Director of Public Prosecutions v Sikri
[2023] VCC 1796
•28 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-00497
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Mohit Sikri |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2023 | |
DATE OF SENTENCE: | 28 September 2023 | |
CASE MAY BE CITED AS: | DPP v SIKRI | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1796 | |
REASONS FOR SENTENCE
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Subject:Obtain property by deception; plea of guilty.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: With conviction, Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr. A. Albert | Mr. Danusha Rachagan, Solicitor for Public Prosecutions |
| For the Accused | Ms. S. Parsons | Ms. Kate Da Costa , Doogue and George Defence Lawyers |
HER HONOUR:
1Mohit Sikri, you have pleaded guilty to nine charges of obtaining property by deception and one charge of knowingly dealing with proceeds of crime.
Circumstances of offending
2The full circumstances of your offending are outlined in the prosecution opening of 13 September 2023, marked as Exhibit A. I sentence you on the basis of this accepted opening.
3In summary, you commenced employment with RMIT in October 2014 as a Scrum Master, which is a team leader position responsible for ensuring the team implements a project management methodology created for software development.
4In August 2020, you commenced a role of Senior Portfolio Manager.
5Your roles oversaw staff, including 11 junior staff members who were testers, analysts and developers who reported to two scrum masters. Much of the offending occurred over the time of Covid restrictions prohibiting attendance at the workplace. Between 19 January 2019 and 7 April 2022, you obtained a total of $216,349 from nine victims in 134 payments that you represented to the victims they were required to make as part of their employment. On average, this was approximately $1,250 per week.
6Five of the victims were engaged for RMIT as contractors through various recruitment agencies. Each of the nine victims knew you as a portfolio manager. You told them that they were required as part of their engagement as contractors to transfer funds electronically to agency accounts for superannuation and payroll processing. False account names were given, along with false references for the payments. The actual holder of the accounts were you and your wife. The amounts the subject of each charge are particularised in the indictment.
7The victim in Charge 1 was Mahesh Murali, who was employed by RMIT as a consultant through an agency. He met you at his initial employment interview. You told him that he had to make payments to RMIT after he received his salary for timesheet and payroll processing and, over RMIT Team chat, you provided him with the false account names and the amounts to transfer.
8The victim in Charge 2 (indictment Charge 4) is Ravi Enukonda who was employed by RMIT as a test analyst and first encountered you when he received a call informing him that he had the job. You told him that after he received his salary, he was required to make payments fortnightly for tax, superannuation and related matters and that “Josh” from consultancy handled these payments. You emailed him and included another recipient, Josh Hawkins, representing that “Josh” was the director of “J. Hawkins Consultancy.” Enukonda received emails from Josh Hawkins with BSB and account numbers and amounts to transfer. The IP details in the email header information for both you and Josh Hawkins were identical. You were the holder of the account and there was no Josh Hawkins or consultancy firm.
9The victim in Charge 3 (indictment Charge 2) is Harneet Chadha who was employed by RMIT as an automation engineer through an agency and he also met you at his initial interview. In the first month of his employment, you told him that he was required to make payments after he received his salary for payroll and superannuation and that it was cheaper for him to make these payments from his salary. You provided him with false details by text and the amounts to transfer.
10The victim in Charge 4 (indictment Charge 7) is Vijay Anantuni who was employed by RMIT as an integration analyst from 2011 to March 2019, and further employed by RMIT as a contractor in March 2019. You told him that he would need to use Paxus as the employment agency and pay to them $80 of his daily rate. The contact at Paxus for the payments was James Mcgoffin. There was no such person. Using RMIT Microsoft Teams chat you provided Mr Anantuni with bank details and false names for payments.
11The victim in Charge 5 (indictment Charge 6) is Bhupendra Malviya who was employed by RMIT as a consultant through Paxus recruitment agency and first met you during his initial telephone employment interview. You told him then that he was required to make payments of $130 from his daily rate after receiving his salary to James Mcgoffin and that the payments went to someone ‘in between.’ You then provided him with bank details and false account names for payments.
