Director of Public Prosecutions v Singh

[2024] VCC 1292

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01845

DIRECTOR OF PUBLIC PROSECUTIONS

v

JATINDER SINGH

---

JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 August 2024
CASE MAY BE CITED AS:	DPP v Singh
MEDIUM NEUTRAL CITATION:	[2024] VCC 1292

REASONS FOR SENTENCE
---

Subject:

Catchwords:              

Legislation Cited:      

Cases Cited:

Sentence:                  

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr C. Thompson	Office of Public Prosecutions
For the Accused	Mr M. Kozlowski	Emma Turnbull Lawyers

HER HONOUR:

Introduction

1Jatinder Singh, you have pleaded guilty to an indictment containing one rolled-up charge of theft of $6,090,020.47, comprising 160 transactions that you drew down between 13 May 2021 and 23 March 2022, against funds sent to you by mistake, which carries a maximum penalty of 10 years’ imprisonment.

2

In this case, I have been assisted by documents, oral submissions, and evidence. The prosecution has relied on a prosecution plea opening dated 15 December 2023, which I have received and marked as Exhibit A.  The prosecution has also relied on prosecution submissions on plea dated 18 April 2024 (Exhibit B); and I have received a Forensicare report prepared by Dr Rebecca Kam dated 23 July 2024 (Exhibit C), and the reasons for the sentence that I imposed on your

co-offender, that is DPP v Thevamanogari Manivel [2023] VCC (Exhibit D).

3In addition to the matters developed in oral argument, your counsel relied on an outline of defence submissions dated 30 July 2024 (Exhibit 1), the psychological report by Ms Gina Cidoni dated 4 February 2024 (Exhibit 2), supplemented by oral evidence, email from Frank Donnoli of Ramsay Psychology dated 20 February 2024 (Exhibit 3), and a bridging visa grant notice (Exhibit 4).

4I have reflected very carefully on the matters addressed in each hearing, and the documents provided.

Circumstances of your offending

5During your period of offending, that is between 13 May 2021 and 23 March 2022, you were in a relationship with your co-offender, Ms Thevamanogari Manivel.  On 2 May 2021, you opened a cryptocurrency account with an online business named 'Crypto.com'.  You later made a deposit of $100 AUD to your crypto account using Ms Manivel’s Commonwealth Bank account, so as to provide funds for buying crypto coins.  Because the funds came from an account in a different name to you as crypto account holder, Crypto.com declined to accept the transaction and sent you an email advising you that they were going to refund the $100 deposit.

6A second email was sent to you on 10 May 2021 by Crypto.com to the same effect.

7On 11 May 2021, Crypto.com made a significant accounting mistake in attempting to refund the Australian dollars, and, instead of refunding that amount, the staff member typed an account number, 10474143, into the transfer document as the amount to be transferred.  As a result, Crypto.com transferred a sum of $10,474,143 to Ms Manivel’s account at the Commonwealth Bank.  For reasons known only to that organisation, the overpayment was not discovered for many months.

8

On 12 May 2021, your cryptocurrency account held crypto coins with a value of approximately $9,500.  The following day, you discovered the overpayment to

Ms Manivel’s Commonwealth Bank account, and contacted her, asking her to transfer the funds from her Commonwealth Bank account to an account at the Westpac Bank that you shared in your joint names.  The prosecution has alleged that the reason for this request was that you knew that she had received the payment by mistake from Crypto.com, and you wanted to move it from the receiving bank before the transaction could be reversed, which is a reasonable inference, though I note that you have maintained since the overpayment that you were not fully aware that the payment was made in mistake.

9

At 12.14 pm on 13 May 2021, $80,000 was transferred electronically from

Ms Manivel’s Commonwealth Bank account to the Westpac account in your joint names, and at 12.34 pm on that day, Ms Manivel attended the Commonwealth Bank branch at Casey Central Shopping Centre, Narre Warren, and withdrew by bank cheque the sum of $10,000,000 together with $5,000 in cash.

