Director of Public Prosecutions v Raghav

[2024] VCC 1532

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -23-00693

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAGHAV RAGHAV

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2024
DATE OF SENTENCE:	4 July 2024
CASE MAY BE CITED AS:	DPP v Raghav
MEDIUM NEUTRAL CITATION:	[2024] VCC 1532

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:Seven months' imprisonment, the time reckoned as already served

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Offender	Mr I. Polak	Rolfe Criminal Law

HIS HONOUR: 

1Raghav Raghav, you have been found guilty by a unanimous jury verdict of one charge of theft, which carries a maximum penalty of 10 years' imprisonment.

2You have limited prior convictions which are not particularly relevant to this offending.

Circumstances of Offending

3The facts upon which the jury verdict was based can be stated in relatively brief form.

4In 2021, you were a platinum member of Crown Casino. The victim Mr Harnal worked as a host at the casino. Mr Harnal was assigned to host you on your attendances at the casino.

5In the course of your visits to the casino, you and Mr Harnal exchanged phone numbers.

6In September 2021, the casino was closed under Covid restrictions. You and Harnal exchanged messages about your crypto currency account. You sent a text to Harnal indicating that you had five bitcoins for sale for $78,000 cash.  Harnal was aware that the value of a single bitcoin at that time was about $55,000. You provided a story to Harnal as to why the bitcoin was so cheap. Essentially, you said that an unnamed member of the Australian Defence Forces had seized the bitcoins and was using you to unload them for cash.

7Harnal borrowed $50,000 cash from his housemate Chopra and withdrew $28,000 cash from his bank account.

8On 30 September and 1, 2 October 2021, Harnal attended at your house and you attended his house for the purposes of verifying that he had sufficient cash to complete the purported transaction, and to witness you effecting the transfer of the bitcoins from your account to his account or to Chopra’s account.

9Although Harnal attended on occasions at your home with the cash, and although you attended at his home to see the cash, there was always a purported problem with the transfer of the bitcoins out of your account.

10On the final occasion, which was late on the evening of 2 October 2021, Harnal came to your house where you were present with a woman named Shelley Grover. Harnal placed the bag containing the money on the dining table.

11You told Harnal that you had transferred the bitcoins to him but when he checked his account, no transfer had been made. You told him to go into the next room, a bedroom, where Ms Grover was seated. You said that you went to get a blanket to place over Harnal for warmth while you talked about the situation. You and Harnal argued in the bedroom over the fact that no transfer was made. Harnal then went back to the dining room but the bag of money had been removed.

12You and Harnal argued further. He requested and demanded the return of the money. You told him that you did not know what he was talking about, you then threatened to shoot him and you pushed him out of the house.

13Harnal immediately called Chopra to tell him what happened. Chopra then called the police who attended and made only a cursory search of the house and did not find any money.

14None of the money was returned. Mr Harnal repaid $30,000 to Chopra who agreed to consider the matter finalised.

15In the course of the trial the prosecution adduced video evidence of Harnal counting the money at his home and announcing he was taking it to your place for a bitcoin transaction, text messages with Chopra advising he was returning home from your house to pick up the money to complete the transaction, and a photo taken by you depicting your hand and the stack of Harnal’s cash on the table on the night of, but apparently before, the money was stolen.

16Police attended your home again on 6 October 2021 when three separate amounts of cash were found in your car and house totalling $12,425.

17You were charged with this offence and three other sets of offences (which I gather are all still outstanding) and you were remanded in custody on 6 October 2021. You spent 248 days on remand before you were released on supervised bail to appear in the County Court.

18You completed the supervised bail successfully and you have remained on bail since, notwithstanding your conviction for this offence.

Objective Gravity and Moral Culpability 

19I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability. 

20Your theft of the cash was brazen and was accompanied by your audacious conduct in bundling Harnal out of the house and threatening to shoot him.

21Your counsel described the trial as sometimes complex. I disagree. The bitcoin transaction was simply a ruse to induce Harnal to bring the cash to your home.  The transaction you were purporting to effect was based on a flimsy lie, which was too good to be true. In the end, Harnal bears no moral culpability for wishing to purchase the bitcoins, even if the price seemed too good to be true and the story on which it was based to be dubious.

22Harnal attended at your house with the cash and you stole it from him.