12In December 2021, Mr Malviya left RMIT for a new job. In early January 2022 -which notably is after your employment had been terminated - you contacted him by phone, told him that he still owed $4680 from his time at RMIT to be paid in cash. Mr Malviya met you and paid you $2000 cash and then transferred the outstanding amount of $2680.
13The victim in Charge 6 (indictment Charge 8) is Manish Terry who was employed by RMIT as a test analyst through Paxus employment agency. You told him he was required to make payments being a percentage of his daily rate to Paxus for payroll processing and gave him the contact of Mcgoffin and bank account details.
14The victim in Charge 7 (indictment Charge 9) is Mehul Bhatt who was employed by RMIT as a test consultant through Paxus employment agency. You told him that he was required to make payments of $140 from his daily rate to Paxus and also gave him Mcgoffin as the contact person and account details.
15The victim in Charge 8 (indictment Charge 5) is Sweta Singh who was employed by RMIT as a tester through Paxus recruitment agency. You told her that she was required to make payments to ‘Paxus’ each month. You provided her with BSB and account numbers and account names ‘Paxus Australia’ and ‘Paxus’.
16The victim in charge 9 (indictment Charge 3) is Kameljeet Sohal who was employed by RMIT as an automation tester through Paxus recruitment agency. You told her that she was required to make payments between $185-190 of her daily rate to Josh Hawkins from Paxus and provided her with the banking details.
17In November 2021, RMIT commenced an investigation into your activities after a complaint was made by a previous employee that you were requesting payments from RMIT contractors.
18On 18 November of that year, RMIT investigating staff met with you to discuss the allegations. In that meeting you admitted to receiving money from a contractor. You were required to return all RMIT equipment in your possession. You were allowed to log out of the RMIT computer. When doing this, you were observed deleting content from the laptop. You were suspended immediately.
19After the meeting, you made four separate transfers on 18 and 19 November 2021 of the proceeds of your crime to your mother-in-law in India to conceal those proceeds totalling $200,000 (charge 10).
Criminal investigation
20As part of their investigation, RMIT requested that you make a written response to the allegations against you. You did not provide such a response.
21On 29 November 2021, RMIT terminated your employment. On 10 December 2021, RMIT engaged agents to investigate the allegations. A report was provided in July 2022. On 2 August 2022, RMIT made a fraud complaint to the police.
22During the police investigation, police obtained your wife, Nikita Arora, and your bank and financial records under warrant.
23On 6 December 2022, police executed a search warrant at your home. They seized a range of items as detailed in the prosecution opening, including a notebook which contained handwritten dot points as outlined at paragraph [31] including ‘can they come after my family and their assets’, ‘can the police directly approach me and arrest?’ ‘university see money from me’, ‘accredited specialist law institute’, ‘referral system.’
24You were arrested, taken to the police station, and interviewed.
25In your interview, you admitted to knowing some of the victims as RMIT employees, confirmed your personal email address and mobile phone, and otherwise made ‘no comment’ to the allegations.
Gravity of the offending
26The charges you have pleaded guilty to, Mr Sikri, are serious as indicated by their maximum penalties. All of the charges are rolled up charges and I am required to consider all the circumstances of each offence and to have regard to the overall extent of your offending. The factors for consideration include an assessment of the acts that you undertook in your offending and the value involved in the deceptions, which does vary between charges; charges on the indictment 1, 2, 3 and 6 being some of the most significant.
27Your counsel submitted that your offending was relatively unsophisticated and easy to detect given the bank accounts led directly to you or your wife. I accept that there are graver examples of such offending where more complex structures are put in place to conceal the offending. Your offending, however, did involve the provision of false information to your victims, the creation of false names, and ongoing receipt of funds. Your offending was clearly planned, calculated, ongoing, and prolonged and I accept the prosecution submission that there was a degree of sophistication involved. In respect of Charge 5 (indictment Charge 6), I note that you pursued your victim for further funds after you had been confronted about these issues and your employment terminated, which as your counsel accepted, is aggravating.