10At 3.00 pm that day, Ms Manivel deposited the bank cheque for $10,000,000 into the Westpac Bank joint account held in both of your names, together with a sum of $80,000.  The day of these events is the first date of your between dates charge of theft, however you are not charged with theft of the full amount paid in mistake, exceeding $10,000,000. Your liability is confined to your 160 acts, of drawing funds from the total amount standing to your shared credit, between 13 May 2021 and 23 March 2022, adding up to the sum I have mentioned, of $6,090,020.47.

11I will pause reasons and just ask by way of comment, Mr Thompson, that is how the prosecution puts its case, isn't it?

12MR THOMPSON:   Yes, Your honour.

13HER HONOUR:  Thank you.  I will resume reasons for decision.

14Two very small transactions on 13 May and 28 June 2021 were followed by a significant transaction.  That is, on 28 June 2021, you gifted $1,000,000 to Mandeep Singh, in the form of a bank cheque.  A significant number of transactions of modest amounts, single figures, double figures, and triple figures, followed in ensuing months.  Between August and September 2021, you and Ms Manivel purchased two blocks of land, which were put in her name, and I can see withdrawals of $10,000, $23,900, $10,000, $33,500, $54,500, $566,550, and $345,230 during this short period.

15

In December 2021, seven months after the mistake and overpayment, an audit process at Crypto.com discovered the accounting error resulting in the payment, exceeding $10,000,000, into Ms Manivel’s account.  Crypto.com contacted the Commonwealth Bank.  As a result, the Commonwealth Bank contacted

Ms Manivel and requested return of the $10,000,000 overpaid by mistake.  She was told that the money had been sent by mistake, and that she must return it. At that date, the balance of your Westpac Bank joint account was $8,061,401.11.

16In the charge to which you have pleaded guilty, the particulars which you have accepted show that around this time, in December 2021 transactions occurred of $5,000, $9,000, $10,000, $20,000, $10,000, $5,000, and $2,000 during the period between 29 and 31 December 2021 following the notification to Ms Manivel.

17

Immediately following the communication from the Commonwealth Bank,

Ms Manivel transferred $2,000,000 to an account in Malaysia with HSBC Bank in her name.  This falls outside your offending.  On 5 January 2022, and 13 January 2022, the Commonwealth Bank contacted Ms Manivel by web messages requesting return of the $10,000,000.  A flurry of transactions then occurred in respect of which you have accepted responsibility.  On 10 January 2022, there was a transaction of $56,250, and then on 31 January 2022, I can see transactions of $500,000, $70,000, $100,000, $400,000, $30,000, $150,000, $100,000, and $10,000, each referable to your charge.  On the same day, 31 January 2022,

Ms Manivel transferred a further $2,000,000 to her HSBC account in Malaysia.  This quantum also falls outside your offending.  On 1 February 2022, a transaction of $1,226,382.86 occurred.  On 3 February 2022, there was a transaction of $66,000 and on 4 February 2022 I see a transaction of $1,205,000, each of which is referable to your charge.

18Ms Manivel pleaded guilty to a charge that between 24 December 2021 and 31 January 2022, she dealt with $4,000,000 consisting of those two transactions, which were the proceeds of crime, that is, of your theft, being reckless as to whether they were the proceeds of crime.

19On 8 February 2022, a lawyer acting for Crypto.com made contact with Ms Manivel and requested return of the $10,000,000, and she refused to return the money.  On 17 March 2022, she was arrested at Tullamarine International Airport attempting to board a flight to Malaysia; at the time she had in her possession a one way ticket and $11,750.

Arrest and Interview

20You were arrested by police on 24 March 2022, and were interviewed by police.  In this interview, you told police that you had received a notification in your 'Cryptocurrency' that you got $10,000,000 'something or other'.  You also told police that you believed that the money came to you as a result of winning something.  You said that you called your partner and told her to go to the bank and check as you had won some money, and you told her to transfer $10,000,000 into your joint account.  You said that you had transferred $100 to your Crypto.com account to fund the purchase of crypto coins, but you had not used that money.  You also told police that you honestly believed the $10,000,000 was yours, but you did not check anything.