23In assessing the objective gravity of this matter, I take into account the fact that it could have been determined in the Magistrates Court. It came to this court as part of a suite of four matters.  One was remitted back to the Magistrates Court. You were offered the opportunity to have this matter determined summarily and declined.  Nevertheless, you will not be punished for pleading not guilty or for exercising the right to have matter determined by a jury.  Rather, the point is that I must bear in mind where this falls on the scale of seriousness having regard to the sorts of dishonesty matters usually determined in this court.

24Nevertheless, this is still a serious example of the crime of theft. Mr Polak, who appeared on your behalf at trial and on the plea, described your conduct as unsophisticated. However it is apparent that your crime was planned, you targeted the victim, you were persistent in your conduct over a couple of days, and you used the lure of the prospect of considerable profit to induce Harnal to bring the cash to within your grasp. Once the money was placed on the table, you used a simple distraction to take and hide the money and then used bluster and the threat of aggression to remove Harnal from the house.

25The seriousness of your offending is not only measured by the monetary value and the means by which it was stolen. I must also take into account the effect of your offending on the victim. Mr Harnal provided a victim impact statement which he did not want read out in court.

26I do not intend to breach Mr Harnal’s privacy by revealing the contents of the statement. It is sufficient to say that your conduct severely adversely impacted his psychological and emotional, financial and relationship wellbeing. It is apparent that your offending has cost him dearly and that it will take a long time for him to recover in all facets of his life.

27Your moral culpability for your offending is high. You have no remorse. In fact, your counsel announced after the verdict that both you and he were surprised by the finding of guilt. I am satisfied that you have no insight into your wrongdoing.

28Even keeping the objective seriousness of the offending in perspective, your offending must be met by principles of deterrence, denunciation and just punishment. It is implicit in what I have said that I will keep proportionality in mind.

Personal Circumstances

29You are 33 years old, being born in August 1990 in the State of Punjab, India.

30You are the oldest of two children. Your father worked as a government engineer in dam construction and your mother was a state high school teacher.

31You completed 12 years of schooling and then completed further studies in electronics and communications. You worked in sales and repairs of mobile phones.

32You married an Australian woman in 2016 and travelled between Australia and India. You have a six and a half year old son from your relationship but due to the conflict with your wife you have not seen your son for some time. Your ex-partner has an IVO in place. You believe she is involved in wrongfully implicating you in offending in respect to charges of theft for the so-called 'gold trading' trial which is due to be heard sometime in 2025.

33You have three prior matters from two appearances in 2019 and 2020 for contravening family violence intervention orders. On the first occasion you received a fine without conviction. The second two matters were unconditionally dismissed. In 2021 you were found guilty of assault and threat to inflict serious injury and placed on an adjourned undertaking without conviction on condition you complete a men's behavioural change program.

34I received a letter dated 18 November 2022 from Guy Penna, co-ordinator at Relationships Matter certifying that you had successfully completed a 20 session program for men’s behaviour change.

35In your time in Australia you worked as a bricklayer, cleaner and Uber driver. You are currently not employed and you do not have an income. Before being charged with this offending you made an income by purchasing gold jewellery from pawnshops such as Cash Converters and selling the pieces on the internet. You also made money from gambling at Crown Casino during 2020. It was during this period that you met Harnal at the casino.

36You were granted, as I say, supervised bail on 10 June 2022 and, as I have said, you completed the period of supervision.

37Mr Polak stated that your time on remand was difficult; you had no family support in Australia and the prison system was still significantly affected by the aftermath of the Covid pandemic. As such, you were still subjected to restrictions of movement around the prison, restrictions on the ability to work and vocational courses in gaol were severely limited.

38Mr Polak told me that your immigration status is uncertain but could give no more information than that. I was not told your actual visa status. I do not know if you are in danger of deportation on findings of guilt for this matter and/or the other matters. I was told that your immigration status weighed heavily on you whilst in custody, but I was provided with no other information.

39I also received two emails addressed to you from Kevin Chan, counsellor at Gamblers Help, indicating that you have attended a total of 12 counselling sessions between June 2023 to May 2024.

40I received an email reference from your mother who describes you as a good son, good at your studies and a person of whom your family in India is proud.

