Director of Public Prosecutions v Raveendran

[2019] VCC 318

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01208

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAVISHANTH RAVEENDRAN

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 March 2019
DATE OF SENTENCE:	14 March 2019
CASE MAY BE CITED AS:	DPP v Raveendran
MEDIUM NEUTRAL CITATION:	[2019] VCC 318

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For Director of Public Prosecutions	Mr P Pickering (Plea)	Office of Public Prosecutions
For Accused	Mr S Moglia (Plea)	Paul Vale Criminal Law

HIS HONOUR:

1Mr Raveendran, you have pleaded guilty to one count of conspiracy to defraud, contrary to the common law and subject to a maximum penalty of 15 years imprisonment.

2The circumstances of the offence were outlined in the prosecution opening which I incorporate by reference and which was read in open court.  In essence, the charge against you is that over the period 15 April 2017 to 11 January 2018, you conspired with Ms Ramasany and other unknown persons to defraud prospective customers of banking institutions, by putting data skimming devices into ATMs, for the purpose of obtaining personal information that would enable you to steal money from those bank accounts.  The offending is alleged to have occurred at Berwick and other places in Victoria and elsewhere.

3The gist of the charge against you is that you were part of a conspiracy to engage in what is known as card skimming.  This involves, as I said, placing a device attached to an ATM, which records details of cards inserted into the ATMs.  In addition, a camera is also attached which allows the pin number of customers to be recorded.  Thereafter, when the devices are extracted, a new card, often a gift card, can be prepared and then using that card and the pin number, attempts made to access the customers’ accounts.

4You were involved over the period referred to, when police ascertained that cards were being skimmed.  The allegations against you are that you and various co-offenders, including the main co- offender, a female, Ms Ramasany, of Malaysian extraction, the offences were committed in Mildura, Glen Waverley and Sunshine branches of the Bendigo Bank.  As well as Bendigo Bank, branches in South Australia and at Flemington Market in New South Wales.   In addition, there was a number of occasions when devices were installed at the Westpac Bank at Belgrave. 

5You were involved in driving your co-offenders, including Ms Ramasany,
Mr Taniclas and Mr Kulothungam and other named co- offenders to the various locations.  Part of the conspiracy involved attempts being made to simultaneously withdraw money from the bank accounts in Australia, as well as overseas locations including India, Canada, the USA, Indonesia, Malaysia and Sri Lanka. 

6The prosecution opening reveals various amounts successfully withdrawn from Australian branches, including $30,116 odd from a Bendigo Bank, and attempted withdrawals of $92,560.  There were also unauthorised withdrawals by persons unknown from the Bendigo Bank at Modbury in South Australia, in the sum of $18,199, and attempted withdrawals of $19,862 in the UK, India and Canada. 

7From the Prospect branch in South Australia, amounts of $24,609 was withdrawn and $33,760 was attempted to be withdrawn in overseas countries.  There are also a number of withdrawals totalling nearly $92,000 from the Flemington, NSW branch of Westpac and attempted withdrawals of nearly $213,000.

Your Role:

8Your role in the offending involved driving co-offenders to the various branches to install the devices. You also on occasion did attempt to withdraw money from branches using the false cards, and were involved in covering cameras while the devices were installed.  Police executed a search warrant at your home and later on your car on 11 January 2018 and there found numerous items connected to the conspiracy including blank cards, readers, skimmers, camera mounts, $2760 in cash, women’s clothing, numberplates, and cards with bank data and pin numbers written on them.  Skimming devices identical to those seized from the Bendigo Bank branches in Mildura and Blackwood, South Australia, were also found.

9You were interviewed and denied that you are part of a group, but admitted that you were the driver of the co-offenders to the various locations.  You also said that you had been paid for engaging in the driving and gave some evidence as to your conduct in putting stickers over cameras and being a lookout.  You denied knowledge of the various equipment in your room and stated that it had been left by named co-offenders.  Your role was a foot soldier who provided support to the instigators and principals involved in what was an international syndicate, although it appears that you had no knowledge of the international aspects when you became involved in the conspiracy and became aware of the illegality.

Assistance to the authorities and seriousness of the offending:

10Before turning to the most significant matter in relation to this plea, namely your agreement to give assistance to the authorities in relation to your co-offenders, it is important to recognise the seriousness of the offending in any event.  The crime of conspiracy to defraud can be committed in a wide variety of manners. The specific crime of card skimming strikes at the confidence that all members of the community must have in the integrity of the electronic banking system, which is central to modern day commerce. Preventing this offending, imposes costs on all banking customers and the scale of your activity here over a period of some nine or ten months and being involved in driving co-offenders interstate shows significant culpability.

11Your counsel did not dispute that this was serious offending, although the amounts of money that you personally received appear to be relatively low and effectively you were reimbursed for costs incurred in driving the other co-offenders to various locations.