21I have been told by the prosecution that whilst Crypto.com does hold competitions where crypto account holders could win cryptocurrency from time to time, no such competitions were held by Crypto.com in the relevant time period.  If there had been a competition, any winnings would be paid in the form of cryptocurrency, not Australian dollars.  You did not win any competitions at Crypto.com during the relevant time period, you did not receive any notifications from Crypto.com that you had won a competition, and whilst you were held by police, when given access to your Crypto.com app, you agreed that there was no sign of a notification in the terms about which you had told police.

22By way of context, Ms Manivel was interviewed by police, and told them that you had told her that you had won money, and the money came to her account, whereupon you told her to transfer the money to your joint account.  She told police that whilst later she was contacted by either the Commonwealth Bank or Crypto.com and was advised that the money had been sent incorrectly and that she needed to give it back, she told police that she believed that this was a scam call, and she did not act on it.

23

In pleading guilty to the charged act of theft, you admit that you obtained the $6,090,020.47 belonging to the Commonwealth Bank of Australia as a result of a mistake, and that you dishonestly and with intent to permanently deprive, diverted that money for your own purposes.  I have mentioned that your offending relates to a quantum entirely separate from Ms Manivel’s offending and comprises your acts of drawing down against the balance in 160 different transactions between

13 May 2021 and 23 March 2022.

24Let me pause reasons and again just by way of comment, Mr Thompson, have I stated the facts satisfactorily?

25MR THOMPSON:  Yes, Your Honour.

26HER HONOUR:  Yes, thank you, I understood so as well.  Mr Kozlowski, do you need to be heard?

27MR KOZLOWSKI:   No, Your Honour.

28HER HONOUR:  Thank you.  I will resume reasons for sentence.

Plea of guilty and timing

29You were charged on the day of your arrest, that is, 24 March 2022, and were remanded into custody.  The matter proceeded through committal proceedings at the Magistrates’ Court, and you were committed to stand trial on your plea of not guilty in October 2022.

30You were bailed in March 2023, with the matter listed for trial in this court to commence on 16 August 2023.  The matter resolved on what would otherwise have been the first day of trial on the proceeding charge, but following successful negotiations between your counsel and the prosecution as to the relevant quantum, i.e. resulting in a significant diminution of the original amount.  I was informed that an earlier conditional offer to plead guilty to this charge was rejected by the prosecution as the condition was not accepted by them.

31This is a late plea of guilty, however, I accept and take into account not only the plea but the utilitarian benefit of that plea, which saved the witnesses the inconvenience of needing to come to court to give evidence, and it saved the court and the community the time and expense of a trial.  Furthermore, at the time that this plea was entered, the court was continuing to experience delays as a result of the effects of the COVID-19 pandemic upon the listing of trials.  The utilitarian benefit of your plea can be viewed against this background and timing, and I attach mitigatory weight to both your plea and its timing.

32Whilst it has been submitted on your behalf that your plea is reflective of some remorse, during your psychological assessment by Gina Cidoni, in December 2023 and February 2024, you maintained that you never intended to steal any money and did not have any ill intentions.  In assessment by Dr Rebecca Kam, clinical psychologist, of June 2024, you did acknowledge that you 'made a mistake' and told her that your 'decisions would be different should [you] have been aware of the legal consequences of your actions'.  In the appointment with Dr Kam, you continued to attribute responsibility to Crypto.com and the bank, for making mistakes in not checking the amount transferred to Ms Manivel for nine months.  I consider that you have limited appreciation of the wrongfulness of your actions, and you lack insight which is a precursor to remorse, and I have not been taken to any other evidence of remorse.

