Director of Public Prosecutions v Sandrasegara

[2015] VCC 216

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02171

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMODARAN SANDRASEGARA

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 February 2015
CASE MAY BE CITED AS:	DPP v Sandrasegara
MEDIUM NEUTRAL CITATION:	[2015] VCC 216

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Ms R. Verdon
For the Accused	Mr A. Parsons

HIS HONOUR:

1Thomodoran Sandrasegara, you have pleaded guilty to one charge of dealing with property reasonably suspected of being proceeds of crime, namely $240,068 in case, contrary to sub-s.400.9(1) of the Criminal Code.  The maximum penalty for this offence is three years' imprisonment.

2The circumstances of your offending are set out in the summary of prosecution opening for plea, which was read to the court, tendered and marked as Exhibit 1.  That document will remain on the court file.

3Briefly précised the circumstances are as follows.  On four separate occasions, between 11 July and 16 July 2014, you attended a suburban shopping centre in Perth, having arrived in Perth some days earlier from Singapore.  At that shopping centre, you collected cash from an unknown individual and then deposited the cash in a Commonwealth Bank account that you had opened for that purpose in your own name.  That cash was later withdrawn from that account or transferred out of it by internet transfer, not by you but by others.  During this period, you were, at all times, acting on the instructions of an individual or individuals believed to be located in Singapore.

4In the first transaction, after a number of messages had been exchanged via what is known as the instant messenger app, WhatsApp, and pursuant to instructions, you attended at the Bull Creek branch of the Commonwealth Bank, where you opened a personal account in your own name.  Later that day, in the shopping centre car park, you were met by an unknown person, who handed you a bag containing $50,000 in cash.  Pursuant to the instructions you had received, you then deposited that cash into the bank account which you had opened in your name.

5Later that day, you received a further message from the person who was known as Dean, who was providing you instructions, requesting that you provide him with the client number and password to the account which you had opened at the Commonwealth Bank.  You provided those details to him.  Later that day, someone transferred $15,000 out of that account by way of electronic transfer.  There is no evidence that you were involved in transferring that sum or any other sums out of the account into which you were placing these monies.

6Similarly, on 14 July 2014, following instructions received via the WhatsApp messenger facility, you attended at the Commonwealth Bank and deposited a further sum of $92,280 in your account by way of three separate deposits.  Later that day, $120,280 was withdrawn from that account by someone.  There is no evidence that you were that person.

7The following day, on 15 July 2014, again pursuant to instructions you were receiving by way of WhatsApp messages, you attended at the bank and deposited a further $50,000 into your account.  Again, later that day, those funds were transferred out of that account by way of internet transfer.

8Finally, on 16 July 2014, again pursuant to messaged instructions you had received, you attended at the bank and deposited a further $47,788 in cash into your bank account.  Again, this sum was later transferred out of that account by internet transfer.  You returned to Singapore.

9On 17 September 2014, you arrived at the Melbourne International Airport on board a flight from Kuala Lumpur.  You were detected by Customs officers and eventually placed under arrest by members of the Australian Federal Police.  They conducted a tape recorded interview with you.  During the course of that interview, you made comprehensive admissions.  Your admissions can only be described as full and frank amounting to a complete confession.

10The strongest evidence against you that the prosecution have in its case against you, comes from your own confession during that record of interview.  You were totally cooperative with the authorities.  Consistent with that confession and that cooperation, you entered a plea of guilty in relation to this charge at the earliest practical opportunity, namely at the committal mention proceedings on 11 December 2014.

11By reason of that stance, the course of justice has been facilitated to the extent that this case is being able to be dealt with in a very short time since your apprehension.  Since being charged on 17 September 2014, you have remained in custody in the Metropolitan Remand Prison.  You have no prior convictions.  You do not even have a parking ticket according to what you have written to your name in your letter and now you have spent nearly six months in gaol in a foreign country, separated by a long distance from your family in Singapore.

12You are person who was previously of excellent character.  You are married with two children.  Your wife is a secondary teacher.  You have two daughters.  You have had a long career as an aviation technician working for the Singapore International Airport.  You worked hard, shift work often, in order to support your family and to save sufficient funds to buy your own home.  You have supported other members of your family who needed your help financially, including siblings and your own parents.

13Many years ago, in a case called Okutgen (1982) 8 A Crim R 262, Sir John Starke in the Supreme Court referred to two cases in that year in 1982. One was Okutgen, the other was the case of Smith (1982) 7 A Crim R 437. In both of them, he spoke about the importance of the courts remembering that good character is a significant matter in mitigation when an offence represents an aberration in an otherwise unblemished life of good character. He spoke of men approaching mature age, having worked hard, raised a family, never having offended, having gotten into trouble through no fault of their own and falling into temptation resulting in them offending. You are one such person.

14I accept that you were so borne down by financial concerns and the need to get them cleared in order to facilitate your emigration from Singapore to Australia, you succumbed to the temptation of earning a relatively paltry sum of $3,500 by way of committing this serious offence.

15You told the police you did not know it was illegal.  I am cynical about that.  I suspect that despite reassuring your wife that there would be no problems, that you had an underlying suspicion that what you were being asked to do was illegal.

