Director of Public Prosecutions v Patel

[2024] VCC 1595

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00599

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYESHKUMAR PATEL

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2024
DATE OF SENTENCE:	18 September 2024
CASE MAY BE CITED AS:	DPP v Patel
MEDIUM NEUTRAL CITATION:	[2024] VCC 1595

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:                Guilty plea – Five charges of dishonestly obtaining a financial advantage – Continuing criminal enterprise – $550,000 obtained – $82,800 repaid – Real estate broker – Victims former clients – Sham investment schemes – High level moral culpability – Not reduced by gambling addiction - Funds dissipated at Crown Casino

Legislation Cited:        Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:R v Cavallin [1996] VicSC 328; R v Arundell [2003] VSCA 69; Shiel v R [2017] VSCA 359; R v Rousetty (2008) 24 VR 253; R v Koumis [2008] VSCA 84; R v Grossi [2008] VSCA 51; Cay v The Queen [2010] VSCA 292, R v Wang [2009] VSCA 67; Shiel v The Queen [2017] VSCA 359; DPP v Ha [2021] VCC 1640; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP v Wilson [2024] VSCA 48

Report Cited:              Royal Commission into Crown Melbourne Limited (Final Report, October 2021).

Sentence:                   3 years and 4 months’ imprisonment with a non-parole period 2 years -

6AAA declaration - 5 years’ imprisonment with a non-parole period 3 years and 6 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Holmes	Office of Public Prosecutions
For the Accused	Ms Low	Victoria Legal Aid

HIS HONOUR:

1In 1996, Tadgell JA referred to the widespread availability of poker machines as ‘instruments of easy gambling’ in Victoria. His Honour predicted that the ‘nature and full extent of the consequences to the community of that no doubt remain to be seen’.[1]

[1] R v Cavallin [1996] VicSC 328.

2Twenty five years later, the Report of the Royal Commission into Crown Melbourne Limited revealed the ‘nature and full extent’ of those consequences.[2]

[2] Royal Commission into Crown Melbourne Limited (Final Report, October 2021), vol 2, chapter 8: ‘responsible gambling’.

3Tadgell JA had predicted that the courts would see ‘more and more cases of criminal activity which, to some extent is associated with, or even the direct product of, poker machine gambling’.

4This is one such case.

Charges, Factual circumstances and Victim Impact

5Jayeshkumar Patel, you have pleaded guilty to five charges of obtaining a financial advantage by deception contrary to s 82(1) of the Crimes Act 1958 (Vic).

6Your offending occurred while you were the owner and director Religare Real Estate during a time that you were addicted to gambling at Crown Casino.

7The following summary is based on the Amended Summary of Prosecution Opening for Plea dated 23 July 2024 which is an agreed document.[3]

[3] Exhibit P1.

8Between 1 January 2023 and 30 June 2023, you contacted previous clients and offered them the opportunity to purchase blocks of land through a ‘nomination of sale’.

9A nomination of sale in real estate refers to a situation where a purchaser is unable to settle on the property, where they can then nominate anyone they choose including a new buyer, to purchase the property at a discounted rate. This is not a contract for the sale of land, but rather an assignment of the purchaser’s rights under the contract of sale, to the nominee.

Charge 1 – Saidahemad Diwan

10The victim in charge 1 was Saidahemad Diwan, a previous client of yours.

11You contacted Mr Diwan in December 2022, asking him if he would be interested in jointly purchasing a block of land situated at lot 923 in the Riverfield Estate, Clyde. You told Mr Diwan that if he agreed to contribute $83,500 he would make a 25% profit as the land would be on-sold to a buyer you had lined up.

12On 5 January 2023 Mr Diwan transferred $3,500 into the Religare Real Estate bank account pursuant to this arrangement.

13You requested that Mr Diwan attend his local NAB branch to transfer the additional $80,000, ensuring it was a 'fast payment’, and on 5 January 2023 Mr Diwan visited NAB Woodgrove Shopping Centre and transferred the additional $80,000.

14Approximately one month later you advised Mr Diwan the property had been sold, but that due to the buyer making a cheque payment the payment had been delayed.

15After multiple requests for his money, you transferred Mr Diwan $45,000.