Loss to the victim

33As I have mentioned, the quantum of your theft exceeds $6,000,000, which is a very significant amount.  In the hearing of your matter, I have been told that Crypto.com has exercised its rights in civil proceedings, to freeze and recover funds and real property to which you may have a claim.  Crypto.com has declined to advise the prosecution what amount it has been able to recover, and I therefore conclude that you have caused indeterminant loss to the victim.  However, given that the significant gift that you made to Mandeep Singh, and the two blocks of land that you helped to purchase were apparently held locally, I have been informed by the prosecution and accept that whilst the amount stolen was very significant, you did not necessarily place those moneys beyond local territorial limits which assists in recovery.

Personal circumstances

34You are now 39 years of age and were 35 to 36 at the time of your offending.  You were born and raised in a farming village located in the Punjab state of India.  Your parents have retired, and live with your older brother, who has taken the responsibility of caring for the farm and your parents.

35I understand that you worked after concluding your secondary schooling in India, in a retail setting at a clothes shop from the ages of 17 to 22, and you arrived in Australia in 2008 at the age of 23 on a student visa.  You have completed a Certificate III in Graphic Design at the Nova Institute of Technology, and you have worked in casual employment in car detailing for about 15 years.

36You were married in 2012, to a woman whom you met through social media and you divorced in 2014.

37You met Ms Manivel in October 2019 through mutual friends, but your relationship deteriorated after you were each charged with this offending.

38After you were bailed on this charge, you moved to Epping, and I have been told that in April 2023, you were placed on a Bridging E (Class WE) (General) Visa, apparently pending your application for a protection visa.  The conditions of that bridging visa do not permit you to work.

39I understand that your time on remand was understandably unpleasant, and unfortunately included racial bullying by other prisoners.

40Ms Cidoni has provided me with a report and oral evidence, in which she has observed that you reported a period of depression in 2014 after your marriage ended.  At that time, you experienced low mood, isolation, and increased alcohol consumption for several months.  I am sorry to say that you experienced suicidal ideation whilst on remand for this offence and attempted to electrocute yourself in gaol.

41Ms Cidoni administered relevant empirical testing, and as at the dates of her assessment, she considered that you would meet the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood.

42Now, Mr Interpreter, by way of comment, I am going to read from a document that you do not have.  I will move slowly and now I will return to reasons.

43She administered the Weschler Adult Intelligence Scale test and concluded that you have a full scale IQ of 69, which falls in the extremely low range where more than 80 per cent of people your age would do better.  Your verbal reasoning abilities are in the borderline range and above those of only two per cent of your peers.  Your nonverbal reasoning abilities are in the low average range and above those of only 18 per cent of your peers. Your ability to sustain attention, concentrate and exert mental control is in the extremely low range.  You performed better than approximately one per cent of your peers in this area.  Your ability to process simple or routine visual material without making errors is in the extremely low range when compared to your peers.  You performed better than approximately two per cent of your peers on the processing speed tasks.

44In Ms Cidoni’s opinion, quote:

'Mr Singh’s limitations in processing speed, working memory, and overall intellectual ability suggest a reduced capacity to fully understand complex situations, foresee the consequences of his actions, or engage in deliberate planning'.

45As a result of your cognitive limitations, in Ms Cidoni’s opinion, you experience challenges in processing information, understanding and following complex rules, and navigating social dynamics, which means that prison life is more difficult for you to adjust to, and it weighs more heavily upon you than it would a person without these issues, to which I will return but I will indicate that this mitigates penalty.

46Dr Kam reported that since your time on remand, you have felt scared to leave the house, due to your reputation being adversely affected by your charge and related media coverage.  As a result, you have been concerned that other people within the Punjab community could be judging you and gossiping about you, and you fear that your parents will learn of your offending.  You have restricted your socialisation, but you continue to attend Sikh temple every Sunday for prayer.

47

As a result of your sadness and loneliness, constant worrying and thinking, reduced appetite, sleep disturbances and occasional suicidal ideation, you sought treatment from your general practitioner, and psychologist Frank Donnoli. 

