Director of Public Prosecutions v Thotapalli
[2021] VCC 1804
•20 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00592
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
PAVAN THOTAPALLI
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 August 2021 | |
DATE OF SENTENCE: | 20 August 2021 | |
CASE MAY BE CITED AS: | DPP v Thotapalli | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1804 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Devlin | Office of Public Prosecutions |
| For the Accused | Ms G. Connelly | Victoria Legal Aid |
HIS HONOUR:
1Pavan Thotapalli, you have pleaded guilty to:
·One charge of recklessly dealing with the proceeds of crime;
·One charge of attempt to recklessly deal with the proceeds of crime;
·One charge of possession of identification information;
·One charge of knowingly dealing with the proceeds of crime. and
·One charge of attempt to obtain financial advantage by deception.
2In addition, you have pleaded guilty to four summary charges:
·One charge of make false report to police;
·One charge of breach conduct condition of bail; and
·Two charges of commit indictable offence whilst on bail.
And have agreed to have them dealt with by me.
3The maximum penalty for recklessly dealing with the proceeds of crime is 10 years' gaol.
4The maximum penalty for attempting to obtain financial advantage by deception is five years' gaol.
5The maximum penalty for possession of identification information is three years' imprisonment.
6The maximum penalty for knowingly dealing with the proceeds of crime is 15 years' imprisonment.
7As to the summary offences, the maximum penalty for a false report is one year's imprisonment, for the contravention of a condition of bail is three months' gaol, and for committing an indictable offence whilst on bail is three months' imprisonment.
8The circumstances in which the offending occurred are set out in the amended summary of prosecution opening on plea, Exhibit 1, the accuracy of which you accepted through your counsel.
9Exhibit 1 sets out in enormous detail the workings of a highly sophisticated scamming operation by means of this operation, (mostly) elderly Australians were persuaded to make money transfers of amounts of money that they were led to believe were not their own. It is no part of the Crown case here that you had any knowledge of the workings of the scam itself, or against whom the deceptions were perpetrated.
10Rather, you fall to be sentenced on the basis that although you were reckless as to whether the money you facilitated the reception and transfer of was the proceeds of crime, you did not know how the money was generated, or to whom it was being transferred, or from whom it had been stolen. Specifically, it is put that your involvement in the movement of the funds was at the direction of, and was closely controlled by a superior (Rayala) in the scamming operation who awaits his trial on the larger operation.
11To understand your offending, it is necessary to explain, but only broadly, how the scam itself worked.
12By a number of means, the scammers obtained the landline phone numbers of potential victims. The scammers would ring the targeted victims purporting to be authorised persons from a wide variety of institutions. They ranged from Telstra to the National Crime Authority, to Australia's big banks, to Amazon and the NBN. Next, the scammers would persuade the victims that their computers or online banking accounts had been compromised or were under threat. Having achieved this persuasion, they would then enlist the victims' help in catching the fictitious perpetrators. The victims would be persuaded that by the use of an “app” they would allow the caller access to their computers and the main ruse that the scammers used was, by various means, to make the victim believe that the caller had deposited a large sum of money into the victims’ account. The victims were informed that the purpose of doing so was so that those funds could be used to entrap the fictitious perpetrators. By this point the victim had been led to believe that their own account had in it a large sum of money, which belonged to the caller, so they were then persuaded to make transfers of what they thought was the caller’s money to various nominated accounts. This they did, only to later find that the money they had transferred was their own, and that the money they had believed had been moved by the caller into their accounts had either come from other accounts of their own or had never been there at all. In the main, the money was never recovered, although in one instance (Charge 2) the bank itself refused to make the transfer the victim had been persuaded to make.
13You were engaged, in return for 5 % of the money that went through the accounts, to open a number of bank accounts, most of them in your own name with a variety of financial institutions. These accounts became the destination accounts for the transfers the victims were persuaded to make. Under the superior's direction, when such funds arrived into the accounts you had set up, you then dispersed them to other accounts, to which you were directed.