16On 14 June 2023 Mr Diwan attended your address and observed a ‘sold’ sign out the front. You advised Mr Diwan that you had sold your home and that Mr Diwan would receive the money he was owed after settlement on 14 July 2023.

17You contacted Mr Diwan and agreed to pay $5,000 per week starting the following week but subsequently failed to make any payments and stopped replying to messages from him.

18In a Victim Impact Statement dated 5 August 2024 which was provided to the court by Mr Diwan and his wife Valentins Parmar, Mr Diwan describes the grief, anger, frustration and stress your offending has caused his family.[4] He describes himself as a ‘broken helpless man’ in the wake of your offending, and his marriage as ‘on the edge of divorce’ due to his putting his trust in you, his good friend, despite warnings from his wife.

[4] Exhibit P3.

Charge 2 – Manish Saini

19The victim in charge 2 was Manish Saini, also a previous client of yours.

20In 2021, Mr Saini confided in you that he had experienced some financial hardship due to the construction company he was using to build a house going bankrupt.

21In January 2023 you contacted Mr Saini and asked him if he would be interested in jointly purchasing a block of land situated at 126 Seraphina Drive, Wyndham Vale, as the original owner was no longer able to afford it. You told Mr Saini that you had a buyer lined up to purchase the property at a profit which would be split between the two of you.

22Mr Saini agreed to contribute $25,000 in return for an ultimate payment/pay off of $37,500.

23On 26 January 2023 Mr Saini came to 56 Fongeo Drive, Point Cook and gave you $20,000 cash. He transferred a further $5,000 into the Religare Real Estate bank account.

24Mr Saini did not at any stage receive any paperwork from you.

25You made the following transfers from the Religare Real Estate bank account to a bank account belonging to Mr Saini:

(a)   4 April 2023: two payments of $3,900 ($7,800)

(b)   6 April 2023: a payment of $10,000.

26Mr Saini did not receive any further payments from you despite contacting you multiple times.

27No Victim Impact Statement was received from Mr Saini, however I acknowledge the impact your offending must have had on him, especially in circumstances where he had confided in you about his financial troubles.

Charge 3 – Rajinder Singh

28The victim in charge 3, Rajinder Singh, was a friend of Mr Saini’s.

29Mr Saini asked you if you had any investing opportunities for Mr Singh.

30On 8 February 2023 you emailed Mr Singh a statutory declaration form which you had pre-signed and which outlined an 'Investment Loan Opportunity' where Mr Singh would lend you $54,000 in exchange for a payment of $73,000 within 70 days.

31Mr Singh made the following payments into the Religare Real Estate bank account:

(a)   $50,000 on 9 February 2023; and

(b)   $4,000 on 10 February 2023.

32After 70 days, Mr Singh had not received any payment from you as promised in the statutory declaration form.

33On 24 May 2023 you sent Mr Singh a screenshot depicting a Commonwealth Bank scheduled payment of $50,000 to be made into his bank account on 25 May 2023. However, on 25 May 2023 you contacted Mr Singh and stated that the payment had gone to 'compliance screening' and that he should receive the payment the following day. Mr Singh never received the payment.

34On 8 June 2023 you advised Mr Singh that you were in financial trouble, had sold your house, and would pay him once you received the money from the sale of your house.

35You then ceased communicating with Mr Singh and he did not receive any payments from you.

36In a Victim Impact Statement dated 8 August 2024, which was read to the court, Mr Singh describes the financial and emotional burden your offending has had on his family.[5] He states that due to your failure to repay the money, his family has had to sell their home and move to a rental. He describes being unable to assist his brother-in-law in India when he fell sick, and the stress which he says has contributed to his wife, Mandeep Kaur, developing a heart condition requiring multiple surgeries.

[5] Exhibit P2.

Charge 4 – Hirenkumar Saksena

37The victim of charge 4 is Hirenkumar Saksena, another previous client of yours.

38On 1 March 2023, you contacted victim Mr Saksena and asked him if he would be interested in purchasing a block of land situated at 126 Seraphina Drive, Wyndham Vale as the original owner, Kishoara Shila, was unable to settle on the property. Mr Saksena advised that he was not in a financial position to purchase the land.