Mr Donnoli’s diagnostic impression of you is generalised anxiety disorder with

sub-threshold depressive symptoms.

48Dr Kam opines that your offending 'seems to have been an opportunistic and poorly considered series of acts, possibly associated with poor understanding of the process of cryptocurrency trading, but certainly with poor problem solving, and consideration of possible consequences including poor knowledge of the legalities associated with misappropriated funds'.  I accept this characterisation.

49

Dr Kam concluded that you report recent symptoms that are consistent with adjustment disorder with mixed anxiety and depressed mood, consistent with

Ms Cidoni’s clinical opinion.  Those adjustment difficulties are having a significant impact on your overall functioning, and your mental state will need to be monitored for a potential return of suicidal ideation and intent.

50To Dr Kam, you show the capacity to appreciate the wrongfulness of your actions, and you acknowledged wrongdoing in relation to the index offence, consistent with your plea which also represents acceptance of fault.

51I share the view, expressed by each counsel, that by reason of your mental functioning, including your intellectual limitations and your adjustment disorder with mixed anxiety and depressed mood, that a sentence of imprisonment will weigh more heavily upon you than it would a person in full intellectual and psychological health, and I have mitigated sentence on this basis.

52At the time of your offending, you were a person without prior criminal history, and you enjoyed good character.  I take this into account in significant mitigation of penalty.   Understandably, your offending has attracted some media interest which serves as a reminder to you and potentially to others of the consequences that must follow as a result of these types of actions.  The risk of your conviction being a factor which weighs against successful visa applications in the future, concerns you and it appears from your circumstances that aspects of your life, including employment and your social life, have been placed on hold pending the sentencing exercise.

53You have not reoffended since you were granted bail, and having regard to your lack of prior or subsequent criminal history, the fact that you have led a prosocial lifestyle, aside from this offending, and that you hold prosocial and non-offending attitudes, lead me to conclude that I share Dr Kam’s professional view that you present with low risk and support needs for reoffending.  I consider that your offending was entirely situationally motivated, and you are most unlikely to reoffend, in other words you have very good prospects for rehabilitation.

Objective gravity of your offending; moral culpability

54The task of sentencing you is a difficult one and requires a nuanced application of the law to the circumstances of your case.  The quantum of your offending is unusually grave, that is, in excess of $6,000,000, which was dispersed after you came into possession of the victim’s property via an unfortunate mistake.  Most of the quantum referable to your offending may or might already have been recovered.  This is an unusual quality in your case. There is no evidence of enrichment to your lifestyle.

55I find that your offending was opportunistic, precipitated by the most extraordinary circumstances.  That is, the unexpected windfall of the $10,000,000 deposited into Ms Manivel’s account, which on your advice was quickly moved into your joint account.  The explanation that you have offered since that time, that is, that you were given the money in good faith, and it was yours to spend, is untrue.  By your plea, you accept that you had no legal claim of right to the money, and you were at least reckless, but your actions represented an interference with the rights of the true owner and were dishonest.

56I sentence you on the basis that your moral culpability lay in the temptation to which you yielded, to spend the in excess of $6,000,000 that you did, without concern of consequence.  I do share Dr Kam’s view, that you poorly considered the consequences of your actions in the context of poor problem-solving capacities, and poor knowledge of the legalities associated with misappropriated funds.  You were able to enjoy the funds for an extended period of time without intervention, which, as Dr Kam opined, appeared to reinforce your sense of entitlement.  I accept and take into account that this is not consistent with the decent standard of morality with which you usually conduct your affairs.

Relevant sentencing principles; sentencing submissions

57In imposing a sentence upon you, I consider the major purposes of sentencing to be general deterrence, punishment, and denunciation for your conduct.  It is also my intention to impose sentence which provides significant allowance for your very good prospects for rehabilitation.