16You and your wife for some years had been preparing and planning your emigration from Singapore to Australia, mainly for the benefit of your two young daughters, to provide them with education and opportunity in a country which offered such things.  By reason of what you have done, you have destroyed those hopes and dreams.  That in itself is representative form of significant extra curial punishment in my view.

17During the period of nearly six months, you have sat in your cell on remand, I have no doubt, as is reflected in the letter that you have written, that you have spent most of your time regretting what you have done and the impact that it has had upon your family, in the knowledge that your wife and children are suffering deeply in your absence.

18Your wife, in her affidavit has described the emotional pain that she has endured, the tears that she has shed and the impact of those matters upon your children.  Those circumstances are not exceptional, but I can take into account the fact that you must have been deeply aware of the suffering of your family as you have sat in your cell, and that awareness has caused you to suffer even more in isolation here in Melbourne.

19I take into account that, because of the distance of your family and friends from you in custody in Melbourne, you have received no visits.  That has rendered the circumstances of your imprisonment more burdensome than they are for an ordinary prisoner with family and support persons within reach and able to visit them.

20On the other hand, I also take into account that you have used your time extremely well in gaol.  A large number of certificates have been provided.  It seems to me that you have probably done every course that you could possibly do in order to use your time productively and to demonstrate your deep desire to rehabilitate; to never to offend again.

21Your counsel made a number of powerful submissions of your behalf.  He commenced his submissions by making appropriate concessions, conceding that the seriousness of this offence committed by you has been aggravated by the fact that there were a number of transactions effected by you.  It was not a once off transaction.  There was a degree of sophistication and planning involved in the transactions.  The amount of money involved in total was a large amount, albeit a long way from the upper end of the range for this kind of offending, and your role was important, although he asked me to take into account that you were clearly at the lower end of the hierarchy of those involved in this criminal conduct.

22You were the naïve patsy who was sent here to carry out the dirty work, to carry the risk.  You were so naïve that you opened the account in your own name and used your own passport to do so.  You did all of this and took such a huge risk for a relatively small gain.  There is no evidence of any other enrichment or lifestyle benefit.  The Crown has conceded quite properly that you were merely following instructions.  None of these matters excuse your criminal conduct, but they do put it into its proper context.

23I take into account, as urged by your counsel, that your plea of guilty was made at the earliest possible stage in the proceedings.  It is true that it was made in the face of a strong case and as I have already observed, the strength of that case was the result of your own full and frank cooperation with the police and your confession.  I take that cooperation and frankness into account by way of mitigation.

24Priest JA in Reid v The Queen [2014] VSCA 145 has recently observed that:

"There is a powerful public interest in giving recognition to a plea of guilty, even in the face of a very strong prosecution case.  Charged individuals are faced with a choice of either pleading guilty or electing to contest a trial.  They need to know that a plea of guilty will find real, discernible, palpable recognition."

25I take into account that your prospects of rehabilitation are, as your counsel submitted, very good.  They must be regarded as very good, if not excellent, in light of your previous unblemished character, your age, your education and the fact that you have a family in Singapore.  I have now doubt reading what I have read that the nearly six months that you have spent in gaol has had a very salutary effect upon you.

26In my view, specific deterrence has little weight in the sentencing in this case.  Clearly, general deterrence is very important.  General deterrence can be achieved by the imposition of a sentence.  You have already served what for you is a significant sentence.

27As Hunt J said may years ago in the Supreme Court of New South Wales, it should never be forgotten that someone like you, for someone like you with your background, even one day in gaol seems like an eternity.

28Your counsel referred to the table of similar cases that was provided by the prosecution in this case.  It has allowed me to glean some better appreciation of sentencing practices in relation to cases of this kind.

29The prosecutor made very helpful submissions, reminding me of the matters the court is obliged to take into account pursuant to section 16 of the Crimes Act 1914. I have taken those matters into account. Counsel for the prosecution reminded me that general deterrence is a very important sentencing objective in cases of this kind, as was conceded by your counsel. I have taken that into account.

30Having weighed up all of these matters, and having carefully considered the affidavit prepared by your wife, and the facts emerging from it to which I have already referred, and having considered your own letter and all the other matters put by counsel at both ends of the Bar table, I have determined that in this case it is appropriate to convict you of the charge and sentence you to be imprisoned for 163 days.  I declare that you have already served 163 days by way of pre-sentence detention.  Accordingly, you will be released today having served your sentence.

31MS VERDON: As Your Honour pleases. Your Honour, I neglected to mention previously the s.6AAA.

32HIS HONOUR: Yes. I declare that pursuant to s.6AAA of the Sentencing Act 1991 that but for your plea of guilty, I would have sentenced you to be imprisoned for nine months.

33It will be necessary for you to be taken back downstairs and administrative work and paperwork be completed.  But this afternoon, as I understand it, you will be released from the cells in this court.  No doubt, your solicitor and your counsel will be waiting for you and they will assist you in making whatever plans you need to make.  It is necessary for me to make any other orders?

34MS VERDON:  No, Your Honour.

35HIS HONOUR:  Thank you very much again for your help today.

36MS VERDON:  Thank you, Your Honour.

37HIS HONOUR:  Thank you Mr Parsons.

38MR PARSONS:  Thank you, Your Honour.

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