39On 2 March 2023 you called Mr Saksena and suggested the two of you go halves in purchasing the block of land, which you said you would then sell to a buyer you had lined up, for a profit.

40On 31 May 2023 you emailed Mr Saksena a Statutory Declaration Form outlining a loan agreement and further, sent Mr Saksena a nomination form that had been endorsed with what appeared to be Kishoara Shila's signature.

41Mr Saksena subsequently made the following payments into the Religare Real Estate bank account controlled by you:

(a)   $2,000 on 3 March 2023

(b)   $28,000 on 3 March 2023

(c)   $30,000 on 4 March 2023

(d)   $30,000 on 6 March 2023

(e)   $44,700 on 6 March 2023

42On 8 March 2023 you emailed Mr Saksena a Transfer of Land document, leading Mr Saksena to believe that the sale had been finalised and that the land had been transferred into his name.

43On 29 March 2023 you emailed Mr Saksena a Contract of Sale in relation to selling the land to the buyer you said you had lined up.

44On 24 May 2023 you sent Mr Saksena a text message in which you stated that the sale of the land was complete, and that he would receive his share of the profit once the cheque had cleared. However, Mr Saksena did not receive any money from you despite contacting you several times.

45In a Victim Impact Statement dated 13 August 2024 which was provided to the court Mr Saksena states that your offending has resulted not only in the loss of his and his partner’s lifetime savings, but also in their trust of honesty, hard work, system and justice.[6]

[6] Exhibit P4.

46Mr Saksena states that as a migrant in this country he has worked hard to secure his family’s future including working double shifts and overtime in order to pay off student fees and secure housing. He says the loss caused by your offending has cost them the future of his children.

Charge 5 – Baljinder Dhillon

47The victim of charge 5 was Bajinder Dhillon, a previous client of yours.

48On 27 March 2023, you contacted Mr Dhillon and asked him if he would be interested in purchasing a block of land situated at 126 Seraphina Drive, Wyndham Vale, due to the original owner being unable to secure finance in time for the land to settle.

49Mr Dhillon agreed to purchase the property for $256 576 and made the following payments into your Religare Real Estate bank account:

(a)   $231,576 on 30 March 2023

(b)   $25,000 on 1 April 2023

50You emailed Mr Dhillon a Statement of Adjustments Form outlining the amount paid and owed by Mr Dhillon.

51You emailed Mr Dhillon a nomination form that had been endorsed with what appeared to be Kishoara Shila's signature. You advised him that he did not need to contact a conveyancer as you had already engaged a lawyer.

52On 1 April 2023 you transferred Mr Dhillon $1,500 from the Religare Real Estate bank account stating that the previous owner of the land was paying the lawyer’s fees.

53On 3 April 2023 you emailed Mr Dhillon a Transfer of Land document leading him to believe that the sale had been finalised and that the land had been transferred into his name.

54On 5 April 2023 you emailed Mr Dhillon a Contract of Sale in relation to selling the property onto a third party buyer, Yvette Sakaly, and requested that he sign and return it via email.

55Mr Dhillon signed and returned the documents and was advised by you that the sale would be complete in 60 days.

56On 23 May 2023 you contacted Mr Dhillon and advised him that the property had settled and that you had received a cheque for $300,000, but were waiting for the funds to clear your bank account.

57You sent Mr Dhillon two screenshots depicting:

(a)   Commonwealth Bank scheduled payment of $100,000 to be made into his bank account on 1 June 2023; and

(b)   Commonwealth Bank scheduled payment of $50,000 to be made into his bank account on 31 May 2023.

58Mr Dhillon never received the payments.

59On 2 June 2023 you contacted Mr Dhillon and stated that you had made a mistake and that you would need additional time to make the payments. You stated that you had sold your house and would pay Mr Dhillon once you had received the money from the sale on 14 July 2023.

60On 22 June 2023 you transferred Mr Dhillon $20,000 with the description '38 Seraphina Drive'. You stated that you would transfer a further $50,000 that evening however the further payment was never received by Mr Dhillon and you then stopped responding to his calls and texts.

61Mr Dhillon received no further payments despite contacting you multiple times.