Personal Circumstances:

12I turn to your personal circumstances.  Your personal circumstances were set out on the plea and in the report of Dr Bath, psychologist.  You are about to turn 34 and hail from Sri Lanka. Your family were caught up in the civil war, with your parents and brother killed by government forces.  

13The threat to you was such that you sought to escape and spent time in a prison camp, before leaving the country in around 2010.  You got to Malaysia and sought to reach Australia by boat, but were intercepted in Indonesia and spent some years in a detention camp there, before being accepted as a refugee to Australia arriving in 2013.

14You met some of your co-offenders when in the detention camp in Indonesia.  You worked in Australia.  You first went to Mildura, but then came to Melbourne and you worked in the western suburbs.  But shortly prior to this offending, commencing when you lost your job in a factory, you were abusing alcohol and were effectively homeless. It was in those circumstances that you were offered what was described as a driving job by one of the co-offenders who you had met in Indonesia and your offending commenced from there.

15You continued in the driving role and after you sold your own car, funds were provided to hire cars and to drive around Melbourne and interstate and money was paid for your accommodation, a room in a house in Springvale, or in the south eastern suburbs of Melbourne. 

Sentencing Submissions:

16Your counsel, in a comprehensive submission, emphasised a number of matters which I take into account in mitigation.  First, you have pleaded guilty.  Further, the plea was early.  The plea itself is evidence of remorse and facilitates the course of justice.  It has obviated the need for what would have been a significant trial following a committal hearing.  You are entitled to the benefit of all those matters.  There is also evidence of remorse in the report from Dr Barth, and in the Community Corrections report. 

17The report of Dr Barth provides considerable insight into your personality, noting that you are a “rather dependent person”.  Further, it notes that you still carry the scars of your immersion in the civil wars, from which you have now successfully sought refuge in this country.

18You have had periods of abuse of alcohol and also periods of emotional upset and loneliness in this country, not having any other family members here.  Until very recently, you have not sought the help of mental health professionals.  He opines that you require alcohol related education and counselling to prevent relapse into problematic drinking.  You also require assistance to address your emotional and psychological problems and cope with your problematic personality traits.  He finds that if you can continue to build on your progress so far, and that there are some grounds for optimism. 

Prospects of Rehabilitation:

19I must also consider your prospects of rehabilitation.  Given your plea of guilty, and as to be discussed, your undertaking to assist in relation to the trials of your co-offenders, and your remorse, I regard your prospects of rehabilitation as very good.  You will, however, require appropriate assistance, as set out in the Dr Barth report and the community corrections assessment.  Also relevant to your prospects of rehabilitation is that since release on bail, you have been in the workforce and had been working two jobs and have seen a mental health specialist.

Undertaking to Give Evidence:

20A central element of your plea in mitigation is that you have indicated a preparedness to give evidence against your fellow offenders.  As submitted by your counsel, this is a very salient consideration, given the sophistication of this conspiracy, the number of people involved, and the difficulties that the authorities have in bringing those involved in this form of sophisticated crime, to justice.

21Your assistance, which you have agreed to give in the form of a comprehensive statement, which you affirmed was true before me, and which was not challenged by the learned prosecutor, will, I am satisfied, be of considerable significance in the court proceedings against two co-offenders who have already been charged and further offenders who may also be charged. 

22My sentence must recognise the significance of your undertaking and encourage others to do the same.  Thus, on the authorities referred to by your counsel in his submission, a substantial discount is warranted, given the contents of your statement and your undertaking to give evidence in accordance with it.  

23The statement was not disputed by the learned prosecutor, who is experienced in these matters, and he accepted that your assistance will be significant.  I am also satisfied that given the overall size of the conspiracy here, your willingness to give evidence will, as submitted by your counsel put you at personal risk.

Sentencing Cases:

24I was referred to a number of cases in this Court and in the Court of Appeal where the courts have dealt with card skimming offenders.  Whilst I have had some regard to them, they are not strictly of assistance, given that in many of those cases the roles were different, and a number of the offenders had come to Australia with dishonesty records overseas and for the specific purpose of engaging in this sophisticated activity.  In your case, this is not the case.

25The learned Crown prosecutor submitted that a combination sentence would be within range.  He indicated, however, that it would be a matter for the Court as to whether any additional term of imprisonment, other than the period that you have already served before being granted bail, ought be imposed.

26I have carefully considered the competing submissions by your counsel and the learned Crown prosecutor, as to the overall sentence and have had you assessed for a community corrections order and you were found to be suitable.

27You were, as conceded by the prosecution, a foot soldier in this enterprise, however, your offending did take place over nearly a ten month period and you were actively involved in the driving conduct.  On the other hand, as submitted by your counsel, there was very little evidence of you achieving any substantial benefits of the offending.  Further, in your comprehensive statement, you indicated that in effect, you were a driver for these other offenders and would leave them at a particular scene, come back some hours later when they had done their, various activities.