28Your counsel submitted that this is not a case where you preyed upon vulnerable victims in that they were not disabled or compromised in some way. It’s not suggested by the prosecution that your offending falls within this category. Rather, what is put is that you were a trusted employee and in a senior or managerial position in respect of your victims. You had been employed at RMIT for around five years without any issues. Offending in the manner that you did involved a significant and sustained breach of trust.
29Your offending was against multiple victims and involved the receipt of
134 payments. The totality of your offending was significant, and I accept the prosecution submission that overall, it is serious.30As to the context of your offending, you told psychologist Dr Mathew Barth that your offending was motivated by your parent’s financial problems. You said that they ‘did not have an income or stable accommodation in the aftermath of the death of your older brother and you felt anxious about your parents ‘living in the streets, just like they did 25 years ago.’ Your counsel submitted that when your brother suddenly died, it caused you profound grief and exposed your parents to financial insecurity triggering for you memories of your childhood when you and your parents were effectively rendered destitute and homeless. Your brother had been supporting your parents by housing them and also employing them in his garment business from which they were able to draw an income. Upon his death, his wife apparently has become embroiled in disputes with your parents, which have now reached the courts. She is seeking to evict them from the home and remove them from the business, which are apparently in her name only. This caused you significant distress, which also exacerbated your low self-esteem, and was further compounded by other matters, including the trauma surrounding your daughter’s birth in June 2020. You forwarded to your parents some funds generally on a quarterly basis and you sought to secure for them a ‘safety net’ that could be put towards securing their housing, if, and when, it was required.
31In relation to Charge 10 your counsel accepts that it is serious but submits that it was unsophisticated and easily detectable and ‘reflective of a panicked and poorly planned response to the broader offending circumstances.’ In terms of these funds as discussed at the plea hearing, while acknowledging the distinct criminality involved in Charge 10, I note the overlap between the charge and Charges 1 to 9.
32On behalf of the prosecution, Mr Albert drew attention to the fact that you had transferred the money to your mother-in-law and not to your financially vulnerable parents, which seemed contrary to your claimed concerns or motivations. Your counsel, Ms Parsons, explained that your mother-in-law in fact lives next door to your parents and has done so for many years. Getting money to your parents is best achieved by transferring it into this account.
33In all the circumstances, Mr Sikri, I accept that you were labouring under some emotional distress at the relevant time of your offending and that you were motivated to provide for your parents. However, given the duration of your offending, the quantum involved, and its sustained and calculated nature, I give it minimal weight in evaluating your moral culpability, which I otherwise assess as high.
34No victim impact statements I note have been filed with the court.
Plea of guilty
35You have pleaded guilty at the earliest opportunity which entitles you to a substantial discount in sentence. Your plea of guilty is of high utilitarian value, heightened in accordance with what we refer to as the Worboyes principles[1]. Your plea of guilty has avoided a potentially lengthy and complicated trial with multiple victims. You have indicated a willingness to facilitate the course of justice and I accept that your plea is indicative of remorse. I have also had regard to your consistent expressions of remorse to others. You told Dr Barth ‘everyone has financial problems, it’s not an excuse. I feel terrible for the people involved. I lied and deceived them. I genuinely feel sorry for it, I also put the uni’s reputation at stake.’ Dr Barth considered that a significant portion of your distress is due to the ongoing sense of shame for your offending behaviour. In your letter of apology you state ‘I write this to deeply and sincerely apologise for my actions and the impact it has had on you, I can only fathom what you have gone through due to my shameful actions. I am terribly sorry to everyone.’ It seems that you initially rationalised your offending by telling yourself that you had secured better wages for your victims and therefore they were, in fact, not worse off financially. This misconceived or distorted thinking has been challenged during counselling sessions with psychologist Mr Geoffrey Burrows and it seems that you are developing insight and, I accept, have expressed remorse for your behaviour.
