Director of Public Prosecutions v Singh
[2023] VCC 342
•9 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01507
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KESHWINDER SINGH |
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JUDGE: | HER HONOUR JUDGE DAWES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2023 | |
DATE OF SENTENCE: | 9 March 2023 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Singh | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 342 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Obtaining financial advantage by deception
Sentence: 2 years’ 3 months’ imprisonment
NPP 18 months
6AAA: 3 years’ 3 months imprisonment, NPP 2 years 4 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Ms J. Ball | Marco Man & Associates |
HER HONOUR:
1Keshwinder Singh, you have pleaded guilty to one charge of obtaining financial advantage by deception. In the course of your employment, you falsely represented that electronic transfers of funds were legitimate customer refunds. They were then paid into your bank accounts. The maximum penalty for this offence is 10 years' imprisonment.
2The charge is a rolled-up charge, being a collection of 19 offences that occurred between 14 December 2021 and 21 March 2022, bundled together in a single charge. The total of purported refunds that you obtained was $198,899.01.
3The circumstances of your offending have been provided in the summary of prosecution opening. It is agreed to be an accurate account of events. A general summary of the facts is as follows:
4In June 2021, you commenced employment as a credit accounting officer at J C Dahlsen Pty Ltd, a timber and hardware manufacturing business.
5As part of your employment, you were responsible for debt collection, the allocation of customer payments and managing overdue debts. You reported to your credit manager, who in turn reported to the national credit manager.
6On 28 March 2022, your credit manager reconciled suspense accounts, which had not been done for three months. He noticed suspicious transactions, being payments from the suspense accounts to other accounts which had not been used for some time and were old payments.
7It was discovered that one of the accounts into which money was paid, was your personal Commonwealth Bank account. Further investigation ascertained that the refunds you made, which were supposedly paid to clients, were not documented, and were larger than normal.
8On 4 April 2022, you met with the company's Chief Financial Officer and the National Credit Manager. You were unable to explain the discrepancies in the accounts. Your employment was suspended, and the matter referred to Victoria Police.
9Subsequent analysis of your fraudulent activity revealed that on nineteen separate occasions, between 14 December 2021 and 21 March 2022, you emailed the company accounts department, seeking a refund of a specified amount for a 'client'. You asked for the purported refund to be paid into an account and provided BSB and account numbers.
10You changed the account details for the relevant clients to your own bank accounts, so that they were not notified of the payment.
11The Commonwealth Bank identified 10 accounts into which the payments were made, which were all in your name (Schedule B). These accounts were opened on different dates, either before or during the relevant period. Eight of the accounts were closed in the course of the offending, one was closed 3 days after the final transaction and one account remained open at the time of your arrest. One account was opened and closed on the same day.
12The transactions were made for your own personal benefit. They have been outlined in detail in the prosecution summary. Schedule A, (annexed to the end of this sentence), provides accurate and specific details of the dates and amounts involved in each transaction, which ranged between $2,489.96 and $24,283.06. In total the amount was $198,899.01.
13You were arrested by police and interviewed on 4 May 2022, where you made full admissions. You identified dormant customer accounts, confirmed that you created Gmail accounts to change details within the company system so that they were not able to be traced, and agreed that you opened and closed the bank accounts which received the purported funds. You told police that the money was all gone.
14At Question 218 you were asked where the money went, and you answered:
'I have significant debts ... all of this went to gambling accounts ... let's just say I take 10 grand and I have a debt of 20 – I'm just trying to double it or triple it or whatever.'
15You agreed that you would gamble with the money to try to win more. You would not bet the lump sum amounts, rather 'maybe a thousand or two'. You now have a remaining debt of around $60-$70,000, and you stated that you lost on bets around three-quarters of the money you received.
16The prosecution agrees that you made full admissions to creating false claims and then receiving payments. You provided the police with full details of your dishonest conduct. Following the interview, you were charged and released on bail.
17Your former employer's National Credit Manager was present on link at the plea. He has prepared a victim impact statement dated 22 February 2023, which was read to the Court. He writes that Dahlen's is a family-owned business that has been in operation for 146 years. The culture of the business is one of trust and respect to employees, customers, and suppliers.
18Your fraudulent use of customer accounts to facilitate your offending has diminished the confidence of customers and had a negative effect on the reputation of the business. He is still working to rectify the damage that you have caused.
19For the first time in the business' history, it has made a claim to it's insurer. This will result in increased insurance premiums and 'a black mark against the name of the business'.
20No application for restitution has been made. I am told that the relevant insurer has covered most of the company's loss of money, and the balance outstanding is approximately $20,000. I take the relevant portions of the victim impact statement into account.