62In a Victim Impact Statement dated 14 August 2024 which was provided to the court, Mr Dhillon said the money lost as a result of your offending was saved over the previous 10 years for a better future for Mr Dhillon and his wife’s children.[7] He says that he has elderly parents in his home country who he intended to bring to Australia, but now he cannot afford for this to happen. He describes being depressed every day and not being able to pay for his children’s extra-curriculars, travel expenses, daily bills and his mortgage, and having had to sell household items to get some money before their youngest child was born.

[7] Exhibit P5.

63I have taken the impact of your offending on each of your victims, as described in their Victim Impact Statements, into account when sentencing you.

Further Investigation and Arrest

64A land title search of 126 Seraphina Drive, Wyndham Vale, revealed the current owner to be Kishora Shila.

65Enquiries made with Ms Shila confirmed that she is the owner of land situated at 126 Seraphina Drive, Wyndham Vale and had made no attempts to sell it.

66You had acted as a mortgage broker for Ms Shila when she purchased the property.

67Ms Shila confirmed that she did not sign any nomination forms in relation to the land.

68ASIC checks revealed you to be listed as the director and secretary of the business of Religare Real Estate.

69Enquiries with Crown Casino Southbank revealed that between January 2020 and August 2023, you lost $2,306,800 on gaming machines.

70At 6:30am on 17 August 2023 you were arrested by police while playing on a gaming machine at Crown Casino Melbourne.

71You were taken to Werribee Police Station where a recorded interview was conducted and you admitted that:

(a)   you did not currently hold any qualifications or licences to practise as a mortgage broker;

(b)   you were the director and sole employee of Religare Real Estate;

(c)   you had a Commonwealth Bank account held in the name of Religare Real Estate;

(d)   you were the only person with access to this bank account;

(e)   you utilised email address '[email protected]' and were the only person with access to this email;

(f)    you borrowed money from Mr Saksena;

(g)   you emailed Mr Saksena a Nomination Form in relation to Lot 126 Seraphina Drive, Wyndham Vale;

(h)   you signed the Nomination Form as Kishora Shila;

(i)    126 Seraphina Drive, Wyndham Vale, was not for sale at this time;

(j)    you signed the Contract of Sale sent to Mr Saksena pretending to be the new purchaser;

(k)   you borrowed money from Mr Dhillon;

(l)    you told Mr Dhillon to give you some money to invest and he would receive a return;

(m)     the property you were referring to was Lot 126 Seraphina Drive, Wyndham Vale;

(n)   you sent Mr Dhillon a nomination form that you had signed as Ms Shila;

(o)   you sent Mr Dhillon the same Transfer of Land document that you had previously sent to Mr Saksena;

(p)   you signed the Contract of Sale sent to Mr Saksena pretending to be the new purchaser;

(q)   you borrowed money from Mr Singh;

(r)   you borrowed money from Mr Saini;

(s)   you offered to pay Mr Singh and Mr Saini back with 20% interest;

(t)    you sent Mr Saini screenshots of scheduled payments to calm him down but cancelled the payments as there was no money in your bank account;

(u)   you told the victims you had sold your house situated at 56 Fongeo Drive, Point Cook, but that any funds from the sale belonged to your wife;

(v)   you borrowed money from Mr Diwan;

(w)     you would return the money to Mr Diwan with 20% interest;

(x)   Ms Shila was a previous client;

(y)   you had an addiction to the pokies that had involved attending Crown Casino every day for the last three years;

(z)   you had lost nearly 1 million dollars including the money that you borrowed from people;

(aa)   the victims ‘trust [you] blindly’; and

(bb)   your dad in India was going to sell his property in order for you to be able to pay back the victims.

Objective gravity and moral culpability

72Yours is undoubtedly serious offending. The reasons for this classification are:

(a)   The offending took place over an extended period of seven months;

(b)   You offended against five different victims each of whom has suffered genuine financial and emotional hardship directly caused by your offending;

(c)   The total amount that you obtained dishonestly exceeded $550,000 and you have repaid only $82,800;

(d)   Your offending involved a degree of planning and blatant dishonesty; and

(e)   The offending involved significant breaches of trust.