14Over the period of time to which these charges relate, 24 transactions, set out in schedule A to Exhibit 1, were completed. The amounts involved totalled $240,000 - odd and 20 individuals were the victims of this scam. Most of them have received no recompense for the loss. Only five of them made victim impact statements and I have set them out in a footnote. Exhibits 2 (Mayanne Boom), 3 (Maida Diana Irwin), 4 (Keith Arden), 5 (Peter Luff) and 6 (Barry Maloney).
15Charge 1 is a rolled-up charge of recklessly dealing with the proceeds of crime and relates to those 24 transactions. Your role in each transaction was to set up and control the destination accounts and as I have said, most of these were set up in your own name although in the case of a few, the names of others known to you were used. Approximately 20 of the accounts are listed in schedule A.
16As to your state of mind in relation to these transactions, Charge 1 and Charge 2 were put on the basis that you were reckless as to whether these funds were the proceeds of crime – that is, your state of mind was as revealed by your answers given in the record of interview, where you said that you knew something was wrong with the money, but were not aware of where it had come from. Your appreciation that something was wrong was heightened when the accounts that you were opening to receive the transfers began to get blocked or closed by the institutions with which they were held because of fraud, or at least the suspicion of it by the relevant institution.
17Charge 2, an attempt to recklessly deal with the proceeds of crime, relates to your role in checking one of the accounts you had set up for the arrival of the sum of $25,000 that others in the scam had persuaded a victim to transfer. Although you checked on a number of occasions under the direction of your superior, the funds never arrived because the banking institution from which the victim sought to transfer the money blocked the transaction.
18Charge 3 relates to the possession of identification information that was, in the main, provided to you by your superior. The identification information concerned six individuals, and in one instance you provided identification information of someone known to you, Niveditha Vemireddy .[1] The identification information was possessed in order to facilitate the setting up of the accounts into which scammed funds were to be transferred, and in the case of some of the individuals whose identification information was possessed, accounts were linked to victims of the scam to which Charge 1 relates.
[1] Schedule B of the opening lists the information possessed.
19On 1 May 2020, New South Wales police received a complaint from Victoria Bogomolets, who, that morning had transferred $10,000 into a bank account held by you following a message received from PayPal about unauthorised activity on Bogomolets' account. The New South Wales police quickly worked out where you lived and referred the matter to police in Victoria who in turn, attended your address and arrested you. You were found to be in possession of multiple bankcards, a mobile phone, cash, and a Western Union money transfer receipt for transfers that had taken place that morning. You were also in possession of an Indian passport in your name.
20When interviewed, you told the police that you were in financial difficulty because of a gambling problem and because of the borrowing of significant amounts of money from your parents in India. You explained your involvement in the money transferring and that you received 5% commission for the amounts that you transferred to overseas destinations. You told them that you continued to participate even after accounts began to be closed because of the report of fraud. You estimated that you had made somewhere between $10,000 and $15,000 from this activity.
21Initially you were charged with offences against the Bogomolets and bailed on conditions that you surrender all passports and not apply for another.
22A download of your mobile phone revealed records and messages relating to the transfer and deposits of large sums of money, and identified the victims which make up the balance of the transactions referred to in Schedule A. As I have said, these transactions comprise the rolled-up Charge 1 of recklessly dealing in the proceeds of crime.
23Three days later, on 4 May 2020, you made a false report to police that your passport had been lost on 28 April 2020. In fact, your passport had been seized when you were arrested on 1 May. This gives rise to summary Charge 11, make false report.
24It seems that the making of the report generates a lost property report, and it was this that you utilised, along with other documents you had prepared to apply for a new passport from the Indian consulate. Your application was successful and a new passport was issued. This was a contravention of the bail conditions you were then under and gives rise to summary Charge 12 – contravene a condition of bail.