28In the period since you were released on bail, significantly, you have been able to obtain employment and are currently working in two jobs.  Since your arrest you have also had hanging over your head the prospect of deportation from Australia, as a consequence of any revocation of your visa, should you be sentenced to a term of imprisonment of more than twelve months.

29This is even more salient in your case, given that it appears that you have relinquished your Sri Lankan citizenship and you face a real prospect of being stateless.

Sentencing Considerations:

30The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of your offence, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. 

31Here, the sentence must emphasise general deterrence and also your rehabilitation.  It must also seek to facilitate and reward your cooperation in bringing others to justice.  Dr Barth recommends a rehabilitative focus given your traumatic past being caught up in a civil war, and your travails in finally entering this country as a refugee.

32In sentencing you I have taken into account that while you have fallen into crime since arriving in this country, you deserve another chance, so that you can make a productive contribution to this country.  That will vindicate the original decision to admit you as a refugee.  Having weighed the competing considerations, I have determined that it is in the best interests of the community, that your path to rehabilitation not be impeded by a further term of imprisonment.

33  Thus I propose to sentence you to a term of imprisonment being your time served, which is 147 days, and if you agree, an eighteen month community corrections order to commence this day.  There will be the usual terms of the order that you be under supervision.  In addition, that you undertake any alcohol counselling as recommended by the officer in charge and also mental health treatment as recommended.  Was there any compensation order sought?

34PROSECUTOR:  No, Your Honour, there was restitution order sought for the money that was seized from Mr Raveendran to be repatriated to the Bendigo Bank and the draft order was emailed - with the court.

35PROSECUTOR:  There was a forfeiture order that was applied for in relation to various items seized from Mr Raveendran.

36PROSECUTOR:  And that was by consent as well.  There was an additional order, but I have not actually sent through to Your Honour's associate.  It was mentioned and it is not opposed.  It is in relation to forensic sample.

37PROSECUTOR:  The appropriate order ought be a retention of the forensic sample obtained from Mr Raveendran.  I believe that is by consent and we will have that draft order handed up.

38DEFENCE:  Yes, all those orders are by consent, Your Honour.

39HIS HONOUR:  Yes, very well.  All right, I will just stand down for a moment.  I have engrossed the community corrections order and I would ask that you could just discuss it with him and get him to sign it then I will resume in a few moments and I will sign those other orders that, the prosecution has sought.

40PROSECUTOR:  Thank you, Your Honour.

(Short adjournment.)

HIS HONOUR:  Mr Raveendran, the sentence of the Court is 147 days imprisonment, right?  And I declare that you have served 147 days.  So you do not have to go back into custody, but the sentence is also that you, from today, are on a Community Corrections Order for eighteen months.  Now that order requires you to attend at the relevant Community Corrections Office in Dandenong within two business days, to be inducted and then to obey the directions of the officer in charge, in relation to mental health and alcohol counselling.  So if she or he sends you off to an alcohol course, you have got to do it, and to a mental health provider, you have got to do it.  Do you understand that?

41OFFENDER:  Yes, Your Honour.

42HIS HONOUR:  And furthermore, if you commit an offence carrying a term of imprisonment, in the next eighteen months, that breaches the order.  It is like a good behaviour bond.  Do you understand that?  And also you have got to tell them if you change your address, and if they want to visit your house.  Do you understand that?

43Now on top of all that, you have undertaken last week that you would give evidence in other trials involving your co-offenders, Ms Ramasany and the other gentleman whose trial was just getting off the ground.  If you do not give evidence in accordance with that statement, you will go to the Court of Appeal and they will resentence you.  Do you understand that?  I have said that I have given you a substantial discount because you are giving that evidence.

44That will mean if you do not give evidence to support the police, you will possibly have your sentence doubled so you will then be booted out of Australia.  Do you understand that?  It is your last chance.  So there is the disposal order, the restitution order for the $2760.

45HIS HONOUR: Had you not pleaded guilty I would have imposed a total effective sentence of 30 months with a non-parole period of 21 months.

46PROSECUTOR:  There will be a forensic sample retention order which I will send through.

47HIS HONOUR:  I will post that back to you.

48PROSECUTOR:  Thank you, Your Honour.

49HIS HONOUR:  They were the only three orders?

50PROSECUTOR:  They were, Your Honour.

51HIS HONOUR:  All right.  You will give him a copy of the community corrections order.  Any other matters?

52COUNSEL:  No, Your Honour.

53HIS HONOUR:  I want to thank counsel for attending and also thank
Mr Pickering and Mr Moglia for their assistance on the plea and I will adjourn sine die.