73As you took advantage of the trust reposed in you by former clients and, at least in the case of Mish Saini, your awareness that he was experiencing financial difficulty, your moral culpability for your offending is considerable. For the reasons explained later in these reasons, it is not reduced by your gambling addiction.

Continuing Criminal Enterprise Offending

74Part 2B of the Sentencing Act[8] is entitled ‘Continuing criminal enterprise offenders’. The Part ‘applies to a court in sentencing a continuing criminal enterprise offender for a continuing criminal enterprise offence’.[9]

[8] 1991 (Vic) (‘Sentencing Act’).

[9] Ibid, s 6G.

75Part 2B applies in your case as you meet these definitions. It has the effect that the maximum penalty for charges 1, 3, 4 and 5 is doubled and becomes 20 years’ imprisonment for each. The maximum penalty for charge 2 remains 10 years’ imprisonment.

76Because the amount dishonestly obtained by you in respect of each of charges 1 and 3-5 exceeds $50,000, each offence is a ‘continuing criminal enterprise [CCE] offence’ and because you have pleaded guilty to four such offences, you are to be sentenced, in relation to all four, as a ‘continuing criminal enterprise offender’.[10]

[10] Ibid, s 6H(1); R v Rousetty (2008) 24 VR 253.

77The purpose of Part 2B of the Sentencing Act was explained by Vincent JA in R v Arundell:[11]

Parliament has, through the enactment of Part 2B, expressed an intention to deter those who demonstrate preparedness to engage in repeated predatory behaviour, affecting through the commission of offences of the kind presently under consideration, the economic welfare of individual victims and the general community.

[11] [2003] VSCA 69 [22].

78The correct approach to the application of Part 2B by a sentencing judge was explained by Santamaria and Coghlan JJA in Shiel v R:[12]

In the exercise of his or her sentencing discretion in a case where one or more of the offences on an indictment are CCE offences, a sentencing judge must take into account the higher maximum penalty that is applicable to CCE offences. However, the fact that CCE offences attract a higher maximum penalty does not compel a sentencing judge to increase any individual sentence. Further, where an offence is a CCE offence, the individual sentence imposed for that offence should not be automatically increased by virtue of there being a greater maximum penalty for that offence. Where a sentencing judge increases an individual sentence imposed on a CCE offence, he or she must explain the basis for doing so.

[12] [2017] VSCA 359 [41].

79In accordance with these authorities I have taken into account the increased maximum penalty that applies to all of your offences other than charge 2.

Personal Circumstances

80You were 44 years of age at the time of your offending and are now 45.

81You were born and raised in Gujarat, India. Your family was poor and your father, the eldest of 8 children, worked long hours in farming to provide for his wife and two children, as well as seven younger siblings.

82You were required to commence work at around 13 years of age in order to support the family. You helped your grandfather to grow grain in a very small village called Dethali while also attending school.

83Your mother passed away when you were 17 and you took on cooking and cleaning responsibilities in addition to farm work and school.

84You married Shital Jayeshkumar Patel in 2003, and your first daughter Khushi was born in India in 2005. After completing a Bachelor of Commerce at Gujarat University, you worked for approximately 12 years as an accountant. You worked from 8am to 4pm in this role, and operated an internet café and photocopying business after work hours until 11:30pm; poor wages in India made long hours and multiple jobs necessary to support your family.

85You moved to Australia, along with your wife and child, as a skilled migrant in 2011, and your youngest daughter Zeel was born in this country in 2013. You became an Australian citizen in 2016.

86Your qualifications were not recognised in Australia and you worked as a dishwasher for two years while obtaining a Certificate IV in Mortgage Broking and a Certificate IV in Real Estate.

87Once qualified, you opened a mortgage broking business called JD Credit in partnership. Through your business you assisted many migrants and refugees on a pro bono basis. Business grew rapidly due to word-of-mouth in the Indian, African and Middle Eastern communities of Melbourne. You worked long hours, seven days a week, but found the work rewarding and were able to pay off your own home in Point Cook.

88In 2018 you established your own business, Religare Real Estate, which referred customers to mortgage brokers and real estate agents. The business was very successful up until the end of 2021, and you were earning up to $40,000 per month.