25On 2 June 2020, a scam call persuaded Evelyn Shardlow to transfer nearly $20,000 to an account in the name of Niveditha Vemireddy. You then accessed the account and transferred $9,000 or $10,000 from it. You then directed Vemireddy to withdraw the remaining scammed funds in cash but this was unsuccessful. Your participation in this scam yielded a 5% cut to you, and these activities give rise to Charge 4, knowingly deal with the proceeds of crime, and to summary Charge 14 – commit an indictable offence whilst on bail.
26You committed a further indictable offence whilst on bail, Charge 35, in that you assisted in the making of a false application for a personal loan of $30,000 in the name of Pagadala. His details were used and on the Crown case, Pagadala himself had no knowledge of the application. Your assistance in the attempt to deceive the bank gives rise to Charge 5,[2] attempting to obtain property by deception and to summary charge 35 – commit indictable offence whilst on bail.
[2] It was conceded that your role was to assist in deceiving the bank to provide the loan and that you played a role in the loan application being lodged but nothing higher. The deception of the bank was that there was actually no car to be purchased – the loan was for the purchase of a car
27On 11 June 2020, the police got wind of your plans to leave Australia on a flight to India on the 17th of that month. On the afternoon of 11 June you were rearrested in relation to the further offending. You told the police that your passport was upstairs. Soon after, you told the police that your passport was at a friend’s house in Reservoir. You consented to a search of your bedroom and when this was conducted the police found a large quantity of bank records and credit cards which had been used in the previous offences. Later still, you told the police that you had torn up and thrown away the passport because of fear of being caught at the airport.
28You admitted to the further offending, including arranging the deposit location for the fraud committed against Shardlow.
29You admitted to opening the accounts and to transferring the funds that make up Charge 1, but denied knowledge of the scam that underlays the whole scheme.
30You were remanded in custody. Extensive negotiations followed filing hearing on the first committal mention and I was informed on the plea that negotiations continued until the matter resolved on 23 March 2021 and the committal proceeded by way of a straight hand-up brief. As such, is to be regarded as an early plea.
31You have been in custody since your rearrest and up to 13 August, at least, you had spent 428 days on remand in respect of these charges. Could I ask whether you have agreed what the PSD is today?
32MS CONNELLY: Your Honour, I have made it 435, based on - - -
33HIS HONOUR: By seven, yes.
34MS CONNELLY: Seven days in addition.
35MR DEVLIN: Yes. Your Honour, that 435 is agreed.
36HIS HONOUR: Thank you very much. Now the learned prosecutor read to the court a number of victim impact statements, that is, victims of the wider scam and they became Exhibits 2, 3, 4, 5 and 6.
37And although it is no part of the Crown case against you that you knew the identity or nature of the victims of the scamming operation, your criminal activity facilitated an aspect of the wider operation and the effect of it upon the victims in many instances has been profound and long-lasting. This is especially so, considering that many were past the end of their working lives and have no way of recovering their lost financial positions. Further, a number of them were distressed and ashamed of their own gullibility and have become suspicious and distrustful, another had difficulty funding important medical treatment that he needed.
38Pavan Thotapalli, I state to you that I have taken into account in mitigation of penalty all of the matters raised on your behalf in the course of the plea during which your counsel spoke to detailed written submissions, which became Exhibit 7.
39The matters raised by your counsel included:
40At the outset, counsel properly corrected an impression I had voiced about your role in the scamming enterprise, emphasising that had not been any part of the Crown case that you understood how the scamming of the victims was taking place.
41Next it was pointed out that you had pleaded guilty, and that because of the enormity of the brief and the number of transactions, it had taken months to reach a resolution upon which the plea had been conducted. However, it was submitted that your intention to plead guilty had been obvious from the time of the police interviews, and that your plea should be regarded as having been made at the earliest opportunity.
42Mr Thotapalli, I state to you that, by your plea, you have saved the community the very considerable cost of a lengthy and complicated trial which no doubt would have involved countless witnesses. They themselves have been spared the stress of giving evidence upon your trial. I take your plea, as I do your significant cooperation with the police, to be evidence of your remorse for your offending. [3] Further, an apology from you in writing was tendered on the plea. In the pandemic environment it is established that even greater weight is to be given to a plea of guilty for its utilitarian value.[4] You are entitled to have these matters taken into account in mitigation of penalty, and I have done so.