21It is conceded by your counsel that your offending is serious. It involved a significant breach of trust which ceased when discovered by your employer. Although you face a single charge, your persistent offending occurred 19 times in just over 3 months. Your dishonesty was not spontaneous. It was a planned, calculated course of conduct. The generation of false claims and the use of multiple bank accounts facilitated your dishonest transactions, in order to conceal your misconduct.
22There is no dispute that in the course of subsequent investigation, the discrepancies were identified through standard reconciliation procedures. Your identification was readily revealed, as the bank accounts were registered in your own name. I accept that the method of your offending was not overly sophisticated.
23The matter resolved at a committal mention on 23 August 2022. You entered your plea of guilty to the rolled up, single charge on the indictment. The prosecution agrees that you entered an early plea.
24It is submitted by your counsel that your plea of guilty is highly valuable. It is consistent with an acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
25I accept that your plea was consistent with the full and frank admissions made in your record of interview. It has been entered at the earliest opportunity, being less than four months after you were charged with your offending.
26You are entitled to receive a substantial benefit for your guilty plea. You have saved the Court and the community the time and expense of running a trial. You have facilitated the efficient administration of justice. The utilitarian benefit of your plea is to be enhanced by the fact that it was entered during the pandemic. I accept that your plea of guilty at the current time should attract a more pronounced amelioration of sentence than at another time.
27You have a relevant criminal history. Your dishonest offending commenced in December 2018. On 8 December 2021, you pleaded guilty in the Magistrates' Court to four charges of theft of petrol and to four charges of obtain financial advantage by deception, as a result of unauthorised food purchases from a restaurant. You were convicted and sentenced to an aggregate fine of $750. I note that this sentence was imposed six days prior to the commencement of your current offending.
28On 10 February 2022, you pleaded guilty in the Magistrates' Court to two further charges of theft of petrol. You were convicted and sentenced to an aggregate fine of $100. These charges were dealt with in the course of your current offending conduct.
29On 4 May 2022, you pleaded guilty to 12 charges of obtain financial advantage by deception, 20 charges of obtain property by deception, and two charges of attempt to commit an indictable offence. These offences were committed between 2020 and 2021. You were employed as a credit controller and used clients' credit card details to create deposits into your accounts. The money was used for gambling, the total amount being approximately $70,000.
30You were convicted and sentenced to a two-year community correction order and required to perform 300 hours of unpaid community work. I am told that you have completed 66 hours.
31Regrettably, none of your earlier criminal conduct was disclosed to Dahlen's, nor were your court appearances. Further, you did not disclose that you participated in a record of interview in October 2021, for the offending that was dealt with in May 2022. I note that those offences have some hallmarks of similarity to the current misconduct, given the breach of trust of your former employer.
32I turn now to your personal circumstances. You were born in Malaysia in July 1985 and are now 37 years of age. You have one younger brother. Your parents separated when you were a teenager. You continued to reside with your mother and maintain a close relationship with her. You have had little contact with your father since that time. He was an alcoholic, who was physically abusive towards your mother.
33You completed a Bachelor's degree in Electrical and Electronic Engineering in 2006. You held two long-term roles as a credit analyst in Malaysia.
34In 2009 you met your wife. You immigrated to Australia in 2012 and married her soon after your arrival. You became an Australian citizen in 2014 or 2015.
35In 2017 your daughter was born. A few months later your relationship deteriorated, and you separated. You divorced in 2020. You have previously been diagnosed with a major depressive disorder.
36You are currently socially isolated as you have no other family in Australia, and limited social supports.
37You initially worked as a credit analyst in Australia, although resigned from your employment in 2019, due to poor mental health that resulted from the breakdown of your marriage. You began to work as an Uber driver, before returning to work as a credit analyst for a different company in 2020. Since losing your job at Dahlen's, you have worked as a courier.
38You began to regularly gamble at the age of 22, but it became problematic in around 2014. In the following years, your gambling losses increased.
39You struggled financially with the costs associated with your divorce and living expenses. You took out high interest loans and your debts began to accumulate. Your gambling and current offending occurred in an attempt to obtain funding to repay those loans.
40You have provided a positive reference from your ex‑wife, dated 23 February 2023, and are fortunate to maintain her support. She works as a gastroenterologist at Monash Health. She maintains weekly contact with you, as you have shared custody of your five-year-old daughter.
41She writes that after your divorce you went into a 'downward spiral with depression'. You lost your work and developed significant debts. You felt under a lot of pressure, subject to threats from people and started to gamble. In her view, your significant debt has resulted in your making poor life choices. You have not disclosed your current circumstances to your family overseas, nor sought any financial support from them
42In discussion with your ex‑wife, you have been distressed by your misconduct and shown remorse. You want to 'get your life back on track'. She hopes that you will do so, to become a positive role model for your daughter.
43While it has been conceded that a term of imprisonment will be imposed in your case, your counsel has submitted that it would be appropriate to impose a community correction order as part of the sentencing disposition here. The maximum term of imprisonment available for a combination disposition is 12 months.