89In September 2018 you were introduced to gambling when a friend visiting from India wanted to visit Crown Casino. Gambling became a weekly escape for you, and by the end of 2019 you were attending Crown Casino on a daily basis.

90You gambled your life savings, along with all money obtained through a refinance of your home. By 2022, you had used up all of your family assets and began borrowing money from friends and family who you were initially able to pay back from your earnings at work.

Gambling Disorder

91You were examined by Dr Barth on 17 July 2024. Dr Barth produced a report dated 12 August 2024 outlining his opinions.[13]

[13] Exhibit D1 (‘Barth Report’).

92Dr Barth diagnoses that you are currently in a period of remission from a severe gambling addiction. As there are few criminogenic factors in your case, Dr Barth assesses your risk of criminal recidivism as ‘low risk’.[14] He states that this ‘provides a basis for optimism regarding [your] long-term prospects’. He notes other positive prognostic factors including family support, reasonable intelligence and the ‘profoundly aversive’ impact of your exposure to the criminal justice system.[15]

[14] Ibid, [43].

[15] Ibid, [46].

93Other than the gambling disorder, Dr Barth concludes that you were not suffering from any other condition at the time of your offending conduct.

94Dr Barth concludes that you are still in the early phase of addressing your significant addiction and that you lack understanding of the detailed cognitive and behavioural strategies required to reduce your risk of relapsing.[16]

[16] Ibid, [44].

95It was submitted on your behalf that your diagnosed gambling addiction is relevant to the court’s assessment of your moral culpability. Ms Low, who appeared on your behalf, submitted that the court should assess your moral culpability as less than it otherwise would be to a moderate degree.

96The case of Koumis[17] was cited in support of this submission. However, that case was concerned with drug addiction. The court observed that ‘there may be circumstances in which [an] offender’s drug addiction will have a particular bearing on moral culpability’.[18] Where the motivation for drug trafficking is to obtain funds for the sole purpose of acquiring drugs to feed an addiction rather than for personal enrichment, the principle may be enlivened.

[17] R v Koumis (2008) VR 434.

[18] Ibid, [54].

97However, gambling addictions are not generally treated in the same way by the courts. The reasons why a gambling addiction is not usually regarded as mitigatory were explained by Redlich JA in R v Grossi.[19] They include that:

(a)   Crimes associated with gambling addiction will often ‘have been repeated and extended over a protracted period. The long term chase to recoup losses is characteristic of those with such a disorder’;

(b)   In cases involving dishonesty, the crimes will commonly be sophisticated, devious and the result of careful planning;

(c)   The gravity of such offences, if there is a breach of trust and confidence, ‘will commonly attract an increased penalty making such offences more appropriate vehicles for general deterrence’; and

(d)   The ‘nexus of the addiction to the crime will often be unsubstantiated’ and ‘by contrast to a mental condition that impairs an offender’s judgment at the time of the offence, such addiction will generally be viewed as only indirectly responsible for the offending conduct’.[20]

[19] [2008] VSCA 51; (2008) 23 VR 500, [56].

[20] See also R v Wang [2009] VSCA 67, [17]-[18].

98A number of the matters identified by his Honour apply to your case as I have earlier discussed. I therefore reject the submission that your moral culpability is reduced due to your gambling addiction.

99I am however, prepared to accept that the aggravating factor of the proceeds of dishonesty offending being used to fund a lavish lifestyle is absent in your case.[21] Your gambling addiction led to your own financial ruin when you re-financed your family home to fund your habit.

[21] Ibid, [18].

Matters in mitigation

100The most important mitigatory consideration is your acceptance of responsibility for your offending as represented by your early guilty plea. The utilitarian value of a guilty plea in such a case is considerable as financial crime is difficult and resource-intensive to prosecute. You have saved the witnesses the anxiety of giving evidence at your trial.

101Your guilty plea is not the only evidence of your remorse. Both Dr Barth and your wife (in her character reference[22]) explain that you have expressed remorse for your offending.

[22] Character Reference of Shital Jayeshkumar Patel dated 19 August 2024, Exhibit D2.

102While your gambling disorder does not reduce your moral culpability for the reasons explained earlier, it is still relevant as part of the context in which your offending occurred. It is clear that you were not thinking entirely rationally during the first half of 2023.

