purpose, given my finding that your offending was acutely situationally motivated, and I can safely infer that the situation is not going to recur.
40You are not an Australian citizen, and you could be subject to deportation as a consequence of this sentence. However, I have also been told that you are eligible to apply for a permanent residency visa under the employer nomination scheme visa program, as you have already completed two years of full-time employment in the aged-care sector, and that Mercy Health has offered to sponsor you under this scheme. I was told that aged-care visa applications are processed as a matter of priority by the Department of Home Affairs due to a shortage of those workers in our community.
41I consider that the uncertainties, in respect of the potential consequences of your offending, to your visa status, and of course to your long-held aspiration to bring your children to Australia, weigh heavily upon you, and represent a measure of extra curial punishment. I therefore take it into account in mitigation of sentence. It has always been your intention to provide for your children financially, and I understand that your time spent on remand weighed heavily upon you and your mental health, as you were prevented from engaging in the hard work to which you had become accustomed, and were unable to contribute financially to your family during this time.
42The prosecution has lightly pressed for the imposition of a sentence of imprisonment with parole eligibility. I was urged by your counsel, in careful submissions, to impose a sentence that did not require any further period of time in custody. In my earlier sentencing indication, I telegraphed that it was not my intention to impose further time in custody. However, I did intend to impose a community correction order with a period requiring intensive compliance, during which all hours of unpaid community work were to be completed. You have discussed the ramifications of this indication with your family, and I am told that your daughter and son-in‑law, with whom you live, both work and will financially support you during this time, and that your brother has kindly offered to help out financially should you require further assistance. You are able to continue your study online, and are willing to consent to a curfew.
43The Office of Corrections has assessed you as suitable for a community correction order. You have been assessed, understandably, as a low risk of reoffending, and therefore a supervision condition is not recommended.
Sentence
44On your charge of recklessly dealing with proceeds of crime, you are convicted and sentenced to a combination of 209 days' imprisonment, to be followed by a community correction order for a period of 18 months from today.
45The conditions will include 200 hours of unpaid community work, and assessment and treatment for your mental health. All hours of assessment and treatment are to be credited towards your unpaid community work.
46I order a period of six months' intensive compliance, during which all hours of unpaid community work are to be completed, and I further impose a curfew requiring you to remain at your home address between the hours of 10 pm and 6 am for a period of six months from today. You must attend at the Broadmeadows Office of Corrections within two business days and I reckon 209 days pre‑sentence detention as already served so that you are able to start that community correction order today.
47Madam, are you willing to enter into that community correction order? I cannot hear you, I am sorry. Could you have another go? Is there audio?
48OFFENDER: Yes.
49HER HONOUR: Yes, thank you, we've taken your consent.
50On the related summary offence of dealing with proceeds of crime, you are convicted and placed on an undertaking to be of good behaviour for a period of 18 months from today.
51Are you willing to promise me to be of good behaviour on that charge for a period of 18 months from today?
52OFFENDER: Yes.
53HER HONOUR: If you breach the community correction order in any way or if you breach the undertaking to be of good behaviour by committing any other offence, you will be brought back before me and I will have the unhappy responsibility of needing to resentence you on these offences, do you understand, Madam?
54OFFENDER: Yes, I understand.
55HER HONOUR: Thank you to both teams. Let us adjourn sine die please.
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