[3] A letter of apology from you was tendered on the plea, Exhibit 11.
[4] Worboyes v R [2021] VSCA 169 at [35], [39]: “We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence… For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.” See also Chenhall v R [2021] VSCA 175.
43You have no prior criminal history at all.
44I have taken into account your background and personal circumstances. These are set out in very considerable detail in the report of Ms Mynard, psychologist, which became Exhibit 8.
45Now 25 years of age, you were born, raised and educated to tertiary level in southern India. You were the child of an arranged marriage, your relationship with your mother was difficult at times although you now continue to enjoy her support. It seems that your relationship with your father has never been good and appears now to be at an end, as he is very angry at your present predicament. Your parents separated, leaving you and your mother in difficult financial circumstances later in your upbringing.
46Nevertheless, you completed school and obtained a degree in accounting and finance. You came to Australia in 2018 on a student visa to undertake a Master’s Degree. You were soon followed by a distant relative (Vemireddy), already mentioned, who you were expected to support and look after. Your family went to great lengths to fund your first year of education and after that, by employment, you were expected to fund the remainder of your course and even to send funds back home. Outside of your studies you worked in a car wash. There was a great deal of pressure from your family to succeed.
47The car wash work did not produce enough money to fund your continuing studies, so your family went into debt to allow you to continue. The money they sent for this purpose you gambled away. It seems, from what I was told, that Bet 365 was the main beneficiary. The stress of your losses, your attempts to recover them by further gambling and the failure of steps you took to limit your gambling interfered with your studies, to the point where you did not even sit the exams. Your gambling activities cost you all your personal relationships. You became homeless. Your family, understandably, were angry at all this and cut off contact. By early 2020 you had lost your rental accommodation and had to take accommodation in a share house.
48An associate of those living in the share house was the superior I referred to earlier in these remarks in the scamming operation and, on learning of your financial plight, he engaged you in this offending.
49Ms Mynard made a diagnosis of a pathological gambling disorder and of a generalized anxiety disorder. To her you explained your offending, saying that you knew that 'money just doesn’t fall into the account' and continued to rationalise your involvement because of the financial distress you were in. Ms Mynard wrote that in her opinion, the combination of your drinking problem,[5] of which she took some history, gambling addiction and anxiety impaired your decision making in the steps you took to recover your losses by engaging in this offending.[6]
[5] You gave a history of drinking until passing out on a regular basis.
[6] By reference to R v Grossi [2008] VSCA 51, it was not submitted that more than “slight” weight should be given to this in mitigation, as the offending involved volition at each stage, rather it was put that the offending was borne of financial distress rather than greed.
50Ms Mynard also wrote that the psychological conditions will make your time in prison more burdensome for you, and that significant treatment was required to address your mental health issues.
51You have been in custody now for 14-odd months and I accept that this has been difficult for you because of your mental state. Your anxiety about members of your family in India, which was in a terrible state because of the pandemic, is understandably high. This is all the more so because of the difficulty you have communicating with them from prison and because you are isolated in prison and without visitors.
52Although, because of your anxiety, the fifth limb of Verdins was relied upon, despite it, there is evidence that you have engaged well in prison. You have completed a large number of programs that were set out in Exhibit 10,[7] and you have had regular work in the prison kitchen.
[7] Exhibit 10
53As to your prospects of rehabilitation, you have no criminal history and character references to your good character in other respects were tendered on the plea.[8] Ms Mynard assessed your risk of re-offending as moderate to high, but said that this would reduce with appropriate treatment. It was submitted and I accept that your acknowledgement of the problem, and your lack of prior offending, offer some hope and overall I assessed your prospects of rehabilitation as quite reasonable.