Sentencing Submissions

41Mr Polak, who appeared on your behalf at trial and on the plea, submitted that the following factors should operate to mitigate your sentence:

·First, the offending occurred in October 2021 but your matter was not determined until May 2024. The delay was not of your making;

·Second, you have not been charged with committing any other offence whilst on bail;

·Third, although you do not now admit the offending, you do not oppose the forfeiture of the amounts of cash that were found in your car and home on 6 October 2021;

·Fourth, it was submitted that you have work available to you from the bail guarantor, however, on the first day of trial the bail guarantor sought to withdraw as guarantor as she had not seen or heard from you since the grant of bail. Nothing was provided to me to support the work offer; and

·Fifth, he submitted that you now have the support of your mother who has travelled to Australia to support you during your trial. She is living with you in your rented accommodation.

42Mr Polak submitted that you should be assessed for a Community Corrections Order. Alternatively, you should not be sentenced to a period of imprisonment that in efffect 'uses up' all of your pre-sentence detention.

43Mr Albert, who appeared for the Crown, submitted that the only appropriate sentence is a term of imprisonment to be served by way of a head sentence with a non-parole period.

44I was not provided with any comparable cases to support the proposition that, even after trial, imprisonment with a head sentence and non-parole period is the appropriate punishment for this level of offending and for a person with no prior convictions.

Analysis

45It is apparent from your prior matters and the court ordered men's behaviour change program that you have had difficulties within your relationship and that you have resorted to violence, even if the penalties seem to indicate this was at the lower level. The letter from Guy Penna indicates that you have completed a program as a step to addressing those issues and you have not been charged with any similar offending.

46I was not given any real information about your gambling addiction. This may stem from the fact that you deny the offending for which you were convicted and may yet exercise your right of appeal. Yet, from my perspective, this offending arose at a time when you were apparently gambling to make a living and your victim was a Crown Casino employee. Further, it appears from what Mr Polak told me that you did not have any other secure employment at the time.

47I do not intend to take this matter further. However, I conclude that you acknowledge that you had a gambling problem, and either of your own volition or as a consequence of the supervised bail, you have taken some steps to address it.

48It may be of some comfort to you to have your mother in Australia with you for the time being. It is apparent, however, that before you can plan your future or take any real steps towards your rehabilitation, you will need to finalise the so-called 'gold trading' and 'migration visa' criminal trials.  It is only when those matters are behind you that you will be able to look clearly at your future.

49Until then, I am satisfied that you have taken some steps towards your rehabilitation, but it seems you may still have a way to go on that path.

50In my view the objective seriousness of, and your moral culpability for your offending, together with your lack of remorse, warrant a period of imprisonment and not a CCO. Specifically, your planning, your persistence in preying on Harnal, the brazen nature of your theft and bundling Harnal out the door, together with the amount of money stolen, all militate towards this conclusion.

51Nevertheless, given the amount of money stolen and the fact that you have no prior convictions, I am not satisfied that you should be required to serve any more time than you have already served. Specifically, I reject the Crown submission that you should be sentenced to a period of imprisonment with a head sentence and non-parole period.

Orders

52Accordingly, on the charge of theft you are convicted and sentenced to seven months' imprisonment.

53I declare the period of pre-sentence detention served is 248 days.  Accordingly, you are not required to serve any further imprisonment to satisfy this sentence.

54The Crown sought a compensation order in the sum of $78,000. You oppose the order. Accordingly, it is for Mr Harnal to prosecute that matter.

55The Crown seeks forfeiture of the sum of $12,425 cash located in your car and home during the execution of the search warrants on 6 October 2021.  Mr Polak, told me that you do not oppose the forfeiture. Accordingly, I will make that order in chambers.

56Ms Altoon, are there any other matters.

57MS ALTOON:  Yes, Your Honour.  I realised during this matter that I was working off a previous version of the forfeiture order.  There was a typographical error which meant that it was $10 less (indistinct) what it actually was.  So the correct amount is actually $12,435, and I do apologise for that earlier incorrect amount that I gave and I will forward a final forfeiture order to your chambers now.  I have included the correct amount and also removed those (indistinct) which were on the previous order.

58HIS HONOUR:  Alright, given it's a change of $10, Mr Maguet, do you have anything to say about that.

59MR MAGUET:  No, that's not opposed.

60HIS HONOUR:  Thank you, Mr Maguet.  Are there any matters you need to raise.

61MR MAGUET:  No other matters.

62HIS HONOUR:  Thank you.  So, Mr Raghav, seven months' imprisonment, the time is reckoned as already served, so you are free to remain in the community.  If there's nothing else, thank you both for your attendance.  Thank you for attending again Mr Raghav, I will adjourn now.

63MS ALTOON:  Thank you, Your Honour. 

64MR MAGUET:  As Your Honour pleases.

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