58In my view, in spite of your denials of understanding of the consequences of your actions, specific deterrence does not loom large as a relevant sentencing principle and purpose, given my findings that your offending was acutely situationally motivated, and that I can safely infer that that situation is not going to recur.

59Your counsel has urged me to make proper allowance for the parity principle of sentencing, having regard to the sentence that I imposed on Ms Manivel, on her charge of recklessly dealing with proceeds of crime, that is, $4,000,000, which led to a sentence involving a combination of 209 days’ imprisonment, to be followed by a community correction order, involving six months' intensive compliance, over a total period of 18 months.  I have reflected carefully on this submission and have had careful regard to the similarity and dissimilarity in circumstances between you.  I have been reminded of the significant differences in offending between you by the learned prosecutor, including the fact that you face different charges, that is, your charge is theft, whereas hers is recklessly dealing with the proceeds of crime (notwithstanding that they share the same maximum penalty of 10 years’ imprisonment).  The fact that her charge has a mental element of recklessness, unlike yours, which leads to a different factual basis of sentencing, in that she reacted to the account that you had given her, and the significantly different quantum between you.  Her offending involved two transactions, significant as they were, over five weeks, your offending involved 160 transactions of spectrally different quanta over a period of 10 months.

60Her plea was entered at a mid to late stage of the proceeding, whereas yours was entered at the door of trial following successful negotiations.  Her plea was accompanied by an understanding of wrongdoing, and contrition, whilst yours was not fully, except as indicated by your acceptance of legal responsibility.  In each of your cases, you share uncertainty as to the effect of your sentence on your prospects of being able to remain within Australia, which you consider to be your home.

61Each of these differences justifies an element of disparity in the ultimate disposition imposed upon you.

62Your counsel carefully submitted that in all of the circumstances of the case, including the parsimony principle of sentencing, that I could impose a combination of a gaol sentence, to be followed by a community correction order.  The prosecution submitted that such a disposition would be disproportionately lenient in all of the circumstances of the case.  I have reflected on these competing submissions exceptionally carefully, particularly in circumstances where a return to custody is likely to result in a deterioration of your mental health, as it did in the past.  Ultimately, I am unable to accede to your counsel’s submission, and I consider that the only appropriate sentence is a head sentence of imprisonment, with an unusually long period of parole eligibility, having regard in particular to your prospects of rehabilitation.

Sentence

63On the charge of theft, I sentence you to three years’ imprisonment, and I order that you serve two years before parole eligibility.  Were it not for your plea of guilty, had the matter proceeded to jury trial but resulted in a guilty verdict, I would have imposed a head sentence of four years’ imprisonment.  

64Pre-sentence detention I would reckon and declare as – could I be assisted please?

65MR THOMPSON:  I'm sorry, Your Honour this - - -

66HER HONOUR:  Sorry, you are breaking up, Mr Thompson.

67MR KOZLOWSKI:  Three hundred and sixty-one days, I understand.

68HER HONOUR:  Sorry, 361.

69MR KOZLOWSKI:  Three hundred and sixty-one, yes.

70HER HONOUR:  Three hundred and sixty-one days' pre-sentence detention reckoned as served.

71MR THOMPSON:  I agree.

72HER HONOUR:  Mr Thompson, do you wish to apply to withdraw the summary charge of deal with property suspected of being proceeds of crime?

73MR THOMPSON:  Yes, the prosecution applies to withdraw that.

74HER HONOUR:  Thank you.  I will mark that withdrawn and struck out.  Are there any other orders or matters that I ought turn my mind to?

75MR THOMPSON:  Not from the prosecution's point, Your Honour.

76MR KOZLOWSKI:  No, thank you.

77HER HONOUR:  I will request on my order that the accused be seen immediately by a general practitioner for treatment for his vulnerable mental health.

78MR KOZLOWSKI:  Thank you, Your Honour.

79HER HONOUR:  Thank you.  I will remand the accused in custody, and we will adjourn sine die please.

- - -