[1] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
36As to your background, this was comprehensively outlined by your counsel and also canvassed in Dr Barth’s report.
37You were born in New Delhi, India, and grew up with your parents and your brother. During your early years, your family lived with your uncle and cousins. It appears that later your uncle, described as a ‘ruthless man’, forced your family to leave their shared home causing your family significant instability and hardship. You were approximately eight or nine years of age at the time. Your uncle ousted your father from the family business which further plunged your family into financial hardship.
38Against this background, your father battled severe depression which left him incapacitated to work. He was also quite volatile and on occasion was physically violent towards you. Given these circumstances, your older brother took on the responsibility of supporting the family financially.
39Despite your disadvantaged background, you were determined and performed well in school, subsequently obtaining a Bachelor of Engineering at the University in New Delhi.
40In 2006, you moved to Australia on your own in search of further educational and career opportunities. You enrolled in a Masters of Engineering at Deakin University supporting yourself through studies by working part-time within the hospitality industry.
41Since completing your master’s degree, you have consistently been employed demonstrating a strong work ethic. You first worked at Target as a software engineer in the Information Technology (IT) department. You later spent a year in Canberra continuing your IT career before returning to Melbourne.
42In 2012, you married your wife, Ms. Arora, who you have known for many years.
43In 2014, you joined RMIT as an IT consultant contractor. You were subsequently offered a full-time position and, as I have already noted, progressed into senior roles.
44In 2018, your older brother passed away suddenly from a cardiac arrest. This was a very significant event in your life. In particular, the loss created serious financial challenges for your parents, and you maintained almost daily contact with them during this period.
45In this way, it was submitted on your behalf, the period of your offending coincided with multiple significant stressors affecting your well-being and may have contributed to poor judgment when committing these offences.
46You and Ms Arora’s daughter was born on 17 June 2020 via emergency cesarean section. Her early life was marked by difficulties, including a week-long stay in the emergency department. She has exhibited significant developmental delays, particularly in language and social communication. Some healthcare professionals have suggested she may be on the autism spectrum. Recently, your family was granted NDIS funding to begin therapies aimed at addressing these delays. Your wife does not work due to the level of care that your daughter requires. Further, I note that you and your wife have since suffered a miscarriage which was also distressing.
47You presently live with your young family in a rental property. Your daughter attends childcare locally, is undergoing a carefully managed orientation for kindergarten, and health professionals presently attend your rental home regularly for ‘home visits’.
Mental health assessment
48Dr Barth undertook a formal assessment of your mental health. You reported to him periods of distress in your childhood and also during your adult years. You described an intense grief response to your brother’s death in 2018, your daughter’s birth complications, and witnessing your parent’s intense financial struggles in recent years which reminded you of your childhood. You have coped with these emotions by ‘bottling it all up’. You also experienced work related stress in recent times emanating from Covid-19 lockdowns and restrictions. Since being charged, you have suffered with periods of anxiety and depression. In summary, Dr Barth considered that your symptoms cause you a moderate degree of distress. While they are not insignificant, ‘they are not at the intensity to meet diagnostic criteria for any mood disorder, trauma-related disorder, or adjustment disorder. Your symptoms, in other words, are not out of proportion for an individual in your situation.’
49It is not suggested that there are any Verdins principles that are enlivened in your case, but I take into account your personal history and the matters referred to by Dr Barth in his report.
Other relevant factors
50I have taken into account the delay, such that it is, in the finalisation of your case. Your offending first came to light in November 2021, and you were not interviewed and charged until December 2022. I do note though again that your offending period exceeds that 2021 date. The matter has been ‘hanging over your head’ for a period of time, with the stress and uncertainty of outcome. I note Dr Barth’s reference to the anxiety and distress you have experienced as to your future prospects. I also take into account your ongoing efforts towards rehabilitation in their interim period[2].
[2] R v Merrett (2007) 14 VR 392.