[8] Exhibit 9
54Against the matters to be taken into account must be balanced the fact that these are serious offences, as the maximum penalties imposed by Parliament for them show. The scam your money transferring offending assisted, though unknown to you, caused great financial and emotional harm to its victims. As your counsel put it you chose to 'put your head in the sand' as to how the money was generated and allowed your financial distress to overcome the disquiet you felt as to its provenance. As an almost fully trained accountant I regard your recklessness in this regard as at the higher end of the available scale. Further, after your arrest, you committed further offences whilst on bail, by then in no doubt that the funds were the proceeds of crime, and this you compounded by committing further offences to enable flight from the jurisdiction. In the circumstances, I am required to give weight to both general and specific deterrence and to manifest the community’s denunciation of your conduct and to otherwise impose just punishment.
55I should say that, in the course of submissions it was common ground that the objective gravity of the offending here was such that the purposes for which the sentence is to be imposed could not be achieved without the imposition of a term of imprisonment to be immediately served and a non-parole period.
56Pavan Thotapalli, I state to you that I have taken into account all of the matters raised on your behalf in mitigation of penalty in the course of the plea and all relevant sentencing principles in arriving at the sentences I am about to impose.
57On Charge 1, recklessly dealing with the proceeds of crime, you are convicted and sentenced to a term of imprisonment of two years.
58On Charge 2, attempting to recklessly deal with the proceeds of crime, you are convicted and sentenced to a term of imprisonment of three months.
59On Charge 3, possession of identification information, you are convicted and sentenced to a term of imprisonment of three months.
60On Charge 4, knowingly dealing with the proceeds of crime, you are convicted and sentenced to a term of imprisonment of one year.
61On Charge 5, attempting to obtain financial advantage by deception, you are convicted and sentenced to a term of imprisonment of three months.
62On the summary Charge 11, make false report, you are convicted and discharged.
63On summary Charge 12, contravene a condition of bail, you are convicted and sentenced to a term of imprisonment of two months.
64On summary Charge 14, which is committing Charge 4 whilst on bail, you are convicted and sentenced to a term of imprisonment of one month, and
65On summary charge 35, which is the commission of Charge 5 whilst on bail, you are convicted and sentenced to a term of imprisonment of one month.
66Taking the sentence imposed upon Charge 1 as base, I order that one month of the sentence imposed upon Charge 2, three months of the sentence imposed upon Charge 4, one month of the sentence imposed upon Charge 5, and one month of the sentence imposed upon summary Charge 12 be served cumulatively upon each other and upon the sentence imposed upon Charge 1. All other sentences to be served concurrently, making a total effective sentence, of two years and six months.
67In all the circumstances, I order that you serve a minimum term of 18 months' imprisonment before becoming eligible for parole.
68I declare that the 435 days you have spent in custody on remand for these offences is to be reckoned as time already served under the sentences and I direct that that fact be entered in the records of the court.
69Pursuant to section 6AAA, I state that had you been found guilty of these offences after a trial I would have sentenced you to a term of imprisonment of four years and six months, with a non-parole period of three months. Are there ancillary orders to be made?
70MR DEVLIN: Yes Your Honour. There was a draft disposal order filed and served.
71HIS HONOUR: Is that consented to, Ms Connelly?
72MS CONNELLY: It is, Your Honour. Your Honour, could I just ask Your Honour to state again the non-parole period. I think Your Honour said three months, but perhaps you meant three years.
73HIS HONOUR: Ah, that's the 6AAA bit.
74MS CONNELLY: For the 6AAA declaration.
75HIS HONOUR: Three years.
76MS CONNELLY: Yes, thank you Your Honour.
77HIS HONOUR: I will make the disposal order and are there any other orders sought?
78MR DEVLIN: And there was a forfeiture order as well, Your Honour.
79HIS HONOUR: And I'll make the forfeiture order also.
80MR DEVLIN: As Your Honour pleases and I agree, for what it's worth, Your Honour, with Your Honour's maths.
81MS CONNELLY: As do I, Your Honour, may it please Your Honour.
82HIS HONOUR: Thanks Ms Connelly. Would you adjourn the court thanks, Mr Bell.
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