44It is submitted on your behalf that your current and previous offending occurred within a relatively short period of time, in the course of emotional and financial turmoil. Further, that your prospects of rehabilitation are tied to the proper management of your mental health and finances, including abstention from gambling. A CCO would facilitate your rehabilitation, by reducing your risk of reoffending and promote the protection of the community.
45The prosecution submits that a term of imprisonment with a non-parole period is appropriate.
46I have not received any medical evidence to support the submission that you suffer from depression or that you have any mental health causal connection to gambling. Further, there is no evidence that you are addicted to gambling. You were well aware of your misconduct and chose to proceed with it. The current offending was more sophisticated than your prior matters.
47You have not received treatment or counselling for any mental health or gambling issues in the past. Since this matter came to the attention of police, however, you have ceased your gambling practice. You have worked as a courier and have been able to get your life back on track, without any therapeutic intervention.
48I consider that your moral culpability for your offending is high. It is accepted that the principles of general deterrence and denunciation have a significant role to play in the sentencing exercise. While the current offences occurred over a short period of time, you have persistently committed offences of dishonesty since the end of 2018. You are not to be punished again for your prior offending. However, it is relevant when considering your prospects of rehabilitation, community protection and the increased importance of specific deterrence. It is accepted that the principle of specific deterrence is a relevant consideration in the sentencing mix.
49Your counsel submitted that the quantum here is not as significant as in other matters that come before this court. However, it is conceded that the amount defrauded is not insignificant and is relevant when determining the appropriate sentence.
50The maximum penalty of 10 years' imprisonment covers all your offending. In reaching the conclusion that your moral culpability is high, I take into account the duration and persistence of your offending, the quantum of it, the steps you took to conceal it and the associated breaches of trust.
51In my view, even if a community correction order was imposed in combination with the maximum term of imprisonment for a combination sentence, it is not a proportionate sentencing option. I consider that the objective gravity of your conduct, in the context of your criminal history, necessitates the imposition of a term of imprisonment, notwithstanding the significant benefit of your early plea of guilty. I am unable to accede to your counsel's submission.
52A period of supervision provided by parole will form part of the sentence to facilitate and encourage your rehabilitation, which will be of benefit both to you and to the community. I am prepared to conclude that your prospects for rehabilitation are reasonable only. I cannot ignore, however, the principles of general and specific deterrence. Both must be given significant weight in this sentencing exercise.
53I take into account the maximum sentence for this offence and current sentencing practices. I have not been provided with any similar cases, as it is conceded by your counsel that it is more common for offences of this kind to be committed by people that do not have a criminal history.
54Balancing all these factors as best I can, you are convicted and sentenced to two years and three months' imprisonment. I set a non-parole period of 18 months.
55I enter into the Court records that you have served six days pre-sentence detention.
56The declaration that I make under s6AAA is had the matter not proceeded as a plea of guilty, I would have imposed a sentence of 3 years and 3 months with a non-parole period of 2 years and 4 months.
57Are there any further orders sought, Mr Pickering?
58MR PICKERING: No, Your Honour.
59HER HONOUR: All right, thank you. Is there anything that you want to raise, Ms Ball?
60MS BALL: No, Your Honour.
61HER HONOUR: Very well. I will allow Mr Pickering and if his instructor is online, to be excused, and give you a chance to speak with your client online. I understand that your solicitor is online as well, so he can stay on. We will remove everyone else and I will leave the Bench. Thank you.
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SCHEDULE A – CHARGE 1
Date Amount Customer Account
14 December 2021 $16,783.19 BB Building Services Pty Ltd
20 December 2021 $20,000.00 Thoroughbred Construction
24 December 2021 $15,584.00 CM Construction Management
29 December 2021 $13,191.02 Green Homes Aust Southwest
5 January 2022 $24,283.06 A1A Homes Donnybrook
7 January 2022 $13,116.69 GMC Property Pty Ltd
10 January 2022 $10,000.00 DA & JR McIntyre Homes P/L
11 January 2022 $3,150.00 Mildura Brick & Pipeworks
14 January 2022 $4,864.16 Webster Bricklaying
25 January 2022 $2,489.96 D&J O’Brien Plumbing & Gasfit
28 January 2022 $7,208.59 Jason Albury
2 February 2022 $5,414.99 Craig Sharman
4 February 2022 $15,763.87 Salvestrin Engineering
8 February 2022 $3,335.00 Lucas Mellier
15 February 2022 $4,221.38 J & K Charles
28 February 2022 $5,432.96 GTK Stainless Steel
4 March 2022 $3,288.94 Simply Bathroom Solutions
11 March 2022 $16,050.00 Glen Stevenson
21 March 2022 $14,721.20 Glen Stevenson
TOTAL $198,899.01
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