51Your counsel also relied upon extra-curial punishment. As I have already noted, your employment was terminated, your offending has destroyed your reputation amongst colleagues and within the profession. I accept that as a consequence of your offending, you have lost a professional career that you otherwise worked very hard to build and that it is very unlikely moving forward that you will be able to obtain employment within your chosen field.
52I also take into account that your concern for your wife and daughter, given her emerging special needs, would weigh heavily upon you in custody.
53It was also submitted on your behalf that you can, and are motivated, to make restitution. In March of this year, your bank accounts and property were confiscated to the approximate value of $120,000. I note that there are no formal compensation applications before the court, and I was told that the victims have either received or are seeking their own advice and may pursue such matters independently. Your counsel indicated that you expect and are prepared for this money to be paid towards compensation and also, if you remain in a position to continue working, you are able to make monthly payments until the money is repaid in full.
Prospects of rehabilitation
54In all the circumstances, I accept that you have very good prospects of rehabilitation.
55In my assessment, I take into account that you have no prior criminal history. There is also no subsequent offending alleged against you.
56You have a supportive family and friends, many of whom have attended court. They speak positively of your good character. Rakesh Khetarpal describes you as a ‘responsible son and father’ and ‘a trust-worthy friend.’ Rajiv Kohli describes you as ‘kind, helping and considerate.’ You have a very solid work history. Since being charged, you continue to work in support of your family. You work casually at the IGA supermarket, on average 3 nights a week, filling shelves and undertaking other customer service duties. You also work for a printing franchise called ‘Minuteman’. It is a company in its relative infancy, and you are one of its four partners.
57In Dr Barth's opinion, your risk of reoffending is low, given that he assesses you to be an ‘intelligent man who values pro-social connections, he has a good employment history, he does not abuse substances, he does not suffer with significant personality pathology, and his behaviour in the community has been stable.’ Provided you participate actively in the treatment you require, these factors all represent ‘positive indicators’ for your future prospects.
58I have also taken into account in my assessment of your rehabilitative prospects that you have engaged in regular psychological treatment since February 2023 at your own expense. In his report, Mr Burrows indicates that you are motivated to engage in treatment to reduce the risk of reoffending and to manage your negative emotions and coping skills and that you have demonstrated some insight, though there is work to be done.
Sentencing purposes
59The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation, and protection of the community. In light of my assessment of your circumstances and your prospects of rehabilitation, I consider specific deterrence and community protection are of reduced significance to the sentencing discretion. Given the nature of the offending and the period involved however, they do remain relevant.
60I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant in your case.
61Further, I have taken into account the general sentencing landscape for such offending. I have been provided with comparable cases and have considered all of them. While they have assisted me, there are differences, and each case turn on its own circumstances.
62Briefly, by way of example, in the case of R v Brown, the accused stole approximately $250,00 in a two-and-a-half-month period. The most aggravating feature of the offending was that it constituted a breach of trust placed in the accused to care for the funds of a not-for-profit organisation soon after his employment commenced. While this can be contrasted to your case, I note that the offending there was regarded as serious but ‘isolated and opportunistic’ which cannot be said here. The case of DPP v Venn[3] involved repeated acts of dishonesty against the accused employer over a three-and-a-half-year period totalling over $165,000. Approximately $37,000 had been repaid. The plea was a late one and there was resistance in accepting total liability. The motivation was to engage in a ‘lavish’ lifestyle and there were no relevant mental health issues.
[3] DPP v Venn [2017] VCC 1043.
63There are many instances in this court where dishonesty offending involving either greater or lesser amounts and a breach of trust over lengthy periods have attracted non-custodial dispositions. Of course, there are also examples with similar circumstances which have attracted custodial ones. As your counsel accepted, ordinarily one should expect a substantial term of imprisonment for such offending. This is not because a Community Corrections Order is never appropriate in cases of this nature, but rather because of the relevant considerations that apply, including the difficulty of detection, the very substantial amounts of money often involved (as I note was the case in Dyason v R and DPP v Bulfin), and the prominence of general deterrence and denunciation as sentencing objectives.[4]
[4] Dyason v R [2015] VSCA 120 at [40; DPP v Bulfin [1998] 4 VR 114.