103You have attempted to address your gambling disorder by attending four counselling sessions with IPC Health starting on 28 May 2024.[23]

[23] IPC Health Attendance Record dated 30 July 2024, Exhibit D3.

104Finally, you are to receive the credit of a life without coming before the courts. You have not offended since your arrest.

Current sentencing practices

105The court was referred by your counsel to the cases of Cay v The Queen,[24] The Queen v Wang,[25] Shiel v The Queen[26] and DPP v Ha.[27] I have read each of these cases and they have assisted me in understanding the sentencing principles applicable to cases such as the present and to have some appreciation of the range of sentences imposed.

[24] [2010] VSCA 292.

[25] [2009] VSCA 67.

[26] [2017] VSCA 359.

[27] [2021] VCC 1640.

106Of course, a court only obtains limited assistance from examining other cases as each case must be approached with a view to imposing the appropriate sentence having regard to the individual circumstances of both the offending and the offender.[28]

[28] Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428.

Submissions

107Your counsel Ms Low, in comprehensive and helpful submissions, accepted that the seriousness of your offending means that the only appropriate sentence is one of imprisonment.[29]

[29] Outline of Defence Submissions dated 20 August 2024, [42].

108Ms Holmes, who appeared for the Director, submitted that it would be within sentencing range for a sentence of imprisonment to be imposed with a Community Correction Order.

109However, I note that this would limit the court to a custodial period of no more than 12 months in addition to the time served (2 days).

Consideration

110In my view, and notwithstanding the concession by the prosecution, the objective seriousness of your offending is such that a combination sentence is inadequate. Such a sentence would be out of step with the sentences imposed in comparable cases.

111For example, in the recent case of DPP v Wilson,[30] a sentence of 5 years’ imprisonment with a non-parole period of 3 years was increased on appeal to 8 years with a non-parole period of 5 years and 8 months.

[30] [2024] VSCA 48.

112In that case, the offender had obtained approximately $2m from his elderly victim in a sham investment scheme. Instead of investing the money he gambled it away leaving his victim destitute. The offender had relevant prior convictions and only his belated guilty plea and delay as mitigatory considerations.

113Your case is less serious but shares some similar features. In your case there were five victims as compared to only one in Wilson.

114The principle sentencing purposes in your case are deterrence both general and specific, denunciation and community protection. I must also seek to promote your rehabilitation which I have sought to do in the setting of the non-parole period.

115Taking into account the objective gravity of your offending, your moral culpability, the maximum sentences and giving full weight to the matters in mitigation, I make the following orders:

(a)   On charge 1, obtaining a financial advantage by deception (victim Saidahemad Diwan), you are convicted and sentenced to imprisonment for 2 years and 3 months.

(b)   On charge 2, obtaining a financial advantage by deception (victim Manish Saini), you are convicted and sentenced to imprisonment for 12 months.

(c)   On charge 3, obtaining a financial advantage by deception (victim Rajinder Singh), you are convicted and sentenced to imprisonment for 18 months.

(d)   On charge 4, obtaining a financial advantage by deception (victim Hirenkumar Saksena), you are convicted and sentenced to imprisonment for 2 years.

(e)   On charge 5, obtaining a financial advantage by deception (victim Baljinder Dhillon), you are convicted and sentenced to imprisonment for 2 years and 6 months.

(f)    The sentence on charge 5 is the base sentence.

(g)   I order that 3 months of the sentence imposed in respect of charges 1 and 4 and 2 months of the sentences imposed on charges 2 and 3 be served cumulatively on the base sentence.

(h)   The total effective sentence is therefore 3 years and 4 months.

(i)    I order that you serve 2 years in custody before you are eligible for parole.

(j) Pursuant to s 18 of the Sentencing Act 1991 I declare that the 24 days you have served be reckoned as time served in respect of this sentence.

(k) Pursuant to s 6AAA of the Sentencing Act 1991, had you pleaded not guilty, the total effective sentence would have been 5 years with a non-parole period of 3 years and 6 months.

(l) Pursuant to s 6J(1) of the Sentencing Act 1991, I cause to be entered into the records of the court that you have been sentenced for a continuing criminal enterprise offence.