64Your counsel submits that a lengthy Community Corrections Order with community work and therapeutic conditions is the appropriate sentence capable of reflecting and balancing all relevant sentencing principles. Reference was made to the case of Boulton v the Queen[5] in support of a submission that such an order is capable of meeting the more punitive aspects of sentencing. She relied on the combination of factors already canvassed, including your early plea of guilty, remorse, and prospects of rehabilitation as justifying a
non-custodial disposition. The prosecution submit that the appropriate sentence here is a term of imprisonment with a non-parole period.[5] Boulton v The Queen [2014] VSCA 342.
65Mr Sikri, I had you assessed for a Community Corrections Order, and you were assessed as suitable with appropriate conditions. You were assessed as a low risk of reoffending and were noted to have expressed shame and considerable remorse for your victims. The Forensicare assessment suggested that you would benefit from ongoing participation in psychological counselling to support you in moving forward in your life and to learn practical skills to self-manage your mood and thoughts.
66I have given your case very close and very careful consideration and I have also had regard in particular to the principles of proportionality, parsimony and totality. Your offending was thoroughly dishonest and objectively serious. However, after synthesising all relevant matters, including the objective gravity of your offending, I have concluded that there is another alternative to imprisonment in your case. I consider that a very lengthy and significant Community Corrections Order is the just and appropriate sentence. Such an order is intrinsically punitive and depending on its length and the nature and extent of the conditions imposed, is capable of being highly punitive and of addressing the sentencing objectives of just punishment, general deterrence, and denunciation.
Sentence
67Mr Sikri, if you could please stand. On all charges, you are convicted and sentenced to a Community Corrections Order of three years and 10 months duration with the following conditions:
a) Supervision;
b) 400 hours of community work, and I offset 80 hours of that work againsttreatment;
c) Treatment and rehabilitation for mental health.
68There are other core conditions that apply to Community Corrections Orders. They apply to all orders, and they will apply in your case, including the need to report, and I think it is Werribee, within two working days, which would be after the long weekend I anticipate; to notify Corrections of any changes to your address; to accept visits from them; there are a number of conditions. They will be printed out. Your counsel and instructing solicitor can approach you shortly to go through those conditions so that you read them, understand them, and indicate by signing the document if you consent to the order.
69A Community Corrections Order can be breached by either first, not complying with its terms, or second, within its duration which commences today, and it is a lengthy quite deliberately, Mr Sikri, a lengthy order. If you commit an offence within three years and 10 months that is an indictable offence punishable by imprisonment, then that will constitute a breach of the order. All right. So, if you reoffend or if you do not comply with it, it will be breached. In turn, you can return to court, you will be dealt with for the breach, and I can also potentially re-sentence you for the original charges. Do you understand? All right, take a seat, please.
70I indicate that pursuant to s6AAA of the Sentencing Act that but for Mr Sikri’s plea of guilty, I would have sentenced you to a term of three years’ imprisonment with a non-parole period of two years.
71Counsel, just wait for that document to be printed out. I’ll have it provided to you also, Mr Albert, and Ms Parsons, to you. You and your instructor can approach
Mr Sikri, go through the conditions with him so that he can sign.72MS PARSONS: Thank you, Your Honour.
73HER HONOUR: And I don’t know whether I made clear, I think I did, it’s obviously with conviction.
74MR ALBERT: Yes, you did, Your Honour.
75MS PARSONS: Yes, Your Honour.
76HER HONOUR: All right. Counsel, is there anything further?
77MR ALBERT: No, Your Honour.
78MS PARSONS: Nothing further.
79HER HONOUR: All right. Thank you both for your assistance.
80MR ALBERT: Thank you.
81HER HONOUR: We’ll adjourn.
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